                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-17-2000

Weeks v. Snyder
Precedential or Non-Precedential:

Docket 98-9005




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"Weeks v. Snyder" (2000). 2000 Decisions. Paper 146.
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Filed July 17, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-9005

DWAYNE WEEKS,
       Appellant

v.

ROBERT SNYDER, Warden;
ATTORNEY GENERAL OF THE STATE OF DELAWARE

On Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 96-cv-00622)
District Judge: Hon. Sue L. Robinson

Argued: January 26, 2000

Before: SLOVITER, McKEE and RENDELL, Circuit   Judges

(Filed July 17, 2000)

       Joseph M. Bernstein (Argued)
       Ste 1130
       300 Delaware Ave.
       Wilmington, DE 19801

       Adam L. Balick
       Sidney Balick & Associates
       Ste 710
       919 N. Market St.
       Wilmington, DE 19801

        Attorneys for Appellant
       Loren C. Meyers (Argued)
       Timothy J. Donovan, Jr.
       Delaware Department of Justice
       820 N. French St.
       Wilmington, DE 19801

        Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This is an appeal from the decision of the United States
District Court for the District of Delaware denying the
petition of Dwayne Weeks for a writ of habeas corpus.
Weeks, who pled guilty to the first degree murder of his
wife, Gwendolyn Weeks, and her friend, Craig Williams, was
sentenced to death. His subsequent appeals and post-
conviction proceedings have been unsuccessful. He raises
one narrow issue before us: whether his trial attorney
afforded him constitutionally ineffective assistance of
counsel in connection with his guilty plea.

Because of the nature of the proceeding, we will review
the facts and procedural background in detail before
turning to the legal analysis.

I.

BACKGROUND

A. The Murders of Gwendolyn Weeks and Craig Williams1

At 8:36 p.m. on April 10, 1992, the 911 center of the New
Castle County Police received a call from Gwendolyn Weeks
_________________________________________________________________

1. The summary of facts set forth here is drawn chiefly from the District
Court's comprehensive and uncontested statement of facts. See Weeks v.
Snyder, No. 96-622, 1998 WL 231025 (D. Del. Apr. 30, 1998) ("Weeks
IV"). For another summary of the murders see Weeks v. State of
Delaware, 653 A.2d 266, 268-69 (Del. 1995) ("Weeks I"). There is no
significant difference between them.

                                  2
who requested that police come to her apartment
immediately. She told the 911 operator that someone was
trying to get into her apartment, and that she believed it
was her estranged husband Darryl Weeks. Gwendolyn
Weeks explained that she lived in a high-security
apartment complex where all visitors were announced by
the security guards and that she had not authorized any
visitors.

The 911 tapes then captured the grim events.
Approximately four minutes after calling the 911 operator,
Gwendolyn Weeks became alarmed and frightened, crying
out "He's in here. He has a gun. A gun." Several gunshots
and screams were heard over the open line and the
operator sped the police to the caller's apartment, but they
arrived too late to prevent the murders. Instead, the police
officers found evidence of forced entry and the bodies of
Gwendolyn Weeks and Craig Williams lying face down in
the living room in a pool of blood. The police later
determined that both Gwendolyn Weeks and Williams were
killed while they huddled on the floor of her apartment.
Gwendolyn Weeks was shot twice in the head. Williams
sustained defensive gunshot wounds to his right hand and
upper extremity, two wounds to his face, and a fatal wound
to his head. Both victims died virtually instantaneously.

B. The Case Against Weeks

The police investigation of the murders focused
immediately on Dwayne Weeks, the husband of Gwendolyn
Weeks since 1983. The police discovered that during their
marriage, Dwayne Weeks "subjected Gwendolyn to
possessiveness, irresponsible behavior, and abuse." Weeks
v. State of Delaware, 653 A.2d 266, 268 (Del. 1995) ("Weeks
I"). In September 1991, Gwendolyn Weeks left her husband
and moved into a high-security apartment complex
specifically selected to protect her from her abusive
husband. After she separated from her husband and moved
into her own apartment, she contacted an attorney to
discuss possible divorce proceedings.

Soon after the murders a police broadcast listed Weeks
as a suspect. That same evening, a police officer stopped a
vehicle leaving Dwayne Weeks' residence with Weeks, his

                                3
girlfriend Tammy Robinson, and her daughter. Weeks was
arrested and both Weeks and Robinson were transported to
police headquarters.

Robinson gave three statements to the police that night.
Initially, she told the police that Weeks had been with her
the entire day. She later told the police that Weeks had
returned home at around 9 o'clock that evening and that
she had seen a gun in a brown case on the kitchen table
while she was at Weeks' house. Eventually, she confessed
that Weeks said he was out with his friend Arthur Govan
and told her to lie if asked about his whereabouts that
evening.

Late that evening, Govan learned that Weeks and
Robinson had been taken into custody and that the police
wanted to talk with him in connection with the murders.
Govan decided to go to the police and tell his side of the
story. The next day, after being read his Miranda warnings,
Govan confessed that he was present during the murders
but claimed that Weeks was the only shooter. Govan
explained to the officers that after Weeks had received
divorce papers earlier that week, Weeks called him and
tried to hire him to kill his wife. Govan said he refused
Weeks' offer but that he accompanied Weeks to his wife's
apartment and was present during the murders. Govan
explained that after the murders, Weeks took his wife's
pocketbook and the two men drove to a junk yard owned by
Weeks' father to hide the gun and the pocketbook. Weeks
then drove Govan to the train station and returned to his
home to pick up Robinson and her daughter. Govan
repeated these statements to the police two days later when
the police asked more specific questions relating to the
number of weapons and bullets used to murder Gwendolyn
Weeks and Williams.

The police obtained a search warrant. When they
searched Weeks' home they found a gun box for a .38
caliber pistol on a bookshelf in Weeks' living room. The
serial number on the gun box matched one of the murder
weapons recovered later at his father's junk yard.

