                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-28-2001

Riley v. Taylor
Precedential or Non-Precedential:

Docket 98-9009




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Volume 1 of 2

Filed December 28, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-9009

JAMES WILLIAM RILEY,
       Appellant

v.

STANLEY W. TAYLOR;
*M. JANE BRADY

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

On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 91-cv-00438)
District Judge: Hon. Joseph J. Farnan, Jr.

Argued November 29, 1999

Before: SLOVITER, ALITO and STAPLETON, Circuit     Judges

Argued En Banc May 23, 2001

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,
SCIRICA, NYGAARD, ALITO, ROTH, McKEE, BARRY,
AMBRO, FUENTES, and STAPLETON, Circuit Judges

(Filed: December 28, 2001)
       Thomas J. Allingham, II (Argued)
       Stephen D. Dargitz
       Skadden, Arps, Slate, Meagher &
        Flom
       Wilmington, DE 19899

       Mary M. MaloneyHuss
       Wolf, Block, Schorr & Solis-Cohen
       Wilmington, DE 19801

       Lawrence J. Connell
       Widener University School of Law
       Wilmington, DE 19803

        Attorneys for Appellant
       James W. Riley

       Loren C. Meyers (Argued)
        Chief of Appeals Division
       William E. Molchen, II
        Deputy Attorney General
       Department of Justice
       Wilmington, DE 19801

        Attorney for Appellees
       Stanley Taylor and M. Jane Brady

OPINION OF THE COURT

SLOVITER, Circuit Judge,   with whom Judges Mansmann,
Nygaard, Roth, McKee and   Ambro join, with whom Judges
Scirica and Fuentes join   as to Part II B, and with whom
Chief Judge Becker joins   in the judgment.

Appellant James W. Riley, a 22 year old black man, was
sentenced to death on the vote of a Delaware state jury in
December 1982. If the time intervening between that
sentence and this court's en banc consideration of the
matter has been lengthy, it is not because there has been
undue delay at any stage but because the case raises
legitimate questions that go to the constitutionality of the
original trial and sentencing. It was necessary to complete
a series of proceedings in both state and federal court, none
of them duplicative, before the case reached this stage.

                                  2
After all, there can be no reconsideration after the
execution of a death sentence.

I.

INTRODUCTION

According to testimony at the trial, Riley and Tyrone
Baxter stopped in a liquor store in Dover, Delaware, on
February 8, 1982, to get some beer and rob the store.
Michael Williams waited in the car. Baxter testified that
Riley, armed with a gun, placed a bottle of beer on the
counter and announced the store was being robbed. When
the store owner, James Feeley, a 59 year old white man,
backed away from the cash register, Baxter grabbed the
money out of the cash drawer. Riley tried to take Feeley's
wallet, but Feeley resisted. At Baxter's urging, Riley shot
Feeley in the leg. Feeley, who was then hopping up and
down, apparently from the gunshot, said "[Y]ou f 'ing
niggers." App. at 327. As Riley and Baxter were proceeding
to the door to leave, Feeley threw a wine bottle that struck
Riley in the arm. Riley then shot Feeley in the chest, killing
him.

In May 1982, Riley, Baxter, and Williams were indicted
on charges of felony murder, intentional murder, first
degree robbery, possession of a deadly weapon during a
felony, and second degree conspiracy. Riley pled not guilty
to all charges. Baxter pled guilty to first degree murder and
was sentenced to life imprisonment in exchange for his
testimony against Riley. The murder and weapon charges
against Williams were also dropped in exchange for his
testimony against Riley, and he was subsequently convicted
of the robbery and conspiracy charges.

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

                               3
The State presented the testimony of Baxter, Williams,
Baxter's mother (who testified that Riley spent the night
before the robbery at her house), and a witness who
reported that Riley's fingerprints were on a bottle of beer in
the liquor store. In defense, Riley testified that he was in
Philadelphia on the day of the murder celebrating his
mother's birthday. However, Riley's mother did not testify in
support of his alibi. The only witness Riley presented other
than himself was an inmate at the prison in which Baxter
was incarcerated, and he testified that Baxter had admitted
to shooting Feeley.

Riley was tried before and convicted on all counts by an
all white jury in Kent County Superior Court (the Delaware
trial court) in December 1982. Four days after the verdict,
the jury proceeded to consider the penalty. The State
sought the death penalty, relying only on Riley's felony
murder conviction and using the underlying robbery as the
lone aggravating circumstance. Following a two-hour
penalty hearing, the jury unanimously recommended a
sentence of death which the court accepted. Riley was also
sentenced to life imprisonment without parole for
intentional murder, 20 years imprisonment for robbery, 5
years imprisonment for possession of a deadly weapon, and
3 years imprisonment for conspiracy. Riley's attorney
explained to the trial court that he spent only 14 hours
preparing for the penalty phase because he had been too
busy "with the defense and the merits" to spend more time
building a case in mitigation. App. at 443-444.

Riley appealed his conviction and sentence on numerous
grounds. In July 1985, the Delaware Supreme Court
affirmed, see Riley v. State, 496 A.2d 997 (Del. 1985)
(hereafter "Riley I"), and the Supreme Court of the United
States denied certiorari, see Riley v. Delaware , 478 U.S.
1022 (1986).

Represented by new counsel, Riley filed a motion for
post-conviction relief in Kent County Superior Court in
March 1987 before Judge Bush, the judge who had
presided at the trial (the "trial judge"), alleging, inter alia,
that his trial counsel had provided ineffective assistance of
counsel and that the prosecution had exercised its
peremptory challenges in a racially discriminatory manner

                                4
in violation of Batson v. Kentucky, 476 U.S. 79 (1986). After
three days of evidentiary hearings limited to the ineffective
assistance of counsel claim, the trial judge denied Riley's
motion. See State v. Riley, 1988 WL 47076 (Del. Super.
1988) (hereafter "Riley II"). Riley then requested the
Superior Court consider reargument on his Batson claim.
The trial judge had passed away and Judge Steele of the
Superior Court ("the hearing judge") granted Riley's request
for reargument, finding that Riley had established a prima
facie case of discrimination under Batson . See State v.
Riley, 1988 WL 130430, at *3 (Del. Super. 1988) (hereafter
"Riley III"). After holding an evidentiary hearing, the hearing
judge rejected Riley's Batson claim and all his other claims
as well. See Riley v. State, No. 200, 1988 (Del. Super. Ct.
April 21, 1989), App. at 886 (hereafter "Riley IV"). On
appeal, the Delaware Supreme Court again affirmed, see
Riley v. State, 585 A.2d 719 (Del. 1990) (hereafter "Riley
V"), and the Supreme Court of the United States again
denied certiorari, see Riley v. Delaware, 501 U.S. 1223
(1991).

On August 12, 1991, Riley filed a petition for a writ of
habeas corpus in the United States District Court for the
District of Delaware pursuant to 28 U.S.C. S 2254. Again
Riley obtained new lead counsel, although his post-
conviction counsel remained as co-counsel. The District
Court denied Riley's request to amend his petition to add
two additional claims and then denied his petition without
an evidentiary hearing. See Riley v. Snyder, 840 F. Supp.
1012 (D. Del. 1993) (hereafter "Riley VI"). Riley appealed,
and this court held that the denial of his motion to amend
was an abuse of discretion and remanded the case so that
Riley could raise all the issues he sought to raise in an
amended petition. See Riley v. Taylor, 62 F.3d 86 (3d Cir.
1995) (hereafter "Riley VII").

Riley filed his amended habeas petition on August 28,
1995, alleging 12 grounds for relief. The District Court
denied Riley's petition without holding an evidentiary
hearing. See Riley v. Taylor, 1998 WL 172856 (D. Del. Jan.
16, 1998) (hereafter "Riley VIII"). We then issued a
certificate of probable cause and Riley appealed, raising 12
claims. He asserted that:

                               5
1. The State's exercise of peremptory challeng es to
strike all prospective black jurors violated the
Equal Protection Clause under Batson v.
Kentucky, 476 U.S. 79 (1986).

2. The State's continuing conduct in withholdi ng
wiretap tapes of a key witness from Riley violated
Brady v. Maryland, 373 U.S. 83 (1963).

3. Riley received ineffective assistance of co unsel
because he was prejudiced by trial counsel's
deficient performance at the penalty hearing.

4. The trial court violated Riley's Sixth and
Fourteenth Amendment rights by denying his
motions to appoint co-counsel and a private
investigator.

5. The prosecution and the trial court made
improper remarks at the penalty hearing violating
the Eighth and Fourteenth Amendments under
Caldwell v. Mississippi, 472 U.S. 320 (1985).

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

7. Riley's jury was unconstitutionally biased in favor
of returning the death penalty because the trial
judge's voir dire failed to identify all prospective
jurors who automatically would impose the death
penalty.

8. Riley was deprived of his constitutional ri ght to a
fair and impartial jury because of pretrial
publicity.

9. The Delaware Supreme Court's proportionalit y
review violated Riley's Eighth and Fourteenth
Amendment rights.

10. The trial court's jury instructions failed
adequately to guide Riley's jurors on the law,
thereby creating a substantial risk that the jurors
would impose the death penalty in an arbitrary
and capricious manner in violation of both the
Eighth and Fourteenth Amendments.

                        6
       11. The use of felony murder to establish both Riley's
       eligibility for death and the aggravating
       circumstance warranting imposition of the death
       penalty is arbitrary and capricious in violation of
       the Eighth and Fourteenth Amendments.

       12. The District Court abused its discretion in not
       holding an evidentiary hearing, in denying Riley's
       motions to conduct discovery and expand the
       record, and in denying Riley's applications for
       funds for medical and investigative experts.

A divided panel of this court affirmed. See Riley v. Taylor,
2001 WL 43597 (3d Cir. 2001) (hereafter "Riley IX"). The
author of this opinion dissented on two claims, those
raising Batson and Caldwell violations (claims numbered 1
and 5 above). On March 5, 2001, the full court granted
Riley's petition for rehearing en banc, and vacated the
panel's opinion and judgment. See Riley v. Taylor, 237 F.3d
348 (3d Cir. 2001). Our order limited the en banc
proceedings to the District Court's denial of Riley's Batson
and Caldwell claims. See id. We now reverse and direct the
District Court to grant the writ of habeas corpus. 1

The District Court exercised subject matter jurisdiction
pursuant to 28 U.S.C. S 2254. We possess appellate
jurisdiction pursuant to 28 U.S.C. SS 1291 and 2253.

II.

DISCUSSION

Riley presents two arguments to the en banc court. He
argues first, that the prosecution exercised its peremptory
challenges to strike black jurors in violation of the Equal
Protection Clause of the Fourteenth Amendment, and
second, that the prosecutor's statements to the jury in his
opening argument at sentencing misled the jury regarding
_________________________________________________________________

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

                               7
its role in the sentencing process in violation of the Eighth
and Fourteenth Amendments. We will address each of these
arguments in turn.

A.

THE BATSON CLAIM

Riley's claim that the prosecution violated the Equal
Protection Clause by using its peremptory challenges to
strike all three prospective black jurors from the jury panel
because of their race, thereby leaving no black juror sitting
on the jury, stems from the Supreme Court decision in
Batson v. Kentucky, 476 U.S. 79 (1986).2

1. Preservation of Claim

The District Court held that Riley was procedurally
barred from raising his Batson claim in his habeas petition
because he failed to present that claim to the trial court.
See Riley VIII, 1998 WL 172856, at *15. We do not agree.3
The Delaware Supreme Court concluded on Riley's direct
appeal "that no Sixth Amendment peremptory challenge
claim was fairly presented to the Trial Court," and also
held, in the alternate, that Riley's Batson claim failed on
the merits. Riley I, 496 A.2d at 1010. However, the
Supreme Court of the United States has since made clear
that, "[i]f the last state court to be presented with a
particular federal claim reaches the merits, it removes any
bar to federal-court review that might otherwise have been
available." Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991).

In his memorandum opinion granting Riley's motion for a
post-conviction evidentiary hearing, the Superior Court
_________________________________________________________________

2. Although Riley's trial occurred several years before the Batson
decision, the Supreme Court did not deny certiorari in Riley's direct
appeal until shortly after Batson was decided, thus entitling Riley to the
benefit of that decision. See Griffith v. Kentucky, 479 U.S. 314, 328
(1987); Deputy v. Taylor, 19 F.3d 1485, 1491 n.6 (3d Cir. 1994).

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

                               8
hearing judge stated that he did not think the State
Supreme Court would maintain its position that Riley had
failed to timely present a Batson claim. See Riley III, 1988
WL 130430, at *2 (citing Baynard v. State, 518 A.2d 682
(Del. 1986)).4 Thereafter, the hearing judge considered and
rejected Riley's Batson claim on the merits. See Riley IV,
App. at 887-891. On appeal, the Delaware Supreme Court
affirmed the hearing judge's decision, using language that
expressly refers to the Superior Court's rejection of Riley's
Batson claim on the merits. See infra note 9. Moreover, in
that passage, the Delaware Supreme Court expressly
reaffirmed its holding on direct appeal that the
prosecution's use of peremptory challenges in this case did
not violate the state constitution. Not only is there no
reaffirmation of its prior holding concerning procedural
default, but there is no reference to that holding, leading us
to conclude it no longer relied on a procedural bar. See
Harris v. Reed, 489 U.S. 255, 266 (1989) (concluding that
habeas claim was not procedurally barred where state court
rejected the claim on the merits notwithstanding its
observation that allegations "could have been raised [on]
direct appeal").

If the Delaware Supreme Court had continued to believe
at the time of its most recent decision that Riley's Batson
claim was foreclosed for failure to make a proper objection
at the time of trial, it seems likely that the Court would
have made that point expressly, instead of affirming the
hearing judge's findings on the merits. Indeed, it is unlikely
that it would have made no comment on the hearing
judge's failure to follow its earlier decision on foreclosure.
Thus, we interpret the decision of the Delaware Supreme
Court in Riley V (its most recent) to be a rejection of Riley's
Batson claim on the merits. Accordingly, Riley's Batson
claim is not procedurally barred and we proceed to examine
its merits.
_________________________________________________________________

4. In Baynard, the Court held that the defendant sufficiently raised an
objection to the State's peremptory challenges which resulted in an all
white jury being impaneled where defendant "noted the race of each
black against whom the State exercised a peremptory challenge," "moved
the Court to refuse the peremptory challenges against two of the drawn
black jurors and moved to quash the entire panel at the end of the jury
selection process." 518 A.2d at 687.

                               9
2. Batson v. Kentucky

In Batson, the Supreme Court reiterated the well-settled
principle that the Equal Protection Clause prohibits
discrimination on account of race in selection of both the
venire and the petit jury. See 476 U.S. at 88. This principle,
which dates back at least as far as Strauder v. West
Virginia, 100 U.S. 303 (1880), recognizes that racial
discrimination in the selection of jurors harms"not only the
accused whose life or liberty they are summoned to try,"
but also harms the potential juror, whose race "is unrelated
to his fitness as a juror." Batson, 476 U.S. at 87 (quotation
omitted). As the Court noted in Batson,"[s]election
procedures that purposefully exclude black persons from
juries undermine public confidence in the fairness of our
system of justice." Id.

The Court granted certiorari in Batson so that it could
reexamine the evidentiary burden its opinion in Swain v.
Alabama, 380 U.S. 202 (1965), had placed on a criminal
defendant who alleged that the State improperly used its
peremptory challenges to exclude jurors based on race. In
Swain, the Court had held that a defendant could satisfy a
prima facie case of purposeful discrimination by showing
that a prosecutor, "in case after case, whatever the
circumstances, whatever the crime and whoever the
defendant or the victim may be, is responsible for the
removal of Negroes who have been selected as qualified
jurors by the jury commissioners and who have survived
challenges for cause, with the result that no Negroes ever
serve on petit juries." Id. at 223. The Batson Court noted
that many lower courts interpreted Swain to hold "that
proof of repeated striking of blacks over a number of cases
was necessary to establish a violation of the Equal
Protection Clause." Batson, 476 U.S. at 92. The Court in
Batson recognized that this standard had "placed on
defendants a crippling burden of proof " that resulted in
"prosecutors' peremptory challenges [becoming] largely
immune from constitutional scrutiny." Id. at 92-93 (footnote
omitted). Accordingly, it rejected the Swain evidentiary
formulation.

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

                               10
Batson stated that "a defendant may establish a prima facie
case of purposeful discrimination in selection of the petit
jury solely on evidence concerning the prosecutor's exercise
of peremptory challenges at the defendant's trial." Id. at 96.
Once the defendant makes a prima facie showing of racial
discrimination (step one), the prosecution must articulate a
race-neutral explanation for its use of peremptory
challenges (step two). If it does so, the trial court must
determine whether the defendant has established
purposeful discrimination (step three). See id. at 96-98;
Simmons v. Beyer, 44 F.3d 1160, 1167 (3d Cir. 1995);
Deputy v. Taylor, 19 F.3d 1485, 1492 (3d Cir. 1994). The
ultimate burden of persuasion regarding racial motivation
rests with, and does not shift from, the defendant. See
Purkett v. Elem, 514 U.S. 765, 768 (1995).

3. Riley's Batson Challenge in State Court

In this case, the hearing judge determined, and the State
does not contest, that Riley made out a prima facie case of
discrimination in jury selection, as the State had used its
peremptory challenges to strike all three prospective black
jurors from the venire, "result[ing] in an all-white jury
sitting on a first degree murder trial involving a black
defendant and a white victim." Riley III, 1988 WL 130430,
at *2. The hearing judge then conducted an evidentiary
hearing. The State proceeded to step two of the Batson
inquiry by offering race-neutral justifications for its use of
the peremptory challenges to strike Ray Nichols, Lois
Beecher, and Charles McGuire, each of whom was black.

Liguori, the lead prosecutor at trial and the State's
principal witness at the post-conviction relief hearing,
testified that the State "wanted to have minority
representation on the jury panel." App. at 792-793. He
stated that he wanted jurors who would be attentive and
who would vote for a death sentence. He testified that he
wanted "to make sure we were not only going to get a
conviction of murder in the first degree, but also the death
penalty." App. at 797.

With respect to Nichols, Liguori remembered clearly that
"Mr. Nichols was an individual who, and unfortunately the
record doesn't reflect this, who was not, in my particular

                                11
mind, not certain with regard to being able to return a
verdict for death." App. at 797-798 (emphasis added). As
Liguori explained, "there was a pause and a significant
pause in [Nichols'] answering [the court's] inquiry [at voir
dire] and that to me was enough to suggest that he might
not be able to return a death penalty and I didn't want
anyone that wasn't going to give me a death penalty." App.
at 798-799.

With regard to Beecher, Liguori testified that he struck
her because of her response to the court that she did not
think she could impose the death penalty. App. at 804.

As for McGuire, Liguori explained that he used the
peremptory challenge because he presumed McGuire would
be unable to "give his full time and attention" to the trial.
App. at 801. According to Liguori,

       Mr. McGuire was an individual who had requested--
       remember, this was going to be around Christmas also.

       Mr. McGuire had previously requested to be excused
       from jury service. When Mr. McGuire came up, the first
       thing I wanted to make clear--as I said earlier, I
       wanted someone that was going to be attentive and you
       can read all the books you want with regard to
       selecting prospective jurors and it is always make sure
       you have attentive jurors, people not concerned about
       getting home early to take care of their kids, or
       vacation.

       Mr. McGuire himself had requested the Court to
       excuse him. The Court didn't. When he went through
       his inquiry, we asked the judge to excuse him for
       cause. The judge said no. It then left us with no
       alternative but to think he would not give his full time
       and attention and therefore we struck Mr. McGuire.

App. at 801.

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

                               12
Lowe's, wants off." App. at 823. Despite repeated efforts by
Riley's counsel to refresh Liguori's recollection, Liguori
testified that he had no recollection of Reed whatsoever.
Liguori agreed, however, that the notation next to Reed's
name indicated that Reed had requested to be excused from
service on the jury. Liguori offered no explanation for his
decision not to strike Reed.

Riley then presented McGuire as a witness at the state
post-conviction hearing. McGuire testified that, in contrast
to Liguori's testimony, he had never asked to be excused
from the jury. McGuire specifically denied ever indicating to
either the prosecutors or the court that he was unwilling to
serve on the jury or that he wanted to be excused. Instead,
he testified that his supervisor had told him that he was
going to make a "formal request" that McGuire be excused
and that his supervisor did send a letter to the trial judge
requesting he be relieved from jury duty. App. at 860.
According to McGuire, in response to his supervisor's letter,
he was questioned by the trial judge whom he advised of
his willingness to serve on the jury. App. at 849-850.

Riley also presented evidence that in addition to the
prosecutor's striking of the three prospective black jurors in
his trial, the Kent County Prosecutor's office used its
peremptory challenges to remove every prospective black
juror in the three other first degree murder trials that
occurred within a year of his trial.5 Counsel for the State
objected to the admission of this evidence, arguing that
_________________________________________________________________

5. The three other trials were:

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

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

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

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

                                  13
evidence of general prosecutorial practices was relevant
only to Riley's prima facie case. The hearing judge rejected
this argument and admitted the evidence, explaining that it
was being offered to show that "the exercise of the
peremptory challenges in this particular case followed some
kind of pattern that exists in the prosecutorial actions in
first degree murder cases involving minority defendants and
it is not segregable or severable from past history." App. at
872.

