                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-2-1994

Reynolds v. Elingsworth, et al.
Precedential or Non-Precedential:

Docket 93-7106




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        UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT



                 N0. 93-7106



             GEORGE L. REYNOLDS,

                  Appellant

                      v.

         JACK C. ELLINGSWORTH, Warden;
            CHARLES M. OBERLY, III




On Appeal From the United States District Court
          For the District of Delaware
        (D.C. Civil Action No. 86-00142)



           Argued November 3, 1993

BEFORE: SLOVITER, Chief Judge, and STAPLETON,
        Circuit Judges, and RESTANI,* Judge,
        United States Court of International
        Trade

         (Opinion Filed May 2, 1994)




                      1
*   Honorable Jane A. Restani, Judge of the United States Court of
    International Trade, sitting by designation.




                                2
                         Beverly L. Bove (Argued)
                         Tomar, Porks, Seliger, Simonoff &
                         Adourian
                         Suite 1701 Mellon Bank Center
                         919 Market Street
                         P.O. Box 955
                         Wilmington, DE 19801

                             Attorneys for Appellant

                         Loren C. Meyers (Argued)
                         Deputy Attorney General
                         Department of Justice
                         State Office Building
                         820 French Street
                         Wilmington, DE 19801

                             Attorney for Appellee



                      OPINION OF THE COURT




STAPLETON, Circuit Judge:



          This appeal requires us to consider the situation of a

criminal defendant whose lawyers make a tactical decision not to

raise federal due process objections in the defendant's state

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

which they could have a good faith expectation that the defendant

would be able to raise these federal objections in state

collateral review proceedings.   The issue we address is whether

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

defendant from later raising his federal objections in federal




                                 3
court through a petition for writ of habeas corpus.   We hold that

it does not.




                               4
                                 I.

            In 1976, George Lee Reynolds was tried for felony

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

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

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

robbery.    The prosecuting Deputy Attorney General, in his opening

statement to the jury, referred extensively to two purported

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

when the prosecution sought to introduce Reynolds' confessions

into evidence, a hearing was held to determine their

admissibility.   At the hearing, the prosecution withdrew its

proffer of the confessions.    The prosecution never renewed its

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

After the prosecution withdrew its proffer of Reynolds'

confessions, Reynolds' counsel did not request a curative jury

instruction regarding the Deputy Attorney General's opening

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

declared.   Reynolds was convicted and sentenced to life in

prison.



0
 In the separate trial of one of Reynolds' codefendants, the
Delaware judge excluded Reynolds' confessions as unreliable
because the police had induced them by making promises of freedom
and a monetary reward to Reynolds that were "extravagant in the
extreme." State of Delaware v. Rooks, 411 A.2d 316, 316 (Del.
1980); see also, State v. Rooks, 401 A.2d 943 (Del. 1979). After
excluding Reynolds' confessions, the judge directed a verdict of
acquittal for Reynolds' codefendant.
0
 See, e.g., Reynolds v. Ellingsworth, 843 F.2d 712, 716 n.10 (3d
Cir. 1988), cert. denied, 488 U.S. 960 (1988) ("Reynolds I")
(state's case was "weak").


                                 5
          Following a direct appeal to the Delaware Supreme

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

further hearings in light of newly discovered evidence (at which

hearings the chief investigating police officer appeared as a

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

court, the supreme court affirmed Reynolds' conviction.   Reynolds

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

did Reynolds' counsel complain that Reynolds' federal rights had

been violated at trial.

          Reynolds then sought state collateral review of his

conviction pursuant to Delaware Superior Court Criminal Rule 35.0

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

prosecutor's references to the confessions during his opening

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

limiting jury instruction or to declare a mistrial sua sponte,

denied Reynolds the due process required by the federal

Constitution.

          In the Rule 35 proceedings, the Delaware Superior Court

held hearings to determine why Reynolds' lawyers had not raised

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

two trial lawyers, one of whom also represented Reynolds on

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


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

               (a) Correction of Sentence. The court
          may correct an illegal sentence at any time
          and may correct a sentence imposed in an
          illegal manner within the time provided
          herein for the reduction of sentence.


