William H. FLAMER
v.
STATE OF DELAWARE, Darl Chaffinch, Raymond Callaway, Harold
K. Brode, William H. Porter, Gary A. Myers, Loren C. Meyers,
Dana Reed, James E. Liguori, Charles M. Oberly, III, Walter
Redman, Stanley W. Taylor, Acting Warden; Warden Robert Snyder,
William Henry Flamer, Appellant.
No. 93-9000.
United States Court of Appeals,
Third Circuit.
Argued Feb. 16, 1994.
Decided Oct. 19, 1995.
Charlene D. Davis (argued), Bayard, Handelman & Murdoch, P.A., Wilmington, DE, Joshua L. Simon, Law Office of David Staats, Wilmington, DE, for Appellant.
Gary A. Myers (argued), Deputy Attorney General, Delaware Department of Justice, Georgetown, DE, Paul R. Wallace, Carl C. Danberg, Department of Justice, Wilmington, DE, for Appellees.
Before: BECKER, HUTCHINSON,* and ALITO, Circuit Judges.
OPINION OF THE COURT
ALITO, Circuit Judge:
William Henry Flamer, whose first-degree murder conviction and death sentence were affirmed by the Delaware Supreme Court, took this appeal from an order of the district court denying his petition for a writ of habeas corpus. When Flamer's appeal was initially presented to this panel, he argued: (1) that his confession was obtained in violation of the Fifth and Sixth Amendments and therefore should have been suppressed; (2) that his trial counsel was constitutionally ineffective; (3) that the penalty-phase jury instructions violated the Eighth Amendment because they improperly implied that the jury's imposition of a death sentence would be reviewed by an appellate court; (4) that the penalty-phase jury instructions violated the Eighth Amendment because they referred to vague and duplicative statutory aggravating circumstances; and (5) that the district court record should have been expanded to include the criminal record of Flamer's accomplice, Andre Deputy. The fourth of these arguments was similar to an argument that was raised in Bailey v. Snyder, No. 93-9002, which was heard by another panel of our court while Flamer's appeal was under consideration by this panel. Before a panel opinion was filed in either case, the full court voted to rehear both cases for the purpose of addressing the shared issue. In this opiniоn, the panel that initially heard Flamer's appeal discusses and rejects all of Flamer's arguments other than the argument that was considered by the court in banc. The latter issue is addressed and rejected in a separate opinion that is being filed simultaneously on behalf of the in banc court. Therefore, the order of the district court denying Flamer's petition for a writ of habeas corpus will be affirmed.
I.
The bodies of Byard and Alberta Smith, an elderly couple, were discovered by their 35-year old son, Arthur, on the morning of February 7, 1979, in their home just outside Harrington, Delaware. Byard Smith had been stabbed 79 times, primarily in the head and neck. His wife, Alberta, had been stabbed 66 times. Both victims had been stabbed with two knives. The Smiths were found on the floor of the living room, surrounded by blood and overturned chairs. Byard Smith's pockets had been turned out and emptied. In the kitchen, packages of frozen food lay strewn about the floor. The Smiths' car and television set were missing.
Upon discovering the bodies, the Smiths' son immediately called the police. Within hours, the police located the stolen car and identified William Henry Flamer, a nephew of Alberta Smith, as a possible suspect. The police went to Flamer's residence, which he shared with his grandmother and his father, and Flamer's grandmother invited the police to search the home. In Flamer's room, they discovered packages of frozen food similar to those found on the floor of the Smiths' kitchen. The Smiths' television set and fan were discovered in the kitchen closet, and a blood-encrusted bayonet was found on a stand in the kitchen.
The police presented their evidence to a Justice of the Peace and obtained a warrant to arrеst Flamer for murder in the first degree. Acting on information that Flamer was in the Blue Moon Tavern on Route 13, the police discovered him walking near the tavern with two companions. Flamer had blood on his hands and clothing and fresh scratches on his neck and chest. The police arrested Flamer and brought his companions in for questioning. One of Flamer's companions, Ellsworth Coleman, was released soon thereafter. The other man, Andre Deputy,1 was found to be carrying several items belonging to the Smiths, including two watches and a wallet containing Byard Smith's driver's license, automobile registration, and Social Security card.
Flamer and Deputy were questioned, at times together and at times separately, from 4:00 in the afternoon until 7:00 or 8:00 that evening at Troop 5 in Bridgeville. The men gave conflicting accounts, each blaming the other for the murders. Miranda rights were read to Flamer several times during the interrogation, and each time, he waived his right to an attorney. Flamer claimed at a later suppression hearing that he repeatedly asked permission to call his mother so that she could contact Herman Brown, Sr., their family's lawyer, to represent him. However, this testimony was not credited by the Delaware courts, which found that Flamer did not request an attorney until his arraignment. See Flamer v. State ("Flamer IV "),
There was a snowstorm on the day of the arrest, and the Harrington Justice of the Peace had closed at 4 p.m. Rather than drive Flamer to Dover, which was the nearest available site for an arraignment, the police placed him in a cell in Troop 5 overnight. Without further interrogation, Flamer was brought before the Harrington Justice of the Peace in the morning for his initial appearance.
At the arraignment, Flamer was informed of the charges against him and was again informed of his rights. Flamer asked the magistrate whether he could call his mother in order to ask about possible representation by Herman Brown, Sr. The magistrate told him he would be able to do so but also appointed the Public Defender to represent him in the interim. Flamer was then committed to Sussex County Correctional Institution without bail.
After the arraignment, Flamer called his mother, Mildred Smith, the half-sister of Alberta Smith. Flamer's mother told him that Herman Brown, Sr. had retired. Flamer arranged to meet his mother at Troop 5 before he was taken to the correctional facility, and she spoke with her son briefly at Troop 5 after the arraignment. Soon after Mildred Smith's departure, Corporal Porter, one of the officers who had questioned Flamer a day earlier, addressed him as follows:
I asked him, I said, "Do you believe in God?" and he said, "Yeah." I said, "Then you got to believe in heaven and hell, right?" He said, "Yeah." I said, "Well, then you're going to burn in hell unless you get straight with me about what's happened today" or "what happened yesterday. I want you to tell me." I said, "You have to clear your conscience of what's going on" and this is when he started weakening up a little bit. He had some tears in his eyes and he said, "Okay, I'll talk to you." That's when I took him out of the cell.
