### 2002 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

1-24-2002 

# G a tt i s v . S n y de r

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 99-9006

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_2002

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2002 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" G a tt i s v . S n y de r " (2002). 2002 D e cisio n s

. P a pe r 40.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_2002/40Filed 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 AppellantLOREN 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, inte r alia, a question as to the method of dealing with a mixed motive Batson challenge. Robert Allen Gattis, a prisoner o n Delaware's death row, appeals from the judgment of the District Court denying his petition for a writ of h abeas corpus. Gattis v. Snyder, 46 F. Supp. 2d 344 (D. De l. 1999). The District Court found all of his claims to be pr ocedurally barred, meritless or noncognizable. However, it fou nd the

five claims which it addressed on the merits to mee t 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 wer e violated by an improper peremptory challenge; (3) t hat trial counsel were ineffective; (4) that the sentencing c ourt violated Gattis' constitutional rights by sentencin g him under Delaware's revised death penalty even though the crime of which he was convicted occurred prior to t he statute's enactment; and (5) that the Delaware Supr eme 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 j ury. Because Gattis has not asked this Court to expand t he scope of the certificate of appealability to includ e any of the other claims he presented in his habeas corpus peti tion,

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 c lause

2because he committed the crime eighteen months prio r to

the enactment of the amendment has already been rej ected. See Hameen v. State of Delaware, 212 F.3d 226 (3d C ir. 2000), cert. denied, 121 S. Ct. 1365 (2001). Hence we need not discuss it further. We will, however, address e ach of Gattis' other contentions, and, finding them withou t merit, will affirm. The question of particular significanc e 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 sta te courts' application of "dual motivation" analysis t o Gattis' Batson challenge did not result in a decision that was "contrary to, or involved an unreasonable applicati on 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 wi th first degree murder and related crimes arising out of the shooting of his girlfriend, Shirley Y. Slay. The Of fice of the Public Defender assigned Richard M. Baumeister and John H. McDonald to represent Gattis. Baumeister contact ed Elizabeth Dewson, the Public Defender's Office's ps ychoforensic evaluator, to interview Gattis and subsequ ently arranged further evaluation by Cono Galliani, Ph.D. The Superior Court initially set a trial date of Novemb er 1, 1990, but granted a continuance so that Gattis coul d be evaluated by a neurologist. The new trial date, Mar ch 20, 1991, was again postponed so that additional medica l tests could be performed on Gattis. After the court set a new trial date of May 20, 1991, the state sought a postponeme nt, to which Baumeister did not object because Gattis' psychological and neurological examinations would n ot be complete until July or August. At a hearing on May 29, 1991, Gattis expressed concern at the delays but ag reed to postpone trial until November 26, 1991 to give coun sel more time to prepare the case.

In the interim, on November 4, 1991, Governor Castl e signed Senate Substitute 1 for Senate Bill 79, amen ding

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

the death penalty; the terms of the amendments woul d apply to all defendants tried or sentenced after it s effective date. Pursuant to the amended statute, at the penal ty phase the jury recommends whether to impose the dea th 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 j udge

finds:

a. Beyond a reasonable doubt at least 1 stat utory aggravating circumstance; and

b. By a preponderance of the evidence, after weighing all relevant evidence in aggravation or miti gation which bears upon the particular circumstances or d etails of

the commission of the offense and the charac ter and propensities of the offender, that the aggra vating circumstances found by the court to exist ou tweigh the mitigation circumstances found by the court to exist.

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

the version of S 4209 in existence before November 4, 1991, the death penalty could not be imposed unless the j ury had unanimously recommended that sentence.

In the wake of this enactment, and pursuant to Dela ware 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 reaso nable doubt the existence of at least 1 aggravating circumst ance as enumerated in subsection (e) of this section; and

2. Whether, by a preponderance of the eviden ce, after weighing all relevant evidence in aggravation or mitigati on which bear upon the particular circumstances or details of the c ommission of the

offenses and the character and propensities of the of fender, the aggravating circumstances found to exist outweigh the mi tigating circumstances

found to exist.

