                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2002

Gattis v. Snyder
Precedential or Non-Precedential:

Docket 99-9006




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Filed January 24, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-9006

ROBERT ALLEN GATTIS, Appellant

v.

ROBERT SNYDER, Warden,
Delaware Correctional Center

On Appeal From the United States District Court
For the District of Delaware
(D.C. Civ. No. 97-cv-00619)
District Judge: Roderick R. McKelvie

Argued: July 12, 2001

Before: Becker, Chief Judge, Scirica and Greenberg,
Circuit Judges.

(Filed: January 24, 2002)

       KEVIN J. O'CONNELL, ESQUIRE
        (ARGUED)
       831 North Tatnall Street, Suite 200
       Wilmington, DE 19801

       Counsel for Appellant
       LOREN C. MEYERS, ESQUIRE
        (ARGUED)
       Chief of Appeals Division
       Department of Justice
       State Office Building
       820 N. French Street
       Wilmington, DE 19801

       Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

This is a death penalty appeal which presents, inter alia,
a question as to the method of dealing with a mixed motive
Batson challenge. Robert Allen Gattis, a prisoner on
Delaware's death row, appeals from the judgment of the
District Court denying his petition for a writ of habeas
corpus. Gattis v. Snyder, 46 F. Supp. 2d 344 (D. Del. 1999).
The District Court found all of his claims to be procedurally
barred, meritless or noncognizable. However, it found the
five claims which it addressed on the merits to meet the
standards for a certificate of appealability. These claims
are: (1) that trial delays denied Gattis the right to a speedy
trial; (2) that his Fourteenth Amendment rights were
violated by an improper peremptory challenge; (3) that trial
counsel were ineffective; (4) that the sentencing court
violated Gattis' constitutional rights by sentencing him
under Delaware's revised death penalty even though the
crime of which he was convicted occurred prior to the
statute's enactment; and (5) that the Delaware Supreme
Court denied him due process when it affirmed his
conviction and death sentence on collateral review based on
a different factual basis from that argued to the jury.
Because Gattis has not asked this Court to expand the
scope of the certificate of appealability to include any of the
other claims he presented in his habeas corpus petition,
our review is confined to those five claims.

Gattis' contention that application of the amended death
penalty statute to him violates the ex post facto clause

                               2
because he committed the crime eighteen months prior to
the enactment of the amendment has already been rejected.
See Hameen v. State of Delaware, 212 F.3d 226 (3d Cir.
2000), cert. denied, 121 S. Ct. 1365 (2001). Hence we need
not discuss it further. We will, however, address each of
Gattis' other contentions, and, finding them without merit,
will affirm. The question of particular significance is the
manner of dealing with an attack on a peremptory
challenge pursuant to Batson v. Kentucky, 476 U.S. 79
(1986), where the prosecutor's motives related not only to
the prospective jurors' race (or gender), but also to factors
that were properly considered. We hold that the state
courts' application of "dual motivation" analysis to Gattis'
Batson challenge did not result in a decision that was
"contrary to, or involved an unreasonable application of,
Federal law, as determined by the Supreme Court of the
United States." 28 U.S.C. S 2254(d)(1).

I. Facts and Procedural History

In May 1990 a Delaware Grand Jury charged Gattis with
first degree murder and related crimes arising out of the
shooting of his girlfriend, Shirley Y. Slay. The Office of the
Public Defender assigned Richard M. Baumeister and John
H. McDonald to represent Gattis. Baumeister contacted
Elizabeth Dewson, the Public Defender's Office's psycho-
forensic evaluator, to interview Gattis and subsequently
arranged further evaluation by Cono Galliani, Ph.D. The
Superior Court initially set a trial date of November 1,
1990, but granted a continuance so that Gattis could be
evaluated by a neurologist. The new trial date, March 20,
1991, was again postponed so that additional medical tests
could be performed on Gattis. After the court set a new trial
date of May 20, 1991, the state sought a postponement, to
which Baumeister did not object because Gattis'
psychological and neurological examinations would not be
complete until July or August. At a hearing on May 29,
1991, Gattis expressed concern at the delays but agreed to
postpone trial until November 26, 1991 to give counsel
more time to prepare the case.

In the interim, on November 4, 1991, Governor Castle
signed Senate Substitute 1 for Senate Bill 79, amending

                                  3
Del. Code Ann. tit. 11, S 4209 relating to the imposition of
the death penalty; the terms of the amendments would
apply to all defendants tried or sentenced after its effective
date. Pursuant to the amended statute, at the penalty
phase the jury recommends whether to impose the death
penalty based on its response to the two questions set forth
in the margin.1 The court is not bound by the jury's
recommendation. Rather, section 4209, as amended,
requires the judge to impose a death sentence after
considering the recommendation of the jury if the judge
finds:

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

       b. By a preponderance of the evidence, after weighing
       all relevant evidence in aggravation or mitigation which
       bears upon the particular circumstances or details of
       the commission of the offense and the character and
       propensities of the offender, that the aggravating
       circumstances found by the court to exist outweigh the
       mitigation circumstances found by the court to exist.

Del. Code Ann. tit. 11, S 4209(d)(1)a-b (1995). Pursuant to
the version of S 4209 in existence before November 4, 1991,
the death penalty could not be imposed unless the jury had
unanimously recommended that sentence.