Counsel for the State then requested and received an
additional four weeks in which to "attempt to prepare the
same sort of information which . . . would be contrary to
the representations made by [Riley's counsel's]
information." App. at 874. He informed the court that he
had not yet been able to obtain materials from other cases,
but he assured the court that "they do exist." App. at 874.
Yet approximately one month after the hearing, the State
advised the hearing judge by a letter dated January 27,
1989 from Jeffrey M. Taschner, Deputy Attorney General,
that stated in full: "Please be advised that the State will not
supplement the record of the post conviction relief hearing
held in the above-captioned matter on December 30, 1988."
Letter to this Court from Thomas J. Allingham II (Dec. 16,
1999), Ex. B (on file in the Clerk's office).

The hearing judge ultimately accepted the State's race-
neutral explanations and rejected Riley's Batson claim,
without mentioning any of the evidence introduced by Riley
at the hearing. See Riley IV, App. at 887-891. The Delaware
Supreme Court affirmed, likewise without discussion of
Riley's evidence. See Riley V, 585 A.2d at 725.

4. Standard of Review

A Batson claim presents mixed questions of law and fact.
See Jones v. Ryan, 987 F.2d 960, 965 (3d Cir. 1993). We
exercise plenary review over questions of law and we look to
28 U.S.C. S 2254 for our standard of review of findings of
fact. See id. Riley's federal habeas petition was filed before
the enactment of the Antiterrorism and Effective Death
Penalty Act ("AEDPA") of 1996, 110 Stat. 1214, and
therefore AEDPA does not govern our standard of review.
See Lindh v. Murphy, 521 U.S. 320 (1997). Instead, under

                               14
the federal habeas statute in effect at the time Riley filed
his petition, we must presume correct the state court's
findings of fact unless one of the statutory exceptions
applies. See 28 U.S.C. S 2254(d) (1988).

The District Court rejected Riley's Batson claim on the
merits by relying on this presumption of correctness. See
Riley VIII, 1998 WL 172856, at *17. Riley contends that the
presumption of correctness is not warranted because the
hearing judge's factual findings are "not fairly supported by
the record," 28 U.S.C. S 2254(d)(8) (1988), and because he
"did not receive a full, fair, and adequate hearing in the
State court proceeding," 28 U.S.C. S 2254(d)(6) (1988).
Because we resolve Riley's appeal pursuant to S 2254(d)(8),
we need not consider Riley's latter argument.

The limited nature of review underlying the requirement
that a federal court must defer to the state court findings
of fact if they are "fairly supported by the record" reflects
important policy considerations. See, e.g., Miller v. Fenton,
474 U.S. 104, 114 (1985) (presumption of correctness
recognizes that "as a matter of the sound administration of
justice, one judicial actor is better positioned than another
to decide the issue"). In Rushen v. Spain, 464 U.S. 114, 122
n.6 (1983), the Court stated that "28 U.S.C.S 2254(d)
requires that a federal habeas court more than simply
disagree with the state court before rejecting its factual
determinations." The Court further noted that the statutory
test set forth in S 2254(d)(8) "is satisfied by the existence of
probative evidence underlying the [state court's]
conclusion." Id.

In the instant case, it appears that the hearing judge's
factual findings were based primarily on determinations
regarding the credibility of Liguori at the post-conviction
hearing. Such findings are generally owed "even greater
deference" because "only the trial judge can be aware of the
variations in demeanor and tone of voice that bear so
heavily on the listener's understanding of and belief in what
is said." Anderson v. City of Bessemer City , 470 U.S. 564,
575 (1985); see also Batson, 476 U.S. at 98 n.21 ("Since
the trial judge's findings in [this] context .. . largely will
turn on evaluation of credibility, a reviewing court
ordinarily should give those findings great deference.").

                               15
Still, this does not signify that "federal review. . . is a
nullity." Caldwell v. Maloney, 159 F.3d 639, 651 (1st Cir.
1998) (hereafter "Maloney"). In Purkett, the Supreme Court
stated that "implausible or fantastic justifications may (and
probably will) be found to be pretexts for purposeful
discrimination." 514 U.S. at 768. In addition, the Supreme
Court has suggested, albeit in a non-habeas context, that
reviewing courts need not accept a trial judge's findings
based on credibility determinations if the witness has not
told a "coherent and facially plausible story" or if his story
is "contradicted by extrinsic evidence." Anderson, 470 U.S.
at 575. Thus, we must determine whether there is fair
support to conclude that the State put forth "a coherent
and facially plausible" explanation of its strikes of the
prospective black jurors or whether the State's explanations
are "implausible." Ultimately, when we review the record at
step three of the Batson inquiry, we must decide whether
the state courts' acceptance of the State's explanation has
been made after consideration of all the evidence on the
record.

5. State's Race-Neutral Explanations

At the post-conviction hearing, the State proceeded to
step two of the Batson inquiry by offering race-neutral
reasons for striking the black jurors. It did so primarily
through Liguori's testimony. Riley does not argue that the
State failed to meet its step two burden. His contention is
that the state courts failed to engage in the step three
inquiry, which requires evaluation of the proffered race-
neutral reasons in light of all the other evidence in the
record.

Liguori contended he struck Nichols because he doubted
whether Nichols would be willing to return a death
sentence. He based this doubt on his clear recollection of "a
significant pause" by Nichols when asked about the death
penalty. App. at 798. Yet, as Liguori himself admitted in his
testimony, the record reflects no such pause and no such
uncertainty on Nichols' part.

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

                               16
       Q: Do you have any conscientious scruples against
       finding a verdict of guilty where the punishment might
       be death or against imposing the death penalty even if
       the evidence should so warrant?

       A: No.

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

       A: I think so.

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

Moreover, despite Nichols' alleged pause, the prosecutors
did not ask the trial court to remove Nichols for cause or to
inquire further into his willingness to award the death
penalty, even though the trial judge excused six
venirepersons for cause because they said they couldn't, or
believed they couldn't, impose the death penalty, App. at
234-237, 245-246, 265-271, and two more who responded
equivocally, App. at 273-276, 282-286. This raises the
question why, if Nichols actually did pause "a significant
pause," the State did not seek to have him removed for
cause like the others. The record does not show (and the
State does not claim) that the prosecutors ever expressed to
the trial court the concern that Nichols would be unwilling
to impose the death penalty, that the court independently
expressed concern, or that any of the contemporaneous
notes kept by the prosecutors as to some of the jurors
reflected either the existence of a pause or the concern
about which Liguori testified six years later. Thus, Liguori's
explanation is entirely unsupported by the record. See
Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993)
(stating that courts are not bound to accept race-neutral
reasons that are either unsupported by the record or
refuted by it).

                               17
Similarly, the record offers little basis for distinguishing
McGuire, a prospective black juror who was struck, from
Reed, a white juror who served without challenge by the
State. Liguori testified that he struck McGuire because
McGuire asked to be excused from jury service and he
feared that McGuire would be an inattentive juror. 6 Liguori,
who claimed to remember Nichols' pause six years later
without benefit of any assistance, testified that he had no
recollection at all regarding Reed. Liguori's notes from voir
dire, however, state that Reed "works Lowe's, wants off,"
App. at 823, which strongly suggests that Reed too was
likely to be an inattentive juror. Yet at no point during voir
dire did the prosecution ever express any concern over
Reed's place on the jury. Based on this record evidence,
there is no basis for distinguishing between McGuire's
desire to be excused and Reed's desire to be excused.

Although the State strains to distinguish the two jurors
by arguing that McGuire's desire to be excused from jury
service was stronger than Reed's desire because McGuire's
employer had intervened to seek his release, its effort is not
persuasive. First, Liguori did not testify before the hearing
judge that this was the basis for the strike; in fact, Liguori
testified to the opposite -- that McGuire himself had asked
to be excused from jury service. Second, even if McGuire
would have been inattentive for work-related reasons, the
prosecution's notes from voir dire connecting Reed's
employment to his "wants off " suggest that Reed's desire to
be excused from jury service may have been work-related
as well. Third, there is no evidence in the record to suggest
that a juror will be more inattentive because s/he wants to
be off the jury for work-related reasons rather than for
other reasons, which is the basis for the State's position
that McGuire's desire to be excused was stronger than
Reed's desire to "want[ ] off," documented in Liguori's
contemporaneous notes.

With regard to both Nichols and McGuire, the state
courts failed to mention in their opinions the weaknesses in
the State's explanations, and therefore failed to complete
the required step three Batson inquiry.
_________________________________________________________________

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

                               18
6. Statistical Evidence

In addition to Riley's challenge to the State's explanations
at the post-conviction hearing for striking Nichols and
McGuire by pointing to inconsistencies in the record, Riley
introduced evidence that the prosecution used its
peremptory challenges to strike every prospective black
juror in the three other first degree murder trials occurring
in Kent County within one year of Riley's trial. It did so
both for the other black murder defendant and the two
white murder defendants.7 In these four trials (including
Riley's), the prosecution struck all 8 prospective black
jurors who were called, i.e., 100%. By contrast, the
prosecution used its peremptory challenges to strike only
23 of the 71 prospective white jurors, or 32%. After the
prosecution used its peremptory challenges to strike 23
whites, 8 blacks, 1 Indian, and 2 jurors of unidentified
race, the remaining racial makeup of the actual jurors in
the four trials was 48 white jurors. See Letter to this Court
from Thomas J. Allingham II (Dec. 16, 1999), Ex. A (on file
in the Clerk's office).

An amateur with a pocket calculator can calculate the
number of blacks that would have served had the State
used its strikes in a racially proportionate manner. In the
four capital cases there was a total of 82 potential jurors on
the venires who were not removed for cause, of whom eight,
or 9.76%, were black. If the prosecution had used its
peremptory challenges in a manner proportional to the
percentage of blacks in the overall venire, then only 3 of the
34 jurors peremptorily struck (8.82%) would have been
black and 5 of the 48 actual jurors (10.42%) would have
been black. Instead, none of the 48 jurors were black.

Admittedly, there was no statistical analysis of these
figures presented by either side in the post-conviction
proceeding. But is it really necessary to have a
sophisticated analysis by a statistician to conclude that
_________________________________________________________________

7. The exclusion by the Kent County prosecutor of all black jurors in the
trials of the two white defendants is relevant to establishing a pattern
of
race-based use of peremptories. See Powers v. Ohio, 499 U.S. 400 (1991)
(excluding jurors on the basis of race is unconstitutional regardless of
the race of the defendant).

                               19
there is little chance of randomly selecting four consecutive
all white juries? The State never argued before the hearing
judge and does not argue before this court that the
selection of four consecutive all white juries could have
been due to pure chance. Nor does it suggest that Riley's
evidence does not accurately represent Kent County
prosecutorial practices. Moreover, not once has the State
offered an explanation for its use of peremptory challenges
to strike all prospective black jurors in the four consecutive
capital cases. The State has never sought to explain the
data by variables other than race. Nor has it sought to
rebut Riley's evidence.

The failure of the State to produce evidence from other
trials is significant because it was the State, not Riley, that
would have had access to such evidence, it was the State
that asserted that such evidence was available and
forthcoming, and it was the State, not Riley, that failed to
provide it. Yet again, neither the hearing judge in his
opinion nor the Delaware Supreme Court discussed Riley's
evidence that showed the systematic exclusion of blacks
from the petit juries in Delaware. In fact, having stated that
this evidence was introduced to demonstrate that"the
exercise of the peremptory challenges in this particular case
followed some kind of pattern that exists in the
prosecutorial actions in first degree murder cases involving
minority defendants," App. at 872, the hearing judge
discussed neither the statistics nor the State's failure to
explain them. Thus, once again by overlooking and ignoring
a significant segment of Riley's evidence, the hearing
judge's opinion does not satisfy the crucial third step of the
Batson analysis.

7. Analysis

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

       The State in this case provided race-neutral
       explanations for the peremptory challenges on all three
       black jurors. After examining the demeanor and

                               20
       credibility of the witnesses and prosecutors at the
       evidentiary hearing, I believe the State exercised its
       peremptory challenges entirely within the strictures of
       the Fourteenth Amendment. No factual basis exists for
       a successful claim of an equal protection violation. The
       State successfully rebutted any prima facie showing of
       discrimination in jury selection based upon race.

Riley IV, App. at 890-891. This determination that the
prosecutors did not intend to discriminate on the basis of
race in exercising their peremptory strikes against the three
challenged jurors is a factual finding entitled to a
presumption of correctness unless one of the exceptions in
S 2254(d) (1988) applies. See Hernandez v. New York, 500
U.S. 352, 365-66 (1991).

The inquiry required by Batson must be focused on the
distinctions actually offered by the State in the state court,
not on all possible distinctions we can hypothesize. See
Mahaffey v. Page, 162 F.3d 481, 483 n.1 (7th Cir. 1998)
(concerning itself with actual reasons, not apparent ones,
for state's use of peremptory challenges); Turner v.
Marshall, 121 F.3d 1248, 1253 (9th Cir. 1997) ("The
arguments that the State has made since the evidentiary
hearing do not form part of the prosecutor's explanation.").
Apparent or potential reasons do not shed any light on the
prosecutor's intent or state of mind when making the
peremptory challenge. As to both Nichols and McGuire, the
hearing judge merely repeated Liguori's articulated
explanations without any reference to, or analysis of, Riley's
evidence of pretext and seems to have accepted the State's
justifications at face value.

Liguori simply testified that he struck McGuire because
he would be inattentive at trial, and for no other reason, a
justification that would apply equally to Reed. The State
gave no explanation as to Reed other than Liguori's plain
lack of memory. Cf. Harrison v. Ryan, 909 F.2d 84, 87 (3d
Cir. 1990) (concluding that prosecutor's failure to recall his
reason for striking prospective juror did not constitute a
race-neutral explanation). And the credibility of Liguori's
lack of memory is somewhat in doubt considering that he
claimed to remember Nichols' "significant pause." The only
distinction between the two jurors that is apparent from the

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

A comparison between a stricken black juror and a
sitting white juror is relevant to determining whether the
prosecution's asserted justification for striking the black
juror is pretextual. See McClain v. Prunty, 217 F.3d 1209,
1220 (9th Cir. 2000) ("A prosecutor's motives may be
revealed as pretextual where a given explanation is equally
applicable to a juror of a different race who was not
stricken by the exercise of a peremptory challenge.");
Jordan v. Lefevre, 206 F.3d 196, 201 (2d Cir. 2000)
("Support for the notion that there was purposeful
discrimination in the peremptory challenge may lie in the
similarity between the characteristics of jurors struck and
jurors accepted. Where the principal difference between
them is race, the credibility of the prosecutor's explanation
is much weakened."); Maloney, 159 F.3d at 653 ("[A]s a
general matter, comparisons between challenged jurors and
similarly situated, unchallenged jurors of a different race or
gender can be probative of whether a peremptory challenge
is racially motivated."); Coulter v. Gilmore , 155 F.3d 912,
921 (7th Cir. 1998) ("A facially neutral reason for striking a
juror may show discrimination if that reason is invoked
only to eliminate African-American prospective jurors and
not others who also have that characteristic."); Turner, 121
F.3d at 1251-52 ("A comparative analysis of jurors struck
and those remaining is a well-established tool for exploring
the possibility that facially race-neutral reasons are a
pretext for discrimination.").

The comparison between McGuire and Reed is strongly
suggestive of the State's race-based use of its peremptory
challenges. See, e.g., McClain, 217 F.3d at 1224 (concluding
that Batson was violated where two of six proffered race-
neutral explanations were "pretextual based upon
comparisons of voir dire responses by non-black jurors who
were seated without objection by the prosecutor," and other
four were contrary to the facts); Turner, 121 F.3d at 1253-
54 (holding that the district court clearly erred in finding
that prosecutor did not discriminate in jury selection where
sole justification offered for striking a black juror applied
equally to non-stricken white juror); Devose v. Norris, 53

                               22
F.3d 201, 205 (8th Cir. 1995) (concluding that Batson was
violated where the only justification prosecutor offered for
striking three out of four prospective black jurors with prior
jury experience was that they might be "burned out" by
prior service and where at least five white jurors were not
stricken although they had previously served on juries);
Jones v. Ryan, 987 F.2d 960 (3d Cir. 1993) (rejecting the
prosecutor's proffered race-neutral explanation for striking
black jurors where the prosecutor did not apply the same
rationale to similarly-situated white jurors); Garrett v.
Morris, 815 F.2d 509, 514 (8th Cir. 1987) ("The prosecutor's
rationale [for striking three black jurors]-- the blacks'
purported lack of education, background, and knowledge --
seems clearly pretextual in light of his decision not to strike
white jurors who differed in no significant way").

Nichols' answers as to his willingness to return a death
sentence were the same as LePore's, and were it not for
Liguori's testimony as to the suspect "significant pause,"
there would be no significant difference between them as
well, except, of course, that Nichols, who was struck, is
black and LePore, who was retained, is white.

Furthermore, each piece of evidence should not be
reviewed in isolation. It is clear that "[a]n explanation for a
particular challenge need not necessarily be pigeon-holed
as wholly acceptable or wholly unacceptable. The relative
plausibility or implausibility of each explanation for a
particular challenge . . . may strengthen or weaken the
assessment of the prosecution's explanation as to other
challenges." United States v. Alvarado, 923 F.2d 253, 256
(2d Cir. 1991). In short, "[a] reviewing court's level of
suspicion may . . . be raised by a series of very weak
explanations for a prosecutor's peremptory challenges. The
whole may be greater than the sum of its parts." Maloney,
159 F.3d at 651.

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

                                23
to provide the rebuttal data as to Riley's evidence when
given the opportunity which it requested. In that
circumstance, an inference adverse to the State may fairly
be drawn. As has been recognized, "[w]here relevant
information . . . is in the possession of one party and not
provided, then an adverse inference may be drawn that
such information would be harmful to the party who fails to
provide it." McMahan & Co. v. Po Folks, Inc. , 206 F.3d 627,
632 (6th Cir. 2000) (quotation omitted). Indeed, the
Supreme Court has stated, "The production of weak
evidence when strong is available can lead only to the
conclusion that the strong would have been adverse."
Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226
(1939). Accordingly, the State must accept the negative
inference that flows from its failure to provide the rebuttal
data, and that inescapable inference is that the Kent
County Prosecutor's office did not want blacks on its juries
in first degree murder cases.

The Supreme Court in Batson recognized the significance
of evidence of systematic exclusion of blacks in jury
selection. It stated, "Proof of systematic exclusion from the
venire raises an inference of purposeful discrimination
because the `result bespeaks discrimination.' " Batson, 476
U.S. at 94-95 (quoting Hernandez v. Texas, 347 U.S. 475,
482 (1954)). It likewise recognized the relevance of
systematic exclusion of blacks from the petit jury. See id. at
96-97; see also McClain, 217 F.3d at 1224 (finding that "the
fact that all blacks in the venire pool were struck raises an
inference of discrimination" where 3 of 39 people in venire
pool were black). On the record before us, it is difficult to
avoid drawing the inference that the Kent County
Prosecutor followed a pattern of using peremptory
challenges in a racially discriminatory manner. 8
_________________________________________________________________

8. The pattern is relevant even if Riley has not undertaken to prove a
Batson violation in the other three trials. Defendants Daniel Pregent and
Judith McBride were both tried before Batson was decided, and thus
were not likely to have raised a Batson objection, particularly since
neither was black and the Supreme Court did not extend the Batson
holding to apply regardless of whether the defendant and excluded juror
were of the same race until its opinion in Powers v. Ohio, 499 U.S. 400
(1991). The third capital defendant, Deputy, did not challenge the

                               24
Despite the State's efforts to explain away the various
parts of the evidentiary picture Riley has presented, the
record as a whole squarely contradicts its position. The
questionable nature of Liguori's explanations for the strikes
of McGuire and Nichols must be evaluated not only in light
of the uncontested evidence of the use of peremptory
strikes in Kent County but also in light of the nature of the
State's pre-Batson defense on direct appeal.

When Riley's direct appeal came before the Delaware
Supreme Court in 1984, the State justified the use of race
in selecting jurors in criminal trials. On that occasion,
which was the State's first opportunity to defend the use of
its peremptory challenges in Riley's trial, the State did not
offer a single race-neutral explanation, not even as an
alternate argument; instead, it claimed that it was
permissible -- even socially desirable -- to exclude jurors
based on what it called "group association," App. at 896,
which a Justice of the Delaware Supreme Court was
reported to have recognized as a "euphemism for race,"
App. at 1321. In its brief to the Delaware Supreme Court,
the State interpreted Swain v. Alabama, 380 U.S. 202
(1965), as "recogniz[ing] how peremptory challenges, even
those exercised on the basis of group association, foster the
constitutional goal of an impartial jury." App. at 896. The
State added in a footnote that it "emphatically denies that
the prosecutor [in Riley's case] exercised any of his
challenges solely on the assumption that the juror's race, in
the context of the facts of this case, indicated a verdict
position adverse to the prosecution. Rather, the State will
argue that even if such was the case, no constitutional
command would have been contravened." App. at 896
(emphasis added).
_________________________________________________________________

composition of the jury in the state courts and thus the racial makeup
of the venire was not available when this court decided the appeal. See
Deputy, 19 F.3d at 1491-93. Moreover, the Supreme Court in Batson
made clear that "a defendant may make a prima facie showing of
purposeful racial discrimination in selection of the venire by relying
solely on the facts concerning its selection in his case." Batson, 486
U.S.
at 95 (emphasis in original).

                               25
Before this court, the State contends that Swain was
"good law" at the time, so reliance on that case cannot be
viewed as a concession that some of its peremptory
challenges may not have been race-neutral. Tr. of Oral
Argument at 31. Yet, significant for purposes here is that in
response to Riley's challenge to its use of peremptories, the
State never denied on direct appeal that race played a role
in its use of peremptory challenges; it only claimed that it
did not exercise them solely based on race. Its justification
for that practice certainly suggests that race was at least a
partial basis for its use of peremptory challenges. And that
suggestion further supports the conclusion we are led to by
our earlier analysis of the record that the State's proffered
race-neutral explanations are pretextual.

