George L. Reynolds v. Jack C. Ellingsworth, Warden and Charles M. Oberly, III

action courts. bring this her , January 1986 and will Purse died REYNOLDS, George Appellant L. probate January admitted was reply states that brief she 1986. Moore’s July 1, copy of the 1979 will on obtained ELLINGSWORTH, Jack C. Warden and represented that time she was 1986.7 At Oberly, Charles III. M. this had been filed. action counsel No. 86-5633. opportunity Consequently, she had an seeking a review avail herself Appeals, United States Court of Ann. tit. probate under Del.Code Third Circuit. 1309(a) (1987), provides as that statute § run- statute of limitations for a six months Argued Nov. 1987. proof time of ning from the will. Decided 1988. March fact that have not overlooked the April As 1988. Amended beneficiary under the will so bank is not a judgment against it money alone that a Rehearing Opinion on Denial of necessarily upsetting require would not Rehearing May En Banc 1988. probate proceedings. But this circum Quite stance does not alter our result. inequity from the obvious

aside if hold that the would result we were to of the will could be liable when scrivener be, could not the beneficiaries under it finding against the bank would be as much probate attack on the as that a collateral Anthony by Chancellor Seitz in

barred Harris, 34 Del.Ch. 100 A.2d at 229. There, judgment sought by the inter-

venors, pre will invalid thus that the was agreement by

cluding performance of an purchase property devised the defendant it, have entered could without under as the disturbing probate proceedings granted ade intervenors could have been Chancery quate by a dismissal of the relief action.8 But Chancellor Seitz barred invalid for he re claim that the will was pro garded attack on the it as a collateral proceedings. Similarly, judgment bate against case would be the bank as it

collateral attack would be inconsistent probate. with the admission of the will to Thus it is barred. 1987 will be order of October

affirmed. challenged specific performance denied will was void it could not revoke In fact as the plaintiffs convey good simple will. could fee marketable title. attorney By this Moore her have meant received it on that date. 2497, 2506, that, (1977), law, matter as a of federal reaching

bars district merits of this due claim. As to petitioner’s three claims of ineffectiveness counsel, however, we find that state remedies not have been exhausted. Accordingly, we will vacate the decision of the district court and remand matter proceedings. for further