Joint Appendix ("JA") at 1096. A short time later, Flamer confessed.
In his confession, which was given before he had consulted an attorney, Flamer gave the following account of the murders. After a day of drinking, he and Andre Deputy went to the Smiths' house just before midnight in order to rob them. Id. at 32. They brought with them a bayonet, a smaller knife, and a shotgun, and they hid the shotgun outside the Smiths' home. Flamer carried the smaller knife, and Deputy concealed the bayonet under his coat. In order to gain entry to the Smiths' home, Flamer told Alberta Smith that his grandmother had had a stroke and was missing. Id. at 32. Flamer and Deputy stood just inside the house speaking to the Smiths for about ten or fifteen minutes until Flamer, acting on a signal from Deputy, began to stab Byard Smith with the smaller knife, which he later threw away when he was stopped by the police on Route 13. Id. at 33-34. After Flamer began stabbing his uncle, Deputy began to stab Alberta Smith with the bayonet. At some point, Deputy also stabbed Byard Smith with the bayonet. After the couple died, the two men searched the bodies for money and found four wallets. Id. at 36. They fled in the Smiths' car, which they had loaded with property stolen from the house.
The two men drove to Flamer's home, where they stored some stolen items and burned three of the four wallets that they had taken from the Smiths. (The fourth was recovered from Deputy when the men were arrested.) Id. at 36. Flamer left his home alone in the Smiths' car. Outside Felton, Delaware, he became so drunk that he fell asleep. When he awoke, the car's battery was dead. Id. at 36-37. He abandoned the car, went to the Blue Moon Tavern to meet Deputy and to shoot pool and drink, and he was arrested a few hours later.
Flamer was tried before a jury in 1980 on four charges of murder in the first degree,2 possession of a deadly weapon during the commission of a felony, first-degree robbery, and misdemeanor theft. Id. at 648. Among the witnesses at the trial was the state medical examiner, who had performed autopsies on the bodies of Alberta and Byard Smith. The medical examiner testified that both bodies had been stabbed with two different weapons, a bayonet and a smallеr knife described as a kitchen paring knife. Id. at 1070-72. She testified that 19 of the wounds on Byard Smith were made by the bayonet, eight were from the paring knife, and 52 could have come from either weapon. Regarding Alberta Smith's wounds, the medical examiner testified that 25 wounds were inflicted by the bayonet, two by the paring knife, and 39 could have come from either weapon. Id.
The jury convicted Flamer on all charges, id. at 1416-17, and the trial then proceeded to the penalty phase. Defense counsel called as witnesses the defendant, his mother, and his grandmother. Defense counsel introduced into evidence the reports of a psychologist and psychiatrist who had examined Flamer. Id. at 59-63, 65-67. Both reports concluded that Flamer seemed to be of low but normal intelligence, with no symptoms of psychosis or other mental illness, and would be competent to assist in his own defense and to stand trial. The psychiatrist's report diagnosed Flamer as an alcoholic, and stated that he had admitted being intoxicated at the time of the murders. After deliberating for about two hours and twenty minutes, the jury returned and imposed a penalty of death for each of the murder convictions.
In February 1983, the Delaware Supreme Court affirmed Flamer's convictions on direct appeal, but withheld decision on the death sentences pending the resolution of two death-penalty cases before the United States Supreme Court. Flamer I,
In June 1986, Flamer filed a motion for state post-conviction relief pursuant to Delaware Superior Court Criminal Rule 35(a),3 asserting various claims, including ineffective assistance of counsel and some issues that he had raised on direct appeal. This motion was denied, and Flamer appealed the denial to the Delaware Supreme Court. In February 1988, the Delaware Supreme Court issued an order consolidating Flamer's two post-conviction relief petitions and remanded to the Superior Court for a second post-conviction hearing pursuant to its newly promulgated Rule 61.4 Flamer v. State ("Flamer II "), No. 216, 1987,
In addition to his state post-conviction relief petitions, Flamer filed a federal habeas petition in August 1987. In July 1989, this petition was stayed because Flamer had not yet exhausted his state post-conviction remedies. Once the Delaware Supreme Court affirmed the denial of Flamer's state petition, the federal stay was lifted. In October 1991, Flamer filed his third amended petition in the district court. In June 1993, the district court denied that petition. Flamer v. Chaffinch,
II.
Several of Flamer's arguments are based on the confession that he gave shortly after his arraignment. Flamer argues that this confession should have been suppressed under the Fifth and Sixth Amendments. Because the legality of the questioning thаt led to this confession is central to several of Flamer's claims, we will address this question first. Our analysis is divided into two parts. First, we will address whether the police violated Flamer's rights under the Sixth Amendment. Then we will consider whether they violated his Fifth Amendment rights.
A. The Sixth Amendment Right to Counsel
As noted, Flamer asked for counsel at his arraignment. By subsequently questioning him and obtaining the confession at issue, Flamer contends, the police violated his Sixth Amendment right to counsel. Flamer advances two theories to support this argument. First, he argues that his confession should have been suppressed under Brewer v. Williams,
1. In Brewer, the defendant, a "deeply religious" escapee from a mental institution,
The Supreme Court held that the Sixth Amendment required the suppression of the evidence elicited by the "Christian burial speech." Because judicial proceedings against Williаms had begun, the Court noted, he had the right to the assistance of counsel. Id. at 398,
Despite Williams' express and implicit assertions of his right to counsel, Detective Leaming proceeded to elicit incriminating statements from Williams. Leaming did not preface this effort by telling Williams that he had a right to the presence of a lawyer, and made no effort at all to ascertain whether Williams wished to relinquish that right. The circumstances of record in this case thus provide no reasonable basis for finding that Williams waived his right to the assistance of counsel.
The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not.
