2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-24-2002

Gattis v. Snyder

Precedential or Non-Precedential:

Docket 99-9006

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Recommended Citation

"Gattis v. Snyder" (2002). 2002 Decisions. Paper 40.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/40
Filed January 24, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-9006 

ROBERT ALLEN GATTIS, Appellant 

v. 

ROBERT SNYDER, Warden, 

Delaware Correctional Center 

On Appeal From the United States District Court 

For the District of Delaware 

(D.C. Civ. No. 97-cv-00619) 

District Judge: Roderick R. McKelvie 

Argued: July 12, 2001 

Before: Becker, Chief Judge, Scirica and Greenberg,

Circuit Judges. 

(Filed: January 24, 2002) 

 KEVIN J. O'CONNELL, ESQUIRE 

 (ARGUED) 

 831 North Tatnall Street, Suite 200 

 Wilmington, DE 19801 

 Counsel for Appellant 
 LOREN C. MEYERS, ESQUIRE 

 (ARGUED) 

 Chief of Appeals Division 

 Department of Justice 

 State Office Building 

 820 N. French Street 

 Wilmington, DE 19801 

 Counsel for Appellee 

OPINION OF THE COURT 

BECKER, Chief Judge. 

This is a death penalty appeal which presents, inter alia, 

a question as to the method of dealing with a mixed motive 

Batson challenge. Robert Allen Gattis, a prisoner on 

Delaware's death row, appeals from the judgment of the 

District Court denying his petition for a writ of habeas 

corpus. Gattis v. Snyder, 46 F. Supp. 2d 344 (D. Del. 1999). 

The District Court found all of his claims to be procedurally 

barred, meritless or noncognizable. However, it found the 

five claims which it addressed on the merits to meet the 

standards for a certificate of appealability. These claims 

are: (1) that trial delays denied Gattis the right to a speedy 

trial; (2) that his Fourteenth Amendment rights were 

violated by an improper peremptory challenge; (3) that trial 

counsel were ineffective; (4) that the sentencing court 

violated Gattis' constitutional rights by sentencing him 

under Delaware's revised death penalty even though the 

crime of which he was convicted occurred prior to the 

statute's enactment; and (5) that the Delaware Supreme 

Court denied him due process when it affirmed his 

conviction and death sentence on collateral review based on 

a different factual basis from that argued to the jury. 

Because Gattis has not asked this Court to expand the 

scope of the certificate of appealability to include any of the 

other claims he presented in his habeas corpus petition, 

our review is confined to those five claims. 

Gattis' contention that application of the amended death 

penalty statute to him violates the ex post facto clause 

 2 
because he committed the crime eighteen months prior to 

the enactment of the amendment has already been rejected. 

See Hameen v. State of Delaware, 212 F.3d 226 (3d Cir. 

2000), cert. denied, 121 S. Ct. 1365 (2001). Hence we need 

not discuss it further. We will, however, address each of 

Gattis' other contentions, and, finding them without merit, 

will affirm. The question of particular significance is the 

manner of dealing with an attack on a peremptory 

challenge pursuant to Batson v. Kentucky, 476 U.S. 79 

(1986), where the prosecutor's motives related not only to 

the prospective jurors' race (or gender), but also to factors 

that were properly considered. We hold that the state 

courts' application of "dual motivation" analysis to Gattis' 

Batson challenge did not result in a decision that was 

"contrary to, or involved an unreasonable application of, 

Federal law, as determined by the Supreme Court of the 

United States." 28 U.S.C. S 2254(d)(1). 

I. Facts and Procedural History 

In May 1990 a Delaware Grand Jury charged Gattis with 

first degree murder and related crimes arising out of the 

shooting of his girlfriend, Shirley Y. Slay. The Office of the 

Public Defender assigned Richard M. Baumeister and John 

H. McDonald to represent Gattis. Baumeister contacted 

Elizabeth Dewson, the Public Defender's Office's psychoforensic evaluator, to interview Gattis and subsequently 

arranged further evaluation by Cono Galliani, Ph.D. The 

Superior Court initially set a trial date of November 1, 

1990, but granted a continuance so that Gattis could be 

evaluated by a neurologist. The new trial date, March 20, 

1991, was again postponed so that additional medical tests 

could be performed on Gattis. After the court set a new trial 

date of May 20, 1991, the state sought a postponement, to 

which Baumeister did not object because Gattis' 

psychological and neurological examinations would not be 

complete until July or August. At a hearing on May 29, 

1991, Gattis expressed concern at the delays but agreed to 

postpone trial until November 26, 1991 to give counsel 

more time to prepare the case. 

In the interim, on November 4, 1991, Governor Castle 

signed Senate Substitute 1 for Senate Bill 79, amending 

 3 
Del. Code Ann. tit. 11, S 4209 relating to the imposition of 

the death penalty; the terms of the amendments would 

apply to all defendants tried or sentenced after its effective 

date. Pursuant to the amended statute, at the penalty 

phase the jury recommends whether to impose the death 

penalty based on its response to the two questions set forth 

in the margin.1 The court is not bound by the jury's 

recommendation. Rather, section 4209, as amended, 

requires the judge to impose a death sentence after

considering the recommendation of the jury if the judge 

finds: 

 a. Beyond a reasonable doubt at least 1 statutory 

 aggravating circumstance; and 

 b. By a preponderance of the evidence, 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 the aggravating 

 circumstances found by the court to exist outweigh the 

 mitigation circumstances found by the court to exist. 

Del. Code Ann. tit. 11, S 4209(d)(1)a-b (1995). Pursuant to 

the version of S 4209 in existence before November 4, 1991, 

the death penalty could not be imposed unless the jury had 

unanimously recommended that sentence. 

