Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-17-2001

Riley v. Taylor
Precedential or Non-Precedential:

Docket 98-9009




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Volume 1 of 2

Filed January 17, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-9009

JAMES WILLIAM RILEY,

       Appellant

v.

STANLEY W. TAYLOR;
M. JANE BRADY

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

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT

(D.C. No. 91-cv-00438)
District Court Judge: The Honorable Joseph J. Far nan

Argued: November 29, 1999

Before: SLOVITER, ALITO, and STAPLETON,
Circuit Judges

(Opinion Filed: January 17, 2001)

       Thomas J. Allingham, II (Argued)
       Stephen D. Dargitz
       One Rodney Square
       P.O. Box 636
       Wilmington, DE 19899
       Mary M. Maloney Huss
       222 Delaware Avenue, Suite 1102
       Lawrence J. Connell
       Widener University School of Law
       P.O. Box 7474
       Concord Pike
       Wilmington, DE 19803

       Attorneys for Appellant

       Loren C. Meyers (Argued)
       Chief of Appeals Division
       William E. Molchen
       Deputy Attorney General
       Department of Justice
       State Office Building
       820 N. French Street
       Wilmington, DE 19801

       Attorney for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

This is an appeal from the denial of a petition for a writ
of habeas corpus in a capital case. We affirm.

I.

In May 1982, James W. Riley and two co-defendants,
Tyrone Baxter and Michael Williams, wer e indicted in
Delaware for felony murder, intentional murder, and lesser
offenses stemming from the robbery of a liquor store and
the fatal shooting of the owner in February 1982. Riley
pleaded not guilty to all of the charges and was tried by
jury in Kent County Superior Court in December 1982. He
was represented by appointed counsel.

At trial, Riley's co-defendants testified as follows for the
prosecution. On the afternoon of the shooting, Williams
agreed to give Riley and Baxter a ride to the bus station,
but on the way, he stopped, at their request at a store

                                 2
called Sandbar Liquors, because Riley and Baxter wanted
to get some beer and rob the store. W illiams parked near
the liquor store and waited in the car, while Riley and
Baxter walked to the store. Armed with a gun, Riley placed
a quart bottle of beer on the counter and announced that
the store was being robbed. When the stor e owner, James
Feeley, backed away from the cash register , Baxter grabbed
the money out of the cash drawer. Riley tried to take
Feeley's wallet, but Feeley resisted. At Baxter's urging, Riley
shot Feeley in the leg. As Riley and Baxter wer e leaving,
Feeley threw a wine bottle that struck Riley in the arm.
Riley then shot Feeley in the chest, killing him. In addition
to this testimony, the prosecution intr oduced evidence that
Riley's fingerprints were found on the bottle of beer that
had been placed on the counter.

Riley took the stand in his own defense and testified that
he was in Philadelphia with his mother celebrating her
birthday when the robbery occurred. Although Riley's
mother was present in court at the beginning of the trial,
she did not testify, and no other alibi witnesses were
presented. However, Gary Momenko, an inmate at the
Delaware Correctional Center, testified that Baxter had
admitted that he, rather than Riley, had fir ed the shot that
killed Feeley.

The jury returned a verdict of guilty on all five counts.
The state sought the death penalty on the felony mur der
conviction, and four days later, the penalty phase of the
trial was held. The jury unanimously recommended a
sentence of death, and based on this recommendation, the
trial court sentenced Riley to death. After Riley was
sentenced on the remaining counts for which he had been
convicted, he appealed.

On direct appeal, Riley continued to be r epresented by
his trial counsel. In addition, the American Civil Liberties
Union of Delaware, Inc., participated in the appeal by filing
an amicus curiae brief and by assisting trial counsel.

In July 1985, the Delaware Supreme Court affirmed
Riley's conviction and death sentence. Riley v. State, 

(Del. 1985) ("Riley I "). The Supr eme Court of the
United States denied certiorari. Riley v. Delaware, 

(1986).

                               3
Represented by new counsel, Riley filed a motion for
post-conviction relief in Kent County Superior Court in
March 1987. The court conducted three separate hearings
on the issue of ineffective assistance of counsel, but
ultimately the court denied Riley's motion. State v. Riley,

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

In May 1988, Riley moved for reargument and appealed
to the Delaware Supreme Court. Shortly thereafter, he filed
a motion to stay briefing his appeal and to r emand his case
to the Superior Court to consider his motion for
reargument. The Delaware Supr eme Court granted that
motion.

On remand, the Superior Court granted r eargument in
order to consider Riley's claim that the pr osecution had
exercised its peremptory challenges in a racially
discriminatory manner in violation of Batson v. Kentucky,

(1986). State v. Riley, 

(Del.
Super. 1988) ("Riley III"). Following an evidentiary hearing,
the Superior Court rejected all of Riley's claims, including
his Batson claim. Riley v. State, Del. Sup. Ct. No. 200,
1988, Status Report of the Trial Court (April 21, 1989)
("Riley IV"). On appeal, the Delaware Supreme Court
affirmed, and the United States Supr eme Court again
denied certiorari. Riley v. State, 

(Del. 1990)
("Riley V"), cert. denied, 

(1991).

In August 1991, Riley filed a petition for a writ of habeas
corpus in the United States District Court for the District of
Delaware pursuant to 28 U.S.C. S 2254 (1988 & Supp.
1990) (amended 1996). The District Court granted Riley's
motion to substitute attorneys from the law firm of
Skadden Arps Slate Meagher & Flom as new lead counsel
and to allow his post-conviction counsel to continue as co-
counsel. However, the Court denied new counsel's request
to file an amended petition. The Court then issued an
opinion and final order denying the petition for a writ of
habeas corpus. Riley v. Snyder, 840 F . Supp. 1012 (D. Del.
1993). Riley appealed.

A panel of our court reversed the order denying Riley's
motion for leave to amend his petition and r emanded the
case for further proceedings. Riley v. T aylor, 

(3d
Cir.1995).

                               4
On remand, Riley filed a lengthy amended petition in
August 1995, and the state filed an answer . In his amended
petition, Riley raised 12 grounds for r elief. In a
comprehensive opinion, the District Court discussed and
rejected all of these claims. Riley v. T aylor, Civ. Act. No. 91-
438-JJF, 

(D. Del. Jan. 16, 1998). We
granted a certificate of probable cause, and Riley then took
this appeal.

II.

Riley, an African American, first contends that the
prosecution violated Batson v. 

, by using
peremptory challenges to strike three African Americans
from the jury panel because of their race. 1 As a result of
these strikes, no African Americans sat on the jury.

A.

Before reaching the merits of Riley's Batson claim, we
must consider whether, as the District Court held and the
state maintains, this claim is procedurally barred. This
issue requires us to review the history of the litigation of
this issue in the state courts.

1. On the eve of trial, Riley's attorney mov ed for
disqualification of the jury panel. He "did not attack the
original array or venire," which was 16% black, but he
"claimed that the panel had later become racially
disproportionate because the Court excused fr om service a
substantial number of the prospective jur ors." Riley 

. "The thrust of [his] objection was that
through judicial excusal of jurors for personal reasons, the
remaining blacks had been reduced to an unacceptable
number amounting to about 9% of the remaining venire."

attorney "did not charge, or even imply,
that the Trial Judge had excused jurors on racial grounds."
_________________________________________________________________

1. Although Riley was tried years before Batson was decided, the
Supreme Court did not deny certiorari in Riley's direct appeal until
shortly after Batson was handed down, and therefore Riley is entitled to
the benefit of that decision. Griffith v. Kentucky, 

, 328
(1987); Deputy v. Taylor, 

, 1491 n.6 (3d Cir. 1994).

                               5


to disqualify the entir e panel was denied,
and a jury was selected. 

time did defendant
challenge the State's use of its peremptory challenges or
even imply that the State was exercising its challenge rights
on racial grounds." 

After jury selection was
completed, Riley's attorney raised what he characterized as
"something of a renewal of an earlier motion" and again
moved to dismiss the entire jury, arguing that it was not
"representative of the community and could not give a fair
and impartial trial." 

was denied as well. 

to the Delaware Supreme Court, Riley argued
that the prosecution had exercised thr ee of its peremptory
challenges on racial grounds. Riley 

.
Addressing this argument, the Delawar e Supreme Court
held:

       We reject such contention for two r easons, each related
       to the inadequacy of the record to support the claim.
       We conclude (1) that no Sixth Amendment per emptory
       challenge claim was fairly presented to the T rial Court;
       but (2) even assuming the contrary, defendant failed to
       meet his burden of establishing a prima facie claim
       that the State exercised its peremptory challenges on
       racial grounds.

With respect to the merits of Riley's ar gument, the Court
held for the first time that racially based per emptories
violated state law, and the Court devised a pr ocedure much
like that later adopted in Batson for dealing with objections
to peremptories. 

Under this procedure, a
defendant who wished to contest a peremptory strike was
required to make out a prima facie case that the strike was
based on race. 

The court held, however, that
Riley had "failed to make the requir ed prima facie showing."

The Delaware Supreme Court's decision on direct appeal
did not mark the end of Riley's peremptory challenge claim
in the state courts. When the Supreme Court decided
Batson, Riley again raised the issue of racially based
peremptories in his motion for post-conviction relief, but in
a decision issued in April 1988, the trial judge r ejected this

                               6
claim, along with all of Riley's other claims for post-
conviction relief. Riley II, 

, at *1. Reiterating
the holding of the state supreme court, the trial judge
wrote: "Because the asserted violation was not argued and
evidence of such violation was not offer ed at the trial level,
the defendant's contention is without merit." 

the denial of post-conviction r elief to the
Delaware Supreme Court and then successfully moved that
court to remand the case for re-ar gument before the
Superior Court. On remand, Riley presented his peremptory
challenge argument to a new judge, Judge Steele, who took
a different view of the issue. After noting the state supreme
court's holding on direct appeal that Riley had not
adequately raised the issue at trial, Judge Steele stated
that he did not think that the state supreme court would
reach the same decision in light of its later decision in
Baynard v. State, 

(Del. 1986), in which the
state supreme court had held that the defendant had made
out a prima facie case. See Riley III, 

, at *2.
Judge Steele wrote that the defendant in Baynard had
"objected to the exercise of each per emptory challenge
against a black juror, noted the jur or's race for the record,
moved the Court to refuse the challenges against two and
moved to quash the entire panel." 

then
held that Riley's attorney had adequately raised an
objection at trial and had made out a prima facie case. 

Judge Steele therefore held that a hearing was
needed for the purpose of determining the actual bases for
the contested peremptories. After conducting such a
hearing, Judge Steele found that the state had not
exercised its peremptories based on race, and he denied
Riley's Batson claim. Riley V. The Delaware Supreme Court
affirmed that decision. See Riley 

.

2. When a state court rejects a criminal defe ndant's
federal constitutional claim because the defendant did not
raise the claim in accordance with an independent and
adequate state procedural rule, a federal habeas court may
not entertain the constitutional claim on the merits unless
the habeas petitioner can show either (a) that ther e was
"cause" for the procedural default and that it resulted in
"prejudice" or (b) that the failur e to entertain the claim

                               7
would produce a "fundamental miscarriage of justice."
Coleman v. Thompson, 

, 750 (1991). Here, as
noted, one of the two alternative grounds given by the
Delaware Supreme Court on direct appeal for rejecting
Riley's claim that the prosecution had exer cised its
peremptory challenges in a racially discriminatory manner
was that Riley had not raised any such objection at trial. If
the Delaware courts had adhered to this position, Riley's
Batson claim would almost certainly be pr ocedurally
barred. See Riley VI, 

, at *14.

"State procedural bars are not immortal, however; they
may expire because of later actions by state courts. If the
last state court to be presented with a particular federal
claim reaches the merits, it removes any bar to federal-
court review that might otherwise have been available." Ylst
v. Nunnemaker, 

, 801 (1991). Unfortunately,
"[i]t is not always easy for a federal court to apply the
independent and adequate state ground doctrine," 

, and this is such a case. While it is
perfectly clear that Judge Steele rejected Riley's Batson
claim on the merits, the decision of the Delawar e Supreme
Court affirming Judge Steele's decision is less clear. The
Delaware Supreme Court's discussion of the Batson issue
in its entirety is as follows:

       Riley's next contention, that the State exer cised its
       peremptory challenges for racial reasons, we find to be
       simply a renewed attempt to reopen pr eviously settled
       issues. In Riley I, we set forth a legal analysis
       functionally identical to the Supreme Court's analysis
       later articulated in 

, 106 S.Ct. at
       

. In Riley I we found that Riley's
       constitutional right to an impartial jury had not been
       

. The Superior Court, after
       an evidentiary hearing on Riley's motion for
       postconviction relief, held that Riley had not been
       denied equal protection as a result of the State's use
       of peremptory challenges. The court found that the
       State had provided race-neutral explanations for its
       peremptory challenges. We find no err or in Superior
       Court's rejection of Riley's Batson claim. See Holland v.
       Illinois, 

, 

, 807, 

       905, 916 (1990) (the Sixth Amendment fair cr oss-
       section requirement of an impartial jury does not
       deprive a party of the right to exercise per emptory
       challenges on racial or any other grounds fr om a venire
       that otherwise meets Sixth Amendment cross-sectional
       standards of representativeness). Mor eover, we reaffirm
       our earlier decision sustaining the State's per emptory
       challenges on state constitutional grounds. Riley 

.

Riley 

.

Riley interprets this passage as rejecting his claim on the
merits, as Judge Steele had done. By contrast, the District
Court held and the state now maintains, that the state
supreme court reaffirmed its prior decision on direct
appeal. Because one of the two alternative gr ounds for this
former decision was procedural default, the District Court
and the state interpret the state supreme court's later
decision as reaffirming procedural default as a separate
basis for its decision.

We do not interpret the most recent decision of the
Delaware Supreme Court as reaffir ming its prior holding of
procedural default; instead, we interpr et it as rejecting
Riley's claim on the merits. In the passage set out above,
the court refers expressly to its holding on the merits of
Riley's Batson claim and to the Superior Court's rejection of
that claim on the merits. Moreover, in the final sentence of
the passage, the court expressly reaffir ms its holding on
direct appeal that the prosecution's use of peremptory
challenges in this case did not violate the state
constitution. The absence of any express r eference to the
court's prior holding concerning procedural default, much
less a specific reaffirmation of that holding, is suggestive.

The only part of the passage that might be viewed as
reaffirming the prior holding r egarding procedural default is
the first sentence. But this sentence merely describes
Riley's Batson argument as "a r enewed attempt to reopen
previously settled issues." Riley 

. To say
that the Batson issue was "previously settled" is quite
different from saying that each of the two grounds for the
previous decision is reaffirmed. Finally, if the state supreme

                               9
court continued to believe at the time of its most r ecent
decision that Riley's Batson claim was for eclosed for failure
to make a proper objection at the time of trial, it seems
likely that the court would have made that point expressly
and would not have relied on Judge Steele'sfindings. After
all, if the holding on direct appeal remained operative,
Judge Steele erred in refusing to follow that decision, and
holding an evidentiary hearing.

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

(1989). There, a state appellate court noted a rule of
state law under which issues that could have been, but
were not, raised on direct appeal wer e considered waived.
See 

The state court also observed that certain
issues could have been raised on direct appeal, but the
court did not expressly state that it found the issues to
have been waived, and it went on to reject them on the
merits. 

States Supreme Court interpreted
the state court decision as one that appeared to rest
primarily on federal law and thus presumed that there was
no independent and adequate state ground for the decision.

See also 

. We
interpret the most recent decision of the Delaware Supreme
Court in the same way and therefore view it as rejecting
Riley's Batson claim on the merits. W e will therefore
proceed to examine the merits of Riley's Batson argument.

B.

1. In Batson, the Supreme Court held that it is a
violation of the Equal Protection Clause for a prosecutor to
strike a juror because of race. In order to raise a Batson
claim, a defendant must attempt to make out a prima facie

. If the defendant does so, the
prosecutor must offer a race-neutral r eason for the strike,
and the trial judge must make a factual finding on the
question whether the strike was based on race. 

