Riley v. Taylor

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

1-17-2001

Riley v. Taylor

Precedential or Non-Precedential:

Docket 98-9009

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Volume 1 of 2

Filed January 17, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-9009

JAMES WILLIAM RILEY,

Appellant

v.

STANLEY W. TAYLOR;

M. JANE BRADY

*(Pursuant to Rule 43(c), F.R.A.P.)

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

(D.C. No. 91-cv-00438)

District Court Judge: The Honorable Joseph J. Far nan

Argued: November 29, 1999

Before: SLOVITER, ALITO, and STAPLETON,

Circuit Judges

(Opinion Filed: January 17, 2001)

Thomas J. Allingham, II (Argued)

Stephen D. Dargitz

One Rodney Square

P.O. Box 636

Wilmington, DE 19899

Mary M. Maloney Huss

222 Delaware Avenue, Suite 1102

Lawrence J. Connell

Widener University School of Law

P.O. Box 7474

Concord Pike

Wilmington, DE 19803

Attorneys for Appellant

Loren C. Meyers (Argued)

Chief of Appeals Division

William E. Molchen

Deputy Attorney General

Department of Justice

State Office Building

820 N. French Street

Wilmington, DE 19801

Attorney for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

This is an appeal from the denial of a petition for a writ

of habeas corpus in a capital case. We affirm.

I.

In May 1982, James W. Riley and two co-defendants,

Tyrone Baxter and Michael Williams, wer e indicted in

Delaware for felony murder, intentional murder, and lesser

offenses stemming from the robbery of a liquor store and

the fatal shooting of the owner in February 1982. Riley

pleaded not guilty to all of the charges and was tried by

jury in Kent County Superior Court in December 1982. He

was represented by appointed counsel.

At trial, Riley's co-defendants testified as follows for the

prosecution. On the afternoon of the shooting, Williams

agreed to give Riley and Baxter a ride to the bus station,

but on the way, he stopped, at their request at a store

2

called Sandbar Liquors, because Riley and Baxter wanted

to get some beer and rob the store. W illiams parked near

the liquor store and waited in the car, while Riley and

Baxter walked to the store. Armed with a gun, Riley placed

a quart bottle of beer on the counter and announced that

the store was being robbed. When the stor e owner, James

Feeley, backed away from the cash register , Baxter grabbed

the money out of the cash drawer. Riley tried to take

Feeley's wallet, but Feeley resisted. At Baxter's urging, Riley

shot Feeley in the leg. As Riley and Baxter wer e leaving,

Feeley threw a wine bottle that struck Riley in the arm.

Riley then shot Feeley in the chest, killing him. In addition

to this testimony, the prosecution intr oduced evidence that

Riley's fingerprints were found on the bottle of beer that

had been placed on the counter.

Riley took the stand in his own defense and testified that

he was in Philadelphia with his mother celebrating her

birthday when the robbery occurred. Although Riley's

mother was present in court at the beginning of the trial,

she did not testify, and no other alibi witnesses were

presented. However, Gary Momenko, an inmate at the

Delaware Correctional Center, testified that Baxter had

admitted that he, rather than Riley, had fir ed the shot that

killed Feeley.

The jury returned a verdict of guilty on all five counts.

The state sought the death penalty on the felony mur der

conviction, and four days later, the penalty phase of the

trial was held. The jury unanimously recommended a

sentence of death, and based on this recommendation, the

trial court sentenced Riley to death. After Riley was

sentenced on the remaining counts for which he had been

convicted, he appealed.

On direct appeal, Riley continued to be r epresented by

his trial counsel. In addition, the American Civil Liberties

Union of Delaware, Inc., participated in the appeal by filing

an amicus curiae brief and by assisting trial counsel.

In July 1985, the Delaware Supreme Court affirmed

Riley's conviction and death sentence. Riley v. State, 496

A.2d 997 (Del. 1985) ("Riley I "). The Supr eme Court of the

United States denied certiorari. Riley v. Delaware, 478 U.S.

1022 (1986).

3

Represented by new counsel, Riley filed a motion for

post-conviction relief in Kent County Superior Court in

March 1987. The court conducted three separate hearings

on the issue of ineffective assistance of counsel, but

ultimately the court denied Riley's motion. State v. Riley,

1988 WL 47076 (Del. Super. 1988) ("Riley II").

In May 1988, Riley moved for reargument and appealed

to the Delaware Supreme Court. Shortly thereafter, he filed

a motion to stay briefing his appeal and to r emand his case

to the Superior Court to consider his motion for

reargument. The Delaware Supr eme Court granted that

motion.

On remand, the Superior Court granted r eargument in

order to consider Riley's claim that the pr osecution had

exercised its peremptory challenges in a racially

discriminatory manner in violation of Batson v. Kentucky,

476 U.S. 79 (1986). State v. Riley, 1988 WL 130430 (Del.

Super. 1988) ("Riley III"). Following an evidentiary hearing,

the Superior Court rejected all of Riley's claims, including

his Batson claim. Riley v. State, Del. Sup. Ct. No. 200,

1988, Status Report of the Trial Court (April 21, 1989)

("Riley IV"). On appeal, the Delaware Supreme Court

affirmed, and the United States Supr eme Court again

denied certiorari. Riley v. State, 585 A.2d 719 (Del. 1990)

("Riley V"), cert. denied, 501 U.S. 1223 (1991).

In August 1991, Riley filed a petition for a writ of habeas

corpus in the United States District Court for the District of

Delaware pursuant to 28 U.S.C. S 2254 (1988 & Supp.

1990) (amended 1996). The District Court granted Riley's

motion to substitute attorneys from the law firm of

Skadden Arps Slate Meagher & Flom as new lead counsel

and to allow his post-conviction counsel to continue as co-

counsel. However, the Court denied new counsel's request

to file an amended petition. The Court then issued an

opinion and final order denying the petition for a writ of

habeas corpus. Riley v. Snyder, 840 F . Supp. 1012 (D. Del.

1993). Riley appealed.

A panel of our court reversed the order denying Riley's

motion for leave to amend his petition and r emanded the

case for further proceedings. Riley v. T aylor, 62 F.3d 86 (3d

Cir.1995).

4

On remand, Riley filed a lengthy amended petition in

August 1995, and the state filed an answer . In his amended

petition, Riley raised 12 grounds for r elief. In a

comprehensive opinion, the District Court discussed and

rejected all of these claims. Riley v. T aylor, Civ. Act. No. 91-

438-JJF, 1998 WL 172856 (D. Del. Jan. 16, 1998). We

granted a certificate of probable cause, and Riley then took

this appeal.

II.

Riley, an African American, first contends that the

prosecution violated Batson v. Kentucky, supra, by using

peremptory challenges to strike three African Americans

from the jury panel because of their race. 1 As a result of

these strikes, no African Americans sat on the jury.

A.

Before reaching the merits of Riley's Batson claim, we

must consider whether, as the District Court held and the

state maintains, this claim is procedurally barred. This

issue requires us to review the history of the litigation of

this issue in the state courts.

1. On the eve of trial, Riley's attorney mov ed for

disqualification of the jury panel. He "did not attack the

original array or venire," which was 16% black, but he

"claimed that the panel had later become racially

disproportionate because the Court excused fr om service a

substantial number of the prospective jur ors." Riley I, 496

A.2d at 1007. "The thrust of [his] objection was that

through judicial excusal of jurors for personal reasons, the

remaining blacks had been reduced to an unacceptable

number amounting to about 9% of the remaining venire."

Id. However, Riley's attorney "did not charge, or even imply,

that the Trial Judge had excused jurors on racial grounds."

_________________________________________________________________

1. Although Riley was tried years before Batson was decided, the

Supreme Court did not deny certiorari in Riley's direct appeal until

shortly after Batson was handed down, and therefore Riley is entitled to

the benefit of that decision. Griffith v. Kentucky, 479 U.S. 314, 328

(1987); Deputy v. Taylor, 19 F.3d 1485, 1491 n.6 (3d Cir. 1994).

5

Id. Riley's motion to disqualify the entir e panel was denied,

and a jury was selected. Id. "At no time did defendant

challenge the State's use of its peremptory challenges or

even imply that the State was exercising its challenge rights

on racial grounds." Id. at 1010. After jury selection was

completed, Riley's attorney raised what he characterized as

"something of a renewal of an earlier motion" and again

moved to dismiss the entire jury, arguing that it was not

"representative of the community and could not give a fair

and impartial trial." Id. This motion was denied as well. Id.

On appeal to the Delaware Supreme Court, Riley argued

that the prosecution had exercised thr ee of its peremptory

challenges on racial grounds. Riley I, 496 A.2d at 1009.

Addressing this argument, the Delawar e Supreme Court

held:

We reject such contention for two r easons, each related

to the inadequacy of the record to support the claim.

We conclude (1) that no Sixth Amendment per emptory

challenge claim was fairly presented to the T rial Court;

but (2) even assuming the contrary, defendant failed to

meet his burden of establishing a prima facie claim

that the State exercised its peremptory challenges on

racial grounds.

Id. at 1010.

With respect to the merits of Riley's ar gument, the Court

held for the first time that racially based per emptories

violated state law, and the Court devised a pr ocedure much

like that later adopted in Batson for dealing with objections

to peremptories. Id. at 1010-13. Under this procedure, a

defendant who wished to contest a peremptory strike was

required to make out a prima facie case that the strike was

based on race. Id. at 1013. The court held, however, that

Riley had "failed to make the requir ed prima facie showing."

Id. at 1011.

The Delaware Supreme Court's decision on direct appeal

did not mark the end of Riley's peremptory challenge claim

in the state courts. When the Supreme Court decided

Batson, Riley again raised the issue of racially based

peremptories in his motion for post-conviction relief, but in

a decision issued in April 1988, the trial judge r ejected this

6

claim, along with all of Riley's other claims for post-

conviction relief. Riley II, 1988 WL 47076, at *1. Reiterating

the holding of the state supreme court, the trial judge

wrote: "Because the asserted violation was not argued and

evidence of such violation was not offer ed at the trial level,

the defendant's contention is without merit." Id.

Riley appealed the denial of post-conviction r elief to the

Delaware Supreme Court and then successfully moved that

court to remand the case for re-ar gument before the

Superior Court. On remand, Riley presented his peremptory

challenge argument to a new judge, Judge Steele, who took

a different view of the issue. After noting the state supreme

court's holding on direct appeal that Riley had not

adequately raised the issue at trial, Judge Steele stated

that he did not think that the state supreme court would

reach the same decision in light of its later decision in

Baynard v. State, 518 A.2d 682 (Del. 1986), in which the

state supreme court had held that the defendant had made

out a prima facie case. See Riley III, 1988 WL 47076, at *2.

Judge Steele wrote that the defendant in Baynard had

"objected to the exercise of each per emptory challenge

against a black juror, noted the jur or's race for the record,

moved the Court to refuse the challenges against two and

moved to quash the entire panel." Id. Judge Steele then

held that Riley's attorney had adequately raised an

objection at trial and had made out a prima facie case. Id.

at *3. Judge Steele therefore held that a hearing was

needed for the purpose of determining the actual bases for

the contested peremptories. After conducting such a

hearing, Judge Steele found that the state had not

exercised its peremptories based on race, and he denied

Riley's Batson claim. Riley V. The Delaware Supreme Court

affirmed that decision. See Riley V, 585 A.2d at 725.

2. When a state court rejects a criminal defe ndant's

federal constitutional claim because the defendant did not

raise the claim in accordance with an independent and

adequate state procedural rule, a federal habeas court may

not entertain the constitutional claim on the merits unless

the habeas petitioner can show either (a) that ther e was

"cause" for the procedural default and that it resulted in

"prejudice" or (b) that the failur e to entertain the claim

7

would produce a "fundamental miscarriage of justice."

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Here, as

noted, one of the two alternative grounds given by the

Delaware Supreme Court on direct appeal for rejecting

Riley's claim that the prosecution had exer cised its

peremptory challenges in a racially discriminatory manner

was that Riley had not raised any such objection at trial. If

the Delaware courts had adhered to this position, Riley's

Batson claim would almost certainly be pr ocedurally

barred. See Riley VI, 1998 WL 172856, at *14.

"State procedural bars are not immortal, however; they

may expire because of later actions by state courts. If the

last state court to be presented with a particular federal

claim reaches the merits, it removes any bar to federal-

court review that might otherwise have been available." Ylst

v. Nunnemaker, 501 U.S. 797, 801 (1991). Unfortunately,

"[i]t is not always easy for a federal court to apply the

independent and adequate state ground doctrine," Coleman,

501 U.S. at 732, and this is such a case. While it is

perfectly clear that Judge Steele rejected Riley's Batson

claim on the merits, the decision of the Delawar e Supreme

Court affirming Judge Steele's decision is less clear. The

Delaware Supreme Court's discussion of the Batson issue

in its entirety is as follows:

Riley's next contention, that the State exer cised its

peremptory challenges for racial reasons, we find to be

simply a renewed attempt to reopen pr eviously settled

issues. In Riley I, we set forth a legal analysis

functionally identical to the Supreme Court's analysis

later articulated in Batson. 476 U.S. at 79, 106 S.Ct. at

1712, 90 L.Ed.2d at 69. In Riley I we found that Riley's

constitutional right to an impartial jury had not been

violated. 496 A.2d at 1009. The Superior Court, after

an evidentiary hearing on Riley's motion for

postconviction relief, held that Riley had not been

denied equal protection as a result of the State's use

of peremptory challenges. The court found that the

State had provided race-neutral explanations for its

peremptory challenges. We find no err or in Superior

Court's rejection of Riley's Batson claim. See Holland v.

Illinois, 493 U.S. 474, 110 S.Ct. 803, 807, 107 L.Ed.2d

8

905, 916 (1990) (the Sixth Amendment fair cr oss-

section requirement of an impartial jury does not

deprive a party of the right to exercise per emptory

challenges on racial or any other grounds fr om a venire

that otherwise meets Sixth Amendment cross-sectional

standards of representativeness). Mor eover, we reaffirm

our earlier decision sustaining the State's per emptory

challenges on state constitutional grounds. Riley I, 496

A.2d at 1010-1013.

Riley V, 585 A.2d at 725.

Riley interprets this passage as rejecting his claim on the

merits, as Judge Steele had done. By contrast, the District

Court held and the state now maintains, that the state

supreme court reaffirmed its prior decision on direct

appeal. Because one of the two alternative gr ounds for this

former decision was procedural default, the District Court

and the state interpret the state supreme court's later

decision as reaffirming procedural default as a separate

basis for its decision.

We do not interpret the most recent decision of the

Delaware Supreme Court as reaffir ming its prior holding of

procedural default; instead, we interpr et it as rejecting

Riley's claim on the merits. In the passage set out above,

the court refers expressly to its holding on the merits of

Riley's Batson claim and to the Superior Court's rejection of

that claim on the merits. Moreover, in the final sentence of

the passage, the court expressly reaffir ms its holding on

direct appeal that the prosecution's use of peremptory

challenges in this case did not violate the state

constitution. The absence of any express r eference to the

court's prior holding concerning procedural default, much

less a specific reaffirmation of that holding, is suggestive.

The only part of the passage that might be viewed as

reaffirming the prior holding r egarding procedural default is

the first sentence. But this sentence merely describes

Riley's Batson argument as "a r enewed attempt to reopen

previously settled issues." Riley V, 585 A.2d at 725. To say

that the Batson issue was "previously settled" is quite

different from saying that each of the two grounds for the

previous decision is reaffirmed. Finally, if the state supreme

9

court continued to believe at the time of its most r ecent

decision that Riley's Batson claim was for eclosed for failure

to make a proper objection at the time of trial, it seems

likely that the court would have made that point expressly

and would not have relied on Judge Steele'sfindings. After

all, if the holding on direct appeal remained operative,

Judge Steele erred in refusing to follow that decision, and

holding an evidentiary hearing.

We view this case as similar to Harris v. Reed, 489 U.S.

255 (1989). There, a state appellate court noted a rule of

state law under which issues that could have been, but

were not, raised on direct appeal wer e considered waived.

See id. at 258. The state court also observed that certain

issues could have been raised on direct appeal, but the

court did not expressly state that it found the issues to

have been waived, and it went on to reject them on the

merits. Id. The United States Supreme Court interpreted

the state court decision as one that appeared to rest

primarily on federal law and thus presumed that there was

no independent and adequate state ground for the decision.