In the wake of this enactment, and pursuant to Delaware 

Supreme Court Rule 41, the Delaware Superior Court 

certified questions of law to the Delaware Supreme Court 

_________________________________________________________________ 

1. The questions are: 

 1. Whether the evidence shows beyond a reasonable doubt the 

 existence of at least 1 aggravating circumstance as enumerated in 

 subsection (e) of this section; and 

 2. Whether, by a preponderance of the evidence, after weighing all 

 relevant evidence in aggravation or mitigation which bear upon the 

 particular circumstances or details of the commission of the 

offenses 

 and the character and propensities of the offender, the aggravating 

 circumstances found to exist outweigh the mitigating circumstances 

 found to exist. 

Del. Code Ann. tit. 11, S 4209(c)(3)a.1-2 (1995). 

 4 
concerning whether the amended statute violated the

United States Constitution or the Delaware Constitution. 

Defendants awaiting trial for first degree murder whose 

alleged crimes occurred before the effective date of the new 

law were given an opportunity to participate in the

certification process. Gattis participated. The Superior 

Court issued an Administrative Directive postponing all 

trials and penalty hearings in capital first degree murder 

cases while the Delaware Supreme Court considered the 

certified questions. In February 1992 the Delaware 

Supreme Court responded, finding that section 4209, as 

amended, did not violate either constitution. State v. Cohen, 

604 A.2d 846 (Del. 1992). 

Meanwhile, in January 1992, the Office of the Public 

Defender moved for leave to withdraw as counsel. The court 

granted the motion and appointed Howard F. Gillis to 

represent Gattis, but Gillis withdrew from the case due to 

a health problem. On March 5, 1992, the court appointed 

Jerome M. Capone to represent Gattis. Five days later, the 

court scheduled trial to commence on September 9, 1992. 

On March 30, 1992, the court appointed Joseph M. 

Bernstein as co-counsel. 

Trial finally commenced on September 1, 1992. On 

September 22, 1992, the jury found Gattis guilty of first 

degree murder, first degree burglary, possession of a deadly 

weapon by a person prohibited, and two counts of 

possession of a deadly weapon during the commission of a 

felony. After the penalty hearing, the jury found 

unanimously that the state had proved beyond a 

reasonable doubt the existence of both of these statutory 

aggravating circumstances. Ten out of twelve jurors also 

found, by a preponderance of the evidence, that the

aggravating circumstances outweighed the mitigating

circumstances. Based on his review of the jury's 

recommendation and additional argument from the parties, 

the trial judge determined that the state had established 

beyond a reasonable doubt the existence of two statutory 

aggravating circumstances and that the aggravating 

circumstances outweighed the mitigating circumstances. 

Accordingly, on October 29, 1992, the Court ordered that 

Gattis be executed by lethal injection. 

 5 
On direct appeal, Gattis asserted various claims of error 

relating to the admissibility of evidence, that the death 

penalty was not proportionate to the offense, and that the 

jury was not randomly selected. After remand for an

evidentiary hearing on one issue, the Delaware Supreme 

Court affirmed. Gattis v. State, 637 A.2d 808 (Del.), cert. 

denied sub nom. Gattis v. Delaware, 513 U.S. 843 (1994). 

Gattis then moved for post-conviction relief, which was 

denied, and also filed an amended motion for postconviction relief.2 The Superior Court found all of Gattis' 

claims to be procedurally defaulted and/or meritless. 

However, the court granted Gattis' motion for reargument 

with regard to his claim that counsel was ineffective for 

failing to investigate an accidental shooting defense before 

trial. Unpersuaded, the court later denied Gattis' motion for 

post-conviction relief. 

On appeal of his collateral challenge, Gattis argued, inter 

alia, that a forensic scientist, Stuart H. James, would have 

testified at trial that the prosecution's theory of the case 

was physically impossible. After argument, the Delaware 

Supreme Court remanded the matter to the Superior Court 

to determine whether the state's theory was physically 

impossible. The court also directed the Superior Court to 

consider whether the state improperly excluded a potential 

_________________________________________________________________ 

2. Gattis presented the following claims: (1) the state withheld evidence 

and counsel was ineffective for failing to raise the issue at trial or on 

appeal; (2) he was denied his right to a speedy trial, resulting in his 

being sentenced under the amended death penalty statute; (3) counsel 

was ineffective for failing to pursue this claim at trial and on direct 

appeal; (4) persons opposed to the death penalty were excluded for cause 

from the jury; (5) the state improperly used peremptory challenges to 

remove persons opposed to the death penalty; (6) the state made 

prejudicial remarks concerning inadmissible and inflammatory evidence 

during its opening statement; (7) irrelevant and prejudicial evidence was 

admitted; (8) the state made improper and prejudicial remarks during its 

closing statement; (9) counsel were ineffective for failing to perform an 

investigation to develop his account of the events until mid-way through 

the trial; (10) the death penalty statute violates the Eighth and 

Fourteenth Amendments; and (11) sentencing him under the amended 

death penalty statute violated his rights to due process and equal 

protection under the Fourteenth Amendment. 

 6 
juror, Wilfred Moore, for gender-related reasons. The 

Superior Court found both claims meritless. After the 

Delaware Supreme Court affirmed, Gattis v. State , 697 A.2d 

1174 (Del. 1997), cert. denied sub nom. Gattis v. Delaware, 

522 U.S. 1124 (1998), the Superior Court rescheduled 

Gattis' execution for January 9, 1998. 