98.

In this case, the Superior Court found that Riley had
made out a prima facie case. See Riley IV at *2, and the
state does not dispute this point. The state of fered race-
neutral justifications for his strikes, and the state courts

                                10
accepted those explanations. 

Riley 

. Riley contends, however, that the state courts erred
in finding that the strikes in question wer e not based on
race.

Under the version of the federal habeas statute that
applies in this case, 28 U.S.C. S 2254(d) (1988 & Supp.
1990) (amended 1996),2 the state courts' findings must be
presumed to be correct unless one of eight exceptions was
shown. Riley relies on two of these exceptions. He
maintains that the presumption of correctness does not
apply because he "did not receive a full, fair, and adequate
hearing in the State court proceeding," and because the
state court's "factual determination is not fairly supported
by the record as a whole." 28 U.S.C.S 2254(d)(6)(8)(1988 &
Supp. 1990).

2. Riley contends that he did not receive"a full, fair, and
adequate hearing in the State Court proceeding" because
the state courts misinterpreted the federal constitutional
standard. He points to Judge Steele's statement in Riley IV
that the state was required to show that its peremptories
were not based "solely on the ground of the jurors' race."
Riley IV at 3. Riley argues that corr ect standard was set out
in Jones v. Ryan, 

(3d Cir. 1993), where we
said that "a violation of the Batson rule occurs when race
is used as a factor in the exercise of a peremptory
challenge." 

(emphasis added).

We reject this argument. When Judge Steele made the
statement that Riley attacks, he was simply pr oviding a
general description of the holding in Batson. He was not
addressing the complicated issue of the pr ecise standard of
causation that applies when a party contends that a
peremptory challenge was based on an imper missible
factor, e.g., whether a constitutional violation demands a
finding that the impermissible factor was a motivating
factor, a determinative factor, or the sole factor in the
_________________________________________________________________

2. Riley's federal habeas petition was filed before the effective date of
the
current version of 28 U.S.C. S 2254, which was enacted as part of the
Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214.
Therefore, the prior version of S 2254 applies. See Lindh v. Murphy, 

(1997).

                               11
decision to exercise the strike. The language to which Riley
objects is virtually identical to language in Batson itself,
where the Supreme Court said that "the Equal Protection
Clause forbids the prosecutor to challenge potential jurors
solely on account of their race." Batson , 476 U.S. at 89
(emphasis added). This language was quoted in Jones, the
decision on which Riley relies. 

.

The statement that the prosecution must pr ove that its
peremptories were not based solely on race is literally
corrected as far as it goes: whether or not the prosecution
must prove more, it most certainly must show that it did
not strike potential jurors solely because of their race.
Neither Judge Steele's statement nor the Supr eme Court's
statement in Batson went on to explain whether the
prosecution must show more than this (e.g., that race was
not a but-for cause of the strikes), and it is a mistake to
interpret them as addressing that question.

In this case, we need not decide what is the corr ect
standard of causation under Batson because, when Judge
Steele's discussion of the Batson question is read in its
entirety, it is apparent that he found that the real reason
for each of the strikes had nothing to do with race. With
respect to Charles McGuire, he accepted the state's
explanation, which he found to be "entirely unrelated to
race." Riley IV at 4-5. With r espect to Ray Nichols and Lois
Beecher, he accepted the state's "race-neutral"
explanations. 

Thus, whatever the proper
standard of causation for a Batson claim,3 we see no basis
_________________________________________________________________

3. The standard of causation for a discrimination claim has been
explored in depth in other contexts. See, e.g., Price Waterhouse v.
Hopkins, 

(1989) (Title VII);Watson v. SEPTA, 

(3d Cir. 2000) (same); Miller v. CIGNA Corp., 

(3d Cir. 1995)
(en banc) (same). When a civil plaintiff seeks to recover for a
constitutional violation, the plaintiff must initially show that an
unconstitutional factor was a "motivating factor" in the decision. Mt.
Healthy City School Dist. Bd. of Educ. v. Doyle, 

, 287 (1977).
The defendant may then avoid liability by pr oving that the same decision
would have been made even if the unconstitutional factor had not been
considered. 

v. Underwood, 

, 227 (1985)
(applying Mt. Healthy to a claim of racial discrimination). In the end,
then, the standard is essentially but-for causation, and we are inclined

                               12
for holding that Riley was denied a full, fair , and adequate
hearing.

3. We turn, therefore, to R iley's argument that the
findings of the state courts should not be pr esumed to be
correct because they are not "fairly supported by the
record." 28 U.S.C. S 2254(d)(8) (1988 & Supp. 1990). Riley
first advances several general reasons for concluding that
the state court's findings are not fairly supported by the
record. He then offers specific ar guments targeted at the
findings regarding each of the potential jurors who was
peremptorily challenged. We will begin by considering
Riley's general arguments.

a. Riley points to the conduct of the prosecu tor before
the 1988 evidentiary hearing as evidence that race played
a part in the peremptory challenges. Riley notes that the
state offered no race neutral justifications for its strikes at
the time of trial or on direct appeal, and he argues that this
conduct is evidence that the strikes were racially motivated.

These arguments have no merit. We see no reasonable
basis for drawing any adverse inferences fr om the
prosecution's failure to provide explanations for its strikes
at the time of trial. At no time during the trial did Riley
argue that the prosecution's peremptory challenges were
racially motivated. Riley moved to have the entir e jury panel
disqualified before any challenges wer e used. Then, after
failing to object while the challenges were being exercised,
Riley's attorney made a motion that he characterized as
"something of a renewal of [his] earlier motion" and again
requested dismissal of the entire panel. Furthermore,
Riley's trial occurred four years befor e Batson was decided
and two years before the Delaware Supr eme Court (in
Riley's own appeal) adopted a similar rule as a matter of
state law. In light of the nature of the motions made by
Riley's trial counsel and the status of the law at the time of
_________________________________________________________________

to think that this is the proper standar d under Batson. This would mean
that a peremptory challenge is unconstitutional if, and only if, the
lawyer
would not have made it but for the potential jur or's race, sex, etc.
Here,
however, because of the reasons explained in text, we do not find it
necessary to resolve this question.

                                13
the trial, no adverse inferences can be drawn from the
prosecution's failure to offer explanations for its strikes.

The same is true with respect to the brief that the state
filed in Riley's direct appeal to the state supreme court.
Riley makes much of the fact that the state, r elying on
Swain v. Alabama, 

(1965), ar gued in its brief
that the use of individual peremptory challenges to strike
potential jurors based on race was not unconstitutional.
Riley states:

       [I]n its first opportunity to defend in writing its
       peremptory strikes of Black jurors, the State did not
       even try to offer any race-neutral basis for its strikes
       (not even the implausible post hoc rationales it
       conjured up many years later in the 1989 state court
       Batson proceedings) -- not even as an alternative
       factual argument. Instead the State ar gued for 13
       pages that there was nothing wrong with using
       peremptory strikes to exclude Black jur ors on the basis
       of race-based "group association" and"predisposition."
       . . . . The implication is clear: In the State's 1984 view,
       "group association" was a perfectly appropriate and
       even desirable basis for peremptory strikes.

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

This argument is not well taken. No adverse inferences
can reasonably be drawn from the state's r eliance on the
rule of constitutional law accepted in Swain, which was
then the governing Supreme Court decision. Nor can any
adverse inferences be reasonably drawn fr om the state's
failure to offer race-neutral explanations in its appellate
brief. The state's brief specifically denied that its
peremptories were based on race. See App. 896.
Furthermore, since there was no evidence in the record
regarding the reasons for the strikes, the state could hardly
have expected the state supreme court to base a decision
on explanations provided without recor d support in a brief.

Riley contends that statistics concerning the use of
peremptory challenges by the Kent County Pr osecutor's
office fatally undermine the state court'sfindings with
respect to the reasons for the strikes at issue in his case.
In his brief, Riley states: "At the state court Batson hearing,

                               14
Mr. Riley introduced summary evidence that in four
Delaware first degree murder trials occurring in Kent
County within one year of Mr. Riley's trial, every prospective
Black and minority juror called was per emptorily struck by
the prosecution." Appellant's Br. at 33. We found this
assertion troubling and requested post-ar gument
submissions related to it. However, after examination, we
do not find the supporting evidence on which Riley relies to
be helpful.

The four first-degree murder trials to which Riley referred
were his own and those of Andre Deputy, an African
American, and two whites, Daniel Pregent, who was
acquitted,4 and Judith McBride, who was convicted. See
Dec. 16, 1999, Letter to Court from Thomas J. Allingham II,
Appendix A (hereinafter "Appendix A"). W ith respect to
these cases, no information has been pr ovided about the
racial makeup of the venire, the identities of the
prosecutors who participated in jury selection, or
peremptories exercised by the defense.

In the trial of Andre Deputy, the state struck four whites,
one African American, and one person listed as "Indian."
Appendix A. Deputy argued that the prosecution's
peremptory challenge of the African American venireperson
violated Batson. See Deputy v. Taylor, 

, 1492
(3d Cir. 1994). Deputy's Batson ar gument was rejected in
the district court decision denying his petition for a writ of
habeas corpus and on appeal. See 

Since it has
been held that no Batson violation was shown in Deputy,
that case hardly supports Riley's argument here.

In Pregent's case, the state struck four whites and one
black. There is nothing before us to indicate that any
Batson objection was made, and it is doubtful that the
pattern of strikes exercised by the pr osecution sufficed to
make out a prima facie case.

The remaining case is the prosecution of Judith McBride
for murdering her husband. See McBride v. State, 

(Del. 1984). The state exercised a total of 10 strikes, of
which three were against potential jur ors identified as black.5
_________________________________________________________________

4. See Van Arsdall v. State, 

, 5 (Del. 1987).
5. According to Riley's statistics, five of those struck by the state were
white, and the race of two is not provided. Appendix A.

                               15
Appendix A. There is nothing to indicate that any Batson
objection was made. Without in effect holding a Batson
hearing, there is no way of determining whether any
prosecution peremptories were based on race.

We have given careful consideration to the statistics that
Riley has presented, but we believe that it would be
analytically unsound to give those statistics any weight.
The dissent, however, makes much of this data. Indeed, the
dissent goes so far as to assert that "the most plausible . . .
inference to be drawn from the data is that the Kent
County Prosecutor followed a pattern of using peremptory
challenges in a racially discriminatory manner ." Dissent at
63. This conclusion is completely unwarranted.

According to the data supplied to us, the pr osecutors in
these cases exercised peremptory challenges against 25
potential jurors identified as white and eight identified as
black. Thus, 24% of these peremptories wer e exercised
against African Americans. Because we do not know the
racial composition of the venires, we cannot even be sure
that the number of African Americans peremptorily
challenged by the prosecutors was dispr oportionally high.

We note that, according to the most r ecent census at the
time of Riley's trial, the population of Kent County was
18 % black. BUREAU OF THE CENSUS, COUNTY AND CITY
DATA BOOK -- 1983 at 74. If the potential jurors
peremptorily challenged by the prosecutors had been
proportional to the racial makeup of the county, the
prosecutors would have stricken six African Americans,
rather than eight. Even if it is assumed that the Kent
County prosecutors followed the same jury selection
strategy in all four cases,6 the introduction of a single
additional variable -- or pure chance -- could easily explain
the data. We need not consider what weight should be given
to a professional multiple-regression analysis of peremptory
challenge statistics in determining whether a Batson
violation occurred in a particular case. Cf. McClesky v.
_________________________________________________________________

6. There is no evidence that this was done. First, there is no evidence
that the same prosecutors appeared in all four cases, and particularly in
view of the differences in the four cases, there is no reason to suppose
that the same strategies were used.

                               16
Kemp, 

(1987)(multiple-regr ession analysis of
state's death penalty statistics insufficient to show that
particular petitioner suffered discrimination). We are not
presented here with anything that even r emotely
approaches expert statistical evidence.

Characterizing Riley's data as merely "imper fect," the
dissent argues that an adverse inference should be drawn
against the state for failing to come forwar d with additional
information. We see no basis for this approach. First, as we
have explained, Riley's data did not raise an infer ence of
discrimination, and thus additional data wer e not needed to
refute Riley's statistical showing. See 

("[A]bsent far stronger pr oof, it is not necessary to
seek a rebuttal."). Second, the state was never given notice
that it had any obligation to provide additional data. As we
read the record, the state mer ely asked for the opportunity
to provide additional information and then elected not to do
so. There are obviously many reasons why the state might
have made that choice, and we see no basis for speculating
that it did so because any additional information would
have been unfavorable to its position. Third and most
important, the information that is most critically lacking --
the prosecutors' reasons for striking thefive African
American venire members in the Deputy, McBride, and
Pregent cases -- probably could not be obtained without in
effect conducting retrospective Batson hearings in those
cases. We know of no precedent for such a practice --
holding a Batson hearing regarding peremptory challenges
exercised by prosecutors in other cases in which no claim
of discrimination may have been made. For all these
reasons, we do not find the statistics r egarding peremptory
challenges exercised by prosecutors in Kent Count in other
cases to be probative.

b. We come, now, to Riley's argument that the evidence
in the record concerning the thr ee contested peremptories
does not fairly support the state court's findings that these
strikes were not based on race.

Ray Nichols Ray Nichols was the first black juror
challenged by the prosecution. The prosecutor testified that
he struck Nichols because he was uncertain that Nichols
would be able to vote for a death sentence. See App. 797-

                               17
99. According to the prosecutor's testimony, "there was a
pause and a significant pause in him answering Judge
Bush's inquiry and that to me was enough to suggest that
he might not be able to return a death penalty and I didn't
want anyone that wasn't going to give me a death penalty."

the prosecutor's testimony, Judge Steele
concluded: "I find the State provided a cr edible, race-
neutral reason for exercising its per emptory challenge after
appraising the demeanor and credibility of the juror. The
State's exercise of its peremptory challenge was non-
discriminatory. I am satisfied that the per emptory challenge
was not made on the ground of the juror's race." 

Riley suggests that it is not believable that the pr osecutor
was able to remember at the time of the evidentiary hearing
in 1988 that Nichols had paused while answering a
question during voir dire six years earlier . In addition, the
dissent contrasts the prosecutor's ability to r emember this
pause with his inability to remember another potentially
significant aspect of the jury selection pr ocess,7 and the
dissent notes that the prosecutor was a friend and neighbor
of the victim. Dissent at 59. These facts wer e highlighted
during the cross-examination of the prosecutor at the
Batson hearing, see App. at 820-29, and they wer e
important factors to be considered in assessing the
prosecutor's credibility. Judge Steele was aware of these
facts and had the opportunity to observe the pr osecutor
testify on the witness stand. Judge Steele found that the
prosecutor's testimony was credible.

Our standard of review of Judge Steele'sfinding is
narrow. Under 28 U.S.C. S2254(d)(8)(1988 & Supp. 1990),
we must accept any state court factual finding that is "fairly
supported by the record," and in this instance, because
Judge Steele's finding was based squarely on an
assessment of the credibility of a witness who appeared and
testified before him, we must exercise special caution.8
_________________________________________________________________

7. See Dissent at 66-67 (discussing jur or Reed). We discuss this matter
infra at 23-25.

8. See Hernandez v. New York, 

, 353 (1991); 

n.21. In discussing a federal appellate court's standard of
review in a direct federal appeal, the Supreme Court observed: "When

                               18
Under the very limited scope of review af forded by 28
U.S.C. S2254(d)(8)(1988 & Supp. 1990), we cannot overturn
Judge Steele's credibility determination. 9

Lois Beecher During voir dire, Lois Beecher initially gave
an answer that seemed to indicate a willingness to impose
the death penalty in an appropriate case.10 When
(Text continued on page 21)
_________________________________________________________________

findings are based on determinations r egarding the credibility of
witnesses," an appellate court must give "even greater deference to the
trial court's findings; for only the trial judge can be aware of the
variations in demeanor and tone of voice that bear so heavily on the
listener's . . . belief in what is said." Anderson v. Bessemer City, 

, 575 (1985). Indeed, the Court added, that "when a trial judge's
finding is based on his decision to credit the testimony of [a] witness[ ]
[who] has told a coherent and facially plausible story that is not
contradicted by extrinsic evidence, that finding, if not internally
inconsistent, can virtually never be clear error." 