I. George Reynolds, Lee John

Petitioner Young Preston Rooks Thomas were and all charged robbery in 1976 for the 1974 Snyder, murder of Frank a store owner in Milton, Delaware. Their arrest marked the protracted criminal culmination investi- gation large people, in number including many who were viewed sus- pects, questioned Snyder were about murder. three co-defendants were separately. tried opening During Reyn- his statement at prosecutor olds’s referred to Tomar, (argued), L. Seli- Beverly Bove in manner: confessions O’Brien, Simonoff, & ger, Adourian Wil- hear his You will evidence that co-con- Del., mington, appellant. for spirator held such a trance over de- (argued), Meyers C. Loren afraid fendant that the defendant was Justice, Del., Wilmington, Dept, ap- for you testify yet come forward and pellees. will hear evidence that sixteen months crime, speaking with after the after an- WEIS, HIGGINBOTHAM and Before he prison inmate about what knew other MANSMANN, Judges. Circuit talking this crime and after about father, receiving from his one counsel THE OF COURT OPINION James, got Lee he it off chest. Jessie Jr., HIGGINBOTHAM, A. LEON I police He the crime and told the about Judge. Circuit testimony believe that will reveal crime police told the about this court’s that he appeal centers on district This March, But, day it’s a the 28th default determination that statement, funny members the mer- kind of review of the state barred panel. the crime jury He tells about its of claims raised specific and he tells about the crime with challenging a state corpus writ of habeas things that no one could know detail of Peti- 28 U.S.C. conviction. § there, they about the unless details prosecutor’s exten- tioner asserts that revealed in crime that had never been opening in his statement sive references any He told of details publication. introduced were never two confessions that never been told the trial crime had evidence, failure of into instruction, or to newspaper radio station denied give a court to curative except investigating offi- anybody for the exists that there hold process. him due George Reynolds knew certain proce- Lee cers. adequate state “independent no Furthermore, Sykes, about that crime. details Wainwright ground,” dural interroga- in addition to these jury, contacted to these members tions, about crime that he knew details of the sixth amendment violation about, lied to us in he you will hear then, right argu- He counsel. without half the He us truth. addition. He told ment, his offer of these confes- withdrew Is he all of the truth— didn’t tell us sions App. into at 224-26. The evidence. March, the 31st telling us truth on hearing trial judge, argument after based you going to a little later on are because grounds, on fifth amendment ruled that the say George Reynolds he made hear Lee February of statements and were up to the reward. In other it all collect trial, T.T. at The admissible. 210. words, Reynolds George Lee retracted testimony through point that had heard of he story. his is it retracted his How regarding some twelve witnesses inconclu- retract, story can’t members of but he evidence, physical sive with resumed the panel, specific jury the those items that testimony police of a officer con- Delaware knowledge specific to crime are of the cerning February the contents of the George Reynolds Lee had he that when Id. at During and 223. 17 statements.2 up story”? “made that trial, the counsel course defense did Appendix (“App.”) at 171-173. give, nor did the a request, court limit- Thereafter, extensive mid-trial hear- ing regarding references instruction the admissibility the ing held determine was to opening the statement con- to Reynolds's February of statements fessions. and confessions and his March to to Reynolds The witness link the transcript (“T.T.”) 1976. Trial at and Cuffee, crime Miles a was himself former proceeding, testimony At 122-215.1 this suspect. trial, gave Prior to Cuffee regarding the elicited voluntariness was police at least seven different accounts of the March 28 and 31 confessions. addi- acquired knowledge how tion, prosecutor stipulate to he crime.3 appeared attorney may trial, French, po- not have At Detective a Delaware that Governing Proceedings changed Rule 5 of the clothes in Cuffee’s house. T.T. at 379- 1. Rules requires portions story Wheatley that relevant § Under 80. Cuffee's second to was that the state record be filed with state’s answer subjects had hidden in the bathroom next corpus. to the for writ of habeas See interview, subsequent In a door. Id. at 380. Sain, 293, 319, U.S. (1963). also Townsend v. that, Wheatley Cuffee told while Cuffee was "in Draper's,” a had seen blood on room he rule, complied fully this take with and we shoes, Young’s Reynolds’ Young and that and parts judicial notice of all relevant of the state Snyder had that he had in the told him hit face record, they appear or not whether bean can. with baked Id. at 384-86. Version parties joint appendix by prepared this to four was that Cuffee had returned home from a Zimmerman, Swanger appeal. 291, F.2d See trip clothing shopping find to ashes of burned (3d Cir.1984). Citations will be both bathtub, appeared, Young his after which had and, necessary, appendix where wearing bloody asking T-shirt borrow record. Reynolds’ shirt. Id. at 387. At Detective defense, Wheatley, testifying witness, for the recounted Perry, quali- had Detective been 2. This all of Cuffee's hearing expert "body four versions. lan- fied at the guage." as an 13, Reyn- February He that on testified February tapeA interview be- by body language that he had indicated olds police tween Detective French of knowledge of the incident.” "had some intimate played Reynolds’ also Cuffee was trial. Reynolds Perry testified at 239. then that T.T. tape T.T. on the at 396-441. first version “person this who committed stated that crime, that, shooting pool, was while Cuffee was he who lived in the man ... was black argument people had overheard an between two streets still ... on the Milton area and ... was camp to this "who came with blood them." free, pleased", going he id. at coming 120-21; App. at T.T. at Cuffee’s 398-417. next days Reynolds later "ex- few and that a version was that he had told an un- say going to plained he was to us was all Reynolds person known had driven the car Id. at be a snitcher.” because he didn’t want Snyder’s day store on the of the murder. 117; App. T.T. at 432. version His final was Reynolds version, himself had told Cuffee that he Detective as told to 3. Cuffee’s first 125; App. was driver of the T.T. at those car. February was that Wheatley on responsible Snyder homicide had officer, regarded be Reynolds Cuffee’s as evidence. lice some was testified 379- T.T. at degree statements. prior inconsistent convicted on June 1977 of first in- apparently murder, 89. These statements degree robbery first and second sub- at trial as prosecution degree troduced conspiracy.6 Reynolds, pursu- against evidence stantive appeal, On direct hearsay exception.4 ant a Delaware Delaware remanded matter to the Su However, only testi- himself would Cuffee motion, perior Court to consider a new trial affirmatively fy at trial to events: newly discovered based on evidence Reynolds’s presence, asked Young, had person may another have committed off,” rip somebody “to Cuffee if he wanted crime, that had been filed after the notice Young, had seen that Cuffee who appeal.7 App. at 161. After new shirt, wearing in a bloody denied, Reynolds an trial motion was took App. day car on the of the murder. other and the conviction was af 272-74, 276, 295-96, 299, 98-106; T.T. at State, Reynolds firmed. 424 A.2d 319-21, jury judge 325. The instructed the curiam). (Del.1980) (per testimony disregard hearsay as to Cuffee’s 29, 1982, Reynolds mo- On June filed a Young’s to regarding statement Cuffee.5 post-conviction pursuant to tion for relief jury T.T. 274. The final instructions did Superior Court Criminal Rule admonition that not include the standard 35”).8 motion, (“Rule closing Reynolds not to In this opening and statements are Cuffee, newly exception provides on discovered evidence that that Miles 4. This trials, prosecution in all the chief witness three (a) voluntary prosecution, a criminal the nothing had known about the murder but had prior a who statement of witness out-of-court attempt a nonetheless in an to obtain testified subject present and to cross-examination Young, $2000 State v. No. reward. 