1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-19-1995

Flamer v State of DE

Precedential or Non-Precedential:

Docket 93-9000

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Flamer v State of DE" (1995). 1995 Decisions. Paper 273.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/273
1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

No. 93-9000 

____________ 

WILLIAM H. FLAMER 

v. 

STATE OF DELAWARE, DARL CHAFFINCH, 

RAYMOND CALLAWAY, HAROLD K. BRODE, 

WILLIAM H. PORTER, GARY A. MYERS, 

LOREN C. MEYERS, DANA REED, JAMES E. 

LIGUORI, CHARLES M. OBERLY, III, 

WALTER REDMAN, STANLEY W. TAYLOR, Acting Warden; 

WARDEN ROBERT SNYDER 

William Henry Flamer 

 Appellant 

____________________ 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF DELAWARE 

(D.C. Civil No. 87-00546) 

____________________ 

Argued: February 16, 1994 

Before: BECKER, HUTCHINSON,* and ALITO, Circuit Judges

(Opinion Filed: October 19, 1995) 

____________________ 

 

 CHARLENE D. DAVIS, ESQ. (Argued) 

 Bayard, Handelman & Murdoch, P.A. 

 902 Market Street, 13th Floor 

 P. O. Box 25130 

 Wilmington, DE 19899 

 JOSHUA L. SIMON, ESQ. 

 Law Office of David Staats 

 Concord Plaza Office Park 

 3411 Silverside Road 

 Rodney Building, Suite 100H 
2 

 Wilmington, DE 19810 

 

 Attonreys for Appellant

 

_________________________ 

*Judge Hutchinson participated in the panel argument and 

conference, but died before this opinion was filed. 

 

 GARY A. MYERS, ESQ. (Argued) 

 Deputy Attorney General 

 Delaware Department of Justice 

 114 Market Street 

 Market Street Center, Suite 201 

 Georgetown, DE 19947 

 PAUL R. WALLACE, ESQ. 

 CARL C. DANBERG, ESQ. 

 Department of Justice 

 820 North Front Street 

 Wilmington, DE 19801 

 

 Attorneys for Appellees 

 

____________________ 

OPINION OF THE COURT 

____________________ 

ALITO, Circuit Judge: 

 William Henry Flamer, whose first-degree murder 

conviction and death sentence were affirmed by the Delaware 

Supreme Court, took this appeal from an order of the district 

court denying his petition for a writ of habeas corpus. When 

Flamer's appeal was initially presented to this panel, he argued: 

(1) that his confession was obtained in violation of the Fifth 

and Sixth Amendments and therefore should have been suppressed; 

(2) that his trial counsel was constitutionally ineffective; (3) 
3 

that the penalty-phase jury instructions violated the Eighth 

Amendment because they improperly implied that the jury's 

imposition of a death sentence would be reviewed by an appellate 

court; (4) that the penalty-phase jury instructions violated the 

Eighth Amendment because they referred to vague and duplicative 

statutory aggravating circumstances; and (5) that the district 

court record should have been expanded to include the criminal 

record of Flamer's accomplice, Andre Deputy. The fourth of these 

arguments was similar to an argument that was raised in Bailey v. 

Snyder, No. 93-9002, which was heard by another panel of our 

court while Flamer's appeal was under consideration by this 

panel. Before a panel opinion was filed in either case, the full 

court voted to rehear both cases for the purpose of addressing 

the shared issue. In this opinion, the panel that initially 

heard Flamer's appeal discusses and rejects all of Flamer's 

arguments other than the argument that was considered by the 

court in banc. The latter issue is addressed and rejected in a 

separate opinion that is being filed simultaneously on behalf of 

the in banc court. Therefore, the order of the district court 

denying Flamer's petition for a writ of habeas corpus will be 

affirmed. 

I.

 The bodies of Byard and Alberta Smith, an elderly 

couple, were discovered by their 35-year old son, Arthur, on the 

morning of February 7, 1979, in their home just outside 

Harrington, Delaware. Byard Smith had been stabbed 79 times, 
4 

primarily in the head and neck. His wife, Alberta, had been 

stabbed 66 times. Both victims had been stabbed with two knives. 

The Smiths were found on the floor of the living room, surrounded 

by blood and overturned chairs. Byard Smith's pockets had been 

turned out and emptied. In the kitchen, packages of frozen food 

lay strewn about the floor. The Smiths' car and television set 

were missing. 

 Upon discovering the bodies, the Smiths' son 

immediately called the police. Within hours, the police located 

the stolen car and identified William Henry Flamer, a nephew of 

Alberta Smith, as a possible suspect. The police went to 

Flamer's residence, which he shared with his grandmother and his 

father, and Flamer's grandmother invited the police to search the 

home. In Flamer's room, they discovered packages of frozen food 

similar to those found on the floor of the Smiths' kitchen. The 

Smiths' television set and fan were discovered in the kitchen 

closet, and a blood-encrusted bayonet was found on a stand in the 

kitchen. 

 The police presented their evidence to a Justice of the 

Peace and obtained a warrant to arrest Flamer for murder in the 

first degree. Acting on information that Flamer was in the Blue 

Moon Tavern on Route 13, the police discovered him walking near 

the tavern with two companions. Flamer had blood on his hands 

and clothing and fresh scratches on his neck and chest. The 

police arrested Flamer and brought his companions in for 

questioning. One of Flamer's companions, Ellsworth Coleman, was 
5 

released soon thereafter. The other man, Andre Deputy,0 was 

found to be carrying several items belonging to the Smiths, 

including two watches and a wallet containing Byard Smith's 

driver's license, automobile registration, and Social Security 

card. 

 Flamer and Deputy were questioned, at times together 

and at times separately, from 4:00 in the afternoon until 7:00 or 

8:00 that evening at Troop 5 in Bridgeville. The men gave 

conflicting accounts, each blaming the other for the murders. 

Miranda rights were read to Flamer several times during the 

interrogation, and each time, he waived his right to an attorney. 

Flamer claimed at a later suppression hearing that he repeatedly 

asked permission to call his mother so that she could contact 

Herman Brown, Sr., their family's lawyer, to represent him. 

However, this testimony was not credited by the Delaware courts, 

which found that Flamer did not request an attorney until his 

arraignment. See Flamer v. State ("Flamer IV"), 585 A.2d 736, 

747 (Del. 1990); Flamer v. State ("Flamer I"), 490 A.2d 104, 114 

(Del. 1983 and 1984). 

 There was a snowstorm on the day of the arrest, and the 

Harrington Justice of the Peace had closed at 4 p.m. Rather than 

drive Flamer to Dover, which was the nearest available site for 

an arraignment, the police placed him in a cell in Troop 5 

overnight. Without further interrogation, Flamer was brought 

 

0

See Deputy v. Taylor, 19 F.3d 1485 (3d Cir.), cert. denied, 114 

S. Ct. 2730 (1994). 
6 

before the Harrington Justice of the Peace in the morning for his 

initial appearance. 

 At the arraignment, Flamer was informed of the charges 

against him and was again informed of his rights. Flamer asked 

the magistrate whether he could call his mother in order to ask 

about possible representation by Herman Brown, Sr. The 

magistrate told him he would be able to do so but also appointed 

the Public Defender to represent him in the interim. Flamer was 

then committed to Sussex County Correctional Institution without 

bail. 

 After the arraignment, Flamer called his mother, 

Mildred Smith, the half-sister of Alberta Smith. Flamer's mother 

told him that Herman Brown, Sr. had retired. Flamer arranged to 

meet his mother at Troop 5 before he was taken to the 

correctional facility, and she spoke with her son briefly at 

Troop 5 after the arraignment. Soon after Mildred Smith's 

departure, Corporal Porter, one of the officers who had 

questioned Flamer a day earlier, addressed him as follows: 

I asked him, I said, "Do you believe in God?" 

and he said, "Yeah." I said, "Then you got 

to believe in heaven and hell, right?" He 

said, "Yeah." I said, "Well, then you're 

going to burn in hell unless you get straight 

with me about what's happened today" or "what 

happened yesterday. I want you to tell me." 

I said, "You have to clear your conscience of 

what's going on" and this is when he started 

weakening up a little bit. He had some tears 

in his eyes and he said, "Okay, I'll talk to 

you." That's when I took him out of the 

cell. 

Joint Appendix ("JA") at 1096. A short time later, Flamer 

confessed. 
7 

 In his confession, which was given before he had 

consulted an attorney, Flamer gave the following account of the 

murders. After a day of drinking, he and Andre Deputy went to 

the Smiths' house just before midnight in order to rob them. Id.

at 32. They brought with them a bayonet, a smaller knife, and a 

shotgun, and they hid the shotgun outside the Smiths' home. 

Flamer carried the smaller knife, and Deputy concealed the 

bayonet under his coat. In order to gain entry to the Smiths' 

home, Flamer told Alberta Smith that his grandmother had had a 

stroke and was missing. Id. at 32. Flamer and Deputy stood just 

inside the house speaking to the Smiths for about ten or fifteen 

minutes until Flamer, acting on a signal from Deputy, began to 

stab Byard Smith with the smaller knife, which he later threw 

away when he was stopped by the police on Route 13. Id. at 33-

34. After Flamer began stabbing his uncle, Deputy began to stab 

Alberta Smith with the bayonet. At some point, Deputy also 

stabbed Byard Smith with the bayonet. After the couple died, the 

two men searched the bodies for money and found four wallets. Id.

at 36. They fled in the Smiths' car, which they had loaded with 

property stolen from the house. 

 The two men drove to Flamer's home, where they stored 

some stolen items and burned three of the four wallets that they 

had taken from the Smiths. (The fourth was recovered from Deputy 

when the men were arrested.) Id. at 36. Flamer left his home 

alone in the Smiths' car. Outside Felton, Delaware, he became so 

drunk that he fell asleep. When he awoke, the car's battery was 

dead. Id. at 36-37. He abandoned the car, went to the Blue Moon 
8 

Tavern to meet Deputy and to shoot pool and drink, and he was 

arrested a few hours later. 

 Flamer was tried before a jury in 1980 on four charges 

of murder in the first degree,0 possession of a deadly weapon 

during the commission of a felony, first-degree robbery, and 

misdemeanor theft. Id. at 648. Among the witnesses at the trial 

was the state medical examiner, who had performed autopsies on 

the bodies of Alberta and Byard Smith. The medical examiner 

testified that both bodies had been stabbed with two different 

weapons, a bayonet and a smaller knife described as a kitchen 

paring knife. Id. at 1070-72. She testified that 19 of the 

wounds on Byard Smith were made by the bayonet, eight were from 

the paring knife, and 52 could have come from either weapon. 