Id. at 261-63. See also Coleman, 501 U.S. at 734-40. We

interpret the most recent decision of the Delaware Supreme

Court in the same way and therefore view it as rejecting

Riley's Batson claim on the merits. W e will therefore

proceed to examine the merits of Riley's Batson argument.

B.

1. In Batson, the Supreme Court held that it is a

violation of the Equal Protection Clause for a prosecutor to

strike a juror because of race. In order to raise a Batson

claim, a defendant must attempt to make out a prima facie

case. 476 U.S. at 96-97. If the defendant does so, the

prosecutor must offer a race-neutral r eason for the strike,

and the trial judge must make a factual finding on the

question whether the strike was based on race. Id. at 97-

98.

In this case, the Superior Court found that Riley had

made out a prima facie case. See Riley IV at *2, and the

state does not dispute this point. The state of fered race-

neutral justifications for his strikes, and the state courts

10

accepted those explanations. Id. at 3-6; Riley V, 585 A.2d

at 725. Riley contends, however, that the state courts erred

in finding that the strikes in question wer e not based on

race.

Under the version of the federal habeas statute that

applies in this case, 28 U.S.C. S 2254(d) (1988 & Supp.

1990) (amended 1996),2 the state courts' findings must be

presumed to be correct unless one of eight exceptions was

shown. Riley relies on two of these exceptions. He

maintains that the presumption of correctness does not

apply because he "did not receive a full, fair, and adequate

hearing in the State court proceeding," and because the

state court's "factual determination is not fairly supported

by the record as a whole." 28 U.S.C.S 2254(d)(6)(8)(1988 &

Supp. 1990).

2. Riley contends that he did not receive"a full, fair, and

adequate hearing in the State Court proceeding" because

the state courts misinterpreted the federal constitutional

standard. He points to Judge Steele's statement in Riley IV

that the state was required to show that its peremptories

were not based "solely on the ground of the jurors' race."

Riley IV at 3. Riley argues that corr ect standard was set out

in Jones v. Ryan, 987 F.2d 960 (3d Cir. 1993), where we

said that "a violation of the Batson rule occurs when race

is used as a factor in the exercise of a peremptory

challenge." Id. at 972 (emphasis added).

We reject this argument. When Judge Steele made the

statement that Riley attacks, he was simply pr oviding a

general description of the holding in Batson. He was not

addressing the complicated issue of the pr ecise standard of

causation that applies when a party contends that a

peremptory challenge was based on an imper missible

factor, e.g., whether a constitutional violation demands a

finding that the impermissible factor was a motivating

factor, a determinative factor, or the sole factor in the

_________________________________________________________________

2. Riley's federal habeas petition was filed before the effective date of

the

current version of 28 U.S.C. S 2254, which was enacted as part of the

Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214.

Therefore, the prior version of S 2254 applies. See Lindh v. Murphy, 521

U.S. 320 (1997).

11

decision to exercise the strike. The language to which Riley

objects is virtually identical to language in Batson itself,

where the Supreme Court said that "the Equal Protection

Clause forbids the prosecutor to challenge potential jurors

solely on account of their race." Batson , 476 U.S. at 89

(emphasis added). This language was quoted in Jones, the

decision on which Riley relies. Jones, 987 F.2d at 974.

The statement that the prosecution must pr ove that its

peremptories were not based solely on race is literally

corrected as far as it goes: whether or not the prosecution

must prove more, it most certainly must show that it did

not strike potential jurors solely because of their race.

Neither Judge Steele's statement nor the Supr eme Court's

statement in Batson went on to explain whether the

prosecution must show more than this (e.g., that race was

not a but-for cause of the strikes), and it is a mistake to

interpret them as addressing that question.

In this case, we need not decide what is the corr ect

standard of causation under Batson because, when Judge

Steele's discussion of the Batson question is read in its

entirety, it is apparent that he found that the real reason

for each of the strikes had nothing to do with race. With

respect to Charles McGuire, he accepted the state's

explanation, which he found to be "entirely unrelated to

race." Riley IV at 4-5. With r espect to Ray Nichols and Lois

Beecher, he accepted the state's "race-neutral"

explanations. Id. at 3-5. Thus, whatever the proper

standard of causation for a Batson claim,3 we see no basis

_________________________________________________________________

3. The standard of causation for a discrimination claim has been

explored in depth in other contexts. See, e.g., Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989) (Title VII);Watson v. SEPTA, 207 F.3d 207

(3d Cir. 2000) (same); Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995)

(en banc) (same). When a civil plaintiff seeks to recover for a

constitutional violation, the plaintiff must initially show that an

unconstitutional factor was a "motivating factor" in the decision. Mt.

Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

The defendant may then avoid liability by pr oving that the same decision

would have been made even if the unconstitutional factor had not been

considered. Id. See Hunter v. Underwood, 471 U.S. 222, 227 (1985)

(applying Mt. Healthy to a claim of racial discrimination). In the end,

then, the standard is essentially but-for causation, and we are inclined

12

for holding that Riley was denied a full, fair , and adequate

hearing.

3. We turn, therefore, to R iley's argument that the

findings of the state courts should not be pr esumed to be

correct because they are not "fairly supported by the

record." 28 U.S.C. S 2254(d)(8) (1988 & Supp. 1990). Riley

first advances several general reasons for concluding that

the state court's findings are not fairly supported by the

record. He then offers specific ar guments targeted at the

findings regarding each of the potential jurors who was

peremptorily challenged. We will begin by considering

Riley's general arguments.

a. Riley points to the conduct of the prosecu tor before

the 1988 evidentiary hearing as evidence that race played

a part in the peremptory challenges. Riley notes that the

state offered no race neutral justifications for its strikes at

the time of trial or on direct appeal, and he argues that this

conduct is evidence that the strikes were racially motivated.

These arguments have no merit. We see no reasonable

basis for drawing any adverse inferences fr om the

prosecution's failure to provide explanations for its strikes

at the time of trial. At no time during the trial did Riley

argue that the prosecution's peremptory challenges were

racially motivated. Riley moved to have the entir e jury panel

disqualified before any challenges wer e used. Then, after

failing to object while the challenges were being exercised,

Riley's attorney made a motion that he characterized as

"something of a renewal of [his] earlier motion" and again

requested dismissal of the entire panel. Furthermore,

Riley's trial occurred four years befor e Batson was decided

and two years before the Delaware Supr eme Court (in

Riley's own appeal) adopted a similar rule as a matter of

state law. In light of the nature of the motions made by

Riley's trial counsel and the status of the law at the time of

_________________________________________________________________

to think that this is the proper standar d under Batson. This would mean

that a peremptory challenge is unconstitutional if, and only if, the

lawyer

would not have made it but for the potential jur or's race, sex, etc.

Here,

however, because of the reasons explained in text, we do not find it

necessary to resolve this question.

13

the trial, no adverse inferences can be drawn from the

prosecution's failure to offer explanations for its strikes.

The same is true with respect to the brief that the state

filed in Riley's direct appeal to the state supreme court.

Riley makes much of the fact that the state, r elying on

Swain v. Alabama, 380 U.S. 202 (1965), ar gued in its brief

that the use of individual peremptory challenges to strike

potential jurors based on race was not unconstitutional.

Riley states:

[I]n its first opportunity to defend in writing its

peremptory strikes of Black jurors, the State did not

even try to offer any race-neutral basis for its strikes

(not even the implausible post hoc rationales it

conjured up many years later in the 1989 state court

Batson proceedings) -- not even as an alternative

factual argument. Instead the State ar gued for 13

pages that there was nothing wrong with using

peremptory strikes to exclude Black jur ors on the basis

of race-based "group association" and"predisposition."

. . . . The implication is clear: In the State's 1984 view,

"group association" was a perfectly appropriate and

even desirable basis for peremptory strikes.

Appellant's Br. at 23-24 (emphasis in original).

This argument is not well taken. No adverse inferences

can reasonably be drawn from the state's r eliance on the

rule of constitutional law accepted in Swain, which was

then the governing Supreme Court decision. Nor can any

adverse inferences be reasonably drawn fr om the state's

failure to offer race-neutral explanations in its appellate

brief. The state's brief specifically denied that its

peremptories were based on race. See App. 896.

Furthermore, since there was no evidence in the record

regarding the reasons for the strikes, the state could hardly

have expected the state supreme court to base a decision

on explanations provided without recor d support in a brief.

Riley contends that statistics concerning the use of

peremptory challenges by the Kent County Pr osecutor's

office fatally undermine the state court'sfindings with

respect to the reasons for the strikes at issue in his case.

In his brief, Riley states: "At the state court Batson hearing,

14

Mr. Riley introduced summary evidence that in four

Delaware first degree murder trials occurring in Kent

County within one year of Mr. Riley's trial, every prospective

Black and minority juror called was per emptorily struck by

the prosecution." Appellant's Br. at 33. We found this

assertion troubling and requested post-ar gument

submissions related to it. However, after examination, we

do not find the supporting evidence on which Riley relies to

be helpful.

The four first-degree murder trials to which Riley referred

were his own and those of Andre Deputy, an African

American, and two whites, Daniel Pregent, who was

acquitted,4 and Judith McBride, who was convicted. See

Dec. 16, 1999, Letter to Court from Thomas J. Allingham II,

Appendix A (hereinafter "Appendix A"). W ith respect to

these cases, no information has been pr ovided about the

racial makeup of the venire, the identities of the

prosecutors who participated in jury selection, or

peremptories exercised by the defense.

In the trial of Andre Deputy, the state struck four whites,

one African American, and one person listed as "Indian."

Appendix A. Deputy argued that the prosecution's

peremptory challenge of the African American venireperson

violated Batson. See Deputy v. Taylor, 19 F.3d 1485, 1492

(3d Cir. 1994). Deputy's Batson ar gument was rejected in

the district court decision denying his petition for a writ of

habeas corpus and on appeal. See id. at 1492. Since it has

been held that no Batson violation was shown in Deputy,

that case hardly supports Riley's argument here.

In Pregent's case, the state struck four whites and one

black. There is nothing before us to indicate that any

Batson objection was made, and it is doubtful that the

pattern of strikes exercised by the pr osecution sufficed to

make out a prima facie case.

The remaining case is the prosecution of Judith McBride

for murdering her husband. See McBride v. State, 477 A.2d

174 (Del. 1984). The state exercised a total of 10 strikes, of

which three were against potential jur ors identified as black.5

_________________________________________________________________

4. See Van Arsdall v. State, 524 A.2d 3, 5 (Del. 1987).

5. According to Riley's statistics, five of those struck by the state were

white, and the race of two is not provided. Appendix A.

15

Appendix A. There is nothing to indicate that any Batson

objection was made. Without in effect holding a Batson

hearing, there is no way of determining whether any

prosecution peremptories were based on race.

We have given careful consideration to the statistics that

Riley has presented, but we believe that it would be

analytically unsound to give those statistics any weight.

The dissent, however, makes much of this data. Indeed, the

dissent goes so far as to assert that "the most plausible . . .

inference to be drawn from the data is that the Kent

County Prosecutor followed a pattern of using peremptory

challenges in a racially discriminatory manner ." Dissent at

63. This conclusion is completely unwarranted.

According to the data supplied to us, the pr osecutors in

these cases exercised peremptory challenges against 25

potential jurors identified as white and eight identified as

black. Thus, 24% of these peremptories wer e exercised

against African Americans. Because we do not know the

racial composition of the venires, we cannot even be sure

that the number of African Americans peremptorily

challenged by the prosecutors was dispr oportionally high.

We note that, according to the most r ecent census at the

time of Riley's trial, the population of Kent County was

18 % black. BUREAU OF THE CENSUS, COUNTY AND CITY

DATA BOOK -- 1983 at 74. If the potential jurors

peremptorily challenged by the prosecutors had been

proportional to the racial makeup of the county, the

prosecutors would have stricken six African Americans,

rather than eight. Even if it is assumed that the Kent

County prosecutors followed the same jury selection

strategy in all four cases,6 the introduction of a single

additional variable -- or pure chance -- could easily explain

the data. We need not consider what weight should be given

to a professional multiple-regression analysis of peremptory

challenge statistics in determining whether a Batson

violation occurred in a particular case. Cf. McClesky v.

_________________________________________________________________

6. There is no evidence that this was done. First, there is no evidence

that the same prosecutors appeared in all four cases, and particularly in

view of the differences in the four cases, there is no reason to suppose

that the same strategies were used.

16

Kemp, 481 U.S. 279 (1987)(multiple-regr ession analysis of

state's death penalty statistics insufficient to show that

particular petitioner suffered discrimination). We are not

presented here with anything that even r emotely

approaches expert statistical evidence.

Characterizing Riley's data as merely "imper fect," the

dissent argues that an adverse inference should be drawn

against the state for failing to come forwar d with additional

information. We see no basis for this approach. First, as we

have explained, Riley's data did not raise an infer ence of

discrimination, and thus additional data wer e not needed to

refute Riley's statistical showing. See McClesky, 481 U.S. at

296-97 ("[A]bsent far stronger pr oof, it is not necessary to

seek a rebuttal."). Second, the state was never given notice

that it had any obligation to provide additional data. As we

read the record, the state mer ely asked for the opportunity

to provide additional information and then elected not to do

so. There are obviously many reasons why the state might

have made that choice, and we see no basis for speculating

that it did so because any additional information would

have been unfavorable to its position. Third and most

important, the information that is most critically lacking --

the prosecutors' reasons for striking thefive African

American venire members in the Deputy, McBride, and

Pregent cases -- probably could not be obtained without in

effect conducting retrospective Batson hearings in those

cases. We know of no precedent for such a practice --

holding a Batson hearing regarding peremptory challenges

exercised by prosecutors in other cases in which no claim

of discrimination may have been made. For all these

reasons, we do not find the statistics r egarding peremptory

challenges exercised by prosecutors in Kent Count in other

cases to be probative.

b. We come, now, to Riley's argument that the evidence

in the record concerning the thr ee contested peremptories

does not fairly support the state court's findings that these

strikes were not based on race.

Ray Nichols Ray Nichols was the first black juror

challenged by the prosecution. The prosecutor testified that

he struck Nichols because he was uncertain that Nichols

would be able to vote for a death sentence. See App. 797-

17

99. According to the prosecutor's testimony, "there was a

pause and a significant pause in him answering Judge

Bush's inquiry and that to me was enough to suggest that

he might not be able to return a death penalty and I didn't

want anyone that wasn't going to give me a death penalty."

Id. Having heard the prosecutor's testimony, Judge Steele

concluded: "I find the State provided a cr edible, race-

neutral reason for exercising its per emptory challenge after

appraising the demeanor and credibility of the juror. The

State's exercise of its peremptory challenge was non-

discriminatory. I am satisfied that the per emptory challenge

was not made on the ground of the juror's race." Id. at 889.

Riley suggests that it is not believable that the pr osecutor

was able to remember at the time of the evidentiary hearing

in 1988 that Nichols had paused while answering a

question during voir dire six years earlier . In addition, the

dissent contrasts the prosecutor's ability to r emember this

pause with his inability to remember another potentially

significant aspect of the jury selection pr ocess,7 and the

dissent notes that the prosecutor was a friend and neighbor

of the victim. Dissent at 59. These facts wer e highlighted

during the cross-examination of the prosecutor at the

Batson hearing, see App. at 820-29, and they wer e

important factors to be considered in assessing the

prosecutor's credibility. Judge Steele was aware of these

facts and had the opportunity to observe the pr osecutor

testify on the witness stand. Judge Steele found that the

prosecutor's testimony was credible.

Our standard of review of Judge Steele'sfinding is

narrow. Under 28 U.S.C. S2254(d)(8)(1988 & Supp. 1990),

we must accept any state court factual finding that is "fairly

supported by the record," and in this instance, because

Judge Steele's finding was based squarely on an

assessment of the credibility of a witness who appeared and

testified before him, we must exercise special caution.8

_________________________________________________________________

7. See Dissent at 66-67 (discussing jur or Reed). We discuss this matter

infra at 23-25.

8. See Hernandez v. New York, 500 U.S. 352, 353 (1991); Batson, 476

U.S. at 98 n.21. In discussing a federal appellate court's standard of

review in a direct federal appeal, the Supreme Court observed: "When

18

Under the very limited scope of review af forded by 28

U.S.C. S2254(d)(8)(1988 & Supp. 1990), we cannot overturn

Judge Steele's credibility determination. 9

Lois Beecher During voir dire, Lois Beecher initially gave

an answer that seemed to indicate a willingness to impose

the death penalty in an appropriate case.10 When

(Text continued on page 21)

_________________________________________________________________

findings are based on determinations r egarding the credibility of

witnesses," an appellate court must give "even greater deference to the

trial court's findings; for only the trial judge can be aware of the

variations in demeanor and tone of voice that bear so heavily on the

listener's . . . belief in what is said." Anderson v. Bessemer City, 470

U.S.