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

, 1038 (1984).
9. Our dissenting colleague, by contrast, wouldfind on the cold record
before us that the prosecutor was untruthful when he testified before
Judge Steele. In fact, a centerpiece of the dissent is an attack upon the
credibility of prosecutor James Liguori. W e reject the dissent's analysis
of this issue and note that some of the facts on which the dissent relies
are either insignificant or irrelevant. For example, the dissent
repeatedly
implies that Liguori's testimony is suspect because he testified at the
Batson hearing that his objective at Riley's trial was to obtain a capital
sentence. See Dissent at 60-61, 64. But is not this the objective of every
prosecutor in a case in which the death penalty is sought? Are all such
prosecutors presumptively unworthy of belief? The dissent also implies
that Liguori discriminated in the use of per emptory challenges because
an appellate brief on which his name does not even appear (see App. at
894) relied in part on Swain, which was then still good law. See Dissent
at 59-60. The dissent points out that the recor d does not reflect any
"uncertainty on Nichols's part" as to whether he could return a death
sentence. Dissent at 64. But what the prosecutor claimed to have
observed -- "a significant pause" -- is not something that a transcript is
likely to capture. Likewise, the fact that the prosecutor did not have
"contemporaneous notes" (see Dissent at 58) r egarding the pause reveals
little, because, particularly in the pre-Batson era, a prosecutor had no
strong reason for making or keeping such notes. The dissent's
arguments do not persuade us to overtur n Judge Steele's credibility
finding.
10. The entire relevant colloquy was as follows:

Q. Let me ask you several questions dealing with capital punishment,
19
your attitude towards capital punishment. Do you have any
conscientious scruples against finding a ver dict of guilty where the
punishment might be death or against imposing the death penalty if the
evidence should so warrant?

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

Q. Yes, you may.

A. If a person did something that was wrong and that was his
punishment, then I would agree, you know. T o me it is okay if you done
something wrong without, you know -- if you didn't have --

Q. If the evidence justified it, you couldfind a person guilty even
though the punishment may be death?

A. Yes, I could.

Q. Or the penalty may be imposing the death penalty. Regardless of
any personal beliefs or feelings you may have, if the evidence justified
it,
would you be able to find a person guilty of mur der in the first degree
and would you be able to impose the death penalty? I will repeat the
question.

Regardless of any personal feelings or beliefs you may have, if the
evidence in the case justified it, would you be able to find a person
guilty
of murder in the first degree and would you be able to impose the death
penalty?

A. I've got to say this. I may, could say that I agree, but I don't know
whether I could say, you know -- I don't know whether I could draw the
conclusion.

Q. If the evidence justified it, do you feel your personal feelings
against the death penalty may be such that you may not find this person
guilty of murder in the first degree?

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

Q. Pardon?

A. I couldn't put my personal --

Q. You would not?

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

Q. What would prevent you from finding this person guilty of murder
in the first degree and imposing the death penalty then? Do you have
some conscientious scruples against finding a person guilty?
20
questioned further, however, she said that the questioning
was "making [her] think about it," and she ultimately said
that she did not believe that she could impose the death
penalty. App. 290-92. The state then peremptorily
challenged her. See 

The prosecutor later testified
that he struck Beecher because of her unwillingness to
impose the death penalty and because she seemed
confused during the voir dire. See 

Judge
Steele accepted this explanation and found that the strike
was not based on race. Riley IV at 5.

Riley argues that the state court finding is not fairly
supported by the record because Beecher's initial responses
in the colloquy indicated a willingness to impose the death
penalty if the evidence warranted. The fact r emains,
however, that Beecher ultimately said that she could not
vote for a death sentence. In light of that admission, the
prosecutor could have reasonably viewed her attitude as
troubling. We hold that the state courtfinding is fairly
supported by the record.

Charles McGuire Riley's strongest Batson claim concerns
the prosecution's strike of Charles McGuir e. At trial, the
prosecutor first used a peremptory challenge against
McGuire and then immediately made the following
application to the trial judge:

        [THE PROSECUTOR]: Your Honor , may I ask the
       Court to reconsider charging the State for that strike.
       This Mr. McGuire came to chambers yester day and
       expressed his belief that he didn't know if he could last
       the two weeks [the estimated length of the trial], there
       was some problem with work. He was an inspector or
       something for the Department of Labor. I know he
       came in yesterday.

        THE COURT: I will not strike him for cause for that
       reason. He asked to be excused yesterday and I
       decided not to excuse him.
_________________________________________________________________

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

App. 290-92 (emphasis added).

                                

.

At the evidentiary hearing held before Judge Steele as
part of the post-conviction relief proceeding, the prosecutor
testified that he struck McGuire because McGuire "had
previously requested to be excused fr om jury service" and
because the prosecutor "wanted attentive jur ors" who were
not worried about missing other obligations or activities
while the trial took place. App. 801.

The defense called McGuire as a witness at the
evidentiary hearing. McGuire testified that he was employed
by the State of Delaware as a Social Security"disability
adjudicator," App. 846-47; that he had been reporting for
jury duty in the courthouse in Dover for two to thr ee weeks
before he was questioned in connection with the Riley case
but had not been seated on a jury, 

that while
he was away from work, the disability claims assigned to
him would "just sit[ ]," 

that the director of his
office had told him that he was going to make a"formal
request" that McGuire be excused, 

that such a
request was sent, 

856; and that the request had
been discussed in chambers with the judge. Id . at 849-50,
856. McGuire said, however, that he himself had never
expressed an unwillingness to serve on the jury and had
been willing to do so. See 

Judge Steele accepted the prosecutor's explanation of the
reason for striking McGuire. Judge Steele wrote:

       McGuire's employer sent a letter requesting he be
       released from jury duty because he could not be
       replaced at his job if he was chosen for jury duty. The
       letter by McGuire's employer clearly gave the State
       reason to question whether McGuire would give his full
       time and attention to the trial and whether he would
       be able to serve for the entirety of the time projected
       for the trial. Whether McGuire, in fact, did not request
       relief from jury duty and did wish to serve is of no
       consequence.

Riley IV at 4-5. Judge Steele then cr edited the state's
explanation of the reason for striking McGuir e, terming it
"clear, reasonably specific and entirely unrelated to the
juror's race." 

                               22
Several factors provide substantial support for this
finding. It is apparent that McGuire's work situation was on
the prosecutor's minds when McGuire was peremptorily
challenged because, as noted, immediately after striking
McGuire, the prosecutor asked that McGuir e's dismissal be
deemed for cause since he had "expressed his belief that he
didn't know if he could last the two weeks." App. 250. In
addition, a reasonable prosecutor might well have wondered
whether McGuire's work situation would adversely affect
his attentiveness at trial. As noted, McGuir e's supervisor
had made a "formal request" that he be excused "because
he could not be replaced at his job if he was chosen for jury
duty."11 Whether or not McGuire himself in fact wished to
serve on the jury, the impression appar ently was conveyed
that McGuire wanted to be excused and to r eturn to work,
since the trial judge commented: "He asked to be excused
yesterday and I decided not to excuse him." See App. 250.
Under these circumstances, a reasonable pr osecutor could
have been concerned that McGuire might have been
inattentive at trial due to worry about missing work, leaving
his duties unattended, and perhaps incurring his
supervisor's displeasure.

Riley attacks Judge Steele's finding on two gr ounds.
First, he points out that, according to McGuir e's testimony
at the post-conviction relief evidentiary hearing, McGuire
himself did not ask to be excused. This argument is
unpersuasive. Although McGuire testified that he did not
ask to be excused, the trial judge, as noted, stated at the
time of McGuire's dismissal: "He asked to be excused
yesterday and I decided not to excuse him." App. 250
(emphasis added). Thus, McGuire, who was unable to
remember many details at the time of the post-conviction
relief evidentiary hearing, see App. 853, 857-62, may have
been mistaken, or he may have conveyed the impr ession at
the time of trial that he personally wanted to be excused.

Second, Riley points out that a handwritten sheet
prepared by the prosecutors during voir dire contains the
following notation next to the name of a white jur or,
_________________________________________________________________

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

                               23
Charles Reed, whom the prosecution did not per emptorily
strike: "works Lowe's, wants off." App. 823. One of the
prosecutors was questioned about this notation by Riley's
attorney at the post-conviction relief evidentiary hearing,
but the prosecutor testified that he had no r ecollection of
Reed. See 

The notation by Reed's name and the prosecutor's
testimony at the evidentiary hearing are certainly factors
that Judge Steele could have viewed as tending to
undermine the credibility of the pr osecutor's explanation
for striking McGuire, but the notation and the prosecutor's
testimony are insufficient to show that Judge Steele's
finding is not "fairly supported by the r ecord." 28 U.S.C.
S 2254(d). It is reasonable to infer fr om the notation "wants
off " that, at some point in the jury selection process, Reed
expressed a desire to be excused for some reason. As far as
we are aware, however, the record does not reveal why12 or
how strongly Reed wanted to be excused. The transcript of
the voir dire on December 6 and 7, 1982, shows that, at the
final stage of the jury selection process, the members of the
venire were asked whether there was"any reason why
[they] absolutely [could not] serve," App. 223, that members
of the venire then successfully asked to be r eleased for
reasons such as a previously planned vacation, 

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

Thus, as far as the r ecord appears to
reveal, Reed may have had a relatively weak desire and
reason to be excused, and his situation may not have been
at all comparable in this respect to McGuir e's.13
_________________________________________________________________

12. Just because the notation "wants of f " appear after the words "works
at Lowe's," it cannot be assumed that Reed's desire to be excused was
related to his employment.

13. Many decisions have held that Batson is not contravened simply
because two jurors exhibit similar characteristics and one is excluded
while the other is retained. See, e.g., Matthews v. Evatt, 

,
918 (4th Cir. 1997); United States v. Spriggs, 

, 1255 (D.C.
Cir. 1997); United States v. Stewart, 

, 926 (11th Cir. 1995);
United States v. Alvarado, 

, 25 (2d Cir. 1991); United States
v. Lance, 

, 1181 (5th Cir . 1988); United States v. McCoy,

, 745 (6th Cir. 1988); United States v. Lewis, 

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

                               24
Our scope of review of Judge Steele's finding is narrow.
Judge's Steele's finding "on the ultimate question of
discriminatory intent" is entitled to "gr eat deference,"
particularly because such findings "lar gely turn on an
evaluation of credibility." Hernandez v. New York, 

, 353 (1991). See also 

n.21
("Since the trial judge's findings in [this] context . . . largely
will turn on evaluation of credibility, a reviewing court
ordinarily should give those findings gr eat deference.").
Here, although it would be satisfying to know why Reed
was not stricken, that unanswered question is not enough,
in view of the "great deference" owed Judge Steele's
credibility determination, to demonstrate that Judge's
Steele's finding is not "fairly supported by the record."14

III.

Riley next argues that adverse publicity pr evented him
from obtaining a trial by an impartial jury. He contends,
first, that it should be presumed that he was prejudiced by
pretrial publicity because the recor d establishes the
existence of a "hostile trial atmosphere" and, second, that
the record shows that several jurors were unable to be
impartial due to exposure to unfavorable pr etrial publicity.

A.

"Where media or other community reaction to a crime or
a defendant engenders an atmosphere so hostile and
pervasive as to preclude a rational trial pr ocess, a court
reviewing for constitutional error will pr esume prejudice to
the defendant without reference to an examination of the
attitudes of those who served as the defendant's jur ors."
Rock v. Zimmerman, 

, 1252 (3d Cir. 1992).
_________________________________________________________________

14. This case is very different from Jones v. 

, on which Riley
relies. There, exercising plenary r eview in the absence of any findings
of
fact by a state court, we held that Batson was violated where the
prosecutor excluded a black juror who had a child approximately the
same age as the defendant, while retaining a white juror who was
similarly situated. 

. In the present case, we are
limited to deciding whether the state court finding is fairly supported by
the evidence.

                               25
See also Sheppard v. Maxwell, 

(1966); Estes
v. Texas, 

(1965); Rideau v. Louisiana, 

(1963); Flamer v. Delaware, 

, 755 (3d
Cir. 1995) (en banc). "The community and media reaction,
however, must have been so hostile and so pervasive as to
make it apparent that even the most car eful voir dire
process would be unable to assure an impartial jury. . . .
Such cases are exceedingly rare." 

-
53.

In this case, the state courts made a finding of
impartiality. Such a finding is entitled to defer ence, see
Patton v. Yount, 

, 1031 & n. 7 (1984), and we
find no basis for overturning that finding.

Riley relies on a relatively small number of newspaper
articles, almost half of which appeared six months or more
before the trial. Although two of the articles named Riley as
a suspect in Feeley's murder, and although a few of the
articles discussed the plight of the Feeley childr en, who
were orphaned by the murder, the articles were not
inflammatory. In short, the media coverage was not"so
hostile and pervasive as to preclude a rational trial
process." 

.

B.

Because Riley has not shown the presence of
circumstances justifying a presumption of prejudice, he
"must establish that those who actually served on his jury
lacked a capacity to reach a fair and impartial verdict based
solely on the evidence they heard in the courtr oom." 

. See also 

; Irvin
v. Dowd, 

, 723 (1961). "The fact that jury
members may have been exposed to press r eports or other
community reaction concerning the case and even the fact
that they may have formed a tentative opinion based on
that exposure will not establish a constitutional violation if
the trial court has found, with record support, that each of
the jurors was able to put aside extrinsic influences." 

.

Riley contends that two jurors, Leon Morris and Carl
Patterson, were unable to be impartial due to exposure to
pretrial publicity. We do not agr ee.

                                26
Morris testified during voir dire that he"had read
something about" the case in the newspaper at the time of
the murder and that he had heard on the radio that the
case was "coming to trial." App. 277. The following
exchange then occurred:

        Q. . . . Because of what you read in the newspaper,
       do you feel that you could sit here as an impartial
       jury?

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

App. 278.

Carl Patterson during voir dire was asked whether
anything he had read in the newspaper had cr eated bias or
prejudice against the defendant. See App. 294 He
responded that he could not remember a lot of what he
read in the newspaper. See 

colloquy then
occurred:

        Q. Then do you know of any reason why you can't
       render an impartial verdict based solely upon the law
       and the evidence?

        A. No, Your Honor.

judge implicitly found that these jur ors were
impartial, and the Delaware Supreme Court agreed on
direct appeal. Such implicit findings ar e entitled to a
presumption of correctness. Parke v. Raley, 

, 35
(1992); Weeks v. Snyder, 

(3d Cir. July 17,
2000); Campbell v. Vaughn, 209 F .3d 280, 290 (3d Cir.
2000), and we see no ground for holding that that
presumption has been overcome.

IV.

Riley argues that the prosecution violated his right to due
process by failing to disclose exculpatory evidence in its
possession as required by Brady v. Maryland, 

(1963). In Brady, the Supreme Court held that "the
suppression by the prosecution of evidence favorable to an

                                27
accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution." 

To state a valid Brady claim, a
plaintiff must show that the evidence was (1) suppressed,
(2) favorable, and (3) material to the defense. See United
States v. Perdomo, 

, 970 (3d Cir. 1991).
Evidence is material if there is a reasonable probability that
the outcome would have been different had the evidence
been disclosed to the defense. See United States v. Bagley,

, 678 (1985). Evidence that may be used to
impeach may qualify as Brady material. See Kyles v.
Whitley, 

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

Riley's Brady argument concerns a wiretap on the
telephone of the mother of Tyrone Baxter . Before trial,
Riley's lawyer asked the state to produce r ecordings or
transcripts of the intercepted calls, but the state refused,
arguing that the tapes contained no exculpatory material.
Without listening to the tape himself, the trial judge
accepted the prosecutor's representation and denied Riley's
motion for production. Throughout the subsequent
proceedings in state and federal court, no judge listened to
the tapes.

