James William Riley v. Stanley W. Taylor M. Jane Brady

RILEY, Appellant, James William TAYLOR; Brady.*

Stanley M. Jane W.

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

No. 98-9009. Appeals,

United States Court of

Third Circuit.

Argued Nov. 1999.

Argued May En Banc 2001.

Dec.

Becker, Judge, Chief Circuit filed opinion concurring judgment.

Alito, Judge, dissenting Circuit filed Scirica, opinion, in Barry, which Fuentes Stapleton, joined Judges, Circuit as to I, Becker, part and in which Chief Circuit Judge, Barry Stapleton, Circuit Judges, joined part as to I. SLOVITER,

Before: ALITO and STAPLETON, Judges. Circuit Before: BECKER, SLOVITER, Judge, Chief MANSMANN, SCIRICA, NYGAARD, ALITO, ROTH, McKEE, BARRY, AMBRO, FUENTES, STAPLETON, Judges. Circuit OPINION OF THE COURT SLOVITER, Judge, Circuit with whom Judges MANSMANN, NYGAARD, ROTH, McKEE and join, AMBRO with Judges whom SCIRICA and FUENTES join B, to Part II and with whom Chief Judge joins BECKER in the judgment. Appellant Riley, James 22 year W. old man, black was sentenced to death on the vote of a Delaware state December If the time intervening between that sentence and this court’s en banc consideration of the matter has been lengthy, it is not because there has been delay any undue stage but because the legitimate case questions raises go the constitutionality original sentencing. It necessary to com- plete a series proceedings in both state court, and federal none of duplica- them tive, before the case reached this stage. all, After there can be no reconsideration after the execution of a death sentence. I. II, Thomas Allingham, J. (Argued), Ste- INTRODUCTION phen Skadden, D. Dargitz, Slate, Arps, According trial, to testimony at the Ri- Meagher Flom, & Mary M. MaloneyHuss ley Tyrone stopped Baxter in a liquor

Wolf, Block, Solis-Cohen, Schorr & Law- Dover, Delaware, store February on Connell, rence J. Widener University get some beer and rob the store. Law, DE, School of Wilmington, Attorneys Michael Williams in the car. waited Bax- for Appellant Riley. James W. ter Riley, testified gun, armed with a Meyers, Loren (Argued), C. Chief of placed a bottle of beer on the counter and Appeals Division, Molchen, II, William E. announced the being store was robbed. Deputy General, Attorney Department of owner, When the store Feeley, James a 59 Justice, DE, Wilmington, Attorney Ap- year man, old.white away backed from the pellees Stanley Taylor Brady. and M. register, Jane cash Baxter grabbed money out of Riley the cash drawer. tried to take port of his alibi. only The Riley witness wallet, Feeley’s Feeley but resisted. At presented other than himself was an in- Riley Baxter’s urging, Feeley shot in the prison mate at the in which Baxter was leg. Feeley, who was then hopping up and incarcerated, and he testified that Baxter down, apparently gunshot, from the said had admitted to shooting Feeley. f ‘ing niggers.” “[Y]ou App. at 327. As Riley was tried before and convicted on Riley and Baxter proceeding were to the all counts an all jury white in Kent leave, door to Feeley threw a wine bottle (the County Superior Court Delaware trial Riley struck in the Riley arm. then court) in 1982. Four days December after chest, shot in Feeley killing him. verdict, jury proceeded to consider

In May Riley, Baxter, and the penalty. The State sought the death Williams were indicted on charges of felo- penalty, only relying Riley’s on felony ny murder, murder, intentional first de- murder conviction and using underly- gree robbery, possession of a deadly weap- ing robbery as the lone aggravating cir- on during felony, and degree second cumstance. Following a two-hour penalty conspiracy. Riley pled not guilty to all hearing, unanimously recom- charges. pled guilty Baxter to first de- mended a sentence of death which the gree murder and was sentenced to life accepted. court Riley was also sentenced imprisonment exchange in for his testimo- imprisonment life parole without for ny against Riley. The murder weapon and murder, intentional years imprisonment charges against Williams were also robbery, years for imprisonment pos- for dropped in exchange for his testimony session of a deadly weapon, years and 3 against Riley, and he was subsequently imprisonment conspiracy. Riley’s at- convicted of robbery conspiracy and torney explained to the trial court that he charges. spent only 14 hours preparing pen- for the alty phase because he had busy been too Riley represented at ap- “with the defense and the spend merits” to pointed counsel, a civil litiga- defense-side more building time a case in mitigation. tor who had represented never a criminal App. at 443-444. in defendant either a murder or a capital pretrial ease. His motions for Riley co-counsel appealed his conviction and sen private funds for a investigator were tence on grounds. In July numerous denied. The prosecutors in Riley’s case affirmed, Delaware Supreme Court see were James Liguori and McNulty. State, Mark (Del.1985) v. 496 A.2d 997 Liguori, prosecutor, (hereafter the lead awas friend I”), “Riley and the neighbor Feeley’s, they be- United States certiora denied longed to the same church. ri, Riley Delaware, see (1986). 92 L.Ed.2d 743 presented State testimony Baxter, Williams, (who Baxter’s mother Represented by counsel, new Riley filed testified that Riley spent night before post-conviction a motion for relief Kent robbery house), at her and a County witness Superior Court March 1987 be- who reported fingerprints Bush, fore Judge who pre- had were a on (the bottle beer the liquor store. sided the trial “trial judge”), alleg- defense, Riley testified that alia, he was in ing, inter that his trial counsel had Philadelphia on day of the murder provided ineffective assistance of counsel celebrating his mother’s birthday. Howev- prosecution and that the had exercised its er, Riley’s testify mother did not sup- peremptory challenges in a racially dis-

272 F.3d 86 62 Riley Taylor, v. petition. See in of Batson

criminatory manner violation VII”). Cir.1995) (hereafter 1712, (3d “Riley 79, 106 S.Ct. Kentucky, v. (1986). days of three After L.Ed.2d 69 90 habeas Riley filed his amended ineffec- to the evidentiary hearings limited 28, 1995, 12 alleging August on petition claim, the trial of counsel assistance tive The District Court de for relief. grounds v. See State Riley’s motion. judge denied holding an without Riley’s petition nied (Del.Super.1988) 47076 Riley, WL 1988 Riley Taylor, v. evidentiary hearing. See II”). re- (hereafter Riley then “Riley 1998) Jan.16, (D.Del. 172856 1998 WL rear- consider Superior Court quested the VIII”). (hereafter issued then “Riley We The trial Batson claim. on his gument Riley and probable cause a certificate Judge Steele away and had judge passed He asserted raising 12 claims. (“the appealed, hearing Superior Court that: reargu- for granted request judge”) had ment, finding Riley established peremptory The exercise 1. State’s under case of discrimination

prima facie prospective all challenges to strike Riley, 1988 WL v. Batson. See State Equal Pro- jurors violated black (hereafter 130430, (Del.Super.1988) *3 Batson v. Ken- under tection Clause III”). evidentiary an holding After “Riley 1712, 79, 106 S.Ct. tucky, 476 U.S. rejected Riley’s hearing hearing, the (1986). 69 90 L.Ed.2d claims as and all his other claim Batson continuing conduct 2. The State’s 200, State, 1988 No. Riley v. well. See key wiretap tapes of withholding 1989), 21, App. at April (Del.Super. Ct. Brady Riley v. from violated witness IV”). (hereafter appeal, the “Riley On 886 83, 83 S.Ct. Maryland, 373 U.S. affirmed, again Supreme Court Delaware (1963). 1194, 10 215 L.Ed.2d (Del.1990) State, 719 585 Riley v. A.2d see (hereafter V”), “Riley assistance Riley received ineffective 3. again denied United States preju- he of counsel because Delaware, 501 U.S. certiorari, Riley v. see per- counsel’s deficient by trial diced 2840, L.Ed.2d 1008 111 115 S.Ct. hearing. penalty at the formance (1991). Riley’s Sixth court violated 4. The trial 12, 1991, peti- Riley filed August On rights Amendment and Fourteenth corpus for a writ of habeas tion to appoint his by denying motions the Dis- District Court United States investiga- private and a co-counsel to 28 U.S.C. pursuant trict of Delaware tor. new lead Riley § obtained 2254. Again the trial court prosecution 5. The coun- counsel, post-conviction although his pen- at the improper made remarks District The sel as co-counsel. remained Eighth violating the alty hearing amend his Riley’s request to Court denied under Amendments and Fourteenth claims and to add two additional petition Mississippi, v. U.S. Caldwell an eviden- petition without then denied his L.Ed.2d 231 Riley Snyder, 840 hearing. See tiary (1985). (hereafter (D.Del.1993) “Ri- F.Supp. 1012 probe equiv court failed VI”). this court Riley appealed, ley pen the death responses during ocal his amend held that denial of motion of Wither alty dire violation voir and remanded of discretion was an abuse Illinois, spoon v. all Riley raise so that could case (1968). 20 L.Ed.2d in an to raise amended sought issues he 7. Riley’s banc, was unconstitutionally panel’s and vacated the opinion and returning biased favor of judgment. v. Taylor, 237 F.3d penalty death because the trial (3d Cir.2001). Our order limited the judge’s voir dire failed to identify all en banc proceedings to the District Court’s prospective jurors automatically who denial of Riley’s Batson and Caldwell impose penalty. would the death claims. See id. We now reverse and di- Riley 8. deprived was of his constitu- rect the District grant Court to the writ of right tional ato fair and impartial corpus.1 habeas jury pretrial publicity. because of The District Court subject exercised 9. Supreme The Delaware pro- Court’s jurisdiction matter pursuant to 28 U.S.C. portionality Riley’s review violated § possess 2254. appellate jurisdiction We Eighth and Fourteenth Amendment pursuant §§ to 28 U.S.C. 1291 and 2253. rights. jury The trial court’s instructions adequately failed to guide Riley’s II. jurors law, thereby on the creating jurors substantial risk that the DISCUSSION would impose penalty the death arbitrary an capricious and manner Riley presents arguments two to the en in violation of both Eighth the and first, banc court. argues He pros- that the Fourteenth Amendments. ecution exercised its peremptory chal- 11. The use of felony murder to estab- lenges jurors to strike black in violation of lish both Riley’s eligibility for death Equal Protection Clause of the Four- and aggravating circumstance Amendment, teenth second, and warranting imposition of the death prosecutor’s statements to the in his penalty arbitrary capricious and opening argument at sentencing misled the in violation of Eighth and Four- jury regarding its role the sentencing teenth Amendments. process in violation Eighth and 12. The District Court abused its dis- Fourteenth Amendments. We will ad- cretion in holding an eviden- dress each of arguments these in turn. tiary hearing, in denying Riley’s motions conduct discovery and record,

expand the in denying A.

Riley’s applications for for funds medical investigative experts. THE BATSON CLAIM A panel divided of this court affirmed. See prosecution claim violat-

Riley Taylor, 237 F.3d 2001 WL ed the (3d Equal Protection Cir.2001) (hereafter using Clause IX”). “Riley its peremptory challenges strike all The opinion author of this dissented on three claims, prospective jurors two black from raising those Batson and Cald- (claims jury panel race, well violations because of their thereby numbered 1 and 5 above). 5, 2001, On March full leaving juror court no black sitting on jury, granted Riley’s petition rehearing en Supreme stems from the Court decision in 1. Our en banc panel order vacated opin- Judge disposed Riley’s Alito that ten other judgment ion and in full. We will claims, reinstate append Appendix it hereto as A. portion panel opinion authored Kentucky, rejected Riley’s considered and Batson

Batson v. (1986).2 IV, Riley App. 90 L.Ed.2d 69 claim on the merits. the Delaware Su appeal, 887-891. On 1. Preservation of Claim preme hearing judge’s Court affirmed Riley The District Court held that decision, using language expressly re procedurally raising from his barred Superior rejection fers to the Court’s petition claim in his habeas be Batson Riley’s Batson claim on the merits. See that claim to the present cause he failed to Moreover, passage, in that infra note 9. VIII, trial court. See 1998 WL expressly Delaware reaf agree.3 at *15. do not We holding appeal that the firmed its on direct Supreme concluded on Ri Delaware Court prosecution’s peremptory challenges use of ley’s appeal direct “that no Amend Sixth in this case did not violate the state consti peremptory challenge ment claim was fair only no tution. Not is there reaffirmation Court,” ly Trial presented to the and also procedural prior holding concerning of its held, alternate, Riley’s that the Batson default, that but there is no reference to I, Riley claim failed on the merits. 496 holding, leading longer it no us to conclude However, Supreme at 1010. A.2d the procedural relied on a See Harris v. bar. has since made Court United States Reed, 255, 266, 1038, 489 U.S. that, clear the last state court to be “[i]f (1989) (concluding 103 L.Ed.2d 308 that presented particular with a federal claim procedurally claim was not habeas barred merits, any it removes to reaches bar rejected where state court the claim on the might that federal-court review otherwise notwithstanding merits its observation that have been Ylst v. Nunnemak available.” allegations “could have raised [on] been er, 797, 801, 2590, 111 115 S.Ct. appeal”). direct (1991). L.Ed.2d 706 Supreme If the Delaware Court had In opinion his memorandum continued to believe at time of its most granting Riley’s post-convic for a motion recent decision that Batson claim evidentiary hearing, Superior tion a proper was foreclosed for failure to make hearing judge stated that he did not trial, objection at it the time of seems Supreme think the State Court would likely that the Court have made that would position Riley maintain its had failed point expressly, affirming instead of timely present a Batson claim. See III, 130430, judge’s hearing findings *2 on the merits. Riley (citing at WL (Del. State, Indeed, unlikely it is it would Baynard v. 518 A.2d 682 have 1986)).'4 Thereafter, hearing judge judge’s hearing made no comment on the Riley's Although years Baynard, the 2. trial occurred several 4.In Court held that the defen- decision, Supreme before the Batson sufficiently objection dant raised an to the deny Riley's Court did not certiorari in direct peremptory challenges State's which resulted decided, appeal shortly until after Batson was jury being impaneled in an all white where entitling Riley deci- thus benefit of that defendant the race of each black “noted 314, Kentucky, sion. See v. Griffith against perempto- whom the State exercised 708, (1987); L.Ed.2d ry challenge,” "moved the Court to refuse the (3d Deputy Taylor, 19 F.3d 1491 n. 6 peremptory challenges against two of the Cir.1994). jurors quash drawn black and moved to procedural panel entire at the end of the selection 3. Much of the discussion of bar is opinion Judge taken from Alito from process.” A.2d at Riley panel opinion that was vacated. See IX. 237 F.3d 300. 2001 WL 43597. at *2-*6. failure follow its earlier decision on fore- challenges cause, with the result that Thus, interpret closure. we the decision Negroes of no ever petit juries.” serve on the Delaware Court in at V Id. 85 S.Ct. 824. The Batson Court (its recent) most rejection to be a Ri- many noted that lower interpreted courts ley’s Batson claim on the Swain merits. Accord- to hold “that proof of repeated ingly, Riley’s Batson claim procedur- striking is not of blacks over a number of cases ally barred proceed necessary and we to examine its establish a violation of merits. the Equal Protection Batson, Clause.” 476 U.S. at 106 S.Ct. 1712. The Court Kentucky 2. Batson v. recognized Batson this standard “placed had on defendants Batson, crippling bur- Supreme Court re of proof’ den “prosecutors’ resulted in iterated the principle well-settled peremptory challenges [becoming] largely Equal Protection Clause prohibits discrim immune from constitutional scrutiny.” Id. ination on account of race in selection of 92-93, (footnote omitted). 106 S.Ct. 1712 both the venire and petit jury. Accordingly, rejected it the Swain eviden- 476 U.S. at 106 S.Ct. 1712. prin This tiary formulation. ciple, which dates back at least as far as Strauder v. Virginia, West 303, 100 U.S. In jurisprudence the that has (1879), 25 L.Ed. 664 recognizes that racial evolved following Batson, inquiry the has in discrimination the selection of jurors been characterized as a three-step one. only harms “not the accused whose life or Batson stated that “a may defendant es liberty they are summoned try,” to but prima tablish a of purposeful case facie also potential juror, harms the race whose discrimination in selection petit jury “is unrelated to juror.” his fitness as a solely on evidence concerning prosecu the Batson, 87, 476 U.S. at 106 S.Ct. 1712 tor’s exercise of peremptory challenges at omitted). (quotation As the Court noted 96, defendant’s trial.” Id. at 106 S.Ct. Batson, procedures “[selection that 1712. Once the defendant a prima makes purposefully persons black exclude from showing of racial (step discrimination facie juries undermine public confidence one), prosecution must articulate a system justice.” fairness of our Id. explanation race-neutral for its of per use two). granted emptory The Court challenges (step certiorari in Batson If it does so, that it so could reexamine the trial court must evidentiary determine whether opinion burden its Alabama, Swain v. defendant has purposeful established 202, three). 380 U.S. 85 (step S.Ct. 13 L.Ed.2d discrimination 759 See id. at 96- (1965), placed 1712; had a criminal Beyer, on defendant Simmons v. (3d alleged who F.3d Cir.1995); improperly State Deputy v. Taylor, (3d its Cir.1994). used peremptory challenges to F.3d exclude jurors Swain, based on The race. ultimate burden of persuasion the Court regard held that ing had racial with, defendant could motivation satisfy a rests and does prima from, not shift purposeful case of discrimina- defendant. See Purkett facie Elem, tion showing 765, 768, prosecutor, “in case case, (1995). after 131 L.Ed.2d circumstances, whatever whatever crime whoever the de- 3. Challenge Batson in State be, fendant or the may victim is responsi- ble for the Negroes removal of who have selected jurors been as qualified case, In this the hearing judge deter- jury commissioners and mined, who have survived contest, and the State does not penalty. impose the death think she could case of dis- prima

Riley made out facie App. at 804. selection, State jury crimination the. to challenges peremptory its

had used McGuire, Liguori explained forAs jurors prospective all three black strike challenge because peremptory he used the venire, “result[ing] in an all-white from would be unable presumed he McGuire murder sitting degree a first jury on to the full time and attention” “give his and a white defendant involving a black Liguori, According to App. trial. at 801. III, 130430, *2. 1988WL victim.” individual who had was an Mr. McGuire an evi- then conducted hearing judge going this was requested remember, — proceeded to hearing. The State dentiary also. be around Christmas offering inquiry by step of the Batson two requested previously had Mr. McGuire its use of the justifications for race-neutral from service. When to be excused Ray challenges to strike Nich- peremptory thing I up, the first Mr. McGuire came McGuire, Beecher, ols, Lois and Charles earlier, I make clear—as said wanted whom was black. each of to be going I someone that was wanted read all the books you can attentive prosecutor at trial Liguori, the lead pro- regard selecting you want with post- at the principal witness the State’s always it is make spective jurors and hearing, testified conviction relief jurors, people attentive you sure have minority represen- to have “wanted State early getting home concerned about App. at 792- jury panel.” tation on the kids, or care of their vacation. to take jurors who He that he wanted stated requested himself had Mr. McGuire would vote attentive and who would be didn’t. to excuse him. The Court that he He testified a death sentence. inquiry, we through his he went When only not “to make sure we were wanted him cause. judge to for asked the excuse in of murder get to a conviction going It then left us with judge said no. The penalty.” also the death degree, but first not but to think he would no alternative App. at 797. and and attention give his full time Nichols, remem- respect Liguori to With we struck Mr. McGuire. therefore was an clearly that “Mr. Nichols bered App. at 801. who, unfortunately the rec- and individual Liguori, On cross-examination this, not, my in who ord doesn’t reflect Liguori’s handwritten attorney introduced mind, regard to not certain with particular next to notes from voir dire. Written for return a verdict death.” being able to App. the word “Out.” McGuire’s name was added). As (emphasis at 797-798 App. on the same Among the names at 832. and explained, pause “there was Liguori Reed, a white page was that of Charles answering in pause significant [Nichols’] Riley’s jury. on actually served man who voir inquiry [at dire] [the court’s] the sheet was to Reed’s name on Next might that he enough suggest to me was written, Lowe’s, App. wants off.” “works I penalty and to return a death not be able by Ri- Despite repeated efforts at 823. going anyone didn’t want that wasn’t recollec- Liguori’s to refresh ley’s counsel App. at 798- give penalty.” me a death tion, had no recol- testified that he Liguori 799. Liguori whatsoever. lection of Reed however, next to that the notation Beecher, agreed, Liguori testi- regard to With that Reed had re- name indicated of her Reed’s that he struck her because fied from service on the excused quested not to be that she did response to the court jury. Liguori explanation prosecutorial offered no exists in the in actions first Reed. degree his decision not to strike murder cases involving minority segregable defendants and it is not or presented a wit- Riley then McGuire as past history.” severable from App. at 872. post-conviction hearing. ness at the state that, in Lig- testified contrast to Counsel for requested McGuire the State then testimony, uori’s he had never asked to be received an additional four in weeks jury. specifi- “attempt prepare excused from the McGuire which to the same sort of cally indicating denied ever to either the information which ... would be contrary representations to the prosecutors or the court that he was un- made [Riley’s willing App. counsel’s] information.” to serve on the or that he Instead, He informed the court that he had wanted to be excused. he testi- yet been able to fied that his told him that obtain materials from supervisor had cases, other but he assured court going he was to make a request” “formal “they do App. approx- exist.” at 874. Yet be excused and that his McGuire su- imately hearing, one month after the pervisor judge did send a letter to the trial the hearing judge by State advised requesting jury duty. he be relieved from letter January dated from McGuire, Jeffrey M. App. According at 860. Taschner, letter, Deputy Attorney General,1 response supervisor’s to his he was stated full: questioned “Please be advised that the whom he supplement State will not willingness advised of his record of the to serve on the post hearing conviction relief held in jury. App. at 849-850. above-captioned matter on December presented also evidence that 1988.” Letter to this Court from Thomas prosecutor’s striking addition to the (Dec. 16, 1999), (on Allingham J. II BEx. trial, prospective jurors three black in his office). file the Clerk’s County the Kent Prosecutor’s office used hearing judge ultimately accepted peremptory challenges every its to remove explanations the State’s race-neutral juror in prospective black other three rejected claim, Riley’s Batson without first degree murder trials that occurred mentioning any of the evidence introduced year within a of his trial.5 Counsel for the IV, by Riley the hearing. Riley at See objected State to the admission of this App. at evidence, 887-891. The Delaware arguing that evidence of general affirmed, Court likewise without discussion prosecutorial practices only was relevant V, Riley’s Riley of evidence. See 585 A.2d Riley’s prima hearing case. The facie at 725. rejected judge argument this and admitted evidence, explaining being- that it was 4. of Review Standard offered to show that “the exercise of the

peremptory challenges particular in this A presents Batson claim mixed pattern questions case followed some kind of law fact. of and See Jones v. Pregent 5. The three other trials were: c.Daniel struck the lone —state prospective juror black and four whites. Deputy a. Andre struck the lone —state prospective juror, juror Although jurors black a second des- the race of two of the who ''Indian,” ignated prospective and six ultimately impaneled were has not been iden- jurors; white tified, Riley’s the State does not contest asser- b. Judith McBride—state struck all three every impaneled juror tion that was white. whites, prospective jurors, plus black five jurors two other whose race has not been identified; and 278 2254(d) (3d Cir.1993). that a federal habeas requires § 960, 965 987 F.2d

