2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-28-2001

Riley v. Taylor

Precedential or Non-Precedential:

Docket 98-9009

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Recommended Citation

"Riley v. Taylor" (2001). 2001 Decisions. Paper 304.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/304
Volume 1 of 2 

Filed December 28, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-9009 

JAMES WILLIAM RILEY, 

 Appellant 

v. 

STANLEY W. TAYLOR; 

*M. JANE BRADY 

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

On Appeal from the United States District Court 

for the District of Delaware 

(D.C. No. 91-cv-00438) 

District Judge: Hon. Joseph J. Farnan, Jr. 

Argued November 29, 1999 

Before: SLOVITER, ALITO and STAPLETON, Circuit Judges 

Argued En Banc May 23, 2001 

Before: BECKER, Chief Judge, SLOVITER, MANSMANN, 

SCIRICA, NYGAARD, ALITO, ROTH, McKEE, BARRY, 

AMBRO, FUENTES, and STAPLETON, Circuit Judges 

(Filed: December 28, 2001) 
 Thomas J. Allingham, II (Argued) 

 Stephen D. Dargitz 

 Skadden, Arps, Slate, Meagher & 

 Flom 

 Wilmington, DE 19899 

 Mary M. MaloneyHuss 

 Wolf, Block, Schorr & Solis-Cohen 

 Wilmington, DE 19801 

 Lawrence J. Connell 

 Widener University School of Law 

 Wilmington, DE 19803 

 Attorneys for Appellant 

 James W. Riley 

 Loren C. Meyers (Argued) 

 Chief of Appeals Division 

 William E. Molchen, II 

 Deputy Attorney General 

 Department of Justice 

 Wilmington, DE 19801 

 Attorney for Appellees 

 Stanley Taylor and M. Jane Brady 

OPINION OF THE COURT 

SLOVITER, Circuit Judge, with whom Judges Mansmann,

Nygaard, Roth, McKee and Ambro join, with whom Judges 

Scirica and Fuentes join as to Part II B, and with whom 

Chief Judge Becker joins in the judgment. 

Appellant James W. Riley, a 22 year old black man, was 

sentenced to death on the vote of a Delaware state jury in 

December 1982. If the time intervening between that

sentence and this court's en banc consideration of the 

matter has been lengthy, it is not because there has been 

undue delay at any stage but because the case raises 

legitimate questions that go to the constitutionality of the 

original trial and sentencing. It was necessary to complete 

a series of proceedings in both state and federal court, none 

of them duplicative, before the case reached this stage. 

 2 
After all, there can be no reconsideration after the 

execution of a death sentence. 

I. 

INTRODUCTION 

According to testimony at the trial, Riley and Tyrone 

Baxter stopped in a liquor store in Dover, Delaware, on 

February 8, 1982, to get some beer and rob the store. 

Michael Williams waited in the car. Baxter testified that 

Riley, armed with a gun, placed a bottle of beer on the 

counter and announced the store was being robbed. When 

the store owner, James Feeley, a 59 year old white man, 

backed away from the cash register, Baxter grabbed the 

money out of the cash drawer. Riley tried to take Feeley's 

wallet, but Feeley resisted. At Baxter's urging, Riley shot 

Feeley in the leg. Feeley, who was then hopping up and 

down, apparently from the gunshot, said "[Y]ou f 'ing 

niggers." App. at 327. As Riley and Baxter were proceeding 

to the door to leave, Feeley threw a wine bottle that struck 

Riley in the arm. Riley then shot Feeley in the chest, killing 

him. 

In May 1982, Riley, Baxter, and Williams were indicted 

on charges of felony murder, intentional murder, first 

degree robbery, possession of a deadly weapon during a 

felony, and second degree conspiracy. Riley pled not guilty 

to all charges. Baxter pled guilty to first degree murder and 

was sentenced to life imprisonment in exchange for his 

testimony against Riley. The murder and weapon charges 

against Williams were also dropped in exchange for his 

testimony against Riley, and he was subsequently convicted 

of the robbery and conspiracy charges. 

Riley was represented at trial by appointed counsel, a 

defense-side civil litigator who had never represented a 

criminal defendant in either a murder or a capital case. His 

pretrial motions for co-counsel and funds for a private 

investigator were denied. The prosecutors in Riley's case 

were James Liguori and Mark McNulty. Liguori, the lead 

prosecutor, was a friend and neighbor of Feeley's, and they 

belonged to the same church. 

 3 
The State presented the testimony of Baxter, Williams, 

Baxter's mother (who testified that Riley spent the night 

before the robbery at her house), and a witness who

reported that Riley's fingerprints were on a bottle of beer in 

the liquor store. In defense, Riley testified that he was in 

Philadelphia on the day of the murder celebrating his 

mother's birthday. However, Riley's mother did not testify in 

support of his alibi. The only witness Riley presented other 

than himself was an inmate at the prison in which Baxter 

was incarcerated, and he testified that Baxter had admitted 

to shooting Feeley. 

Riley was tried before and convicted on all counts by an 

all white jury in Kent County Superior Court (the Delaware 

trial court) in December 1982. Four days after the verdict, 

the jury proceeded to consider the penalty. The State 

sought the death penalty, relying only on Riley's felony 

murder conviction and using the underlying robbery as the 

lone aggravating circumstance. Following a two-hour

penalty hearing, the jury unanimously recommended a

sentence of death which the court accepted. Riley was also 

sentenced to life imprisonment without parole for 

intentional murder, 20 years imprisonment for robbery, 5 

years imprisonment for possession of a deadly weapon, and 

3 years imprisonment for conspiracy. Riley's attorney 

explained to the trial court that he spent only 14 hours 

preparing for the penalty phase because he had been too 

busy "with the defense and the merits" to spend more time 

building a case in mitigation. App. at 443-444. 

Riley appealed his conviction and sentence on numerous 

grounds. In July 1985, the Delaware Supreme Court 

affirmed, see Riley v. State, 496 A.2d 997 (Del. 1985) 

(hereafter "Riley I"), and the Supreme Court of the United 

States denied certiorari, see Riley v. Delaware , 478 U.S. 

1022 (1986). 

Represented by new counsel, Riley filed a motion for 

post-conviction relief in Kent County Superior Court in 

March 1987 before Judge Bush, the judge who had 

presided at the trial (the "trial judge"), alleging, inter alia, 

that his trial counsel had provided ineffective assistance of 

counsel and that the prosecution had exercised its 

peremptory challenges in a racially discriminatory manner 

 4 
in violation of Batson v. Kentucky, 476 U.S. 79 (1986). After 

three days of evidentiary hearings limited to the ineffective 

assistance of counsel claim, the trial judge denied Riley's 

motion. See State v. Riley, 1988 WL 47076 (Del. Super. 

1988) (hereafter "Riley II"). Riley then requested the 

Superior Court consider reargument on his Batson claim. 

The trial judge had passed away and Judge Steele of the 

Superior Court ("the hearing judge") granted Riley's request 

for reargument, finding that Riley had established a prima 

facie case of discrimination under Batson . See State v. 

Riley, 1988 WL 130430, at *3 (Del. Super. 1988) (hereafter 

"Riley III"). After holding an evidentiary hearing, the hearing 

judge rejected Riley's Batson claim and all his other claims 

as well. See Riley v. State, No. 200, 1988 (Del. Super. Ct. 

April 21, 1989), App. at 886 (hereafter "Riley IV"). On 

appeal, the Delaware Supreme Court again affirmed, see 

Riley v. State, 585 A.2d 719 (Del. 1990) (hereafter "Riley 

V"), and the Supreme Court of the United States again 

denied certiorari, see Riley v. Delaware, 501 U.S. 1223 

(1991). 

On August 12, 1991, Riley filed a petition for a writ of 

habeas corpus in the United States District Court for the 

District of Delaware pursuant to 28 U.S.C. S 2254. Again 

Riley obtained new lead counsel, although his postconviction counsel remained as co-counsel. The District 

Court denied Riley's request to amend his petition to add 

two additional claims and then denied his petition without 

an evidentiary hearing. See Riley v. Snyder, 840 F. Supp. 

1012 (D. Del. 1993) (hereafter "Riley VI"). Riley appealed, 

and this court held that the denial of his motion to amend 

was an abuse of discretion and remanded the case so that 

Riley could raise all the issues he sought to raise in an 

amended petition. See Riley v. Taylor, 62 F.3d 86 (3d Cir. 

1995) (hereafter "Riley VII"). 

Riley filed his amended habeas petition on August 28, 

1995, alleging 12 grounds for relief. The District Court 

denied Riley's petition without holding an evidentiary 

hearing. See Riley v. Taylor, 1998 WL 172856 (D. Del. Jan. 

16, 1998) (hereafter "Riley VIII"). We then issued a 

certificate of probable cause and Riley appealed, raising 12 

claims. He asserted that: 

 5 
 1. The State's exercise of peremptory challeng es to 

 strike all prospective black jurors violated the 

 Equal Protection Clause under Batson v. 

 Kentucky, 476 U.S. 79 (1986). 

 2. The State's continuing conduct in withholdi ng 

 wiretap tapes of a key witness from Riley violated 

 Brady v. Maryland, 373 U.S. 83 (1963). 

 3. Riley received ineffective assistance of co unsel 

 because he was prejudiced by trial counsel's

 deficient performance at the penalty hearing. 

 4. The trial court violated Riley's Sixth and 

 Fourteenth Amendment rights by denying his 

 motions to appoint co-counsel and a private 

 investigator. 

 5. The prosecution and the trial court made

 improper remarks at the penalty hearing violating 

 the Eighth and Fourteenth Amendments under 

 Caldwell v. Mississippi, 472 U.S. 320 (1985). 

 6. The trial court failed to probe equivocal r esponses 

 during the death penalty voir dire in violation of 

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

 7. Riley's jury was unconstitutionally biased in favor 

 of returning the death penalty because the trial 

 judge's voir dire failed to identify all prospective 

 jurors who automatically would impose the death 

 penalty. 

 8. Riley was deprived of his constitutional ri ght to a 

 fair and impartial jury because of pretrial 

 publicity. 

 9. The Delaware Supreme Court's proportionalit y 

 review violated Riley's Eighth and Fourteenth 

 Amendment rights. 

 10. The trial court's jury instructions failed 

 adequately to guide Riley's jurors on the law, 

 thereby creating a substantial risk that the jurors 

 would impose the death penalty in an arbitrary 

 and capricious manner in violation of both the 

 Eighth and Fourteenth Amendments. 

 6 
 11. The use of felony murder to establish both Riley's 

 eligibility for death and the aggravating 

 circumstance warranting imposition of the death 

 penalty is arbitrary and capricious in violation of 

 the Eighth and Fourteenth Amendments. 

 12. The District Court abused its discretion in not 

 holding an evidentiary hearing, in denying Riley's 

 motions to conduct discovery and expand the 

 record, and in denying Riley's applications for 

 funds for medical and investigative experts.

A divided panel of this court affirmed. See Riley v. Taylor, 

2001 WL 43597 (3d Cir. 2001) (hereafter "Riley IX"). The 

author of this opinion dissented on two claims, those 

raising Batson and Caldwell violations (claims numbered 1 

and 5 above). On March 5, 2001, the full court granted 

Riley's petition for rehearing en banc, and vacated the 

panel's opinion and judgment. See Riley v. Taylor, 237 F.3d 

348 (3d Cir. 2001). Our order limited the en banc 

proceedings to the District Court's denial of Riley's Batson 

and Caldwell claims. See id. We now reverse and direct the 

District Court to grant the writ of habeas corpus. 1 

The District Court exercised subject matter jurisdiction 

pursuant to 28 U.S.C. S 2254. We possess appellate 

jurisdiction pursuant to 28 U.S.C. SS 1291 and 2253. 

II. 

DISCUSSION 

Riley presents two arguments to the en banc court. He 

argues first, that the prosecution exercised its peremptory 

challenges to strike black jurors in violation of the Equal 

Protection Clause of the Fourteenth Amendment, and 

second, that the prosecutor's statements to the jury in his 

opening argument at sentencing misled the jury regarding 

_________________________________________________________________ 

1. Our en banc order vacated the panel opinion and judgment in full. We 

will reinstate the portion of the panel opinion authored by Judge Alito 

that disposed of Riley's ten other claims, and append it hereto as 

Appendix A. 

 7 
its role in the sentencing process in violation of the Eighth 

and Fourteenth Amendments. We will address each of these 

arguments in turn. 

A. 

THE BATSON CLAIM 

Riley's claim that the prosecution violated the Equal 

Protection Clause by using its peremptory challenges to 

strike all three prospective black jurors from the jury panel 

because of their race, thereby leaving no black juror sitting 

on the jury, stems from the Supreme Court decision in 

Batson v. Kentucky, 476 U.S. 79 (1986).2 

1. Preservation of Claim 

The District Court held that Riley was procedurally

barred from raising his Batson claim in his habeas petition 

because he failed to present that claim to the trial court. 

See Riley VIII, 1998 WL 172856, at *15. We do not agree.3 

The Delaware Supreme Court concluded on Riley's direct 

appeal "that no Sixth Amendment peremptory challenge 

claim was fairly presented to the Trial Court," and also 

held, in the alternate, that Riley's Batson claim failed on 

the merits. Riley I, 496 A.2d at 1010. However, the

Supreme Court of the United States has since made clear 

that, "[i]f the last state court to be presented with a 

particular federal claim reaches the merits, it removes any 

bar to federal-court review that might otherwise have been 

available." Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). 

In his memorandum opinion granting Riley's motion for a 

post-conviction evidentiary hearing, the Superior Court 

_________________________________________________________________ 

2. Although Riley's trial occurred several years before the Batson 

decision, the Supreme Court did not deny certiorari in Riley's direct 

appeal until shortly after Batson was decided, thus entitling Riley to the 

benefit of that decision. See Griffith v. Kentucky, 479 U.S. 314, 328 

(1987); Deputy v. Taylor, 19 F.3d 1485, 1491 n.6 (3d Cir. 1994). 

3. Much of the discussion of procedural bar is taken from the opinion of 

Judge Alito from the panel opinion that was vacated. See Riley IX, 2001 

WL 43597, at *2-*6. 

 8 
hearing judge stated that he did not think the State 

Supreme Court would maintain its position that Riley had 

failed to timely present a Batson claim. See Riley III, 1988 

WL 130430, at *2 (citing Baynard v. State, 518 A.2d 682 

(Del. 1986)).4 Thereafter, the hearing judge considered and 

rejected Riley's Batson claim on the merits. See Riley IV, 

App. at 887-891. On appeal, the Delaware Supreme Court 

affirmed the hearing judge's decision, using language that 

expressly refers to the Superior Court's rejection of Riley's 

Batson claim on the merits. See infra note 9. Moreover, in 

that passage, the Delaware Supreme Court expressly 

reaffirmed its holding on direct appeal that the 

prosecution's use of peremptory challenges in this case did 

not violate the state constitution. Not only is there no 

reaffirmation of its prior holding concerning procedural 

default, but there is no reference to that holding, leading us 

to conclude it no longer relied on a procedural bar. See 

Harris v. Reed, 489 U.S. 255, 266 (1989) (concluding that 

habeas claim was not procedurally barred where state court 

rejected the claim on the merits notwithstanding its 

observation that allegations "could have been raised [on] 

direct appeal"). 

If the Delaware Supreme Court had continued to believe 

at the time of its most recent decision that Riley's Batson 

claim was foreclosed for failure to make a proper objection 

at the time of trial, it seems likely that the Court would 

have made that point expressly, instead of affirming the 

hearing judge's findings on the merits. Indeed, it is unlikely 

that it would have made no comment on the hearing 

judge's failure to follow its earlier decision on foreclosure. 

Thus, we interpret the decision of the Delaware Supreme 

Court in Riley V (its most recent) to be a rejection of Riley's 

Batson claim on the merits. Accordingly, Riley's Batson 

claim is not procedurally barred and we proceed to examine 

its merits. 

_________________________________________________________________ 

4. In Baynard, the Court held that the defendant sufficiently raised an 

objection to the State's peremptory challenges which resulted in an all 

white jury being impaneled where defendant "noted the race of each 

black against whom the State exercised a peremptory challenge," "moved 

the Court to refuse the peremptory challenges against two of the drawn 

black jurors and moved to quash the entire panel at the end of the jury 

selection process." 518 A.2d at 687. 

 9 
2. Batson v. Kentucky 

In Batson, the Supreme Court reiterated the well-settled 

principle that the Equal Protection Clause prohibits 

discrimination on account of race in selection of both the 

venire and the petit jury. See 476 U.S. at 88. This principle, 

which dates back at least as far as Strauder v. West 

Virginia, 100 U.S. 303 (1880), recognizes that racial 

discrimination in the selection of jurors harms"not only the 

accused whose life or liberty they are summoned to try," 

but also harms the potential juror, whose race "is unrelated 

to his fitness as a juror." Batson, 476 U.S. at 87 (quotation 

omitted). As the Court noted in Batson,"[s]election

procedures that purposefully exclude black persons from 

juries undermine public confidence in the fairness of our 

system of justice." Id. 

The Court granted certiorari in Batson so that it could 

reexamine the evidentiary burden its opinion in Swain v. 

Alabama, 380 U.S. 202 (1965), had placed on a criminal 

defendant who alleged that the State improperly used its 

peremptory challenges to exclude jurors based on race. In 

Swain, the Court had held that a defendant could satisfy a 

prima facie case of purposeful discrimination by showing 

that a prosecutor, "in case after case, whatever the 

circumstances, whatever the crime and whoever the 

defendant or the victim may be, is responsible for the 

removal of Negroes who have been selected as qualified 

jurors by the jury commissioners and who have survived 

challenges for cause, with the result that no Negroes ever 

serve on petit juries." Id. at 223. The Batson Court noted 

that many lower courts interpreted Swain to hold "that 

proof of repeated striking of blacks over a number of cases 

was necessary to establish a violation of the Equal

Protection Clause." Batson, 476 U.S. at 92. The Court in 

Batson recognized that this standard had "placed on

defendants a crippling burden of proof " that resulted in 

"prosecutors' peremptory challenges [becoming] largely 

immune from constitutional scrutiny." Id. at 92-93 (footnote 

omitted). Accordingly, it rejected the Swain evidentiary 

formulation. 

In the jurisprudence that has evolved following Batson, 

the inquiry has been characterized as a three-step one. 

 10 
Batson stated that "a defendant may establish a prima facie 

case of purposeful discrimination in selection of the petit 

jury solely on evidence concerning the prosecutor's exercise 

of peremptory challenges at the defendant's trial." Id. at 96. 

Once the defendant makes a prima facie showing of racial 

discrimination (step one), the prosecution must articulate a 

race-neutral explanation for its use of peremptory 

challenges (step two). If it does so, the trial court must 

determine whether the defendant has established 

purposeful discrimination (step three). See id. at 96-98; 

Simmons v. Beyer, 44 F.3d 1160, 1167 (3d Cir. 1995); 

Deputy v. Taylor, 19 F.3d 1485, 1492 (3d Cir. 1994). The 

ultimate burden of persuasion regarding racial motivation 

rests with, and does not shift from, the defendant. See 

Purkett v. Elem, 514 U.S. 765, 768 (1995). 

3. Riley's Batson Challenge in State Court 

In this case, the hearing judge determined, and the State 

does not contest, that Riley made out a prima facie case of 

discrimination in jury selection, as the State had used its 

peremptory challenges to strike all three prospective black 

jurors from the venire, "result[ing] in an all-white jury 

sitting on a first degree murder trial involving a black 

defendant and a white victim." Riley III, 1988 WL 130430, 

at *2. The hearing judge then conducted an evidentiary 

hearing. The State proceeded to step two of the Batson 

inquiry by offering race-neutral justifications for its use of 

the peremptory challenges to strike Ray Nichols, Lois 

Beecher, and Charles McGuire, each of whom was black. 

Liguori, the lead prosecutor at trial and the State's 

principal witness at the post-conviction relief hearing, 

testified that the State "wanted to have minority 

representation on the jury panel." App. at 792-793. He 

stated that he wanted jurors who would be attentive and 

who would vote for a death sentence. He testified that he 

wanted "to make sure we were not only going to get a 

conviction of murder in the first degree, but also the death 

penalty." App. at 797. 

With respect to Nichols, Liguori remembered clearly that 

"Mr. Nichols was an individual who, and unfortunately the 

record doesn't reflect this, who was not, in my particular 

 11 
mind, not certain with regard to being able to return a 

verdict for death." App. at 797-798 (emphasis added). As 

Liguori explained, "there was a pause and a significant 

pause in [Nichols'] answering [the court's] inquiry [at voir 

dire] and that to me was enough to suggest that he might 

not be able to return a death penalty and I didn't want 

anyone that wasn't going to give me a death penalty." App. 

at 798-799. 

With regard to Beecher, Liguori testified that he struck 

her because of her response to the court that she did not 

think she could impose the death penalty. App. at 804. 

As for McGuire, Liguori explained that he used the 

peremptory challenge because he presumed McGuire would 

be unable to "give his full time and attention" to the trial. 

App. at 801. According to Liguori, 

 Mr. McGuire was an individual who had requested-- 

 remember, this was going to be around Christmas also. 

 Mr. McGuire had previously requested to be excused 

 from jury service. When Mr. McGuire came up, the first 

 thing I wanted to make clear--as I said earlier, I 

 wanted someone that was going to be attentive and you 

 can read all the books you want with regard to 

 selecting prospective jurors and it is always make sure 

 you have attentive jurors, people not concerned about 

 getting home early to take care of their kids, or 

 vacation. 

 Mr. McGuire himself had requested the Court to 

 excuse him. The Court didn't. When he went through 

 his inquiry, we asked the judge to excuse him for 

 cause. The judge said no. It then left us with no 

 alternative but to think he would not give his full time 

 and attention and therefore we struck Mr. McGuire. 

App. at 801. 

On cross-examination of Liguori, Riley's attorney 

introduced Liguori's handwritten notes from voir dire. 

Written next to McGuire's name was the word "Out." App. 

at 832. Among the names on the same page was that of 

Charles Reed, a white man who actually served on Riley's 

jury. Next to Reed's name on the sheet was written,"works 

 12 
Lowe's, wants off." App. at 823. Despite repeated efforts by 

Riley's counsel to refresh Liguori's recollection, Liguori 

testified that he had no recollection of Reed whatsoever. 

Liguori agreed, however, that the notation next to Reed's 

name indicated that Reed had requested to be excused from 

service on the jury. Liguori offered no explanation for his 

decision not to strike Reed. 

Riley then presented McGuire as a witness at the state 

post-conviction hearing. McGuire testified that, in contrast 

to Liguori's testimony, he had never asked to be excused 

from the jury. McGuire specifically denied ever indicating to 

either the prosecutors or the court that he was unwilling to 

serve on the jury or that he wanted to be excused. Instead, 

he testified that his supervisor had told him that he was 

going to make a "formal request" that McGuire be excused 

and that his supervisor did send a letter to the trial judge 

requesting he be relieved from jury duty. App. at 860. 

According to McGuire, in response to his supervisor's letter, 

he was questioned by the trial judge whom he advised of 

his willingness to serve on the jury. App. at 849-850. 

Riley also presented evidence that in addition to the 

prosecutor's striking of the three prospective black jurors in 

his trial, the Kent County Prosecutor's office used its 

peremptory challenges to remove every prospective black 

juror in the three other first degree murder trials that 

occurred within a year of his trial.5 Counsel for the State 

objected to the admission of this evidence, arguing that 

_________________________________________________________________ 

5. The three other trials were: 

 a. Andre Deputy--state struck the lone prospective black juror, a 

 second juror designated as "Indian," and six prospective white 

 jurors; 

 b. Judith McBride--state struck all three prospective black jurors, 

 five whites, plus two other jurors whose race has not been 

 identified; and 

 c. Daniel Pregent--state struck the lone prospective black juror 

 and four whites. 

Although the race of two of the jurors who were ultimately impaneled 

has not been identified, the State does not contest Riley's assertion that 

every impaneled juror was white. 