The police determined that two guns were fired in
Gwendolyn Weeks' apartment the night she and Williams

                               4
were murdered: a .38 caliber gun with copper jacketed
slugs and a .32 caliber gun using lead bullets. Two
weapons were subsequently recovered from the junk yard
owned by Weeks' father: a .38 caliber handgun and a .32
caliber handgun. The forensic evidence revealed that the
.38 caliber gun was used to shoot Gwendolyn Weeks and
fired one shot into the head of Williams. The .32 caliber
gun was shot six times, twice into the floor and four times
into Williams. In addition to the two weapons, the
investigators recovered from the junk yard a partially used
box of .38 caliber copper jacketed bullets, a make-up kit, a
purse, a wallet, a checkbook, an address book, and various
cards and papers. Gwendolyn Weeks' name appeared on
the address book and the checkbook.

Armed with evidence that two guns were used in the
murders, the police arrested Govan who, after signing a
waiver of rights form, confessed to shooting Williams.
Weeks and Govan were jointly indicted in Delaware for,
inter alia, two counts of first degree murder for the deaths
of Gwendolyn Weeks and Williams. The criminal case
against both Weeks and Govan was listed before the
Delaware Superior Court, which is the state trial court.
Judge John E. Babiarz presided throughout. The court
granted the State's motion to sever the trials of the
defendants and to schedule Weeks' trial after Govan's.

Govan's trial proceeded before a jury. Despite his
attempts to suppress his three statements to the police, the
court admitted Govan's two earlier statements as well as
his confession. The jury convicted Govan on all counts of
the indictment. The jury in the penalty hearing decided that
the aggravating circumstances outweighed the mitigating
circumstances, thereby recommending that the judge
sentence Govan to death. The trial judge reserved making
a decision so that he could sentence Govan and Weeks
together.

C. June 15, 1993 Chambers Conference

At about 4 p.m. on June 15, 1993, attorneys for the
State, Weeks, and Govan met with the trial judge to discuss
a potential plea of guilty by Weeks. Counsel for Weeks,
John Willard, was an experienced criminal defense lawyer

                               5
of nineteen years who had recently tried two capital murder
cases. He was also a friend of the Weeks family. Willard
informed the judge that over his strenuous objections
Weeks was intent on pleading guilty to the crimes, even
though the State persisted on pressing for the death
penalty.

        MR. WILLARD: After meeting with the State
       yesterday, I discussed it again with my client and with
       his parents. The parents were immediately of the
       opinion that it was in his best interest to plead and
       face a jury, having admitted it rather than trying it.

        I spoke to him about it last night and he thought he
       wanted to do that too. He said he wanted to have a
       chance to talk to his parents last night. He talked to
       them and they advised me this morning he wanted to
       plead, and I just left him and that's what he wants to
       do, Your Honor. I'm physically ill about it. It just-- I'm
       a trial man and I thought we were going to try it, and
       that's what he wants to do. I'm not terribly surprised,
       because from the beginning he indicated that he might
       want to do this, and I'm convinced that he's absolutely
       competent in every way.

        He is an extremely deeply religious person, and that's
       been a big part of it. We talked about that yesterday.
       He made me stand there and hold his hand while he
       prayed about it, and this is what he wants to do, and
       I've discussed every facet that I can imagine about it.
       I discussed with him the State, Miss Epstein,
       graciously gave me virtually everything that she was
       going to come at him with at the penalty phase, and
       she gave me more today and I discussed that with him.
       He fully understands that the State intends to
       aggressively seek the death penalty, despite his plea,
       just as they would have if he went through trial.

        I discussed with him the possible evidence we can
       offer in mitigation, the witnesses, what they would
       possibly testify to, and he knows what he's got for that
       phase.

App. at 8-10 (Office Conference Transcript of June 15,
1993).

                               6
After discussing scheduling matters regarding the
selection of a jury, Judge Babiarz advised counsel that if
Weeks chose to plead guilty, he should do so the next day.
The judge explained that he thought it would be in Weeks'
best interest if he pled guilty before jury selection since the
judge would be able to tell the jury that Weeks had pled
guilty instead of first reading the full charge against him.
The judge also stated that "[i]f Weeks changes his mind and
backs out, then we go ahead and select the jury on guilt or
innocence." App. at 12.

The judge then turned to ascertain why Govan's attorney
was present. Govan's attorney first requested the State not
to seek the death penalty for Govan and to agree not to
seek to admit any testimony to be given by Govan at Weeks'
trial in Govan's sentencing proceeding. The State declined.
Govan's attorney then advised the State that Govan would
assert his Fifth Amendment privilege if called to testify at
Weeks' trial. At this point, Willard objected:

        MR. WILLARD: Your Honor, I don't mean to split
       hairs here, but in my last capital case there was some
       effort to call some people and the Court ruled if we
       knew ahead of time they were going to take the Fifth,
       we couldn't call them, or attempt to call them, and I
       don't know if he's going to testify or not.

        THE COURT: If he agrees to testify voluntarily, he
       will testify. If he's going to assert the Fifth Amendment,
       he will not testify unless the State persuades me that
       privilege has been eliminated by his conviction, and I
       won't allow the State to call him as a witness to the
       stand to simply have him assert his Fifth Amendment.

        If I rule he waived it, then I'll put him on the stand,
       and how I force a person in that position to testify with
       the threat of contempt, I don't know, but that's the
       situation. I'm not going to let him go through a show
       for the jury. If he maintains that position, I simply will
       have to hear legal argument on whether the State can
       call him and whether I can take any action to compel
       him to testify or what. That's an open issue, as Miss
       Epstein indicated on the record.

App. at 17 (Office Conference Transcript of June 15, 1993).

                               7
The trial judge then summarized his view by stating:

        [A]s far as I'm concerned, as of now, Govan is not
       going to testify, and if the State plans to call him, they
       either have to supply me with a document that says
       that he will testify voluntarily, or present argument as
       to how I could compel him to testify.

App. at 18 (Office Conference Transcript of June 15).