Ryan, disagree with the simply more than court questions plenary review over exercise We rejecting its factual de- court state before § 2254 for to 28 U.S.C. and we look of law further noted terminations.” of fact. findings of of review our standard forth in statutory test set petition Riley’s federal habeas See id. 2254(d)(8) by the existence § “is satisfied Antiter- of the the enactment filed before underlying the [state probative of evidence Penalty Act Death and Effective rorism Id. conclusion.” court’s] 1214, (“AEDPA”) 1996, 110 Stat. govern not our AEDPA does

therefore case, appears it In the instant Murphy, Lindh v. of review. See standard findings were hearing judge’s factual 2059, 320, L.Ed.2d 117 138 521 U.S. regard on determinations primarily based (1997). Instead, federal ha- under the 481 Liguori post- at the credibility of ing the Riley at the time in effect beas statute findings gen are hearing. Such conviction presume must correct petition, his we filed deference” be erally greater owed “even unless one findings of fact the state court’s trial can be aware “only cause statutory exceptions applies. See in demeanor and tone the variations 2254(d) (1988). § U.S.C. heavily on the listener’s voice that bear so rejected Riley’s Bat- what is understanding of belief The District Court City, by relying City on this Bessemer the merits Anderson son claim on said.” Riley 564, 575, 105 S.Ct. of correctness. presumption U.S. Batson, (1985); con- VIII, at *17. see also L.Ed.2d 518 WL (“Since of correctness n. 106 S.Ct. 1712 presumption at 98 tends hearing context ... judge’s findings because the [this] not warranted fairly sup- of credibili findings largely factual are “not will turn on evaluation judge’s record,” ordinarily give 28 U.S.C. should ty, reviewing court ported deference.”). 2254(d)(8) (1988), he “did findings great § and because those full, fair, adequate hear- receive a not Still, signify that “federal this does proceeding,” court ing the State nullity.” ... Caldwell v. Malo review is a (1988). 2254(d)(6) § Because we U.S.C. Cir.1998) (here (1st ney, 159 F.3d appeal pursuant Riley’s resolve Purkett, In the Su “Maloney”). after 2254(d)(8), not consider § we need “implausible or stated that preme Court argument. latter (and probably justifications may fantastic will) pretexts purposeful found to be underlying nature of review The limited court must discrimination.” that a federal requirement addition, Supreme Court has if of fact findings court defer to the state context, in a non-habeas suggested, record” albeit “fairly supported by the they are accept a courts need not reviewing that important policy considerations. reflects credibility Fenton, 104, judge’s findings based on See, trial e.g., v. Miller (1985) not told a if the has determinations witness 114, 445, 88 L.Ed.2d if story” or facially plausible recognizes “coherent and correctness (presumption of evi by extrinsic story his is “contradicted administra- a matter of the sound “as Anderson, 575, 470 U.S. at dence.” judicial actor is better justice, tion of one Thus, we must determine 1504. the is- S.Ct. positioned than another to decide to conclude sue”). support fair there is Spain, 464 U.S. whether In Rushen v. put forth “a coherent that the State 78 L.Ed.2d 267 122 n. of its strikes facially plausible” explanation (1983), that “28 U.S.C. the Court stated in jurors person guilty or to find a of murder the black whether prospective of the “implausible.” degree you are explanations first and would be able to the State’s the record Ultimately, impose penalty. when we review the death must inquiry, the Batson we step three of A: I think so. accep- the state courts’ decide whether ju- A App. prospective at 226-227. white has been explanation of the State’s tance ror, LePore, Angelo provided exact of all the evi- made after consideration yet questions, same answers to the court’s dence on the record. actually he was not stricken and served on Riley’s jury. App. at 231-282. rec- Explanations Race Neutral 5. State’s provides distinguishing ord no basis for hearing, the State post-conviction At the Nichols from LePore. step inqui- of the Batson proceeded two for by offering race-neutral reasons ry Moreover, despite alleged Nichols’ jurors. pri- It did so striking the black pause, prosecutors did not ask the trial Liguori’s testimony. marily through court to remove Nichols for cause or to argue the State failed does inquire willingness further into his His contention step meet its two burden. penalty, though award the death even engage failed to is that the state courts venirepersons excused six requires eval- step inquiry, three which couldn’t, they they cause because said or proffered race-neutral rea- uation of the couldn’t, they impose believed the death light of all the other evidence sons 234-237, 245-246, penalty, App. at 265- the record. responded equivo- and two more who 273-276, cally, App. at 282-286. This rais- contended he struck Nichols be-

Liguori why, actually if question es the Nichols did cause he doubted whether Nichols would willing pause significant pause,” to return a death sentence. He “a the State did on his clear recollection of not seek to have him removed for cause based this doubt significant pause” by Nichols when The record not show “a like others. does claim) (and App. at penalty. asked about the death does not State Yet, Liguori himself admitted to the trial prosecutors expressed ever testimony, no such his the record reflects court the concern that Nichols would be uncertainty penalty, no on Nichols’ pause unwilling impose such the death part. independently expressed con- the court cern, any contemporaneous or that of the dire, At voir Nichols had answered the kept by prosecutors or refuted unsupported by the record A: No. it). Q: any personal Regardless of beliefs have, Similarly, little basis feelings you may

or if the the record offers McGuire, it, prospective justified you distinguishing for evidence would be able 280 jury work-related struck, Reed, to off the for from a wants be juror

black who reasons, challenge than for other juror served without reasons rather white who that he Liguori position testified by the State. for the State’s which is the basis asked to because McGuire struck McGuire to be excused was that McGuire’s desire he jury service and feared be excused from to “want[ ] than Reed’s desire stronger ju- be an inattentive that McGuire would off,” contempora- Liguori’s documented to remember Liguori, who claimed ror.6 neous notes. ben- years six later without pause Nichols’ Nichols and regard both With assistance, had testified that he any efit of McGuire, to mention the state courts failed Lig- regarding at all Reed. no recollection in the opinions in their the weaknesses however, dire, state from voir

uori’s notes and therefore failed explanations, State’s off,” Lowe’s, App. wants that Reed “works required step three Batson complete suggests that Reed strongly which inquiry. juror. inattentive likely to be an too was during voir dire did the point Yet at no over express any ever concern prosecution Evidence 6. Statistical on this jury. on the Based place Reed’s to the Riley’s challenge In addition to evidence, no basis for dis- there is record explanations post-conviction at the State’s desire to tinguishing between McGuire’s hearing striking Nichols McGuire ex-' and Reed’s desire to be be excused by pointing to inconsistencies the rec- cused. ord, Riley introduced evidence distinguish Although the State strains to chal- peremptory used its prosecution that McGuire’s jurors by arguing the two every black lenges prospective to strike jury service was desire to be excused from degree first mur- juror the three other than Reed’s desire because stronger occurring County in Kent within der trials intervened to employer had McGuire’s year Riley’s trial. It did so both for one release, persua- its effort is not seek his and the the other black murder defendant First, testify Liguori did not before sive. In murder defendants.7 these two white judge that this was the basis hearing Riley’s), prosecu- (including four trials strike; fact, testified to Liguori for the jurors prospective tion struck all 8 black himself had opposite McGuire —that called, i.e., contrast, By who were 100%. jury service. excused from asked be chal- prosecution peremptory used its Second, if would have been even McGuire prospec- lenges only 23 of the to strike reasons, inattentive for work-related prose- jurors, or 32%. After the tive white dire connect-

prosecution’s notes from voir challenges to peremptory cution used its to his “wants off’ ing employment Reed’s whites, blacks, Indian, strike to be excused suggest that Reed’s desire race, remaining jurors of unidentified may have been work- from service jurors in makeup of the actual racial Third, is no evi- related as there well. jurors. 48 white See Letter juror four trials was suggest that a dence in the record to Allingham II from Thomas J. to this Court will more inattentive because s/he fact, peremptories. pattern use of post-convic- of race-based McGuire testified at the Ohio, hearing he never asked to be ex- tion See Powers v. jury. (1991) cused from the (excluding ju- 113 L.Ed.2d unconstitutional rors on the basis of race is County prosecu- 7. The exclusion the Kent defendant). regardless of race of the jurors tor in the trials of the two of all black establishing white defendants is relevant (Dec. (on 16, 1999), Ex. A State, file in the it was Riley, the not that failed to office). Clerk’s it. provide again, Yet neither hearing judge in opinion his nor the Delaware Su- An pocket amateur awith calculator can preme Court Riley’s discussed evidence calculate the of number blacks that would systematic showed the exclusion of have served had the State used its strikes from petit juries blacks in Delaware. racially proportionate in a manner. In the fact, having stated that this evidence capital four cases there was a total of 82 was introduced to demonstrate that “the jurors potential on the venires who were exercise of the peremptory challenges in not cause, removed for of eight, whom or particular this case followed some kind of 9.76%, black. If prosecution were had pattern that exists in prosecutorial ac- used its peremptory challenges in a man- degree tions first murder cases involv- proportional ner percentage to the of ing minority defendants,” App. at venire, in the overall only blacks then 3 of hearing judge discussed neither the statis- jurors (8.82%) the 34 peremptorily struck nor tics the State’s explain failure them. would have been black and 5 of the 48 Thus, again by once (10.42%) overlooking ignor- and jurors actual would have been ing significant segment Instead, Riley’s evi- jurors black. none of the 48 were dence, hearing judge’s opinion does not black. satisfy the step crucial third of the Batson Admittedly, there was no statistical analysis. analysis figures presented of these by ei- post-conviction ther side in proceed- Analysis ing. But is it really necessary to have a At the conclusion the evidentia sophisticated analysis by a statistician to ry post-conviction hearing, the hearing conclude that there is little chance of ran- opinion issued a written domly which he selecting four all consecutive white prosecutors’ addressed the reasons for juries? The argued State never before striking jurors, the three black required hearing judge argue does not be- by step three of the inquiry. Batson He fore this court that the selection of four stated: juries consecutive all white could have to pure

been due chance. Nor does it The State in provided this ease race- suggest Riley’s evidence does not ac- explanations neutral for the peremptory curately represent County prosecu- Kent challenges jurors. on all three black Af- practices. Moreover, torial not once has ter examining the demeanor and credi- State offered an explanation for its use bility of prosecutors witnesses peremptory challenges to pro- strike all evidentiary at the hearing, I believe the spective jurors black in the four consecu- State its peremptory exercised chal- capital tive cases. The State has never lenges entirely within the strictures of sought explain data variables the Fourteenth Amendment. No factual other than race. Nor has it sought basis exists for a successful claim of an rebut evidence. equal protection violation. The State successfully any prima rebutted The failure of facie produce the State to evi- showing discrimination in selec- dence from other significant trials is be- tion upon based race. State, cause it was Riley, evidence, have IV, would had access to such it App. at 890-891. This determi- the State that asserted such evi- nation prosecutors did not intend dence was available forthcoming, and to discriminate on the basis of race

282 black; Reed, McGuire, struck, is peremptory strikes who was

exercising their retained, is white. who was challenged jurors is a against the three a finding presumption factual entitled to A a stricken comparison between exceptions correctness unless one of juror sitting juror and a white is black 2254(d) (1988) § Hernandez applies. See determining prose whether the relevant to 365-66, York, 352, 111 v. New justification striking cution’s asserted for (1991). 1859, 114L.Ed.2d 395 juror pretextual. the black is 1209, Prunty, v. 217 F.3d 1220 McClain by Batson inquiry required The (9th Cir.2000) (“A prosecutor’s motives actual focused on the distinctions must be a may pretextual revealed as where court, state ly offered the State applicable to a given explanation equally is hy we can possible not on all distinctions juror of a race who was not different Mahaffey Page, 162 F.3d pothesize. See v. a peremptory the exercise of stricken Cir.1998) (7th (concerning n. 1 483 challenge.”); Lefevre, v. 206 F.3d Jordan reasons, apparent itself with actual Cir.2000) (2d (“Support 201 for the ones, peremptory state’s use of chal purposeful that there was discrimi notion Marshall, 121 F.3d lenges); Turner v. may peremptory challenge nation in the lie (9th Cir.1997) (“The arguments 1253 similarity in the between the characteris that the State has made since the eviden jurors jurors accepted. tics of struck and part pros form of the tiary hearing do not principal difference between Where explanation.”). Apparent po or ecutor’s race, credibility prosecu them is any light on tential reasons do not shed weakened.”); explanation is much tor’s mind prosecutor’s intent or state of (“[A]s Maloney, general F.3d at 653 making peremptory challenge. when matter, challenged comparisons between McGuire, Nichols and the hear As to both situated, jurors similarly unchallenged merely repeated Liguori’s artic ing judge jurors gender or can be of a different race any reference explanations ulated without probative peremptory of whether a chal to, of, Riley’s pre analysis or evidence of motivated.”); lenge racially is Coulter v. accepted the text and seems to have Cir.1998) (7th Gilmore, 155 F.3d justifications at face value. State’s (“A striking a facially neutral reason for juror if that rea may show discrimination „ Liguori simply testified that he struck African- only son is invoked to eliminate inattentive McGuire because he would be jurors oth prospective American and not reason, trial, justifi- at and for no other characteristic.”); ers who also have that apply equally to Reed. cation would (“A Turner, compara at F.3d 1251-52 explanation as to Reed gave The State no analysis jurors struck and those tive plain memory. lack of Liguori’s other than ex remaining is a well-established tool for (3d Ryan, F.2d Harrison Cf. facially race- ploring possibility Cir.1990) prosecutor’s fail- (concluding that pretext are a for discrimi neutral reasons pro- striking ure to recall his reason for nation.”). juror spective did not constitute race- credibility explanation). neutral And the comparison The between McGuire Liguori’s memory lack of is somewhat strongly suggestive Reed is the State’s claimed to re- chal- considering peremptory doubt he race-based use of its See, McClain, “significant pause.” lenges. e.g., The 217 F.3d member Nichols’ jurors (concluding that Batson was violated only distinction between the two proffered of six race-neutral record is that where two apparent from the wholly unacceptable. plausi- “pretextual upon based relative explanations were by implausibility non- responses bility explanation of voir dire or of each comparisons without ob- jurors particular challenge may who were seated for a ... black prosecutor,” and other four jection strengthen the or weaken the of assessment facts); Turner, 121 contrary to the prosecution’s explanation were the as to other (holding Alvarado, F.3d at 1253-54 district challenges.” v. United States finding prosecu- (2d Cir.1991). in that clearly 253, short, court erred 923 F.2d 256 jury in selection tor did not discriminate reviewing suspicion court’s level of “[a] justification striking sole offered for where may ... raised of very be series weak to juror applied equally non-strick- black explanations prosecutor’s for a peremptory Norris, juror); en white Devose v. 53 F.3d challenges. may greater The whole be Cir.1995) (8th 201, (concluding 205 parts.” Maloney, than the sum of its justifi- only violated where the Batson was F.3d at 651. striking three prosecutor cation offered for in It is this connection that we jurors prospective out of four black with pre must turn to the statistical evidence prior jury experience they might was that by Riley pattern sented of the the of by prior out” service and be “burned of peremptories. may State’s use its It be jurors not

where at least five white were evidence, alone, that such standing would although they previously had stricken not be sufficient to show intentional dis juries); Ryan, on v. 987 F.2d served Jones juries by crimination in of selection the Cir.1993) (3d (rejecting prosecu- the County Prosecutor’s in the Kent office proffered explanation race-neutral tor’s is, however, year question. particu in It jurors prosecutor striking black where larly failed troublesome because State rationale to similar- apply did not the same provide Riley’s to as the rebuttal data to jurors); v. Mor- ly-situated white Garrett opportunity given evidence when which (8th Cir.1987) (“The ris, 509, 815 F.2d circumstance, requested. it In that an striking rationale three prosecutor’s [for may fairly inference adverse to the State jurors] purported lack black blacks’ —the recognized, be drawn. As has been education, background, and knowl- of information ... is in the relevant “[w]here clearly pretextual light in of edge—seems possession party provided, of one and not jurors to who his decision not strike white may an inference drawn then adverse be significant way”). in differed no that such information would be harmful willingness Nichols’ answers as his it.” McMa party provide who fails to were the same as return death sentence Folks, Inc., han v. 206 F.3d & Co. Po LePore’s, Liguori’s and were it not for Cir.2000) omitted). (6th In (quotation testimony suspect “significant to the as stated, deed, Supreme has “The Court significant there would be no dif- pause,” production strong of evidence when weak well, except, ference them as between only is can lead to the conclusion available struck, course, Nichols, who was is strong would have been adverse.” LePore, retained, black and who States, Circuit, Interstate Inc. United white. L.Ed. (1939). Furthermore, Accordingly, must piece each of evi 610 State inference that flows accept negative in isolation. dence should be reviewed provide failure to the rebuttal explanation It is clear that for a from its “[a]n data, necessarily inescapable and that inference is particular challenge need not did wholly acceptable County Prosecutor’s office pigeon-holed or Kent light of the nature State’s juries degree its in first also not want blacks on appeal. direct pre-Batson defense on cases. murder recog- in Batson Supreme Court came before appeal direct When significance of evidence nized the Delaware systematic exclusion blacks selecting justified the use of race State stated, systemat- It “Proof selection. occasion, jurors in criminal trials. On that raises an ic exclusion from the venire opportunity first which was State’s purposeful discrimination inference of peremptory of chal- defend the use its bespeaks discrimina- the ‘result because trial, did not lenges Riley’s the State ” Batson, 94-95, at 106 476 U.S. tion.’ explanation, not single offer a race-neutral Texas, (quoting 1712 Hernandez v. S.Ct. instead, it argument; as an alternate even 667, 475, 482, 74 98 347 S.Ct. U.S. permissible that it was so- claimed —even (1954)). recog- It likewise L.Ed. 866 jurors cially exclude based desirable —to systematic relevance of exclu- nized the association,” App. “group on what it called petit jury. See sion of blacks from the 896, Delaware at which a Justice of the 1712; 96-97, see also at 106 S.Ct. id. Supreme reported to have rec- McClain, (finding that 217 F.3d at race,” App. for at ognized “euphemism as a in the venire “the fact that all blacks to the Delaware Su- 1321. its brief an inference of pool were struck raises Court, interpreted preme the State Swain people in where 3 of 39 discrimination” Alabama, 202, 85 v. 380 U.S. S.Ct. black). record pool were On the venire (1965), “recognizing] how L.Ed.2d us, draw- it is difficult avoid before peremptory challenges, even those exer- County the Kent ing the inference association, group cised on the basis of pattern using followed a Prosecutor impar- of an goal foster the constitutional racially in a dis- peremptory challenges jury.” App. tial at 896. The State added criminatory manner.8 “emphatically in a footnote that it denies exer- prosecutor case] [in explain Despite the State’s efforts to solely any challenges cised of his on the evidentiary away parts the various of the race, in assumption juror’s the record as picture Riley presented, has case, of this indicated a context the facts position. its squarely a whole contradicts position prosecution. adverse to the verdict expla- questionable Liguori’s The nature of Rather, argue that even the State will for the strikes of McGuire nations if case, was the no constitutional com- only light such must be evaluated not Nichols mand would have been contravened.” evidence of the use of of the uncontested added). County App. (emphasis at 896 peremptory strikes in Kent but defendant, capital Deputy, did not The third pattern is relevant even has not if challenge composition of the in the prove a Batson violation in the undertaken to makeup Pregent courts and thus the racial Defendants Daniel state other three trials. available when this court de- before venire was not and Judith McBride were both tried decided, likely appeal. Deputy, 19 F.3d at cided the and thus were not Batson was Moreover, Supreme Court in objection, particularly 1491-93. raised a Batson have may made clear that "a defendant and the Batson since neither was black showing purposeful holding prima facie make a Court did not extend the Batson in selection of the venire regardless defendant racial discrimination apply of whether the solely concerning by relying on the facts its juror were the same race and excluded Batson, Ohio, in his case.” opinion in selection until its Powers (1991). (emphasis original). 106 S.Ct. 1712 L.Ed.2d 411 court, Before this the State contends appeals courts of have acknowledged that time, “good that Swain was law” at the so the traditional level of deference should reliance on case cannot be viewed as a not govern appellate prose review when a peremptory concession that some of its explanations cutor’s are obviously not challenges may not have been race-neutral. McClain, credible. See 217 F.3d at 1221 Yet, Argument Tr. of signifi- (“ Oral at 31. ‘[I]mplausible justifications or fantastic purposes cant for here is that in response (and will) may probably be found to be to Riley’s challenge to its use of perempto- pretexts ”) purposeful for discrimination.’ ries, the ap- State never denied on direct Purkett, (quoting 768, 115 514 U.S. at peal played that race a role in its use of 1769); United Griffin, States v. 194 F.3d peremptory challenges; only it claimed (7th Cir.1999) (noting that a basis that it did not solely exercise them based for reversal of state court exists where justification on race. Its practice “the reason given [by prosecutor] certainly suggests that race was at least a completely outlandish or there is other partial basis for its of peremptory use evidence which falsity”); demonstrated its challenges. suggestion And that further Maloney, 159 F.3d at 651 (stating that supports the conclusion we by are led to questions serious pretext of arise when the analysis our earlier of the record that the facts in the record “objectively are con proffered State’s explanations race-neutral trary prosecutor’s to” the explanations). pretextual. are light of the probative lack of In requirement that we defer to in evidence the support record to the find findings the State’s of fact apply does not ings that the perempto State exercised its when findings supported by those are not ry challenges at Riley’s trial in a race- probative evidence. position The State’s is manner, neutral we to give decline these 2254(d) § that under “all that required” is findings deference. Such deference is or is that the findings state court make of based, dinarily part, at least in on the fact, flatly states that because the original trial ability court’s to make con so, hearing judge did we must defer. Tr. temporaneous assessments. See Hernan of Argument Oral at 41. Although the York, dez v. New 500 U.S. at 111 S.Ct. State concedes that we must concern our Recently, Appeals the Court of Rushen, selves under 464 U.S. at 121 n. the Fourth Circuit deferred to the state proba with whether there is findings court’s on a claim precise Batson in tive evidence the support record to the ly because the court had that opportunity. findings, state court’s it then seems to explained, It argue that findings primarily since the are Indeed, it impermissible would be an determinations, based on credibility the exercise in hindsight for us now to upset Liguori mere fact that testified is suffi credibility the trial court’s determination ciently probative support these determi in evaluating prosecutor’s explana- nations. tion. And correctly as the district court

