Opposition Brief — Ellingsworth v. Reynolds

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Supreme Court. U.S

FILED

ORIGINAL pi

: JOSEPH F SPANIOL Jt

CLERW

NO. 88-395 Sa,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

JOHN C. ELLINGSWORTH, Warden

Sussex Correctional Institution, and

CHARLES M. OBERLY, III, Attorney

General of the State of Delaware,

Petitioners,

Vv.

GEORGE L. REYNOLDS

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

BEVERLY L. BOVE

COUNSEL OF RECORD

TOMAR, SELIGER, SIMONOFF, ADOURIAN

& O'BRIEN

Suite 1704, Mellon Bank Center

919 Market Street

Wilmington, Delaware 19801

October 20, 1988 (302) 655-0500

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ccccccccccccsccseesccesecessesececece ii

SUMMARY OF ARGUMENT ...ccccccccccccccscscccs erTye ure ee 2

ARGUMENT .......- TRUER ECE CEST UCT ree 3

CONCLUSION ..ccccccccccce (eee bd ewe adeeb 6 ECR ECU CeO eT 15

APPENDIX:

George L. Reynolds v. Jack C. Ellingsworth, et al.,

No. 86-5633 (36 Cir. Mar. 31, I9BB) csssscccsvcs App.1

George L. Reynolds v. Jack C. Ellingsworth, et al.,

No. 86-5633 (3d Cir. Apr. 14, 1988) (order

amending opinion) .......eeee $Sdb EOC ONDE OEOS App. 29

George L. Reynolds v. Jack C. Ellingsworth, et al.,

No. 86-5633 (3d Cir. May 24, 1988) (opinion

Genying rehearing) .ccccccccccccces eer eT ee ee App. 31

TABLE OF AUTHORITIES

Cases

Barr v. City of Columbia,

BIO Us Bi PAO UPON) ccs ccsesacsvocins

Conyers v. State,

422 A.2d 345 (Del. 1980) (per curiam)

Engle v. Isaac,

O50 U.Bs LOT (1962) seacssccsccsdesess

Fay v. Noia,

De es. SN COORG nc bueb daa decane euwnd ene eenn

Granberry v. Greer,

107 S. Ct. 1671 (1987) ........ cecscce

Hathorn v. Lovorn,

Aa? HG. 299 CI9E2) sascccess were re rc er eer rer

Henry v. Mississippi,

SED Gots SES CABGS) ccccesvceccccceccasacccsncss

James v. Kentucky,

BBO Gib. SEL CISRE) ccccnscsccccsecccesoancessas

King v. State,

BSP Bude POP (DBL. 1968) cecsccccsacssacocsssces

Lumpkin v. Ricketts,

551 F.2d 680 (5th Cir.) cert. denied,

434 U.S. 957 (E977) cccccsccssccscccesesesssesae

Murray v. Carrier,

Al? UsE. S7B (UGGS) 2... csccrsssecccvssecsvecess

NAACP v. Alabama ex rel. Flowers,

SEF Moms BOG CASOR) cesses ecncvccdessasdsnwcsoues

NAACP v. Alabama ex rel. Patterson,

397 UsS. SEF (2958) cases cece csnseseesssessees

Reed v. Ross,

de PS ea Ee eee ee eee eee ere eee

Rose v. Lundy,

B55 UiS. SOD (19B2) snncccccccsvccccscseseseoses

Slayton v. Smith,

SOE U.iB. 53 (1971) wcccccccccesccccccsccccscsese

State v. Herhal,

307 A.2G 553 (Del. Super. 1973) wccccccccccccces

Spencer v. Kemp,

781 F.2d 1458 (llth Cir. 1986) (en banc)

Wainwright v. Sykes,

Seg. RNR ear en Ee ee ee

Wright v. Georgia,

SOS Wee AON (29GS) 6s ceca che ccc acasecencasees

ii

oe eee ewes

Page

6, 122

9, 10

6

2) aay 235

14

4

6

2, Se 6,

12, 14

6, 12

10, 12

1l

6

LZ

ll

6, 13, i4

3

3, 4

10, 11

5 |

passim

12

TABLE OF AUTHORITIES-Cont inued

Statutes and Court Rules Page

26 U.S.C. G2256 ccccseccsesvcssscvscvessvessssecssse,e @

Rule 35, Delaware Superior Court Rules of

Criminal POGeGutée (1975). saci cdceirsessciscscconea F

Rule 41(e), Delaware Superior Court Rules of

CFIMiNAlL PLOGCEGUCE (I97S) cecccicssccccccsscsus Tl