D. June 16, 1993 Plea Hearing

The next morning, Weeks and his counsel appeared in
court to enter his guilty plea. At the beginning of the plea
hearing, Willard informed the judge that a doctor had
briefly examined his client and found him competent to
stand trial and to assist at trial. Willard then advised the
court that the State had agreed to drop all other charges if
Weeks pled guilty to murder in the first degree and felony
murder but that the plea would not affect the State's right
to aggressively seek the death penalty. Willard then stated:

        Because of my relationship with his family, Your
       Honor, I wanted them to know the latest events of
       exactly what was happening. They considered what I
       told them. They have their own ideas about the merits
       of that plea. They advised me to speak to my client and
       not to convey their thoughts, as they wanted this to be
       his decision completely.

        I met with my client two nights ago, Your Honor. I
       relayed to him the State's offer and advised him in
       great detail of the consequences of his plea. I advised
       him there would be no trial record, for purposes of an
       appeal. I advised him that the Supreme Court would
       only review the penalty. I reiterated the State's position
       regarding their seeking the death penalty. I reviewed
       each and every factor of aggravation which the State
       had given to me. I reviewed with him the evidence we
       would submit. He advised me he wished to accept the
       plea. He told me, however, that he wished to speak to
       his parents that evening prior to formally advising me
       of his decision. He said that he would speak with his
       parents that night.

                                8
        Throughout my representations of Mr. Weeks, Your
       Honor, he has demonstrated to me a very sincere and
       deep religious conviction. He has repeatedly advised me
       of his shortcomings and failures, and that he was at
       peace with his god. He told me that he willingly
       accepted whatever was in store for him.

        Before I left him that night, he asked me to join him
       in prayer about his decision. He prayed that God would
       give me and his family the strength, and the Court and
       jury to go through with this; never once voiced any
       concern for himself, except to ask God to give him the
       strength to continue with his convictions.

        Your Honor, in my 19 years before the Bar I've never
       known a client who was more together and content
       with what he was doing. I advised him again that we
       could still go to trial as we had planned and there was
       absolutely no pressure for him to plead guilty. He told
       me he had no interest in going to trial and he wished
       to admit his guilt. He advised me that he was
       completely and fully prepared to live with the
       consequences of his plea.

App. at 22-25 (Plea Hearing Transcript).

Willard also gave a detailed recitation of all the advice he
had given Weeks regarding his constitutional rights and the
consequences of entering a guilty plea for the two capital
offenses. He concluded by informing the court that, in his
opinion, Weeks was entering the plea knowingly,
intelligently, and voluntarily.

        Your Honor, I'm content that the plea is being
       entered without improper threat or promise. I've
       advised my client that if there has been any improper
       threat or promise made to him that he say so now in
       this Court.

        I've advised him that if he enters this plea today, of
       course, that there is virtually no likelihood of his ever
       being able to withdraw that guilty plea.

        Having discussed all these things in great detail,
       Your Honor, with my client, I'm content that he's

                               9
       entering that plea knowingly, intelligently and
       voluntarily.

App. at 31 (Plea Hearing Transcript).

Weeks was then sworn in and questioned at length by
the trial judge. The court asked Weeks if he had listened to
his counsel's recitation and if he had any disagreements
with anything his counsel had told the court. The trial
judge asked if Weeks understood that even though he pled
guilty, the jury for the penalty phase would still learn,
through witnesses, how the State alleges the crimes were
committed. Weeks stated on the record that he understood
the proceedings and the consequences of the proceedings.
Weeks then admitted to having shot and killed Gwendolyn
Weeks and Williams on April 10, 1992.

Of critical importance on this appeal is the following
series of questions from the judge. After Weeks admitted to
having shot and killed the two victims, the judge advised
Weeks regarding Govan's refusal to testify as follows:

        Q: [Judge] One other matter that I meant to mention
       to you and I'll ask you about it now. I was advised
       yesterday that Mr. Govan may elect not to testify
       against you; were you aware of that fact?

        A: [Weeks] No, I wasn't, Your Honor.

        Q: [Judge] Let me be more specific about it. I know
       there have been discussions between Mr. Govan's
       lawyers, one of whom is present in the courtroom right
       now, Mr. Pankowski, and the State about whether he
       would testify in your trial against you, either in the
       guilt part of the trial or in the penalty part of the trial.
       They have been talking about whether that would
       happen.

        One of Mr. Govan's lawyers was present at the
       conference that occurred yesterday between your
       lawyer and the State's lawyers, and I was advised then
       and the State was advised then, that Mr. Govan would
       assert his Fifth Amendment Right, that is, the right to
       remain silent, if he were called as a witness in your
       case. It's an open question as to whether I could then
       compel him to testify or let the State use his

                               10
       statements against you and not decide it. There was
       uncertainty about whether that could be used against
       you, but as of yesterday afternoon, Mr. Govan was
       going to stand on that Fifth Amendment Right and call
       into question the State's ability to use any of that
       material against you.

        Now, were you aware of that?

        A: [Weeks] Yes, sir.

        Q: [Judge] Have you understood what I've said? If
       you have any questions, please ask me and I'll try to
       explain further.

        A: [Weeks] No, sir. Thank you, sir, I understand.

        Q: [Judge] You do understand that?

        A: [Weeks] Yes.

        Q: [Judge] Would that have made a difference in your
       decision to plead guilty? If it does --

        A: [Weeks] No, sir.

        THE COURT: Very well. I will accept the plea as
       being freely, voluntarily and intelligently entered and
       judgments of guilt are entered, and we'll proceed to
       jury selection on the penalty phase forthwith.

App. at 43-44 (Plea Hearing Transcript) (emphasis added).