Certainly it required observed, is not that a the ‘retrospective parsing of federal court should defer to a state jurors’ the ‘curricula vitae’ of the is no findings court’s of fact on habeas review as substitute for the observations of long as accepted the state court prose judge, trial who witnessed first-hand the explanation, cutor’s race-neutral process. no matter simply We cannot overlook the incredible, contradicted, how implausi that the trial court had conducted fact may ble it be. contrary, On the several an extensive voir jury pool, dire pretextual. only Not is explanations hun- were documented several which was indication on the record that the transcripts, trial and was there no pages dred hearing judge engaged required and hear able to observe the demeanor prospective jurors responses analysis, but there is no indication so, insight This enabled the did mak- Supreme in court. Delaware compare prosecutor’s expla- findings court to which also would have been ing with what occurred at the bench nation Sumner v. entitled deference. See open significantly, Mata, 539, 547, court. Most (1981). trial court was able to observe the The omission of the L.Ed.2d and conduct and prosecutor’s demeanor step evaluating prof- the State’s crucial explana- credibility of his evaluate explanations light of all the evi- fered tion. gleaned by can the absence of the dence (4th “pretext” opinion in both the of the Smith, word 220 F.3d Evans added). opinion in the Cir.2000) hearing judge and (emphases Nor there Delaware Court. may findings It be that because the opinion sug- any language in either hearing judge made issue here wer.e used, that ei- gests, whatever the words years after the State had exercised its six recognized ther court the nature of the the trial peremptory challenges before analysis required it was to undertake. judge neither wit- hearing and the Ryan, Jones v. we noted state challenges nessed the first-hand nor exam- rejecting a Batson claim court decision chal- ined the witnesses at the time the findings relating contained no factual exercised, he did not note or lenges were analy- prongs the different of the Batson in- comment on some of the troublesome sis, a presump- to which we could accord in race-neutral ex- consistencies the State’s tion of correctness. See 987 F.2d at 965- planations. us is 66. The situation before similar. in a Batson case must be Deference requirement argues in The State that our concern with viewed the context of in criti- engage hearing judge’s that the state courts the three- failure to discuss Ap in a step inquiry. merely Batson As the Court of cal evidence his decision is step described in peals complaint for the Fourth Circuit about the manner which he step “If burden in opinion. supple- [the State’s] [under three: his It states its wrote met, then addresses and may the court two] mental brief that well have been “[i]t by each evaluates all evidence introduced to have further judge better for the state (including all evidence introduced side ... explained his decision the federal [b]ut steps) the first and that tends to second habeas statutes do not set standards that race or was not the real show was writing opinions by judges.” of state Memo, reason and determines whether the defen Appellees at 7. Supp. persuasion.” dant has met his burden of But the concern is not how the decision (4th McMillon, n. 4 F.3d Cir. written, It trifling matter. is the 1994); Jordan, F.3d at 200 see also complete courts to failure the state (stating step inquiry of Batson three required analysis by comparing Batson requires “all the facts and examination of jurors sitting black with the white stricken omitted). circumstances”) (quotation jurors, acknowledging the statistical evi- jurors in Here, striking capital all courts failed to dence of black state County in Kent within a examine all of the to determine murder cases evidence trial, year Riley’s recognizing proffered whether the race-neutral State’s position very State’s this case that use because of the state courts’ omission of a peremptories for racial requirement reasons was under the step third socially both constitutional and beneficial. inquiry Batson an ultimate determina- —of tion on the issue of discriminatory intent Comparable to the case before us is the based on all the facts and circumstances— Gilmore, decision Coulter v. 155 F.3d argument State’s founders. (7th Cir.1998). There the court ac- knowledged that deference is owed to the cannot noting We avoid that Batson was 2254(d), § findings state court under but penalty not a death case. This is. If the rejected findings ap- those and refused to State failed to Riley accord his constitu- ply presumption of correctness be- right tional a jury selected on a race- findings cause “the state made those basis, neutral we must not shirk to so hold. taking without ever into account the totali- Riley’s As lawyer argument, asked at oral ty of the circumstances on the record.” case, “If not this what case? If the evi- requires Id. 920. It noted that Batson dence this case is insufficient to show “that, another, way one or a trial ... court prosecutors’ race-neutral ratio- consider all relevant circumstances before pretextual, case, nales were what short of it ruling issues final on a defendant’s prosecutorial culpa mea would do the compelling motion.” Id. at 921. In a job?” Tr. Argument of Oral at 3. statement of the court’s step role under After consideration of all inquiry, three of the Batson the ar the court guments record, compelled and the we are wrote: prosecution conclude violated In light of the deferential standard of rights Batson, constitutional under post-AEDPA § per 2254 and the and that is entitled to relief. functory quality step of the second of a Elem, inquiry Batson after Purkett v. it Dissenting Opinion 8. The Bat- important today

is more than ever that —The son Issue the Batson inquiry not omit consider circumstances, ation totality of the of the fitting It is Dissenting discuss the both for it itself and as relates to the Opinion at point this because our differ- similarly potential evaluation of situated ence with the Dissent is most acute our jurors.... pre-AEDPA Under the stan respective requirements views of the here, dards that apply agree we with the step inquiry. three of the Batson Al- district court rights that [defendant’s] though the Dissent takes issue with much under Batson were denied. majority opinion, principal the its argu- Id. at 921-22. ment is that in a case the federal habeas rejected The state courts in this ease court must defer to the state courts’ find- Riley’s Batson claim without discussing ings, in this case finding pros- the any ample of the evidence that into peremptory throws ecutor did not use the State’s question explanations the offered the challenges striking jurors black in a man- prosecutor for striking two of principles the black ner that violated the of Batson. jurors nothing and there is relevant in already the We have discussed detail when record that might support otherwise findings the a state court’s are entitled to def- Thus, not, state courts’ decisions. we do not they focusing erence and when are on 2254(d)(8) why know exception § the state courts found the for the situa- explanation plausible State’s and cred- tion findings where state court’s are in light ible of the fairly supported by other evidence. It is “not the record.” See (Standard Review). supra Part II.A.4 Nothing record. in the discussion of the It is finding manifest that Batson hearing judge suggests per- that the court has been satisfied must be made in accor- formed the necessary evaluation. Ri- IV, dance with the process enunciated in that ley App. at 887-91. The hearing case. judge, using language taken from I Batson, rather than understood that his agrees The Dissent step under obligation was to prosecutor’s consider the three of the Batson inquiry judge or proffered explanation for striking ju- court must consider “all of the relevant rors and “then ... be satisfied evidence that has been adduced.” See Dis. explanation neutral ruling and make a Op. discussed, at 321. previously As we App. that effect.” at Accordingly, 888. the courts after Batson have described following what he understood to be the step three requiring or court law, applicable the hearing judge discussed prosecutor’s proffered examine the rea- prosecutor’s proffered reasons for the striking minority jurors sons for here, two strikes at issue and found that against presented by the evidence the de- prosecutor App. was credible. See at fendant the weaknesses in pros- and/or (“the provided credible, State race- See, McMillon, e.g., ecutor’s reasons. neutral exercising perempto- reason for its 4; Jordan, at F.3d 953 n. 206 F.3d at 200. ry challenge”) added); (emphasis id. The Dissent sees no reason to believe that (“The State articulated a specific race- the Delaware courts did not do so in Ri- neutral ground juror for challenging case, ley’s though opinions even of the ....”) added). (emphasis McGuire rejecting Riley’s Delaware courts Batson Throughout, hearing judge made clear challenges never commented on the weak- that he understood that applied “[t]he test or, nesses the State’s case even more credibility explanation giv- important, acknowledged never that there App. en....” Nothing in the hear- step was a three to the inquiry. Batson discussion, ing judge’s suggests that he We, therefore, proceed try to ascertain undertook an evaluation proffered hearing whether the judge and the Dela- light reasons in of the evidence submitted Supreme ware Court made their findings by Riley, which step is the essence of purposeful was no there discrimina- three. tion in accordance process with the re- not, quired by Batson. If then deference It is even more questionable whether on findings to those appropriate. is not appeal from that decision the Delaware The extent of the Delaware courts’ rec- fully appreciated Court the re- ognition of the need to in engage step quirement. Its entire discussion of this inquiry open question three is on this fully issue is set forth in margin.9 In 9. The Court stated: jury had not been violated. 496 A.2d at Court, Superior 1009. The after an eviden contention, Riley’s next that the State exer- tiary hearing Riley's postcon- on motion for peremptory challenges cised its for racial relief, Riley viction held that had reasons, not been simply we find to be a renewed equal protection denied as a result of the attempt reopen previously settled issues. I, peremptory challenges. State’s use of (Del.1985) ], Riley In A.2d 997 [496 we provided court found that the legal analysis set forth State had functionally identi- explanations Supreme analysis perempto cal to the race-neutral for its Court's later Batson, ry challenges. Superi articulated in We find no U.S. at error in I, Riley rejection S.Ct. 1712. Riley's In we or found Ri- Court's Batson claim. ley’s Illinois, right constitutional impartial to an See Holland v. paragraph, phrase differently, this one the Court relied on its it somewhat if the state appeal 1985 decision on direct courts’ findings to which the Dissent would rejected Riley’s challenge where it to the defer were not made accordance with I, peremptory Riley challenges. State’s process required by the United States (Del.1985). 496 A.2d 997 The 1985 deci- Court, Supreme required. deference is not noteworthy sion is because on that occa- (a Batson), year sion before the Delaware digression This into Delaware law concluded, Supreme Court for the first provide was undertaken to the context in time, peremptory that “use of challenges which to subsidiary view the Dissent’s ar prospective jurors solely upon exclude gument, which is that we should assume the basis of race violates a criminal defen- performed Delaware courts Const., I, right § dant’s under Del. Art. 7 step analysis three and that it was not impartial jury.” Riley

to a trial an I. necessary for the Delaware courts to com at 1012. 496 A.2d analysis. ment on that suggest We do not I, Riley In also the Court set out the every state court decision that is the procedure nothing to be followed10 but in subject explicit of a habeas review be as as the Delaware Court’s laudable decision re- Security a Social Administrative Law quires inquiry comparable an to the Bat- Judge’s decision. Op. See Dis. at 321. step son three. The Delaware cases at disability But Batson is not a case. Al appear required that time to have that the though considering a Batson chal articulate, prosecutor provide, or a race- lenge required is not explicitly to comment neutral peremptory reason for the chal- every piece record, on of evidence in the lenges, prosecu- and that the court find the engagement some with the evidence con They tor to be credible. not require do an necessary part step sidered is three comparable evaluation step three. inquiry. of the Batson Therefore, if, appears, as it the Delaware Harris, Riley rejected United States 192 F.3d TV Ri- (6th Cir.1999), ley’s by relying Batson claim on the Sixth Circuit its earlier I, opinion Riley opinion rejection I reviewed the district court’s of a require did not a step inquiry, any challenge three Batson in a case where one Afri assumption that engaged juror the Court in such can American was seated but two inquiry Or, an would be unwarranted. government’s peremp- to were struck (the (1990) 107 L.Ed.2d 905 whether there is a substantial determine[s] Sixth Amendment fair prosecutor exercising cross-section re- likelihood that the quirement impartial peremptory challenges an does not the State’s on the deprive party right ruling to exercise basis of race. A in favor of the State peremptory challenges any any on inquiry. ruling racial or oth- will end further A defendant, however, grounds er from a venire that otherwise favor of the will shift meets Sixth Amendment prove cross-sectional the burden to the State to representativeness). challenges racially standards More- exercised were not moti- over, burden, we reaffirm our earlier decision sus- vated. To sustain this the State ... taining peremptory challenges satisfy State's peremptory must the court that its I, grounds. Riley challenges grounds on state specif- constitutional were made on of ic, bias, juror grounds 496 A.2d at 1010-1013. individual or on rea- V, 719, (Del.1990). Riley sonably particular 585 A.2d 725 related to the case or solely ground trial ... and not on the procedure required 10. That juror's that the defen- race. I, prima showing dant make a facie after which (quotation 496 A.2d at 1013 and cita- omitted). the trial tion 290 in particularly capital after case—and most

tory challenges. Appeals of re- Court applying that even found that the district cases—we have found manded because it standard analysis” step stringent post-AEDPA three of the the more court’s “terse of (not here), are ap- applicable it of there inquiry Batson was insufficient as review “made no reasons not to accord the usual deference peared that the district court See, e.g., credibility prose- findings. the state courts’ weigh effort to the to (3d Horn, 257, v. 266 F.3d 305 striking Jermyn cutor’s asserted reasons Cir.2001) earlier, (post-AEDPA in denial of deference panelists.” year Id. at 588. A (6th Hill, unreasonably ap 337 to state court because it States v. 146 F.3d United Cir.1998), principles of v. Wash plied the same court remanded anoth- Strickland 668, 2052, 104 80 ington, to the district court because its er case (1984)); Morton, inqui- L.Ed.2d 674 Moore v. analysis step three of the Batson (3d Cir.2001) stated, (post-AEDPA court in F.3d ry was insufficient. The court language equally applicable that could denial of deference to state because here, Supreme application us indicates reasonable “[t]he “[a] record before nothing thought precedent requires finding [de court’s ... about district Court unfair processes step analysis apart in its three trial was so infected with fendant’s] process”); due abrupt indicating from its conclusion ness he was denied (3d Horn, Appel v. 250 F.3d Cir. apparent prosecutor’s view that the assert- 2001) justification outweighed (post-AEDPA denial of deference to [the ed defen- because, among things, other showing totality of cir- state court dant’s] under Hill, apply at state court failed to the relevant cumstances.” Id. 342. And here, precedent of States ruling unlike the trial court on the Court United Cronic, per- Batson claim at least stated that it v. (1984)). analysis. weighing

formed some sort of L.Ed.2d 657 Although both of these cases came to As we discuss detail the immediate- Appeals appeal ly preceding opinion, on direct of a section of this see supra (Analysis), require- than on Part II.A.7 district court decision rather habe- decision, the state courts faced with a as review of a state that does not ment challenge engage in the critical detract from the force of the court’s under- Batson required step analysis product in a three is not a of our standing of what is Batson Batson, creativity accepted process required by own but an element of inquiry. The three, obligation if to including step does not habeas court’s examine differ peremptories right to strike whether a defendant’s constitutional prosecutor used the infringed. jurors in a state trial or in a federal trial. to a race-neutral has been See, 200; Coulter, all, Jordan, applies e.g., After the same Constitution F.3d 921; McMillon, 155 F.3d at 14 F.3d at 953 both fora. Jones, 4;n. 987 F.2d at 967. exclusively The Dissent almost on relies weight little statutory presumption of correctness The Dissent accords But disinclination owed to a state court’s factual determina- these authorities. our not mean hearing long string tion made after a on the merits. include cites does that there are not numerous cases in which This deference is indeed the fulcrum on courts, federal, have which our federalism turns. Yet case both state11 State, See, e.g., requiring "that the trial court 978 S.W.2d Batson as MacKintrush (Ark.1998) presented (describing step weigh has been three of and assess what step the Batson three ed: “[T]he made clear failure of the district court to one, merely step a formalistic rule at each of inquiry analysis is not but the Batson deprives ... required analy reviewing] [a court of integral an element of the of Hill, benefit its factual determination and the sis. In addition to Harris and supporting reasons its above, holding.” ultimate cases cited the Second Sixth Circuit And its cases make clear that such review point. has also made this Circuit requires that the trial court’s (2d rulings must Anderson, Barnes v. 202 F.3d 150 Cir. See, clearly be articulated. e.g., Jones v. 1999), court a ordered new trial be (4th Plaster, 417, Cir.1995) 57 F.3d cause the trial court had denied a Batson (“The ruling of the district court is so explicit adjudication motion “without unclear that we cannot determine on credibility of the race- non-movant’s present record whether the ultimate con explanations challenged neutral for the clusion the district court to overrule [the added). (emphasis strikes.” Id. at 156 objection may sustained.”); Batson] suggests The Dissent that we ex Blotcher, 1182, United States v. 92 F.3d authority our ceed as habeas court when 1996 WL 1996 U.S.App. Lexis comment on we the failure state (4th Cir.1996) 19835, *11-*12 (unpub reviewing Riley’s challenge courts Batson (“We lished) find the record so unclear provide a reasoned statement for their that we cannot determine whether the dis rejection Riley’s challenge. Although applied trict court proper legal analy required the state court is not to “com in sustaining prosecution’s sis Batson it, all ment on of the evidence” before Dis. objection peremptory to [defendent’s] added), Op. (emphasis adequate an against juror.”). strike [a] step analysis requires three Batson some Most of the Dissent’s other comments “terse,” Harris, thing more than a on the in Batson issue this case have been Hill, “abrupt,” F.3d at 146 F.3d at previously anticipated and discussed. We prosecutor comment that the has sat however, opportunity, take this to remark isfied Batson. upon in the manner which the Dissent Similarly, we do not think that a upon pat- comments the reference to the reject may habeas court a state court’s peremptories tern of the State’s use of its ruling simply on a Batson claim because jurors exclude black all four first persuaded by “it particular piece was not cases, degree including Riley’s, murder proof,” Op. as the Dissent states. Dis. county year. tried the same Be- However, explained, at 320. as we have cause of the lack of information about any such no cases, without statement there is some of those we refrained from basis on this record to determine if the evidence, suggesting that standing such undertook, alone, state courts or even were would show intentional discrimina- of, required step aware Batson three pointed tion but out that it was the State inquiry. expressed The Fourth Circuit sought opportunity produce sup- an Joe, thought same States v. 928 plementary following United evidence. The corre- (4th Cir.1991), spondence, preceded by F.2d where it oral stat- which was fanciful, light it to decide whether in of all the [but] circum ter how whimsical or ... stances, proponent’s explanation permit questioned [peremptory] is or is order to Collier, challenge, pretextual”); prof- State v. ... 553 So.2d must conclude that the first, (La. 1989) are, (holding the trial fered reasons neutral and reason- "[rjubber able, and, second, simply stamp pretext”) (quotation cannot ... [a not a omitted). prosecutor’s] explanation, non-racial no mat- dialogue quoted previously in opinion, this without explanation, produce declined to 277, supra at clarifies the situation. evidence that juries blacks served on in degree first county murder cases in 9, 1989, January On hearing period Riley the same that was tried be- wrote to counsel: fore an jury. all-white presumption The This will confirm the conclusion of the that could be drawn from these facts is one postconviction relief hearing of the circumstances that should have been above-captioned matter. It evaluated the Delaware courts in the Court’s understanding that the defen- required step inquiry. three presentation dant’s and all rebuttal The Dissent comments Riley of- the State available on the date of the expert fered no analysis of the statistics. hearing completed. However, has been procedural posture The of the case at the request, State’s the Court did hold provided time no opportunity. such open the record on hearing to be produced evidence of the statistics of the supplemented by summary a rebuttal composition racial jurors in the four jury composition in State peremptory cases, the State requested the additional challenges in first degree murder trials provide counter-evidence, time to and the County Kent peri- over a determined hearing judge open left the record for that od of time if the State wished to supple- purpose. There would have been no basis ment the record. expert analysis until all the evidence as Further, the hearing record will close composition produced. The 30, 1989; on January expects the Court State’s letter it produce would no proposed findings of fact and conclusions evidence days was dated three before the of law parties from both no later than record closed. 6,1989.

