1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-2-1994

Reynolds v. Elingsworth, et al.

Precedential or Non-Precedential:

Docket 93-7106

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1 

 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

N0. 93-7106 

 

GEORGE L. REYNOLDS, 

Appellant 

v. 

JACK C. ELLINGSWORTH, Warden; 

CHARLES M. OBERLY, III 

 

On Appeal From the United States District Court 

For the District of Delaware 

(D.C. Civil Action No. 86-00142) 

 

Argued November 3, 1993 

 BEFORE: SLOVITER, Chief Judge, and STAPLETON, 

 Circuit Judges, and RESTANI,* Judge,

 United States Court of International

 Trade

(Opinion Filed May 2, 1994) 

 

 

 
2 

* Honorable Jane A. Restani, Judge of the United States Court of 

 International Trade, sitting by designation. 
3 

Beverly L. Bove (Argued) 

Tomar, Porks, Seliger, Simonoff & 

Adourian 

Suite 1701 Mellon Bank Center 

919 Market Street 

P.O. Box 955 

Wilmington, DE 19801 

 

 Attorneys for Appellant 

Loren C. Meyers (Argued) 

Deputy Attorney General 

Department of Justice 

State Office Building 

820 French Street 

Wilmington, DE 19801 

 Attorney for Appellee 

 

OPINION OF THE COURT

 

STAPLETON, Circuit Judge: 

 This appeal requires us to consider the situation of a 

criminal defendant whose lawyers make a tactical decision not to 

raise federal due process objections in the defendant's state 

trial or on state direct appeal, and do so under circumstances in 

which they could have a good faith expectation that the defendant 

would be able to raise these federal objections in state 

collateral review proceedings. The issue we address is whether 

the rule of Fay v. Noia, 372 U.S. 391 (1963), bars such a 

defendant from later raising his federal objections in federal 
4 

court through a petition for writ of habeas corpus. We hold that 

it does not. 
5 

I.

 In 1976, George Lee Reynolds was tried for felony 

murder, conspiracy, and robbery in the Superior Court of the 

State of Delaware. His alleged role in the crimes was to drive 

his two codefendants to and from the scene of the murder and 

robbery. The prosecuting Deputy Attorney General, in his opening 

statement to the jury, referred extensively to two purported 

confessions Reynolds had made to the police. Later in the trial, 

when the prosecution sought to introduce Reynolds' confessions 

into evidence, a hearing was held to determine their 

admissibility. At the hearing, the prosecution withdrew its 

proffer of the confessions. The prosecution never renewed its 

proffer,0 and the evidence it did present turned out to be weak.0

After the prosecution withdrew its proffer of Reynolds' 

confessions, Reynolds' counsel did not request a curative jury 

instruction regarding the Deputy Attorney General's opening 

statement, nor did Reynolds' counsel ask that a mistrial be 

declared. Reynolds was convicted and sentenced to life in 

prison. 

 

0In the separate trial of one of Reynolds' codefendants, the 

Delaware judge excluded Reynolds' confessions as unreliable 

because the police had induced them by making promises of freedom 

and a monetary reward to Reynolds that were "extravagant in the 

extreme." State of Delaware v. Rooks, 411 A.2d 316, 316 (Del. 

1980); see also, State v. Rooks, 401 A.2d 943 (Del. 1979). After 

excluding Reynolds' confessions, the judge directed a verdict of 

acquittal for Reynolds' codefendant. 

0See, e.g., Reynolds v. Ellingsworth, 843 F.2d 712, 716 n.10 (3d 

Cir. 1988), cert. denied, 488 U.S. 960 (1988) ("Reynolds I") 

(state's case was "weak"). 
6 

 Following a direct appeal to the Delaware Supreme 

Court, a remand by the supreme court to the trial court for 

further hearings in light of newly discovered evidence (at which 

hearings the chief investigating police officer appeared as a 

defense witness), and a second direct appeal to the supreme 

court, the supreme court affirmed Reynolds' conviction. Reynolds 

v. State, 424 A.2d 6 (Del. 1980). In none of these proceedings 

did Reynolds' counsel complain that Reynolds' federal rights had 

been violated at trial. 

 Reynolds then sought state collateral review of his 

conviction pursuant to Delaware Superior Court Criminal Rule 35.0

In that proceeding, he complained for the first time that the 

prosecutor's references to the confessions during his opening 

statement, coupled with the trial judge's failure to give a 

limiting jury instruction or to declare a mistrial sua sponte, 

denied Reynolds the due process required by the federal 

Constitution. 

 In the Rule 35 proceedings, the Delaware Superior Court 

held hearings to determine why Reynolds' lawyers had not raised 

his federal claims either at trial or on direct appeal. Reynolds' 

two trial lawyers, one of whom also represented Reynolds on 

direct appeal, testified at the hearings. Both said they had no 

 

0Delaware Superior Court Criminal Rule 35(a) provides: 

 (a) Correction of Sentence. The court 

may correct an illegal sentence at any time 

and may correct a sentence imposed in an 

illegal manner within the time provided 

herein for the reduction of sentence. 
7 

recollection, independent of the transcript they were supplied, 

that the Deputy Attorney General had mentioned Reynolds' 

confessions to the jury. Moreover, both testified that they did 

not remember why they had not requested a limiting instruction, 

moved for a mistrial, or complained on direct appeal about the 

prosecutor's statements. Each counsel did offer hypothetical 

explanations, based largely upon his usual practices and his 

review of the record, as to why, for tactical reasons, he might 

have conducted Reynolds' trial and/or direct appeal as he did. 

 Reynolds' lead trial lawyer, an experienced criminal 

defense attorney who made most of the tactical trial decisions, 

offered three reconstructive hypotheses as to why he might not 

have moved for a mistrial. The first hypothesis was that he did 

not want a mistrial because it would give the prosecution a 

second opportunity to proffer the confessions after having 

marshalled stronger evidence to support their admissibility. The 

second was that a motion for a mistrial might have prompted the 

prosecutor to ask for a recess and rethink his decision to 

withdraw the confessions. The third hypothesis was that defense 

counsel simply overlooked the issue -- in his words, "I didn't 

catch it," or "I blew it." Appendix at 368 and 364. When asked 

which hypothesis he "placed the most reliance on," Reynolds' lead 

trial counsel answered, "Intellectually, the first. Emotionally, 

the third." Appendix at 368. While denying any recollection on 

the subject, lead counsel also hypothesized that he did not ask 

for any cautionary instruction because it would serve primarily 

to refocus the jury's attention on the confessions. 
8 

 The defense counsel who handled the direct appeal gave 

the following testimony as to why the matter of the confessions 

had not been raised on appeal: 

 The reason it was not raised on appeal 

was because, as far as I am concerned, the 

better grounds for appeal were the 

interpretation of the stipulation regarding 

the truth serum and also the very good ground 

of the newly-discovered evidence when we had 

the investigating officer saying he believed 

the wrong man had been convicted. 

Appendix at 382. 

 The superior court analyzed the testimony of Reynolds' 

counsel to ascertain whether Reynolds had shown "cause" for his 

failure to raise his due process claims at trial or on direct 

appeal. The superior court performed this analysis because it 

interpreted the Delaware Supreme Court's opinion in Conyers v. 

State, 422 A.2d 345 (Del. 1980), to impose a contemporaneousobjection requirement for preserving Rule 35 review, and to adopt 

the United States Supreme Court's Wainwright v. Sykes "cause and 

prejudice" test as the Delaware standard for deciding whether to 

impose a procedural bar for failure to comply with the 

contemporaneous-objection requirement. State v. Reynolds, Nos. 

76-04-0026; 0027; 0027A, letter op. at 2-3 (Del. Super. Ct. Dec. 

9, 1983). In Sykes, 433 U.S. 72 (1977), the United States 

Supreme Court held that a state criminal defendant forfeits the 

availability of federal habeas review if his lawyer fails to 

raise his federal claim at the time or in the manner specified by 

"independent and adequate" state procedural requirements unless 
9 

the defendant can show "cause" for his counsel's state default 

and "prejudice" resulting from it. 