E. Weeks' Penalty Hearing

During the penalty hearing, the State presented much of
the same evidence it would have used had it gone to trial.
Thirty-six witnesses testified for the State, among them
several of Gwendolyn Weeks' and Williams' friends,
relatives, and co-workers. The officers and detectives
testified about the guns, bullets, and shell casings, and an
FBI agent testified regarding the forensic evidence. An
attorney testified that she had met with Gwendolyn Weeks
just prior to the murders regarding a possible divorce and
the legal implication of her husband's recent request to
refinance their home. Robinson testified that she had seen
a gun in a brown case on Weeks' kitchen table, and that on
the night of the murders Weeks had left the house a little

                               11
after six p.m. and did not return until around nine p.m.
She also testified that Weeks instructed her to lie to the
police and tell them he was with her the entire evening.

Most significant was the evidence of Weeks' elaborate
plan to murder his wife provided by his accomplice Govan,
who testified before the jury under an agreement with the
prosecution. In exchange for Govan's testimony, the
prosecution agreed not to use Govan's testimony against
him in any other proceeding. The prosecution also agreed to
recommend that the court consider Govan's testimony a
mitigating factor in his sentencing.

Govan testified that Weeks had learned that his wife was
going to divorce him and he did not want to divide the
property or pay her alimony, so he devised a plot to murder
his wife: "[h]e [was] not going to let her take all he worked
for, cars, stuff like that." App. at 189. Three days before the
killings, Weeks tried to hire Govan to kill his wife and
offered to pay him $500 or $250 and a gun, an offer Govan
claimed he turned down. Weeks purportedly wanted Govan
to murder her rather than perform the act himself, so that
Weeks might pass a polygraph test if asked if he killed his
wife.

On the day of the murders, Weeks drove Govan to St.
Francis Hospital, where Gwendolyn Weeks worked, so that
Govan could case the area and familiarize himself with
where she worked, what exit she used, and where she
parked her car. The plan was to kill Gwendolyn Weeks after
she left work in the parking garage where she regularly
parked. In the early evening, Govan and Weeks hurriedly
returned to St. Francis Hospital to catch Gwendolyn Weeks,
who was scheduled to get off work at 8:30 p.m. After the
two unsuccessfully searched the parking garage for her car,
Weeks telephoned one of her co-workers at the hospital and
learned she was not at work because she had plans that
evening.

Weeks and Govan then sped to Gwendolyn Weeks' high-
security apartment. According to Govan, Weeks had learned
that Williams might be with Gwendolyn Weeks that evening
and, if so, "he going to get the same thing she get." App. at
205. Weeks parked in a nearby church parking lot to avoid

                                12
detection by the apartment complex's security and
proceeded to Gwendolyn Weeks' apartment. Weeks gave
Govan the .32 caliber gun on the landing and told him to
knock on the door, ask for a cup of sugar, and pretend to
be a neighbor.

When no one answered the door, Govan began to walk
away; Weeks, however, pulled out a .38 caliber handgun,
forced the door open, and entered the apartment with
Govan on his heels. Govan testified that after Weeks broke
the door down, Weeks ran straight at Gwendolyn Weeks,
wrestled with her while she was on the phone as she tried
desperately to move the gun away from her head, and then
shot her twice in the head. Govan claimed that hefired two
shots into the floor to make Weeks think he had shot
Williams. Govan also claimed that after Weeks had killed
Gwendolyn Weeks, Weeks turned and shot Williams several
times in the head. When Govan was asked how six shots
were fired out of the .32 caliber revolver, he claimed that he
only fired two shots and then gave the revolver back to
Weeks, who fired the remaining four shots.

Hoping to conceal the nature of these murders, Weeks
took Gwendolyn Weeks' purse so that the murders would
look like a robbery, and the two fled the murder scene to
the approaching sound of police sirens. Weeks drove to a
lot owned by his father and hid the purse and murder
weapons in one of the trucks on the lot. Weeks then
dropped Govan off at the train station, telling him,"I got
her like I wanted to get her. I got her good. Got both of
them good," and returned home to his girlfriend Robinson.
App. at 214. According to Govan, part of the master plan
was for Robinson to provide Weeks with an alibi by
pretending Weeks was with her in Philadelphia during the
time of the murders.

When confronted with his inconsistent statements to the
police, Govan admitted that he lied to the police in order to
appear more innocent. Finally, before Govan was excused,
the court asked Govan to explain how Gwendolyn Weeks
was found lying on top of Williams if she was shotfirst as
he testified. Govan said he did not know but acknowledged
that when he left the apartment that night, Gwendolyn
Weeks was lying on top of Williams.

                                13
At the conclusion of Weeks' penalty hearing, the jury
deliberated for two days before finding that the aggravating
circumstances outweighed the mitigating circumstances on
each count. On September 7, 1993, the trial judge
sentenced Weeks to death and Govan to consecutive life
terms.

F. Weeks' Delaware Post-Conviction Proceedings

Weeks exhausted his direct appeal to the Delaware
Supreme Court, which rejected all Weeks' claims of error
and affirmed. See Weeks I, 653 A.2d at 275. Thereafter,
Weeks filed a motion for state post-conviction relief. The
petition claimed that Weeks received ineffective assistance
of counsel from his trial counsel because:

       (1) Weeks' attorney did not advise him [prior to his
       guilty plea] that Govan would refuse to testify
       against him in the trial;

       (2) Weeks' attorney did not advise him that if Govan
       persisted in his refusal to testify, then Govan's
       out-of-court statement to the police would not be
       admissible in Weeks' trial, thereby substantially
       weakening the State's case against Weeks; [and]

       (3) Weeks' attorney failed to tell Weeks that the State
       would present the very same evidence concerning
       the circumstances and details of the crime in the
       penalty hearing that would have been presented if
       Weeks had elected to go to trial on the issue of
       guilt.

App. at 420 (Motion for Post-Conviction Relief).

Weeks' petition conceded that "Weeks told Willard that he
was in favor of entering a guilty plea because he believed
that such a plea would somehow spare the victims' family
and his family from the additional trauma of having all of
the details and circumstances of the crimes brought out in
court." App. at 419 (Motion for Post-Conviction Relief).