In his briefs in this appeal, Riley made a str ong Brady
argument. He asserted that between the time of the Feeley
murder and Baxter's arrest, "Baxter spoke to his mother on
the telephone on several occasions"; that "Baxter's
testimony was the State's strongest evidence against" him;
and that statements made by Baxter to his mother might
have provided valuable impeachment evidence. Appellant's
Br. at 5. At a minimum, he contended, the state courts or
the District Court should have listened to the tapes in
camera to determine whether they contained Brady
material.

At oral argument, however, counsel for the appellees
represented that an examination of the logs of the wiretap
on Mrs. Baxter's telephone did not reveal any intercepted
conversations in which Baxter participated. Copies of the
logs were provided to Riley's attor neys and to the court,
and Riley's attorneys submitted a letter -brief commenting
on the contents of the logs. We have examined the logs, and

                                28
it appears that the state's representation is correct: we see
no record of any conversations in which Baxter
participated. The revelation that the logs do not mention
any such conversations fatally undermines the Brady
argument made in Riley's briefs.

In their post-argument letter-brief commenting on the
logs, Riley's attorneys advance differ ent arguments to show
that an in camera inspection of the wiretap r ecordings is
required. A defendant seeking an in camera inspection to
determine whether files contain Brady material must at
least make a "plausible showing" that the inspection will
reveal material evidence. Pennsylvania v. Ritchie, 

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

, 867 (1982)). Mer e speculation is not
enough. United States v. Navarro, 

, 631 (7th
Cir. 1984). The arguments made by Riley's attorneys in
their post-argument submission do not satisfy this
standard.

Riley's attorneys first note that several log entries
"expressly refer to conversations about Tyrone Baxter."
12/16/99 Letter-brief at 3 (emphasis added). But it is
unlikely that statements "about" Baxter by third persons --
unlike statements made by Baxter himself -- could have
been used to impeach Baxter's testimony or could have
been admitted at trial on some other ground. For that
reason alone, it is unlikely that these statements are
material. See Wood v. Bartholomew, 

, 5-6 (1995).
Moreover, even if the problem of admissibility is put aside,
it is pure speculation to suppose that the contents of the
statements are in any way exculpatory.

Riley's attorneys also suggest that conversations between
Baxter and his mother may have been intercepted and
recorded but that the person or persons who compiled the
logs may not have recognized Baxter's voice. This, however,
is nothing but the purest speculation. W e note that the
wiretap occurred while the police wer e seeking to arrest
Baxter; they therefore had a strong incentive to identify him
if he participated in any of the intercepted conversations.
We have considered all of Riley's Brady arguments and find
them to be without merit.

                               29
V.

Riley argues that he was denied the ef fective assistance
of counsel at the penalty phase of his trial.15 The District
Court held that many of Riley's arguments concerning the
alleged deficiencies of his attorney's per formance were
never presented to the Delaware Supr eme Court and were
thus procedurally barred, and the District Court rejected
Riley's remaining arguments regar ding this matter on the
merits. On appeal, Riley attacks both parts of the District
Court's holding.

A.

Riley contends that the District Court was r equired to
hold an evidentiary hearing on the question of pr ocedural
default for two reasons. First, he maintains that at least
some of the arguments that the District Court held were
procedurally barred might have been pr esented to the
Delaware Supreme Court during the oral ar gument of his
direct appeal even though those arguments were not
contained in his brief. Because the recor d does not include
a transcript of the oral argument, Riley maintains that the
District Court should have held an evidentiary hearing for
the purpose of reconstructing the recor d. See Appellant's
Br. at 38-39. We disagree.

On direct appeal, Riley was represented by the same
attorney who had represented him at trial. In his amended
habeas petition, Riley acknowledges that no inef fective
assistance argument was made in the dir ect appeal brief
that was ultimately submitted on his behalf and accepted
for filing by the Delaware Supreme Court.16 See App. 1198.
_________________________________________________________________

15. Riley's amended federal habeas petition raised claims regarding the
alleged ineffectiveness of trial counsel at the guilty phase, but the
District Court held that these claims were pr ocedurally barred. See Riley
VI, 

, at **18-20. On appeal, Riley refers to these claims
in a footnote. See Appellant's Br. at 38 n.16. This footnote is inadequate
to raise the issue on appeal.
16. The first brief submitted by Riley's attor ney on direct appeal
contained a conclusory passage that purported to raise the issue of
ineffective assistance (without any factual elaboration) for the purpose
of
preserving the issue. See App. 1198. However, this brief was rejected by
the Delaware Supreme Court, and the brief that was ultimately
submitted and accepted contained no such passage. See App. 1198-99.

                               30
In addition, the opinion issued by the Delawar e Supreme
Court in the direct appeal makes no mention of ineffective
assistance of counsel. See Riley I. Under these
circumstances, the District Court was certainly not
required to conduct an evidentiary hearing to determine
whether the attorney who represented Riley at trial chose at
oral argument before the state supr eme court to make
arguments not mentioned in his brief and to condemn his
own performance in the trial court.

With little elaboration, Riley also contends that the
District Court should have held an evidentiary hearing so
that Riley could show that he had "cause" for not raising
the arguments in question in state court. See Appellant's
Br. at 39. However, Riley has not even identified any
"cause" that he would have attempted to show. We will not
reverse the decision of the District Court and order that
Court to conduct an evidentiary hearing so that Riley can
develop the factual predicate for a "cause" that Riley has
not even disclosed.

Perhaps the most frequently asserted"cause" for
procedural default is ineffective assistance of counsel, and
we will therefore comment briefly on the steps that Riley
should have taken if he wished to rely on this"cause." As
the District Court pointed out, in order for Riley to show
that ineffective assistance provided"cause" for failing to
raise the arguments in question in the state court
proceedings, Riley would have to show that the new
attorney who represented him in the state post-conviction
relief proceedings was ineffective. See Dist. Ct. Op. at 50 &
n.16, 56-57. This is so because Delaware per mits a claim
of ineffective assistance to be raised in a post-conviction
relief proceeding even if it was not raised on direct appeal.
See Riley VI, 

, at **17-18 & n.16. 17

Riley has not argued, however, that the attorney who
represented him in the state post-conviction relief
proceedings provided ineffective assistance by failing to
_________________________________________________________________

17. Indeed, in Riley's case, ineffective assistance was vigorously argued
in the post-conviction relief proceedings, and the Delaware Supreme
Court addressed these arguments on the merits. See Riley 

.

                                31
make the specific arguments that the District Court held
were procedurally barred.18 Moreover, because Riley never
raised a claim in state court that his post-conviction relief
attorney was ineffective, he runs afoul of the rule that "a
petitioner must demonstrate independent cause and
prejudice excusing the default of the inef fectiveness claim
before that claim can be assessed as cause in r elation to a
second, substantive claim." Hill v. Jones, 

,
1030 (11th Cir. 1996). See also Justus v. Murray, 

, 713 (4th Cir. 1990).

B.

We will now discuss the ineffective assistance arguments
that were not procedurally defaulted. In order to show that
his constitutional right to the assistance of counsel was
violated at the penalty phase, Riley must satisfy the two-
pronged test of Strickland v. Washington, 

, 687
(1984). First, he must demonstrate that his attor ney "made
errors so serious that counsel was not functioning as the
`counsel' guaranteed the defendant by the Sixth
Amendment." 

"Judicial scrutiny of counsel's
performance must be highly defer ential. It is all too
tempting for a defendant to second-guess counsel's
assistance after . . . [an] adverse sentence, and it is all too
easy for a court, examining counsel's defense after it has
proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable." 

Second,
if counsel's representation is shown to fall outside "the wide
range of reasonable professional assistance," 

be
shown that "the deficient performance prejudiced the
defense," that is, that "there is a r easonable probability
that, but for counsel's unprofessional err ors, the result of
the proceeding would have been differ ent." 

_________________________________________________________________

18. Even if Riley had asserted a "cause" for the procedural default, he
would have to confront the rule that a habeas petitioner is not entitled
to an evidentiary hearing in federal court to establish a factual record
unless the petitioner can show "cause" for not making the necessary
factual record in the state proceedings. See Keeney v. Tamayo-Reyes,

, 11-12 (1992).

                               32
1. In his brief in our court, Riley presented a greatly
truncated version of arguments previously advanced
regarding trial counsel's failure to call certain family
members to testify at the penalty phase of the trial and trial
counsel's failure to locate or contact other family members
who might have testified. All of these family members, Riley
argues, could have provided evidence about his traumatic
experiences as a child and his "severely dysfunctional
family." Appellant's Br. at 41.

The Superior Court, the Delaware Supreme Court, and
the District Court all addressed these ar guments in some
detail and rejected them. They concluded that Riley's trial
attorney made reasonable efforts tofind certain family
members who could not be located, that he did not act
unreasonably in failing to call others as witnesses, and that
his failure to rely on what was ter med Riley's "social
history" represented a reasonable strategy. See Riley II,

at *3-4, *7-9; Riley 

;
Riley VI, 

, at **20-23.

In his brief in our court, Riley merely states without
elaboration that "trial counsel failed to call as witnesses
members of Mr. Riley's immediate family, several of whom
lived with a few hours of Dover, Delawar e" and that these
witnesses could have testified about his childhood and
family. Appellant's Br. at 41. He provides no response to
the detailed reasons given by the state courts and the
District Court for holding that trial counsel was not
ineffective in failing to call or locate family members for the
purpose of eliciting testimony about Riley's childhood and
family.

Nothing has been presented that convinces us that the
state courts and the District Court erred. W e agree with the
state courts and the District Court that Riley has not
shown that trial counsel was ineffective in failing to call
those family members who could be located, such as Riley's
mother. The District Court analyzed trial counsel's decision
not to put Riley's mother on the stand as follows:

        The record is replete with cir cumstances that
       support trial counsel's decision not to call Petitioner's
       mother. First, Petitioner informed trial counsel that he

                               33
       did not wish to expose his mother's problems at trial.
       . . . Second, trial counsel testified that Petitioner's
       mother refused to support Petitioner's alibi, and as a
       result, he was concerned about the pr osecutor's cross-
       examination of her during the penalty phase. . . .
       Third, the record indicates that Petitioner's mother had
       a severe drinking problem and was drinking heavily at
       the time of the trial. . . . As a result, trial counsel
       believed that the witnesses that he chose to call in
       mitigation, instead, would make a better impr ession on
       the jury. . . . Under these circumstances, the Court
       finds trial counsel's decision not to call Petitioner's
       mother to be reasonable and within the bounds of his
       strategic discretion.

Riley VI, 

, at *2. We agree.

We also agree that Riley has not demonstrated that his
trial attorney was ineffective in failing to locate certain
other family members. See Riley II, **3-5; Riley 

; Riley VI, 

, at *21. Finally, we
agree that a strategy of not introducing evidence regarding
Riley's background and family fell within "the wide range of
reasonable professional assistance." 

. The Superior Court wrote as follows:

       The adverse inferences to be drawn from the fact that
       defendant's parents were both alcoholics, his sister an
       unwed mother of three, his brother an incarcerated
       criminal and his home life a series of jails and
       temporary living quarters would no doubt have been
       magnified in the semi-rural county where this case was
       tried . . . . Likewise, it is certainly within the range of
       strategic choices to forego mitigating evidence, which
       may be seen as "excuse making" and rely upon a plea
       for mercy . . . . In Riley's case, evidence of fered as to
       mitigating circumstances included: that the actual
       killer was Tyrone Baxter, the co-defendant; that Baxter
       received a less severe penalty; and that Riley's
       background indicated that he was a diligent worker,
       possessing a non-violent and good character.

       In this case, trial counsel gave a strong ar gument that
       Riley's life should be spared in light of the fact that

                               34
       Tyrone Baxter, defendant's accomplice and principal
       accuser, would be spared the death penalty as the
       result of a plea bargain. Moreover , Walter Ross testified
       without contradiction at the [post-conviction r elief]
       hearing that the defendant did not want his family
       background discussed at the penalty phase. Given
       defendant's wishes, the lack of positive evidence in
       mitigation, counsel's focused argument for leniency in
       light of Baxter's plea bargain, and the potentially
       negative impact the purportedly positive evidence
       would have wrought before the jury, defendant has
       failed to show that counsel's decision to limit the
       testimony at the penalty phase was constitutionally
       deficient.

Riley II, 

, at *11-12. This analysis was
accepted by the Delaware Supreme Court and the District
Court. We cannot disagree.

2. Riley contends that his trial attorney wa s ineffective
because he did not present testimony by a mental health
expert. Riley relies on the affidavits of two experts, who
examined him in connection with the post-conviction relief
proceeding. One of the experts characterized Riley as a
person with "borderline defective" intelligence whose
capacity "for objectively analyzing events, cir cumstances
and relationships [is] narrowed by stress and complexity."
Appellant's Br. at 42. We agree with Riley that this
explanation might have been helpful at the penalty phase.
The question remains, however, whether trial counsel was
ineffective in failing to obtain such evidence at the time.

In the post-conviction relief proceeding in Superior Court,
trial counsel testified that he did not seek to have Riley
examined by a mental health expert because he had no
reason to think, in light of his conversations with Riley,
that such an examination would have revealed anything
useful. See App. 592-96. He testified that Riley appeared to
understand what they discussed and that Riley pr epared
and filed some motions on his own behalf. See App. 592-
93. Trial counsel stated that Riley never mentioned any
head injury or any psychological problems. See App. 590.
Relying on this testimony, the Superior Court found that
trial counsel "had no inkling that evaluation of Mr. Riley's

                               35
mental or emotional state might be helpful in mitigation."
Riley II, 

, at *7.

Before us, Riley has not argued that counsel in a capital
case must always seek a mental examination of the
defendant, and cases from other circuits r eject that
proposition. Instead, they hold that a case-by-case
determination must be made and that counsel is not
ineffective if he or she has no reason to think that a mental
examination would be useful. See Thomas v. Gilmore, 

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

, 998-99 (10th Cir. 1990); United States ex rel.
Rivera v. Franzen, 

, 317 (7th Cir. 1986).

Under this standard, we see no ground for reversing the
decision of the District Court here. Riley has simply not
identified any fact that should have alerted his trial
attorney that he had mental problems that might have
provided the basis for mitigation. The only fact even
mentioned in Riley's briefs is the "implausible" nature of
Riley's alibi, see Reply Br. at 21, but this is insufficient to
alert counsel to the possibility of mental pr oblems that
might be relevant to mitigation. For the most part, Riley
merely notes what the subsequent examinations by mental
health experts revealed. However, "[a] fair assessment of
attorney performance requir es that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time." 

.

3. Finally, Riley cites trial counsel's inexperien ce and the
fact that he spent only 14 hours preparing for the penalty
phase of the trial. These facts are not comforting, but they
do not in themselves establish that counsel was inef fective.
We have taken them into account in evaluating the other
deficiencies properly asserted in this appeal. We cannot
say, however, that Riley's constitutional right to the
effective assistance of counsel was denied.

VI.

Relying on Ake v. Oklahoma, 

, 76-77 (1985),
Riley argues that his right to due process was violated

                                36
because the trial judge refused to appoint co-counsel or an
investigator to assist his attorney. Riley again notes the
inexperience of his attorney, and he asserts that co-counsel
had been appointed in Kent County in prior capital cases.
Although Riley claims that the lack of co-counsel and an
investigator caused him "extreme prejudice," his brief
provides no details.

A. We turn first to Riley's ar gument that he was
constitutionally entitled to the appointment of co-counsel.
In some jurisdictions, there is a statutory right to the
appointment of two defense attorneys in capital cases. See,
e.g., 18 U.S.C. S 3005. However, we are aware of no
authority holding that the federal Constitution confers such
a right, and we see no basis for such a holding. The
Constitution specifies the quality of r epresentation that all
criminal defendants, including capital defendants, must
receive, namely, "reasonably ef fective assistance."