In the wake of this enactment, and pursuant to Delaware
Supreme Court Rule 41, the Delaware Superior Court
certified questions of law to the Delaware Supreme Court
_________________________________________________________________

1. The questions are:

       1. Whether the evidence shows beyond a reasonable doubt the
       existence of at least 1 aggravating circumstance as enumerated in
       subsection (e) of this section; and

       2. Whether, by a preponderance of the evidence, after weighing all
       relevant evidence in aggravation or mitigation which bear upon the
       particular circumstances or details of the commission of the
offenses
       and the character and propensities of the offender, the aggravating
       circumstances found to exist outweigh the mitigating circumstances
       found to exist.

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

                               4
concerning whether the amended statute violated the
United States Constitution or the Delaware Constitution.
Defendants awaiting trial for first degree murder whose
alleged crimes occurred before the effective date of the new
law were given an opportunity to participate in the
certification process. Gattis participated. The Superior
Court issued an Administrative Directive postponing all
trials and penalty hearings in capital first degree murder
cases while the Delaware Supreme Court considered the
certified questions. In February 1992 the Delaware
Supreme Court responded, finding that section 4209, as
amended, did not violate either constitution. State v. Cohen,
604 A.2d 846 (Del. 1992).

Meanwhile, in January 1992, the Office of the Public
Defender moved for leave to withdraw as counsel. The court
granted the motion and appointed Howard F. Gillis to
represent Gattis, but Gillis withdrew from the case due to
a health problem. On March 5, 1992, the court appointed
Jerome M. Capone to represent Gattis. Five days later, the
court scheduled trial to commence on September 9, 1992.
On March 30, 1992, the court appointed Joseph M.
Bernstein as co-counsel.

Trial finally commenced on September 1, 1992. On
September 22, 1992, the jury found Gattis guilty of first
degree murder, first degree burglary, possession of a deadly
weapon by a person prohibited, and two counts of
possession of a deadly weapon during the commission of a
felony. After the penalty hearing, the jury found
unanimously that the state had proved beyond a
reasonable doubt the existence of both of these statutory
aggravating circumstances. Ten out of twelve jurors also
found, by a preponderance of the evidence, that the
aggravating circumstances outweighed the mitigating
circumstances. Based on his review of the jury's
recommendation and additional argument from the parties,
the trial judge determined that the state had established
beyond a reasonable doubt the existence of two statutory
aggravating circumstances and that the aggravating
circumstances outweighed the mitigating circumstances.
Accordingly, on October 29, 1992, the Court ordered that
Gattis be executed by lethal injection.

                               5
On direct appeal, Gattis asserted various claims of error
relating to the admissibility of evidence, that the death
penalty was not proportionate to the offense, and that the
jury was not randomly selected. After remand for an
evidentiary hearing on one issue, the Delaware Supreme
Court affirmed. Gattis v. State, 637 A.2d 808 (Del.), cert.
denied sub nom. Gattis v. Delaware, 513 U.S. 843 (1994).

Gattis then moved for post-conviction relief, which was
denied, and also filed an amended motion for post-
conviction relief.2 The Superior Court found all of Gattis'
claims to be procedurally defaulted and/or meritless.
However, the court granted Gattis' motion for reargument
with regard to his claim that counsel was ineffective for
failing to investigate an accidental shooting defense before
trial. Unpersuaded, the court later denied Gattis' motion for
post-conviction relief.

On appeal of his collateral challenge, Gattis argued, inter
alia, that a forensic scientist, Stuart H. James, would have
testified at trial that the prosecution's theory of the case
was physically impossible. After argument, the Delaware
Supreme Court remanded the matter to the Superior Court
to determine whether the state's theory was physically
impossible. The court also directed the Superior Court to
consider whether the state improperly excluded a potential
_________________________________________________________________

2. Gattis presented the following claims: (1) the state withheld evidence
and counsel was ineffective for failing to raise the issue at trial or on
appeal; (2) he was denied his right to a speedy trial, resulting in his
being sentenced under the amended death penalty statute; (3) counsel
was ineffective for failing to pursue this claim at trial and on direct
appeal; (4) persons opposed to the death penalty were excluded for cause
from the jury; (5) the state improperly used peremptory challenges to
remove persons opposed to the death penalty; (6) the state made
prejudicial remarks concerning inadmissible and inflammatory evidence
during its opening statement; (7) irrelevant and prejudicial evidence was
admitted; (8) the state made improper and prejudicial remarks during its
closing statement; (9) counsel were ineffective for failing to perform an
investigation to develop his account of the events until mid-way through
the trial; (10) the death penalty statute violates the Eighth and
Fourteenth Amendments; and (11) sentencing him under the amended
death penalty statute violated his rights to due process and equal
protection under the Fourteenth Amendment.

                               6
juror, Wilfred Moore, for gender-related reasons. The
Superior Court found both claims meritless. After the
Delaware Supreme Court affirmed, Gattis v. State , 697 A.2d
1174 (Del. 1997), cert. denied sub nom. Gattis v. Delaware,
522 U.S. 1124 (1998), the Superior Court rescheduled
Gattis' execution for January 9, 1998.