Id. at 405-06,
In this case, the Delaware Supreme Court carefully applied the legal standard set out in Brewer and concluded that Flamer had made a valid waiver of his right to counsel. Flamer I,
[W]e see the defendant as a twenty-five year old male who reached the eleventh grade of school, a convicted felon, and one who at thе outset informed the police he knew his rights. There is no contention that he was not on numerous occasions given his constitutionally required rights as set forth in Miranda v. Arizona,
Flamer I,
Reviewing the waiver question de novo, thе district court reached the same conclusion,
2. We thus turn to Flamer's argument that his post-arraignment confession must be suppressed under Michigan v. Jackson. In that case, the Supreme Court held that under the Sixth Amendment, "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid."
The Supreme Court has explained Teague's nonretroactivity principle as follows:
The nonretroactivity principle prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final. See, e.g., Stringer v. Black,
"[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane,
See Gilmore v. Taylor, 508 U.S. ----, ----,
Caspari, --- U.S. at ----,
The first of these exceptions applies to decisions that decriminalize " 'certain kinds of primary, private individual conduct beyond the power of the criminal-law making authority to proscribe.' " Teague,
Proceeding in accordance with the three steps outlined in Caspari, we first note that Flamer's conviction and sentence became final for Teague purposes on October 7, 1985, when the Supreme Court denied his petition for a writ of certiorari to review the decision of the Delaware Supreme Court upholding his conviction and death sentence on direct appeal. See Caspari, --- U.S. at ----,
Advancing to the second step, we note that Jackson had not been decided on that date.6 We must therefore survey the pre-Jackson legal landscape and determine whether a state court would have felt compelled by existing Sixth Amendment precedent to apply the Jackson rule even before it was embraced by the Supreme Court. Addressing this question in Collins v. Zant,
Flamer argues that the decision in Jackson was "expressly foreshadowed" by Maine v. Moulton,
Flamer next argues that the following court of appeals decisions dictated the Jackson rule: Felder v. McCotter,
Flamer's final argument in support of the conclusion that Jackson did not announce a "new rule" is that the Delaware Supreme Court's own decision in Deputy v. State,
In the Sixth Amendment context, once the adversarial judicial process has begun, [the] defendant is entitled to the presence of counsel during police interrogations as a matter of inherent right. Therefore, the only means by which waiver could be established, and still remain consistent with the Fifth Amendment waiver analysis, would involve some form of affirmative overt action by the defendant which indicated his willingness to talk to law enforcement officers.
Id. at 591. We see at least three major flaws in Flamer's argument that Deputy dictated the adoption of the Jackson rule.
First, it does not appear that the Delaware Supreme Court interprets its decision in Deputy as adopting a Jackson-like rule. In affirming the denial of Flamer's petition for postconviction relief, the Delaware Supreme Court decided, as a matter of state law, to adopt the Teague nonretroactivity rule for use in state postconviction proceedings. See
Second, we do not interpret Deputy as a foreshadowing of Jackson, but as an application of the totality-of-the-circumstances test set out in Brewer. The court in Deputy distinguished the factual circumstances of Deputy's confession from those of Flamer's confession, id. at 591-92 n. 15, in a manner that suggested it was applying a traditional Brewer analysis. Unlike Flamer, who was brought before a magistrate on the morning after the day of his arrest, Deputy was interrogated at Troop 5 on the morning of his arrest and was given a polygraph before being arraigned at 2:00 P.M. Id. Although the magistrate ordered that Deputy be committed to the Sussex County Correctional Facility at this time, he was brought back to Troop 5 and questioned for another eight hours. Deputy did not respond when he was asked whether he wished to speak with an attorney. Considering the totality of the circumstances surrounding the two confessions, the Delaware Supreme Court held that Deputy's confession had to be suppressed under Brewer, id. at 592, although it had earlier held that suppression of Flamer's confession was not required. See Flamer I,
Flamer contends that Jackson should nevertheless be applied retroactively because it fits within the second exception to the Teague principle. We disagree. This exception is limited to " 'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle,
We therefore hold that Jackson may not be applied retroactively in this case and that Flamer is not entitled to relief under the Sixth Amendment.
B. The Fifth Amendment right to counsel
Flamer also argues that his confession must be suppressed under the Supreme Court's decision in Edwards v. Arizona,
1. In support of the first of these arguments, Flamer maintains that he requested an attorney during custodial interrogation by asking to call his mother. The Delaware courts found, however, that Flamer did not ask for an attorney during the interrogation. On direct appeal, the Delaware Supreme Court wrote that "defendant did not request counsel at any stage of his interrogation." Flamer I,
Under the federal habeas statute, this court is bound by factual determinations made by a state court of competent jurisdiction unless one of the exceptions set out in 28 U.S.C. Sec. 2254(d) applies. Flamer relies on the exception in 28 U.S.C. Sec. 2254(d)(8) that applies if a state court's factual determination is not "fairly supported by the record." Deference is owed to the factual findings of a state appellate court as well as to those of a trial court. Sumner v. Mata,
Flamer testified at his suppression hearing, held before the Delaware Superior Court in a post-conviction proceeding, that on several occasions prior to his confession, he had asked permission to make a phone call. JA at 1861, 1862, 1864, 1865, 1867. However, Flamer's testimony that he asked for a lawyer during his interrogation was contradicted at the suppression hearing by several officers. See, e.g., Transcript of Suppression Hearing (Oct. 29, 1979), Testimony of Officer Chaffinch, JA at 120 ("Q: Did he [Flamer] ever ask for a lawyer? A: No. In fact, I asked him did he want to call one on a couple of occasions and he said no, indicating no."). In addition, Flamer acknowledged at the Rule 61 evidentiary hearing that he thought his Miranda rights had been read to him shortly after his arrest. JA at 2547. See аlso Transcript of Suppression Hearing (Oct. 31, 1979), Testimony of Officer Callaway, JA at 342 (stating that Flamer's rights had been read to him when he was arrested and again when he was first brought to Troop 5, and that on neither of these occasions did Flamer request an attorney). In light of this evidence, the state courts' findings that Flamer did not request an attorney are fairly supported by the record and are thus binding.13
2. Flamer also argues that he invoked his Fifth Amendment right to counsel at the arraignment, which occurred before his confession. At the arraignment, Flamer asked permission to call his mother "in order to inquire about bail and possible representation by counsel." Flamer IV,
Turning first to Flamer's request to call his mother "to inquire about ... possible representation,"
As for Flamer's contention that Edwards was triggered by his request for the appointment of counsel at the arraignment, this argument is foreclosed by McNeil v. Wisconsin,
Under McNeil, Flamer's request for counsel at arraignment did not constitute an invocation of his Fifth Amendment right to counsel during custodial interrogаtion. Pursuant to this precedent, Flamer's request cannot "reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police."