 The superior court held that Reynolds had failed to 

show "cause" for his trial and appellate lawyers' silence 

regarding his federal due process claims, and therefore ruled 

that Conyers barred Reynolds from raising the claims in state 

collateral review proceedings. State v. Reynolds, Nos. 76-04-

0026; 0027; 0027A, letter op. at 7 (Del. Super. Ct. Dec. 9, 

1983). The Delaware Supreme Court upheld the superior court's 

decision. Reynolds v. State, No. 370 1983, letter op. (Del. 

Jan. 16, 1985). 

 Reynolds filed pro se a second Rule 35 motion raising 

federal constitutional claims of ineffective assistance of 

counsel. The superior court denied Reynolds' second Rule 35 

motion as repetitive. State v. Reynolds, No. IS76-04-0026, 0027, 

letter op. at 2 (Del. Super. Ct. Mar. 12, 1986). Reynolds did 

not appeal. Reynolds I, 843 F.2d at 723. 

 Reynolds later filed a pro se petition for a writ of 

habeas corpus in the United States District Court for the 

District of Delaware pursuant to 28 U.S.C. § 2254. His petition 

raised both unfair trial and ineffective assistance of counsel 

claims. The unfair trial claims were based on the prosecutor's 

reference to Reynolds' confessions and the failure of the trial 

judge sua sponte to instruct the jury to disregard that 

reference. The district court referred the case to a magistrate 

judge who recommended that Reynolds' unfair trial claims be 

barred from habeas review under the "cause and prejudice" or 
10 

"independent and adequate state ground" test of Wainwright v. 

Sykes, supra. The magistrate judge recommended that Reynolds' 

ineffective assistance claims be rejected on their merits. The 

district court adopted the magistrate's recommendations, and 

denied Reynolds' habeas petition. Reynolds I, 843 F.2d at 716. 

 Reynolds appealed the district court's dismissal of his 

habeas petition. We reversed the district court's ruling that 

Reynolds' unfair trial claims were procedurally barred. The 

Delaware courts' determination that Reynolds had forfeited his 

opportunity for Rule 35 review, we concluded, was not based on an 

independent and adequate state procedural ground of default as 

required by Sykes. Reynolds I, 843 F.2d at 719. Essentially, we 

found that the Delaware courts had subjected Reynolds to a new 

contemporaneous-objection requirement when they reviewed his Rule 

35 motion, a requirement which had not existed at the time 

Reynolds could have contemporaneously objected.0 While the 

 

0See Reynolds I, 843 F.2d at 719: 

To decide whether Conyers provides an 

"independent and adequate" basis for 

precluding federal habeas review of 

Reynolds's claims, we turn to the three 

factors upon which the Supreme Court relied 

to so decide in Sykes, to wit: whether the 

state procedural requirement is stated in 

"unmistakable terms," whether the state 

courts have refused to review the claims on 

the merits, and whether the state courts' 

refusal in this instance is "consistent" with 

other state decisions. Id. at 85-86, 97 S. 

Ct. at 2505-06. 

 Notwithstanding the Delaware courts' 

refusal to consider the merits of Reynolds's 

claims, we find that the Conyers decision 
11 

Delaware courts might be free to impose a surprise forfeiture 

rule to preclude state collateral review of a state trial's 

compliance with federal law, we held that state forfeiture-bysurprise was an inadequate ground for precluding federal 

collateral review. We also found that Reynolds had not exhausted 

his available state remedies regarding his ineffective assistance 

claims. Accordingly, we reversed the district court's 

disposition of both Reynolds' unfair trial claims and his 

ineffective assistance claims. We remanded for further 

proceedings consistent with our opinion. In our opinion, we 

noted that, if Reynolds chose to amend his petition to drop his 

unexhausted ineffective assistance claims, the district court 

 

does not constitute an "independent and 

adequate state procedural ground" barring 

federal courts from habeas review of the due 

process claim raised here. No specific 

Delaware procedural rule governs, in 

"unmistakable terms," Sykes, 433 U.S. at 85, 

97 S. Ct. at 2505, the precise claim raised 

in Reynolds's Rule 35 motion, namely, that 

due process was denied by the prosecutor's 

over-reaching coupled with the absence of the 

judge's sua sponte limiting instruction or 

declaration of mistrial. In addition, the 

Delaware courts' invocation of Conyers is not 

consistent with other state authority. Thus, 

of the three elements that could support a 

conclusion that this state procedural 

requirement is "adequate" to preclude federal 

review, two are blatantly missing here. 

See also id. at 720 ("Whether enunciated by court rule or case 

law, there is no Delaware procedural rule on point, and therefore 

Reynolds violated none."); id. at 722 ("Even if we were to 

conclude that a new Delaware procedural rule was created by 

Conyers, we could not also conclude that the rule barred 

collateral federal review, where it was applied to claims [like 

Reynolds' claims] for the first time in the instant case."). 
12 

"could then proceed to the merits" of Reynolds' unfair trial 

claims. Reynolds I, 843 F.2d at 724 n.22. 

 On remand, Reynolds dropped his ineffective assistance 

claims, and the district court once again referred his unfair 

trial claims to a magistrate judge. This time the magistrate 

judge considered the merits of Reynolds' unfair trial claims, and 

recommended that the claims be dismissed. Reynolds v. 

Ellingsworth, No. 86-142-JRR, 1992 WL 404453, at *6 (D. Del. 

Dec. 31, 1992). The district court, however, decided once again 

that it was barred from considering the merits of Reynolds' 

unfair trial claims. This time the district court ruled that 

Reynolds' habeas petition was barred under the "deliberate 

bypass" rule of Fay v. Noia, 372 U.S. 391 (1962), a rule we had 

no occasion to address directly in Reynolds I. 

 The district court interpreted Fay to require that 

Reynolds' federal due process claims be barred from federal 

habeas review if, for strategic reasons, Reynolds' counsel 

deliberately bypassed the opportunity to object at trial and on 

appeal to the Deputy Attorney General's opening statements and 

the trial court's failure to give a curative instruction. 

Applying 28 U.S.C. § 2254(d), the district court ruled that it 

was bound by what it characterized as the Delaware Superior 

Court's "factual determination that Reynolds' counsel 

intentionally decided not to object or move for a mistrial." 

Reynolds v. Ellingsworth, No. 86-142-JRR, 1992 WL 404453, at *8 

(D. Del. Dec. 31, 1992). Therefore, the district court held, 

"because of his counsel's intentional decision to forgo objection 
13 

to the prosecution's opening statement, Reynolds is precluded 

from mounting a due process challenge to the effect of the 

statement upon the fairness of his trial." Id. at *9. 

 Reynolds now appeals the district court's second 

refusal to consider the merits of his due process claims. 

II.

 Our legal analysis is premised on two threshold 

assumptions, one legal and the other factual. First, we assume 

that Fay v. Noia has survived Sykes, supra, and Coleman v. 

Thompson, 111 S. Ct. 2546 (1991). Second, we assume that 

Reynolds' counsel made strategic decisions not to move for a 

mistrial or ask for a curative instruction. 

 There is substantial support for the view that the 

"independent and adequate state law ground" rule, as applied in 

cases like Sykes, Murray v. Carrier, 477 U.S. 478 (1986), and 

Coleman v. Thompson, 111 S. Ct. 2546 (1991), has subsumed the 

"deliberate bypass" rule of Fay.

0 If Fay is currently without 

 

0In creating and applying the "cause and prejudice" standard in 

Sykes and Carrier, the Supreme Court "limited Fay to its facts." 

Coleman, 111 S. Ct. at 2563, 2564. In Coleman, the Supreme Court 

went further, stating: 

 In Harris [v. Reed, 489 U.S. 255 

(1989)], we described in broad terms the 

application of the cause and prejudice 

standard, hinting strongly that Fay had been 

superseded . . . . 