Judge Babiarz, the same judge who presided over the
guilty plea hearing and sentencing, held an evidentiary
hearing on September 8, 1995 at which both Weeks and his
counsel testified and presented starkly conflicting

                                14
testimony. Willard declared that from the day of Weeks'
arrest, Weeks immediately began talking about accepting
responsibility for the killings by pleading guilty. As Willard
testified:

        My very first meeting with Dwayne, he made it very,
       very clear to me that he had a very close, warm,
       personal relationship with Jesus Christ, his savior and
       Lord, and throughout every conversation, that came up
       and was part of everything.

        And in fact, virtually every time I met with Dwayne
       he would ask that we pray together. He would take my
       hands in his and we'd sit there and we'd pray.

        Now, while I may not have a reputation for that, I
       happen to be a very deeply religious man in my own
       way, and I was very touched by that, and we were very
       close and very open from the very, very first meeting.

        He is the one who began immediately talking about
       a plea.

App. at 443-42 (Post-Conviction Hearing Transcript).

        [F]rom our first meeting and virtually every meeting
       thereafter he would say to me, "Mr. Willard, I did it"
       and say things like, "We don't have to do this, we don't
       have to go to trial, I did it."

App. at 455 (Post-Conviction Hearing Transcript).

When asked how he responded when Weeks immediately
revealed his desire to plead guilty, Willard testified that at
that time he knew nothing about the case and kept
reminding Weeks "we don't make any decisions yet. There's
a whole lot of things we've got to go through first,
preliminary hearings and discovery and so forth before I
can have any idea of where we are in this matter." App. at
444-45 (Post-Conviction Hearing Transcript). Willard stated
that from the beginning he had an overwhelming desire to
go all the way and try this case to the best of his ability.

Willard further testified that as the trial approached, he
continued to counsel Weeks against pleading guilty so long
as the State continued to seek the death penalty. It was his
position that if there was any possibility of a deal, part of

                               15
the deal must include the State not pursuing the death
penalty. When the State offered to drop the miscellaneous
charges if Weeks pled guilty to first degree murder, he "felt
compelled then to at least formally broach that with[his]
client" but that "[i]t was basically nothing. It was not an
offer. It was plead guilty and they would still go for the
death penalty and they still intended to put on a full show
for the penalty phase hearing." App. at 452 (Post-Conviction
Hearing Transcript). Willard testified that he"tried to
explain to [Weeks] that to [him] . . . pleading guilty was a
worthless thing to do." App. at 456 (Post-Conviction
Hearing Transcript).

But the testimony of both Weeks and his own counsel is
in agreement that Weeks was determined to confess his
guilt due to his religious convictions and his desire to avoid
inflicting further pain on the victims' families and his own.
According to Willard's testimony, Weeks never once said
"let's have a trial on this" or indicated a desire to make the
State prove its case. To the contrary, Willard stated "I'm the
one who kept talking about a trial, trial, trial and he never
said anything. He just would say, `Well, I did it' and so
forth." App. at 490 (Post-Conviction Hearing Transcript).

When asked if he informed Weeks that Govan may not
testify, Willard stated that following the conference with the
judge, he immediately returned to Weeks and discussed at
great length the fact that Govan might not testify and that
this would seriously weaken the State's case. Willard also
testified that although he was hopeful that Govan would
not testify, he was not optimistic since Govan remained
eager to avoid the death penalty by cutting a deal with the
State.

        [Willard] I thought that [Govan would not testify] was
       an outside possibility, and again my initial impression
       was like this. Govan has been tried, convicted and he's
       been through a penalty phase. He knows the jury's
       verdict, vote.

        I would imagine that there's a whole lot of defendants
       out there who may be a little tougher or more
       sophisticated than Mr. Govan who would say, "I've got
       absolutely nothing in the world to gain by helping the
       State and they can go to hell . . . ."

                               16
        I quite frankly hoped in my heart that that might
       happen. Yet I could tell from the way Eddie [Govan's
       attorney] was playing it and the way the State was that
       there was something going on that might change that
       and make him want to testify.

App. at 465 (Post-Conviction Hearing Transcript).

Weeks' testimony in the post-conviction hearing differed
markedly from Willard's on many significant facts. Weeks
testified that he initially considered pleading guilty only if
he could avoid the death penalty, App. at 492; that Willard
failed to advise him that pleading guilty would not spare
the victims' families the trauma of a trial, App. at 502; and
that Willard never told him that Govan was threatening not
to testify, App. at 508, or that if Govan refused to testify
Govan's out-of-court statements could not be used against
him, App. at 510. Weeks admitted that he knew that
Govan's testimony would "hurt me bad," App. at 509, that
Willard met with him the evening before he pled guilty (the
evening following the conference with the judge where
Willard was informed that Govan might not testify), App. at
523, and that he repeatedly told his attorney that he
wanted to plead guilty to spare the victims' families and his
own, App. at 497, 512-13.

Weeks was then presented with his statements at the
time of his guilty plea when the trial judge questioned him
regarding his understanding that Govan would not testify
and its implications. Weeks was asked to re-read the
portion of the transcript where the trial judge informed him
that Govan was threatening not to testify and that it was an
open question whether Govan could be forced to testify or
whether his out-of-court statement could be used against
Weeks. Weeks was asked to explain why he told the judge
that it would not make a difference in his decision to plead
guilty if Govan refused to testify against him. Weeks stated
that he understood what the judge was saying, but
explained as follows:

        Q: You answered `No, Sir.' You said it wouldn't make
       a difference. Why did you say that?

        A: [Weeks] Well, one, because of my understanding
       that I had concerning the families and them not being

                               17
       brought back into this thing, you know, of a fullness,
       not re-living this thing over again.

        That weighed heavy on my heart and I didn't want to
       bring them back through that. This is what I shared
       with Mr. Willard on a number of occasions coming up
       into that. That's mainly why I didn't change my plea.

App. at 512-13 (Post-Conviction Hearing Transcript).