On November 25, 1997, Gattis filed in the District Court 

for the District of Delaware a petition for a writ of habeas 

corpus in which he raised ten claims. The District Court 

granted Gattis' motions for a stay of execution, 

appointment of counsel and expansion of the record, but 

denied his motion for an evidentiary hearing. Importantly, 

after the respondent filed its answering brief, Gattis filed 

the affidavit of Thomas J. Saunders, a capital litigation 

attorney, in which he stated inter alia that Baumeister's 

failure to object to postponing Gattis' trial, even though he 

was on notice that Senate Bill 79 could affect Gattis' rights, 

and his failure to inform Gattis that the proposed changes 

to the death penalty statute could affect his rights after a 

certain date, compromised Gattis' right to counsel and 

prejudiced his defense. The District Court found all of 

Gattis' claims to be meritless, procedurally defaulted, or 

non-cognizable and denied his petition. Gattis v. Snyder, 46 

F. Supp. 2d 344 (D. Del. 1999). Nevertheless, as noted 

above, the court issued a certificate of appealability with 

regard to the five claims which it denied on the merits. 

Gattis v. Snyder, No. 97-619 (D. Del. March 25, 1999). 

Gattis filed a motion for reargument, which the court 

denied. Gattis v. Snyder, No. 97-619 (D. Del. August 26, 

1999). This timely appeal followed. Because Gattis has not 

sought to expand the scope of the District Court's 

certificate of appealability, our review is limited to those five 

claims. 

II. Standard of Review 

Gattis' habeas corpus petition was filed after April 1996. 

As a result, the District Court's review of Gattis' claims was 

limited by AEDPA. Pursuant to 28 U.S.C. S 2254(d):

 An application for a writ of habeas corpus on behalf of 

 a person in custody pursuant to the judgment of a 

 7 
 State court shall not be granted with respect to any 

 claim that was adjudicated on the merits in State court 

 proceedings unless the adjudication of the claim-- 

 (1) resulted in a decision that was contrary to, or 

 involved an unreasonable application of, clearly 

 established Federal law, as determined by the Supreme 

 Court of the United States. 

In Williams v. Taylor, 529 U.S. 362 (2000), the Court held 

that "[u]nder the `contrary to' clause, a federal habeas court 

may grant the writ if the state court arrives at a conclusion 

opposite to that reached by [the Supreme] Court on a 

question of law or if the state court decides a case 

differently than [the Supreme] Court has on a set of 

materially indistinguishable facts." Id. at 412-13. A state 

court decision is an "unreasonable application" if the court 

identifies the correct governing legal rule from the Supreme 

Court's cases but unreasonably applies it to the facts of the 

particular case or if the state court either unreasonably 

extends a legal principle from the Supreme Court's 

precedent to a new context where it should not apply or 

unreasonably refuses to extend that principle to a new 

context where it should apply. Id. at 407. This is an 

objective test. Id. at 410. A federal court may not grant a 

writ of habeas corpus merely because it concludes in its 

independent judgment that the relevant state court decision 

applied clearly established federal law erroneously or 

incorrectly. Jermyn v. Horn, 266 F.3d 257, 281-282 (3d Cir. 

2001). "A contrary holding would amount to de novo review 

which we have held is proscribed by the AEDPA." Werts v. 

Vaughn, 228 F.3d 178, 197 (3d Cir. 2000), cert. denied, 121 

S. Ct. 1621 (2001). We review the District Court's 

application of section 2254(d) de novo. Banks v. Horn, 271 

F.3d 527 (3d Cir. 2001). 

III. Trial Delay 

A. Introduction 

In his post-conviction motion Gattis argued that he was 

denied his rights to a speedy trial, due process, and equal 

protection as result of the delays preceding his trial, and 

 8 
that trial counsel were ineffective for failing to pursue his 

right to a speedy trial. Gattis contends that as a result of 

the delay he was sentenced under the revised death penalty 

statute and was prejudiced because under the previous law 

he could not have received the death penalty if, as here, the 

jury was not unanimous in recommending the death 

penalty. In his brief to the Delaware Supreme Court Gattis 

presented the claim in a mere two pages, offering little 

argument, asserting without explanation that the 28 month 

period of delay is "presumptively prejudicial;" that "the 

delays occasioned by Gattis first counsels' continued 

requests for medical testing were unreasonable and highly 

prejudicial;" that counsels' "lack of diligence" caused "delay 

which may cost him his life;" and that the delay 

"occasioned by the malfeasance of Gattis' public defenders 

should not be attributed to Gattis in the court's speedy trial 

analysis." 

The Superior Court found the claim procedurally 

defaulted but addressed it on the merits because Gattis 

had received the death penalty. Applying the four factors 

set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972) -- 

the length of the delay, the reasons for the delay, the 

defendant's assertion of his right, and prejudice to the 

defendant -- the court found the claim meritless. Most of 

the delay was occasioned by counsels' requests for 

continuances in order to obtain medical testing for Gattis. 

The court determined that those continuances could not be 

attributed to the state and that they should be subtracted 

from the delay for purposes of a speedy trial analysis. 

Further delay was caused by the temporary stay pending a 

determination of questions certified to the Delaware 

Supreme Court, a process in which Gattis participated 

along with eight other defendants. Thus, rather than 

asserting his right to a speedy trial, "he took affirmative 

steps guaranteed to prolong the pretrial waiting period." 

State v. Gattis, 1995 WL 790961 at *7 (Del. Super. 

December 28, 1995). Finally, the court rejected Gattis' 

prejudice argument. 

The Delaware Supreme Court made no reference to 

procedural default, addressing this claim exclusively on the 

merits. In doing so, the court essentially followed the 

 9 
Superior Court's analysis, rejecting Gattis' assertions of 

prejudice for lack of substantiation. "Because Gattis fails to 

make and substantiate specific allegations of actual 

prejudice, and because we find no evidence of prejudice to 

Gattis resulting from the delay, we conclude that the 

Superior Court did not abuse its discretion in denying 

Gattis' motion. . . ." Gattis v. State, 697 A.2d at 1180. 

