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D ock e t 98-9009

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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 Jud ges

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 Judg es 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 ha s been undue delay at any stage but because the case raise s legitimate questions that go to the constitutionali ty of the original trial and sentencing. It was necessary to complete a series of proceedings in both state and federal c ourt, none of them duplicative, before the case reached this s tage.

2After all, there can be no reconsideration after th e

execution of a death sentence.

I.

INTRODUCTION

According to testimony at the trial, Riley and Tyro ne Baxter stopped in a liquor store in Dover, Delaware , on February 8, 1982, to get some beer and rob the stor e. Michael Williams waited in the car. Baxter testifie d that Riley, armed with a gun, placed a bottle of beer on the counter and announced the store was being robbed. W hen 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 F eeley's wallet, but Feeley resisted. At Baxter's urging, Ri ley shot Feeley in the leg. Feeley, who was then hopping up and down, apparently from the gunshot, said "[Y]ou f 'i ng niggers." App. at 327. As Riley and Baxter were pro ceeding to the door to leave, Feeley threw a wine bottle th at struck Riley in the arm. Riley then shot Feeley in the che st, killing

him.

In May 1982, Riley, Baxter, and Williams were indic ted on charges of felony murder, intentional murder, fi rst degree robbery, possession of a deadly weapon durin g a felony, and second degree conspiracy. Riley pled no t 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 char ges against Williams were also dropped in exchange for his testimony against Riley, and he was subsequently co nvicted of the robbery and conspiracy charges.

Riley was represented at trial by appointed counsel , a defense-side civil litigator who had never represen ted a criminal defendant in either a murder or a capital case. His pretrial motions for co-counsel and funds for a pri vate investigator were denied. The prosecutors in Riley' s case were James Liguori and Mark McNulty. Liguori, the l ead prosecutor, was a friend and neighbor of Feeley's, and they belonged to the same church.

3The State presented the testimony of Baxter, Willia ms,

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 h is mother's birthday. However, Riley's mother did not testify in support of his alibi. The only witness Riley presen ted other than himself was an inmate at the prison in which B axter 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 D elaware trial court) in December 1982. Four days after the verdict, the jury proceeded to consider the penalty. The Sta te sought the death penalty, relying only on Riley's f elony 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 w as also sentenced to life imprisonment without parole for intentional murder, 20 years imprisonment for robbe ry, 5 years imprisonment for possession of a deadly weapo n, and 3 years imprisonment for conspiracy. Riley's attorn ey 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 mor e time building a case in mitigation. App. at 443-444.

Riley appealed his conviction and sentence on numer ous grounds. In July 1985, the Delaware Supreme Court affirmed, see Riley v. State, 496 A.2d 997 (Del. 19 85) (hereafter "Riley I"), and the Supreme Court of the United States denied certiorari, see Riley v. Delaware , 4 78 U.S. 1022 (1986).

Represented by new counsel, Riley filed a motion fo r post-conviction relief in Kent County Superior Cour t 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 ass istance of counsel and that the prosecution had exercised its peremptory challenges in a racially discriminatory manner

4in violation of Batson v. Kentucky, 476 U.S. 79 (19 86). After

three days of evidentiary hearings limited to the i neffective assistance of counsel claim, the trial judge denied Riley's motion. See State v. Riley, 1988 WL 47076 (Del. Sup er. 1988) (hereafter "Riley II"). Riley then requested the Superior Court consider reargument on his Batson c laim. 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 Sta te v. Riley, 1988 WL 130430, at *3 (Del. Super. 1988) (he reafter "Riley III"). After holding an evidentiary hearing, the hearing judge rejected Riley's Batson claim and all his oth er claims as well. See Riley v. State, No. 200, 1988 (Del. Su per. 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 aga in denied certiorari, see Riley v. Delaware, 501 U.S. 1223 (1991).

On August 12, 1991, Riley filed a petition for a wr it of habeas corpus in the United States District Court f or the District of Delaware pursuant to 28 U.S.C. S 2254. AgainRiley obtained new lead counsel, although his postconviction counsel remained as co-counsel. The Dist rict 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 a ppealed,

and this court held that the denial of his motion t o 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 2 8, 1995, alleging 12 grounds for relief. The District Court denied Riley's petition without holding an evidenti ary hearing. See Riley v. Taylor, 1998 WL 172856 (D. De l. Jan. 16, 1998) (hereafter "Riley VIII"). We then issued a certificate of probable cause and Riley appealed, r aising 12

claims. He asserted that:

51. The State's exercise of peremptory chall eng 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 withho ldi ng wiretap tapes of a key witness from Riley vi olated 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 a nd 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 viol ating the Eighth and Fourteenth Amendments under Caldwell v. Mississippi, 472 U.S. 320 (1985)

.

6. The trial court failed to probe equivoca l r esponses during the death penalty voir dire in violat ion of Witherspoon v. Illinois, 391 U.S. 510 (1968)

.

7. Riley's jury was unconstitutionally bias ed in favor of returning the death penalty because the t rial judge's voir dire failed to identify all pro spective jurors who automatically would impose the de ath 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 proportiona lit y review violated Riley's Eighth and Fourteent h Amendment rights.

10. The trial court's jury instructions fail ed adequately to guide Riley's jurors on the la w, thereby creating a substantial risk that the jurors would impose the death penalty in an arbitra ry and capricious manner in violation of both t he Eighth and Fourteenth Amendments.

611. The use of felony murder to establish bo th Riley's

eligibility for death and the aggravating circumstance warranting imposition of the de ath penalty is arbitrary and capricious in viola tion of the Eighth and Fourteenth Amendments.

12. The District Court abused its discretion in not holding an evidentiary hearing, in denying R iley'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, tho se raising Batson and Caldwell violations (claims numb ered 1 and 5 above). On March 5, 2001, the full court gran ted 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 dir ect the District Court to grant the writ of habeas corpus. 1

The District Court exercised subject matter jurisdi ction 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 pe remptory challenges to strike black jurors in violation of t he Equal Protection Clause of the Fourteenth Amendment, and second, that the prosecutor's statements to the jur y in his opening argument at sentencing misled the jury rega rding

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1. Our en banc order vacated the panel opinion and judgment in full. We will reinstate the portion of the panel opinion aut hored by Judge Alito that disposed of Riley's ten other claims, and appe nd it hereto as Appendix A.

7its 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 Equ al Protection Clause by using its peremptory challenge s to strike all three prospective black jurors from the jury panel because of their race, thereby leaving no black jur or 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 tria l court. See Riley VIII, 1998 WL 172856, at *15. We do not a gree.3 The Delaware Supreme Court concluded on Riley's dir ect appeal "that no Sixth Amendment peremptory challeng e claim was fairly presented to the Trial Court," and also held, in the alternate, that Riley's Batson claim f ailed on the merits. Riley I, 496 A.2d at 1010. However, the Supreme Court of the United States has since made c lear that, "[i]f the last state court to be presented wi th a particular federal claim reaches the merits, it rem oves any bar to federal-court review that might otherwise ha ve been available." Ylst v. Nunnemaker, 501 U.S. 797, 801 ( 1991).

In his memorandum opinion granting Riley's motion f or a post-conviction evidentiary hearing, the Superior C ourt

___________________________________________________ ______________

2. Although Riley's trial occurred several years be fore 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 (3 d Cir. 1994).

3. Much of the discussion of procedural bar is take n from the opinion of Judge Alito from the panel opinion that was vacated . See Riley IX, 2001 WL 43597, at *2-*6.

8hearing judge stated that he did not think the Stat e

Supreme Court would maintain its position that Rile y 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 consid ered and rejected Riley's Batson claim on the merits. See Ri ley IV, App. at 887-891. On appeal, the Delaware Supreme Co urt affirmed the hearing judge's decision, using langua ge that expressly refers to the Superior Court's rejection of Riley's

Batson claim on the merits. See infra note 9. Moreo ver, 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 the re no reaffirmation of its prior holding concerning proce dural 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) (concludin g that habeas claim was not procedurally barred where stat e court rejected the claim on the merits notwithstanding it s observation that allegations "could have been raise d [on] direct appeal").

If the Delaware Supreme Court had continued to beli eve at the time of its most recent decision that Riley' s Batson claim was foreclosed for failure to make a proper o bjection at the time of trial, it seems likely that the Cour t would have made that point expressly, instead of affirmin g 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 f oreclosure. Thus, we interpret the decision of the Delaware Sup reme Court in Riley V (its most recent) to be a rejectio n of Riley's Batson claim on the merits. Accordingly, Riley's Ba tson claim is not procedurally barred and we proceed to examine

its merits.

___________________________________________________ ______________

4. In Baynard, the Court held that the defendant su fficiently raised an objection to the State's peremptory challenges whic h resulted in an all white jury being impaneled where defendant "noted t he race of each black against whom the State exercised a peremptory challenge," "moved the Court to refuse the peremptory challenges again st 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.

92. Batson v. Kentucky

In Batson, the Supreme Court reiterated the well-se ttled principle that the Equal Protection Clause prohibit s discrimination on account of race in selection of b oth the venire and the petit jury. See 476 U.S. at 88. This principle,

which dates back at least as far as Strauder v. Wes t Virginia, 100 U.S. 303 (1880), recognizes that raci al 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 c ould reexamine the evidentiary burden its opinion in Swa in v. Alabama, 380 U.S. 202 (1965), had placed on a crimi nal defendant who alleged that the State improperly use d its peremptory challenges to exclude jurors based on ra ce. In Swain, the Court had held that a defendant could sa tisfy a prima facie case of purposeful discrimination by sh owing that a prosecutor, "in case after case, whatever th e 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 qualif ied jurors by the jury commissioners and who have survi ved challenges for cause, with the result that no Negro es ever serve on petit juries." Id. at 223. The Batson Cour t noted that many lower courts interpreted Swain to hold "t hat 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 Cou rt in Batson recognized that this standard had "placed on defendants a crippling burden of proof " that resul ted in "prosecutors' peremptory challenges [becoming] larg ely immune from constitutional scrutiny." Id. at 92-93 (footnote omitted). Accordingly, it rejected the Swain eviden tiary

formulation.

In the jurisprudence that has evolved following Bat son, the inquiry has been characterized as a three-step one.

10Batson stated that "a defendant may establish a pri ma facie

case of purposeful discrimination in selection of t he 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 r acial discrimination (step one), the prosecution must art iculate a race-neutral explanation for its use of peremptory challenges (step two). If it does so, the trial cou rt 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 moti vation 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 prospecti ve black jurors from the venire, "result[ing] in an all-whit e jury sitting on a first degree murder trial involving a black defendant and a white victim." Riley III, 1988 WL 1 30430, at *2. The hearing judge then conducted an evidenti ary hearing. The State proceeded to step two of the Bat son inquiry by offering race-neutral justifications for its use of the peremptory challenges to strike Ray Nichols, Lo is Beecher, and Charles McGuire, each of whom was blac k.

Liguori, the lead prosecutor at trial and the State 's principal witness at the post-conviction relief hea ring, 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 t hat 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 unfortunate ly the record doesn't reflect this, who was not, in my par ticular

11mind, not certain with regard to being able to retu rn a

verdict for death." App. at 797-798 (emphasis added ). As Liguori explained, "there was a pause and a signifi cant 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 s truck her because of her response to the court that she d id not think she could impose the death penalty. App. at 8 04.

As for McGuire, Liguori explained that he used the peremptory challenge because he presumed McGuire wo uld 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 reques ted-- remember, this was going to be around Christ mas also.

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

Mr. McGuire himself had requested the Court to

excuse him. The Court didn't. When he went t hrough his inquiry, we asked the judge to excuse hi m for cause. The judge said no. It then left us wi th no alternative but to think he would not give h is full time

and attention and therefore we struck Mr. Mc Guire.

App. at 801.

On cross-examination of Liguori, Riley's attorney introduced Liguori's handwritten notes from voir di re. Written next to McGuire's name was the word "Out." App. at 832. Among the names on the same page was that o f Charles Reed, a white man who actually served on Ri ley's jury. Next to Reed's name on the sheet was written, "works

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

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

testified that he had no recollection of Reed whats oever. Liguori agreed, however, that the notation next to Reed's name indicated that Reed had requested to be excuse d 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 st ate post-conviction hearing. McGuire testified that, in contrast to Liguori's testimony, he had never asked to be ex cused from the jury. McGuire specifically denied ever ind icating to either the prosecutors or the court that he was unw illing 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 ex cused and that his supervisor did send a letter to the tr ial judge requesting he be relieved from jury duty. App. at 8 60. According to McGuire, in response to his supervisor 's letter, he was questioned by the trial judge whom he advise d of his willingness to serve on the jury. App. at 849-8 50.

Riley also presented evidence that in addition to t he prosecutor's striking of the three prospective blac k jurors in his trial, the Kent County Prosecutor's office used its peremptory challenges to remove every prospective b lack juror in the three other first degree murder trials that occurred within a year of his trial.5 Counsel for t he State objected to the admission of this evidence, arguing that

___________________________________________________ ______________

5. The three other trials were:

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

b. Judith McBride--state struck all three pr ospective black jurors, five whites, plus two other jurors whose rac e has not been identified; and

c. Daniel Pregent--state struck the lone pro spective black juror

and four whites.

Although the race of two of the jurors who were ult imately impaneled has not been identified, the State does not contest Riley's assertion that every impaneled juror was white.

13evidence of general prosecutorial practices was rel evant

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 follo wed some kind of pattern that exists in the prosecutorial ac tions in first degree murder cases involving minority defend ants and it is not segregable or severable from past history ." App. at

872.

Counsel for the State then requested and received a n additional four weeks in which to "attempt to prepa re the

same sort of information which . . . would be contr ary to the representations made by [Riley's counsel's] information." App. at 874. He informed the court th at he had not yet been able to obtain materials from othe r 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 Gene ral,

that stated in full: "Please be advised that the St ate 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 (D ec. 16, 1999), Ex. B (on file in the Clerk's office).

The hearing judge ultimately accepted the State's r aceneutral explanations and rejected Riley's Batson c laim, without mentioning any of the evidence introduced b y 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 w e look to

28 U.S.C. S 2254 for our standard of review of find ings of fact. See id. Riley's federal habeas petition was f iled before

the enactment of the Antiterrorism and Effective De ath Penalty Act ("AEDPA") of 1996, 110 Stat. 1214, and therefore AEDPA does not govern our standard of rev iew. See Lindh v. Murphy, 521 U.S. 320 (1997). Instead, under

14the federal habeas statute in effect at the time Ri ley filed

his petition, we must presume correct the state cou rt's findings of fact unless one of the statutory except ions 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 correctnes s. 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 su pported by the record," 28 U.S.C. S 2254(d)(8) (1988), and bec ause he "did not receive a full, fair, and adequate hearing in the State court proceeding," 28 U.S.C. S 2254(d)(6) (19 88). Because we resolve Riley's appeal pursuant to S 225 4(d)(8), we need not consider Riley's latter argument.