Regarding Alberta Smith's wounds, the medical examiner testified 

that 25 wounds were inflicted by the bayonet, two by the paring 

knife, and 39 could have come from either weapon. Id. 

 The jury convicted Flamer on all charges, id. at 1416-

17, and the trial then proceeded to the penalty phase. Defense 

 

0

Del. Code Ann. tit. 11, § 636(a), provides in pertinent part as 

follows: 

A person is guilty of murder in the first degree when: 

(1) He intentionally causes the death of another 

person; 

(2) In the course of and furtherance of the 

commission or attempted commission of a felony or 

immediate flight therefrom, he recklessly causes 

the death of another person. 

Flamer was tried on both of these theories of first-degree murder 

for each of his two victims. 
9 

counsel called as witnesses the defendant, his mother, and his 

grandmother. Defense counsel introduced into evidence the 

reports of a psychologist and psychiatrist who had examined 

Flamer. Id. at 59-63, 65-67. Both reports concluded that Flamer 

seemed to be of low but normal intelligence, with no symptoms of 

psychosis or other mental illness, and would be competent to 

assist in his own defense and to stand trial. The psychiatrist's 

report diagnosed Flamer as an alcoholic, and stated that he had 

admitted being intoxicated at the time of the murders. After 

deliberating for about two hours and twenty minutes, the jury 

returned and imposed a penalty of death for each of the murder 

convictions. 

 In February 1983, the Delaware Supreme Court affirmed 

Flamer's convictions on direct appeal, but withheld decision on 

the death sentences pending the resolution of two death-penalty 

cases before the United States Supreme Court. Flamer I, 490 A.2d 

at 110-20. Following the denial of Flamer's certiorari petition 

to the United States Supreme Court, 464 U.S. 865 (1983), and more 

briefing in the Delaware Supreme Court, the Delaware Supreme 

Court affirmed Flamer's death sentences in September 1984. Flamer 

I, 490 A.2d at 120-58. Flamer again petitioned the United States 

Supreme Court for a writ of certiorari, but his petition was 

denied on October 7, 1985. 474 U.S. 865 (1985). 

 In June 1986, Flamer filed a motion for state postconviction relief pursuant to Delaware Superior Court Criminal 
10 

Rule 35(a),0 asserting various claims, including ineffective 

assistance of counsel and some issues that he had raised on 

direct appeal. This motion was denied, and Flamer appealed the 

denial to the Delaware Supreme Court. In February 1988, the 

Delaware Supreme Court issued an order consolidating Flamer's two 

post-conviction relief petitions and remanded to the Superior 

Court for a second post-conviction hearing pursuant to its newly 

promulgated Rule 61.0 State v. Flamer ("Flamer II"), No. 216, 

 

0

Rule 35, which was superseded in 1988 by Rule 61, permitted a 

court (a) to correct an illegal sentence at any time and (b) to 

correct a sentence imposed in an illegal manner upon motion 

within four months after sentence was imposed. Del. Super. Ct. 

Crim. Rule 35. 

0

Rule 61 "governs the procedure on an application by a person in 

custody . . . under a sentence of this court to set aside a 

judgment of conviction on the ground that the court lacked 

jurisdiction to enter the judgment or on any other ground that is 

a sufficient factual and legal basis for a collateral attack upon 

a criminal conviction." Del. Super. Ct. Crim. Rule 61(a)(1). A 

motion for Rule 61 relief "shall specify all the grounds for 

relief which are available and of which the movant has, or, by 

the exercise of reasonable diligence, should have knowledge." 

Del. Super. Ct. Crim. Rule 61(b)(2). In addition to establishing 

routine procedures such as for the appointment of counsel and the 

timing and content of supporting briefs, Rule 61 permits the 

court to hold an evidentiary hearing or expand the record if 

necessary. See Del. Supr. Ct. Crim. Rule 61(b)-(h). 

 Subsection (i) of Rule 61 establishes the procedural bars to 

relief. Subsection (i)(1) limits the time in which to file a 

motion for postconviction relief to three years after the time 

the judgment of conviction becomes final or, "if it asserts a 

retroactively applicable right that is newly recognized after the 

judgment is final, [to no] more than three after the right is 

first recognized by the Supreme Court of Delaware or by the 

United States Supreme Court." Del. Super. Ct. Crim. Rule 

61(i)(1). Subsection (i)(2) bars repetitive motions "unless 

consideration of the claim is warranted in the interest of 

justice." Del. Super. Ct. Crim. Rule 61(i)(2). Subsection 

(i)(3) establishes "procedural default" for "[a]ny ground for 

relief that was not asserted in the proceedings leading to the 

judgment of conviction" unless there is "[c]ause for relief from 
11 

1987 (Del. Feb. 19, 1988). In April 1988, Flamer filed a new 

petition for post-conviction relief expanding upon his earlier 

claims. After supplemental briefing and an evidentiary hearing, 

the Superior Court denied Flamer's petition in June 1989. State 

v. Flamer ("Flamer III"), Nos. IK79-11-0236-R1, -0237-R1, -0238-

R1, and -0239-R1. (Del. Super. Ct. June 16, 1989). This denial 

was affirmed by the Delaware Supreme Court in December 1990. 

Flamer IV, 585 A.2d at 745. 

 In addition to his state post-conviction relief 

petitions, Flamer filed a federal habeas petition in August 1987. 

In July 1989, this petition was stayed because Flamer had not yet 

exhausted his state post-conviction remedies. Once the Delaware 

Supreme Court affirmed the denial of Flamer's state petition, the 

federal stay was lifted. In October 1991, Flamer filed his third 

amended petition in the district court. In June 1993, the 

district court denied that petition. Flamer v. Chaffinch, 827 F. 

Supp. 1079 (D. Del. 1993). Flamer then took the appeal now 

before us. 

II.

 

the procedural default" and "[p]rejudice from violation of the 

movant's rights." Del. Super. Ct. Crim. Rule 61(i)(3). Likewise, 

subsection (i)(4) bars any claim previously adjudicated unless 

"warranted in the interest of justice." Del. Super. Ct. Crim. 

Rule 61(i)(4). Finally, subsection (i)(5) provides that the bars 

established in subsections (i)(1)-(3) do not apply to a claim the 

court lacked jurisdiction or to "a colorable claim that there was 

a miscarriage of justice because of a constitutional violation 

that undermined the fundamental legality, reliability, integrity 

or fairness of the proceedings leading to the judgment of 

conviction." Del. Super. Ct. Crim. Rule 61(i)(5). 
12 

 Several of Flamer's arguments are based on the 

confession that he gave shortly after his arraignment. Flamer 

argues that this confession should have been suppressed under the 

Fifth and Sixth Amendments. Because the legality of the 

questioning that led to this confession is central to several of 

Flamer's claims, we will address this question first. Our 

analysis is divided into two parts. First, we will address 

whether the police violated Flamer's rights under the Sixth 

Amendment. Then we will consider whether they violated his Fifth 

Amendment rights. 

 A. The Sixth Amendment Right to Counsel

 As noted, Flamer asked for counsel at his arraignment. 

By subsequently questioning him and obtaining the confession at 

issue, Flamer contends, the police violated his Sixth Amendment 

right to counsel. Flamer advances two theories to support this 

argument. First, he argues that his confession should have been 

suppressed under Brewer v. Williams, 430 U.S. 387 (1977), because 

he did not voluntarily waive his right to an attorney after the 

arraignment. Second, he asserts that the Supreme Court's 

decision in Michigan v. Jackson, 475 U.S. 625 (1986), should be 

applied retroactively to his case and requires the suppression of 

his confession. 

 1. In Brewer, the defendant, a "deeply religious" 

escapee from a mental institution, 430 U.S. at 390, 392, was 

arrested on suspicion of murdering a young girl. The police 

transported him from Davenport to Des Moines, Iowa, where he was 
13 

supposed to meet with his attorney. The police had agreed that 

they would not interrogate Williams en route, but while driving 

to Des Moines, a police officer, Detective Leaming, gave what has 

come to be known as the "Christian burial speech."0 See id. at 

392. Addressing Williams as "Reverend," the officer said that he 

felt that they should locate the girl's body so that her parents, 

whose child had been "snatched away from them on Christmas 

[E]ve," could give her a Christian burial. 430 U.S. at 392-93. 

Williams eventually led the police to the girl's body. Id. at 

393. 

 

0

The Court recounted the speech as follows: 

"I want to give you something to think about 

while we're traveling down the road. . . . 

Number one, I want you to observe the weather 

conditions, it's raining, it's sleeting, it's 

freezing, driving is very treacherous, 

visibility is poor, it's going to be dark 

early this evening. They are predicting 

several inches of snow for tonight, and I 

feel that you yourself are the only person 

that knows where this little girl's body is, 

that you yourself have only been there once, 

and if you get a snow on top of it you 

yourself may be unable to find it. And, 

since we will be going right past the area on 

the way into Des Moines, I feel that we could 

stop and locate the body, that the parents of 

this little girl should be entitled to a 

Christian burial for the little girl who was 

snatched away from them on Christmas [E]ve 

and murdered. And I feel we should stop and 

locate it on the way in rather than waiting 

until morning and trying to come back out 

after a snow storm and possibly not being 

able to find it at all." 

430 U.S. at 392-93. 
14 

 The Supreme Court held that the Sixth Amendment 

required the suppression of the evidence elicited by the 

"Christian burial speech." Because judicial proceedings against 

Williams had begun, the Court noted, he had the right to the 

assistance of counsel. Id. at 398. In order to show that 

Williams had waived this right, the Court held, the state was 

required to prove "`an intentional relinquishment or abandonment 

of a known right or privilege.'" Id. at 404 (quoting Johnson v. 

Zerbst, 304 U.S. 458, 464 (1938)). The Court also stated that, 

in determining whether such a waiver had been made, it was 

necessary to "indulge in every reasonable presumption against 

waiver." Id. Viewing the question of waiver, not as "a question 

of historical fact, but one which . . . requires `application of 

constitutional principles to the facts as found,'" id. (citations 

omitted), the Court concluded that the state had not established 

that Williams had waived his right to counsel. The Court wrote: 

Despite Williams' express and implicit 

assertions of his right to counsel, Detective 

Leaming proceeded to elicit incriminating 

statements from Williams. Leaming did not 

preface this effort by telling Williams that 

he had a right to the presence of a lawyer, 

and made no effort at all to ascertain 

whether Williams wished to relinquish that 

right. The circumstances of record in this 

case thus provide no reasonable basis for 

finding that Williams waived his right to the 

assistance of counsel. 

 The Court of Appeals did not hold, nor 

do we, that under the circumstances of this 

case Williams could not, without notice to 

counsel, have waived his rights under the 

Sixth and Fourteenth Amendments. It only 

held, as do we, that he did not. 
15 

Id. at 405-06 (emphasis in original). 