On November 25, 1997, Gattis filed in the District Court
for the District of Delaware a petition for a writ of habeas
corpus in which he raised ten claims. The District Court
granted Gattis' motions for a stay of execution,
appointment of counsel and expansion of the record, but
denied his motion for an evidentiary hearing. Importantly,
after the respondent filed its answering brief, Gattis filed
the affidavit of Thomas J. Saunders, a capital litigation
attorney, in which he stated inter alia that Baumeister's
failure to object to postponing Gattis' trial, even though he
was on notice that Senate Bill 79 could affect Gattis' rights,
and his failure to inform Gattis that the proposed changes
to the death penalty statute could affect his rights after a
certain date, compromised Gattis' right to counsel and
prejudiced his defense. The District Court found all of
Gattis' claims to be meritless, procedurally defaulted, or
non-cognizable and denied his petition. Gattis v. Snyder, 46
F. Supp. 2d 344 (D. Del. 1999). Nevertheless, as noted
above, the court issued a certificate of appealability with
regard to the five claims which it denied on the merits.
Gattis v. Snyder, No. 97-619 (D. Del. March 25, 1999).
Gattis filed a motion for reargument, which the court
denied. Gattis v. Snyder, No. 97-619 (D. Del. August 26,
1999). This timely appeal followed. Because Gattis has not
sought to expand the scope of the District Court's
certificate of appealability, our review is limited to those five
claims.

II. Standard of Review

Gattis' habeas corpus petition was filed after April 1996.
As a result, the District Court's review of Gattis' claims was
limited by AEDPA. Pursuant to 28 U.S.C. S 2254(d):

       An application for a writ of habeas corpus on behalf of
       a person in custody pursuant to the judgment of a

                               7
       State court shall not be granted with respect to any
       claim that was adjudicated on the merits in State court
       proceedings unless the adjudication of the claim--

       (1) resulted in a decision that was contrary to, or
       involved an unreasonable application of, clearly
       established Federal law, as determined by the Supreme
       Court of the United States.

In Williams v. Taylor, 529 U.S. 362 (2000), the Court held
that "[u]nder the `contrary to' clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of
materially indistinguishable facts." Id. at 412-13. A state
court decision is an "unreasonable application" if the court
identifies the correct governing legal rule from the Supreme
Court's cases but unreasonably applies it to the facts of the
particular case or if the state court either unreasonably
extends a legal principle from the Supreme Court's
precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new
context where it should apply. Id. at 407. This is an
objective test. Id. at 410. A federal court may not grant a
writ of habeas corpus merely because it concludes in its
independent judgment that the relevant state court decision
applied clearly established federal law erroneously or
incorrectly. Jermyn v. Horn, 266 F.3d 257, 281-282 (3d Cir.
2001). "A contrary holding would amount to de novo review
which we have held is proscribed by the AEDPA." Werts v.
Vaughn, 228 F.3d 178, 197 (3d Cir. 2000), cert. denied, 121
S. Ct. 1621 (2001). We review the District Court's
application of section 2254(d) de novo. Banks v. Horn, 271
F.3d 527 (3d Cir. 2001).

III. Trial Delay

A. Introduction

In his post-conviction motion Gattis argued that he was
denied his rights to a speedy trial, due process, and equal
protection as result of the delays preceding his trial, and

                               8
that trial counsel were ineffective for failing to pursue his
right to a speedy trial. Gattis contends that as a result of
the delay he was sentenced under the revised death penalty
statute and was prejudiced because under the previous law
he could not have received the death penalty if, as here, the
jury was not unanimous in recommending the death
penalty. In his brief to the Delaware Supreme Court Gattis
presented the claim in a mere two pages, offering little
argument, asserting without explanation that the 28 month
period of delay is "presumptively prejudicial;" that "the
delays occasioned by Gattis first counsels' continued
requests for medical testing were unreasonable and highly
prejudicial;" that counsels' "lack of diligence" caused "delay
which may cost him his life;" and that the delay
"occasioned by the malfeasance of Gattis' public defenders
should not be attributed to Gattis in the court's speedy trial
analysis."

The Superior Court found the claim procedurally
defaulted but addressed it on the merits because Gattis
had received the death penalty. Applying the four factors
set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972) --
the length of the delay, the reasons for the delay, the
defendant's assertion of his right, and prejudice to the
defendant -- the court found the claim meritless. Most of
the delay was occasioned by counsels' requests for
continuances in order to obtain medical testing for Gattis.
The court determined that those continuances could not be
attributed to the state and that they should be subtracted
from the delay for purposes of a speedy trial analysis.
Further delay was caused by the temporary stay pending a
determination of questions certified to the Delaware
Supreme Court, a process in which Gattis participated
along with eight other defendants. Thus, rather than
asserting his right to a speedy trial, "he took affirmative
steps guaranteed to prolong the pretrial waiting period."
State v. Gattis, 1995 WL 790961 at *7 (Del. Super.
December 28, 1995). Finally, the court rejected Gattis'
prejudice argument.

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

                               9
Superior Court's analysis, rejecting Gattis' assertions of
prejudice for lack of substantiation. "Because Gattis fails to
make and substantiate specific allegations of actual
prejudice, and because we find no evidence of prejudice to
Gattis resulting from the delay, we conclude that the
Superior Court did not abuse its discretion in denying
Gattis' motion. . . ." Gattis v. State, 697 A.2d at 1180.