The requirement that we defer to the State's findings of
fact does not apply when those findings are not supported
by probative evidence. The State's position is that under
S 2254(d) "all that is required" is that the state court make
findings of fact, and flatly states that because the hearing
judge did so, we must defer. Tr. of Oral Argument at 41.
Although the State concedes that we must concern
ourselves under Rushen, 464 U.S. at 121 n.6, with whether
there is probative evidence in the record to support the
state court's findings, it then seems to argue that since the
findings are primarily based on credibility determinations,
the mere fact that Liguori testified is sufficiently probative
to support these determinations.

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

                               26
prosecutor] is completely outlandish or there is other
evidence which demonstrated its falsity"); Maloney, 159
F.3d at 651 (stating that serious questions of pretext arise
when the facts in the record are "objectively contrary to" the
prosecutor's explanations).

In light of the lack of probative evidence in the record to
support the findings that the State exercised its peremptory
challenges at Riley's trial in a race-neutral manner, we
decline to give these findings deference. Such deference is
ordinarily based, at least in part, on the original trial
court's ability to make contemporaneous assessments. See
Hernandez v. New York, 500 U.S. at 365. Recently, the
Court of Appeals for the Fourth Circuit deferred to the state
court's findings on a Batson claim precisely because the
court had that opportunity. It explained,

       Indeed, it would be an impermissible exercise in
       hindsight for us now to upset the trial court's
       credibility determination in evaluating the prosecutor's
       explanation. And as the district court correctly
       observed, the `retrospective parsing of the `curricula
       vitae' of the jurors' is no substitute for the observations
       of the trial judge, who witnessed first-hand the
       process. We simply cannot overlook the fact that the
       trial court had conducted an extensive voir dire of the
       jury pool, which was documented in several hundred
       pages of trial transcripts, and was able to observe the
       demeanor and hear the responses of the prospective
       jurors in court. This insight enabled the trial court to
       compare the prosecutor's explanation with what
       occurred at the bench and in open court. Most
       significantly, the trial court was able to observe the
       prosecutor's demeanor and conduct and evaluate the
       credibility of his explanation.

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

It may be that because the findings at issue here were
made by the hearing judge six years after the State had
exercised its peremptory challenges before the trial judge
and the hearing judge neither witnessed the challenges
first-hand nor examined the witnesses at the time the

                                27
challenges were exercised, he did not note or comment on
some of the troublesome inconsistencies in the State's race-
neutral explanations.

Deference in a Batson case must be viewed in the context
of the requirement that the state courts engage in the
three-step Batson inquiry. As the Court of Appeals for the
Fourth Circuit described step three: "If [the State's] burden
[under step two] is met, the court then addresses and
evaluates all evidence introduced by each side (including all
evidence introduced in the first and second steps) that
tends to show that race was or was not the real reason and
determines whether the defendant has met his burden of
persuasion." McMillon, 14 F.3d 948, 953 n.4 (4th Cir.
1994); see also Jordan, 206 F.3d at 200 (stating that step
three of Batson inquiry requires examination of "all the
facts and circumstances") (quotation omitted).

Here, the state courts failed to examine all of the
evidence to determine whether the State's proffered race-
neutral explanations were pretextual. Not only is there no
indication on the record that the hearing judge engaged in
the required analysis, but there is no indication that the
Delaware Supreme Court did so, by making findings which
also would have been entitled to deference. See Sumner v.
Mata, 449 U.S. 539, 547 (1981). The omission of the crucial
step of evaluating the State's proffered explanations in light
of all the evidence can be gleaned by the absence of the
word "pretext" in both the opinion of the hearing judge and
in the opinion of the Delaware Supreme Court. Nor is there
any language in either opinion that suggests, whatever the
words used, that either court recognized the nature of the
analysis it was required to undertake. In Jones v. Ryan, we
noted that the state court decision rejecting a Batson claim
contained no factual findings relating to the different
prongs of the Batson analysis, to which we could accord a
presumption of correctness. See 987 F.2d at 965-66. The
situation before us is similar.

The State argues that our concern with the hearing
judge's failure to discuss critical evidence in his decision is
merely a complaint about the manner in which he wrote his
opinion. It states in its supplemental brief that"[i]t may
well have been better for the state judge to have further

                               28
explained his decision . . . [b]ut the federal habeas statutes
do not set standards for the writing of opinions by state
judges." Supp. Memo. of Appellees at 7.

But the concern is not how the decision was written, a
trifling matter. It is the failure of the state courts to
complete the required Batson analysis by comparing the
stricken black jurors with the sitting white jurors,
acknowledging the statistical evidence of striking all black
jurors in capital murder cases in Kent County within a year
of Riley's trial, and recognizing the State's position in this
very case that use of peremptories for racial reasons was
both constitutional and socially beneficial.

Comparable to the case before us is the decision in
Coulter v. Gilmore, 155 F.3d 912 (7th Cir. 1998). There the
court acknowledged that deference is owed to the state
court findings under S 2254(d), but rejected those findings
and refused to apply the presumption of correctness
because "the state judge made those findings without ever
taking into account the totality of the circumstances on the
record." Id. at 920. It noted that Batson requires "that, one
way or another, a trial court . . . consider all relevant
circumstances before it issues a final ruling on a
defendant's motion." Id. at 921. In a compelling statement
of the court's role under step three of the Batson inquiry,
the court wrote:

       In light of the deferential standard of the post-AEDPA
       S 2254 and the perfunctory quality of the second step
       of a Batson inquiry after Purkett v. Elem, it is more
       important today than ever that the Batson inquiry not
       omit consideration of the totality of the circumstances,
       both for itself and as it relates to the evaluation of
       similarly situated potential jurors. . . . Under the pre-
       AEDPA standards that apply here, we agree with the
       district court that [defendant's] rights under Batson
       were denied.

Id. at 921-22.

The state courts in this case rejected Riley's Batson claim
without discussing any of the ample evidence that throws
into question the explanations offered by the prosecutor for
striking two of the black jurors and there is nothing

                               29
relevant in the record that might otherwise support the
state courts' decisions. Thus, we do not know why the state
courts found the State's explanation was plausible and
credible in light of the other evidence. It is because of the
state courts' omission of a requirement under the third step
of the Batson inquiry -- of an ultimate determination on the
issue of discriminatory intent based on all the facts and
circumstances -- that the State's argument founders.

We cannot avoid noting that Batson was not a death
penalty case. This is. If the State failed to accord Riley his
constitutional right to a jury selected on a race-neutral
basis, we must not shirk to so hold. As Riley's lawyer asked
at oral argument, "If not this case, what case? If the
evidence in this case is insufficient to show that the
prosecutors' race-neutral rationales were pretextual, what
case, short of a prosecutorial mea culpa would do the job?"
Tr. of Oral Argument at 3.

After consideration of all the arguments and the record,
we are compelled to conclude that the prosecution violated
Riley's constitutional rights under Batson, and that Riley is
entitled to relief.

8. The Dissenting Opinion -- The Batson Issue

It is fitting to discuss the Dissenting Opinion at this point
because our difference with the Dissent is most acute in
our respective views of the requirements of step three of the
Batson inquiry. Although the Dissent takes issue with
much of the majority opinion, its principal argument is that
in a habeas case the federal court must defer to the state
courts' findings, in this case the finding that the prosecutor
did not use the State's peremptory challenges striking black
jurors in a manner that violated the principles of Batson.
We have already discussed in detail when a state court's
findings are entitled to deference and when they are not,
focusing on the exception in S 2254(d)(8) for the situation
where the state court's findings are "not fairly supported by
the record." See supra Part II.A.4 (Standard of Review). It is
manifest that a finding that Batson has been satisfied must
be made in accordance with the process enunciated in that
case.

                               30
The Dissent agrees that under step three of the Batson
inquiry a judge or court must consider "all of the relevant
evidence that has been adduced." See Dis. Op. at 88. As we
previously discussed, the courts after Batson have
described step three as requiring the judge or court to
examine the prosecutor's proffered reasons for striking the
minority jurors against the evidence presented by the
defendant and/or the weaknesses in the prosecutor's
reasons. See, e.g., McMillon, 14 F.3d at 953 n.4; Jordan,
206 F.3d at 200. The Dissent sees no reason to believe that
the Delaware courts did not do so in Riley's case, even
though the opinions of the Delaware courts rejecting Riley's
Batson challenges never commented on the weaknesses in
the State's case or, even more important, never
acknowledged that there was a step three to the Batson
inquiry. We, therefore, proceed to try to ascertain whether
the hearing judge and the Delaware Supreme Court made
their findings that there was no purposeful discrimination
in accordance with the process required by Batson. If not,
then deference to those findings is not appropriate.

The extent of the Delaware courts' recognition of the need
to engage in the step three inquiry is open to question on
this record. Nothing in the discussion of the hearing judge
suggests that the court performed the necessary evaluation.
See Riley IV, App. at 887-91. The hearing judge, using
language taken from Riley I rather than Batson, understood
that his obligation was to consider the prosecutor's
proffered explanation for striking the jurors and"then . . .
be satisfied by that neutral explanation and make a ruling
to that effect." App. at 888. Accordingly, following what he
understood to be the applicable law, the hearing judge
discussed the prosecutor's proffered reasons for the two
strikes at issue here, and found that the prosecutor was
credible. See App. at 889 ("the State provided a credible,
race-neutral reason for exercising its peremptory
challenge") (emphasis added); id. ("The State articulated a
specific race-neutral ground for challenging juror McGuire.
. . .") (emphasis added). Throughout, the hearing judge
made clear that he understood that "[t]he test applied is the
credibility of the explanation given . . . ." App. at 890.
Nothing in the hearing judge's discussion suggests that he
undertook an evaluation of the proffered reasons in light of

                               31
the evidence submitted by Riley, which is the essence of
step three.

It is even more questionable whether on appeal from that
decision the Delaware Supreme Court fully appreciated the
requirement. Its entire discussion of this issue is fully set
forth in the margin.9 In this one paragraph, the Court relied
on its 1985 decision on Riley's direct appeal where it
rejected Riley's challenge to the State's peremptory
challenges. Riley I, 496 A.2d 997 (Del. 1985). The 1985
decision is noteworthy because on that occasion (a year
before Batson), the Delaware Supreme Court concluded, for
the first time, that "use of peremptory challenges to exclude
prospective jurors solely upon the basis of race violates a
criminal defendant's right under Del. Const., Art. I, S 7 to a
trial by an impartial jury." Riley I, 496 A.2d at 1012.

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

9. The Court stated:

         Riley's next contention, that the State exercised its peremptory
         challenges for racial reasons, we find to be simply a renewed
         attempt to reopen previously settled issues. In Riley I, [496 A.2d
997
         (Del. 1985)], we set forth a legal analysis functionally identical
to the
       Supreme Court's analysis later articulated in Batson, 476 U.S. at
       79. In Riley I, we found that Riley's constitutional right to an
       impartial jury had not been violated. 496 A.2d at 1009. The
       Superior Court, after an evidentiary hearing on Riley's motion for
       postconviction relief, held that Riley had not been denied equal
       protection as a result of the State's use of peremptory challenges.
       The court found that the State had provided race-neutral
       explanations for its peremptory challenges. We find no error in
       Superior Court's rejection of Riley's Batson claim. See Holland v.
       Illinois, 493 U.S. 474 (1990) (the Sixth Amendment fair cross-
section
       requirement of an impartial jury does not deprive a party of the
right
       to exercise peremptory challenges on racial or any other grounds
       from a venire that otherwise meets Sixth Amendment cross-sectional
       standards of representativeness). Moreover, we reaffirm our earlier
       decision sustaining the State's peremptory challenges on state
       constitutional grounds. Riley I, 496 A.2d at 1010-1013.

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

10. That procedure required that the defendant make a prima facie
showing after which the trial judge
32
decision requires an inquiry comparable to the Batson step
three. The Delaware cases at that time appear to have
required that the prosecutor provide, or articulate, a race-
neutral reason for the peremptory challenges, and that the
court find the prosecutor to be credible. They do not require
an evaluation comparable to step three. Therefore, if, as it
appears, the Delaware Supreme Court in Riley IV rejected
Riley's Batson claim by relying on its earlier opinion in Riley
I, and the Riley I opinion did not require a step three
inquiry, any assumption that the Court engaged in such an
inquiry would be unwarranted. Or, to phrase it somewhat
differently, if the state courts' findings to which the Dissent
would defer were not made in accordance with the process
required by the United States Supreme Court, deference is
not required.

This digression into Delaware law was undertaken to
provide the context in which to view the Dissent's
subsidiary argument, which is that we should assume that
the Delaware courts performed the step three analysis and
that it was not necessary for the Delaware courts to
comment on that analysis. We do not suggest that every
state court decision that is the subject of a habeas review
be as explicit as a Social Security Administrative Law
Judge's decision. See Dis. Op. at 89. But Batson is not a
disability case. Although a judge considering a Batson
challenge is not required to comment explicitly on every
piece of evidence in the record, some engagement with the
evidence considered is necessary as part of step three of the
Batson inquiry.
_________________________________________________________________

       determine[s] whether there is a substantial likelihood that the
       prosecutor is exercising the State's peremptory challenges on the
       basis of race. A ruling in favor of the State will end any further
       inquiry. A ruling in favor of the defendant, however, will shift
the
       burden to the State to prove that the exercised challenges were not
       racially motivated. To sustain this burden, the State . . . must
       satisfy the court that its peremptory challenges were made on
       grounds of specific, individual juror bias, or on grounds
reasonably
       related to the particular case or trial . . . and not solely on the
       ground of the juror's race.

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

                               33
In United States v. Harris, 192 F.3d 580, 588 (6th Cir.
1999), the Sixth Circuit reviewed the district court's
rejection of a Batson challenge in a case where one African-
American juror was seated but two were struck by the
government's peremptory challenges. The Court of Appeals
remanded because it found that the district court's"terse
analysis" of step three of the Batson inquiry was
insufficient as it appeared that the district court"made no
effort to weigh the credibility of the prosecutor's asserted
reasons for striking the panelists." Id. at 588. A year earlier,
in United States v. Hill, 146 F.3d 337 (6th Cir. 1998), the
same court remanded another case to the district court
because its analysis of step three of the Batson inquiry was
insufficient. The court stated, in language that could be
equally applicable here, that "[t]he record before us
indicates nothing about the district court's thought
processes in its step three analysis apart from its abrupt
conclusion indicating the apparent view that the
prosecutor's asserted justification outweighed [the
defendant's] showing under the totality of circumstances."
Id. at 342. And in Hill, unlike here, the trial court ruling on
the Batson claim at least stated that it performed some sort
of weighing analysis.

Although both of these cases came to the Court of
Appeals on direct appeal of a district court decision rather
than on habeas review of a state decision, that does not
detract from the force of the court's understanding of what
is required in a Batson inquiry. The process required by
Batson, including step three, does not differ if the
prosecutor used the peremptories to strike jurors in a state
trial or in a federal trial. After all, the same Constitution
applies to both fora.

The Dissent relies almost exclusively on the statutory
presumption of correctness owed to a state court's factual
determination made after a hearing on the merits. This
deference is indeed the fulcrum on which our federalism
turns. Yet in case after case -- and most particularly in
capital cases -- we have found that even applying the more
stringent post-AEDPA standard of review (not applicable
here), there are reasons not to accord the usual deference
to the state courts' findings. See, e.g., Jermyn v. Horn, 266

                               34
F.3d 257, 305 (3d Cir. 2001) (post-AEDPA denial of
deference to state court because it unreasonably applied
the principles of Strickland v. Washington, 466 U.S. 668
(1984)); Moore v. Morton, 255 F.3d 95, 120 (3d Cir. 2001)
(post-AEDPA denial of deference to state court because "[a]
reasonable application of Supreme Court precedent . . .
requires finding [defendant's] trial was so infected with
unfairness that he was denied due process"); Appel v. Horn,
250 F.3d 203, 211 (3d Cir. 2001) (post-AEDPA denial of
deference to state court because, among other things, the
state court failed to apply the relevant Supreme Court
precedent of United States v. Cronic, 466 U.S. 648 (1984)).

As we discuss in detail in the immediately preceding
section of this opinion, see supra Part II.A.7 (Analysis), the
requirement that the state courts faced with a Batson
challenge engage in the critical step three analysis is not a
product of our own creativity but an accepted element of a
habeas court's obligation to examine whether a defendant's
constitutional right to a race-neutral jury has been
infringed. See, e.g., Jordan, 206 F.3d at 200; Coulter, 155
F.3d at 921; McMillon, 14 F.3d at 953 n.4; Jones, 987 F.2d
at 967.

The Dissent accords little weight to these authorities. But
our disinclination to include long string cites does not
mean that there are not numerous cases in which the
courts, both state11 and federal, have made clear that the
Batson step three inquiry is not merely a formalistic one,
but an integral element of the required analysis. In addition
to Harris and Hill, the Sixth Circuit cases cited above, the
Second Circuit has also made this point. In Barnes v.
Anderson, 202 F.3d 150 (2d Cir. 1999), the court ordered a
_________________________________________________________________

11. See, e.g., MacKintrush v. State , 978 S.W.2.d 293, 297 (Ark. 1998)
(describing step three of Batson as requiring "that the trial court weigh
and assess what has been presented to it to decide whether in light of
all the circumstances, the proponent's explanation is or is not
pretextual"); State v. Collier, 553 So.2d 815, 821 (La. 1989) (holding
that
the trial judge cannot simply "[r]ubber stamp. . . [a prosecutor's] non-
racial explanation, no matter how whimsical or fanciful, . . . [but] in
order to permit a questioned [peremptory] challenge, . . . must conclude
that the proffered reasons are, first, neutral and reasonable, and,
second, not a pretext") (quotation omitted).

                               35
new trial because the trial court had denied a Batson
motion "without explicit adjudication of the credibility of the
non-movant's race-neutral explanations for the challenged
strikes." Id. at 156 (emphasis added).

The Dissent suggests that we exceed our authority as a
habeas court when we comment on the failure of the state
courts reviewing Riley's Batson challenge to provide a
reasoned statement for their rejection of Riley's challenge.
Although the state court is not required to "comment on all
of the evidence" before it, Dis. Op. at 89 (emphasis added),
an adequate step three Batson analysis requires something
more than a "terse," Harris, 192 F.3d at 588, "abrupt," Hill,
146 F.3d at 342, comment that the prosecutor has satisfied
Batson.

Similarly, we do not think that a habeas court may reject
a state court's ruling on a Batson claim simply because "it
was not persuaded by a particular piece of proof," as the
Dissent states. Dis. Op. at 87. However, as we have
explained, without any such statement there is no basis on
this record to determine if the state courts undertook, or
even were aware of, the required Batson step three inquiry.
The Fourth Circuit expressed the same thought in United
States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991), where it
stated: "[T]he failure of the district court to rule at each
step of the Batson analysis deprives . . .[a reviewing] court
of the benefit of its factual determination and the reasons
supporting its ultimate holding." And its cases make clear
that such review requires that the trial court's rulings must
be clearly articulated. See, e.g., Jones v. Plaster, 57 F.3d
417, 421 (4th Cir. 1995) ("The ruling of the district court is
so unclear that we cannot determine on the present record
whether the ultimate conclusion of the district court to
overrule [the Batson] objection may be sustained."); United
States v. Blotcher, No. 95-5590, 1996 U.S. App. Lexis
19835, *11-*12 (4th Cir. August 7, 1996) (unpublished)
("We find the record so unclear that we cannot determine
whether the district court applied the proper legal analysis
in sustaining the prosecution's Batson objection to
[defendent's] peremptory strike against [a] juror.").

Most of the Dissent's other comments on the Batson
issue in this case have been previously anticipated and

                               36
discussed. We take this opportunity, however, to remark
upon the manner in which the Dissent comments upon the
reference to the pattern of the State's use of its
peremptories to exclude black jurors in all four first degree
murder cases, including Riley's, tried in the county the
same year. Because of the lack of information about some
of those cases, we refrained from suggesting that such
evidence, standing alone, would show intentional
discrimination but pointed out that it was the State that
sought an opportunity to produce supplementary evidence.
The following correspondence, which was preceded by the
oral dialogue quoted previously in its opinion, supra at
typescript page 18, clarifies the situation.

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

        This will confirm the conclusion of the postconviction
       relief hearing in the above-captioned matter. It is the
       Court's understanding that the defendant's
       presentation and all rebuttal by the State available on
       the date of the hearing has been completed. However,
       at the State's request, the Court did hold the record
       open on the hearing to be supplemented by a rebuttal
       summary of jury composition in State peremptory
       challenges in first degree murder trials in Kent County
       over a determined period of time if the State wished to
       supplement the record.

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

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

Some three weeks later, on January 27, 1989, and just
before the hearing record was to close, the State advised
the court as follows:

        Please be advised that the State will not supplement
       the record of the post conviction relief hearing held in
       the above-captioned matter on December 30, 1988.

Id.

                                37
Thus the State, which had assured the court that
materials from other cases "do exist" that would be contrary
to Riley's representation, App. at 874, and having been
given the opportunity that it requested to supplement the
record with evidence as to jury composition, surprisingly
and without explanation, declined to produce evidence that
blacks served on juries in first degree murder cases in the
county in the same period that Riley was tried before an all-
white jury. The presumption that could be drawn from
these facts is one of the circumstances that should have
been evaluated by the Delaware courts in the required step
three inquiry.