 We now make it explicit: In all cases in 

which a state prisoner has defaulted his 

federal claims in state court pursuant to an 

independent and adequate state procedural 
14 

independent significance, of course, the judgment of the district 

court cannot be upheld in light of our holding in Reynolds I. 

Since we conclude that Reynolds' petition would merit review 

under Fay as well as Sykes, and that a reversal is required even 

if Fay retains independent vitality, we will assume arguendo that 

the district court properly looked to Fay as a relevant 

precedent. 

 With respect to the factual predicate for our decision, 

we note, again, that the purpose of the evidentiary hearing in 

the superior court in the first Rule 35 proceeding was to 

determine whether Reynolds could show "cause" and "prejudice" 

under Conyers and Sykes. Reynolds maintained in that proceeding 

that the ineffective assistance of his counsel with respect to 

the confession references provided "cause" under Conyers and 

 

rule, federal habeas review of the claims is 

barred unless the petitioner can demonstrate 

cause for the default and actual prejudice as 

a result of the alleged violation of federal 

law, or demonstrate that failure to consider 

the claims will result in a fundamental 

miscarriage of justice. Fay was based on a 

conception of federal/state relations that 

undervalued the importance of state 

procedural rules. 

* * * 

. . . By applying the cause and prejudice 

standard uniformly to all independent and 

adequate state procedural defaults, we 

eliminate the irrational distinction between 

Fay and the rule of cases like Francis[v. 

Henderson, 425 U.S. 536 (1976)], Sykes, 

Engle[v. Isaac, 456 U.S. 107 (1982)], and 

Carrier. 

111 S. Ct. at 2564-65. 
15 

Sykes to excuse his failure to make a contemporaneous objection. 

The superior court held that Reynolds had not satisfied his 

burden of proof on the cause issue and characterized the record 

as reflecting a situation like that involved in Engle v. Isaac, 

456 U.S. 107 (1982), a case in which the Supreme Court held that 

neither a deliberate strategic decision nor an inadvertent 

failure of counsel to raise an issue constitute "cause" unless 

counsel's performance has failed to meet the Sixth Amendment 

standard for competent assistance, 456 U.S. at 133-34; see also

Murray v. Carrier, 477 U.S. at 485-87. The superior court cast 

its holding as follows: 

Defendant contends that the reason for the 

failure of his attorneys to raise the issue 

at trial or at the appeal stage was either 

inadvertence or lack of knowledge of the 

applicable law. I do not find that those 

contentions have been proved by this record. 

 4. Considering the experience and 

competence of defendant's attorneys and the 

quality of the defense made in this case, I 

find that the situation here falls squarely 

within the language of Engle that "[c]ounsel 

might have overlooked or chosen to admit 

[omit] respondents' due process argument 

while pursuing other avenues of defense". 

Under the reasoning of Engle the situation 

existing here does not constitute cause 

justifying relief from the failure to make 

timely objection. 

State v. Reynolds, Nos. 76-04-0026; 0027; 0027A, letter op. at 

6-7 (Del. Super. Ct. Dec. 9, 1983). 

 In the course of his opinion, the superior court judge 

also described the testimony of defense counsel that we have 
16 

summarized above. That description included the following 

observations: 

It is clear from the testimony of the 

defendant's attorneys that they viewed the 

announcement of the Deputy Attorney General 

that he would not seek to introduce the 

confession in evidence as a substantial 

victory and that they desired to push forward 

to conclude the trial because they then 

anticipated a verdict in defendant's favor. 

Defendant's lead trial counsel testified that 

he did not seek an admonition from the Court 

for the jury to disregard the Deputy Attorney 

General's prior reference to the confession 

because it would only focus attention on the 

prior references. With reference to his not 

seeking a mistrial, he testified that he had 

had no recollection of his mental processes. 

However, he testified, based upon his 

experience, that after two or three days of 

trial a jury forgets what was said in an 

opening statement. . . . Defendant's other 

attorney . . . testified that . . . he felt 

that raising [the prosecutor's reference to 

the confessions] would detract from the more 

meritorious arguments which were the thrust 

of the appeal. 

State v. Reynolds, Nos. 76-04-0026; 0027; 0027A, letter op. at 

5-6 (Del. Super. Ct. Dec. 9, 1983). 

 Both the Supreme Court of Delaware and the district 

court read the superior court's opinion as finding that Reynolds' 

counsel made deliberate strategic decisions not to ask for a jury 

instruction or a mistrial. The district court regarded this 

factual finding as supported by the evidence and therefore 

binding upon it under 28 U.S.C. § 2254(d). 

 We have no difficulty in concluding that the evidence 

before the superior court would have supported a factual finding 

that strategic decisions were made. That hypothesis would seem 
17 

to be the most reasonable one given the general quality of 

counsel's trial performance and the fact that it would appear to 

have been in Reynolds' best interest not to seek a mistrial. In 

that way, he could see what the jury would do with the state's 

weak evidence and, if he was convicted, the then existing 

Delaware law did not appear to foreclose him from raising his due 

process objections later. If counsel deliberately chose this 

course, it would clearly have been permissible trial strategy not 

to resurrect the state's opening by asking for a curative 

instruction. 

 While we are thus confident that the evidence before 

the Superior Court would support a factual finding of strategic 

decision making, we are less confident about the district court's 

holding that it was required by 28 U.S.C. § 2254(d) to presume 

that such decision making occurred. Before the presumption 

provided in Section 2254(d) arises, it must appear that "the 

merits of the factual dispute [in the district court] were 

resolved in the State Court hearing." 28 U.S.C. § 2254(d)(1). 

While the issue found crucial by the district court was whether 

deliberate strategic decisions were made, the holding of the 

superior court was that Reynolds' counsel either overlooked the 

issue or made a strategic decision, neither of which would 

constitute cause under Conyers and Sykes. While we acknowledge 

that there is language in the superior court's opinion from which 

it can be inferred that it believed strategic decisions were 

made, the superior court's statement of its ultimate conclusion 
18 

and its focus on the Conyers cause issue make the district 

court's approach to the Fay v. Noia issue problematic. 

 Nevertheless, we will assume, consistent with the 

district court's approach, that Reynolds' counsel made strategic 

decisions not to request a mistrial and not to ask for a curative 

instruction. We do so because our present task -- reviewing the 

district court's refusal to reach the merits of Reynolds' due 

process arguments -- does not require us to determine whether or 

not such decisions were made.0 We may assume arguendo that 

strategic decisions were made because the district court's 

refusal was inappropriate even if strategic decisions were made. 

 While we thus accept that Reynolds' counsel made 

strategic decisions not to move for a mistrial and not to ask for 

an instruction, we emphasize before proceeding with our legal 

analysis that neither the superior court nor any other court has 

found that Reynolds' counsel made a strategic decision to forego 

state process in order to seek federal habeas corpus relief. Nor 

is there any reason to infer such an intent. As we pointed out 

in Reynolds I, Reynolds' counsel at the time of trial had no 

reason to anticipate that the failure to ask for a mistrial or a 

jury instruction (or even the failure to raise the confession 

issue on direct appeal) would bar consideration of Reynolds' due 

 

0Because the district court on remand will be required to reach 

the merits of Reynolds' unfair trial due process claims, and 

because Reynolds has withdrawn his constitutionally ineffective 

assistance claims, we do not foresee that the district court will 

again be required to decide whether the superior court "resolved" 

the "strategic decision" issue within the meaning of § 2254(d)(1) 

and we express no opinion on that issue. 
19 

process claims in a state post-conviction relief proceeding under 

Rule 35. 

III.

 In Fay v. Noia, Noia, the petitioner, claimed that he 

had been convicted on the basis of a coerced confession in 

violation of the Fifth and Fourteenth Amendments. He had not 

appealed his conviction, however, and he was subsequently denied 

state post-conviction relief because of this failure to appeal. 

The Supreme Court held that he was entitled to federal habeas 

review of his contention that he was being confined in violation 

of the federal Constitution. 