                                6
recollection, independent of the transcript they were supplied,

that the Deputy Attorney General had mentioned Reynolds'

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

not remember why they had not requested a limiting instruction,

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

prosecutor's statements.    Each counsel did offer hypothetical

explanations, based largely upon his usual practices and his

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

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

          Reynolds' lead trial lawyer, an experienced criminal

defense attorney who made most of the tactical trial decisions,

offered three reconstructive hypotheses as to why he might not

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

not want a mistrial because it would give the prosecution a

second opportunity to proffer the confessions after having

marshalled stronger evidence to support their admissibility.      The

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

prosecutor to ask for a recess and rethink his decision to

withdraw the confessions.    The third hypothesis was that defense

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

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

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

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

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

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

for any cautionary instruction because it would serve primarily

to refocus the jury's attention on the confessions.


                                 7
            The defense counsel who handled the direct appeal gave

the following testimony as to why the matter of the confessions

had not been raised on appeal:
               The reason it was not raised on appeal
          was because, as far as I am concerned, the
          better grounds for appeal were the
          interpretation of the stipulation regarding
          the truth serum and also the very good ground
          of the newly-discovered evidence when we had
          the investigating officer saying he believed
          the wrong man had been convicted.

Appendix at 382.

            The superior court analyzed the testimony of Reynolds'

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

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

appeal.   The superior court performed this analysis because it

interpreted the Delaware Supreme Court's opinion in Conyers v.
State, 422 A.2d 345 (Del. 1980), to impose a contemporaneous-

objection requirement for preserving Rule 35 review, and to adopt

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

prejudice" test as the Delaware standard for deciding whether to

impose a procedural bar for failure to comply with the

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

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

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

Supreme Court held that a state criminal defendant forfeits the

availability of federal habeas review if his lawyer fails to

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

"independent and adequate" state procedural requirements unless




                                 8
the defendant can show "cause" for his counsel's state default

and "prejudice" resulting from it.

            The superior court held that Reynolds had failed to

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

regarding his federal due process claims, and therefore ruled

that Conyers barred Reynolds from raising the claims in state

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

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

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

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

Jan. 16, 1985).

             Reynolds filed pro se a second Rule 35 motion raising

federal constitutional claims of ineffective assistance of

counsel.     The superior court denied Reynolds' second Rule 35

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

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

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

             Reynolds later filed a pro se petition for a writ of

habeas corpus in the United States District Court for the

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

raised both unfair trial and ineffective assistance of counsel

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

reference to Reynolds' confessions and the failure of the trial

judge sua sponte to instruct the jury to disregard that
reference.     The district court referred the case to a magistrate

judge who recommended that Reynolds' unfair trial claims be

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


                                  9
"independent and adequate state ground" test of Wainwright v.

Sykes, supra.   The magistrate judge recommended that Reynolds'

ineffective assistance claims be rejected on their merits.       The

district court adopted the magistrate's recommendations, and

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

          Reynolds appealed the district court's dismissal of his

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

Reynolds' unfair trial claims were procedurally barred.      The

Delaware courts' determination that Reynolds had forfeited his

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

independent and adequate state procedural ground of default as

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

found that the Delaware courts had subjected Reynolds to a new

contemporaneous-objection requirement when they reviewed his Rule

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

Reynolds could have contemporaneously objected.0     While the

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

          To decide whether Conyers provides an
          "independent and adequate" basis for
          precluding federal habeas review of
          Reynolds's claims, we turn to the three
          factors upon which the Supreme Court relied
          to so decide in Sykes, to wit: whether the
          state procedural requirement is stated in
          "unmistakable terms," whether the state
          courts have refused to review the claims on
          the merits, and whether the state courts'
          refusal in this instance is "consistent" with
          other state decisions. Id. at 85-86, 97 S.
          Ct. at 2505-06.