The Dissent comments that Riley offered no expert
analysis of the statistics. The procedural posture of the
case at that time provided no such opportunity. Riley
produced evidence of the statistics of the racial composition
of the jurors in the four cases, the State requested the
additional time to provide counter-evidence, and the
hearing judge left the record open for that purpose. There
would have been no basis for expert analysis until all the
evidence as to jury composition was produced. The State's
letter that it would produce no evidence was dated three
days before the record closed.

Further, the Dissent's attempt to analogize the statistical
evidence of the use of peremptory challenges to strike black
jurors to the percent of left-handed presidents requires
some comment. The dissent has overlooked the obvious fact
that there is no provision in the Constitution that protects
persons from discrimination based on whether they are
right-handed or left handed. To suggest any comparability
to the striking of jurors based on their race is to minimize
the history of discrimination against prospective black
jurors and black defendants, which was the raison d'etre of
the Batson decision.

To reiterate, the factual findings of a state court are
entitled to deference only when there is "probative evidence
underlying [its] conclusion." See Rushen, 464 U.S. at 122
n.6. The Dissent points to no such probative evidence. It
relies merely on the credibility finding of the hearing judge,
a finding that we cannot be sure was made following
consideration of all the evidence presented by Riley and the

                               38
weaknesses he pointed to in the prosecutor's proffered
reasons.

9. Appropriate Remedy

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

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

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

We agree. Much of the Dissent's opposition is directed to
the majority's failure to remand to the District Court for a
hearing but the Dissent may have overlooked that both
parties preferred a new trial to a remand should this court
find that the state proceedings were not shown to be
consistent with the requirement of Batson. It is highly
unlikely that the witnesses can provide more illuminating
testimony thirteen years later. Moreover, there are no
factual issues that can be solved by a federal evidentiary
hearing.12 Although the Dissent chooses to characterize the
result in this case as a federal court's substitution of its
own findings for those of the state court, in fact we are
merely fulfilling the traditional role of a federal habeas
court, which is, in part, to determine whether the state
court's decision is "fairly supported by the record." The one
_________________________________________________________________

12. This is unlike the situation in Hakeem v. Beyer, 990 F.2d 750 (3d
Cir. 1993), where we held that the state court's finding regarding the
delay in the proceedings was not entitled to the presumption of
correctness but directed the district court to determine in a federal
habeas evidentiary hearing the reason for the delay.

                                39
possible factual issue cannot be resolved by a hearing,13
and the statistical evidence, which might be the subject of
some analysis at such a hearing, is relevant but not
dispositive to our decision.

The question of the remedy a habeas court should order
following a finding that the state process did not comply
with constitutional requirements is not a new one. In
Brown v. Kelly, 973 F.2d 116 (2d Cir. 1992), the federal
court of appeals was faced with a comparable situation as
that before us. Defendant was convicted in state court of
murder and first degree robbery. He eventually came to the
federal court with a petition for a writ of habeas corpus,
claiming, inter alia, a violation of Batson. The federal courts
did not find that Batson had been violated but the Second
Circuit took the opportunity to consider the appropriate
remedy when a constitutional violation is found by the
federal courts sitting in habeas. The court stated,"[T]here
are cases where the passage of time may impair a trial
court's ability to make a reasoned determination of the
prosecutor's state of mind when the jury was selected.
Where such demonstrably exists, there must be a new
trial." Id. at 121.

The Brown court cited United States v. Alcantar, 897 F.2d
436, 438-39 (9th Cir. 1990) (ordering a new trial because
there was inadequate evidence to determine, as part of
Batson analysis, why the jurors were struck). And in
Barnes, 202 F.3d at 157, the Court of Appeals ordered a
new trial rather than a remand for a hearing on the Batson
issues because the trial judge had died and the court was
"not confident . . . that further proceedings would . . . shed
reliable light upon the voir dire.") (quotation omitted).

The circumstances of this case are closely analogous to
those in Hardcastle v. Horn, ___ F. Supp. 2d ___, 2001 WL
_________________________________________________________________

13. Although neither party has focused on it, there is an apparent
factual discrepancy between McGuire's testimony that he did not request
to be excused, App. at 850, and the trial judge's statement that McGuire
came to see him and requested to be excused, App. at 250. It is agreed
that McGuire saw the trial judge, but McGuire testified it was at the
judge's direction. As the trial judge is deceased, a federal evidentiary
hearing would not resolve this issue, even if it were important to do so.

                               40
722781 (E.D. Pa., June 27, 2001), where the district court
found a Batson violation but dismissed the notion of
ordering a federal evidentiary hearing instead of a new trial
in state court, commenting that "[n]early twenty years have
passed since Petitioner's trial, such a length of time that
even Respondents admit that an evidentiary hearing on
Petitioner's Batson claim is unlikely to be helpful." Id. at
*19. The Hardcastle court stated that "[a] new trial is
especially appropriate where as here, the passage of time
makes a new evidentiary hearing on the petition
impossible." Id.14 Likewise, we see no reason to order the
District Court to provide Riley with an evidentiary hearing
that it declined to provide on two prior occasions. Instead,
we will reverse the District Court's order denying Riley's
petition for a writ of habeas corpus, and remand for the
District Court to grant the writ without prejudice to the
State retrying the case pursuant to the guidelines to be set
by the District Court.

B.

THE CALDWELL CLAIM

In addition to Riley's Batson claim presented to the en
banc court, Riley argues that the prosecutor and the trial
judge made remarks to the jury during the penalty hearing
that misled the jury as to its sense of responsibility in the
sentencing process, in violation of the principles set forth in
Caldwell v. Mississippi, 472 U.S. 320 (1985). In Caldwell,
the Supreme Court held that prosecutorial comments at
sentencing violated the Eighth Amendment by leading the
jury to believe that ultimate responsibility for determining
the appropriateness of the death sentence rested with the
state supreme court. See 472 U.S. at 333.

The Delaware Supreme Court, on direct appeal, rejected
Riley's Caldwell claim, commenting that"[i]n no sense may
_________________________________________________________________

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

                               41
it reasonably be said that the prosecutor was either
misstating the law, misleading the jury as to its role, or
minimizing its sentencing responsibility." Riley I, 496 A.2d
at 1025. The District Court agreed, thus denying Riley
habeas relief. See Riley VIII, 1998 WL 172856, at *31. A
Caldwell claim presents mixed questions of law and fact
subject to plenary review in the habeas context. See Miller
v. Fenton, 474 U.S. 104, 112-14 (1985); see also Moore v.
Gibson, 195 F.3d 1152, 1171 (10th Cir. 1999).

In Caldwell, the defense attorney in a capital murder
case pleaded with the jury in closing arguments at the
sentencing phase to spare the defendant's life. In reply, the
prosecutor stated:

       Ladies and gentlemen, I intend to be brief. I'm in
       complete disagreement with the approach the defense
       has taken. I don't think it's fair. I think it's unfair. I
       think the lawyers know better. Now, they would have
       you believe that you're going to kill this man and they
       know--they know that your decision is not the final
       decision. My God, how unfair can you be? Your job is
       reviewable. They know it.

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

Caldwell's defense counsel objected to this statement but
the trial court overruled the objection, stating that it was
"proper that the jury realizes it is reviewable automatically
as the death penalty commands." Id. The prosecutor
continued:

       Throughout their remarks, they attempted to give you
       the opposite, sparing the truth. They said `Thou shall
       not kill.' If that applies to him, it applies to you,
       insinuating that your decision is the final decision and
       that they're gonna take Bobby Caldwell out in the front
       of this Courthouse in moments and string him up and
       that is terribly, terribly unfair. For they know, as I
       know, and as Judge Baker has told you, that the
       decision you render is automatically reviewable by the
       Supreme Court. Automatically, and I think it's unfair
       and I don't mind telling them so.

Id. at 325-26 (emphasis added).

                                  42
Although the jury's sentence in Caldwell was indeed
subject to automatic review by the state supreme court, the
United States Supreme Court's plurality opinion stated that
the prosecutor's statement was "inaccurate, both because it
was misleading as to the nature of the appellate court's
review and because it depicted the jury's role in a way
fundamentally at odds with the role that a capital sentencer
must perform." Id. at 336. Justice O'Connor, who cast the
fifth and deciding vote, emphasized that "[j]urors may
harbor misconceptions about the power of state appellate
courts or, for that matter, [the United States Supreme
Court] to override a jury's sentence of death." Id. at 342
(O'Connor, J., concurring). According to Justice O'Connor,
the prosecutor's statements were impermissible because
they "creat[ed] the mistaken impression that automatic
appellate review of the jury's sentence would provide the
authoritative determination of whether death was
appropriate" whereas under state law the relevant scope of
review was limited to whether the verdict was "so arbitrary
that it was against the overwhelming weight of the
evidence." Id. at 343 (O'Connor, J., concurring) (quotation
omitted).

In Romano v. Oklahoma, 512 U.S. 1 (1994), the Supreme
Court clarified the Caldwell holding. Accepting Justice
O'Connor's concurrence as controlling, the Romano Court
explained that Caldwell prohibits prosecutorial comments
that "mislead the jury as to its role in the sentencing
process in a way that allows the jury to feel less responsible
than it should for the sentencing decision." Id. at 9
(quotation omitted). Accordingly, "[t]o establish a Caldwell
violation, a defendant necessarily must show that the
remarks to the jury improperly described the role assigned
to the jury by local law." Id. (quotation omitted). The Court
subsequently rejected Romano's Caldwell claim because
"the jury was not affirmatively misled regarding its role in
the sentencing process." Id.

In Riley's case, Liguori began his opening comments in
the penalty phase by stating:

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

                               43
       Let me say at the outset that what you do today is
       automatically reviewed by our Supreme Court and that
       is why there is an automatic review on the death
       penalty. That is why, if you return a decision of death,
       that is why you will receive and have to fill out a two-
       page interrogatory that the Court will give you. This is
       an interrogatory that specifically sets out the questions
       that the State request and whether or not you believe
       it beyond a reasonable doubt and if you want in your
       determination, if you believe the sentence should be
       death than each and every one of you has to sign this.
       This goes to the Supreme Court. That is why it is
       concise and we believe clear and it should be looked
       carefully on and answered appropriately.

App. at 393 (emphases added).

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

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

       The Supreme Court shall limit its review under this
       section to the recommendation on and imposition of
       the penalty of death and shall determine:

       a. Whether, considering the totality of evidence in
       aggravation and mitigation which bears upon the
       particular circumstances or details of the offense and
       the character and propensities of the offender, the
       death penalty was either arbitrarily or capriciously
       imposed or recommended . . . .

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

                                44
added). Indeed, in Delaware the jury's weighing of
aggravating and mitigating circumstances was, for all
practical purposes, final. We have found no published
opinion during the relevant time period in which the
Delaware Supreme Court reversed a jury's sentence of
death as arbitrarily or capriciously imposed.15

It is apparent, then, that, like the prosecutor's statement
in Caldwell, Liguori's reference to automatic appellate
review was misleading as to the scope of appellate review.
As was explained in Caldwell, jurors may not understand
the limited nature of appellate review, which affords
substantial deference to a jury's determination that death is
the appropriate sentence. See 472 U.S. at 332-33.
Furthermore, jurors who are unconvinced that death is the
appropriate punishment but who are eager to send a
message of disapproval for the defendant's acts might be
"very receptive to the prosecutor's assurance that [they] can
more freely err because the error may be corrected on
appeal." Id. at 331 (quotation omitted). As one of our sister
circuits has explained, "[f]or the jury to see itself as
advisory when it is not, or to be comforted by a belief that
its decision will not have effect unless others make the
same decision, is a frustration of the essence of the jury
function." Sawyer v. Butler, 881 F.2d 1273, 1282 (5th Cir.
1989).

It is therefore not enough to argue, as the State does,
that Liguori's comments at sentencing were a correct and
accurate statement of Delaware law. The statute at the time
contained more than 40 different provisions detailing
procedures and requirements applicable to a death
sentence, but the only one the prosecutor chose to
emphasize was that providing for automatic review of the
jury's sentence.
_________________________________________________________________

15. The Delaware capital sentencing scheme was substantially amended
in 1991. Under the amended statute, "the jury now functions only in an
advisory capacity. The judge, after taking the jury's recommendation into
consideration, has the ultimate responsibility for determining whether
the defendant will be sentenced to life imprisonment or death." State v.
Cohen, 604 A.2d 846, 849 (Del. 1992). In contrast, when Riley was
sentenced, the jury's death sentence was binding on the judge.

                               45
Nor does the State satisfactorily explain why Liguori
referred to "automatic review on the death penalty" in
connection with his explanation of the interrogatory form.
App. at 393. The interrogatory form contained only two
questions: whether the jury unanimously found beyond a
reasonable doubt that an aggravating circumstance existed16
and, if the jury answered "yes," whether it unanimously
recommended a sentence of death. Such a simple and
straightforward form hardly needed an explanation.
Instead, that "explanation" appears to have been used as a
segue to alert the jury to the fact that the Delaware
Supreme Court would automatically review its decision to
impose a death sentence.

"The sentencing decision in capital cases is born out of
an inherent and unique mixture of anger, judgment and
retribution, and requires a determination whether certain
acts are so beyond the pale of community standards as to
warrant the execution of their author." Sawyer, 881 F.2d at
1278. Perhaps more than any other decision rendered by a
jury, a sentence of death is "irreducibl[y] discretionary." Id.
Yet in Caldwell, the Supreme Court noted that "[b]elief in
the truth of the assumption that sentencers treat their
power to determine the appropriateness of death as an
awesome responsibility has allowed this Court to view
sentencer discretion as consistent with--and indeed as
indispensable to--the Eighth Amendment's need for
reliability in the determination that death is the appropriate
punishment in a specific case." 472 U.S. at 330 (quotations
omitted). It follows that there is particular concern "when
there are state-induced suggestions that the sentencing
jury may shift its sense of responsibility to an appellate
court." Id. Unlike our decision in Zettlemoyer v. Fulcomer,
923 F.2d 284, 306 (3d Cir. 1991), where we rejected a
Caldwell claim, in part because "[t]here was no suggestion
to the jury that the [state] Supreme Court . .. or anyone
else would have the last word in the case," here the
prosecutor expressly stated both "there is an automatic
_________________________________________________________________

16. The jury had previously been instructed that, by convicting Riley of
felony murder, it already had found that an aggravating circumstance
existed.

                               46
review" and "[t]his goes to the [state] Supreme Court." App.
at 393.

The Dissent suggests that there was no Caldwell violation
here because the prosecutor's statement was made"near
the very beginning of his summation," and consisted of
"accurate, unemotional, passing remarks." The Dissent also
characterizes the prosecutor's remarks as "the mere
mention of the fact that there would be an automatic
appeal to the state supreme court."

It is true that the prosecutor's statement was made near
the beginning of his summation, but his summation was
not a lengthy speech, occupying a mere four pages of the
transcript, App. at 393-97, of which the remarks in
question take almost a full page. We cannot tell whether
they were "emotional" or not, but they can hardly be
characterized as "passing," as the prosecutor began by
saying, "Let me say at the outset that what you do today is
automatically reviewed by our Supreme Court." And, as we
noted above, in that one paragraph, the prosecutor referred
not once but twice to the Supreme Court -- both
mentioning "automatic review" and that the interrogatory to
be completed by the jurors also "goes to the Supreme
Court."

We are unwilling to treat lightly the prosecutor's pointed
references to appellate review of this crucial decision.
Statements, like those made by the prosecutor here,"can
be literally true but quite misleading by failing, for example,
to disclose information essential to make what was said not
misleading." Sawyer, 881 F.2d at 1285. As a result, a
Caldwell violation may be established where a technically
accurate statement describing the state appellate review
process nonetheless "misled the jury to minimize its role in
the sentencing process." Driscoll v. Delo, 71 F.3d 701, 713
(8th Cir. 1995) (holding that prosecutor had violated
Caldwell by emphasizing that the trial judge could
disregard the jury's recommendation of death even though
no state judge had in fact ever done so).

Given the limited nature of the Delaware Supreme
Court's review of a jury's sentence of death at the time of
Riley's sentencing, a fact Liguori did not explain to the jury,

                                47
we conclude that there was a Caldwell violation in this case.17
As suggested in Caldwell, jurors are unlikely to understand
the exceptionally narrow scope of appellate review given to
jury determinations on death. See 472 U.S. at 330-31; see
also id. at 342 (O'Connor, J., concurring). Although
Liguori's remarks were brief, they were the first comments
that the jury heard at sentencing, making them more likely
to have made an impression. A statement does not have to
be lengthy to be effective in suggesting to the jury that
ultimate responsibility for sentencing lies elsewhere.

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

Caldwell and its progeny make clear that"the sentencing
jury must continue to feel the weight of responsibility so
long as it has responsibility." Sawyer, 881 F.2d at 1282.
Because the prosecutor's remarks may have misled the jury
into thinking the Delaware Supreme Court was the final
arbiter of Riley's fate, we conclude that Riley's
constitutional rights were violated under Caldwell. Thus,
even were we to find that Riley has not shown a Batson
violation entitling him to a new trial, we still would direct
the District Court to grant the writ of habeas corpus
entitling Riley to a new sentencing hearing.
_________________________________________________________________

17. At oral argument counsel for the State acknowledged that "[p]erhaps
better practice would have been for Liguori to insert the word `limited' "
into his reference to automatic appellate review. Tr. of Oral Argument at
50. This could be construed as a concession by the State that Liguori's
comments were misleading because of what they did not tell the jury.

18. We are not persuaded by Riley's contention that the trial judge's
repeated references to the jury's determination on death as a
"recommendation" misled the jury as to its actual responsibility in the
sentencing process. See generally Flamer v. Delaware, 68 F.3d 710 (3d
Cir. 1995).

                               48
III.

CONCLUSION

This is an appropriate case for the issuance of a writ of
habeas corpus. One of the principal objections to the
operation of the death penalty in this country is that it is
applied unevenly, particularly against poor black
defendants. Another concern is that because of the complex
review process, the jury may not comprehend the
significance of its life-or-death decision. Both of these
issues are implicated in this case. An appropriate order
follows.

                               49
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                               50
Volume 2 of 2

                51
APPENDIX A

Excerpts from Panel Opinion in Riley v. Taylor,
No. 98-9009
Filed January 17, 2001

Panel: SLOVITER, ALITO, and STAPLETON, Circuit    Judges

ALITO, Circuit Judge:

. . .

III.

Riley next argues that adverse publicity prevented him
from obtaining a trial by an impartial jury. He contends,
first, that it should be presumed that he was prejudiced by
pretrial publicity because the record establishes the
existence of a "hostile trial atmosphere" and, second, that
the record shows that several jurors were unable to be
impartial due to exposure to unfavorable pretrial publicity.

A.

"Where media or other community reaction to a crime or
a defendant engenders an atmosphere so hostile and
pervasive as to preclude a rational trial process, a court
reviewing for constitutional error will presume prejudice to
the defendant without reference to an examination of the
attitudes of those who served as the defendant's jurors."
Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir. 1992).
See also Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes
v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana, 373
U.S. 723 (1963); Flamer v. Delaware, 68 F.3d 736, 755 (3d
Cir. 1995) (en banc). "The community and media reaction,
however, must have been so hostile and so pervasive as to
make it apparent that even the most careful voir dire
process would be unable to assure an impartial jury.. . .
Such cases are exceedingly rare." Rock, 959 F.2d at 1252-
53.

In this case, the state courts made a finding of
impartiality. Such a finding is entitled to deference, see
Patton v. Yount, 467 U.S. 1025, 1031 & n. 7 (1984), and we
find no basis for overturning that finding.

                                52
Riley relies on a relatively small number of newspaper
articles, almost half of which appeared six months or more
before the trial. Although two of the articles named Riley as
a suspect in Feeley's murder, and although a few of the
articles discussed the plight of the Feeley children, who
were orphaned by the murder, the articles were not
inflammatory. In short, the media coverage was not"so
hostile and pervasive as to preclude a rational trial
process." Rock, 959 F.2d at 1252.

B.

Because Riley has not shown the presence of
circumstances justifying a presumption of prejudice, he
"must establish that those who actually served on his jury
lacked a capacity to reach a fair and impartial verdict based
solely on the evidence they heard in the courtroom." Rock,
959 F.2d at 1253. See also Patton, 467 U.S. at 1035; Irvin
v. Dowd, 366 U.S. 717, 723 (1961). "The fact that jury
members may have been exposed to press reports or other
community reaction concerning the case and even the fact
that they may have formed a tentative opinion based on
that exposure will not establish a constitutional violation if
the trial court has found, with record support, that each of
the jurors was able to put aside extrinsic influences." Rock,
959 F.2d at 1253.

Riley contends that two jurors, Leon Morris and Carl
Patterson, were unable to be impartial due to exposure to
pretrial publicity. We do not agree.

Morris testified during voir dire that he "had read
something about" the case in the newspaper at the time of
the murder and that he had heard on the radio that the
case was "coming to trial." App. 277. The following
exchange then occurred:

        Q. . . . Because of what you read in the newspaper,
       do you feel that you could sit here as an impartial
       jury?

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

App. 278.

                               53
Carl Patterson during voir dire was asked whether
anything he had read in the newspaper had created bias or
prejudice against the defendant. See App. 294. He
responded that he could not remember a lot of what he
read in the newspaper. See id. The following colloquy then
occurred:

        Q. Then do you know of any reason why you can't
       render an impartial verdict based solely upon the law
       and the evidence?

        A. No, Your Honor.

Id.