 13 
evidence of general prosecutorial practices was relevant 

only to Riley's prima facie case. The hearing judge rejected 

this argument and admitted the evidence, explaining that it 

was being offered to show that "the exercise of the

peremptory challenges in this particular case followed some 

kind of pattern that exists in the prosecutorial actions in 

first degree murder cases involving minority defendants and 

it is not segregable or severable from past history." App. at 

872. 

Counsel for the State then requested and received an 

additional four weeks in which to "attempt to prepare the 

same sort of information which . . . would be contrary to 

the representations made by [Riley's counsel's] 

information." App. at 874. He informed the court that he 

had not yet been able to obtain materials from other cases, 

but he assured the court that "they do exist." App. at 874. 

Yet approximately one month after the hearing, the State 

advised the hearing judge by a letter dated January 27, 

1989 from Jeffrey M. Taschner, Deputy Attorney General, 

that stated in full: "Please be advised that the State will not 

supplement the record of the post conviction relief hearing 

held in the above-captioned matter on December 30, 1988." 

Letter to this Court from Thomas J. Allingham II (Dec. 16, 

1999), Ex. B (on file in the Clerk's office). 

The hearing judge ultimately accepted the State's raceneutral explanations and rejected Riley's Batson claim, 

without mentioning any of the evidence introduced by Riley 

at the hearing. See Riley IV, App. at 887-891. The Delaware 

Supreme Court affirmed, likewise without discussion of 

Riley's evidence. See Riley V, 585 A.2d at 725. 

4. Standard of Review 

A Batson claim presents mixed questions of law and fact. 

See Jones v. Ryan, 987 F.2d 960, 965 (3d Cir. 1993). We 

exercise plenary review over questions of law and we look to 

28 U.S.C. S 2254 for our standard of review of findings of 

fact. See id. Riley's federal habeas petition was filed before 

the enactment of the Antiterrorism and Effective Death 

Penalty Act ("AEDPA") of 1996, 110 Stat. 1214, and 

therefore AEDPA does not govern our standard of review. 

See Lindh v. Murphy, 521 U.S. 320 (1997). Instead, under 

 14 
the federal habeas statute in effect at the time Riley filed 

his petition, we must presume correct the state court's 

findings of fact unless one of the statutory exceptions 

applies. See 28 U.S.C. S 2254(d) (1988). 

The District Court rejected Riley's Batson claim on the 

merits by relying on this presumption of correctness. See 

Riley VIII, 1998 WL 172856, at *17. Riley contends that the 

presumption of correctness is not warranted because the 

hearing judge's factual findings are "not fairly supported by 

the record," 28 U.S.C. S 2254(d)(8) (1988), and because he 

"did not receive a full, fair, and adequate hearing in the 

State court proceeding," 28 U.S.C. S 2254(d)(6) (1988). 

Because we resolve Riley's appeal pursuant to S 2254(d)(8), 

we need not consider Riley's latter argument. 

The limited nature of review underlying the requirement 

that a federal court must defer to the state court findings 

of fact if they are "fairly supported by the record" reflects 

important policy considerations. See, e.g., Miller v. Fenton, 

474 U.S. 104, 114 (1985) (presumption of correctness 

recognizes that "as a matter of the sound administration of 

justice, one judicial actor is better positioned than another 

to decide the issue"). In Rushen v. Spain, 464 U.S. 114, 122 

n.6 (1983), the Court stated that "28 U.S.C.S 2254(d) 

requires that a federal habeas court more than simply 

disagree with the state court before rejecting its factual 

determinations." The Court further noted that the statutory 

test set forth in S 2254(d)(8) "is satisfied by the existence of 

probative evidence underlying the [state court's] 

conclusion." Id. 

In the instant case, it appears that the hearing judge's 

factual findings were based primarily on determinations 

regarding the credibility of Liguori at the post-conviction 

hearing. Such findings are generally owed "even greater 

deference" because "only the trial judge can be aware of the 

variations in demeanor and tone of voice that bear so 

heavily on the listener's understanding of and belief in what 

is said." Anderson v. City of Bessemer City , 470 U.S. 564, 

575 (1985); see also Batson, 476 U.S. at 98 n.21 ("Since 

the trial judge's findings in [this] context .. . largely will 

turn on evaluation of credibility, a reviewing court 

ordinarily should give those findings great deference."). 

 15 
Still, this does not signify that "federal review. . . is a 

nullity." Caldwell v. Maloney, 159 F.3d 639, 651 (1st Cir. 

1998) (hereafter "Maloney"). In Purkett, the Supreme Court 

stated that "implausible or fantastic justifications may (and 

probably will) be found to be pretexts for purposeful 

discrimination." 514 U.S. at 768. In addition, the Supreme 

Court has suggested, albeit in a non-habeas context, that 

reviewing courts need not accept a trial judge's findings 

based on credibility determinations if the witness has not 

told a "coherent and facially plausible story" or if his story 

is "contradicted by extrinsic evidence." Anderson, 470 U.S. 

at 575. Thus, we must determine whether there is fair 

support to conclude that the State put forth "a coherent 

and facially plausible" explanation of its strikes of the 

prospective black jurors or whether the State's explanations 

are "implausible." Ultimately, when we review the record at 

step three of the Batson inquiry, we must decide whether 

the state courts' acceptance of the State's explanation has 

been made after consideration of all the evidence on the 

record. 

5. State's Race-Neutral Explanations 

At the post-conviction hearing, the State proceeded to 

step two of the Batson inquiry by offering race-neutral 

reasons for striking the black jurors. It did so primarily 

through Liguori's testimony. Riley does not argue that the 

State failed to meet its step two burden. His contention is 

that the state courts failed to engage in the step three 

inquiry, which requires evaluation of the proffered raceneutral reasons in light of all the other evidence in the 

record. 

Liguori contended he struck Nichols because he doubted 

whether Nichols would be willing to return a death 

sentence. He based this doubt on his clear recollection of "a 

significant pause" by Nichols when asked about the death 

penalty. App. at 798. Yet, as Liguori himself admitted in his 

testimony, the record reflects no such pause and no such 

uncertainty on Nichols' part. 

At voir dire, Nichols had answered the two questions 

posed by the court regarding the jurors' willingness to 

sentence a defendant to death in a manner seemingly

favorable to the prosecution: 

 16 
 Q: Do you have any conscientious scruples against 

 finding a verdict of guilty where the punishment might 

 be death or against imposing the death penalty even if 

 the evidence should so warrant? 

 A: No. 

 Q: Regardless of any personal beliefs or feelings that 

 you may have, if the evidence justified it, would you be 

 able to find a person guilty of murder in the first 

 degree and would you be able to impose the death 

 penalty. 

 A: I think so. 

App. at 226-227. A prospective white juror, Angelo LePore, 

provided the exact same answers to the court's questions, 

yet he was not stricken and actually served on Riley's jury. 

App. at 231-232. The record provides no basis for 

distinguishing Nichols from LePore. 

Moreover, despite Nichols' alleged pause, the prosecutors 

did not ask the trial court to remove Nichols for cause or to 

inquire further into his willingness to award the death 

penalty, even though the trial judge excused six 

venirepersons for cause because they said they couldn't, or 

believed they couldn't, impose the death penalty, App. at 

234-237, 245-246, 265-271, and two more who responded 

equivocally, App. at 273-276, 282-286. This raises the 

question why, if Nichols actually did pause "a significant 

pause," the State did not seek to have him removed for 

cause like the others. The record does not show (and the 

State does not claim) that the prosecutors ever expressed to 

the trial court the concern that Nichols would be unwilling 

to impose the death penalty, that the court independently 

expressed concern, or that any of the contemporaneous 

notes kept by the prosecutors as to some of the jurors 

reflected either the existence of a pause or the concern 

about which Liguori testified six years later. Thus, Liguori's 

explanation is entirely unsupported by the record. See 

Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993) 

(stating that courts are not bound to accept race-neutral 

reasons that are either unsupported by the record or 

refuted by it). 

 17 
Similarly, the record offers little basis for distinguishing 

McGuire, a prospective black juror who was struck, from 

Reed, a white juror who served without challenge by the 

State. Liguori testified that he struck McGuire because 

McGuire asked to be excused from jury service and he 

feared that McGuire would be an inattentive juror. 6 Liguori, 

who claimed to remember Nichols' pause six years later 

without benefit of any assistance, testified that he had no 

recollection at all regarding Reed. Liguori's notes from voir 

dire, however, state that Reed "works Lowe's, wants off," 

App. at 823, which strongly suggests that Reed too was 

likely to be an inattentive juror. Yet at no point during voir 

dire did the prosecution ever express any concern over 

Reed's place on the jury. Based on this record evidence, 

there is no basis for distinguishing between McGuire's 

desire to be excused and Reed's desire to be excused. 

Although the State strains to distinguish the two jurors 

by arguing that McGuire's desire to be excused from jury 

service was stronger than Reed's desire because McGuire's 

employer had intervened to seek his release, its effort is not 

persuasive. First, Liguori did not testify before the hearing 

judge that this was the basis for the strike; in fact, Liguori 

testified to the opposite -- that McGuire himself had asked 

to be excused from jury service. Second, even if McGuire 

would have been inattentive for work-related reasons, the 

prosecution's notes from voir dire connecting Reed's 

employment to his "wants off " suggest that Reed's desire to 

be excused from jury service may have been work-related 

as well. Third, there is no evidence in the record to suggest 

that a juror will be more inattentive because s/he wants to 

be off the jury for work-related reasons rather than for 

other reasons, which is the basis for the State's position 

that McGuire's desire to be excused was stronger than 

Reed's desire to "want[ ] off," documented in Liguori's 

contemporaneous notes. 

With regard to both Nichols and McGuire, the state 

courts failed to mention in their opinions the weaknesses in 

the State's explanations, and therefore failed to complete 

the required step three Batson inquiry. 

_________________________________________________________________ 

6. In fact, McGuire testified at the post-conviction hearing that he never 

asked to be excused from the jury. 

 18 
6. Statistical Evidence 

In addition to Riley's challenge to the State's explanations 

at the post-conviction hearing for striking Nichols and 

McGuire by pointing to inconsistencies in the record, Riley 

introduced evidence that the prosecution used its 

peremptory challenges to strike every prospective black 

juror in the three other first degree murder trials occurring 

in Kent County within one year of Riley's trial. It did so 

both for the other black murder defendant and the two 

white murder defendants.7 In these four trials (including 

Riley's), the prosecution struck all 8 prospective black 

jurors who were called, i.e., 100%. By contrast, the 

prosecution used its peremptory challenges to strike only 

23 of the 71 prospective white jurors, or 32%. After the 

prosecution used its peremptory challenges to strike 23 

whites, 8 blacks, 1 Indian, and 2 jurors of unidentified 

race, the remaining racial makeup of the actual jurors in 

the four trials was 48 white jurors. See Letter to this Court 

from Thomas J. Allingham II (Dec. 16, 1999), Ex. A (on file 

in the Clerk's office). 

An amateur with a pocket calculator can calculate the 

number of blacks that would have served had the State 

used its strikes in a racially proportionate manner. In the 

four capital cases there was a total of 82 potential jurors on 

the venires who were not removed for cause, of whom eight, 

or 9.76%, were black. If the prosecution had used its 

peremptory challenges in a manner proportional to the 

percentage of blacks in the overall venire, then only 3 of the 

34 jurors peremptorily struck (8.82%) would have been 

black and 5 of the 48 actual jurors (10.42%) would have 

been black. Instead, none of the 48 jurors were black. 

Admittedly, there was no statistical analysis of these 

figures presented by either side in the post-conviction 

proceeding. But is it really necessary to have a 

sophisticated analysis by a statistician to conclude that 

_________________________________________________________________ 

7. The exclusion by the Kent County prosecutor of all black jurors in the 

trials of the two white defendants is relevant to establishing a pattern 

of 

race-based use of peremptories. See Powers v. Ohio, 499 U.S. 400 (1991) 

(excluding jurors on the basis of race is unconstitutional regardless of 

the race of the defendant). 

 19 
there is little chance of randomly selecting four consecutive 

all white juries? The State never argued before the hearing 

judge and does not argue before this court that the

selection of four consecutive all white juries could have 

been due to pure chance. Nor does it suggest that Riley's 

evidence does not accurately represent Kent County 

prosecutorial practices. Moreover, not once has the State 

offered an explanation for its use of peremptory challenges 

to strike all prospective black jurors in the four consecutive 

capital cases. The State has never sought to explain the 

data by variables other than race. Nor has it sought to 

rebut Riley's evidence. 

The failure of the State to produce evidence from other 

trials is significant because it was the State, not Riley, that 

would have had access to such evidence, it was the State 

that asserted that such evidence was available and 

forthcoming, and it was the State, not Riley, that failed to 

provide it. Yet again, neither the hearing judge in his 

opinion nor the Delaware Supreme Court discussed Riley's 

evidence that showed the systematic exclusion of blacks 

from the petit juries in Delaware. In fact, having stated that 

this evidence was introduced to demonstrate that"the 

exercise of the peremptory challenges in this particular case 

followed some kind of pattern that exists in the 

prosecutorial actions in first degree murder cases involving 

minority defendants," App. at 872, the hearing judge 

discussed neither the statistics nor the State's failure to 

explain them. Thus, once again by overlooking and ignoring 

a significant segment of Riley's evidence, the hearing 

judge's opinion does not satisfy the crucial third step of the 

Batson analysis. 

7. Analysis 

At the conclusion of the evidentiary post-conviction 

hearing, the hearing judge issued a written opinion in 

which he addressed the prosecutors' reasons for striking 

the three black jurors, as required by step three of the 

Batson inquiry. He stated: 

 The State in this case provided race-neutral

 explanations for the peremptory challenges on all three 

 black jurors. After examining the demeanor and 

 20 
 credibility of the witnesses and prosecutors at the 

 evidentiary hearing, I believe the State exercised its 

 peremptory challenges entirely within the strictures of 

 the Fourteenth Amendment. No factual basis exists for 

 a successful claim of an equal protection violation. The 

 State successfully rebutted any prima facie showing of 

 discrimination in jury selection based upon race. 

Riley IV, App. at 890-891. This determination that the 

prosecutors did not intend to discriminate on the basis of 

race in exercising their peremptory strikes against the three 

challenged jurors is a factual finding entitled to a 

presumption of correctness unless one of the exceptions in 

S 2254(d) (1988) applies. See Hernandez v. New York, 500 

U.S. 352, 365-66 (1991). 

The inquiry required by Batson must be focused on the 

distinctions actually offered by the State in the state court, 

not on all possible distinctions we can hypothesize. See 

Mahaffey v. Page, 162 F.3d 481, 483 n.1 (7th Cir. 1998) 

(concerning itself with actual reasons, not apparent ones, 

for state's use of peremptory challenges); Turner v. 

Marshall, 121 F.3d 1248, 1253 (9th Cir. 1997) ("The

arguments that the State has made since the evidentiary 

hearing do not form part of the prosecutor's explanation."). 

Apparent or potential reasons do not shed any light on the 

prosecutor's intent or state of mind when making the 

peremptory challenge. As to both Nichols and McGuire, the 

hearing judge merely repeated Liguori's articulated

explanations without any reference to, or analysis of, Riley's 

evidence of pretext and seems to have accepted the State's 

justifications at face value. 

Liguori simply testified that he struck McGuire because 

he would be inattentive at trial, and for no other reason, a 

justification that would apply equally to Reed. The State 

gave no explanation as to Reed other than Liguori's plain 

lack of memory. Cf. Harrison v. Ryan, 909 F.2d 84, 87 (3d 

Cir. 1990) (concluding that prosecutor's failure to recall his 

reason for striking prospective juror did not constitute a 

race-neutral explanation). And the credibility of Liguori's 

lack of memory is somewhat in doubt considering that he 

claimed to remember Nichols' "significant pause." The only 

distinction between the two jurors that is apparent from the 

 21 
record is that McGuire, who was struck, is black; Reed, 

who was retained, is white. 

A comparison between a stricken black juror and a 

sitting white juror is relevant to determining whether the 

prosecution's asserted justification for striking the black 

juror is pretextual. See McClain v. Prunty, 217 F.3d 1209, 

1220 (9th Cir. 2000) ("A prosecutor's motives may be 

revealed as pretextual where a given explanation is equally 

applicable to a juror of a different race who was not 

stricken by the exercise of a peremptory challenge."); 

Jordan v. Lefevre, 206 F.3d 196, 201 (2d Cir. 2000)

("Support for the notion that there was purposeful 

discrimination in the peremptory challenge may lie in the 

similarity between the characteristics of jurors struck and 

jurors accepted. Where the principal difference between 

them is race, the credibility of the prosecutor's explanation 

is much weakened."); Maloney, 159 F.3d at 653 ("[A]s a 

general matter, comparisons between challenged jurors and 

similarly situated, unchallenged jurors of a different race or 

gender can be probative of whether a peremptory challenge 

is racially motivated."); Coulter v. Gilmore , 155 F.3d 912, 

921 (7th Cir. 1998) ("A facially neutral reason for striking a 

juror may show discrimination if that reason is invoked 

only to eliminate African-American prospective jurors and 

not others who also have that characteristic."); Turner, 121 

F.3d at 1251-52 ("A comparative analysis of jurors struck 

and those remaining is a well-established tool for exploring 

the possibility that facially race-neutral reasons are a 

pretext for discrimination."). 

The comparison between McGuire and Reed is strongly

suggestive of the State's race-based use of its peremptory 

challenges. See, e.g., McClain, 217 F.3d at 1224 (concluding 

that Batson was violated where two of six proffered raceneutral explanations were "pretextual based upon 

comparisons of voir dire responses by non-black jurors who 

were seated without objection by the prosecutor," and other 

four were contrary to the facts); Turner, 121 F.3d at 1253- 

54 (holding that the district court clearly erred in finding 

that prosecutor did not discriminate in jury selection where 

sole justification offered for striking a black juror applied 

equally to non-stricken white juror); Devose v. Norris, 53 

 22 
F.3d 201, 205 (8th Cir. 1995) (concluding that Batson was 

violated where the only justification prosecutor offered for 

striking three out of four prospective black jurors with prior 

jury experience was that they might be "burned out" by 

prior service and where at least five white jurors were not 

stricken although they had previously served on juries); 

Jones v. Ryan, 987 F.2d 960 (3d Cir. 1993) (rejecting the 

prosecutor's proffered race-neutral explanation for striking 

black jurors where the prosecutor did not apply the same 

rationale to similarly-situated white jurors); Garrett v. 

Morris, 815 F.2d 509, 514 (8th Cir. 1987) ("The prosecutor's 

rationale [for striking three black jurors]-- the blacks' 

purported lack of education, background, and knowledge -- 

seems clearly pretextual in light of his decision not to strike 

white jurors who differed in no significant way"). 

Nichols' answers as to his willingness to return a death 

sentence were the same as LePore's, and were it not for 

Liguori's testimony as to the suspect "significant pause," 

there would be no significant difference between them as 

well, except, of course, that Nichols, who was struck, is 

black and LePore, who was retained, is white. 

Furthermore, each piece of evidence should not be 

reviewed in isolation. It is clear that "[a]n explanation for a 

particular challenge need not necessarily be pigeon-holed 

as wholly acceptable or wholly unacceptable. The relative 

plausibility or implausibility of each explanation for a 

particular challenge . . . may strengthen or weaken the 

assessment of the prosecution's explanation as to other 

challenges." United States v. Alvarado, 923 F.2d 253, 256 

(2d Cir. 1991). In short, "[a] reviewing court's level of 

suspicion may . . . be raised by a series of very weak 

explanations for a prosecutor's peremptory challenges. The 

whole may be greater than the sum of its parts." Maloney, 

159 F.3d at 651. 

It is in this connection that we must turn to the 

statistical evidence presented by Riley of the pattern of the 

State's use of its peremptories. It may be that such 

evidence, standing alone, would not be sufficient to show 

intentional discrimination in selection of juries by the Kent 

County Prosecutor's office in the year in question. It is, 

however, particularly troublesome because the State failed 

 23 
to provide the rebuttal data as to Riley's evidence when 

given the opportunity which it requested. In that 

circumstance, an inference adverse to the State may fairly 

be drawn. As has been recognized, "[w]here relevant

information . . . is in the possession of one party and not 

provided, then an adverse inference may be drawn that 

such information would be harmful to the party who fails to 

provide it." McMahan & Co. v. Po Folks, Inc. , 206 F.3d 627, 

632 (6th Cir. 2000) (quotation omitted). Indeed, the 

Supreme Court has stated, "The production of weak 

evidence when strong is available can lead only to the 

conclusion that the strong would have been adverse." 

Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226 

(1939). Accordingly, the State must accept the negative 

inference that flows from its failure to provide the rebuttal 

data, and that inescapable inference is that the Kent 

County Prosecutor's office did not want blacks on its juries 

in first degree murder cases. 

The Supreme Court in Batson recognized the significance 

of evidence of systematic exclusion of blacks in jury 

selection. It stated, "Proof of systematic exclusion from the 

venire raises an inference of purposeful discrimination 

because the `result bespeaks discrimination.' " Batson, 476 

U.S. at 94-95 (quoting Hernandez v. Texas, 347 U.S. 475, 

482 (1954)). It likewise recognized the relevance of 

systematic exclusion of blacks from the petit jury. See id. at 

96-97; see also McClain, 217 F.3d at 1224 (finding that "the 

fact that all blacks in the venire pool were struck raises an 

inference of discrimination" where 3 of 39 people in venire 

pool were black). On the record before us, it is difficult to 

avoid drawing the inference that the Kent County 

Prosecutor followed a pattern of using peremptory 

challenges in a racially discriminatory manner. 8 

_________________________________________________________________ 

8. The pattern is relevant even if Riley has not undertaken to prove a 

Batson violation in the other three trials. Defendants Daniel Pregent and 

Judith McBride were both tried before Batson was decided, and thus 

were not likely to have raised a Batson objection, particularly since 

neither was black and the Supreme Court did not extend the Batson 

holding to apply regardless of whether the defendant and excluded juror 

were of the same race until its opinion in Powers v. Ohio, 499 U.S. 400 

(1991). The third capital defendant, Deputy, did not challenge the 

 24 
Despite the State's efforts to explain away the various 

parts of the evidentiary picture Riley has presented, the 

record as a whole squarely contradicts its position. The 

questionable nature of Liguori's explanations for the strikes 

of McGuire and Nichols must be evaluated not only in light 

of the uncontested evidence of the use of peremptory 

strikes in Kent County but also in light of the nature of the 

State's pre-Batson defense on direct appeal. 

When Riley's direct appeal came before the Delaware

Supreme Court in 1984, the State justified the use of race 

in selecting jurors in criminal trials. On that occasion, 

which was the State's first opportunity to defend the use of 

its peremptory challenges in Riley's trial, the State did not 

offer a single race-neutral explanation, not even as an 

alternate argument; instead, it claimed that it was

permissible -- even socially desirable -- to exclude jurors 

based on what it called "group association," App. at 896, 

which a Justice of the Delaware Supreme Court was 

reported to have recognized as a "euphemism for race," 

App. at 1321. In its brief to the Delaware Supreme Court, 

the State interpreted Swain v. Alabama, 380 U.S. 202 

(1965), as "recogniz[ing] how peremptory challenges, even 

those exercised on the basis of group association, foster the 

constitutional goal of an impartial jury." App. at 896. The 

State added in a footnote that it "emphatically denies that 

the prosecutor [in Riley's case] exercised any of his 

challenges solely on the assumption that the juror's race, in 

the context of the facts of this case, indicated a verdict 

position adverse to the prosecution. Rather, the State will 

argue that even if such was the case, no constitutional 

command would have been contravened." App. at 896 

(emphasis added). 

_________________________________________________________________ 

composition of the jury in the state courts and thus the racial makeup 

of the venire was not available when this court decided the appeal. See 

Deputy, 19 F.3d at 1491-93. Moreover, the Supreme Court in Batson 

made clear that "a defendant may make a prima facie showing of 

purposeful racial discrimination in selection of the venire by relying 

solely on the facts concerning its selection in his case." Batson, 486 

U.S. 

at 95 (emphasis in original). 