               Notwithstanding the Delaware courts'
          refusal to consider the merits of Reynolds's
          claims, we find that the Conyers decision


                                  10
Delaware courts might be free to impose a surprise forfeiture

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

compliance with federal law, we held that state forfeiture-by-

surprise was an inadequate ground for precluding federal

collateral review.   We also found that Reynolds had not exhausted

his available state remedies regarding his ineffective assistance

claims.   Accordingly, we reversed the district court's

disposition of both Reynolds' unfair trial claims and his

ineffective assistance claims.   We remanded for further

proceedings consistent with our opinion.   In our opinion, we

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

unexhausted ineffective assistance claims, the district court


          does not constitute an "independent and
          adequate state procedural ground" barring
          federal courts from habeas review of the due
          process claim raised here. No specific
          Delaware procedural rule governs, in
          "unmistakable terms," Sykes, 433 U.S. at 85,
          97 S. Ct. at 2505, the precise claim raised
          in Reynolds's Rule 35 motion, namely, that
          due process was denied by the prosecutor's
          over-reaching coupled with the absence of the
          judge's sua sponte limiting instruction or
          declaration of mistrial. In addition, the
          Delaware courts' invocation of Conyers is not
          consistent with other state authority. Thus,
          of the three elements that could support a
          conclusion that this state procedural
          requirement is "adequate" to preclude federal
          review, two are blatantly missing here.

See also id. at 720 ("Whether enunciated by court rule or case
law, there is no Delaware procedural rule on point, and therefore
Reynolds violated none."); id. at 722 ("Even if we were to
conclude that a new Delaware procedural rule was created by
Conyers, we could not also conclude that the rule barred
collateral federal review, where it was applied to claims [like
Reynolds' claims] for the first time in the instant case.").


                                 11
"could then proceed to the merits" of Reynolds' unfair trial

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

          On remand, Reynolds dropped his ineffective assistance

claims, and the district court once again referred his unfair

trial claims to a magistrate judge.   This time the magistrate

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

recommended that the claims be dismissed.     Reynolds v.

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

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

that it was barred from considering the merits of Reynolds'

unfair trial claims.   This time the district court ruled that

Reynolds' habeas petition was barred under the "deliberate

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

no occasion to address directly in Reynolds I.

          The district court interpreted Fay to require that

Reynolds' federal due process claims be barred from federal

habeas review if, for strategic reasons, Reynolds' counsel

deliberately bypassed the opportunity to object at trial and on

appeal to the Deputy Attorney General's opening statements and

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

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

was bound by what it characterized as the Delaware Superior

Court's "factual determination that Reynolds' counsel

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

Reynolds v. Ellingsworth, No. 86-142-JRR, 1992 WL 404453, at *8
(D. Del. Dec. 31, 1992).   Therefore, the district court held,

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


                                12
to the prosecution's opening statement, Reynolds is precluded

from mounting a due process challenge to the effect of the

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

          Reynolds now appeals the district court's second

refusal to consider the merits of his due process claims.


                               II.

          Our legal analysis is premised on two threshold

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

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

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

Reynolds' counsel made strategic decisions not to move for a

mistrial or ask for a curative instruction.

          There is substantial support for the view that the

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

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

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

"deliberate bypass" rule of Fay.0    If Fay is currently without

0
In creating and applying the "cause and prejudice" standard in
Sykes and Carrier, the Supreme Court "limited Fay to its facts."
Coleman, 111 S. Ct. at 2563, 2564. In Coleman, the Supreme Court
went further, stating:

               In Harris [v. Reed, 489 U.S. 255
          (1989)], we described in broad terms the
          application of the cause and prejudice
          standard, hinting strongly that Fay had been
          superseded . . . .

               We now make it explicit: In all cases in
          which a state prisoner has defaulted his
          federal claims in state court pursuant to an
          independent and adequate state procedural


                                13
independent significance, of course, the judgment of the district

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

Since we conclude that Reynolds' petition would merit review

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

if Fay retains independent vitality, we will assume arguendo that

the district court properly looked to Fay as a relevant

precedent.

          With respect to the factual predicate for our decision,

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

the superior court in the first Rule 35 proceeding was to

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

under Conyers and Sykes.   Reynolds maintained in that proceeding

that the ineffective assistance of his counsel with respect to

the confession references provided "cause" under Conyers and

          rule, federal habeas review of the claims is
          barred unless the petitioner can demonstrate
          cause for the default and actual prejudice as
          a result of the alleged violation of federal
          law, or demonstrate that failure to consider
          the claims will result in a fundamental
          miscarriage of justice. Fay was based on a
          conception of federal/state relations that
          undervalued the importance of state
          procedural rules.