. The Constitution does not
specify the number of lawyers who must be appointed. If a
single attorney provides reasonably effective assistance, the
Constitution is satisfied, and if a whole team of lawyers
fails to provide such assistance, the Constitution is
violated. Thus, there is no constitutional right per se to the
appointment of co-counsel in a capital case. Bell v. Watkins,

, 1009 (5th Cir. 1982); Jimenez v. State, 

, 439 (Fla. 1997) (per curiam); State v. Phelps,

, 574-75 (W.Va. 1996) (per curiam); State v.
Rodriguez, 

, 652 (Ariz. 1996); Spranger v.
State, 

, 1122-23 (Ind. 1995); Uptergrove v.
State, 

, 531 (Tex. Ct. App. 1994). Cf. Hatch
v. Oklahoma, 

, 1456 (10th Cir . 1995).

Riley's brief does not identify any unusual featur es of this
case that demanded the appointment of a second attor ney.
While he does cite the inexperience of his trial attorney,
without a showing that this attorney did not provide the
level of representation requir ed by the Constitution, we
cannot hold that the failure to appoint co-counsel to assist
him violated the Constitution.

B. We must also reject Riley's ar gument that the failure
to appoint a private investigator violated the Constitution.
In Caldwell v. Mississippi, 

, 323 n.1 (1985),

                               37
the Supreme Court made it clear that ther e is no
constitutional right to the appointment of an investigator
where the defendant offers "little mor e than undeveloped
assertions that the requested assistance would be
beneficial." See also Gray v. Thompson, 

, 66-67
(4th Cir. 1995), vacated on other gr ounds sub nom. Gray v.
Netherland, 

(1996). Riley has of fered nothing
more here.

VII.

Riley argues that his Eighth and Fourteenth Amendment
rights were violated because the prosecutor and the trial
judge allegedly made remarks to the jury during the
sentencing phase of the trial that minimized the jury's
sense of responsibility and led it to believe that its decision
was not final. We do not agree.

Riley's argument is based on Caldwell v. 

. In that case, the defense attorney, in closing
argument to the jury at the sentencing phase, asked the
jury to "confront both the gravity and r esponsibility of
calling for another's 

. In response,
the prosecutor strongly disagreed with the defense
attorney's comments and stated:

       Now, they would have you believe that you're going to
       kill this man and they know -- they know that your
       decision is not the final decision. My God, how unfair
       can you be? Your job is reviewable. They know it. . . .
       For they know, as I know, and as [the judge] has told
       you, that the decision you render is automatically
       reviewable by the Supreme Court.

By a vote of five to three, the United States Supreme
Court reversed the decision of the state supr eme court
upholding the defendant's death sentence. In an opinion by
Justice Marshall, the United States Supreme Court held
that the prosecutor's comments had impr operly led the
jurors to believe that the responsibility for determining the
appropriateness of a death sentence lay elsewhere. In a
portion of his opinion that was joined by only thr ee other

                               38
justices, Justice Marshall responded to the state's
argument that the prosecutor's comments were permissible
because it is proper to give a capital sentencing jury
accurate information about post-sentencing pr 

. Justice Marshall rejected this
argument on two grounds, viz., that the prosecutor's
remarks were neither "accurate" nor"relevant to a valid
state penological interest." 

He explained:

       [I]t was misleading as to the nature of the appellate
       court's review and because it depicted the jury's role in
       a way fundamentally at odds with the role that a
       capital sentencer must perform. Similarly, the
       prosecutor's argument is not linked to any arguably
       valid sentencing consideration. That appellate r eview is
       available to a capital defendant sentenced to death is
       no valid basis for a jury to return such a sentence if
       otherwise it might not. It is simply a factor that in itself
       is wholly irrelevant to the determination of the
       appropriate sentence.

who cast the deciding fifth vote for
reversal, did not join this part of Justice Marshall's opinion.
Justice O'Connor refused to endorse the principle that "the
giving of nonmisleading and accurate information regarding
the jury's role in the sentencing scheme is irr elevant to the
sentencing 

(opinion of O'Connor,
J.)(emphasis added). However, she agr eed that the
prosecutor's statements were improper because they
"creat[ed] the mistaken impression that automatic appellate
review of the jury's sentence would provide the
authoritative determination of whether death was
appropriate," whereas in fact the state supreme court
exercised only a narrow scope of r eview. 

cases, the Court has clarified the holding
in Caldwell. In Romano v. Oklahoma, 

, 9 (1994),
the Court wrote as follows:

       As Justice O'CONNOR supplied the fifth vote in
       Caldwell, and concurred on grounds narrower than
       those put forth by the plurality, her position is
       controlling. See Marks v. United States, 

,

                               39
       193 (1977) . . . . Accordingly, we have since r ead
       Caldwell as "relevant only to certain types of comment
       --those that mislead the jury as to its role in the
       sentencing process in a way that allows the jury to feel
       less responsible than it should for the sentencing
       decision." Durden v. Wainwright , 

, 184,
       n.15 (1986). Thus, "[t]o establish a Caldwell violation,
       a defendant necessarily must show that the r emarks to
       the jury improperly described the role assigned to the
       jury by local law." Dugger v. Adams, 

, 407
       (1989), see also Sawyer v. Smith, 

, 233
       (1990).

The Romano Court rejected the Caldwell argument
advanced in that case because "the jury was not
affirmatively misled regarding its role in the sentencing
process." 

Thus, in or der to establish a Caldwell
violation, a defendant must show that the pr osecutor's
comments inaccurately or misleadingly minimized the
finality or importance of the jury's verdict at the penalty
phase.

Riley's argument is based on a statement made by the
prosecutor near the very beginning of his summation at the
sentencing phase of the trial. The prosecutor stated:

       As the Judge has explained to you we have a specific
       statute with regard to what occurr ed in a penalty
       hearing on a capital case.

       Let me say at the outset that what you do today is
       automatically reviewed by our Supreme Court and that
       is why there is an automatic review on the death
       penalty. That is why, if you return a decision of death,
       that is why you will receive and have tofill out a two-
       page interrogatory that the Court will give you. This is
       an interrogatory that specifically sets out the questions
       that the State request and whether or not you believe
       it beyond a reasonable doubt and if you want in your
       determination, if you believe the sentence should be
       death then each and every one of you has to sign this.
       This goes to the Supreme Court. That is why it is
       concise and we believe clear and it should be looked
       carefully on and answered appropriately.

                                

(emphasis added). Riley points to the highlighted
words quoted above and adds that "the trial court
enhanced the jury's sense that the responsibility for Mr.
Riley's death sentence lay elsewhere by r epeatedly referring
to the jury's sentencing of Mr. Riley as a
`recommendation.' " Appellant's Br . at 45.

In its decision on direct appeal, the Delawar e Supreme
Court responded to this argument as follows:

       [T]he prosecutor's remarks in no way suggested that
       responsibility for ultimately determining whether
       defendant faced life imprisonment or death r ested
       elsewhere. The prosecutor's passing comment to the
       jury that its decision would be "automatically r eviewed"
       was fairly made in the context of the prosecutor's
       preceding reference to the "specific statute [controlling]
       a penalty hearing on a capital case." 11 Del.C.S 4209.
       Since subsection (g) of S 4209 mandates the"Automatic
       Review of Death Penalty by Delaware Supr eme Court",
       the prosecutor in the instant case was simply quoting
       the statute. In no sense may it reasonably be said that
       the prosecutor was either misstating the law,
       misleading the jury as to its role, or minimizing its
       sentencing 

(alteration in original). W e agree with this
analysis.

The prosecutor's remarks in Caldwell were "quite
focused, unambiguous, and 

. The
clear message was that, contrary to the suggestion of
defense counsel that the jury should "confr ont both the
gravity and responsibility of calling for another's death," 

the jury need not shoulder that responsibility
because "the authoritative determination of whether death
was appropriate" would be made by the state supreme
court. 

(Opinion of O'Connor , J.). It was in this
sense that the remarks " `impr operly described the role
assigned to the jury by local law' "19 and thus " `allowed the
_________________________________________________________________

19. Romano v. 

(quoting Dugger v. 

).

                               41
jury to feel less responsible than it should for the
sentencing decision.' "20

The prosecutor's remarks in this case wer e very different.
Here, the prosecutor made accurate, unemotional, passing
remarks in the context of describing the state statute and
explaining why the jury would have to "fill out a two-page
interrogatory" if it returned a capital sentence. These
remarks did not convey the message that the jury should
not confront the gravity of returning a death verdict, and
thus the mere mention of the fact that ther e would be an
automatic appeal to the state supreme court did not
mislead the jury as to its role in the sentencing process. In
this connection, it is noteworthy that after the closing
arguments, the trial judge instructed the jury on its role
using language that left no doubt about its r esponsibility.
The trial judge stated: "Where the jury submits such a
finding and recommendation, the Court shall sentence the
defendant to death." Riley 

(emphasis
added). A "recommendation of death, supported by the
evidence, shall be binding on the Court." 

"Your unanimous recommendation for the
imposition of the death penalty, if supported by the
evidence, is binding on the Court." 

(emphasis
added). In light of the substantial factual dif ferences
between Caldwell and this case, and in light of the
Supreme Court's subsequent explanation of the meaning of
Caldwell, we reject Riley's Caldwell claim.

Our dissenting colleague would apparently hold that a
Caldwell violation occurred simply because the prosecutor
accurately stated that there would be an automatic appeal
to the state supreme court without attempting to explain
the scope of review that the state supr eme court would
exercise. We do not agree with this reading of Caldwell.
Neither Justice O'Connor's controlling opinion in Caldwell
nor the Court's subsequent explanation in Romano took the
position that an unadorned reference to automatic judicial
review of a capital verdict is enough to violate the
Constitution. Rather, "[t]o establish a Caldwell violation, a
_________________________________________________________________

20. Romano v. 

(quoting Durden v. 

, n.15).

                               42
defendant necessarily must show that the remarks to the
jury improperly described the role assigned to the jury by
local law." 

(quoting Dugger v.

).

VIII.

Riley contends that the trial judge contravened the
holding of Witherspoon v. Illinois, 

(1968),
when the judge dismissed two jurors for cause after they
responded to voir dire questions concer ning capital
punishment. In Witherspoon, the Supr eme Court held that
members of a jury panel may not be excused for cause
"simply because they voiced general objections to the death
penalty or expressed conscientious or r eligious scruples
against its infliction." 

Some lower courts,
however, interpreted footnotes in W itherspoon to mean that
potential jurors could be dismissed only if they stated
unambiguously that they would automatically vote against
the death penalty.21

The Supreme Court clarified the meaning of Witherspoon
in Wainwright v. Witt, 

(1985). The Court held
that "the proper standard for deter mining when a
prospective juror may be excluded for cause because of his
or her views on capital punishment . . . is whether the
juror's views would `prevent or substantially impair the
performance of his duties as a jur or in accordance with his
instructions and his oath.' " 

(quoting

). The Court noted:

       [T]his standard . . . does not require that a juror's bias
       be proved with `unmistakable clarity' . . . because
       determinations of juror bias cannot be r educed to
       question-and-answer sessions which obtain results in
       the manner of a catechism. What common sense
       should have realized experience has proved: many
       veniremen simply cannot be asked enough questions to
       reach the point where their bias has been made
       "unmistakably clear"; these veniremen may not know
       how they will react when faced with imposing the death
_________________________________________________________________

21. See Wainwright v. Witt, 

, 419 (1985).

                                43
       sentence, or may be unable to articulate, or may wish
       to hide their true feelings. Despite this lack of clarity in
       the printed record, however, ther e will be situations
       where the trial judge is left with the definite impression
       that a prospective juror would be unable to faithfully
       and impartially apply the law.

-26 (footnote omitted). The Court went on to hold
that a trial judge's finding under this standar d is entitled to
the presumption of correctness in 28 U.S.C. S 

. Applying these standards, the Court
sustained the dismissal of a juror who said, when asked
whether her beliefs would interfere with her sitting as a
juror in a capital case, "I am afraid it would" and "I think
it would." 

The two potential jurors at issue in the pr esent case are
Mae Floyd and Gerald Moot. During Floyd's voir dir e, the
following exchange occurred:

       The Court: . . . Do you have any conscientious scruples
       against finding a verdict of guilty wher e the
       punishment might be death or against imposing the
       death penalty if the evidence should so warrant?

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

        The Court: You do have conscientious scruples?

        Ms. Floyd: Yes.

        The Court: Regardless of any personal beliefs or
       feelings you have, if the evidence justified it, would you
       be able to find a person guilty of murder in the first
       degree and impose the death penalty?

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

22. See also Deputy v. Taylor, 19 F .3d 1485, 1498 (3d Cir. 1994)
(citations omitted) (internal quotation marks omitted)("a trial court may
excuse a juror for cause where such jur or's views would prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath. . . . [and] that a state
trial
judge's finding that a prospective jur or is impermissibly biased against
the death penalty is entitled to a presumption of correctness under S28
U.S.C.A. 2254(d).").

                               44
        The Court: I will repeat the question.

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

        The Court: I will repeat it. Regardless of your
       personal belief or feelings, if the evidence justified it,
       would you be able to find a person guilty of mur der in
       the first degree and would you be able to impose the
       death penalty?

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

        The Court: Yes, it is.

        Ms. Floyd: The latter part--

        The Court: First of all, would you be able tofind a
       person guilty of murder in the first degr ee?

        Ms Floyd: I may, yes.

        The Court: And the second part is would you be able
       to impose the death penalty?

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

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

App. 285-86 (emphasis added).

As both the Delaware Supreme Court and the District
Court observed, Floyd's responses were very similar to
those of the potential juror in question in Wainwright v.

. See Riley 

Riley VI, 

, at *11. We agree with their analysis and hold
that Riley has not overcome the presumption of correctness
that attaches to the implicit finding of the trial judge.

The dismissal of the other potential juror in question,
Gerald Mood, took place after the following colloquy:

       The Court: . . .   . Do you have any conscientious
       scruples against   finding a verdict of guilty when the
       punishment might   be death or against imposing the
       death penalty if   the evidence should so warrant?

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

       The Court: Regardless of any personal belief or feelings
       that you have, if the evidence justified it, would you be
45
       able to find a person guilty of murder in thefirst
       degree and would you be able to impose the death
       penalty?

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

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

App. 276.

The District Judge aptly analyzed the dismissal of Mood,
and we adopt his analysis:23

       Unlike venireperson Floyd, venireperson Mood's
       responses were much more succinct. Mood twice
       responded to the trial court's capital punishment
       questions with the phrase, "I don't know." . .. .
       Particularly in situations such as this, wher e an
       individual's record response is so brief that its printed
       reproduction reveals little, the Court should defer to
       those credibility factors that would only have been
       known to the trial court, such as the juror's demeanor,
       tone of voice and attitude. See 

       (emphasizing importance of trial court's assessment of
       venireperson's demeanor, particularly where printed
       record may not be "crystal clear"). Accordingly, the
       Court finds adequate record support for the trial
       court's decision to excuse venireperson Mood.

Riley VI, 

, at *12.

IX.

Relying on Morgan v. Illinois, 

(1992), Riley
argues that the trial judge erred in failing sua sponte to ask
prospective jurors during voir dir e whether they would
automatically impose the death penalty if they found him
guilty. The District Court rejected this claim on the ground
_________________________________________________________________

23. In addition, as the District Court noted, some of the answers given
by Floyd and Mood to questions not concerning capital punishment may
have influenced the trial judge's decision to dismiss them. Floyd revealed
that she knew Tyrone Baxter and was a casual friend of Baxter's mother.
Mood said that he was a good friend of one of the police officers involved
in the case and had served with him in the fir e department. See Riley VI,

, at *12.