 25 
Before this court, the State contends that Swain was 

"good law" at the time, so reliance on that case cannot be 

viewed as a concession that some of its peremptory 

challenges may not have been race-neutral. Tr. of Oral 

Argument at 31. Yet, significant for purposes here is that in 

response to Riley's challenge to its use of peremptories, the 

State never denied on direct appeal that race played a role 

in its use of peremptory challenges; it only claimed that it 

did not exercise them solely based on race. Its justification 

for that practice certainly suggests that race was at least a 

partial basis for its use of peremptory challenges. And that 

suggestion further supports the conclusion we are led to by 

our earlier analysis of the record that the State's proffered 

race-neutral explanations are pretextual. 

The requirement that we defer to the State's findings of 

fact does not apply when those findings are not supported 

by probative evidence. The State's position is that under 

S 2254(d) "all that is required" is that the state court make 

findings of fact, and flatly states that because the hearing 

judge did so, we must defer. Tr. of Oral Argument at 41. 

Although the State concedes that we must concern 

ourselves under Rushen, 464 U.S. at 121 n.6, with whether 

there is probative evidence in the record to support the 

state court's findings, it then seems to argue that since the 

findings are primarily based on credibility determinations, 

the mere fact that Liguori testified is sufficiently probative 

to support these determinations. 

Certainly it is not required that a federal court should 

defer to a state court's findings of fact on habeas review as 

long as the state court accepted the prosecutor's raceneutral explanation, no matter how incredible, 

contradicted, and implausible it may be. On the contrary, 

several courts of appeals have acknowledged that the 

traditional level of deference should not govern appellate 

review when a prosecutor's explanations are obviously not 

credible. See McClain, 217 F.3d at 1221 (" `[I]mplausible or 

fantastic justifications may (and probably will) be found to 

be pretexts for purposeful discrimination.' ") (quoting 

Purkett, 514 U.S. at 768); United States v. Griffin, 194 F.3d 

808, 826 (7th Cir. 1999) (noting that a basis for reversal of 

state court exists where "the reason given [by the 

 26 
prosecutor] is completely outlandish or there is other 

evidence which demonstrated its falsity"); Maloney, 159 

F.3d at 651 (stating that serious questions of pretext arise 

when the facts in the record are "objectively contrary to" the 

prosecutor's explanations). 

In light of the lack of probative evidence in the record to 

support the findings that the State exercised its peremptory 

challenges at Riley's trial in a race-neutral manner, we 

decline to give these findings deference. Such deference is 

ordinarily based, at least in part, on the original trial 

court's ability to make contemporaneous assessments. See 

Hernandez v. New York, 500 U.S. at 365. Recently, the 

Court of Appeals for the Fourth Circuit deferred to the state 

court's findings on a Batson claim precisely because the 

court had that opportunity. It explained, 

 Indeed, it would be an impermissible exercise in 

 hindsight for us now to upset the trial court's 

 credibility determination in evaluating the prosecutor's 

 explanation. And as the district court correctly 

 observed, the `retrospective parsing of the `curricula 

 vitae' of the jurors' is no substitute for the observations 

 of the trial judge, who witnessed first-hand the 

 process. We simply cannot overlook the fact that the 

 trial court had conducted an extensive voir dire of the 

 jury pool, which was documented in several hundred 

 pages of trial transcripts, and was able to observe the 

 demeanor and hear the responses of the prospective 

 jurors in court. This insight enabled the trial court to 

 compare the prosecutor's explanation with what 

 occurred at the bench and in open court. Most 

 significantly, the trial court was able to observe the 

 prosecutor's demeanor and conduct and evaluate the 

 credibility of his explanation. 

Evans v. Smith, 220 F.3d 306, 316 (4th Cir. 2000) 

(emphases added). 

It may be that because the findings at issue here were 

made by the hearing judge six years after the State had 

exercised its peremptory challenges before the trial judge 

and the hearing judge neither witnessed the challenges 

first-hand nor examined the witnesses at the time the 

 27 
challenges were exercised, he did not note or comment on 

some of the troublesome inconsistencies in the State's raceneutral explanations. 

Deference in a Batson case must be viewed in the context 

of the requirement that the state courts engage in the 

three-step Batson inquiry. As the Court of Appeals for the 

Fourth Circuit described step three: "If [the State's] burden 

[under step two] is met, the court then addresses and 

evaluates all evidence introduced by each side (including all 

evidence introduced in the first and second steps) that 

tends to show that race was or was not the real reason and 

determines whether the defendant has met his burden of 

persuasion." McMillon, 14 F.3d 948, 953 n.4 (4th Cir. 

1994); see also Jordan, 206 F.3d at 200 (stating that step 

three of Batson inquiry requires examination of "all the 

facts and circumstances") (quotation omitted). 

Here, the state courts failed to examine all of the

evidence to determine whether the State's proffered raceneutral explanations were pretextual. Not only is there no 

indication on the record that the hearing judge engaged in 

the required analysis, but there is no indication that the 

Delaware Supreme Court did so, by making findings which 

also would have been entitled to deference. See Sumner v. 

Mata, 449 U.S. 539, 547 (1981). The omission of the crucial 

step of evaluating the State's proffered explanations in light 

of all the evidence can be gleaned by the absence of the 

word "pretext" in both the opinion of the hearing judge and 

in the opinion of the Delaware Supreme Court. Nor is there 

any language in either opinion that suggests, whatever the 

words used, that either court recognized the nature of the 

analysis it was required to undertake. In Jones v. Ryan, we 

noted that the state court decision rejecting a Batson claim 

contained no factual findings relating to the different 

prongs of the Batson analysis, to which we could accord a 

presumption of correctness. See 987 F.2d at 965-66. The 

situation before us is similar. 

The State argues that our concern with the hearing 

judge's failure to discuss critical evidence in his decision is 

merely a complaint about the manner in which he wrote his 

opinion. It states in its supplemental brief that"[i]t may 

well have been better for the state judge to have further 

 28 
explained his decision . . . [b]ut the federal habeas statutes 

do not set standards for the writing of opinions by state 

judges." Supp. Memo. of Appellees at 7. 

But the concern is not how the decision was written, a 

trifling matter. It is the failure of the state courts to 

complete the required Batson analysis by comparing the 

stricken black jurors with the sitting white jurors, 

acknowledging the statistical evidence of striking all black 

jurors in capital murder cases in Kent County within a year 

of Riley's trial, and recognizing the State's position in this 

very case that use of peremptories for racial reasons was 

both constitutional and socially beneficial. 

Comparable to the case before us is the decision in

Coulter v. Gilmore, 155 F.3d 912 (7th Cir. 1998). There the 

court acknowledged that deference is owed to the state 

court findings under S 2254(d), but rejected those findings 

and refused to apply the presumption of correctness

because "the state judge made those findings without ever 

taking into account the totality of the circumstances on the 

record." Id. at 920. It noted that Batson requires "that, one 

way or another, a trial court . . . consider all relevant 

circumstances before it issues a final ruling on a 

defendant's motion." Id. at 921. In a compelling statement 

of the court's role under step three of the Batson inquiry, 

the court wrote: 

 In light of the deferential standard of the post-AEDPA 

 S 2254 and the perfunctory quality of the second step 

 of a Batson inquiry after Purkett v. Elem, it is more 

 important today than ever that the Batson inquiry not 

 omit consideration of the totality of the circumstances, 

 both for itself and as it relates to the evaluation of 

 similarly situated potential jurors. . . . Under the pre- 

 AEDPA standards that apply here, we agree with the 

 district court that [defendant's] rights under Batson 

 were denied. 

Id. at 921-22. 

The state courts in this case rejected Riley's Batson claim 

without discussing any of the ample evidence that throws 

into question the explanations offered by the prosecutor for 

striking two of the black jurors and there is nothing 

 29 
relevant in the record that might otherwise support the 

state courts' decisions. Thus, we do not know why the state 

courts found the State's explanation was plausible and 

credible in light of the other evidence. It is because of the 

state courts' omission of a requirement under the third step 

of the Batson inquiry -- of an ultimate determination on the 

issue of discriminatory intent based on all the facts and 

circumstances -- that the State's argument founders. 

We cannot avoid noting that Batson was not a death 

penalty case. This is. If the State failed to accord Riley his 

constitutional right to a jury selected on a race-neutral 

basis, we must not shirk to so hold. As Riley's lawyer asked 

at oral argument, "If not this case, what case? If the 

evidence in this case is insufficient to show that the 

prosecutors' race-neutral rationales were pretextual, what 

case, short of a prosecutorial mea culpa would do the job?" 

Tr. of Oral Argument at 3. 

After consideration of all the arguments and the record, 

we are compelled to conclude that the prosecution violated 

Riley's constitutional rights under Batson, and that Riley is 

entitled to relief. 

8. The Dissenting Opinion -- The Batson Issue 

It is fitting to discuss the Dissenting Opinion at this point 

because our difference with the Dissent is most acute in 

our respective views of the requirements of step three of the 

Batson inquiry. Although the Dissent takes issue with 

much of the majority opinion, its principal argument is that 

in a habeas case the federal court must defer to the state 

courts' findings, in this case the finding that the prosecutor 

did not use the State's peremptory challenges striking black 

jurors in a manner that violated the principles of Batson. 

We have already discussed in detail when a state court's 

findings are entitled to deference and when they are not, 

focusing on the exception in S 2254(d)(8) for the situation 

where the state court's findings are "not fairly supported by 

the record." See supra Part II.A.4 (Standard of Review). It is 

manifest that a finding that Batson has been satisfied must 

be made in accordance with the process enunciated in that 

case. 

 30 
The Dissent agrees that under step three of the Batson 

inquiry a judge or court must consider "all of the relevant 

evidence that has been adduced." See Dis. Op. at 88. As we 

previously discussed, the courts after Batson have

described step three as requiring the judge or court to 

examine the prosecutor's proffered reasons for striking the 

minority jurors against the evidence presented by the 

defendant and/or the weaknesses in the prosecutor's

reasons. See, e.g., McMillon, 14 F.3d at 953 n.4; Jordan, 

206 F.3d at 200. The Dissent sees no reason to believe that 

the Delaware courts did not do so in Riley's case, even 

though the opinions of the Delaware courts rejecting Riley's 

Batson challenges never commented on the weaknesses in 

the State's case or, even more important, never 

acknowledged that there was a step three to the Batson 

inquiry. We, therefore, proceed to try to ascertain whether 

the hearing judge and the Delaware Supreme Court made 

their findings that there was no purposeful discrimination 

in accordance with the process required by Batson. If not, 

then deference to those findings is not appropriate. 

The extent of the Delaware courts' recognition of the need 

to engage in the step three inquiry is open to question on 

this record. Nothing in the discussion of the hearing judge 

suggests that the court performed the necessary evaluation. 

See Riley IV, App. at 887-91. The hearing judge, using 

language taken from Riley I rather than Batson, understood 

that his obligation was to consider the prosecutor's 

proffered explanation for striking the jurors and"then . . . 

be satisfied by that neutral explanation and make a ruling 

to that effect." App. at 888. Accordingly, following what he 

understood to be the applicable law, the hearing judge 

discussed the prosecutor's proffered reasons for the two 

strikes at issue here, and found that the prosecutor was 

credible. See App. at 889 ("the State provided a credible, 

race-neutral reason for exercising its peremptory 

challenge") (emphasis added); id. ("The State articulated a 

specific race-neutral ground for challenging juror McGuire. 

. . .") (emphasis added). Throughout, the hearing judge 

made clear that he understood that "[t]he test applied is the 

credibility of the explanation given . . . ." App. at 890. 

Nothing in the hearing judge's discussion suggests that he 

undertook an evaluation of the proffered reasons in light of 

 31 
the evidence submitted by Riley, which is the essence of 

step three. 

It is even more questionable whether on appeal from that 

decision the Delaware Supreme Court fully appreciated the 

requirement. Its entire discussion of this issue is fully set 

forth in the margin.9 In this one paragraph, the Court relied 

on its 1985 decision on Riley's direct appeal where it 

rejected Riley's challenge to the State's peremptory 

challenges. Riley I, 496 A.2d 997 (Del. 1985). The 1985 

decision is noteworthy because on that occasion (a year 

before Batson), the Delaware Supreme Court concluded, for 

the first time, that "use of peremptory challenges to exclude 

prospective jurors solely upon the basis of race violates a 

criminal defendant's right under Del. Const., Art. I, S 7 to a 

trial by an impartial jury." Riley I, 496 A.2d at 1012. 

In Riley I, the Court also set out the procedure to be 

followed10 but nothing in the Delaware Court's laudable 

_________________________________________________________________ 

9. The Court stated: 

 Riley's next contention, that the State exercised its peremptory 

 challenges for racial reasons, we find to be simply a renewed 

 attempt to reopen previously settled issues. In Riley I, [496 A.2d 

997 

 (Del. 1985)], we set forth a legal analysis functionally identical 

to the 

 Supreme Court's analysis later articulated in Batson, 476 U.S. at 

 79. In Riley I, we found that Riley's constitutional right to an 

 impartial jury had not been violated. 496 A.2d at 1009. The 

 Superior Court, after an evidentiary hearing on Riley's motion for 

 postconviction relief, held that Riley had not been denied equal 

 protection as a result of the State's use of peremptory challenges. 

 The court found that the State had provided race-neutral 

 explanations for its peremptory challenges. We find no error in 

 Superior Court's rejection of Riley's Batson claim. See Holland v. 

 Illinois, 493 U.S. 474 (1990) (the Sixth Amendment fair crosssection 

 requirement of an impartial jury does not deprive a party of the 

right 

 to exercise peremptory challenges on racial or any other grounds 

 from a venire that otherwise meets Sixth Amendment cross-sectional 

 standards of representativeness). Moreover, we reaffirm our earlier 

 decision sustaining the State's peremptory challenges on state 

 constitutional grounds. Riley I, 496 A.2d at 1010-1013. 

Riley V, 585 A.2d 719, 725 (Del. 1990). 

10. That procedure required that the defendant make a prima facie 

showing after which the trial judge 
 32 
decision requires an inquiry comparable to the Batson step 

three. The Delaware cases at that time appear to have 

required that the prosecutor provide, or articulate, a raceneutral reason for the peremptory challenges, and that the 

court find the prosecutor to be credible. They do not require 

an evaluation comparable to step three. Therefore, if, as it 

appears, the Delaware Supreme Court in Riley IV rejected 

Riley's Batson claim by relying on its earlier opinion in Riley 

I, and the Riley I opinion did not require a step three 

inquiry, any assumption that the Court engaged in such an 

inquiry would be unwarranted. Or, to phrase it somewhat 

differently, if the state courts' findings to which the Dissent 

would defer were not made in accordance with the process 

required by the United States Supreme Court, deference is 

not required. 

This digression into Delaware law was undertaken to

provide the context in which to view the Dissent's 

subsidiary argument, which is that we should assume that 

the Delaware courts performed the step three analysis and 

that it was not necessary for the Delaware courts to 

comment on that analysis. We do not suggest that every 

state court decision that is the subject of a habeas review 

be as explicit as a Social Security Administrative Law 

Judge's decision. See Dis. Op. at 89. But Batson is not a 

disability case. Although a judge considering a Batson 

challenge is not required to comment explicitly on every 

piece of evidence in the record, some engagement with the 

evidence considered is necessary as part of step three of the 

Batson inquiry. 

_________________________________________________________________ 

 determine[s] whether there is a substantial likelihood that the 

 prosecutor is exercising the State's peremptory challenges on the 

 basis of race. A ruling in favor of the State will end any further 

 inquiry. A ruling in favor of the defendant, however, will shift 

the 

 burden to the State to prove that the exercised challenges were not 

 racially motivated. To sustain this burden, the State . . . must 

 satisfy the court that its peremptory challenges were made on 

 grounds of specific, individual juror bias, or on grounds 

reasonably 

 related to the particular case or trial . . . and not solely on the 

 ground of the juror's race. 

Riley I, 496 A.2d at 1013 (quotation and citation omitted). 

 33 
In United States v. Harris, 192 F.3d 580, 588 (6th Cir. 

1999), the Sixth Circuit reviewed the district court's 

rejection of a Batson challenge in a case where one AfricanAmerican juror was seated but two were struck by the 

government's peremptory challenges. The Court of Appeals 

remanded because it found that the district court's"terse 

analysis" of step three of the Batson inquiry was 

insufficient as it appeared that the district court"made no 

effort to weigh the credibility of the prosecutor's asserted 

reasons for striking the panelists." Id. at 588. A year earlier, 

in United States v. Hill, 146 F.3d 337 (6th Cir. 1998), the 

same court remanded another case to the district court 

because its analysis of step three of the Batson inquiry was 

insufficient. The court stated, in language that could be 

equally applicable here, that "[t]he record before us 

indicates nothing about the district court's thought 

processes in its step three analysis apart from its abrupt 

conclusion indicating the apparent view that the 

prosecutor's asserted justification outweighed [the

defendant's] showing under the totality of circumstances." 

Id. at 342. And in Hill, unlike here, the trial court ruling on 

the Batson claim at least stated that it performed some sort 

of weighing analysis. 

Although both of these cases came to the Court of 

Appeals on direct appeal of a district court decision rather 

than on habeas review of a state decision, that does not 

detract from the force of the court's understanding of what 

is required in a Batson inquiry. The process required by 

Batson, including step three, does not differ if the 

prosecutor used the peremptories to strike jurors in a state 

trial or in a federal trial. After all, the same Constitution 

applies to both fora. 

The Dissent relies almost exclusively on the statutory 

presumption of correctness owed to a state court's factual 

determination made after a hearing on the merits. This 

deference is indeed the fulcrum on which our federalism 

turns. Yet in case after case -- and most particularly in 

capital cases -- we have found that even applying the more 

stringent post-AEDPA standard of review (not applicable 

here), there are reasons not to accord the usual deference 

to the state courts' findings. See, e.g., Jermyn v. Horn, 266 

 34 
F.3d 257, 305 (3d Cir. 2001) (post-AEDPA denial of 

deference to state court because it unreasonably applied 

the principles of Strickland v. Washington, 466 U.S. 668 

(1984)); Moore v. Morton, 255 F.3d 95, 120 (3d Cir. 2001) 

(post-AEDPA denial of deference to state court because "[a] 

reasonable application of Supreme Court precedent . . . 

requires finding [defendant's] trial was so infected with 

unfairness that he was denied due process"); Appel v. Horn, 

250 F.3d 203, 211 (3d Cir. 2001) (post-AEDPA denial of 

deference to state court because, among other things, the 

state court failed to apply the relevant Supreme Court 

precedent of United States v. Cronic, 466 U.S. 648 (1984)). 

As we discuss in detail in the immediately preceding 

section of this opinion, see supra Part II.A.7 (Analysis), the 

requirement that the state courts faced with a Batson 

challenge engage in the critical step three analysis is not a 

product of our own creativity but an accepted element of a 

habeas court's obligation to examine whether a defendant's 

constitutional right to a race-neutral jury has been 

infringed. See, e.g., Jordan, 206 F.3d at 200; Coulter, 155 

F.3d at 921; McMillon, 14 F.3d at 953 n.4; Jones, 987 F.2d 

at 967. 

The Dissent accords little weight to these authorities. But 

our disinclination to include long string cites does not 

mean that there are not numerous cases in which the

courts, both state11 and federal, have made clear that the 

Batson step three inquiry is not merely a formalistic one, 

but an integral element of the required analysis. In addition 

to Harris and Hill, the Sixth Circuit cases cited above, the 

Second Circuit has also made this point. In Barnes v. 

Anderson, 202 F.3d 150 (2d Cir. 1999), the court ordered a 

_________________________________________________________________ 

11. See, e.g., MacKintrush v. State , 978 S.W.2.d 293, 297 (Ark. 1998) 

(describing step three of Batson as requiring "that the trial court weigh 

and assess what has been presented to it to decide whether in light of 

all the circumstances, the proponent's explanation is or is not 

pretextual"); State v. Collier, 553 So.2d 815, 821 (La. 1989) (holding 

that 

the trial judge cannot simply "[r]ubber stamp. . . [a prosecutor's] nonracial explanation, no matter how whimsical or fanciful, . . . [but] in 

order to permit a questioned [peremptory] challenge, . . . must conclude 

that the proffered reasons are, first, neutral and reasonable, and, 

second, not a pretext") (quotation omitted). 

 35 
new trial because the trial court had denied a Batson 

motion "without explicit adjudication of the credibility of the 

non-movant's race-neutral explanations for the challenged 

strikes." Id. at 156 (emphasis added). 

The Dissent suggests that we exceed our authority as a 

habeas court when we comment on the failure of the state 

courts reviewing Riley's Batson challenge to provide a 

reasoned statement for their rejection of Riley's challenge. 

Although the state court is not required to "comment on all 

of the evidence" before it, Dis. Op. at 89 (emphasis added), 

an adequate step three Batson analysis requires something 

more than a "terse," Harris, 192 F.3d at 588, "abrupt," Hill, 

146 F.3d at 342, comment that the prosecutor has satisfied 

Batson. 

Similarly, we do not think that a habeas court may reject 

a state court's ruling on a Batson claim simply because "it 

was not persuaded by a particular piece of proof," as the 

Dissent states. Dis. Op. at 87. However, as we have

explained, without any such statement there is no basis on 

this record to determine if the state courts undertook, or 

even were aware of, the required Batson step three inquiry. 

The Fourth Circuit expressed the same thought in United 

States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991), where it 

stated: "[T]he failure of the district court to rule at each 

step of the Batson analysis deprives . . .[a reviewing] court 

of the benefit of its factual determination and the reasons 

supporting its ultimate holding." And its cases make clear 

that such review requires that the trial court's rulings must 

be clearly articulated. See, e.g., Jones v. Plaster, 57 F.3d 

417, 421 (4th Cir. 1995) ("The ruling of the district court is 

so unclear that we cannot determine on the present record 

whether the ultimate conclusion of the district court to 

overrule [the Batson] objection may be sustained."); United 

States v. Blotcher, No. 95-5590, 1996 U.S. App. Lexis 

19835, *11-*12 (4th Cir. August 7, 1996) (unpublished) 

("We find the record so unclear that we cannot determine 

whether the district court applied the proper legal analysis 

in sustaining the prosecution's Batson objection to

[defendent's] peremptory strike against [a] juror."). 

Most of the Dissent's other comments on the Batson 

issue in this case have been previously anticipated and 

 36 
discussed. We take this opportunity, however, to remark 

upon the manner in which the Dissent comments upon the 

reference to the pattern of the State's use of its 

peremptories to exclude black jurors in all four first degree 

murder cases, including Riley's, tried in the county the 

same year. Because of the lack of information about some 

of those cases, we refrained from suggesting that such 

evidence, standing alone, would show intentional 

discrimination but pointed out that it was the State that 

sought an opportunity to produce supplementary evidence. 

The following correspondence, which was preceded by the 

oral dialogue quoted previously in its opinion, supra at 

typescript page 18, clarifies the situation. 

On January 9, 1989, the hearing judge wrote to counsel: 

 This will confirm the conclusion of the postconviction 

 relief hearing in the above-captioned matter. It is the 

 Court's understanding that the defendant's 

 presentation and all rebuttal by the State available on 

 the date of the hearing has been completed. However, 

 at the State's request, the Court did hold the record 

 open on the hearing to be supplemented by a rebuttal 

 summary of jury composition in State peremptory 

 challenges in first degree murder trials in Kent County 

 over a determined period of time if the State wished to 

 supplement the record. 

 Further, the hearing record will close on January 30, 

 1989; the Court expects proposed findings of fact and 

 conclusions of law from both parties no later than 

 February 6, 1989. 

See Letter to this Court from Thomas J. Allingham II (Dec. 

16, 1999), Ex. B (on file in the Clerk's office) (emphasis 

added). 

Some three weeks later, on January 27, 1989, and just 

before the hearing record was to close, the State advised 

the court as follows: 

 Please be advised that the State will not supplement 

 the record of the post conviction relief hearing held in 

 the above-captioned matter on December 30, 1988. 

Id. 