Rule 30, Ohio Rules of

CEIMiNAl PEGCSGUTE oo kk 6oc.kd cid sccessscisisccsace B

Rule 5:21, Virginia Supreme

GCOMEC RUGS ccc ccs ccs iiicavscsessaisssszasersecs 6

iii

NO. 88-395

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

JOHN C. ELLINGSWORTH, Warden

Sussex Correctional Institution, and

CHARLES M. OBERLY, III, Attorney

General of the State of Delaware,

Petitioners,

Vv.

GEORGE L. REYNOLDS

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

SUMMARY OF ARGUMENT

The decision of the Third Circuit Court of Appeals is

consistent with the body of law applying the “independent and

adequate state ground” doctrine that bars federal habeas corpus

review of claims procedurally defaulted. The decision below is

merely an application of settled law to the facts of this case.

There is no question of law at issue that justifies the grant of

a writ of certiorari.

ARGUMENT

The legal principles which govern the decision here have

been well established by this court. see Wainwright v. Sykes,

433 U.S. 72 (1977); Henry v. Mississippi, 379 U.S. 443 (1965).

Petitioner seeks to have this case reviewed to determine

the exact parameters of federal habeas review of procedurally

defaulted claims based on the “independent and adequate state

ground" doctrine. In essence, the state argues that a federal

habeas claimant whose counsel failed to raise an issue at trial

and on direct appeal should be barred from habeas review without

regard to the adequacy of the purported state procedural rule

upon which such default was based.

Such a reading of Supreme Court precedent is inconsistent

with the line of decisions handed down by this Court.2

1 The state fails to recognize the fact that Reynolds’

alleged procedural default “does not legitimize the

unconstitutional conduct by which his conviction was procured."

Fay v. Noia, 372 U.S. 391, 428 (1963).

1. The Court of Appeals Properly Decided The Adequacy

Of Delaware's Procedural Default Rule

Notwithstanding The Existence Of An Unresolved

Question Of Exhaustion.

The Third Circuit Court of Appeals in Reynolds' case held that

Delaware did not have an “independent and adequate” procedural

default rule sufficient to bar consideration on the merits of

Reynolds' due process claim pertaining to prosecutorial

misconduct. 2 After so ruling, the Court of Appeals noted that

Reynolds may not have exhausted his state remedies on his other

habeas claim, a Sixth Amendment violation of his right to effective

assistance of counsel, and remanded the matter back to the district

court to determine this issue. On the authority of Rose v. Lundy,

455 U.S. 509, 518-22 (1982), the Court of Appeals aptly noted

Reynolds' entire habeas petition could be dismissed if the district

court rules on remand that Reynolds' ineffective assistance claims

were not exhausted. ?

The state maintains that once the Court of Appeals concluded

that Reynolds may not have exhausted state remedies and thus,

possibly subjected the entire petition to dismissal, it was then

obligated not to remark on the adequacy of Delaware's procedural

rule citing Slayton v. Smith, 404 U.S. 53, 54 (1971) as authority

for its position.