February Further, attempt Dissent’s to analo- gize Letter to this Court statistical evidence of from Thomas J. the use of (Dec. peremptory 16, (on Allingham 1999), challenges ju- II to strike Ex. B black file office) percent rors to the added). presi- the Clerk’s left-handed (emphasis requires dents some comment. The dis- later, Some three weeks on January sent has overlooked the obvious fact that just before the hearing record provision there is no in the Constitution close, was to the State advised the court as protects persons from discrimination follows: based on they right-handed whether are or Please be advised that the State will left handed. To suggest any comparability not supplement post the record of the to the striking jurors based on their conviction relief hearing held in the race is to history minimize the of discrimi- above-captioned matter on December against nation prospective jurors black 1988. defendants, black which was the raison Id. d’etre of the Batson decision. State,

Thus the reiterate, which had assured the To findings the factual court that materials from other eases “do of a state court are entitled to deference exist” that would contrary only “probative when there is evidence representation, App. at having underlying Rushen, [its] conclusion.” See been given opportunity that it request- 464 U.S. at 122 n.

ed supplement the record points with evidence Dissent to no probative such evi jury composition, surprisingly and dence. It merely credibility relies on the judge, finding requirement a that to be consistent with the finding hearing highly unlikely Batson. It is following the wit- sure was made we cannot be can provide illuminating nesses more testi- presented consideration of all the evidence Moreover, mony years thirteen later. by Riley pointed and the weaknesses he to there are no factual issues that can be proffered in reasons. prosecutor’s by evidentiary hearing.12

solved a federal Remedy Although the Dissent Appropriate chooses to character- 9. ize the result this case as a federal at When counsel for the State was asked findings court’s substitution of its own whether, if argument the en banc this court, those of the state in fact we are violation, court were to find a Batson merely fulfilling the traditional role of a grant State would rather the relief be the court, is, part, federal habeas which of a trial or the remand for a federal new determine whether the state court’s deci- candidly evidentiary hearing, counsel re- “fairly supported by sion is the record.” sponded: possible The one factual issue cannot be MR. MEYERS: If we—the answer is by a hearing,13 resolved and the statistical mean, If, yes. and if we—I if the court evidence, might subject which be the imagines, problems has all these with analysis some at a hearing, such is rele- years done hearing was six dispositive vant but not to our decision. trial, problems after the those are sim- question remedy a habeas amplified by ply going magnified, to be court following finding should order a exponential magnitude years order of process comply the state did not with con if you after the trial. I mean think that requirements stitutional new one. people memory problems years, have six (2d Kelly, Brown v. 973 F.2d 116 Cir. you going how much worse are 1992), appeals the federal court of years later? comparable faced with a situation as that 46. Argument Tr. of Oral at coun- before us. Defendant was convicted concurred, stating that a habeas sel federal degree state court of murder and first judge would be no better off than the robbery. eventually He came to the feder hearing judge was in 1988. petition al court with a for a writ of habeas agree. oppo- Much of the alia, We Dissent’s corpus, a violation of claiming, inter majority’s sition is directed to the failure Batson. The federal courts did not find to remand to the District Court for that Batson had been violated but may hearing opportunity but the Dissent have over- Second Circuit took the parties preferred remedy looked that both a new appropriate consider the when trial to a remand should this court find constitutional violation is found the fed court proceedings sitting that the state were not shown eral courts habeas. The testimony unlike the in Hakeem v. tween McGuire's that he did not 12. This is situation (3d Cir.1993), excused, Beyer, F.2d 750 where we request App. and the to be finding regarding held that state court’s judge's trial statement that McGuire came to delay proceedings in the was not entitled excused, requested App. at see him and to be presumption to the of correctness but directed agreed McGuire saw the trial 250. It is the district court to determine in a federal judge, it at the but McGuire testified was evidentiary hearing the habeas reason for judge’s is de- direction. As delay. ceased, evidentiary hearing a federal would issue, impor- even were not resolve this if it it, Although party neither has focused on tant to do so. apparent discrepancy factual be- there is an stated, “[T]here are cases where the pas- corpus, and remand for the District Court sage of time may impair a trial court’s grant prejudice writ without to the ability to make a reasoned determination retrying State pursuant case to the prosecutor’s state of mind when the guidelines to be set the District Court. jury was selected. Where such demon- strably exists, there must be a trial.” new B. Id. at 121.

The Brown THE court cited CALDWELL United CLAIM States v. Alcantar, (9th 436, 897 F.2d 438-39 Cir. In addition to Riley’s pre- Batson claim 1990) (ordering a trial new because there sented to court, the banc Riley en argues was inadequate determine, evidence to as prosecutor that the and trial judge the part of Batson analysis, why jurors the made remarks jury to the during pen- the struck). Barnes, were And in 202 F.3d at alty hearing that jury misled the as to its 157, the Court of Appeals a ordered new sense of responsibility in the sentencing trial rather than a remand for a hearing on process, in violation of the principles set the Batson issues because the trial forth in v. Caldwell 472 Mississippi U.S. had died and the court was “not confident 320, 2633, (1985). 105 S.Ct. 86 L.Ed.2d 231 ... that further proceedings ... would Caldwell, In Supreme the Court held that shed light reliable upon the voir dire.” prosecutorial comments at sentencing vio- omitted). (quotation Eighth lated the Amendment leading The circumstances of this case are jury the to that believe ultimate responsi- closely analogous to those Hardcastle v. bility for determining the appropriateness Horn, 98-CV-3028, 2001 WL 722781 of the death sentence rested with the state (E.D.Pa., 27, 2001), June where the district supreme court. 333, See 472 U.S. at 105 court a found Batson violation but dis S.Ct. missed the notion of ordering a federal Court, The Delaware evidentiary hearing on instead of a new trial appeal, rejected direct court, state commenting Caldwell that “[n]early claim, commenting twenty that years passed “[i]n have no may sense since Petition it trial, reasonably er’s such be said length prosecutor a of time even that Respondents either misstating law, admit the misleading that an evidentiary hearing jury role, on the as to its Petitioner’s or minimizing Batson claim is its unlikely helpful.” sentencing I, to be responsibility.” Riley Id. at *19. The 496 Hardcastle court A.2d at 1025. that “[a] stated District agreed, new is especially appropriate here, denying Riley thus where habeas relief. See Ri VIII, passage the ley time 172856, makes a new eviden WL at *31. A tiary hearing on petition Caldwell impossible.” presents claim questions mixed Likewise, Id.14 we see no law subject reason and fact to order to plenary review in provide District Court to an the habeas Fenton, with context. See Miller evidentiary hearing it declined pro 112-14, to 106 S.Ct. vide prior on two Instead, occasions. (1985); we L.Ed.2d 405 see also Moore v. will reverse the Gibson, District Court’s (10th order de 195 F.3d Cir. nying Riley’s petition 1999). for writ of habeas

14. The appeal Hardcastle is case on to this not intended opinion to reflect an as to the court, our aspect reference to this limited of the merits District Court’s decision on the decision, here, of the applicable which is is Batson issue. misleading as curate, it was both because in a attorney Caldwell, defense In court’s re- appellate the nature with pleaded murder case capital jury’s role depicted it sentencing and because view at arguments closing at odds with fundamentally way life. in a defendant’s spare phase per- must sentencer capital role that stated: prosecutor reply, the 2633. Justice Id. at form.” to be I intend gentlemen, Ladies deciding fifth and O’Connor, cast the who disagreement complete I’m in brief. “[j]urors may har- vote, emphasized tak- has defense approach with power of misconceptions about bor it’s I think it’s fair. think I don’t en. matter, or, for that courts appellate state lawyers know better. I think unfair. Supreme Court] United States [the you believe Now, have they would Id. death.” sentence of jury’s they override kill this man going you’re J., (O’Connor, con- decision your they know know— O’Connor, According to Justice God, curring). how My decision. not the final imper- were statements prosecutor’s reviewa- job is the Your you can be? unfair the mis- they “creat[ed] because missible it. They know ble. appellate that automatic impression taken (emphases S.Ct. 2633 at pro- jury’s sentence would the of review added). of determination the authoritative vide to objected counsel defense Caldwell’s whereas appropriate” was death whether overruled trial court the but this statement scope of re- law the relevant state under “proper it stating that was objection, the the verdict limited to whether was view auto- it is jury reviewable the realizes that against the that it arbitrary was “so was commands.” penalty matically as the death Id. of the evidence.” overwhelming weight continued: prosecutor The Id. J., (O’Connor, con- at S.Ct. remarks, at- they their Throughout omitted). curring) (quotation spar- you opposite, the give to tempted shall not ‘Thou They said truth. ing the 1, 114 Oklahoma, 512 U.S. In Romano v. him, to applies it to applies that kill.’ If (1994), the Su 129 L.Ed.2d is the your insinuating that decision you, hold the Caldwell clarified Court preme they’re gonna that and final decision concur O’Connor’s Justice ing. Accepting in the front out Bobby take Caldwell Romano Court controlling, the rence as string and in moments this Courthouse prosecu- prohibits that Caldwell explained terribly un- terribly, is up and that him jury as “mislead the that comments torial know, know, and as I they For fair. in a sentencing process in the role to its deci- the you, told that Baker has Judge re to feel less jury the way that allows automatically re- is you render sion sentencing for the it should than sponsible Auto- Supreme Court. by viewable the (quota 114 S.Ct. at Id. decision.” I it’s I think unfair matically, and omitted). establish Accordingly, “[t]o tion them so. telling mind don’t violation, necessari a defendant a Caldwell (emphasis 325-26, Id. the remarks show ly must that added). assigned the role improperly described (quotation law.” Id. jury by local in Caldwell jury’s sentence

Although the reject omitted). subsequently by The review to automatic subject indeed was “the because claim Romano’s Caldwell court, ed States the United supreme state ' regard affirmatively misled not jury was stated opinion plurality Court’s Supreme Id. process.” sentencing its role ing “inac- was statement prosecutor’s that case, Riley’s Liguori began open- his However, sentence of death. that auto- ing comments in phase the penalty limited, matic extremely review was as was stating: that of Mississippi Supreme Court in Caldwell.

As Judge explained has you we specific have a statute regard with At the time of sentencing hear- penalty what occurred in a hearing in a ing, the portion relevant capital capital case. sentencing provided: statute Let sayme at the you outset what Supreme Court shall limit its review today do automatically is reviewed under this section to the recommenda- our Court and why is tion imposition on and of the penalty of there is an automatic review on the death and shall determine: penalty. death That you is if why, re- Whether, a. considering totality death, turn a decision of why you aggravation evidence in mitiga- will receive and have to fill out a two- tion upon which bears the particular page interrogatory that the Court will or circumstances details of the offense give you. This is an interrogatory that and the propensities character and specifically sets out questions offender, penalty the death request State or whether arbitrarily either or capriciously im- you beyond it believe a reasonable doubt posed or recommended.... you and your determination, if want in if (1982) § Del.Code Ann. tit. 4209(g)(2) you believe the sentence should be death added). (emphasis Indeed, in Delaware than every each and you one of has to jury’s the weighing of aggravating and sign goes this. This Supreme to the was, mitigating prac- circumstances all for why Court. That is it is concise and we tical purposes, final. We have found no clear it believe and should be looked published opinion during the relevant túne carefully on and answered appropriately. period in which the Supreme Delaware added). App. at (emphases Court jury’s reversed a sentence of death as arbitrarily or capriciously imposed.15

At argument oral before en the banc court, the State conceded Liguori’s that then, that, It is apparent, prose- like the statement, face,” at least “on its is no cutor’s Caldwell, statement in Liguori’s from different that of prosecutor the in reference to automatic appellate review Caldwell. Tr. of Argument Oral at 49. misleading was as scope to the appellate Counsel for the State told us that when review. explained Caldwell, As was ju- “[y]ou two, compare they the pretty are may rors not understand the limited na- much alike.” Tr. of Oral Argument at 49. ture of appellate review, which affords Caldwell, Like the statement Liguori’s substantial deference jury’s to a determi- regarding appellate statement automatic nation that death is the appropriate sen- review technically was accurate since Dela- 332-33, tence. U.S. at ; provided ware law for automatic review by Furthermore, 2633. jurors who are un- the Supreme Delaware jury’s Court of a convinced that death is the appropriate capital sentencing The Delaware scheme termining whether the defendant will be sen- substantially was amended in 1991. Under imprisonment tenced to life or death." State statute, the jury amended “the now functions Cohen, (Del.1992). 604 A.2d only advisory capacity. an judge, after contrast, sentenced, jury's when the taking jury's the recommendation into consid- death binding judge. sentence was on the eration, responsibility has ultimate for de- and retribu anger, judgment a mixture of to send eager but who are punishment tion, for the defendant’s a determination whether disapproval requires message prose- to the “very receptive might be acts beyond pale acts are so certain [they] can more assurance that cutor’s as to warrant community standards may be cor- error freely err because the Sawyer, 881 of their author.” execution 331, 105 Id. at appeal.” rected on any than more Perhaps F.2d at 1278. omitted). As one of our (quotation jury, a sen decision other rendered explained, “[flor circuits has sister “irreducibl[y] discretion of death is tence not, or advisory it is when to see itself Caldwell, ary.” Id. Yet that its decision by a belief be comforted that in the truth of “[b]elief noted make the others have effect unless will not treat their assumption that sentencers decision, of the es- is a frustration same appropriateness power to determine Sawyer v. jury function.” sence has responsibility awesome death as an Cir.1989). (5th Butler, 1273, 1282 F.2d sentencer dis allowed this Court view argue, as enough It is therefore indeed as cretion as consistent with—and does, at Liguori’s comments State Eighth Amend indispensable to—the accurate sentencing were correct reliability in the determi ment’s need The statute of Delaware law. statement appropriate pun nation that death is the different than 40 the time contained more 472 U.S. at specific ishment in a case.” re- detailing procedures provisions omitted). (quotations 105 S.Ct. 2633 sentence, applicable to a death quirements particular concern It follows there is prosecutor chose only one but suggestions “when there are state-induced for automat- providing emphasize was jury may shift its sentencing jury’s sentence. ic review of the appellate to an responsibility sense of satisfactorily ex- Nor does State in Zettle Id. our decision court.” Unlike to “automatic why Liguori referred plain (3d Fulcomer, F.2d 306 moyer v. penalty” in connec- the death review on Cir.1991), rejected a Caldwell where we interroga- explanation of the tion with his claim, sug was no part “[t]here in because interrogato- App. at tory form. only questions: jury two the Su ry gestion [state] form contained to the that unanimously found be- jury the anyone whether else would ... or preme Court aggrava- that an a doubt yond reasonable case,” the in the here have the last word and, if the ting circumstance existed16 “there is both prosecutor expressly stated it unani- “yes,” whether jury answered goes to and “[t]his an automatic review” a sentence of death. mously recommended App. at 393. Supreme the Court.” [state] form straightforward simple Such was no suggests that there The Dissent Instead, explanation. hardly needed an prose- the here because violation Caldwell have been appears to “explanation” that very the “near cutor’s statement made jury to the segue to alert the used as summation,” and consist- Supreme Court his beginning fact that the Delaware automatically unemotional, review its decision “accurate, would re- passing ed of impose a death sentence. also characterizes marks.” The Dissent mere as “the prosecutor’s remarks the capital sentencing cases

“The decision an would be the fact there unique mention of an born out of inherent is aggravating cir- already found an had been instructed jury previously had 16. The murder, that, existed. felony it cumstance by convicting Riley of appeal automatic supreme the state gard jury’s the recommendation of death court.” though even no state had fact so). ever doné

It is prosecutor’s true that the state- ment was made near beginning of his Given the limited nature of the summation, but his summation was not a Supreme Delaware Court’s review of a lengthy speech, occupying a mere four jury’s sentence of death at the time of pages 393-97, App. at transcript, of Riley’s a fact sentencing, Liguori did not question which the remarks in take almost explain to the jury, we conclude that there full page. We cannot tell they whether was a Caldwell violation this case.17 As not, were “emotional” or they but can Caldwell, suggested in jurors unlikely are hardly be characterized as “passing,” as to understand exceptionally narrow prosecutor began by saying, “Let me scope appellate given review to jury say at you the outset that today what do determinations on death. See 472 automatically by Supreme reviewed our 330-31, 2633; see also id. at And, above, Court.” as we noted in that (O’Connor, J., S.Ct. 2633 concurring). paragraph, prosecutor one referred not Although Liguori’s brief, remarks were once but twice to Supreme Court— they were the first comments that jury mentioning both “automatic review” and heard at sentencing, making them more interrogatory completed by likely to have impression. made an A jurors “goes also to the statement does not have to be lengthy to Court.” be effective in suggesting to the responsibility ultimate for sentencing lies We are unwilling to lightly treat elsewhere. prosecutor’s pointed references to ap pellate review of Moreover, this crucial decision. nothing the trial court said Statements, like prose those made any corrected misimpression left here, cutor “can be literally true quite prosecution’s but statements, as the judge misleading by failing, for example, to dis made no comment whatsoever pertaining close information essential to make appellate what review. Unlike Jones But- was said not misleading.” Sawyer, ler, (5th Cir.1988), F.2d where F.2d at result, 1285. As a a Caldwell the Court of Appeals for the Fifth Circuit may violation be established where a tech held that prosecutor’s statement nically accurate “[I]f, fact, statement describing you return do the death pen- appellate state process review alty yours nonetheless ... will not be the last word. jury “misled the to minimize its Every role sentence by is reviewed the Su- sentencing process.” Delo, Court,” Driscoll v. 71 preme improper by but cured (8th 701, Cir.1995) F.3d 713 (holding that prompt curative by instruction the trial prosecutor had violated Caldwell em judge, here there was no curative instruc- phasizing that the trial could disre- tion.18 argument

17. At oral counsel for the misleading State they because of what did not tell acknowledged jury. "[p]erhaps practice better would have Liguori been for to insert the ” 18. We persuaded by Riley's are not conten- word limited’ into his reference to automat- judge’s tion that the repeated trial references appellate ic Argument review. ofTr. Oral at jury's to the determination on death aas 50. This could be construed as a concession jury "recommendation” misled the as to its by the Liguori’s State that comments were responsibility actual sentencing in the pro-

299 make clear progeny and its Caldwell to jury must continue sentencing

that “the III. long as so responsibility of weight feel publicity argues adverse Riley next at Sawyer, 881 F.2d responsibility.” has it trial an obtaining him from prevented remarks prosecutor’s Because contends, first, it jury. He impartial thinking the jury into misled the may have preju- that he was presumed should final was the Supreme Court Delaware the rec- by pretrial publicity because diced fate, conclude that we of arbiter a “hostile the existence of ord establishes violated rights were Riley’s constitutional and, second, that atmosphere” trial Thus, we to even were Caldwell. under jurors were un- that several record shows a Batson not shown Riley has find impartial exposure due to able to be trial, we him to a new entitling violation publicity. pretrial unfavorable District Court would direct still entitling corpus the writ habeas grant A. hearing. sentencing Riley to a new community reac or other media “Where engenders tion to a crime or defendant III. pervasive atmosphere an so hostile process, a court a rational preclude CONCLUSION pre error will reviewing for constitutional for the issu- case appropriate This anis without prejudice to the defendant sume corpus. One a writ of habeas ance the atti an reference to examination operation of objections to the principal the defen served as of those who tudes it country is that in this penalty death Zimmerman, v. jurors.” Rock dant’s against unevenly, applied particularly is Cir.1992). (3d also 1237, F.2d concern Another black defendants. poor Maxwell, 333, 86 384 U.S. Sheppard v. pro- complex review that because (1966); v. Estes 16 L.Ed.2d comprehend the cess, may Texas, 85 S.Ct. decision. of its significance life-or-death Louisiana, (1965); v. Rideau L.Ed.2d 543 in this implicated issues are of these Both 1417, 10 L.Ed.2d follows. appropriate An order case. Delaware, 68 F.3d (1963); v. Flamer banc). Cir.1995) (en (3d commu “The ALITO, Judge: Circuit however, reaction, must media nity and as to pervasive hostile and so have so been A APPENDIX care the most that even apparent it make would be unable process ful voir dire Opinion from Excerpts Panel cases Such impartial jury.... an assure Taylor, Rock, 959 F.2d exceedingly rare.” are No. 98-9009 1252-53. a case, made courts this state In 17, January 2001 Filed finding a Such impartiality. finding of ALITO, SLOVITER, and STA- Panel: Yount, deference, v. see Patton entitled to PLETON, Judges Circuit 2885, 7, 1025, 104 S.Ct. n. 1031 & ALITO, Judge: Circuit (1984), no we find L.Ed.2d 847 81 finding. overturning that basis Cir.1995). (3d Delaware, F.3d 710 68 generally v. cess. Flamer 300

Riley relies on relatively small Q.... number you Because of what read articles, newspaper of almost half of which the newspaper, you do you feel that appeared six or months more could sit impartial before the here as an jury? trial. Although two of the articles named Yes, A. because I know of nothing Riley suspect as a in Feeley’s murder, and the evidence or anything else. although a few of the articles discussed the App. 278. plight children, Feeley who were Carl Patterson during voir dire was orphaned murder, by the the articles were asked whether anything he had read in the inflammatory. short, In the media newspaper had prejudice bias or created coverage was not “so pervasive hostile and against the defendant. See App. 294. He preclude to as a rational trial process.” responded that he could not remember

Rock, 959 F.2d lot of what he read the newspaper. See

id. The following colloquy then occurred: B. Q. you Then do any know of reason you why can’t impartial render an ver- Riley Because pres- has not shown the solely dict based upon the law and the ence of circumstances justifying pre- evidence? sumption prejudice, he “must establish No, A. Your Honor. actually those who jury served on his Id. capacity lacked a to reach a fair and im-

partial verdict solely based on the evidence implicitly found that they heard in Rock, the courtroom.” jurors 959 these impartial, were and the Dela F.2d Patton, at 1253. See also 467 ware Supreme U.S. at agreed on ap direct 1035, 2885; 104 Dowd, peal. S.Ct. Irvin v. implicit Such findings 366 are entitled 717, 723, 1639, a presumption U.S. 81 S.Ct. 6 L.Ed.2d 751 correctness. Parke v. Ra (1961). ley, 20, 35, “The 517, fact that U.S. may members (1992); L.Ed.2d 391 exposed have been press Snyder, or Weeks reports (3d F.3d community other WL 975043 July Cir. concerning reaction 2000); Campbell v. Vaughn, case and even 209 F.3d they the fact that may have (3d Cir.2000), we ground formed a see no opinion tentative based on that for holding that presumption exposure has been will not establish a constitutional overcome. violation if found, the trial court has with support, record jurors that each of the IV. to put able aside extrinsic influences.” Riley argues prosecution Rock, violat- 959 F.2d at 1253. right ed process his to due failing jurors, contends that two Leon exculpatory disclose posses- evidence its Patterson, Morris and Carl were unable to sion required by Brady v. Maryland, impartial exposure due to to pretrial 10 L.Ed.2d 215 publicity. agree. We do not (1963). Brady, Court held Morris testified during voir dire that he suppression “the prosecution “had read something about” the case in the evidence favorable to upon an accused re- newspaper at the time of the murder quest process violates due where the evi- that he had on heard the radio that the dence is material guilt either to or to case was “coming trial.” App. 277. punishment, irrespective of good faith following The exchange then occurred: or faith of prosecution.” bad the 87, Id. at