 37 
Thus the State, which had assured the court that 

materials from other cases "do exist" that would be contrary 

to Riley's representation, App. at 874, and having been 

given the opportunity that it requested to supplement the 

record with evidence as to jury composition, surprisingly 

and without explanation, declined to produce evidence that 

blacks served on juries in first degree murder cases in the 

county in the same period that Riley was tried before an allwhite jury. The presumption that could be drawn from 

these facts is one of the circumstances that should have 

been evaluated by the Delaware courts in the required step 

three inquiry. 

The Dissent comments that Riley offered no expert 

analysis of the statistics. The procedural posture of the 

case at that time provided no such opportunity. Riley 

produced evidence of the statistics of the racial composition 

of the jurors in the four cases, the State requested the 

additional time to provide counter-evidence, and the 

hearing judge left the record open for that purpose. There 

would have been no basis for expert analysis until all the 

evidence as to jury composition was produced. The State's 

letter that it would produce no evidence was dated three 

days before the record closed. 

Further, the Dissent's attempt to analogize the statistical 

evidence of the use of peremptory challenges to strike black 

jurors to the percent of left-handed presidents requires 

some comment. The dissent has overlooked the obvious fact 

that there is no provision in the Constitution that protects 

persons from discrimination based on whether they are 

right-handed or left handed. To suggest any comparability 

to the striking of jurors based on their race is to minimize 

the history of discrimination against prospective black 

jurors and black defendants, which was the raison d'etre of 

the Batson decision. 

To reiterate, the factual findings of a state court are 

entitled to deference only when there is "probative evidence 

underlying [its] conclusion." See Rushen, 464 U.S. at 122 

n.6. The Dissent points to no such probative evidence. It 

relies merely on the credibility finding of the hearing judge, 

a finding that we cannot be sure was made following

consideration of all the evidence presented by Riley and the 

 38 
weaknesses he pointed to in the prosecutor's proffered 

reasons. 

9. Appropriate Remedy 

When counsel for the State was asked at the en banc

argument whether, if this court were to find a Batson 

violation, the State would rather the relief be the grant of a 

new trial or the remand for a federal evidentiary hearing, 

counsel candidly responded: 

 MR. MEYERS: If we -- the answer is yes. If, and if we 

 -- I mean, if the court imagines, has all these problems 

 with the hearing that was done six years after the trial, 

 those problems are simply going to be magnified, 

 amplified by exponential order of magnitude 20 years 

 after the trial. I mean if you think that people have 

 memory problems six years, how much worse are you 

 going to be 20 years later? 

Tr. of Oral Argument at 46. Riley's counsel concurred, 

stating that a federal habeas judge would be no better off 

than the hearing judge was in 1988. 

We agree. Much of the Dissent's opposition is directed to 

the majority's failure to remand to the District Court for a 

hearing but the Dissent may have overlooked that both 

parties preferred a new trial to a remand should this court 

find that the state proceedings were not shown to be 

consistent with the requirement of Batson. It is highly 

unlikely that the witnesses can provide more illuminating 

testimony thirteen years later. Moreover, there are no 

factual issues that can be solved by a federal evidentiary 

hearing.12 Although the Dissent chooses to characterize the 

result in this case as a federal court's substitution of its 

own findings for those of the state court, in fact we are 

merely fulfilling the traditional role of a federal habeas 

court, which is, in part, to determine whether the state 

court's decision is "fairly supported by the record." The one 

_________________________________________________________________ 

12. This is unlike the situation in Hakeem v. Beyer, 990 F.2d 750 (3d 

Cir. 1993), where we held that the state court's finding regarding the 

delay in the proceedings was not entitled to the presumption of 

correctness but directed the district court to determine in a federal 

habeas evidentiary hearing the reason for the delay. 

 39 
possible factual issue cannot be resolved by a hearing,13 

and the statistical evidence, which might be the subject of 

some analysis at such a hearing, is relevant but not 

dispositive to our decision. 

The question of the remedy a habeas court should order 

following a finding that the state process did not comply 

with constitutional requirements is not a new one. In 

Brown v. Kelly, 973 F.2d 116 (2d Cir. 1992), the federal 

court of appeals was faced with a comparable situation as 

that before us. Defendant was convicted in state court of 

murder and first degree robbery. He eventually came to the 

federal court with a petition for a writ of habeas corpus, 

claiming, inter alia, a violation of Batson. The federal courts 

did not find that Batson had been violated but the Second 

Circuit took the opportunity to consider the appropriate 

remedy when a constitutional violation is found by the 

federal courts sitting in habeas. The court stated,"[T]here 

are cases where the passage of time may impair a trial 

court's ability to make a reasoned determination of the 

prosecutor's state of mind when the jury was selected. 

Where such demonstrably exists, there must be a new

trial." Id. at 121. 

The Brown court cited United States v. Alcantar, 897 F.2d 

436, 438-39 (9th Cir. 1990) (ordering a new trial because 

there was inadequate evidence to determine, as part of 

Batson analysis, why the jurors were struck). And in 

Barnes, 202 F.3d at 157, the Court of Appeals ordered a 

new trial rather than a remand for a hearing on the Batson 

issues because the trial judge had died and the court was 

"not confident . . . that further proceedings would . . . shed 

reliable light upon the voir dire.") (quotation omitted). 

The circumstances of this case are closely analogous to 

those in Hardcastle v. Horn, ___ F. Supp. 2d ___, 2001 WL 

_________________________________________________________________ 

13. Although neither party has focused on it, there is an apparent 

factual discrepancy between McGuire's testimony that he did not request 

to be excused, App. at 850, and the trial judge's statement that McGuire 

came to see him and requested to be excused, App. at 250. It is agreed 

that McGuire saw the trial judge, but McGuire testified it was at the 

judge's direction. As the trial judge is deceased, a federal evidentiary 

hearing would not resolve this issue, even if it were important to do so. 

 40 
722781 (E.D. Pa., June 27, 2001), where the district court 

found a Batson violation but dismissed the notion of 

ordering a federal evidentiary hearing instead of a new trial 

in state court, commenting that "[n]early twenty years have 

passed since Petitioner's trial, such a length of time that 

even Respondents admit that an evidentiary hearing on 

Petitioner's Batson claim is unlikely to be helpful." Id. at 

*19. The Hardcastle court stated that "[a] new trial is 

especially appropriate where as here, the passage of time 

makes a new evidentiary hearing on the petition 

impossible." Id.14 Likewise, we see no reason to order the 

District Court to provide Riley with an evidentiary hearing 

that it declined to provide on two prior occasions. Instead, 

we will reverse the District Court's order denying Riley's 

petition for a writ of habeas corpus, and remand for the 

District Court to grant the writ without prejudice to the 

State retrying the case pursuant to the guidelines to be set 

by the District Court. 

B. 

THE CALDWELL CLAIM 

In addition to Riley's Batson claim presented to the en 

banc court, Riley argues that the prosecutor and the trial 

judge made remarks to the jury during the penalty hearing 

that misled the jury as to its sense of responsibility in the 

sentencing process, in violation of the principles set forth in 

Caldwell v. Mississippi, 472 U.S. 320 (1985). In Caldwell, 

the Supreme Court held that prosecutorial comments at 

sentencing violated the Eighth Amendment by leading the 

jury to believe that ultimate responsibility for determining 

the appropriateness of the death sentence rested with the 

state supreme court. See 472 U.S. at 333. 

The Delaware Supreme Court, on direct appeal, rejected 

Riley's Caldwell claim, commenting that"[i]n no sense may 

_________________________________________________________________ 

14. The Hardcastle case is on appeal to this court, and our reference to 

this limited aspect of the decision, which is applicable here, is not 

intended to reflect an opinion as to the merits of the District Court's 

decision on the Batson issue. 

 41 
it reasonably be said that the prosecutor was either 

misstating the law, misleading the jury as to its role, or 

minimizing its sentencing responsibility." Riley I, 496 A.2d 

at 1025. The District Court agreed, thus denying Riley 

habeas relief. See Riley VIII, 1998 WL 172856, at *31. A 

Caldwell claim presents mixed questions of law and fact 

subject to plenary review in the habeas context. See Miller 

v. Fenton, 474 U.S. 104, 112-14 (1985); see also Moore v. 

Gibson, 195 F.3d 1152, 1171 (10th Cir. 1999). 

In Caldwell, the defense attorney in a capital murder 

case pleaded with the jury in closing arguments at the 

sentencing phase to spare the defendant's life. In reply, the 

prosecutor stated: 

 Ladies and gentlemen, I intend to be brief. I'm in 

 complete disagreement with the approach the defense 

 has taken. I don't think it's fair. I think it's unfair. I 

 think the lawyers know better. Now, they would have 

 you believe that you're going to kill this man and they 

 know--they know that your decision is not the final 

 decision. My God, how unfair can you be? Your job is 

 reviewable. They know it. 

472 U.S. at 325 (emphases added). 

Caldwell's defense counsel objected to this statement but 

the trial court overruled the objection, stating that it was 

"proper that the jury realizes it is reviewable automatically 

as the death penalty commands." Id. The prosecutor 

continued: 

 Throughout their remarks, they attempted to give you 

 the opposite, sparing the truth. They said `Thou shall 

 not kill.' If that applies to him, it applies to you, 

 insinuating that your decision is the final decision and 

 that they're gonna take Bobby Caldwell out in the front 

 of this Courthouse in moments and string him up and 

 that is terribly, terribly unfair. For they know, as I 

 know, and as Judge Baker has told you, that the 

 decision you render is automatically reviewable by the 

 Supreme Court. Automatically, and I think it's unfair 

 and I don't mind telling them so. 

Id. at 325-26 (emphasis added). 

 42 
Although the jury's sentence in Caldwell was indeed

subject to automatic review by the state supreme court, the 

United States Supreme Court's plurality opinion stated that 

the prosecutor's statement was "inaccurate, both because it 

was misleading as to the nature of the appellate court's 

review and because it depicted the jury's role in a way 

fundamentally at odds with the role that a capital sentencer 

must perform." Id. at 336. Justice O'Connor, who cast the 

fifth and deciding vote, emphasized that "[j]urors may 

harbor misconceptions about the power of state appellate 

courts or, for that matter, [the United States Supreme 

Court] to override a jury's sentence of death." Id. at 342 

(O'Connor, J., concurring). According to Justice O'Connor, 

the prosecutor's statements were impermissible because 

they "creat[ed] the mistaken impression that automatic 

appellate review of the jury's sentence would provide the 

authoritative determination of whether death was 

appropriate" whereas under state law the relevant scope of 

review was limited to whether the verdict was "so arbitrary 

that it was against the overwhelming weight of the 

evidence." Id. at 343 (O'Connor, J., concurring) (quotation 

omitted). 

In Romano v. Oklahoma, 512 U.S. 1 (1994), the Supreme 

Court clarified the Caldwell holding. Accepting Justice 

O'Connor's concurrence as controlling, the Romano Court 

explained that Caldwell prohibits prosecutorial comments 

that "mislead the jury as to its role in the sentencing 

process in a way that allows the jury to feel less responsible 

than it should for the sentencing decision." Id. at 9 

(quotation omitted). Accordingly, "[t]o establish a Caldwell 

violation, a defendant necessarily must show that the 

remarks to the jury improperly described the role assigned 

to the jury by local law." Id. (quotation omitted). The Court 

subsequently rejected Romano's Caldwell claim because 

"the jury was not affirmatively misled regarding its role in 

the sentencing process." Id. 

In Riley's case, Liguori began his opening comments in 

the penalty phase by stating: 

 As the Judge has explained to you we have a specific 

 statute with regard to what occurred in a penalty 

 hearing in a capital case. 

 43 
 Let me say at the outset that what you do today is 

 automatically reviewed by our Supreme Court and that 

 is why there is an automatic review on the death 

 penalty. That is why, if you return a decision of death, 

 that is why you will receive and have to fill out a two- 

 page interrogatory that the Court will give you. This is 

 an interrogatory that specifically sets out the questions 

 that the State request and whether or not you believe 

 it beyond a reasonable doubt and if you want in your 

 determination, if you believe the sentence should be 

 death than each and every one of you has to sign this. 

 This goes to the Supreme Court. That is why it is 

 concise and we believe clear and it should be looked 

 carefully on and answered appropriately. 

App. at 393 (emphases added). 

At oral argument before the en banc court, the State 

conceded that Liguori's statement, at least "on its face," is 

no different from that of the prosecutor in Caldwell. Tr. of 

Oral Argument at 49. Counsel for the State told us that 

when "[y]ou compare the two, they are pretty much alike." 

Tr. of Oral Argument at 49. Like the statement in Caldwell, 

Liguori's statement regarding automatic appellate review 

was technically accurate since Delaware law provided for 

automatic review by the Delaware Supreme Court of a

jury's sentence of death. However, that automatic review 

was extremely limited, as was that of the Mississippi 

Supreme Court in Caldwell. 

At the time of Riley's sentencing hearing, the relevant 

portion of the capital sentencing statute provided:

 The Supreme Court shall limit its review under this 

 section to the recommendation on and imposition of 

 the penalty of death and shall determine: 

 a. Whether, considering the totality of evidence in 

 aggravation and mitigation which bears upon the 

 particular circumstances or details of the offense and 

 the character and propensities of the offender, the 

 death penalty was either arbitrarily or capriciously 

 imposed or recommended . . . . 

Del. Code Ann. tit. 11, S 4209(g)(2) (1982) (emphasis 

 44 
added). Indeed, in Delaware the jury's weighing of 

aggravating and mitigating circumstances was, for all 

practical purposes, final. We have found no published 

opinion during the relevant time period in which the 

Delaware Supreme Court reversed a jury's sentence of 

death as arbitrarily or capriciously imposed.15 

It is apparent, then, that, like the prosecutor's statement 

in Caldwell, Liguori's reference to automatic appellate 

review was misleading as to the scope of appellate review. 

As was explained in Caldwell, jurors may not understand 

the limited nature of appellate review, which affords 

substantial deference to a jury's determination that death is 

the appropriate sentence. See 472 U.S. at 332-33. 

Furthermore, jurors who are unconvinced that death is the 

appropriate punishment but who are eager to send a 

message of disapproval for the defendant's acts might be 

"very receptive to the prosecutor's assurance that [they] can 

more freely err because the error may be corrected on 

appeal." Id. at 331 (quotation omitted). As one of our sister 

circuits has explained, "[f]or the jury to see itself as 

advisory when it is not, or to be comforted by a belief that 

its decision will not have effect unless others make the 

same decision, is a frustration of the essence of the jury 

function." Sawyer v. Butler, 881 F.2d 1273, 1282 (5th Cir. 

1989). 

It is therefore not enough to argue, as the State does, 

that Liguori's comments at sentencing were a correct and 

accurate statement of Delaware law. The statute at the time 

contained more than 40 different provisions detailing 

procedures and requirements applicable to a death 

sentence, but the only one the prosecutor chose to 

emphasize was that providing for automatic review of the 

jury's sentence. 

_________________________________________________________________ 

15. The Delaware capital sentencing scheme was substantially amended 

in 1991. Under the amended statute, "the jury now functions only in an 

advisory capacity. The judge, after taking the jury's recommendation into 

consideration, has the ultimate responsibility for determining whether 

the defendant will be sentenced to life imprisonment or death." State v. 

Cohen, 604 A.2d 846, 849 (Del. 1992). In contrast, when Riley was 

sentenced, the jury's death sentence was binding on the judge. 

 45 
Nor does the State satisfactorily explain why Liguori 

referred to "automatic review on the death penalty" in 

connection with his explanation of the interrogatory form. 

App. at 393. The interrogatory form contained only two 

questions: whether the jury unanimously found beyond a 

reasonable doubt that an aggravating circumstance existed16 

and, if the jury answered "yes," whether it unanimously 

recommended a sentence of death. Such a simple and 

straightforward form hardly needed an explanation. 

Instead, that "explanation" appears to have been used as a 

segue to alert the jury to the fact that the Delaware 

Supreme Court would automatically review its decision to 

impose a death sentence. 

"The sentencing decision in capital cases is born out of 

an inherent and unique mixture of anger, judgment and 

retribution, and requires a determination whether certain 

acts are so beyond the pale of community standards as to 

warrant the execution of their author." Sawyer, 881 F.2d at 

1278. Perhaps more than any other decision rendered by a 

jury, a sentence of death is "irreducibl[y] discretionary." Id. 

Yet in Caldwell, the Supreme Court noted that "[b]elief in 

the truth of the assumption that sentencers treat their 

power to determine the appropriateness of death as an 

awesome responsibility has allowed this Court to view 

sentencer discretion as consistent with--and indeed as 

indispensable to--the Eighth Amendment's need for 

reliability in the determination that death is the appropriate 

punishment in a specific case." 472 U.S. at 330 (quotations 

omitted). It follows that there is particular concern "when 

there are state-induced suggestions that the sentencing 

jury may shift its sense of responsibility to an appellate 

court." Id. Unlike our decision in Zettlemoyer v. Fulcomer, 

923 F.2d 284, 306 (3d Cir. 1991), where we rejected a 

Caldwell claim, in part because "[t]here was no suggestion 

to the jury that the [state] Supreme Court . .. or anyone 

else would have the last word in the case," here the 

prosecutor expressly stated both "there is an automatic 

_________________________________________________________________ 

16. The jury had previously been instructed that, by convicting Riley of 

felony murder, it already had found that an aggravating circumstance 

existed. 

 46 
review" and "[t]his goes to the [state] Supreme Court." App. 

at 393. 

The Dissent suggests that there was no Caldwell violation 

here because the prosecutor's statement was made"near 

the very beginning of his summation," and consisted of 

"accurate, unemotional, passing remarks." The Dissent also 

characterizes the prosecutor's remarks as "the mere

mention of the fact that there would be an automatic 

appeal to the state supreme court." 

It is true that the prosecutor's statement was made near 

the beginning of his summation, but his summation was 

not a lengthy speech, occupying a mere four pages of the 

transcript, App. at 393-97, of which the remarks in

question take almost a full page. We cannot tell whether 

they were "emotional" or not, but they can hardly be 

characterized as "passing," as the prosecutor began by 

saying, "Let me say at the outset that what you do today is 

automatically reviewed by our Supreme Court." And, as we 

noted above, in that one paragraph, the prosecutor referred 

not once but twice to the Supreme Court -- both 

mentioning "automatic review" and that the interrogatory to 

be completed by the jurors also "goes to the Supreme 

Court." 

We are unwilling to treat lightly the prosecutor's pointed 

references to appellate review of this crucial decision. 

Statements, like those made by the prosecutor here,"can 

be literally true but quite misleading by failing, for example, 

to disclose information essential to make what was said not 

misleading." Sawyer, 881 F.2d at 1285. As a result, a 

Caldwell violation may be established where a technically 

accurate statement describing the state appellate review 

process nonetheless "misled the jury to minimize its role in 

the sentencing process." Driscoll v. Delo, 71 F.3d 701, 713 

(8th Cir. 1995) (holding that prosecutor had violated 

Caldwell by emphasizing that the trial judge could 

disregard the jury's recommendation of death even though 

no state judge had in fact ever done so). 

Given the limited nature of the Delaware Supreme 

Court's review of a jury's sentence of death at the time of 

Riley's sentencing, a fact Liguori did not explain to the jury, 

 47 
we conclude that there was a Caldwell violation in this case.17 

As suggested in Caldwell, jurors are unlikely to understand 

the exceptionally narrow scope of appellate review given to 

jury determinations on death. See 472 U.S. at 330-31; see 

also id. at 342 (O'Connor, J., concurring). Although 

Liguori's remarks were brief, they were the first comments 

that the jury heard at sentencing, making them more likely 

to have made an impression. A statement does not have to 

be lengthy to be effective in suggesting to the jury that 

ultimate responsibility for sentencing lies elsewhere. 

Moreover, nothing the trial court said corrected any 

misimpression left by the prosecution's statements, as the 

judge made no comment whatsoever pertaining to appellate 

review. Unlike Jones v. Butler, 864 F.2d 348, 360 (5th Cir. 

1988), where the Court of Appeals for the Fifth Circuit held 

that the prosecutor's statement that "[I]f, in fact, you do 

return the death penalty . . . yours will not be the last 

word. Every sentence is reviewed by the Supreme Court," 

was improper but cured by a prompt curative instruction 

by the trial judge, here there was no curative instruction.18 

Caldwell and its progeny make clear that"the sentencing 

jury must continue to feel the weight of responsibility so 

long as it has responsibility." Sawyer, 881 F.2d at 1282. 

Because the prosecutor's remarks may have misled the jury 

into thinking the Delaware Supreme Court was the final 

arbiter of Riley's fate, we conclude that Riley's 

constitutional rights were violated under Caldwell. Thus, 

even were we to find that Riley has not shown a Batson 

violation entitling him to a new trial, we still would direct 

the District Court to grant the writ of habeas corpus 

entitling Riley to a new sentencing hearing. 

_________________________________________________________________ 

17. At oral argument counsel for the State acknowledged that "[p]erhaps 

better practice would have been for Liguori to insert the word `limited' " 

into his reference to automatic appellate review. Tr. of Oral Argument at 

50. This could be construed as a concession by the State that Liguori's 

comments were misleading because of what they did not tell the jury. 

18. We are not persuaded by Riley's contention that the trial judge's 

repeated references to the jury's determination on death as a 

"recommendation" misled the jury as to its actual responsibility in the 

sentencing process. See generally Flamer v. Delaware, 68 F.3d 710 (3d 

Cir. 1995). 

 48 
III. 

CONCLUSION 

This is an appropriate case for the issuance of a writ of 

habeas corpus. One of the principal objections to the 

operation of the death penalty in this country is that it is 

applied unevenly, particularly against poor black 

defendants. Another concern is that because of the complex 

review process, the jury may not comprehend the 

significance of its life-or-death decision. Both of these 

issues are implicated in this case. An appropriate order 

follows. 

 49 
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 50 
Volume 2 of 2 

 51 
APPENDIX A 

Excerpts from Panel Opinion in Riley v. Taylor, 

No. 98-9009 

Filed January 17, 2001 

Panel: SLOVITER, ALITO, and STAPLETON, Circuit Judges 

ALITO, Circuit Judge: 

. . . 

III. 

Riley next argues that adverse publicity prevented him 

from obtaining a trial by an impartial jury. He contends, 

first, that it should be presumed that he was prejudiced by 

pretrial publicity because the record establishes the 

existence of a "hostile trial atmosphere" and, second, that 

the record shows that several jurors were unable to be 

impartial due to exposure to unfavorable pretrial publicity. 

A. 

"Where media or other community reaction to a crime or 

a defendant engenders an atmosphere so hostile and 

pervasive as to preclude a rational trial process, a court 

reviewing for constitutional error will presume prejudice to 

the defendant without reference to an examination of the 

attitudes of those who served as the defendant's jurors." 

Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir. 1992). 

See also Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes 

v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana, 373 

U.S. 723 (1963); Flamer v. Delaware, 68 F.3d 736, 755 (3d 

Cir. 1995) (en banc). "The community and media reaction, 

however, must have been so hostile and so pervasive as to 

make it apparent that even the most careful voir dire 

process would be unable to assure an impartial jury.. . . 

Such cases are exceedingly rare." Rock, 959 F.2d at 1252- 

53. 

In this case, the state courts made a finding of 

impartiality. Such a finding is entitled to deference, see 

Patton v. Yount, 467 U.S. 1025, 1031 & n. 7 (1984), and we 

find no basis for overturning that finding. 

 52 
Riley relies on a relatively small number of newspaper 

articles, almost half of which appeared six months or more 

before the trial. Although two of the articles named Riley as 

a suspect in Feeley's murder, and although a few of the 

articles discussed the plight of the Feeley children, who 

were orphaned by the murder, the articles were not 

inflammatory. In short, the media coverage was not"so 

hostile and pervasive as to preclude a rational trial 

process." Rock, 959 F.2d at 1252. 

B. 

Because Riley has not shown the presence of 

circumstances justifying a presumption of prejudice, he 

"must establish that those who actually served on his jury 

lacked a capacity to reach a fair and impartial verdict based 

solely on the evidence they heard in the courtroom." Rock, 

959 F.2d at 1253. See also Patton, 467 U.S. at 1035; Irvin 

v. Dowd, 366 U.S. 717, 723 (1961). "The fact that jury 

members may have been exposed to press reports or other 

community reaction concerning the case and even the fact 

that they may have formed a tentative opinion based on 

that exposure will not establish a constitutional violation if 

the trial court has found, with record support, that each of 

the jurors was able to put aside extrinsic influences." Rock, 

959 F.2d at 1253. 

Riley contends that two jurors, Leon Morris and Carl 

Patterson, were unable to be impartial due to exposure to 

pretrial publicity. We do not agree. 