In concluding his testimony, Weeks asserted that if
Willard had informed him of the legal ramifications of
Govan's refusal to testify, he would not have pled guilty.

        Q: Now, if anyone had explained to you the legal
       ramifications of Arthur Govan not testifying, and if, in
       addition to that, you knew that you weren't going to
       spare anybody anything by pleading guilty, would you
       have pled guilty?

        A: [Weeks] No. We'd have went to trial.

App. at 515 (Post-Conviction Hearing Transcript).

As the testimony by Weeks conflicted sharply with that of
his counsel, Judge Babiarz stated in his written opinion
denying post conviction relief that the resolution of Weeks'
claims "rests primarily on [the] credibility" of Weeks and his
counsel. State of Delaware v. Weeks, No. 92010167DI, slip
op. at 2 (Del. Super. Ct. Dec. 28, 1995) ("Weeks II"). The
court re-characterized Weeks' claims as raising two
instances of ineffective assistance of counsel:

       (1) that Weeks' trial counsel failed to inform Weeks,
       prior to the entry of his guilty plea, that Govan might
       refuse to testify at Weeks' trial, and

       (2) that Weeks' trial counsel failed to inform Weeks that
       even if he pled guilty to the murder charges, the State
       would present the same evidence in the Penalty
       Hearing concerning the circumstances of the killings
       that they would have presented at trial.

Id.

After reviewing the transcripts of the office conference,
Weeks' plea colloquy, and the testimony from the
evidentiary hearing, the court adopted Willard's version of

                                18
the events leading up to the guilty plea. With respect to
Weeks' first claim of ineffectiveness, the court specifically
found that Weeks "was informed of Govan's indecision"
about whether to testify. Id. at 3. With respect to the
second claim, the court concluded that Weeks was aware
that the State would offer evidence of the circumstances of
the crime at the penalty hearing. The court therefore
dismissed Weeks' claims as unsubstantiated, a decision the
Delaware Supreme Court affirmed in a brief opinion, see
Weeks v. State of Delaware, 683 A.2d 60, 1996 WL 470717
(Del. 1996) (table) ("Weeks III"), and Weeks was scheduled
for execution.

G. Weeks' Federal Habeas Petition

On December 20, 1996, Weeks filed this habeas petition
pursuant to 28 U.S.C. S 2254, reasserting his claim of
ineffective assistance of counsel. Because Weeks' petition
was filed after the effective date of the Antiterrorism and
Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132,
110 Stat. 1214 (1996), the provisions of that Act are
applicable. Weeks argued that his legal representation was
deficient because Willard failed to research the legal
implications of Govan's refusal to testify and failed to
inform Weeks of the legal ramifications of that refusal. The
District Court determined that this issue was presented in
the state post-conviction appeal process and thus satisfied
AEDPA's exhaustion requirement. Weeks v. Snyder , No. 96-
622, 1998 WL 231025, slip op. at 44-45 (D. Del. Apr. 30,
1998) ("Weeks IV").

Turning to the merits of the claim, the District Court
concluded that Willard's legal representation did not fall
below the acceptable level required by the Sixth
Amendment as his failure to research this issue was
excused once he realized that the strength of the State's
case was not a factor in Weeks' decision to plead guilty. Id.
at 51. The District Court also concluded that Weeks failed
to demonstrate prejudice because the court was convinced
from evidence in the record that Weeks would have pled
guilty even if Willard had informed Weeks that Govan's out-
of-court statements might be inadmissible at trial. Id. at 64.
Although the District Court denied Weeks' petition, it
certified the ineffective assistance claim for appeal and

                               19
granted a stay of execution pending appeal. Id. at 65.
Weeks filed a timely appeal to this court. We have
jurisdiction pursuant to 28 U.S.C. SS 1291 and 2253.

II.

DISCUSSION

A. Applicable Legal Principles

Weeks' only claim before us is based on his contention
that he was deprived of his Sixth Amendment right to
effective assistance of counsel, an element of a defendant's
fundamental right to a fair trial. See Roe v. Flores-Ortega,
120 S. Ct. 1029, 1034 (2000); Nix v. Whiteside , 475 U.S.
157, 175 (1986); Strickland v. Washington, 466 U.S. 668,
686 (1984). To prevail on a claim of ineffective assistance of
counsel, the defendant must demonstrate that counsel's
representations were objectively deficient and, with a few
notable exceptions, that prejudice resulted from these
alleged deficiencies. See Flores-Ortega, 120 S. Ct. at 1037;
Strickland, 466 U.S. at 687-688, 691-694; Government of
Virgin Islands v. Zepp, 748 F.2d 125, 133-134 (3d Cir.
1984). A lawyer's representation is considered objectively
deficient if it "fell below an objective standard of
reasonableness." Strickland, 466 U.S. at 688. To establish
prejudice, a defendant must demonstrate 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.

"In most cases, a defendant's claim of ineffective
assistance of counsel involves counsel's performance during
the course of a legal proceeding, either at trial or on
appeal." Flores-Ortega, 120 S. Ct. at 1037. However, the
principles apply equally to those defendants who have pled
guilty. In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme
Court applied the Strickland two-part test for determining
ineffective assistance of counsel in a case where the
defendant challenged a guilty plea. Although the standard
for deficient performance remains unchanged, in a guilty
plea case the standard for prejudice "focuses on whether
counsel's constitutionally ineffective performance affected

                                 20
the outcome of the plea process." Id. at 59; see United
States v. Nahodil, 36 F.3d 323, 326-327 (3d Cir. 1994);
Dooley v. Petsock, 816 F.2d 885, 889 (3d Cir. 1987). In
order for a defendant such as Weeks who challenges his
guilty plea to satisfy the prejudice requirement, he must
demonstrate that there is a "reasonable probability that,
but for counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial." Hill, 474 U.S. at
59. "As with all applications of the Strickland test, the
question whether a given defendant has made the requisite
showing will turn on the facts of a particular case." Flores-
Ortega, 120 S. Ct. at 1039.