In his habeas corpus petition, Gattis asserts that his
right to "a speedy trial was violated when he was not tried
for an inordinately long time after indictment, prejudicing
his right to a fair trial. . . ." As in state court, in his opening
brief in support of his petition Gattis complains that
counsels' continued requests for worthless medical testing
were unreasonable and prejudicial, resulting in an
eighteen-month delay which should not be attributed to
Gattis. In his reply brief, Gattis responded to the state's
argument that the claim was defaulted by arguing that
counsels' ineffectiveness is cause for the default. He
complains that counsel failed to pursue his speedy trial
claim, that counsel seemed unaware that an amendment to
the death penalty statute was pending, and that state court
decisions prevented adequate factual development of the
issue, resulting in insufficient record for its proper
resolution.

Gattis also filed the Saunders affidavit, which notes, inter
alia, that the amendment to the death penalty statute had
been introduced in the Delaware Senate on March 26, 1991
and that on March 31st the Wilmington News Journal had
noted that the bill had been sent to the judiciary
committee. Nevertheless, counsel evidently did not know of,
or ignored, the possible change in the law; he neither
mentioned it at the May hearing nor discussed its
significance with Gattis. The affidavit opines that adequate
assistance of counsel, especially in a death penalty case,
requires counsel to be aware of any law that may affect his
client's interests, especially the sorts of changes
contemplated by the amendment in question here.
Moreover, the affidavit represents that there was no need
for a postponement beyond July or August.

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

                               10
rather than dismissing the claim as defaulted at the state's
request. The court found the claim meritless because the
Delaware Supreme Court's analysis of the claim was not
contrary to clearly established federal law. Gattis v. Snyder,
46 F. Supp. 2d at 372. Because the Superior Court
expressly addressed the claim on the merits regardless of
whether it was procedurally defaulted, and because the
Delaware Supreme Court addressed the claim exclusively
on the merits without any reference to procedural default,
we agree with the District Court that the claim is not
defaulted. Harris v. Reed, 489 U.S. 255 (1989).

B. Proper Characterization of the Claim

On reading Gattis' initial brief, we found it puzzling that
Gattis cast this claim in terms of a violation of his right to
a speedy trial rather than of his right to effective assistance
of counsel pursuant to Strickland v. Washington , 466 U.S.
668 (1984). Accordingly, at oral argument we asked Gattis'
able federal habeas attorney whether his first claim might
not be better understood as an ineffectiveness claim, and
ordered the parties to address in supplemental briefing
whether such an ineffectiveness claim had been presented
to the District Court; whether it had been exhausted in
state court; whether it was procedurally defaulted; and
whether it was within the scope of the certificate of
appealability. In his supplemental brief Gattis argues that
he did not exhaust the claim in state court, that the claim
is not procedurally defaulted, and that it is implicitly
included in the certificate of appealability; he does not
address whether the claim was presented to the District
Court. In contrast, the state argues that the claim is
procedurally barred because it was not presented in state
court and because no further state court review is available
to Gattis. Moreover, Gattis did not present the claim to the
District Court, so that the certificate of appealability should
not be deemed to include it.

As our outline of the procedural history of Gattis' speedy
trial claim indicates, the claim he presented to the District
Court is essentially the same as the claim he presented in
state court. As a result, he exhausted state remedies with
regard to that claim. Ipso facto, if Gattis' claim as presented

                               11
in the District Court should be construed as an
ineffectiveness claim, the claim, so construed, is also
exhausted. Conversely, if it was not exhausted, it was not
presented in the District Court either; it makes no sense to
construe his claim as an ineffectiveness claim in state court
but not in federal court, and vice versa.

The problem for Gattis is that even though there seems
to be a potential ineffectiveness claim struggling to escape
from the confines of his speedy trial claim, he never
released it by presenting a coherent, properly articulated
claim under Strickland in either state court or in his federal
habeas corpus petition. As Gattis acknowledges in his
supplemental brief, "[b]oth the legal theory and the facts
underpinning the federal claim must have been presented
to the state courts . . . and the same method of legal
analysis must be available to the state court as will be
employed in the federal court." Evans v. Court of Common
Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992), cert. petition
dismissed, 506 U.S. 1089 (1993). Based on Gattis'
submissions in state court, described above, we are
constrained to agree with his admission that he"did not
. . . serve fair notice [on the state courts] that he was
asserting an ineffective assistance of counsel claim within
his speedy trial claim." But neither did he present such a
claim to the District Court. It is not sufficient, as Gattis
implies, that the District Court had the benefit of Saunders'
affidavit. Gattis did not present an appropriate
ineffectiveness claim except as "cause" for the procedural
default asserted by the state and did not, along with
Saunders' affidavit, file a motion to amend his petition to
include one. We cannot retroactively amend Gattis' petition
on his behalf.

But even if the claim had been exhausted and presented
to the District Court we would likely find it without merit.
As we have stated, "there is no general duty on the part of
defense counsel to anticipate changes in the law," Gov't of
the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989),
while the reasons given by the Superior Court for not
finding prejudice under Barker would also apply to an

                               12
ineffectiveness claim. State v. Gattis, 1995 WL 790961 at *8
(Del. Super. 1995).3

C. The Merits

We agree with the District Court that the state court
decisions are not contrary to clearly established federal law.
Nor do they involve an unreasonable application of clearly
established federal law. Aside from the reasons provided by
those courts, we note that Gattis' claim suffers from a
perhaps more fundamental defect: the right to a speedy
trial essentially protects defendants against delays caused
by the government. If the delay is attributable exclusively to
the defendant, "he will be deemed to have waived his
speedy trial rights entirely." United States v. Manning, 56
F.3d 1188, 1195 (9th Cir. 1995). Similarly, portions of the
delay which are attributable to the defendant or his counsel
"will not be considered for purposes of determining whether
the defendant's right to a speedy trial has been infringed."
Wells v. Petsock, 941 F.2d 253, 258 (3d Cir. 1991), cert.
denied sub nom., 505 U.S. 1223 (1992); United States v.
Dent, 149 F.3d 180, 183 (3d Cir. 1998), cert. denied, 525
U.S. 1085 (1999). Because the only delays of which Gattis
complains were caused by his own counsel, there is no
merit to his speedy trial claim.