Morris testified during voir dire that he "had read

something about" the case in the newspaper at the time of 

the murder and that he had heard on the radio that the 

case was "coming to trial." App. 277. The following

exchange then occurred: 

 Q. . . . Because of what you read in the newspaper, 

 do you feel that you could sit here as an impartial 

 jury? 

 A. Yes, because I know nothing of the evidence or 

 anything else. 

App. 278. 

 53 
Carl Patterson during voir dire was asked whether 

anything he had read in the newspaper had created bias or 

prejudice against the defendant. See App. 294. He 

responded that he could not remember a lot of what he 

read in the newspaper. See id. The following colloquy then 

occurred: 

 Q. Then do you know of any reason why you can't 

 render an impartial verdict based solely upon the law 

 and the evidence? 

 A. No, Your Honor. 

Id. 

The trial judge implicitly found that these jurors were 

impartial, and the Delaware Supreme Court agreed on

direct appeal. Such implicit findings are entitled to a 

presumption of correctness. Parke v. Raley, 506 U.S. 20, 35 

(1992); Weeks v. Snyder, 2000 WL 975043 (3d Cir. July 17, 

2000); Campbell v. Vaughn, 209 F.3d 280, 290 (3d Cir. 

2000), and we see no ground for holding that that 

presumption has been overcome. 

IV. 

Riley argues that the prosecution violated his right to due 

process by failing to disclose exculpatory evidence in its 

possession as required by Brady v. Maryland, 373 U.S. 83 

(1963). In Brady, the Supreme Court held that "the 

suppression by the prosecution of evidence favorable to an 

accused upon request violates due process where the

evidence is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the 

prosecution." Id. at 87. To state a valid Brady claim, a 

plaintiff must show that the evidence was (1) suppressed, 

(2) favorable, and (3) material to the defense. See United 

States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991). 

Evidence is material if there is a reasonable probability that 

the outcome would have been different had the evidence 

been disclosed to the defense. See United States v. Bagley, 

473 U.S. 667, 678 (1985). Evidence that may be used to 

impeach may qualify as Brady material. See Kyles v.

Whitley, 514 U.S. 419, 445 (1995); Bagley , 473 U.S. at 676. 

 54 
Riley's Brady argument concerns a wiretap on the 

telephone of the mother of Tyrone Baxter. Before trial, 

Riley's lawyer asked the state to produce recordings or 

transcripts of the intercepted calls, but the state refused, 

arguing that the tapes contained no exculpatory material. 

Without listening to the tape himself, the trial judge 

accepted the prosecutor's representation and denied Riley's 

motion for production. Throughout the subsequent 

proceedings in state and federal court, no judge listened to 

the tapes. 

In his briefs in this appeal, Riley made a strong Brady 

argument. He asserted that between the time of the Feeley 

murder and Baxter's arrest, "Baxter spoke to his mother on 

the telephone on several occasions"; that "Baxter's

testimony was the State's strongest evidence against" him; 

and that statements made by Baxter to his mother might 

have provided valuable impeachment evidence. Appellant's 

Br. at 5. At a minimum, he contended, the state courts or 

the District Court should have listened to the tapes in 

camera to determine whether they contained Brady 

material. 

At oral argument, however, counsel for the appellees 

represented that an examination of the logs of the wiretap 

on Mrs. Baxter's telephone did not reveal any intercepted 

conversations in which Baxter participated. Copies of the 

logs were provided to Riley's attorneys and to the court, and 

Riley's attorneys submitted a letter-brief commenting on the 

contents of the logs. We have examined the logs, and it 

appears that the state's representation is correct: we see no 

record of any conversations in which Baxter participated. 

The revelation that the logs do not mention any such 

conversations fatally undermines the Brady argument made 

in Riley's briefs. 

In their post-argument letter-brief commenting on the 

logs, Riley's attorneys advance different arguments to show 

that an in camera inspection of the wiretap recordings is 

required. A defendant seeking an in camera inspection to 

determine whether files contain Brady material must at 

least make a "plausible showing" that the inspection will 

reveal material evidence. Pennsylvania v. Ritchie, 480 U.S. 

39, 58 n.15 (1987) (quoting United States v. Valenzuela- 

 55 
Bernal, 458 U.S. 858, 867 (1982)). Mere speculation is not 

enough. United States v. Navarro, 737 F.2d 625, 631 (7th 

Cir. 1984). The arguments made by Riley's attorneys in 

their post-argument submission do not satisfy this 

standard. 

Riley's attorneys first note that several log entries 

"expressly refer to conversations about Tyrone Baxter." 

12/16/99 Letter-brief at 3 (emphasis added). But it is 

unlikely that statements "about" Baxter by third persons -- 

unlike statements made by Baxter himself -- could have 

been used to impeach Baxter's testimony or could have 

been admitted at trial on some other ground. For that 

reason alone, it is unlikely that these statements are 

material. See Wood v. Bartholomew, 516 U.S. 1, 5-6 (1995). 

Moreover, even if the problem of admissibility is put aside, 

it is pure speculation to suppose that the contents of the 

statements are in any way exculpatory. 

Riley's attorneys also suggest that conversations between 

Baxter and his mother may have been intercepted and

recorded but that the person or persons who compiled the 

logs may not have recognized Baxter's voice. This, however, 

is nothing but the purest speculation. We note that the 

wiretap occurred while the police were seeking to arrest 

Baxter; they therefore had a strong incentive to identify him 

if he participated in any of the intercepted conversations. 

We have considered all of Riley's Brady arguments and find 

them to be without merit. 

V. 

Riley argues that he was denied the effective assistance 

of counsel at the penalty phase of his trial.1 The District 

Court held that many of Riley's arguments concerning the 

alleged deficiencies of his attorney's performance were never 

_________________________________________________________________ 

1. Riley's amended federal habeas petition raised claims regarding the 

alleged ineffectiveness of trial counsel at the guilty phase, but the 

District Court held that these claims were procedurally barred. See Riley 

VI, 1998 WL 172856, at **18-20. On appeal, Riley refers to these claims 

in a footnote. See Appellant's Br. at 38 n.16. This footnote is inadequate 

to raise the issue on appeal. 

 56 
presented to the Delaware Supreme Court and were thus 

procedurally barred, and the District Court rejected Riley's 

remaining arguments regarding this matter on the merits. 

On appeal, Riley attacks both parts of the District Court's 

holding. 

A. 

Riley contends that the District Court was required to 

hold an evidentiary hearing on the question of procedural 

default for two reasons. First, he maintains that at least 

some of the arguments that the District Court held were 

procedurally barred might have been presented to the 

Delaware Supreme Court during the oral argument of his 

direct appeal even though those arguments were not 

contained in his brief. Because the record does not include 

a transcript of the oral argument, Riley maintains that the 

District Court should have held an evidentiary hearing for 

the purpose of reconstructing the record. See Appellant's 

Br. at 38-39. We disagree. 

On direct appeal, Riley was represented by the same

attorney who had represented him at trial. In his amended 

habeas petition, Riley acknowledges that no ineffective 

assistance argument was made in the direct appeal brief 

that was ultimately submitted on his behalf and accepted 

for filing by the Delaware Supreme Court.2 See App. 1198. 

In addition, the opinion issued by the Delaware Supreme 

Court in the direct appeal makes no mention of ineffective 

assistance of counsel. See Riley I. Under these 

circumstances, the District Court was certainly not

required to conduct an evidentiary hearing to determine 

whether the attorney who represented Riley at trial chose at 

oral argument before the state supreme court to make 

arguments not mentioned in his brief and to condemn his 

own performance in the trial court. 

_________________________________________________________________ 

2. The first brief submitted by Riley's attorney on direct appeal 

contained 

a conclusory passage that purported to raise the issue of ineffective 

assistance (without any factual elaboration) for the purpose of preserving 

the issue. See App. 1198. However, this brief was rejected by the 

Delaware Supreme Court, and the brief that was ultimately submitted 

and accepted contained no such passage. See App. 1198-99. 

 57 
With little elaboration, Riley also contends that the 

District Court should have held an evidentiary hearing so 

that Riley could show that he had "cause" for not raising 

the arguments in question in state court. See Appellant's 

Br. at 39. However, Riley has not even identified any 

"cause" that he would have attempted to show. We will not 

reverse the decision of the District Court and order that 

Court to conduct an evidentiary hearing so that Riley can 

develop the factual predicate for a "cause" that Riley has 

not even disclosed. 

Perhaps the most frequently asserted "cause" for 

procedural default is ineffective assistance of counsel, and 

we will therefore comment briefly on the steps that Riley 

should have taken if he wished to rely on this "cause." As 

the District Court pointed out, in order for Riley to show 

that ineffective assistance provided "cause" for failing to 

raise the arguments in question in the state court 

proceedings, Riley would have to show that the new 

attorney who represented him in the state post-conviction 

relief proceedings was ineffective. See Dist. Ct. Op. at 50 & 

n.16, 56-57. This is so because Delaware permits a claim of 

ineffective assistance to be raised in a post-conviction relief 

proceeding even if it was not raised on direct appeal. See 

Riley VI, 1998 WL 172856, at **17-18 & n.16. 3 

Riley has not argued, however, that the attorney who 

represented him in the state post-conviction relief

proceedings provided ineffective assistance by failing to 

make the specific arguments that the District Court held 

were procedurally barred.4 Moreover, because Riley never 

raised a claim in state court that his post-conviction relief 

attorney was ineffective, he runs afoul of the rule that "a 

_________________________________________________________________ 

3. Indeed, in Riley's case, ineffective assistance was vigorously argued 

in 

the post-conviction relief proceedings, and the Delaware Supreme Court 

addressed these arguments on the merits. See Riley V, 585 A.2d at 726- 

29. 

4. Even if Riley had asserted a "cause" for the procedural default, he 

would have to confront the rule that a habeas petitioner is not entitled 

to an evidentiary hearing in federal court to establish a factual record 

unless the petitioner can show "cause" for not making the necessary 

factual record in the state proceedings. See Keeney v. Tamayo-Reyes, 

504 U.S. 1, 11-12 (1992). 

 58 
petitioner must demonstrate independent cause and 

prejudice excusing the default of the ineffectiveness claim 

before that claim can be assessed as cause in relation to a 

second, substantive claim." Hill v. Jones, 81 F.3d 1015, 

1030 (11th Cir. 1996). See also Justus v. Murray , 897 F.2d 

709, 713 (4th Cir. 1990). 

B. 

We will now discuss the ineffective assistance arguments 

that were not procedurally defaulted. In order to show that 

his constitutional right to the assistance of counsel was 

violated at the penalty phase, Riley must satisfy the twopronged test of Strickland v. Washington, 466 U.S. 668, 687 

(1984). First, he must demonstrate that his attorney"made 

errors so serious that counsel was not functioning as the 

`counsel' guaranteed the defendant by the Sixth 

Amendment." Id. at 687. "Judicial scrutiny of counsel's 

performance must be highly deferential. It is all too 

tempting for a defendant to second-guess counsel's 

assistance after . . . [an] adverse sentence, and it is all too 

easy for a court, examining counsel's defense after it has 

proved unsuccessful, to conclude that a particular act or 

omission of counsel was unreasonable." Id. at 689. Second, 

if counsel's representation is shown to fall outside"the wide 

range of reasonable professional assistance," id., it must be 

shown that "the deficient performance prejudiced the 

defense," that is, that "there is a reasonable probability 

that, but for counsel's unprofessional errors, the result of 

the proceeding would have been different." Id . at 694. 

1. In his brief in our court, Riley presented a greatly 

truncated version of arguments previously advanced 

regarding trial counsel's failure to call certain family 

members to testify at the penalty phase of the trial and trial 

counsel's failure to locate or contact other family members 

who might have testified. All of these family members, Riley 

argues, could have provided evidence about his traumatic 

experiences as a child and his "severely dysfunctional 

family." Appellant's Br. at 41. 

The Superior Court, the Delaware Supreme Court, and

the District Court all addressed these arguments in some 

 59 
detail and rejected them. They concluded that Riley's trial 

attorney made reasonable efforts to find certain family 

members who could not be located, that he did not act 

unreasonably in failing to call others as witnesses, and that 

his failure to rely on what was termed Riley's "social 

history" represented a reasonable strategy. See Riley II, 

1988 WL 47076 at *3-4, *7-9; Riley V, 585 A.2d at 726-28; 

Riley VI, 1998 WL 172856, at **20-23. 

In his brief in our court, Riley merely states without 

elaboration that "trial counsel failed to call as witnesses 

members of Mr. Riley's immediate family, several of whom 

lived within a few hours of Dover, Delaware" and that these 

witnesses could have testified about his childhood and 

family. Appellant's Br. at 41. He provides no response to 

the detailed reasons given by the state courts and the 

District Court for holding that trial counsel was not 

ineffective in failing to call or locate family members for the 

purpose of eliciting testimony about Riley's childhood and 

family. 

Nothing has been presented that convinces us that the 

state courts and the District Court erred. We agree with the 

state courts and the District Court that Riley has not 

shown that trial counsel was ineffective in failing to call 

those family members who could be located, such as Riley's 

mother. The District Court analyzed trial counsel's decision 

not to put Riley's mother on the stand as follows: 

 The record is replete with circumstances that 

 support trial counsel's decision not to call Petitioner's 

 mother. First, Petitioner informed trial counsel that he 

 did not wish to expose his mother's problems at trial. 

 . . . Second, trial counsel testified that Petitioner's 

 mother refused to support Petitioner's alibi, and as a 

 result, he was concerned about the prosecutor's cross- 

 examination of her during the penalty phase. . . . 

 Third, the record indicates that Petitioner's mother had 

 a severe drinking problem and was drinking heavily at 

 the time of the trial. . . . As a result, trial counsel 

 believed that the witnesses that he chose to call in 

 mitigation, instead, would make a better impression on 

 the jury. . . . Under these circumstances, the Court 

 finds trial counsel's decision not to call Petitioner's 

 60 
 mother to be reasonable and within the bounds of his 

 strategic discretion. 

Riley VI, 1998 WL 172856, at *2. We agree. 

We also agree that Riley has not demonstrated that his 

trial attorney was ineffective in failing to locate certain 

other family members. See Riley II, **3-5; Riley V, 585 A.2d 

at 727-28; Riley VI, 1998 WL 172856, at *21. Finally, we 

agree that a strategy of not introducing evidence regarding 

Riley's background and family fell within "the wide range of 

reasonable professional assistance." Strickland, 466 U.S. at 

689. The Superior Court wrote as follows: 

 The adverse inferences to be drawn from the fact that 

 defendant's parents were both alcoholics, his sister an 

 unwed mother of three, his brother an incarcerated 

 criminal and his home life a series of jails and 

 temporary living quarters would no doubt have been 

 magnified in the semi-rural county where this case was 

 tried . . . . Likewise, it is certainly within the range of 

 strategic choices to forego mitigating evidence, which 

 may be seen as "excuse making" and rely upon a plea 

 for mercy . . . . In Riley's case, evidence offered as to 

 mitigating circumstances included: that the actual 

 killer was Tyrone Baxter, the co-defendant; that Baxter 

 received a less severe penalty; and that Riley's 

 background indicated that he was a diligent worker, 

 possessing a non-violent and good character.

 In this case, trial counsel gave a strong argument that 

 Riley's life should be spared in light of the fact that 

 Tyrone Baxter, defendant's accomplice and principal 

 accuser, would be spared the death penalty as the 

 result of a plea bargain. Moreover, Walter Ross testified 

 without contradiction at the [post-conviction relief] 

 hearing that the defendant did not want his family 

 background discussed at the penalty phase. Given 

 defendant's wishes, the lack of positive evidence in 

 mitigation, counsel's focused argument for leniency in 

 light of Baxter's plea bargain, and the potentially 

 negative impact the purportedly positive evidence 

 would have wrought before the jury, defendant has 

 failed to show that counsel's decision to limit the 

 61 
 testimony at the penalty phase was constitutionally 

 deficient. 

Riley II, 1988 WL 47076, at *11-12. This analysis was 

accepted by the Delaware Supreme Court and the District 

Court. We cannot disagree. 

2. Riley contends that his trial attorney was ineffective 

because he did not present testimony by a mental health 

expert. Riley relies on the affidavits of two experts, who 

examined him in connection with the post-conviction relief 

proceeding. One of the experts characterized Riley as a 

person with "borderline defective" intelligence whose 

capacity "for objectively analyzing events, circumstances 

and relationships [is] narrowed by stress and complexity." 

Appellant's Br. at 42. We agree with Riley that this 

explanation might have been helpful at the penalty phase. 

The question remains, however, whether trial counsel was 

ineffective in failing to obtain such evidence at the time. 

In the post-conviction relief proceeding in Superior Court, 

trial counsel testified that he did not seek to have Riley 

examined by a mental health expert because he had no 

reason to think, in light of his conversations with Riley, 

that such an examination would have revealed anything 

useful. See App. 592-96. He testified that Riley appeared to 

understand what they discussed and that Riley prepared 

and filed some motions on his own behalf. See App. 592- 

93. Trial counsel stated that Riley never mentioned any 

head injury or any psychological problems. See App. 590. 

Relying on this testimony, the Superior Court found that 

trial counsel "had no inkling that evaluation of Mr. Riley's 

mental or emotional state might be helpful in mitigation." 

Riley II, 1988 WL 47076, at *7. 

Before us, Riley has not argued that counsel in a capital 

case must always seek a mental examination of the 

defendant, and cases from other circuits reject that 

proposition. Instead, they hold that a case-by-case

determination must be made and that counsel is not 

ineffective if he or she has no reason to think that a mental 

examination would be useful. See Thomas v. Gilmore, 144 

F.3d 513, 515-16 (7th Cir. 1998); United States v. Miller, 

907 F.2d 994, 998-99 (10th Cir. 1990); United States ex rel. 

Rivera v. Franzen, 794 F.2d 314, 317 (7th Cir. 1986). 

 62 
Under this standard, we see no ground for reversing the 

decision of the District Court here. Riley has simply not 

identified any fact that should have alerted his trial 

attorney that he had mental problems that might have 

provided the basis for mitigation. The only fact even 

mentioned in Riley's briefs is the "implausible" nature of 

Riley's alibi, see Reply Br. at 21, but this is insufficient to 

alert counsel to the possibility of mental problems that 

might be relevant to mitigation. For the most part, Riley 

merely notes what the subsequent examinations by mental 

health experts revealed. However, "[a] fair assessment of 

attorney performance requires that every effort be made to 

eliminate the distorting effects of hindsight, to reconstruct 

the circumstances of counsel's challenged conduct, and to 

evaluate the conduct from counsel's perspective at the 

time." Strickland, 466 U.S. at 689. 

3. Finally, Riley cites trial counsel's inexperience and 

the fact that he spent only 14 hours preparing for the 

penalty phase of the trial. These facts are not comforting, 

but they do not in themselves establish that counsel was 

ineffective. We have taken them into account in evaluating 

the other deficiencies properly asserted in this appeal. We 

cannot say, however, that Riley's constitutional right to the 

effective assistance of counsel was denied. 

VI. 

Relying on Ake v. Oklahoma, 470 U.S. 68, 76-77 (1985), 

Riley argues that his right to due process was violated 

because the trial judge refused to appoint co-counsel or an 

investigator to assist his attorney. Riley again notes the 

inexperience of his attorney, and he asserts that co-counsel 

had been appointed in Kent County in prior capital cases. 

Although Riley claims that the lack of co-counsel and an 

investigator caused him "extreme prejudice," his brief 

provides no details. 

A. We turn first to Riley's argument that he was 

constitutionally entitled to the appointment of co-counsel. 

In some jurisdictions, there is a statutory right to the 

appointment of two defense attorneys in capital cases. See, 

e.g., 18 U.S.C. S 3005. However, we are aware of no

 63 
authority holding that the federal Constitution confers such 

a right, and we see no basis for such a holding. The 

Constitution specifies the quality of representation that all 

criminal defendants, including capital defendants, must 

receive, namely, "reasonably effective assistance."

Strickland, 466 U.S. at 687. The Constitution does not 

specify the number of lawyers who must be appointed. If a 

single attorney provides reasonably effective assistance, the 

Constitution is satisfied, and if a whole team of lawyers 

fails to provide such assistance, the Constitution is 

violated. Thus, there is no constitutional right per se to the 

appointment of co-counsel in a capital case. Bell v. 

Watkins, 692 F.2d 999, 1009 (5th Cir. 1982); Jimenez v. 

State, 703 So. 2d 437, 439 (Fla. 1997) (per curiam); State 

v. Phelps, 478 S.E.2d 563, 574-75 (W.Va. 1996) (per

curiam); State v. Rodriguez, 921 P.2d 643, 652 (Ariz. 1996); 

Spranger v. State, 650 N.E.2d 1117, 1122-23 (Ind. 1995); 

Uptergrove v. State, 881 S.W.2d 529, 531 (Tex. Ct. App. 

1994). Cf. Hatch v. Oklahoma, 58 F.3d 1447, 1456 (10th 

Cir. 1995). 

Riley's brief does not identify any unusual features of this 

case that demanded the appointment of a second attorney. 

While he does cite the inexperience of his trial attorney, 

without a showing that this attorney did not provide the 

level of representation required by the Constitution, we 

cannot hold that the failure to appoint co-counsel to assist 

him violated the Constitution. 

B. We must also reject Riley's argument that the failure 

to appoint a private investigator violated the Constitution. 

In Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985), 

the Supreme Court made it clear that there is no 

constitutional right to the appointment of an investigator 

where the defendant offers "little more than undeveloped 

assertions that the requested assistance would be 

beneficial." See also Gray v. Thompson, 58 F.3d 59, 66-67 

(4th Cir. 1995), vacated on other grounds sub nom. Gray v. 

Netherland, 518 U.S. 152 (1996). Riley has offered nothing 

more here. 

. . . 

 64 
VIII. 

Riley contends that the trial judge contravened the

holding of Witherspoon v. Illinois, 391 U.S. 510 (1968), 

when the judge dismissed two jurors for cause after they 

responded to voir dire questions concerning capital

punishment. In Witherspoon, the Supreme Court held that 

members of a jury panel may not be excused for cause 

"simply because they voiced general objections to the death 

penalty or expressed conscientious or religious scruples 

against its infliction." Id. at 522. Some lower courts, 

however, interpreted footnotes in Witherspoon to mean that 

potential jurors could be dismissed only if they stated 

unambiguously that they would automatically vote against 

the death penalty.5 

The Supreme Court clarified the meaning of Witherspoon 

in Wainwright v. Witt, 469 U.S. 412 (1985). The Court held 

that "the proper standard for determining when a 

prospective juror may be excluded for cause because of his 

or her views on capital punishment . . . is whether the 

juror's views would `prevent or substantially impair the 

performance of his duties as a juror in accordance with his 

instructions and his oath.' " Id. at 424 (quoting 

Witherspoon, 391 U.S. at 45). The Court noted: 

 [T]his standard . . . does not require that a juror's bias 

 be proved with `unmistakable clarity' . . . because 

 determinations of juror bias cannot be reduced to 

 question-and-answer sessions which obtain results in 

 the manner of a catechism. What common sense

 should have realized experience has proved: many 

 veniremen simply cannot be asked enough questions to 

 reach the point where their bias has been made 

 "unmistakably clear"; these veniremen may not know 

 how they will react when faced with imposing the death 

 sentence, or may be unable to articulate, or may wish 

 to hide their true feelings. Despite this lack of clarity in 

 the printed record, however, there will be situations 

 where the trial judge is left with the definite impression 

 that a prospective juror would be unable to faithfully 

 and impartially apply the law. 