77-09-0001- may evidence with sub- be used as affirmative 4, 1982). op. (Del.Super.Ct. Oct. letter independent testimonial value. stantive Thereafter, Young plea guilty (a) a to (b) entered rule in subsection this section The manslaughter. apply regardless of whether the witness’s shall testimony the is consistent with in-court motion, hearing the At the trial court on or not. statement investigating appeared officer as a defense chief § Ann. Del-Code tit. fingerprint and that a found witness testified Cuf- taped French and The interview between person a other near scene those of the matched counsel, by probably fee was introduced defense however, judge, Reynolds. credit- than The trial testimony. judge The did not to rebut Cuffee's testimony experts by "the two other ed limiting give to the use of this instruction as a fingerprint of no was identifica- controversial credibility. tape solely impeach Sim- to Cuffee’s value," the tion and he found that "evidence by Wheatley’s testimony ilarly, was introduced suspect’s] or near to other association at the [the limiting request in- a for the defense without positive the was less than the scene of suggested by crime far struction. motion, evi- [that] and some the times, subsequently repeated several 5. Cuffee relating suspect] certain to the and [other dence however, Reynolds, Young, who that was not it police was record all minibike tire tracks robbery. participate in the had him to asked State, 6, 8 along_” Reynolds v. testimony and on both direct This was elicited curiam). (Del.1980) (per no ob- There were further cross-examination. testimony, hearsay grounds jections to this post-conviction provision states for relief 8. This give in- did additional and the trial court not structions. by the [a]ny person sentenced who proceed Proceedings not against by postconviction did may apply Rooks motion for Court by appeals pretrial challenging expeditiously. two After for meritorious relief Supreme Court government including to judgment claims: of conviction ruling judge’s (i) the trial sen- failed to overturn was obtained or That the conviction 31, 1976 Reynolds’ 28 and imposed March confessions in violation of Constitution tence admissible, States; involuntary therefore the United laws this State or Rooks, (Del.1980); State (ii) imposing A.2d 316 the sentence State v. that the Court judge so; (Del.1979), Rooks, (iii) the trial jurisdiction to that the 401 A.2d 943 do without acquittal. imposed au- the maximum a verdict exceeded directed sentence law, by accord- is otherwise not in thorized by jury and his convic- Young was convicted by State, An authorized law. Young ance with sentence appeal. upheld tion on direct time, provid- judge grant- application be filed at (Del.1979). trial The 407 ed, however, A.2d however, ed, postconviction relief shall new based for his motion prosecu- specifically alleged the first time that ineffectiveness of coun- claimed for during to confessions failing object opening tor’s references sel for to to statement, coupled de- opening failing statement and to for a for move request, failure to fense counsel’s mistrial. The dismissed sponte failure sua give, to judge’s trial repetitive. Although Reynolds motion as instruction, mistrial, declare limiting or to initially appealed this decision to the Dela- De- Reynolds due under the denied Court, subsequently ware he laware and United States Constitutions. voluntarily withdrew opposed the motion on the pro se petition then filed a procedurally ground the claims were corpus pursuant writ of habeas to holding barred District C. the United States § curiam). (Del.1980) (per A.2d for the His District Delaware. hearings adjudi- held The court two (1) grounds asserted five for relief: at- Reynolds's motion. trial cate the prosecutorial arising from the misconduct represented whom him torneys, one of also prosecutor’s reference to con- hearings appeal, at both testified direct statement; (2) opening in his fessions they made as to had deliberate whether judge abuse of discretion the trial request limiting instruc- choices not sponte sua failing jury instruct tion, for a mistrial and raise to move disregard prosecutor’s reference to appeal. App. at 292- issue on direct confessions;9 (3) ineffective assistance Superior Court found 344. The Delaware (a) failing object of counsel for that statement, (b) opening to move for a mis- objection” is “contemporaneous no where (c) to raise the issue on direct holding of the Delaware Su- made the peti- The magistrate to whom the Conyers v. State ... preme Court that, although tion was referred concluded requires prejudice] the that [cause exhausted, had court the claims the by the United States Su- test established Sykes considering was barred from the determining feder- preme when Court App. 17. merits of the first two claims. at applied must corpus al review be habeas magistrate the The did reach merits considering 35 a Rule motion.... when ineffectiveness of and rec- counsel claims Isaac, Engle[ reasoning of Under the ommended that writ be denied as to 107, 1558, 71 L.Ed.2d U.S. S.Ct. Id. claims. at 17-19. The district those (1982),] existing here situation adopted magistrate’s report and court justifying relief does not constitute cause petition. denied the This followed. objec- timely make from the failure to tion. II. App. It denied the motion at 7. then Supreme as to The Delaware all claims. implicate first claims Conyers, Court, relying also affirmed. process of trial due concern whether the App. 9-11. at that court observe fundamental “fail[ed] very concept of Reynolds pro se filed a second 35 fairness essential Donnelly DeChristoforo, 19, justice.”10 August 1985. motion motion This discretion,” raise, clearly long possibili- would if so as there is a of this available not be ty judg- literally, cognizable taking timely appeal interpreted in feder- from the a claim It was as a The Court need not al court. raised state courts ment of conviction.... violation, however, due and it is second motion or successive mo- federal entertain a construed here. similar relief on behalf of the same so tions for applicant. against weakness the state’s case The Criminal Rule 35 Court significance underscores the (1975). prosecutor’s confes- reference previously, liberally pro As the evidence pleadings. se sions. summarized 9. We must construe 520, 594, Kemer, against entirely Reynolds consisted introduced Haines v. U.S. 92 S.Ct. contradictory (1972) curiam). Cuffee’s various statements (per 30 L.Ed.2d While police. Reynolds currently We have no occasion frames this as "abuse 1868, 1871, 40 concluded requirement S.Ct. constituted U.S. omitted). independent adequate “an proce- As (1974) (citations state ground” barring dural however, review of the claim recognized, court the district federal courts. Id. at 97 S.Ct. at that a ha- federal court itself must assure with relevant petitioner complied beas procedural requirements before it can state Sykes The went on Court to hold in a delve into claims of constitutional error employ federal courts must a “cause and apply the state conviction. thus United prejudice” judge standard to whether a holding in Supreme States Court’s Wain waiver of in the state court should Sykes, wright v. Sykes, be overlooked in federal court. Sykes The Court at 2506. Under petitioner’s held that a habeas failure to test, a defendant must “cause” for show comply procedural require with a state non-compliance rule suppression motion be ment that made showing preju- and make “some actual prevented prior to trial the federal courts resulting alleged dice from the constitution- reaching merits of a claim that al at 2505. violation.”11 Id. improperly the confession was obtained. application Sykes requires a three considering 97 S.Ct. at 2506. Id. part analysis. —not Before a two— [procedur adequacy of state “the [Florida] may apply and prejudice the cause stan- review,” grounds to bar habeas federal al] dard, it in the affirmative the must resolve 97 S.Ct. at id. purported of whether the (1) on three factors: relied “independent and ade- bar speci “in unmistakable terms and with quate.” In con- Sykes, exceptions require[d] that motion fied adequacy independence sidered the trial,” suppress be before id. at raised procedural requirement matter a state as a 2506; (2) “all and, fact, implicitly of federal law it appellate refused review Florida finding rejected the of a Florida court “that the merits af petitioner’s federal claim on admissibility had been [claims] trial,” id.; (3) “their action ter his appeal.” raised and decided on direct doing quite consistent with a 3, in so at at 3. In U.S. 75 n. 97 S.Ct. 2500 n. [wa]s interpreting line of Florida authorities following Sykes, the Court has decisions contempora requiring always prefaced inquiry procedural in an into 85-86, objection.” 