The State's reliance on Slayton is misplaced. The Slayton Court

of Appeals, after concluding petitioner's habeas corpus claim had

not pees exhausted in the State courts, made certain unnecessary

remarks as to the merits of the unexhausted claim. This Court

2 As a matter of federal law, federal courts, upon petition,

are free to review alleged violations of constitutional rights

occurring in state courts. 28 U.S.C. §2254. Only out of comity

and federalism, and not of federal power, does a federal habeas

court respect the decision of the state court. Wainwright v.

Sykes, 433 U.S. 72, 81-83 (1977). In regards to state procedural

rules constituting a bar to review on the merits in the state

court, such state procedural rules will not be respected by the

federal habeas court if they are not independent and adequate.

Sykes, 433 U.S. at 82.

3

The Court of Appeals also recognized that under Rose,

Reynolds “may choose to ‘proceed only with his exhausted claims and

deliberately set[] aside his unexhausted claims...' 455 U.S. at 520-

21.° App. 26 n. 22.

admonished that, absent special circumstances, the Court of Appeals

should avoid any implication on the merits of a claim that is not

ripe for federal review. 404 U.S. at 54.

The Reynolds case presents a compietely different legal

scenario. The Third Circuit did not determine that Reynolds failed

to exhaust his state remedies. In fact, the court found that

Reynolds had exhausted state remedies regarding the due process

claim that was barred from review in the state court by the

inadequate state procedural rule. With regard to Reynolds other

habeas claim, his Sixth Amendment ineffective assistance claim, the

Court of Appeals made no determination on exhaustion, it simply

remanded the matter to the District Court with a direction to

determine if these claims had been sufficiently exhausted.‘

Furthermore, the Court of Appeals did not express a view on the

"merits" of any claims, it simply indicated that because of the

state's inadequate procedural bar, Reynolds could obtain review by

the district court on the merits of his due process claim arising

from improper prosecutorial remarks.

The state simply cannot and does not cite any High Court

authority which would suggest that the Third Circuit's declaring

Delaware's procedural default rule inadequate at the time of

Reynolds' trial and remanding the matter on an issue of exhaustion

was improper.

Finally, the State claims that state and federal judges will

“struggle with the meaning and scope” of the Third Circuits’

opinion and fear a floodgate of habeas petitions from the

4 The Court of Appeals, however, quite accurately noted:

We recognize that, where the State has not raised nonexhaus-

tion as a defense and where there are no “unresolved question(s) of

fact or of state law [that] might have an important bearing” on the

Claims, Granberry v. Greer, U.S. » 107 S. Ct. 1671, 1675

(1987), we can reach the merits of the unexhausted claims. However,

we feel that a remand to the district court for determination of a)}

unresolved issues, including exhaustion, is appropriate in this

case.

App. 28 n. 23.

prison. A careful, reflective reading of the opinion exposes

its underwhelming scope as precedent. The opinion merely identifies

Delaware law as it existed at the time of Reynolds’ purported waiver

and concludes that this body of law did not provide for a default

rule sufficient to bar merit review of his due process claim.

Surely, our judiciary is capable of recognizing the limited impact

of Reynolds and can analyze future habeas applications with refere-

nee to the later developed judicial precedent at the time of those

purported waivers.

2. The Question of When a Federal Court Can Review a

Habeas Petitioner's Federal Claims When the State

Court has Declined Review on Procedural Default

Grounds Has Been Settled By this Court and Does Not

Warrant Review on Writ of Certiorari.

The State next makes a strained argument that certiorari should

be granted because this Court has never examined the nature and

scope of a federal habeas court's power to re-examine and overturn a

State court's finding that a prisoner defaulted a claim. However,

the state completely ignores the occasions where this High Court has

examined the proper deference a federal habeas court must accord

State decisions to. decline review of claims based on an adequate

State procedural ground.

The “adequate state ground” doctrine is not new to this Court.