301 however, for counsel argument, At oral Brady a valid To state 1194. 83 S.Ct. that an examina- represented appellees the evi that the show must claim, plaintiff wiretap on Mrs. of the logs of the tion favorable, (2) (1) suppressed, dence any in- reveal did not telephone Baxter’s See Unit (3) to the defense. material and Baxter in which tercepted conversations 967, 970 Perdomo, 929 F.2d v. ed States pro- logs were Copies of the participated. if Cir.1991). material (3d is Evidence court, the and to attorneys Riley’s to vided the probability a reasonable is there a letter- attorneys submitted Riley’s the had different have been would outcome of the contents on the commenting brief defense. to the disclosed been evidence and it logs, the examined have logs. We 667, 473 U.S. Bagley, v. See United States is representation state’s that the appears (1985). 3375, 481 L.Ed.2d 678, 87 105 S.Ct. any conversa- record see no correct: we impeach to may be used Evidence The participated. Baxter in which tions Kyles material. Brady may qualify any not mention logs do revelation 445, 419, 115 S.Ct. U.S. Whitley, 514 v. the undermines fatally conversations such (1995); 473 Bagley, 1555, 490 L.Ed.2d 131 briefs. Riley’s made argument Brady 676, 105 S.Ct. at U.S. com letter-brief post-argument In their attorneys Riley’s ad logs, the menting on concerns argument Brady Riley’s that an to show arguments vance different mother of the telephone the wiretap on wiretap record of the inspection in camera trial, law- Riley’s Before Baxter. Tyrone seeking an A defendant required. ings is recordings produce to state yer asked whether to inspection determine in camera calls, but intercepted transcripts or at least Brady must material contain files tapes refused, arguing that state the in showing” that “plausible make a With- material. exculpatory no contained evidence. material will reveal spection himself, tape listening to out 39, n. Ritchie, v. Pennsylvania represen- accepted prosecutor’s judge (1987) 989, 94 L.Ed.2d pro- Riley’s motion and denied tation Valenzuela-Ber States v. (quoting United pro- subsequent Throughout duction. nal, court, no federal in state ceedings (1982)). speculation Mere L.Ed.2d tapes. listened Navarro, States enough. United Cir.1984). (7th made appeal, this 737 F.2d his briefs attorneys Riley’s by asserted made arguments He Brady argument. strong not sat do submission Feeley post-argument murder their time between standard. isfy to his this arrest, spoke “Baxter Baxter’s occa- several on telephone on the mother several note that attorneys first testimony was “Baxter’s sions”; that conversa- refer “expressly log entries him; against” strongest evidence Let- Baxter.” State’s Tyrone 12/16/99 about tions his added). by Baxter it is made But statements (emphasis and that at 3 ter-brief im- valuable Baxter provided “about” might have that statements unlikely mother at 5. made Br. statements Appellant’s persons evidence. third peachment —unlike contended, used state been have minimum, he himself—could Baxter At a have or testimony could have should Baxter’s impeach District Court or the courts other some trial on to deter- admitted in camera been tapes to the listened alone, it is un- reason For that Brady ground. mate- they contained mine whether material. are these statements likely that rial. See Bartholomew, Wood v. 5-6, A. (1995). 133 L.Ed.2d 1 More Riley contends that the District Court over, even if problem of admissibility is required was to hold an evidentiary hear- aside,

put it is pure speculation to suppose ing on question of procedural default that the contents of the statements are in for two First, reasons. he maintains that any way exculpatory. at least some of arguments that the District Court held were procedurally Riley’s attorneys suggest also that con- might barred presented have been to the versations between Baxter and his mother Supreme Delaware Court during the oral may have been intercepted and recorded argument of his direct appeal even though but person or persons who com- those arguments were not contained in his piled logs may not have recognized brief. Because the record does not include This, Baxter’s voice. however, is nothing a transcript of the argument, oral Riley purest but the speculation. noteWe maintains that the District Court should wiretap occurred while police were have held an evidentiary hearing for the seeking to Baxter; arrest they therefore purpose of reconstructing the record. See had a strong incentive identify him if he Appellant’s Br. at 38-39. disagree. We participated in any of the intercepted con- On direct appeal, Riley represented was versations. We have considered all of Ri- by the attorney same who had represented ley’s Brady arguments and find them be him at trial. In his amended peti- habeas without merit. tion, Riley acknowledges that no ineffec-

tive assistance argument was made in the V. direct appeal brief that was ultimately sub- mitted on his behalf and accepted for filing Riley argues that he was denied the by the Supreme Delaware Court.2 See effective assistance of counsel penal- at the App. addition, 1198. In opinion issued ty phase of his trial.1 The District Court by the Supreme Delaware Court in the held that many of Riley’s arguments con- direct appeal makes no mention of ineffec- cerning the alleged deficiencies his at- tive assistance of counsel. Riley See I. torney’s performance were present- never Under these circumstances, the District ed to Supreme Delaware Court and Court certainly was not required to con- were thus barred, procedurally and the duct an evidentiary hearing to determine District rejected Riley’s remaining whether attorney represented who Ri- arguments regarding this matter on the ley at trial chose at oral argument before merits. appeal, On Riley attacks both the supreme state court to make argu- parts of the District Court’s holding. ments not mentioned in his brief and to Riley's 1. amended federal petition habeas 2. The first brief by Riley's submitted attor- raised claims regarding the alleged ney on ineffec- appeal direct contained a conclusory tiveness of passage trial counsel at guilty purported phase, to raise the issue of (without but the ineffective District assistance any Court held that these claims factual elaboration) for the purpose were procedurally of preserving VIII, Riley barred. See the issue. App. However, See this WL appeal, 18-20. On rejected brief was Delaware refers to these claims in a Ap- footnote. See Court, and the brief that ultimately sub- pas- pellant’s Br. at 38 n. 16. This footnote is mitted accepted contained no such inadequate to raise the issue on appeal. sage. App. 1198-99.

303 to make failing assistance ineffective in the performance his own condemn District that the arguments specific the court. barred.4 procedurally held were Court also con- elaboration, Riley little With raised a Moreover, Riley never because have should Court District that tends post-conviction his that court in state claim Riley that hearing so evidentiary an held ,he runs attorney was relief ineffective not for had “cause” he show that could petitioner must that “a of the rule afoul in state question arguments raising preju and cause independent demonstrate Howev- Br. 39. at Appellant’s See court. of the ineffective default excusing the dice any identified not even Riley er, has as claim be that can claim before ness to attempted have he would that “cause” second, to a in relation as cause sessed of decision reverse not willWe show. Jones, F.3d 81 Hill v. claim.” substantive to that Court order and Court the District Cir.1996). (11th also Jus See 1015, 1030 Ri- hearing so that evidentiary (4th an conduct 709, 713 F.2d Murray, 897 tus v. a for predicate the factual develop ley can Cir.1990). disclosed. not even Riley has that “cause” B. asserted frequently most Perhaps the assis- ineffective will now discuss We ineffective is default procedural for

“cause” procedural- not that were arguments tance therefore counsel, we will assistance that his to show order ly defaulted. Riley steps that briefly on comment the assistance right to constitutional rely on if he wished taken have should phase, penalty at violated was counsel point- Court District As the this “cause.” test of two-pronged satisfy the Riley must that Riley to show out, for in order ed 668, U.S. 466 Washington, Strickland for “cause” provided assistance ineffective (1984). 2052, 674 L.Ed.2d 687, 104 S.Ct. question arguments failing to raise his attor- that First, must demonstrate he Riley would proceedings, court in the state counsel so serious ney “made errors attorney who new to show have guar- ‘counsel’ as the functioning not was post-convic- state him in the represented Amend- by the Sixth the defendant anteed ineffective. was proceedings relief tion “Judi- 687, 2052. at Id. ment.” This n. 56-57. & Op. at 50 Ct. Dist. See must performance scrutiny of counsel’s cial a permits claim Delaware is so because tempt- is all too It deferential. highly be in a raised assistance ineffective coun- second-guess a defendant ing for if it even proceeding relief post-conviction sen- [an] ... adverse after sel’s assistance Riley See appeal. on direct not raised was court, easy for all too tence, it is 16.3 *17-18 & n. VIII, 1998 WL it has after defense examining counsel’s unsuccessful, to conclude however, proved argued, has Riley counsel was omission act or particular state him the represented attorney who 2052. S.Ct. Id. at unreasonable.” provided proceedings relief post-conviction not entitled petitioner is that habeas case, the rule assis- Indeed, Riley's ineffective court hearing in federal evidentiary post-con- to an argued in the vigorously tance petitioner unless record the Delaware a factual proceedings, establish relief viction making on the neces- arguments these for not addressed can "cause” show V, 726-29. proceedings. A.2d at state in the See record sary merits. factual 1, 11- Tamayo-Reyes, 504 Keeney v. a "cause” Riley had asserted if 4. Even (1992). L.Ed.2d default, to confront would have he procedural Second, if counsel’s representation the state courts and the District Court for shown to fall outside “the wide range of holding that trial counsel was not ineffec- professional reasonable assistance,” id., tive in it failing to call or locate family mem- must be shown that “the perfor- deficient bers for the purpose eliciting testimony mance prejudiced defense,” is, about Riley’s childhood and family. that “there is a reasonable probability Nothing has been presented that con- that, but for unprofessional counsel’s er- vinces us that the state courts and the rors, the result of the proceeding would District Court erred. agree We with the have been different.” Id. at state courts and the District Court that 2052. Riley has not shown that trial counsel was

1. ineffective in failing his court, brief in call our to Riley family those pre- members who sented a could greatly located, be such truncated version of as argu- Riley’s mother. ments The previously District Court ana- advanced regarding trial lyzed trial counsel’s counsel’s decision put failure not to to call certain family Riley’s mother on the stand members to testify follows: at the penalty phase of The trial and trial is replete record counsel’s failure with circum- locate or stances that support contact trial family other counsel’s deci- members who sion not to call might have Petitioner’s testified. mother. All of these family First, members, Petitioner informed trial Riley argues, counsel provid- could have that he did not wish expose his ed evidence moth- about his experi- traumatic problems er’s at Second, trial.... trial ences as a child and his “severely dysfunc- counsel testified that Petitioner’s mother tional family.” Appellant’s Br. 41. at refused support alibi, Petitioner’s and The Superior Court, the Delaware Su- result, as a he was concerned about the preme Court, and the District Court all prosecutor’s cross-examination of her addressed these arguments in some detail diming the penalty phase.... Third, the rejected They them. concluded that record indicates that Petitioner’s mother Riley’s attorney trial made reasonable ef- had a severe problem drinking and was forts to find certain family members who drinking heavily at the time of the tri- could not located, that he did not act al.... result, As a trial counsel believed unreasonably in failing to call others as that the witnesses that he chose to call witnesses, and that his failure to rely on in mitigation, instead, would make a bet- what was Riley’s termed history” “social ter impression on jury.... Under represented a reasonable strategy. See these circumstances, the Court finds tri- II, Riley *3-4, WL 47076 *7-9; at al counsel’s decision not to call Petition- V, Riley 726-28; at A.2d Riley VIII, er’s mother to be reasonable and within 1998WL at *20-23. the bounds of his strategic discretion. In his brief in court, our Riley merely Riley VIII, 1998 WL at *2. We states without elaboration that “trial agree. coun- sel failed to call as witnesses members of We agree also that Riley has not demon- Riley’s Mr. immediate family, several of strated that his trial attorney was ineffec- whom lived within a Dover, few hours of tive in failing to locate certain other family * Delaware” and that these witnesses could members. See Riley II, *3-5; V, Riley have testified about his childhood and fam- 727-28; 585 A.2d at VIII, Riley 1998 WL ily. Appellant’s Br. at 41. provides He no at *21. we Finally, agree response to the detailed given by reasons strategy of not introducing evidence re- constitutionally was phase penalty family fell background garding deficient. pro- reasonable range of “the wide within Strickland, *11-12. This II, at 1988 WL assistance.”

fessional Delaware by the accepted Superior analysis was The 2052. 689, 104 S.Ct. Court. the District Supreme Court as follows: wrote disagree. cannot We be drawn inferences adverse attorney his Riley contends parents that defendant’s the fact from present he did because ineffective alcoholics, unwed an sister his both were Ri- expert. health by a mental testimony an incarcer- three, his brother of mother experts, of two on the affidavits ley relies series life a his and home criminal ated with the in connection him examined who living quarters temporary and jails of Oné proceeding. relief post-conviction in magnified been have no doubt would per- a Riley as characterized experts case this county where the semi-rural intelligence defective” with “borderline son certainly Likewise, it is tried.... was analyzing objectively “for capacity whose to choices strategic range of within relationships [is] events, and circumstances evidence, may which mitigating forego Ap- complexity.” and by stress narrowed rely making” and as “excuse seen be Riley agree with 42. We atBr. pellant’s Riley’s mercy.... for upon plea a might have been explanation this that mitigating as to case, offered evidence question phase. penalty at the helpful actual included: circumstances counsel however, trial remains, whether Baxter, the co-defen- Tyrone was killer to obtain such failing in ineffective was less severe a received dant; that Baxter the time. evidence at background Riley’s that and penalty; proceeding relief post-conviction In the worker, diligent he indicated that testified Court, counsel trial Superior in char- good and a non-violent possessing Riley have exam not seek he did that acter. he expert because by a mental health ined strong gave a case, counsel trial In this his think, light of in no reason had be life should that argument ex an Riley, that such with conversations Tyrone that fact of the light in spared anything revealed have would amination prin- accomplice and Baxter, defendant’s He testified App. 592-96. useful. See death accuser, spared the be would cipal what to understand appeared Riley that bargain. plea prepared result of Riley as the penalty that they discussed without Moreover, testified behalf. his own Walter Ross on motions filed some re- stated [post-conviction counsel at the Trial App. 592-98. See contradiction injury or any head did mentioned Riley defendant never hearing lief] App. problems. any psychological discussed background family his want Supe testimony, the this Relying on defendant’s phase. Given penalty no “had counsel found that rior Court evidence wishes, positive the lack Riley’s men Mr. inkling that evaluation argument focused counsel’s mitigation, helpful might state tal or emotional plea Baxter’s light leniency for II, at *7. Riley WL mitigation.” im- negative potentially bargain, evidence positive purportedly pact argued that us, has not jury, Before wrought before have

would always seek must case capital coun- counsel in show failed to has defendant defendant, examination a mental testimony at limit the decision sel’s and cases from other reject circuits VI. proposition. Instead, they hold that a Relying on v. Oklahoma, Ake case-by-case determination must be made 68, 76-77, 105 84 L.Ed.2d 53 and that counsel is not ineffective if or he (1985), Riley argues that his right to due she has no reason to think that a mental process was violated because the trial examination would be useful. See Thomas judge refused appoint co-counsel or an v. Gilmore, 144 (7th F.3d 515-16 Cir. investigator to assist his attorney. Riley 1998); United Miller, States v. 907 F.2d again notes the inexperience of his attor- (10th 998-99 Cir.1990); United States ney, and he asserts that co-counsel had ex rel. Franzen, Rivera v. F.2d been appointed in County Kent prior (7th Cir.1986). capital cases. Although Riley claims that the lack of co-counsel and Under an standard, investigator this we ground see no him caused prejudice,” “extreme his reversing the brief decision of the District provides no details. Court here. Riley simply has not identi- fied any fact that A. should have We turn alerted his first to Riley’s argument trial attorney that that he had he mental problems constitutionally entitled to the that might appointment provided have of co-counsel. basis for In juris- some dictions, mitigation. only The there is a fact statutory even right mentioned to the appointment in Riley’s of briefs is the two “implausible” defense attorneys nature capital See, of Riley’s alibi, cases. e.g., see 18 Reply 21, § Br. U.S.C. at 3005. but However, we this is are aware insufficient no alert authority counsel to the holding that the possibility federal of mental problems Constitution con- that might fers such a right, be and we see relevant to no basis mitigation. for For the most such a holding. The part, Constitution Riley merely specifies notes what the subse- the quality representation quent that all crimi- examinations mental health ex- nal defendants, including capital perts defen- revealed. However, “(a] fair assess- dants, receive, must namely, ment “reasonably of attorney performance requires effective Strickland, assistance.” 466 U.S. every effort be made to eliminate the 687, at 104 S.Ct. 2052. The Constitution distorting effects of hindsight, to recon- does not specify the number of lawyers struct the circumstances of counsel’s chal- who must appointed. be If a single attor- lenged conduct, and to evaluate the con- ney provides reasonably effective assis- duct from counsel’s perspective at tance, the Constitution satisfied, and if a Strickland, time.” 466 689, at U.S. 104 whole team of lawyers fails to provide such S.Ct. 2052. assistance, the Constitution is violated. 3. Finally, Riley cites trial counsel’s Thus, there is no right constitutional per inexperience and the fact that spent he se to the appointment of co-counsel a only 14 hours preparing for the penalty capital case. v. Watkins, Bell 692 F.2d phase of the trial. These facts are not 999, (5th 1009 Cir.1982); State, Jimenez v. but comforting, they do not in themselves 703 437, So.2d (Fla.1997) 439 (per curiam); establish that counsel was ineffective. We State v. Phelps, 197 713, W.Va. 478 S.E.2d have taken them into account in evaluating 563, (1996) 574-75 (per curiam); State v. the other deficiencies properly asserted in Rodriguez, 186 Ariz. 240, 921 643, P.2d 652 this appeal. We say, cannot however, that (1996); Spranger State, v. 650 N.E.2d right constitutional to the effective 1117, 1122-23 (Ind.1995); Uptergrove v. assistance of counsel was denied. State, 881 529, S.W.2d (1994). 531 Cf.

307 522, S.Ct. at Id. 1447, infliction.” 1456 its Oklahoma, 58 F.3d v. Hatch however, courts, interpreted lower Some Cir.1995). (10th po- mean that Witherspoon to footnotes identify any un- not does Riley’s brief only if be dismissed jurors could tential demanded case of this usual features they would unambiguously that they stated attorney. a second appointment death against penal- automatically vote of his inexperience does cite he While ty.5 this showing that attorney, without clarified the mean Court Supreme repre- the level provide attorney did Witt, v. Wainwright Witherspoon ing of Constitution, we by the required sentation 844, L.Ed.2d 841 412, 105 S.Ct. 469 U.S. appoint co- failure hold cannot proper “the (1985). held The Court the Constitu- violated him assist counsel prospec determining when standard tion. be for cause may excluded juror tive Riley’s argu reject also must B. We punish capital on views of his or her cause private appoint the failure ment that juror’s views ... is whether ment the Constitution. violated investigator substantially impair or ‘prevent would 320, 323 Mississippi, v. Caldwell juror in aas of his duties performance (1985), 86 L.Ed.2d 1, 105 S.Ct. n. his his instructions with accordance it clear made ” (quoting at Id. oath.’ ap right to constitutional is no there Texas, Adams investigator where of an pointment 581). The Court L.Ed.2d undevel more than “little offers defendant noted: assis requested oped assertions require not ... does standard [T]his Gray also See be beneficial.” tance would ‘un- with proved be juror’s a bias (4th 59, 66-67 Cir. Thompson, 58 F.3d v. determi- clarity’ ... because mistakable sub nom. grounds 1995), on other vacated be reduced bias cannot juror nations 152, 116 Gray v. Netherlands which sessions question-and-answer (1996). Riley 2074, 457 L.Ed.2d 135 S.Ct. cate- of a in the manner results obtain more here. nothing has offered sense should common What chism. proved: has experience realized have asked cannot be simply many veniremen VIII. point to reach questions enough judge con- the trial Riley contends made “unmis- has been their bias where v. Witherspoon may holding clear”; veniremen these takably travened 1770, 20 510, 88 faced Illinois, S.Ct. react when they U.S. will 391 know how not sentence, judge or (1968), dis- when the death imposing 776 L.Ed.2d with they articulate, wish may after or jurors for cause two unable may missed be this Despite feelings. concern- true questions their to voir dire to hide responded record, printed Witherspoon, in the clarity punishment. lack capital ing where however, a be situations will that members of there held Supreme Court the definite is left with for cause may be excused jury panel juror prospective a impression objec- general voiced they “simply because impar- faithfully and be unable would expressed or penalty the death tions to law. tially apply the against scruples religious or conscientious (1985). 844, L.Ed.2d Witt, Waimvright v. 5. See 424-26, Id. at (footnote 105 S.Ct. 844 omit- ted). The Court went on to hold that a justified it, evidence you would be trial judge’s finding under this standard is able to person find guilty of murder in entitled to the presumption of correctness the first degree and you would be able in 28 2254(d).6 § U.S.C. U.S. at to impose the death penalty? 105 S.Ct. 844. Applying these standards, Ms. Floyd: That is a two-part ques- the Court sustained the dismissal of ju- tion, right? ror said, who when asked whether her Yes, The Court: beliefs it would is. interfere with her sitting aas juror in a capital case, “I am it Floyd: afraid Ms. part— The latter would” and “I it think would.” Id. at The Court: all, First of you would 105 S.Ct. 844. able to person find guilty of murder in The potential two jurors at issue in the the first degree? present case are Floyd Mae and Gerald Floyd: Ms. I may, yes. Mood. During Floyd’s dire, voir the follow- The Court: And the part second ing exchange occurred: you would be able to impose the death The Court: ... youDo any have con- penalty? scruples scientious against finding a ver- Floyd: Ms. I you tell the truth I don’t dict of guilty where punishment think so. might be death against or imposing the The Court: I will you. excuse Thank death penalty if the evidence should so you very much. warrant? App. added). 285-86 (emphasis