97 examination of the state Id. at S.Ct. default with an neous County procedure itself. Court Ulster Supreme Court therefore 2505-06. of recently, Sykes constitutionality As Court pass of the Delaware noted on the hearsay exception embodied in Del.Code Ann. explicitly rejected in the standard described 3507, 11, which allows these incon § tit. 822, Noia, Fay 9 v. 372 U.S. 391 S.Ct. [83 as substan statements to be introduced sistent (1963), under a federal L.Ed.2d which 837] against defendants. The evidence criminal tive refuse to a default- habeas court could review forum, or in state issue was raised only applicant deliber- ed if "an ha[d] claim federal, "evidentiary errors of and we note that orderly procedure ately by-passed are to be constitu state courts not considered by personal state waiver of courts" ... proportion, cognizable in federal habeas tional corpus proceedings, amounting ’“an relin- claim intentional deprives a the error unless right quishment of a known or abandonment in fairness his [or defendant fundamental ’’ then, minimum, privilege.’ or At a ... Attorney Gener trial." Bisaccia v. criminal her] Wainwright plainly implied de- Sykes that v. 307, (3d Cir.), Jersey, 312 New 623 F.2d al of by pur- fault constitutional claim counsel 622, 1042, 101 S.Ct. 449 U.S. strategy Nevertheless, decision suant to a trial tactical we do ob L.Ed.2d circumstances, would, extraordinary testimony absent was to that Cuffee's trial serve petitioner if [or she] he in a bind even he that saw and Tucker the habeas the effect day that personally murder and Tucker's claim. car on had not waived that Moreover, 2639, Carrier, 478, blood certainly brought Cuffee’s testi Murray shirt had mony on it. U.S. 106 S.Ct. by (citations omitted). into doubt (1986) 91 L.Ed.2d 397 Young, ruling Court’s in State v. Young granted based co-defendant a new trial testimony. credibility on the lack of Cuffee’s Allen, 140, 149, 99 S.Ct. We County must determine whether the district U.S. correctly upon relied (1979) (“Ulster (Del.1980) (per cu 422 A.2d 345 example County ”), is the most dramatic riam), “independent adequate as an analysis. scruti type The Court procedural ground,” Sykes, state 433 U.S. common nized York’s statutes and New federal bars had a law to determine whether In Conyers, habeas review. the Delaware procedure contemporaneous objection Sykes adopted Supreme explicitly Court specific applied facts before it. to the it for applied cause and test gauging adequacy independence post-conviction the first time bar, re alleged the Court proceeding under Rule 35. At issue in ad jected several contentions that were Conyers was the defendant’s failure to Attorney General of New vanced suppression move for of evidence before in detail York12 examined New York’s during trial, required Supe contemporaneous objection policy (“Rule 41(e) “cautious rior Rule Court Criminal 41(e)”).13 Supreme in The Delaware Court N.Y.Crim.Proc.Law ... embodied Sykes gives proper stated that “test 1971).” 470.05(2) (McKinney U.S. § important State interests deference 8-10, at 2221 150-51 nn. & nn. & 41(e)’s sought by Rule con to be advanced agreed 8-10. All nine Justices there temporaneous objection requirement ... support “no of New either law affording adequate safeguard while history litigation for York or the of th[at] permitted the Rule will not be to result an inference that the New York courts miscarriage justice to a defendant who respondents’ decided constitutional Conyers, comply has failed to therewith.” Id. ground.” 422 A.2d at 346. pro at 2220. The Court therefore S.Ct. preju- By applying the cause and merits of the claim. ceeded to the Cf. suppression dice standard issues raised Carrier, Murray 477 U.S. post-conviction first time in a state (dis 2639, 2642-43, (1986) 91 L.Ed.2d 397 pursuant motion Rule 5:21); cussing Virginia Supreme upon imposed Rule 35 a Ross, 7-8 Reed v. n. & provision post- found some other states’ 2901, 2905-06 & n. 82 L.Ed.2d 1 S.Ct. i.e., proceedings, requirement conviction (1983) (discussing require North Carolina that all issues should be raised at the first Isaac, Engle v. ments); 124- possible opportunity petitioner unless the 26-27, 102 & nn. 25 & nn. can demonstrate reasons rebut or excuse (1982) (discussing See, e.g., presumptive waiver. 42 Pa. 1982);14 30). (Purdon Procedure Cons.Stat.Ann. Ohio Rule of Criminal § evidence, (1) may oppor- the fact that seized be used as unless 12. These contentions included post- tunity moving raised for the first time via the claim was trial therefor not exist or did the motion, County, Ulster 442 U.S. at party grounds was not aware of the for the 2220; (2) S.Ct. at the fact that two state courts motion; in its but discretion they rejecting explicitly did not state that hearing. entertain the motion at the trial or merits, id.; (3) rejection the procedural on its on claim 41(e) Rule Court Criminal highest grounds by New York's claim, law id. at an unrelated state of 6; (4) of n. at 2220 n. failure trial S.Ct. Pennsylvania provides 14.This statute request jury a determination of the counsel to claim, an issue is waived if: 6; S.Ct. 2220 n. id. at 148-49 n. at (1) knowingly petitioner under- The and (5) petition apply writ of and to for a for failure standingly and failed to raise it it could have highest Id. at certiorari to the state court. trial, been raised before the at the at n. 7. n. appeal, corpus proceeding a in habeas actually proceeding in other conducted or a provides 13. This Rule prior proceeding actually under this initiated suppress application for use as [a]n ... subchapter. anything of an as a result evidence obtained (2) prove petitioner exist- by The is unable made shall be unlawful search and seizure justify extraordinary ence circumstances to of before shall be made The motion motion.... raise issue. property failure to [or her] hearing which the in trial 85-86, (1988).15 laws er state Id. at decisions. S.Ct. 3:22-4 Unlike N.J.R. in proceedings 2505-06. governing post-conviction Circuit, judicial other states within this Notwithstanding the Delaware however, no 35 on face states Rule its courts’ consider the merits of refusal except application limits to procedural its claims, we find Co shall not be “postconviction relief not nyers decision does constitute an “inde possibility a long as there is available so pendent adequate procedural and state judgment taking timely appeal a from ground” barring federal habe of conviction.” process as review the due claim raised courts have It is that Delaware’s ironic procedural specific here. No themselves, imposed procedural a bar terms,” governs, in “unmistakable tortuously on a line cases based Sykes, S.Ct. a distinguishes between situations where precise in Rule 35 raised arising can claims federal court review motion, due de namely, that convictions and those where from state over-reaching prosecutor’s nied cou must defer out of that same federal court pled judge’s with the sua absence comity adjudication state court limiting or declaration of sponte instruction Sykes, claims. See addition, mistrial. courts’ law, As matter state 2502-06. Conyers invocation of is not consistent is, of application Sykes unexpected Thus, of authority. other state course, As a matter not our concern. support that could conclu three elements however, extremely law, raises federal it procedural requirement that this sion troubling Supreme Court questions. The review, “adequate” preclude federal is consistently held that “ha[s] blatantly missing here. two are in compliance how of when and defaults preclude rules can procedural