The trial judge implicitly found that these jurors were
impartial, and the Delaware Supreme Court agreed on
direct appeal. Such implicit findings are entitled to a
presumption of correctness. Parke v. Raley, 506 U.S. 20, 35
(1992); Weeks v. Snyder, 2000 WL 975043 (3d Cir. July 17,
2000); Campbell v. Vaughn, 209 F.3d 280, 290 (3d Cir.
2000), and we see no ground for holding that that
presumption has been overcome.

IV.

Riley argues that the prosecution violated his right to due
process by failing to disclose exculpatory evidence in its
possession as required by Brady v. Maryland, 373 U.S. 83
(1963). In Brady, the Supreme Court held that "the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution." Id. at 87. To state a valid Brady claim, a
plaintiff must show that the evidence was (1) suppressed,
(2) favorable, and (3) material to the defense. See United
States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991).
Evidence is material if there is a reasonable probability that
the outcome would have been different had the evidence
been disclosed to the defense. See United States v. Bagley,
473 U.S. 667, 678 (1985). Evidence that may be used to
impeach may qualify as Brady material. See Kyles v.
Whitley, 514 U.S. 419, 445 (1995); Bagley , 473 U.S. at 676.

                                54
Riley's Brady argument concerns a wiretap on the
telephone of the mother of Tyrone Baxter. Before trial,
Riley's lawyer asked the state to produce recordings or
transcripts of the intercepted calls, but the state refused,
arguing that the tapes contained no exculpatory material.
Without listening to the tape himself, the trial judge
accepted the prosecutor's representation and denied Riley's
motion for production. Throughout the subsequent
proceedings in state and federal court, no judge listened to
the tapes.

In his briefs in this appeal, Riley made a strong Brady
argument. He asserted that between the time of the Feeley
murder and Baxter's arrest, "Baxter spoke to his mother on
the telephone on several occasions"; that "Baxter's
testimony was the State's strongest evidence against" him;
and that statements made by Baxter to his mother might
have provided valuable impeachment evidence. Appellant's
Br. at 5. At a minimum, he contended, the state courts or
the District Court should have listened to the tapes in
camera to determine whether they contained Brady
material.

At oral argument, however, counsel for the appellees
represented that an examination of the logs of the wiretap
on Mrs. Baxter's telephone did not reveal any intercepted
conversations in which Baxter participated. Copies of the
logs were provided to Riley's attorneys and to the court, and
Riley's attorneys submitted a letter-brief commenting on the
contents of the logs. We have examined the logs, and it
appears that the state's representation is correct: we see no
record of any conversations in which Baxter participated.
The revelation that the logs do not mention any such
conversations fatally undermines the Brady argument made
in Riley's briefs.

In their post-argument letter-brief commenting on the
logs, Riley's attorneys advance different arguments to show
that an in camera inspection of the wiretap recordings is
required. A defendant seeking an in camera inspection to
determine whether files contain Brady material must at
least make a "plausible showing" that the inspection will
reveal material evidence. Pennsylvania v. Ritchie, 480 U.S.
39, 58 n.15 (1987) (quoting United States v. Valenzuela-

                                55
Bernal, 458 U.S. 858, 867 (1982)). Mere speculation is not
enough. United States v. Navarro, 737 F.2d 625, 631 (7th
Cir. 1984). The arguments made by Riley's attorneys in
their post-argument submission do not satisfy this
standard.

Riley's attorneys first note that several log entries
"expressly refer to conversations about Tyrone Baxter."
12/16/99 Letter-brief at 3 (emphasis added). But it is
unlikely that statements "about" Baxter by third persons --
unlike statements made by Baxter himself -- could have
been used to impeach Baxter's testimony or could have
been admitted at trial on some other ground. For that
reason alone, it is unlikely that these statements are
material. See Wood v. Bartholomew, 516 U.S. 1, 5-6 (1995).
Moreover, even if the problem of admissibility is put aside,
it is pure speculation to suppose that the contents of the
statements are in any way exculpatory.

Riley's attorneys also suggest that conversations between
Baxter and his mother may have been intercepted and
recorded but that the person or persons who compiled the
logs may not have recognized Baxter's voice. This, however,
is nothing but the purest speculation. We note that the
wiretap occurred while the police were seeking to arrest
Baxter; they therefore had a strong incentive to identify him
if he participated in any of the intercepted conversations.
We have considered all of Riley's Brady arguments and find
them to be without merit.

V.

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

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

                                56
presented to the Delaware Supreme Court and were thus
procedurally barred, and the District Court rejected Riley's
remaining arguments regarding this matter on the merits.
On appeal, Riley attacks both parts of the District Court's
holding.

A.

Riley contends that the District Court was required to
hold an evidentiary hearing on the question of procedural
default for two reasons. First, he maintains that at least
some of the arguments that the District Court held were
procedurally barred might have been presented to the
Delaware Supreme Court during the oral argument of his
direct appeal even though those arguments were not
contained in his brief. Because the record does not include
a transcript of the oral argument, Riley maintains that the
District Court should have held an evidentiary hearing for
the purpose of reconstructing the record. See Appellant's
Br. at 38-39. We disagree.

On direct appeal, Riley was represented by the same
attorney who had represented him at trial. In his amended
habeas petition, Riley acknowledges that no ineffective
assistance argument was made in the direct appeal brief
that was ultimately submitted on his behalf and accepted
for filing by the Delaware Supreme Court.2 See App. 1198.
In addition, the opinion issued by the Delaware Supreme
Court in the direct appeal makes no mention of ineffective
assistance of counsel. See Riley I. Under these
circumstances, the District Court was certainly not
required to conduct an evidentiary hearing to determine
whether the attorney who represented Riley at trial chose at
oral argument before the state supreme court to make
arguments not mentioned in his brief and to condemn his
own performance in the trial court.
_________________________________________________________________

2. The first brief submitted by Riley's attorney on direct appeal
contained
a conclusory passage that purported to raise the issue of ineffective
assistance (without any factual elaboration) for the purpose of preserving
the issue. See App. 1198. However, this brief was rejected by the
Delaware Supreme Court, and the brief that was ultimately submitted
and accepted contained no such passage. See App. 1198-99.

                               57
With little elaboration, Riley also contends that the
District Court should have held an evidentiary hearing so
that Riley could show that he had "cause" for not raising
the arguments in question in state court. See Appellant's
Br. at 39. However, Riley has not even identified any
"cause" that he would have attempted to show. We will not
reverse the decision of the District Court and order that
Court to conduct an evidentiary hearing so that Riley can
develop the factual predicate for a "cause" that Riley has
not even disclosed.

Perhaps the most frequently asserted "cause" for
procedural default is ineffective assistance of counsel, and
we will therefore comment briefly on the steps that Riley
should have taken if he wished to rely on this "cause." As
the District Court pointed out, in order for Riley to show
that ineffective assistance provided "cause" for failing to
raise the arguments in question in the state court
proceedings, Riley would have to show that the new
attorney who represented him in the state post-conviction
relief proceedings was ineffective. See Dist. Ct. Op. at 50 &
n.16, 56-57. This is so because Delaware permits a claim of
ineffective assistance to be raised in a post-conviction relief
proceeding even if it was not raised on direct appeal. See
Riley VI, 1998 WL 172856, at **17-18 & n.16. 3

Riley has not argued, however, that the attorney who
represented him in the state post-conviction relief
proceedings provided ineffective assistance by failing to
make the specific arguments that the District Court held
were procedurally barred.4 Moreover, because Riley never
raised a claim in state court that his post-conviction relief
attorney was ineffective, he runs afoul of the rule that "a
_________________________________________________________________

3. Indeed, in Riley's case, ineffective assistance was vigorously argued
in
the post-conviction relief proceedings, and the Delaware Supreme Court
addressed these arguments on the merits. See Riley V, 585 A.2d at 726-
29.

4. Even if Riley had asserted a "cause" for the procedural default, he
would have to confront the rule that a habeas petitioner is not entitled
to an evidentiary hearing in federal court to establish a factual record
unless the petitioner can show "cause" for not making the necessary
factual record in the state proceedings. See Keeney v. Tamayo-Reyes,
504 U.S. 1, 11-12 (1992).

                                58
petitioner must demonstrate independent cause and
prejudice excusing the default of the ineffectiveness claim
before that claim can be assessed as cause in relation to a
second, substantive claim." Hill v. Jones, 81 F.3d 1015,
1030 (11th Cir. 1996). See also Justus v. Murray , 897 F.2d
709, 713 (4th Cir. 1990).

B.

We will now discuss the ineffective assistance arguments
that were not procedurally defaulted. In order to show that
his constitutional right to the assistance of counsel was
violated at the penalty phase, Riley must satisfy the two-
pronged test of Strickland v. Washington, 466 U.S. 668, 687
(1984). First, he must demonstrate that his attorney"made
errors so serious that counsel was not functioning as the
`counsel' guaranteed the defendant by the Sixth
Amendment." Id. at 687. "Judicial scrutiny of counsel's
performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel's
assistance after . . . [an] adverse sentence, and it is all too
easy for a court, examining counsel's defense after it has
proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable." Id. at 689. Second,
if counsel's representation is shown to fall outside"the wide
range of reasonable professional assistance," id., it must be
shown that "the deficient performance prejudiced the
defense," that is, that "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Id . at 694.

1. In his brief in our court, Riley presented a greatly
truncated version of arguments previously advanced
regarding trial counsel's failure to call certain family
members to testify at the penalty phase of the trial and trial
counsel's failure to locate or contact other family members
who might have testified. All of these family members, Riley
argues, could have provided evidence about his traumatic
experiences as a child and his "severely dysfunctional
family." Appellant's Br. at 41.

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

                               59
detail and rejected them. They concluded that Riley's trial
attorney made reasonable efforts to find certain family
members who could not be located, that he did not act
unreasonably in failing to call others as witnesses, and that
his failure to rely on what was termed Riley's "social
history" represented a reasonable strategy. See Riley II,
1988 WL 47076 at *3-4, *7-9; Riley V, 585 A.2d at 726-28;
Riley VI, 1998 WL 172856, at **20-23.

In his brief in our court, Riley merely states without
elaboration that "trial counsel failed to call as witnesses
members of Mr. Riley's immediate family, several of whom
lived within a few hours of Dover, Delaware" and that these
witnesses could have testified about his childhood and
family. Appellant's Br. at 41. He provides no response to
the detailed reasons given by the state courts and the
District Court for holding that trial counsel was not
ineffective in failing to call or locate family members for the
purpose of eliciting testimony about Riley's childhood and
family.

Nothing has been presented that convinces us that the
state courts and the District Court erred. We agree with the
state courts and the District Court that Riley has not
shown that trial counsel was ineffective in failing to call
those family members who could be located, such as Riley's
mother. The District Court analyzed trial counsel's decision
not to put Riley's mother on the stand as follows:

        The record is replete with circumstances that
       support trial counsel's decision not to call Petitioner's
       mother. First, Petitioner informed trial counsel that he
       did not wish to expose his mother's problems at trial.
       . . . Second, trial counsel testified that Petitioner's
       mother refused to support Petitioner's alibi, and as a
       result, he was concerned about the prosecutor's cross-
       examination of her during the penalty phase. . . .
       Third, the record indicates that Petitioner's mother had
       a severe drinking problem and was drinking heavily at
       the time of the trial. . . . As a result, trial counsel
       believed that the witnesses that he chose to call in
       mitigation, instead, would make a better impression on
       the jury. . . . Under these circumstances, the Court
       finds trial counsel's decision not to call Petitioner's

                               60
       mother to be reasonable and within the bounds of his
       strategic discretion.

Riley VI, 1998 WL 172856, at *2. We agree.

We also agree that Riley has not demonstrated that his
trial attorney was ineffective in failing to locate certain
other family members. See Riley II, **3-5; Riley V, 585 A.2d
at 727-28; Riley VI, 1998 WL 172856, at *21. Finally, we
agree that a strategy of not introducing evidence regarding
Riley's background and family fell within "the wide range of
reasonable professional assistance." Strickland, 466 U.S. at
689. The Superior Court wrote as follows:

       The adverse inferences to be drawn from the fact that
       defendant's parents were both alcoholics, his sister an
       unwed mother of three, his brother an incarcerated
       criminal and his home life a series of jails and
       temporary living quarters would no doubt have been
       magnified in the semi-rural county where this case was
       tried . . . . Likewise, it is certainly within the range of
       strategic choices to forego mitigating evidence, which
       may be seen as "excuse making" and rely upon a plea
       for mercy . . . . In Riley's case, evidence offered as to
       mitigating circumstances included: that the actual
       killer was Tyrone Baxter, the co-defendant; that Baxter
       received a less severe penalty; and that Riley's
       background indicated that he was a diligent worker,
       possessing a non-violent and good character.

       In this case, trial counsel gave a strong argument that
       Riley's life should be spared in light of the fact that
       Tyrone Baxter, defendant's accomplice and principal
       accuser, would be spared the death penalty as the
       result of a plea bargain. Moreover, Walter Ross testified
       without contradiction at the [post-conviction relief]
       hearing that the defendant did not want his family
       background discussed at the penalty phase. Given
       defendant's wishes, the lack of positive evidence in
       mitigation, counsel's focused argument for leniency in
       light of Baxter's plea bargain, and the potentially
       negative impact the purportedly positive evidence
       would have wrought before the jury, defendant has
       failed to show that counsel's decision to limit the

                               61
       testimony at the penalty phase was constitutionally
       deficient.

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

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

In the post-conviction relief proceeding in Superior Court,
trial counsel testified that he did not seek to have Riley
examined by a mental health expert because he had no
reason to think, in light of his conversations with Riley,
that such an examination would have revealed anything
useful. See App. 592-96. He testified that Riley appeared to
understand what they discussed and that Riley prepared
and filed some motions on his own behalf. See App. 592-
93. Trial counsel stated that Riley never mentioned any
head injury or any psychological problems. See App. 590.
Relying on this testimony, the Superior Court found that
trial counsel "had no inkling that evaluation of Mr. Riley's
mental or emotional state might be helpful in mitigation."
Riley II, 1988 WL 47076, at *7.

Before us, Riley has not argued that counsel in a capital
case must always seek a mental examination of the
defendant, and cases from other circuits reject that
proposition. Instead, they hold that a case-by-case
determination must be made and that counsel is not
ineffective if he or she has no reason to think that a mental
examination would be useful. See Thomas v. Gilmore, 144
F.3d 513, 515-16 (7th Cir. 1998); United States v. Miller,
907 F.2d 994, 998-99 (10th Cir. 1990); United States ex rel.
Rivera v. Franzen, 794 F.2d 314, 317 (7th Cir. 1986).

                               62
Under this standard, we see no ground for reversing the
decision of the District Court here. Riley has simply not
identified any fact that should have alerted his trial
attorney that he had mental problems that might have
provided the basis for mitigation. The only fact even
mentioned in Riley's briefs is the "implausible" nature of
Riley's alibi, see Reply Br. at 21, but this is insufficient to
alert counsel to the possibility of mental problems that
might be relevant to mitigation. For the most part, Riley
merely notes what the subsequent examinations by mental
health experts revealed. However, "[a] fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time." Strickland, 466 U.S. at 689.

3. Finally, Riley cites trial counsel's inexperience and
the fact that he spent only 14 hours preparing for the
penalty phase of the trial. These facts are not comforting,
but they do not in themselves establish that counsel was
ineffective. We have taken them into account in evaluating
the other deficiencies properly asserted in this appeal. We
cannot say, however, that Riley's constitutional right to the
effective assistance of counsel was denied.

VI.

Relying on Ake v. Oklahoma, 470 U.S. 68, 76-77 (1985),
Riley argues that his right to due process was violated
because the trial judge refused to appoint co-counsel or an
investigator to assist his attorney. Riley again notes the
inexperience of his attorney, and he asserts that co-counsel
had been appointed in Kent County in prior capital cases.
Although Riley claims that the lack of co-counsel and an
investigator caused him "extreme prejudice," his brief
provides no details.

A. We turn first to Riley's argument that he was
constitutionally entitled to the appointment of co-counsel.
In some jurisdictions, there is a statutory right to the
appointment of two defense attorneys in capital cases. See,
e.g., 18 U.S.C. S 3005. However, we are aware of no

                               63
authority holding that the federal Constitution confers such
a right, and we see no basis for such a holding. The
Constitution specifies the quality of representation that all
criminal defendants, including capital defendants, must
receive, namely, "reasonably effective assistance."
Strickland, 466 U.S. at 687. The Constitution does not
specify the number of lawyers who must be appointed. If a
single attorney provides reasonably effective assistance, the
Constitution is satisfied, and if a whole team of lawyers
fails to provide such assistance, the Constitution is
violated. Thus, there is no constitutional right per se to the
appointment of co-counsel in a capital case. Bell v.
Watkins, 692 F.2d 999, 1009 (5th Cir. 1982); Jimenez v.
State, 703 So. 2d 437, 439 (Fla. 1997) (per curiam); State
v. Phelps, 478 S.E.2d 563, 574-75 (W.Va. 1996) (per
curiam); State v. Rodriguez, 921 P.2d 643, 652 (Ariz. 1996);
Spranger v. State, 650 N.E.2d 1117, 1122-23 (Ind. 1995);
Uptergrove v. State, 881 S.W.2d 529, 531 (Tex. Ct. App.
1994). Cf. Hatch v. Oklahoma, 58 F.3d 1447, 1456 (10th
Cir. 1995).

Riley's brief does not identify any unusual features of this
case that demanded the appointment of a second attorney.
While he does cite the inexperience of his trial attorney,
without a showing that this attorney did not provide the
level of representation required by the Constitution, we
cannot hold that the failure to appoint co-counsel to assist
him violated the Constitution.

B. We must also reject Riley's argument that the failure
to appoint a private investigator violated the Constitution.
In Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985),
the Supreme Court made it clear that there is no
constitutional right to the appointment of an investigator
where the defendant offers "little more than undeveloped
assertions that the requested assistance would be
beneficial." See also Gray v. Thompson, 58 F.3d 59, 66-67
(4th Cir. 1995), vacated on other grounds sub nom. Gray v.
Netherland, 518 U.S. 152 (1996). Riley has offered nothing
more here.

. . .

                               64
VIII.

Riley contends that the trial judge contravened the
holding of Witherspoon v. Illinois, 391 U.S. 510 (1968),
when the judge dismissed two jurors for cause after they
responded to voir dire questions concerning capital
punishment. In Witherspoon, the Supreme Court held that
members of a jury panel may not be excused for cause
"simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples
against its infliction." Id. at 522. Some lower courts,
however, interpreted footnotes in Witherspoon to mean that
potential jurors could be dismissed only if they stated
unambiguously that they would automatically vote against
the death penalty.5

The Supreme Court clarified the meaning of Witherspoon
in Wainwright v. Witt, 469 U.S. 412 (1985). The Court held
that "the proper standard for determining when a
prospective juror may be excluded for cause because of his
or her views on capital punishment . . . is whether the
juror's views would `prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.' " Id. at 424 (quoting
Witherspoon, 391 U.S. at 45). The Court noted:

       [T]his standard . . . does not require that a juror's bias
       be proved with `unmistakable clarity' . . . because
       determinations of juror bias cannot be reduced to
       question-and-answer sessions which obtain results in
       the manner of a catechism. What common sense
       should have realized experience has proved: many
       veniremen simply cannot be asked enough questions to
       reach the point where their bias has been made
       "unmistakably clear"; these veniremen may not know
       how they will react when faced with imposing the death
       sentence, or may be unable to articulate, or may wish
       to hide their true feelings. Despite this lack of clarity in
       the printed record, however, there will be situations
       where the trial judge is left with the definite impression
       that a prospective juror would be unable to faithfully
       and impartially apply the law.
_________________________________________________________________

5. See Wainwright v. Witt, 469 U.S. 412, 419 (1985).

                               65
Id. at 424-26 (footnote omitted). The Court went on to hold
that a trial judge's finding under this standard is entitled to
the presumption of correctness in 28 U.S.C. S 2254(d).6 469
U.S. at 428. Applying these standards, the Court sustained
the dismissal of a juror who said, when asked whether her
beliefs would interfere with her sitting as a juror in a
capital case, "I am afraid it would" and "I think it would."
Id. at 416.

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

        The Court: . . . Do you have any conscientious
       scruples against finding a verdict of guilty where the
       punishment might be death or against imposing the
       death penalty if the evidence should so warrant?

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

       The Court: You do have conscientious scruples?

       Ms. Floyd: Yes.

       The Court: Regardless of any personal beliefs or
       feelings you have, if the evidence justified it, would you
       be able to find a person guilty of murder in the first
       degree and impose the death penalty?

       Ms. Floyd: That is a hard one to tell you the truth.

       The Court: I will repeat the question.

       Ms. Floyd: I heard it. All right. Repeat the question.

       The Court: I will repeat it. Regardless of your
       personal belief or feelings, if the evidence justified it,
       would you be able to find a person guilty of murder in
       the first degree and would you be able to impose the
       death penalty?
_________________________________________________________________

6. See also Deputy v. Taylor, 19 F.3d 1485, 1498 (3d Cir. 1994) (citations
omitted) (internal quotation marks omitted)("a trial court may excuse a
juror for cause where such juror's views would prevent or substantially
impair the performance of his duties as a juror in accordance with his
instructions and his oath. . . . [and] that a state trial judge's finding
that
a prospective juror is impermissibly biased against the death penalty is
entitled to a presumption of correctness under S 28 U.S.C.A. 2254(d).").

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

       The Court: Yes, it is.