The limited nature of review underlying the require ment

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 correctnes s recognizes that "as a matter of the sound administr ation of justice, one judicial actor is better positioned th an 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 simp ly disagree with the state court before rejecting its factual

determinations." The Court further noted that the s tatutory 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 ju dge's factual findings were based primarily on determinat ions regarding the credibility of Liguori at the post-co nviction hearing. Such findings are generally owed "even gre ater deference" because "only the trial judge can be awa re of the

variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and beli ef 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 .. . l argely will turn on evaluation of credibility, a reviewing cour t ordinarily should give those findings great deferen ce.").

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

nullity." Caldwell v. Maloney, 159 F.3d 639, 651 (1 st Cir. 1998) (hereafter "Maloney"). In Purkett, the Suprem e Court stated that "implausible or fantastic justification s may (and probably will) be found to be pretexts for purposef ul 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 fi ndings based on credibility determinations if the witness has not told a "coherent and facially plausible story" or i f his story is "contradicted by extrinsic evidence." Anderson, 470 U.S. at 575. Thus, we must determine whether there is fa ir support to conclude that the State put forth "a coh erent and facially plausible" explanation of its strikes of the prospective black jurors or whether the State's exp lanations are "implausible." Ultimately, when we review the r ecord at step three of the Batson inquiry, we must decide wh ether the state courts' acceptance of the State's explana tion has

been made after consideration of all the evidence o n 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-neu tral reasons for striking the black jurors. It did so pr imarily through Liguori's testimony. Riley does not argue t hat the State failed to meet its step two burden. His conte ntion 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 doub ted whether Nichols would be willing to return a death

sentence. He based this doubt on his clear recollec tion of "a significant pause" by Nichols when asked about the death penalty. App. at 798. Yet, as Liguori himself admit ted in his testimony, the record reflects no such pause and no such uncertainty on Nichols' part.

At voir dire, Nichols had answered the two question s posed by the court regarding the jurors' willingnes s to sentence a defendant to death in a manner seemingly favorable to the prosecution:

16Q: Do you have any conscientious scruples ag ainst

finding a verdict of guilty where the punish ment might be death or against imposing the death penal ty even if

the evidence should so warrant?

A: No.

Q: Regardless of any personal beliefs or fee lings that you may have, if the evidence justified it, would you be able to find a person guilty of murder in th e first degree and would you be able to impose the d eath penalty.

A: I think so.

App. at 226-227. A prospective white juror, Angelo LePore, provided the exact same answers to the court's ques tions, yet he was not stricken and actually served on Rile y's jury. App. at 231-232. The record provides no basis for distinguishing Nichols from LePore.

Moreover, despite Nichols' alleged pause, the prose cutors

did not ask the trial court to remove Nichols for c ause or to inquire further into his willingness to award the d eath penalty, even though the trial judge excused six venirepersons for cause because they said they coul dn't, or believed they couldn't, impose the death penalty, A pp. at 234-237, 245-246, 265-271, and two more who respond ed equivocally, App. at 273-276, 282-286. This raises the question why, if Nichols actually did pause "a sign ificant pause," the State did not seek to have him removed for cause like the others. The record does not show (an d the State does not claim) that the prosecutors ever exp ressed to

the trial court the concern that Nichols would be u nwilling to impose the death penalty, that the court indepen dently expressed concern, or that any of the contemporaneo us notes kept by the prosecutors as to some of the jur ors reflected either the existence of a pause or the co ncern 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. 199 3) (stating that courts are not bound to accept race-n eutral reasons that are either unsupported by the record o r refuted by it).

17Similarly, the record offers little basis for disti nguishing

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 bec ause McGuire asked to be excused from jury service and h e feared that McGuire would be an inattentive juror. 6 Liguori, who claimed to remember Nichols' pause six years la ter without benefit of any assistance, testified that h e 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 o ver Reed's place on the jury. Based on this record evid ence, there is no basis for distinguishing between McGuir e's

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

Although the State strains to distinguish the two j urors by arguing that McGuire's desire to be excused from jury service was stronger than Reed's desire because McG uire's employer had intervened to seek his release, its ef fort is not persuasive. First, Liguori did not testify before t he hearing judge that this was the basis for the strike; in fa ct, Liguori testified to the opposite -- that McGuire himself h ad asked to be excused from jury service. Second, even if Mc Guire

would have been inattentive for work-related reason s, 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-rel ated 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 tha n for other reasons, which is the basis for the State's p osition that McGuire's desire to be excused was stronger th an Reed's desire to "want[ ] off," documented in Liguo ri's

contemporaneous notes.

With regard to both Nichols and McGuire, the state courts failed to mention in their opinions the weak nesses in the State's explanations, and therefore failed to c omplete the required step three Batson inquiry.

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6. In fact, McGuire testified at the post-convictio n hearing that he never asked to be excused from the jury.

186. Statistical Evidence

In addition to Riley's challenge to the State's exp lanations at the post-conviction hearing for striking Nichols and McGuire by pointing to inconsistencies in the recor d, Riley introduced evidence that the prosecution used its peremptory challenges to strike every prospective b lack 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 t wo white murder defendants.7 In these four trials (inc luding Riley's), the prosecution struck all 8 prospective black jurors who were called, i.e., 100%. By contrast, th e prosecution used its peremptory challenges to strik e only 23 of the 71 prospective white jurors, or 32%. Afte r the prosecution used its peremptory challenges to strik e 23 whites, 8 blacks, 1 Indian, and 2 jurors of unident ified race, the remaining racial makeup of the actual jur ors 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 t he

number of blacks that would have served had the Sta te used its strikes in a racially proportionate manner . In the four capital cases there was a total of 82 potentia l jurors on the venires who were not removed for cause, of whom eight, or 9.76%, were black. If the prosecution had used i ts peremptory challenges in a manner proportional to t he percentage of blacks in the overall venire, then on ly 3 of the 34 jurors peremptorily struck (8.82%) would have be en black and 5 of the 48 actual jurors (10.42%) would have been black. Instead, none of the 48 jurors were bla ck.

Admittedly, there was no statistical analysis of th ese figures presented by either side in the post-convic tion proceeding. But is it really necessary to have a sophisticated analysis by a statistician to conclud e that

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

trials of the two white defendants is relevant to e stablishing 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 unconstit utional regardless of

the race of the defendant).

19there is little chance of randomly selecting four c onsecutive

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 coul d have been due to pure chance. Nor does it suggest that R iley's evidence does not accurately represent Kent County prosecutorial practices. Moreover, not once has the State offered an explanation for its use of peremptory ch allenges to strike all prospective black jurors in the four consecutive capital cases. The State has never sought to explai n the data by variables other than race. Nor has it sough t to rebut Riley's evidence.

The failure of the State to produce evidence from o ther 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 Ri ley's evidence that showed the systematic exclusion of bl acks from the petit juries in Delaware. In fact, having stated that

this evidence was introduced to demonstrate that"th e exercise of the peremptory challenges in this parti cular 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 judg e discussed neither the statistics nor the State's fa ilure to explain them. Thus, once again by overlooking and i gnoring a significant segment of Riley's evidence, the hear ing judge's opinion does not satisfy the crucial third step of the Batson analysis.

7. Analysis

At the conclusion of the evidentiary post-convictio n hearing, the hearing judge issued a written opinion in which he addressed the prosecutors' reasons for str iking the three black jurors, as required by step three o f the Batson inquiry. He stated:

The State in this case provided race-neutral explanations for the peremptory challenges o n all three black jurors. After examining the demeanor a nd

20credibility of the witnesses and prosecutors at the

evidentiary hearing, I believe the State exe rcised its peremptory challenges entirely within the st rictures of

the Fourteenth Amendment. No factual basis e xists for a successful claim of an equal protection vi olation. 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 b asis 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 except ions 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 t he distinctions actually offered by the State in the s tate court, not on all possible distinctions we can hypothesize . See Mahaffey v. Page, 162 F.3d 481, 483 n.1 (7th Cir. 1 998) (concerning itself with actual reasons, not apparen t 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 evident iary hearing do not form part of the prosecutor's explan ation."). Apparent or potential reasons do not shed any light on the prosecutor's intent or state of mind when making th e peremptory challenge. As to both Nichols and McGuir e, 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 bec ause 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 const itute a race-neutral explanation). And the credibility of L iguori's lack of memory is somewhat in doubt considering tha t he claimed to remember Nichols' "significant pause." T he only distinction between the two jurors that is apparent from the

21record is that McGuire, who was struck, is black; R eed,

who was retained, is white.

A comparison between a stricken black juror and a sitting white juror is relevant to determining whet her the prosecution's asserted justification for striking t he black juror is pretextual. See McClain v. Prunty, 217 F.3 d 1209, 1220 (9th Cir. 2000) ("A prosecutor's motives may b e revealed as pretextual where a given explanation is equally applicable to a juror of a different race who was n ot 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 st ruck and jurors accepted. Where the principal difference bet ween them is race, the credibility of the prosecutor's e xplanation is much weakened."); Maloney, 159 F.3d at 653 ("[A] s a general matter, comparisons between challenged juro rs and similarly situated, unchallenged jurors of a differ ent race or gender can be probative of whether a peremptory cha llenge 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 inv oked only to eliminate African-American prospective juro rs and not others who also have that characteristic."); Tu rner, 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 per emptory challenges. See, e.g., McClain, 217 F.3d at 1224 (c oncluding that Batson was violated where two of six proffered raceneutral explanations were "pretextual based upon comparisons of voir dire responses by non-black jur ors who were seated without objection by the prosecutor," a nd other four were contrary to the facts); Turner, 121 F.3d at 1253- 54 (holding that the district court clearly erred i n finding that prosecutor did not discriminate in jury select ion where sole justification offered for striking a black jur or applied equally to non-stricken white juror); Devose v. Nor ris, 53

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

violated where the only justification prosecutor of fered 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 jur ies); Jones v. Ryan, 987 F.2d 960 (3d Cir. 1993) (rejecti ng 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); Garr ett v. Morris, 815 F.2d 509, 514 (8th Cir. 1987) ("The pro secutor's rationale [for striking three black jurors]-- the b lacks' purported lack of education, background, and knowle dge -- seems clearly pretextual in light of his decision n ot 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 th em as well, except, of course, that Nichols, who was stru ck, 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 expla nation for a particular challenge need not necessarily be pigeon -holed as wholly acceptable or wholly unacceptable. The re lative plausibility or implausibility of each explanation for a particular challenge . . . may strengthen or weaken the assessment of the prosecution's explanation as to o ther challenges." United States v. Alvarado, 923 F.2d 25 3, 256 (2d Cir. 1991). In short, "[a] reviewing court's le vel of suspicion may . . . be raised by a series of very w eak explanations for a prosecutor's peremptory challeng es. The whole may be greater than the sum of its parts." Ma loney,

159 F.3d at 651.

It is in this connection that we must turn to the statistical evidence presented by Riley of the patt ern of the State's use of its peremptories. It may be that suc h evidence, standing alone, would not be sufficient t o show intentional discrimination in selection of juries b y the Kent County Prosecutor's office in the year in question. It is, however, particularly troublesome because the State failed

23to 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 th at 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, th e 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 nega tive inference that flows from its failure to provide th e rebuttal data, and that inescapable inference is that the Ke nt County Prosecutor's office did not want blacks on i ts juries in first degree murder cases.

The Supreme Court in Batson recognized the signific ance of evidence of systematic exclusion of blacks in ju ry selection. It stated, "Proof of systematic exclusio n from the venire raises an inference of purposeful discrimina tion because the `result bespeaks discrimination.' " Bat son, 476 U.S. at 94-95 (quoting Hernandez v. Texas, 347 U.S. 475, 482 (1954)). It likewise recognized the relevance o f 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 i n venire pool were black). On the record before us, it is di fficult to avoid drawing the inference that the Kent County Prosecutor followed a pattern of using peremptory challenges in a racially discriminatory manner. 8

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

Batson violation in the other three trials. Defenda nts Daniel Pregent and

Judith McBride were both tried before Batson was de cided, and thus were not likely to have raised a Batson objection, particularly since neither was black and the Supreme Court did not ext end the Batson holding to apply regardless of whether the defendan t 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 no t challenge the

24Despite the State's efforts to explain away the var ious

parts of the evidentiary picture Riley has presente d, the record as a whole squarely contradicts its position . The questionable nature of Liguori's explanations for t he strikes of McGuire and Nichols must be evaluated not only i n light of the uncontested evidence of the use of peremptor y strikes in Kent County but also in light of the nat ure 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 occ asion, which was the State's first opportunity to defend t he use of its peremptory challenges in Riley's trial, the Sta te did not offer a single race-neutral explanation, not even a s an alternate argument; instead, it claimed that it was permissible -- even socially desirable -- to exclud e jurors based on what it called "group association," App. a t 896, which a Justice of the Delaware Supreme Court was reported to have recognized as a "euphemism for rac e," App. at 1321. In its brief to the Delaware Supreme Court, the State interpreted Swain v. Alabama, 380 U.S. 20 2 (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 den ies that the prosecutor [in Riley's case] exercised any of h is 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 St ate will argue that even if such was the case, no constituti onal command would have been contravened." App. at 896 (emphasis added).

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composition of the jury in the state courts and thu s the racial makeup

of the venire was not available when this court dec ided the appeal. See Deputy, 19 F.3d at 1491-93. Moreover, the Supreme C ourt in Batson made clear that "a defendant may make a prima facie showing of purposeful racial discrimination in selection of th e venire by relying solely on the facts concerning its selection in his case." Batson, 486

U.S. at 95 (emphasis in original).

25Before this court, the State contends that Swain w as

"good law" at the time, so reliance on that case ca nnot be viewed as a concession that some of its peremptory challenges may not have been race-neutral. Tr. of O ral Argument at 31. Yet, significant for purposes here is that in response to Riley's challenge to its use of perempt ories, the State never denied on direct appeal that race playe d a role in its use of peremptory challenges; it only claime d that it did not exercise them solely based on race. Its jus tification 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 l ed 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 findin gs of fact does not apply when those findings are not sup ported 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 th e hearing judge did so, we must defer. Tr. of Oral Argument a t 41. Although the State concedes that we must concern ourselves under Rushen, 464 U.S. at 121 n.6, with w hether there is probative evidence in the record to suppor t the state court's findings, it then seems to argue that since the findings are primarily based on credibility determi nations, the mere fact that Liguori testified is sufficientl y probative to support these determinations.

Certainly it is not required that a federal court s hould defer to a state court's findings of fact on habeas review as long as the state court accepted the prosecutor's r aceneutral explanation, no matter how incredible, contradicted, and implausible it may be. On the con trary, several courts of appeals have acknowledged that th e traditional level of deference should not govern ap pellate review when a prosecutor's explanations are obvious ly not credible. See McClain, 217 F.3d at 1221 (" `[I]mpla usible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.' ") (quo ting Purkett, 514 U.S. at 768); United States v. Griffin , 194 F.3d 808, 826 (7th Cir. 1999) (noting that a basis for r eversal of state court exists where "the reason given [by the

26prosecutor] is completely outlandish or there is ot her

evidence which demonstrated its falsity"); Maloney, 159 F.3d at 651 (stating that serious questions of pret ext arise when the facts in the record are "objectively contr ary to" the prosecutor's explanations).