As a matter of comity and federalism, and not of federal power, this

Court has long prohibited the federal courts from exercising habeas

corpus power in cases where the state decision has rested on an

independent and adequate state ground. Henry v. Mississippi, 379

U.S. 443, 446 (1965); Wainwright v. Sykes, 433 U.S. 72, 81 (1977).°

Specifically, this Court has held that a federal court may not

review a habeas petitioner's federal claims when the state courts

have declined to pass on the claims based upon an independent and

> The state maintains that the Court of Appeals has overturned

the State court's finding that a prisoner has procedurally defaulted

a claim. To the contrary, the Court of Appeals merely declared that

the state procedural bar, operating at the time of Reynolds’ trial

and direct appeal, was not an independent and adequate state ground

that would prevent federal habeas corpus review.

adequate state procedural ground, absent a showing of cause and

prejudice. Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v.

Sykes, 433 U.S. 72, 87 (1977).

Like most general rules, there is an exception. This Court has

repeatedly stressed that a state procedural rule is not entitled to

respect as an adequate and independent state ground unless the

procedural rule is “strictly or regularly followed.” Hathorn v.

Lovorn, 457 U.S. 255, 262-63 (1982); Barr v. City of Columbia, 378

U.S. 146, 149 (1964). This Court, in James v. Kentucky,

466 U.S. 341, 348 (1984), admonished that only state procedural

rules that are “firmly established and regularly followed...can

prevent implementation of federal constitutional rights."

Any inguiry into cause and prejudice under Sykes by this Court

has always been prefaced with a look to the procedural rule

constituting a bar in the state courts, Sykes, 433 U.S. 72, 87

(discussing Florida procedure); Murray v. Carrier, 477 U.S. 478,

482 (1986) (discussing Virginia Supreme Court Rule 5:21); Reed v.

Ross, 468 U.S. 1, 7-8 & n.5 (1983) (discussing North Carolina

procedure); Encle v. Isaac, 456 U.S. 107, 124-25 &6 nn. 26-27 (1982)

(discussing Ohio Rule of Criminal Procedure 30); and “has consis-

tently held that the question of when and how defaults in compliance

with state procedural rules can preclude our consideration of a

federal question is itself a federal question.” Henry v. Mississip-

pi. 379 U.S. 443, 447 (1965).

With these decisions as precedent, the Third Circuit in Reynolds

not only properly inquired into the adequacy of Delaware's procedu-

ral default rule in determining whether federal habeas review would

be warranted, but also properly concluded that it was inadequate to

bar substantive review. It is abundantly clear that this Court has

considered on numerous occasions the deference a federal habeas

court must accord a state decision in the procedural waiver context,

and has fully outlined the parameters of this deference. Certiorari

is improper. The law is well settled and was properly applied in

the case at bar.

If we strip the gloss from the state's argument, we expose a

feeble attempt to conceal what the Third Circuit actually did in

this case. The Court of Appeals simply correctly applied the three-

prong analysis of Sykes.

Unfortunately for the State and unlike many other state in-

qQuiries, Delaware fell short on the first prong of the test. The

State had no “independent and adequate” procedural default rule

expressed in unmistakable terms at the time of Reynolds’ trial.

While the State complains that the Third Circuit invaded the

province of the State Court to make its own state law determina-

tions, the fair import of its actual request is that this High Court

review the Court of Appeals decision to see if it correctly iden-

tified State law within its particular jurisdiction.

3. The Third Circuit Correctly Determined that

Delaware's Procedural Default Rule was not an

Independent and Adequate State Ground so as to

Preclude Federal Habeas Review.

In the State's criticism of the Third Circuit's opinion, it

incorrectly charges the Court of Appeals with “rejecting” Delaware's

procedural default rule. The lower court simply held that the rule,

as applied to Reynolds, could not serve as an independent and

adequate state ground to justify barring federal habeas review on

the merits of Reynolds’ due process claim.® App. 24.

In its second assault on the Third Circuit the state, again

incorrectly, charges the court with “misreading” Delaware's decisio-

nal law when concluding that Reynolds claim should not be barred by

the law as it stood at the time of Reynolds trial and appeal.