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

4concerning whether the amended statute violated the

United States Constitution or the Delaware Constitu tion. Defendants awaiting trial for first degree murder w hose alleged crimes occurred before the effective date o f the new law were given an opportunity to participate in the certification process. Gattis participated. The Sup erior Court issued an Administrative Directive postponing all trials and penalty hearings in capital first degree murder cases while the Delaware Supreme Court considered t he 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 Publi c Defender moved for leave to withdraw as counsel. Th e court granted the motion and appointed Howard F. Gillis t o represent Gattis, but Gillis withdrew from the case due to a health problem. On March 5, 1992, the court appoi nted Jerome M. Capone to represent Gattis. Five days lat er, the court scheduled trial to commence on September 9, 1 992. 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 sta tutory 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 par ties, the trial judge determined that the state had estab lished beyond a reasonable doubt the existence of two stat utory aggravating circumstances and that the aggravating circumstances outweighed the mitigating circumstanc es. Accordingly, on October 29, 1992, the Court ordered that Gattis be executed by lethal injection.

5On 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 t hat the jury was not randomly selected. After remand for an evidentiary hearing on one issue, the Delaware Supr eme Court affirmed. Gattis v. State, 637 A.2d 808 (Del. ), cert. denied sub nom. Gattis v. Delaware, 513 U.S. 843 (1 994).

Gattis then moved for post-conviction relief, which wasdenied, and also filed an amended motion for postconviction relief.2 The Superior Court found all of Gattis' claims to be procedurally defaulted and/or meritles s. However, the court granted Gattis' motion for rearg ument with regard to his claim that counsel was ineffecti ve for failing to investigate an accidental shooting defen se before trial. Unpersuaded, the court later denied Gattis' motion for post-conviction relief.

On appeal of his collateral challenge, Gattis argue d, inter alia, that a forensic scientist, Stuart H. James, w ould have testified at trial that the prosecution's theory of the case was physically impossible. After argument, the Dela ware Supreme Court remanded the matter to the Superior C ourt to determine whether the state's theory was physica lly impossible. The court also directed the Superior Co urt to consider whether the state improperly excluded a po tential

___________________________________________________ ______________

2. Gattis presented the following claims: (1) the s tate withheld evidence and counsel was ineffective for failing to raise th e issue at trial or on appeal; (2) he was denied his right to a speedy tri al, resulting in his being sentenced under the amended death penalty sta tute; (3) counsel was ineffective for failing to pursue this claim at trial and on direct appeal; (4) persons opposed to the death penalty we re excluded for cause from the jury; (5) the state improperly used peremp tory challenges to remove persons opposed to the death penalty; (6) th e state made prejudicial remarks concerning inadmissible and inf lammatory evidence during its opening statement; (7) irrelevant and pr ejudicial evidence was admitted; (8) the state made improper and prejudici al 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 unde r the amended death penalty statute violated his rights to due pr ocess and equal protection under the Fourteenth Amendment.

6juror, Wilfred Moore, for gender-related reasons. T he

Superior Court found both claims meritless. After t he Delaware Supreme Court affirmed, Gattis v. State , 697 A.2d 1174 (Del. 1997), cert. denied sub nom. Gattis v. D elaware, 522 U.S. 1124 (1998), the Superior Court reschedule d 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. Impor tantly, after the respondent filed its answering brief, Gat tis filed the affidavit of Thomas J. Saunders, a capital liti gation attorney, in which he stated inter alia that Baumei ster's failure to object to postponing Gattis' trial, even though he

was on notice that Senate Bill 79 could affect Gatt is' rights, and his failure to inform Gattis that the proposed changes to the death penalty statute could affect his right s after a certain date, compromised Gattis' right to counsel and prejudiced his defense. The District Court found al l of Gattis' claims to be meritless, procedurally defaul ted, or non-cognizable and denied his petition. Gattis v. S nyder, 46 F. Supp. 2d 344 (D. Del. 1999). Nevertheless, as no ted above, the court issued a certificate of appealabil ity with regard to the five claims which it denied on the me rits. Gattis v. Snyder, No. 97-619 (D. Del. March 25, 199 9). Gattis filed a motion for reargument, which the cou rt denied. Gattis v. Snyder, No. 97-619 (D. Del. Augus t 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 Apri l 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 o n behalf of a person in custody pursuant to the judgment of a

7State court shall not be granted with respec t to any

claim that was adjudicated on the merits in State court proceedings unless the adjudication of the c laim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, cle arly established Federal law, as determined by th e Supreme

Court of the United States.