with state A. question is consideration a federal our can find Delaware rule question,” Henry Missis neither itself federal specific raised governing the sippi, 379 U.S. in nor can we (1965), his habeas Sykes itself left Conyers creating one. Delaware read exact of the cause ambit objection contemporaneous general no de “open for resolution future standard 41(e), the time governs Rule at 2507. rule. 433 U.S. at cisions.” motions, making is not rel- provides suppression To decide whether 41(e)’s language here. pre evant “independent adequate” basis for requirement “contemporaneous objection” Reyn cluding review of federal habeas making the mandatory; the time for claims, turn the three factors we olds’s de- articulated explicitly so motion is relied to upon which the trial court’s is within the viation therefrom whether the Sykes, to wit: decide 41(e) arguably Thus Rule discretion. requirement is stated in “unmis adequate” “independent as an terms,” serves the state courts whether takable ground meaning of within the claims on to review the have refused justify the result Co- so as to merits, refus the state courts’ and whether now, however, is Before us nyers. oth- is “consistent” with al in this instance or (Purdon 1982). at the rule the court on motion this unless § 9544 42 Pa.Cons.Stat.Ann. (a) hearing ground not for relief finds that provides Jersey that Rule This New reasonably have previously could not asserted prior [a]ny ground raised in a for relief not (b) any prior proceeding; or been raised in rule, proceed- in proceeding or under this in of the bar would result enforcement that conviction, post- ings resulting or in a (c) injustice; of that denial fundamental brought proceeding decided conviction contrary of Constitution to the relief would be rule, any adoption in prior of this to the Jersey. New or the United States State proceedings appeal is in such taken 3:22-4 N.J.R. proceeding under assertion in a barred from 41(e), very violation of Rule but a different contempora- rived from the existence of a prosecutorial circumstance: over-reaching objection respect sup- neous rule by caused the withdrawal of Her- motions; the offer State v. pression it relied on during bal, suppression two confessions hear- (Del.Super.1973), sup- 307 A.2d 553 as ing prosecutor 41(e) after had already holding re- port for its that Rule embod- extensively opening ferred to them statement, in require- his contemporaneous objection ies a subsequent and the subsequent failure of ment. A decision extend- cautionary the trial court to issue a Conyers instruc- situa- ed the reach of to include tion. suppression tions in which a motion had made not direct at trial but raised on argued The state never Reynolds State, Johnson v. appeal. 460 A.2d 539 41(e) motion, failed to make a Rule nor did (Del.1983). point might it to a rule that arguably serve 41(e) proxy Rule say is not to that federal This courts will During case. proceed- by Rule 35 never defer to announcements ings, the Delaware Attorney legislatures pro- General al- courts or of new rules of leged that post-con- cedure that must be followed in proceedings. purported prior procedures viction Where were not utilized [t]hree new, sweeping procedural requirement by Reynolds. trial, Initially, Reynolds, during explicitly opin- not even formulated in the when the statements were exclud- ed, upon rely ion which the state courts made no motion for a By mistrial. review, however, definition, deny requisite it motion, mere lacks as it acts to short, degree specificity clarity withdraw case from jury, must —in necessary the “unmistakable contemporaneously be made with the terms” — bar federal courts from damaging error. habeas review. Secondly, [Delaware] Super.Ct.Crim.R. 33, Whether enunciated court rule or case speaking while not law, motions, procedural there is no Delaware clearly requires to trial that mo- point, Reynolds trial, and therefore violated tions for new error, based on trial none. be asserted no later days than 10 after the rendition of the verdict. made no such asserting motion error in prosecutor’s opening remarks in such B. timely Finally, Reynolds fashion. did Turning of whether the assign this as error in ap- Conyers application Delaware courts’ peal Supreme to the Delaware Court. Reynolds’s post-conviction proceedings is post-evidentiary hearing State’s memoran- authorities, consistent with other dum post-convic- on defendant’s motion for appear significant there does not to be case However, tion relief at 27. Supe- regarding application law procedural rior governs Court Criminal Rule Conyers. bars to Rule 35 motions motions for a new does not articulate Herhal, See (reaching 307 A.2d at 555 mer a waiver rule for claims not raised despite possible its of Rule 35 claim proce Furthermore, Conyers not, motion. did bar); Curran v. dural Terry terms;” “unmistakable bar claims that (Del), 49 Del. presented could have been in a motion for new trial or on direct Nor does (1956) (same). history Conyers general contemporane- mention a sweeping Rule 35 itself belies conclu objection requirement might ous apply sion that a bar exists to all to motions for mistrial. claims raised for the first time in a Rule 35 decision of the motion. The seminal ex published No Delaware case Conyers plaining ex- Rule petitioners after 35 involved who Court of Delaware had not taken a filed, plicitly that the cause and direct but who had stated convictions, applied pro- years six after their peti is to be in Rule standard corpus alleging than Rule tions for writ of habeas ceedings to claims other Conyers claims, 41(e) cannot read that their convictions were and we obtained vio creating The lan- lation the Delaware and United such bars. States Woolley, Terry does not contain even Constitutions. Curran v. guage holding slightest suggestion (Del.1954). its Del. 104 A.2d 771 writs, denying beyond suppression motions that extends Su timely pursuant preme explained made were not the writ was 41(e). analysis clearly historically de- confined in in- Delaware to