In response to the state's reliance on McNeil, Flamer's reply brief first argues as follows:
McNeil stands only for the proposition that an accused's Sixth Amendment right to counsel does not preclude police initiated interrogations related to offenses distinct from those with which he or she is charged. This holding has absolutely no applicability in Flamer's case.
Reply Br. at 11. This brief later states:
McNeil simply stands for the proposition that an accused who has requested and been appointed an attorney at a bail hearing on specified charges has not invoked his right to have counsel present when questioned regarding other charges.
Id. at 25.
We disagree with this interpretation of McNeil, which must be based on one or both of the following propositions: (a) that McNeil addressed only the accused's Sixth Amendment right to counsel or (b) that the Fifth Amendment right to counsel is offense specific. Both of these propositions, however, are incorrect. As noted, McNeil addressed both the accused's Fifth and Sixth Amendment rights. Moreover, it is well established that the Fifth Amendment right to counsel during custodial interrogation (and the Edwards rule, which is based on this right) are not offense specific. As the Supreme Court clearly stated in McNeil,
The Edwards rule ... is not offense specific: Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson,
See also Alston v. Redman,
Once it is recognized that the Fifth Amendment right to counsel and the Edwards rule are not offense-specific, it becomes clear that McNeil stands for the proposition that a request for an attorney at arraignment is, in itself, insufficient to invoke the Fifth Amendment right to counsel at subsequent custodial interrogation--even if that interrogation concerns the offense on which the defendant was arraigned. In McNeil, as noted, the defendant requested counsel at his arraignment on the West Allis charge. If this request had constituted the invocation of the Miranda right to counsel with respect to future custodial interrogation concerning the West Allis offense, this request would have likewise restricted future custodial interrogation concerning any other offenses, including the Caledonia offense, because "[o]nce a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present." McNeil,
only when the suspect "ha[s] expressed" his wish for the particular sort of lawyerly assistance that is the subject of Miranda. Edwards, supra, at 484[,
McNeil,
In addition, even if Flamer's argument were not directly controlled by McNeil, we do not believe that his argument could survive Teague 's nonretroactivity principle. In answer to the respondent's reliance on Teague in the district court, Flamer's opening brief states that many of his arguments concerning this question "parallel [his] Jackson 'new rule' argument," and he cross-references the portion of his brief that contends that Jackson was not a "new rule." See Appellant's Br. at 57. We have already concluded, however, that Jackson was a "new rule," and consequently this conclusion seriously undermines Flamer's contention that his invocation of his right to counsel at arraignment prohibited any subsequent police-initiated questioning about any offense without counsel present. Prior to Jackson, no such rule was dictated by existing precedent. Indeed, we are not aware of any precedent that dictates the adoption оf such a rule even today. Adoption of such a rule would extend both Jackson (by making it non-offense-specific) and Edwards (by making the invocation of the right to counsel at arraignment sufficient to trigger an accused's Fifth Amendment rights). Such an extension, like Jackson, see supra pages 722-26, and Edwards, see Solem v. Stumes,
III.
Flamer contends that he is entitled to a new trial because he was given constitutionally ineffective assistance by the attorney who represented him in his original trial and direct appeal, Dennis Reardon. Flamer rests his argument on the following alleged errors of his attorney: (1) failure to seek suppression of the confession on Fifth and Sixth Amendment grounds; (2) failure to present a "unified" defense theory; (3) inadequate cross-examination of the medical examiner; (4) calling Flamer to testify; (5) failure to make a closing argument in the guilt phase of the trial; and (6) inadequate presentation of mitigating evidence and a cursory closing in the penalty phase of the trial.
In Strickland v. Washington,
Judicial scrutiny of counsel's performance must be highly deferential ..., [because] [i]t is all too tempting for a dеfendant to second-guess counsel's assistance after conviction or 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, the defendant must show that counsel's ineffectiveness was prejudicial. Id. at 692,
Under our decisions, a criminal defendant alleging prejudice must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." ... Thus, an analysis focussing solely on the mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.
Id. (citation and footnote omitted). Applying these standards, we will address each of the errors alleged by Flamer.
A. Admission of Flamer's confession
Flamer alleges that his attorney rendered constitutionally deficient assistance because he failed to investigate the circumstances of Flamer's confession and failed to move to suppress the confession before trial. As we discussed above, however, admission of the confession did not violate Flamer's rights under the Fifth or Sixth Amendment and, in light of this conclusion, Flamer's ineffective assistance of counsel argument must fail.
First, it seems clear that Flamer's trial attorney did not render constitutionally deficient assistance by failing to seek relief--suppression of the confession--that was not warranted under the law as it existed before Flamer's conviction became final. Second, Flamer was not prejudiced by counsel's performance because he would not have been entitled to suppression of the confession even if that relief had been sought. The possibility that the trial judge might have erroneously ruled in Flamer's favor had a motion to suppress been made--and there is nothing to suggest that the judge would have made such an error--does not establish prejudice under Strickland. "A defendant has no entitlement to the luck of a lawless decisionmaker." Strickland,
B. Failure to pursue a "unified" theory of defense
Flamer claims that Reardon was constitutionally ineffective because he failed to develop or pursue a theory of the case that was uniform throughout the guilt and penalty phases of the trial. In response to this argument, the Supreme Court of Delaware wrote:
We adopt the finding of the Superior Court which concluded that Flamer's claim is contradicted by the evidence. Reardon's strategy was to raise doubt in the State's case against Flamer by asserting that Deputy, rathеr than Flamer, was responsible for the homicides.... Reardon's performance was within the wide range of reasonable professional assistance.