Crediting no weight to the Sykes test at all, the state feels that

Delaware's general desire to follow federal default procedure was

sufficient notice to Reynolds in his state court trial regardless of

existing state law. In unearthing Delaware law at that time, the

Third Circuit concluded that the state law did not “unmistakeably”

© Prosecutor at Reynolds’ trial referred to an alleged confession

during his opening statement but never introduced that confession

into evidence. Defense counsel's failure to request and the court's

failure to issue sua sponte a limiting instruction or declare a

mistrial denied due process under the Delaware and United States

Constitutions.

provide a raise it or waive it notice in Reynolds' situation, App.

19, and that the application of the procedural default rule was not

consistently applied in the state, App. 23; both fatal under Sykes.

The Third Circuit painstakingly analyzed the Delaware procedural

default rule at the time of Reynolds trial and post-trial proceed-

ings applying the three prong Sykes test for adequacy. App. 10-24.

In contrast to Florida's procedural default rule scrutinized in

Sykes, the Third Circuit found Delaware's deficient. Florida's rule

passed Sykes muster because (1) the Florida rule “in unmistakable

terms and with specified exceptions required the motion to suppress

be raised before trial," 433. U.S. at 85; (2) that "all of the

Florida appellate courts refuse[a] to review petitioner's federal

claim on the merits after his trial, “id.; and (3) that “their

action in so doing [wa]s quite consistent with a line of Florida

authorities interpreting the rule in question as requiring a

contemporaneous objection." Id. at 85-86.

In the case sub judice, the fatal flaw in the first prong of

the analysis is the lack of a clear statement that certain objec-

tions are waived if not raised at trial or on direct appeai. App.

L319, Compounding the problem for the Third Circuit was the

Delaware court's repeated application of the default rule to

Reynolds' due process claim where it was previously only applied

sporadically. App. 19-24.

The Court of Appeals in applying the Sykes analysis, found (1)

that Delawere's purported procedural default rule as applied to

Reynolds did not state in unmistakable terms that Reynolds' waived

his due process claim by not raising it at trial or on direct

appeal, App. 19; (2) that the Delaware court's repeated application

of the default rule to Reynolds' due process claim throughout his

post conviction process might preclude habeas review, App. 23, if it

were not for the fact that (3) their action was inconsistent with

Delaware authority applying procedural waivers. App. 19-23. MThus,

the Court of Appeals correctly concluded that the relied upon rule

did not constitute an independent and adequate state procedural

ground barring review of the claim by the federal courts. App. 24.

In Reynolds, the purported procedural default rule operating as a

bar in the state courts developed in the case of Conyers v. State,

422 A.2d 345 (Del. 1980) (per curiam). In Conyers, the Delaware

Supreme Court applied the Sykes cause-prejudice test to a state post

conviction hearing pursuant to Rule 35 of the Delaware Superior

Court Rules of Criminal Procedure (Rule 35) based on a claim

entirely different from Reynolds' claim.

The Court of Appeals, when analyzing Conyers, under the first

Sykes factor, found that there was no precedent prior to Reynolds'

post conviction appeal, that the later decided Conyers, would apply

in the context of Reynolds case. App. 18-19. Therefore, Conyers, in

and of itself, could not serve as an adequate procedural default

rule to bar Reynolds' habeas consideration. App. 19.

Acknowledging the state's primary reliance on Conyers to bar

habeas relief, the Third Circuit further analyzed the post convic-

tion rule itself, Rule 35, and noted that it contained no prohibi-

tive language (as compared to other state rules) that claims raised

on post-conviction appeal for the first time would not be reviewed.

App. 15. Finding no other Delaware court rules on point, the

Circuit Court concluded that there were no procedural default rules

governing Reynolds' claim. App. 19.

The Court of Appeals then turned to the consistency analysis of

Sykes. Upon a complete examination of Delaware decisional law, it

concluded that procedural bars had been applied inconsistently to

Rule 35 ‘eteine prior to Conyers. App. 19-21.