IV. The Batson Issue

During jury selection the prosecutor exercised a
peremptory challenge against an elderly African-American
male, Wilfred Moore. According to Gattis, this was done
merely because Moore was a man, in violation of J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127 (1994) (holding that
peremptory challenges may not be exercised solely on the
basis of gender). But that is misleading. Rather, the
_________________________________________________________________

3. We note that in his filings in this Court Gattis seems to argue that
the
claim was presented as a speedy trial claim because the state courts
would not allow him an opportunity to develop a factual basis for the
claim. We do not find this argument persuasive because Gattis blamed
counsel for the delay from the outset. It thus appears that what Gattis
lacked was less a detailed factual record than the appropriate legal
analysis.

                               13
following exchange took place between Moore and the
prosecutor:

       Q: If the facts and circumstances so warranted, could
       you recommend a sentence of death?

       A: I don't know, sir.

       Q: . . . . If the facts and circumstances so warrant,
       could you recommend a sentence of life
       imprisonment?

       A: Yes, sir, I could.

       Q: . . . . Now, you did indicate that you would follow
       the Court's instructions on the law whether you
       agreed with that law or not. . . . Taking those
       instructions in mind, then, and taking into
       account all the facts and circumstances, now, if
       the facts and circumstances so warrant and if the
       Court's instructions so permit, could you
       recommend a sentence of death?

       A: It's like going to war. I don't know if I-- you know,
       until the time comes, truly in my heart would know
       if I could bring a bullet up there. I don't know until
       the time comes.

       Q: Okay. Philosophically, generally, you're not
       opposed to the death penalty?

       A: I believe in the death penalty, but I don't know if
       I could be the one to say, yes, sentence this
       defendant to death until the time comes.

The state then asked the court to strike Moore for cause.
The court found that Moore's responses did not meet the
standard in Witherspoon v. Illinois, 391 U.S. 510 (1968) and
declined to exclude him for cause. Accordingly, the state
exercised a peremptory challenge against Moore. After
Moore was excused, the state sought the court's permission
to make a record of its reasons for the strike, which were
as follows:

       Number one, I believe that this juror was very, very
       conservative in his application of the possible
       application of the death penalty [sic]. He answered very

                               14
       quickly yes to the possibility of imposing a life sentence
       under the appropriate facts and circumstances, yet, to
       our belief, had a very difficult time in answering
       whether or not he could impose the death penalty
       under the appropriate circumstances. He seemed very,
       very conservative in the application of the death
       penalty.

       Number two, he is an older gentleman and we have, I
       believe, four or five older gentlemen on the jury panel
       already. And I would suggest that it's the state's point
       of view that we would prefer to have some more women
       on the jury.

Gattis brought this claim during post-conviction
proceedings. On appeal, the Delaware Supreme Court
remanded the matter to the Superior Court to make factual
findings and conclusions of law regarding this issue.4 On
remand, the state argued that even though one of the
prosecutor's reasons for the challenge was based on gender,
the paramount reason was Moore's reluctance to impose
the death penalty. The Superior Court noted that the
Supreme Court has held in other areas of equal protection
jurisprudence that an action motivated in part by an
impermissible reason will withstand challenge if the same
action would have been taken in the absence of the
impermissible motivation.5 Relying on United States v.
Tokars, 95 F.3d 1520 (11th Cir. 1996), cert. denied, 520
U.S. 1151 (1997); Wallace v. Morrison, 87 F.3d 1271 (11th
Cir.), cert. denied, 519 U.S. 1044 (1996); and United States
v. Darden, 70 F.3d 1507 (8th Cir. 1995), cert. denied, 517
U.S. 1149 (1996), the court applied the following"dual
motivation" test: after the defendant makes a prima facie
showing of discrimination, the state may raise the
affirmative defense that the strike would have been
exercised on the basis of the gender-neutral reasons and in
the absence of the discriminatory motive. If the state makes
such a showing, the peremptory challenge survives
constitutional scrutiny.
_________________________________________________________________

4. It also remanded for similar proceedings concerning the state's theory
of the murder. See infra at 20-21.

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

                               15
The Superior Court discerned no intent to discriminate
against men. At the time Moore was struck, four men and
three women had been selected for the jury. The state had
used four of its challenges to remove two men and two
women, and after Moore was removed the state used two
strikes to remove men and three to remove women. In its
final form the jury consisted of six women and six men,
with three women and one man as alternates. Moreover,
the state's explanation for excluding Moore focused on his
attitudes towards the death penalty. The Superior Court
concluded:

       There is nothing in the record which indicates that the
       prosecution was driven by invidious gender-based
       stereotypes. . . . Based on the totality of the
       circumstances, the Court finds that the State has
       carried its burden of showing that the prosecutor
       would have challenged Moore even in the absence of
       any gender-related reason. In regard to the
       prosecutor's gender-based motivation, the Court is
       satisfied that this consideration was de minimis. The
       prosecutor stated that several men had already been
       selected and that he wanted to select a few more
       women. On its face, this statement indicates that the
       prosecutor was trying to seat a jury with a diverse and
       representative character. . . . In light of the fact that
       four men had already been selected for Gattis' jury
       when Moore was challenged, it is not plausible that the
       prosecutor's stated desire for a mix of men and women
       was a pretext for a desire to exclude men because of
       invidious, archaic and overbroad stereotypes.