In his habeas corpus petition, Gattis asserts that his 

right to "a speedy trial was violated when he was not tried 

for an inordinately long time after indictment, prejudicing 

his right to a fair trial. . . ." As in state court, in his opening 

brief in support of his petition Gattis complains that 

counsels' continued requests for worthless medical testing 

were unreasonable and prejudicial, resulting in an 

eighteen-month delay which should not be attributed to 

Gattis. In his reply brief, Gattis responded to the state's 

argument that the claim was defaulted by arguing that 

counsels' ineffectiveness is cause for the default. He 

complains that counsel failed to pursue his speedy trial 

claim, that counsel seemed unaware that an amendment to 

the death penalty statute was pending, and that state court 

decisions prevented adequate factual development of the 

issue, resulting in insufficient record for its proper 

resolution. 

Gattis also filed the Saunders affidavit, which notes, inter 

alia, that the amendment to the death penalty statute had 

been introduced in the Delaware Senate on March 26, 1991 

and that on March 31st the Wilmington News Journal had 

noted that the bill had been sent to the judiciary 

committee. Nevertheless, counsel evidently did not know of, 

or ignored, the possible change in the law; he neither 

mentioned it at the May hearing nor discussed its 

significance with Gattis. The affidavit opines that adequate 

assistance of counsel, especially in a death penalty case, 

requires counsel to be aware of any law that may affect his 

client's interests, especially the sorts of changes

contemplated by the amendment in question here. 

Moreover, the affidavit represents that there was no need 

for a postponement beyond July or August. 

Because the Delaware Supreme Court had addressed the 

claim solely on the merits, the District Court did so as well, 

 10 
rather than dismissing the claim as defaulted at the state's 

request. The court found the claim meritless because the 

Delaware Supreme Court's analysis of the claim was not 

contrary to clearly established federal law. Gattis v. Snyder, 

46 F. Supp. 2d at 372. Because the Superior Court 

expressly addressed the claim on the merits regardless of 

whether it was procedurally defaulted, and because the 

Delaware Supreme Court addressed the claim exclusively 

on the merits without any reference to procedural default, 

we agree with the District Court that the claim is not 

defaulted. Harris v. Reed, 489 U.S. 255 (1989). 

B. Proper Characterization of the Claim 

On reading Gattis' initial brief, we found it puzzling that 

Gattis cast this claim in terms of a violation of his right to 

a speedy trial rather than of his right to effective assistance 

of counsel pursuant to Strickland v. Washington , 466 U.S. 

668 (1984). Accordingly, at oral argument we asked Gattis' 

able federal habeas attorney whether his first claim might 

not be better understood as an ineffectiveness claim, and 

ordered the parties to address in supplemental briefing 

whether such an ineffectiveness claim had been presented 

to the District Court; whether it had been exhausted in 

state court; whether it was procedurally defaulted; and 

whether it was within the scope of the certificate of 

appealability. In his supplemental brief Gattis argues that 

he did not exhaust the claim in state court, that the claim 

is not procedurally defaulted, and that it is implicitly 

included in the certificate of appealability; he does not 

address whether the claim was presented to the District 

Court. In contrast, the state argues that the claim is 

procedurally barred because it was not presented in state 

court and because no further state court review is available 

to Gattis. Moreover, Gattis did not present the claim to the 

District Court, so that the certificate of appealability should 

not be deemed to include it. 

As our outline of the procedural history of Gattis' speedy 

trial claim indicates, the claim he presented to the District 

Court is essentially the same as the claim he presented in 

state court. As a result, he exhausted state remedies with 

regard to that claim. Ipso facto, if Gattis' claim as presented 

 11 
in the District Court should be construed as an 

ineffectiveness claim, the claim, so construed, is also 

exhausted. Conversely, if it was not exhausted, it was not 

presented in the District Court either; it makes no sense to 

construe his claim as an ineffectiveness claim in state court 

but not in federal court, and vice versa. 

The problem for Gattis is that even though there seems 

to be a potential ineffectiveness claim struggling to escape 

from the confines of his speedy trial claim, he never 

released it by presenting a coherent, properly articulated 

claim under Strickland in either state court or in his federal 

habeas corpus petition. As Gattis acknowledges in his 

supplemental brief, "[b]oth the legal theory and the facts 

underpinning the federal claim must have been presented 

to the state courts . . . and the same method of legal 

analysis must be available to the state court as will be 

employed in the federal court." Evans v. Court of Common 

Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992), cert. petition 

dismissed, 506 U.S. 1089 (1993). Based on Gattis' 

submissions in state court, described above, we are

constrained to agree with his admission that he"did not 

. . . serve fair notice [on the state courts] that he was 

asserting an ineffective assistance of counsel claim within 

his speedy trial claim." But neither did he present such a 

claim to the District Court. It is not sufficient, as Gattis 

implies, that the District Court had the benefit of Saunders' 

affidavit. Gattis did not present an appropriate 

ineffectiveness claim except as "cause" for the procedural 

default asserted by the state and did not, along with 

Saunders' affidavit, file a motion to amend his petition to 

include one. We cannot retroactively amend Gattis' petition 

on his behalf. 

But even if the claim had been exhausted and presented 

to the District Court we would likely find it without merit. 

As we have stated, "there is no general duty on the part of 

defense counsel to anticipate changes in the law," Gov't of 

the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989), 

while the reasons given by the Superior Court for not 

finding prejudice under Barker would also apply to an 

 12 
ineffectiveness claim. State v. Gattis, 1995 WL 790961 at *8 

(Del. Super. 1995).3 

C. The Merits 

We agree with the District Court that the state court 

decisions are not contrary to clearly established federal law. 

Nor do they involve an unreasonable application of clearly 

established federal law. Aside from the reasons provided by 

those courts, we note that Gattis' claim suffers from a 

perhaps more fundamental defect: the right to a speedy 

trial essentially protects defendants against delays caused 

by the government. If the delay is attributable exclusively to 

the defendant, "he will be deemed to have waived his 

speedy trial rights entirely." United States v. Manning, 56 

F.3d 1188, 1195 (9th Cir. 1995). Similarly, portions of the 

delay which are attributable to the defendant or his counsel 

"will not be considered for purposes of determining whether 

the defendant's right to a speedy trial has been infringed." 