       Ms. Floyd: The latter part--

       The Court: First of all, would you be able to find a
       person guilty of murder in the first degree?

       Ms. Floyd: I may, yes.

       The Court: And the second part is would you be
       able to impose the death penalty?

       Ms. Floyd: I tell you the truth I don't think so.

       The Court: I will excuse you. Thank you very much.

App. 285-86 (emphasis added).

As both the Delaware Supreme Court and the District
Court observed, Floyd's responses were very similar to
those of the potential juror in question in Wainwright v.
Witt, supra. See Riley I, 496 A.2d at 1005-06 Riley VI, 1998
WL 172856, at *11. We agree with their analysis and hold
that Riley has not overcome the presumption of correctness
that attaches to the implicit finding of the trial judge.

The dismissal of the other potential juror in question,
Gerald Mood, took place after the following colloquy:

       The Court: . . .   . Do you have any conscientious
       scruples against   finding a verdict of guilty when the
       punishment might   be death or against imposing the
       death penalty if   the evidence should so warrant?

       Mr. Mood: I don't know. I have mixed emotions about
       that.

       The Court: Regardless of any personal belief or
       feelings that you have, if the evidence justified it, would
       you be able to find a person guilty of murder in the
       first degree and would you be able to impose the death
       penalty?

       Mr. Mood: Maybe I could. I don't really know.

       The Court: I am going to excuse you sir . . . .

App. 276.

                                 67
The District Judge aptly analyzed the dismissal of Mood,
and we adopt his analysis:7

       Unlike venireperson Floyd, venireperson Mood's
       responses were much more succinct. Mood twice
       responded to the trial court's capital punishment
       questions with the phrase, "I don't know." . .. .
       Particularly in situations such as this, where an
       individual's record response is so brief that its printed
       reproduction reveals little, the Court should defer to
       those credibility factors that would only have been
       known to the trial court, such as the juror's demeanor,
       tone of voice and attitude. See Witt, 469 U.S. at 434
       (emphasizing importance of trial court's assessment of
       venireperson's demeanor, particularly where printed
       record may not be "crystal clear"). Accordingly, the
       Court finds adequate record support for the trial
       court's decision to excuse venireperson Mood.

Riley VI, 1998 WL 172856, at *12.

IX.

Relying on Morgan v. Illinois, 504 U.S. 719 (1992), Riley
argues that the trial judge erred in failing sua sponte to ask
prospective jurors during voir dire whether they would
automatically impose the death penalty if they found him
guilty. The District Court rejected this claim on the ground
that Morgan requires that such questions be asked only if
the defense so requests. We agree.

In Morgan, the Supreme Court framed the relevant issue
in these terms: "whether on voir dire the court must, on
defendant's request, inquire into the prospective jurors'
views on capital punishment." 504 U.S. at 726 (emphasis
added). The Court stated its holding as follows:
_________________________________________________________________

7. In addition, as the District Court noted, some of the answers given by
Floyd and Mood to questions not concerning capital punishment may
have influenced the trial judge's decision to dismiss them. Floyd revealed
that she knew Tyrone Baxter and was a casual friend of Baxter's mother.
Mood said that he was a good friend of one of the police officers involved
in the case and had served with him in the fire department. See Riley VI,
1998 WL 172856, at *12.

                               68
       Petitioner was entitled, upon his request, to inquiry
       discerning those jurors who, even prior to the State's
       case in chief, had predetermined the terminating issue
       of his trial, that being whether to impose the death
       penalty.

Id. at 736 (emphasis added). The dissent described the
Court's holding in similar language: "The Court today holds
that . . . the Constitution requires that voir dire directed to
[reverse-Witherspoon] `bias' be provided upon the
defendant's request." Id. at 739 (Scalia, J., dissenting)
(emphasis added).

We cannot regard the Court's choice of words as
accidental, and we think that the holding of Morgan is
clear: a reverse-Witherspoon inquiry must be made "on
defendant's request." See United States v. Tipton, 90 F.3d
861, 879 (4th Cir. 1996).

Riley makes two arguments in response. First, he notes
that the state supreme court rejected his argument on the
merits, and he contends that "the State should not now be
heard to raise alleged procedural bars to federal court
resolution of the claim on the merits." Appellant's Br. at 52.
Our holding, however, has nothing to do with a procedural
bar, i.e., a state rule of procedure that bars a federal
habeas court from reaching the merits of a federal claim.
Rather, our holding is based on the fact that the
constitutional right recognized in Morgan applies only if the
defense makes a request for a reverse-Witherspoon inquiry.

Second, Riley argues that his trial attorney was
ineffective in failing to request reverse-Witherspoon
questioning. However, this argument was not made in the
state courts, and it is thus procedurally barred.

X.

Under 11 Del. C. S 4209(g)(2), the Delaware Supreme
Court is required to undertake a proportionality review in
death penalty cases. The statute mandates that the Court
inquire into whether "the death penalty was either
arbitrarily or capriciously imposed or recommended, or
disproportionate to the penalty recommended or imposed in

                                69
similar cases." 11 Del. C. S 4209(g)(2)(a). In affirming Riley's
death sentence, the Delaware Supreme Court examined 21
cases, including five in which the death penalty was
imposed. It found that Riley's case was comparable to the
five death penalty cases (Whalen, Rush, Deputy, Flamer
and Bailey), because they all involved

       an unprovoked, cold-blooded murder of a helpless
       person (or persons) committed upon victims lacking the
       ability to defend themselves and solely for the purposes
       of pecuniary gain (except in Whalen's case). In none of
       these killings is there any evidence of provocation or of
       homicide committed out of passion or rage. In each
       case, except Whalen, the murder occurred in the court
       of a robbery that was deliberately planned and carried
       out with the use of deadly weapons. In each case, the
       perpetrators of these crimes offered no extenuating
       circumstance for taking the life of another.

Riley I, 496 A.2d at 1027.

Riley challenges this finding on two grounds. First, he
points to the fact that two of the death sentences relied on
-- Rush and Whalen -- had been vacated. Second, he
argues that the remaining cases -- Deputy, Bailey, and
Flamer -- do not furnish appropriate comparisons because
each involved the killing of more than one person. He
maintains that these errors violated the Eighth and
Fourteenth Amendments.

It is clear that proportionality review is not required by
the federal Constitution. See Pulley v. Harris , 465 U.S. 37,
50-51 (1984). Riley justifies advancing his proportionality
argument in federal court on two grounds.8 First, he argues
that the allegedly improper review resulted in a punishment
that was "inherently disproportionate and, therefore,
arbitrary and capricious" in violation of the Eighth
Amendment. Appellant's Br. at 56. Second, he argues that
_________________________________________________________________

8. Ordinarily, federal habeas relief is not available for an error of
state
law: the habeas statute provides that a writ disturbing a state court
judgment may issue only if a prisoner is in custody"in violation of the
Constitution or laws or treaties of the United States." 28 U.S.C.
S 2241(c)(3). See Pulley v. Harris, 465 U.S. 37, 41 (1984).

                               70
Delaware's failure to abide by its own statutory scheme for
proportionality review violated due process. See Fetterly v.
Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993) ("the failure
of a state to abide by its own statutory commands may
implicate a liberty interest protected by the Fourteenth
Amendment against arbitrary deprivation by a state").

Riley bases his first argument on the principle that"[i]f a
State has determined that death should be an available
penalty for certain crimes, then it must administer the
penalty in a way that can rationally distinguish between
those individuals for whom death is an appropriate
sanction and those for whom it is not." Spaziano v. Florida,
468 U.S. 447, 460 (1984). Riley claims that the
proportionality review conducted by the Delaware Supreme
Court in his case failed to protect him from arbitrary
imposition of the death penalty, and in fact upheld a
disproportionate punishment. This argument rests on the
premise that applying the death penalty in Riley's case
would be so disproportionate as to constitute cruel and
unusual punishment under the Eighth Amendment.
Therefore, Riley's argument really attacks the imposition of
the penalty itself, rather than the state's method of
reviewing proportionality.

Riley's argument is not tenable. The Supreme Court has
"occasionally struck down punishments as inherently
disproportionate, and therefore cruel and unusual, when
imposed for a particular crime or category of crime." Pulley,
465 U.S. at 43. However, in this case, Riley's crime--
killing a defenseless person without provocation in the
course of an armed robbery -- is not such that application
of the death penalty in these circumstances would"shock
the conscience." See Lindsey v. Smith, 820 F.2d 1137, 1154
(11th Cir. 1987); Spinkellink v. Wainwright, 578 F.2d 582,
606 n.28 (5th Cir. 1976). Riley has thus failed to show an
Eighth Amendment violation.

Riley's second argument is based on the principle that
when a state creates a right, the Due Process clause of the
Fourteenth Amendment entitles a defendant to procedures
to ensure that the right is not arbitrarily denied. He argues
that the Delaware Supreme Court, by failing to conduct an

                               71
adequate proportionality review as required by state
statute, denied him due process.

As a threshold matter, it is unclear whether, under Third
Circuit law, a state proportionality-review statute creates
any cognizable liberty interest for due process purposes.
See Frey v. Fulcomer, 132 F.3d 916, 925 n.7 (3d Cir. 1997)
(noting that Supreme Court precedent on this issue is in
flux). We need not address this question, however, because
even if Riley has such a liberty interest, he has not shown
any denial of due process. In evaluating a claim that a state
court erred in conducting its proportionality review, a
federal court may only inquire into whether the state court
"undertook its proportionality review in good faith and
found that [the defendant's] sentence was proportional to
the sentences imposed in cases similar to his." Walton v.
Arizona, 497 U.S. 639, 656 (1990). Because there is no
federal constitutional right to proportionality review, if the
federal court finds that the review was undertaken in good
faith, it cannot "look behind" the state court's conclusion of
proportionality to consider whether the state court
misapplied state proportionality law. See id.; Bannister v.
Delo, 100 F.3d 610, 627 (8th Cir. 1996). In this case, the
Delaware Supreme Court compared Riley's case with a
substantial number of other death-eligible cases, and, even
disregarding the two vacated death sentences, it found
common characteristics between Riley's case and three
other cases in which the sentence was not vacated.
Although Riley argues that these cases are not entirely
analogous, because each contained an additional
aggravating factor (more than one victim), there is no
indication that the Delaware court acted in bad faith in
conducting its review. We are thus without power to order
habeas relief.

XI.

We now turn to Riley's contentions concerning jury
instructions given by the trial judge at the sentencing
phase.

A.

Riley argues that the jury instructions at the penalty
phase impermissibly restricted the jury's consideration of

                                72
mitigating circumstances. He takes issue with the following
instruction, issued at the start of the penalty hearing:

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

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

       (2) Unanimously recommends, after weighing all
       relevant evidence in aggravation or mitigation
       which bears upon the particular circumstances or
       details of the commission of the offense and the
       character and propensities of the offender, that a
       sentence of death shall be imposed. Where the
       jury submits such a finding and recommendation,
       the Court shall sentence the defendant to death. A
       finding by the jury of a statutory aggravating
       circumstance, and a consequent recommendation of
       death, supported by the evidence, shall be binding
       on the Court.

App. 392 (emphasis added). Riley contends that, given the
placement of the word "consequent," "a reasonable jury
could understand the underscored sentence to mean that
the effect of a finding that a statutory aggravating
circumstance existed, is that the death penalty must be
imposed." Appellant's Br. 59. Because the trial judge had
previously informed the jury that the statutory aggravating
circumstance -- commission of the murder during a
robbery -- had already been proven beyond a reasonable
doubt in the guilt phase, Riley argues that a reasonable
jury could have read the instruction to mean that it need
not consider mitigation evidence.

When reviewing a jury instruction that is claimed to
impermissibly restrict a jury's consideration of relevant
evidence, a court must ask "whether there is a reasonable
likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of
constitutionally relevant evidence." Boyde v. California, 494
U.S. 370, 380 (1990). If there is "only a possibility" of such
inhibition, however, the challenge must fail. Id . Moreover,
the challenged instructions "must be evaluated not in

                               73
isolation but in the context of the entire charge." Jones v.
United States, 527 U.S. 373, 391 (1999).

When the jury charge is read as a whole, there is no
reasonable likelihood that a jury could have understood it
to preclude consideration of mitigating circumstances. At
the close of the penalty hearing, the court again instructed
the jury in terms that cleared up any ambiguity that might
have been present in its earlier instruction:

       In conclusion, a sentence of death shall not be imposed
       unless you, the jury, find:

       (1) Beyond a reasonable doubt at least one statutory
       aggravating circumstance has been established;
       and

       (2) Unanimously recommend that a sentence of death
       be imposed after weighing all relevant evidence in
       aggravation and mitigation which bear upon the
       particular circumstances and details of the
       commission of the offense and the character and
       propensities of the offender.

       Should you fail to agree unanimously to either of these
       two matters, the Court shall sentence the defendant to
       life imprisonment without benefit of probation or
       parole.

App. 438-40 (emphasis added).

This instruction made it clear that a jury was required
both to find at least one statutory aggravator and to weigh
aggravating factors against mitigating factors in order to
support a death sentence. This belies Riley's argument that
the jury was misled into believing that its job was done
once the felony murder aggravator was found.

B.

Riley next takes issue with the trial court's failure at the
penalty phase to instruct the jury that it was required to
conclude unanimously that aggravating circumstances
outweigh mitigating circumstances before imposing death,
as required by Delaware law. See Whalen v. State , 492 A.2d
552, 560 (Del. 1985) (setting forth "outweighing" standard).

                                74
Rather, the court simply instructed the jury that it had to
"[u]nanimously recommend that a sentence of death be
imposed after weighing all relevant evidence in aggravation
and mitigation." App. 438; see also App. 392, 437.

This argument provides no grounds for habeas relief. The
federal Constitution does not require "specific standards for
balancing aggravating against mitigating circumstances."
Zant v. Stephens, 462 U.S. 862, 876 n.13 (1983). As long as
a jury is permitted to consider all relevant mitigating
circumstances in making its death recommendation, there
is no federal constitutional problem. In addition, Riley has
not suggested how a jury's decision would be any different
under the language the court used in this case. Because
the jury was instructed not to make a sentencing
recommendation until after it had "weigh[ed] all relevant
evidence in aggravation and mitigation," the necessary
inference was that the death penalty should be imposed
only if aggravating factors outweighed mitigating factors
(otherwise, the entire "weighing" process would be
meaningless).

C.

Finally, Riley argues that the penalty phase instructions
improperly suggested that the jury had to be unanimous in
imposing a life sentence, in violation of Whalen v. State,
492 A.2d 552, 562 (Del. 1985). He points to the instruction
that "[i]f you are not unanimous in your recommendation to
impose the death penalty, or you cannot agree unanimously
as to your recommendation, then the Court is bound to
impose a sentence of life." App. 438 (emphasis added). The
word "recommendation" in the underlined phrase, he
suggests, could be read to refer to a life sentence
recommendation as well as to a recommendation of death.

As a threshold issue, the government argues that Riley
failed to raise this issue before the District Court because
he based his argument there "solely on the interpretation of
the interrogatories posed to the jury" rather than on the
jury instruction he points to here. Appellee's Br. at 75.
However, Riley, although pointing specifically to the
interrogatories to support his point, nevertheless raised the

                               75
general argument in his amended petition that "the
instructions were likely to confuse the jury about whether
the verdict must be unanimous." App. 1191. This is
sufficient to preserve his argument before this Court.

On the merits, however, Riley's claim must fail. First,
when the jury charge is viewed as a whole, it reveals several
instances in which the word "unanimous" was explicitly
paired solely with the death recommendation. In light of
this pattern, it appears unlikely that the jury would have
viewed the isolated passage that Riley relies on as
extending the unanimity requirement to a recommendation
of life imprisonment. Second, the Delaware Supreme Court,
in reviewing this allegation, stated that it was"satisfied that
the jury understood that, in the event of its failure to
unanimously agree upon imposition of a death penalty, an
imposition of life imprisonment would result." Riley V, 585
A.2d at 725. Because the instruction made clear that the
default rule in case of a lack of unanimity was life
imprisonment, it is hard to see how the jury's deliberations
would have been affected even had it adopted Riley's
interpretation of the instruction. Finally, the challenged
instruction was identical to one approved by the Delaware
Supreme Court in Flamer v. State, 490 A.2d 104 (Del.
1984), aff 'd sub nom. Flamer v. Delaware, 68 F.3d 710 (3d
Cir. 1995) and Flamer v. Delaware, 68 F.2d 736 (3d Cir.
1995) (en banc). The Delaware Supreme Court explicitly
pointed to the similarities with Flamer, and distinguished
the instructions from those in Whalen, in upholding the
death sentence on direct appeal. See Riley, 585 A.2d at
722-25. For these reasons, we reject Riley's claim.

XII.

Riley was convicted of intentional murder and felony
murder, with the underlying felony being first-degree
robbery. The statutory aggravating circumstance relied on
for the death sentence was that the murder was committed
while Riley was engaged in the commission of first degree
robbery. See 11 Del. C. S 4209(e)(1)(j) (establishing felony
murder aggravator). Riley argues that it is unconstitutional
to double-count robbery as both an element of the crime

                                76
(felony murder) that made Riley death-eligible and as a
statutory aggravating circumstance.

This Court rejected precisely the same claim in Deputy v.
Taylor, 19 F.3d 1485,1502 (3d Cir. 1994), holding that
"within the context of Delaware's death penalty statute, the
provision requiring the double-counting of the felony at the
guilty phase and sentencing phase does not impermissibly
weaken the statute's constitutionally mandated narrowing
function." This precedent binds our panel.

XIII.

Riley's final argument is that the District Court erred in
denying his motion for funds for investigative and expert
assistance and in refusing to conduct an evidentiary
hearing. We disagree.

A.

Under 18 U.S.C. S 3006A(e) and 21 U.S.C. S 848(q)(4)(B)
and (9), Riley was entitled to investigative and expert
assistance upon a finding that such assistance was
"necessary" or "reasonably necessary" with respect to his
representation in the habeas proceeding. Riley sought the
services of an investigator to gather additional evidence
concerning his childhood experiences. He sought the
services of a forensic psychiatrist to develop further
mitigating evidence concerning his mental problems. All of
these services were requested in order to support Riley's
arguments that his trial attorney was ineffective at the
penalty phase and that the trial judge should have
appointed a co-counsel and investigator to assist him.

Riley has not shown that the services in question were
"necessary" or "reasonably necessary." The discovery at the
time of the federal habeas proceeding of new evidence about
Riley's childhood would not have shown that the efforts of
Riley's trial attorney to locate family members who might
have testified about such matters were objectively
unreasonable. See pages 38-41, supra. Nor would the
discovery of such evidence have demonstrated that it was
strategically unreasonable for Riley's trial attorney to

                                77
eschew a penalty-phase defense based on Riley's"social
history." See id. Similarly, the development of additional
evidence regarding Riley's mental condition at the time of
the federal habeas proceeding would not have shown that
Riley's trial attorney was objectively unreasonable in not
seeking a mental examination prior to the penalty. See
pages 41-43, supra.

B.

"Where the District Court denies the petition for a writ of
habeas corpus in the absence of an evidentiary hearing," we
ask, first, "whether the petitioner asserts facts which entitle
him to relief " and, second, "whether an evidentiary hearing
is needed." Todaro v. Fulcomer, 944 F.2d 1079, 1082 (3d
Cir. 1991). See also Heiser v. Ryan, 951 F.2d 559, 561 (3d
Cir. 1991). Riley argues that the District Court should have
held an evidentiary hearing concerning the prosecution's
peremptory challenges, the impartiality of the jury, his
Brady claim, and other unspecified issues. We disagree. As
previously discussed, we are required to accept the state
courts' findings regarding the peremptory challenges and
the impartiality of the jury, and those findings are
dispositive. Thus, an evidentiary hearing in federal court on
those matters was not needed. In addition, in light of the
revelation after briefing that no conversation in which
Baxter participated is listed in the logs of the wiretap on
Mrs. Baxter's telephone, it is clear that there was no need
for an evidentiary hearing concerning Riley's Brady claim.
Nor do we believe that the District Court was an evidentiary
hearing was needed on any other matter.

                                78
BECKER, Chief Judge, Concurring in the Judgment.

This en banc appeal ultimately turns on the petitioner's
Batson claim. Unfortunately, I find myself unable to join in
either Judge Sloviter's or Judge Alito's opinion on that issue.1

First, I cannot agree with Judge Sloviter's treatment of
the prosecution's challenge to prospective juror Nichols.
Rather, I agree with Judge Alito's opinion on this issue, see
Dis. Op. at 83-91, largely because I do not share Judge
Sloviter's skepticism of the prosecutor's testimony as to
Nichols's "significant pause." Human memory can be quite
powerful, and I think it entirely possible that this
"significant pause" became indelibly etched in the
prosecutor's mind. As explicated by the dissent, the hearing
judge determined that the prosecutor's testimony on this
matter was credible, and I cannot agree that the race-
neutral reason proffered for striking Nichols was"not fairly
supported by the record." 28 U.S.C. S 2254(d)(8) (1988).

On the other hand, while the point is quite close, I
cannot bring myself to join Judge Alito's discussion of the
challenge to prospective juror McGuire. Unlike the
challenge to Nichols, an action for which the prosecutor
relied on his memory to articulate a race-neutral
explanation, the prosecutor had no recollection whatsoever
about the differences between McGuire and Reed. I
therefore agree with Judge Sloviter that there is no basis in
the record for distinguishing McGuire, a prospective black
juror who was struck, from Reed, a white man who was not
struck and who ultimately served on the jury. While ideally
this issue would be developed further at a federal habeas
hearing, I reluctantly conclude, again agreeing with Judge
Sloviter, that no purpose would be served by having such
a hearing at this late date. Accordingly, I will join in the
judgment accompanying her opinion.