 The Court in Fay viewed its task as determining "the 

proper accommodation of [the] great constitutional privilege [of 

habeas review] and the requirements of the federal system." 372 

U.S. at 426. It reaffirmed the power of a federal habeas court 

to grant relief from unconstitutional state confinement where 

state courts have rejected or refused to consider the 

petitioner's constitutional argument. The limitations which it 

recognized on the appropriate exercise of that power were 

grounded in federalism and the necessity of comity between the 

federal and state court systems. 

 The Court noted the exhaustion doctrine codified in 28 

U.S.C. § 2254, observing that "it would be unseemly in our dual 

system of government for a federal district court to upset a 

state court conviction without an opportunity to the state courts 

to correct a constitutional violation." Id. at 419-20, quoting 

from Darr v. Burford, 339 U.S. 200, 204 (1950). The Fay court 
20 

held, however, that the exhaustion doctrine of § 2254 barred 

federal review only when there were state remedies still 

available to the petitioner at the time of his petition. 372 

U.S. at 434-35. 

 The Fay court also held that the "independent and 

adequate state ground" doctrine that barred direct review by the 

Supreme Court of state judgments having a basis in state law 

should not be applied to bar habeas review in federal district 

courts. Thus, the fact that a habeas petitioner had violated a 

state procedural rule and was thereby barred from further state 

review of a federal constitutional issue did not alone foreclose 

federal habeas relief. 372 U.S. at 428-34. 

 The Fay court nevertheless did recognize that there 

were situations not covered by the exhaustion doctrine in which 

the "exigencies of federalism" counselled against federal habeas 

review: 

[T]he exigencies of federalism warrant a 

limitation whereby the federal judge has 

discretion to deny relief to one who has 

deliberately sought to subvert or evade the 

orderly adjudication of his federal defenses 

in the state courts. 

 * * * 

We therefore hold that the federal habeas 

judge may in his discretion deny relief to an 

applicant who has deliberately bypassed the 

orderly procedures of the state court and in 

doing so has forfeited his state remedies.

372 U.S. at 433, 438 (emphasis supplied). 

 The Fay court's conclusion with regard to the 

"independent and adequate state ground" doctrine was subsequently 
21 

abandoned in Wainwright v. Sykes, 433 U.S. 72 (1977), because it 

was "based on a conception of federal/state relations that 

undervalues the importance of state procedural rules." Coleman 

v. Thompson, 111 S. Ct. 2546, 2565 (1991). Where state review of 

a federal claim is barred because of a habeas petitioner's 

noncompliance with a state procedural requirement, comity 

counsels that the independent and adequate state ground doctrine 

be applied to bar collateral access to the federal courts in the 

absence of a showing of "cause and prejudice." 

Just as in those cases in which a state 

prisoner fails to exhaust state remedies, a 

habeas petitioner who has failed to meet the 

State's procedural requirements for 

presenting his federal claims has deprived 

the state courts of an opportunity to address 

those claims in the first instance. . . . The 

independent and adequate state ground 

doctrine ensures that the States' interest in 

correcting their own mistakes is respected in 

all federal habeas cases. 

Coleman, 111 S. Ct. at 2555. 

 With this background, we turn to the "deliberate 

bypass" doctrine articulated in Fay. It is this doctrine that 

was applied by the district court to bar Reynolds' access to the 

federal courts after we had determined that such access was not 

barred by the independent and adequate state ground doctrine. The 

important point for present purposes is that, like the doctrines 

of exhaustion and independent and adequate state ground, the 

deliberate bypass doctrine finds its justification in comity 

concerns. A petitioner should not be able to secure federal 

relief if he has deliberately deprived the state judicial system 

of an opportunity to correct the alleged constitutional error. 
22 

As articulated by the Supreme Court in Fay, the deliberate bypass 

doctrine is a waiver doctrine. "The classic definition of waiver 

. . . -- 'an intentional relinquishment or abandonment of a known 

right or privilege' -- furnishes the controlling standard." 372 

U.S. at 439. The doctrine applied only when the "habeas 

applicant . . . understandingly and knowingly forewent the 

privilege of seeking vindication of his federal claims in the 

state courts." Id. 

 Fay's rationale for the deliberate bypass doctrine is 

inapplicable to the facts of this case. Reynolds did not 

understandingly and knowingly forego the privilege of seeking to 

vindicate his federal claims in the Delaware courts, nor have his 

counsel been found to have made a decision to bypass state 

process for federal. Accordingly, he cannot be said to have 

deprived the Delaware courts of the opportunity to pass on his 

constitutional contention. On the contrary, Reynolds tried to 

raise his federal claims in Delaware Superior Court and in the 

Delaware Supreme Court pursuant to Delaware's collateral review 

procedures. If his trial and appellate counsel made a strategic 

decision to bypass state trial and appellate procedures, it was 

on the basis of a state legal landscape in which they could go 

forward in the hope of an acquittal by the jury and raise the due 

process argument in a Rule 35 proceeding. 

 Because Reynolds' counsel could not have anticipated 

that their failure to raise the federal due process claims at 

trial and on direct review would prevent Reynolds from raising 

the claims in state collateral review proceedings, they could not 
23 

have deliberately forfeited Reynolds' chance at state review of 

his federal claims. And, "if neither the state legislature nor 

the state courts indicate that a federal constitutional claim is 

barred by some state procedural rule, a federal court implies no 

disrespect for the State by entertaining the claim." County 

Court v. Allen, 442 U.S. at 154. 

 The most helpful Supreme Court precedent in this 

context is Lefkowitz v. Newsome, 420 U.S. 283 (1975). Newsome, 

the petitioner there, pleaded guilty in a New York state court to 

possessing heroin. He subsequently sought federal habeas review 

of the constitutionality of the search of his person that 

disclosed the heroin. The respondent argued that, as a matter of 

federal habeas corpus law, a defendant who pleads guilty to an 

offense in a state court waives his right to federal habeas 

corpus review of any constitutional issues other than those 

involving the plea itself. The Supreme Court recognized that 

this was the general rule and explained the rule by reference to 

the deliberate bypass doctrine of Fay: 

A defendant who chooses to plead guilty 

rather than go to trial in effect 

deliberately refuses to present his federal 

claims to the state court in the first 

instance. McMann v. Richardson, supra, at 

768. Once the defendant chooses to bypass 

the orderly procedure for litigating his 

constitutional claims in order to take the 

benefits, if any, of a plea of guilty, the 

State acquires a legitimate expectation of 

finality in the conviction thereby obtained. 

Cf. Fay v. Noia, 372 U.S. 391, 438. 

 The Supreme Court refused to apply the deliberate 

bypass rule in Newsome's case, however, because New York law 
24 

allowed a defendant to plead guilty and ascertain what sentence 

he would receive and thereafter pursue all of his constitutional 

claims in the state appellate process. The Supreme Court held 

that, where a state voluntarily chooses not to give a conviction 

based on a guilty plea the normal preclusive effect in its own 

courts, there is no federal justification for denying federal 

habeas review of federal constitutional issues.0 So long as the 

petitioner has complied with the procedure required by state law, 

 

0In the name of federalism, the dissent insists that concern for 

a "State's interest in the finality of its criminal judgments" 

(Dis. typescript op. at 6) justifies a federal rule precluding 

federal habeas review even in the absence of a state procedural 

default. Lefkowitz, as we read it, teaches that federalism 

requires federal courts to permit a state to determine how 

"final" its own judgments will be. New York had there decided 

that a New York criminal judgment based on a guilty plea would 

not preclude a subsequent challenge in the New York courts on 

constitutional grounds. The respondent urged a federal rule that 

would give greater finality to New York criminal judgments in 

federal habeas courts than New York had chosen to give its 

criminal judgments in its own courts. The Supreme Court rejected 

this suggestion, holding that judgments based on guilty pleas 

should be given the same degree of finality in federal habeas 

courts as the state entering the judgment would give it. 