 In this case, the Delaware Supreme Court carefully 

applied the legal standard set out in Brewer and concluded that 

Flamer had made a valid waiver of his right to counsel. Flamer 

I, 490 A.2d at 112-16. The court explained: 

 [W]e see the defendant as a twenty-five 

year old male who reached the eleventh grade 

of school, a convicted felon, and one who at 

the outset informed the police he knew his 

rights. There is no contention that he was 

not on numerous occasions given his 

constitutionally required rights as set forth 

in Miranda v. Arizona, 384 U.S. 436, 86 S. 

Ct. 1602, 16 L.Ed.2d 694 (1966). Nor is 

there any contention that defendant from the 

moment of arrest until contact was made with 

him through the Public Defender's office, 

ever attempted to invoke any of the Miranda

rights. Instead, when confronted with the 

physical evidence seized by the police at his 

home, the blood on the coat he was wearing 

when he was arrested, the blood under his 

fingernails, and the articles belonging to 

the victim Byard Smith taken from one of his 

companions at the time of arrest, defendant 

volunteered fictitious stories of his 

complicity in the crimes while at the same 

time denying that he was guilty of killing 

anyone. He first told the police he was home 

asleep, that Andre Deputy aroused him, and 

that he went to the murder scene to help 

Deputy take the fruits of the murder to 

defendant's house. Defendant next told the 

police that he, Johnny Christopher and Andrew 

Deputy, had gone into the victims' home, and 

that it was Johnny who did the stabbing. In 

the entire record of this case there appears 

to be no time except initially when he 

claimed to be home asleep, that defendant 

denies his participation in the robberies and 

murders, although throughout, including the 

taking of his recorded statement, he 

steadfastly denies actually inflicting the 

fatal wound upon either victim. Neither is 

there any evidence in the record of this case 

that defendant was so religiously oriented 
16 

that [Corporal Porter's] speech had the 

effect upon this defendant as [the "Christian 

Burial speech"] did upon the defendant in 

Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 

1232, 51 L.Ed.2d 424 (1977). 

Id. at 114-15. 

 

 Reviewing the waiver question de novo, the district 

court reached the same conclusion, 827 F. Supp. at 1092-93, as do 

we. While there are factual similarities between this case and 

Brewer, we are convinced, based on the totality of the 

circumstances, that Flamer understood his right to have an 

attorney present before speaking to Corporal Porter and that he 

validly waived that right. As noted by the state supreme court, 

Flamer had an eleventh grade education and prior experience with 

the criminal justice system. Before arraignment, he had been 

repeatedly advised of his right to have an attorney present 

during questioning, but he had repeatedly decided to speak with 

the police without an attorney, telling a succession of different 

stories in an obvious attempt to further his own interests. After 

the arraignment but before giving the taped confession, Flamer 

was again advised of his rights under Miranda v. Arizona, 384 

U.S. 436 (1966), and he stated that he understood them. See

Patterson v. Illinois, 487 U.S. 285, 292-95 (1988). Moreover, 

while Flamer's attorneys have referred to Corporal Porter's 

remarks as a modified Christian burial speech, we agree with the 

Delaware Supreme Court and the district court that there are 

significant differences between the tactics employed by the 

police in the two cases. The police in Brewer appear to have 
17 

capitalized on Williams' unusual susceptibility to a religious 

appeal. Williams, as noted, was a "deeply religious" man with a 

history of mental illness, and he was addressed by the police as 

"Reverend." Here, by contrast, there is nothing in the record to 

indicate that Flamer was especially religious or that he suffered 

from any mental problems comparable to Williams'. Exercising 

plenary review, taking into account the totality of the 

circumstances, and applying the legal standard set out in Brewer, 

we conclude that Flamer knowingly and voluntarily waived his 

Sixth Amendment right to counsel before he confessed. 

 2. We thus turn to Flamer's argument that his postarraignment confession must be suppressed under Michigan v.

Jackson. In that case, the Supreme Court held that under the 

Sixth Amendment, "if police initiate interrogation after a 

defendant's assertion, at an arraignment or similar proceeding, 

of his right to counsel, any waiver of the defendant's right to 

counsel for that police-initiated interrogation is invalid." 475 

U.S. at 636. Before considering the merits of Flamer's argument, 

however, we must decide whether, as the state argues and the 

district court held, the application of Jackson to this case 

would violate the nonretroactivity principle of Teague v. Lane, 

489 U.S. 288 (1989) (plurality), and subsequent Supreme Court 

decisions. See, e.g., Caspari v. Bohlen, 114 S. Ct. 948, 952-53 

(1994); Graham v. Collins, 113 S. Ct. 892, 879-98 (1993); Butler 

v. McKellar, 494 U.S. 407, 412-14 (1990); Saffle v. Parks, 494 

U.S. 484, 487-88 (1990); Penry v. Lynaugh, 492 U.S. 302 (1989). 
18 

 The Supreme Court has explained Teague's 

nonretroactivity principle as follows: 

 The nonretroactivity principle prevents

a federal court from granting habeas corpus 

relief to a state prisoner based on a rule 

announced after his conviction and sentence 

became final. See, e.g., Stringer v. Black, 

502 U.S. ___, ___, 112 S. Ct. 1130, 1139, 117 

L.Ed.2d 367 (1992). A threshold question in 

every habeas case, therefore, is whether the 

court is obligated to apply the Teague rule 

to the defendant's claim. . . . 

 "[A] case announces a new rule if the 

result was not dictated by precedent existing 

at the time the defendant's conviction became 

final." Teague v. Lane, 489 U.S., at 301, 

109 S. Ct., at 1070. In determining whether 

a state prisoner is entitled to habeas 

relief, a federal court should apply Teague

by proceeding in three steps. First, the 

court must ascertain the date on which the 

defendant's conviction and sentence became 

final for Teague purposes. Second, the court 

must "[s]urve[y] the legal landscape as it 

then existed," Graham v. Collins, supra, 506 

U.S. at ____, 113 S. Ct., at 898, and 

"determine whether a state court considering 

[the defendant's] claim at the time his 

conviction became final would have felt 

compelled by existing precedent to conclude 

that the rule [he] seeks was required by the 

Constitution." Saffle v. Parks, 494 U.S. 

484, 488, 110 S. Ct. 1257, 1260, 108 L.Ed.2d 

415 (1990). Finally, even if the court 

determines that the defendant seeks the 

benefit of a new rule, the court must decide 

whether that rule falls within one of the two 

narrow exceptions to the nonretroactivity 

principle. See Gilmore v. Taylor, 508 U.S. 

___, ___ , 113 S. Ct. 2112, 2113, 124 L.Ed.2d 

306 (1993). 

Caspari, 114 S. Ct. at 953. 

 The first of these exceptions applies to decisions that 

decriminalize "`certain kinds of primary, private individual 
19 

conduct beyond the power of the criminal-law making authority to 

proscribe.'" Teague, 489 U.S. at 311 (quoting Mackey v. United 

States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in the 

judgment). The second exception, which applies to "watershed 

rules of criminal procedure," id., is generally restricted to 

decisions announcing "new procedures without which the likelihood 

of an accurate conviction is seriously diminished." Id. at 313. 

 Proceeding in accordance with the three steps outlined 

in Caspari, we first note that Flamer's conviction and sentence 

became final for Teague purposes on October 7, 1985, when the 

Supreme Court denied his petition for a writ of certiorari to 

review the decision of the Delaware Supreme Court upholding his 

conviction and death sentence on direct appeal. See Caspari, 114 

S. Ct. at 953 ("A state conviction and sentence become final for 

purposes of retroactivity analysis when the availability of 

direct appeal to the state court has been exhausted and the time 

for filing a petition for a writ of certiorari has elapsed or a 

timely filed petition has been finally denied."); Griffith v. 

Kentucky, 479 U.S. 314, 321 n.6 (1987). 

 Advancing to the second step, we note that Jackson had 

not been decided on that date.0 We must therefore survey the 

pre-Jackson legal landscape and determine whether a state court 

would have felt compelled by existing Sixth Amendment precedent 

to apply the Jackson rule even before it was embraced by the 

Supreme Court. Addressing this question in Collins v. Zant, 892 

 

0

Jackson was decided approximately six months later, on April 1, 

1986. See 475 U.S. at 625. 
20 

F.2d 1502 (11th Cir.), cert. denied, 498 U.S. 881 (1990), the 

Eleventh Circuit held that "the rule announced in Jackson

undoubtedly constitutes a `new rule'." Id. at 1511. The 

Eleventh Circuit explained that Jackson "imposed a new obligation 

on police (not to initiate an interrogation after a defendant has 

asserted his right to counsel under the [S]ixth [A]mendment) and 

established a bright-line rule excluding police-initiated 

statements (a result not dictated by then existing precedent)." 

Id. at 1512; accord Henderson v. Singletary, 968 F.2d 1070, 1073 

(11th Cir.), cert. denied, 113 S. Ct. 621 (1992). See Bannister 

v. Armontrout, 4 F.3d 1434, 1440 n.7 (8th Cir. 1992) (petitioner 

could not rely on Jackson because it was decided after his 

conviction became final); see also McNeil v. Wisconsin, 501 U.S. 

171, 179-80 (1991) (stating that Jackson established "a new Sixth 

Amendment rule of no police-initiated interrogation") (emphasis 

added). 

 Flamer argues that the decision in Jackson was 

"expressly foreshadowed" by Maine v. Moulton, 474 U.S. 159 

(1985). It is clear, however, that Moulton does not support 

Flamer's position in this case. Like Jackson, Moulton was not 

decided0 until after Flamer's conviction became final for 

retroactivity purposes. Moreover, Jackson was not "dictated" by 

Moulton. The holding in Moulton was quite narrow: that the Sixth 

Amendment right to counsel prohibits the police, after the 

initiation of judicial proceedings against a defendant, from 

 

0

Moulton was decided on December 10, 1985. 
21 

monitoring a conversation in which an undercover agent elicits 

statements from the defendant about the pending case.0 This 

fact-specific holding did not compel the adoption of the sweeping 

Jackson rule, and nothing in the Jackson opinion suggests that 

the Supreme Court felt that it did. Indeed, the Jackson opinion 

did not rely heavily on Moulton and cited that case only for 

propositions that were quite peripheral to the Court's holding.0

 Flamer next argues that the following court of appeals 

decisions dictated the Jackson rule: Felder v. McCotter, 765 

F.2d 1245, 1250 (5th Cir. 1985), cert. denied, 475 U.S. 1111 

 

0

In Moulton, the police knew that a defendant under indictment 

was planning to meet with his codefendant, a secret government 

informant, for the purpose of discussing the pending charges and 

planning a defense. The police therefore arranged for the 

informant to wear a body recorder, and they recorded the 

conversation. Relying chiefly on Massiah v. United States, 377 

U.S. 201 (1964), and United States v. Henry, 447 U.S. 264 (1980), 

the Court held that the state had violated Moulton's Sixth 

Amendment rights when it arranged to record his conversations 

with the undercover agent, Colson. "By concealing the fact that 

Colson was an agent of the State," the Court explained, "the 

police denied Moulton the opportunity to consult with counsel and 

thus denied him the assistance of counsel guaranteed by the Sixth 

Amendment." 474 U.S. at 177 (footnote omitted). 