On the record presented, the Court concludes that a unified defense was presented and while trial counsel may not have been the best advocate, his performance was within the standards required by Strickland. Further, as found by the state court, the evidence against Flamer even absent his confession was so overwhelming as to prohibit any conclusion of prejudice on collateral review.
Whether Reardon formulated a "unified" theory is a question of fact, and we are therefore bound by the findings of the state courts, unless one of the exceptions set out in 28 U.S.C. Sec. 2254(d) is met. Flamer seems to suggest that the exception in 28 U.S.C. Sec. 2254(d)(8) applies, because the state courts' findings are not fairly supported by the record, but we find it unnecessary to reach this question.18 Even if Reardon never formulated a "unified" theory, that in itself would not constitute ineffective assistance of counsel.
It seems quite obvious that a defense attorney's performance need not be based on some grand overarching theory in order to meet constitutional requirements. "There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland v. Washington,
Thus, even if Reardоn did not have a single "unified" theory, it does not necessarily follow that his performance was deficient. Whatever other strategy or strategies Reardon might have also had in mind, the record is plainly sufficient to show that he attempted during the guilt phase to exploit weaknesses in the state's case and to cast blame on Deputy and that he sought during the penalty phase to elicit pity for Flamer. In view of the evidence with which Reardon had to contend, such an approach hardly seems unreasonable.
At all events, we believe that it is Reardon's actual performance at trial, rather than his pretrial strategizing, that is most pertinent. As the Supreme Court has stated, "there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the burden of guilt." United States v. Cronic,
In this connection, Flamer complains that Reardon did not do enough to shift blame to Deputy. We will discuss the penalty phase below, but with respect to the guilt phase we see no merit in this argument. Flamer refers to Deputy's prior criminal convictions, but he does not explain how Reardon could have secured the admission of these convictions at the guilt phase. See Del.Uniform Rule of Evid. 404(b). He also suggests that Reardon should have emphasized the following facts:
Deputy was from the city. Flamer was the product of a small town. Deputy was older and larger and more violent than Flamer. Deputy had the victims' belongings on his person when arrested.
Appellant's Br. at 30. In view of all of the evidence in this case, these facts strike us as having only a modest potential for benefiting Flamer. We are not prepared to hold that Rеardon violated the Sixth Amendment by failing to exploit them.
Furthermore, even if evidence regarding Deputy could have been presented more effectively, we do not believe that Flamer was prejudiced by the failure to do so. Flamer was confronted by overwhelming physical evidence connecting him to the crime. In his confession, he admitted that it was he, not Deputy, who initiated the stabbing. In addition, Flamer was the Smiths' nephew, and it was that relationship that enabled Flamer to talk his way into their home in order to murder them. Although Deputy, unlike Flamer, had a violent criminal record at the time of the slayings, we do not believe there is a "reasonable probability" under Strickland,
C. Cross-examination of the medical examiner
Flamer asserts that Reardon did not cross-examine the medical examiner adequately in that he "failed to inquire whether the wounds on the victims could have been inflicted by a third weapon even though Flamer had mentioned ... a third weapon in the taped statement." Flamer's Br. at 32-33. Flamer argues that by eliciting testimony regarding a possible third weapon, Reardon could have created reasonable doubt regarding Flamer's guilt on the intentional first-degree murder count.
This claim is highly speculative. First, although Flamer did confess to the police that he had disposed of another knife in addition to the one with which he admitted stabbing his uncle, JA at 33-34, Flamer did not say that this knife was present during the murder; nor did he ever suggest that Deputy had used it or even knew of its existence. In order to create a reasonable doubt using a "third-knife" theory, Reardon would have needed to establish sоme probability that each of the following things occurred: (1) a third knife such as the one described by Flamer in his confession could have produced some of the wounds found on the bodies of the two victims; (2) this third knife was brought to the Smiths' home; (3) Deputy elected to discard his bayonet in favor of a smaller knife in the midst of stabbing the two victims; and (4) Flamer did not use this knife. Even if Reardon succeeded in making all this seem possible, however, he still would have needed to contend with the fact that Flamer's confession does not mention any of this in discussing the murder.20
We believe that the strategy now proposed by Flamer was extraordinarily unlikely to succeed. Therefore, we cannot say that it was constitutional error for Reardon not to pursue it.
D. Calling Flamer to testify
Flamer also assigns error to Reardon's decision to call him as a witness in his own defense. Flamer's testimony at trial contradicted his prior statements, which made him appear not credible, he now says. At trial, Flamer testified that Andre Deputy woke him up on the night of the murder and brought him to the Smiths' house to help steal frozen food. JA at 1275-1276. Flamer testified that when he asked Deputy where the Smiths were, Deputy told him, "Never mind about that." Id. at 1276. Soon after, Flamer testified, he saw the dead bodies in the living room. Id. at 1277-78, 1280. Flamer's story was badly damaged on cross-examination.
At the Rule 35 hearing held in September 1986, Reardon testified that he felt it was important for Flamer to testify. As he explained:
Through the years of criminal law, defense of criminals, I have had occasions on many times to talk to different judges of the Superior Court and in this case--if my memory serves me correctly, present Chief Justice Christie in a case many, many years ago in chambers, and I believe it was in Wilmington, told me that he has really never presided over, or maybe one or two cases he has presided over, where a jury found a defendant not guilty who did not testify and I put that in my memory bank and I have used it ever since knowing full well that if a person doesn't testify they are very likely to be found guilty. William and I discussed it and decided that he should testify and he did testify.
Id. at 1903-04. Reardon's belief that a defendant is unlikely to be acquitted unless he takes the stand is one that is widely shared by practitioners. Thus, as a general matter, we do not think it is unreasonable for a defense attorney to proceed on the basis of this belief, particularly in a case such as this where the prosecution's evidence is very strong.