 Because all human institutions are fallible, no 

judicial system of which we are aware has chosen to insist on 

absolute finality. Each judicial system strikes a balance 

between the stability concerns served by judgments that preclude 

further proceedings and the justice concerns served by rules 

permitting alleged injustices to be reviewed after judgment is 

entered. A state's position with respect to the necessity for 

contemporaneous objections necessarily reflects its judgment 

about how these conflicting concerns should be reconciled. The 

creation of a federal contemporary objection rule in this case, 

as urged by the dissent, would give Reynolds' criminal judgment 

greater finality in a federal habeas court than Delaware had 

chosen to give its judgments in its own courts at the time of 

Reynolds' trial. We believe this would be inconsistent with the 

federalism concerns of Fay and Lefkowitz. 
25 

his deliberate decision to avail himself of the benefits of 

pleading guilty should not bar federal review. 

 The Supreme Court stressed in Lefkowitz that applying 

the respondent's rule "would make New York's law a trap for the 

unwary" because defendants could understandably believe they had 

the option of availing themselves of the benefits of a guilty 

plea while preserving their right to appellate review of their 

constitutional issues and might only later discover that they had 

inadvertently waived their right to federal habeas review. 

 We read Lefkowitz to hold that Fay's deliberate bypass 

doctrine is based on comity and that it does not bar federal 

habeas review in the absence of a procedural default under state 

law. Lefkowitz's teaching for this case seems clear to us. Just 

as New York law afforded state appellate review despite a guilty 

plea, Delaware law afforded state habeas review despite the 

absence of a contemporary objection. Since Reynolds, like 

Newsome, complied with the procedural requirements of the courts 

of his state and provided them with an opportunity to pass on his 

constitutional claim, he, like Newsome, cannot be said to have 

engaged in a deliberate bypass of state process. To hold 

otherwise would fashion from Delaware law no less of a "trap for 

the unwary" than a contrary result in Lefkowitz would have 

fashioned from New York law.0

 

0Four years after Lefkowitz, in County Court of Ulster County v. 

Allen, 442 U.S. 140 (1979), the Supreme Court considered the case 

of three habeas petitioners who complained that they had 

been convicted of firearms possession in state court on the basis 

of an unconstitutional state evidentiary presumption. Only after 

they had been convicted did the petitioners raise the federal 
26 

 We believe Lefkowitz's reading of Fay is inconsistent 

with the interpretation which the Court of Appeals for the 

Seventh Circuit has given to the deliberate bypass doctrine. In 

Brownstein v. Director of Illinois Dep't of Corrections, 760 F.2d 

 

issue in state court. In the ensuing federal habeas proceeding, 

the respondent argued that review was precluded by the deliberate 

bypass doctrine. Id. at 146. The Supreme Court ruled that the 

petitioners were entitled to federal habeas recourse because the 

state had never adopted a clearly applicable contemporaneousobjection policy. Id. at 150. The Court expressed no concern 

that the petitioners' failure to raise their federal objection 

until after the jury's verdict was announced might actually have 

been a "deliberate" or "strategic" decision by the petitioners. 

It saw comity as the sole relevant issue and rejected the 

respondent's position because "if neither the state legislature 

nor the state courts indicate that a federal constitutional claim 

is barred by some state procedural rule, a federal court implies 

no disrespect for the State by entertaining the claim." Id. at 

154. 

 In Lefkowitz and Ulster County, state appellate courts 

had addressed the petitioners' federal claims on their merits. 

This does not distinguish Lefkowitz and Ulster County from this 

case, however. Under the federal habeas law we applied in 

Reynolds I, where a respondent urges that there has been a 

procedural default, the claim must be treated as one involving no 

procedural default if, inter alia, (1) the state procedural 

requirement has not been enunciated in "unmistakable terms," (2) 

the state courts have not insisted on that requirement in 

petitioner's case and have reached the merits, or (3) the state 

courts have insisted on the requirements in petitioner's case but 

in doing so have acted in a manner inconsistent with other state 

cases. See footnote 4, supra. In cases where there has been no 

procedural default, or any alleged default that may have occurred 

does not meet these three criteria, there is no independent and 

adequate state law ground for the judgment. The absence of an 

independent and adequate state law ground in Reynolds' case is 

precisely the reason we permitted his habeas petition to go 

forward in Reynolds I, and it is what makes his situation 

equivalent to that of the petitioners in Lefkowitz and Ulster 

County. 
27 

836 (7th Cir. 1985), cert. denied, 474 U.S. 858 (1985), the court 

held that federal habeas review is barred, even in the absence of 

a procedural default by the petitioner under state law, where the 

petitioner engaged in "strategic behavior" in the state court. 

Id. at 841. In that case, the state trial judge had neglected to 

secure an express waiver of the petitioner's right to a jury 

trial prior to the petitioner's bench trial. The petitioner 

candidly admitted during his federal habeas hearing that he was 

aware during his trial both of his right to a jury and of the 

fact that his trial judge was committing reversible error by 

failing to secure an express waiver. He did not object, however, 

because his counsel believed he could "use the judge's omission 

to secure a new trial, should he lose the first time around." Id.

at 839. Under Illinois law, no objection was required to 

preserve this specific issue, and a new trial was mandated even 

if no prejudice was shown. 

 The Brownstein court began by quoting Fay's holding: 

"The federal habeas judge may in his discretion deny relief to an 

applicant who has deliberately by-passed the orderly procedure of 

the state courts and in doing so has forfeited his state court 

remedies." Id. at 839. It seems to us that the court then 

proceeded to ignore this holding, finding that the petitioner was 

barred from federal habeas review under Fay by his "strategic 

behavior," even though he had neither "by-passed the orderly 
28 

procedure of the state courts" nor "forfeited his state 

remedies."0 We respectfully decline to follow suit. 

 We have found no Supreme Court case and no Court of 

Appeals case other than Brownstein that recognizes or gives 

content to the concept of "strategic behavior" outside the 

context of a state procedural default.0 Moreover, we think it 

 

0We perceive some irony in the fact that Brownstein finds a 

"strategic behavior" bar implicit in Fay. In Fay, it will be 

recalled, the state procedural default was a failure to assert 

the coerced confession claim in a direct appeal. Noia made a 

deliberate decision not to appeal in part because he had not 

received a death sentence and feared he might receive one if 

convicted after a new trial. Only fourteen years later, after 

the state's ability to retry him in the absence of the confession 

had been impaired, did he seek collateral relief, first from the 

state and then from the federal court. The Supreme Court 

recognized that Noia had obtained a benefit from his procedural 

default. His strategic behavior was of no moment, however, 

because "[u]nder no reasonable view can the State's version of 

Noia's reason for not appealing support an inference of 

deliberate by-passing of the state court system." 372 U.S. at 

439 (emphasis supplied). 

0All but one of the habeas cases the district court cited as 

authority for refusing to entertain Reynolds' habeas petition 

involved bars to federal habeas review premised on state 

procedural default, forfeiture rules which the defendants and/or 

their counsel were or should have been aware of, or, 

equivalently, a petitioner's deliberate abandonment of state 

recourse in favor of collateral federal review. See Reed v. 

Ross, 468 U.S. 1, 8 & n.5, 10 (1984) ("Under North Carolina law, 

exceptions to jury instructions must be made after trial if they 

are to be preserved for appellate review, and errors that could 

have been raised on appeal may not be raised for the first time 

in postconviction proceedings."); Wainwright v. Sykes, 43 U.S. at 

76 n.5 (Florida Rule Crim. Proc. 3.190(i) imposed a 

"contemporaneous objection rule"); Henry v. Mississippi, 379 U.S. 

443, 445, 448 & n.3 (1965) (petitioner failed to comply with a 

Mississippi contemporaneous-objection requirement; procedural 

defaults in state proceedings do not prevent vindication of 

federal rights in federal court except "where state rule is a 

reasonable one and clearly announced to defendant and counsel"); 

Beaty v. Patton, 700 F.2d 110 (3d Cir. 1983) (rather than 

petition Pennsylvania Supreme Court for allocatur, defendant 

petitioned federal court for writ of habeas corpus); United 
29 

would be unwise and unfair to impose upon defense counsel the 

burden of determining, on pain of having waived their clients' 

right to federal habeas review, not only whether each tactical 

trial choice is permissible under state law but also whether it 

may ultimately be considered by a federal court to constitute 

"strategic behavior." 