The Circuit Court further refined its analysis by canvassing

Delaware claims first raised on direct appeal, specifically monitor-

ing the consistency with which default rules were applied. This

search revealed that Delaware routinely considers claims raised for

the first time on direct appeal. App. 22. Given the leniency with

which Delaware has applied its waiver rule, not only on post-

conviction claims but also on direct appeal, the Circuit had no

choice but to determine that, the application of the Conyers rule to

Reynolds' case was not consistent. App. 23.

The State next complains that the appeals court "misread"

Delaware law. To support this claim, it argues that since 1960

Delaware has exhibited a longstanding desire to follow federal

procedural requirements. Notwithstanding this argument, the state

fails not only to reconcile the inconsistent application of state

procedural defaults but also to cite any procedural rule that was

applicable to Reynolds at the time of his alleged waiver.

Finally, in what appears to be a tacit concession that the Third

Circuit's analysis of Delaware procedural default law is correct, it

proffers an argument not raised or briefed below. The State argues

that perhaps King v. State, 239 A.2d 707, 708 (Del. 1968) and State

v. Herhal, 307 A.2d 553, 555 (Del. Super. 1973) create a procedural

default rule applicable to Reynolds. ” It proposes that King and

Herhal stand for the proposition that if counsel made a tactical

choice not to object at trial or present the issue on appeal, the

claim was deemed waived. Assuming arguendo and notwithstanding the

fact that in both cases the court reached the merits of the so

called defaulted claims, both King and Herhal do not apply to

Reynolds for the following reasons.

In Herhal, the defendant failed to object to a search by motion

to suppress prior to trial. Before reaching the merits, the court

held that such a failure could preclude review of the constitutiona-

lity of the search. Reynolds' claim, by contrast, condemns prosecu-

torial misconduct arising from extensive references in the prosecut-

or's opening statement to two purported confessions which were later

withdrawn by the State from offer during a voluntariness hearing.

Nothing in the language of Herhal suggests that its purported waiver

penalty would operate outside the context of its limited suppression

application.

King is equally distinguishable from Reynolds on two scores.

King involved a waiver by the defendant of an evidence issue unlike

Reynolds' due process claim of prosecutorial overreaching. Secondly,

7 It must be stressed that the State and the Delaware Courts, at

the time of Reynolds' post conviction appeal, maintained that

Reynolds claims were procedurally barred only by the holding of

Conyers v. State, 422 A.2d 345 (Del. 1980) (per curiam).

King, through defense counsel, made an affirmative waiver at trial,

on the record. Reynolds and his counsel were silent. They waived

nothing. In distinguishing language that clearly could apply to

Reynolds case, the King court refused to decide the burden of proof

the on voluntariness issue by saying, "[t]he instant case is not a

case of silence and failure to object; this is, rather, a case of an

affirmative waiver." King, 239 A.2d at 708. No such record waiver

exists in Reynolds. Neither King or Herhal apply to Reynolds due

process violation, nor do they operate to bar federal habeas review.

The State would have this Honorable Court believe that the Third

Circuit again erred in its survey of Delaware law on the consistency

issue. All of the case law cited by the State attempting to show

the consistency, developed after Reynolds' trial and post-convic-

tion proceedings and could not have been of any guidance to Reynol-

ds. The Second and Fifth circuits have clearly held that "federal

courts should generally determine questions of procedural default

according to the habeas waiver law in effect at the time of the

asserted waiver and that retroactive effect should not be given to

such statutes.” Spencer v. Kemp, 781 F.2d 1458, 1469 (llth Cir.

1986) (en banc) [citations omitted]; accord Lumpkin v. Ricketts, 551

P.2@ 680, 6682 & n.2 (Sth Cir.), cert. denied, 434 U.S. 957 (1977).