If Flamer was harmed by his testimony, this was probably owing to the fact that he perjured himself. Flamer, however, has never suggested that it was Reardon's idea for him to testify as he did, and Reardon cannot be faulted for Flamer's decision to testify falsely. Indeed, the Delaware Supreme Court seems to have concluded that Flamer's testimony departed from the version of the events that he had previously told Reardon. See Flamer IV,
E. Waiver of closing argument
Flamer also argues that his attorney violated the Sixth Amendment by failing to give a closing argument in the guilt phase of the trial. In the Rule 35 post-conviction hearing, Reardon testified that this had been a conscious strategy on his рart to avoid a devastating rebuttal from the prosecution. Id. 1906-09. Specifically, Reardon stated that in "dozens" of cases, he had seen Flamer's two prosecutors give a simple and relatively brief closing statement followed by a lengthy rebuttal after the defense had closed. Id. at 1909. Reardon also stated that after the trial, one of the prosecutors "said he was prepared for two to three hours of rebuttal." Id. at 1907.
The Delaware Superior Court accepted Reardon's explanation, Id. at 426, and the state Supreme Court found that there was adequate record support for this finding. Flamer IV,
The Superior Court found that Kent County prosecutors at the time of Flamer's trial were said to be routinely holding back their major arguments in summation until after the defense had given its closing argument to the jury. The Superior Court further found that Reardon's choice to omit a closing argument was made after Reardon assessed the prosecution's opening argument as having little impact on the jury. When this assessment and the waiver of closing argument are viewed in light of the "sandbagging" practice said to be utilized during rebuttal by Kent County prosecutors, such a waiver was within the wide range of reasonable professional assistance.
Id. at 754-55.
Flamer argues that the state court's finding is not fairly supported by the record and that Reardon's testimony at the post-conviction hearing was concocted to justify "what would otherwise appear an utterly inexplicable act." Appellant's Br. at 40. We reject this argument. For one thing, we believe that the state court was entitled to credit the testimony that Reardon gave at the post-conviction hearing. Moreover, despite Flamer's attack on Reardon's credibility, the prosecutorial tactic to which Reardon referred is substantiated by Bailey v. State,
Whether Reardon's decision was reasonable, however, is a question of law that we must decide separately. Horton v. Zant,
Furthermore, Flamer has not shown that he suffered any actual prejudice, for there is no reasonable probability that he would not have been convicted even if Rеardon had presented a dazzling closing argument.
F. Alleged errors in penalty phase
Flamer asserts that Reardon made two serious errors in the penalty phase of the trial: (1) he failed to investigate, develop, present, and argue mitigating evidence and (2) his closing argument was deficient. The standards for determining whether counsel has been ineffective in a capital sentencing proceeding are identical to the standards for the guilt phase of the trial. Strickland,
In his opening statement, Reardon began by informing the jurors that if they chose not to impose the death penalty, Flamer would remain in prison for life without the possibility of parole or probation. JA at 1480. Reardon then asked the jurors to examine carefully the reports of the psychiatrist and psychologist, noting that these two experts were employed by the state and not the defense. Id. at 1481. Reardon foreshadowed the testimony of his three witnesses by stating that Flamer had been "a good son" and "a good grandson," whose life had been destroyed by alcoholism. Finally, Reardon argued that Flamer's "dull normal" intelligence had rendered him particularly susceptible to the influence of "a strong personality" such as that of Andre Deputy. Id. at 1482.
Reardon introduced the written reports of a psychiatrist and a psychologist into evidence. Id. at 59-63, 65-67. Both reports concluded that Flamer was of low but normal intelligence, without symptoms of psychosis or other mental illness. The psychiatrist diagnosed Flamer as an alcoholic and stated that he had admitted being intoxicated at the time of the murders.
Reardon called three penalty-phase witnesses. Id. at 1432-57. Flamer himself described his life, with particular attention paid to his drinking problem. He told the jury about his brief marriage, which had ended in divorce, and his three-year old daughter. He stated that he had had trouble finding steady employment, but that he would do odd jobs and part-time work whenever he had an opportunity to do so. He also described the day of the murder, a day that he had spent drinking heavily with friends. Next, Flamer's mother, Mildred Smith, testified. Although Flamer had lived with his grandmother rather than his mother since he was five, Mrs. Smith testified that she saw her son nearly every day after work. She stated that he had been a good student until he quit school in the eleventh grade and began drinking heavily. She also said that his personality could sometimes change when he was drinking. Mrs. Smith discussed the failure of her son's marriage and the difficulty he had had finding steady work as a result of his criminal record.21 Finally, Reardon called Flamer's grandmother, Florence Benson, to testify. Mrs. Benson stated that Flamer had always been "a good boy," who had taken care of her by doing household chores. Id. at 1456.
The state presented no testimony and only one piece of evidence during the penalty phase--a certified record of Flamer's two felony convictions for check forgery.
1. Flamer argues that Reardon made three significant errors in thе development and presentation of penalty-phase evidence: (1) he did not seek out Flamer's school and medical records; (2) he did not call as a witness a psychiatrist or psychologist to explain the reports entered into evidence; and (3) he did not introduce evidence of Andre Deputy's history of violence in order to show that Deputy, rather than Flamer, was chiefly to blame for the murders.
With respect to Reardon's failure to seek out Flamer's school and medical records, we note that Flamer has not proffered any such evidence that he thinks would have helped to reduce his penalty. Therefore, Flamer cannot claim to have been prejudiced by Reardon's failure to introduce such evidence. See Zettlemoyer v. Fulcomer,
Flamer asserts that Reardon should have offered evidence regarding Andre Deputy's record of violence. As we discussed in Section III.B, Flamer was not prejudiced by Reardon's failure to present evidence of Deputy's criminal record in the guilt phase of the trial. Here, Flamer maintains that if the jurors had known more about Deputy, there is a reasonable probability that they would have concluded that Flamer, as the less aggressive of the two murderers, did not deserve to die. We disagree. As discussed eаrlier, it was Flamer, according to his own confession, who first stabbed Mr. Smith. In addition, it was Flamer, as the Smiths' nephew, who was able to gain entry to their home by telling them that his grandmother had had a stroke. Finally, it was Flamer who told the police that Deputy did not want to accompany Flamer into the Smiths' home, but had to be coaxed by Flamer into doing so. JA at 32. In light of these facts, we do not believe that Flamer has shown, as he must under Strickland,
2. Reardon's penalty-phase summation was very brief:
Good afternoon, your honor. Good afternoon, ladies and gentlemen. I am not going to review the evidence with you. You have heard it and you have heard it rehashed. I simply want to point out to you one important aspect.