State v. Gattis, 1996 WL 769328 *6 (Del. Super.).
Accordingly, the Superior Court found the claim meritless.
Echoing the Superior Court's reasoning, the Delaware
Supreme Court found "no abuse of discretion in the
Superior Court's determination." Gattis v. State, 697 A.2d
at 1184.

The District Court found that Gattis had not presented
clear and convincing evidence to overcome the presumption
of correctness afforded state courts' factual findings by 28
U.S.C. S 2254(e)(1) and that the Delaware Supreme Court's
rejection of Gattis' claim was "not contrary to clearly

                                16
established federal law, and did not rely on an
unreasonable application of the facts." Gattis v. Snyder, 46
F. Supp. 2d at 379. The court concluded that the claim
fails pursuant to 28 U.S.C. S 2254(d).

The Supreme Court has not addressed a case involving
mixed motives in jury selection. Accordingly, we apply the
"unreasonable application" prong of S 2254(d)(1) rather than
the "contrary to" prong. Jermyn v. Horn , 266 F.3d 257 (3d
Cir. 2001). As noted above, a state court decision is an
"unreasonable application" of federal law if the court
identifies the correct governing legal rule from the Supreme
Court's cases but unreasonably applies it to the facts of the
particular case or if the state court either unreasonably
extends a legal principle from the Supreme Court's
precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new
context where it should apply. Williams v. Taylor, 529 U.S.
at 407. In addressing Gattis' claim, the Superior Court
correctly identified the main Supreme Court decisions --
Batson, J.E.B., and Mt. Healthy-- and, citing Wallace and
Tokars, applied mixed motive analysis.

In Howard v. Senkowski, 986 F.2d 24 (2d Cir. 1993), the
court addressed for the first time an attack on a
peremptory challenge pursuant to Batson v. Kentucky, 476
U.S. 79 (1986), where the prosecutor's motives were
"mixed," i.e., involved not only the prospective juror's race
but also other factors that were properly considered.
Because the reasoning in Batson fell "squarely within the
[Supreme Court's] tradition of equal protection
jurisprudence," id. at 26, the court began its analysis by
noting that:

       In the realm of constitutional law, whenever challenged
       action would be unlawful if improperly motivated, the
       Supreme Court has made it clear that the challenged
       action is invalid if motivated in part by an
       impermissible reason but that the alleged offender is
       entitled to the defense that it would have taken the
       same action in the absence of the improper motive. See
       Mt. Healthy City School Board of Education v. Doyle ,
       429 U.S. 274, 284-87, 97 S.Ct. 568, 574-76, 50
       L.Ed.2d 471 (1977); Village of Arlington Heights v.

                               17
       Metropolitan Housing Development Corp., 429 U.S. 252,
       270 n. 21, 97 S.Ct. 555, 566 n. 21, 50 L.Ed.2d 450
       (1977).

Id. at 26. The court concluded:

       Batson challenges may be brought by defendants who
       can show that racial discrimination was a substantial
       part of the motivation for a prosecutor's peremptory
       challenges, leaving to the prosecutor the affirmative
       defense of showing that the same challenges would
       have been exercised for race-neutral reasons in the
       absence of such partially improper motivation. In
       concluding that dual motivation analysis applies to a
       Batson challenge, we do no more than apply that
       analysis precisely as previously enunciated by the
       Supreme Court in prior dual motivation cases such as
       Arlington Heights. . . . [O]nce the prosecutor's partially
       improper motivation had been established, Howard was
       entitled to prevail unless, under dual motivation
       analysis, the prosecutor could sustain his burden of
       showing that he would have exercised his challenges
       solely for race-neutral reasons.

Id. at 30.

Other courts have followed suit, applying mixed motive
analysis to situations where not only race, but also gender
was a reason for excluding a potential juror. See, e.g.,
Tokars (gender); Wallace (race); Darden (youth,
inexperience, and alleged young black female tendency "to
testify on behalf and be more sympathetic toward
individuals who are involved in narcotics"); Jones v. Plaster,
57 F.3d 417, 421-22 (4th Cir. 1995) (race -- applying dual
motivation but remanding to District Court for clarification
of findings regarding whether the strike was exercised for a
discriminatory purpose and whether it would have been
exercised in the absence of the discriminatory purpose). We
find the reasoning of these cases persuasive.

Because we agree with Howard and the other cases cited
that mixed motive analysis is appropriate in this context,
we cannot conclude that the Superior Court unreasonably
extended a legal principle from the Supreme Court's
precedent. On the facts, the Superior Court's discussion,

                                  18
quoted supra at 16, rings true. We thus reject Gattis'
contention that the record "clearly and convincingly" rebuts
the Superior Court's factual conclusions, and hence we do
not agree that the Superior Court (and, ipso facto, the
Delaware Supreme Court) failed the "unreasonable
application" prong of section 2254(d). Accordingly, there is
no merit to this claim.