While I might end at this point, I am impelled to
comment on the statistical evidence by reason of the
prominent discussion of the issue in the Sloviter and Alito
opinions, and the fact that Judge Alito's dissent identifies
_________________________________________________________________

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

                               79
significant problems with Judge Sloviter's discussion of that
evidence. I feel myself unable to join in Judge Alito's
opinion on that facet of the case for he has not allayed my
concern about the practices of the Kent County
prosecutor's office at times relevant here. Specifically, the
absence of black jurors on four juries in a county that was
18% black and had a jury venire that was 9% black
remains troubling. As the Supreme Court has observed in
other contexts when presented with perhaps imperfect
statistical data, "[F]ine tuning of the statistics could not
have obscured the glaring absence of minoriti[ies]. . . . [T]he
. . . inability to rebut the inference of discrimination came
not from a misuse of statistics, but from the inexorable
zero." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324,
342 n.23 (1977) (internal quotations omitted).

This concern is exacerbated for me by the State's failure
to submit rebuttal evidence. If Riley's data was too weak to
support an inference of discrimination in the face of the
prosecutor's race-neutral explanations, there was no
burden on the government to submit rebuttal data.
However, as Judge Sloviter's discussion of the chronology of
events makes clear, the State volunteered to provide
rebuttal data, and then failed to do so. See Op. of the Court
at 38. If the hearing judge had acknowledged the State's
failure to provide evidence notwithstanding its promise and
then specifically said that he did not consider this failure to
be sufficiently probative to overcome the credibility
determination, his factual conclusion would be fait
accompli. But the fact that the hearing judge did not
mention the State's failure to provide evidence, in the wake
of the "volunteering," sticks out like a sore thumb, and
renders it doubtful for me that the "record as a whole"
supports the hearing judge's conclusion.

Judge Sloviter seems to concede that a federal habeas
hearing would give Riley ample time to conduct an expert
statistical analysis of the complete record, time which he
lacked at the earlier hearing, as she explains, because of
the State's late decision not to submit any statistical
evidence. See Op. of the Court at 38. Were the statistical
evidence dispositive of Riley's Batson claim, I would remand
for a federal habeas hearing. Judge Sloviter, however,

                               80
states that the statistical evidence is "relevant but not
dispositive to our decision." Op. of the Court at 40. Because
I accept her representation on this matter, I do not press
the issue further, and simply join in the judgment
accompanying her opinion.2
_________________________________________________________________

2. I note that, even if I did not agree with Judge Sloviter on the juror
McGuire issue, the judgment accompanying her opinion is plainly closer
to my own position than the views of Judge Alito. Under these
circumstances, I would vote with her anyhow to avoid a stalemate. See
Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J.,
concurring); see also Olmstead v. L.C., 527 U.S. 581, 607-08 (1999)
(Stevens, J., concurring); Bragdon v. Abbott, 524 U.S. 624, 656 (1998)
(Stevens, J., concurring); AUSA Life Ins. Co. v. Ernst & Young, 206 F.3d
202, 225 (2d Cir. 2000) (Jacobs, J., concurring).


                               81
ALITO, Circuit Judge, with whom Judges SCIRICA, BARRY,
FUENTES and STAPLETON join as to Part I, and with
whom Chief Judge BECKER, and Judges BARRY, and
STAPLETON join as to Part II, dissenting:

This is a troubling case, but after considering all of the
petitioner's arguments and applying the standard of review
prescribed by the federal habeas statute, I see no ground
for reversing the decision of the district court. The majority
holds that the petitioner's rights under Batson v. Kentucky,
476 U.S. 79 (1986), were violated, but I do not believe that
there is a proper basis for disturbing the credibility findings
made by the conscientious state judge. The majority also
holds that comments made by the prosecutor in closing
argument at the penalty phase of the trial violated Caldwell
v. Mississippi, 472 U.S. 320 (1985), but in my view the
majority misinterprets that decision as in effect embodying
a per se prohibition against any mention of the availability
of appellate review of a death sentence, a procedure of
which virtually all jurors are surely aware. Because I
cannot agree with the majority's analysis of either of these
issues, I must respectfully dissent.

I.

A.

I turn first to the argument that the prosecution violated
Batson by using peremptory challenges to strike three
African Americans from the jury panel. In Batson , the
Supreme Court held that it is a violation of the Equal
Protection Clause for a prosecutor to strike a juror because
of race. The Court also set out a three-step process for
adjudicating a claim that a particular peremptory was
racially based.

       [O]nce the opponent of a peremptory challenge has
       made out a prima facie case of racial discrimination
       (step one), the burden of production shifts to the
       proponent of the strike to come forward with a race-
       neutral explanation (step two). If a race-neutral
       explanation is tendered, the trial court must then
       decide (step three) whether the opponent of the strike

                               82
       has proved purposeful racial discrimination. Hernandez
       v. New York, 500 U.S. 352, 358-359 (1991)(plurality
       opinion); id., at 375 (O'CONNOR, J., concurring in
       judgment); Batson, [476 U.S.] at 96-98.

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

In this case, the Superior Court found that the petitioner,
William Riley, made out a prima facie case, see Riley v.
State, No. 200, 1988 (Super. Ct. April 21, 1989) at 2, and
the state does not dispute this point. The state offered race-
neutral justifications for its contested strikes, and the state
courts accepted those explanations and found that the
disputed peremptories were not racially based. Id. at 3-6;
Riley v. State, 585 A.2d 719, 725 (Del. Sup. Ct. 1990). The
majority however, rejects the state courts' findings
regarding two of the state's peremptories and substitutes
its own contrary findings. I will discuss each of the
challenges on which the majority relies.1

B: Ray Nichols

1. The prosecutor testified that he struck Nichols
because he was uncertain that Nichols would be able to
vote for a death sentence. See App. 797-99. According to
the prosecutor's testimony, "there was a pause and a
significant pause in [his] answering [the trial judge's]
inquiry and that to me was enough to suggest that he
might not be able to return a death penalty." Id. Having
heard the prosecutor's testimony, the judge who presided
over the Batson hearing [hereinafter"the hearing judge"],
concluded: "I find the State provided a credible, race-
neutral reason for exercising its peremptory challenge after
appraising the demeanor and credibility of the juror. The
State's exercise of its peremptory challenge was non-
discriminatory. I am satisfied that the peremptory challenge
was not made on the ground of the juror's race." Id. at 889.
_________________________________________________________________

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

                               83
Riley suggests that it is not believable that the prosecutor
was able to remember at the time of the evidentiary hearing
in 1988 that Nichols had paused while answering a
question during voir dire six years earlier. In addition, Riley
contrasts the prosecutor's ability to remember this pause
with his inability to remember another potentially
significant aspect of the jury selection process, and Riley
notes that the prosecutor was a friend and neighbor of the
victim. These facts were highlighted during the cross-
examination of the prosecutor at the Batson hearing, see
App. 820-29, and I agree that they were important factors
to be considered in assessing the prosecutor's credibility.
The hearing judge was aware of these facts and had the
opportunity to observe the prosecutor testify on the witness
stand. Despite these facts, however, the hearing judge
found that the prosecutor's testimony was credible.

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

       In the typical peremptory challenge inquiry, the
       decisive question will be whether counsel's race-neutral
       explanation for a peremptory challenge should be
       believed. There will seldom be much evidence bearing
       on that issue, and the best evidence often will be the
       demeanor of the attorney who exercised the challenge.
       . . . [E]valuation of the prosecutor's state of mind based
       on demeanor and credibility lies `peculiarly within a
       trial judge's province.'

Hernandez v. New York, 500 U.S. 352, 353 (1991) (pluralty)
(citation omitted).

Because the present case is a proceeding under the
federal habeas statute, our scope of review is, if anything,
even narrower. Under 28 U.S.C. S2254(d)(8)(1988 & Supp.
1990), any state-court factual finding that is "fairly
supported by the record" is entitled to a presumption of
correctness. Discussing this provision, the Supreme Court

                                84
wrote in Marshall v. Lonberger, 459 U.S. 422, 434 (1983),
that "28 U.S.C. S 2254(d) gives federal habeas courts no
license to redetermine credibility of witnesses whose
demeanor has been observed by the state trial court, but
not by them." Accord, Rushen v. Spain, 464 U.S. 114, 122
n.6 (1983)(per curiam). The Marshall Court elaborated:

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

       "As was aptly stated by the New York Court of
       Appeals, although in a case of a rather different
       substantive nature: `Face to face with living
       witnesses the original trier of the facts holds a
       position of advantage from which appellate judges
       are excluded. In doubtful cases the exercise of his
       power of observation often proves the most
       accurate method of ascertaining the truth. . . . How
       can we say the judge is wrong? We never saw the
       witnesses. . . . To the sophistication and sagacity of
       the trial judge the law confides the duty of
       appraisal.' Boyd v. Boyd, 252 N.Y. 422, 429,169
       N.E. 632." Id., at 339.

       We greatly doubt that Congress, when it used the
       language "fairly supported by the record" considered
       "as a whole" intended to authorize broader federal
       review of state court credibility determinations than are
       authorized in appeals within the federal system itself.

459 U.S. at 434. See also Purkett, 514 U.S. at 769.

Under the very limited scope of review that applies here,
I do not see how the hearing judge's finding that the
prosecutor testified truthfully regarding the reason for
challenging Nichols can be overturned. The hearing judge
heard the prosecutor testify. He was aware of the factors
noted above that provided grounds for doubting his
testimony, but he nevertheless found that the prosecutor
was truthful. I would sustain that finding.

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

                                85
whom I discuss below) in large part because, in the
majority's view, "there is no basis to determine if the state
courts undertook, or even were aware of, the required
Batson step three inquiry." Maj. Op. at 36. In making this
argument, the majority (a) misunderstands what Batson
requires, (b) ignores what the Delaware courts did in this
case, (c) imposes novel and unwarranted procedural
requirements on the state courts, and (d) awards relief that
extends beyond what its own logic warrants.

What step three of Batson requires. Although the majority
makes step three seem elaborate and elusive -- so elusive
that, according to the majority, the Delaware courts may
not have "fully appreciated the requirement" (Maj. Op. at
32) -- step three, is neither conceptually difficult nor
procedurally complicated. Step three simply requires the
judge to make a finding of fact -- "to determine if the
defendant has established purposeful discrimination,"
Batson, 476 U.S. at 98 (footnote omitted). See also Purkett,
514 U.S. at 767; Hernandez, 500 U.S. at 358-59 (plurality
opinion); id. at 375 (O'Connor, J., concurring in judgment).
Neither Batson nor any subsequent Supreme Court or
Third Circuit case has added to this requirement.

What the Delaware courts did. The Delaware courts did
exactly what step three requires. With respect to potential
juror Nichols, the hearing judge, whose analysis the state
supreme court endorsed, see 585 A.2d at 725, noted that
the state had provided a race-neutral reason for the
challenge, stated that he found the explanation credible,
and concluded: "I am satisfied that the peremptory
challenge was not made on the ground of the juror's
race."2 This is precisely the finding that step three of
Batson mandates. See Batson, 476 U.S. at 98 (the court
has "the duty to determine if the defendant has established
purposeful discrimination").

What the majority requires. Although the majority opinion
is loathe to admit it, what the majority really finds wanting
in the opinions of the Delaware courts is not a failure to
make the finding mandated by step three of the Batson
_________________________________________________________________

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

                               86
inquiry but a failure to comment on the record regarding
evidence that seems, in the majority's view, to undermine
the prosecution's proffered explanations for the disputed
peremptories. See Maj. Op. at 29 ("the state courts in this
case rejected Riley's Batson claim without discussing any of
the ample evidence that throws into question the
explanations offered by the prosecutor for striking two of
the black jurors . . . .").3 This approach is inconsistent with
the federal habeas statute and Supreme Court precedent.

The provision of the federal habeas statute on which the
majority relies provides that if a state court's
"determination after a hearing on the merits of a factual
issue" is "evidenced by a written finding, written opinion, or
other reliable and adequate written indicia," that
determination "shall be presumed to be correct" unless it is
not "fairly supported by the record" as a whole. 28 U.S.C.
S2254(d)(8)(1988 & Supp. 1990)(amended 1996). Under this
provision, the state court's factual determination must
simply be evidenced by "a written finding, written opinion,
or other reliable and adequate written indicia," and it is not
even necessary that a state court "specifically articulate its
credibility findings." LaVallee v. Delle Rose , 410 U.S. 690,
692 (1973). See also Marshall v. Lonberger, 459 U.S. at
433. Thus, 28 U.S.C. S 2254(d) plainly does not authorize
us to disregard a state court's factual finding on the ground
that the state court failed to discuss all the evidence or to
explain why it was not persuaded by a particular piece of
proof.

I do not question that a judge, in making the factual
finding required by step three of Batson, should consider all
_________________________________________________________________

3. See, e.g., Maj Op. at 18 ("With regard to both Nichols and McGuire,
the state courts failed to mention in their opinions the weaknesses in the
State's explanations . . . ."); id. at 20 ("[T]he hearing judge discussed
neither the statistics nor the State's failure to explain them[,] . . .
overlooking and ignoring a significant segment of Riley's evidence . . .
.");
id. at 21 (hearing judge made no "reference to, or analysis of, Riley's
evidence of pretext"); id. at 28 ("Here, the state courts failed to
examine
all of the evidence to determine whether the State's proffered race-
neutral explanations were pretextual. Not only is there no indication on
the record that the hearing judge engaged in the required analysis, but
there is no indication that the Delaware Supreme Court did so.").

                               87
of the relevant evidence that has been adduced. But neither
Batson nor any later Supreme Court or Third Circuit case4
suggests that a federal habeas court is free to reject the
factual findings of a state court if the state court does not
comment on all of the evidence or provide what the federal
court regards as a satisfactory explanation for its finding.5
_________________________________________________________________

4. The only Third Circuit case cited in this connection by the majority
(see Maj. Op. at 35) is Jones v. Ryan, 987 F.2d 960 (1993). Jones,
however, was very different from the present case (see footnote nine,
infra) and does not support the proposition that a finding of a state
court
is not entitled to the presumption of correctness if the state court did
not
explain why the court was not persuaded by particular items of evidence.

5. Nor does the majority cite much other authority to support its
position. See Maj. Op. at 28, 30, 34, 35. The majority (at 28) quotes
dictum in a footnote in United States v. McMillon, 14 F.3d 948, 953 n.4
(4th Cir. 1994)(emphasis added), to the effect that at step three of
Batson
"the court then addresses and evaluates all evidence introduced by each
side." The reasons for not attaching too much weight to one word
("addresses") in this statement are too obvious to require mention.

The majority cites two federal habeas cases in which courts of appeals
found great fault with the procedures used by state judges in
adjudicating Batson objections. In Jordan v. LeFevre, 206 F.3d 196 (2d
Cir. 2000), the court of appeals held that the trial judge "could not
properly decide the third Batson step" because he "resisted counsel's
efforts to make arguments regarding the peremptory strikes so as to
create a full record" and instead "ruled summarily" after "an extremely
brief colloquy." Id. at 201. Likewise, in Coulter v. Gilmore, 155 F.3d 912
(7th Cir. 1998), the court of appeals spent several pages describing the
bizarre nature of the procedure used by the state trial court in ruling on
Batson objections. Id. at 915-16, 918. The court of appeals ultimately
concluded that the state court had not considered the totality of the
relevant circumstances and thus ordered that the petitioner be released
if the state court did not conduct a Batson hearing using "the proper
methodology." Id. at 922. The procedures used by the Delaware courts
in the present case bear no resemblance to the procedures found
deficient in Jordan and Coulter.

The majority also cites two appeals in which the Sixth Circuit
remanded cases for the district courts to provide more complete
explanations of Batson rulings. See United States v. Harris, 192 F.3d
580, 588 (6th Cir. 1999); United States v. Hill , 146 F.3d 337 (6th Cir.
1998). These, however, were direct federal appeals, not habeas
proceedings initiated by state prisoners, and the relief ordered --
remands for fuller explanation -- goes far beyond what the majority
ordered here.
88
The majority confuses the obligation to consider all of the
relevant evidence (something that a court should always do
in making findings of fact) with the obligation to comment
on all of the evidence (an obligation that we are not free to
impose on state courts).

In this case, as I have noted, there is no question that
the state courts did precisely what step three of Batson
required -- they made findings as to whether Riley had
established purposeful discrimination. And they did so only
after discovery and a thorough hearing. There is no reason
to believe that the state courts did not consider all of the
relevant evidence, including all of the evidence that the
majority now finds persuasive. The Delaware courts simply
did not comment on all of this evidence. (Judgments about
credibility based on a witness's demeanor often do not lend
themselves to such explanation). But the Delaware courts
were not obligated to comment on all of the evidence. The
majority in this case reviews the decisions of the Delaware
courts as if they were decisions of a Social Security
administrative law judge, who must, we have held,"give
some reason for discounting the evidence she rejects."
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). The
Delaware courts, however, are not to be treated as if they
were federal administrative agencies.

The majority's relief. Even if the majority were correct
that the Delaware courts were obligated to explain on the
record why they accepted the prosecution's explanations for
its strikes and were not persuaded by Riley's evidence, that
would hardly justify the relief that the majority orders --
the granting of the writ unless Riley is re-tried. When a
decision is found to be faulty for failure to provide an
adequate explanation, the logical remedy is to remand so
that an adequate explanation can be supplied. See, e.g.,
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985); Motor Vehicle Mfrs. Assn. v. State Farm Mut., 463
U.S. 29, 57 (1983). Here, however, the majority does not
give the Delaware courts a chance to comply with the
majority's newly found procedural requirements. Nor does
the majority remand to the District Court for a hearing and
findings specifically addressing the points that the majority
views as important. Instead, the majority orders that the
writ be granted unless Riley is re-tried.

                               89
How the state courts' failure to address Riley's evidence
on the record can justify such relief is baffling. If the lack
of explanations on the record is important to the majority's
analysis, then the case should be remanded so that
explanations may be provided. If no explanations on the
record could satisfy the majority -- and I believe that to be
the case -- then the majority's lengthy discussion of the
inadequacy of the Delaware courts' opinions is beside the
point.

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

The majority finds it significant that "despite Nichols'
alleged pause, the prosecutors did not ask the trial court to
remove Nichols for cause." Maj. Op. at 17. The majority
raises the question "why if Nichols actually did pause `a
significant pause,' the state did not seek to have him
removed for cause." Id. Does the majority seriously believe
that a prospective juror who pauses before answering a
question about the death penalty may properly be removed
for cause?

The majority observes that "[t]he record does not show
. . . that any of the contemporaneous notes kept by the
prosecutors as to some of the jurors reflected either the
existence of a pause or the concern about which[the
prosecutor] testified six years later." Maj. Op. at 17. The
prosecutor's notes, however, consist of a handwritten sheet
with a few words or abbreviations scrawled next to the
names of some of the prospective jurors. Nichols's name is
not even on this sheet. The notes by no means record the
reasons for all of the prosecution's strikes.

I wish there were some scientific test that could
determine with complete certainty whether Nichols paused
and whether the prosecutor told the truth. Unfortunately,
there is no such test. We must rely to a substantial degree
on the ability of the judge who heard the prosecutor's

                               90
testimony to make an accurate assessment of his
credibility. There is no question that the hearing judge took
his responsibility seriously and made his finding in good
faith. Our role under the federal habeas statute is to
determine whether that credibility finding is "fairly
supported by the record." It is.

C: Charles McGuire.

1. Riley's strongest Batson claim concerns the
prosecution's strike of Charles McGuire. At trial, the
prosecutor first used a peremptory challenge against
McGuire and then immediately made the following
application to the trial judge:

        [THE PROSECUTOR]: Your Honor, may I ask the
       Court to reconsider charging the State for that strike.
       This Mr. McGuire came to chambers yesterday and
       expressed his belief that he didn't know if he could last
       the two weeks [the estimated length of the trial], there
       was some problem with work. He was an inspector or
       something for the Department of Labor. I know he
       came in yesterday.

        THE COURT: I will not strike him for cause for that
       reason. He asked to be excused yesterday and I
       decided not to excuse him.

App. 250.

At the evidentiary hearing held before the hearing judge,
the prosecutor testified that he struck McGuire because
McGuire "had previously requested to be excused from jury
service" and because the prosecutor "wanted attentive
jurors" who were not worried about missing other
obligations or activities while the trial took place. App. 801.

The defense called McGuire as a witness at the
evidentiary hearing. McGuire testified that he was employed
by the State of Delaware as a Social Security "disability
adjudicator," App. 846-47; that he had been reporting for
jury duty in the courthouse in Dover for two to three weeks
before he was questioned in connection with the Riley case
but had not been seated on a jury, id. at 852-53; that while
he was away from work, the disability claims assigned to

                               91
him would "just sit[ ]," id. at 850; that the director of his
office had told him that he was going to make a"formal
request" that McGuire be excused, id. at 860; that such a
request was sent, id. at 853, 856; and that the request had
been discussed in chambers with the judge. Id . at 849-50,
856. McGuire said, however, that he himself had never
expressed an unwillingness to serve on the jury and had
been willing to do so. See id. at 850.