                               46
that Morgan requires that such questions be asked only if
the defense so requests. We agree.

In Morgan, the Supreme Court framed the relevant issue
in these terms: "whether on voir dir e the court must, on
defendant's request, inquire into the prospective jurors'
views on capital 

(emphasis
added). The Court stated its holding as follows:

       Petitioner was entitled, upon his request , to inquiry
       discerning those jurors who, even prior to the State's
       case in chief, had predetermined the ter minating issue
       of his trial, that being whether to impose the death
       penalty.

(emphasis added). The dissent described the
Court's holding in similar language: "The Court today holds
that . . . the Constitution requires that voir dire directed to
[reverse-Witherspoon] `bias' be provided upon the
defendant's request." 

(Scalia, J., dissenting)
(emphasis added).

We cannot regard the Court's choice of words as
accidental, and we think that the holding of Mor gan is
clear: a reverse-Witherspoon inquiry must be made "on
defendant's request." See United States v. Tipton, 

, 879 (4th Cir. 1996).

Riley makes two arguments in response. First, he notes
that the state supreme court rejected his argument on the
merits, and he contends that "the State should not now be
heard to raise alleged procedural bars to federal court
resolution of the claim on the merits." Appellant's Br. at 52.
Our holding, however, has nothing to do with a procedural
bar, i.e., a state rule of procedur e that bars a federal
habeas court from reaching the merits of a federal claim.
Rather, our holding is based on the fact that the
constitutional right recognized in Mor gan applies only if the
defense makes a request for a reverse-Witherspoon inquiry.

Second, Riley argues that his trial attor ney was
ineffective in failing to request r everse-Witherspoon
questioning. However, this argument was not made in the
state courts, and it is thus procedurally barr ed.

                                47
X.

Under 

. S 4209(g)(2), the Delawar e Supreme
Court is required to undertake a pr oportionality review in
death penalty cases. The statute mandates that the Court
inquire into whether "the death penalty was either
arbitrarily or capriciously imposed or recommended, or
disproportionate to the penalty recommended or imposed in
similar cases." 

. S 4209(g)(2)(a). In affirming Riley's
death sentence, the Delaware Supreme Court examined 21
cases, including five in which the death penalty was
imposed. It found that Riley's case was comparable to the
five death penalty cases (Whalen, Rush, Deputy, Flamer
and Bailey), because they all involved

       an unprovoked, cold-blooded murder of a helpless
       person (or persons) committed upon victims lacking the
       ability to defend themselves and solely for the purposes
       of pecuniary gain (except in Whalen's case). In none of
       these killings is there any evidence of pr ovocation or of
       homicide committed out of passion or rage. In each
       case, except Whalen, the murder occurred in the court
       of a robbery that was deliberately planned and carried
       out with the use of deadly weapons. In each case, the
       perpetrators of these crimes offered no extenuating
       circumstance for taking the life of another .

Riley 

.

Riley challenges this finding on two grounds. First, he
points to the fact that two of the death sentences r elied on
-- Rush and Whalen -- had been vacated. Second, he
argues that the remaining cases -- Deputy, Bailey, and
Flamer -- do not furnish appropriate comparisons because
each involved the killing of more than one person. He
maintains that these errors violated the Eighth and
Fourteenth Amendments.

It is clear that proportionality review is not required by
the federal Constitution. See Pulley v. Harris , 

,
50-51 (1984). Riley justifies advancing his pr oportionality
argument in federal court on two grounds. 24 First, he
_________________________________________________________________

24. Ordinarily, federal habeas relief is not available for an error of
state
law: the habeas statute provides that a writ disturbing a state court
judgment may issue only if a prisoner is in custody"in violation of the
Constitution or laws or treaties of the United States." 28 U.S.C.
S 2241(c)(3). See Pulley v. Harris, 

, 41 (1984).

                               48
argues that the allegedly improper r eview resulted in a
punishment that was "inherently dispr oportionate and,
therefore, arbitrary and capricious" in violation of the
Eighth Amendment. Appellant's Br. at 56. Second, he
argues that Delaware's failure to abide by its own statutory
scheme for proportionality review violated due process. See
Fetterly v. Paskett, 

, 1300 (9th Cir. 1993)
("the failure of a state to abide by its own statutory
commands may implicate a liberty interest pr otected by the
Fourteenth Amendment against arbitrary deprivation by a
state").

Riley bases his first argument on the principle that "[i]f a
State has determined that death should be an available
penalty for certain crimes, then it must administer the
penalty in a way that can rationally distinguish between
those individuals for whom death is an appropriate
sanction and those for whom it is not." Spaziano v. Florida,

, 460 (1984). Riley claims that the
proportionality review conducted by the Delaware Supreme
Court in his case failed to protect him fr om arbitrary
imposition of the death penalty, and in fact upheld a
disproportionate punishment. This argument rests on the
premise that applying the death penalty in Riley's case
would be so disproportionate as to constitute cruel and
unusual punishment under the Eighth Amendment.
Therefore, Riley's argument r eally attacks the imposition of
the penalty itself, rather than the state's method of
reviewing proportionality.

Riley's argument is not tenable. The Supr eme Court has
"occasionally struck down punishments as inher ently
disproportionate, and therefore cruel and unusual, when
imposed for a particular crime or category of crime." 

. However, in this case, Riley's crime --
killing a defenseless person without provocation in the
course of an armed robbery -- is not such that application
of the death penalty in these circumstances would "shock
the conscience." See Lindsey v. Smith, 

, 1154
(11th Cir. 1987); Spinkellink v. W ainwright, 

,
606 n.28 (5th Cir. 1976). Riley has thus failed to show an
Eighth Amendment violation.

                               49
Riley's second argument is based on the principle that
when a state creates a right, the Due Pr ocess clause of the
Fourteenth Amendment entitles a defendant to pr ocedures
to ensure that the right is not arbitrarily denied. He argues
that the Delaware Supreme Court, by failing to conduct an
adequate proportionality review as r equired by state
statute, denied him due process.

As a threshold matter, it is unclear whether, under Third
Circuit law, a state proportionality-r eview statute creates
any cognizable liberty interest for due pr ocess purposes.
See Frey v. Fulcomer, 

, 925 n.7 (3d Cir. 1997)
(noting that Supreme Court precedent on this issue is in
flux). We need not address this question, however, because
even if Riley has such a liberty interest, he has not shown
any denial of due process. In evaluating a claim that a state
court erred in conducting its proportionality review, a
federal court may only inquire into whether the state court
"undertook its proportionality review in good faith and
found that [the defendant's] sentence was pr oportional to
the sentences imposed in cases similar to his." Walton v.
Arizona, 

, 656 (1990). Because ther e is no
federal constitutional right to proportionality review, if the
federal court finds that the review was undertaken in good
faith, it cannot "look behind" the state court's conclusion of
proportionality to consider whether the state court
misapplied state proportionality law. See id.; Bannister v.
Delo, 

, 627 (8th Cir. 1996). In this case, the
Delaware Supreme Court compared Riley's case with a
substantial number of other death-eligible cases, and, even
disregarding the two vacated death sentences, it found
common characteristics between Riley's case and thr ee
other cases in which the sentence was not vacated.
Although Riley argues that these cases ar e not entirely
analogous, because each contained an additional
aggravating factor (more than one victim), ther e is no
indication that the Delaware court acted in bad faith in
conducting its review. We are thus without power to order
habeas relief.

XI

We now turn to Riley's contentions concerning jury
instructions given by the trial judge at the sentencing
phase.

                               50
Volume 2 of 2
A.

Riley argues that the jury instructions at the penalty
phase impermissibly restricted the jury's consideration of
mitigating circumstances. He takes issue with the following
instruction, issued at the start of the penalty hearing:

A sentence of death shall not be imposed unless the jury
finds:

       (1) Beyond a reasonable doubt at least one statutory
       aggravating circumstance; and

       (2) Unanimously recommends, after weighing all
       relevant evidence in aggravation or mitigation
       which bears upon the particular circumstances or
       details of the commission of the offense and the
       character and propensities of the offender, that a
       sentence of death shall be imposed. Where the
       jury submits such a finding and recommendation,
       the Court shall sentence the defendant to death. A
       finding by the jury of a statutory aggravating
       circumstance, and a consequent recommendation of
       death, supported by the evidence, shall be binding
       on the Court.

App. 392 (emphasis added). Riley contends that, given the
placement of the word "consequent," "a reasonable jury
could understand the underscored sentence to mean that
the effect of a finding that a statutory aggravating
circumstance existed, is that the death penalty must be
imposed." Appellant's Br. 59. Because the trial judge had
previously informed the jury that the statutory aggravating
circumstance -- commission of the mur der during a
robbery -- had already been proven beyond a reasonable
doubt in the guilt phase, Riley argues that a reasonable
jury could have read the instruction to mean that it need
not consider mitigation evidence.

When reviewing a jury instruction that is claimed to
impermissibly restrict a jury's consideration of relevant
evidence, a court must ask "whether there is a reasonable
likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of
constitutionally relevant evidence." Boyde v. California, 494

                               

, 380 (1990). If there is "only a possibility" of such
inhibition, however, the challenge must fail. 

challenged instructions "must be evaluated not in
isolation but in the context of the entire char ge." Jones v.
United States, 

, 391 (1999).

When the jury charge is read as a whole, there is no
reasonable likelihood that a jury could have understood it
to preclude consideration of mitigating cir cumstances. At
the close of the penalty hearing, the court again instructed
the jury in terms that cleared up any ambiguity that might
have been present in its earlier instruction:

       In conclusion, a sentence of death shall not be imposed
       unless you, the jury, find:

       (1) Beyond a reasonable doubt at least one statutory
       aggravating circumstance has been established;
       and

       (2) Unanimously recommend that a sentence of death
       be imposed after weighing all relevant evidence in
       aggravation and mitigation which bear upon the
       particular circumstances and details of the
       commission of the offense and the character and
       propensities of the offender.

       Should you fail to agree unanimously to either of these
       two matters, the Court shall sentence the defendant to
       life imprisonment without benefit of probation or
       parole.

App. 438-40 (emphasis added).

This instruction made it clear that a jury was r equired
both to find at least one statutory aggravator and to weigh
aggravating factors against mitigating factors in or der to
support a death sentence. This belies Riley's ar gument that
the jury was misled into believing that its job was done
once the felony murder aggravator was found.

B.

Riley next takes issue with the trial court's failur e at the
penalty phase to instruct the jury that it was r equired to
conclude unanimously that aggravating circumstances

                                53
outweigh mitigating circumstances befor e imposing death,
as required by Delaware law. See Whalen v. State, 

, 560 (Del. 1985) (setting forth "outweighing" standard).
Rather, the court simply instructed the jury that it had to
"[u]nanimously recommend that a sentence of death be
imposed after weighing all relevant evidence in aggravation
and mitigation." App. 438; see also App. 392, 437.

This argument provides no grounds for habeas relief. The
federal Constitution does not require"specific standards for
balancing aggravating against mitigating cir cumstances."
Zant v. Stephens, 

, 876 n.13 (1983). As long as
a jury is permitted to consider all relevant mitigating
circumstances in making its death recommendation, there
is no federal constitutional problem. In addition, Riley has
not suggested how a jury's decision would be any dif ferent
under the language the court used in this case. Because
the jury was instructed not to make a sentencing
recommendation until after it had "weigh[ed] all relevant
evidence in aggravation and mitigation," the necessary
inference was that the death penalty should be imposed
only if aggravating factors outweighed mitigating factors
(otherwise, the entire "weighing" pr ocess would be
meaningless).

C.

Finally, Riley argues that the penalty phase instructions
improperly suggested that the jury had to be unanimous in
imposing a life sentence, in violation of Whalen v. State,

, 562 (Del. 1985). He points to the instruction
that "[i]f you are not unanimous in your recommendation to
impose the death penalty, or you cannot agr ee unanimously
as to your recommendation, then the Court is bound to
impose a sentence of life." App. 438 (emphasis added). The
word "recommendation" in the underlined phrase, he
suggests, could be read to refer to a life sentence
recommendation as well as to a recommendation of death.

As a threshold issue, the government ar gues that Riley
failed to raise this issue before the District Court because
he based his argument there "solely on the interpretation of
the interrogatories posed to the jury" rather than on the

                               54
jury instruction he points to here. Appellee's Br. at 75.
However, Riley, although pointing specifically to the
interrogatories to support his point, nevertheless raised the
general argument in his amended petition that"the
instructions were likely to confuse the jury about whether
the verdict must be unanimous." App. 1191. This is
sufficient to preserve his argument before this Court.

On the merits, however, Riley's claim must fail. First,
when the jury charge is viewed as a whole, it reveals several
instances in which the word "unanimous" was explicitly
paired solely with the death recommendation. In light of
this pattern, it appears unlikely that the jury would have
viewed the isolated passage that Riley relies on as
extending the unanimity requirement to a r ecommendation
of life imprisonment. Second, the Delaware Supr eme Court,
in reviewing this allegation, stated that it was "satisfied that
the jury understood that, in the event of its failur e to
unanimously agree upon imposition of a death penalty, an
imposition of life imprisonment would result." Riley 

. Because the instruction made clear that the
default rule in case of a lack of unanimity was life
imprisonment, it is hard to see how the jury's deliberations
would have been affected even had it adopted Riley's
interpretation of the instruction. Finally, the challenged
instruction was identical to one approved by the Delaware
Supreme Court in Flamer v. State, 

(Del.
1984), aff 'd sub nom. Flamer v. Delaware, 

(3d
Cir. 1995) and Flamer v. Delaware , 

(3d Cir.
1995) (en banc). The Delaware Supreme Court explicitly
pointed to the similarities with Flamer, and distinguished
the instructions from those in Whalen, in upholding the
death sentence on direct appeal. See Riley , 585 A.2d at
722-25. For these reasons, we reject Riley's claim.

XII.

Riley was convicted of intentional murder and felony
murder, with the underlying felony beingfirst-degree
robbery. The statutory aggravating circumstance relied on
for the death sentence was that the murder was committed
while Riley was engaged in the commission of first degree
robbery. See 

. S 4209(e)(1)(j) (establishing felony

                               55
murder aggravator). Riley argues that it is unconstitutional
to double-count robbery as both an element of the crime
(felony murder) that made Riley death-eligible and as a
statutory aggravating circumstance.

This Court rejected precisely the same claim in Deputy v.
Taylor, 

,1502 (3d Cir . 1994), holding that
"within the context of Delaware's death penalty statute, the
provision requiring the double-counting of the felony at the
guilty phase and sentencing phase does not imper missibly
weaken the statute's constitutionally mandated narr owing
function." This precedent binds our panel.

XIII

Riley's final argument is that the District Court erred in
denying his motion for funds for investigative and expert
assistance and in refusing to conduct an evidentiary
hearing. We disagree.

A.

Under 18 U.S.C. S 3006A(e) and 21 U.S.C. S 848(q)(4)(B)
and (9), Riley was entitled to investigative and expert
assistance upon a finding that such assistance was
"necessary" or "reasonably necessary" with respect to his
representation in the habeas proceeding. Riley sought the
services of an investigator to gather additional evidence
concerning his childhood experiences. He sought the
services of a forensic psychiatrist to develop further
mitigating evidence concerning his mental pr oblems. All of
these services were requested in or der to support Riley's
arguments that his trial attorney was ineffective at the
penalty phase and that the trial judge should have
appointed a co-counsel and investigator to assist him.

Riley has not shown that the services in question were
"necessary" or "reasonably necessary." The discovery at the
time of the federal habeas proceeding of new evidence about
Riley's childhood would not have shown that the ef forts of
Riley's trial attorney to locate family members who might
have testified about such matters were objectively
unreasonable. See pages 

. Nor would the

                                56
discovery of such evidence have demonstrated that it was
strategically unreasonable for Riley's trial attorney to
eschew a penalty-phase defense based on Riley's"social
history." See 

development of additional
evidence regarding Riley's mental condition at the time of
the federal habeas proceeding would not have shown that
Riley's trial attorney was objectively unr easonable in not
seeking a mental examination prior to the penalty. See
pages 

.