_________________________________________________________________ 

5. See Wainwright v. Witt, 469 U.S. 412, 419 (1985). 

 65 
Id. at 424-26 (footnote omitted). The Court went on to hold 

that a trial judge's finding under this standard is entitled to 

the presumption of correctness in 28 U.S.C. S 2254(d).6 469 

U.S. at 428. Applying these standards, the Court sustained 

the dismissal of a juror who said, when asked whether her 

beliefs would interfere with her sitting as a juror in a 

capital case, "I am afraid it would" and "I think it would." 

Id. at 416. 

The two potential jurors at issue in the present case are 

Mae Floyd and Gerald Mood. During Floyd's voir dire, the 

following exchange occurred: 

 The Court: . . . Do you have any conscientious 

 scruples against finding a verdict of guilty where the 

 punishment might be death or against imposing the 

 death penalty if the evidence should so warrant? 

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

 The Court: You do have conscientious scruples? 

 Ms. Floyd: Yes. 

 The Court: Regardless of any personal beliefs or 

 feelings you have, if the evidence justified it, would you 

 be able to find a person guilty of murder in the first 

 degree and impose the death penalty? 

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

 The Court: I will repeat the question. 

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

 The Court: I will repeat it. Regardless of your 

 personal belief or feelings, if the evidence justified it, 

 would you be able to find a person guilty of murder in 

 the first degree and would you be able to impose the 

 death penalty? 

_________________________________________________________________ 

6. See also Deputy v. Taylor, 19 F.3d 1485, 1498 (3d Cir. 1994) (citations 

omitted) (internal quotation marks omitted)("a trial court may excuse a 

juror for cause where such juror's views would prevent or substantially 

impair the performance of his duties as a juror in accordance with his 

instructions and his oath. . . . [and] that a state trial judge's finding 

that 

a prospective juror is impermissibly biased against the death penalty is 

entitled to a presumption of correctness under S 28 U.S.C.A. 2254(d)."). 

 66 
 Ms. Floyd: That is a two-part question, right? 

 The Court: Yes, it is. 

 Ms. Floyd: The latter part-- 

 The Court: First of all, would you be able to find a 

 person guilty of murder in the first degree?

 Ms. Floyd: I may, yes. 

 The Court: And the second part is would you be 

 able to impose the death penalty? 

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

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

App. 285-86 (emphasis added). 

As both the Delaware Supreme Court and the District

Court observed, Floyd's responses were very similar to 

those of the potential juror in question in Wainwright v. 

Witt, supra. See Riley I, 496 A.2d at 1005-06 Riley VI, 1998 

WL 172856, at *11. We agree with their analysis and hold 

that Riley has not overcome the presumption of correctness 

that attaches to the implicit finding of the trial judge. 

The dismissal of the other potential juror in question, 

Gerald Mood, took place after the following colloquy: 

 The Court: . . . . Do you have any conscientious 

 scruples against finding a verdict of guilty when the 

 punishment might be death or against imposing the 

 death penalty if the evidence should so warrant? 

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

 that. 

 The Court: Regardless of any personal belief or 

 feelings that you have, if the evidence justified it, would 

 you be able to find a person guilty of murder in the 

 first degree and would you be able to impose the death 

 penalty? 

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

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

App. 276. 

 67 
The District Judge aptly analyzed the dismissal of Mood, 

and we adopt his analysis:7 

 Unlike venireperson Floyd, venireperson Mood's 

 responses were much more succinct. Mood twice 

 responded to the trial court's capital punishment 

 questions with the phrase, "I don't know." . .. . 

 Particularly in situations such as this, where an 

 individual's record response is so brief that its printed 

 reproduction reveals little, the Court should defer to 

 those credibility factors that would only have been 

 known to the trial court, such as the juror's demeanor, 

 tone of voice and attitude. See Witt, 469 U.S. at 434 

 (emphasizing importance of trial court's assessment of 

 venireperson's demeanor, particularly where printed 

 record may not be "crystal clear"). Accordingly, the 

 Court finds adequate record support for the trial 

 court's decision to excuse venireperson Mood. 

Riley VI, 1998 WL 172856, at *12. 

IX. 

Relying on Morgan v. Illinois, 504 U.S. 719 (1992), Riley 

argues that the trial judge erred in failing sua sponte to ask 

prospective jurors during voir dire whether they would 

automatically impose the death penalty if they found him 

guilty. The District Court rejected this claim on the ground 

that Morgan requires that such questions be asked only if 

the defense so requests. We agree. 

In Morgan, the Supreme Court framed the relevant issue 

in these terms: "whether on voir dire the court must, on 

defendant's request, inquire into the prospective jurors' 

views on capital punishment." 504 U.S. at 726 (emphasis 

added). The Court stated its holding as follows: 

_________________________________________________________________ 

7. In addition, as the District Court noted, some of the answers given by 

Floyd and Mood to questions not concerning capital punishment may 

have influenced the trial judge's decision to dismiss them. Floyd revealed 

that she knew Tyrone Baxter and was a casual friend of Baxter's mother. 

Mood said that he was a good friend of one of the police officers involved 

in the case and had served with him in the fire department. See Riley VI, 

1998 WL 172856, at *12. 

 68 
 Petitioner was entitled, upon his request, to inquiry 

 discerning those jurors who, even prior to the State's 

 case in chief, had predetermined the terminating issue 

 of his trial, that being whether to impose the death 

 penalty. 

Id. at 736 (emphasis added). The dissent described the 

Court's holding in similar language: "The Court today holds 

that . . . the Constitution requires that voir dire directed to 

[reverse-Witherspoon] `bias' be provided upon the 

defendant's request." Id. at 739 (Scalia, J., dissenting) 

(emphasis added). 

We cannot regard the Court's choice of words as 

accidental, and we think that the holding of Morgan is 

clear: a reverse-Witherspoon inquiry must be made "on 

defendant's request." See United States v. Tipton, 90 F.3d 

861, 879 (4th Cir. 1996). 

Riley makes two arguments in response. First, he notes 

that the state supreme court rejected his argument on the 

merits, and he contends that "the State should not now be 

heard to raise alleged procedural bars to federal court 

resolution of the claim on the merits." Appellant's Br. at 52. 

Our holding, however, has nothing to do with a procedural 

bar, i.e., a state rule of procedure that bars a federal 

habeas court from reaching the merits of a federal claim. 

Rather, our holding is based on the fact that the 

constitutional right recognized in Morgan applies only if the 

defense makes a request for a reverse-Witherspoon inquiry. 

Second, Riley argues that his trial attorney was 

ineffective in failing to request reverse-Witherspoon 

questioning. However, this argument was not made in the 

state courts, and it is thus procedurally barred. 

X. 

Under 11 Del. C. S 4209(g)(2), the Delaware Supreme

Court is required to undertake a proportionality review in 

death penalty cases. The statute mandates that the Court 

inquire into whether "the death penalty was either 

arbitrarily or capriciously imposed or recommended, or 

disproportionate to the penalty recommended or imposed in 

 69 
similar cases." 11 Del. C. S 4209(g)(2)(a). In affirming Riley's 

death sentence, the Delaware Supreme Court examined 21 

cases, including five in which the death penalty was 

imposed. It found that Riley's case was comparable to the 

five death penalty cases (Whalen, Rush, Deputy, Flamer 

and Bailey), because they all involved 

 an unprovoked, cold-blooded murder of a helpless 

 person (or persons) committed upon victims lacking the 

 ability to defend themselves and solely for the purposes 

 of pecuniary gain (except in Whalen's case). In none of 

 these killings is there any evidence of provocation or of 

 homicide committed out of passion or rage. In each 

 case, except Whalen, the murder occurred in the court 

 of a robbery that was deliberately planned and carried 

 out with the use of deadly weapons. In each case, the 

 perpetrators of these crimes offered no extenuating 

 circumstance for taking the life of another.

Riley I, 496 A.2d at 1027. 

Riley challenges this finding on two grounds. First, he 

points to the fact that two of the death sentences relied on 

-- Rush and Whalen -- had been vacated. Second, he 

argues that the remaining cases -- Deputy, Bailey, and 

Flamer -- do not furnish appropriate comparisons because 

each involved the killing of more than one person. He 

maintains that these errors violated the Eighth and

Fourteenth Amendments. 

It is clear that proportionality review is not required by 

the federal Constitution. See Pulley v. Harris , 465 U.S. 37, 

50-51 (1984). Riley justifies advancing his proportionality 

argument in federal court on two grounds.8 First, he argues 

that the allegedly improper review resulted in a punishment 

that was "inherently disproportionate and, therefore, 

arbitrary and capricious" in violation of the Eighth 

Amendment. Appellant's Br. at 56. Second, he argues that 

_________________________________________________________________ 

8. Ordinarily, federal habeas relief is not available for an error of 

state 

law: the habeas statute provides that a writ disturbing a state court 

judgment may issue only if a prisoner is in custody"in violation of the 

Constitution or laws or treaties of the United States." 28 U.S.C. 

S 2241(c)(3). See Pulley v. Harris, 465 U.S. 37, 41 (1984). 

 70 
Delaware's failure to abide by its own statutory scheme for 

proportionality review violated due process. See Fetterly v. 

Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993) ("the failure 

of a state to abide by its own statutory commands may 

implicate a liberty interest protected by the Fourteenth 

Amendment against arbitrary deprivation by a state"). 

Riley bases his first argument on the principle that"[i]f a 

State has determined that death should be an available 

penalty for certain crimes, then it must administer the 

penalty in a way that can rationally distinguish between 

those individuals for whom death is an appropriate 

sanction and those for whom it is not." Spaziano v. Florida, 

468 U.S. 447, 460 (1984). Riley claims that the 

proportionality review conducted by the Delaware Supreme 

Court in his case failed to protect him from arbitrary 

imposition of the death penalty, and in fact upheld a 

disproportionate punishment. This argument rests on the 

premise that applying the death penalty in Riley's case 

would be so disproportionate as to constitute cruel and 

unusual punishment under the Eighth Amendment. 

Therefore, Riley's argument really attacks the imposition of 

the penalty itself, rather than the state's method of 

reviewing proportionality. 

Riley's argument is not tenable. The Supreme Court has 

"occasionally struck down punishments as inherently

disproportionate, and therefore cruel and unusual, when 

imposed for a particular crime or category of crime." Pulley, 

465 U.S. at 43. However, in this case, Riley's crime-- 

killing a defenseless person without provocation in the 

course of an armed robbery -- is not such that application 

of the death penalty in these circumstances would"shock 

the conscience." See Lindsey v. Smith, 820 F.2d 1137, 1154 

(11th Cir. 1987); Spinkellink v. Wainwright, 578 F.2d 582, 

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

Eighth Amendment violation. 

Riley's second argument is based on the principle that 

when a state creates a right, the Due Process clause of the 

Fourteenth Amendment entitles a defendant to procedures 

to ensure that the right is not arbitrarily denied. He argues 

that the Delaware Supreme Court, by failing to conduct an 

 71 
adequate proportionality review as required by state 

statute, denied him due process. 

As a threshold matter, it is unclear whether, under Third 

Circuit law, a state proportionality-review statute creates 

any cognizable liberty interest for due process purposes. 

See Frey v. Fulcomer, 132 F.3d 916, 925 n.7 (3d Cir. 1997) 

(noting that Supreme Court precedent on this issue is in 

flux). We need not address this question, however, because 

even if Riley has such a liberty interest, he has not shown 

any denial of due process. In evaluating a claim that a state 

court erred in conducting its proportionality review, a 

federal court may only inquire into whether the state court 

"undertook its proportionality review in good faith and 

found that [the defendant's] sentence was proportional to 

the sentences imposed in cases similar to his." Walton v. 

Arizona, 497 U.S. 639, 656 (1990). Because there is no 

federal constitutional right to proportionality review, if the 

federal court finds that the review was undertaken in good 

faith, it cannot "look behind" the state court's conclusion of 

proportionality to consider whether the state court

misapplied state proportionality law. See id.; Bannister v. 

Delo, 100 F.3d 610, 627 (8th Cir. 1996). In this case, the 

Delaware Supreme Court compared Riley's case with a

substantial number of other death-eligible cases, and, even 

disregarding the two vacated death sentences, it found 

common characteristics between Riley's case and three 

other cases in which the sentence was not vacated. 

Although Riley argues that these cases are not entirely 

analogous, because each contained an additional 

aggravating factor (more than one victim), there is no 

indication that the Delaware court acted in bad faith in 

conducting its review. We are thus without power to order 

habeas relief. 

XI. 

We now turn to Riley's contentions concerning jury 

instructions given by the trial judge at the sentencing 

phase. 

A. 

Riley argues that the jury instructions at the penalty 

phase impermissibly restricted the jury's consideration of 

 72 
mitigating circumstances. He takes issue with the following 

instruction, issued at the start of the penalty hearing: 

 A sentence of death shall not be imposed unless the 

 jury finds: 

 (1) Beyond a reasonable doubt at least one statutory 

 aggravating circumstance; and 

 (2) Unanimously recommends, after weighing all 

 relevant evidence in aggravation or mitigation 

 which bears upon the particular circumstances or 

 details of the commission of the offense and the 

 character and propensities of the offender, that a 

 sentence of death shall be imposed. Where the 

 jury submits such a finding and recommendation, 

 the Court shall sentence the defendant to death. A 

 finding by the jury of a statutory aggravating 

 circumstance, and a consequent recommendation of 

 death, supported by the evidence, shall be binding 

 on the Court. 

App. 392 (emphasis added). Riley contends that, given the 

placement of the word "consequent," "a reasonable jury 

could understand the underscored sentence to mean that 

the effect of a finding that a statutory aggravating 

circumstance existed, is that the death penalty must be 

imposed." Appellant's Br. 59. Because the trial judge had 

previously informed the jury that the statutory aggravating 

circumstance -- commission of the murder during a 

robbery -- had already been proven beyond a reasonable 

doubt in the guilt phase, Riley argues that a reasonable 

jury could have read the instruction to mean that it need 

not consider mitigation evidence. 

When reviewing a jury instruction that is claimed to 

impermissibly restrict a jury's consideration of relevant 

evidence, a court must ask "whether there is a reasonable 

likelihood that the jury has applied the challenged

instruction in a way that prevents the consideration of 

constitutionally relevant evidence." Boyde v. California, 494 

U.S. 370, 380 (1990). If there is "only a possibility" of such 

inhibition, however, the challenge must fail. Id . Moreover, 

the challenged instructions "must be evaluated not in 

 73 
isolation but in the context of the entire charge." Jones v. 

United States, 527 U.S. 373, 391 (1999). 

When the jury charge is read as a whole, there is no 

reasonable likelihood that a jury could have understood it 

to preclude consideration of mitigating circumstances. At 

the close of the penalty hearing, the court again instructed 

the jury in terms that cleared up any ambiguity that might 

have been present in its earlier instruction: 

 In conclusion, a sentence of death shall not be imposed 

 unless you, the jury, find: 

 (1) Beyond a reasonable doubt at least one statutory 

 aggravating circumstance has been established; 

 and 

 (2) Unanimously recommend that a sentence of death 

 be imposed after weighing all relevant evidence in 

 aggravation and mitigation which bear upon the 

 particular circumstances and details of the 

 commission of the offense and the character and 

 propensities of the offender. 

 Should you fail to agree unanimously to either of these 

 two matters, the Court shall sentence the defendant to 

 life imprisonment without benefit of probation or 

 parole. 

App. 438-40 (emphasis added). 

This instruction made it clear that a jury was required 

both to find at least one statutory aggravator and to weigh 

aggravating factors against mitigating factors in order to 

support a death sentence. This belies Riley's argument that 

the jury was misled into believing that its job was done 

once the felony murder aggravator was found. 

B. 

Riley next takes issue with the trial court's failure at the 

penalty phase to instruct the jury that it was required to 

conclude unanimously that aggravating circumstances

outweigh mitigating circumstances before imposing death, 

as required by Delaware law. See Whalen v. State , 492 A.2d 

552, 560 (Del. 1985) (setting forth "outweighing" standard). 

 74 
Rather, the court simply instructed the jury that it had to 

"[u]nanimously recommend that a sentence of death be 

imposed after weighing all relevant evidence in aggravation 

and mitigation." App. 438; see also App. 392, 437. 

This argument provides no grounds for habeas relief. The 

federal Constitution does not require "specific standards for 

balancing aggravating against mitigating circumstances." 

Zant v. Stephens, 462 U.S. 862, 876 n.13 (1983). As long as 

a jury is permitted to consider all relevant mitigating 

circumstances in making its death recommendation, there 

is no federal constitutional problem. In addition, Riley has 

not suggested how a jury's decision would be any different 

under the language the court used in this case. Because 

the jury was instructed not to make a sentencing 

recommendation until after it had "weigh[ed] all relevant 

evidence in aggravation and mitigation," the necessary 

inference was that the death penalty should be imposed 

only if aggravating factors outweighed mitigating factors 

(otherwise, the entire "weighing" process would be 

meaningless). 

C. 

Finally, Riley argues that the penalty phase instructions 

improperly suggested that the jury had to be unanimous in 

imposing a life sentence, in violation of Whalen v. State, 

492 A.2d 552, 562 (Del. 1985). He points to the instruction 

that "[i]f you are not unanimous in your recommendation to 

impose the death penalty, or you cannot agree unanimously 

as to your recommendation, then the Court is bound to 

impose a sentence of life." App. 438 (emphasis added). The 

word "recommendation" in the underlined phrase, he 

suggests, could be read to refer to a life sentence

recommendation as well as to a recommendation of death. 

As a threshold issue, the government argues that Riley 

failed to raise this issue before the District Court because 

he based his argument there "solely on the interpretation of 

the interrogatories posed to the jury" rather than on the 

jury instruction he points to here. Appellee's Br. at 75. 

However, Riley, although pointing specifically to the 

interrogatories to support his point, nevertheless raised the 

 75 
general argument in his amended petition that "the 

instructions were likely to confuse the jury about whether 

the verdict must be unanimous." App. 1191. This is 

sufficient to preserve his argument before this Court. 

On the merits, however, Riley's claim must fail. First, 

when the jury charge is viewed as a whole, it reveals several 

instances in which the word "unanimous" was explicitly 

paired solely with the death recommendation. In light of 

this pattern, it appears unlikely that the jury would have 

viewed the isolated passage that Riley relies on as

extending the unanimity requirement to a recommendation 

of life imprisonment. Second, the Delaware Supreme Court, 

in reviewing this allegation, stated that it was"satisfied that 

the jury understood that, in the event of its failure to 

unanimously agree upon imposition of a death penalty, an 

imposition of life imprisonment would result." Riley V, 585 

A.2d at 725. Because the instruction made clear that the 

default rule in case of a lack of unanimity was life 

imprisonment, it is hard to see how the jury's deliberations 

would have been affected even had it adopted Riley's 

interpretation of the instruction. Finally, the challenged 

instruction was identical to one approved by the Delaware 

Supreme Court in Flamer v. State, 490 A.2d 104 (Del. 

1984), aff 'd sub nom. Flamer v. Delaware, 68 F.3d 710 (3d 

Cir. 1995) and Flamer v. Delaware, 68 F.2d 736 (3d Cir. 

1995) (en banc). The Delaware Supreme Court explicitly 

pointed to the similarities with Flamer, and distinguished 

the instructions from those in Whalen, in upholding the 

death sentence on direct appeal. See Riley, 585 A.2d at 

722-25. For these reasons, we reject Riley's claim.

XII. 

Riley was convicted of intentional murder and felony 

murder, with the underlying felony being first-degree 

robbery. The statutory aggravating circumstance relied on 

for the death sentence was that the murder was committed 

while Riley was engaged in the commission of first degree 

robbery. See 11 Del. C. S 4209(e)(1)(j) (establishing felony 

murder aggravator). Riley argues that it is unconstitutional 

to double-count robbery as both an element of the crime 

 76 
(felony murder) that made Riley death-eligible and as a 

statutory aggravating circumstance. 

This Court rejected precisely the same claim in Deputy v. 

Taylor, 19 F.3d 1485,1502 (3d Cir. 1994), holding that 

"within the context of Delaware's death penalty statute, the 

provision requiring the double-counting of the felony at the 

guilty phase and sentencing phase does not impermissibly 

weaken the statute's constitutionally mandated narrowing 

function." This precedent binds our panel. 

XIII. 

Riley's final argument is that the District Court erred in 

denying his motion for funds for investigative and expert 

assistance and in refusing to conduct an evidentiary 

hearing. We disagree. 

A. 

Under 18 U.S.C. S 3006A(e) and 21 U.S.C. S 848(q)(4)(B) 

and (9), Riley was entitled to investigative and expert 

assistance upon a finding that such assistance was 

"necessary" or "reasonably necessary" with respect to his 

representation in the habeas proceeding. Riley sought the 

services of an investigator to gather additional evidence 

concerning his childhood experiences. He sought the

services of a forensic psychiatrist to develop further 

mitigating evidence concerning his mental problems. All of 

these services were requested in order to support Riley's 

arguments that his trial attorney was ineffective at the 

penalty phase and that the trial judge should have 

appointed a co-counsel and investigator to assist him. 

Riley has not shown that the services in question were 

"necessary" or "reasonably necessary." The discovery at the 

time of the federal habeas proceeding of new evidence about 

Riley's childhood would not have shown that the efforts of 

Riley's trial attorney to locate family members who might 

have testified about such matters were objectively 

unreasonable. See pages 38-41, supra. Nor would the

discovery of such evidence have demonstrated that it was 

strategically unreasonable for Riley's trial attorney to 

 77 
eschew a penalty-phase defense based on Riley's"social 

history." See id. Similarly, the development of additional 

evidence regarding Riley's mental condition at the time of 

the federal habeas proceeding would not have shown that 

Riley's trial attorney was objectively unreasonable in not 

seeking a mental examination prior to the penalty. See 

pages 41-43, supra. 

B. 

"Where the District Court denies the petition for a writ of 

habeas corpus in the absence of an evidentiary hearing," we 

ask, first, "whether the petitioner asserts facts which entitle 

him to relief " and, second, "whether an evidentiary hearing 

is needed." Todaro v. Fulcomer, 944 F.2d 1079, 1082 (3d 

Cir. 1991). See also Heiser v. Ryan, 951 F.2d 559, 561 (3d 

Cir. 1991). Riley argues that the District Court should have 

held an evidentiary hearing concerning the prosecution's 

peremptory challenges, the impartiality of the jury, his 

Brady claim, and other unspecified issues. We disagree. As 

previously discussed, we are required to accept the state 

courts' findings regarding the peremptory challenges and 

the impartiality of the jury, and those findings are 

dispositive. Thus, an evidentiary hearing in federal court on 

those matters was not needed. In addition, in light of the 

revelation after briefing that no conversation in which 

Baxter participated is listed in the logs of the wiretap on 

Mrs. Baxter's telephone, it is clear that there was no need 

for an evidentiary hearing concerning Riley's Brady claim. 

Nor do we believe that the District Court was an evidentiary 

hearing was needed on any other matter. 

 78 
BECKER, Chief Judge, Concurring in the Judgment. 

This en banc appeal ultimately turns on the petitioner's 

Batson claim. Unfortunately, I find myself unable to join in 

either Judge Sloviter's or Judge Alito's opinion on that issue.1 

First, I cannot agree with Judge Sloviter's treatment of 

the prosecution's challenge to prospective juror Nichols. 

Rather, I agree with Judge Alito's opinion on this issue, see 

Dis. Op. at 83-91, largely because I do not share Judge 

Sloviter's skepticism of the prosecutor's testimony as to 

Nichols's "significant pause." Human memory can be quite 

powerful, and I think it entirely possible that this 

"significant pause" became indelibly etched in the 

prosecutor's mind. As explicated by the dissent, the hearing 

judge determined that the prosecutor's testimony on this 

matter was credible, and I cannot agree that the raceneutral reason proffered for striking Nichols was"not fairly 

supported by the record." 28 U.S.C. S 2254(d)(8) (1988). 

On the other hand, while the point is quite close, I 

cannot bring myself to join Judge Alito's discussion of the 

challenge to prospective juror McGuire. Unlike the 

challenge to Nichols, an action for which the prosecutor 

relied on his memory to articulate a race-neutral 

explanation, the prosecutor had no recollection whatsoever 

about the differences between McGuire and Reed. I 

therefore agree with Judge Sloviter that there is no basis in 

the record for distinguishing McGuire, a prospective black 

juror who was struck, from Reed, a white man who was not 

struck and who ultimately served on the jury. While ideally 

this issue would be developed further at a federal habeas 

hearing, I reluctantly conclude, again agreeing with Judge 

Sloviter, that no purpose would be served by having such 

a hearing at this late date. Accordingly, I will join in the 

judgment accompanying her opinion. 