In light of the lack of probative evidence in the r ecord to support the findings that the State exercised its p eremptory challenges at Riley's trial in a race-neutral manne r, we decline to give these findings deference. Such defe rence 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, t he Court of Appeals for the Fourth Circuit deferred to the state court's findings on a Batson claim precisely becaus e the court had that opportunity. It explained,

Indeed, it would be an impermissible exercis e in hindsight for us now to upset the trial cour t's credibility determination in evaluating the prosecutor's explanation. And as the district court corre ctly observed, the `retrospective parsing of the `curricula vitae' of the jurors' is no substitute for t he 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 h undred pages of trial transcripts, and was able to observe the demeanor and hear the responses of the prosp ective jurors in court. This insight enabled the tr ial court to compare the prosecutor's explanation with wh at occurred at the bench and in open court. Mos t significantly, the trial court was able to o bserve the prosecutor's demeanor and conduct and evalua te 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 w ere made by the hearing judge six years after the State had exercised its peremptory challenges before the tria l judge and the hearing judge neither witnessed the challen ges first-hand nor examined the witnesses at the time t he

27challenges were exercised, he did not note or comme nt on

some of the troublesome inconsistencies in the Stat e's raceneutral explanations.

Deference in a Batson case must be viewed in the co ntext 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 a nd evaluates all evidence introduced by each side (inc luding all evidence introduced in the first and second steps) that

tends to show that race was or was not the real rea son and

determines whether the defendant has met his burden of persuasion." McMillon, 14 F.3d 948, 953 n.4 (4th Ci r. 1994); see also Jordan, 206 F.3d at 200 (stating th at step three of Batson inquiry requires examination of "al l 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 t here no indication on the record that the hearing judge eng aged in the required analysis, but there is no indication t hat the Delaware Supreme Court did so, by making findings w hich

also would have been entitled to deference. See Sum ner v. Mata, 449 U.S. 539, 547 (1981). The omission of the crucial step of evaluating the State's proffered explanatio ns in light of all the evidence can be gleaned by the absence o f the word "pretext" in both the opinion of the hearing j udge and in the opinion of the Delaware Supreme Court. Nor i s there any language in either opinion that suggests, whate ver 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 Bat son claim contained no factual findings relating to the diffe rent prongs of the Batson analysis, to which we could ac cord 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 wro te his opinion. It states in its supplemental brief that"[ i]t may well have been better for the state judge to have f urther

28explained his decision . . . [b]ut the federal habe as 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 cou rts 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 withi n a year of Riley's trial, and recognizing the State's posit ion in this very case that use of peremptories for racial reaso ns 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). T here the court acknowledged that deference is owed to the st ate 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 withou t ever taking into account the totality of the circumstanc es on the record." Id. at 920. It noted that Batson requires "that, one way or another, a trial court . . . consider all re levant circumstances before it issues a final ruling on a defendant's motion." Id. at 921. In a compelling st atement 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 se cond step of a Batson inquiry after Purkett v. Elem, i t is more important today than ever that the Batson in quiry not omit consideration of the totality of the ci rcumstances,

both for itself and as it relates to the eva luation of similarly situated potential jurors. . . . U nder the pre- AEDPA standards that apply here, we agree wi th the district court that [defendant's] rights und er Batson

were denied.

Id. at 921-22.

The state courts in this case rejected Riley's Bats on claim without discussing any of the ample evidence that t hrows into question the explanations offered by the prose cutor for striking two of the black jurors and there is nothi ng

29relevant in the record that might otherwise support the

state courts' decisions. Thus, we do not know why t he state courts found the State's explanation was plausible and credible in light of the other evidence. It is beca use of the state courts' omission of a requirement under the t hird step of the Batson inquiry -- of an ultimate determinati on on the issue of discriminatory intent based on all the fac ts 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 accor d Riley his constitutional right to a jury selected on a race-n eutral basis, we must not shirk to so hold. As Riley's law yer 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 pretextua l, what case, short of a prosecutorial mea culpa would do t he job?" Tr. of Oral Argument at 3.

After consideration of all the arguments and the re cord, we are compelled to conclude that the prosecution v iolated Riley's constitutional rights under Batson, and tha t 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 acu te in our respective views of the requirements of step th ree of the Batson inquiry. Although the Dissent takes issue wi th much of the majority opinion, its principal argumen t is that

in a habeas case the federal court must defer to th e state courts' findings, in this case the finding that the prosecutor did not use the State's peremptory challenges strik ing black jurors in a manner that violated the principles of Batson. We have already discussed in detail when a state co urt's findings are entitled to deference and when they ar e not, focusing on the exception in S 2254(d)(8) for the s ituation where the state court's findings are "not fairly su pported by the record." See supra Part II.A.4 (Standard of Rev iew). It is manifest that a finding that Batson has been satisf ied must be made in accordance with the process enunciated i n that

case.

30The Dissent agrees that under step three of the Bat son

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 cour t to examine the prosecutor's proffered reasons for stri king the minority jurors against the evidence presented by t he defendant and/or the weaknesses in the prosecutor's reasons. See, e.g., McMillon, 14 F.3d at 953 n.4; J ordan,

206 F.3d at 200. The Dissent sees no reason to beli eve that the Delaware courts did not do so in Riley's case, even though the opinions of the Delaware courts rejectin g 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 Bat son inquiry. We, therefore, proceed to try to ascertain whether the hearing judge and the Delaware Supreme Court ma de their findings that there was no purposeful discrim ination 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 t he need to engage in the step three inquiry is open to ques tion on this record. Nothing in the discussion of the heari ng judge suggests that the court performed the necessary eva luation. See Riley IV, App. at 887-91. The hearing judge, us ing language taken from Riley I rather than Batson, und erstood that his obligation was to consider the prosecutor' s proffered explanation for striking the jurors and"t hen . . . be satisfied by that neutral explanation and make a ruling to that effect." App. at 888. Accordingly, followin g what he understood to be the applicable law, the hearing ju dge discussed the prosecutor's proffered reasons for th e two strikes at issue here, and found that the prosecuto r was credible. See App. at 889 ("the State provided a cr edible, race-neutral reason for exercising its peremptory challenge") (emphasis added); id. ("The State artic ulated a specific race-neutral ground for challenging juror McGuire. . . .") (emphasis added). Throughout, the hearing j udge made clear that he understood that "[t]he test appl ied 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

31the evidence submitted by Riley, which is the essen ce of

step three.

It is even more questionable whether on appeal from that decision the Delaware Supreme Court fully appreciat ed the requirement. Its entire discussion of this issue is fully set forth in the margin.9 In this one paragraph, the Co urt relied on its 1985 decision on Riley's direct appeal where it rejected Riley's challenge to the State's peremptor y 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 conclude d, for the first time, that "use of peremptory challenges to exclude prospective jurors solely upon the basis of race vi olates 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 1 012.

In Riley I, the Court also set out the procedure to be followed10 but nothing in the Delaware Court's laud able

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9. The Court stated:

Riley's next contention, that the State exer cised its peremptory challenges for racial reasons, we find to be simply a renewed attempt to reopen 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 i n Batson, 476 U.S. at 79. In Riley I, we found that Riley's consti tutional 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 n ot 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 Ame ndment fair crosssection requirement of an impartial jury does not de prive a party of the right to exercise peremptory challenges on racial or any other grounds

from a venire that otherwise meets Sixth Ame ndment cross-sectional standards of representativeness). Moreover, we reaffirm our earlier decision sustaining the State's peremptory c hallenges 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 judge32decision requires an inquiry comparable to the Bats on step

three. The Delaware cases at that time appear to ha ve required that the prosecutor provide, or articulate , a raceneutral reason for the peremptory challenges, and t hat the court find the prosecutor to be credible. They do n ot require an evaluation comparable to step three. Therefore, if, as it appears, the Delaware Supreme Court in Riley IV re jected Riley's Batson claim by relying on its earlier opin ion in Riley I, and the Riley I opinion did not require a step t hree inquiry, any assumption that the Court engaged in s uch an inquiry would be unwarranted. Or, to phrase it some what differently, if the state courts' findings to which the Dissent would defer were not made in accordance with the pr ocess required by the United States Supreme Court, defere nce 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 analys is and that it was not necessary for the Delaware courts t o comment on that analysis. We do not suggest that ev ery state court decision that is the subject of a habea s 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 Bat son challenge is not required to comment explicitly on every piece of evidence in the record, some engagement wi th the evidence considered is necessary as part of step th ree of the Batson inquiry.

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determine[s] whether there is a substantial likelihood that the prosecutor is exercising the State's perempt ory challenges on the basis of race. A ruling in favor of the Stat e will end any further inquiry. A ruling in favor of the defendant, however, will shift

the burden to the State to prove that the exerci sed challenges were not racially motivated. To sustain this burden, the State . . . must satisfy the court that its peremptory challe nges 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 o mitted).

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

1999), the Sixth Circuit reviewed the district cour t's rejection of a Batson challenge in a case where one AfricanAmerican juror was seated but two were struck by th e government's peremptory challenges. The Court of Ap peals

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. 19 98), the

same court remanded another case to the district co urt because its analysis of step three of the Batson i nquiry was insufficient. The court stated, in language that co uld be equally applicable here, that "[t]he record before us indicates nothing about the district court's though t 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 circumst ances." Id. at 342. And in Hill, unlike here, the trial cou rt 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 decisi on rather than on habeas review of a state decision, that doe s not detract from the force of the court's understanding of what is required in a Batson inquiry. The process requir ed by Batson, including step three, does not differ if th e prosecutor used the peremptories to strike jurors i n a state trial or in a federal trial. After all, the same Co nstitution applies to both fora.

The Dissent relies almost exclusively on the statut ory presumption of correctness owed to a state court's factual determination made after a hearing on the merits. T his

deference is indeed the fulcrum on which our federa lism turns. Yet in case after case -- and most particula rly in capital cases -- we have found that even applying t he more stringent post-AEDPA standard of review (not applic able here), there are reasons not to accord the usual de ference to the state courts' findings. See, e.g., Jermyn v. Horn, 266

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

deference to state court because it unreasonably ap plied 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 beca use "[a] reasonable application of Supreme Court precedent .

. . requires finding [defendant's] trial was so infecte d 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 thing s, the state court failed to apply the relevant Supreme Co urt precedent of United States v. Cronic, 466 U.S. 648 (1984)).

As we discuss in detail in the immediately precedin g section of this opinion, see supra Part II.A.7 (Ana lysis), the requirement that the state courts faced with a Bats on challenge engage in the critical step three analysi s is not a product of our own creativity but an accepted eleme nt of a habeas court's obligation to examine whether a defe ndant's constitutional right to a race-neutral jury has bee n infringed. See, e.g., Jordan, 206 F.3d at 200; Coul ter, 155 F.3d at 921; McMillon, 14 F.3d at 953 n.4; Jones, 9 87 F.2d

at 967.

The Dissent accords little weight to these authorit ies. But our disinclination to include long string cites doe s not

mean that there are not numerous cases in which the courts, both state11 and federal, have made clear t hat the Batson step three inquiry is not merely a formalist ic one, but an integral element of the required analysis. I n addition to Harris and Hill, the Sixth Circuit cases cited a bove, the Second Circuit has also made this point. In Barnes v. Anderson, 202 F.3d 150 (2d Cir. 1999), the court or dered a

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11. See, e.g., MacKintrush v. State , 978 S.W.2.d 2 93, 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 fanc iful, . . . [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).

35new trial because the trial court had denied a Bats on

motion "without explicit adjudication of the credib ility of the non-movant's race-neutral explanations for the chal lenged strikes." Id. at 156 (emphasis added).

The Dissent suggests that we exceed our authority a s a habeas court when we comment on the failure of the state courts reviewing Riley's Batson challenge to provid e a reasoned statement for their rejection of Riley's c hallenge. Although the state court is not required to "commen t on all of the evidence" before it, Dis. Op. at 89 (emphasi s added), an adequate step three Batson analysis requires som ething more than a "terse," Harris, 192 F.3d at 588, "abru pt," Hill, 146 F.3d at 342, comment that the prosecutor has sa tisfied

Batson.

Similarly, we do not think that a habeas court may reject a state court's ruling on a Batson claim simply bec ause "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 b asis on

this record to determine if the state courts undert ook, or even were aware of, the required Batson step three inquiry. The Fourth Circuit expressed the same thought in Un ited States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991), wh ere it stated: "[T]he failure of the district court to rul e at each step of the Batson analysis deprives . . .[a review ing] court

of the benefit of its factual determination and the reasons supporting its ultimate holding." And its cases mak e clear that such review requires that the trial court's ru lings must be clearly articulated. See, e.g., Jones v. Plaster , 57 F.3d 417, 421 (4th Cir. 1995) ("The ruling of the distri ct court is so unclear that we cannot determine on the present record

whether the ultimate conclusion of the district cou rt to overrule [the Batson] objection may be sustained.") ; United States v. Blotcher, No. 95-5590, 1996 U.S. App. Lex is 19835, *11-*12 (4th Cir. August 7, 1996) (unpublish ed) ("We find the record so unclear that we cannot dete rmine 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

36discussed. We take this opportunity, however, to re mark

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 fi rst degree murder cases, including Riley's, tried in the count y the same year. Because of the lack of information about some of those cases, we refrained from suggesting that s uch evidence, standing alone, would show intentional discrimination but pointed out that it was the Stat e that sought an opportunity to produce supplementary evid ence. The following correspondence, which was preceded by the oral dialogue quoted previously in its opinion, sup ra at typescript page 18, clarifies the situation.

On January 9, 1989, the hearing judge wrote to coun sel:

This will confirm the conclusion of the pos tconviction relief hearing in the above-captioned matter . It is the Court's understanding that the defendant's presentation and all rebuttal by the State a vailable on the date of the hearing has been completed. However, at the State's request, the Court did hold t he record open on the hearing to be supplemented by a rebuttal summary of jury composition in State perempt ory challenges in first degree murder trials in Kent County over a determined period of time if the Stat e wished to supplement the record.

Further, the hearing record will close on J anuary 30, 1989; the Court expects proposed findings of fact and conclusions of law from both parties no late r than February 6, 1989.

See Letter to this Court from Thomas J. Allingham I I (Dec. 16, 1999), Ex. B (on file in the Clerk's office) (e mphasis

added).

Some three weeks later, on January 27, 1989, and ju st before the hearing record was to close, the State a dvised

the court as follows:

Please be advised that the State will not s upplement the record of the post conviction relief hea ring held in the above-captioned matter on December 30, 1 988.

Id.

37Thus 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 suppleme nt the record with evidence as to jury composition, surpri singly and without explanation, declined to produce eviden ce that blacks served on juries in first degree murder case s in the county in the same period that Riley was tried befo re an allwhite jury. The presumption that could be drawn fro m these facts is one of the circumstances that should have been evaluated by the Delaware courts in the requir ed 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. Ril ey produced evidence of the statistics of the racial c omposition of the jurors in the four cases, the State requeste d the additional time to provide counter-evidence, and th e 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 S tate's letter that it would produce no evidence was dated three days before the record closed.

Further, the Dissent's attempt to analogize the sta tistical evidence of the use of peremptory challenges to str ike black jurors to the percent of left-handed presidents req uires

some comment. The dissent has overlooked the obviou s fact that there is no provision in the Constitution that protects persons from discrimination based on whether they a re right-handed or left handed. To suggest any compara bility to the striking of jurors based on their race is to minimize the history of discrimination against prospective b lack 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 eviden ce. It relies merely on the credibility finding of the hea ring judge, a finding that we cannot be sure was made following consideration of all the evidence presented by Rile y and the

38weaknesses he pointed to in the prosecutor's proffe red

reasons.