Ms. Floyd: I say would yes, I think so. As both the Delaware Supreme Court The Court: You do have conscientious the District observed, Floyd’s scruples? responses were very similar to those of the Floyd: Ms. potential juror Yes. in question in Wainwright Witt, supra. I, Court: Riley Regardless any person- 496 A.2d at al VIII, 1005-06 beliefs or feelings you have, WL if *11. justified agree evidence We it, with their you analysis would be able hold to that person Riley find a has not guilty of pre- overcome the murder sumption first degree and impose correctness that penal- death attaches to ty? the implicit finding of the judge. trial Floyd: Ms. That is a hard one to tell The dismissal of the potential other ju-

you the truth. ror in question, Mood, Gerald place took The Court: I will repeat the question. after the following colloquy: Floyd: Ms. I heard it. All right. Re- The Court:.... youDo any have consci- peat the question. entious scruples against finding a verdict The Court: I repeat will it. Regard- of guilty when punishment might be your less of personal belief or feelings, if death or against imposing the death 6. See Deputy also Taylor, v. 19 juror F.3d in accordance with his instructions and (3d Cir.1994) 1498 (citations omitted) (inter- his oath .... [and] that a judge's state trial quotation nal omitted)("a marks trial court finding that a prospective juror impermissi- may juror excuse a for cause where bly such against biased the death penalty is entitled juror's views prevent would or substantially to a presumption of § correctness under impair performance of his duties 2254(d).”). as U.S.C.A. venireperson excuse decision to court’s war- should so evidence if the penalty Mood. rant? 172856, *12. VIII, at 1998WL mixed I have know. I don’t

Mr. Mood: that. about emotions IX. any personal Regardless of

The Court: Illinois, 504 U.S. Morgan Relying on have, if the you that feelings or belief 119 L.Ed.2d 719, 112 S.Ct. able it, you be would justified evidence trial that argues (1992), Riley murder guilty person to find prospec- ask sponte to failing sua erred to you be able would degree and first they dire whether during jurors voir tive penalty? the death impose pen- death impose automatically would District The guilty. found him alty they if real- I don’t I could. Maybe Mr. Mood: ground on claim rejected this Court ly know. questions that such requires Morgan you excuse to going I am The Court: requests. so defense only if the asked sir.... agree. We App. 276. framed Supreme Court Morgan, “wheth- analyzed the these terms: issue in aptly relevant Judge

The District must, on analy- court Mood, adopt his dire the we on voir er defen- dismissal prospective into the inquire request, dant’s sis: punishment.” capital on jurors’ views venireperson Floyd, venireperson Unlike add- (emphasis 726, 112 at suc- more much responses were Mood’s holding fol- as ed). its stated The Court trial to the responded Mood twice cinct. lows: questions punishment capital court’s re- entitled, his upon Petitioner “I know.”.... phrase, don’t with jurors discerning those inquiry quest, this, such situations Particularly in State’s case to the who, prior even response is individual’s record an where the terminat- chief, predetermined had reproduction printed its brief so trial, being whether his ing issue little, should defer the Court reveals penalty. the death impose only that would credibility factors those add- (emphasis 786, 112 S.Ct. at court, Id. such been known have the Court’s ed). described dissent demeanor, of voice tone juror’s as the “The language: similar 434, holding in Witt, attitude. re- ... the Constitution today holds importance (emphasizing to [reverse- directed that voir dire quires venireper- of assessment court’s of trial upon the provided ‘bias’ be Witherspoon] where demeanor, particularly son’s 739, 112 S.Ct. Id. at request.” “crystal may not record printed defendant’s add- J., dissenting) (emphasis (Scalia, finds clear”). the Court Accordingly, ed). for the support record adequate he Mood said that noted, mother. Baxter's friend of addition, Court District as the In police officers one of the good friend Floyd and Mood was a given by answers some of him served with concerning capital punish- and had in the case questions not involved VIII, judge’s Riley the trial may department. See have influenced the fire ment Floyd revealed them. to dismiss decision at *12. WL a casual was Tyrone Baxter and she knew We cannot regard the Court’s choice of sentence, the Supreme Delaware Court ex-

words accidental, and we think that the cases, amined 21 including five in which holding Morgan is clear: a penalty reverse- death imposed. It found Witherspoon inquiry must be made “on case was comparable to the request.” five death penalty United (Whalen, States cases Rush, defendant’s v. Tipton, (4th Deputy, 90 F.3d Flamer and Cir.1996). Bailey), because they all involved Riley makes two arguments in response. an unprovoked, cold-blooded murder of First, he notes that the state supreme helpless (or person persons) commit- court rejected his argument on the merits, upon ted victims lacking the ability to and he contends that “the State should not defend themselves and solely for the now be heard alleged raise procedural purposes of pecuniary gain (except in bars to federal court resolution of the case). Whalen’s In none of these kill- claim on the merits.” Appellant’s Br. at ings is any there evidence provocation 52. Our holding, however, has nothing to ofor homicide out passion committed do with procedural bar, i.e., a state rule rage. or In case, each except Whalen, of procedure that bars a federal habeas the murder occurred the court of a court from reaching the merits of a federal robbery that was deliberately planned Rather, claim. our holding is based on the and carried out with the use of deadly fact that the constitutional right recog- weapons. case, each perpetrators nized Morgan applies only if the defense of these crimes offered no extenuating makes a request for a reverse-Wither- circumstance for taking the life of anoth- spoon inquiry. er. Second, Riley argues that his trial attor- I, Riley 496 A.2d at 1027. ney was ineffective in failing to request Riley challenges this finding on two revers e-Witherspoon questioning. Howev- grounds. First, points he to the fact that er, this argument was not made in the two of the death sentences on— relied courts, state and it is thus procedurally Rush and Whalen—had been vacated. barred. Second, he argues that the remaining Deputy, Bailey, and Flamer —do cases—

X. not furnish appropriate comparisons be- Under 11 § Del. C. 4209(g)(2),the Dela- cause each involved the killing of more ware required to under- than one person. He maintains that these take proportionality review in errors pen- death violated the Eighth and Fourteenth alty cases. The statute mandates that Amendments. Court inquire into whether “the pen- death It is clear that proportionality review is

alty was either arbitrarily or capriciously not required by the federal Constitution. imposed or recommended, or dispropor- See Pulley Harris, 50-51, tionate to the penalty recommended or (1984). 79 L.Ed.2d 29 imposed in similar cases.” 11 Del. C. justifies advancing his proportionality ar- § 4209(g)(2)(a). In affirming Riley’s death gument in federal court on grounds.8 two 8. Ordinarily, federal habeas relief is not avail- laws or treaties of the United States.” 28 able for an error of state law: the habeas § 2241(c)(3). U.S.C. Harris, Pulley v. 465 provides statute that a writ disturbing a state 37, 41, 871, 104 S.Ct. 79 L.Ed.2d 29 judgment court may only issue prisoner aif is (1984). in custody "in violation of the Constitution or

311 case, However, Ri in this 104 871. improp- First, allegedly that argues he person crime-killing a defenseless ley’s that punishment in a review resulted er an the course of provocation in and, without “inherently disproportionate applica that robbery such armed not in vio- therefore, capricious” arbitrary and —is in these circum penalty tion of the death Appel- Eighth Amendment. of the lation “shock conscience.” See would stances Second, that argues he Br. at lant’s 1137, Smith, Lindsey v. 820 F.2d stat- by its own failure to abide Delaware’s (11th Cir.1987); Spinkellink v. Wain review proportionality for utory scheme (5th 582, n. 28 Cir. F.2d wright, 578 Fetterly v. process. See due violated 1978). an has failed to show Riley thus Cir.1993) (9th 1295, Paskett, F.2d Amendment violation. Eighth (“the by its own abide of a state to failure is based on the Riley’s argument second a liber- may implicate statutory commands right, a state creates a that when principle Fourteenth by the protected interest ty Fourteenth of the the Due Process clause arbitrary deprivation against Amendment proce- entitles a defendant Amendment state”). aby is arbi- right not dures to ensure on the argument first Riley bases his that the Dela- trarily argues He denied. has determined “[i]f State principle Court, by failing to conduct ware penalty be an available death should as re- proportionality review adequate an crimes, administer it must then for certain statute, him due denied by state quired rationally can way in a penalty process. for individuals those distinguish between matter, it is unclear threshold As a appropriate sanction is an whom death law, whether, a state Circuit under Third Spaziano v. it is for whom not.” those any creates statute proportionality-review 3154, 460, 447, Florida, 104 S.Ct. process due liberty cognizable interest (1984). Riley claims that 82 L.Ed.2d Fulcomer, 132 F.3d Frey v. purposes. See conducted proportionality review (3d Cir.1997) (noting that n. 7 in his case Supreme Court the Delaware precedent on this issue Supreme Court arbitrary impo- protect him from failed flux). ques this need address We and in fact penalty, of the death sition if has tion, however, even because punishment. disproportionate upheld interest, has not shown liberty he such premise that argument This rests on evaluating a process. of due any denial penalty case death applying in conduct erred that a state court claim as to consti- disproportionate would be so review, a federal proportionality ing its under punishment and unusual cruel tute inquire into whether may only court Therefore, Ri- Amendment. Eighth proportionality its court “undertook state imposi- really ley’s argument attacks that [the faith and found good review itself, than the rather penalty tion proportional sentence was defendant’s] reviewing proportionali- method state’s similar to in cases imposed the sentences ty. Arizona, 497 U.S. his.” Walton is not tenable. Riley’s argument L.Ed.2d 511 “occasionally struck (1990). has consti Supreme Court no federal Because there is review, inherently dispro- if punishments right proportionality tutional down review was unusu- cruel and federal court finds portionate, and therefore faith, “look it cannot good crime or undertaken in al, particular for a imposed when pro- conclusion the state court’s behind” Pulley, 465 U.S. at of crime.” category 312 portionality to consider whether the state jury the submits a finding such court misapplied state proportionality recommendation, law. the shall id.; Delo, Bannister v. sentence F.3d the defendant to death. A (8th Cir.1996). case, finding by In this jury the Dela a statutory aggravating

ware circumstance, Court compared Riley’s and a consequent with ease a substantial number recommendation of other death, supported by evidence, death-eligible cases, and, even disregard be binding shall on the Court. ing the two vacated death sentences, it found App. added). common 392 (emphasis characteristics between Ri con- that, ley’s given case tends placement other three cases which of the “consequent,” word “a sentence was jury not reasonable Although vacated. could understand the Riley argues that underscored sen- these cases are en not tence to mean that the tirely effect a finding analogous, because each contained that a statutory aggravating circumstance an (more additional aggravating factor existed, is that the death penalty must be victim), than one is there no indication that imposed.” Appellant’s Br. 59. Because the Delaware court acted in bad faith in the trial judge had previously informed the conducting its review. We are thus with jury that the statutory aggravating cir- power out to order habeas relief. cumstance—commission of the murder during a robbery already prov- been —had XI. beyond en a reasonable doubt guilt We now turn to Riley’s contentions con- phase, Riley argues that a jury reasonable cerning jury given instructions by the trial could have read the instruction to mean judge at the sentencing phase. it need not consider mitigation evi-

dence. A. When reviewing a jury instruction that is claimed impermissibly restrict Riley argues that the jury instructions jury’s consideration of evidence, relevant the penalty phase impermissibly re- court ask must “whether there a reason- jury’s stricted the consideration of mitigat- able likelihood that jury has applied ing circumstances. He takes issue with the challenged instruction in a way that the following instruction, issued at prevents the consideration of constitution- start of penalty hearing: ally relevant Boyde evidence.” v. Califor- A sentence of death shall imposed not be nia, 370, 380, unless jury finds: (1990). L.Ed.2d 316 If “only there is (1) Beyond a reasonable doubt at least possibility” of such inhibition, however, the one statutory aggravating circum- challenge must fail. Moreover, Id. stance; and challenged instructions “must be evaluated (2) Unanimously recommends, isolation after but in the context of the

weighing all entire charge.” relevant evidence in Jones v. ag- States, United gravation 373, 391, or mitigation which bears (1999). L.Ed.2d upon particular circumstances or details of the commission of the of- When charge is read as a fense and the character and propen- whole, there is no reasonable likelihood sities offender, that a sentence that a jury could have understood it to of death shall be imposed. preclude Where consideration of cir- mitigating

313 standard). Rather, the “outweighing” penalty the the close At cumstances. jury it had that simply instructed the court instructed again court hearing, recommend that a sen- “[ujnanimously to any ambigui- up that cleared in terms jury weighing after imposed be of death tence in its present been have might ty that and aggravation in evidence relevant all earlier instruction: 438; App. also App. see mitigation.” shall conclusion, of death sentence a In jury, you, the imposed unless not be for grounds no provides argument This find: The federal Constitution habeas relief. at least doubt (1) a reasonable Beyond “specific standards require not does circum- statutory aggravating one mitigating against balancing aggravating established; and has been stance 462 Stephens, Zant v. circumstances.” a sen- (2) that Unanimously recommend n. imposed death be tence after (1983). jury is long as a As L.Ed.2d ag- in evidence weighing all relevant mitigat- all relevant consider to permitted which mitigation and gravation rec- making in its death ing circumstances circum- particular upon the bear ommendation, is federal constitu- there no commis- and details stances addition, Riley not has problem. tional character the offense sion of be jury’s a decision would suggested how the offender. propensities court language the under the any different unanimously to agree to fail you Should jury was case. Because in used this matters, Court two these either of sentencing rec- to make a instructed im- life to sentence defendant shall “weighted] it had until after ommendation probation benefit without prisonment aggravation evidence in all relevant parole. or was necessary inference mitigation,” added). (emphasis 438-40 App. imposed should be penalty that the death jury it clear that instruction made This mit- outweighed factors only aggravating if one find at least to required both was (otherwise, entire factors igating aggra- weigh and to statutory aggravator meaningless). be would “weighing” process mitigating factors against vating factors This C. sentence. support to death order jury was that the Riley’s argument belies penalty that Riley argues Finally, job done believing its was into misled suggested improperly instructions phase aggravator felony murder once in im- unanimous jury had be found. sentence, of Whal- violation posing a life (Del.1985). State, A.2d en v.

B. you “[i]f to the instruction points He your recommenda- unanimous are not the trial with issue takes next you or penalty, impose the death tion to to in- phase penalty at the failure court’s your rec- unanimously as to agree cannot required it was struct ommendation, bound then the cir- unanimously aggravating conclude (em- App. 438 of life.” impose sentence circum- mitigating outweigh cumstances added). “recommenda- The word death, phasis required imposing before stances sug- phrase, he State, underlined tion” Whalen law. See by Delaware a life to refer read (Del.1985) gests, could (setting forth 552, 560 492 A.2d sentence recommendation as Cir.1995) well as to a and Delaware, Flamer v. 68 F.3d recommendation of (3d death. Cir.1995) (en banc). The Delaware Supreme Court explicitly pointed to

As a the issue, threshold government the similarities Flamer, with and distinguished argues that Riley failed to raise this issue the instructions from those in Whalen, in before the District Court because he based upholding death the sentence on direct argument his there “solely on interpre- the appeal. See Riley, 585 A.2d at tation 722-25. of the interrogatories posed to the For reasons, these reject we Riley’s jury” claim. rather than on jury instruction points he Appellee’s here. atBr. 75. XII. However, Riley, although pointing specifi- Riley was convicted cally to intentional interrogatories mur- to support his der murder, and felony point, with underly- nevertheless general raised the ar- ing felony being gument first-degree in his robbery. amended petition that “the The statutory aggravating likely instructions were circumstance to confuse the jury on relied for the death about sentence whether was the verdict must unani- the murder was mous.” committed App. Riley while was This is sufficient to engaged preserve commission his argument first degree before this Court. robbery. See 11 § Del. C. 4209(e)(l)(j) On merits, however, claim Riley’s (establishing felony aggravator). murder First, must fail. when jury charge is Riley argues that it is unconstitutional to whole, viewed aas it reveals in several double-count robbery as both an element stances in which the word “unanimous” murder) crime (felony that made explicitly was paired solely with the death Riley death-eligible and as a statutory ag- recommendation. In light pattern, of this gravating circumstance. it appears unlikely that the jury would have rejected viewed This Court the isolated passage precisely that Ri the same ley claim on in Deputy relies as extending Taylor, v. the unanimity 1485,- 19 F.3d (3d requirement Cir.1994), to a holding recommendation of life “within the imprisonment. Second, context of Delaware’s death Delaware Su penalty stat- preme Court, ute, provision reviewing this allegation, requiring the double- stated that it counting was “satisfied of the felony at the guilty phase that, understood in the phase event of sentencing its failure does not impermissi- to unanimously bly agree upon imposition weaken the of a statute’s constitutionally penalty, death an imposition of mandated impris narrowing life function.” pre- This onment V, would result.” cedent binds our panel. 585 A.2d at 725. Because the instruction made XIII.

clear default rule in case a lack of unanimity was life imprisonment, it is final argument is that the Dis- hard to see how the jury’s trict deliberations Court erred in denying his motion for would have been affected even had it funds for investigative and expert assis- adopted Riley’s interpretation of in tance and in refusing to an conduct eviden- struction. Finally, the challenged tiary instruc hearing. We disagree.

tion was identical to approved one by the A.

Delaware in Flamer v. State, 490 (Del.1984), A.2d 104 sub Under 18 3006A(e) U.S.C. § and 21 aff'd. nom. Delaware, Flamer (3d 68 F.3d 710 § U.S.C. 848(q)(4)(B) (9), Riley was ask, evidentiary hearing,” we of an expert assis- absence investigative entitled first, petitioner asserts “whether the facts assistance finding that such upon tance and, second, entitle him relief’ which “reasonably neces- or “necessary” evidentiary hearing is an need- “whether representation respect to his sary” with Fulcomer, 944 F.2d Todaro v. ed.” Riley sought proceeding. the habeas Cir.1991). (3d Reiser v. See also addi- gather to investigator anof services Cir.1991). (3d Ryan, 951 F.2d childhood concerning his tional evidence argues that District Court should the of a sought the services He experiences. evidentiary hearing an concern- have held develop further psychiatrist forensic peremptory prosecution’s the chal- ing concerning his mental mitigating evidence jury, of the his lenges, impartiality the re- were All of these services problems. claim, issues. Brady unspecified and other Riley’s argu- support in order to quested discussed, disagree. previously As we We attorney was ineffec- that his trial ments accept the state required to courts’ are that the trial phase and penalty the tive at peremptory chal- findings regarding the a co-counsel appointed have judge should impartiality jury, of the and lenges and the him. investigator to assist Thus, dispositive. an findings are those in the services Riley has not shown that court hearing in federal on evidentiary “reasonably “necessary” or were question needed. addi- matters was not those time of discovery at the necessary.” The tion, briefing after in of the light revelation of new evi- proceeding habeas the federal par- Baxter in which no conversation that not Riley’s would childhood dence about wiretap logs of the ticipated is listed the Riley’s trial efforts of shown that the have it is clear telephone, on Mrs. Baxter’s who family members attorney to locate evidentiary an hear- no need there was for matters such might have testified about Riley’s Brady claim. Nor concerning ing pages objectively unreasonable. were Court that the District was do we believe discovery of 38-41, Nor the supra. would any on evidentiary hearing was needed an it have demonstrated such evidence other matter. Riley’s strategically unreasonable was BECKER, Concurring in Judge, Chief penalty-phase a attorney to eschew Judgment. the history.” on “social based defense turns appeal ultimately on en banc This development of ad- Similarly, the See id. claim. Unfortu- petitioner’s Batson the Riley’s mental regarding ditional evidence join myself unable nately, I find habeas time of the federal at the condition Judge or Alito’s Judge either Sloviter’s that Ri- not shown would have proceeding on that issue.1 opinion objectively unrea- attorney was ley’s trial Judge Slovi- First, with agree I cannot mental examina- seeking in not sonable prosecution’s 41-43, chal- treatment pages ter’s penalty. See prior tion to the Rath- juror Nichols. lenge prospective supra. opinion Alito’s on er, Judge agree I with B. 318-22, largely issue, Op. at see Dis. this Judge Sloviter’s not I do share denies because the District Court “Where testimony as prosecutor’s of the skepticism corpus petition for writ habeas however, do, Judge sue. join Part II of 1. I dealing the Caldwell is- opinion, with Alito's “significant Nichols’s pause.” Human Specifically, the absence jurors of black on

memory can quite powerful, I juries four think in a county that was 18% black it entirely possible that “significant this had a venire that was 9% black pause” indelibly became etched in remains troubling. As prosecutor’s mind. explicated As has observed in other pre- contexts when dissent, hearing judge determined with perhaps sented imperfect statistical prosecutor’s “[Fjine testimony data, on this tuning matter could statistics credible, and I not agree cannot have obscured the glaring absence of race-neutral reason proffered for minoriti[ies]-[T]he ... striking inability to re- Nichols was “not but fairly supported inference of discrimination came record.” 2254(d)(8) (1988). § U.S.C. from statistics, misuse of but from the inexorable zero.” Int’l Bhd. Team- On the hand, other while point sters States, v. United 342 n. close, quite I cannot bring myself join (1977) 52 L.Ed.2d 396 Judge Alito’s discussion of the challenge to (internal omitted). quotations prospective juror McGuire. Unlike the This concern is exacerbated for me challenge Nichols, an action for which the State’s failure to submit rebuttal evi- prosecutor the relied on his memory to dence. If Riley’s data was too weak to articulate a explanation, race-neutral the support an inference of discrimination in prosecutor had no recollection whatsoever the face of prosecutor’s the race-neutral about the differences between McGuire explanations, there was no burden on the and Reed. I- agree therefore Judge with government to submit rebuttal data. Sloviter that there is no basis in the record However, as Judge Sloviter’s discussion of for distinguishing McGuire, a prospective the chronology clear, of events makes the juror black struck, who was Reed, from State provide data, volunteered rebuttal white man who was not struck and who and then failed to do so. Op. See ultimately served on jury. the While ide- Court at 292. If the hearing judge had ally this issue would be developed further acknowledged the State’s failure provide at a federal habeas hearing, I reluctantly evidence notwithstanding promise its conclude, again agreeing with Judge Slovi- then specifically said that he did not con- ter, that purpose no would be served by sider this failure to be sufficiently proba- having such a hearing this late date. tive to overcome the credibility determina- Accordingly, I join will judgment tion, his factual conclusion would be fait accompanying opinion. her accompli. But the fact that the hearing judge did not mention the I State’s might While failure to end at point, this I am provide evidence, in the wake of impelled to the “vol- comment on the statistical evi- unteering,” sticks out thumb, like a sore dence reason of prominent discus- and renders it doubtful for me sion of issue the Sloviter and Alito “record as a supports whole” opinions, hearing and the fact that Judge Alito’s judge’s conclusion. dissent significant identifies problems with Judge Sloviter’s discussion of that evi- Judge Sloviter seems to concede that a dence. I myself feel join unable to in federal habeas hearing give would Judge opinion Alito’s on that facet of the ample time to conduct expert an statistical case for he has not allayed my analysis concern of the complete record, time which about practices of the Kent County he lacked at the earlier hearing, as she prosecutor’s office at times relevant here. explains, because of the State’s late deci- sentence, a of a death appellate review evidence. any statistical to submit sion jurors all are virtually of which procedure at 292. Were Op. of the Court agree I surely Because cannot aware. dispositive of statistical evidence analysis of either of majority’s with claim, for a federal I would remand Batson issues, respectfully I must dissent. however, these Sloviter, Judge hearing. habeas is “rele- evidence that the statistical states I. our decision.” dispositive to but not