721 (1964); Wright Georgia, v. 12 L.Ed.2d 325 jurisdiction of the sentenc- into the quiries 290-91, 1240, 284, 1244- willing- 83 increasing 373 U.S. 45, S.Ct. Noting the ing court. (1963). 35, 349 Rule until 10 L.Ed.2d courts to examine federal ness of Conyers, as fairly providing could be read possible violations for convictions States, for for of claims that are raised review or laws of the United Constitution 35, In by post-conviction first motion. in time stated that Rule court the Delaware (Del. State, 422 deed, Bailey v. A.2d 956 habeas common law writ of contrast to the 1980), year was decided the same as corpus, existed to Conyers, Supreme Court give a adequate procedure to provide an adjudicated the merits of claims even freedom deprived of his person [or her] in a 35 mo raised for first time Rule fair- the intrinsic opportunity have Ap Id. at 963-64. As the Court of tion. process under which of the criminal ness he recently stat peals for the Eleventh Circuit examined into is committed she] [or ed, its applies procedural the state “[w]here Under [by the Delaware courts].... v. Wain Oliver sporadically,” bar rule, who any prisoner claims 1524, 1529 (11th Cir.1986), wright, 795 F.2d of his imprisoned in violation have — denied, 1380, —, 107 cert. U.S. S.Ct. rights federal constitutional [or her] may, vacate, (1987), federal habeas 694 94 L.Ed.2d time, move to by motion go of the claim. may to the merits court his, set aside correct [or her] sentence.... Moreover, Rule Superior under Court 818, Supreme Court Rule the De 5217 and Curran, The court did 104 A.2d routinely Supreme Court considers laware petitioners’ failure to take not on comment time direct raised for the first claims appeal.16 a direct present appeal, if the fundamental Wainwright See problems. constitutional Patter- NAACP v. Alabama ex rel. In State, (Del.), 1096, 504 A.2d 1100 son, 1163, 449, 78 357 U.S. S.Ct. — —, 107 S.Ct. 93 U.S. (1958), Supreme 1488 held that a (1986) (fifth amendment); Van L.Ed.2d 161 bar not be con- would State, (Del. 4 Arsdall v. 486 11 n. A.2d independent adequate where sidered 1984), vacated, 475 U.S. the criminal defendant (1986) (sixth four fairly not be deemed have been could State, amendments); Passerin teenth pro- Novelty of its existence. apprised (fourth (Del.1980) amend 419 A.2d requirements permit- cannot be cedural State, Henson v. ment); 332 A.2d applied review ted to thwart ... [federal] amendment); but see (Del.1975) (sixth who, justified reliance those (Del. State, 374 A.2d Wright v. decisions, upon prior seek vindication in fifth 1977) (refusing to reach meritless of their federal constitution- state courts claim). It if is not clear amendment rights. al in the lenient waiver differences existed Id. 457-58, 1169; S.Ct. at accord appeal and waiver rules for claims on direct James v. Kentucky, Conyers. rules for Rule 35 claims 1830, 1835-36, 1458, 1469 Kemp, 781 F.2d Spencer v. Cf. (1984); Barr Columbia, 378 U.S. (11th Cir.1986) (en banc) (refusing to hold 1736, 12 L.Ed.2d 766 appeal direct waiver petitioner to stricter (1964); NAACP v. Alabama ex rel. Flow- rules). appeal least one Rule 35 ers, 288, 301, Conyers, year how- decided in the same State, (Del.1968), brought they to the attention though not 16. In Gural A.2d Supreme petitioner’s denied a of the Court. Delaware Superior Court Criminal request to have his Rule 35 motion treated (1987). its review was direct and stated Court's denial limited May "Questions Be Which 8 defines 18.Rule Gural, Curran, as in Id. 693-94. In motion. Appeal:” Raised Ac- bar. no mention was made of fairly the trial questions presented to Only (Del.1967). Priest v. cord review; provided, may presented for be 17. Rule 52 defines however, justice so interests of when the error, defect, (a) Any irreg- deter- Harmless Error. consider require, the Court ularity presented. does affect sub- any question variance which not so mine rights disregarded. stantial shall be Court Rule (b) defects af- Plain Error. Plain errors or fecting rights may al- be noticed substantial c. ever, Court con- merits of a claim nei- that had sidered preserved at trial nor raised on ther been repeated applica The Delaware courts’ appeal. Bailey, A.2d at 963-64 direct Conyers holding tion of the amendment claim harmless (finding sixth might persuade Conyers us is doubt). beyond reasonable This lack of “independent adequate” pre and rule application consistency waiver cluding review, federal habeas were it not pro- rules on direct and in Rule 35 for the countervailing considerations ceedings provides an additional strand of analyzed finding above.19 In the absence Conyers support for our conclusion that is procedural here, that, bar note we “independent adequate” proce- not an and although is principle “it a well-established governing Reynolds’s dural bar claims. of federalism resting that a state decision Isaac, 107, Engle But 456 U.S. 135 n. cf. adequate on an foundation of state sub 44, 1558, 44, 102 S.Ct. 1576 n. stantive law is immune from review (1982) (“States primary have re- courts,” Sykes, 433 U.S. at 81, federal sponsibility interpret apply their added), Sykes itself (emphasis S.Ct. at 2503 rules.”) plain error noted that federal courts have not deferred addition, at least two other Courts of automatically so procedural to state bars. Appeals have stated “that federal courts petitioner’s A non-compliance habeas generally questions should determine purported procedural state rule should procedural according default to the habeas pre-requisite obscure the that the rule waiver law effect at the time of the “independent adequate” itself be as a waiver, asserted and that retroactive effect matter of Sykes Although federal law. given should not be to such statutes.” instructed greater federal courts to accord Spencer, (citations 781 F.2d at 1469 omit procedural deference to state bars than had Ricketts, ted); Lumpkin accord Fay v. Noia deliber required by 680, denied, (5th Cir.), F.2d 682 & n. 2 test, 391, bypass ate 372 U.S. 83 S.Ct. 434 U.S. L.Ed.2d 316 822, 848, (1963), 9 L.Ed.2d 837 it did not (1977). Even if we were to conclude that a requirements immunize these from scruti new Delaware rule was created ny. scrutiny particularly Such appropri by Conyers, we could not also conclude where, here, ate being the claim raised the rule barred collateral federal re is a violation of due that stems not view, applied where it was to claims other only from the decisions counsel also but 41(e) than Rule claims for the first time in prosecutorial over-reaching and the the instant case. sponte court sua failure of the trial give join curative instruction. We thus other application Appeals Courts of that have reviewed the the state