The Third Circuit, citing Spencer and Lumpkin, similarly rejected

this argument, App. 22., cautioning that:

Even if we were to conclude that a new

Delaware procedural rule was created by

Conyers, we could not also conclude that

the rule barred collateral federal review,

where it was applied to claims other than

Rule 4l(e) claims for the first time in

the instant case.

App. 23.

The notion behind prohibiting retroactive application of waiver

rules is consistent with this Court's decision in NAACP v. Alabama

ex rel. Patterson, 357 U.S. 449 (1958). There, this Court held that

a state procedural bar would not be considered independent and

adequate where the criminal defendant

could not fairly be deemed to have been

apprised of its existence. Novelty in

procedural requirements cannot be

11

permitted to thwart [federal]

review...applied for by those who, in

justified reliance upon prior decisions,

seek vindication in state courts of their

federal constitutional rights.

Id. at 457-58; accord James v. Kentucky, 466 U.S. 341, 348-49

(1984); Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP vy.

Alabama _ex rel. Flowers, 377 U.S. 288, 301 (1964); Wright v.

Georgia, 373 U.S. 284, 290-91 (1963).

It was entirely proper for the Third Circuit to rest its

decision with regard to the consistency aspect of Sykes on the

Delaware case law that existed prior to the time of Reynolds'

alleged waiver. Decisional law developed after Reynolds' trial is

irrelevant to an analysis of the claims in the case at bar.

4. A Finding That the Defendant Deliberately By-passed

a Procedural Rule for Strategic and/or Tactical

Reasons Does Not Obviate the Need to Inquire into

Whether that Rule is Independent and Adequate.

While the State accuses the Third Circuit of disregarding

principles of law, it picks and chooses isolated principles and

dicta from twenty-five years of case law and attempts to apply them

in a piece-meal fashion to attack the Third Circuits analysis under

Sykes. The result deliberately ignores both the effect of later

decisions on previous general precedent and the ultimate refining by

this Court of a habeas analysis.

Under the guise of Fay v. Noia, 372 U.S. 391 (1963) and Henry v.

Mississippi, 379 U.S. 443 (1964) the state posits the notion that,

notwithstanding the adequacy of a state's procedural bar, a

defendant's conduct in foregoing an opportunity to present an issue

for tactical reasons is a sufficient basis for denying federal

habeas review. The state actually forms a substitute test for the

adequacy analysis of Sykes by arguing that the validity of the State

forfeiture is irrelevant if the defendant or his counsel exercised a

tactical decision not to raise a claim. A waiver presupposes the

existence of a clear message that the claim is defaulted if not

raised. The determination must first be made that a claim is

defaulted if it is not raised. There must be clear notice of the

procedural bar before any analysis of the motivations behind the

re

failure to raise the claim can be undertaken. The lessons of Sykes

and its progeny bear this out.

Although the state ardently fights the Third Circuit's

application of the three-prong Sykes test, Sykes clearly requires

that analysis before habeas relief is denied in the federal court.

Prior to reaching the cause and prejudice analysis®

, Sykes requires

an inquiry into the adequacy of the state procedural default rule

that would result in the barring of federal review. Sykes, 433 U.S.

at 81-86. This Court in Sykes made no inquiry into counsel's

motivations behind not raising a claim when scrutinizing the

“adequacy" of Florida's procedural rule. Instead, Sykes left this

consideration to the cause aspect of its newly enunciated "cause-

prejudice" test. 433 U.S. at 91, and n.14. When formulating the

“Cause-prejudice" test, the Sykes' court concern of preventing

defense counsel from flouting state procedures was well-addressed

under the later “cause" prong of Sykes and not under its initial

“adequacy" analysis. 433 U.S. at 90. Obviously and logically, the

Court had to determine the existence of a contemporaneous objection

rule consistent with the United States Constitution before it could

address any issue of waiver. The State has had to put the cart

before the horse in its convoluted attempt to convince this Court to

review the Third Circuit's decision.