In Williams v. Taylor, 529 U.S. 362 (2000), the Cou rt held that "[u]nder the `contrary to' clause, a federal h abeas 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 cas e differently than [the Supreme] Court has on a set o f 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 th e Supreme Court's cases but unreasonably applies it to the fa cts of the particular case or if the state court either unreas onably extends a legal principle from the Supreme Court's precedent to a new context where it should not appl y 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 i n 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." Wer ts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000), cert. den ied, 121 S. Ct. 1621 (2001). We review the District Court's application of section 2254(d) de novo. Banks v. Ho rn, 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, a nd equal protection as result of the delays preceding his tr ial, and

8that 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 previo us 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 l ittle argument, asserting without explanation that the 28 month period of delay is "presumptively prejudicial;" tha t "the delays occasioned by Gattis first counsels' continu ed requests for medical testing were unreasonable and highly prejudicial;" that counsels' "lack of diligence" ca used "delay which may cost him his life;" and that the delay "occasioned by the malfeasance of Gattis' public de fenders

should not be attributed to Gattis in the court's s peedy trial analysis."

The Superior Court found the claim procedurally

defaulted but addressed it on the merits because Ga ttis had received the death penalty. Applying the four f actors set forth in Barker v. Wingo, 407 U.S. 514, 530 (19 72) -- the length of the delay, the reasons for the delay, the defendant's assertion of his right, and prejudice t o the

defendant -- the court found the claim meritless. M ost 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 sub tracted from the delay for purposes of a speedy trial analy sis. Further delay was caused by the temporary stay pend ing a determination of questions certified to the Delawar e Supreme Court, a process in which Gattis participat ed along with eight other defendants. Thus, rather tha n asserting his right to a speedy trial, "he took aff irmative steps guaranteed to prolong the pretrial waiting pe riod." State v. Gattis, 1995 WL 790961 at *7 (Del. Super. December 28, 1995). Finally, the court rejected Gat tis' prejudice argument.

The Delaware Supreme Court made no reference to procedural default, addressing this claim exclusive ly on the merits. In doing so, the court essentially followed the

9Superior Court's analysis, rejecting Gattis' assert ions of

prejudice for lack of substantiation. "Because Gatt is fails to make and substantiate specific allegations of actua l prejudice, and because we find no evidence of preju dice to Gattis resulting from the delay, we conclude that t he Superior Court did not abuse its discretion in deny ing 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 n ot tried for an inordinately long time after indictment, pre judicing his right to a fair trial. . . ." As in state court , in his opening brief in support of his petition Gattis complains t hat 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 th at

counsels' ineffectiveness is cause for the default. He complains that counsel failed to pursue his speedy trial claim, that counsel seemed unaware that an amendmen t to the death penalty statute was pending, and that sta te court decisions prevented adequate factual development of the issue, resulting in insufficient record for its pro per resolution.

Gattis also filed the Saunders affidavit, which not es, inter alia, that the amendment to the death penalty statu te 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 neit her mentioned it at the May hearing nor discussed its significance with Gattis. The affidavit opines that adequate assistance of counsel, especially in a death penalt y case, requires counsel to be aware of any law that may af fect his client's interests, especially the sorts of changes contemplated by the amendment in question here. Moreover, the affidavit represents that there was n o need for a postponement beyond July or August.