564, 575 (1985). Indeed, the Court added, that "when a trial judge's

finding is based on his decision to credit the testimony of [a] witness[ ]

[who] has told a coherent and facially plausible story that is not

contradicted by extrinsic evidence, that finding, if not internally

inconsistent, can virtually never be clear error." Id. "The respectpaid

such findings in a habeas proceeding certainly should be no less." Patton

v. Yount, 467 U.S. 1025, 1038 (1984).

9. Our dissenting colleague, by contrast, wouldfind on the cold record

before us that the prosecutor was untruthful when he testified before

Judge Steele. In fact, a centerpiece of the dissent is an attack upon the

credibility of prosecutor James Liguori. W e reject the dissent's analysis

of this issue and note that some of the facts on which the dissent relies

are either insignificant or irrelevant. For example, the dissent

repeatedly

implies that Liguori's testimony is suspect because he testified at the

Batson hearing that his objective at Riley's trial was to obtain a capital

sentence. See Dissent at 60-61, 64. But is not this the objective of every

prosecutor in a case in which the death penalty is sought? Are all such

prosecutors presumptively unworthy of belief? The dissent also implies

that Liguori discriminated in the use of per emptory challenges because

an appellate brief on which his name does not even appear (see App. at

894) relied in part on Swain, which was then still good law. See Dissent

at 59-60. The dissent points out that the recor d does not reflect any

"uncertainty on Nichols's part" as to whether he could return a death

sentence. Dissent at 64. But what the prosecutor claimed to have

observed -- "a significant pause" -- is not something that a transcript is

likely to capture. Likewise, the fact that the prosecutor did not have

"contemporaneous notes" (see Dissent at 58) r egarding the pause reveals

little, because, particularly in the pre-Batson era, a prosecutor had no

strong reason for making or keeping such notes. The dissent's

arguments do not persuade us to overtur n Judge Steele's credibility

finding.

10. The entire relevant colloquy was as follows:

Q. Let me ask you several questions dealing with capital punishment,

19

your attitude towards capital punishment. Do you have any

conscientious scruples against finding a ver dict of guilty where the

punishment might be death or against imposing the death penalty if the

evidence should so warrant?

A. Can I rephrase that in my own wor ds?

Q. Yes, you may.

A. If a person did something that was wrong and that was his

punishment, then I would agree, you know. T o me it is okay if you done

something wrong without, you know -- if you didn't have --

Q. If the evidence justified it, you couldfind a person guilty even

though the punishment may be death?

A. Yes, I could.

Q. Or the penalty may be imposing the death penalty. Regardless of

any personal beliefs or feelings you may have, if the evidence justified

it,

would you be able to find a person guilty of mur der in the first degree

and would you be able to impose the death penalty? I will repeat the

question.

Regardless of any personal feelings or beliefs you may have, if the

evidence in the case justified it, would you be able to find a person

guilty

of murder in the first degree and would you be able to impose the death

penalty?

A. I've got to say this. I may, could say that I agree, but I don't know

whether I could say, you know -- I don't know whether I could draw the

conclusion.

Q. If the evidence justified it, do you feel your personal feelings

against the death penalty may be such that you may not find this person

guilty of murder in the first degree?

A. I couldn't put my personal feelings in it.

Q. Pardon?

A. I couldn't put my personal --

Q. You would not?

A. No, I couldn't put my personal feelings in it.

Q. What would prevent you from finding this person guilty of murder

in the first degree and imposing the death penalty then? Do you have

some conscientious scruples against finding a person guilty?

20

questioned further, however, she said that the questioning

was "making [her] think about it," and she ultimately said

that she did not believe that she could impose the death

penalty. App. 290-92. The state then peremptorily

challenged her. See id. at 292. The prosecutor later testified

that he struck Beecher because of her unwillingness to

impose the death penalty and because she seemed

confused during the voir dire. See id. at 803-05. Judge

Steele accepted this explanation and found that the strike

was not based on race. Riley IV at 5.

Riley argues that the state court finding is not fairly

supported by the record because Beecher's initial responses

in the colloquy indicated a willingness to impose the death

penalty if the evidence warranted. The fact r emains,

however, that Beecher ultimately said that she could not

vote for a death sentence. In light of that admission, the

prosecutor could have reasonably viewed her attitude as

troubling. We hold that the state courtfinding is fairly

supported by the record.

Charles McGuire Riley's strongest Batson claim concerns

the prosecution's strike of Charles McGuir e. At trial, the

prosecutor first used a peremptory challenge against

McGuire and then immediately made the following

application to the trial judge:

[THE PROSECUTOR]: Your Honor , may I ask the

Court to reconsider charging the State for that strike.

This Mr. McGuire came to chambers yester day and

expressed his belief that he didn't know if he could last

the two weeks [the estimated length of the trial], there

was some problem with work. He was an inspector or

something for the Department of Labor. I know he

came in yesterday.

THE COURT: I will not strike him for cause for that

reason. He asked to be excused yesterday and I

decided not to excuse him.

_________________________________________________________________

A. No. I just never had to do that and it's just making me think

about it.

App. 290-92 (emphasis added).

21

App. 250.

At the evidentiary hearing held before Judge Steele as

part of the post-conviction relief proceeding, the prosecutor

testified that he struck McGuire because McGuire "had

previously requested to be excused fr om jury service" and

because the prosecutor "wanted attentive jur ors" who were

not worried about missing other obligations or activities

while the trial took place. App. 801.

The defense called McGuire as a witness at the

evidentiary hearing. McGuire testified that he was employed

by the State of Delaware as a Social Security"disability

adjudicator," App. 846-47; that he had been reporting for

jury duty in the courthouse in Dover for two to thr ee weeks

before he was questioned in connection with the Riley case

but had not been seated on a jury, id. at 852-53; that while

he was away from work, the disability claims assigned to

him would "just sit[ ]," id. at 850; that the director of his

office had told him that he was going to make a"formal

request" that McGuire be excused, id. at 860; that such a

request was sent, id. at 853, 856; and that the request had

been discussed in chambers with the judge. Id . at 849-50,

856. McGuire said, however, that he himself had never

expressed an unwillingness to serve on the jury and had

been willing to do so. See id. at 850.

Judge Steele accepted the prosecutor's explanation of the

reason for striking McGuire. Judge Steele wrote:

McGuire's employer sent a letter requesting he be

released from jury duty because he could not be

replaced at his job if he was chosen for jury duty. The

letter by McGuire's employer clearly gave the State

reason to question whether McGuire would give his full

time and attention to the trial and whether he would

be able to serve for the entirety of the time projected

for the trial. Whether McGuire, in fact, did not request

relief from jury duty and did wish to serve is of no

consequence.

Riley IV at 4-5. Judge Steele then cr edited the state's

explanation of the reason for striking McGuir e, terming it

"clear, reasonably specific and entirely unrelated to the

juror's race." Id. at 5.

22

Several factors provide substantial support for this

finding. It is apparent that McGuire's work situation was on

the prosecutor's minds when McGuire was peremptorily

challenged because, as noted, immediately after striking

McGuire, the prosecutor asked that McGuir e's dismissal be

deemed for cause since he had "expressed his belief that he

didn't know if he could last the two weeks." App. 250. In

addition, a reasonable prosecutor might well have wondered

whether McGuire's work situation would adversely affect

his attentiveness at trial. As noted, McGuir e's supervisor

had made a "formal request" that he be excused "because

he could not be replaced at his job if he was chosen for jury

duty."11 Whether or not McGuire himself in fact wished to

serve on the jury, the impression appar ently was conveyed

that McGuire wanted to be excused and to r eturn to work,

since the trial judge commented: "He asked to be excused

yesterday and I decided not to excuse him." See App. 250.

Under these circumstances, a reasonable pr osecutor could

have been concerned that McGuire might have been

inattentive at trial due to worry about missing work, leaving

his duties unattended, and perhaps incurring his

supervisor's displeasure.

Riley attacks Judge Steele's finding on two gr ounds.

First, he points out that, according to McGuir e's testimony

at the post-conviction relief evidentiary hearing, McGuire

himself did not ask to be excused. This argument is

unpersuasive. Although McGuire testified that he did not

ask to be excused, the trial judge, as noted, stated at the

time of McGuire's dismissal: "He asked to be excused

yesterday and I decided not to excuse him." App. 250

(emphasis added). Thus, McGuire, who was unable to

remember many details at the time of the post-conviction

relief evidentiary hearing, see App. 853, 857-62, may have

been mistaken, or he may have conveyed the impr ession at

the time of trial that he personally wanted to be excused.

Second, Riley points out that a handwritten sheet

prepared by the prosecutors during voir dire contains the

following notation next to the name of a white jur or,

_________________________________________________________________

11. Riley IV at 4. See also App. 860 (McGuire's testimony at the

evidentiary hearing).

23

Charles Reed, whom the prosecution did not per emptorily

strike: "works Lowe's, wants off." App. 823. One of the

prosecutors was questioned about this notation by Riley's

attorney at the post-conviction relief evidentiary hearing,

but the prosecutor testified that he had no r ecollection of

Reed. See id. at 823-24.

The notation by Reed's name and the prosecutor's

testimony at the evidentiary hearing are certainly factors

that Judge Steele could have viewed as tending to

undermine the credibility of the pr osecutor's explanation

for striking McGuire, but the notation and the prosecutor's

testimony are insufficient to show that Judge Steele's

finding is not "fairly supported by the r ecord." 28 U.S.C.

S 2254(d). It is reasonable to infer fr om the notation "wants

off " that, at some point in the jury selection process, Reed

expressed a desire to be excused for some reason. As far as

we are aware, however, the record does not reveal why12 or

how strongly Reed wanted to be excused. The transcript of

the voir dire on December 6 and 7, 1982, shows that, at the

final stage of the jury selection process, the members of the

venire were asked whether there was"any reason why

[they] absolutely [could not] serve," App. 223, that members

of the venire then successfully asked to be r eleased for

reasons such as a previously planned vacation, id. at 253,

but that Reed made no request to be excused at that time.

See id. at 229-30. Thus, as far as the r ecord appears to

reveal, Reed may have had a relatively weak desire and

reason to be excused, and his situation may not have been

at all comparable in this respect to McGuir e's.13

_________________________________________________________________

12. Just because the notation "wants of f " appear after the words "works

at Lowe's," it cannot be assumed that Reed's desire to be excused was

related to his employment.

13. Many decisions have held that Batson is not contravened simply

because two jurors exhibit similar characteristics and one is excluded

while the other is retained. See, e.g., Matthews v. Evatt, 105 F.3d 907,

918 (4th Cir. 1997); United States v. Spriggs, 102 F.3d 1245, 1255 (D.C.

Cir. 1997); United States v. Stewart, 65 F.3d 918, 926 (11th Cir. 1995);

United States v. Alvarado, 951 F.2d 22, 25 (2d Cir. 1991); United States

v. Lance, 853 F.2d 1177, 1181 (5th Cir . 1988); United States v. McCoy,

848 F.2d 743, 745 (6th Cir. 1988); United States v. Lewis, 837 F.2d 415,

417 n.5 (9th Cir. 1988).

24

Our scope of review of Judge Steele's finding is narrow.

Judge's Steele's finding "on the ultimate question of

discriminatory intent" is entitled to "gr eat deference,"

particularly because such findings "lar gely turn on an

evaluation of credibility." Hernandez v. New York, 500 U.S.

352, 353 (1991). See also Batson, 476 U.S. at 98 n.21

("Since the trial judge's findings in [this] context . . . largely

will turn on evaluation of credibility, a reviewing court

ordinarily should give those findings gr eat deference.").

Here, although it would be satisfying to know why Reed

was not stricken, that unanswered question is not enough,

in view of the "great deference" owed Judge Steele's

credibility determination, to demonstrate that Judge's

Steele's finding is not "fairly supported by the record."14

III.

Riley next argues that adverse publicity pr evented him

from obtaining a trial by an impartial jury. He contends,

first, that it should be presumed that he was prejudiced by

pretrial publicity because the recor d establishes the

existence of a "hostile trial atmosphere" and, second, that

the record shows that several jurors were unable to be

impartial due to exposure to unfavorable pr etrial publicity.

A.

"Where media or other community reaction to a crime or

a defendant engenders an atmosphere so hostile and

pervasive as to preclude a rational trial pr ocess, a court

reviewing for constitutional error will pr esume prejudice to

the defendant without reference to an examination of the

attitudes of those who served as the defendant's jur ors."

Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir. 1992).

_________________________________________________________________

14. This case is very different from Jones v. Ryan, supra, on which Riley

relies. There, exercising plenary r eview in the absence of any findings

of

fact by a state court, we held that Batson was violated where the

prosecutor excluded a black juror who had a child approximately the

same age as the defendant, while retaining a white juror who was

similarly situated. Jones, 987 F.2d at 973. In the present case, we are

limited to deciding whether the state court finding is fairly supported by

the evidence.

25

See also Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes

v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana, 373

U.S. 723 (1963); Flamer v. Delaware, 68 F.3d 736, 755 (3d

Cir. 1995) (en banc). "The community and media reaction,

however, must have been so hostile and so pervasive as to

make it apparent that even the most car eful voir dire

process would be unable to assure an impartial jury. . . .

Such cases are exceedingly rare." Rock, 959 F.2d at 1252-

53.

In this case, the state courts made a finding of

impartiality. Such a finding is entitled to defer ence, see

Patton v. Yount, 467 U.S. 1025, 1031 & n. 7 (1984), and we

find no basis for overturning that finding.

Riley relies on a relatively small number of newspaper

articles, almost half of which appeared six months or more

before the trial. Although two of the articles named Riley as

a suspect in Feeley's murder, and although a few of the

articles discussed the plight of the Feeley childr en, who

were orphaned by the murder, the articles were not

inflammatory. In short, the media coverage was not"so

hostile and pervasive as to preclude a rational trial

process." Rock, 959 F.2d at 1252.

B.

Because Riley has not shown the presence of

circumstances justifying a presumption of prejudice, he

"must establish that those who actually served on his jury

lacked a capacity to reach a fair and impartial verdict based

solely on the evidence they heard in the courtr oom." Rock,

959 F.2d at 1253. See also Patton, 467 U.S. at 1035; Irvin

v. Dowd, 366 U.S. 717, 723 (1961). "The fact that jury

members may have been exposed to press r eports or other

community reaction concerning the case and even the fact

that they may have formed a tentative opinion based on

that exposure will not establish a constitutional violation if

the trial court has found, with record support, that each of

the jurors was able to put aside extrinsic influences." Rock,

959 F.2d at 1253.

Riley contends that two jurors, Leon Morris and Carl

Patterson, were unable to be impartial due to exposure to

pretrial publicity. We do not agr ee.

26

Morris testified during voir dire that he"had read

something about" the case in the newspaper at the time of

the murder and that he had heard on the radio that the

case was "coming to trial." App. 277. The following

exchange then occurred:

Q. . . . Because of what you read in the newspaper,

do you feel that you could sit here as an impartial

jury?

A. Yes, because I know nothing of the e vidence or

anything else.

App. 278.

Carl Patterson during voir dire was asked whether

anything he had read in the newspaper had cr eated bias or

prejudice against the defendant. See App. 294 He

responded that he could not remember a lot of what he

read in the newspaper. See id. The following colloquy then

occurred:

Q. Then do you know of any reason why you can't

render an impartial verdict based solely upon the law

and the evidence?

A. No, Your Honor.

Id.

The trial judge implicitly found that these jur ors were

impartial, and the Delaware Supreme Court agreed on

direct appeal. Such implicit findings ar e entitled to a

presumption of correctness. Parke v. Raley, 506 U.S. 20, 35

(1992); Weeks v. Snyder, 2000 WL 975043 (3d Cir. July 17,

2000); Campbell v. Vaughn, 209 F .3d 280, 290 (3d Cir.

2000), and we see no ground for holding that that

presumption has been overcome.

IV.