9. Appropriate Remedy

When counsel for the State was asked at the en banc argument whether, if this court were to find a Bats on violation, the State would rather the relief be the grant of a new trial or the remand for a federal evidentiary h earing, counsel candidly responded:

MR. MEYERS: If we -- the answer is yes. If, and if we -- I mean, if the court imagines, has all th ese problems with the hearing that was done six years aft er the trial, those problems are simply going to be magnif ied, amplified by exponential order of magnitude 20 years after the trial. I mean if you think that pe ople have memory problems six years, how much worse ar e you going to be 20 years later?

Tr. of Oral Argument at 46. Riley's counsel concurr ed, stating that a federal habeas judge would be no bet ter off than the hearing judge was in 1988.

We agree. Much of the Dissent's opposition is direc ted to the majority's failure to remand to the District Co urt for a hearing but the Dissent may have overlooked that bo th parties preferred a new trial to a remand should th is court find that the state proceedings were not shown to b e consistent with the requirement of Batson. It is hi ghly unlikely that the witnesses can provide more illumi nating testimony thirteen years later. Moreover, there are no factual issues that can be solved by a federal evid entiary hearing.12 Although the Dissent chooses to characte rize the

result in this case as a federal court's substituti on 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

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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 fi nding regarding the delay in the proceedings was not entitled to the pr esumption of

correctness but directed the district court to dete rmine in a federal habeas evidentiary hearing the reason for the delay

.

39possible factual issue cannot be resolved by a hear ing,13

and the statistical evidence, which might be the su bject of some analysis at such a hearing, is relevant but no t dispositive to our decision.

The question of the remedy a habeas court should or der 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 fe deral court of appeals was faced with a comparable situat ion as

that before us. Defendant was convicted in state co urt 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 fe deral courts

did not find that Batson had been violated but the Second Circuit took the opportunity to consider the approp riate 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 tr ial court's ability to make a reasoned determination of the prosecutor's state of mind when the jury was select ed. Where such demonstrably exists, there must be a new

trial." Id. at 121.

The Brown court cited United States v. Alcantar, 89 7 F.2d 436, 438-39 (9th Cir. 1990) (ordering a new trial b ecause there was inadequate evidence to determine, as part of Batson analysis, why the jurors were struck). And i n Barnes, 202 F.3d at 157, the Court of Appeals order ed a new trial rather than a remand for a hearing on the Batson issues because the trial judge had died and the cou rt was "not confident . . . that further proceedings would . . . shed reliable light upon the voir dire.") (quotation omi tted).

The circumstances of this case are closely analogou s to those in Hardcastle v. Horn, ___ F. Supp. 2d ___, 2 001 WL

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13. Although neither party has focused on it, there is an apparent factual discrepancy between McGuire's testimony tha t he did not request to be excused, App. at 850, and the trial judge's s tatement that McGuire came to see him and requested to be excused, App. a t 250. It is agreed that McGuire saw the trial judge, but McGuire testi fied 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 we re important to do so.

40722781 (E.D. Pa., June 27, 2001), where the distric t court

found a Batson violation but dismissed the notion o f ordering a federal evidentiary hearing instead of a new trial in state court, commenting that "[n]early twenty ye ars have passed since Petitioner's trial, such a length of t ime 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 tria l is especially appropriate where as here, the passage o f time makes a new evidentiary hearing on the petition impossible." Id.14 Likewise, we see no reason to or der 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 fo r 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 th e en banc court, Riley argues that the prosecutor and th e trial judge made remarks to the jury during the penalty h earing that misled the jury as to its sense of responsibil ity in the sentencing process, in violation of the principles set forth in Caldwell v. Mississippi, 472 U.S. 320 (1985). In Ca ldwell, the Supreme Court held that prosecutorial comments at sentencing violated the Eighth Amendment by leading the jury to believe that ultimate responsibility for de termining the appropriateness of the death sentence rested wi th the state supreme court. See 472 U.S. at 333.

The Delaware Supreme Court, on direct appeal, rejec ted Riley's Caldwell claim, commenting that"[i]n no sen se may

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14. The Hardcastle case is on appeal to this court, and our reference to this limited aspect of the decision, which is appli cable here, is not intended to reflect an opinion as to the merits of the District Court's

decision on the Batson issue.

41it reasonably be said that the prosecutor was eithe r

misstating the law, misleading the jury as to its r ole, or minimizing its sentencing responsibility." Riley I, 496 A.2d at 1025. The District Court agreed, thus denying Ri ley 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. Se e Miller v. Fenton, 474 U.S. 104, 112-14 (1985); see also Mo ore v. Gibson, 195 F.3d 1152, 1171 (10th Cir. 1999).

In Caldwell, the defense attorney in a capital murd er 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 wou ld have you believe that you're going to kill this m an and they know--they know that your decision is not th e final decision. My God, how unfair can you be? You r job is reviewable. They know it.

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

Caldwell's defense counsel objected to this stateme nt but the trial court overruled the objection, stating th at it was "proper that the jury realizes it is reviewable aut omatically 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 applie s to you, insinuating that your decision is the final decision and that they're gonna take Bobby Caldwell out i n 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 reviewa ble 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).

42Although the jury's sentence in Caldwell was indeed

subject to automatic review by the state supreme co urt, the United States Supreme Court's plurality opinion sta ted that the prosecutor's statement was "inaccurate, both be cause it was misleading as to the nature of the appellate co urt'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 ca st the fifth and deciding vote, emphasized that "[j]urors may harbor misconceptions about the power of state appe llate courts or, for that matter, [the United States Supr eme 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 beca use they "creat[ed] the mistaken impression that automa tic appellate review of the jury's sentence would provi de the

authoritative determination of whether death was appropriate" whereas under state law the relevant s cope of

review was limited to whether the verdict was "so a rbitrary that it was against the overwhelming weight of the evidence." Id. at 343 (O'Connor, J., concurring) (q uotation omitted).

In Romano v. Oklahoma, 512 U.S. 1 (1994), the Supre me Court clarified the Caldwell holding. Accepting Jus tice O'Connor's concurrence as controlling, the Romano C ourt explained that Caldwell prohibits prosecutorial com ments that "mislead the jury as to its role in the senten cing 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 t he remarks to the jury improperly described the role a ssigned to the jury by local law." Id. (quotation omitted). The Court subsequently rejected Romano's Caldwell claim becau se "the jury was not affirmatively misled regarding it s 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 pe nalty hearing in a capital case.

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

automatically reviewed by our Supreme Court and that is why there is an automatic review on the d eath penalty. That is why, if you return a decisi on of death, that is why you will receive and have to fil l 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 yo u believe it beyond a reasonable doubt and if you want in your determination, if you believe the sentence s hould 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 b e looked carefully on and answered appropriately.

App. at 393 (emphases added).

At oral argument before the en banc court, the Stat e conceded that Liguori's statement, at least "on its face," is no different from that of the prosecutor in Caldwel l. Tr. of Oral Argument at 49. Counsel for the State told us that when "[y]ou compare the two, they are pretty much a like." Tr. of Oral Argument at 49. Like the statement in C aldwell, Liguori's statement regarding automatic appellate r eview was technically accurate since Delaware law provide d for automatic review by the Delaware Supreme Court of a jury's sentence of death. However, that automatic r eview was extremely limited, as was that of the Mississip pi Supreme Court in Caldwell.

At the time of Riley's sentencing hearing, the rele vant portion of the capital sentencing statute provided:

The Supreme Court shall limit its review und er this section to the recommendation on and imposit ion of the penalty of death and shall determine:

a. Whether, considering the totality of evid ence in aggravation and mitigation which bears upon the particular circumstances or details of the o ffense and the character and propensities of the offend er, the death penalty was either arbitrarily or capr iciously imposed or recommended . . . .

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

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

aggravating and mitigating circumstances was, for a ll practical purposes, final. We have found no publish ed opinion during the relevant time period in which th e Delaware Supreme Court reversed a jury's sentence o f death as arbitrarily or capriciously imposed.15

It is apparent, then, that, like the prosecutor's s tatement in Caldwell, Liguori's reference to automatic appel late review was misleading as to the scope of appellate review. As was explained in Caldwell, jurors may not unders tand the limited nature of appellate review, which affor ds substantial deference to a jury's determination tha t 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 mig ht 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 itse lf as advisory when it is not, or to be comforted by a be lief that

its decision will not have effect unless others mak e the same decision, is a frustration of the essence of t he jury function." Sawyer v. Butler, 881 F.2d 1273, 1282 (5 th Cir. 1989).

It is therefore not enough to argue, as the State d oes, that Liguori's comments at sentencing were a correc t and

accurate statement of Delaware law. The statute at the time contained more than 40 different provisions detaili ng procedures and requirements applicable to a death sentence, but the only one the prosecutor chose to emphasize was that providing for automatic review o f the jury's sentence.

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15. The Delaware capital sentencing scheme was subs tantially amended in 1991. Under the amended statute, "the jury now f unctions 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 imprisonmen t 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.

45Nor does the State satisfactorily explain why Liguo ri

referred to "automatic review on the death penalty" in connection with his explanation of the interrogator y form. App. at 393. The interrogatory form contained only two questions: whether the jury unanimously found beyon d a reasonable doubt that an aggravating circumstance e xisted16 and, if the jury answered "yes," whether it unanimo usly recommended a sentence of death. Such a simple and straightforward form hardly needed an explanation. Instead, that "explanation" appears to have been us ed as a segue to alert the jury to the fact that the Delawa re Supreme Court would automatically review its decisi on to impose a death sentence.

"The sentencing decision in capital cases is born o ut of an inherent and unique mixture of anger, judgment a nd retribution, and requires a determination whether c ertain 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] discret ionary." Id. Yet in Caldwell, the Supreme Court noted that "[b]e lief in the truth of the assumption that sentencers treat t heir power to determine the appropriateness of death as an awesome responsibility has allowed this Court to vi ew 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 (qu otations omitted). It follows that there is particular conce rn "when there are state-induced suggestions that the senten cing jury may shift its sense of responsibility to an ap pellate court." Id. Unlike our decision in Zettlemoyer v. F ulcomer, 923 F.2d 284, 306 (3d Cir. 1991), where we rejected a Caldwell claim, in part because "[t]here was no sug gestion to the jury that the [state] Supreme Court . .. or anyone else would have the last word in the case," here th e prosecutor expressly stated both "there is an autom atic

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16. The jury had previously been instructed that, b y convicting Riley of felony murder, it already had found that an aggrava ting circumstance

existed.

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

at 393.

The Dissent suggests that there was no Caldwell vi olation here because the prosecutor's statement was made"ne ar the very beginning of his summation," and consisted of "accurate, unemotional, passing remarks." The Disse nt also characterizes the prosecutor's remarks as "the mere

mention of the fact that there would be an automati c 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 w as not a lengthy speech, occupying a mere four pages o f the transcript, App. at 393-97, of which the remarks in question take almost a full page. We cannot tell wh ether they were "emotional" or not, but they can hardly b e 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 interrog atory to be completed by the jurors also "goes to the Suprem e Court."

We are unwilling to treat lightly the prosecutor's pointed references to appellate review of this crucial deci sion. 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 techn ically accurate statement describing the state appellate r eview process nonetheless "misled the jury to minimize it s role in the sentencing process." Driscoll v. Delo, 71 F.3d 701, 713 (8th Cir. 1995) (holding that prosecutor had violat ed Caldwell by emphasizing that the trial judge could disregard the jury's recommendation of death even t hough 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,

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

As suggested in Caldwell, jurors are unlikely to un derstand the exceptionally narrow scope of appellate review given to jury determinations on death. See 472 U.S. at 330-3 1; see also id. at 342 (O'Connor, J., concurring). Althoug h Liguori's remarks were brief, they were the first c omments that the jury heard at sentencing, making them more likely to have made an impression. A statement does not ha ve to be lengthy to be effective in suggesting to the jur y that ultimate responsibility for sentencing lies elsewhe re.

Moreover, nothing the trial court said corrected an y misimpression left by the prosecution's statements, as the judge made no comment whatsoever pertaining to appe llate review. Unlike Jones v. Butler, 864 F.2d 348, 360 ( 5th Cir. 1988), where the Court of Appeals for the Fifth Cir cuit held that the prosecutor's statement that "[I]f, in fact , you do return the death penalty . . . yours will not be th e last word. Every sentence is reviewed by the Supreme Cou rt," was improper but cured by a prompt curative instruc tion by the trial judge, here there was no curative inst ruction.18

Caldwell and its progeny make clear that"the senten cing jury must continue to feel the weight of responsibi lity so long as it has responsibility." Sawyer, 881 F.2d at 1282. Because the prosecutor's remarks may have misled th e jury into thinking the Delaware Supreme Court was the fi nal 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 Bat son violation entitling him to a new trial, we still wo uld direct the District Court to grant the writ of habeas corp us entitling Riley to a new sentencing hearing.

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17. At oral argument counsel for the State acknowle dged that "[p]erhaps better practice would have been for Liguori to inse rt the word `limited' " into his reference to automatic appellate review. T r. 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 n ot 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 r esponsibility in the sentencing process. See generally Flamer v. Delawar e, 68 F.3d 710 (3d Cir. 1995).

48III.

CONCLUSION

This is an appropriate case for the issuance of a w rit of habeas corpus. One of the principal objections to t he operation of the death penalty in this country is t hat 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[This page intentionally left blank]

50Volume 2 of 2

51APPENDIX A

Excerpts from Panel Opinion in Riley v. Taylor,

No. 98-9009 Filed January 17, 2001

Panel: SLOVITER, ALITO, and STAPLETON, Circuit Jud ges

ALITO, Circuit Judge:

. . .

III.

Riley next argues that adverse publicity prevented him from obtaining a trial by an impartial jury. He con tends, first, that it should be presumed that he was preju diced by pretrial publicity because the record establishes t he existence of a "hostile trial atmosphere" and, seco nd, that the record shows that several jurors were unable to be impartial due to exposure to unfavorable pretrial p ublicity.

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 pre judice to

the defendant without reference to an examination o f the attitudes of those who served as the defendant's ju rors." Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir. 199 2). 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, 7 55 (3d Cir. 1995) (en banc). "The community and media reac tion, however, must have been so hostile and so pervasive as to make it apparent that even the most careful voir di re 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 deferen ce, see Patton v. Yount, 467 U.S. 1025, 1031 & n. 7 (1984), and we find no basis for overturning that finding.

52Riley relies on a relatively small number of newspa per

articles, almost half of which appeared six months or more before the trial. Although two of the articles name d Riley as a suspect in Feeley's murder, and although a few of the articles discussed the plight of the Feeley childre n, 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 tri al 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 h is jury lacked a capacity to reach a fair and impartial ver dict 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 j ury members may have been exposed to press reports or o ther 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 v iolation if the trial court has found, with record support, tha t each of the jurors was able to put aside extrinsic influenc es." Rock,

959 F.2d at 1253.

Riley contends that two jurors, Leon Morris and Car l Patterson, were unable to be impartial due to expos ure 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 t ime 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 ne wspaper, do you feel that you could sit here as an im partial jury?