V. Counsel's Failure to Investigate

Gattis complains that counsel failed to develop his
version of the facts, to investigate the relevant facts, or to
interview relevant witnesses. He argues that if counsel had
investigated the crime scene properly they could have
shown at trial that the state's account of the crime was
implausible. The government argued to the jury that Gattis
returned to Slay's apartment in a fit of jealous rage, kicked
in the door, walked up to her and shot her between the
eyes, "execution-style." However, the fact that the victim's
feet prevented the door from opening more than twelve
inches means that he could not have walked up to her and
shot her. Rather, it supports Gattis' contention that the
gun went off accidentally as he was kicking in the door.
Even though counsel could have learned of this before trial,
they did not realize that Gattis' story was plausible until,
several days into the trial, they entered Slay's apartment for
the first time (they had visited the building before trial but
had not entered the apartment). Gattis places much
reliance on James' testimony that Gattis' version of what
happened was more plausible than the state's. He
maintains that counsels' inadequate performance affected
not only the guilt phase, but also sentencing: the nature of
the killing was central to the State's efforts to persuade the
jury and sentencing judge that death was the appropriate
punishment.

The Superior Court found that Gattis met neither prong
of Strickland. The court denied Gattis' request for a hearing.
It placed greater credence in counsels' affidavits than
Gattis', and concluded that counsel took reasonable
investigative measures in light of the information given
them by Gattis. The court also concluded that even if
counsels' performance was unreasonable, Gattis had not

                               19
shown prejudice, in part because "his version of the
incident . . . [is] simply unworthy of belief.. . . It is
inconceivable that even one juror would have accepted the
accident defense in this case." State v. Gattis, 1995 WL
790961 *19-20 (Del. Super.).

On appeal, Gattis argued that James would testify, if
given the opportunity, that the prosecution's case was
unsupportable. The Delaware Supreme Court remanded the
case to the Superior Court to hold an evidentiary hearing to
determine whether James really would so testify. Despite
concluding that the threshold standard for holding a
hearing was not met, the Superior Court held a hearing to
allow the parties to present evidence in support of their
respective positions. After a detailed analysis of that
evidence, the Superior Court concluded that there was no
prejudice to Gattis. James would have testified that Gattis'
story was more plausible than the state's, but would also
have stated that he could not determine certain crucial
facts, could not confirm Gattis' version of the murder, and
could not disprove the state's theory of the murder.

       Furthermore, nothing in James's assertions could
       dispel the impression of an angry, violent man who
       intentionally set out to kill Shirley Slay by shooting her
       in the face in an execution-style slaying. It is difficult
       to conceive that James' testimony would have elevated
       the accident defense to a plausible level.

State v. Gattis, 1997 WL 127007 *6 (Del. Super.). After
reviewing the evidence, the Delaware Supreme Court found
that the Superior Court did not abuse its discretion in so
concluding. Gattis v. State, 697 A.2d at 1184-86.

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

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

                                20
prisoner must pass to obtain relief, i.e., show that counsel's
performance was objectively unreasonable and "that there
is a reasonable probability that, but for counsel's
unprofessional errors the result of the proceeding would
have been different." Strickland, 466 U.S. at 694. Moreover,
the state courts' application of Strickland to the facts before
them was reasonable. Counsel presented Gattis' account of
the facts at trial: not only did Gattis testify that he did not
mean to pull the trigger when he fired the fatal shot, but
one of the central questions -- how far the door to Slay's
apartment was open -- was explored in the testimony of
three witnesses, while a fourth explained the size and
layout of the doorway area. As a result, counsel persuaded
the court to instruct the jury on lesser included offenses
and to instruct the jury that if they found the shooting to
have been accidental, they must acquit Gattis of the
murder charge. In closing argument counsel insisted that
when the gun went off Gattis could not have been in the
apartment but in the hallway attempting to enter. Thus, the
only question is whether the testimony of James or a
similar expert would be reasonably likely to have made the
jury believe Gattis' explanation. We agree with the Superior
Court that this seems unlikely.

The state courts and District Court did not separately
address the sentencing prong of Gattis' claim, doubtless
because there was no need to: its success turns on the
success of the claim that counsel did not adequately
prepare for trial. The sentencing prong also faces additional
problems of its own. Gattis argues at length in his reply
brief that the state's contention, and the sentencing court's
finding, that the murder was "execution-style" played an
important role in determining his sentence. However, the
record does not support this contention. The government
relied on two statutory aggravating factors -- the murder
occurred during the commission of a burglary, and Gattis
had previously been convicted of a violent felony-- and
offered evidence concerning these non-statutory aggravating
circumstances: the details of the commission of the offense,
including Gattis' relationship with Slay, Gattis' propensity
towards violence and threats of violence, victim impact,
Gattis' lack of respect for authority, and his conduct while
on court supervision. In its sentencing opinion the court

                               21
referred to the crime as "in essence, an execution carried
out because of the defendant's misplaced and ill-conceived
notions of infidelity on the part of Shirley Y. Slay, and
because Ms. Slay, tired of the abuse to which she had for
years been subjected at the hands of the defendant, was
attempting to start a new life with her daughter. . . ." State
v. Gattis, 1992 WL 358030 *3 (Del. Super.) The court
emphasized that the murder was cold-blooded, with"no
pretense of moral or legal justifications," and that there was
nothing to indicate that it was a crime of passion or an
impulsive act caused by serious emotional disturbance. It
"was the culmination of years of torment, mental torture
and physical abuse at the hands of one who selfishly
sought her domination and subjugation." Id.