B. Deficient Performance

Weeks argues that Willard's representation was deficient
because Willard failed to inform him fully of the legal
implications of Govan's refusal to testify. In so doing,
Weeks does not contest on appeal the express factual
finding by the Delaware court that Willard alerted Weeks
that Govan was refusing to testify. Rather, Weeks contends
that if Willard had researched the legal issues, he would
have learned that there was nothing that the State or the
trial court could have done to compel Govan to testify and,
more importantly, that if Govan refused to testify the State
could not admit his out-of-court statements against Weeks
under Delaware's rules of evidence. His position, succinctly
stated, is: "Weeks did not receive critical legal advice that
was essential to making an informed and conscious
decision whether to plead guilty or go to trial[;] [s]imply
being told that Govan would not testify was not enough."
Appellant's Br. at 24.

AEDPA provides that factual determinations made by a
state court are presumed correct and that the petitioner
has the burden to rebut the presumption by clear and
convincing evidence. See 28 U.S.C. S 2254(e)(1). Weeks
argues that the Delaware court failed to make a factual
determination necessary to his claim of ineffective
assistance of counsel when it rejected his Sixth Amendment
claim as "unsubstantiated." The District Court agreed with
Weeks that the Delaware court failed to make such a
finding. See Weeks IV, 1998 WL 231025, at *22.

                                21
Although the Delaware court made no express finding in
its post-conviction opinion as to whether Willard advised
Weeks of the legal ramifications of Govan's refusal to
testify, we believe the District Court gave a far too narrow
interpretation to the Delaware court's findings, and thereby
violated the principles of comity and the "high measure of
deference to the factfindings made by the state courts"
required by S 2254(e) and S 2254(d) (pre-AEDPA). Sumner v.
Mata, 455 U.S. 591, 598 (1982); see also Miller v. Fenton,
474 U.S. 104, 112 (1985) (federal habeas courts must"give
great weight to the considered conclusions of coequal state
judiciary"). The federal habeas statute provides us "no
license to redetermine credibility of witnesses whose
demeanor has been observed by the state trial court, but
not by [us]." Marshall v. Lonberger, 459 U.S. 422, 434
(1983). "Thus, the factual conclusions which the federal
habeas courts [are] bound to respect in assessing
respondent's constitutional claims [are] . . . the finding[s] of
the [State] trial court . . . and the inferences fairly deducible
from those facts." Id. at 435 (emphasis added).

The Supreme Court has instructed that in habeas
proceedings, "if no express findings of fact have been made
by the state court, the District Court must initially
determine whether the state court has impliedly found
material facts." Townsend v. Sain, 372 U.S. 293, 314
(1963). The Court suggested that if the state court rejected
the petitioner's claim on the merits in a prior state
collateral proceeding "but made no express findings, it may
still be possible for the District Court to reconstruct the
findings of the state trier of fact, either because his view of
the facts is plain from his opinion or because of other
indicia." Id. The Court continued, "the coequal
responsibilities of state and federal judges in the
administration of federal constitutional law are such that
we think the district judge may, in the ordinary case in
which there has been no articulation, properly assume that
the state trier of fact . . . found the facts against the
petitioner." Id. at 314-15. See also LaVallee v. Delle Rose,
410 U.S. 690, 692 (1973) (per curiam) (providing
presumption of correctness required by 28 U.S.C.S 2254(d)
to implicit findings of a state court).

                               22
Following this precedent, this court recently held that we
must provide the same presumption of correctness required
by S 2254(e)(1) to the state courts' implicit factual findings
as we provide to express findings of the state courts. See
Campbell v. Vaughn, 209 F.3d 280, 285-86 (3d Cir. 2000).
Accord Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir.
1998); Sprosty v. Buchler, 79 F.3d 635, 643 (7th Cir. 1996);
Ventura v. Meachum, 957 F.2d 1048, 1055 (2d Cir. 1992);
Tinsley v. Borg, 895 F.2d 520, 524 (9th Cir. 1990); Crespo
v. Armontrout, 818 F.2d 684, 686 (8th Cir. 1987).

One of the three grounds Weeks asserted in his state
post-conviction proceeding in support of his contention that
his Sixth Amendment right to counsel was violated was
that "Weeks' attorney did not advise him that if Govan
persisted in his refusal to testify, then Govan's out-of-court
statement to the police would not be admissible in Weeks'
trial, thereby substantially weakening the State's case
against Weeks." App. at 420 (Motion for Post-Conviction
Relief). At the evidentiary hearing, Willard testified that he
not only advised Weeks that Govan was threatening to
refuse to testify, see App. at 466, but also that without
Govan's testimony the State's case was much weaker, see
App. at 470. He testified that he discussed the situation
thoroughly with Weeks and that he specifically spoke with
Weeks of the legal technicalities if Govan refused to testify,
see App. at 477-78, and told Weeks that he would not
spare the victims' families by pleading guilty because the
State would present the same evidence at trial, see App. at
459.

In contrast, Weeks testified at the same hearing that
Willard never told him that Govan was refusing to testify or
the legal implications on the admissibility of Govan's out-of-
court statements, see App. at 504, and said that Willard
never told him that he would not spare his or the victims'
families any trauma by pleading guilty, see App. at 502.
Other conflicts between Willard and Weeks permeate their
respective testimonies. For example, Willard testified that
Weeks continuously rejected his advice that Weeks not
plead guilty unless the State agreed not to pursue the
death penalty, see App. at 449-50, while Weeks testified
that it was his position from the beginning that any guilty

                               23
plea include such an agreement from the State, see App. at
492.

After hearing the testimony of both Weeks and Willard,
the Delaware Superior Court stated that "[s]ince Willard
and Weeks are in direct contradiction as to what was said
between them, the resolution of the disagreement rests
primarily on credibility." Weeks II, slip op. at 2. The court,
weighing the credibility of the two witnesses, adopted
Willard's version of the events leading up to the guilty plea.
The court stated that "Willard testified that he informed
Weeks about the possibility that Govan may not testify" and
it found, based on this testimony and the plea colloquy,
that "Weeks was informed of Govan's indecision" and "knew
that similar evidence would be presented at the penalty
hearing regardless of his guilty plea." Id. at 3, 4 (emphasis
added).