0

Jackson cited Moulton four times. See 475 U.S. at 630 (citing 

Moulton, along with three other cases, for the proposition that, 

after the initiation of judicial proceedings, interrogation of 

the accused is a "critical stage" for Sixth Amendment purposes); 

id. at 632 (quoting Moulton's statement that the "Sixth Amendment 

guarantees the accused, at least after the initiation of formal 

charges, the right to rely on counsel as a `medium' between him 

and the State."); id. (footnote omitted) (citing Moulton for the 

proposition that "the electronic surveillance of conversations 

with third parties . . . may violate the defendant's Sixth 

Amendment right to counsel even though the same methods of 

investigation might have been permissible before arraignment or 

indictment"); id. at 634 (citing Moulton in support of the 

proposition that "the Sixth Amendment concerns the confrontation 

between the State and the individual."). 
22 

(1986); United States v. Ledezma-Hernandez, 729 F.2d 310, 313 

(5th Cir. 1984); United States v. Eagle Elk, 711 F.2d 80, 83 (8th 

Cir. 1983), cert. denied, 465 U.S. 1013 (1984). We see no merit 

in this argument. Jackson is not a new rule within the meaning 

of Teague unless it was "dictated by precedent existing at the 

time the defendant's conviction became final." Teague, 489 U.S. 

at 301 (emphasis in original). A rule is not dictated by 

precedent merely because there is a "debate among reasonable 

minds" as to its applicability. Butler, 494 U.S. at 415 (1990). 

At best, the cases cited by Flamer indicate a difference of 

opinion regarding the test for determining, under the Sixth 

Amendment, whether a defendant has waived the right to the 

presence of counsel during interrogation.0

 Flamer's final argument in support of the conclusion 

that Jackson did not announce a "new rule" is that the Delaware 

Supreme Court's own decision in Deputy v. State, 500 A.2d 581, 

591-92 (1985), cert. denied, 480 U.S. 940 (1987), compelled that 

court to adopt the Jackson rule. In Deputy, the Delaware Supreme 

 

0

Ledezma-Hernandez, 729 F.2d at 313, discussed the defendant's 

Fifth Amendment right to counsel pursuant to Edwards and Miranda. 

In Felder, 765 F.2d at 1248-50, the court applied a traditional 

Brewer analysis to circumstances in which a defendant is known to 

have counsel. 

 

 Although the Eighth Circuit in Eagle Elk, 711 F.2d at 

82-83, did conclude that "the appropriate standard for reviewing 

the validity of a waiver of the [S]ixth [A]mendment right to have 

counsel present at an interrogation is essentially the same 

standard applied to waivers of the [F]ifth [A]mendment right to 

counsel where the right to counsel has been previously invoked," 

id. (footnote omitted), a single court of appeals decision cannot 

by itself "dictate" a rule subsequently articulated by the 

Supreme Court. 
23 

Court excluded the confession of Flamer's codefendant, Andre 

Deputy, which was obtained after Deputy's arraignment. Deputy, 

500 A.2d at 592. In support of its conclusion excluding Deputy's 

confession, the Delaware Supreme Court wrote: 

In the Sixth Amendment context, once the 

adversarial judicial process has begun, [the] 

defendant is entitled to the presence of 

counsel during police interrogations as a 

matter of inherent right. Therefore, the 

only means by which waiver could be 

established, and still remain consistent with 

the Fifth Amendment waiver analysis, would 

involve some form of affirmative overt action 

by the defendant which indicated his 

willingness to talk to law enforcement 

officers. 

Id. at 591. We see at least three major flaws in Flamer's 

argument that Deputy dictated the adoption of the Jackson rule. 

 First, it does not appear that the Delaware Supreme 

Court interprets its decision in Deputy as adopting a Jacksonlike rule. In affirming the denial of Flamer's petition for 

postconviction relief, the Delaware Supreme Court decided, as a 

matter of state law, to adopt the Teague nonretroactivity rule 

for use in state postconviction proceedings. See 585 A.2d at 

749. Under this rule, the Delaware Supreme Court's decision in 

Deputy was applicable to Flamer, since that decision was handed 

down before Flamer's conviction became final. Thus, if the 

Delaware Supreme Court had felt that its own decision in Deputy

had adopted a rule like Jackson's, the Delaware Supreme Court 

should have applied that rule in Flamer's case. But Deputy was 

not even mentioned in this context. Instead, the Delaware 
24 

Supreme Court simply held that Jackson established a new rule and 

refused to apply that rule retroactively. 

 Second, we do not interpret Deputy as a foreshadowing 

of Jackson, but as an application of the totality-of-thecircumstances test set out in Brewer. The court in Deputy

distinguished the factual circumstances of Deputy's confession 

from those of Flamer's confession, id. at 591-92 n.15, in a 

manner that suggested it was applying a traditional Brewer

analysis. Unlike Flamer, who was brought before a magistrate on 

the morning after the day of his arrest, Deputy was interrogated 

at Troop 5 on the morning of his arrest and was given a polygraph 

before being arraigned at 2:00 P.M. Id. Although the magistrate 

ordered that Deputy be committed to the Sussex County 

Correctional Facility at this time, he was brought back to Troop 

5 and questioned for another eight hours. Deputy did not respond 

when he was asked whether he wished to speak with an attorney. 

Considering the totality of the circumstances surrounding the two 

confessions, the Delaware Supreme Court held that Deputy's 

confession had to be suppressed under Brewer, id. at 592, 

although it had earlier held that suppresion of Flamer's 

confession was not required. See Flamer I, 490 A.2d at 113-115.0

 

 Flamer contends that Jackson should nevertheless be 

applied retroactively because it fits within the second exception 

 

0

Furthermore, we doubt that, as Flamer seems to argue, a rule can 

be old for Teague purposes in some states but new in others. 

Certainly, Flamer has not cited any precedent for this 

proposition. Accordingly, we hold, as has the Eleventh Circuit, 

that Jackson announced a "new rule." 
25 

to the Teague principle. We disagree. This exception is limited 

to "`watershed rules of criminal procedure' implicating the 

fundamental fairness and accuracy of the criminal proceeding." 

Saffle, 494 U.S. at 495 (quoting Teague, 489 U.S. at 311). As 

stated in Graham, this exception applies to that "small core of 

rules requiring `observance of those procedures that . . . are 

implicit in the concept of ordered liberty.'" 113 S. Ct. at 903 

(quoting Teague, 489 U.S. at 311). Like the Eleventh Circuit, we 

do not think that the Jackson rule fits into this category but is 

instead more accurately described as a prophylactic rule that 

provides one means of protecting a constitutional right. See

Collins, 892 F.2d at 1512. 

 We therefore hold that Jackson may not be applied 

retroactively in this case and that Flamer is not entitled to 

relief under the Sixth Amendment. 

 B. The Fifth Amendment right to counsel 

 Flamer also argues that his confession must be 

suppressed under the Supreme Court's decision in Edwards v. 

Arizona, 451 U.S. 477 (1981), and other Fifth Amendment 

jurisprudence.0 In Edwards, the Court held that under the Fifth 

Amendment, once an accused has invoked the right to have counsel 

present during custodial interrogation, the accused cannot be 

questioned further until counsel has been made available unless 

 

0

The district court held that Flamer's Fifth Amendment claim was 

procedurally barred. See 827 F. Supp. at 1087-89. However, the 

state's appellate brief did not advance this argument, and we 

decline to address it. 
26 

the accused initiates the conversation and knowingly and 

intelligently waives his right to have counsel present. Id. at 

484-85. Although Edwards was not decided until after Flamer's 

trial, Flamer's direct appeal was pending at the time of the 

decision, and therefore Edwards is applicable to his case. Flamer 

makes two separate arguments for the suppression of his 

confession under Edwards: (1) the Edwards rule came into play 

when he allegedly asked for an attorney during custodial 

interrogation prior to his arraignment and (2) the Edwards rule 

became applicable when he asked for counsel at the time of his 

arraignment. 

 1. In support of the first of these arguments, Flamer 

maintains that he requested an attorney during custodial 

interrogation by asking to call his mother. The Delaware courts 

found, however, that Flamer did not ask for an attorney during 

the interrogation. On direct appeal, the Delaware Supreme Court 

wrote that "defendant did not request counsel at any stage of his 

interrogation." Flamer I, 490 A.2d at 114. In denying Flamer's 

petition for post-conviction relief, the Delaware Superior Court 

found that "[a]t no time prior to or during the taped statement 

did Flamer tell any police officer that he wished to have an 

attorney present before any further questioning." Flamer III, JA 

at 2626-27. In affirming the decision of the Superior Court, the 

Delaware Supreme Court adhered to these findings. Flamer IV, 585 

A.2d at 747. 

 Under the federal habeas statute, this court is bound 

by factual determinations made by a state court of competent 
27 

jurisdiction unless one of the exceptions set out in 28 U.S.C. 

§2254(d) applies. Flamer relies on the exception in 28 U.S.C. 

§2254(d)(8) that applies if a state court's factual determination 

is not "fairly supported by the record." Deference is owed to 

the factual findings of a state appellate court as well as to 

those of a trial court. Sumner v. Mata, 449 U.S. 539 (1981); 

Pemberthy v. Beyer, 19 F.3d 857, 864 (3d Cir. 1994); Hakeem v. 

Beyer, 990 F.2d 750, 768 (3d Cir. 1993). Thus, the factual 

findings of the Delaware courts are binding on this court if they 

have fair support in the record. We conclude that they do. 

 Flamer testified at his suppression hearing, held 

before the Delaware Superior Court in a post-conviction 

proceeding, that on several occasions prior to his confession, he 

had asked permission to make a phone call. JA at 1861, 1862, 

1864, 1865, 1867. However, Flamer's testimony that he asked for 

a lawyer during his interrogation was contradicted at the 

suppression hearing by several officers. See, e.g., Transcript 

of Suppression Hearing (Oct. 29, 1979), Testimony of Officer 

Chaffinch, JA at 120 ("Q: Did he [Flamer] ever ask for a lawyer? 