A. Yes, because I know nothing of the evide nce or anything else.

App. 278.

53Carl Patterson during voir dire was asked whether

anything he had read in the newspaper had created b ias 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 colloq uy then

occurred:

Q. Then do you know of any reason why you c an't render an impartial verdict based solely upo n 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. Ju ly 17, 2000); Campbell v. Vaughn, 209 F.3d 280, 290 (3d Ci r. 2000), and we see no ground for holding that that presumption has been overcome.

IV.

Riley argues that the prosecution violated his righ t 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 favorabl e to an accused upon request violates due process where the evidence is material either to guilt or to punishme nt, irrespective of the good faith or bad faith of the prosecution." Id. at 87. To state a valid Brady cla im, a plaintiff must show that the evidence was (1) suppr essed, (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 proba bility that

the outcome would have been different had the evide nce 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.

54Riley's Brady argument concerns a wiretap on the

telephone of the mother of Tyrone Baxter. Before tr ial, Riley's lawyer asked the state to produce recording s or transcripts of the intercepted calls, but the state refused, arguing that the tapes contained no exculpatory mat erial. Without listening to the tape himself, the trial ju dge accepted the prosecutor's representation and denied Riley's motion for production. Throughout the subsequent proceedings in state and federal court, no judge li stened to the tapes.

In his briefs in this appeal, Riley made a strong B rady argument. He asserted that between the time of the Feeley murder and Baxter's arrest, "Baxter spoke to his mo ther on the telephone on several occasions"; that "Baxter's testimony was the State's strongest evidence agains t" him; and that statements made by Baxter to his mother mi ght have provided valuable impeachment evidence. Appell ant's Br. at 5. At a minimum, he contended, the state cou rts or the District Court should have listened to the tape s in camera to determine whether they contained Brady

material.

At oral argument, however, counsel for the appellee s represented that an examination of the logs of the wiretap on Mrs. Baxter's telephone did not reveal any inter cepted 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 commenti ng on the contents of the logs. We have examined the logs, an d it appears that the state's representation is correct: we see no record of any conversations in which Baxter partici pated. The revelation that the logs do not mention any suc h conversations fatally undermines the Brady argument made in Riley's briefs.

In their post-argument letter-brief commenting on t he logs, Riley's attorneys advance different arguments to show that an in camera inspection of the wiretap recordi ngs is required. A defendant seeking an in camera inspecti on to determine whether files contain Brady material must at least make a "plausible showing" that the inspectio n will reveal material evidence. Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987) (quoting United States v. Valenz uela-

55Bernal, 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 entri es "expressly refer to conversations about Tyrone Baxt er." 12/16/99 Letter-brief at 3 (emphasis added). But it is unlikely that statements "about" Baxter by third pe rsons -- unlike statements made by Baxter himself -- could h ave been used to impeach Baxter's testimony or could ha ve been admitted at trial on some other ground. For th at 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 p ut 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 b etween Baxter and his mother may have been intercepted and recorded but that the person or persons who compile d 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 a rrest Baxter; they therefore had a strong incentive to id entify him if he participated in any of the intercepted conver sations. We have considered all of Riley's Brady arguments a nd find

them to be without merit.

V.

Riley argues that he was denied the effective assis tance of counsel at the penalty phase of his trial.1 The District Court held that many of Riley's arguments concernin g the alleged deficiencies of his attorney's performance were never

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1. Riley's amended federal habeas petition raised c laims regarding the alleged ineffectiveness of trial counsel at the gui lty phase, but the District Court held that these claims were procedur ally barred. See Riley VI, 1998 WL 172856, at **18-20. On appeal, Riley re fers to these claims in a footnote. See Appellant's Br. at 38 n.16. This footnote is inadequate to raise the issue on appeal.

56presented to the Delaware Supreme Court and were th us

procedurally barred, and the District Court rejecte d Riley's remaining arguments regarding this matter on the me rits. 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 proc edural default for two reasons. First, he maintains that a t least some of the arguments that the District Court held were procedurally barred might have been presented to th e 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 hear ing for the purpose of reconstructing the record. See Appe llant'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 a mended habeas petition, Riley acknowledges that no ineffec tive assistance argument was made in the direct appeal b rief that was ultimately submitted on his behalf and acc epted for filing by the Delaware Supreme Court.2 See App . 1198. In addition, the opinion issued by the Delaware Sup reme Court in the direct appeal makes no mention of inef fective assistance of counsel. See Riley I. Under these circumstances, the District Court was certainly not required to conduct an evidentiary hearing to deter mine whether the attorney who represented Riley at trial chose at oral argument before the state supreme court to mak e 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 is sue of ineffective assistance (without any factual elaboration) for th e purpose of preserving the issue. See App. 1198. However, this brief was r ejected by the Delaware Supreme Court, and the brief that was ulti mately submitted and accepted contained no such passage. See App. 11 98-99.

57With little elaboration, Riley also contends that t he

District Court should have held an evidentiary hear ing so that Riley could show that he had "cause" for not r aising the arguments in question in state court. See Appe llant's Br. at 39. However, Riley has not even identified a ny "cause" that he would have attempted to show. We wi ll not

reverse the decision of the District Court and orde r that Court to conduct an evidentiary hearing so that Ril ey can develop the factual predicate for a "cause" that Ri ley has

not even disclosed.

Perhaps the most frequently asserted "cause" for procedural default is ineffective assistance of cou nsel, and we will therefore comment briefly on the steps that Riley should have taken if he wished to rely on this "cau se." As the District Court pointed out, in order for Riley to show that ineffective assistance provided "cause" for fa iling 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-conv iction relief proceedings was ineffective. See Dist. Ct. O p. at 50 & n.16, 56-57. This is so because Delaware permits a claim of ineffective assistance to be raised in a post-convi ction relief proceeding even if it was not raised on direct appe al. See Riley VI, 1998 WL 172856, at **17-18 & n.16. 3

Riley has not argued, however, that the attorney wh o represented him in the state post-conviction relief proceedings provided ineffective assistance by fail ing 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-convict ion relief attorney was ineffective, he runs afoul of the rule that "a

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3. Indeed, in Riley's case, ineffective assistance was vigorously argued

in the post-conviction relief proceedings, and the Del aware 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 pro cedural default, he would have to confront the rule that a habeas petit ioner is not entitled to an evidentiary hearing in federal court to estab lish a factual record unless the petitioner can show "cause" for not maki ng the necessary factual record in the state proceedings. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12 (1992).

58petitioner must demonstrate independent cause and

prejudice excusing the default of the ineffectivene ss claim

before that claim can be assessed as cause in relat ion 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 argu ments that were not procedurally defaulted. In order to s how that his constitutional right to the assistance of couns el was violated at the penalty phase, Riley must satisfy t he twopronged test of Strickland v. Washington, 466 U.S. 668, 687 (1984). First, he must demonstrate that his attorne y"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 couns el's performance must be highly deferential. It is all t oo tempting for a defendant to second-guess counsel's assistance after . . . [an] adverse sentence, and i t 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 outsid e"the wide range of reasonable professional assistance," id., it must be shown that "the deficient performance prejudiced th e defense," that is, that "there is a reasonable prob ability 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 gre atly truncated version of arguments previously advanced regarding trial counsel's failure to call certain f amily members to testify at the penalty phase of the tria l and trial counsel's failure to locate or contact other family members who might have testified. All of these family membe rs, Riley argues, could have provided evidence about his trau matic experiences as a child and his "severely dysfunctio nal family." Appellant's Br. at 41.

The Superior Court, the Delaware Supreme Court, and the District Court all addressed these arguments in some

59detail and rejected them. They concluded that Riley 's trial

attorney made reasonable efforts to find certain fa mily members who could not be located, that he did not a ct unreasonably in failing to call others as witnesses , and that his failure to rely on what was termed Riley's "soc ial history" represented a reasonable strategy. See Ril ey II, 1988 WL 47076 at *3-4, *7-9; Riley V, 585 A.2d at 7 26-28; Riley VI, 1998 WL 172856, at **20-23.

In his brief in our court, Riley merely states with out

elaboration that "trial counsel failed to call as w itnesses members of Mr. Riley's immediate family, several of whom lived within a few hours of Dover, Delaware" and th at these

witnesses could have testified about his childhood and family. Appellant's Br. at 41. He provides no respo nse to the detailed reasons given by the state courts and the District Court for holding that trial counsel was n ot ineffective in failing to call or locate family mem bers for the purpose of eliciting testimony about Riley's childh ood and family.

Nothing has been presented that convinces us that t he 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 th at support trial counsel's decision not to call Petitioner's mother. First, Petitioner informed trial cou nsel that he did not wish to expose his mother's problems at trial. . . . Second, trial counsel testified that P etitioner's mother refused to support Petitioner's alibi , and as a result, he was concerned about the prosecuto r'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 h eavily at the time of the trial. . . . As a result, tr ial counsel

believed that the witnesses that he chose to call in mitigation, instead, would make a better imp ression on the jury. . . . Under these circumstances, t he Court

finds trial counsel's decision not to call P etitioner's

60mother to be reasonable and within the bound s 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. Finall y, we agree that a strategy of not introducing evidence r egarding Riley's background and family fell within "the wide range of reasonable professional assistance." Strickland, 46 6 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, hi s sister an unwed mother of three, his brother an incarc erated criminal and his home life a series of jails and temporary living quarters would no doubt hav e been magnified in the semi-rural county where thi s case was tried . . . . Likewise, it is certainly with in the range of strategic choices to forego mitigating evide nce, 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 Ril ey's background indicated that he was a diligent worker, possessing a non-violent and good character.

In this case, trial counsel gave a strong ar gument that Riley's life should be spared in light of th e fact that Tyrone Baxter, defendant's accomplice and pr incipal accuser, would be spared the death penalty a s the result of a plea bargain. Moreover, Walter R oss testified without contradiction at the [post-convictio n relief] hearing that the defendant did not want his family background discussed at the penalty phase. G iven defendant's wishes, the lack of positive evi dence in mitigation, counsel's focused argument for l eniency in light of Baxter's plea bargain, and the pote ntially negative impact the purportedly positive evi dence would have wrought before the jury, defendan t has

failed to show that counsel's decision to li mit the

61testimony at the penalty phase was constitut ionally

deficient.

Riley II, 1988 WL 47076, at *11-12. This analysis w as accepted by the Delaware Supreme Court and the Dist rict Court. We cannot disagree.

2. Riley contends that his trial attorney was ineff ective because he did not present testimony by a mental he alth expert. Riley relies on the affidavits of two exper ts, who examined him in connection with the post-conviction relief proceeding. One of the experts characterized Riley as a person with "borderline defective" intelligence who se capacity "for objectively analyzing events, circums tances and relationships [is] narrowed by stress and compl exity." Appellant's Br. at 42. We agree with Riley that thi s explanation might have been helpful at the penalty phase. The question remains, however, whether trial counse l was ineffective in failing to obtain such evidence at t he time.

In the post-conviction relief proceeding in Superio r Court,

trial counsel testified that he did not seek to hav e Riley examined by a mental health expert because he had n o reason to think, in light of his conversations with Riley, that such an examination would have revealed anythi ng useful. See App. 592-96. He testified that Riley ap peared to understand what they discussed and that Riley prepa red 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 mitig ation." Riley II, 1988 WL 47076, at *7.

Before us, Riley has not argued that counsel in a c apital case must always seek a mental examination of the defendant, and cases from other circuits reject tha t 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 tha t 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 State s ex rel. Rivera v. Franzen, 794 F.2d 314, 317 (7th Cir. 1986 ).

62Under this standard, we see no ground for reversing the

decision of the District Court here. Riley has simp ly not identified any fact that should have alerted his tr ial attorney that he had mental problems that might hav e provided the basis for mitigation. The only fact ev en mentioned in Riley's briefs is the "implausible" na ture of Riley's alibi, see Reply Br. at 21, but this is ins ufficient 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 me ntal health experts revealed. However, "[a] fair assessm ent of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to r econstruct 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 inexperienc e and the fact that he spent only 14 hours preparing for the penalty phase of the trial. These facts are not com forting, but they do not in themselves establish that counse l was

ineffective. We have taken them into account in eva luating the other deficiencies properly asserted in this ap peal. We cannot say, however, that Riley's constitutional ri ght to the

effective assistance of counsel was denied.

VI.

Relying on Ake v. Oklahoma, 470 U.S. 68, 76-77 (198 5), Riley argues that his right to due process was viol ated because the trial judge refused to appoint co-couns el or an investigator to assist his attorney. Riley again no tes the inexperience of his attorney, and he asserts that c o-counsel had been appointed in Kent County in prior capital cases. Although Riley claims that the lack of co-counsel a nd an investigator caused him "extreme prejudice," his br ief 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 t o the appointment of two defense attorneys in capital cas es. See, e.g., 18 U.S.C. S 3005. However, we are aware of no

63authority holding that the federal Constitution con fers such

a right, and we see no basis for such a holding. Th e Constitution specifies the quality of representatio n 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 assis tance, the Constitution is satisfied, and if a whole team of l awyers fails to provide such assistance, the Constitution is violated. Thus, there is no constitutional right pe r se to the appointment of co-counsel in a capital case. Bell v

. Watkins, 692 F.2d 999, 1009 (5th Cir. 1982); Jimene z 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 (Ari z. 1996); Spranger v. State, 650 N.E.2d 1117, 1122-23 (Ind. 1 995); Uptergrove v. State, 881 S.W.2d 529, 531 (Tex. Ct. App. 1994). Cf. Hatch v. Oklahoma, 58 F.3d 1447, 1456 (1 0th Cir. 1995).

Riley's brief does not identify any unusual feature s of this case that demanded the appointment of a second atto rney. While he does cite the inexperience of his trial at torney, without a showing that this attorney did not provid e the level of representation required by the Constitutio n, 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 fa ilure to appoint a private investigator violated the Cons titution. 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 inves tigator

where the defendant offers "little more than undeve loped 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.

. . .

64VIII.

Riley contends that the trial judge contravened the holding of Witherspoon v. Illinois, 391 U.S. 510 (1 968), 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 caus e "simply because they voiced general objections to t he death penalty or expressed conscientious or religious scr uples against its infliction." Id. at 522. Some lower cou rts, however, interpreted footnotes in Witherspoon to m ean that potential jurors could be dismissed only if they st ated unambiguously that they would automatically vote ag ainst the death penalty.5

The Supreme Court clarified the meaning of Withersp oon in Wainwright v. Witt, 469 U.S. 412 (1985). The Cou rt 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 impai r 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 reduc ed to question-and-answer sessions which obtain re sults in

the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough ques tions to reach the point where their bias has been ma de "unmistakably clear"; these veniremen may no t 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 la ck of clarity in the printed record, however, there will be s ituations where the trial judge is left with the defin ite 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)

.

65Id. 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 su stained the dismissal of a juror who said, when asked wheth er her beliefs would interfere with her sitting as a juror in a capital case, "I am afraid it would" and "I think i t would."

Id. at 416.