Because the Delaware Supreme Court had addressed th e claim solely on the merits, the District Court did so as well,

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

request. The court found the claim meritless becaus e 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 regardl ess of whether it was procedurally defaulted, and because the Delaware Supreme Court addressed the claim exclusiv ely on the merits without any reference to procedural d efault, 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 puzzl ing that

Gattis cast this claim in terms of a violation of h is right to a speedy trial rather than of his right to effectiv e assistance of counsel pursuant to Strickland v. Washington , 4 66 U.S. 668 (1984). Accordingly, at oral argument we asked Gattis' able federal habeas attorney whether his first clai m might

not be better understood as an ineffectiveness clai m, and ordered the parties to address in supplemental brie fing whether such an ineffectiveness claim had been pres ented to the District Court; whether it had been exhauste d 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 arg ues that he did not exhaust the claim in state court, that t he claim is not procedurally defaulted, and that it is impli citly included in the certificate of appealability; he do es not address whether the claim was presented to the Dist rict 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 cla im to the District Court, so that the certificate of appealab ility 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 th e District Court is essentially the same as the claim he prese nted in state court. As a result, he exhausted state remedi es with regard to that claim. Ipso facto, if Gattis' claim as presented

11in 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 s tate court but not in federal court, and vice versa.

The problem for Gattis is that even though there se ems to be a potential ineffectiveness claim struggling to escape from the confines of his speedy trial claim, he nev er released it by presenting a coherent, properly arti culated

claim under Strickland in either state court or in his federal habeas corpus petition. As Gattis acknowledges in h is supplemental brief, "[b]oth the legal theory and th e facts underpinning the federal claim must have been prese nted

to the state courts . . . and the same method of le gal analysis must be available to the state court as wi ll be employed in the federal court." Evans v. Court of C ommon Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992), cert. pe tition 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 clai m 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 pro cedural default asserted by the state and did not, along wi th Saunders' affidavit, file a motion to amend his pet ition to include one. We cannot retroactively amend Gattis' petition

on his behalf.

But even if the claim had been exhausted and presen ted to the District Court we would likely find it witho ut 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 Ci r. 1989), while the reasons given by the Superior Court for n ot finding prejudice under Barker would also apply to an

12ineffectiveness claim. State v. Gattis, 1995 WL 790 961 at *8

(Del. Super. 1995).3

C. The Merits

We agree with the District Court that the state cou rt decisions are not contrary to clearly established f ederal law. Nor do they involve an unreasonable application of clearly established federal law. Aside from the reasons pro vided by those courts, we note that Gattis' claim suffers fr om a perhaps more fundamental defect: the right to a spe edy trial essentially protects defendants against delay s caused by the government. If the delay is attributable exc lusively to the defendant, "he will be deemed to have waived hi s speedy trial rights entirely." United States v. Man ning, 56 F.3d 1188, 1195 (9th Cir. 1995). Similarly, portion s of the delay which are attributable to the defendant or hi s counsel "will not be considered for purposes of determining whether the defendant's right to a speedy trial has been in fringed." Wells v. Petsock, 941 F.2d 253, 258 (3d Cir. 1991), cert. denied sub nom., 505 U.S. 1223 (1992); United State s v. Dent, 149 F.3d 180, 183 (3d Cir. 1998), cert. denie d, 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-Ame rican 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 o n the basis of gender). But that is misleading. Rather, t he

___________________________________________________ ______________

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 fac tual basis for the claim. We do not find this argument persuasive beca use Gattis blamed counsel for the delay from the outset. It thus appe ars that what Gattis

lacked was less a detailed factual record than the appropriate legal analysis.

13following exchange took place between Moore and the

prosecutor:

Q: If the facts and circumstances so warrant ed, 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 wo uld follow

the Court's instructions on the law whether you agreed with that law or not. . . . Taking th ose instructions in mind, then, and taking into account all the facts and circumstances, now , if

the facts and circumstances so warrant and i f 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 woul d 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 thi s 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. Aft er Moore was excused, the state sought the court's per mission to make a record of its reasons for the strike, whi ch were

as follows:

Number one, I believe that this juror was ve ry, very conservative in his application of the possi ble application of the death penalty [sic]. He a nswered very

14quickly yes to the possibility of imposing a life sentence

under the appropriate facts and circumstance s, yet, to our belief, had a very difficult time in ans wering whether or not he could impose the death pen alty under the appropriate circumstances. He seem ed 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 s tate's point of view that we would prefer to have some mo re 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 f actual findings and conclusions of law regarding this issu e.4 On remand, the state argued that even though one of th e prosecutor's reasons for the challenge was based on gender, the paramount reason was Moore's reluctance to impo se the death penalty. The Superior Court noted that th e Supreme Court has held in other areas of equal prot ection jurisprudence that an action motivated in part by a n impermissible reason will withstand challenge if th e 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 Unit ed States v. Darden, 70 F.3d 1507 (8th Cir. 1995), cert. deni ed, 517 U.S. 1149 (1996), the court applied the following"d ual 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 reason s and in the absence of the discriminatory motive. If the st ate makes such a showing, the peremptory challenge survives constitutional scrutiny.