Thus, it seems clear that when the court referred to the
murder as an execution, this was a summary of all the
other factors mentioned, including the reasons for the
murder. That it was "execution-style" was not mentioned by
the court at all, either in its description of the aggravating
factors or in its description of the balancing process. Id. at
*13. Central to the court's balancing was the evidence that
Gattis was "a manipulative, dominant, and violence-prone
assaultive male who treated Shirley Y. Slay as a mere
chattel, a piece of property to control as he saw fit." Id. at
*14. In light of the court's reasoning, we conclude that
providing an expert to argue that even if the murder was
intentional it was not "execution-style" is not likely to have
made any difference to the outcome at sentencing.

VI. Denial of Due Process on Post-conviction Review

As described above, on post-conviction review, Gattis
argued to the Delaware Supreme Court with regard to his
ineffectiveness claims that James would, if given the
chance, testify that the prosecution's theory of the case was
physically impossible. On remand, at the evidentiary
hearing the government presented video and testimony to
show that even if the apartment door had been open only
twelve inches it would have been possible for Gattis to
reach around the door and shoot her. As noted above, the
state courts found Gattis' ineffectiveness claim meritless.

                               22
Based on these facts, in his habeas corpus petition Gattis
claims that his due process rights "were violated when his
conviction and death sentence were affirmed on state
postconviction review on a theory not originally presented
to the jury or the court that tried and sentenced him."
According to Gattis, at trial the state argued that Gattis
entered Slay's apartment and shot her face-to-face, not that
he reached around the door and shot her. He relies on
Dunn v. United States, 442 U.S. 100, 106 (1979) ("To
uphold a conviction on a charge that was neither alleged in
an indictment nor presented to a jury at trial offends the
most basic notions of due process"). As far as we can
determine, this claim has not been presented to the state
courts and, thus, is unexhausted.6 However, because we
agree with the District Court that the claim is meritless,
and because the District Court could have dismissed the
claim as meritless regardless of whether it was exhausted
pursuant to section 2254(b)(2), we shall not vacate the
District Court's judgment and remand for further
proceedings with regard to this claim.

The District Court found the claim meritless because
Gattis' conviction and sentence are supported by either a
theory that he shot Slay face-to-face at close range or a
theory that he reached around the door and shot her at
close range. The District Court also found that the state
courts did not sustain Gattis' conviction and sentence on
post-conviction review on different facts or on a different
theory than was presented to the jury. The Delaware
Supreme Court stated that "the State never presented
testimony from its witnesses nor offered any argument by
prosecutors asserting that the door was fully open when
the face-to-face confrontation took place," Gattis v. State,
697 A.2d at 1185, a finding of fact presumed correct
because Gattis has not provided clear and convincing
_________________________________________________________________

6. The District Court states that Gattis presented this argument to the
Delaware Supreme Court as one of ineffective assistance of trial counsel,
evidently concluding that that would be sufficient for exhaustion
purposes. Aside from the fact that it would not be sufficient (because it
involves a completely different legal theory, Duncan v. Henry, 513 U.S.
364 (1995)), we do not see in the record where it was expressly
presented to the Delaware Supreme Court.

                               23
evidence to the contrary as required by section 2254(e)(1).
Moreover, both Dunn and the decision by the First Circuit
Court of Appeals on which Gattis also relies, Cola v.
Reardon, 787 F.2d 681 (1st Cir.), cert. denied, 479 U.S. 930
(1986), involved a failure to charge the defendant in the
indictment for the specific acts for which he was convicted,
which is not the case here.

The fundamental flaw in Gattis' argument is that in the
decisions of which he complains the state courts did not
"uphold [his] conviction on a charge that was neither
alleged in an indictment nor presented to a jury at trial."
Dunn, 442 U.S. at 106. The allegedly different theory of
guilt was not presented on direct appeal in support of his
conviction but in the course of a post-conviction hearing
held in connection with his claim that counsel was
ineffective for failing to present expert testimony concerning
the implausibility of the state's account of the murder. The
Superior Court and Delaware Supreme Court did not affirm
his conviction based on the state's theory but merely found
his ineffectiveness claim unpersuasive. The state's theory
played a small role, if any, in the courts' reasoning. In this
context Dunn and Cola are simply not applicable.7

* * * *

In conclusion, we find no merit in any of Gattis' claims.
_________________________________________________________________

7. Even if the decisions of which Gattis complains were on direct appeal,
his claim would still be meritless. The indictment charged Gattis with
one count of first degree murder, the killing of Shirley Slay. It did not
charge him with killing her in a particular manner. Moreover, Gattis was
not convicted of this murder on the basis of evidence that he murdered
someone else or committed a different crime; his conviction was not
affirmed on the basis of evidence that he murdered someone else; and
the evidence used to support the government's different accounts (to the
extent that they are different) of what happened is exactly the same in
each case. Indeed, it is unclear that there was a different "theory" here
in the sense at issue in Dunn and Cola ; the only variation concerns
precisely how Gattis killed Slay: did he kick open the door, walk up to
Slay and shoot her at close range between the eyes or kick open the door
and shoot her at close range between the eyes at the door, perhaps by
reaching around it?

                               24
Accordingly, the Order of the District Court denying the
application for a writ of habeas corpus will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               25