Wells v. Petsock, 941 F.2d 253, 258 (3d Cir. 1991), cert. 

denied sub nom., 505 U.S. 1223 (1992); United States v. 

Dent, 149 F.3d 180, 183 (3d Cir. 1998), cert. denied, 525 

U.S. 1085 (1999). Because the only delays of which Gattis 

complains were caused by his own counsel, there is no 

merit to his speedy trial claim. 

IV. The Batson Issue 

During jury selection the prosecutor exercised a 

peremptory challenge against an elderly African-American 

male, Wilfred Moore. According to Gattis, this was done 

merely because Moore was a man, in violation of J.E.B. v. 

Alabama ex rel. T.B., 511 U.S. 127 (1994) (holding that 

peremptory challenges may not be exercised solely on the 

basis of gender). But that is misleading. Rather, the 

_________________________________________________________________ 

3. We note that in his filings in this Court Gattis seems to argue that 

the 

claim was presented as a speedy trial claim because the state courts 

would not allow him an opportunity to develop a factual basis for the 

claim. We do not find this argument persuasive because Gattis blamed 

counsel for the delay from the outset. It thus appears that what Gattis 

lacked was less a detailed factual record than the appropriate legal 

analysis. 

 13 
following exchange took place between Moore and the

prosecutor: 

 Q: If the facts and circumstances so warranted, could 

 you recommend a sentence of death? 

 A: I don't know, sir. 

 Q: . . . . If the facts and circumstances so warrant, 

 could you recommend a sentence of life 

 imprisonment? 

 A: Yes, sir, I could. 

 Q: . . . . Now, you did indicate that you would follow 

 the Court's instructions on the law whether you 

 agreed with that law or not. . . . Taking those 

 instructions in mind, then, and taking into 

 account all the facts and circumstances, now, if 

 the facts and circumstances so warrant and if the 

 Court's instructions so permit, could you 

 recommend a sentence of death? 

 A: It's like going to war. I don't know if I-- you know, 

 until the time comes, truly in my heart would know 

 if I could bring a bullet up there. I don't know until 

 the time comes. 

 Q: Okay. Philosophically, generally, you're not 

 opposed to the death penalty? 

 A: I believe in the death penalty, but I don't know if 

 I could be the one to say, yes, sentence this 

 defendant to death until the time comes. 

The state then asked the court to strike Moore for cause. 

The court found that Moore's responses did not meet the 

standard in Witherspoon v. Illinois, 391 U.S. 510 (1968) and 

declined to exclude him for cause. Accordingly, the state 

exercised a peremptory challenge against Moore. After 

Moore was excused, the state sought the court's permission 

to make a record of its reasons for the strike, which were 

as follows: 

 Number one, I believe that this juror was very, very 

 conservative in his application of the possible 

 application of the death penalty [sic]. He answered very 

 14 
 quickly yes to the possibility of imposing a life sentence 

 under the appropriate facts and circumstances, yet, to 

 our belief, had a very difficult time in answering 

 whether or not he could impose the death penalty 

 under the appropriate circumstances. He seemed very, 

 very conservative in the application of the death 

 penalty. 

 Number two, he is an older gentleman and we have, I 

 believe, four or five older gentlemen on the jury panel 

 already. And I would suggest that it's the state's point 

 of view that we would prefer to have some more women 

 on the jury. 

Gattis brought this claim during post-conviction 

proceedings. On appeal, the Delaware Supreme Court 

remanded the matter to the Superior Court to make factual 

findings and conclusions of law regarding this issue.4 On 

remand, the state argued that even though one of the 

prosecutor's reasons for the challenge was based on gender, 

the paramount reason was Moore's reluctance to impose 

the death penalty. The Superior Court noted that the 

Supreme Court has held in other areas of equal protection 

jurisprudence that an action motivated in part by an 

impermissible reason will withstand challenge if the same 

action would have been taken in the absence of the 

impermissible motivation.5 Relying on United States v. 

Tokars, 95 F.3d 1520 (11th Cir. 1996), cert. denied, 520 

U.S. 1151 (1997); Wallace v. Morrison, 87 F.3d 1271 (11th 

Cir.), cert. denied, 519 U.S. 1044 (1996); and United States 

v. Darden, 70 F.3d 1507 (8th Cir. 1995), cert. denied, 517 

U.S. 1149 (1996), the court applied the following"dual 

motivation" test: after the defendant makes a prima facie 

showing of discrimination, the state may raise the 

affirmative defense that the strike would have been

exercised on the basis of the gender-neutral reasons and in 

the absence of the discriminatory motive. If the state makes 

such a showing, the peremptory challenge survives 

constitutional scrutiny. 

_________________________________________________________________ 

4. It also remanded for similar proceedings concerning the state's theory 

of the murder. See infra at 20-21. 

5. The court cited Mt. Healthy City Sch. Bd. of Educ. v. Doyle, 429 U.S. 

274 (1977). 

 15 
The Superior Court discerned no intent to discriminate 

against men. At the time Moore was struck, four men and 

three women had been selected for the jury. The state had 

used four of its challenges to remove two men and two 

women, and after Moore was removed the state used two 

strikes to remove men and three to remove women. In its 

final form the jury consisted of six women and six men, 

with three women and one man as alternates. Moreover, 

the state's explanation for excluding Moore focused on his 

attitudes towards the death penalty. The Superior Court 

concluded: 

 There is nothing in the record which indicates that the 

 prosecution was driven by invidious gender-based 

 stereotypes. . . . Based on the totality of the 

 circumstances, the Court finds that the State has 

 carried its burden of showing that the prosecutor 

 would have challenged Moore even in the absence of 

 any gender-related reason. In regard to the 

 prosecutor's gender-based motivation, the Court is 

 satisfied that this consideration was de minimis. The 

 prosecutor stated that several men had already been 

 selected and that he wanted to select a few more 

 women. On its face, this statement indicates that the 

 prosecutor was trying to seat a jury with a diverse and 

 representative character. . . . In light of the fact that 

 four men had already been selected for Gattis' jury 

 when Moore was challenged, it is not plausible that the 

 prosecutor's stated desire for a mix of men and women 

 was a pretext for a desire to exclude men because of 

 invidious, archaic and overbroad stereotypes. 