___________________________________________________ ______________

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

of the murder. See infra at 20-21.

5. The court cited Mt. Healthy City Sch. Bd. of Edu c. v. Doyle, 429 U.S. 274 (1977).

15The Superior Court discerned no intent to discrimin ate

against men. At the time Moore was struck, four men and three women had been selected for the jury. The sta te had used four of its challenges to remove two men and t wo women, and after Moore was removed the state used t wo 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. Moreove r, the state's explanation for excluding Moore focused on his attitudes towards the death penalty. The Superior C ourt

concluded:

There is nothing in the record which indicat es that the prosecution was driven by invidious gender-b ased stereotypes. . . . Based on the totality of the circumstances, the Court finds that the Stat e has carried its burden of showing that the prose cutor would have challenged Moore even in the abse nce of any gender-related reason. In regard to the prosecutor's gender-based motivation, the Co urt is

satisfied that this consideration was de min imis. The prosecutor stated that several men had alrea dy 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 Gatti s' jury when Moore was challenged, it is not plausib le that the prosecutor's stated desire for a mix of men and women was a pretext for a desire to exclude men be cause of invidious, archaic and overbroad stereotypes

.

State v. Gattis, 1996 WL 769328 *6 (Del. Super.). Accordingly, the Superior Court found the claim mer itless. Echoing the Superior Court's reasoning, the Delawar e Supreme Court found "no abuse of discretion in the Superior Court's determination." Gattis v. State, 6 97 A.2d

at 1184.

The District Court found that Gattis had not presen ted clear and convincing evidence to overcome the presu mption

of correctness afforded state courts' factual findi ngs by 28 U.S.C. S 2254(e)(1) and that the Delaware Supreme C ourt's rejection of Gattis' claim was "not contrary to cle arly

16established federal law, and did not rely on an

unreasonable application of the facts." Gattis v. S nyder, 46 F. Supp. 2d at 379. The court concluded that the cl aim fails pursuant to 28 U.S.C. S 2254(d).

The Supreme Court has not addressed a case involvin g mixed motives in jury selection. Accordingly, we ap ply the "unreasonable application" prong of S 2254(d)(1) ra ther 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 co urt identifies the correct governing legal rule from th e Supreme Court's cases but unreasonably applies it to the fa cts of the particular case or if the state court either unreas onably extends a legal principle from the Supreme Court's precedent to a new context where it should not appl y 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 C ourt correctly identified the main Supreme Court decisio ns -- Batson, J.E.B., and Mt. Healthy-- and, citing Walla ce 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 ju ror's race but also other factors that were properly considere d. Because the reasoning in Batson fell "squarely with in the [Supreme Court's] tradition of equal protection jurisprudence," id. at 26, the court began its anal ysis by noting that:

In the realm of constitutional law, whenever challenged action would be unlawful if improperly motiv ated, the Supreme Court has made it clear that the cha llenged action is invalid if motivated in part by an impermissible reason but that the alleged of fender is

entitled to the defense that it would have t aken the same action in the absence of the improper m otive. 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 Hei ghts v.

17Metropolitan 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 defendan ts who

can show that racial discrimination was a su bstantial part of the motivation for a prosecutor's pe remptory challenges, leaving to the prosecutor the af firmative defense of showing that the same challenges would

have been exercised for race-neutral reasons in the absence of such partially improper motivatio n. In concluding that dual motivation analysis app lies to a Batson challenge, we do no more than apply t hat analysis precisely as previously enunciated by the Supreme Court in prior dual motivation cases such as Arlington Heights. . . . [O]nce the prosecut or's partially improper motivation had been established, Ho ward was entitled to prevail unless, under dual motiv ation analysis, the prosecutor could sustain his b urden of showing that he would have exercised his cha llenges solely for race-neutral reasons.