Riley argues that the prosecution violated his right to due

process by failing to disclose exculpatory evidence in its

possession as required by Brady v. Maryland, 373 U.S. 83

(1963). In Brady, the Supreme Court held that "the

suppression by the prosecution of evidence favorable to an

27

accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the

prosecution." Id. at 87. To state a valid Brady claim, a

plaintiff must show that the evidence was (1) suppressed,

(2) favorable, and (3) material to the defense. See United

States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991).

Evidence is material if there is a reasonable probability that

the outcome would have been different had the evidence

been disclosed to the defense. See United States v. Bagley,

473 U.S. 667, 678 (1985). Evidence that may be used to

impeach may qualify as Brady material. See Kyles v.

Whitley, 514 U.S. 419, 445 (1995); Bagley , 473 U.S. at 676.

Riley's Brady argument concerns a wiretap on the

telephone of the mother of Tyrone Baxter . Before trial,

Riley's lawyer asked the state to produce r ecordings or

transcripts of the intercepted calls, but the state refused,

arguing that the tapes contained no exculpatory material.

Without listening to the tape himself, the trial judge

accepted the prosecutor's representation and denied Riley's

motion for production. Throughout the subsequent

proceedings in state and federal court, no judge listened to

the tapes.

In his briefs in this appeal, Riley made a str ong Brady

argument. He asserted that between the time of the Feeley

murder and Baxter's arrest, "Baxter spoke to his mother on

the telephone on several occasions"; that "Baxter's

testimony was the State's strongest evidence against" him;

and that statements made by Baxter to his mother might

have provided valuable impeachment evidence. Appellant's

Br. at 5. At a minimum, he contended, the state courts or

the District Court should have listened to the tapes in

camera to determine whether they contained Brady

material.

At oral argument, however, counsel for the appellees

represented that an examination of the logs of the wiretap

on Mrs. Baxter's telephone did not reveal any intercepted

conversations in which Baxter participated. Copies of the

logs were provided to Riley's attor neys and to the court,

and Riley's attorneys submitted a letter -brief commenting

on the contents of the logs. We have examined the logs, and

28

it appears that the state's representation is correct: we see

no record of any conversations in which Baxter

participated. The revelation that the logs do not mention

any such conversations fatally undermines the Brady

argument made in Riley's briefs.

In their post-argument letter-brief commenting on the

logs, Riley's attorneys advance differ ent arguments to show

that an in camera inspection of the wiretap r ecordings is

required. A defendant seeking an in camera inspection to

determine whether files contain Brady material must at

least make a "plausible showing" that the inspection will

reveal material evidence. Pennsylvania v. Ritchie, 480 U.S.

39, 58 n.15 (1987) (quoting United States v. V alenzuela-

Bernal, 458 U.S. 858, 867 (1982)). Mer e speculation is not

enough. United States v. Navarro, 737 F.2d 625, 631 (7th

Cir. 1984). The arguments made by Riley's attorneys in

their post-argument submission do not satisfy this

standard.

Riley's attorneys first note that several log entries

"expressly refer to conversations about Tyrone Baxter."

12/16/99 Letter-brief at 3 (emphasis added). But it is

unlikely that statements "about" Baxter by third persons --

unlike statements made by Baxter himself -- could have

been used to impeach Baxter's testimony or could have

been admitted at trial on some other ground. For that

reason alone, it is unlikely that these statements are

material. See Wood v. Bartholomew, 516 U.S. 1, 5-6 (1995).

Moreover, even if the problem of admissibility is put aside,

it is pure speculation to suppose that the contents of the

statements are in any way exculpatory.

Riley's attorneys also suggest that conversations between

Baxter and his mother may have been intercepted and

recorded but that the person or persons who compiled the

logs may not have recognized Baxter's voice. This, however,

is nothing but the purest speculation. W e note that the

wiretap occurred while the police wer e seeking to arrest

Baxter; they therefore had a strong incentive to identify him

if he participated in any of the intercepted conversations.

We have considered all of Riley's Brady arguments and find

them to be without merit.

29

V.

Riley argues that he was denied the ef fective assistance

of counsel at the penalty phase of his trial.15 The District

Court held that many of Riley's arguments concerning the

alleged deficiencies of his attorney's per formance were

never presented to the Delaware Supr eme Court and were

thus procedurally barred, and the District Court rejected

Riley's remaining arguments regar ding this matter on the

merits. On appeal, Riley attacks both parts of the District

Court's holding.

A.

Riley contends that the District Court was r equired to

hold an evidentiary hearing on the question of pr ocedural

default for two reasons. First, he maintains that at least

some of the arguments that the District Court held were

procedurally barred might have been pr esented to the

Delaware Supreme Court during the oral ar gument of his

direct appeal even though those arguments were not

contained in his brief. Because the recor d does not include

a transcript of the oral argument, Riley maintains that the

District Court should have held an evidentiary hearing for

the purpose of reconstructing the recor d. See Appellant's

Br. at 38-39. We disagree.

On direct appeal, Riley was represented by the same

attorney who had represented him at trial. In his amended

habeas petition, Riley acknowledges that no inef fective

assistance argument was made in the dir ect appeal brief

that was ultimately submitted on his behalf and accepted

for filing by the Delaware Supreme Court.16 See App. 1198.

_________________________________________________________________

15. Riley's amended federal habeas petition raised claims regarding the

alleged ineffectiveness of trial counsel at the guilty phase, but the

District Court held that these claims were pr ocedurally barred. See Riley

VI, 1998 WL 172856, at **18-20. On appeal, Riley refers to these claims

in a footnote. See Appellant's Br. at 38 n.16. This footnote is inadequate

to raise the issue on appeal.

16. The first brief submitted by Riley's attor ney on direct appeal

contained a conclusory passage that purported to raise the issue of

ineffective assistance (without any factual elaboration) for the purpose

of

preserving the issue. See App. 1198. However, this brief was rejected by

the Delaware Supreme Court, and the brief that was ultimately

submitted and accepted contained no such passage. See App. 1198-99.

30

In addition, the opinion issued by the Delawar e Supreme

Court in the direct appeal makes no mention of ineffective

assistance of counsel. See Riley I. Under these

circumstances, the District Court was certainly not

required to conduct an evidentiary hearing to determine

whether the attorney who represented Riley at trial chose at

oral argument before the state supr eme court to make

arguments not mentioned in his brief and to condemn his

own performance in the trial court.

With little elaboration, Riley also contends that the

District Court should have held an evidentiary hearing so

that Riley could show that he had "cause" for not raising

the arguments in question in state court. See Appellant's

Br. at 39. However, Riley has not even identified any

"cause" that he would have attempted to show. We will not

reverse the decision of the District Court and order that

Court to conduct an evidentiary hearing so that Riley can

develop the factual predicate for a "cause" that Riley has

not even disclosed.

Perhaps the most frequently asserted"cause" for

procedural default is ineffective assistance of counsel, and

we will therefore comment briefly on the steps that Riley

should have taken if he wished to rely on this"cause." As

the District Court pointed out, in order for Riley to show

that ineffective assistance provided"cause" for failing to

raise the arguments in question in the state court

proceedings, Riley would have to show that the new

attorney who represented him in the state post-conviction

relief proceedings was ineffective. See Dist. Ct. Op. at 50 &

n.16, 56-57. This is so because Delaware per mits a claim

of ineffective assistance to be raised in a post-conviction

relief proceeding even if it was not raised on direct appeal.

See Riley VI, 1998 WL 172856, at **17-18 & n.16. 17

Riley has not argued, however, that the attorney who

represented him in the state post-conviction relief

proceedings provided ineffective assistance by failing to

_________________________________________________________________

17. Indeed, in Riley's case, ineffective assistance was vigorously argued

in the post-conviction relief proceedings, and the Delaware Supreme

Court addressed these arguments on the merits. See Riley V, 585 A.2d

at 726-29.

31

make the specific arguments that the District Court held

were procedurally barred.18 Moreover, because Riley never

raised a claim in state court that his post-conviction relief

attorney was ineffective, he runs afoul of the rule that "a

petitioner must demonstrate independent cause and

prejudice excusing the default of the inef fectiveness claim

before that claim can be assessed as cause in r elation to a

second, substantive claim." Hill v. Jones, 81 F.3d 1015,

1030 (11th Cir. 1996). See also Justus v. Murray, 897 F.2d

709, 713 (4th Cir. 1990).

B.

We will now discuss the ineffective assistance arguments

that were not procedurally defaulted. In order to show that

his constitutional right to the assistance of counsel was

violated at the penalty phase, Riley must satisfy the two-

pronged test of Strickland v. Washington, 466 U.S. 668, 687

(1984). First, he must demonstrate that his attor ney "made

errors so serious that counsel was not functioning as the

`counsel' guaranteed the defendant by the Sixth

Amendment." Id. at 687. "Judicial scrutiny of counsel's

performance must be highly defer ential. It is all too

tempting for a defendant to second-guess counsel's

assistance after . . . [an] adverse sentence, and it is all too

easy for a court, examining counsel's defense after it has

proved unsuccessful, to conclude that a particular act or

omission of counsel was unreasonable." Id. at 689. Second,

if counsel's representation is shown to fall outside "the wide

range of reasonable professional assistance," id., it must be

shown that "the deficient performance prejudiced the

defense," that is, that "there is a r easonable probability

that, but for counsel's unprofessional err ors, the result of

the proceeding would have been differ ent." Id. at 694.

_________________________________________________________________

18. Even if Riley had asserted a "cause" for the procedural default, he

would have to confront the rule that a habeas petitioner is not entitled

to an evidentiary hearing in federal court to establish a factual record

unless the petitioner can show "cause" for not making the necessary

factual record in the state proceedings. See Keeney v. Tamayo-Reyes,

504 U.S. 1, 11-12 (1992).

32

1. In his brief in our court, Riley presented a greatly

truncated version of arguments previously advanced

regarding trial counsel's failure to call certain family

members to testify at the penalty phase of the trial and trial

counsel's failure to locate or contact other family members

who might have testified. All of these family members, Riley

argues, could have provided evidence about his traumatic

experiences as a child and his "severely dysfunctional

family." Appellant's Br. at 41.

The Superior Court, the Delaware Supreme Court, and

the District Court all addressed these ar guments in some

detail and rejected them. They concluded that Riley's trial

attorney made reasonable efforts tofind certain family

members who could not be located, that he did not act

unreasonably in failing to call others as witnesses, and that

his failure to rely on what was ter med Riley's "social

history" represented a reasonable strategy. See Riley II,

1988 WL 47076 at *3-4, *7-9; Riley V, 585 A.2d at 726-28;

Riley VI, 1998 WL 172856, at **20-23.

In his brief in our court, Riley merely states without

elaboration that "trial counsel failed to call as witnesses

members of Mr. Riley's immediate family, several of whom

lived with a few hours of Dover, Delawar e" and that these

witnesses could have testified about his childhood and

family. Appellant's Br. at 41. He provides no response to

the detailed reasons given by the state courts and the

District Court for holding that trial counsel was not

ineffective in failing to call or locate family members for the

purpose of eliciting testimony about Riley's childhood and

family.

Nothing has been presented that convinces us that the

state courts and the District Court erred. W e agree with the

state courts and the District Court that Riley has not

shown that trial counsel was ineffective in failing to call

those family members who could be located, such as Riley's

mother. The District Court analyzed trial counsel's decision

not to put Riley's mother on the stand as follows:

The record is replete with cir cumstances that

support trial counsel's decision not to call Petitioner's

mother. First, Petitioner informed trial counsel that he

33

did not wish to expose his mother's problems at trial.

. . . Second, trial counsel testified that Petitioner's

mother refused to support Petitioner's alibi, and as a

result, he was concerned about the pr osecutor's cross-

examination of her during the penalty phase. . . .

Third, the record indicates that Petitioner's mother had

a severe drinking problem and was drinking heavily at

the time of the trial. . . . As a result, trial counsel

believed that the witnesses that he chose to call in

mitigation, instead, would make a better impr ession on

the jury. . . . Under these circumstances, the Court

finds trial counsel's decision not to call Petitioner's

mother to be reasonable and within the bounds of his

strategic discretion.

Riley VI, 1998 WL 172856, at *2. We agree.

We also agree that Riley has not demonstrated that his

trial attorney was ineffective in failing to locate certain

other family members. See Riley II, **3-5; Riley V, 585 A.2d

at 727-28; Riley VI, 1998 WL 172856, at *21. Finally, we

agree that a strategy of not introducing evidence regarding

Riley's background and family fell within "the wide range of

reasonable professional assistance." Strickland, 466 U.S. at

689. The Superior Court wrote as follows:

The adverse inferences to be drawn from the fact that

defendant's parents were both alcoholics, his sister an

unwed mother of three, his brother an incarcerated

criminal and his home life a series of jails and

temporary living quarters would no doubt have been

magnified in the semi-rural county where this case was

tried . . . . Likewise, it is certainly within the range of

strategic choices to forego mitigating evidence, which

may be seen as "excuse making" and rely upon a plea

for mercy . . . . In Riley's case, evidence of fered as to

mitigating circumstances included: that the actual

killer was Tyrone Baxter, the co-defendant; that Baxter

received a less severe penalty; and that Riley's

background indicated that he was a diligent worker,

possessing a non-violent and good character.

In this case, trial counsel gave a strong ar gument that

Riley's life should be spared in light of the fact that

34

Tyrone Baxter, defendant's accomplice and principal

accuser, would be spared the death penalty as the

result of a plea bargain. Moreover , Walter Ross testified

without contradiction at the [post-conviction r elief]

hearing that the defendant did not want his family

background discussed at the penalty phase. Given

defendant's wishes, the lack of positive evidence in

mitigation, counsel's focused argument for leniency in

light of Baxter's plea bargain, and the potentially

negative impact the purportedly positive evidence

would have wrought before the jury, defendant has

failed to show that counsel's decision to limit the

testimony at the penalty phase was constitutionally

deficient.

Riley II, 1988 WL 47076, at *11-12. This analysis was

accepted by the Delaware Supreme Court and the District

Court. We cannot disagree.

2. Riley contends that his trial attorney wa s ineffective

because he did not present testimony by a mental health

expert. Riley relies on the affidavits of two experts, who

examined him in connection with the post-conviction relief

proceeding. One of the experts characterized Riley as a

person with "borderline defective" intelligence whose

capacity "for objectively analyzing events, cir cumstances

and relationships [is] narrowed by stress and complexity."

Appellant's Br. at 42. We agree with Riley that this

explanation might have been helpful at the penalty phase.

The question remains, however, whether trial counsel was

ineffective in failing to obtain such evidence at the time.

In the post-conviction relief proceeding in Superior Court,

trial counsel testified that he did not seek to have Riley

examined by a mental health expert because he had no

reason to think, in light of his conversations with Riley,

that such an examination would have revealed anything

useful. See App. 592-96. He testified that Riley appeared to

understand what they discussed and that Riley pr epared

and filed some motions on his own behalf. See App. 592-

93. Trial counsel stated that Riley never mentioned any

head injury or any psychological problems. See App. 590.

Relying on this testimony, the Superior Court found that

trial counsel "had no inkling that evaluation of Mr. Riley's

35

mental or emotional state might be helpful in mitigation."

Riley II, 1988 WL 47076, at *7.

Before us, Riley has not argued that counsel in a capital

case must always seek a mental examination of the

defendant, and cases from other circuits r eject that

proposition. Instead, they hold that a case-by-case

determination must be made and that counsel is not

ineffective if he or she has no reason to think that a mental

examination would be useful. See Thomas v. Gilmore, 144

F.3d 513, 515-16 (7th Cir. 1998); United States v. Miller,

907 F.2d 994, 998-99 (10th Cir. 1990); United States ex rel.

Rivera v. Franzen, 794 F.2d 314, 317 (7th Cir. 1986).

Under this standard, we see no ground for reversing the

decision of the District Court here. Riley has simply not

identified any fact that should have alerted his trial

attorney that he had mental problems that might have

provided the basis for mitigation. The only fact even

mentioned in Riley's briefs is the "implausible" nature of

Riley's alibi, see Reply Br. at 21, but this is insufficient to

alert counsel to the possibility of mental pr oblems that

might be relevant to mitigation. For the most part, Riley

merely notes what the subsequent examinations by mental

health experts revealed. However, "[a] fair assessment of

attorney performance requir es that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel's challenged conduct, and to

evaluate the conduct from counsel's perspective at the

time." Strickland, 466 U.S. at 689.