State v. Gattis, 1996 WL 769328 *6 (Del. Super.). 

Accordingly, the Superior Court found the claim meritless. 

Echoing the Superior Court's reasoning, the Delaware 

Supreme Court found "no abuse of discretion in the 

Superior Court's determination." Gattis v. State, 697 A.2d 

at 1184. 

The District Court found that Gattis had not presented 

clear and convincing evidence to overcome the presumption 

of correctness afforded state courts' factual findings by 28 

U.S.C. S 2254(e)(1) and that the Delaware Supreme Court's 

rejection of Gattis' claim was "not contrary to clearly 

 16 
established federal law, and did not rely on an 

unreasonable application of the facts." Gattis v. Snyder, 46 

F. Supp. 2d at 379. The court concluded that the claim 

fails pursuant to 28 U.S.C. S 2254(d). 

The Supreme Court has not addressed a case involving 

mixed motives in jury selection. Accordingly, we apply the 

"unreasonable application" prong of S 2254(d)(1) rather than 

the "contrary to" prong. Jermyn v. Horn , 266 F.3d 257 (3d 

Cir. 2001). As noted above, a state court decision is an 

"unreasonable application" of federal law if the court 

identifies the correct governing legal rule from the Supreme 

Court's cases but unreasonably applies it to the facts of the 

particular case or if the state court either unreasonably 

extends a legal principle from the Supreme Court's 

precedent to a new context where it should not apply or 

unreasonably refuses to extend that principle to a new 

context where it should apply. Williams v. Taylor, 529 U.S. 

at 407. In addressing Gattis' claim, the Superior Court 

correctly identified the main Supreme Court decisions -- 

Batson, J.E.B., and Mt. Healthy-- and, citing Wallace and 

Tokars, applied mixed motive analysis. 

In Howard v. Senkowski, 986 F.2d 24 (2d Cir. 1993), the 

court addressed for the first time an attack on a 

peremptory challenge pursuant to Batson v. Kentucky, 476 

U.S. 79 (1986), where the prosecutor's motives were

"mixed," i.e., involved not only the prospective juror's race 

but also other factors that were properly considered. 

Because the reasoning in Batson fell "squarely within the 

[Supreme Court's] tradition of equal protection 

jurisprudence," id. at 26, the court began its analysis by 

noting that: 

 In the realm of constitutional law, whenever challenged 

 action would be unlawful if improperly motivated, the 

 Supreme Court has made it clear that the challenged 

 action is invalid if motivated in part by an

 impermissible reason but that the alleged offender is 

 entitled to the defense that it would have taken the 

 same action in the absence of the improper motive. See 

 Mt. Healthy City School Board of Education v. Doyle , 

 429 U.S. 274, 284-87, 97 S.Ct. 568, 574-76, 50 

 L.Ed.2d 471 (1977); Village of Arlington Heights v. 

 17 
 Metropolitan Housing Development Corp., 429 U.S. 252, 

 270 n. 21, 97 S.Ct. 555, 566 n. 21, 50 L.Ed.2d 450 

 (1977). 

Id. at 26. The court concluded: 

 Batson challenges may be brought by defendants who 

 can show that racial discrimination was a substantial 

 part of the motivation for a prosecutor's peremptory 

 challenges, leaving to the prosecutor the affirmative 

 defense of showing that the same challenges would 

 have been exercised for race-neutral reasons in the 

 absence of such partially improper motivation. In 

 concluding that dual motivation analysis applies to a 

 Batson challenge, we do no more than apply that 

 analysis precisely as previously enunciated by the 

 Supreme Court in prior dual motivation cases such as 

 Arlington Heights. . . . [O]nce the prosecutor's partially 

 improper motivation had been established, Howard was 

 entitled to prevail unless, under dual motivation 

 analysis, the prosecutor could sustain his burden of 

 showing that he would have exercised his challenges 

 solely for race-neutral reasons. 

Id. at 30. 

Other courts have followed suit, applying mixed motive 

analysis to situations where not only race, but also gender 

was a reason for excluding a potential juror. See, e.g., 

Tokars (gender); Wallace (race); Darden (youth, 

inexperience, and alleged young black female tendency "to 

testify on behalf and be more sympathetic toward 

individuals who are involved in narcotics"); Jones v. Plaster, 

57 F.3d 417, 421-22 (4th Cir. 1995) (race -- applying dual 

motivation but remanding to District Court for clarification 

of findings regarding whether the strike was exercised for a 

discriminatory purpose and whether it would have been 

exercised in the absence of the discriminatory purpose). We 

find the reasoning of these cases persuasive. 

Because we agree with Howard and the other cases cited 

that mixed motive analysis is appropriate in this context, 

we cannot conclude that the Superior Court unreasonably 

extended a legal principle from the Supreme Court's

precedent. On the facts, the Superior Court's discussion, 

 18 
quoted supra at 16, rings true. We thus reject Gattis' 

contention that the record "clearly and convincingly" rebuts 

the Superior Court's factual conclusions, and hence we do 

not agree that the Superior Court (and, ipso facto, the 

Delaware Supreme Court) failed the "unreasonable 

application" prong of section 2254(d). Accordingly, there is 

no merit to this claim. 