The above reading of the Sykes analysis and the Third Circuit's

application to Reynolds is further bolstered by the court's decision

in Reed v. Ross, 468 U.S. 1 (1984). In Reed, as in Sykes, the Court

addressed its entire discussion of tactical procedural defaults

under the “cause" prong of the Sykes “cause-prejudice" test. 468

U.S. at 13. As Reed noted, the reasoning behind the Court's "cause"

inquiry is the notion of binding a defendant to the tactical

8 In Sykes, the Supreme Court dropped the "deliberate by-pass"

test of Fay v. Noia, 372 U.S. 391 (1963) in favor of the "cause-

prejudice" test. Under the “deliberate by-pass" test, a federal

court could refuse to review a defaulted claim where the applicant

had deliberately by-passed the orderly procedure of the state

courts. Under the Sykes "cause-prejudice" test, a defendant must

show “cause" for the non-compliance with the procedural rule and

make “some showing of actual prejudice resulting from the alleged

constitutional violation," Id. at 84, before a federal court will

overlook a waiver of claims in the state court.

13

decisions of counsel? Id. This Court also clarified in Reed that

defense counsel's motivations relating to a failure to raise a claim

are properly reviewable under the “cause" aspect of Sykes.

As both Sykes and Reed indicate, concerns about binding a

defendant to the tactical decision of counsel, concerns expressed

in Fay, 372 U.S. at 428-439, and Henry, 379 U.S. at 451,49 do not

get addressed or considered unless and until there is found a

procedural rule that penalizes these tactical decisions with a well

defined waiver of the claims that were not raised.

While the State maintains that the Third Circuits opinion

“stands in stark contrast" to this Court's analysis of similar

Situations, it is imminently clear that the Third Circuit's analysis

is accurate under the continuum of decisions preceding Sykes and

later decided cases. Only after the reviewing court has resolved in

the affirmative the question of whether the purported procedural bar

is independent and adequate, is it free to scrutinize counsel's

motivation for failing to raise a claim. If such motivation was

tactical, then "cause" under Sykes cannot be found. 468 U.S. at 14.

9 The State's tortured logic behind binding a defendant to a

tactical "waiver" when the very existence of a clear procedural

default rule defining the waiver is suspect, defies credulity.

10 The State, when torturing out of Fay and Henry a proposed

new test for determining when a federal habeas claim can be review-

ed, failed to point out that Fay, 372 U.S. at 439, required the

defendant to make a prior approval after consultation of counsel's

strategy and tactics before such strategy would preclude the accused

from asserting constitutional claims. Henry, 379 U.S. at 451,

required this consultation in exceptional circumstances before

defendant could be bound to counsel's strategy. Reynolds received

no such consultation regarding any of the “tactics" which resulted

in waiver.

14

CONCLUSION

For the foregoing reasons this Court should deny this

petition for writ of certiorari.

Respectfully submitted,

BEVERLY L. BOVE

COUNSEL OF RECORD

TOMAR, SELIGER, SIMONOFF, ADOURIAN

& O'BRIEN

Suite 1704, Mellon Bank Center

919 Market Street

Wilmington, DE 19801

Dated: October 20, 1988 (302) 655-0500

15

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 86-5633

GEORGE L. REYNOLDS.

Appellant

v.

JACK C. ELLINGSWORTH, WARDEN and

CHARLES M. OBERLY, IIl

On Appeal from the United States

District Court for the

District of Delaware

(D.C. Civil Action No. 86-0412 [8 2254))

Argued November 30, 1987

Before: WEIS. HIGGINBOTHAM and

MANSMANN, Circuit Judges.

(Filed March 31, 1988)

BEVERLY L. BOVE, ESQ. (ARGUED)

Tomar, Seliger. Simonoff, Adourian & O'Brien

Suite 1704, The Mellon Bank Center

919 Market Street

P.O. Box 955

Wilmington, DE 19801

Attorney for Appellant

App.1l