courts to claims is not merits of claims raised in a habeas “consistent with a line of authorities [state] notwithstanding presence of a state’s interpreting the rule in requir- procedural bar, determining after that the ing contemporaneous objection....” procedures state indepen lacked sufficient Sykes, 433 U.S. at 97 S.Ct. at 2505- See, dence and adequacy.20 e.g., Wheat fact, tangible 06. In there is a absence of Cir.1986), Thigpen, (5th 793 F.2d 625-27 consistency both authority here. — rt. —, We must conclude that support there is no ce 1566, Spencer (1987); for the existence of an “independent and Kemp, (11th 781 F.2d 1469-71 Cir. adequate” requirement, (en banc); LeFevre, 1986) Hawkins v. based on the consistency factor of (2d Cir.1985); F.2d but see 872-74 application. situation, is, then the cause and mately 19. We note that in the standard will ulti obverse “comity proce claim, where be transformed state courts have not into a of errors.” refused on (3d grounds Cunningham, dural Burkett v. 826 F.2d to review the merits of a 1987). Sykes impose this Court will reach the Cir. was never merits of the claims. intended to (3d Rafferty, Hochman v. 831 F.2d additional limits on states’ review of federal 1987). sys Cir. constitutional claims. "Under our federal tem, equally the federal and state ‘courts [are] 20. If federal courts decline to review claims of guard rights protect bound to secured ” constitutional error because state courts refuse Lundy, the Constitution.’ Rose v. 455 U.S. grounds, upon procedural 1198, 1203, review (1982) based state courts refuse to review such claims be- (citing parte Royall, Ex comity, cause federal (1886)). refuse out of 29 L.Ed. 868 Hess, proceed After the first round of Rule 35 (10th F.2d 1363 Runnels v. 653 ings, Reynolds pro filed a Rule 35 Cir.1981). se mo Superior alleging, tion in Delaware Court alia, that his trial counsel inter fective for limiting include a claim of late counsel for direct the was inef III. failing request mistrial a denied on their The district not, however, instruction. He did Reynolds’s claims ineffectiveness the merits of counsel. trial instruction or mistrial appel ineffectiveness upon focused These claims failure raise the claim on request limiting a attorneys’ failure to appeal. Superior The Court denied coun appellate repetitive. motion as Reyn State v. open the the issue of sel’s failure to raise olds, IS76-04-0026, 0027, op. No. 2 letter appeal. on We find ing statement direct (Mar. 12, 1986); Del.Super.Ct.Crim.Rule see three ineffective that at least two of the 35(a). days March On five before may not have been ness of counsel claims he filed his for writ of habeas will vacate the We therefore exhausted. district court’s corpus court, in federal Reynolds district insofar as it denies order appeal from withdrew second Rule 35 the denial of the remand for on the merits and these claims Supreme motion the issue of exhaus inquiry further into the Court. tion. Case law on successive motions under proper motion is the vehicle A Rule 35 See, e.g., Rule is scant. 35 United States bring of counsel which to claims ineffectiveness Anderson, F.Supp. ex rel. v. 320 Winsett courts. See before (D.Del.1970), (3d 456 1197 aff'd., F.2d (Del.1980); State, 420 A.2d 170 Collins Casalvera Cir.1972). plausible It is least (Del. State, 410 A.2d 1369 Supreme might have Delaware tained the second Rule 35 abuse of discretion the Court enter However, Supe- 1980). in the briefs to the appeal from the denial of the motion, on the first rior Court well motion to motion, if only to review for of that appeal denial trial court’s dismis Court, Supreme repetitive. sal of the motion as Hinckle v. arguments solely in Reynolds framed his (Del. Storey terms, referring process both due 1963). possible also It is that the Delaware and Delaware Constitutions. United States Although might appeal reinstate issue statement tunc, Reynolds make pro nunc should failure to presented request to counsel’s referred Moreover, request in the future. mistrial, was made no reference issue that counsel’s failure raise the request a to counsel’s failure to brief repre direct sentation state courts this claim constituted ineffective issue on made in limiting instruction or to raise the presented not been Nor was mention direct the brief of It is all. conceivable that sixth violations of might by the be considered state right assistance of amendment to effective if it on the merits were raised discussing per- counsel’s counsel. While another Rule 35 motion. “At least where fair relief length, formance at the upon reading post-conviction state opinions Supreme Court focused indicates that a state court statute issue, cause and ..., might entertain ... well they never addressed ineffectiveness clearly court decision the absence Washing- of counsel under Strickland result, cannot con foreclosing such a we ton, U.S. petitioner has clude that demonstrated (1984). require compliance with the exhaustion Fenton, F.2d ment.” 75 Santana trial at- The motives (3d Cir.1982), U.S. represented him torneys, of whom also one fully explored dur- appeal, were on direct Reynolds had whether ex held in connection ing hearings the two he these claims at the time filed Thus, hausted it is first Rule 35 motion. with the petition, or whether “there the instant possible all the evidence relevant to correc either absence of available State an perform- whether counsel’s determination ance “fell reasonableness,” existence of circum process tive objective standard of an below rendering such ineffective stances Strickland, protect rights prisoner,” 2064, has adduced 2254(b) (1982), explored U.S.C. § already. Neither court made ex- Santana, See also the district court. however, regarding this is- plicit finding, 685 F.2d at 74-75. sue. Even if on the merits of these claims demonstrates tion and re- proceedings.23 state remedies were unavailable at mand for further the time Fay, see petition, he filed the 372 U.S. at his withdrawal of the appeal from the denial of the second Rule IV. might 35 motion then proce “constitute[ ] reasons, foregoing For the we will vacate deprived dural default highest the order of the district court and remand opportunity state court of an to consider this proceedings matter for further consist- his constitutional of ineffective claim[]” opinion. ent with this ness of for counsel failure request to limiting instruction or Beaty v. mistrial. Patton, 110, 112 (3d Cir.1983) 700 F.2d (per SUR DENIAL OF REHEARING curiam). These claims would then be sub ject PER CURIAM: prejudice” to the “cause and analysis of Sykes.21 petition In their rehearing, for appellees Lundy, Rose v. Under 455 U.S. raise points three that merit discussion. (1982), petition 