V. Counsel's Failure to Investigate 

Gattis complains that counsel failed to develop his

version of the facts, to investigate the relevant facts, or to 

interview relevant witnesses. He argues that if counsel had 

investigated the crime scene properly they could have 

shown at trial that the state's account of the crime was 

implausible. The government argued to the jury that Gattis 

returned to Slay's apartment in a fit of jealous rage, kicked 

in the door, walked up to her and shot her between the 

eyes, "execution-style." However, the fact that the victim's 

feet prevented the door from opening more than twelve 

inches means that he could not have walked up to her and 

shot her. Rather, it supports Gattis' contention that the 

gun went off accidentally as he was kicking in the door. 

Even though counsel could have learned of this before trial, 

they did not realize that Gattis' story was plausible until, 

several days into the trial, they entered Slay's apartment for 

the first time (they had visited the building before trial but 

had not entered the apartment). Gattis places much 

reliance on James' testimony that Gattis' version of what 

happened was more plausible than the state's. He 

maintains that counsels' inadequate performance affected 

not only the guilt phase, but also sentencing: the nature of 

the killing was central to the State's efforts to persuade the 

jury and sentencing judge that death was the appropriate 

punishment. 

The Superior Court found that Gattis met neither prong 

of Strickland. The court denied Gattis' request for a hearing. 

It placed greater credence in counsels' affidavits than 

Gattis', and concluded that counsel took reasonable

investigative measures in light of the information given 

them by Gattis. The court also concluded that even if 

counsels' performance was unreasonable, Gattis had not 

 19 
shown prejudice, in part because "his version of the 

incident . . . [is] simply unworthy of belief.. . . It is 

inconceivable that even one juror would have accepted the 

accident defense in this case." State v. Gattis, 1995 WL 

790961 *19-20 (Del. Super.). 

On appeal, Gattis argued that James would testify, if 

given the opportunity, that the prosecution's case was 

unsupportable. The Delaware Supreme Court remanded the 

case to the Superior Court to hold an evidentiary hearing to 

determine whether James really would so testify. Despite 

concluding that the threshold standard for holding a 

hearing was not met, the Superior Court held a hearing to 

allow the parties to present evidence in support of their 

respective positions. After a detailed analysis of that 

evidence, the Superior Court concluded that there was no 

prejudice to Gattis. James would have testified that Gattis' 

story was more plausible than the state's, but would also 

have stated that he could not determine certain crucial 

facts, could not confirm Gattis' version of the murder, and 

could not disprove the state's theory of the murder. 

 Furthermore, nothing in James's assertions could 

 dispel the impression of an angry, violent man who 

 intentionally set out to kill Shirley Slay by shooting her 

 in the face in an execution-style slaying. It is difficult 

 to conceive that James' testimony would have elevated 

 the accident defense to a plausible level. 

State v. Gattis, 1997 WL 127007 *6 (Del. Super.). After 

reviewing the evidence, the Delaware Supreme Court found 

that the Superior Court did not abuse its discretion in so 

concluding. Gattis v. State, 697 A.2d at 1184-86. 

The District Court found that Gattis had not offered any 

evidence that counsels' performance was "unreasonable or 

egregious, or caused prejudice." Gattis v. Snyder, 46 F. 

Supp. 2d at 380. Furthermore, the District Court found 

"that the Delaware Supreme Court did not unreasonably 

apply clearly established federal law, and did not base its 

decisions on an unreasonable application of the facts." Id. 

We agree. The state courts correctly identified the

relevant Supreme Court precedent -- Strickland -- and 

accurately described the two familiar tests which the 

 20 
prisoner must pass to obtain relief, i.e., show that counsel's 

performance was objectively unreasonable and "that there 

is a reasonable probability that, but for counsel's

unprofessional errors the result of the proceeding would 

have been different." Strickland, 466 U.S. at 694. Moreover, 

the state courts' application of Strickland to the facts before 

them was reasonable. Counsel presented Gattis' account of 

the facts at trial: not only did Gattis testify that he did not 

mean to pull the trigger when he fired the fatal shot, but 

one of the central questions -- how far the door to Slay's 

apartment was open -- was explored in the testimony of 

three witnesses, while a fourth explained the size and 

layout of the doorway area. As a result, counsel persuaded 

the court to instruct the jury on lesser included offenses 

and to instruct the jury that if they found the shooting to 

have been accidental, they must acquit Gattis of the 

murder charge. In closing argument counsel insisted that 

when the gun went off Gattis could not have been in the 

apartment but in the hallway attempting to enter. Thus, the 

only question is whether the testimony of James or a 

similar expert would be reasonably likely to have made the 

jury believe Gattis' explanation. We agree with the Superior 

Court that this seems unlikely. 

The state courts and District Court did not separately 

address the sentencing prong of Gattis' claim, doubtless 

because there was no need to: its success turns on the 

success of the claim that counsel did not adequately 

prepare for trial. The sentencing prong also faces additional 

problems of its own. Gattis argues at length in his reply 

brief that the state's contention, and the sentencing court's 

finding, that the murder was "execution-style" played an 

important role in determining his sentence. However, the 

record does not support this contention. The government 

relied on two statutory aggravating factors -- the murder 

occurred during the commission of a burglary, and Gattis 

had previously been convicted of a violent felony-- and 

offered evidence concerning these non-statutory aggravating 

circumstances: the details of the commission of the offense, 

including Gattis' relationship with Slay, Gattis' propensity 

towards violence and threats of violence, victim impact, 

Gattis' lack of respect for authority, and his conduct while 

on court supervision. In its sentencing opinion the court 

 21 
referred to the crime as "in essence, an execution carried 

out because of the defendant's misplaced and ill-conceived 

notions of infidelity on the part of Shirley Y. Slay, and 

because Ms. Slay, tired of the abuse to which she had for 

years been subjected at the hands of the defendant, was 

attempting to start a new life with her daughter. . . ." State 

v. Gattis, 1992 WL 358030 *3 (Del. Super.) The court 

emphasized that the murder was cold-blooded, with"no 

pretense of moral or legal justifications," and that there was 

nothing to indicate that it was a crime of passion or an 

impulsive act caused by serious emotional disturbance. It 

"was the culmination of years of torment, mental torture 

and physical abuse at the hands of one who selfishly 

sought her domination and subjugation." Id. 