B.

"Where the District Court denies the petition for a writ of
habeas corpus in the absence of an evidentiary hearing," we
ask, first, "whether the petitioner asserts facts which entitle
him to relief " and, second, "whether an evidentiary hearing
is needed." Todaro v. Fulcomer , 

, 1082 (3d
Cir. 1991). See also Heiser v. Ryan, 

, 561 (3d
Cir. 1991). Riley argues that the District Court should have
held an evidentiary hearing concerning the pr osecution's
peremptory challenges, the impartiality of the jury, his
Brady claim, and other unspecified issues. W e disagree. As
previously discussed, we are requir ed to accept the state
courts' findings regarding the per emptory challenges and
the impartiality of the jury, and those findings are
dispositive. Thus, an evidentiary hearing in federal court on
those matters was not needed. In addition, in light of the
revelation after briefing that no conversation in which
Baxter participated is listed in the logs of the wir etap on
Mrs. Baxter's telephone, it is clear that ther e was no need
for an evidentiary hearing concerning Riley's Brady claim.
Nor do we believe that the District Court was an evidentiary
hearing was needed on any other matter.

XIV.

For the reasons explained above, the decision of the
District Court is affirmed.

                               57
SLOVITER, Circuit Judge, Dissenting.

The considerable deference that we are obliged to give to
state court findings of fact does not requir e that we give
uncritical acceptance to a prosecutor's story merely
because a state judge accepted it when the story cries out
for skepticism and is inherently improbable. The prosecutor
would have us believe that six years after the trial, without
the help of contemporaneous notes, he remember ed (for the
first time) that a prospective juror paused ("a significant
pause") before the juror answer ed the trial judge's voir dire
inquiry whether he would be able to retur n a death penalty.
And the prosecutor would have us believe that he exercised
one of the state's peremptory challenges to strike the juror
for that reason. The fact that the juror was black
supposedly was irrelevant to the prosecutor's decision.

The same prosecutor would also have us believe that he
struck another juror (the second of the thr ee prospective
black jurors) because he wanted to be excused so he could
return to work (which the prospective juror later testified he
never requested). Inexplicably, the prosecutor who
remembered the black juror who allegedly paused (although
he made no note of it) could not remember that he did not
strike a white juror who really did want to be excused
because of work, even though the prosecutor had made a
note that that juror "want[ed] off." As a result, there were
no black or other minority jurors on appellant Riley's petit
jury. And there were no black jurors on any capital case
tried by that prosecutor's office that year . The prosecutor's
story strains credulity even further when it is recalled that
on the direct appeal to the Delaware Supr eme Court in this
case the State's alternative argument defended the use of
peremptory challenges to exclude jurors based on "group
association," a euphemism for race.

I dissent from the majority opinion because I believe the
record in this case compels the conclusion that the
prosecution, in pursuing its express goal of "mak[ing] sure
that James Riley received the death penalty," App. at 797,
violated Riley's constitutional rights under Batson v.
Kentucky, 

(1986), and Caldwell v. Mississippi,

(1985).

                               58
I.

The victim in this case, James Feeley, was a 59 year old
white man who was shot to death during a robbery of his
liquor store in Dover, Delaware. As the majority notes, the
robbers were leaving after grabbing some cash and shooting
Feeley in the leg when Feeley threw a wine bottle, which
apparently precipitated the shot that killed him. Appellant
Riley, a 22 year old black man, Tyrone Baxter , and Michael
Williams were arrested for his mur der. Riley was
represented at trial by appointed counsel, a defense-side
civil litigator who had never represented a criminal
defendant in either a murder or a capital case. Riley was
tried and convicted before an all-white jury and, four days
later, was sentenced to death. Riley's attor ney, who spent
only fourteen hours preparing for the penalty phase,
explained to the trial court that he had been too busy "with
the defense and the merits" to spend more time building a
case in mitigation. App. at 443-44.

The prosecutors in Riley's case were James Liguori and
Mark McNulty. Liguori, the lead prosecutor , was a friend
and neighbor of Feeley's, and his stated intent was"to
make sure we were not only going to get a conviction of
murder in the first degree, but also the death penalty." App.
at 797. While that goal was not unlawful, on this r ecord I
can only conclude that the prosecution, in at least two
respects, overstepped the line drawn by Supr eme Court
cases.

II.

The Batson Claim

A.

Evidence of Peremptory Strikes in Kent County

After general voir dire and dismissals for cause in Riley's
trial, three prospective black jur ors remained available to
serve on the jury: Ray Nichols, Lois Beecher , and Charles
McGuire. The prosecution used three of its peremptory

                               59
challenges to remove them, and Riley was tried and
sentenced before an all-white jury.

It is well-settled that the Equal Protection Clause
prohibits discrimination on account of race in selection of
both the venire and the petit jury. See 

. This principle, which dates back at least as far as
Strauder v. West Virginia, 

(1880), recognizes
that racial discrimination in selection of jur ors harms "not
only the accused whose life or liberty they ar e summoned
to try," 

, but also harms the
potential juror, whose race "simply`is unrelated to his
fitness as a juror.' " 

v. Southern Pac. Co.,

, 227 (1946) (Frankfurter, J., dissenting)).

Under Batson, the defendant who seeks to establish that
the state's use of peremptory challenges violated the Equal
Protection Clause must first make a prima facie showing of
a constitutional violation. Once the defendant makes that
showing, the prosecution must articulate a race-neutral
explanation for its use of a peremptory challenge and, if it
does, the trial court must determine whether the defendant
has proven purposeful discrimination. See Simmons v.
Beyer, 

, 1167 (3d Cir . 1995). Judge Steele, the
judge in the Superior Court of Delaware (a trial court) who
presided over Riley's post-conviction pr oceedings,
determined, and the state does not contest, that Riley made
out a prima facie case of discrimination in jury selection.
Accordingly, he conducted an evidentiary hearing to
determine whether Riley had established purposeful
discrimination.

At the hearing, Liguori, the state's principal witness,
proffered race-neutral reasons for the prosecution's
decision to strike three black jurors fr om Riley's case. In
reply, Riley presented evidence that in addition to the three
jurors in his trial, the Kent County Pr osecutor's office used
its peremptory challenges to remove every prospective black
juror in the three other first-degr ee murder trials that
occurred within a year of his trial. Riley also presented
evidence specific to his case that the prosecution had failed
to apply its purportedly race-neutral criteria evenhandedly
with respect to the prospective black jur ors. The court
rejected Riley's Batson claim without mentioning any of this

                               60
evidence, and the Delaware Supreme Court affirmed,
likewise without discussion of this evidence. In my view,
the record simply does not support the purported race-
neutral reason with respect to at least one of the three
jurors. Although I also question the state's use of
peremptory challenges to strike the two other black jurors
in Riley's case, the exclusion of even one jur or on the basis
of race violates the Constitution. See Harrison v. Ryan, 

, 88 (3d Cir. 1990). The evidence of the striking of
the black jurors in Riley's trial is mor e telling when viewed
in the light of the state's similar conduct in
contemporaneous trials.

At the post-conviction hearing, Riley presented evidence
that the Kent County Prosecutor used per emptory
challenges to remove every prospective black juror, not only
in his trial but also in three other first-degree murder trials
that occurred within a year of his trial. In these four trials
(including Riley's), the prosecution struck all eight
prospective black jurors who were called, i.e., 100 percent.
By contrast, the prosecution used its per emptory
challenges to strike only 23 of the 71 prospective white
jurors, or 32 percent.1

At the post-conviction hearing, counsel for the state
objected to the admission of this evidence, ar guing that
evidence of general prosecutorial practices was relevant
_________________________________________________________________

1. The four trials were:

        a. Andre Deputy -- state struck the lone prospective black juror, a
        second juror designated as "Indian," and six prospective white
        jurors;

        b. Judith McBride -- state struck all thr ee prospective black
        jurors, five whites, plus two other jur ors whose race has not
        been identified;

        c. Riley -- state struck all three pr ospective black jurors and
eight
        whites; and

        d. Daniel Pregent -- state struck the lone prospective black juror
        and four whites.

Although the race of two of the jurors who wer e ultimately empaneled
has not been identified, the state does not contest Riley's assertion that
every empaneled juror was white.

                                61
only to Riley's prima facie case. The court r ejected this
argument and admitted the evidence, explaining that the
evidence was being offered to show that"the peremptory
challenges in this particular case followed some kind of
pattern that exists in the prosecutorial actions in first
degree murder cases involving minority defendants."2 App.
at 872.

Counsel for the state then requested and r eceived an
additional month in which to "attempt to pr epare the same
sort of information which we feel would be contrary to the
representations made by [Riley's counsel]." App. at 874. He
informed the Superior Court that he had not yet been able
to obtain materials from other cases, but he assured the
court that "they do exist." App. at 874. However,
approximately one month after the hearing the state
submitted a letter expressly declining to supplement the
record with evidence from other cases. In fact, the state
never even argued to the Superior Court that Riley's
evidence failed accurately to represent Kent County
prosecutorial practices, and it has not so ar gued to this
court either.

Typically, "[w]here relevant infor mation . . . is in the
possession of one party and not provided, then an adverse
inference may be drawn that such information would be
harmful to the party who fails to provide it." McMahan &
Co. v. Po Folks, Inc., 

, 632 (6th Cir. 2000)
(quotation omitted); see also Interstate Cir cuit, Inc. v. United
States, 

, 226 (1939) ("The pr oduction of weak
evidence when strong is available can lead only to the
conclusion that the strong would have been adverse.").
However, the majority declines to give Riley's evidence "any
weight" whatsoever. Maj. Op. at 16. The majority gives
several reasons for its decision to disr egard this evidence,
none of which is persuasive and all of which ar e wrong.
_________________________________________________________________

2. As the majority points out, not all of the defendants in Riley's sample
were minorities, but that is immaterial to whether the Kent County
prosecutor struck black jurors on account of their race. Excluding jurors
on the basis of race is unconstitutional regar dless of the race of the
defendant. See Powers v. Ohio, 

(1991).

                                62
For example, the majority states that in two of the trials
-- Daniel Pregent's and Judith McBride's-- the defense
apparently did not raise a Batson objection. The majority
argues that "it is doubtful that the patter n of strikes [in
Pregent's case] . . . sufficed to make out a prima facie case,"

with respect to McBride's trial, there is no
way of determining whether any jurors wer e removed
because of their race. These are non-sequiturs. Riley had to
prove discrimination in his trial, not in Pr egent's and
McBride's. If the majority's point is that Riley's evidence is
irrelevant unless each separate component was itself
established to be a Batson violation, that proposition has
no basis in the law or in common sense. The evidence
demonstrates a pattern of striking black jur ors at
significantly higher rates than white jurors. One
permissible (indeed, the most plausible) infer ence to be
drawn from the data is that the Kent County Pr osecutor
followed a pattern of using peremptory challenges in a
racially discriminatory manner. Indeed, that is precisely the
purpose for which the Superior Court admitted this evidence.3

The majority seeks to dispel, or at least neutralize, the
unmistakable inference to be drawn from this pattern of
striking all black jurors by pr offering explanations that the
prosecutor never proffered in the state proceedings. The
majority even excuses the failure of the state to produce
any evidence to counter Riley's statistical evidence by
suggesting that the data "did not raise an infer ence of
discrimination, and thus additional data wer e not needed to
refute Riley's statistical showing." Maj. Op. at 17.

At most, the majority can simply state the obvious-- that
the evidence presented by Riley is imper fect. The most
glaring imperfection is, of course, the small size of Riley's
sample. Conceivably, evidence from other trials might cast
_________________________________________________________________

3. The majority also asserts that Riley's data ar e flawed because we do
not know the identity of the prosecutors who participated in jury
selection in these cases. While this objection might have more force if
there was evidence that the use of peremptory challenges in Kent County
varied from case to case, there is no such evidence here. Moreover, a
newspaper article published during the trial described Liguori, the lead
prosecutor in Riley's trial, as "the chief prosecutor in Kent County."
App.
at 1442.

                               63
the practices in Kent County in a differ ent light. But it was
the state, not Riley, that would have had access to such
evidence, it was the state that asserted that such evidence
was available and forthcoming, and it was the state, not
Riley, that failed to provide it. Riley's evidence from prior
trials was powerful evidence in his favor , and I believe the
failure of the Superior Court, which had pr eviously
acknowledged the relevance of this evidence, to mention it
and include it in the calculus leading to its final decision to
deny Riley's post-conviction motion undermines that
decision.

B.

Evidence of Pretext

I am equally troubled by the failure of the state courts to
discuss the evidence Riley presented to contradict the race-
neutral reasons offered by the pr osecution for striking the
black jurors in his trial. At the post-conviction hearing,
held six years after Riley's trial, Liguori testified that the
prosecution's strategy in Riley's trial was"to make sure we
were not only going to get a conviction of mur der in the
first degree, but also the death penalty." App. at 797. He
also testified that the prosecutors wanted"to have minority
representation on the jury panel," App. at 792-93, and
attempted to explain the prosecution's decision to challenge
all three prospective black jurors. I will focus here on two
of these jurors, Ray Nichols and Charles McGuir e.

With respect to Nichols, Liguori r emembered clearly that
"Mr. Nichols was an individual who, and unfortunately the
record doesn't reflect this, who was not, in my particular
mind, not certain with regard to being able to return a
verdict for death." App. at 797-98. The r ecord reflects no
such uncertainty on Nichols's part. At voir dir e, Nichols
answered the two questions posed by the court r egarding
the jurors' willingness to sentence a defendant to death in
a manner seemingly favorable to the prosecution:

       Q: Do you have any conscientious scruples against
       finding a verdict of guilty where the punishment

                               64
       might be death or against imposing the death
       penalty even if the evidence should so warrant?

       A: No.

       Q: Regardless of any personal beliefs or feelings that
       you may have, if the evidence justified it, would
       you be able to find a person guilty of mur der in the
       first degree and would you be able to impose the
       death penalty.

       A: I think so.

App. at 226-27.

Nonetheless, Liguori struck Nichols because, as he
explained at the post-conviction hearing, "ther e was a
pause and a significant pause in [Nichols's] answering [the
court's] inquiry." App. at 798-99. Despite this alleged
pause, the prosecutors did not ask the trial court to remove
Nichols for cause or to inquire further into Nichols's
willingness to award the death penalty.

With respect to Charles McGuire, Liguori's memory was
also clear. He stated:

        I remember this one. Mr. McGuir e was an individual
       who had requested -- remember, this was going to be
       around Christmas also.

        Mr. McGuire had previously requested to be excused
       from jury service. When Mr. McGuir e came up, the first
       thing I wanted to make clear -- as I said earlier , I
       wanted someone that was going to be attentive and you
       can read all the books you want with regar d to
       selecting prospective jurors and it is always make sure
       you have attentive jurors, people not concer ned about
       getting home early to take care of their kids, or
       vacation.

        Mr. McGuire himself had requested the Court to
       excuse him. The Court didn't. When he went thr ough
       his inquiry, we asked the judge to excuse him for
       cause. The judge said no. It then left us with no
       alternative but to think he would not give his full time
       and attention and therefore we struck Mr . 

(emphasis added). McGuire's pr esumed
inability to "give his full time and attention" was the only
reason Liguori offered for excluding him.

On cross-examination, Riley's attorney introduced
Liguori's handwritten notes from voir dir e at Riley's trial.
Written next to McGuire's name was the word "Out." Among
the names on the same page was that of Charles Reed, a
white man who was ultimately seated on the jury. Next to
Reed's name on the sheet was written, "works Lowe's,
wants off." App. at 823.

Despite repeated efforts by Riley's counsel to refresh his
recollection, Liguori testified that he had no recollection of
Reed, a juror who actually served on Riley's trial. Liguori
agreed, however, that the notation next to Reed's name
indicated that Reed had requested to be excused from
service on the jury. Liguori offered no explanation for his
decision not to strike Reed.