Although the court never expressly rejected Weeks'
contention that Willard failed to inform him about the effect
of Govan's refusal to testify, it did find that the factual
bases for Weeks' claims of ineffectiveness on the part of
counsel were "unsubstantiated." Id. at 4. It is significant
that the state post-conviction judge was the same judge
who presided over the guilty plea hearing and the
sentencing. After reviewing the Superior Court's ruling on
Weeks' post-conviction motion, the Supreme Court of
Delaware affirmed, stating that "[t]he Superior Court, in its
decision denying the Rule 61 motion, carefully considered
all of Weeks' arguments." See Weeks III, 683 A.2d 60, 1996
WL 47017.

It is reasonable to draw from this record the inference
that the judge who heard the evidence determined that
Willard's testimony on this issue was more credible than
Weeks', as that judge had credited Willard on every other
factual dispute that he expressly reached. We therefore
conclude that the Delaware court made the implicitfinding
that Willard advised Weeks of the implications of Govan's
failure to testify, a finding entitled to deference. As noted
above, this implicit factual finding is due the same highly
differential presumption of correctness required by
S 2254(e), which Weeks has failed to defeat by clear and
convincing evidence. It follows that Weeks failed to show

                                24
that Willard's legal performance was objectively deficient,
the first prong of a showing of ineffective assistance of
counsel. Nonetheless, in an abundance of caution, we will
consider as well the prejudice prong.

C. Prejudice

As Justice O'Connor emphasized in Flores-Ortega , "[t]he
second part of the Strickland test requires the defendant to
show prejudice from counsel's deficient performance." 120
S. Ct. at 1037. Thus, even if Weeks established that his
counsel's performance was objectively unreasonable, he
must also demonstrate that "there is reasonable probability
that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial." Hill, 474
U.S. at 59. The Court in Hill stated that the prejudice
inquiry in many guilty plea cases "will closely resemble the
inquiry engaged in by courts reviewing ineffective-
assistance challenges to convictions obtained through trial."
Id. Thus, as the Supreme Court explained in Strickland, "[a]
reasonable probability is a probability sufficient to
undermine confidence in the outcome." 466 U.S. at 694.

In order to examine the prejudice issue, we mustfirst
determine what Willard would have learned had he
researched the effect of Govan's refusal to testify. We must
then determine whether there is a reasonable probability
that if Weeks had been informed of the results of this
research, he would have insisted on going to trial.

In this connection, it is important to recall that Govan
had given three inculpatory statements shortly after the
murders, each of which placed the principal responsibility
on Weeks but which also implicated Govan to differing
extents. Weeks contends that under the applicable
Delaware rule of evidence, the prosecutor cannot use the
prior statements of an accomplice as affirmative evidence if
s/he refuses to testify. See 11 Del. C.S 3507.2 As stated by
_________________________________________________________________

2. Section 3507 of the Delaware Code provides:

        (a) In a criminal prosecution, the voluntary out-of-court prior
       statement of a witness who is present and subject to cross-
       examination may be used as affirmative evidence with substantive
       independent testimonial value.

                               25
Weeks, "if Govan had refused to testify and therefore could
not be cross-examined, his out-of-court statements
inculpating Weeks would have been inadmissible against
Weeks." Appellant's Br. at 22-23. The parties agree that
there was no effective way to compel Govan to testify if he
was unwilling, as effective sanctions would be unavailable
inasmuch as Govan was already facing at least a life
sentence. Although the parties disagree as to whether
Govan's prior statements would have been admissible even
if he chose not to testify, this appeal does not turn on that
issue.3

Weeks' point is that Willard failed to tell him that they
may not have been admissible. However, even if Willard did
not tell him, he could not have been prejudiced because the
trial judge told him. During Weeks' guilty plea colloquy,
which took place while the parties were aware of Govan's
equivocation about testifying, Judge Babiarz stated to
Weeks in open court that it was an "open question" whether
Govan's prior statements would have been admissible. The
court stated:

       It's an open question as to whether I could then compel
       him [Govan] to testify or let the State use his
       statements against you and not decide it. There was
_________________________________________________________________

        (b) The rule in subsection (a) of this section shall apply
regardless
       of whether the witness' in-court testimony is consistent with the
       prior statement or not. The rule shall likewise apply with or
without
       a showing of surprise by the introducing party.

        (c) This section shall not be construed to affect the rules
       concerning the admission of statements of defendants or of those
       who are codefendants in the same trial. This section shall also not
       apply to the statements of those whom to cross-examine would be
       to subject to possible self-incrimination.

11 Del. C. S 3507.

3. Compare Keys v. State, 337 A.2d 18 (Del. 1975) (holding that out-of-
court statement by accomplice (who was not a codefendant)
inadmissible) with State v. Miller, 1991 WL 166436 (Del. Super. 1991)
(raising possibility of admissibility under traditional hearsay exception
if
confrontation clause satisfied) and Earnest v. Dorsey, 87 F.3d 1123 (10th
Cir. 1996) (same).

                               26
       uncertainty about whether that could be used against
       you, but as of yesterday afternoon, Mr. Govan was
       going to stand on that Fifth Amendment Right and call
       into question the State's ability to use any of that
       material against you.

App. at 43-44 (Plea Hearing Transcript). This summary by
the judge was an accurate and simple synopsis of the legal
ramifications of Govan's refusal to testify. See supra note 3.
When the judge asked Weeks, "If you have any questions,
please ask me and I'll try to explain further," Weeks
responded "No, sir. Thank you, sir. I understand." App. at
44. (emphasis added). The judge then asked Weeks if this
information would have made a difference in his decision to
plead guilty, to which Weeks responded, "No Sir." App. at
44.

This colloquy beli