Thus, it seems clear that when the court referred to the 

murder as an execution, this was a summary of all the 

other factors mentioned, including the reasons for the 

murder. That it was "execution-style" was not mentioned by 

the court at all, either in its description of the aggravating 

factors or in its description of the balancing process. Id. at 

*13. Central to the court's balancing was the evidence that 

Gattis was "a manipulative, dominant, and violence-prone 

assaultive male who treated Shirley Y. Slay as a mere 

chattel, a piece of property to control as he saw fit." Id. at 

*14. In light of the court's reasoning, we conclude that 

providing an expert to argue that even if the murder was 

intentional it was not "execution-style" is not likely to have 

made any difference to the outcome at sentencing. 

VI. Denial of Due Process on Post-conviction Review

As described above, on post-conviction review, Gattis 

argued to the Delaware Supreme Court with regard to his 

ineffectiveness claims that James would, if given the 

chance, testify that the prosecution's theory of the case was 

physically impossible. On remand, at the evidentiary 

hearing the government presented video and testimony to 

show that even if the apartment door had been open only 

twelve inches it would have been possible for Gattis to 

reach around the door and shoot her. As noted above, the 

state courts found Gattis' ineffectiveness claim meritless. 

 22 
Based on these facts, in his habeas corpus petition Gattis 

claims that his due process rights "were violated when his 

conviction and death sentence were affirmed on state 

postconviction review on a theory not originally presented 

to the jury or the court that tried and sentenced him." 

According to Gattis, at trial the state argued that Gattis 

entered Slay's apartment and shot her face-to-face, not that 

he reached around the door and shot her. He relies on 

Dunn v. United States, 442 U.S. 100, 106 (1979) ("To 

uphold a conviction on a charge that was neither alleged in 

an indictment nor presented to a jury at trial offends the 

most basic notions of due process"). As far as we can 

determine, this claim has not been presented to the state 

courts and, thus, is unexhausted.6 However, because we 

agree with the District Court that the claim is meritless, 

and because the District Court could have dismissed the 

claim as meritless regardless of whether it was exhausted 

pursuant to section 2254(b)(2), we shall not vacate the 

District Court's judgment and remand for further 

proceedings with regard to this claim. 

The District Court found the claim meritless because 

Gattis' conviction and sentence are supported by either a 

theory that he shot Slay face-to-face at close range or a 

theory that he reached around the door and shot her at 

close range. The District Court also found that the state 

courts did not sustain Gattis' conviction and sentence on 

post-conviction review on different facts or on a different 

theory than was presented to the jury. The Delaware

Supreme Court stated that "the State never presented 

testimony from its witnesses nor offered any argument by 

prosecutors asserting that the door was fully open when 

the face-to-face confrontation took place," Gattis v. State, 

697 A.2d at 1185, a finding of fact presumed correct 

because Gattis has not provided clear and convincing 

_________________________________________________________________ 

6. The District Court states that Gattis presented this argument to the 

Delaware Supreme Court as one of ineffective assistance of trial counsel, 

evidently concluding that that would be sufficient for exhaustion 

purposes. Aside from the fact that it would not be sufficient (because it 

involves a completely different legal theory, Duncan v. Henry, 513 U.S. 

364 (1995)), we do not see in the record where it was expressly 

presented to the Delaware Supreme Court. 

 23 
evidence to the contrary as required by section 2254(e)(1). 

Moreover, both Dunn and the decision by the First Circuit 

Court of Appeals on which Gattis also relies, Cola v. 

Reardon, 787 F.2d 681 (1st Cir.), cert. denied, 479 U.S. 930 

(1986), involved a failure to charge the defendant in the 

indictment for the specific acts for which he was convicted, 

which is not the case here. 

The fundamental flaw in Gattis' argument is that in the 

decisions of which he complains the state courts did not 

"uphold [his] conviction on a charge that was neither 

alleged in an indictment nor presented to a jury at trial." 

Dunn, 442 U.S. at 106. The allegedly different theory of 

guilt was not presented on direct appeal in support of his 

conviction but in the course of a post-conviction hearing 

held in connection with his claim that counsel was 

ineffective for failing to present expert testimony concerning 

the implausibility of the state's account of the murder. The 

Superior Court and Delaware Supreme Court did not affirm 

his conviction based on the state's theory but merely found 

his ineffectiveness claim unpersuasive. The state's theory 

played a small role, if any, in the courts' reasoning. In this 

context Dunn and Cola are simply not applicable.7 

* * * * 

In conclusion, we find no merit in any of Gattis' claims. 

_________________________________________________________________ 

7. Even if the decisions of which Gattis complains were on direct appeal, 

his claim would still be meritless. The indictment charged Gattis with 

one count of first degree murder, the killing of Shirley Slay. It did not 

charge him with killing her in a particular manner. Moreover, Gattis was 

not convicted of this murder on the basis of evidence that he murdered 

someone else or committed a different crime; his conviction was not 

affirmed on the basis of evidence that he murdered someone else; and 

the evidence used to support the government's different accounts (to the 

extent that they are different) of what happened is exactly the same in 

each case. Indeed, it is unclear that there was a different "theory" here 

in the sense at issue in Dunn and Cola ; the only variation concerns 

precisely how Gattis killed Slay: did he kick open the door, walk up to 

Slay and shoot her at close range between the eyes or kick open the door 

and shoot her at close range between the eyes at the door, perhaps by 

reaching around it? 

 24 
Accordingly, the Order of the District Court denying the 

application for a writ of habeas corpus will be affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 25