The hearing judge accepted the prosecutor's explanation
of the reason for striking McGuire. The hearing judge
found:

       The State peremptorily challenged Charles McGuire
       because [the prosecutor] believed he requested to be
       excused from jury duty and, therefore, may have been
       unable or unwilling to serve for the entirety of the trial.
       . . . McGuire's employer sent a letter requesting he be
       released from jury duty because he could not be
       replaced at his job if he was chosen for jury duty. The
       letter by McGuire's employer clearly gave the State
       reason to question whether McGuire would give his full
       time and attention to the trial and whether he would
       be able to serve for the entirety of the time projected for
       the trial. Whether McGuire, in fact, did not request
       relief from jury duty and did wish to serve is of no
       consequence.

Riley v. State, No. 200, 1988 at 4-5 (emphasis added). The
hearing judge then noted that the state's explanation for
striking McGuire, was "entirely unrelated to the juror's
race," and the judge credited that explanation. Id. at 5.
Obviously, by crediting an explanation that was"entirely
unrelated to the juror's race," the hearing judge necessarily
found that Riley had not "established purposeful
discrimination," Batson, 476 U.S. at 98, and the hearing
judge thus fully complied with Batson's step three.6

Several factors provide substantial support for this
finding. It is apparent that McGuire's work situation was on
_________________________________________________________________

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

                               92
the prosecutor's mind when McGuire was peremptorily
challenged because, as noted, immediately after striking
McGuire, the prosecutor asked that McGuire's dismissal be
deemed for cause since he had "expressed his belief that he
didn't know if he could last the two weeks." App. 250. In
addition, a reasonable prosecutor might well have wondered
whether McGuire's work situation would adversely affect
his attentiveness at trial. As noted, McGuire's supervisor
had made a "formal request" that he be excused"because
he could not be replaced at his job if he was chosen for jury
duty."7 Whether or not McGuire himself in fact wished to
serve on the jury, the impression apparently was conveyed
that McGuire wanted to be excused and to return to work,
since the trial judge commented: "He asked to be excused
yesterday and I decided not to excuse him." See App. 250.
Under these circumstances, a reasonable prosecutor could
have been concerned that McGuire might have been
inattentive at trial due to worry about missing work, leaving
his duties unattended, and perhaps incurring his
supervisor's displeasure.

Riley attacks the hearing judge's finding on two grounds.
First, he points out that, according to McGuire's testimony
at the post-conviction relief evidentiary hearing, McGuire
himself did not ask to be excused. This argument is
unpersuasive. Although McGuire testified that he did not
ask to be excused, the trial judge, as noted, stated at the
time of McGuire's dismissal: "He asked to be excused
yesterday and I decided not to excuse him." App. 250
(emphasis added). Thus, McGuire, who was unable to
remember many details at the time of the post-conviction
relief evidentiary hearing, see id. at 853, 857-62, may have
been mistaken, or he may have conveyed the impression at
the time of trial that he personally wanted to be excused.

Second, Riley points out that the handwritten sheet
prepared by the prosecutors during voir dire contains the
following notation next to the name of a white juror,
Charles Reed, whom the prosecution did not peremptorily
strike: "works Lowe's -- wants off." One of the prosecutors
_________________________________________________________________

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

                               93
was questioned about this notation by Riley's attorney at
the post-conviction relief evidentiary hearing, but the
prosecutor testified that he had no recollection of Reed. See
App. 823-24.

The notation by Reed's name and the prosecutor's
testimony at the evidentiary hearing are certainly factors
that the hearing judge could have viewed as tending to
undermine the credibility of the prosecutor's explanation for
striking McGuire, but the notation and the prosecutor's
testimony are insufficient to show that the hearing judge's
finding is not "fairly supported by the record." 28 U.S.C.
S 2254(d). It is reasonable to infer from the notation "wants
off " that, at some point in the jury selection process, Reed
expressed a desire to be excused for some reason. As far as
I am aware, however, the record does not establish why8 or
how strongly Reed wanted to be excused. The transcript of
the voir dire shows that, at the final stage of the jury
selection process, the members of the venire were asked
whether there was "any reason why [they] absolutely [could
not] serve," App. 223; that members of the venire then
successfully asked to be released for reasons such as a
previously planned vacation, id. at 253; but that Reed made
no request to be excused at that time. See id . at 229-30.
Thus, as far as the record appears to reveal, Reed may have
had a relatively weak desire and reason to be excused, and
his situation may not have been at all comparable in this
respect to McGuire's.9
_________________________________________________________________

8. Although the notation "wants off " appears after the words "works at
Lowe's," it is not clear that Reed's desire to be excused was related to
his
employment. The prosecutor's notes appear to contain notations of the
employment of other jurors.

9. Many decisions have held that Batson is not contravened simply
because two jurors exhibit similar characteristics and one is excluded
while the other is retained. See, e.g., Matthews v. Evatt, 105 F.3d 907,
918 (4th Cir. 1997); United States v. Spriggs , 102 F.3d 1245, 1255 (D.C.
Cir. 1997); United States v. Stewart, 65 F.3d 918, 926 (11th Cir. 1995);
United States v. Alvarado, 951 F.2d 22, 25 (2d Cir. 1991); United States
v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988); United States v. McCoy,
848 F.2d 743, 745 (6th Cir. 1988); United States v. Lewis, 837 F.2d 415,
417 n.5 (9th Cir. 1988).

                               94
As I have noted, our scope of review of the hearing
judge's finding is narrow. Although it would be satisfying to
know why Reed was not stricken, that unanswered
question is not enough, in view of the "great deference"10
owed the hearing judge's credibility determination, to
demonstrate that the hearing judge's finding is not"fairly
supported by the record."11 28 U.S.C. S 2254(d)(8) (1988 &
Supp. 1990).

In an effort to bolster its unusual decision to overturn the
hearing judge's credibility finding, the majority points to a
statement contained in the brief filed by the state in Riley's
direct appeal. The majority writes:

       When Riley's direct appeal came before the Delaware
       Supreme Court in 1984, the State justified the use of
       race in selecting jurors in criminal trials. On that
       occasion, which was the State's first opportunity to
       defend the use of its peremptory challenges in Riley's
       trial, the State did not offer a single race-neutral
       explanation, not even as an alternate argument;
       instead, it claimed that it was permissible -- even
       socially desirable -- to exclude jurors based on what it
       called `group association.' "

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

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

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

10. Batson, 476 U.S. at 98 n.21.

11. This case is very different from Jones v. Ryan, 987 F.2d 960 (1993).
There, exercising plenary review in the absence of any findings of fact by
a state court, we held that Batson was violated where the prosecutor
excluded a black juror who had a child approximately the same age as
the defendant, while retaining a white juror who was similarly situated.
Jones, 987 F.2d at 973. In the present case, we are limited to deciding
whether the state court finding is fairly supported by the evidence.

                               95
       exercised on the basis of group association, foster the
       constitutional goal of an impartial jury, the state
       asserts that no reversal is required here.

App. 896-97 (footnotes omitted). Thus, the state's brief --
which the lead trial prosecutor did not even sign-- merely
urged the state supreme court to follow the reasoning of the
United States Supreme Court in what was then the
governing federal precedent. It is far-fetched to interpret the
state's reliance on Swain as a tacit admission that its
peremptories in this case were based on race -- particularly
since, in a footnote to the sentence quoted above, the state
was careful to deny that its challenges were racially based.12

It is also unreasonable to draw an adverse inference
against the state for not providing race-neutral
explanations for its challenges in its appellate brief. Since
there was no evidence in the record regarding the reasons
for the strikes, the state could hardly have expected the
state supreme court to base a decision on explanations
provided without record support. The majority's arguments
regarding the state's brief are insubstantial.

The majority's reliance on statistical evidence is even
worse. In the Batson proceeding before the hearing judge,
Riley made a proffer that no African American had served
on any of the three other first-degree murder trials that had
occurred in Kent County within a year of his own and that
in those cases the prosecution had peremptorily challenged
five African Americans. The three other trials were those of
Andre Deputy, an African American, and two whites, Daniel
Pregent, who was acquitted, and Judith McBride, who was
_________________________________________________________________

12. The state's brief stated that it "emphatically denie[d] that the
prosecutor exercised any of his challenges solely on the assumption that
the juror's race, in the context of the facts of this case, indicated a
verdict position adverse to the prosecution." App. 896. The majority
seizes on the word "solely" in this sentence as a tacit admission that
race
played a part in the decision to exercise peremptories. In my view, it is
wholly unreasonable to read that much into the word"solely." The
Supreme Court in Batson itself used this same word in the same
context. See 476 U.S. at 89 (emphasis added)("[T]he Equal Protection
Clause forbids the prosecutor to challenge potential jurors solely on
account of their race.").

                               96
convicted. With respect to these cases, no information was
provided at the time -- and none has been provided since
-- about the identities of the prosecutors who participated
in jury selection, the racial makeup of the venire, or the
race of jurors who were dismissed for cause or peremptorily
challenged by the defense.

In the trial of Andre Deputy, who was convicted and
ultimately executed, the state struck four whites, one
African American, and one person listed as "Indian."
Deputy argued that the prosecution's peremptory challenge
of the African American venireperson violated Batson. See
Deputy v. Taylor, 19 F.3d 1485, 1492 (3d Cir. 1994).
Deputy's Batson argument was rejected in the district court
decision denying his petition for a writ of habeas corpus,
and our court affirmed. See id. at 1492. Since it has been
held that no Batson violation was shown in Deputy, it is
difficult to see how that case can be viewed as supporting
Riley's argument here.

In Pregent's case, the state struck four whites and one
black. There is nothing before us to indicate that any
Batson objection was made, and it is doubtful that the
pattern of strikes exercised by the prosecution sufficed to
make out a prima facie case.

The remaining case is the prosecution of Judith McBride
for murdering her husband. See McBride v. State , 477 A.2d
174 (Del. 1984). The state exercised a total of 10 strikes, of
which three were against potential jurors identified as black.13
There is nothing to indicate that any Batson objection was
made. Without in effect holding a Batson hearing, there is
no way of determining whether any prosecution
peremptories were based on race.

Although Riley was represented at the Batson hearing by
a professor of law and has been represented in the federal
habeas proceeding by attorneys from one of the nation's
leading law firms, no expert analysis of these statistics has
ever been offered.14 According to the majority, however, the
"sophisticated analysis of a statistician" is not needed to
_________________________________________________________________

13. According to Riley's statistics, five of those struck by the state
were
white, and the race of two is not provided.
14. The majority's statement that "the procedural posture of the case"
provided "no opportunity" for Riley to offer an expert analysis of his
statistics (Maj. Op. at 38) is difficult to understand. What stopped Riley
from offering the evidence of a statistician as to the significance of the
scant statistics that Riley provided?
97
interpret the significance of these statistics. Maj. Op. at 19.
"An amateur with a pocket calculator," the majority writes,
can calculate that "there is little chance of randomly
selecting four consecutive all white juries." Id.

Statistics can be very revealing -- and also terribly
misleading in the hands of "an amateur with a pocket
calculator." The majority's simplistic analysis treats the
prospective jurors who were peremptorily challenged as if
they had no relevant characteristics other than race, as if
they were in effect black and white marbles in a jar from
which the lawyers drew. In reality, however, these
individuals had many other characteristics, and without
taking those variables into account, it is simply not possible
to determine whether the prosecution's strikes were based
on race or something else.

The dangers in the majority's approach can be easily
illustrated. Suppose we asked our "amateur with a pocket
calculator" whether the American people take right- or left-
handedness into account in choosing their Presidents.
Although only about 10% of the population is left-handed,
left-handers have won five of the last six presidential
elections.15 Our "amateur with a calculator" would conclude
that "there is little chance of randomly selecting" left-
handers in five out of six presidential elections. But does it
follow that the voters cast their ballots based on whether a
candidate was right- or left-handed?

Whether even a careful multiple-regression analysis of
peremptory challenge statistics in other cases would suffice
to show that a Batson violation occurred in this case is
unclear. Cf. McClesky v. Kemp, 481 U.S. 279 (1987). Here,
however, we have not been presented with any expert
statistical evidence.

The majority and the concurrence argue that an adverse
inference should be drawn against the state for failing to
come forward with data to rebut Riley's statistics. I see no
basis for this approach. Whether an adverse inference
should be drawn under particular circumstances based on
_________________________________________________________________

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

                               98
a party's failure to produce evidence in a state proceeding
is in the first instance a question of state law, and unless
a state court's failure to draw such an inference in a
particular case denies due process or a fair and adequate
hearing, a federal habeas court should be reluctant to
reject the state court's ruling. Cf. 28 U.S.C. S 2254 (6) and
(7) (1988 & Supp. 1990) (amended 1996). Moreover, even if
this were a collateral attack on a federal conviction, we
would defer to the decision of the judge who conducted the
hearing as to whether the circumstances justified the
drawing of adverse inference and would reverse only if the
judge committed an abuse of discretion. See, e.g., Bouzo v.
Citibank, N.A., 96 F.3d 51, 60 (2d Cir. 2000).

Here, the state courts' failure to draw such an inference
certainly did not constitute an abuse of discretion. The
state was never given notice that it had any obligation to
provide additional data, and it is not at all clear what sort
of evidence the majority expects the state to have provided.
The information that is most critically lacking-- the
prosecutors' reasons for striking the five African American
venire members in the Deputy, McBride, and Pregent cases
-- probably could not have been obtained without in effect
conducting retrospective Batson hearings in those cases.
Does the majority think that such a hearing would have
been practical? Or does the majority think that the state
should have retained am expert to analyze the state's use
of peremptory challenges in some other set of cases? In
order to make such an analysis, the expert probably would
have needed detailed information about the prospective
jurors whom the state did and did not strike -- e.g., their
ages, marital status, education, occupations, and past
experiences with law enforcement, to name just a few of the
myriad variables that often figure in decisions about
peremptory challenges. We have no indication that such
information was available, and in any event, compiling and
analyzing the data concerning a reasonable sample of cases
could have been a massive undertaking. In my view, it is
entirely unwarranted to hold that the state courts abused
their discretion because they did not draw adverse
inferences from the state's failure to volunteer to conduct
such a study in response to the statistics that Riley
proffered.

                               99
In sum, I see no ground for overturning the hearing
judge's credibility findings. I would thus hold that the
presumption of correctness has not been overcome and
would reject Riley's Batson argument. The majority -- by in
effect making its own credibility findings on the cold state
court record -- seriously errs. See Marshall v. Lonberger,
459 U.S. at 434.

II.

I now turn to the majority's holding that a remark made
by the prosecutor in closing argument at the penalty phase
of the trial violated Caldwell v. Mississippi , supra. In
Caldwell, the defense attorney's closing argument asked the
jury to "confront both the gravity and responsibility of
calling for another's death." 472 U.S. at 324. In response,
the prosecutor took strong exception to the defense
attorney's comments and stated:

       Now, they would have you believe that you're going to
       kill this man and they know -- they know that your
       decision is not the final decision. My God, how unfair
       can you be? Your job is reviewable. They know it. . . .
       For they know, as I know, and as [the judge] has told
       you, that the decision you render is automatically
       reviewable by the Supreme Court.

Id. at 325-26.

By a vote of five to three, the United States Supreme
Court reversed the defendant's death sentence. The
plurality opinion approved by four justices concluded that
the prosecutor's comments were improper for two reasons:
first, because the prosecutor's description of the state
scheme of appellate review was not "accurate" and, second,
because the availability of appellate review was"wholly
irrelevant to the determination of the appropriate sentence."
Id.

Justice O'Connor, who cast the deciding fifth vote for
reversal, refused to endorse the principle that"the giving of
nonmisleading and accurate information regarding the
jury's role in the sentencing scheme is irrelevant to the
sentencing decision." 472 U.S. at 341 (opinion of O'Connor,

                               100
J.) (emphasis added). However, she agreed that the
prosecutor's statements were improper because they
"creat[ed] the mistaken impression that automatic appellate
review of the jury's sentence would provide the
authoritative determination of whether death was
appropriate," whereas in fact the state supreme court
exercised only a narrow scope of review. Id.

In subsequent cases, the Court has clarified the holding
in Caldwell. In Romano v. Oklahoma, 512 U.S. 1, 9 (1994),
the Court wrote as follows:

       As Justice O'CONNOR supplied the fifth vote in
       Caldwell, and concurred on grounds narrower than
       those put forth by the plurality, her position is
       controlling. See Marks v. United States, 430 U.S. 188,
       193 (1977) . . . . Accordingly, we have since read
       Caldwell as "relevant only to certain types of comment
       --those that mislead the jury as to its role in the
       sentencing process in a way that allows the jury to feel
       less responsible than it should for the sentencing
       decision." Durden v. Wainwright, 477 U.S. 168, 184,
       n.15 (1986). Thus, "[t]o establish a Caldwell violation,
       a defendant necessarily must show that the remarks to
       the jury improperly described the role assigned to the
       jury by local law." Dugger v. Adams, 489 U.S. 401, 407
       (1989), see also Sawyer v. Smith, 497 U.S. 227, 233
       (1990).

The Romano Court rejected the Caldwell argument
advanced in that case because "the jury was not
affirmatively misled regarding its role in the sentencing
process." Id. at 10.

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

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

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

                                101
       penalty. That is why, if you return a decision of death,
       that is why you will receive and have to fill out a two-
       page interrogatory that the Court will give you. This is
       an interrogatory that specifically sets out the questions
       that the State request and whether or not you believe
       it beyond a reasonable doubt and if you want in your
       determination, if you believe the sentence should be
       death then each and every one of you has to sign this.
       This goes to the Supreme Court. That is why it is
       concise and we believe clear and it should be looked
       carefully on and answered appropriately.

App. 393 (emphasis added). Riley argues that the
highlighted words quoted above violated Caldwell .

In its decision on direct appeal, the Delaware Supreme
Court responded to this argument as follows:

       [T]he prosecutor's remarks in no way suggested that
       responsibility for ultimately determining whether
       defendant faced life imprisonment or death rested
       elsewhere. The prosecutor's passing comment to the
       jury that its decision would be "automatically reviewed"
       was fairly made in the context of the prosecutor's
       preceding reference to the "specific statute[controlling]
       a penalty hearing on a capital case." 11 Del.C.S 4209.
       Since subsection (g) of S 4209 mandates the"Automatic
       Review of Death Penalty by Delaware Supreme Court",
       the prosecutor in the instant case was simply quoting
       the statute. In no sense may it reasonably be said that
       the prosecutor was either misstating the law,
       misleading the jury as to its role, or minimizing its
       sentencing responsibility.

496 A.2d at 1025 (alteration in original). I agree with this
analysis.

The prosecutor's remarks in Caldwell were"quite
focused, unambiguous, and strong." 472 U.S. at 340. The
clear message was that, contrary to the suggestion of
defense counsel that the jury should "confront both the
gravity and responsibility of calling for another's death," id.
at 324, the jury need not shoulder that responsibility
because "the authoritative determination of whether death
was appropriate" would be made by the state supreme

                               102
court. Id. at 343 (Opinion of O'Connor, J.). It was in this
sense that the remarks " `improperly described the role
assigned to the jury by local law' "16 and thus " `allowed the
jury to feel less responsible than it should for the
sentencing decision.' "17

The prosecutor's remarks in this case were very different.
Here, the prosecutor made accurate, unemotional, passing
remarks in the context of describing the state statute and
explaining why the jury would have to "fill out a two-page
interrogatory" if it returned a capital sentence. These
remarks did not convey the message that the jury should
not confront the gravity of returning a death verdict, and
thus the mere mention of the fact that there would be an
automatic appeal to the state supreme court did not
mislead the jury as to its role in the sentencing process. In
this connection, it is noteworthy that after the closing
arguments, the trial judge instructed the jury on its role
using language that left no doubt about its responsibility.
The trial judge stated: "Where the jury submits such a
finding and recommendation, the Court shall sentence the
defendant to death." See 585 A.2d at 731 (emphasis added).
A "recommendation of death, supported by the evidence,
shall be binding on the Court." Id. (emphasis added). "Your
unanimous recommendation for the imposition of the death
penalty, if supported by the evidence, is binding on the
Court." Id. at 734 (emphasis added). In light of the
substantial factual differences between Caldwell and this
case, and in light of the Supreme Court's subsequent
explanation of the meaning of Caldwell, I would reject
Riley's Caldwell claim.

The majority appears to hold that a Caldwell violation
occurred simply because the prosecutor accurately stated
that there would be an automatic appeal to the state
supreme court without attempting to explain the scope of
review that the state supreme court would exercise. I do not
agree with this reading of Caldwell. Neither Justice
_________________________________________________________________

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

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

                               103
O'Connor's controlling opinion in Caldwell nor the Court's
subsequent explanation in Romano took the position that
an unadorned reference to automatic judicial review of a
capital verdict is enough to violate the Constitution. And
such a holding would make little sense. As the Seventh
Circuit has noted:

       Everyone knows that after a death sentence is
       imposed, there are tiers of appellate review designed to
       catch errors; the prosecutor wasn't telling the jurors
       anything they didn't know already. Appellate review is
       a fact of almost all criminal cases that are tried.
       Knowledge of this does not cause jurors to take lightly
       their sentencing responsibilities.

Fleenor v. Anderson, 171 F.3d 1096, 1098 (7th Cir. 1999).
What Caldwell forbids is not a simple reference to
automatic appellate review, but the suggestion that the
scope of review is broader than it is in fact. The remarks in
Caldwell conveyed such a suggestion; the comments here
did not. I would therefore hold that no Caldwell violation
occurred.

III.

Reviewing habeas decisions in capital cases is one of the
most important and difficult responsibilities of this court.
Our role is vital -- but limited -- and is not to be confused
with that of the jury or the various branches of state
government. Applying the legal standards that are
applicable to us in the present context, I believe that the
decision of the district court must be affirmed.

A True Copy:
Teste:

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

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