A: No. In fact, I asked him did he want to call one on a couple 

of occasions and he said no, indicating no."). In addition, 

Flamer acknowledged at the Rule 61 evidentiary hearing that he 

thought his Miranda rights had been read to him shortly after his 

arrest. JA at 2547. See also Transcript of Suppression Hearing 

(Oct. 31, 1979), Testimony of Officer Callaway, JA at 342 

(stating that Flamer's rights had been read to him when he was 

arrested and again when he was first brought to Troop 5, and that 
28 

on neither of these occasions did Flamer request an attorney). In 

light of this evidence, the state courts' findings that Flamer 

did not request an attorney are fairly supported by the record 

and are thus binding.0 

 2. Flamer also argues that he invoked his Fifth 

Amendment right to counsel at the arraignment, which occurred 

before his confession. At the arraignment, Flamer asked 

permission to call his mother "in order to inquire about bail and 

possible representation by counsel." Flamer IV, 585 A.2d at 742. 

The magistrate told him he was free to do so "but that he would 

appoint the public defender to represent him in any event." Id.

Flamer and the magistrate both signed a form labeled "Application 

and Order Appointing Counsel." See JA at 30. The portion signed 

by Flamer stated that he "request[ed] appointment of counsel"; 

the portion signed by the magistrate stated that, "not having 

waived the appointment of counsel," the defendant would be 

represented by the public defender. Id.

 Turning first to Flamer's request to call his mother 

"to inquire about . . . possible representation," 585 A.2d at 

742, we hold that this request was insufficient to trigger 

Edwards under the Supreme Court's decision in Davis v. United 

 

0

Flamer asserts that these state court findings are flawed 

because no Edwards Fifth Amendment claim was under consideration 

during the proceedings in which the factual determinations were 

made. Whether Flamer requested an attorney is a question of 

fact, however, and the validity of the state courts' findings is 

not affected because the courts were considering a somewhat 

different legal issue when those findings were made. 
29 

States, 114 S. Ct. 2350 (1994).0 In that case, the Court held 

that Edwards applies only if a defendant "unambiguously" requests 

counsel. Id. at 4589. "[I]f a suspect makes a reference to an 

attorney that is ambiguous or equivocal in that a reasonable 

officer in light of the circumstances would have understood only 

that the suspect might be invoking the right to counsel," Edwards

does not come into play. Id. Here, Flamer's request to 

telephone about possible representation "fail[ed] to meet the 

requisite level of clarity" that Davis demands. Id.

 As for Flamer's contention that Edwards was triggered 

by his request for the appointment of counsel at the arraignment, 

this argument is foreclosed by McNeil v. Wisconsin, 501 U.S. 171 

(1991).0 There, the defendant requested an attorney at his 

arraignment for an armed robbery in West Allis, Wisconsin,0 but 

during subsequent custodial interrogation regarding offenses that 

 

0

Davis may be applied retroactively despite Teague v. Lane

because Teague only applies to a change in the law that favors

criminal defendants. Gilmore v. Taylor, 113 S.Ct. 2112, 2116 

(1993). See also Lockhart v. Fretwell, 113 S.Ct. 838, 844 

(1993). 

0

Like Davis, McNeil may be applied retroactively because McNeil

did not work a change in the law favoring criminal defendants. 

See supra note 14. 

0

The Supreme Court was reviewing a decision of the Wisconsin 

Supreme Court that answered "no" to the following question 

certified by the intermediate state appellate court: 

Does an accused's request for counsel at an 

initial appearance on charged offense 

constitute an invocation of his fifth 

amendment right to counsel that precludes 

police initiated interrogation on unrelated, 

uncharged offenses. 

See 501 U.S. at 175. 
30 

occurred in Caledonia, Wisconsin, he waived his Miranda rights 

without the presence of counsel and gave incriminating statements 

about the Caledonia offenses. The Supreme Court held that 

suppression of these statements was not required under either the 

Sixth or Fifth Amendments. The Court concluded that the Sixth 

Amendment and the rule adopted in Michigan v. Jackson, supra, did 

not apply because they are "offense specific." Id. at 175. Thus, 

the Court held, invocation of the Sixth Amendment right to 

counsel does not restrict police-initiated interrogation 

concerning other offenses. Id. at 175-78. As for the Fifth 

Amendment right to counsel recognized in Miranda and Edwards, the 

Court held that the defendant had never invoked that right. The 

Court held that the defendant's request for counsel at 

arraignment was inadequate to invoke Edwards. Rather, the Court 

concluded, Edwards "requires, at a minimum, some statement that 

can reasonably be construed to be an expression of a desire for 

the assistance of an attorney in dealing with custodial 

interrogation by the police. Requesting the assistance of an 

attorney at a bail hearing does not bear that construction." Id.

at 178 (emphasis in original). 

 Under McNeil, Flamer's request for counsel at 

arraignment did not constitute an invocation of his Fifth 

Amendment right to counsel during custodial interrogation. 

Pursuant to this precedent, Flamer's request cannot "reasonably 

be construed to be an expression of a desire for the assistance 

of an attorney in dealing with custodial interrogation by the 

police." 501 U.S. at 178 (emphasis in original). 
31 

 In response to the state's reliance on McNeil, Flamer's 

reply brief first argues as follows: 

McNeil stands only for the proposition that 

an accused's Sixth Amendment right to counsel 

does not preclude police initiated 

interrogations related to offenses distinct 

from those with which he or she is charged. 

This holding has absolutely no applicability 

in Flamer's case. 

Reply Br. at 11. This brief later states: 

McNeil simply stands for the proposition that 

an accused who has requested and been 

appointed an attorney at a bail hearing on 

specified charges has not invoked his right 

to have counsel present when questioned 

regarding other charges. 

Id. at 25. 

 We disagree with this interpretation of McNeil, which 

must be based on one or both of the following propositions: (a) 

that McNeil addressed only the accused's Sixth Amendment right to 

counsel or (b) that the Fifth Amendment right to counsel is 

offense specific. Both of these propositions, however, are 

incorrect. As noted, McNeil addressed both the accused's Fifth 

and Sixth Amendment rights. Moreover, it is well established 

that the Fifth Amendment right to counsel during custodial 

interrogation (and the Edwards rule, which is based on this 

right) are not offense specific. As the Supreme Court clearly 

stated in McNeil, 501 U.S. at 177 (emphasis in original): 

The Edwards rule. . . is not offense 

specific: Once a suspect invokes the Miranda

right to counsel for interrogation regarding 

one offense, he may not be reapproached 

regarding any offense unless counsel is 

present. Arizona v. Roberson, 486 U.S. 675 

(1988). 
32 

See also Alston v. Redman, 34 F.3d 1237, 1243 (3d Cir. 1994) 

("The Edwards protection is not offense-specific. Rather, a 

suspect who has requested the presence of counsel cannot be 

questioned concerning any crime, not just the one that put him in 

custody."), cert. denied, 115 S. Ct. 1122 (1995). 

 Once it is recognized that the Fifth Amendment right to 

counsel and the Edwards rule are not offense-specific, it becomes 

clear that McNeil stands for the proposition that a request for 

an attorney at arraignment is, in itself, insufficient to invoke 

the Fifth Amendment right to counsel at subsequent custodial 

interrogation -- even if that interrogation concerns the offense 

on which the defendant was arraigned. In McNeil, as noted, the 

defendant requested counsel at his arraignment on the West Allis 

charge. If this request had constituted the invocation of the 

Miranda right to counsel with respect to future custodial 

interrogation concerning the West Allis offense, this request 

would have likewise restricted future custodial interrogation 

concerning any other offenses, including the Caledonia offense, 

because "[o]nce a suspect invokes the Miranda right to counsel 

for interrogation regarding one offense, he may not be 

reapproached regarding any offense unless counsel is present." 

McNeil, 501 U.S. at 177 (emphasis in original). The Supreme 

Court held, however, that the Edwards rule did not apply to 

McNeil's subsequent custodial interrogation concerning the 

Caledonia offenses. In light of the fact that the Edwards rule 

is not offense-specific, this holding cannot rest on the 
33 

distinction between the West Allis and Caledonia offenses. 

Rather, it must rest on the proposition that merely requesting an 

attorney at arraignment is insufficient to constitute a request 

for an attorney in connection with future custodial 

interrogation. As the Court stated, the Edwards rule applies 

only when the suspect "ha[s] expressed" his 

wish for the particular sort of lawyerly 

assistance that is the subject of Miranda. 

Edwards, supra, at 484 (emphasis added). It 

requires, at a minimum, some statement that 

can reasonably be construed to be an 

expression of a desire for the assistance of 

an attorney in dealing with custodial 

interrogation by the police. Requesting the 

assistance of an attorney at a bail hearing 

does not bear that construction. 

McNeil, 501 U.S. at 178 (emphasis in original omitted; emphasis 

added); see also, Alston, 34 F.3d at 1244-48 (Fifth Amendment 

right to counsel at custodial interrogation cannot be invoked 

anticipatorily). Consequently, we hold that Flamer's request for 

counsel at arraignment did not trigger Edwards. 

 In addition, even if Flamer's argument were not 

directly controlled by McNeil, we do not believe that his 

argument could survive Teague's nonretroactivity principle. In 

answer to the respondent's reliance on Teague in the district 

court, Flamer's opening brief states that many of his arguments 

concerning this question "parallel [his] Jackson `new rule' 

argument," and he cross-references the portion of his brief that 

contends that Jackson was not a "new rule." See Appellant's Br. 

at 57. We have already concluded, however, that Jackson was a 

"new rule," and consequently this conclusion seriously undermines 
34 

Flamer's contention that his invocation of his right to counsel 

at arraignment prohibited any subsequent police-initiated 

questioning about any offense without counsel present. Prior to 

Jackson, no such rule was dictated by existing precedent. Indeed, 

we are not aware of any precedent that dictates the adoption of 

such a rule even today. Adoption of such a rule would extend 

both Jackson (by making it non-offense-specific) and Edwards (by 

making the invocation of the right to counsel at arraignment 

sufficient to trigger an accused's Fifth Amendment rights). Such 

an extension, like Jackson, see supra pages 16 to 24, and 

Edwards, see Solem v. Stumes, 465 U.S. 638 (1983), would 

constitute a "new rule" that could not be applied retroactively 

to Flamer's case.0 

III.

 Flamer contends that he is entitled to a new trial 

because he was given constitutionally ineffective assistance by 

 

0

Although respondent expressly relied on Teague in the district 

court, their brief on appeal does not contain any such express 

reliance. Nevertheless, we believe it is appropriate for us to 

apply Teague. "[A] federal court may, but need not, decline to 

apply Teague if the State does not argue it." Caspari, 114 S. Ct. 

at 953; Schiro v. Farley, 114 S. Ct. 783, 788 (1994). Here, the 

respondents expressly argued Teague in the district court in 

relation to this argument, and they vigorously argued Teague on 

appeal in relation to Flamer's Jackson argument, which Flamer 

acknowledges is closely related and is governed by essentially 

the same Teague analysis. This case is thus quite different from 

Wilmer v. Johnson, 30 F.3d 451, 454-55 (3d Cir. 1994), in which 

we declined, in the exercise of our discretion, to apply Teague. 