While I might end at this point, I am impelled to 

comment on the statistical evidence by reason of the 

prominent discussion of the issue in the Sloviter and Alito 

opinions, and the fact that Judge Alito's dissent identifies 

_________________________________________________________________ 

1. I do, however, join in Part II of Judge Alito's opinion, dealing with 

the 

Caldwell issue. 

 79 
significant problems with Judge Sloviter's discussion of that 

evidence. I feel myself unable to join in Judge Alito's 

opinion on that facet of the case for he has not allayed my 

concern about the practices of the Kent County 

prosecutor's office at times relevant here. Specifically, the 

absence of black jurors on four juries in a county that was 

18% black and had a jury venire that was 9% black 

remains troubling. As the Supreme Court has observed in 

other contexts when presented with perhaps imperfect 

statistical data, "[F]ine tuning of the statistics could not 

have obscured the glaring absence of minoriti[ies]. . . . [T]he 

. . . inability to rebut the inference of discrimination came 

not from a misuse of statistics, but from the inexorable 

zero." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 

342 n.23 (1977) (internal quotations omitted). 

This concern is exacerbated for me by the State's failure 

to submit rebuttal evidence. If Riley's data was too weak to 

support an inference of discrimination in the face of the 

prosecutor's race-neutral explanations, there was no 

burden on the government to submit rebuttal data. 

However, as Judge Sloviter's discussion of the chronology of 

events makes clear, the State volunteered to provide 

rebuttal data, and then failed to do so. See Op. of the Court 

at 38. If the hearing judge had acknowledged the State's 

failure to provide evidence notwithstanding its promise and 

then specifically said that he did not consider this failure to 

be sufficiently probative to overcome the credibility 

determination, his factual conclusion would be fait

accompli. But the fact that the hearing judge did not 

mention the State's failure to provide evidence, in the wake 

of the "volunteering," sticks out like a sore thumb, and 

renders it doubtful for me that the "record as a whole" 

supports the hearing judge's conclusion. 

Judge Sloviter seems to concede that a federal habeas 

hearing would give Riley ample time to conduct an expert 

statistical analysis of the complete record, time which he 

lacked at the earlier hearing, as she explains, because of 

the State's late decision not to submit any statistical 

evidence. See Op. of the Court at 38. Were the statistical 

evidence dispositive of Riley's Batson claim, I would remand 

for a federal habeas hearing. Judge Sloviter, however, 

 80 
states that the statistical evidence is "relevant but not 

dispositive to our decision." Op. of the Court at 40. Because 

I accept her representation on this matter, I do not press 

the issue further, and simply join in the judgment 

accompanying her opinion.2 

_________________________________________________________________ 

2. I note that, even if I did not agree with Judge Sloviter on the juror 

McGuire issue, the judgment accompanying her opinion is plainly closer 

to my own position than the views of Judge Alito. Under these 

circumstances, I would vote with her anyhow to avoid a stalemate. See 

Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., 

concurring); see also Olmstead v. L.C., 527 U.S. 581, 607-08 (1999) 

(Stevens, J., concurring); Bragdon v. Abbott, 524 U.S. 624, 656 (1998) 

(Stevens, J., concurring); AUSA Life Ins. Co. v. Ernst & Young, 206 F.3d 

202, 225 (2d Cir. 2000) (Jacobs, J., concurring). 

 81 
ALITO, Circuit Judge, with whom Judges SCIRICA, BARRY, 

FUENTES and STAPLETON join as to Part I, and with 

whom Chief Judge BECKER, and Judges BARRY, and 

STAPLETON join as to Part II, dissenting: 

This is a troubling case, but after considering all of the 

petitioner's arguments and applying the standard of review 

prescribed by the federal habeas statute, I see no ground 

for reversing the decision of the district court. The majority 

holds that the petitioner's rights under Batson v. Kentucky, 

476 U.S. 79 (1986), were violated, but I do not believe that 

there is a proper basis for disturbing the credibility findings 

made by the conscientious state judge. The majority also 

holds that comments made by the prosecutor in closing 

argument at the penalty phase of the trial violated Caldwell 

v. Mississippi, 472 U.S. 320 (1985), but in my view the 

majority misinterprets that decision as in effect embodying 

a per se prohibition against any mention of the availability 

of appellate review of a death sentence, a procedure of 

which virtually all jurors are surely aware. Because I 

cannot agree with the majority's analysis of either of these 

issues, I must respectfully dissent. 

I. 

A. 

I turn first to the argument that the prosecution violated 

Batson by using peremptory challenges to strike three 

African Americans from the jury panel. In Batson , the 

Supreme Court held that it is a violation of the Equal 

Protection Clause for a prosecutor to strike a juror because 

of race. The Court also set out a three-step process for 

adjudicating a claim that a particular peremptory was 

racially based. 

 [O]nce the opponent of a peremptory challenge has 

 made out a prima facie case of racial discrimination 

 (step one), the burden of production shifts to the 

 proponent of the strike to come forward with a race- 

 neutral explanation (step two). If a race-neutral 

 explanation is tendered, the trial court must then 

 decide (step three) whether the opponent of the strike 

 82 
 has proved purposeful racial discrimination. Hernandez 

 v. New York, 500 U.S. 352, 358-359 (1991)(plurality 

 opinion); id., at 375 (O'CONNOR, J., concurring in 

 judgment); Batson, [476 U.S.] at 96-98. 

Purkett v. Elem, 514 U.S. 765, 767 (1995)(per curiam). 

In this case, the Superior Court found that the petitioner, 

William Riley, made out a prima facie case, see Riley v. 

State, No. 200, 1988 (Super. Ct. April 21, 1989) at 2, and 

the state does not dispute this point. The state offered raceneutral justifications for its contested strikes, and the state 

courts accepted those explanations and found that the 

disputed peremptories were not racially based. Id. at 3-6; 

Riley v. State, 585 A.2d 719, 725 (Del. Sup. Ct. 1990). The 

majority however, rejects the state courts' findings 

regarding two of the state's peremptories and substitutes 

its own contrary findings. I will discuss each of the 

challenges on which the majority relies.1 

B: Ray Nichols 

1. The prosecutor testified that he struck Nichols 

because he was uncertain that Nichols would be able to 

vote for a death sentence. See App. 797-99. According to 

the prosecutor's testimony, "there was a pause and a 

significant pause in [his] answering [the trial judge's] 

inquiry and that to me was enough to suggest that he 

might not be able to return a death penalty." Id. Having 

heard the prosecutor's testimony, the judge who presided 

over the Batson hearing [hereinafter"the hearing judge"], 

concluded: "I find the State provided a credible, raceneutral reason for exercising its peremptory challenge after 

appraising the demeanor and credibility of the juror. The 

State's exercise of its peremptory challenge was nondiscriminatory. I am satisfied that the peremptory challenge 

was not made on the ground of the juror's race." Id. at 889. 

_________________________________________________________________ 

1. Riley also contends that a third member of the venire, Lois Beecher, 

was peremptorily challenged by the state because of race. The majority, 

however, does not rely on this strike, and accordingly I do not discuss 

it in this opinion. 

 83 
Riley suggests that it is not believable that the prosecutor 

was able to remember at the time of the evidentiary hearing 

in 1988 that Nichols had paused while answering a 

question during voir dire six years earlier. In addition, Riley 

contrasts the prosecutor's ability to remember this pause 

with his inability to remember another potentially 

significant aspect of the jury selection process, and Riley 

notes that the prosecutor was a friend and neighbor of the 

victim. These facts were highlighted during the crossexamination of the prosecutor at the Batson hearing, see 

App. 820-29, and I agree that they were important factors 

to be considered in assessing the prosecutor's credibility. 

The hearing judge was aware of these facts and had the 

opportunity to observe the prosecutor testify on the witness 

stand. Despite these facts, however, the hearing judge 

found that the prosecutor's testimony was credible.

Our standard of review of the hearing judge's finding is 

narrow. In Batson, the Supreme Court took pains to note 

that "[s]ince the trial judge's findings in the context under 

consideration here will largely turn on evaluation of 

credibility, a reviewing court ordinarily should give those 

findings great deference." Batson, 476 U.S. at 98 n.21. In a 

later case applying Batson, the plurality elaborated: 

 In the typical peremptory challenge inquiry, the 

 decisive question will be whether counsel's race-neutral 

 explanation for a peremptory challenge should be 

 believed. There will seldom be much evidence bearing 

 on that issue, and the best evidence often will be the 

 demeanor of the attorney who exercised the challenge. 

 . . . [E]valuation of the prosecutor's state of mind based 

 on demeanor and credibility lies `peculiarly within a 

 trial judge's province.' 

Hernandez v. New York, 500 U.S. 352, 353 (1991) (pluralty) 

(citation omitted). 

Because the present case is a proceeding under the 

federal habeas statute, our scope of review is, if anything, 

even narrower. Under 28 U.S.C. S2254(d)(8)(1988 & Supp. 

1990), any state-court factual finding that is "fairly 

supported by the record" is entitled to a presumption of 

correctness. Discussing this provision, the Supreme Court 

 84 
wrote in Marshall v. Lonberger, 459 U.S. 422, 434 (1983), 

that "28 U.S.C. S 2254(d) gives federal habeas courts no 

license to redetermine credibility of witnesses whose 

demeanor has been observed by the state trial court, but 

not by them." Accord, Rushen v. Spain, 464 U.S. 114, 122 

n.6 (1983)(per curiam). The Marshall Court elaborated: 

 In United States v. Oregon Medical Society, 343 U.S. 

 326 (1952), commenting on the deference which this 

 Court gave to the findings of a District Court on direct 

 appeal from a judgment in a bench trial, we stated: 

 "As was aptly stated by the New York Court of 

 Appeals, although in a case of a rather different 

 substantive nature: `Face to face with living 

 witnesses the original trier of the facts holds a 

 position of advantage from which appellate judges 

 are excluded. In doubtful cases the exercise of his 

 power of observation often proves the most 

 accurate method of ascertaining the truth. . . . How 

 can we say the judge is wrong? We never saw the 

 witnesses. . . . To the sophistication and sagacity of 

 the trial judge the law confides the duty of

 appraisal.' Boyd v. Boyd, 252 N.Y. 422, 429,169 

 N.E. 632." Id., at 339. 

 We greatly doubt that Congress, when it used the 

 language "fairly supported by the record" considered 

 "as a whole" intended to authorize broader federal 

 review of state court credibility determinations than are 

 authorized in appeals within the federal system itself. 

459 U.S. at 434. See also Purkett, 514 U.S. at 769.

Under the very limited scope of review that applies here, 

I do not see how the hearing judge's finding that the 

prosecutor testified truthfully regarding the reason for 

challenging Nichols can be overturned. The hearing judge 

heard the prosecutor testify. He was aware of the factors 

noted above that provided grounds for doubting his 

testimony, but he nevertheless found that the prosecutor 

was truthful. I would sustain that finding. 

2. The majority rejects that finding (as well as the state 

courts' finding with respect to another prospective juror 

 85 
whom I discuss below) in large part because, in the

majority's view, "there is no basis to determine if the state 

courts undertook, or even were aware of, the required 

Batson step three inquiry." Maj. Op. at 36. In making this 

argument, the majority (a) misunderstands what Batson 

requires, (b) ignores what the Delaware courts did in this 

case, (c) imposes novel and unwarranted procedural 

requirements on the state courts, and (d) awards relief that 

extends beyond what its own logic warrants. 

What step three of Batson requires. Although the majority 

makes step three seem elaborate and elusive -- so elusive 

that, according to the majority, the Delaware courts may 

not have "fully appreciated the requirement" (Maj. Op. at 

32) -- step three, is neither conceptually difficult nor 

procedurally complicated. Step three simply requires the 

judge to make a finding of fact -- "to determine if the 

defendant has established purposeful discrimination," 

Batson, 476 U.S. at 98 (footnote omitted). See also Purkett, 

514 U.S. at 767; Hernandez, 500 U.S. at 358-59 (plurality 

opinion); id. at 375 (O'Connor, J., concurring in judgment). 

Neither Batson nor any subsequent Supreme Court or 

Third Circuit case has added to this requirement. 

What the Delaware courts did. The Delaware courts did 

exactly what step three requires. With respect to potential 

juror Nichols, the hearing judge, whose analysis the state 

supreme court endorsed, see 585 A.2d at 725, noted that 

the state had provided a race-neutral reason for the 

challenge, stated that he found the explanation credible, 

and concluded: "I am satisfied that the peremptory 

challenge was not made on the ground of the juror's 

race."2 This is precisely the finding that step three of 

Batson mandates. See Batson, 476 U.S. at 98 (the court 

has "the duty to determine if the defendant has established 

purposeful discrimination"). 

What the majority requires. Although the majority opinion 

is loathe to admit it, what the majority really finds wanting 

in the opinions of the Delaware courts is not a failure to 

make the finding mandated by step three of the Batson 

_________________________________________________________________ 

2. The state courts' findings regarding the other potential juror at 

issue, 

Charles McGuire, are discussed below. See infra at 91-93. 

 86 
inquiry but a failure to comment on the record regarding 

evidence that seems, in the majority's view, to undermine 

the prosecution's proffered explanations for the disputed 

peremptories. See Maj. Op. at 29 ("the state courts in this 

case rejected Riley's Batson claim without discussing any of 

the ample evidence that throws into question the 

explanations offered by the prosecutor for striking two of 

the black jurors . . . .").3 This approach is inconsistent with 

the federal habeas statute and Supreme Court precedent. 

The provision of the federal habeas statute on which the 

majority relies provides that if a state court's 

"determination after a hearing on the merits of a factual 

issue" is "evidenced by a written finding, written opinion, or 

other reliable and adequate written indicia," that 

determination "shall be presumed to be correct" unless it is 

not "fairly supported by the record" as a whole. 28 U.S.C. 

S2254(d)(8)(1988 & Supp. 1990)(amended 1996). Under this 

provision, the state court's factual determination must 

simply be evidenced by "a written finding, written opinion, 

or other reliable and adequate written indicia," and it is not 

even necessary that a state court "specifically articulate its 

credibility findings." LaVallee v. Delle Rose , 410 U.S. 690, 

692 (1973). See also Marshall v. Lonberger, 459 U.S. at 

433. Thus, 28 U.S.C. S 2254(d) plainly does not authorize 

us to disregard a state court's factual finding on the ground 

that the state court failed to discuss all the evidence or to 

explain why it was not persuaded by a particular piece of 

proof. 

I do not question that a judge, in making the factual 

finding required by step three of Batson, should consider all 

_________________________________________________________________ 

3. See, e.g., Maj Op. at 18 ("With regard to both Nichols and McGuire, 

the state courts failed to mention in their opinions the weaknesses in the 

State's explanations . . . ."); id. at 20 ("[T]he hearing judge discussed 

neither the statistics nor the State's failure to explain them[,] . . . 

overlooking and ignoring a significant segment of Riley's evidence . . . 

."); 

id. at 21 (hearing judge made no "reference to, or analysis of, Riley's 

evidence of pretext"); id. at 28 ("Here, the state courts failed to 

examine 

all of the evidence to determine whether the State's proffered raceneutral explanations were pretextual. Not only is there no indication on 

the record that the hearing judge engaged in the required analysis, but 

there is no indication that the Delaware Supreme Court did so."). 

 87 
of the relevant evidence that has been adduced. But neither 

Batson nor any later Supreme Court or Third Circuit case4 

suggests that a federal habeas court is free to reject the 

factual findings of a state court if the state court does not 

comment on all of the evidence or provide what the federal 

court regards as a satisfactory explanation for its finding.5 

_________________________________________________________________ 

4. The only Third Circuit case cited in this connection by the majority 

(see Maj. Op. at 35) is Jones v. Ryan, 987 F.2d 960 (1993). Jones, 

however, was very different from the present case (see footnote nine, 

infra) and does not support the proposition that a finding of a state 

court 

is not entitled to the presumption of correctness if the state court did 

not 

explain why the court was not persuaded by particular items of evidence. 

5. Nor does the majority cite much other authority to support its 

position. See Maj. Op. at 28, 30, 34, 35. The majority (at 28) quotes 

dictum in a footnote in United States v. McMillon, 14 F.3d 948, 953 n.4 

(4th Cir. 1994)(emphasis added), to the effect that at step three of 

Batson 

"the court then addresses and evaluates all evidence introduced by each 

side." The reasons for not attaching too much weight to one word 

("addresses") in this statement are too obvious to require mention. 

The majority cites two federal habeas cases in which courts of appeals 

found great fault with the procedures used by state judges in 

adjudicating Batson objections. In Jordan v. LeFevre, 206 F.3d 196 (2d 

Cir. 2000), the court of appeals held that the trial judge "could not 

properly decide the third Batson step" because he "resisted counsel's 

efforts to make arguments regarding the peremptory strikes so as to 

create a full record" and instead "ruled summarily" after "an extremely 

brief colloquy." Id. at 201. Likewise, in Coulter v. Gilmore, 155 F.3d 912 

(7th Cir. 1998), the court of appeals spent several pages describing the 

bizarre nature of the procedure used by the state trial court in ruling on 

Batson objections. Id. at 915-16, 918. The court of appeals ultimately 

concluded that the state court had not considered the totality of the 

relevant circumstances and thus ordered that the petitioner be released 

if the state court did not conduct a Batson hearing using "the proper 

methodology." Id. at 922. The procedures used by the Delaware courts 

in the present case bear no resemblance to the procedures found 

deficient in Jordan and Coulter. 

The majority also cites two appeals in which the Sixth Circuit 

remanded cases for the district courts to provide more complete 

explanations of Batson rulings. See United States v. Harris, 192 F.3d 

580, 588 (6th Cir. 1999); United States v. Hill , 146 F.3d 337 (6th Cir. 

1998). These, however, were direct federal appeals, not habeas 

proceedings initiated by state prisoners, and the relief ordered -- 

remands for fuller explanation -- goes far beyond what the majority 

ordered here. 
 88 
The majority confuses the obligation to consider all of the 

relevant evidence (something that a court should always do 

in making findings of fact) with the obligation to comment 

on all of the evidence (an obligation that we are not free to 

impose on state courts). 

In this case, as I have noted, there is no question that 

the state courts did precisely what step three of Batson 

required -- they made findings as to whether Riley had 

established purposeful discrimination. And they did so only 

after discovery and a thorough hearing. There is no reason 

to believe that the state courts did not consider all of the 

relevant evidence, including all of the evidence that the 

majority now finds persuasive. The Delaware courts simply 

did not comment on all of this evidence. (Judgments about 

credibility based on a witness's demeanor often do not lend 

themselves to such explanation). But the Delaware courts 

were not obligated to comment on all of the evidence. The 

majority in this case reviews the decisions of the Delaware 

courts as if they were decisions of a Social Security 

administrative law judge, who must, we have held,"give 

some reason for discounting the evidence she rejects." 

Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). The 

Delaware courts, however, are not to be treated as if they 

were federal administrative agencies. 

The majority's relief. Even if the majority were correct 

that the Delaware courts were obligated to explain on the 

record why they accepted the prosecution's explanations for 

its strikes and were not persuaded by Riley's evidence, that 

would hardly justify the relief that the majority orders -- 

the granting of the writ unless Riley is re-tried. When a 

decision is found to be faulty for failure to provide an 

adequate explanation, the logical remedy is to remand so 

that an adequate explanation can be supplied. See, e.g., 

Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 

(1985); Motor Vehicle Mfrs. Assn. v. State Farm Mut., 463 

U.S. 29, 57 (1983). Here, however, the majority does not 

give the Delaware courts a chance to comply with the 

majority's newly found procedural requirements. Nor does 

the majority remand to the District Court for a hearing and 

findings specifically addressing the points that the majority 

views as important. Instead, the majority orders that the 

writ be granted unless Riley is re-tried. 

 89 
How the state courts' failure to address Riley's evidence 

on the record can justify such relief is baffling. If the lack 

of explanations on the record is important to the majority's 

analysis, then the case should be remanded so that 

explanations may be provided. If no explanations on the 

record could satisfy the majority -- and I believe that to be 

the case -- then the majority's lengthy discussion of the 

inadequacy of the Delaware courts' opinions is beside the 

point. 

3. The majority's remaining reasons for rejecting the 

hearing judge's finding require little response. The majority 

notes that, although the prosecutor testified that Nichols 

paused, "the record reflects no such pause." Maj. Op. at 16. 

I have read many trial transcripts, and I do not recall any 

in which the court reporter noted that a witness had or had 

not paused before answering a question. 

The majority finds it significant that "despite Nichols' 

alleged pause, the prosecutors did not ask the trial court to 

remove Nichols for cause." Maj. Op. at 17. The majority 

raises the question "why if Nichols actually did pause `a 

significant pause,' the state did not seek to have him 

removed for cause." Id. Does the majority seriously believe 

that a prospective juror who pauses before answering a 

question about the death penalty may properly be removed 

for cause? 

The majority observes that "[t]he record does not show 

. . . that any of the contemporaneous notes kept by the 

prosecutors as to some of the jurors reflected either the 

existence of a pause or the concern about which[the

prosecutor] testified six years later." Maj. Op. at 17. The 

prosecutor's notes, however, consist of a handwritten sheet 

with a few words or abbreviations scrawled next to the 

names of some of the prospective jurors. Nichols's name is 

not even on this sheet. The notes by no means record the 

reasons for all of the prosecution's strikes. 

I wish there were some scientific test that could 

determine with complete certainty whether Nichols paused 

and whether the prosecutor told the truth. Unfortunately, 

there is no such test. We must rely to a substantial degree 

on the ability of the judge who heard the prosecutor's 

 90 
testimony to make an accurate assessment of his 

credibility. There is no question that the hearing judge took 

his responsibility seriously and made his finding in good 

faith. Our role under the federal habeas statute is to 

determine whether that credibility finding is "fairly 

supported by the record." It is. 

C: Charles McGuire. 

1. Riley's strongest Batson claim concerns the 

prosecution's strike of Charles McGuire. At trial, the 

prosecutor first used a peremptory challenge against 

McGuire and then immediately made the following 

application to the trial judge: 

 [THE PROSECUTOR]: Your Honor, may I ask the

 Court to reconsider charging the State for that strike. 

 This Mr. McGuire came to chambers yesterday and 

 expressed his belief that he didn't know if he could last 

 the two weeks [the estimated length of the trial], there 

 was some problem with work. He was an inspector or 

 something for the Department of Labor. I know he 

 came in yesterday. 

 THE COURT: I will not strike him for cause for that 

 reason. He asked to be excused yesterday and I 

 decided not to excuse him. 

App. 250. 

At the evidentiary hearing held before the hearing judge, 

the prosecutor testified that he struck McGuire because 

McGuire "had previously requested to be excused from jury 

service" and because the prosecutor "wanted attentive 

jurors" who were not worried about missing other 

obligations or activities while the trial took place. App. 801. 

The defense called McGuire as a witness at the 

evidentiary hearing. McGuire testified that he was employed 

by the State of Delaware as a Social Security "disability 

adjudicator," App. 846-47; that he had been reporting for 

jury duty in the courthouse in Dover for two to three weeks 

before he was questioned in connection with the Riley case 

but had not been seated on a jury, id. at 852-53; that while 

he was away from work, the disability claims assigned to 

 91 
him would "just sit[ ]," id. at 850; that the director of his 

office had told him that he was going to make a"formal 

request" that McGuire be excused, id. at 860; that such a 

request was sent, id. at 853, 856; and that the request had 

been discussed in chambers with the judge. Id . at 849-50, 

856. McGuire said, however, that he himself had never 

expressed an unwillingness to serve on the jury and had 

been willing to do so. See id. at 850. 

The hearing judge accepted the prosecutor's explanation 

of the reason for striking McGuire. The hearing judge 

found: 

 The State peremptorily challenged Charles McGuire 

 because [the prosecutor] believed he requested to be 

 excused from jury duty and, therefore, may have been 

 unable or unwilling to serve for the entirety of the trial. 