The two potential jurors at issue in the present ca se are Mae Floyd and Gerald Mood. During Floyd's voir dire , the following exchange occurred:

The Court: . . . Do you have any conscienti ous scruples against finding a verdict of guilty where the punishment might be death or against imposin g the death penalty if the evidence should so warr ant?

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

The Court: You do have conscientious scruple s?

Ms. Floyd: Yes.

The Court: Regardless of any personal belief s 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 th e 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 y our 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 im pose the death penalty?

___________________________________________________ ______________

6. See also Deputy v. Taylor, 19 F.3d 1485, 1498 (3 d Cir. 1994) (citations omitted) (internal quotation marks omitted)("a tria l court may excuse a juror for cause where such juror's views would prev ent 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).").

66Ms. Floyd: That is a two-part question, righ t?

The Court: Yes, it is.

Ms. Floyd: The latter part--

The Court: First of all, would you be able t o 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 thin k 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 Wainwri ght 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 corr ectness that attaches to the implicit finding of the trial judge.

The dismissal of the other potential juror in quest ion, Gerald Mood, took place after the following colloqu y:

The Court: . . . . Do you have any conscient ious scruples against finding a verdict of guilty when the punishment might be death or against imposin g the death penalty if the evidence should so warr ant?

Mr. Mood: I don't know. I have mixed emotion s about

that.

The Court: Regardless of any personal belief or feelings that you have, if the evidence just ified it, would you be able to find a person guilty of murde r 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.

67The 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 twic e responded to the trial court's capital punis hment questions with the phrase, "I don't know." .

.. . Particularly in situations such as this, whe re an individual's record response is so brief tha t its printed reproduction reveals little, the Court shoul d defer to those credibility factors that would only ha ve 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 ass essment of venireperson's demeanor, particularly where printed record may not be "crystal clear"). Accordin gly, 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 sp onte to ask prospective jurors during voir dire whether they wo uld automatically impose the death penalty if they foun d him guilty. The District Court rejected this claim on t he ground that Morgan requires that such questions be asked o nly if the defense so requests. We agree.

In Morgan, the Supreme Court framed the relevant is sue in these terms: "whether on voir dire the court mus t, on defendant's request, inquire into the prospective j urors' views on capital punishment." 504 U.S. at 726 (emph asis added). The Court stated its holding as follows:

___________________________________________________ ______________

7. In addition, as the District Court noted, some o f the answers given by Floyd and Mood to questions not concerning capital punishment may have influenced the trial judge's decision to dismi ss 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 p olice officers involved in the case and had served with him in the fire dep artment. See Riley VI, 1998 WL 172856, at *12.

68Petitioner was entitled, upon his request, t o inquiry

discerning those jurors who, even prior to t he State's case in chief, had predetermined the termina ting issue of his trial, that being whether to impose t he death penalty.

Id. at 736 (emphasis added). The dissent described the Court's holding in similar language: "The Court tod ay 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., disse nting) (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 no tes 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 c ourt resolution of the claim on the merits." Appellant's Br. at 52. Our holding, however, has nothing to do with a proc edural bar, i.e., a state rule of procedure that bars a fe deral 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 o nly if the defense makes a request for a reverse-Witherspoon i nquiry.

Second, Riley argues that his trial attorney was ineffective in failing to request reverse-Witherspo on 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 re view 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 impo sed in

69similar cases." 11 Del. C. S 4209(g)(2)(a). In affi rming Riley's

death sentence, the Delaware Supreme Court examined 21 cases, including five in which the death penalty wa s imposed. It found that Riley's case was comparable to the five death penalty cases (Whalen, Rush, Deputy, Fla mer and Bailey), because they all involved

an unprovoked, cold-blooded murder of a help less person (or persons) committed upon victims l acking 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 prov ocation or of homicide committed out of passion or rage. I n each case, except Whalen, the murder occurred in the court of a robbery that was deliberately planned a nd carried out with the use of deadly weapons. In each case, the perpetrators of these crimes offered no exte nuating 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 be cause 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 requ ired by the federal Constitution. See Pulley v. Harris , 46 5 U.S. 37, 50-51 (1984). Riley justifies advancing his proport ionality argument in federal court on two grounds.8 First, he argues that the allegedly improper review resulted in a pu nishment that was "inherently disproportionate and, therefor e, arbitrary and capricious" in violation of the Eight h Amendment. Appellant's Br. at 56. Second, he argues that

___________________________________________________ ______________

8. Ordinarily, federal habeas relief is not availab le for an error of

state law: the habeas statute provides that a writ distur bing 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 Stat es." 28 U.S.C. S 2241(c)(3). See Pulley v. Harris, 465 U.S. 37, 41 (1984).

70Delaware's failure to abide by its own statutory sc heme for

proportionality review violated due process. See Fe tterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993) ("the failure of a state to abide by its own statutory commands m ay implicate a liberty interest protected by the Fourt eenth Amendment against arbitrary deprivation by a state" ).

Riley bases his first argument on the principle tha t"[i]f a

State has determined that death should be an availa ble penalty for certain crimes, then it must administer the penalty in a way that can rationally distinguish be tween 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 Su preme Court in his case failed to protect him from arbitr ary 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 impo sition 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 crim e-- killing a defenseless person without provocation in the course of an armed robbery -- is not such that appl ication of the death penalty in these circumstances would"s hock the conscience." See Lindsey v. Smith, 820 F.2d 113 7, 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 t hat when a state creates a right, the Due Process claus e of the Fourteenth Amendment entitles a defendant to proced ures to ensure that the right is not arbitrarily denied. He argues that the Delaware Supreme Court, by failing to cond uct an

71adequate proportionality review as required by stat e

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 pur poses. 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 n ot shown any denial of due process. In evaluating a claim th at a state court erred in conducting its proportionality revie w, a federal court may only inquire into whether the sta te court "undertook its proportionality review in good faith and found that [the defendant's] sentence was proportio nal to the sentences imposed in cases similar to his." Wal ton v. Arizona, 497 U.S. 639, 656 (1990). Because there is no federal constitutional right to proportionality rev iew, if the

federal court finds that the review was undertaken in good faith, it cannot "look behind" the state court's co nclusion of proportionality to consider whether the state court misapplied state proportionality law. See id.; Bann ister v. Delo, 100 F.3d 610, 627 (8th Cir. 1996). In this ca se, the Delaware Supreme Court compared Riley's case with a substantial number of other death-eligible cases, a nd, even disregarding the two vacated death sentences, it fo und common characteristics between Riley's case and thr ee other cases in which the sentence was not vacated. Although Riley argues that these cases are not enti rely analogous, because each contained an additional aggravating factor (more than one victim), there is no indication that the Delaware court acted in bad fai th 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 senten cing phase.

A.

Riley argues that the jury instructions at the pena lty phase impermissibly restricted the jury's considera tion of

72mitigating circumstances. He takes issue with the f ollowing

instruction, issued at the start of the penalty hea ring:

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

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

(2) Unanimously recommends, after weighing a ll relevant evidence in aggravation or mitigati on which bears upon the particular circumstance s 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 th e jury submits such a finding and recommendati on, the Court shall sentence the defendant to de ath. A finding by the jury of a statutory aggravati ng circumstance, and a consequent recommendatio n of death, supported by the evidence, shall be b inding

on the Court.

App. 392 (emphasis added). Riley contends that, giv en the placement of the word "consequent," "a reasonable j ury could understand the underscored sentence to mean t hat the effect of a finding that a statutory aggravatin g circumstance existed, is that the death penalty mus t be imposed." Appellant's Br. 59. Because the trial jud ge had previously informed the jury that the statutory agg ravating circumstance -- commission of the murder during a robbery -- had already been proven beyond a reasona ble doubt in the guilt phase, Riley argues that a reaso nable jury could have read the instruction to mean that i t need not consider mitigation evidence.

When reviewing a jury instruction that is claimed t o impermissibly restrict a jury's consideration of re levant evidence, a court must ask "whether there is a reas onable likelihood that the jury has applied the challenged instruction in a way that prevents the consideratio n of constitutionally relevant evidence." Boyde v. Calif ornia, 494 U.S. 370, 380 (1990). If there is "only a possibili ty" of such inhibition, however, the challenge must fail. Id . Moreover, the challenged instructions "must be evaluated not in

73isolation 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 n o reasonable likelihood that a jury could have unders tood it to preclude consideration of mitigating circumstanc es. At the close of the penalty hearing, the court again i nstructed the jury in terms that cleared up any ambiguity tha t 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 s tatutory aggravating circumstance has been establishe d;

and

(2) Unanimously recommend that a sentence of death be imposed after weighing all relevant evide nce in aggravation and mitigation which bear upon t he 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 eith er of these two matters, the Court shall sentence the de fendant to life imprisonment without benefit of probati on or parole.

App. 438-40 (emphasis added).

This instruction made it clear that a jury was requ ired both to find at least one statutory aggravator and to weigh aggravating factors against mitigating factors in o rder to support a death sentence. This belies Riley's argum ent 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 failu re at the penalty phase to instruct the jury that it was requ ired to conclude unanimously that aggravating circumstances outweigh mitigating circumstances before imposing d eath, as required by Delaware law. See Whalen v. State , 492 A.2d 552, 560 (Del. 1985) (setting forth "outweighing" s tandard).

74Rather, the court simply instructed the jury that i t had to

"[u]nanimously recommend that a sentence of death b e imposed after weighing all relevant evidence in agg ravation and mitigation." App. 438; see also App. 392, 437.

This argument provides no grounds for habeas relief . The federal Constitution does not require "specific sta ndards for balancing aggravating against mitigating circumstan ces." Zant v. Stephens, 462 U.S. 862, 876 n.13 (1983). As long as a jury is permitted to consider all relevant mitiga ting circumstances in making its death recommendation, t here is no federal constitutional problem. In addition, Riley has not suggested how a jury's decision would be any di fferent under the language the court used in this case. Bec ause the jury was instructed not to make a sentencing recommendation until after it had "weigh[ed] all re levant evidence in aggravation and mitigation," the necess ary inference was that the death penalty should be impo sed only if aggravating factors outweighed mitigating f actors (otherwise, the entire "weighing" process would be meaningless).

C.

Finally, Riley argues that the penalty phase instru ctions improperly suggested that the jury had to be unanim ous in imposing a life sentence, in violation of Whalen v. State, 492 A.2d 552, 562 (Del. 1985). He points to the ins truction that "[i]f you are not unanimous in your recommenda tion to impose the death penalty, or you cannot agree unani mously as to your recommendation, then the Court is bound to impose a sentence of life." App. 438 (emphasis adde d). 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 de ath.

As a threshold issue, the government argues that Ri ley

failed to raise this issue before the District Cour t because he based his argument there "solely on the interpre tation 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 t he interrogatories to support his point, nevertheless raised the

75general 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 Cou rt.

On the merits, however, Riley's claim must fail. Fi rst, when the jury charge is viewed as a whole, it revea ls several instances in which the word "unanimous" was explici tly paired solely with the death recommendation. In lig ht of this pattern, it appears unlikely that the jury wou ld have viewed the isolated passage that Riley relies on as extending the unanimity requirement to a recommenda tion of life imprisonment. Second, the Delaware Supreme Court, in reviewing this allegation, stated that it was"sa tisfied that the jury understood that, in the event of its failu re to unanimously agree upon imposition of a death penalt y, an imposition of life imprisonment would result." Rile y V, 585

A.2d at 725. Because the instruction made clear tha t the default rule in case of a lack of unanimity was lif e imprisonment, it is hard to see how the jury's deli berations would have been affected even had it adopted Riley' s interpretation of the instruction. Finally, the cha llenged instruction was identical to one approved by the De laware 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 explici tly pointed to the similarities with Flamer, and distin guished the instructions from those in Whalen, in upholding the death sentence on direct appeal. See Riley, 585 A.2 d at 722-25. For these reasons, we reject Riley's claim.

XII.

Riley was convicted of intentional murder and felon y murder, with the underlying felony being first-degr ee robbery. The statutory aggravating circumstance rel ied on

for the death sentence was that the murder was comm itted while Riley was engaged in the commission of first degree robbery. See 11 Del. C. S 4209(e)(1)(j) (establishi ng felony murder aggravator). Riley argues that it is unconst itutional to double-count robbery as both an element of the c rime

76(felony murder) that made Riley death-eligible and as a

statutory aggravating circumstance.

This Court rejected precisely the same claim in Dep uty v. Taylor, 19 F.3d 1485,1502 (3d Cir. 1994), holding t hat "within the context of Delaware's death penalty sta tute, the provision requiring the double-counting of the felo ny at the guilty phase and sentencing phase does not impermis sibly weaken the statute's constitutionally mandated narr owing function." This precedent binds our panel.

XIII.

Riley's final argument is that the District Court e rred in denying his motion for funds for investigative and expert assistance and in refusing to conduct an evidentiar y 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 ex pert assistance upon a finding that such assistance was "necessary" or "reasonably necessary" with respect to his representation in the habeas proceeding. Riley soug ht the services of an investigator to gather additional ev idence concerning his childhood experiences. He sought the services of a forensic psychiatrist to develop furt her mitigating evidence concerning his mental problems. All of these services were requested in order to support R iley's arguments that his trial attorney was ineffective a t the penalty phase and that the trial judge should have appointed a co-counsel and investigator to assist h im.

Riley has not shown that the services in question w ere "necessary" or "reasonably necessary." The discover y at the time of the federal habeas proceeding of new eviden ce about Riley's childhood would not have shown that the eff orts 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 i t was strategically unreasonable for Riley's trial attorn ey to

77eschew a penalty-phase defense based on Riley's"soc ial

history." See id. Similarly, the development of add itional 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 hear ing," we ask, first, "whether the petitioner asserts facts w hich entitle him to relief " and, second, "whether an evidentiar y 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 sh ould have held an evidentiary hearing concerning the prosecut ion's peremptory challenges, the impartiality of the jury , his Brady claim, and other unspecified issues. We disag ree. As previously discussed, we are required to accept the state courts' findings regarding the peremptory challenge s and the impartiality of the jury, and those findings ar e dispositive. Thus, an evidentiary hearing in federa l court on those matters was not needed. In addition, in light of the revelation after briefing that no conversation in w hich Baxter participated is listed in the logs of the wi retap 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 ev identiary hearing was needed on any other matter.

78BECKER, Chief Judge, Concurring in the Judgment.

This en banc appeal ultimately turns on the petitio ner's Batson claim. Unfortunately, I find myself unable t o join in either Judge Sloviter's or Judge Alito's opinion on that issue.1

First, I cannot agree with Judge Sloviter's treatme nt of the prosecution's challenge to prospective juror Ni chols. Rather, I agree with Judge Alito's opinion on this issue, see Dis. Op. at 83-91, largely because I do not share J udge 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 thi s "significant pause" became indelibly etched in the prosecutor's mind. As explicated by the dissent, th e hearing judge determined that the prosecutor's testimony on this matter was credible, and I cannot agree that the ra ceneutral reason proffered for striking Nichols was"n ot fairly supported by the record." 28 U.S.C. S 2254(d)(8) (1 988).