In that case, the defense had not been raised in the district 

court and was first raised "in a supplemental brief requested by 

the court on appeal." Id. at 7. 
35 

the attorney who represented him in his original trial and direct 

appeal, Dennis Reardon. Flamer rests his argument on the 

following alleged errors of his attorney: (1) failure to seek 

suppression of the confession on Fifth and Sixth Amendment 

grounds; (2) failure to present a "unified" defense theory; (3) 

inadequate cross-examination of the medical examiner; (4) calling 

Flamer to testify; (5) failure to make a closing argument in the 

guilt phase of the trial; and (6) inadequate presentation of 

mitigating evidence and a cursory closing in the penalty phase of 

the trial. 

 In Strickland v. Washington, 466 U.S. 668 (1984), the 

Supreme Court established a two-part test for judging ineffective 

assistance of counsel claims. First, the defendant must show 

that counsel's performance was deficient. This requires showing 

that "counsel made errors so serious that counsel was not 

functioning as the `counsel' guaranteed the defendant by the 

Sixth Amendment." Id. at 687. After explaining that this 

showing requires proof that "counsel's representation fell below 

an objective standard of reasonableness.... under prevailing 

professional norms," id. at 688, the Court admonished: 

Judicial scrutiny of counsel's performance 

must be highly deferential..., [because] [i]t 

is all too tempting for a defendant to 

second-guess counsel's assistance after 

conviction or adverse sentence, and it is all 

too easy for a court, examining counsel's 

defense after it has proved unsuccessful, to 

conclude that a particular act or omission of 

counsel was unreasonable. 

Id. at 689. 

 
36 

 Second, the defendant must show that counsel's 

ineffectiveness was prejudicial. Id. at 692. In Strickland, the 

Court wrote that "when a defendant challenges a conviction, the 

question is whether there is a reasonable probability that, 

absent the errors, the factfinder would have had a reasonable 

doubt respecting guilt." Id. at 695. The Court added that "when 

a defendant challenges a death sentence. . . , the question is 

whether there is a reasonable probability that, absent the 

errors, the sentencer . . . would have concluded that the balance 

of aggravating and mitigating circumstances did not warrant 

death." Id. More recently, in Lockhart v. Fretwell, 113 S. Ct. 

838, 842 (1993), the Court clarified the meaning of "prejudice" 

under the Strickland test, explaining: 

Under our decisions, a criminal defendant 

alleging prejudice must show "that counsel's 

errors were so serious as to deprive the 

defendant of a fair trial, a trial whose 

result is reliable." . . . Thus, an analysis 

focussing solely on the mere outcome 

determination, without attention to whether 

the result of the proceeding was 

fundamentally unfair or unreliable, is 

defective. 

Id. (citation and footnote omitted). Applying these standards, 

we will address each of the errors alleged by Flamer. 

 A. Admission of Flamer's confession

 Flamer alleges that his attorney rendered 

constitutionally deficient assistance because he failed to 

investigate the circumstances of Flamer's confession and failed 

to move to suppress the confession before trial. As we discussed 
37 

above, however, admission of the confession did not violate 

Flamer's rights under the Fifth or Sixth Amendment and, in light 

of this conclusion, Flamer's ineffective assistance of counsel 

argument must fail. 

 First, it seems clear that Flamer's trial attorney did 

not render constitutionally deficient assistance by failing to 

seek relief -- suppression of the confession -- that was not 

warranted under the law as it existed before Flamer's conviction 

became final. Second, Flamer was not prejudiced by counsel's 

performance because he would not have been entitled to 

suppression of the confession even if that relief had been 

sought. The possibility that the trial judge might have 

erroneously ruled in Flamer's favor had a motion to suppress been 

made -- and there is nothing to suggest that the judge would have 

made such an error -- does not establish prejudice under 

Strickland. "A defendant has no entitlement to the luck of a 

lawless decisionmaker." Strickland, 466 U.S. at 695. As the 

Court squarely held in Fretwell, 113 S. Ct. at 842-45, a finding 

of prejudice under Strickland cannot be predicated on the 

possibility that the defendant might have benefitted from an 

erroneous decision in his or her favor. 

 B. Failure to pursue a "unified" theory of defense

 Flamer claims that Reardon was constitutionally 

ineffective because he failed to develop or pursue a theory of 

the case that was uniform throughout the guilt and penalty phases 
38 

of the trial. In response to this argument, the Supreme Court of 

Delaware wrote: 

We adopt the finding of the Superior Court 

which concluded that Flamer's claim is 

contradicted by the evidence. Reardon's 

strategy was to raise doubt in the State's 

case against Flamer by asserting that Deputy, 

rather than Flamer, was responsible for the 

homicides. . . . Reardon's performance was 

within the wide range of reasonable 

professional assistance. 

585 A.2d at 755-56. The district court agreed, stating: 

On the record presented, the Court concludes 

that a unified defense was presented and 

while trial counsel may not have been the 

best advocate, his performance was within the 

standards required by Strickland. Further, 

as found by the state court, the evidence 

against Flamer even absent his confession was 

so overwhelming as to prohibit any conclusion 

of prejudice on collateral review. 

827 F. Supp. at 1104. 

 Whether Reardon formulated a "unified" theory is a 

question of fact, and we are therefore bound by the findings of 

the state courts, unless one of the exceptions set out in 28 

U.S.C. § 2254(d) is met. Flamer seems to suggest that the 

exception in 28 U.S.C. § 2254(d)(8) applies, because the state 

courts' findings are not fairly supported by the record, but we 

find it unnecessary to reach this question.0 Even if Reardon 

 

0

There is clearly some support in the record for the state 

courts' findings that Reardon's strategy throughout the case 

involved the casting of blame on Deputy. At the post-conviction 

hearing, Reardon testified that his strategy in the guilt phase 

was "[t]hat William [Flamer] didn't do it. That any 

participation William had was at the instigation of Andre Deputy. 

I think William's statement indicated that he did do some 

stabbing but he didn't cause any death." J.A. 2350. Consistent 
39 

never formulated a "unified" theory, that in itself would not 

constitute ineffective assistance of counsel. 

 It seems quite obvious that a defense attorney's 

performance need not be based on some grand overarching theory in 

order to meet constitutional requirements. "There are countless 

ways to provide effective assistance in any given case. Even the 

best criminal defense attorneys would not defend a particular 

client in the same way." Strickland v. Washington, 466 U.S. at 

689. Perhaps the single most commonly employed defense trial 

strategy is to eschew any single pre-planned theory and to put 

the prosecution to its proof and exploit any weakness that became 

evident as the trial unfolds.0 

 Thus, even if Reardon did not have a single "unified" 

theory, it does not necessarily follow that his performance was 

deficient. Whatever other strategy or strategies Reardon might 

 

with this approach, at the penalty phase, Reardon referred to 

Deputy's role, albeit briefly, in his opening and closing. 

 It is true that when Reardon was asked at the post-conviction 

hearing what his theory was at the penalty phase, he replied 

laconically that his theory was to present Flamer as "a poor 

uneducated drunk." JA at 2350. We are not persuaded, however, 

that this statement alone is sufficient to undermine the findings 

of the Delaware courts that Reardon's strategy at both phases of 

the trial involved the casting of blame on Deputy. 

0

During the Rule 35 hearing, Reardon stated that he had discussed 

with Flamer prior to trial what they would be doing: "Basically 

what a criminal trial is all about; how it will proceed and what 

we shall do; what we shall attempt to do and that is to discredit 

during cross-examination." JA at 1897. Later, he described his 

strategy: "Our game plan as we expected one to be was certainly 

to pay as close attention as possible in trying to grasp ahold of 

any weakness the State might produce or leave out; mainly to try 

to demonstrate that William was, as he said, not the instigator, 

that Williams [sic] just happened to be along and got caught up 

into something that was out of his control." Id. at 1899. 
40 

have also had in mind, the record is plainly sufficient to show 

that he attempted during the guilt phase to exploit weaknesses in 

the state's case and to cast blame on Deputy and that he sought 

during the penalty phase to elicit pity for Flamer. In view of 

the evidence with which Reardon had to contend, such an approach 

hardly seems unreasonable. 

 At all events, we believe that it is Reardon's actual 

performance at trial, rather than his pretrial strategizing, that 

is most pertinent. As the Supreme Court has stated, "there is 

generally no basis for finding a Sixth Amendment violation unless 

the accused can show how specific errors of counsel undermined 

the reliability of the burden of guilt." United States v. 

Cronic, 466 U.S. 648, 659 (1984) (emphasis added). 

 In this connection, Flamer complains that Reardon did 

not do enough to shift blame to Deputy. We will discuss the 

penalty phase below, but with respect to the guilt phase we see 

no merit in this argument. Flamer refers to Deputy's prior 

criminal convictions, but he does not explain how Reardon could 

have secured the admission of these convictions at the guilt 

phase. See Del. Uniform Rule of Evid. 404(b). He also suggests 

that Reardon should have emphasized the following facts: 

Deputy was from the city. Flamer was the 

product of a small town. Deputy was older 

and larger and more violent than Flamer. 

Deputy had the victims' belongings on his 

person when arrested. 

Appellant's Br. at 30. In view of all of the evidence in this 

case, these facts strike us as having only a modest potential for 
41 

benefiting Flamer. We are not prepared to hold that Reardon 

violated the Sixth Amendment by failing to exploit them. 

 Furthermore, even if evidence regarding Deputy could 

have been presented more effectively, we do not believe that 

Flamer was prejudiced by the failure to do so. Flamer was 

confronted by overwhelming physical evidence connecting him to 

the crime. In his confession, he admitted that it was he, not 

Deputy, who initiated the stabbing. In addition, Flamer was the 

Smiths' nephew, and it was that relationship that enabled Flamer 

to talk his way into their home in order to murder them. Although 

Deputy, unlike Flamer, had a violent criminal record at the time 

of the slayings, we do not believe there is a "reasonable 

probability" under Strickland, 466 U.S. at 695, that the jury, 

had it been presented with more evidence about Deputy or his 

record, would have concluded that Flamer had not committed these 

murders. 