 . . . McGuire's employer sent a letter requesting he be 

 released from jury duty because he could not be 

 replaced at his job if he was chosen for jury duty. The 

 letter by McGuire's employer clearly gave the State 

 reason to question whether McGuire would give his full 

 time and attention to the trial and whether he would 

 be able to serve for the entirety of the time projected for 

 the trial. Whether McGuire, in fact, did not request 

 relief from jury duty and did wish to serve is of no 

 consequence. 

Riley v. State, No. 200, 1988 at 4-5 (emphasis added). The 

hearing judge then noted that the state's explanation for 

striking McGuire, was "entirely unrelated to the juror's 

race," and the judge credited that explanation. Id. at 5. 

Obviously, by crediting an explanation that was"entirely 

unrelated to the juror's race," the hearing judge necessarily 

found that Riley had not "established purposeful 

discrimination," Batson, 476 U.S. at 98, and the hearing 

judge thus fully complied with Batson's step three.6 

Several factors provide substantial support for this 

finding. It is apparent that McGuire's work situation was on 

_________________________________________________________________ 

6. The majority, however, incorrectly suggests (Maj. Op. at 33) that 

finding "the prosecutor to be credible" is different from finding that 

purposeful discrimination was not proved. 

 92 
the prosecutor's mind when McGuire was peremptorily

challenged because, as noted, immediately after striking 

McGuire, the prosecutor asked that McGuire's dismissal be 

deemed for cause since he had "expressed his belief that he 

didn't know if he could last the two weeks." App. 250. In 

addition, a reasonable prosecutor might well have wondered 

whether McGuire's work situation would adversely affect 

his attentiveness at trial. As noted, McGuire's supervisor 

had made a "formal request" that he be excused"because 

he could not be replaced at his job if he was chosen for jury 

duty."7 Whether or not McGuire himself in fact wished to 

serve on the jury, the impression apparently was conveyed 

that McGuire wanted to be excused and to return to work, 

since the trial judge commented: "He asked to be excused 

yesterday and I decided not to excuse him." See App. 250. 

Under these circumstances, a reasonable prosecutor could 

have been concerned that McGuire might have been 

inattentive at trial due to worry about missing work, leaving 

his duties unattended, and perhaps incurring his 

supervisor's displeasure. 

Riley attacks the hearing judge's finding on two grounds. 

First, he points out that, according to McGuire's testimony 

at the post-conviction relief evidentiary hearing, McGuire 

himself did not ask to be excused. This argument is

unpersuasive. Although McGuire testified that he did not 

ask to be excused, the trial judge, as noted, stated at the 

time of McGuire's dismissal: "He asked to be excused 

yesterday and I decided not to excuse him." App. 250 

(emphasis added). Thus, McGuire, who was unable to 

remember many details at the time of the post-conviction 

relief evidentiary hearing, see id. at 853, 857-62, may have 

been mistaken, or he may have conveyed the impression at 

the time of trial that he personally wanted to be excused. 

Second, Riley points out that the handwritten sheet

prepared by the prosecutors during voir dire contains the 

following notation next to the name of a white juror, 

Charles Reed, whom the prosecution did not peremptorily 

strike: "works Lowe's -- wants off." One of the prosecutors 

_________________________________________________________________ 

7. Riley v. State, No. 200, 1988 at 4. See also App. 860 (McGuire's 

testimony at the evidentiary hearing). 

 93 
was questioned about this notation by Riley's attorney at 

the post-conviction relief evidentiary hearing, but the 

prosecutor testified that he had no recollection of Reed. See 

App. 823-24. 

The notation by Reed's name and the prosecutor's 

testimony at the evidentiary hearing are certainly factors 

that the hearing judge could have viewed as tending to 

undermine the credibility of the prosecutor's explanation for 

striking McGuire, but the notation and the prosecutor's 

testimony are insufficient to show that the hearing judge's 

finding is not "fairly supported by the record." 28 U.S.C. 

S 2254(d). It is reasonable to infer from the notation "wants 

off " that, at some point in the jury selection process, Reed 

expressed a desire to be excused for some reason. As far as 

I am aware, however, the record does not establish why8 or 

how strongly Reed wanted to be excused. The transcript of 

the voir dire shows that, at the final stage of the jury 

selection process, the members of the venire were asked 

whether there was "any reason why [they] absolutely [could 

not] serve," App. 223; that members of the venire then 

successfully asked to be released for reasons such as a 

previously planned vacation, id. at 253; but that Reed made 

no request to be excused at that time. See id . at 229-30. 

Thus, as far as the record appears to reveal, Reed may have 

had a relatively weak desire and reason to be excused, and 

his situation may not have been at all comparable in this 

respect to McGuire's.9 

_________________________________________________________________ 

8. Although the notation "wants off " appears after the words "works at 

Lowe's," it is not clear that Reed's desire to be excused was related to 

his 

employment. The prosecutor's notes appear to contain notations of the 

employment of other jurors. 

9. Many decisions have held that Batson is not contravened simply 

because two jurors exhibit similar characteristics and one is excluded 

while the other is retained. See, e.g., Matthews v. Evatt, 105 F.3d 907, 

918 (4th Cir. 1997); United States v. Spriggs , 102 F.3d 1245, 1255 (D.C. 

Cir. 1997); United States v. Stewart, 65 F.3d 918, 926 (11th Cir. 1995); 

United States v. Alvarado, 951 F.2d 22, 25 (2d Cir. 1991); United States 

v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988); United States v. McCoy, 

848 F.2d 743, 745 (6th Cir. 1988); United States v. Lewis, 837 F.2d 415, 

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

 94 
As I have noted, our scope of review of the hearing

judge's finding is narrow. Although it would be satisfying to 

know why Reed was not stricken, that unanswered 

question is not enough, in view of the "great deference"10 

owed the hearing judge's credibility determination, to 

demonstrate that the hearing judge's finding is not"fairly 

supported by the record."11 28 U.S.C. S 2254(d)(8) (1988 & 

Supp. 1990). 

In an effort to bolster its unusual decision to overturn the 

hearing judge's credibility finding, the majority points to a 

statement contained in the brief filed by the state in Riley's 

direct appeal. The majority writes: 

 When Riley's direct appeal came before the Delaware 

 Supreme Court in 1984, the State justified the use of 

 race in selecting jurors in criminal trials. On that 

 occasion, which was the State's first opportunity to 

 defend the use of its peremptory challenges in Riley's 

 trial, the State did not offer a single race-neutral 

 explanation, not even as an alternate argument; 

 instead, it claimed that it was permissible -- even 

 socially desirable -- to exclude jurors based on what it 

 called `group association.' " 

Maj. Op. at 25 (quoting App. 896). 

This argument is not well taken. Responding to Riley's 

suggestion that the Delaware Supreme Court should 

hold that individual race-based peremptories were 

unconstitutional, the state's brief argued as follows: 

 Because the Sixth Amendment does not support

 [Riley's argument] and the decision in Swain v. 

 Alabama, 380 U.S. 202 (1965), more appropriately 

 recognizes how peremptory challenges, even those 

_________________________________________________________________ 

10. Batson, 476 U.S. at 98 n.21. 

11. This case is very different from Jones v. Ryan, 987 F.2d 960 (1993). 

There, exercising plenary review in the absence of any findings of fact by 

a state court, we held that Batson was violated where the prosecutor 

excluded a black juror who had a child approximately the same age as 

the defendant, while retaining a white juror who was similarly situated. 

Jones, 987 F.2d at 973. In the present case, we are limited to deciding 

whether the state court finding is fairly supported by the evidence. 

 95 
 exercised on the basis of group association, foster the 

 constitutional goal of an impartial jury, the state 

 asserts that no reversal is required here. 

App. 896-97 (footnotes omitted). Thus, the state's brief -- 

which the lead trial prosecutor did not even sign-- merely 

urged the state supreme court to follow the reasoning of the 

United States Supreme Court in what was then the 

governing federal precedent. It is far-fetched to interpret the 

state's reliance on Swain as a tacit admission that its 

peremptories in this case were based on race -- particularly 

since, in a footnote to the sentence quoted above, the state 

was careful to deny that its challenges were racially based.12 

It is also unreasonable to draw an adverse inference 

against the state for not providing race-neutral 

explanations for its challenges in its appellate brief. Since 

there was no evidence in the record regarding the reasons 

for the strikes, the state could hardly have expected the 

state supreme court to base a decision on explanations 

provided without record support. The majority's arguments 

regarding the state's brief are insubstantial. 

The majority's reliance on statistical evidence is even 

worse. In the Batson proceeding before the hearing judge, 

Riley made a proffer that no African American had served 

on any of the three other first-degree murder trials that had 

occurred in Kent County within a year of his own and that 

in those cases the prosecution had peremptorily challenged 

five African Americans. The three other trials were those of 

Andre Deputy, an African American, and two whites, Daniel 

Pregent, who was acquitted, and Judith McBride, who was 

_________________________________________________________________ 

12. The state's brief stated that it "emphatically denie[d] that the 

prosecutor exercised any of his challenges solely on the assumption that 

the juror's race, in the context of the facts of this case, indicated a 

verdict position adverse to the prosecution." App. 896. The majority 

seizes on the word "solely" in this sentence as a tacit admission that 

race 

played a part in the decision to exercise peremptories. In my view, it is 

wholly unreasonable to read that much into the word"solely." The 

Supreme Court in Batson itself used this same word in the same 

context. See 476 U.S. at 89 (emphasis added)("[T]he Equal Protection 

Clause forbids the prosecutor to challenge potential jurors solely on 

account of their race."). 

 96 
convicted. With respect to these cases, no information was 

provided at the time -- and none has been provided since 

-- about the identities of the prosecutors who participated 

in jury selection, the racial makeup of the venire, or the 

race of jurors who were dismissed for cause or peremptorily 

challenged by the defense. 

In the trial of Andre Deputy, who was convicted and

ultimately executed, the state struck four whites, one 

African American, and one person listed as "Indian." 

Deputy argued that the prosecution's peremptory challenge 

of the African American venireperson violated Batson. See 

Deputy v. Taylor, 19 F.3d 1485, 1492 (3d Cir. 1994). 

Deputy's Batson argument was rejected in the district court 

decision denying his petition for a writ of habeas corpus, 

and our court affirmed. See id. at 1492. Since it has been 

held that no Batson violation was shown in Deputy, it is 

difficult to see how that case can be viewed as supporting 

Riley's argument here. 

In Pregent's case, the state struck four whites and one 

black. There is nothing before us to indicate that any 

Batson objection was made, and it is doubtful that the 

pattern of strikes exercised by the prosecution sufficed to 

make out a prima facie case. 

The remaining case is the prosecution of Judith McBride 

for murdering her husband. See McBride v. State , 477 A.2d 

174 (Del. 1984). The state exercised a total of 10 strikes, of 

which three were against potential jurors identified as black.13 

There is nothing to indicate that any Batson objection was 

made. Without in effect holding a Batson hearing, there is 

no way of determining whether any prosecution 

peremptories were based on race. 

Although Riley was represented at the Batson hearing by 

a professor of law and has been represented in the federal 

habeas proceeding by attorneys from one of the nation's 

leading law firms, no expert analysis of these statistics has 

ever been offered.14 According to the majority, however, the 

"sophisticated analysis of a statistician" is not needed to 

_________________________________________________________________ 

13. According to Riley's statistics, five of those struck by the state 

were 

white, and the race of two is not provided. 

14. The majority's statement that "the procedural posture of the case" 

provided "no opportunity" for Riley to offer an expert analysis of his 

statistics (Maj. Op. at 38) is difficult to understand. What stopped Riley 

from offering the evidence of a statistician as to the significance of the 

scant statistics that Riley provided? 
 97 
interpret the significance of these statistics. Maj. Op. at 19. 

"An amateur with a pocket calculator," the majority writes, 

can calculate that "there is little chance of randomly 

selecting four consecutive all white juries." Id. 

Statistics can be very revealing -- and also terribly 

misleading in the hands of "an amateur with a pocket 

calculator." The majority's simplistic analysis treats the 

prospective jurors who were peremptorily challenged as if 

they had no relevant characteristics other than race, as if 

they were in effect black and white marbles in a jar from 

which the lawyers drew. In reality, however, these 

individuals had many other characteristics, and without 

taking those variables into account, it is simply not possible 

to determine whether the prosecution's strikes were based 

on race or something else. 

The dangers in the majority's approach can be easily 

illustrated. Suppose we asked our "amateur with a pocket 

calculator" whether the American people take right- or lefthandedness into account in choosing their Presidents. 

Although only about 10% of the population is left-handed, 

left-handers have won five of the last six presidential 

elections.15 Our "amateur with a calculator" would conclude 

that "there is little chance of randomly selecting" lefthanders in five out of six presidential elections. But does it 

follow that the voters cast their ballots based on whether a 

candidate was right- or left-handed? 

Whether even a careful multiple-regression analysis of 

peremptory challenge statistics in other cases would suffice 

to show that a Batson violation occurred in this case is 

unclear. Cf. McClesky v. Kemp, 481 U.S. 279 (1987). Here, 

however, we have not been presented with any expert

statistical evidence. 

The majority and the concurrence argue that an adverse 

inference should be drawn against the state for failing to 

come forward with data to rebut Riley's statistics. I see no 

basis for this approach. Whether an adverse inference 

should be drawn under particular circumstances based on 

_________________________________________________________________ 

15. See "Forget Left-Wing. Say Hello to Left-Handed Politics," New York 

Times, Jan. 23, 2000. 

 98 
a party's failure to produce evidence in a state proceeding 

is in the first instance a question of state law, and unless 

a state court's failure to draw such an inference in a 

particular case denies due process or a fair and adequate 

hearing, a federal habeas court should be reluctant to 

reject the state court's ruling. Cf. 28 U.S.C. S 2254 (6) and 

(7) (1988 & Supp. 1990) (amended 1996). Moreover, even if 

this were a collateral attack on a federal conviction, we 

would defer to the decision of the judge who conducted the 

hearing as to whether the circumstances justified the 

drawing of adverse inference and would reverse only if the 

judge committed an abuse of discretion. See, e.g., Bouzo v. 

Citibank, N.A., 96 F.3d 51, 60 (2d Cir. 2000). 

Here, the state courts' failure to draw such an inference 

certainly did not constitute an abuse of discretion. The 

state was never given notice that it had any obligation to 

provide additional data, and it is not at all clear what sort 

of evidence the majority expects the state to have provided. 

The information that is most critically lacking-- the 

prosecutors' reasons for striking the five African American 

venire members in the Deputy, McBride, and Pregent cases 

-- probably could not have been obtained without in effect 

conducting retrospective Batson hearings in those cases. 

Does the majority think that such a hearing would have 

been practical? Or does the majority think that the state 

should have retained am expert to analyze the state's use 

of peremptory challenges in some other set of cases? In 

order to make such an analysis, the expert probably would 

have needed detailed information about the prospective 

jurors whom the state did and did not strike -- e.g., their 

ages, marital status, education, occupations, and past 

experiences with law enforcement, to name just a few of the 

myriad variables that often figure in decisions about 

peremptory challenges. We have no indication that such 

information was available, and in any event, compiling and 

analyzing the data concerning a reasonable sample of cases 

could have been a massive undertaking. In my view, it is 

entirely unwarranted to hold that the state courts abused 

their discretion because they did not draw adverse 

inferences from the state's failure to volunteer to conduct 

such a study in response to the statistics that Riley 

proffered. 

 99 
In sum, I see no ground for overturning the hearing

judge's credibility findings. I would thus hold that the 

presumption of correctness has not been overcome and 

would reject Riley's Batson argument. The majority -- by in 

effect making its own credibility findings on the cold state 

court record -- seriously errs. See Marshall v. Lonberger, 

459 U.S. at 434. 

II. 

I now turn to the majority's holding that a remark made 

by the prosecutor in closing argument at the penalty phase 

of the trial violated Caldwell v. Mississippi , supra. In 

Caldwell, the defense attorney's closing argument asked the 

jury to "confront both the gravity and responsibility of 

calling for another's death." 472 U.S. at 324. In response, 

the prosecutor took strong exception to the defense

attorney's comments and stated: 

 Now, they would have you believe that you're going to 

 kill this man and they know -- they know that your 

 decision is not the final decision. My God, how unfair 

 can you be? Your job is reviewable. They know it. . . . 

 For they know, as I know, and as [the judge] has told 

 you, that the decision you render is automatically 

 reviewable by the Supreme Court. 

Id. at 325-26. 

By a vote of five to three, the United States Supreme 

Court reversed the defendant's death sentence. The 

plurality opinion approved by four justices concluded that 

the prosecutor's comments were improper for two reasons: 

first, because the prosecutor's description of the state 

scheme of appellate review was not "accurate" and, second, 

because the availability of appellate review was"wholly 

irrelevant to the determination of the appropriate sentence." 

Id. 

Justice O'Connor, who cast the deciding fifth vote for 

reversal, refused to endorse the principle that"the giving of 

nonmisleading and accurate information regarding the 

jury's role in the sentencing scheme is irrelevant to the 

sentencing decision." 472 U.S. at 341 (opinion of O'Connor, 

 100 
J.) (emphasis added). However, she agreed that the 

prosecutor's statements were improper because they 

"creat[ed] the mistaken impression that automatic appellate 

review of the jury's sentence would provide the 

authoritative determination of whether death was 

appropriate," whereas in fact the state supreme court 

exercised only a narrow scope of review. Id. 

In subsequent cases, the Court has clarified the holding 

in Caldwell. In Romano v. Oklahoma, 512 U.S. 1, 9 (1994), 

the Court wrote as follows: 

 As Justice O'CONNOR supplied the fifth vote in 

 Caldwell, and concurred on grounds narrower than 

 those put forth by the plurality, her position is 

 controlling. See Marks v. United States, 430 U.S. 188, 

 193 (1977) . . . . Accordingly, we have since read 

 Caldwell as "relevant only to certain types of comment 

 --those that mislead the jury as to its role in the 

 sentencing process in a way that allows the jury to feel 

 less responsible than it should for the sentencing 

 decision." Durden v. Wainwright, 477 U.S. 168, 184, 

 n.15 (1986). Thus, "[t]o establish a Caldwell violation, 

 a defendant necessarily must show that the remarks to 

 the jury improperly described the role assigned to the 

 jury by local law." Dugger v. Adams, 489 U.S. 401, 407 

 (1989), see also Sawyer v. Smith, 497 U.S. 227, 233 

 (1990). 

The Romano Court rejected the Caldwell argument 

advanced in that case because "the jury was not 

affirmatively misled regarding its role in the sentencing 

process." Id. at 10. 

Riley's argument is based on a statement made by the 

prosecutor near the very beginning of his summation at the 

sentencing phase of the trial. The prosecutor stated: 

 As the Judge has explained to you we have a specific 

 statute with regard to what occurred in a penalty 

 hearing on a capital case. 

 Let me say at the outset that what you do today is 

 automatically reviewed by our Supreme Court and that 

 is why there is an automatic review on the death 

 101 
 penalty. That is why, if you return a decision of death, 

 that is why you will receive and have to fill out a two- 

 page interrogatory that the Court will give you. This is 

 an interrogatory that specifically sets out the questions 

 that the State request and whether or not you believe 

 it beyond a reasonable doubt and if you want in your 

 determination, if you believe the sentence should be 

 death then each and every one of you has to sign this. 

 This goes to the Supreme Court. That is why it is 

 concise and we believe clear and it should be looked 

 carefully on and answered appropriately. 

App. 393 (emphasis added). Riley argues that the 

highlighted words quoted above violated Caldwell . 

In its decision on direct appeal, the Delaware Supreme 

Court responded to this argument as follows: 

 [T]he prosecutor's remarks in no way suggested that 

 responsibility for ultimately determining whether 

 defendant faced life imprisonment or death rested 

 elsewhere. The prosecutor's passing comment to the 

 jury that its decision would be "automatically reviewed" 

 was fairly made in the context of the prosecutor's 

 preceding reference to the "specific statute[controlling] 

 a penalty hearing on a capital case." 11 Del.C.S 4209. 

 Since subsection (g) of S 4209 mandates the"Automatic 

 Review of Death Penalty by Delaware Supreme Court", 

 the prosecutor in the instant case was simply quoting 

 the statute. In no sense may it reasonably be said that 

 the prosecutor was either misstating the law, 

 misleading the jury as to its role, or minimizing its 

 sentencing responsibility. 

496 A.2d at 1025 (alteration in original). I agree with this 

analysis. 

The prosecutor's remarks in Caldwell were"quite 

focused, unambiguous, and strong." 472 U.S. at 340. The 

clear message was that, contrary to the suggestion of 

defense counsel that the jury should "confront both the 

gravity and responsibility of calling for another's death," id. 

at 324, the jury need not shoulder that responsibility 

because "the authoritative determination of whether death 

was appropriate" would be made by the state supreme

 102 
court. Id. at 343 (Opinion of O'Connor, J.). It was in this 

sense that the remarks " `improperly described the role 

assigned to the jury by local law' "16 and thus " `allowed the 

jury to feel less responsible than it should for the 

sentencing decision.' "17 

The prosecutor's remarks in this case were very different. 

Here, the prosecutor made accurate, unemotional, passing 

remarks in the context of describing the state statute and 

explaining why the jury would have to "fill out a two-page 

interrogatory" if it returned a capital sentence. These 

remarks did not convey the message that the jury should 

not confront the gravity of returning a death verdict, and 

thus the mere mention of the fact that there would be an 

automatic appeal to the state supreme court did not

mislead the jury as to its role in the sentencing process. In 

this connection, it is noteworthy that after the closing 

arguments, the trial judge instructed the jury on its role 

using language that left no doubt about its responsibility. 

The trial judge stated: "Where the jury submits such a 

finding and recommendation, the Court shall sentence the 

defendant to death." See 585 A.2d at 731 (emphasis added). 

A "recommendation of death, supported by the evidence, 

shall be binding on the Court." Id. (emphasis added). "Your 

unanimous recommendation for the imposition of the death 

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

Court." Id. at 734 (emphasis added). In light of the 

substantial factual differences between Caldwell and this 

case, and in light of the Supreme Court's subsequent 

explanation of the meaning of Caldwell, I would reject 

Riley's Caldwell claim. 

The majority appears to hold that a Caldwell violation 

occurred simply because the prosecutor accurately stated 

that there would be an automatic appeal to the state 

supreme court without attempting to explain the scope of 

review that the state supreme court would exercise. I do not 

agree with this reading of Caldwell. Neither Justice 

_________________________________________________________________ 

16. Romano v. Oklahoma, 512 U.S. at 9 (quoting Dugger v. Adams, 489 

U.S. at 407). 

17. Romano v. Oklahoma, 512 U.S. at 9 (quoting Durden v. Wainwright, 

477 U.S. at 184, n.15). 

 103 
O'Connor's controlling opinion in Caldwell nor the Court's 

subsequent explanation in Romano took the position that 

an unadorned reference to automatic judicial review of a 

capital verdict is enough to violate the Constitution. And 

such a holding would make little sense. As the Seventh 

Circuit has noted: 

 Everyone knows that after a death sentence is 

 imposed, there are tiers of appellate review designed to 

 catch errors; the prosecutor wasn't telling the jurors 

 anything they didn't know already. Appellate review is 

 a fact of almost all criminal cases that are tried. 

 Knowledge of this does not cause jurors to take lightly 

 their sentencing responsibilities. 

Fleenor v. Anderson, 171 F.3d 1096, 1098 (7th Cir. 1999). 

What Caldwell forbids is not a simple reference to 

automatic appellate review, but the suggestion that the 

scope of review is broader than it is in fact. The remarks in 

Caldwell conveyed such a suggestion; the comments here 

did not. I would therefore hold that no Caldwell violation 

occurred. 

III. 

Reviewing habeas decisions in capital cases is one of the 

most important and difficult responsibilities of this court. 

Our role is vital -- but limited -- and is not to be confused 

with that of the jury or the various branches of state 

government. Applying the legal standards that are 

applicable to us in the present context, I believe that the 

decision of the district court must be affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 104