On the other hand, while the point is quite close, I cannot bring myself to join Judge Alito's discussio n of the challenge to prospective juror McGuire. Unlike the challenge to Nichols, an action for which the prose cutor relied on his memory to articulate a race-neutral explanation, the prosecutor had no recollection wha tsoever

about the differences between McGuire and Reed. I therefore agree with Judge Sloviter that there is n o basis in the record for distinguishing McGuire, a prospectiv e black juror who was struck, from Reed, a white man who wa s 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 wit h Judge Sloviter, that no purpose would be served by having such a hearing at this late date. Accordingly, I will jo in 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 th e prominent discussion of the issue in the Sloviter a nd Alito opinions, and the fact that Judge Alito's dissent i dentifies

___________________________________________________ ______________

1. I do, however, join in Part II of Judge Alito's opinion, dealing with

the

Caldwell issue.

79significant problems with Judge Sloviter's discussi on of that

evidence. I feel myself unable to join in Judge Ali to's opinion on that facet of the case for he has not al layed my concern about the practices of the Kent County prosecutor's office at times relevant here. Specifi cally, 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 observe d in other contexts when presented with perhaps imperfec t 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 discrimin ation came not from a misuse of statistics, but from the inexo rable zero." Int'l Bhd. of Teamsters v. United States, 43 1 U.S. 324, 342 n.23 (1977) (internal quotations omitted).

This concern is exacerbated for me by the State's f ailure to submit rebuttal evidence. If Riley's data was to o weak to support an inference of discrimination in the face of the prosecutor's race-neutral explanations, there was n o burden on the government to submit rebuttal data. However, as Judge Sloviter's discussion of the chro nology of events makes clear, the State volunteered to provid e rebuttal data, and then failed to do so. See Op. of the Court at 38. If the hearing judge had acknowledged the St ate's failure to provide evidence notwithstanding its pro mise and then specifically said that he did not consider thi s failure to be sufficiently probative to overcome the credibili ty determination, his factual conclusion would be fait accompli. But the fact that the hearing judge did n ot 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 wh ole" supports the hearing judge's conclusion.

Judge Sloviter seems to concede that a federal habe as hearing would give Riley ample time to conduct an e xpert statistical analysis of the complete record, time w hich he lacked at the earlier hearing, as she explains, bec ause of the State's late decision not to submit any statist ical evidence. See Op. of the Court at 38. Were the stat istical evidence dispositive of Riley's Batson claim, I wou ld remand for a federal habeas hearing. Judge Sloviter, howev er,

80states that the statistical evidence is "relevant b ut not

dispositive to our decision." Op. of the Court at 4 0. Because I accept her representation on this matter, I do no t 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 opinio n is plainly closer to my own position than the views of Judge Alito. U nder these circumstances, I would vote with her anyhow to avoi d a stalemate. See Screws v. United States, 325 U.S. 91, 134 (1945) (R utledge, J., concurring); see also Olmstead v. L.C., 527 U.S. 58 1, 607-08 (1999) (Stevens, J., concurring); Bragdon v. Abbott, 524 U .S. 624, 656 (1998) (Stevens, J., concurring); AUSA Life Ins. Co. v. Er nst & Young, 206 F.3d 202, 225 (2d Cir. 2000) (Jacobs, J., concurring).

81ALITO, Circuit Judge, with whom Judges SCIRICA, BAR RY,

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. T he majority holds that the petitioner's rights under Batson v. Kentucky, 476 U.S. 79 (1986), were violated, but I do not bel ieve that there is a proper basis for disturbing the credibil ity findings made by the conscientious state judge. The majority also holds that comments made by the prosecutor in closi ng 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 e mbodying a per se prohibition against any mention of the ava ilability of appellate review of a death sentence, a procedur e of which virtually all jurors are surely aware. Becaus e 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 v iolated Batson by using peremptory challenges to strike thr ee African Americans from the jury panel. In Batson , the Supreme Court held that it is a violation of the Eq ual Protection Clause for a prosecutor to strike a juro r because of race. The Court also set out a three-step proces s for adjudicating a claim that a particular peremptory w as racially based.

[O]nce the opponent of a peremptory challeng e has made out a prima facie case of racial discri mination (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-ne utral explanation is tendered, the trial court mus t then decide (step three) whether the opponent of the strike

82has proved purposeful racial discrimination. Hernandez

v. New York, 500 U.S. 352, 358-359 (1991)(pl urality opinion); id., at 375 (O'CONNOR, J., concurr ing in judgment); Batson, [476 U.S.] at 96-98.

Purkett v. Elem, 514 U.S. 765, 767 (1995)(per curia m).

In this case, the Superior Court found that the pet itioner, William Riley, made out a prima facie case, see Ril ey v. State, No. 200, 1988 (Super. Ct. April 21, 1989) at 2, and the state does not dispute this point. The state of fered raceneutral justifications for its contested strikes, a nd the state courts accepted those explanations and found that t he disputed peremptories were not racially based. Id. at 3-6; Riley v. State, 585 A.2d 719, 725 (Del. Sup. Ct. 19 90). The majority however, rejects the state courts' finding s regarding two of the state's peremptories and subst itutes its own contrary findings. I will discuss each of t he 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. Accordi ng to the prosecutor's testimony, "there was a pause and a significant pause in [his] answering [the trial jud ge's] inquiry and that to me was enough to suggest that h e might not be able to return a death penalty." Id. H aving heard the prosecutor's testimony, the judge who pre sided over the Batson hearing [hereinafter"the hearing ju dge"], concluded: "I find the State provided a credible, r aceneutral reason for exercising its peremptory challe nge after appraising the demeanor and credibility of the juro r. The State's exercise of its peremptory challenge was no ndiscriminatory. I am satisfied that the peremptory challenge was not made on the ground of the juror's race." Id . at 889.

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1. Riley also contends that a third member of the v enire, Lois Beecher, was peremptorily challenged by the state because of race. The majority, however, does not rely on this strike, and accordin gly I do not discuss it in this opinion.

83Riley suggests that it is not believable that the p rosecutor

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 add ition, Riley contrasts the prosecutor's ability to remember this pause with his inability to remember another potentially significant aspect of the jury selection process, a nd Riley notes that the prosecutor was a friend and neighbor of the victim. These facts were highlighted during the cro ssexamination of the prosecutor at the Batson hearing , see App. 820-29, and I agree that they were important f actors to be considered in assessing the prosecutor's cred ibility. The hearing judge was aware of these facts and had the opportunity to observe the prosecutor testify on th e witness stand. Despite these facts, however, the hearing ju dge found that the prosecutor's testimony was credible.

Our standard of review of the hearing judge's findi ng is narrow. In Batson, the Supreme Court took pains to note that "[s]ince the trial judge's findings in the con text under consideration here will largely turn on evaluation of credibility, a reviewing court ordinarily should gi ve those findings great deference." Batson, 476 U.S. at 98 n .21. In a later case applying Batson, the plurality elaborate d:

In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge shoul d be

believed. There will seldom be much evidence bearing on that issue, and the best evidence often w ill be the demeanor of the attorney who exercised the c hallenge. . . . [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) (pl uralty) (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 & S upp. 1990), any state-court factual finding that is "fai rly supported by the record" is entitled to a presumpti on of correctness. Discussing this provision, the Supreme Court

84wrote in Marshall v. Lonberger, 459 U.S. 422, 434 ( 1983),

that "28 U.S.C. S 2254(d) gives federal habeas cour ts no license to redetermine credibility of witnesses who se 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 elaborat ed:

In United States v. Oregon Medical Society, 343 U.S. 326 (1952), commenting on the deference whic h this Court gave to the findings of a District Cou rt on direct appeal from a judgment in a bench trial, we stated:

"As was aptly stated by the New York Court o f Appeals, although in a case of a rather diff erent substantive nature: `Face to face with livin g witnesses the original trier of the facts ho lds a position of advantage from which appellate j udges

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 s agacity 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" co nsidered

"as a whole" intended to authorize broader f ederal review of state court credibility determinat ions than are authorized in appeals within the federal sys tem 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 t he prosecutor testified truthfully regarding the reaso n for challenging Nichols can be overturned. The hearing judge heard the prosecutor testify. He was aware of the f actors noted above that provided grounds for doubting his testimony, but he nevertheless found that the prose cutor was truthful. I would sustain that finding.

2. The majority rejects that finding (as well as th e state courts' finding with respect to another prospective juror

85whom 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 requir ed Batson step three inquiry." Maj. Op. at 36. In maki ng this argument, the majority (a) misunderstands what Bats on 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 re lief that extends beyond what its own logic warrants.

What step three of Batson requires. Although the ma jority makes step three seem elaborate and elusive -- so e lusive that, according to the majority, the Delaware court s may not have "fully appreciated the requirement" (Maj. Op. at 32) -- step three, is neither conceptually difficul t nor procedurally complicated. Step three simply require s 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 (plu rality opinion); id. at 375 (O'Connor, J., concurring in j udgment). Neither Batson nor any subsequent Supreme Court or Third Circuit case has added to this requirement.

What the Delaware courts did. The Delaware courts d id exactly what step three requires. With respect to p otential juror Nichols, the hearing judge, whose analysis th e state supreme court endorsed, see 585 A.2d at 725, noted that the state had provided a race-neutral reason for th e challenge, stated that he found the explanation cre dible, 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 thr ee of Batson mandates. See Batson, 476 U.S. at 98 (the co urt has "the duty to determine if the defendant has est ablished purposeful discrimination").

What the majority requires. Although the majority o pinion is loathe to admit it, what the majority really fin ds wanting in the opinions of the Delaware courts is not a fai lure to make the finding mandated by step three of the Bats on

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2. The state courts' findings regarding the other p otential juror at issue, Charles McGuire, are discussed below. See infra at 91-93.

86inquiry but a failure to comment on the record rega rding

evidence that seems, in the majority's view, to und ermine the prosecution's proffered explanations for the di sputed peremptories. See Maj. Op. at 29 ("the state courts in this case rejected Riley's Batson claim without discussi ng 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 incon sistent with the federal habeas statute and Supreme Court preced ent.

The provision of the federal habeas statute on whic h the majority relies provides that if a state court's "determination after a hearing on the merits of a f actual issue" is "evidenced by a written finding, written opinion, or other reliable and adequate written indicia," that determination "shall be presumed to be correct" unl ess 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," an d it is not even necessary that a state court "specifically art iculate 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 aut horize us to disregard a state court's factual finding on the ground

that the state court failed to discuss all the evid ence or to explain why it was not persuaded by a particular pi ece of proof.

I do not question that a judge, in making the factu al finding required by step three of Batson, should co nsider all

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3. See, e.g., Maj Op. at 18 ("With regard to both N ichols and McGuire, the state courts failed to mention in their opinion s the weaknesses in the State's explanations . . . ."); id. at 20 ("[T]he h earing judge discussed

neither the statistics nor the State's failure to e xplain them[,] . . . overlooking and ignoring a significant segment of R iley'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 t here no indication on the record that the hearing judge engaged in the re quired analysis, but there is no indication that the Delaware Supreme Co urt did so.").

87of 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 rej ect the factual findings of a state court if the state cour t does not comment on all of the evidence or provide what the federal court regards as a satisfactory explanation for its finding.5

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4. The only Third Circuit case cited in this connec tion 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 i f the state court did

not explain why the court was not persuaded by particul ar 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 major ity (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 evidenc e introduced by each side." The reasons for not attaching too much weigh t to one word ("addresses") in this statement are too obvious to require mention.

The majority cites two federal habeas cases in whic h courts of appeals found great fault with the procedures used by state judges in adjudicating Batson objections. In Jordan v. LeFevr e, 206 F.3d 196 (2d Cir. 2000), the court of appeals held that the tria l 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 t rial court in ruling on Batson objections. Id. at 915-16, 918. The court of appeals ultimately

concluded that the state court had not considered t he totality of the relevant circumstances and thus ordered that the pe titioner be released if the state court did not conduct a Batson hearing using "the proper methodology." Id. at 922. The procedures used by th e Delaware courts in the present case bear no resemblance to the proc edures found

deficient in Jordan and Coulter.

The majority also cites two appeals in which the Si xth Circuit remanded cases for the district courts to provide m ore complete explanations of Batson rulings. See United States v . Harris, 192 F.3d 580, 588 (6th Cir. 1999); United States v. Hill , 1 46 F.3d 337 (6th Cir. 1998). These, however, were direct federal appeals, not habeas proceedings initiated by state prisoners, and the r elief ordered -- remands for fuller explanation -- goes far beyond w hat the majority

ordered here.88The majority confuses the obligation to consider al l of the

relevant evidence (something that a court should al ways do in making findings of fact) with the obligation to comment on all of the evidence (an obligation that we are n ot 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 B atson 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 a ll of the relevant evidence, including all of the evidence th at 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 c ourts were not obligated to comment on all of the evidenc e. The majority in this case reviews the decisions of the Delaware courts as if they were decisions of a Social Securi ty administrative law judge, who must, we have held,"g ive some reason for discounting the evidence she reject s." 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 co rrect that the Delaware courts were obligated to explain on the record why they accepted the prosecution's explanat ions for its strikes and were not persuaded by Riley's evide nce, that would hardly justify the relief that the majority o rders -- the granting of the writ unless Riley is re-tried. When a decision is found to be faulty for failure to provi de an adequate explanation, the logical remedy is to rema nd 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 doe s not give the Delaware courts a chance to comply with th e majority's newly found procedural requirements. Nor does the majority remand to the District Court for a hea ring and findings specifically addressing the points that th e majority views as important. Instead, the majority orders th at the writ be granted unless Riley is re-tried.

89How the state courts' failure to address Riley's ev idence

on the record can justify such relief is baffling. If the lack of explanations on the record is important to the m ajority'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 besi de the point.

3. The majority's remaining reasons for rejecting t he hearing judge's finding require little response. Th e majority notes that, although the prosecutor testified that Nichols paused, "the record reflects no such pause." Maj. O p. at 16. I have read many trial transcripts, and I do not re call any in which the court reporter noted that a witness ha d or had not paused before answering a question.

The majority finds it significant that "despite Nic hols' alleged pause, the prosecutors did not ask the tria l court to remove Nichols for cause." Maj. Op. at 17. The majo rity raises the question "why if Nichols actually did pa use `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 answerin g a question about the death penalty may properly be re moved

for cause?

The majority observes that "[t]he record does not s how . . . that any of the contemporaneous notes kept by the prosecutors as to some of the jurors reflected eith er 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 handwritt en 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 recor d the reasons for all of the prosecution's strikes.