71 L.Ed.2d 379 First, they argue that Superior Delaware containing both exhausted and unexhaust- Court Criminal Rule 511 proce- acts as a ed claims must be dismissed. Id. dural bar to claims raised for the first time remand, If Reynolds, S.Ct. at 1205. on in a proceeding brought pursuant to Dela- can demonstrate that he has exhausted ware Criminal Rule remedies, and that his waiver of his where counsel had made a tactical choice Sykes ineffectiveness claims meets not to object at trial or present to the issue prejudice” standard, however, “cause and appeal. on specific cannot read this then the merits of all the claims requirement raised in general into the language of petition may the instant Conyers State, be reached.22 Be- (Del.1980) A.2d 345 curiam). cause there are unresolved issues (per whether to, does not refer the claims of rely ineffectiveness of counsel upon, Rule 51. The upon other cases and, fully so, exhausted if whether appellees rely support of this ar- barred, they procedurally are gument, we will va- see King v. (Del. cate the district peti- 1968) court’s denial of the (per curiam); State v. Her- open had left that, recognize whether 23.We where the State has not Fay's bypass deliberate applicable test was still raised nonexhaustion as a defense and where decisions whether to Beaty, In question[s] there are no "unresolved of fact or that, Court held because petitioner's might habeas important of state law have an [that] appeal failure to file — claims, an bearing” U.S. -, Greer, denial Granberry on the post-conviction petition highest Pennsyl- to the court, vania (1987), he "must demonstrate that this de- we can reach the merits of the unex- fault was not bypass’ However, a ‘deliberate of the state hausted claims. we feel that a re court ... because his default involved a mand decision to the district court for determination of regarding appeal." issues, exhaustion, (quoting F.2d at including all unresolved Nota, Fay appropriate in this case. (1963)). Court has since clear, however, made it although "counsel’s provides 1. This rule that: decision not to might take an at all [still] Exceptions rulings or orders of the Court require standard,” Fay] treatment under [the unnecessary purposes are and for all Carrier, added), (emphasis 106 S.Ct. at 2648 "the exception which an essary has heretofore been nec- prejudice applies cause and test to defaults on party, it is sufficient that a at the time appeal as [well to those as] at trial.” Id. at 2647. ruling or order of the Court is made or We find that the situation here falls in the latter sought, makes known to the Court the action category. which he desires the Court to take or his objection to the action of the Court and the Reynolds option, has another of course. grounds justice requires therefor. Where suggests petitioner may Rose that a habeas party relieve a from the conse- "proceed choose to with his exhausted quences assign proper of failure to rea- deliberately claims and aside his unex- set[] support objection. party sons in of an If a claims_" hausted 455 U.S. at opportunity object ruling has no order, to a Therefore, (plurality opinion). S.Ct. at 1204-05 objection the absence of an does not if the district remand allows thereafter him. drop to amend his the unexhausted Del.Super.Ct.R.Crim.Pro. 51 claims, proceed the court could then to the merits of the exhausted claims. hal, (Del.Super.1973), A.2d MANUFACTURING, A DIVI- LOVELL of Rule 51 discuss the effect also fail to fact, proceedings. OF PATTERSON-ERIE post-conviction SION King go and Herhal CORPORATION, Appellee, Delaware raised, after rais- the claims the merits of There- ing fore, possible problem. waiver BANK OF THE EXPORT-IMPORT pursu- extent that waiver Casualty impliedly ant to 51 was articulated Aetna STATES and UNITED cases, procedural default was these Inc., Surety Company, Aetna In- nonetheless overlooked. Company, Mutual American surance Company, Liability Insurance Atlantic bring Second, our attention appellees Company, Commer Insurance Mutual twenty unpublished existence some Company, Conti Insurance cial Union Supreme Court opinions Casualty Conyers holding to a variety Company, Continental apply nental proceedings. in Rule 35 raised Company, Employers Insur Insurance law, such orders While under Wausau, Insurance Federal ance value, New Castle see precedential have Company, Fireman’s Fund Insurance Goodman, County v. Compa Company, Hanover Insurance signifi- (Del.1983), not decide the we need Indemnity ny, Hartford Accident here. precedential value cance of their Company, Company, Home Insurance Each cases raised Company, Liberty Mutual Insurance and direct Reynolds’s trial decided after Compa- Casualty Mutual Lumbermans Therefore, bear none of them Company, Roy- ny, Reliance Insurance whether, the time question of case, Indemnity Company, in this Paul St. Fire purported waiver al being that barred claims had a rule Company, Trav- Marine Insurance pro- Rule 35 first time in a raised for the Indemnity Company, and United elers earlier, procedural As we stated ceeding.2 Company, Fire Insurance States “ ‘waiver law default is determined Foreign Insurance Asso- Credit t/d/b/a waiv- the time the asserted effect at Foreign Insurance Credit ciation ” op. supra 822. er.’ Panel agent Association, individually defendants, Appel- all of the above that various Finally, appellees contend lants. appeals supported the have other courts pro sporadic application of proposition that No. 87-3206. be by state courts should cedural rules See, e.g., Appeals, States by federal courts. United Court of overlooked Ponte, 817 F.2d (1st Gardner v. Third Circuit. sub Gardner Cir.), cert. denied nom. Argued Sept. — 1987. U.S. -, Maloney, Estelle, (1987); Bass Decided March denied, (5th Cir.), cert. F.2d 122-23 L.Ed.2d 464 (1983); Sowders, Hockenbury v. 620 F.2d Cir.1980), (6th (1981). these To the U.S. 933 extent they are proposition, such a cases stand for circuit as contrary to law of this directly in Hochman case in this enunciated (3d Cir. Rafferty, 831 F.2d 1202-03 1987). holding that one reiterate our a state determining adequacy of factor in whether the state rule is Wain rule. See apply the consistently wright Sykes, 2497, 2505-06, 53 L.Ed.2d case, inability either this Court’s to detect rule that unarticulated waiver subject to by published opinion is close research illus- these cases after exhaustive rule scrutiny. why adequacy trates one reason

Case Details

Case Name: George L. Reynolds v. Jack C. Ellingsworth, Warden and Charles M. Oberly, III

Court Name: Court of Appeals for the Third Circuit

Date Published: May 24, 1988

Citation: 843 F.2d 712

Docket Number: 86-5633

Court Abbreviation: 3rd Cir.