The similarity between the two prospective jur ors is
obvious -- in each case the state believed that the juror
wanted to be excused. The only distinction between the
jurors apparent on the record is equally obvious --
McGuire, who was struck, is black; Reed, who was
retained, is white.

Nonetheless, as with Riley's evidence of the patter n of
race-based strikes in other trials, the state courts failed
even to mention this evidence and the majority strains to
find reasons to disregard it. The majority asserts, for
example, that "Reed may have had a r elatively weak desire
and reason to be excused, and his situation may not have
been at all comparable in this respect to McGuire's." Maj.
Op. at 24 (emphases added). The majority further explains
that it is not willing to assume "that Reed's desire to be
excused was related to his employment." 

n.12.
This "distinction" between Reed and McGuir e is not only
unsupported by the record, it is irr elevant. Liguori did not
testify, nor can it be inferred from his testimony, that it was
significant that McGuire's purported desir e to be excused
was work-related. Instead, Liguori testified that he struck
McGuire because he believed McGuire wanted off the jury
and would therefore not be attentive at trial. The record
strongly suggests that justification applied equally to Reed.

                               66
The comparison between Reed and McGuire is telling
evidence that the prosecution's asserted justification for
striking McGuire was pretextual. See Turner v. Marshall,

, 1251-52 (9th Cir. 1997) ("A comparative
analysis of jurors struck and those remaining is a well-
established tool for exploring the possibility that facially
race-neutral reasons are a pretext for discrimination.").
This evidence alone is strongly suggestive of the race-based
use of peremptory challenges. See, e.g., Devose v. Norris, 

(8th Cir. 1995) (Batson violation where only
justification prosecutor offered for striking three out of four
black jurors with prior jury experience was that jurors
might be "burned out" by prior service; at least five white
jurors were not stricken although they had previously
served on juries); Garrett v. Morris, 

, 514 (8th
Cir. 1987) (prosecutor's explanation for striking black jurors
"seems clearly pretextual in light of his decision not to
strike white jurors who differed in no significant way"); see
also Turner, 

(r eversing, under clear error
standard, finding that prosecutor did not discriminate in
jury selection where sole justification of fered for striking a
black juror applied equally to non-stricken white juror);
Jones v. Ryan, 

(3d Cir . 1993) (reversing,
under plenary review, denial of habeas r elief where
prosecutor did not apply purportedly race-neutral policy to
similar white jurors).

However, we need not view each piece of evidence in
isolation. It is clear that "[a]n explanation for a particular
challenge need not necessarily be pigeon-holed as wholly
acceptable or wholly unacceptable. The relative plausibility
or implausibility of each explanation for a particular
challenge . . . may strengthen or weaken the assessment of
the prosecution's explanation as to other challenges."
United States v. Alvarado, 

, 256 (2d Cir. 1991).
In short, "[a] reviewing court's level of suspicion may also
be raised by a series of very weak explanations for a
prosecutor's peremptory challenges. The whole may be
greater than the sum of its parts." Caldwell v. Maloney, 

, 651 (1st Cir. 1998).

Despite the majority's efforts to explain away the various
parts of the evidentiary picture Riley has pr esented, the

                                67
record as a whole squarely contradicts the Superior Court's
decision. First, the prosecution offer ed a highly dubious
justification for its decision to strike Ray Nichols. While
standing alone the questionable nature of this explanation
might not carry much weight, the prosecution's explanation
for striking Nichols must be evaluated in light of not only
the uncontested evidence of the use of peremptory strikes
in Kent County but also the evidence of pretext in the
striking of Charles McGuire. Viewed as a whole, I believe
this evidence requires a finding contrary to that reached by
the Superior Court.

In the end, the majority's result can be justified on little
more than the presumption of correctness afforded state
court fact-finding in habeas proceedings. The version of 28
U.S.C. S 2254(d) that applies to this case r equires us to
defer to state court findings that are "fairly supported by
the record." 28 U.S.C. S 2254(d)(8). While I do not deny that
the limited nature of our review r eflects important policy
considerations, see, e.g., Miller v. Fenton, 

, 114
(1985) (presumption recognizes that "as a matter of the
sound administration of justice, one judicial actor is better
positioned than another to decide the issue"), the
presumption of correctness does not "so limit federal review
that it is a nullity." Caldwell v. Maloney , 

, 651
(1st Cir. 1998). In this respect, Ligouri's explanation of the
strikes of black jurors is neither "coher ent" nor "facially
plausible," the express limitation that the Supreme Court
itself included in commenting on the deference to be given
a judge's credibility finding in Anderson v. Bessemer City,

, 575 (1985), in the very quote r epeated by the
majority. See Maj. Op. at 18-19 n.8.

In this case there is not only the substantial evidence of
the race-based use of peremptory challenges in
contemporary trials but there is also evidence that throws
into question the explanation offered by the prosecutor for
striking at least one of the black jurors in Riley's case. The
state courts rejected Riley's Batson claim without
discussing any of the ample evidence favorable to Riley and
the majority points to nothing relevant in the record that
might otherwise support the state courts' decisions.
Looking at the key to the state's case, the striking of

                               68
Nichols allegedly because he paused in answering the
court's inquiry whether he could impose the death penalty,
the majority lamely responds that a significant pause "is
not something that a transcript is likely to captur e." Maj.
Op. at 19 n.9. But the prosecutor did make notes during
the voir dire as to decisions whether to strike other jurors,
but offered no contemporaneous note as to Nichols'
"pause." In a death case, a pause, even "a significant
pause," conveniently recalled by the pr osecutor six years
after jury selection, is a slim reed on which to sustain the
prosecutor's explanation, particularly when that
explanation is unsupported by any recor d evidence. No
principle of deference to state court fact-finding can justify
this court's rejection of Riley's Batson claim.

III.

The Caldwell Claim

I believe the majority's conclusion that Riley failed to
establish a violation of Caldwell v. Mississippi , 

(1985), is similarly faulty. In Caldwell the Supreme
Court held that prosecutorial comments str essing that the
jury's sentence would be reviewed for corr ectness by the
state supreme court violated the Eighth Amendment by
leading the jury to believe that ultimate responsibility for
determining the appropriateness of the death sentence
rested with an appellate court. As the Supr eme Court later
explained, prosecutorial comments that "mislead the jury
as to its role in the sentencing process in a way that allows
the jury to feel less responsible than it should for the
sentencing decision" are prohibited. Romano v. Oklahoma,

, 9 (1994) (quotation omitted).

Relying on the principle that a prosecutor's r emarks do
not violate Caldwell unless "they impr operly describe[ ] the
role assigned to the jury by local law," 

the majority rejects Riley's Caldwell claim. The
statements made by the prosecutor in Riley's trial, however,
were no more accurate than those in Caldwell.

In Caldwell, the defense attorney in a capital murder
case pleaded with the jury in closing arguments at the

                               69
sentencing phase to spare the defendant's life. In reply, the
prosecutor stated:

       Ladies and gentlemen, I intend to be brief. I'm in
       complete disagreement with the approach the defense
       has taken. I don't think it's fair. I think it's unfair. I
       think the lawyers know better. Now, they would have
       you believe that you're going to kill this man and they
       know -- they know that your decision is not the final
       decision. My God, how unfair can you be? Y our job is
       reviewable. They know it.

(emphases added).

Defense counsel objected to this statement but the trial
court overruled the objection, stating that it was"proper
that the jury realizes that it is reviewable automatically as
the death penalty commands." 

osecutor
continued:

       Throughout their remarks, they attempted to give you
       the opposite, sparing the truth. They said `Thou shalt
       not kill.' If that applies to him, it applies to you,
       insinuating that your decision is the final decision and
       that they're gonna take Bobby Caldwell out in the front
       of this Courthouse in moments and string him up and
       that is terribly, terribly unfair. For they know, as I
       know, and as Judge Baker has told you, that the
       decision you render is automatically reviewable by the
       Supreme Court. Automatically, and I think it's unfair
       and I don't mind telling them so.

Although the jury's sentence in Caldwell was indeed
subject to automatic review by the state supr eme court,
Justice O'Connor, who cast the fifth and deciding vote,
emphasized that "[j]urors may harbor misconceptions about
the power of state appellate courts or, for that matter, [the
Supreme Court] to override a jury's sentence of death." 

(O'Connor, J., concurring). Accor ding to Justice
O'Connor, the prosecutor's statements were impermissible
because they conveyed to the jury that automatic appellate
review "would provide the authoritative determination of
whether death was appropriate" whereas under state law

                               70
the relevant scope of review was limited to whether the
verdict was "so arbitrary that it was against the
overwhelming weight of the evidence." 

(O'Connor,
J., concurring) (quotation omitted).

In Riley's case, Liguori began his opening comments in
the penalty phase by stating:

        Let me say at the outset that what you do today is
       automatically reviewed by our Supreme Court and that
       is why there is an automatic review on the death
       penalty. That is why, if you return a decision of death,
       that is why you will receive and have to fill out a two-
       page interrogatory that the Court will give you. This is
       an interrogatory that specifically sets out the questions
       that the State request and whether or not you believe
       it beyond a reasonable doubt and if you want in your
       determination, if you believe the sentence should be
       death than each and every one of you has to sign this.
       This goes to the Supreme Court. That is why it is
       concise and we believe clear and it should be looked
       carefully on and answered appropriately.

App. at 393 (emphasis added).

The majority concludes that this statement was accurate
because Delaware law provides for automatic review of the
jury's sentence. But, as in Caldwell, the automatic review
conducted by the Delaware Supreme Court is extremely
limited. At the time of Riley's sentencing hearing, the
relevant portion of the capital sentencing statute provided:

       The Supreme Court shall limit its review under this
       section to the recommendation on and imposition of
       the penalty of death and shall determine:

       a. Whether, considering the totality of evi dence in
       aggravation and mitigation which bears upon the
       particular circumstances or details of the of fense and
       the character and propensities of the of fender, the
       death penalty was either arbitrarily or capriciously
       imposed or recommended . . . .

Del. Code Ann. tit. 11, S 4209(g)(2) (emphasis added).

Like the prosecutor's statement in Caldwell , Liguori's
reference to automatic appellate r eview was misleading as

                                71
to the scope of appellate review. As a majority of the Court
explained in Caldwell, jurors may not understand the
limited nature of that review, which af fords substantial
deference to a jury's determination that death is the
appropriate sentence. See 

.
Furthermore, jurors who are unconvinced that death is the
appropriate punishment but who are eager to send a
message of disapproval for the defendant's acts might be
"very receptive to the prosecutor's assurance that [they] can
more freely err because the error may be corrected on
appeal." 

(quotation omitted). As one of our sister
circuits has explained, "[f]or the jury to see itself as
advisory when it is not, or to be comforted by a belief that
its decision will not have effect unless others make the
same decision, is a frustration of the essence of the jury
function." Sawyer v. Butler, 881 F .2d 1273, 1282 (5th Cir.
1989).

The majority suggests that Liguori's comments simply
described to the jury the interrogatory for m they would
have to answer during their deliberations. But the
interrogatory form contained only two questions: whether
the jury found, unanimously and beyond a reasonable
doubt, that an aggravating circumstance existed,4 and, if
the jury answered "yes," whether it unanimously
recommended a sentence of death. Liguori's comments,
then, were specifically directed to the jury's balancing of
aggravating and mitigating factors and alerted the jury to
the fact that the Delaware Supreme Court would
automatically review its decision to impose a death
sentence.

"The sentencing decision in capital cases is bor n out of
an inherent and unique mixture of anger , judgment and
retribution, and requires a deter mination whether certain
acts are so beyond the pale of community standards as to
warrant the execution of their author." 

Perhaps
more than any other decision render ed by a jury, a
sentence of death is "irreducibl[y] discretionary." 

Delaware the jury's weighing of aggravating and
_________________________________________________________________

4. The jury had already been instructed that, by convicting Riley of
felony
murder, it had already found that an aggravating circumstance existed.

                               72
mitigating circumstances was, for all practical purposes,
final. I have found no published opinion during the relevant
time period in which the Delaware Supreme Court reversed
a jury's sentence of death as arbitrarily or capriciously
imposed.5

In Caldwell, the Supreme Court noted that "[b]elief in the
truth of the assumption that sentencers treat their power to
determine the appropriateness of death as an awesome
responsibility has allowed this Court to view sentencer
discretion as consistent with-and indeed as indispensable
to-the Eighth Amendment's need for reliability in the
determination that death is the appropriate punishment in
a specific case." 

(quotation
omitted). It follows that there is particular concern "when
there are state-induced suggestions that the sentencing
jury may shift its sense of responsibility to an appellate
court." 

unwilling to treat the prosecutor's pointed reference
to appellate review of this crucial decision as lightly as does
the majority. A statement, like that made by the pr osecutor
here, "can be literally true but quite misleading by failing,
for example, to disclose information essential to make what
was said not misleading." Sawyer, 881 F .2d at 1285. As a
result, a violation of Caldwell may be established where a
technically accurate statement describing the state
appellate review process nonetheless "misled the jury to
minimize its role in the sentencing process." Driscoll v. Delo,

, 713 & n.10 (8th Cir. 1995) (prosecutor
violated Caldwell by emphasizing that trial judge could
disregard jury's recommendation of death; although
technically an accurate statement of law, no state judge
"ha[d] ever spared a murder er the death penalty when a
jury ha[d] recommended it").
_________________________________________________________________

5. The Delaware capital sentencing scheme was substantially amended
in 1991. Under the amended statute, the "jury now functions only in an
advisory capacity. The judge, after taking the jury's recommendation into
consideration, has the ultimate responsibility for determining whether
the defendant will be sentenced to life imprisonment or death." State v.
Cohen, 

, 849 (Del. 1992). Of course, when Riley was
sentenced the jury's death sentence was binding on the judge.

                               73
Given the limited nature of the Delawar e Supreme
Court's review of a jury's sentence of death at the time, I
believe that there was a Caldwell violation in this case. At
no time did the prosecution bring the limited scope of
review to the jury's attention and, despite the majority's
statement to the contrary, nothing the trial court said could
have corrected any misimpression left by the prosecution's
comments.6 Moreover, although Liguori's remark was brief,
the opening statement was too; it consumed only 3-1/2
pages of transcript, 1/2 page of which was the passage
reprinted above. It is clear that a statement does not have
to be lengthy to be effective in suggesting to the jury that
ultimate responsibility for sentencing lies elsewhere. Unlike
the facts in Jones v. Butler, 

, 360 (5th Cir.
1988), where the court held that the pr osecutor's statement
that "[I]f, in fact, you do retur n the death penalty that
yours will not be the last word. Every sentence is reviewed
by the Supreme Court," was improper but cured by prompt
defense objection and curative instruction, her e there was
no curative instruction.

On these facts, I disagree with the majority that the
prosecutor's comments were simply "accurate unemotional,
passing remarks in the context of describing the state
statute." Maj. Op. at 42. Nothing in the r ecord indicates
whether the statements were, in fact, "unemotional," and I
find it curious that the only portion of the Delaware statute
the prosecutor chose to explain was the pr ovision for
automatic review of the jury's sentence. Caldwell and its
progeny make clear that "the sentencing jury must
continue to feel the weight of responsibility so long as it has
responsibility." Sawyer, 881 F .2d at 1282. Because I believe
that the prosecutor's remarks misled the jury into thinking
the Delaware Supreme Court was the final arbiter of Riley's
fate, I dissent from this portion of the majority opinion as
well.
_________________________________________________________________

6. Although the trial court informed the jury that it was bound by the
jury's recommendation of death, the court said nothing whatsoever
about appellate review.

                               74
IV.

Conclusion

I believe this is an appropriate case for the issuance of   a
writ of habeas corpus. One of the principal objections to   the
operation of the death penalty in this country is that it   is
applied unevenly, particularly against poor black
defendants. I am afraid that the majority's decision will   do
nothing to dispel that view.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               75