 C. Cross-examination of the medical examiner

 Flamer asserts that Reardon did not cross-examine the 

medical examiner adequately in that he "failed to inquire whether 

the wounds on the victims could have been inflicted by a third 

weapon even though Flamer had mentioned . . . a third weapon in 

the taped statement." Flamer's Br. at 32-33. Flamer argues that 

by eliciting testimony regarding a possible third weapon, Reardon 

could have created reasonable doubt regarding Flamer's guilt on 

the intentional first-degree murder count. 
42 

 This claim is highly speculative. First, although 

Flamer did confess to the police that he had disposed of another 

knife in addition to the one with which he admitted stabbing his 

uncle, JA at 33-34, Flamer did not say that this knife was 

present during the murder; nor did he ever suggest that Deputy 

had used it or even knew of its existence. In order to create a 

reasonable doubt using a "third-knife" theory, Reardon would have 

needed to establish some probability that each of the following 

things occurred: (1) a third knife such as the one described by 

Flamer in his confession could have produced some of the wounds 

found on the bodies of the two victims; (2) this third knife was 

brought to the Smiths' home; (3) Deputy elected to discard his 

bayonet in favor of a smaller knife in the midst of stabbing the 

two victims; and (4) Flamer did not use this knife. Even if 

Reardon succeeded in making all this seem possible, however, he 

still would have needed to contend with the fact that Flamer's 

confession does not mention any of this in discussing the 

murder.0

 

0

 Q: You used your little knife to stab Byard? Who had 

the big knife? 

A: Andre. 

Q: And he used it to stab who? 

A: He killed Aunt Alberta and then he was killing 

Byard. 

Q: With the big knife? 

A: Unhu. 

Q: Did you ever have the big knife? 
43 

 We believe that the strategy now proposed by Flamer was 

extraordinarily unlikely to succeed. Therefore, we cannot say 

that it was constitutional error for Reardon not to pursue it. 

 D. Calling Flamer to testify

 Flamer also assigns error to Reardon's decision to call 

him as a witness in his own defense. Flamer's testimony at trial 

contradicted his prior statements, which made him appear not 

credible, he now says. At trial, Flamer testified that Andre 

Deputy woke him up on the night of the murder and brought him to 

the Smiths' house to help steal frozen food. JA at 1275-1276. 

Flamer testified that when he asked Deputy where the Smiths were, 

Deputy told him, "Never mind about that." Id. at 1276. Soon 

after, Flamer testified, he saw the dead bodies in the living 

room. Id. at 1277-78, 1280. Flamer's story was badly damaged on 

cross-examination. 

 At the Rule 35 hearing held in September 1986, Reardon 

testified that he felt it was important for Flamer to testify. As 

he explained: 

Through the years of criminal law, defense of 

criminals, I have had occasions on many times 

to talk to different judges of the Superior 

Court and in this case -- if my memory serves 

me correctly, present Chief Justice Christie 

 

A: Did I ever have it? 

Q: The whole time you was in the house during the 

stabbing you used the small knife and he used the big 

knife. 

A: I used the small one. 

JA at 43. 
44 

in a case many, many years ago in chambers, 

and I believe it was in Wilmington, told me 

that he has really never presided over, or 

maybe one or two cases he has presided over, 

where a jury found a defendant not guilty who 

did not testify and I put that in my memory 

bank and I have used it ever since knowing 

full well that if a person doesn't testify 

they are very likely to be found guilty. 

William and I discussed it and decided that 

he should testify and he did testify. 

Id. at 1903-04. Reardon's belief that a defendant is unlikely to 

be acquitted unless he takes the stand is one that is widely 

shared by practitioners. Thus, as a general matter, we do not 

think it is unreasonable for a defense attorney to proceed on the 

basis of this belief, particularly in a case such as this where 

the prosecution's evidence is very strong. 

 If Flamer was harmed by his testimony, this was 

probably owing to the fact that he perjured himself. Flamer, 

however, has never suggested that it was Reardon's idea for him 

to testify as he did, and Reardon cannot be faulted for Flamer's 

decision to testify falsely. Indeed, the Delaware Supreme Court 

seems to have concluded that Flamer's testimony departed from the 

version of the events that he had previously told Reardon. See

Flamer IV, 585 A.2d at 755 ("Once Flamer had testified to a 

different set of events than he had previously divulged to his 

attorney, it was too late to alter the decision to testify."). 

Moreover, given the overwhelming evidence of Flamer's guilt, we 

are convinced -- as were the state supreme court, 585 A.2d at 

755, and the district court, 827 F. Supp. at 1104 -- that there 

is no reasonable probability that his testimony altered the 

verdict that the jury would have otherwise returned. 
45 

 

 E. Waiver of closing argument

 Flamer also argues that his attorney violated the Sixth 

Amendment by failing to give a closing argument in the guilt 

phase of the trial. In the Rule 35 post-conviction hearing, 

Reardon testified that this had been a conscious strategy on his 

part to avoid a devastating rebuttal from the prosecution. Id.

1906-09. Specifically, Reardon stated that in "dozens" of cases, 

he had seen Flamer's two prosecutors give a simple and relatively 

brief closing statement followed by a lengthy rebuttal after the 

defense had closed. Id. at 1909. Reardon also stated that after 

the trial, one of the prosecutors "said he was prepared for two 

to three hours of rebuttal." Id. at 1907. 

 The Delaware Superior Court accepted Reardon's 

explanation, Id. at 426, and the state Supreme Court found that 

there was adequate record support for this finding. Flamer IV, 

585 A.2d at 754. The state supreme court wrote: 

 The Superior Court found that Kent 

County prosecutors at the time of Flamer's 

trial were said to be routinely holding back 

their major arguments in summation until 

after the defense had given its closing 

argument to the jury. The Superior Court 

further found that Reardon's choice to omit a 

closing argument was made after Reardon 

assessed the prosecution's opening argument 

as having little impact on the jury. When 

this assessment and the waiver of closing 

argument are viewed in light of the 

"sandbagging" practice said to be utilized 

during rebuttal by Kent County prosecutors, 

such a waiver was within the wide range of 

reasonable professional assistance. 
46 

Id. at 754-55. 

 Flamer argues that the state court's finding is not 

fairly supported by the record and that Reardon's testimony at 

the post-conviction hearing was concocted to justify "what would 

otherwise appear an utterly inexplicable act." Appellant's Br. 

at 40. We reject this argument. For one thing, we believe that 

the state court was entitled to credit the testimony that Reardon 

gave at the post-conviction hearing. Moreover, despite Flamer's 

attack on Reardon's credibility, the prosecutorial tactic to 

which Reardon referred is substantiated by Bailey v. State, 440 

A.2d 997 (Del. 1982). In that case, which was prosecuted by one 

of the prosecutors who tried Flamer, the state's "opening 

summation was very brief, constituting a mere 3 1/2 pages of the 

transcript and lasting only 5 minutes." Id. at 1000. "The 

State's rebuttal lasted over an hour and contained the bulk of 

the State's final argument to the jury." Id. at 1001. For 

these reasons, we too conclude that there was adequate support in 

the record for the findings of the state courts, and therefore we 

accept their conclusion that Reardon's failure to give a closing 

argument was a conscious strategic decision. 

 Whether Reardon's decision was reasonable, however, is 

a question of law that we must decide separately. Horton v. 

Zant, 941 F.2d 1449, 1462 (11th Cir. 1991), cert. denied, 503 

U.S. 592 (1992). Our court and others have recognized that 

waiver of summation may be a sound tactic in some circumstances. 

United States ex rel. Spears v. Johnson, 463 F.2d 1024, 1026 (3d 

Cir. 1972); Virella v. United States, 750 F. Supp. 111, 118 
47 

(S.D.N.Y. 1990); United States ex rel. Turner v. Cuyler, 443 F. 

Supp. 263 (E.D. Pa. 1977), aff'd, 595 F.2d 1215 (3d Cir. 1979); 

Melvin v. Laird, 365 F. Supp 511, 521 (E.D.N.Y. 1973) ("Had 

defense counsel sought to sum up, undoubtedly the prosecution 

would have countered his arguments. Such an exchange of 

arguments, assuming neither counsel was much superior to the 

other, could only, by dwelling on the details of the evidence, 

have hurt the [habeas petitioner]."). Although Reardon's 

decision to forgo a closing statement may not have been wise, we 

cannot say, in light of his explanation, that the decision fell 

below Strickland's objective standard of reasonableness. 

 Furthermore, Flamer has not shown that he suffered any 

actual prejudice, for there is no reasonable probability that he 

would not have been convicted even if Reardon had presented a 

dazzling closing argument. 

 F. Alleged errors in penalty phase

 Flamer asserts that Reardon made two serious errors in 

the penalty phase of the trial: (1) he failed to investigate, 

develop, present, and argue mitigating evidence and (2) his 

closing argument was deficient. The standards for determining 

whether counsel has been ineffective in a capital sentencing 

proceeding are identical to the standards for the guilt phase of 

the trial. Strickland, 466 U.S. at 686-87. Accordingly, the 

defendant must show that counsel's representation fell below an 

"objective standard of reasonableness . . . under prevailing 

professional norms," id. at 688, and that there is "a reasonable 
48 

probability that, absent the errors, the sentencer . . . would 

have concluded that the balance of aggravating and mitigating 

circumstances did not warrant death," id. at 695. We do not 

believe that Reardon provided ineffective assistance during the 

penalty phase under the Strickland standard. 

 In his opening statement, Reardon began by informing 

the jurors that if they chose not to impose the death penalty, 

Flamer would remain in prison for life without the possibility of 

parole or probation. JA at 1480. Reardon then asked the jurors 

to examine carefully the reports of the psychiatrist and 

psychologist, noting that these two experts were employed by the 

state and not the defense. Id. at 1481. Reardon foreshadowed 

the testimony of his three witnesses by stating that Flamer had 

been "a good son" and "a good grandson," whose life had been 

destroyed by alcoholism. Finally, Reardon argued that Flamer's 

"dull normal" intelligence had rendered him particularly 

susceptible to the influence of "a strong personality" such as 

that of Andre Deputy. Id. at 1482. 

 Reardon introduced the written reports of a 

psychiatrist and a psychologist into evidence. Id. at 59-63, 65-

67. Both reports concluded that Flamer was of low but normal 

intelligence, without symptoms of psychosis or other mental 

illness. The psychiatrist diagnosed Flamer as an alcoholic and 

stated that he had admitted being intoxicated at the time of the 

murders. 

 Reardon called three penalty-phase witnesses. Id. at 

1432-1457. Flamer himself described his life, with particular 
49 

attention paid to his drinking problem. He told the jury about 

his brief marriage, which had ended in divorce, and his threeyear old daughter. He stated that he had had trouble finding 

steady employment, but that he would do odd jobs and part-time 

work whenever he had an opportunity to do so. He also described 

the day of the murder, a day that he had spent drinking heavily 

with friends. Next, Flamer's mother, Mildred Smith, testified. 