3. Finally, Riley cites trial counsel's inexperien ce and the

fact that he spent only 14 hours preparing for the penalty

phase of the trial. These facts are not comforting, but they

do not in themselves establish that counsel was inef fective.

We have taken them into account in evaluating the other

deficiencies properly asserted in this appeal. We cannot

say, however, that Riley's constitutional right to the

effective assistance of counsel was denied.

VI.

Relying on Ake v. Oklahoma, 470 U.S. 68, 76-77 (1985),

Riley argues that his right to due process was violated

36

because the trial judge refused to appoint co-counsel or an

investigator to assist his attorney. Riley again notes the

inexperience of his attorney, and he asserts that co-counsel

had been appointed in Kent County in prior capital cases.

Although Riley claims that the lack of co-counsel and an

investigator caused him "extreme prejudice," his brief

provides no details.

A. We turn first to Riley's ar gument that he was

constitutionally entitled to the appointment of co-counsel.

In some jurisdictions, there is a statutory right to the

appointment of two defense attorneys in capital cases. See,

e.g., 18 U.S.C. S 3005. However, we are aware of no

authority holding that the federal Constitution confers such

a right, and we see no basis for such a holding. The

Constitution specifies the quality of r epresentation that all

criminal defendants, including capital defendants, must

receive, namely, "reasonably ef fective assistance."

Strickland, 466 U.S. at 687. The Constitution does not

specify the number of lawyers who must be appointed. If a

single attorney provides reasonably effective assistance, the

Constitution is satisfied, and if a whole team of lawyers

fails to provide such assistance, the Constitution is

violated. Thus, there is no constitutional right per se to the

appointment of co-counsel in a capital case. Bell v. Watkins,

692 F.2d 999, 1009 (5th Cir. 1982); Jimenez v. State, 703

So. 2d 437, 439 (Fla. 1997) (per curiam); State v. Phelps,

478 S.E.2d 563, 574-75 (W.Va. 1996) (per curiam); State v.

Rodriguez, 921 P.2d 643, 652 (Ariz. 1996); Spranger v.

State, 650 N.E.2d 1117, 1122-23 (Ind. 1995); Uptergrove v.

State, 881 S.W.2d 529, 531 (Tex. Ct. App. 1994). Cf. Hatch

v. Oklahoma, 58 F.3d 1447, 1456 (10th Cir . 1995).

Riley's brief does not identify any unusual featur es of this

case that demanded the appointment of a second attor ney.

While he does cite the inexperience of his trial attorney,

without a showing that this attorney did not provide the

level of representation requir ed by the Constitution, we

cannot hold that the failure to appoint co-counsel to assist

him violated the Constitution.

B. We must also reject Riley's ar gument that the failure

to appoint a private investigator violated the Constitution.

In Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985),

37

the Supreme Court made it clear that ther e is no

constitutional right to the appointment of an investigator

where the defendant offers "little mor e than undeveloped

assertions that the requested assistance would be

beneficial." See also Gray v. Thompson, 58 F.3d 59, 66-67

(4th Cir. 1995), vacated on other gr ounds sub nom. Gray v.

Netherland, 518 U.S. 152 (1996). Riley has of fered nothing

more here.

VII.

Riley argues that his Eighth and Fourteenth Amendment

rights were violated because the prosecutor and the trial

judge allegedly made remarks to the jury during the

sentencing phase of the trial that minimized the jury's

sense of responsibility and led it to believe that its decision

was not final. We do not agree.

Riley's argument is based on Caldwell v. Mississippi,

supra. In that case, the defense attorney, in closing

argument to the jury at the sentencing phase, asked the

jury to "confront both the gravity and r esponsibility of

calling for another's death." 472 U.S. at 324. In response,

the prosecutor strongly disagreed with the defense

attorney's comments and stated:

Now, they would have you believe that you're going to

kill this man and they know -- they know that your

decision is not the final decision. My God, how unfair

can you be? Your job is reviewable. They know it. . . .

For they know, as I know, and as [the judge] has told

you, that the decision you render is automatically

reviewable by the Supreme Court.

Id. at 325-26.

By a vote of five to three, the United States Supreme

Court reversed the decision of the state supr eme court

upholding the defendant's death sentence. In an opinion by

Justice Marshall, the United States Supreme Court held

that the prosecutor's comments had impr operly led the

jurors to believe that the responsibility for determining the

appropriateness of a death sentence lay elsewhere. In a

portion of his opinion that was joined by only thr ee other

38

justices, Justice Marshall responded to the state's

argument that the prosecutor's comments were permissible

because it is proper to give a capital sentencing jury

accurate information about post-sentencing pr ocedures.

472 U.S. at 335-36. Justice Marshall rejected this

argument on two grounds, viz., that the prosecutor's

remarks were neither "accurate" nor"relevant to a valid

state penological interest." Id. at 336. He explained:

[I]t was misleading as to the nature of the appellate

court's review and because it depicted the jury's role in

a way fundamentally at odds with the role that a

capital sentencer must perform. Similarly, the

prosecutor's argument is not linked to any arguably

valid sentencing consideration. That appellate r eview is

available to a capital defendant sentenced to death is

no valid basis for a jury to return such a sentence if

otherwise it might not. It is simply a factor that in itself

is wholly irrelevant to the determination of the

appropriate sentence.

Id.

Justice O'Connor, who cast the deciding fifth vote for

reversal, did not join this part of Justice Marshall's opinion.

Justice O'Connor refused to endorse the principle that "the

giving of nonmisleading and accurate information regarding

the jury's role in the sentencing scheme is irr elevant to the

sentencing decision." 472 U.S. at 341 (opinion of O'Connor,

J.)(emphasis added). However, she agr eed that the

prosecutor's statements were improper because they

"creat[ed] the mistaken impression that automatic appellate

review of the jury's sentence would provide the

authoritative determination of whether death was

appropriate," whereas in fact the state supreme court

exercised only a narrow scope of r eview. Id.

In subsequent cases, the Court has clarified the holding

in Caldwell. In Romano v. Oklahoma, 512 U.S. 1, 9 (1994),

the Court wrote as follows:

As Justice O'CONNOR supplied the fifth vote in

Caldwell, and concurred on grounds narrower than

those put forth by the plurality, her position is

controlling. See Marks v. United States, 430 U.S. 188,

39

193 (1977) . . . . Accordingly, we have since r ead

Caldwell as "relevant only to certain types of comment

--those that mislead the jury as to its role in the

sentencing process in a way that allows the jury to feel

less responsible than it should for the sentencing

decision." Durden v. Wainwright , 477 U.S. 168, 184,

n.15 (1986). Thus, "[t]o establish a Caldwell violation,

a defendant necessarily must show that the r emarks to

the jury improperly described the role assigned to the

jury by local law." Dugger v. Adams, 489 U.S. 401, 407

(1989), see also Sawyer v. Smith, 497 U.S. 227, 233

(1990).

The Romano Court rejected the Caldwell argument

advanced in that case because "the jury was not

affirmatively misled regarding its role in the sentencing

process." Id. at 10. Thus, in or der to establish a Caldwell

violation, a defendant must show that the pr osecutor's

comments inaccurately or misleadingly minimized the

finality or importance of the jury's verdict at the penalty

phase.

Riley's argument is based on a statement made by the

prosecutor near the very beginning of his summation at the

sentencing phase of the trial. The prosecutor stated:

As the Judge has explained to you we have a specific

statute with regard to what occurr ed in a penalty

hearing on a capital case.

Let me say at the outset that what you do today is

automatically reviewed by our Supreme Court and that

is why there is an automatic review on the death

penalty. That is why, if you return a decision of death,

that is why you will receive and have tofill out a two-

page interrogatory that the Court will give you. This is

an interrogatory that specifically sets out the questions

that the State request and whether or not you believe

it beyond a reasonable doubt and if you want in your

determination, if you believe the sentence should be

death then each and every one of you has to sign this.

This goes to the Supreme Court. That is why it is

concise and we believe clear and it should be looked

carefully on and answered appropriately.

40

App. 393 (emphasis added). Riley points to the highlighted

words quoted above and adds that "the trial court

enhanced the jury's sense that the responsibility for Mr.

Riley's death sentence lay elsewhere by r epeatedly referring

to the jury's sentencing of Mr. Riley as a

`recommendation.' " Appellant's Br . at 45.

In its decision on direct appeal, the Delawar e Supreme

Court responded to this argument as follows:

[T]he prosecutor's remarks in no way suggested that

responsibility for ultimately determining whether

defendant faced life imprisonment or death r ested

elsewhere. The prosecutor's passing comment to the

jury that its decision would be "automatically r eviewed"

was fairly made in the context of the prosecutor's

preceding reference to the "specific statute [controlling]

a penalty hearing on a capital case." 11 Del.C.S 4209.

Since subsection (g) of S 4209 mandates the"Automatic

Review of Death Penalty by Delaware Supr eme Court",

the prosecutor in the instant case was simply quoting

the statute. In no sense may it reasonably be said that

the prosecutor was either misstating the law,

misleading the jury as to its role, or minimizing its

sentencing responsibility.

496 A.2d at 1025 (alteration in original). W e agree with this

analysis.

The prosecutor's remarks in Caldwell were "quite

focused, unambiguous, and strong." 472 U.S. at 340. The

clear message was that, contrary to the suggestion of

defense counsel that the jury should "confr ont both the

gravity and responsibility of calling for another's death," id.

at 324, the jury need not shoulder that responsibility

because "the authoritative determination of whether death

was appropriate" would be made by the state supreme

court. Id. at 343 (Opinion of O'Connor , J.). It was in this

sense that the remarks " `impr operly described the role

assigned to the jury by local law' "19 and thus " `allowed the

_________________________________________________________________

19. Romano v. Oklahoma, 512 U.S. at 9 (quoting Dugger v. Adams, 489

U.S. at 407).

41

jury to feel less responsible than it should for the

sentencing decision.' "20

The prosecutor's remarks in this case wer e very different.

Here, the prosecutor made accurate, unemotional, passing

remarks in the context of describing the state statute and

explaining why the jury would have to "fill out a two-page

interrogatory" if it returned a capital sentence. These

remarks did not convey the message that the jury should

not confront the gravity of returning a death verdict, and

thus the mere mention of the fact that ther e would be an

automatic appeal to the state supreme court did not

mislead the jury as to its role in the sentencing process. In

this connection, it is noteworthy that after the closing

arguments, the trial judge instructed the jury on its role

using language that left no doubt about its r esponsibility.

The trial judge stated: "Where the jury submits such a

finding and recommendation, the Court shall sentence the

defendant to death." Riley V, 585 A.2d at 731 (emphasis

added). A "recommendation of death, supported by the

evidence, shall be binding on the Court." Id. (emphasis

added). "Your unanimous recommendation for the

imposition of the death penalty, if supported by the

evidence, is binding on the Court." Id. at 734 (emphasis

added). In light of the substantial factual dif ferences

between Caldwell and this case, and in light of the

Supreme Court's subsequent explanation of the meaning of

Caldwell, we reject Riley's Caldwell claim.

Our dissenting colleague would apparently hold that a

Caldwell violation occurred simply because the prosecutor

accurately stated that there would be an automatic appeal

to the state supreme court without attempting to explain

the scope of review that the state supr eme court would

exercise. We do not agree with this reading of Caldwell.

Neither Justice O'Connor's controlling opinion in Caldwell

nor the Court's subsequent explanation in Romano took the

position that an unadorned reference to automatic judicial

review of a capital verdict is enough to violate the

Constitution. Rather, "[t]o establish a Caldwell violation, a

_________________________________________________________________

20. Romano v. Oklahoma, 512 U.S. at 9 (quoting Durden v. Wainwright,

477 U.S. at 184, n.15).

42

defendant necessarily must show that the remarks to the

jury improperly described the role assigned to the jury by

local law." Romano, 512 U.S. at 9 (quoting Dugger v.

Adams, 489 U.S. at 407).

VIII.

Riley contends that the trial judge contravened the

holding of Witherspoon v. Illinois, 391 U.S. 510 (1968),

when the judge dismissed two jurors for cause after they

responded to voir dire questions concer ning capital

punishment. In Witherspoon, the Supr eme Court held that

members of a jury panel may not be excused for cause

"simply because they voiced general objections to the death

penalty or expressed conscientious or r eligious scruples

against its infliction." Id. at 522. Some lower courts,

however, interpreted footnotes in W itherspoon to mean that

potential jurors could be dismissed only if they stated

unambiguously that they would automatically vote against

the death penalty.21

The Supreme Court clarified the meaning of Witherspoon

in Wainwright v. Witt, 469 U.S. 412 (1985). The Court held

that "the proper standard for deter mining when a

prospective juror may be excluded for cause because of his

or her views on capital punishment . . . is whether the

juror's views would `prevent or substantially impair the

performance of his duties as a jur or in accordance with his

instructions and his oath.' " Id. at 424 (quoting

Witherspoon, 391 U.S. at 45). The Court noted:

[T]his standard . . . does not require that a juror's bias

be proved with `unmistakable clarity' . . . because

determinations of juror bias cannot be r educed to

question-and-answer sessions which obtain results in

the manner of a catechism. What common sense

should have realized experience has proved: many

veniremen simply cannot be asked enough questions to

reach the point where their bias has been made

"unmistakably clear"; these veniremen may not know

how they will react when faced with imposing the death

_________________________________________________________________

21. See Wainwright v. Witt, 469 U.S. 412, 419 (1985).

43

sentence, or may be unable to articulate, or may wish

to hide their true feelings. Despite this lack of clarity in

the printed record, however, ther e will be situations

where the trial judge is left with the definite impression

that a prospective juror would be unable to faithfully

and impartially apply the law.

Id. at 424-26 (footnote omitted). The Court went on to hold

that a trial judge's finding under this standar d is entitled to

the presumption of correctness in 28 U.S.C. S 2254(d).22

469 U.S. at 428. Applying these standards, the Court

sustained the dismissal of a juror who said, when asked

whether her beliefs would interfere with her sitting as a

juror in a capital case, "I am afraid it would" and "I think

it would." Id. at 416.

The two potential jurors at issue in the pr esent case are

Mae Floyd and Gerald Moot. During Floyd's voir dir e, the

following exchange occurred:

The Court: . . . Do you have any conscientious scruples

against finding a verdict of guilty wher e the

punishment might be death or against imposing the

death penalty if the evidence should so warrant?

Ms. Floyd: I would say yes, I think so.

The Court: You do have conscientious scruples?

Ms. Floyd: Yes.

The Court: Regardless of any personal beliefs or

feelings you have, if the evidence justified it, would you

be able to find a person guilty of murder in the first

degree and impose the death penalty?

Ms. Floyd: That is a hard one to tell you the truth.

_________________________________________________________________

22. See also Deputy v. Taylor, 19 F .3d 1485, 1498 (3d Cir. 1994)

(citations omitted) (internal quotation marks omitted)("a trial court may

excuse a juror for cause where such jur or's views would prevent or

substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath. . . . [and] that a state

trial

judge's finding that a prospective jur or is impermissibly biased against

the death penalty is entitled to a presumption of correctness under S28

U.S.C.A. 2254(d).").

44

The Court: I will repeat the question.

Ms. Floyd: I heard it. All right. Repeat the question.

The Court: I will repeat it. Regardless of your

personal belief or feelings, if the evidence justified it,

would you be able to find a person guilty of mur der in

the first degree and would you be able to impose the

death penalty?

Ms. Floyd: That is a two-part question, right?

The Court: Yes, it is.

Ms. Floyd: The latter part--

The Court: First of all, would you be able tofind a

person guilty of murder in the first degr ee?

Ms Floyd: I may, yes.

The Court: And the second part is would you be able

to impose the death penalty?

Ms. Floyd: I tell you the truth I don't think so.

The Court: I will excuse you. Thank you very much.

App. 285-86 (emphasis added).

As both the Delaware Supreme Court and the District

Court observed, Floyd's responses were very similar to

those of the potential juror in question in Wainwright v.

Witt, supra. See Riley I, 496 A.2d at 1005-06 Riley VI, 1998

WL 172856, at *11. We agree with their analysis and hold

that Riley has not overcome the presumption of correctness

that attaches to the implicit finding of the trial judge.

The dismissal of the other potential juror in question,

Gerald Mood, took place after the following colloquy:

The Court: . . . . Do you have any conscientious

scruples against finding a verdict of guilty when the

punishment might be death or against imposing the

death penalty if the evidence should so warrant?

Mr. Mood: I don't know. I have mixed emotions about

that.