I wish there were some scientific test that could determine with complete certainty whether Nichols p aused and whether the prosecutor told the truth. Unfortun ately, there is no such test. We must rely to a substantia l degree on the ability of the judge who heard the prosecuto r's

90testimony to make an accurate assessment of his

credibility. There is no question that the hearing judge took his responsibility seriously and made his finding i n good

faith. Our role under the federal habeas statute is to determine whether that credibility finding is "fair ly 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 agains t 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 t hat 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 t rial], there was some problem with work. He was an inspec tor or something for the Department of Labor. I kno w 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 bec ause McGuire "had previously requested to be excused fro m jury service" and because the prosecutor "wanted attenti ve jurors" who were not worried about missing other obligations or activities while the trial took plac e. 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 "disa bility adjudicator," App. 846-47; that he had been reporti ng for jury duty in the courthouse in Dover for two to thr ee weeks before he was questioned in connection with the Ril ey case but had not been seated on a jury, id. at 852-53; t hat while he was away from work, the disability claims assign ed to

91him would "just sit[ ]," id. at 850; that the direc tor of his

office had told him that he was going to make a"for mal request" that McGuire be excused, id. at 860; that such a request was sent, id. at 853, 856; and that the req uest had been discussed in chambers with the judge. Id . at 849-50, 856. McGuire said, however, that he himself had nev er 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 explana tion of the reason for striking McGuire. The hearing jud ge found:

The State peremptorily challenged Charles Mc Guire because [the prosecutor] believed he request ed to be excused from jury duty and, therefore, may h ave been unable or unwilling to serve for the entiret y of the trial. . . . McGuire's employer sent a letter reque sting he be released from jury duty because he could not be replaced at his job if he was chosen for jur y duty. The letter by McGuire's employer clearly gave th e State reason to question whether McGuire would giv e his full

time and attention to the trial and whether he would be able to serve for the entirety of the tim e 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 adde d). The hearing judge then noted that the state's explanati on for striking McGuire, was "entirely unrelated to the ju ror's race," and the judge credited that explanation. Id. at 5. Obviously, by crediting an explanation that was"ent irely unrelated to the juror's race," the hearing judge n ecessarily found that Riley had not "established purposeful discrimination," Batson, 476 U.S. at 98, and the he aring judge thus fully complied with Batson's step three. 6

Several factors provide substantial support for thi s finding. It is apparent that McGuire's work situati on was on

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6. The majority, however, incorrectly suggests (Maj . Op. at 33) that finding "the prosecutor to be credible" is differen t from finding that purposeful discrimination was not proved.

92the prosecutor's mind when McGuire was peremptorily

challenged because, as noted, immediately after str iking McGuire, the prosecutor asked that McGuire's dismis sal be deemed for cause since he had "expressed his belief that he didn't know if he could last the two weeks." App. 2 50. In addition, a reasonable prosecutor might well have w ondered whether McGuire's work situation would adversely af fect his attentiveness at trial. As noted, McGuire's sup ervisor had made a "formal request" that he be excused"beca use he could not be replaced at his job if he was chose n for jury duty."7 Whether or not McGuire himself in fact wish ed to serve on the jury, the impression apparently was co nveyed

that McGuire wanted to be excused and to return to work, since the trial judge commented: "He asked to be ex cused 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 wor k, leaving his duties unattended, and perhaps incurring his supervisor's displeasure.

Riley attacks the hearing judge's finding on two gr ounds. First, he points out that, according to McGuire's t estimony at the post-conviction relief evidentiary hearing, McGuire himself did not ask to be excused. This argument is unpersuasive. Although McGuire testified that he di d not ask to be excused, the trial judge, as noted, state d at the

time of McGuire's dismissal: "He asked to be excuse d yesterday and I decided not to excuse him." App. 25 0 (emphasis added). Thus, McGuire, who was unable to remember many details at the time of the post-convi ction relief evidentiary hearing, see id. at 853, 857-62, may have been mistaken, or he may have conveyed the impressi on at the time of trial that he personally wanted to be e xcused.

Second, Riley points out that the handwritten sheet prepared by the prosecutors during voir dire contai ns the following notation next to the name of a white juro r, Charles Reed, whom the prosecution did not perempto rily strike: "works Lowe's -- wants off." One of the pro secutors

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7. Riley v. State, No. 200, 1988 at 4. See also App . 860 (McGuire's testimony at the evidentiary hearing).

93was questioned about this notation by Riley's attor ney 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 expla nation for striking McGuire, but the notation and the prosecut or'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 notat ion "wants off " that, at some point in the jury selection pro cess, Reed expressed a desire to be excused for some reason. A s far as I am aware, however, the record does not establish why8 or how strongly Reed wanted to be excused. The transcr ipt of the voir dire shows that, at the final stage of the jury selection process, the members of the venire were a sked whether there was "any reason why [they] absolutely [could not] serve," App. 223; that members of the venire t hen successfully asked to be released for reasons such as a previously planned vacation, id. at 253; but that R eed 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 excus ed, and his situation may not have been at all comparable i n this respect to McGuire's.9

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8. Although the notation "wants off " appears after the words "works at Lowe's," it is not clear that Reed's desire to be e xcused was related to

his employment. The prosecutor's notes appear to contai n notations of the employment of other jurors.

9. Many decisions have held that Batson is not cont ravened 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); Unit ed 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).

94As I have noted, our scope of review of the hearing

judge's finding is narrow. Although it would be sat isfying to know why Reed was not stricken, that unanswered question is not enough, in view of the "great defer ence"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 ove rturn the hearing judge's credibility finding, the majority p oints 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 D elaware Supreme Court in 1984, the State justified t he use of race in selecting jurors in criminal trials. On that occasion, which was the State's first opport unity 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 argume nt; instead, it claimed that it was permissible -- even socially desirable -- to exclude jurors base d on what it called `group association.' "

Maj. Op. at 25 (quoting App. 896).

This argument is not well taken. Responding to Rile y's suggestion that the Delaware Supreme Court should hold that individual race-based peremptories were unconstitutional, the state's brief argued as follo ws:

Because the Sixth Amendment does not support [Riley's argument] and the decision in Swain v. Alabama, 380 U.S. 202 (1965), more appropria tely recognizes how peremptory challenges, even t hose

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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 whe re the prosecutor excluded a black juror who had a child approximatel y the same age as the defendant, while retaining a white juror who wa s 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.

95exercised on the basis of group association, foster the

constitutional goal of an impartial jury, th e 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 reasoni ng of the United States Supreme Court in what was then the governing federal precedent. It is far-fetched to i nterpret the

state's reliance on Swain as a tacit admission that its peremptories in this case were based on race -- par ticularly since, in a footnote to the sentence quoted above, the state was careful to deny that its challenges were racial ly based.12

It is also unreasonable to draw an adverse inferenc e against the state for not providing race-neutral explanations for its challenges in its appellate br ief. Since there was no evidence in the record regarding the r easons for the strikes, the state could hardly have expect ed the state supreme court to base a decision on explanati ons provided without record support. The majority's arg uments 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 s erved on any of the three other first-degree murder trial s that had occurred in Kent County within a year of his own an d that in those cases the prosecution had peremptorily cha llenged

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

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12. The state's brief stated that it "emphatically denie[d] that the prosecutor exercised any of his challenges solely o n the assumption that the juror's race, in the context of the facts of th is case, indicated a verdict position adverse to the prosecution." App. 896. The majority seizes on the word "solely" in this sentence as a t acit admission that

race played a part in the decision to exercise peremptor ies. 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 potentia l jurors solely on account of their race.").

96convicted. With respect to these cases, no informat ion was

provided at the time -- and none has been provided since -- about the identities of the prosecutors who part icipated in jury selection, the racial makeup of the venire, or the race of jurors who were dismissed for cause or pere mptorily 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 cha llenge of the African American venireperson violated Batso n. See Deputy v. Taylor, 19 F.3d 1485, 1492 (3d Cir. 1994)

. Deputy's Batson argument was rejected in the distri ct court decision denying his petition for a writ of habeas corpus, and our court affirmed. See id. at 1492. Since it h as been held that no Batson violation was shown in Deputy, it is difficult to see how that case can be viewed as sup porting 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 suf ficed to make out a prima facie case.

The remaining case is the prosecution of Judith McB ride for murdering her husband. See McBride v. State , 4 77 A.2d 174 (Del. 1984). The state exercised a total of 10 strikes, of which three were against potential jurors identifie d as black.13 There is nothing to indicate that any Batson object ion was made. Without in effect holding a Batson hearing, t here is no way of determining whether any prosecution peremptories were based on race.

Although Riley was represented at the Batson hearin g by a professor of law and has been represented in the federal habeas proceeding by attorneys from one of the nati on's leading law firms, no expert analysis of these stat istics has ever been offered.14 According to the majority, how ever, the "sophisticated analysis of a statistician" is not n eeded to

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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 p osture of the case" provided "no opportunity" for Riley to offer an exp ert analysis of his statistics (Maj. Op. at 38) is difficult to underst and. What stopped Riley from offering the evidence of a statistician as to the significance of the scant statistics that Riley provided?97interpret 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 rando mly selecting four consecutive all white juries." Id.

Statistics can be very revealing -- and also terrib ly misleading in the hands of "an amateur with a pocke t calculator." The majority's simplistic analysis tre ats the prospective jurors who were peremptorily challenged as if they had no relevant characteristics other than rac e, as if they were in effect black and white marbles in a ja r from which the lawyers drew. In reality, however, these individuals had many other characteristics, and wit hout taking those variables into account, it is simply n ot possible to determine whether the prosecution's strikes were based on race or something else.

The dangers in the majority's approach can be easil y illustrated. Suppose we asked our "amateur with a p ocket calculator" whether the American people take right- or lefthandedness into account in choosing their President s. Although only about 10% of the population is left-h anded, left-handers have won five of the last six presiden tial

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 woul d suffice

to show that a Batson violation occurred in this ca se 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 adve rse inference should be drawn against the state for fai ling to come forward with data to rebut Riley's statistics. I see no basis for this approach. Whether an adverse inferen ce should be drawn under particular circumstances base d on

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15. See "Forget Left-Wing. Say Hello to Left-Handed Politics," New York Times, Jan. 23, 2000.

98a party's failure to produce evidence in a state pr oceeding

is in the first instance a question of state law, a nd unless

a state court's failure to draw such an inference i n a particular case denies due process or a fair and ad equate hearing, a federal habeas court should be reluctant to reject the state court's ruling. Cf. 28 U.S.C. S 22 54 (6) and (7) (1988 & Supp. 1990) (amended 1996). Moreover, e ven if

this were a collateral attack on a federal convicti on, we would defer to the decision of the judge who conduc ted the hearing as to whether the circumstances justified t he 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 inf erence certainly did not constitute an abuse of discretion . The state was never given notice that it had any obliga tion 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-- t he 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 c ases. Does the majority think that such a hearing would h ave 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 prospect ive jurors whom the state did and did not strike -- e.g ., their ages, marital status, education, occupations, and p ast experiences with law enforcement, to name just a fe w of the myriad variables that often figure in decisions abo ut peremptory challenges. We have no indication that s uch information was available, and in any event, compil ing and analyzing the data concerning a reasonable sample o f 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 Ril ey proffered.

99In sum, I see no ground for overturning the hearing

judge's credibility findings. I would thus hold tha t the presumption of correctness has not been overcome an d would reject Riley's Batson argument. The majority -- by in effect making its own credibility findings on the c old state court record -- seriously errs. See Marshall v. Lon berger,

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 penalt y phase of the trial violated Caldwell v. Mississippi , sup ra. In Caldwell, the defense attorney's closing argument a sked the jury to "confront both the gravity and responsibili ty of calling for another's death." 472 U.S. at 324. In r esponse, 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 tha t your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They kno w it. . . . For they know, as I know, and as [the judge] has told you, that the decision you render is automat ically reviewable by the Supreme Court.

Id. at 325-26.

By a vote of five to three, the United States Supre me Court reversed the defendant's death sentence. The plurality opinion approved by four justices conclud ed that the prosecutor's comments were improper for two rea sons: 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"wh olly 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 th e jury's role in the sentencing scheme is irrelevant to the sentencing decision." 472 U.S. at 341 (opinion of O 'Connor,

100J.) (emphasis added). However, she agreed that the

prosecutor's statements were improper because they "creat[ed] the mistaken impression that automatic a ppellate review of the jury's sentence would provide the

authoritative determination of whether death was appropriate," whereas in fact the state supreme cou rt exercised only a narrow scope of review. Id.

In subsequent cases, the Court has clarified the ho lding 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 positi on is controlling. See Marks v. United States, 430 U.S. 188, 193 (1977) . . . . Accordingly, we have sinc e 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 sent encing decision." Durden v. Wainwright, 477 U.S. 16 8, 184, n.15 (1986). Thus, "[t]o establish a Caldwel l violation, a defendant necessarily must show that the r emarks to the jury improperly described the role assig ned to the jury by local law." Dugger v. Adams, 489 U.S . 401, 407 (1989), see also Sawyer v. Smith, 497 U.S. 2 27, 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 sent encing process." Id. at 10.

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

As the Judge has explained to you we have a specific statute with regard to what occurred in a pe nalty hearing on a capital case.

Let me say at the outset that what you do to day is automatically reviewed by our Supreme Court and that is why there is an automatic review on the d eath

101penalty. That is why, if you return a decisi on of death,

that is why you will receive and have to fil l 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 yo u believe it beyond a reasonable doubt and if you want in your determination, if you believe the sentence s hould 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 b e 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 Supr eme Court responded to this argument as follows:

[T]he prosecutor's remarks in no way suggest ed that responsibility for ultimately determining wh ether defendant faced life imprisonment or death r ested elsewhere. The prosecutor's passing comment to the jury that its decision would be "automatical ly reviewed" was fairly made in the context of the prosec utor'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 simpl y quoting the statute. In no sense may it reasonably b e said that the prosecutor was either misstating the law

, misleading the jury as to its role, or minim izing 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 responsibil ity

because "the authoritative determination of whether death was appropriate" would be made by the state supreme

102court. 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 th e sentencing decision.' "17

The prosecutor's remarks in this case were very dif ferent. Here, the prosecutor made accurate, unemotional, pa ssing remarks in the context of describing the state stat ute and explaining why the jury would have to "fill out a t wo-page interrogatory" if it returned a capital sentence. T hese remarks did not convey the message that the jury sh ould not confront the gravity of returning a death verdi ct, 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 p rocess. In this connection, it is noteworthy that after the cl osing arguments, the trial judge instructed the jury on i ts role using language that left no doubt about its respons ibility. The trial judge stated: "Where the jury submits suc h a finding and recommendation, the Court shall sentenc e the defendant to death." See 585 A.2d at 731 (emphasis added). A "recommendation of death, supported by the eviden ce, 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 o n the Court." Id. at 734 (emphasis added). In light of th e substantial factual differences between Caldwell a nd this case, and in light of the Supreme Court's subsequen t explanation of the meaning of Caldwell, I would rej ect Riley's Caldwell claim.

The majority appears to hold that a Caldwell violat ion occurred simply because the prosecutor accurately s tated that there would be an automatic appeal to the stat e supreme court without attempting to explain the sco pe of review that the state supreme court would exercise. I do not agree with this reading of Caldwell. Neither Justic e

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16. Romano v. Oklahoma, 512 U.S. at 9 (quoting Dugg er v. Adams, 489 U.S. at 407).

17. Romano v. Oklahoma, 512 U.S. at 9 (quoting Durd en v. Wainwright, 477 U.S. at 184, n.15).

103O'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 Constituti on. And such a holding would make little sense. As the Seve nth

Circuit has noted:

Everyone knows that after a death sentence i s 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 t ake 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 h ere did not. I would therefore hold that no Caldwell v iolation

occurred.

III.

Reviewing habeas decisions in capital cases is one of the most important and difficult responsibilities of th is court.

Our role is vital -- but limited -- and is not to b e confused with that of the jury or the various branches of st ate 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