 Finally, we believe application of the Seventh 

Circuit's "strategic behavior" concept to bar federal habeas 

review in this case would do by way of federal law precisely what 

we said in Reynolds I Delaware could not do by way of state law 

-- bar federal habeas review through the creation and retroactive 

application of a contemporaneous objection rule Reynolds' counsel 

had no reason to anticipate. Clearly, the Supreme Court could 

impose a "strategic behavior" restriction on access to federal 

habeas review as the dissent suggests. We do not believe it has 

done so, however. Further, having determined, as we recognized 

 

States ex rel. Abdul-Sabur v. Cuyler, 653 F.2d 828 (3d Cir. 

1981), aff'g 486 F. Supp. 1141, 1162 & n.31 (E.D. Pa. 1980) 

(Becker, Dist. J.) ("classic example of waiver"; "under 

Pennsylvania law, contemporary-objection is required to preserve 

an issue for appeal"), cert. denied, 454 U.S. 1088 (1981); Green 

v. Rundle, 452 F.2d 232, 236-37 (3d Cir. 1971) (under 

Pennsylvania law, motions to sever multiple indictments and 

motions regarding jury instructions must be made on timely 

basis). 

 The final habeas case relied upon by the district court 

is Estelle v. Williams, 425 U.S. 501 (1976), which we understand 

to have granted habeas review and to have addressed the merits of 

the petitioner's claim. Estelle ruled that, because the 

petitioner had not asked to wear civilian clothing during his 

state trial, the state could not have "compelled" him to be tried 

in prison clothing in violation of the Fourteenth Amendment. 425 

U.S. at 512-13. 
30 

in Reynolds I, that states may not bar federal habeas review 

under the independent and adequate state ground doctrine of Sykes

by unfairly applying a new contemporaneous objection rule 

retroactively, we doubt that the Supreme Court would see fit to 

create and retroactively apply a contemporaneous objection rule 

of its own.0

 

0Cf. Ford v. Georgia, 111 S. Ct. 850, 858 (1991) (retroactively 

applied state procedural-default rule not adequate to preclude 

direct review by U.S. Supreme Court of equal protection attack on 

state court judgment). 
31 

IV.

 The judgment of the district court will be reversed, 

and this proceeding will be remanded to the district court for 

consideration of the merits of Reynolds' petition. 
32 

George L. Reynolds v. Jack C. Ellingsworth, Warden;

Charles M. Oberly, III, No. 93-7106 

SLOVITER, Chief Judge, dissenting. 

 Last term in Brecht v. Abrahamson, 113 S. Ct. 1710, 

1719 (1993), the Supreme Court reiterated the principle that 

state court convictions should be challenged primarily through 

direct review. The Court emphasized, as it has before, that the 

Great Writ of habeas corpus is to be reserved for extraordinary 

situations: 

The principle that collateral review is 

different from direct review resounds 

throughout our habeas jurisprudence. Direct 

review is the principal avenue for 

challenging a conviction. "When the process 

of direct review . . . comes to an end, a 

presumption of finality and legality attaches 

to the conviction and sentence. The role of 

federal habeas proceedings, while important 

in assuring that constitutional rights are 

observed, is secondary and limited. Federal 

courts are not forums in which to relitigate 

state trials." 

 In keeping with this distinction, the 

writ of habeas corpus has historically been 

regarded as an extraordinary remedy, "a 

bulwark against convictions that violate 

'fundamental fairness.'" "Those few who are 

ultimately successful [in obtaining habeas 

relief] are persons whom society has 

grievously wronged and for whom belated 

liberation is little enough compensation." 

Id. at 1719 (citations omitted). 

 Significantly, the Court also noted that "it hardly 

bears repeating that 'an error that may justify reversal on 

direct appeal will not necessarily support a collateral attack on 

a final judgment,'" Id. at 1720 (internal citations omitted), 

and that "'[l]iberal allowance of the writ . . . degrades the 
33 

prominence of the trial itself' and at the same time encourages 

habeas petitioners to relitigate their claims on collateral 

review," Id. at 1720-21 (citation omitted). 

 In this case, the majority "ha[s] no difficulty in 

concluding that the evidence before the [state] court would have 

supported a factual finding that strategic decisions were made." 

Maj. typescript op. at 16. Nonetheless, the majority concludes 

that federal habeas relief is not barred under Fay v. Noia, 372 

U.S. 391 (1963), because counsel's decision was made in a "legal 

landscape in which they could go forward in hope of an acquittal 

by the jury and raise the due process argument in a Rule 35 

proceeding." Maj. typescript op. at 21. I respectfully dissent 

because I believe that the extraordinary remedy of habeas corpus 

is not meant to grant relief to someone who deliberately and 

strategically declined the opportunity to assert his rights 

during his state trial and direct appeal. 

I. 

 Although the majority "assume[s] arguendo" that Fay

"retains independent vitality" subsequent to the Supreme Court's 

decisions in Wainwright v. Sykes, 433 U.S. 72 (1977), Murray v. 

Carrier, 477 U.S. 478 (1986), and Coleman v. Thompson, 111 S. Ct. 

2546 (1991), it does so only grudgingly, stating that there is 

"substantial support" for the view that Sykes' "independent and 

adequate state law ground" has "subsumed the 'deliberate bypass' 

rule of Fay." Maj. typescript op. at 11. Because the viability 
34 

of Fay underlies my approach to this case, I discuss it 

notwithstanding the majority's concession. 

 One of the two principal prongs of the Fay holding was 

that a state procedural default did not constitute a bar to 

federal court review under the federal habeas statutes comparable 

to the bar of direct Supreme Court review effected by an adequate 

and independent state law ground. The other prong gave 

discretion to the federal courts to deny relief to a petitioner 

who had deliberately bypassed the orderly procedure of the state 

courts and, in so doing, forfeited available state court 

remedies. See Fay, 372 U.S. at 428-35. 

 Fourteen years later, after gradual erosion of the 

first prong of the Fay rule, the Supreme Court in Sykes

reinvigorated the independent and adequate state ground basis of 

precluding of federal habeas review because of procedural 

defaults. Instead of Fay's "deliberate bypass" rule, the Court 

applied the "cause and prejudice" test to procedural defaults. 

The suggestion here by the majority that a procedural default may 

be tested only under the "cause and prejudice" test disregards 

the context in which the Sykes rule replaced that of Fay. 

 It is no surprise that the Court itself has 

characterized the Fay "deliberate bypass" test as a "lower 

standard" than that it adopted under the "cause and prejudice" 

test. See Keeney v. Tamayo-Reyes, 112 S. Ct. 1715, 1720 (1992). 

See also Sykes, 433 U.S. at 87 (the "cause" and "prejudice" 

standard is "narrower" than the Fay test). Fay was supplanted 

because the Court was uncomfortable with "an all-inclusive rule 
35 

rendering state contemporaneous objection rules ineffective to 

bar review of underlying federal claims in federal habeas 

proceedings -- absent a 'knowing waiver' or 'deliberate bypass' 

of the right to so object." Id. at 85. In light of that 

background, the principles and purposes behind habeas corpus, the 

policy against relitigation of matters that have been concluded, 

and the Court's recent jurisprudence, it is not likely that the 

Supreme Court would disapprove the continued vitality of the Fay

"deliberate bypass" test in a situation like the present one 

where this court held the "cause and prejudice" test 

unavailable.0

II. 