The Court: Regardless of any personal belief or feelings

that you have, if the evidence justified it, would you be

45

able to find a person guilty of murder in thefirst

degree and would you be able to impose the death

penalty?

Mr. Mood: Maybe I could. I don't really know.

The Court: I am going to excuse you sir . . . .

App. 276.

The District Judge aptly analyzed the dismissal of Mood,

and we adopt his analysis:23

Unlike venireperson Floyd, venireperson Mood's

responses were much more succinct. Mood twice

responded to the trial court's capital punishment

questions with the phrase, "I don't know." . .. .

Particularly in situations such as this, wher e an

individual's record response is so brief that its printed

reproduction reveals little, the Court should defer to

those credibility factors that would only have been

known to the trial court, such as the juror's demeanor,

tone of voice and attitude. See Witt, 469 U.S. at 434

(emphasizing importance of trial court's assessment of

venireperson's demeanor, particularly where printed

record may not be "crystal clear"). Accordingly, the

Court finds adequate record support for the trial

court's decision to excuse venireperson Mood.

Riley VI, 1998 WL 172856, at *12.

IX.

Relying on Morgan v. Illinois, 504 U.S. 719 (1992), Riley

argues that the trial judge erred in failing sua sponte to ask

prospective jurors during voir dir e whether they would

automatically impose the death penalty if they found him

guilty. The District Court rejected this claim on the ground

_________________________________________________________________

23. In addition, as the District Court noted, some of the answers given

by Floyd and Mood to questions not concerning capital punishment may

have influenced the trial judge's decision to dismiss them. Floyd revealed

that she knew Tyrone Baxter and was a casual friend of Baxter's mother.

Mood said that he was a good friend of one of the police officers involved

in the case and had served with him in the fir e department. See Riley VI,

1998 WL 172856, at *12.

46

that Morgan requires that such questions be asked only if

the defense so requests. We agree.

In Morgan, the Supreme Court framed the relevant issue

in these terms: "whether on voir dir e the court must, on

defendant's request, inquire into the prospective jurors'

views on capital punishment." 504 U.S. at 726 (emphasis

added). The Court stated its holding as follows:

Petitioner was entitled, upon his request , to inquiry

discerning those jurors who, even prior to the State's

case in chief, had predetermined the ter minating issue

of his trial, that being whether to impose the death

penalty.

Id. at 736 (emphasis added). The dissent described the

Court's holding in similar language: "The Court today holds

that . . . the Constitution requires that voir dire directed to

[reverse-Witherspoon] `bias' be provided upon the

defendant's request." Id. at 739 (Scalia, J., dissenting)

(emphasis added).

We cannot regard the Court's choice of words as

accidental, and we think that the holding of Mor gan is

clear: a reverse-Witherspoon inquiry must be made "on

defendant's request." See United States v. Tipton, 90 F.3d

861, 879 (4th Cir. 1996).

Riley makes two arguments in response. First, he notes

that the state supreme court rejected his argument on the

merits, and he contends that "the State should not now be

heard to raise alleged procedural bars to federal court

resolution of the claim on the merits." Appellant's Br. at 52.

Our holding, however, has nothing to do with a procedural

bar, i.e., a state rule of procedur e that bars a federal

habeas court from reaching the merits of a federal claim.

Rather, our holding is based on the fact that the

constitutional right recognized in Mor gan applies only if the

defense makes a request for a reverse-Witherspoon inquiry.

Second, Riley argues that his trial attor ney was

ineffective in failing to request r everse-Witherspoon

questioning. However, this argument was not made in the

state courts, and it is thus procedurally barr ed.

47

X.

Under 11 Del. C. S 4209(g)(2), the Delawar e Supreme

Court is required to undertake a pr oportionality review in

death penalty cases. The statute mandates that the Court

inquire into whether "the death penalty was either

arbitrarily or capriciously imposed or recommended, or

disproportionate to the penalty recommended or imposed in

similar cases." 11 Del. C. S 4209(g)(2)(a). In affirming Riley's

death sentence, the Delaware Supreme Court examined 21

cases, including five in which the death penalty was

imposed. It found that Riley's case was comparable to the

five death penalty cases (Whalen, Rush, Deputy, Flamer

and Bailey), because they all involved

an unprovoked, cold-blooded murder of a helpless

person (or persons) committed upon victims lacking the

ability to defend themselves and solely for the purposes

of pecuniary gain (except in Whalen's case). In none of

these killings is there any evidence of pr ovocation or of

homicide committed out of passion or rage. In each

case, except Whalen, the murder occurred in the court

of a robbery that was deliberately planned and carried

out with the use of deadly weapons. In each case, the

perpetrators of these crimes offered no extenuating

circumstance for taking the life of another .

Riley I, 496 A.2d at 1027.

Riley challenges this finding on two grounds. First, he

points to the fact that two of the death sentences r elied on

-- Rush and Whalen -- had been vacated. Second, he

argues that the remaining cases -- Deputy, Bailey, and

Flamer -- do not furnish appropriate comparisons because

each involved the killing of more than one person. He

maintains that these errors violated the Eighth and

Fourteenth Amendments.

It is clear that proportionality review is not required by

the federal Constitution. See Pulley v. Harris , 465 U.S. 37,

50-51 (1984). Riley justifies advancing his pr oportionality

argument in federal court on two grounds. 24 First, he

_________________________________________________________________

24. Ordinarily, federal habeas relief is not available for an error of

state

law: the habeas statute provides that a writ disturbing a state court

judgment may issue only if a prisoner is in custody"in violation of the

Constitution or laws or treaties of the United States." 28 U.S.C.

S 2241(c)(3). See Pulley v. Harris, 465 U.S. 37, 41 (1984).

48

argues that the allegedly improper r eview resulted in a

punishment that was "inherently dispr oportionate and,

therefore, arbitrary and capricious" in violation of the

Eighth Amendment. Appellant's Br. at 56. Second, he

argues that Delaware's failure to abide by its own statutory

scheme for proportionality review violated due process. See

Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993)

("the failure of a state to abide by its own statutory

commands may implicate a liberty interest pr otected by the

Fourteenth Amendment against arbitrary deprivation by a

state").

Riley bases his first argument on the principle that "[i]f a

State has determined that death should be an available

penalty for certain crimes, then it must administer the

penalty in a way that can rationally distinguish between

those individuals for whom death is an appropriate

sanction and those for whom it is not." Spaziano v. Florida,

468 U.S. 447, 460 (1984). Riley claims that the

proportionality review conducted by the Delaware Supreme

Court in his case failed to protect him fr om arbitrary

imposition of the death penalty, and in fact upheld a

disproportionate punishment. This argument rests on the

premise that applying the death penalty in Riley's case

would be so disproportionate as to constitute cruel and

unusual punishment under the Eighth Amendment.

Therefore, Riley's argument r eally attacks the imposition of

the penalty itself, rather than the state's method of

reviewing proportionality.

Riley's argument is not tenable. The Supr eme Court has

"occasionally struck down punishments as inher ently

disproportionate, and therefore cruel and unusual, when

imposed for a particular crime or category of crime." Pulley,

465 U.S. at 43. However, in this case, Riley's crime --

killing a defenseless person without provocation in the

course of an armed robbery -- is not such that application

of the death penalty in these circumstances would "shock

the conscience." See Lindsey v. Smith, 820 F.2d 1137, 1154

(11th Cir. 1987); Spinkellink v. W ainwright, 578 F.2d 582,

606 n.28 (5th Cir. 1976). Riley has thus failed to show an

Eighth Amendment violation.

49

Riley's second argument is based on the principle that

when a state creates a right, the Due Pr ocess clause of the

Fourteenth Amendment entitles a defendant to pr ocedures

to ensure that the right is not arbitrarily denied. He argues

that the Delaware Supreme Court, by failing to conduct an

adequate proportionality review as r equired by state

statute, denied him due process.

As a threshold matter, it is unclear whether, under Third

Circuit law, a state proportionality-r eview statute creates

any cognizable liberty interest for due pr ocess purposes.

See Frey v. Fulcomer, 132 F.3d 916, 925 n.7 (3d Cir. 1997)

(noting that Supreme Court precedent on this issue is in

flux). We need not address this question, however, because

even if Riley has such a liberty interest, he has not shown

any denial of due process. In evaluating a claim that a state

court erred in conducting its proportionality review, a

federal court may only inquire into whether the state court

"undertook its proportionality review in good faith and

found that [the defendant's] sentence was pr oportional to

the sentences imposed in cases similar to his." Walton v.

Arizona, 497 U.S. 639, 656 (1990). Because ther e is no

federal constitutional right to proportionality review, if the

federal court finds that the review was undertaken in good

faith, it cannot "look behind" the state court's conclusion of

proportionality to consider whether the state court

misapplied state proportionality law. See id.; Bannister v.

Delo, 100 F.3d 610, 627 (8th Cir. 1996). In this case, the

Delaware Supreme Court compared Riley's case with a

substantial number of other death-eligible cases, and, even

disregarding the two vacated death sentences, it found

common characteristics between Riley's case and thr ee

other cases in which the sentence was not vacated.

Although Riley argues that these cases ar e not entirely

analogous, because each contained an additional

aggravating factor (more than one victim), ther e is no

indication that the Delaware court acted in bad faith in

conducting its review. We are thus without power to order

habeas relief.

XI

We now turn to Riley's contentions concerning jury

instructions given by the trial judge at the sentencing

phase.

50

Volume 2 of 2

A.

Riley argues that the jury instructions at the penalty

phase impermissibly restricted the jury's consideration of

mitigating circumstances. He takes issue with the following

instruction, issued at the start of the penalty hearing:

A sentence of death shall not be imposed unless the jury

finds:

(1) Beyond a reasonable doubt at least one statutory

aggravating circumstance; and

(2) Unanimously recommends, after weighing all

relevant evidence in aggravation or mitigation

which bears upon the particular circumstances or

details of the commission of the offense and the

character and propensities of the offender, that a

sentence of death shall be imposed. Where the

jury submits such a finding and recommendation,

the Court shall sentence the defendant to death. A

finding by the jury of a statutory aggravating

circumstance, and a consequent recommendation of

death, supported by the evidence, shall be binding

on the Court.

App. 392 (emphasis added). Riley contends that, given the

placement of the word "consequent," "a reasonable jury

could understand the underscored sentence to mean that

the effect of a finding that a statutory aggravating

circumstance existed, is that the death penalty must be

imposed." Appellant's Br. 59. Because the trial judge had

previously informed the jury that the statutory aggravating

circumstance -- commission of the mur der during a

robbery -- had already been proven beyond a reasonable

doubt in the guilt phase, Riley argues that a reasonable

jury could have read the instruction to mean that it need

not consider mitigation evidence.

When reviewing a jury instruction that is claimed to

impermissibly restrict a jury's consideration of relevant

evidence, a court must ask "whether there is a reasonable

likelihood that the jury has applied the challenged

instruction in a way that prevents the consideration of

constitutionally relevant evidence." Boyde v. California, 494

52

U.S. 370, 380 (1990). If there is "only a possibility" of such

inhibition, however, the challenge must fail. Id. Moreover,

the challenged instructions "must be evaluated not in

isolation but in the context of the entire char ge." Jones v.

United States, 527 U.S. 373, 391 (1999).

When the jury charge is read as a whole, there is no

reasonable likelihood that a jury could have understood it

to preclude consideration of mitigating cir cumstances. At

the close of the penalty hearing, the court again instructed

the jury in terms that cleared up any ambiguity that might

have been present in its earlier instruction:

In conclusion, a sentence of death shall not be imposed

unless you, the jury, find:

(1) Beyond a reasonable doubt at least one statutory

aggravating circumstance has been established;

and

(2) Unanimously recommend that a sentence of death

be imposed after weighing all relevant evidence in

aggravation and mitigation which bear upon the

particular circumstances and details of the

commission of the offense and the character and

propensities of the offender.

Should you fail to agree unanimously to either of these

two matters, the Court shall sentence the defendant to

life imprisonment without benefit of probation or

parole.

App. 438-40 (emphasis added).

This instruction made it clear that a jury was r equired

both to find at least one statutory aggravator and to weigh

aggravating factors against mitigating factors in or der to

support a death sentence. This belies Riley's ar gument that

the jury was misled into believing that its job was done

once the felony murder aggravator was found.

B.

Riley next takes issue with the trial court's failur e at the

penalty phase to instruct the jury that it was r equired to

conclude unanimously that aggravating circumstances

53

outweigh mitigating circumstances befor e imposing death,

as required by Delaware law. See Whalen v. State, 492 A.2d

552, 560 (Del. 1985) (setting forth "outweighing" standard).

Rather, the court simply instructed the jury that it had to

"[u]nanimously recommend that a sentence of death be

imposed after weighing all relevant evidence in aggravation

and mitigation." App. 438; see also App. 392, 437.

This argument provides no grounds for habeas relief. The

federal Constitution does not require"specific standards for

balancing aggravating against mitigating cir cumstances."

Zant v. Stephens, 462 U.S. 862, 876 n.13 (1983). As long as

a jury is permitted to consider all relevant mitigating

circumstances in making its death recommendation, there

is no federal constitutional problem. In addition, Riley has

not suggested how a jury's decision would be any dif ferent

under the language the court used in this case. Because

the jury was instructed not to make a sentencing

recommendation until after it had "weigh[ed] all relevant

evidence in aggravation and mitigation," the necessary

inference was that the death penalty should be imposed

only if aggravating factors outweighed mitigating factors

(otherwise, the entire "weighing" pr ocess would be

meaningless).

C.

Finally, Riley argues that the penalty phase instructions

improperly suggested that the jury had to be unanimous in

imposing a life sentence, in violation of Whalen v. State,

492 A.2d 552, 562 (Del. 1985). He points to the instruction

that "[i]f you are not unanimous in your recommendation to

impose the death penalty, or you cannot agr ee unanimously

as to your recommendation, then the Court is bound to

impose a sentence of life." App. 438 (emphasis added). The

word "recommendation" in the underlined phrase, he

suggests, could be read to refer to a life sentence

recommendation as well as to a recommendation of death.

As a threshold issue, the government ar gues that Riley

failed to raise this issue before the District Court because

he based his argument there "solely on the interpretation of

the interrogatories posed to the jury" rather than on the

54

jury instruction he points to here. Appellee's Br. at 75.

However, Riley, although pointing specifically to the

interrogatories to support his point, nevertheless raised the

general argument in his amended petition that"the

instructions were likely to confuse the jury about whether

the verdict must be unanimous." App. 1191. This is

sufficient to preserve his argument before this Court.

On the merits, however, Riley's claim must fail. First,

when the jury charge is viewed as a whole, it reveals several

instances in which the word "unanimous" was explicitly

paired solely with the death recommendation. In light of

this pattern, it appears unlikely that the jury would have

viewed the isolated passage that Riley relies on as

extending the unanimity requirement to a r ecommendation

of life imprisonment. Second, the Delaware Supr eme Court,

in reviewing this allegation, stated that it was "satisfied that

the jury understood that, in the event of its failur e to

unanimously agree upon imposition of a death penalty, an

imposition of life imprisonment would result." Riley V, 585

A.2d at 725. Because the instruction made clear that the

default rule in case of a lack of unanimity was life

imprisonment, it is hard to see how the jury's deliberations

would have been affected even had it adopted Riley's

interpretation of the instruction. Finally, the challenged

instruction was identical to one approved by the Delaware

Supreme Court in Flamer v. State, 490 A.2d 104 (Del.

1984), aff 'd sub nom. Flamer v. Delaware, 68 F.3d 710 (3d

Cir. 1995) and Flamer v. Delaware , 68 F.2d 736 (3d Cir.

1995) (en banc). The Delaware Supreme Court explicitly

pointed to the similarities with Flamer, and distinguished

the instructions from those in Whalen, in upholding the

death sentence on direct appeal. See Riley , 585 A.2d at

722-25. For these reasons, we reject Riley's claim.

XII.

Riley was convicted of intentional murder and felony

murder, with the underlying felony beingfirst-degree

robbery. The statutory aggravating circumstance relied on

for the death sentence was that the murder was committed

while Riley was engaged in the commission of first degree

robbery. See 11 Del. C. S 4209(e)(1)(j) (establishing felony

55

murder aggravator). Riley argues that it is unconstitutional

to double-count robbery as both an element of the crime

(felony murder) that made Riley death-eligible and as a

statutory aggravating circumstance.