vant accept I Because at 293. Op. of the Court A. matter, I do not on this representation her argument I to the turn first further, join in simply the issue press by using per- Batson prosecution violated accompanying opinion.2 her judgment African emptory challenges to strike three jury panel. In Bat- from the Americans ALITO, Judge, with whom Circuit it is a son, Supreme Court held that SCIRICA, BARRY, FUENTES Judges Equal Protection Clause violation I, Part join as to and STAPLETON juror to strike a because prosecutor for a BECKER, and Judge with whom Chief also set out a three- of race. The Court BARRY, join as and STAPLETON Judges adjudicating a claim that a step process for II, dissenting: to Part racially based. particular peremptory was peremptory of a opponent the [0]nce case, consid- troubling but after This is a prima out a facie challenge has made arguments and petitioner’s ering all one), (step racial discrimination case of prescribed of review the standard applying to the production shifts the burden of statute, I see no habeas by the federal strike to come forward proponent the the decision of the reversing ground explanation (step with a race-neutral that the majority holds district court. The two). explanation is If a race-neutral v. Ken- rights under Batson petitioner’s tendered, trial court must then de- the 1712, 79, 106 90 tucky, 476 U.S. S.Ct. three) opponent the (step cide whether violated, (1986), I do were but L.Ed.2d 69 ra- proved purposeful has of the strike proper basis for that there is believe Hernandez v. New discrimination. cial credibility findings made disturbing the 352, 358-359, York, 111 S.Ct. 500 U.S. majori- judge. state The the conscientious 1859, (1991)(plurality 395 114 L.Ed.2d made ty also holds that comments id., 375, 111 S.Ct. 1859 at opinion); pen- at the closing argument prosecutor (O’CONNOR, J., concurring judg- v. alty of the trial violated Caldwell phase 96-98, Batson, ment); at U.S.] [476 2633, 320, 105 Mississippi 472 U.S. S.Ct. 1712. (1985), my but in view 86 L.Ed.2d 231 767, Elem, 765, 514 U.S. as in Purkett v. majority misinterprets that decision 1769, (1995)(per cu 131 L.Ed.2d 834 per prohibition S.Ct. embodying a se effect riam). availability of any mention of the against J., that, concurring); (Rutledge, see also Olmstead agree if I did not with I note even 2176, L.C., 581, 607-08, issue, 119 S.Ct. 527 U.S. juror v. Judge on the McGuire Sloviter J., (Stevens, (1999) concur plain- 144 L.Ed.2d 540 accompanying opinion is judgment her 656, Abbott, 624, ring); Bragdon v. my position than the views of ly own closer (Ste 2196, (1998) circumstances, 141 L.Ed.2d 540 I 118 S.Ct. Judge Alito. Under these vens, J., concurring); Co. v. AUSA Ins. anyhow to avoid a stale- vote with her would Life (2d States, Cir. Young, 206 F.3d Ernst & v. United mate. See Screws J., 2000) (Jacobs, (1945) concurring). 91, 134, 89 L.Ed. case,

In this the Superior Court found 1988 that Nichols had paused while an- petitioner, Riley, William swering made a question during voir dire six prima case, out a facie Riley State, see years v. addition, earlier. In Riley contrasts No. (Super. 21, 1989) April Ct. prosecutor’s ability to remember this and the state dispute does not pause this with his inability to an- remember point. The state jus offered race-neutral other potentially significant aspect of the tifications for its strikes, contested process, selection Riley notes that state accepted courts explanations those prosecutor was a friend and neighbor and found disputed peremptories of the victim. These facts were highlight- not racially were 3-6; based. Id. at ed during the cross-examination of the State, 585 A.2d 725 (Del.Sup.Ct. prosecutor at the Batson hearing, App. see 1990). majority however, rejects 820-29, and I agree they were impor- state courts’ findings regarding two of tant factors to be considered in assessing state’s peremptories and prosecutor’s substitutes its credibility. The hearing contrary own findings. I will discuss each was aware of these facts and had the of the challenges on which opportunity the majority prosecutor observe the tes- relies.1 tify on the witness Despite stand. these facts, however, the hearing judge found

B: Ray Nichols prosecutor’s testimony was credi- 1. The ble. prosecutor testified that he struck Nichols because he was uncertain Our standard review of the hearing that Nichols would be able to vote for a judge’s finding is narrow. Batson, death sentence. App. 797-99. Ac- Supreme pains Court took to note that cording to the prosecutor’s testimony, “[s]ince the judge’s trial findings in the “there was pause and a significant pause context under consideration here will answering [his] [the judge’s] inqui- turn largely on evaluation of credibility, a ry and that to me enough to suggest reviewing court ordinarily give should might that he not be able to return a death those findings great Batson, deference.” penalty.” Id. Having prosecu- heard the 21, U.S. at 98 n. 106 S.Ct. 1712. In a tor’s testimony, the judge presided who later case Batson, applying the plurality over the Batson hearing [hereinafter “the elaborated: hearing judge”], concluded: “I find the In the typical peremptory challenge in- provided State credible, race-neutral rea- quiry, question decisive will be son for exercising its peremptory chal- whether counsel’s race-neutral explana- lenge after appraising the demeanor and tion for a peremptory challenge should credibility juror. of the The State’s exer- be believed. There will seldom be much cise of its peremptory challenge was non- evidence bearing issue, on that and the discriminatory. I am satisfied that best evidence often will be the demeanor

peremptory challenge was not made on the attorney who exercised the chal- ground juror’s race.” Id. at 889. lenge .... [Evaluation of prosecu- Riley suggests that it is not believable tor’s state of mind based on demeanor prosecutor that the was able to remember and credibility lies ‘peculiarly within at the time of the evidentiary hearing in trial judge’s province.’ 1. Riley also contends that a third however, member majority, rely does not on this venire, Beecher, Lois strike, was peremptorily and accordingly I do not discuss it in challenged by the state because of race. opinion. The this York, 352, 353, greatly Congress, that when it New 500 U.S. We doubt Hernandez v. (1991) 1859, language “fairly supported by used the 114 L.Ed.2d 395 111 S.Ct. omitted). in- (citation the record” considered “as whole” (plurality) authorize tended to broader federal re- proceeding present case is a Because credibility court view of state determina- statute, our the federal habeas under appeals tions than are authorized is, nar- anything, if even scope of review system within the federal itself. 2254(d)(8)(1988 § 28 U.S.C. rower. Under 434, 459 U.S. at 103 S.Ct. 843. See also any factual find- Supp.1990), & state-court Burkett, 769, 514 U.S. at 115 S.Ct. 1769. “fairly supported by that the record” ing is very scope Under the limited of review presumption entitled to a of correctness. here, I applies do not see how the provision, Discussing this hearing judge’s finding prosecutor that the Lonberger, in Marshall v. Court wrote truthfully testified regarding the reason 422, 434, 843, 74 103 S.Ct. L.Ed.2d U.S. challenging can be overturned. Nichols 2254(d) (1983), § gives “28 U.S.C. hearing judge prosecutor heard the courts no license to rede- federal habeas testify. He was aware of the factors noted whose de- credibility termine of witnesses provided grounds for doubting above by has observed the state meanor been testimony, his but he nevertheless found Accord, court, them.” but prosecutor was truthful. I would Spain, 464 122 n. Rushen v. finding. sustain that (1983)(per 78 L.Ed.2d 267 (as rejects majority finding 2. The curiam). The Marshall Court elaborated: finding well as the state courts’ with re- Oregon In United States v. Medical So- juror I spect prospective to another whom ciety, below) because, in large part discuss in the (1952), commenting L.Ed. 978 on the view, majority’s “there is no basis to deter- gave this to the deference which Court undertook, mine if the state courts or even findings of a District Court on direct of, required step were aware Batson trial, in a appeal judgment from a bench Maj. Op. at 291. In mak- inquiry.” three we stated: (a) ing argument, majority this misun- (b) requires, ig- what Batson derstands aptly “As was stated the New courts did in this nores what the Delaware Appeals, although York in a (c) case, imposes novel and unwarranted case of a rather different substantive procedural requirements on the state living nature: ‘Face to face with wit- (d) courts, and awards relief that extends original nesses the trier of the facts beyond logic what its own warrants. advantage a position holds of from Al- appellate judges step requires. are three Batson which excluded. What of majority step though In doubtful cases the exercise of his the makes three proves and elusive power of observation often seem elaborate elusive—so that, majority, ascertaining according accurate method of to the the Dela- most say may “fully appreciat- have the truth.... How can we the ware courts 289)— (Maj. requirement” Op. at judge wrong? We never ed saw three, conceptually difficult sophistication step To the is neither witnesses.... Step three judge procedurally complicated. of the trial the law nor sagacity Boyd simply requires to make a find- duty appraisal.’ confides the 422, 429, if the defendant Boyd, ing 252 N.Y. 169 N.E. of fact—“to determine discrimination,” Id., 339, purposeful at has 632.” 72 S.Ct. 690. established Batson, 98, (“the 476 U.S. at 1712 emptories. Maj. Op. See at 287 state (footnote omitted). Purkett, See also rejected courts in this case Batson 767, 1769; Hernandez, at U.S. 115 S.Ct. claim discussing any ample without of the 358-59, at (plurali- S.Ct. 1859 evidence that question throws into the ex- ty opinion); id at planations 111 S.Ct. 1859 by offered prosecutor J., (O’Connor, concurring judgment). ”).3 striking jurors.... two of the black any Neither Batson nor subsequent approach Su- This is inconsistent with the fed- preme Court or Third Circuit case has eral habeas statute added to requirement. this precedent. What the Delaware courts did. The provision of the federal habeas stat- Delaware courts exactly step did what ute on which the majority provides relies requires. respect three potential With that if a state court’s “determination after Nichols,

juror hearing judge, whose hearing on the merits of a factual issue” analysis endorsed, supreme the state court by is “evidenced finding, written written see 585 A.2d at noted that the state opinion, or other adequate reliable and provided had a race-neutral reason for the indicia,” written that determination “shall challenge, stated that expla he found the presumed to be correct” unless it is not credible, nation and concluded: “I am sat “fairly supported by the record” as a peremptory challenge isfied that the 2254(d)(8)(1988 § whole. 28 U.S.C. & ground juror’s not made on the 1996). Supp.l990)(amended Under this precisely race.”2 This is finding provision, the state court’s factual determi- step three of Batson mandates. See Bat simply nation must be evidenced “a son, (the 476 U.S. at 106 S.Ct. 1712 finding, written written opinion, or other court duty has “the if determine indicia,” adequate rehable and written purposeful defendant has established dis it necessary is not even that a state court crimination”). “specifically articulate credibility its find- majority Rose, What the requires. Although ings.” LaVallee v. Delle majority it, opinion 690, 692, is loathe to admit 35 L.Ed.2d 637 (1973). majority what the really wanting finds Lonberger, also Marshall v. opinions the Delaware courts is not Thus, 459 U.S. at 103 S.Ct. 843. 2254(d) finding failure to make the § mandated plainly U.S.C. does not authorize step inquiry three of the disregard Batson but a us to a state court’s factual find- failure to comment regard- ing on the record ground on the the state court seems, ing evidence that majority’s failed to discuss all the evidence or to view, to undermine prosecution’s prof- explain why persuaded it was not by a explanations fered disputed per- particular for the piece proof. findings regarding ....'');

2. The state segment Riley’s courts' the oth- cant evidence id. at issue, McGuire, potential juror to, er (hearing judge Charles made no "reference or of, are discussed below. See analysis infra at 322-24. pretext”); evidence of id. ("Here, at 286 the state courts failed to exam- See, ("With e.g., Maj. ine all of the evidence Op. regard to determine whether at 280 to McGuire, proffered the explana- both and State's race-neutral Nichols the state courts pretextual. only failed opinions to mention in tions were Not their the weak- is there no id, ...."); explanations nesses in hearing the State's indication on the record that the ("[TJhe hearing judge at engaged analysis, required discussed neither in the but the explain statistics nor the State's failure to there is no indication that the Delaware Su- them[,3 overlooking so.”). ignoring signifi- preme ... a Court did if making they of the Delaware courts as were judge, that a question I do not by finding required step three Security the factual decisions of a Social administra- Batson, all of the rele- should consider must, held, judge, tive law who we have But that has been adduced. vant evidence “give discounting some for the evi- reason any nor later neither Batson rejects.” Apfel, v. dence she Plummer suggests Third case4 Court or Circuit (3d Cir.1999). 422, F.3d The Delaware reject habeas court is free a federal courts, however, if are not to be treated as court if the state findings factual of a state they agencies. were federal administrative all of the evi- court does not comment on The if ma- majority’s Even relief. the federal court provide dence or what jority were correct the Delaware satisfactory explanation as a regards obligated explain courts were on the finding.5 majority The confuses the its why they accepted prosecution’s record all of obligation to consider the relevant explanations for its strikes and were not (something that a court should evidence evidence, persuaded by Riley’s that would fact) making findings with always do hardly justify majority the relief that the to comment on all of the obligation granting orders —the of the writ unless (an are not obligation that we evidence Riley is re-tried. When decision found courts). impose free to on state an faulty provide to be for failure to ade- case, noted, I there is no this as have quate explanation, logical remedy is to precisely that the state courts did question adequate explanation that an remand so required they step what three of Batson — See, supplied. e.g., can be Florida Power findings as to whether had made Lorion, 729, 744, Light & Co. purposeful discrimination. established (1985); 105 S.Ct. 84 L.Ed.2d 643 only discovery and a they And did so after Assn. v. State Farm Motor Vehicle Mfrs. thorough hearing. There is no reason to Mut., 29, 57, 2856, 77 did not con- believe that the state courts (1983). Here, however, L.Ed.2d 443 evidence, including all of the relevant sider majority give does not the Delaware courts majority all that the now evidence majority’s with the comply chance persuasive. The Delaware courts finds newly procedural requirements. found simply did not comment on all of this majority remand to the Dis- Nor does (Judgments credibility about evidence. hearing findings spe- trict for a demeanor often do based on witness’s ma- cifically addressing points explanation). to such not lend themselves Instead, important. jority views as obligat- But the Delaware courts were not granted majority orders that the writ be all ed to comment on of the evidence. Riley is re-tried. majority in this case reviews the decisions unless (at 286) majority only at 290. The 4. The Third Circuit case cited in this (see majority Maj. Op. connection 290) at quotes dictum in a footnote in United States v. (1993). Ryan, F.2d 960 is Jones v. McMillon, (4th 953 n. 4 14 F.3d Jones, however, very different from the added), Cir.1994)(emphasis the effect that nine, (see infra) present case footnote step Batson "the court then ad three of support proposition not that a find- does and evaluates all evidence introduced dresses ing of a state court is not entitled to the attaching reasons for not each side.” The presumption of correctness if the state court ("addresses”) weight to word too much one why per- explain did the court was not require men this statement are too obvious to by particular suaded items of evidence. tion. majority au- 5. Nor does the cite much other thority support position. Maj. Op. its How the state courts’ failure to address means record the reasons for all of the Riley’s justify evidence on can prosecution’s the record strikes. baffling. relief If expla- such is the lack of I wish there were some scientific test important nations on the record is to the complete that could determine with cer- majority’s analysis, then the case should tainty paused whether Nichols and wheth- explanations may remanded so that be be prosecutor er the told the truth. Unfortu- provided. If no explanations on the record nately, there no is such test. must We satisfy majority-and could I believe rely a degree ability substantial on the to be the case-then majority’s prosecutor’s of the who heard the lengthy inadequacy discussion of the of the testimony to make an accurate assessment opinions Delaware courts’ is beside the credibility. of his There is no question point. hearing judge took responsibil- his majority’s remaining 3. The reasons ity seriously finding good and made his rejecting hearing judge’s finding faith. Our role under the federal habeas require response. majority little The is statute to determine whether that credi- that, notes although prosecutor testi- bility finding “fairly supported by paused, fied that Nichols “the record re- record.” It is. pause.” Maj. flects no such I Op. at 278. many transcripts, have read I and do C: Charles McGuire. any not recall in which the court reporter 1. strongest Batson claim con- paused noted that a witness had or had not prosecution’s cerns the strike of Charles answering question. before trial, At prosecutor McGuire. first majority significant The finds it used a peremptory challenge against “despite alleged pause, prose- Nichols’ then immediately McGuire and made the cutors did not ask the trial court to remove following application judge: to the trial Maj. Op. Nichols for cause.” at 279. The Honor, [THE Your PROSECUTOR]: majority if question “why raises the Nich- may I ask the reconsider actually pause significant pause,’ ols did ‘a charging the State for that strike. This the state did not seek to have him removed Mr. yester- McGuire came to chambers for cause.” Id. majority Does the serious- day expressed his belief that he ly prospective juror believe that a who didn’t know if he could last the two pauses answering question before about trial], length [the weeks estimated penalty may properly death be re- problem there was some with work. He cause? moved/or inspector was an or something for the majority observes that record “[t]he Department of I Labor. know he came ... any does show of the contem- in yesterday. poraneous kept by prosecutors notes THE I him COURT: will not strike jurors as to some of the reflected either for cause for that reason. He asked pause the existence of a or the concern yesterday excused I decided not prosecutor] about testified six which[the to excuse him.

years Maj. Op. later.” prose- 279. The App. notes, however, cutor’s consist of hand- written sheet with a evidentiary hearing few words or abbrevi- At the held before ations scrawled next to the names of hearing judge, prosecutor some testified jurors. of the prospective Nichols’s name he struck McGuire because McGuire is not even on this sheet. The previously requested prose- give would his full time and and because the McGuire jury from service” jurors” who were to the trial and whether he cutor “wanted attentive attention missing other obli- entirety not worried about would able to serve for the took while the gations or activities projected the time for the trial. Wheth- App. 801. place. McGuire, fact, request er did not re- jury duty did lief from wish serve called McGuire as witness The defense consequence. is of no evidentiary hearing. McGuire testi- at the employed by the State of fied that he was (em- State, v. at 4-5 Riley No. Security “disability as a Social Delaware added). phasis hearing judge The then 846-47; App. that he had adjudicator,” explanation noted that the state’s for strik- jury duty in the court- reporting for been McGuire, ing “entirely was unrelated to weeks in Dover for two three house race,” juror’s and the credited in connection questioned he was before Obviously, by explanation. that Id. at 5. Riley case had not been seat- with the but explanation “entirely an that was crediting 852-53; jury, at that while he ed on a id. race,” juror’s hearing to the unrelated work, disability claims away from was judge necessarily Riley found that had not ],” “just at to him would id. assigned sit[ discrimination,” purposeful “established 850; of his office had told that the director Batson, at to make a “formal going him that he was fully hearing judge complied thus with excused, id. at request” that McGuire be step Batson’s three.6 sent, 860; at request that such a was id. 853, 856; request and that the had been sup- provide factors substantial Several judge. with the Id. discussed chambers port finding. apparent for this It is said, however, 849-50, McGuire at 856. work situation was on the McGuire’s an expressed had never that he himself was prosecutor’s mind when McGuire jury and had unwillingness to serve on because, peremptorily challenged not- willing id. at 850. been to do so. See ed, McGuire, immediately striking after dis- prosecutor. asked McGuire’s judge accepted prosecu- hearing The deemed for cause since he had missal be explanation striking of the reason for tor’s “expressed his that he didn’t know belief hearing judge found: McGuire. The App. if weeks.” he could last two peremptorily challenged The State addition, prosecutor 250. a reasonable prosecu- [the Charles McGuire because whether might well have wondered requested he to be excused believed tor] adversely situation would McGuire’s work and, therefore, duty may have from at trial. not- affect his attentiveness As unwilling or to serve for the been unable ed, supervisor had made McGuire’s entirety trial.... em- McGuire’s that he be excused “be- request” “formal ployer requesting sent a letter he be replaced job at his cause he could not be jury duty from because he released jury duty.”7 if for he was chosen job at if was replaced could not be his he in fact or not McGuire himself Whether jury duty. The letter chosen jury, impres- wished to serve on the employer clearly gave the McGuire’s conveyed question apparently sion State reason whether State, however, majority, incorrectly suggests No. 1988 at 4. See also 7. 289) (Maj. finding prosecutor Op. (McGuire's “the testimony at the eviden- App. 860 finding that to be credible” is different from tiary hearing). proved. purposeful discrimination was not 324