 One of the bases for the current habeas jurisprudence 

is the view expressed in Sykes, over a strong dissent by Justices 

Brennan and Marshall, that the Fay test was not sufficiently 

respectful of the states' interests in their procedural default 

rules. The Court explained: 

 

0Although the majority accepts without discomfort our holding in 

Reynolds v. Ellingsworth (Reynolds I), 843 F.2d 712, 719 (3d 

Cir.), cert. denied, 488 U.S. 960 (1988), I cannot avoid some 

comment on the curious nature of that decision. As the majority 

notes, the Superior Court of Delaware, affirmed by the Supreme 

Court of Delaware, held that Reynolds had waived his right to 

object to the prosecutor's opening comments and the court's 

failure to sua sponte give a curative instruction because he 

failed to make a contemporaneous objection as required by the 

Delaware Supreme Court's earlier opinion in Conyers v. State, 422 

A.2d 345, 346 (Del. 1980) (per curiam). Nonetheless, despite the 

fact that in this very case the Delaware Supreme Court 

acknowledged that Conyers had enunciated such a rule, this court 

held that the absence of a governing "specific Delaware 

procedural rule" precluded our finding that Conyers constituted 

an adequate and independent state procedural ground supporting 

default. 
36 

 We think that the rule of Fay v. Noia, 

broadly stated, may encourage "sandbagging" 

on the part of defense lawyers, who may take 

their chances on a verdict of not guilty in a 

state trial court with the intent to raise 

their constitutional claims in a federal 

habeas court if their initial gamble does not 

pay off. 

433 U. S. at 89. 

 The Court again stressed the significance of state 

procedural rules in Keeney, 112 S. Ct. at 1720, where it held 

that the "cause and prejudice" test was applicable to a 

petitioner's negligent failure to develop material facts in the 

state court proceeding. The Court noted that "[i]n Wainwright v. 

Sykes, we rejected the application of Fay's standard of 'knowing 

waiver' or 'deliberate bypass' to excuse a petitioner's failure 

to comply with a state contemporaneous-objection rule, stating 

that the state rule deserved more respect than the Fay standard 

accorded it." Id. at 1718 (citation omitted). The Court 

referred to its decision the year before in Coleman v. Thompson, 

111 S. Ct. 2546 (1991), where "we described Fay as based on a 

conception of federal/state relations that undervalued the 

importance of state procedural rules." Keeney, 112 S. Ct. at 

1718-19. In Coleman, the Court had stated: 

The cause and prejudice standard in federal 

habeas evinces far greater respect for state 

procedural rules than does the deliberate 

bypass standard of Fay. These incompatible 

rules are based on very different conceptions 
37 

of comity and of the importance of finality 

in state criminal litigation. 

111 S. Ct. at 2563. 

 A fortiori, habeas impinges at the very heart of 

federalism principles. The majority opinion's view that the 

federalism concerns that underlie Sykes' and Fay's default rules 

do not exist when there is no "independent and adequate" state 

procedural bar is belied by the Court's holding in McClesky v. 

Zant, 499 U.S. 467, 493 (1991). Even though there had been no 

state procedural default because the case arose in the context of 

the abuse of writ doctrine (which can be viewed as a default in a 

prior federal habeas petition), the Court recognized that 

federalism concerns are still implicated. It commented that "the 

doctrines of procedural default and abuse of the writ are both 

designed to lessen the injury to a State that results through 

reexamination of a state conviction on a ground that the State 

did not have the opportunity to address at a prior, appropriate 

time; and both doctrines seek to vindicate the State's interest 

in the finality of its criminal judgments." Id.

 Admittedly in this case there may not have been a 

concerted effort to bypass all state review in favor of federal 

court review, but federalism, although an important rationale for 

habeas jurisprudence, is not the only consideration. The 

emphasis in McClesky on the significance of finality of criminal 

convictions ("Without finality, the criminal law is deprived of 

much of its deterrent effect." Id. at 491 (quotations omitted)) 

has been a frequent theme in habeas cases. See e.g., Keeney, 112 
38 

S. Ct. at 1718 ("The writ strikes at finality of a state criminal 

conviction, a matter of particular importance in a federal 

system."). 

 Moreover, the procedural default rules, including as 

well the Fay "deliberate bypass" test, are based, in part, on 

equitable principles. Thus, the holding of Fay "that the federal 

habeas judge may in his discretion deny relief to an applicant 

who has deliberately bypassed the orderly procedure of the state 

courts and in so doing has forfeited his state court remedies" is 

based on the equitable principle that "a suitor's conduct . . . 

may disentitle him to the relief he seeks." 372 U.S. at 438. 

IV. 

 The majority assumes, as indeed it must in light of the 

state court's evidentiary findings, that, in the words of the 

Delaware Supreme Court, "a strategic choice was made" by 

Reynolds' counsel in failing to object. App. at 10. Nonetheless, 

the majority concludes that despite these findings Reynolds' 

failure to object did not amount to a "deliberate bypass." Such 

a constrictive approach to "deliberate bypass" is inconsistent 

with the Fay Court's own explanation of what it encompasses: 

The classic definition of waiver enunciated 

in Johnston v. Zerbst, 304 U.S. 458, 464--"an 

intentional relinquishment or abandonment of 

a known right or privilege"--furnishes the 

controlling standard. If a habeas applicant, 

after consultation with competent counsel or 

otherwise, understandingly and knowingly 

forewent the privilege of seeking to 

vindicate his federal claims in the state 

courts, whether for strategic, tactical, or 

any other reasons that can fairly be 

described as the deliberate by-passing of 

state procedures, then it is open to the 
39 

federal court on habeas to deny him all 

relief if the state courts refused to 

entertain his federal claims on the merits. 

Fay, 372 U.S. at 439.0

 No Supreme Court decision supports the majority's view 

that Reynolds "strategic choices" did not constitute a 

"deliberate bypass" merely because Reynolds could have believed 

that he could bring his claim in a Rule 35 proceeding and 

therefore was not attempting to bypass the state courts.0 Indeed, 

the only court of appeals to have considered the issue decided 

that a strategic decision not to raise an objection constituted a 

deliberate bypass. In Brownstein v. Director, Illinois Dep't of 

Corrections, 760 F.2d 836 (7th Cir.), cert. denied, 474 U.S. 858 

(1985), the state court failed to admonish defendant Brownstein 

of his right to a jury trial. Brownstein knew that he was 

entitled to a jury trial, and could have asked for it but 

 

0Notwithstanding the language of Fay requiring that the bypass be 

personal, and not that of the defendant's attorney, later cases 

have held that a litigant is bound by the conduct of his 

attorney. See Henry v. Mississippi, 379 U.S. 443, 451 (1965) 

("[C]ounsel's deliberate choice of the strategy would amount to a 

waiver binding on petitioner and would preclude him from a 

decision on the merits of his federal claim either in the state 

courts or here."); see also McClesky, 499 U.S. at 494 ("Attorney 

error short of ineffective assistance of counsel . . . does not 

constitute cause and will not excuse a procedural default."); 

Murray v. Carrier, 477 U.S. 478, 488 (1986) ("So long as a 

defendant is represented by counsel whose performance is not 

constitutionally ineffective . . . we discern no inequity in 

requiring him to bear the risk of attorney error that results in 

a procedural default."); see generally Link v. Wabash R.R. Co., 

370 U.S. 626, 633-34 (1962) ("Petitioner voluntarily chose this 

attorney as his representative in the action, and he cannot now 

avoid the consequences of the acts or omissions of this freely 

selected agent."). 

0We note in passing that there was no testimony by counsel that 

they had, in fact, adopted the plan hypothesized by the majority. 
40 

"deliberately chose to have two chances at acquittal," id. at 

843-44, because his counsel believed he could "use the judge's 

omission to secure a new trial should he lose the first time 

around." Id. at 839. Despite the fact that there was no 

state court finding of procedural default to which the Sykes 

"cause and prejudice" rule would apply (because the state court 

had erroneously found there had been notice and waiver of a jury 

trial), the federal courts, both district and court of appeals, 

found a deliberate bypass under Fay. 