This Court rejected precisely the same claim in Deputy v.

Taylor, 19 F.3d 1485,1502 (3d Cir . 1994), holding that

"within the context of Delaware's death penalty statute, the

provision requiring the double-counting of the felony at the

guilty phase and sentencing phase does not imper missibly

weaken the statute's constitutionally mandated narr owing

function." This precedent binds our panel.

XIII

Riley's final argument is that the District Court erred in

denying his motion for funds for investigative and expert

assistance and in refusing to conduct an evidentiary

hearing. We disagree.

A.

Under 18 U.S.C. S 3006A(e) and 21 U.S.C. S 848(q)(4)(B)

and (9), Riley was entitled to investigative and expert

assistance upon a finding that such assistance was

"necessary" or "reasonably necessary" with respect to his

representation in the habeas proceeding. Riley sought the

services of an investigator to gather additional evidence

concerning his childhood experiences. He sought the

services of a forensic psychiatrist to develop further

mitigating evidence concerning his mental pr oblems. All of

these services were requested in or der to support Riley's

arguments that his trial attorney was ineffective at the

penalty phase and that the trial judge should have

appointed a co-counsel and investigator to assist him.

Riley has not shown that the services in question were

"necessary" or "reasonably necessary." The discovery at the

time of the federal habeas proceeding of new evidence about

Riley's childhood would not have shown that the ef forts of

Riley's trial attorney to locate family members who might

have testified about such matters were objectively

unreasonable. See pages 30-33, supra. Nor would the

56

discovery of such evidence have demonstrated that it was

strategically unreasonable for Riley's trial attorney to

eschew a penalty-phase defense based on Riley's"social

history." See id. Similarly, the development of additional

evidence regarding Riley's mental condition at the time of

the federal habeas proceeding would not have shown that

Riley's trial attorney was objectively unr easonable in not

seeking a mental examination prior to the penalty. See

pages 33-35, supra.

B.

"Where the District Court denies the petition for a writ of

habeas corpus in the absence of an evidentiary hearing," we

ask, first, "whether the petitioner asserts facts which entitle

him to relief " and, second, "whether an evidentiary hearing

is needed." Todaro v. Fulcomer , 944 F.2d 1079, 1082 (3d

Cir. 1991). See also Heiser v. Ryan, 951 F.2d 559, 561 (3d

Cir. 1991). Riley argues that the District Court should have

held an evidentiary hearing concerning the pr osecution's

peremptory challenges, the impartiality of the jury, his

Brady claim, and other unspecified issues. W e disagree. As

previously discussed, we are requir ed to accept the state

courts' findings regarding the per emptory challenges and

the impartiality of the jury, and those findings are

dispositive. Thus, an evidentiary hearing in federal court on

those matters was not needed. In addition, in light of the

revelation after briefing that no conversation in which

Baxter participated is listed in the logs of the wir etap on

Mrs. Baxter's telephone, it is clear that ther e was no need

for an evidentiary hearing concerning Riley's Brady claim.

Nor do we believe that the District Court was an evidentiary

hearing was needed on any other matter.

XIV.

For the reasons explained above, the decision of the

District Court is affirmed.

57

SLOVITER, Circuit Judge, Dissenting.

The considerable deference that we are obliged to give to

state court findings of fact does not requir e that we give

uncritical acceptance to a prosecutor's story merely

because a state judge accepted it when the story cries out

for skepticism and is inherently improbable. The prosecutor

would have us believe that six years after the trial, without

the help of contemporaneous notes, he remember ed (for the

first time) that a prospective juror paused ("a significant

pause") before the juror answer ed the trial judge's voir dire

inquiry whether he would be able to retur n a death penalty.

And the prosecutor would have us believe that he exercised

one of the state's peremptory challenges to strike the juror

for that reason. The fact that the juror was black

supposedly was irrelevant to the prosecutor's decision.

The same prosecutor would also have us believe that he

struck another juror (the second of the thr ee prospective

black jurors) because he wanted to be excused so he could

return to work (which the prospective juror later testified he

never requested). Inexplicably, the prosecutor who

remembered the black juror who allegedly paused (although

he made no note of it) could not remember that he did not

strike a white juror who really did want to be excused

because of work, even though the prosecutor had made a

note that that juror "want[ed] off." As a result, there were

no black or other minority jurors on appellant Riley's petit

jury. And there were no black jurors on any capital case

tried by that prosecutor's office that year . The prosecutor's

story strains credulity even further when it is recalled that

on the direct appeal to the Delaware Supr eme Court in this

case the State's alternative argument defended the use of

peremptory challenges to exclude jurors based on "group

association," a euphemism for race.

I dissent from the majority opinion because I believe the

record in this case compels the conclusion that the

prosecution, in pursuing its express goal of "mak[ing] sure

that James Riley received the death penalty," App. at 797,

violated Riley's constitutional rights under Batson v.

Kentucky, 476 U.S. 79 (1986), and Caldwell v. Mississippi,

472 U.S. 320 (1985).

58

I.

The victim in this case, James Feeley, was a 59 year old

white man who was shot to death during a robbery of his

liquor store in Dover, Delaware. As the majority notes, the

robbers were leaving after grabbing some cash and shooting

Feeley in the leg when Feeley threw a wine bottle, which

apparently precipitated the shot that killed him. Appellant

Riley, a 22 year old black man, Tyrone Baxter , and Michael

Williams were arrested for his mur der. Riley was

represented at trial by appointed counsel, a defense-side

civil litigator who had never represented a criminal

defendant in either a murder or a capital case. Riley was

tried and convicted before an all-white jury and, four days

later, was sentenced to death. Riley's attor ney, who spent

only fourteen hours preparing for the penalty phase,

explained to the trial court that he had been too busy "with

the defense and the merits" to spend more time building a

case in mitigation. App. at 443-44.

The prosecutors in Riley's case were James Liguori and

Mark McNulty. Liguori, the lead prosecutor , was a friend

and neighbor of Feeley's, and his stated intent was"to

make sure we were not only going to get a conviction of

murder in the first degree, but also the death penalty." App.

at 797. While that goal was not unlawful, on this r ecord I

can only conclude that the prosecution, in at least two

respects, overstepped the line drawn by Supr eme Court

cases.

II.

The Batson Claim

A.

Evidence of Peremptory Strikes in Kent County

After general voir dire and dismissals for cause in Riley's

trial, three prospective black jur ors remained available to

serve on the jury: Ray Nichols, Lois Beecher , and Charles

McGuire. The prosecution used three of its peremptory

59

challenges to remove them, and Riley was tried and

sentenced before an all-white jury.

It is well-settled that the Equal Protection Clause

prohibits discrimination on account of race in selection of

both the venire and the petit jury. See Batson, 476 U.S. at

88. This principle, which dates back at least as far as

Strauder v. West Virginia, 100 U.S. 303 (1880), recognizes

that racial discrimination in selection of jur ors harms "not

only the accused whose life or liberty they ar e summoned

to try," Batson, 476 U.S. at 87, but also harms the

potential juror, whose race "simply`is unrelated to his

fitness as a juror.' " Id. (quoting Thiel v. Southern Pac. Co.,

328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting)).

Under Batson, the defendant who seeks to establish that

the state's use of peremptory challenges violated the Equal

Protection Clause must first make a prima facie showing of

a constitutional violation. Once the defendant makes that

showing, the prosecution must articulate a race-neutral

explanation for its use of a peremptory challenge and, if it

does, the trial court must determine whether the defendant

has proven purposeful discrimination. See Simmons v.

Beyer, 44 F.3d 1160, 1167 (3d Cir . 1995). Judge Steele, the

judge in the Superior Court of Delaware (a trial court) who

presided over Riley's post-conviction pr oceedings,

determined, and the state does not contest, that Riley made

out a prima facie case of discrimination in jury selection.

Accordingly, he conducted an evidentiary hearing to

determine whether Riley had established purposeful

discrimination.

At the hearing, Liguori, the state's principal witness,

proffered race-neutral reasons for the prosecution's

decision to strike three black jurors fr om Riley's case. In

reply, Riley presented evidence that in addition to the three

jurors in his trial, the Kent County Pr osecutor's office used

its peremptory challenges to remove every prospective black

juror in the three other first-degr ee murder trials that

occurred within a year of his trial. Riley also presented

evidence specific to his case that the prosecution had failed

to apply its purportedly race-neutral criteria evenhandedly

with respect to the prospective black jur ors. The court

rejected Riley's Batson claim without mentioning any of this

60

evidence, and the Delaware Supreme Court affirmed,

likewise without discussion of this evidence. In my view,

the record simply does not support the purported race-

neutral reason with respect to at least one of the three

jurors. Although I also question the state's use of

peremptory challenges to strike the two other black jurors

in Riley's case, the exclusion of even one jur or on the basis

of race violates the Constitution. See Harrison v. Ryan, 909

F.2d 84, 88 (3d Cir. 1990). The evidence of the striking of

the black jurors in Riley's trial is mor e telling when viewed

in the light of the state's similar conduct in

contemporaneous trials.

At the post-conviction hearing, Riley presented evidence

that the Kent County Prosecutor used per emptory

challenges to remove every prospective black juror, not only

in his trial but also in three other first-degree murder trials

that occurred within a year of his trial. In these four trials

(including Riley's), the prosecution struck all eight

prospective black jurors who were called, i.e., 100 percent.

By contrast, the prosecution used its per emptory

challenges to strike only 23 of the 71 prospective white

jurors, or 32 percent.1

At the post-conviction hearing, counsel for the state

objected to the admission of this evidence, ar guing that

evidence of general prosecutorial practices was relevant

_________________________________________________________________

1. The four trials were:

a. Andre Deputy -- state struck the lone prospective black juror, a

second juror designated as "Indian," and six prospective white

jurors;

b. Judith McBride -- state struck all thr ee prospective black

jurors, five whites, plus two other jur ors whose race has not

been identified;

c. Riley -- state struck all three pr ospective black jurors and

eight

whites; and

d. Daniel Pregent -- state struck the lone prospective black juror

and four whites.

Although the race of two of the jurors who wer e ultimately empaneled

has not been identified, the state does not contest Riley's assertion that

every empaneled juror was white.

61

only to Riley's prima facie case. The court r ejected this

argument and admitted the evidence, explaining that the

evidence was being offered to show that"the peremptory

challenges in this particular case followed some kind of

pattern that exists in the prosecutorial actions in first

degree murder cases involving minority defendants."2 App.

at 872.

Counsel for the state then requested and r eceived an

additional month in which to "attempt to pr epare the same

sort of information which we feel would be contrary to the

representations made by [Riley's counsel]." App. at 874. He

informed the Superior Court that he had not yet been able

to obtain materials from other cases, but he assured the

court that "they do exist." App. at 874. However,

approximately one month after the hearing the state

submitted a letter expressly declining to supplement the

record with evidence from other cases. In fact, the state

never even argued to the Superior Court that Riley's

evidence failed accurately to represent Kent County

prosecutorial practices, and it has not so ar gued to this

court either.

Typically, "[w]here relevant infor mation . . . is in the

possession of one party and not provided, then an adverse

inference may be drawn that such information would be

harmful to the party who fails to provide it." McMahan &

Co. v. Po Folks, Inc., 206 F.3d 627, 632 (6th Cir. 2000)

(quotation omitted); see also Interstate Cir cuit, Inc. v. United

States, 306 U.S. 208, 226 (1939) ("The pr oduction of weak

evidence when strong is available can lead only to the

conclusion that the strong would have been adverse.").

However, the majority declines to give Riley's evidence "any

weight" whatsoever. Maj. Op. at 16. The majority gives

several reasons for its decision to disr egard this evidence,

none of which is persuasive and all of which ar e wrong.

_________________________________________________________________

2. As the majority points out, not all of the defendants in Riley's sample

were minorities, but that is immaterial to whether the Kent County

prosecutor struck black jurors on account of their race. Excluding jurors

on the basis of race is unconstitutional regar dless of the race of the

defendant. See Powers v. Ohio, 499 U.S. 400 (1991).

62

For example, the majority states that in two of the trials

-- Daniel Pregent's and Judith McBride's-- the defense

apparently did not raise a Batson objection. The majority

argues that "it is doubtful that the patter n of strikes [in

Pregent's case] . . . sufficed to make out a prima facie case,"

id., and that, with respect to McBride's trial, there is no

way of determining whether any jurors wer e removed

because of their race. These are non-sequiturs. Riley had to

prove discrimination in his trial, not in Pr egent's and

McBride's. If the majority's point is that Riley's evidence is

irrelevant unless each separate component was itself

established to be a Batson violation, that proposition has

no basis in the law or in common sense. The evidence

demonstrates a pattern of striking black jur ors at

significantly higher rates than white jurors. One

permissible (indeed, the most plausible) infer ence to be

drawn from the data is that the Kent County Pr osecutor

followed a pattern of using peremptory challenges in a

racially discriminatory manner. Indeed, that is precisely the

purpose for which the Superior Court admitted this evidence.3

The majority seeks to dispel, or at least neutralize, the

unmistakable inference to be drawn from this pattern of

striking all black jurors by pr offering explanations that the

prosecutor never proffered in the state proceedings. The

majority even excuses the failure of the state to produce

any evidence to counter Riley's statistical evidence by

suggesting that the data "did not raise an infer ence of

discrimination, and thus additional data wer e not needed to

refute Riley's statistical showing." Maj. Op. at 17.

At most, the majority can simply state the obvious-- that

the evidence presented by Riley is imper fect. The most

glaring imperfection is, of course, the small size of Riley's

sample. Conceivably, evidence from other trials might cast

_________________________________________________________________

3. The majority also asserts that Riley's data ar e flawed because we do

not know the identity of the prosecutors who participated in jury

selection in these cases. While this objection might have more force if

there was evidence that the use of peremptory challenges in Kent County

varied from case to case, there is no such evidence here. Moreover, a

newspaper article published during the trial described Liguori, the lead

prosecutor in Riley's trial, as "the chief prosecutor in Kent County."

App.

at 1442.

63

the practices in Kent County in a differ ent light. But it was

the state, not Riley, that would have had access to such

evidence, it was the state that asserted that such evidence

was available and forthcoming, and it was the state, not

Riley, that failed to provide it. Riley's evidence from prior

trials was powerful evidence in his favor , and I believe the

failure of the Superior Court, which had pr eviously

acknowledged the relevance of this evidence, to mention it

and include it in the calculus leading to its final decision to

deny Riley's post-conviction motion undermines that

decision.

B.

Evidence of Pretext

I am equally troubled by the failure of the state courts to

discuss the evidence Riley presented to contradict the race-

neutral reasons offered by the pr osecution for striking the

black jurors in his trial. At the post-conviction hearing,

held six years after Riley's trial, Liguori testified that the

prosecution's strategy in Riley's trial was"to make sure we

were not only going to get a conviction of mur der in the

first degree, but also the death penalty." App. at 797. He

also testified that the prosecutors wanted"to have minority

representation on the jury panel," App. at 792-93, and

attempted to explain the prosecution's decision to challenge

all three prospective black jurors. I will focus here on two

of these jurors, Ray Nichols and Charles McGuir e.

With respect to Nichols, Liguori r emembered clearly that

"Mr. Nichols was an individual who, and unfortunately the

record doesn't reflect this, who was not, in my particular

mind, not certain with regard to being able to return a

verdict for death." App. at 797-98. The r ecord reflects no

such uncertainty on Nichols's part. At voir dir e, Nichols

answered the two questions posed by the court r egarding

the jurors' willingness to sentence a defendant to death in

a manner seemingly favorable to the prosecution:

Q: Do you have any conscientious scruples against

finding a verdict of guilty where the punishment

64

might be death or against imposing the death

penalty even if the evidence should so warrant?

A: No.

Q: Regardless of any personal beliefs or feelings that

you may have, if the evidence justified it, would

you be able to find a person guilty of mur der in the

first degree and would you be able to impose the

death penalty.

A: I think so.

App. at 226-27.

Nonetheless, Liguori struck Nichols because, as he

explained at the post-conviction hearing, "ther e was a

pause and a significant pause in [Nichols's] answering [the

court's] inquiry." App. at 798-99. Despite this alleged

pause, the prosecutors did not ask the trial court to remove

Nichols for cause or to inquire further into Nichols's

willingness to award the death penalty.

With respect to Charles McGuire, Liguori's memory was

also clear. He stated:

I remember this one. Mr. McGuir e was an individual

who had requested -- remember, this was going to be

around Christmas also.