Although Flamer had lived with his grandmother rather than his 

mother since he was five, Mrs. Smith testified that she saw her 

son nearly every day after work. She stated that he had been a 

good student until he quit school in the eleventh grade and began 

drinking heavily. She also said that his personality could 

sometimes change when he was drinking. Mrs. Smith discussed the 

failure of her son's marriage and the difficulty he had had 

finding steady work as a result of his criminal record.0 Finally, 

Reardon called Flamer's grandmother, Florence Benson, to testify. 

Mrs. Benson stated that Flamer had always been "a good boy," who 

had taken care of her by doing household chores. Id. 1456. 

 The state presented no testimony and only one piece of 

evidence during the penalty phase -- a certified record of 

Flamer's two felony convictions for check forgery. 

 1. Flamer argues that Reardon made three significant 

errors in the development and presentation of penalty-phase 

evidence: (1) he did not seek out Flamer's school and medical 

records; (2) he did not call as a witness a psychiatrist or 

 

0

In 1975, Flamer was convicted of two counts of forgery. 
50 

psychologist to explain the reports entered into evidence; and 

(3) he did not introduce evidence of Andre Deputy's history of 

violence in order to show that Deputy, rather than Flamer, was 

chiefly to blame for the murders. 

 With respect to Reardon's failure to seek out Flamer's 

school and medical records, we note that Flamer has not proffered 

any such evidence that he thinks would have helped to reduce his 

penalty. Therefore, Flamer cannot claim to have been prejudiced 

by Reardon's failure to introduce such evidence. See Zettlemoyer

 v. Fulcomer, 923 F.2d 284, 300-02 (3d Cir.), cert. denied, 502 

U.S. 902 (1991). Similarly, we do not see how calling a witness 

to explain the medical reports would have created a reasonable 

probability that the jury "would have concluded that the balance 

of aggravating and mitigating circumstances did not warrant 

death," Strickland, 466 U.S. at 695. The reports themselves are 

plainly worded, and we do not think the jury required additional 

oral testimony to explain them. 

 Flamer asserts that Reardon should have offered 

evidence regarding Andre Deputy's record of violence. As we 

discussed in Section III.B, Flamer was not prejudiced by 

Reardon's failure to present evidence of Deputy's criminal record 

in the guilt phase of the trial. Here, Flamer maintains that if 

the jurors had known more about Deputy, there is a reasonable 

probability that they would have concluded that Flamer, as the 

less aggressive of the two murderers, did not deserve to die. We 

disagree. As discussed earlier, it was Flamer, according to his 

own confession, who first stabbed Mr. Smith. In addition, it was 
51 

Flamer, as the Smiths' nephew, who was able to gain entry to 

their home by telling them that his grandmother had had a stroke. 

Finally, it was Flamer who told the police that Deputy did not 

want to accompany Flamer into the Smiths' home, but had to be 

coaxed by Flamer into doing so. JA at 32. In light of these 

facts, we do not believe that Flamer has shown, as he must under 

Strickland, 466 U.S. at 686-87, that in failing to portray Deputy 

as the instigator, Reardon's assistance fell below an "objective 

standard of reasonableness ... under prevailing professional 

norms," id. at 688. Nor do we believe that there is a 

"reasonable probability" that, but for any errors of his 

attorney, the jury would have concluded that the balance of 

aggravating and mitigating circumstances did not warrant death. 

Id. 

 2. Reardon's penalty-phase summation was very brief: 

 Good afternoon, your honor. Good 

afternoon, ladies and gentlemen. I am not 

going to review the evidence with you. You 

have heard it and you have heard it rehashed. 

I simply want to point out to you one 

important aspect. 

 There is a codefendant Andre Deputy. His 

fate is out of your control. You heard the 

testimony. You heard Mr. Flamer talk. What 

part did Andre Deputy play in this? You must 

consider that in making your determination as 

to whether or not you are going to take 

William Henry Flamer's life. 

 Other than that, please -- you have 

heard his mom. You have heard his grandmom. 

You have the medical reports. 

 

 Ladies and gentlemen, although we are 

here today talking about murder, I am simply 

going to ask you to show mercy. Do not kill 
52 

William Henry Flamer simply because the law 

and the state of Delaware say you can. There 

is a far, far greater law than anything 

conceived by this state and punished by this 

State which tells you thou shalt not kill. 

Thank you. 

JA at 1486-87.0 

 Flamer argues that this closing argument was 

constitutionally deficient, not only because of its brevity, but 

because it was "so ill-conceived that it hurt Flamer's sentencing 

prospects." Appellant's Br. at 48. We disagree. Although we 

cannot say that Reardon's closing argument was especially 

persuasive or well-crafted, we also cannot say it was so poor 

that it fell below the Strickland standard for objectively 

reasonable assistance. Furthermore, we hold that Reardon's 

failure to present a more effective summation did not prejudice 

Flamer, for we cannot say that there is a reasonable probability 

that, but for any errors, the jury would not have imposed a 

sentence of death. 

 Reardon was faced with several obstacles that limited 

his choices in framing a penalty-phase summation. First, the 

prosecution had offered virtually no penalty-phase evidence of 

 

0

Though short, Reardon's closing argument in the penalty phase 

was longer than that of the prosecutor, who stated: 

Ladies and gentlemen, my last remarks are going to be 

very brief. That same law thou shalt not kill pertains 

to William Henry Flamer. He had a free choice in this 

matter and the conduct that he took part in. His free 

choice has brought him here today. Please be fair. 

 All the state is asking is you consider all the 

factors in this case before your decision. Thank you. 

JA at 1487. 
53 

its own. Given this, it may have been tactically wise for 

Reardon not to review evidence presented in the guilt phase of 

the trial, since this might have only reminded the jury of the 

violence of the crimes. Second, although Flamer argues that 

Reardon should have further emphasized the role of Andre Deputy, 

such an approach, as previously explained, would have involved 

certain difficulties. See pages 41, 51, supra. Finally and 

perhaps most importantly, Flamer had denied committing the 

murders in his testimony during the guilt phase of the trial. 

This prior testimony made it very difficult for Reardon to argue 

in the penalty phase that Flamer felt great remorse for the 

murders. 

 One court has remarked that a defense counsel's 

strategy in the sentencing phase of a capital case should be "to 

appeal to just one juror who will hold out against the death 

penalty and thereby prevent it." McDougall v. Dixon, 921 F.2d 

518, 537 (4th Cir. 1990), cert. denied, 501 U.S. 1223 (1991). 

Under the circumstances, we believe that Reardon's brief 

summation, with its plea for mercy and its suggestion that Deputy 

was more blameworthy than Flamer, was calculated to appeal to a 

sympathetic juror. Following Reardon's lengthier opening 

statement, the testimony of Flamer, and finally, the sad 

testimony of Flamer's mother and grandmother, Reardon's summation 

in the penalty phase did not render his assistance 

constitutionally ineffective. 

IV.
54 

 Flamer argues that a portion of the jury instructions 

in the penalty phase was unconstitutional because o expanded the 

impression that appellate review of a decision to impose a 

sentence of death would be more expansive than is actually the 

case. In particular, Flamer claims the statutorily required jury 

instruction was improperly altered by the insertion of the word, 

"if": "Your unanimous recommendation for the imposition of the 

death penalty, if supported by the evidence, is binding on the 

Court." JA at 1464 (emphasis added). 

 We do not believe the inclusion of the word "if" 

changed the meaning of this jury instruction at all. The word 

"if" or some other qualifying preposition is implicit at the 

beginning of the phrase, "supported by the evidence." Moreover, 

elsewhere in the instructions the jury was told: "A finding by 

the jury of a statutory aggravating circumstance, and a 

consequent recommendation of death, supported by the evidence, 

shall be binding on this Court," Id. at 1461. These 

instructions were not misleading and did not violate the 

principle, set out in Caldwell v. Mississippi, 472 U.S. 320, 336 

(1985), that a jury instruction that inaccurately describes the 

role of a jury in meting out a death sentence is 

unconstitutional. See also Dugger v. Adams, 489 U.S. 401, 407 

(1989). 

V.

 Finally, Flamer argues that the district court erred in 

refusing to expand the record to include the criminal record of 
55 

his codefendant Andre Deputy pursuant to Rule 7 of the Rules 

Governing § 2254 Cases in the United States District Courts.0

Rule 7 permits the expansion of a record for relevant evidence. 

Flamer argues that the evidence is relevant because it bears on 

the competence of his attorney, who did not present much evidence 

of Deputy's past during the guilt and penalty phases of the 

trial. We review the district court's decision on this question 

for abuse of discretion only. Levine v. Torvik, 986 F.2d 1506, 

1517 (6th Cir.), cert. denied, 113 S. Ct. 3001 (1993); Blango v. 

Thornburgh, 942 F.2d 1487 (10th Cir. 1991); Ford v. Seabold, 841 

F.2d 677, 691 (6th Cir.), cert. denied, 488 U.S. 928 (1988). 

 We do not believe the district court abused its 

discretion in refusing to expand the record to include evidence 

regarding Deputy's criminal past, particularly in light of the 

fact that this evidence was available to Flamer during the state 

proceedings.0 Deputy's criminal record would not have aided the 

district court in determining whether Reardon provided 

 

0

In his brief, Flamer also argued that the court erred in 

refusing to unseal and admit into the record the results of his 

attorney's Censor Committee hearing. At oral argument before our 

court, however, Flamer's attorney stated that the documents had 

been unsealed, that she had seen them, and that she no longer 

wished to press for their inclusion. We therefore need not 

address whether the record should have been expanded to include 

this information. 

0

Absent extraordinary circumstances, a habeas petitioner may not 

seek an evidentiary hearing on the basis of records that were 

available to him during the state court's proceedings but that he 

did not present. Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-12 

(1992). Flamer, who was represented by new counsel during postconviction proceedings in the Delaware courts, has not shown 

cause for his failure to request that these records be included 

at these earlier proceedings. Accord Walker v. Vaughn, 53 F.3d 

609, 613 (3d Cir. 1995). 
56 

ineffective assistance of counsel. We therefore hold that it was 

not an abuse of discretion for the court to refuse to expand the 

record to include this material. 

 In addition, Flamer argues that the district court 

erred in refusing to expand the record to include Deputy's 

confession, which Flamer argues is relevant to the question of 

whether Flamer's own confession was admissible. As discussed 

earlier, the circumstances surrounding Deputy's statement are 

distinguishable from those surrounding Flamer's statement. 

Moreover, the statement itself has no bearing on whether Flamer's 

confession was admissible. Therefore, the court did not abuse 

its discretion in refusing to expand the record to include 

Deputy's statement. 

VI. 

For the reasons stated above, the order of the district 

court will be affirmed. 
57