 The facts are strikingly similar to those here. In 

Reynolds I the Sykes "cause and prejudice" test was also found 

inapplicable. The majority's scenario for the strategy of 

counsel is that they, as did counsel in Brownstein, sought two 

chances, a jury acquittal or subsequent new trial. It follows 

that the reasoning of the Seventh Circuit is of particular 

relevance. In holding that "[Fay v.] Noia enables us to look 

beyond the state procedural rules themselves," id. at 842, the 

Brownstein court looked to equitable considerations under which 

"'a suitor's conduct in relation to the matter at hand may 

disentitle him to the relief he seeks.'" Id. (quoting Fay, 372 

U.S. at 438). The Court thus held that "[i]n our judgment, [Fay 

v.] Noia goes beyond procedural defaults and allows federal 

judges to deny habeas relief whenever the petitioner's strategic 

behavior clearly requires it." Id. It continued, "the 

deliberate by-pass standard of [Fay v.] Noia, relying on general 

equitable principles, does not require the by-pass of a 

requirement; the passing by of a mere opportunity may be enough, 
41 

and in this case is enough, to call that standard into play." Id.

(emphasis added). The court thus concluded, "Although 

[Brownstein] did everything state procedural rules required, [he] 

did not do everything he could have; and the reason he did not 

was a strategic one: he wanted the chance of another trial, if he 

lost the first time. . . . We hold that he is not entitled to 

federal relief." Id. at 844. 

 The majority, by disapproving the result reached by the 

Seventh Circuit, thus creates a circuit split. Although it 

purports to find support in Lefkowitz v. Newsome, 420 U.S. 283 

(1975) and County Court of Ulster County v. Allen, 442 U.S. 140 

(1979), neither of those cases is applicable. In both cases, 

unlike here, the state appellate courts had heard the merits of 

the petitioners' claims notwithstanding the claimed procedural 

defaults. Both Supreme Court opinions gave that as a significant 

reason why consideration on the merits by a federal court was not 

barred. See Lefkowitz, 420 U.S. at 292 n.9 ("But the Court also 

held that if the state courts have entertained the federal 

constitutional claims on the merits in a subsequent proceeding, 

notwithstanding the deliberate bypass, the federal courts have no 

discretion to deny the applicant habeas relief to which he is 

otherwise entitled.") (citations omitted). 

 The majority relies on the statement in Allen that "if 

neither the state legislature nor the state courts indicate that 

a federal constitutional claim is barred by some state procedural 

rule, a federal court implies no disrespect for the State by 

entertaining the claim." Allen, 442 U.S. at 154. One difficulty 
42 

with the majority's position is that the state courts did 

indicate that they viewed Reynolds' federal constitutional claim 

as barred by some state procedural rule and refused to hear his 

claim. The fact that this court did not agree with the state 

courts' interpretation of their own procedural rule, see dissent 

note 1 supra, and held that it was not "adequate and 

independent," Reynolds I, 843 F.2d at 719, does not mean that we 

can pretend that the state courts heard this claim on the merits 

when they did not. 

 It is important to note that notwithstanding the 

majority's skepticism that trial counsel "deliberate bypassed" 

the claim relating to the opening statement in the state trial 

court, the record is clear that appellate counsel made a 

deliberate decision not to raise the issue on direct appeal for 

tactical purposes. He testified: 

 Q. Do you know the reason that was not raised on 

appeal? 

 A. The reason it was not raised on appeal was 

because, as far as I am concerned, the better 

grounds for appeal were the interpretation of the 

stipulation regarding the truth serum and also the 

very good ground of the newly-discovered evidence 

when we had the investigating officer saying he 

believed the wrong man had been convicted. 

App. at 77. Thus the case cannot be governed by Lefkowitz and 

Allen, where counsel raised the issue in the state appeals 

courts. Nor is it like the decision of Noia not to appeal, also 

cited by the majority as governing here. As Justice Brennan 

noted, had Noia appealed he would have run a substantial risk of 
43 

electrocution. Thus, he stated, "under the circumstances [Noia's 

choice] cannot realistically be deemed a merely tactical or 

strategic litigation step." Fay, 372 U.S. at 440. On the other 

hand, Justice Brennan continued, "[t]his is not to say that in 

every case where a heavier penalty, even the death penalty, is a 

risk incurred by taking an appeal or otherwise foregoing a 

procedural right, waiver as we have defined it cannot be found. 

Each case must stand on its facts." Id.

 Essentially, the "deliberate bypass" by Reynolds' 

counsel of the opportunity to object when it might have had a 

curative effect gave the district court the discretion to decline 

to exercise its habeas jurisdiction, and its decision to do so 

was reasonable. The Supreme Court has repeatedly warned against 

using habeas to "give litigants incentives to withhold claims for 

manipulative purposes and [] establish disincentives to present 

claims when evidence is fresh." McClesky, 499 U.S. at 491-92. 

See also Brecht v. Abrahamson, 113 S. Ct. 1710, 1720-21 

("'liberal allowance of the writ . . .' encourages habeas 

petitioners to relitigate their claims on collateral review"); 

Keeney, 112 S. Ct. at 1718 (Habeas review "may give litigants 

incentives to withhold claims for manipulative purposes."). 

 There are powerful reasons to discourage a defendant 

from bypassing opportunities to object during his trial. As the 

Supreme Court stated in Estelle v. Williams, 425 U.S. 501, 508 

n.3 (1976), a case cited by the majority, "if the defendant has 

an objection, there is an obligation to call the matter to the 
44 

court's attention so the trial judge will have an opportunity to 

remedy the situation." 

 One of the goals of procedural default rules is to 

encourage full factual development in state court. See Coleman, 

111 S. Ct. at 2563. See also Brecht, 113 S. Ct. at 1721 ("state 

courts often occupy a superior vantage point from which to 

evaluate the effect of trial error"). This consideration was 

referred to expressly in Sykes where the Court noted the benefits 

of rules requiring defendants to make their objections during 

trial: 

A contemporaneous objection enables the 

record to be made with respect to the 

constitutional claim when the recollections 

of witnesses are freshest, not years later in 

a federal habeas proceeding. It enables the 

judge who observed the demeanor of those 

witnesses to make the factual determinations 

necessary for properly deciding the federal 

constitutional question. . . . 

 A contemporaneous-objection rule may 

lead to the exclusion of the evidence 

objected to, thereby making a major 

contribution to finality in criminal 

litigation . . . the jury may acquit the 

defendant, and that will be the end of the 

case; or it may nonetheless convict the 

defendant, and he will have one less federal 

constitutional claim to assert in his federal 

habeas petition. . . . An objection on the 

spot may force the prosecution to take a hard 

look at its hole card. 

433 U.S. at 88-89 (footnote omitted). 

 Perhaps the Court gave the most succinct summary of the 

rationale for its habeas jurisprudence in Sykes where it stated: 

"the state trial on the merits" should be "the 'main event,'. . . 
45 

rather than a 'tryout on the road' for what will later be the 

determinative federal habeas hearing." 433 U.S. at 90. 

 On remand from this court, the district court made the 

"deliberate bypass" inquiry and found that it was bound by the 

findings of the state evidentiary hearing, which "was by all 

accounts full, fair, and adequate." Reynolds v. Ellingsworth, 

1992 WL 404453, at *8 (D.Del. Dec. 31, 1992). Based on those 

findings and the court's review of the record, the court 

concluded that Reynolds' attorneys chose not to object to the 

prosecutor's opening statement, preferring "to gamble that the 

jury would forget the references and eventually find Reynolds not 

guilty in light of the scanty case presented by the State." Id.

at *9. That was "precisely the kind of calculated decision that 

Henry v. Mississippi and related precedent warned against." Id. 

The court concluded, similar to the holding in Brownstein, that 

"[a] defendant in state court may not, in short, use federal 

habeas proceedings as a hedge against the chance that his or her 

guess with regard to the jury will turn out to be incorrect." Id. 

 I agree with the district court. Reynolds took his 

chances and he lost. He engaged in the kind of strategic 

behavior that disentitles him to habeas relief. 
46