Mr. McGuire had previously requested to be excused

from jury service. When Mr. McGuir e came up, the first

thing I wanted to make clear -- as I said earlier , I

wanted someone that was going to be attentive and you

can read all the books you want with regar d to

selecting prospective jurors and it is always make sure

you have attentive jurors, people not concer ned about

getting home early to take care of their kids, or

vacation.

Mr. McGuire himself had requested the Court to

excuse him. The Court didn't. When he went thr ough

his inquiry, we asked the judge to excuse him for

cause. The judge said no. It then left us with no

alternative but to think he would not give his full time

and attention and therefore we struck Mr . McGuire.

65

App. at 801 (emphasis added). McGuire's pr esumed

inability to "give his full time and attention" was the only

reason Liguori offered for excluding him.

On cross-examination, Riley's attorney introduced

Liguori's handwritten notes from voir dir e at Riley's trial.

Written next to McGuire's name was the word "Out." Among

the names on the same page was that of Charles Reed, a

white man who was ultimately seated on the jury. Next to

Reed's name on the sheet was written, "works Lowe's,

wants off." App. at 823.

Despite repeated efforts by Riley's counsel to refresh his

recollection, Liguori testified that he had no recollection of

Reed, a juror who actually served on Riley's trial. Liguori

agreed, however, that the notation next to Reed's name

indicated that Reed had requested to be excused from

service on the jury. Liguori offered no explanation for his

decision not to strike Reed.

The similarity between the two prospective jur ors is

obvious -- in each case the state believed that the juror

wanted to be excused. The only distinction between the

jurors apparent on the record is equally obvious --

McGuire, who was struck, is black; Reed, who was

retained, is white.

Nonetheless, as with Riley's evidence of the patter n of

race-based strikes in other trials, the state courts failed

even to mention this evidence and the majority strains to

find reasons to disregard it. The majority asserts, for

example, that "Reed may have had a r elatively weak desire

and reason to be excused, and his situation may not have

been at all comparable in this respect to McGuire's." Maj.

Op. at 24 (emphases added). The majority further explains

that it is not willing to assume "that Reed's desire to be

excused was related to his employment." Id. at 24 n.12.

This "distinction" between Reed and McGuir e is not only

unsupported by the record, it is irr elevant. Liguori did not

testify, nor can it be inferred from his testimony, that it was

significant that McGuire's purported desir e to be excused

was work-related. Instead, Liguori testified that he struck

McGuire because he believed McGuire wanted off the jury

and would therefore not be attentive at trial. The record

strongly suggests that justification applied equally to Reed.

66

The comparison between Reed and McGuire is telling

evidence that the prosecution's asserted justification for

striking McGuire was pretextual. See Turner v. Marshall,

121 F.3d 1248, 1251-52 (9th Cir. 1997) ("A comparative

analysis of jurors struck and those remaining is a well-

established tool for exploring the possibility that facially

race-neutral reasons are a pretext for discrimination.").

This evidence alone is strongly suggestive of the race-based

use of peremptory challenges. See, e.g., Devose v. Norris, 53

F.3d 201 (8th Cir. 1995) (Batson violation where only

justification prosecutor offered for striking three out of four

black jurors with prior jury experience was that jurors

might be "burned out" by prior service; at least five white

jurors were not stricken although they had previously

served on juries); Garrett v. Morris, 815 F.2d 509, 514 (8th

Cir. 1987) (prosecutor's explanation for striking black jurors

"seems clearly pretextual in light of his decision not to

strike white jurors who differed in no significant way"); see

also Turner, 121 F.3d 1253-54 (r eversing, under clear error

standard, finding that prosecutor did not discriminate in

jury selection where sole justification of fered for striking a

black juror applied equally to non-stricken white juror);

Jones v. Ryan, 987 F.2d 960 (3d Cir . 1993) (reversing,

under plenary review, denial of habeas r elief where

prosecutor did not apply purportedly race-neutral policy to

similar white jurors).

However, we need not view each piece of evidence in

isolation. It is clear that "[a]n explanation for a particular

challenge need not necessarily be pigeon-holed as wholly

acceptable or wholly unacceptable. The relative plausibility

or implausibility of each explanation for a particular

challenge . . . may strengthen or weaken the assessment of

the prosecution's explanation as to other challenges."

United States v. Alvarado, 923 F.3d 253, 256 (2d Cir. 1991).

In short, "[a] reviewing court's level of suspicion may also

be raised by a series of very weak explanations for a

prosecutor's peremptory challenges. The whole may be

greater than the sum of its parts." Caldwell v. Maloney, 159

F.3d 639, 651 (1st Cir. 1998).

Despite the majority's efforts to explain away the various

parts of the evidentiary picture Riley has pr esented, the

67

record as a whole squarely contradicts the Superior Court's

decision. First, the prosecution offer ed a highly dubious

justification for its decision to strike Ray Nichols. While

standing alone the questionable nature of this explanation

might not carry much weight, the prosecution's explanation

for striking Nichols must be evaluated in light of not only

the uncontested evidence of the use of peremptory strikes

in Kent County but also the evidence of pretext in the

striking of Charles McGuire. Viewed as a whole, I believe

this evidence requires a finding contrary to that reached by

the Superior Court.

In the end, the majority's result can be justified on little

more than the presumption of correctness afforded state

court fact-finding in habeas proceedings. The version of 28

U.S.C. S 2254(d) that applies to this case r equires us to

defer to state court findings that are "fairly supported by

the record." 28 U.S.C. S 2254(d)(8). While I do not deny that

the limited nature of our review r eflects important policy

considerations, see, e.g., Miller v. Fenton, 474 U.S. 104, 114

(1985) (presumption recognizes that "as a matter of the

sound administration of justice, one judicial actor is better

positioned than another to decide the issue"), the

presumption of correctness does not "so limit federal review

that it is a nullity." Caldwell v. Maloney , 159 F.3d 639, 651

(1st Cir. 1998). In this respect, Ligouri's explanation of the

strikes of black jurors is neither "coher ent" nor "facially

plausible," the express limitation that the Supreme Court

itself included in commenting on the deference to be given

a judge's credibility finding in Anderson v. Bessemer City,

470 U.S. 564, 575 (1985), in the very quote r epeated by the

majority. See Maj. Op. at 18-19 n.8.

In this case there is not only the substantial evidence of

the race-based use of peremptory challenges in

contemporary trials but there is also evidence that throws

into question the explanation offered by the prosecutor for

striking at least one of the black jurors in Riley's case. The

state courts rejected Riley's Batson claim without

discussing any of the ample evidence favorable to Riley and

the majority points to nothing relevant in the record that

might otherwise support the state courts' decisions.

Looking at the key to the state's case, the striking of

68

Nichols allegedly because he paused in answering the

court's inquiry whether he could impose the death penalty,

the majority lamely responds that a significant pause "is

not something that a transcript is likely to captur e." Maj.

Op. at 19 n.9. But the prosecutor did make notes during

the voir dire as to decisions whether to strike other jurors,

but offered no contemporaneous note as to Nichols'

"pause." In a death case, a pause, even "a significant

pause," conveniently recalled by the pr osecutor six years

after jury selection, is a slim reed on which to sustain the

prosecutor's explanation, particularly when that

explanation is unsupported by any recor d evidence. No

principle of deference to state court fact-finding can justify

this court's rejection of Riley's Batson claim.

III.

The Caldwell Claim

I believe the majority's conclusion that Riley failed to

establish a violation of Caldwell v. Mississippi , 472 U.S.

320 (1985), is similarly faulty. In Caldwell the Supreme

Court held that prosecutorial comments str essing that the

jury's sentence would be reviewed for corr ectness by the

state supreme court violated the Eighth Amendment by

leading the jury to believe that ultimate responsibility for

determining the appropriateness of the death sentence

rested with an appellate court. As the Supr eme Court later

explained, prosecutorial comments that "mislead the jury

as to its role in the sentencing process in a way that allows

the jury to feel less responsible than it should for the

sentencing decision" are prohibited. Romano v. Oklahoma,

512 U.S. 1, 9 (1994) (quotation omitted).

Relying on the principle that a prosecutor's r emarks do

not violate Caldwell unless "they impr operly describe[ ] the

role assigned to the jury by local law," id. (quotation

omitted), the majority rejects Riley's Caldwell claim. The

statements made by the prosecutor in Riley's trial, however,

were no more accurate than those in Caldwell.

In Caldwell, the defense attorney in a capital murder

case pleaded with the jury in closing arguments at the

69

sentencing phase to spare the defendant's life. In reply, the

prosecutor stated:

Ladies and gentlemen, I intend to be brief. I'm in

complete disagreement with the approach the defense

has taken. I don't think it's fair. I think it's unfair. I

think the lawyers know better. Now, they would have

you believe that you're going to kill this man and they

know -- they know that your decision is not the final

decision. My God, how unfair can you be? Y our job is

reviewable. They know it.

Caldwell, 472 U.S. at 325 (emphases added).

Defense counsel objected to this statement but the trial

court overruled the objection, stating that it was"proper

that the jury realizes that it is reviewable automatically as

the death penalty commands." Id. The pr osecutor

continued:

Throughout their remarks, they attempted to give you

the opposite, sparing the truth. They said `Thou shalt

not kill.' If that applies to him, it applies to you,

insinuating that your decision is the final decision and

that they're gonna take Bobby Caldwell out in the front

of this Courthouse in moments and string him up and

that is terribly, terribly unfair. For they know, as I

know, and as Judge Baker has told you, that the

decision you render is automatically reviewable by the

Supreme Court. Automatically, and I think it's unfair

and I don't mind telling them so.

Id. at 325-26.

Although the jury's sentence in Caldwell was indeed

subject to automatic review by the state supr eme court,

Justice O'Connor, who cast the fifth and deciding vote,

emphasized that "[j]urors may harbor misconceptions about

the power of state appellate courts or, for that matter, [the

Supreme Court] to override a jury's sentence of death." Id.

at 342 (O'Connor, J., concurring). Accor ding to Justice

O'Connor, the prosecutor's statements were impermissible

because they conveyed to the jury that automatic appellate

review "would provide the authoritative determination of

whether death was appropriate" whereas under state law

70

the relevant scope of review was limited to whether the

verdict was "so arbitrary that it was against the

overwhelming weight of the evidence." Id. at 343 (O'Connor,

J., concurring) (quotation omitted).

In Riley's case, Liguori began his opening comments in

the penalty phase by stating:

Let me say at the outset that what you do today is

automatically reviewed by our Supreme Court and that

is why there is an automatic review on the death

penalty. That is why, if you return a decision of death,

that is why you will receive and have to fill out a two-

page interrogatory that the Court will give you. This is

an interrogatory that specifically sets out the questions

that the State request and whether or not you believe

it beyond a reasonable doubt and if you want in your

determination, if you believe the sentence should be

death than each and every one of you has to sign this.

This goes to the Supreme Court. That is why it is

concise and we believe clear and it should be looked

carefully on and answered appropriately.

App. at 393 (emphasis added).

The majority concludes that this statement was accurate

because Delaware law provides for automatic review of the

jury's sentence. But, as in Caldwell, the automatic review

conducted by the Delaware Supreme Court is extremely

limited. At the time of Riley's sentencing hearing, the

relevant portion of the capital sentencing statute provided:

The Supreme Court shall limit its review under this

section to the recommendation on and imposition of

the penalty of death and shall determine:

a. Whether, considering the totality of evi dence in

aggravation and mitigation which bears upon the

particular circumstances or details of the of fense and

the character and propensities of the of fender, the

death penalty was either arbitrarily or capriciously

imposed or recommended . . . .

Del. Code Ann. tit. 11, S 4209(g)(2) (emphasis added).

Like the prosecutor's statement in Caldwell , Liguori's

reference to automatic appellate r eview was misleading as

71

to the scope of appellate review. As a majority of the Court

explained in Caldwell, jurors may not understand the

limited nature of that review, which af fords substantial

deference to a jury's determination that death is the

appropriate sentence. See Caldwell, 472 U.S. at 330-31.

Furthermore, jurors who are unconvinced that death is the

appropriate punishment but who are eager to send a

message of disapproval for the defendant's acts might be

"very receptive to the prosecutor's assurance that [they] can

more freely err because the error may be corrected on

appeal." Id. at 331 (quotation omitted). As one of our sister

circuits has explained, "[f]or the jury to see itself as

advisory when it is not, or to be comforted by a belief that

its decision will not have effect unless others make the

same decision, is a frustration of the essence of the jury

function." Sawyer v. Butler, 881 F .2d 1273, 1282 (5th Cir.

1989).

The majority suggests that Liguori's comments simply

described to the jury the interrogatory for m they would

have to answer during their deliberations. But the

interrogatory form contained only two questions: whether

the jury found, unanimously and beyond a reasonable

doubt, that an aggravating circumstance existed,4 and, if

the jury answered "yes," whether it unanimously

recommended a sentence of death. Liguori's comments,

then, were specifically directed to the jury's balancing of

aggravating and mitigating factors and alerted the jury to

the fact that the Delaware Supreme Court would

automatically review its decision to impose a death

sentence.

"The sentencing decision in capital cases is bor n out of

an inherent and unique mixture of anger , judgment and

retribution, and requires a deter mination whether certain

acts are so beyond the pale of community standards as to

warrant the execution of their author." Id. at 1278. Perhaps

more than any other decision render ed by a jury, a

sentence of death is "irreducibl[y] discretionary." Id. Indeed,

in Delaware the jury's weighing of aggravating and

_________________________________________________________________

4. The jury had already been instructed that, by convicting Riley of

felony

murder, it had already found that an aggravating circumstance existed.

72

mitigating circumstances was, for all practical purposes,

final. I have found no published opinion during the relevant

time period in which the Delaware Supreme Court reversed

a jury's sentence of death as arbitrarily or capriciously

imposed.5

In Caldwell, the Supreme Court noted that "[b]elief in the

truth of the assumption that sentencers treat their power to

determine the appropriateness of death as an awesome

responsibility has allowed this Court to view sentencer

discretion as consistent with-and indeed as indispensable

to-the Eighth Amendment's need for reliability in the

determination that death is the appropriate punishment in

a specific case." Caldwell, 472 U.S. at 330 (quotation

omitted). It follows that there is particular concern "when

there are state-induced suggestions that the sentencing

jury may shift its sense of responsibility to an appellate

court." Id.

I am unwilling to treat the prosecutor's pointed reference

to appellate review of this crucial decision as lightly as does

the majority. A statement, like that made by the pr osecutor

here, "can be literally true but quite misleading by failing,

for example, to disclose information essential to make what

was said not misleading." Sawyer, 881 F .2d at 1285. As a

result, a violation of Caldwell may be established where a

technically accurate statement describing the state

appellate review process nonetheless "misled the jury to

minimize its role in the sentencing process." Driscoll v. Delo,

71 F.3d 701, 713 & n.10 (8th Cir. 1995) (prosecutor

violated Caldwell by emphasizing that trial judge could

disregard jury's recommendation of death; although

technically an accurate statement of law, no state judge

"ha[d] ever spared a murder er the death penalty when a

jury ha[d] recommended it").

_________________________________________________________________

5. The Delaware capital sentencing scheme was substantially amended

in 1991. Under the amended statute, the "jury now functions only in an

advisory capacity. The judge, after taking the jury's recommendation into

consideration, has the ultimate responsibility for determining whether

the defendant will be sentenced to life imprisonment or death." State v.

Cohen, 604 A.2d 846, 849 (Del. 1992). Of course, when Riley was

sentenced the jury's death sentence was binding on the judge.

73

Given the limited nature of the Delawar e Supreme

Court's review of a jury's sentence of death at the time, I

believe that there was a Caldwell violation in this case. At

no time did the prosecution bring the limited scope of

review to the jury's attention and, despite the majority's

statement to the contrary, nothing the trial court said could

have corrected any misimpression left by the prosecution's

comments.6 Moreover, although Liguori's remark was brief,

the opening statement was too; it consumed only 3-1/2

pages of transcript, 1/2 page of which was the passage

reprinted above. It is clear that a statement does not have

to be lengthy to be effective in suggesting to the jury that

ultimate responsibility for sentencing lies elsewhere. Unlike

the facts in Jones v. Butler, 864 F.2d 348, 360 (5th Cir.

1988), where the court held that the pr osecutor's statement

that "[I]f, in fact, you do retur n the death penalty that

yours will not be th

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