McGuire wanted to be excused and to attorney re- at post-conviction the relief evi- work, turn to since the trial judge com- dentiary hearing, prosecutor but the testi- mented: “He asked to be yester- excused fied that he had no recollection of Reed. day and I decided not to excuse him.” App. See 823-24. App. 250. Under these circum- The notation Reed’s name and the stances, a prosecutor reasonable could prosecutor’s testimony at evidentiary the have been concerned that might McGuire hearing certainly are factors that the hear- have been inattentive at trial due to wor- ing judge could have viewed tending as to ry work, about missing leaving his duties undermine the credibility of unattended, prosecu- the perhaps incurring his su- explanation tor’s pervisor’s for striking McGuire, displeasure. but the notation and prosecutor’s the testimo- Riley attacks hearing the judge’s finding ny are insufficient to show that hearing First, on grounds. two points he that, out judge’s finding is not “fairly supported by according to McGuire’s testimony at the 2254(d). § record.” 28 U.S.C. It is post-conviction relief evidentiary hearing, reasonable to infer from the notation McGuire himself did not ask to be excused. that, “wants off’ at point some jury argument This unpersuasive. Although process, selection expressed Reed McGuire that he desire testified did not ask to be excused, to be excused for some judge, noted, reason. as As far I stated as aware, am however, time of McGuire’s dismissal: record “He does not asked to be excused establish why8 I yesterday and decid- or how strongly Reed ed not to excuse him.” App. 250 wanted (empha- to be excused. The transcript of added). Thus, sis McGuire, who was un- the voir that, dire shows at the stage final able to many remember details at the time selection process, the members post-conviction relief evidentiary of the venire were asked whether there hearing, 853, see id. at 857-62, may have was “any why reason [they] absolutely mistaken, been or may he conveyed have serve,” [could 223; not] App. that mem- impression at the time of trial that he bers of the venire successfully then asked personally wanted be excused. to be released for reasons such previ- as a

Second, ously planned vacation, 253; id. at points out that but the hand- Reed written sheet made request no prepared by prosecutors be excused at during voir dire contains the time. See id. at following Thus, 229-30. no- as far tation next to as the name of a juror, appears reveal, white record may Reed Reed, Charles prosecution whom the have relatively had a weak did desire and rea- not peremptorily strike: son excused, “works Lowe’s— to be and his may situation wants off.” prosecutors One of the not have been at all comparable in this questioned about this notation respect to McGuire’s.9 8. Although the Evatt, notation appears off" 907, “wants (4th thews v. 105 F.3d 918 Cir. Lowe's,” after the words "works at 1997); it is not United Spriggs, States v. 102 F.3d clear that Reed’s desire to be excused was 1245, (D.C.Cir. 1997); United States v. related to his employment. prosecutor's Stewart, (11th Cir.1995); F.3d appear enough, is not in view of the question Because the Sixth Amendment does not “great hearing deference”10 owed the support [Riley’s argument] and the deci- determination, judge’s credibility to dem- Alabama, sion in Swain v. hearing judge’s finding onstrate that the is (1965), 85 S.Ct. 13 L.Ed.2d 759 “fairly by the record.”11 supported appropriately more recognizes per- how 2254(d)(8) (1988 Supp.1990). § & U.S.C. emptory challenges, even those exer- In an effort to its unusual bolster deci- association, group cised on the basis of hearing judge’s sion to overturn the credi- goal foster the constitutional im- of an bility finding, majority points to a partial jury, the state asserts that no by in statement contained the brief filed required reversal is here. Riley’s appeal. the state in direct The (footnotes omitted). App. Thus, 896-97 majority writes: the state’s brief—which the trial pros- lead Riley’s appeal direct came When before sign merely ecutor did not even urged — Supreme in the Delaware Court supreme the state court to follow the rea- justified the State the use of race in soning of Supreme the United States selecting jurors in criminal trials. On in governing what was then the occasion, was the which State’s first precedent. federal It is far-fetched to in- opportunity per- to defend the use of its terpret the state’s reliance on as a Swain trial, emptory challenges peremptories tacit admission that its single State did not offer a race-neutral particularly this case were based on race— explanation, not even as an alternate since, in a quoted footnote to the sentence instead, argument; it claimed that it was above, deny was careful to state permissible socially desirable —to —even challenges racially its were based.12 jurors exclude based on what it called ” ‘group association.’ It is also unreasonable to draw an ad- 896). Maj. Op. at (quoting App. against verse inference the state for not argument providing explanations This is not well taken. Re- race-neutral for its sponding Riley’s suggestion challenges appellate in its brief. Since Batson, challenges solely assumption 10. 476 U.S. at 98 n. of his on the race, juror's in the context of the case, position facts of this indicated a verdict very 11. This case is different from Jones v. prosecution.” App. adverse to the 896. The (1993). There, Ryan, exercising 987 F.2d 960 "solely” majority the word seizes on this plenary any findings review in the absence of played sentence as a tacit admission that race court, of fact a state we held that Batson part peremplo- in the decision to exercise prosecutor was violated where the excluded a view, my wholly ries. In it is unreasonable to juror approximately black who had child "solely.” word The defendant, read that much into the age the same as the retain- while ing juror similarly Court in Batson itself used this same a white who was situated. Jones, case, present 987 F.2d at 973. In the word in the same context. See 476 U.S. at deciding we are limited to whether the state added)("[T]he (emphasis 106 S.Ct. 1712 finding fairly supported by court is the evi- Equal prosecu- Protection Clause forbids the dence. challenge potential jurors solely ac- tor to on race."). count their "emphatical- 12. The state’s brief stated that it ly prosecutor any denie[d] that the exercised

there was no evidence the record re- 1492. Since it has been held that no Bat- garding the strikes, reasons for the son violation was in Deputy, shown it is state hardly could expected have the state difficult to see how case can be viewed supreme court to base a expla- decision on supporting Riley’s argument here. provided nations without support. record Pregent’s case, the state struck four The majority’s arguments regarding the whites and one black. There nothing state’s brief are insubstantial. before us to indicate that any Batson ob- majority’s reliance on statistical evi- jection made, and it is doubtful that dence is even worse. In the pro- Batson the pattern of strikes exercised ceeding before hearing judge, Riley prosecution sufficed to make prima out a proffer made a that no African American facie case. had any served on of the three other first- The remaining prosecution case is the degree murder trials that had occurred in Judith McBride for murdering her hus- County Kent year a within of his own and State, band. See McBride v. 477 A.2d 174 in those cases prosecution had (Del.1984). The state exercised a total of peremptorily challenged five African strikes, of which three were against Americans. The three other trials were potential jurors identified as black.13 those of Andre Deputy, an African Ameri- There is nothing to any indicate that Bat- can, whites, and two Daniel Pregent, who objection son was made. Without in effect was acquitted, McBride, and Judith who holding a hearing, Batson there is no way was convicted. respect With to these of determining any whether prosecution cases, no information provided was at the peremptories were on based race. time—and provided none has been since— about Although prosecutors Riley identities of represented was who at the participated in jury selection, hearing by Batson a professor the racial of law and venire, makeup of the has represented or jurors the race of been in the federal habe- who were as proceeding by dismissed for peremp- attorneys cause or from one of torily challenged by leading firms, the defense. nation’s law no expert analysis of these statistics has ever been In the trial of Deputy, Andre who was According offered.14 to the majority, how- convicted and ultimately executed, ever, the “sophisticated analysis of a sta- state struck whites, four one African tistician” is not interpret needed to American, and person one listed as “Indi- significance of these Maj. statistics. Op. an.” Deputy argued prosecution’s “An 280. amateur with a pocket calcu- peremptory challenge of the African lator,” writes, the majority can calculate American venireperson violated Batson. that “there is little chance of randomly See Deputy Taylor, 19 F.3d selecting four all juries.” consecutive white (3d Cir.1994). Deputy’s argument Batson Id. rejected in the district court decision denying petition his for a writ of habeas Statistics can very revealing —and corpus, and our court affirmed. id. at also terribly misleading the hands of “an statistics, According Riley's five of portunity” those Riley expert to offer an analysis white, struck the state were race 292) (Maj. his statistics Op. at is difficult to provided. two is not understand. Riley What stopped from offer- ing the evidence of a statistician as to the majority's 14. The statement proce- significance that "the scant statistics that posture dural provided of the case” op- provided? "no an pocket calculator.” The adverse inference should be drawn un amateur with analysis treats majority’s simplistic particular der circumstances based on a jurors peremptorily who were prospective party’s produce failure to evidence in a challenged they as if had no relevant char- proceeding state is the first instance a race, they than as if were acteristics other law, question of state and unless a state jar in a in effect black and white marbles court’s failure to draw such an inference reality, lawyers from which the drew. particular process case denies due or a however, many these individuals had other adequate hearing, fair and a federal habe- characteristics, taking those without reject as court should be reluctant account, simply it variables into ruling. state court’s Cf. 28 U.S.C. possible prose- to determine whether the 2254(6) (7) (1988 Supp.1990) § & on race or cution’s strikes were based (amended 1996). Moreover, if even this something else. awere collateral attack on a federal con majority’s dangers approach viction, we would defer to the decision of easily Suppose illustrated. we can be hearing who conducted the as to pocket asked our “amateur with calcula- justified whether the circumstances people tor” the American take whether drawing of adverse inference and would into account in right— or left-handedness only reverse if the an committed choosing Although only their Presidents. See, of e.g., abuse discretion. Bouzo v. left-handed, population 10% of the about Citibank, N.A., (2d 96 F.3d Cir. won five of the last six left-handers have 1996). “amateur presidential elections.15 Our Here, with a calculator” would conclude the state courts’ failure to draw randomly “there is little chance of select- certainly such an inference did not consti- in ing” presi- left-handers five out of six tute an of abuse discretion. The state was dential elections. But does it follow that given any never it notice had obli- their ballots based on voters cast data, gation provide additional and it is right— whether a candidate was or left- not at all clear what sort evidence the handed? majority expects provid- the state to have critically ed. The information that is most multiple-regres-

Whether even careful analysis peremptory challenge sion sta- lacking prosecutors’ reasons for —the tistics in other cases would suffice to show striking the five African American venire that a Batson violation occurred in this McBride, Deputy, members in the McCleskey Kemp, case is unclear. Cf. Pregent probably could not have cases— 95 L.Ed.2d conducting been obtained effect without (1987). Here, however, we have retrospective hearings Batson in those presented any expert been with statistical majority think cases. Does the that such a evidence. hearing practical? would have been Or majority does the think that the state majority argue and the concurrence expert analyze should have retained am that an adverse inference should be drawn peremptory challenges the state’s use of against failing the state for to come for- In some other set of cases? order to make ward with data to rebut statistics. approach. analysis, expert probably I see no for this such an basis Whether "Forget Left-Wing. Say 15. See Hello to Left- 2000. Politics,” Times, Handed New York Jan. know, They

would have needed detailed information they ble. know it.... For know, prospective jurors about I judge] whom the and as has told [the state did e.g., you, you and did not their that the decision au- render is strike — status, education, ages, occupa- marital tomatically Supreme reviewable tions, past experiences with law en- Court. forcement, just myri- to name a few of the 325-26, Id. at figure ad variables that often decisions three, By a vote of five to the United peremptory challenges. about We have no States Court reversed the defen- indication that such information was avail- dant’s death plurality opin- sentence. The able, event, any compiling and in ana- justices approved by ion four concluded lyzing the data concerning reasonable prosecutor’s comments were im- sample of cases could have been a massive first, proper for two reasons: because the view, undertaking. my entirely In it is prosecutor’s description of state

unwarranted to hold that the state courts appellate scheme of review was not “accu- they abused their discretion because did and, second, availability rate” because the not draw adverse inferences from the appellate review “wholly irrelevant state’s failure to volunteer to conduct such to the determination of appropriate study in response to the statistics that sentence.” Id. Riley proffered. O’Connor, deciding Justice who cast the sum, I ground overturning see no reversal, fifth vote for refused to endorse the hearing judge’s credibility findings. I principle giving that “the of nonmis- presumption would thus hold that leading regard- and accurate information correctness has not been overcome and ing jury’s sentencing role reject Riley’s would argument. Batson scheme is irrelevant to sentencing the de- majority by making in effect its own — 341, cision.” 472 U.S. at 105 S.Ct. 2633 credibility findings on the cold state court J.) added). O’Connor, (opinion (emphasis of seriously errs. See Marshall v. record — However, agreed prosecutor’s she Lonberger, 434, 459 U.S. at 108 S.Ct. 843. improper they statements were because impression the mistaken “creat[ed] that II. appellate automatic jury’s review of the I turn majority’s holding now to the that provide sentence would the authoritative by a prosecutor remark made the in clos determination of appro- whether death was ing argument penalty phase at the priate,” supreme whereas in fact the state trial violated Mississippi Caldwell v. su only court exercised a scope narrow of Caldwell, pra. In attorney’s the defense review. Id. closing argument jury asked the to “con cases, subsequent In the Court has clari- front gravity responsibility both the holding fied the Caldwell. In Romano calling for another’s death.” 472 U.S. at Oklahoma, 1, 9, 512 U.S. 114 S.Ct. 324, 105 response, S.Ct. 2633. In pros (1994), 129 L.Ed.2d 1 the Court wrote as ecutor strong exception took to the de follows: attorney’s fense comments and stated:

Now, they you would have believe that As supplied Justice O’CONNOR you’re Caldwell, kill going they this man and fifth vote and concurred on they your grounds know that decision is put narrower than those forth know— God, not My by the final decision. how plurality, position her is control- unfair you job States, can be? Your ling. is reviewa- See Marks v. United 430 nation, 188, 193, you if 51 L.Ed.2d believe the sentence 97 S.Ct. U.S. (1977).... every should death then each and one Accordingly, we have you sign goes has to this. to the This only to read Caldwell as “relevant since Supreme why Court. That is it is con- types of comment—those certain cise and we believe clear and it should in the jury as to its role mislead carefully be looked on and answered sentencing process way in a that allows appropriately. responsible than it jury to feel less sentencing decision.” added). should App. (emphasis Riley argues Wainwright, 477 U.S. Darden v. highlighted quoted words above 2464, 91 L.Ed.2d n. 106 S.Ct. violated Caldwell. (1986). Thus, establish Cald- “[t]o appeal, its decision on direct the De- violation, necessarily a defendant well Supreme responded laware to this jury that the remarks to the must show argument as follows: assigned the role improperly described prosecutor’s way remarks no [T]he jury by Dugger v. to the local law.” suggested responsibility for ulti- Adams, 401, 407, mately determining whether defendant (1989), 1211, 103 L.Ed.2d 435 see also imprisonment faced life or death rested Smith, 227, 233, Sawyer v. prosecutor’s passing elsewhere. The (1990). 2822, 111 L.Ed.2d 193 jury comment to the its decision rejected The Romano Court the Caldwell “automatically would be reviewed” was argument advanced that case because fairly prose- made in the context of the affirmatively “the misled re preceding “spe- cutor’s reference to the sentencing process.” role in the garding its statute[controlhng] penalty cific hear- 10, 114 Id. at S.Ct. 2004. § ing capital on case.” Del.C. 4209. § 4209 (g) Since subsection mandates on a Riley’s argument is based state- Penalty “Automatic Review Death prosecutor ment made near Court”, pros- Delaware very beginning of his summation at the simply in the instant case was ecutor phase prose- of the trial. The sentencing quoting may the statute. In no sense it cutor stated: reasonably prosecutor be said that the explained you has we Judge As law, misstating either the mislead- was specific regard a statute have with role, ing jury minimizing the as to its or penalty hearing occurred in a on a what sentencing responsibility. its capital case. (alteration in I original). 496 A.2d at 1025 say you Let me at the outset that what analysis. agree with this today automatically by reviewed do is in why prosecutor’s remarks Caldwell our Court and that is The focused, “quite unambiguous, on the were there is an automatic review penalty. why, you strong.” That re- 472 U.S. at 105 S.Ct. 2633. death is if death, that, why message contrary was turn a decision that is The clear of suggestion and have to out a the of counsel that the you will receive defense fill gravity and jury that the should “confront both the two-page interrogatory calling for another’s give you. interrogatory responsibility This is an will death,” jury the specifically questions sets out the id. at responsibility or need not shoulder that be request that the State and whether “the authoritative determination you beyond not believe it a reasonable cause appropriate” death would be you your doubt and if want determi- whether supreme made majority appears the state court. Id. at The to hold a O’Connor, (Opinion simply 105 S.Ct. 2633 Caldwell violation occurred because J.). prosecutor accurately It was in this sense that the the remarks stated that there “‘improperly assigned appeal described the role would be an automatic to the state ” 16 jury by supreme attempting the local law1 and thus court without to ex- “ jury responsible plain the scope ‘allowed to feel less the of review that the state supreme than it for sentencing should the deci court would exercise. I do not ” 17 sion.’ agree reading with this of Caldwell. Nei- ther Justice controlling opinion O’Connor’s prosecutor’s The remarks this case nor subsequent Caldwell the Court’s Here, very were prosecutor different. the explanation in position Romano took the accurate, unemotional, made passing re- that an unadorned reference to automatic marks in the describing context of judicial capital review of a verdict is why state statute and explaining jury enough to violate the Constitution. And would have to “fill out two-page interrog- holding such a would make little sense. atory” capital if it returned sentence. As the Seventh Circuit has noted: convey These did not message remarks Everyone knows that after a death sen- jury gravi- should not confront the imposed, ap- tence is there are tiers of verdict, ty returning a death and thus pellate errors; designed review to catch the mere mention of the fact that there prosecutor telling jurors wasn’t would an appeal automatic to the state anything they already. Ap- didn’t know supreme jury court did not mislead the pellate review is a fact of all almost to its role in the sentencing process. criminal cases that are tried. Knowl- connection, noteworthy this it is that after edge jurors of this does cause closing arguments, judge the trial in- lightly take sentencing responsibil- their jury using structed the on its lan- role ities. guage responsi- that left no doubt about its Anderson, bility. Fleenor v. The trial stated: F.3d “Where the (7th Cir.1999). What Caldwell forbids is finding submits such and recom- mendation, simple not a appel- reference to automatic the Court shall sentence the review, suggestion late but the defendant to death.” See 585 A.2d at 731 added). scope of (emphasis A review is broader than it is in fact. “recommendation of death, supported by evidence, conveyed remarks Caldwell such a shall be suggestion; the binding on the Id. comments here did not. I (emphasis Court.” add- ed). would therefore hold that “Your no Caldwell vio- unanimous recommendation lation occurred. imposition of the death if penalty, supported evidence, binding on III. added). (emphasis Court.” Id. at 734 light In of the substantial factual differ- Reviewing habeas in capital decisions case, ences between Caldwell and this important cases is one of the most light in subsequent of the Court’s responsibilities difficult of this court. Our explanation Caldwell, meaning of the I role limited-and is not to be is.vital-but reject Riley’s would Caldwell claim. confused with or the vari- 9, 9, Oklahoma, Oklahoma, 512 U.S. at 114 v. 512 U.S. at 114 Romano 17. Romano v. 16. Adams, (quoting Dugger S.Ct. 2004 (quoting 489 S.Ct. 2004 v. Wainwright, Darden v. 407, 1211). 2464). U.S. at 477 U.S. at n. government. Apply- explanation goes beyond far what branches of state ous — majority ordered here. applicable that are ing legal standards context, I present in the believe to us the district court must be

the decision of

affirmed. majority federal habeas

The cites two appeals in which courts of found

cases procedures fault used

great with objec judges adjudicating state Batson America, UNITED STATES of Lefevre, tions. Jordan v. F.3d v. (2d Cir.2000), appeals court of held properly “could not SZEHINSKYJ, Theodor Fedor a/k/a step” third Batson he decide the because Szehniskij Szehinski Theodor a/k/a argu counsel’s efforts to make “resisted Szehinsky Theodor Theo a/k/a a/k/a regarding peremptory strikes so ments Szehnkyj dor Szehinski Theodor a/k/a Szehinskyj, Appellant. a full record” and instead create Theodor summarily” extremely after “an “ruled No. 00-2467. Likewise, in colloquy.” Id. at 201. brief Appeals, United States Court of (7th Gilmore, v. 155 F.3d 912 Cir. Coulter Third Circuit. 1998), appeals spent the court of several pages describing the bizarre nature of the Argued:. Sept. 2001. procedure by the state trial court in used Opinion Filed: Jan. objections. ruling on Batson Id. at 915- lb, appeals ultimately 918. The court of

concluded that the state court had totality

considered the of the relevant cir peti

cumstances and thus ordered that the if

tioner be released the state court did not hearing using prop

conduct a Batson “the methodology.” proce

er Id. at 922. The

dures used the Delaware courts

present case bear no resemblance to the

procedures found deficient Jordan and

Coulter. majority appeals two also cites

which the Sixth Circuit remanded cases for provide

the district courts to more com-

plete explanations rulings. of Batson Harris,

United States F.3d

(6th Cir.1999); Hill, United States v. (6th Cir.1998). These, however,

F.3d 337 appeals,

were direct federal not habeas

proceedings prisoners, initiated state

and the relief ordered —remands for fuller notes as to some questions posed by regard- two the court jurors reflected either existence jurors’ ing willingness to sentence pause which of a or concern about seemingly in a manner defendant to death Thus, Liguori years later. testified six prosecution: favorable to Liguori’s explanation entirely unsup- Q: you any have conscientious scru- Do by the ported record. See Johnson ples against finding guilty a verdict of (9th Cir.1993) Vasquez, 3 F.3d punishment might be death or where the (stating that courts are not bound to ac- against imposing penalty the death even that are either cept race-neutral reasons if the evidence should so warrant?

Notes

notes no “had to be excused

notes to contain notations of the em- Alvarado, United (2d States v. 951 F.2d ployment jurors. of other 1991); Lance, Cir. United v. States 853 F.2d (5th 1988); Cir. United States v. Many decisions held have that Batson is not McCoy, (6th 1988); 848 F.2d Cir. simply contravened jurors because two exhib- Lewis, United States 837 F.2d 417 n. 5 it similar characteristics and one is excluded (9th 1988). Cir. See, while the other e.g., is retained. Mat- noted, scope I our of review of Delaware Court should hold that As have Al- hearing judge’s finding is narrow. peremptories individual race-based were why though satisfying unconstitutional, it would be know argued the state’s brief stricken, that unanswered Reed was not follows:

Case Details

Case Name: James William Riley v. Stanley W. Taylor M. Jane Brady

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 28, 2001

Citation: 277 F.3d 261

Docket Number: 98-9009

Court Abbreviation: 3rd Cir.