Id. at 30.

Other courts have followed suit, applying mixed mot ive analysis to situations where not only race, but als o gender was a reason for excluding a potential juror. See, e.g., Tokars (gender); Wallace (race); Darden (youth, inexperience, and alleged young black female tenden cy "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 -- applyi ng dual motivation but remanding to District Court for clar ification of findings regarding whether the strike was exerci sed for a discriminatory purpose and whether it would have be en exercised in the absence of the discriminatory purp ose). We find the reasoning of these cases persuasive.

Because we agree with Howard and the other cases ci ted that mixed motive analysis is appropriate in this c ontext, we cannot conclude that the Superior Court unreason ably extended a legal principle from the Supreme Court's precedent. On the facts, the Superior Court's discu ssion,

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

contention that the record "clearly and convincingl y" 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 f acts, or to interview relevant witnesses. He argues that if cou nsel had investigated the crime scene properly they could ha ve shown at trial that the state's account of the crim e was implausible. The government argued to the jury that Gattis returned to Slay's apartment in a fit of jealous ra ge, 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 twel ve inches means that he could not have walked up to he r and shot her. Rather, it supports Gattis' contention th at the gun went off accidentally as he was kicking in the door. Even though counsel could have learned of this befo re trial, they did not realize that Gattis' story was plausib le until, several days into the trial, they entered Slay's ap artment for the first time (they had visited the building befor e trial but had not entered the apartment). Gattis places much reliance on James' testimony that Gattis' version o f what happened was more plausible than the state's. He maintains that counsels' inadequate performance aff ected not only the guilt phase, but also sentencing: the nature of the killing was central to the State's efforts to p ersuade the jury and sentencing judge that death was the approp riate punishment.

The Superior Court found that Gattis met neither pr ong 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

19shown prejudice, in part because "his version of th e

incident . . . [is] simply unworthy of belief.. . . It is inconceivable that even one juror would have accept ed the accident defense in this case." State v. Gattis, 19 95 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 h earing to determine whether James really would so testify. De spite concluding that the threshold standard for holding a hearing was not met, the Superior Court held a hear ing 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 w as no prejudice to Gattis. James would have testified tha t Gattis' story was more plausible than the state's, but woul d also

have stated that he could not determine certain cru cial facts, could not confirm Gattis' version of the mur der, and could not disprove the state's theory of the murder

.

Furthermore, nothing in James's assertions c ould dispel the impression of an angry, violent m an who intentionally set out to kill Shirley Slay b y shooting her in the face in an execution-style slaying. I t 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.). A fter reviewing the evidence, the Delaware Supreme Court found that the Superior Court did not abuse its discretio n in so concluding. Gattis v. State, 697 A.2d at 1184-86.

The District Court found that Gattis had not offere d any evidence that counsels' performance was "unreasonab le or egregious, or caused prejudice." Gattis v. Snyder, 46 F. Supp. 2d at 380. Furthermore, the District Court fo und "that the Delaware Supreme Court did not unreasonab ly apply clearly established federal law, and did not base its decisions on an unreasonable application of the fac ts." Id.

We agree. The state courts correctly identified the relevant Supreme Court precedent -- Strickland -- and accurately described the two familiar tests which t he

20prisoner must pass to obtain relief, i.e., show tha t 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' acco unt of the facts at trial: not only did Gattis testify tha t he did not mean to pull the trigger when he fired the fatal sh ot, 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 pe rsuaded the court to instruct the jury on lesser included o ffenses and to instruct the jury that if they found the sho oting to have been accidental, they must acquit Gattis of th e 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. T hus, the only question is whether the testimony of James or a similar expert would be reasonably likely to have m ade the jury believe Gattis' explanation. We agree with the Superior Court that this seems unlikely.