There is a codefendant Andre Deputy. His fate is out of your control. You heard the testimony. You heard Mr. Flamer talk. What part did Andre Deputy play in this? You must consider that in making your determination as to whether or not you are going to take William Henry Flamer's life.
Other than that, please--you have heard his mom. You have heard his grandmom. You have the medical reports.
Ladies and gentlemen, although we are here today talking about murder, I am simply going to ask you to show mercy. Do not kill William Henry Flamer simply because the law and the state of Delaware say you can. There is a far, far greater law than anything conceived by this state and punished by this Stаte which tells you thou shalt not kill. Thank you.
JA at 1486-87.22
Flamer argues that this closing argument was constitutionally deficient, not only because of its brevity, but because it was "so ill-conceived that it hurt Flamer's sentencing prospects." Appellant's Br. at 48. We disagree. Although we cannot say that Reardon's closing argument was especially persuasive or well-crafted, we also cannot say it was so poor that it fell below the Strickland standard for objectively reasonable assistance. Furthermore, we hold that Reardon's failure to present a more effective summation did not prejudice Flamer, for we cannot say that there is a reasonable probability that, but for any errors, the jury would not have imposed a sentence of death.
Reardon was faced with several obstacles that limited his choices in framing a penalty-phase summation. First, the prosecution had offered virtually no penalty-phase evidence of its own. Given this, it may have been tactically wise for Reardon not to review evidence presented in the guilt phase of the trial, since this might have only reminded the jury of the violence of the crimes. Second, although Flamer argues that Reardon should have further emphasized the role of Andre Deputy, such an approach, as previously explained, would have involved certain difficulties. See pages 729-30, 733, supra. Finally and perhaps most importantly, Flamer had denied committing the murders in his testimony during the guilt phase of the trial. This prior testimony made it very difficult for Reardon to argue in the penalty phase that Flamer felt great remorse for the murders.
One court has remarked that a defense counsel's strategy in the sentencing phase of a сapital case should be "to appeal to just one juror who will hold out against the death penalty and thereby prevent it." McDougall v. Dixon,
IV.
Flamer argues that a portion of the jury instructions in the penalty phase was unconstitutional because it created the impression that appellate review of a decision to impose a sentence of death would be more expansive than is actually the case. In particular, Flamer claims the statutorily required jury instruction was improperly altered by the insertion of the word, "if": "Your unanimous recommendation for the imposition of the death penalty, if supported by the evidence, is binding on the Court." JA at 1464 (emphasis added).
We do not believe the inclusion of the word "if" changed the meaning of this jury instruction at all. The word "if" or some other qualifying preposition is implicit at the beginning of the phrase, "supported by the evidence." Moreover, elsewhere in the instructions the jury was told: "A finding by the jury of a statutory aggravating circumstance, and a consequent recommendation of death, supported by the evidence, shall be binding on this Court," Id. at 1461. These instructions were not misleading and did not violate the principle, set out in Caldwell v. Mississippi,
V.
Finally, Flamer argues that the district court erred in refusing to expand the record to include the criminal record of his codefendant Andre Deputy pursuant to Rule 7 of the Rules Governing Sec. 2254 Cases in the United States District Courts.23 Rule 7 permits the expansion of a record for relevant evidence. Flamer argues that the evidence is relevant because it bears on the competence of his attorney, who did not present much evidence of Deputy's past during the guilt and penalty phases of the trial. We review the district court's decision on this question for abuse of discretion only. Levine v. Torvik,
We do not believe the district court abused its discretion in refusing to expand the record to include evidence regarding Deputy's criminal past, particularly in light of the fact that this evidence was available to Flamer during the state proceedings.24 Deputy's criminal record would not have aided the district court in determining whether Reardon provided ineffective assistance of counsel. We therefore hold that it was not an abuse of discretion for the court to refuse to expand the record to include this material.
In addition, Flamer argues that the district court erred in refusing to expand the record to include Deputy's confession, which Flamer argues is relevant to the question of whether Flamer's own confession was admissible. As discussed earlier, the circumstances surrounding Deputy's statement are distinguishable from those surrounding Flamer's statement. Moreover, the statement itself has no bearing on whether Flamer's confession was admissible. Therefore, the court did not abuse its discretion in refusing to expand the record to include Deputy's statement.
VI.
For the reasons stated above, the order of the district court will be affirmed.
Notes
Judge Hutchinson participated in the panel argument and conference, but died before this opinion was filed
See Deputy v. Taylor,
Del.Code Ann. tit. 11, Sec. 636(a), provides in pertinent part as follows:
A person is guilty of murder in the first degree when:
(1) He intentionally causes the death of another person;
(2) In the course of and furtherance of the commission or attempted commission of a felony or immediate flight therefrom, he recklessly causes the death of another person.
Flamer was tried on both of these theories of first-degree murder for each of his two victims.