The state courts and District Court did not separat ely address the sentencing prong of Gattis' claim, doub tless

because there was no need to: its success turns on the success of the claim that counsel did not adequatel y 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 sentenci ng court's finding, that the murder was "execution-style" play ed an important role in determining his sentence. However , the record does not support this contention. The govern ment relied on two statutory aggravating factors -- the murder occurred during the commission of a burglary, and G attis had previously been convicted of a violent felony-- and offered evidence concerning these non-statutory agg ravating

circumstances: the details of the commission of the offense, including Gattis' relationship with Slay, Gattis' p ropensity towards violence and threats of violence, victim im pact, Gattis' lack of respect for authority, and his cond uct while on court supervision. In its sentencing opinion the court

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

out because of the defendant's misplaced and ill-co nceived notions of infidelity on the part of Shirley Y. Sla y, and because Ms. Slay, tired of the abuse to which she h ad 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 cour t emphasized that the murder was cold-blooded, with"n o pretense of moral or legal justifications," and tha t there was nothing to indicate that it was a crime of passion or an impulsive act caused by serious emotional disturban ce. It "was the culmination of years of torment, mental to rture and physical abuse at the hands of one who selfishl y sought her domination and subjugation." Id.

Thus, it seems clear that when the court referred t o the murder as an execution, this was a summary of all t he other factors mentioned, including the reasons for the murder. That it was "execution-style" was not menti oned by the court at all, either in its description of the aggravating factors or in its description of the balancing proc ess. Id. at *13. Central to the court's balancing was the evide nce that Gattis was "a manipulative, dominant, and violence- prone assaultive male who treated Shirley Y. Slay as a me re chattel, a piece of property to control as he saw f it." Id. at *14. In light of the court's reasoning, we conclude that providing an expert to argue that even if the murde r was intentional it was not "execution-style" is not lik ely 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, Gatt is argued to the Delaware Supreme Court with regard to his ineffectiveness claims that James would, if given t he chance, testify that the prosecution's theory of th e case was physically impossible. On remand, at the evidentiar y hearing the government presented video and testimon y to show that even if the apartment door had been open only twelve inches it would have been possible for Gatti s to

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

state courts found Gattis' ineffectiveness claim me ritless.

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

claims that his due process rights "were violated w hen his

conviction and death sentence were affirmed on stat e postconviction review on a theory not originally pr esented to the jury or the court that tried and sentenced h im." 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) ("T o uphold a conviction on a charge that was neither al leged in an indictment nor presented to a jury at trial offe nds the most basic notions of due process"). As far as we c an 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 mer itless,

and because the District Court could have dismissed the claim as meritless regardless of whether it was exh austed 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 becaus e Gattis' conviction and sentence are supported by ei ther a theory that he shot Slay face-to-face at close rang e 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 sente nce on post-conviction review on different facts or on a d ifferent theory than was presented to the jury. The Delaware Supreme Court stated that "the State never presente d testimony from its witnesses nor offered any argume nt 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 correc t because Gattis has not provided clear and convincin g

___________________________________________________ ______________

6. The District Court states that Gattis presented this argument to the Delaware Supreme Court as one of ineffective assist ance 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, Dunca n v. Henry, 513 U.S. 364 (1995)), we do not see in the record where it w as expressly presented to the Delaware Supreme Court.

23evidence to the contrary as required by section 225 4(e)(1).

Moreover, both Dunn and the decision by the First C ircuit 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 c onvicted,

which is not the case here.

The fundamental flaw in Gattis' argument is that in the decisions of which he complains the state courts di d not "uphold [his] conviction on a charge that was neith er alleged in an indictment nor presented to a jury at trial." Dunn, 442 U.S. at 106. The allegedly different theo ry of guilt was not presented on direct appeal in support of his conviction but in the course of a post-conviction h earing

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 mu rder. The Superior Court and Delaware Supreme Court did not a ffirm his conviction based on the state's theory but mere ly found his ineffectiveness claim unpersuasive. The state's theory played a small role, if any, in the courts' reasoni ng. In this context Dunn and Cola are simply not applicable.7

* * * *

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

___________________________________________________ ______________

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 Sh irley 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 eviden ce that he murdered someone else or committed a different crime; his co nviction was not

affirmed on the basis of evidence that he murdered someone else; and the evidence used to support the government's diffe rent 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 d ifferent "theory" here in the sense at issue in Dunn and Cola ; the only v ariation 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 th e door, perhaps by reaching around it?

24Accordingly, the Order of the District Court denyin g the

application for a writ of habeas corpus will be aff irmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

25