Rule 35, which was superseded in 1988 by Rule 61, permitted a court (a) to correct an illegal sentence at any time and (b) to correct a sentence imposed in an illegal manner upon motion within four months after sentence was imposed. Del.Super.Ct.Crim.Rule 35
Rule 61 "governs the procedure on an application by a person in custody ... under a sentence of this court to set aside a judgment of conviction on the ground that the court lacked jurisdiction to enter the judgment or on any other ground that is a sufficient factual and legal basis for a collateral attack upon a criminal conviction." Del.Super.Ct.Crim.Rule 61(a)(1). A motion for Rule 61 relief "shall specify all the grounds for relief which are available and of which the movant has, or, by the exercise of reasonable diligence, should have knowledge." Del.Super.Ct.Crim.Rule 61(b)(2). In addition to establishing routine procedures such as for the appointment of counsel and the timing and content of supporting briefs, Rule 61 permits the court to hold an evidentiary hearing or expand the record if necessary. See Del.Super.Ct.Crim.Rule 61(b)-(h)
Subsection (i) оf Rule 61 establishes the procedural bars to relief. Subsection (i)(1) limits the time in which to file a motion for postconviction relief to three years after the time the judgment of conviction becomes final or, "if it asserts a retroactively applicable right that is newly recognized after the judgment is final, [to no] more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court." Del.Super.Ct.Crim.Rule 61(i)(1). Subsection (i)(2) bars repetitive motions "unless consideration of the claim is warranted in the interest of justice." Del.Super.Ct.Crim.Rule 61(i)(2). Subsection (i)(3) establishes "procedural default" for "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction" unless there is "[c]ause for relief from the procedural default" and "[p]rejudice from violation of the movant's rights." Del.Super.Ct.Crim.Rule 61(i)(3). Likewise, subsection (i)(4) bars any claim previously adjudicated unless "warranted in the interest of justice." Del.Super.Ct.Crim.Rule 61(i)(4). Finally, subsection (i)(5) provides that the bars established in subsections (i)(1)-(3) do not apply to a claim the court lacked jurisdiction or to "a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Del.Super.Ct.Crim.Rule 61(i)(5).
The Court recounted the speech as follows:
"I want to give you something to think about while we're traveling down the road.... Number one, I want you to observe the weather conditions, it's raining, it's sleeting, it's freezing, driving is very treacherous, visibility is poor, it's going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl's body is, thаt you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all."
Jackson was decided approximately six months later, on April 1, 1986. See
Moulton was decided on December 10, 1985
In Moulton, the police knew that a defendant under indictment was planning to meet with his codefendant, a secret government informant, for the purpose of discussing the pending charges and planning a defense. The police therefore arranged for the informant to wear a body recorder, and they recorded the conversation. Relying chiefly on Massiah v. United States,
Jackson cited Moulton four times. See
Ledezma-Hernandez,
Although the Eighth Circuit in Eagle Elk,
Furthermore, we doubt that, as Flamer seems to argue, a rule can be old for Teague purposes in some states but new in others. Certainly, Flamer has not cited any precedent for this proposition. Accordingly, we hold, as has the Eleventh Circuit, that Jackson announced a "new rule."
The district court held that Flamer's Fifth Amendment claim was procedurally barred. See
Flamer asserts that these state court findings are flawed because no Edwards Fifth Amendment clаim was under consideration during the proceedings in which the factual determinations were made. Whether Flamer requested an attorney is a question of fact, however, and the validity of the state courts' findings is not affected because the courts were considering a somewhat different legal issue when those findings were made
Davis may be applied retroactively despite Teague v. Lane because Teague only applies to a change in the law that favors criminal defendants. Gilmore v. Taylor, --- U.S. ----, ----,
Like Davis, McNeil may be applied retroactively because McNeil did not work a change in the law favoring criminal defendants. See supra note 14
The Supreme Court was reviewing a decision of the Wisconsin Supreme Court that answered "no" to the following question certified by the intermediate state appellate court:
Does an accused's request for counsel at an initial appearance on charged offense constitute an invocation of his fifth amendment right to counsel that precludes police initiated interrogation on unrelated, uncharged offenses.
See
Although respondent expressly relied on Teague in the district court, their brief on appeal does not contain any such express reliance. Nevertheless, we believe it is appropriate for us to apply Teague. "[A] federal court may, but need not, decline to apply Teague if the State does not argue it." Caspari, --- U.S. at ----,
There is clearly some support in the record for the state courts' findings that Reardon's strategy throughout the case involved the casting of blame on Deputy. At the post-conviction hearing, Reardon testified that his strategy in the guilt phase was "[t]hat William [Flamer] didn't do it. That any participation William had was at the instigation of Andre Deputy. I think William's statement indicated that he did do some stabbing but he didn't cause any death." JA 2350. Consistent with this approach, at the penalty phase, Reardon referred to Deputy's role, albeit briefly, in his opening and closing
It is true that when Reardon was asked at the post-conviction hearing what his theory was at the penalty phase, he replied laconically that his theory was to present Flamer as "a poor uneducated drunk." JA at 2350. We are not persuaded, however, that this statement alone is sufficient to undermine the findings of the Delaware courts that Reardon's strategy at both phases of the trial involved the casting of blame on Deputy.
During the Rule 35 hearing, Reardon stated that he had discussed with Flamer prior to trial what they would be doing: "Basically what a criminal trial is all about; how it will proceed and what we shall do; what we shall attempt to do and that is to discredit during cross-examination." JA at 1897. Later, he described his strategy: "Our game plan as we expected one to be was certainly to pay as close attention as possible in trying to grasp ahold of any weakness the State might produce or leave out; mainly to try to demonstrate that William was, as he said, not the instigator, that Williams [sic] just happened to be along and got caught up into something that was out of his control." Id. at 1899
Q: You used your little knife to stab Byard? Who had the big knife?
A: Andre.
Q: And he used it to stab who?
A: He killed Aunt Alberta and then he was killing Byard.
Q: With the big knife?
A: Unhu.
Q: Did you ever have the big knife?
A: Did I ever have it?
Q: The whole time you was in the house during the stabbing you used the small knife and he used the big knife.
A: I used the small one.
JA at 43.
In 1975, Flamer was convicted of two counts of forgery
Though short, Reardon's closing argument in the penalty phase was longer than that of the prosecutor, who stated:
Ladies and gentlemen, my last remarks are going to be very brief. That same law thou shalt not kill pertains to William Henry Flamer. He had a free choice in this matter and the conduct that he took part in. His free choice has brought him here today. Please be fair.
All the state is asking is you consider all the factors in this case before your decision. Thank you.
JA at 1487.
In his brief, Flamer also argued that the court erred in refusing to unseal and admit into the record the results of his attorney's Censor Committee hearing. At oral argument before our court, however, Flamer's attorney stated that the documents had been unsealed, that she had seen them, and that she no longer wished to press for their inclusion. We therefore need not address whether the record should have been expanded to include this information
Absent extraordinary circumstances, a habeas petitioner may not seek an evidentiary hearing on the basis of records that were available to him during the state court's proceedings but that he did not present. Keeney v. Tamayo-Reyes,