                              * * *

          . . . By applying the cause and prejudice
          standard uniformly to all independent and
          adequate state procedural defaults, we
          eliminate the irrational distinction between
          Fay and the rule of cases like Francis[v.
          Henderson, 425 U.S. 536 (1976)], Sykes,
          Engle[v. Isaac, 456 U.S. 107 (1982)], and
          Carrier.
111 S. Ct. at 2564-65.


                                14
Sykes to excuse his failure to make a contemporaneous objection.

The superior court held that Reynolds had not satisfied his

burden of proof on the cause issue and characterized the record

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

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

neither a deliberate strategic decision nor an inadvertent

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

counsel's performance has failed to meet the Sixth Amendment

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

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

its holding as follows:


          Defendant contends that the reason for the
          failure of his attorneys to raise the issue
          at trial or at the appeal stage was either
          inadvertence or lack of knowledge of the
          applicable law. I do not find that those
          contentions have been proved by this record.

               4. Considering the experience and
          competence of defendant's attorneys and the
          quality of the defense made in this case, I
          find that the situation here falls squarely
          within the language of Engle that "[c]ounsel
          might have overlooked or chosen to admit
          [omit] respondents' due process argument
          while pursuing other avenues of defense".
          Under the reasoning of Engle the situation
          existing here does not constitute cause
          justifying relief from the failure to make
          timely objection.

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

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

          In the course of his opinion, the superior court judge

also described the testimony of defense counsel that we have



                               15
summarized above.   That description included the following

observations:
          It is clear from the testimony of the
          defendant's attorneys that they viewed the
          announcement of the Deputy Attorney General
          that he would not seek to introduce the
          confession in evidence as a substantial
          victory and that they desired to push forward
          to conclude the trial because they then
          anticipated a verdict in defendant's favor.
          Defendant's lead trial counsel testified that
          he did not seek an admonition from the Court
          for the jury to disregard the Deputy Attorney
          General's prior reference to the confession
          because it would only focus attention on the
          prior references. With reference to his not
          seeking a mistrial, he testified that he had
          had no recollection of his mental processes.
          However, he testified, based upon his
          experience, that after two or three days of
          trial a jury forgets what was said in an
          opening statement. . . . Defendant's other
          attorney . . . testified that . . . he felt
          that raising [the prosecutor's reference to
          the confessions] would detract from the more
          meritorious arguments which were the thrust
          of the appeal.


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

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

          Both the Supreme Court of Delaware and the district

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

counsel made deliberate strategic decisions not to ask for a jury

instruction or a mistrial.   The district court regarded this

factual finding as supported by the evidence and therefore

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

          We have no difficulty in concluding that the evidence

before the superior court would have supported a factual finding

that strategic decisions were made.   That hypothesis would seem


                                16
to be the most reasonable one given the general quality of

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

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

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

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

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

process objections later.   If counsel deliberately chose this

course, it would clearly have been permissible trial strategy not

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

instruction.

          While we are thus confident that the evidence before

the Superior Court would support a factual finding of strategic

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

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

that such decision making occurred.   Before the presumption

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

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

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

While the issue found crucial by the district court was whether

deliberate strategic decisions were made, the holding of the

superior court was that Reynolds' counsel either overlooked the

issue or made a strategic decision, neither of which would

constitute cause under Conyers and Sykes.   While we acknowledge

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

it can be inferred that it believed strategic decisions were

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




                                17
and its focus on the Conyers cause issue make the district

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

          Nevertheless, we will assume, consistent with the

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

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

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

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

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

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

strategic decisions were made because the district court's

refusal was inappropriate even if strategic decisions were made.

          While we thus accept that Reynolds' counsel made

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

an instruction, we emphasize before proceeding with our legal

analysis that neither the superior court nor any other court has

found that Reynolds' counsel made a strategic decision to forego

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

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

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

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

jury instruction (or even the failure to raise the confession

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


0
Because the district court on remand will be required to reach
the merits of Reynolds' unfair trial due process claims, and
because Reynolds has withdrawn his constitutionally ineffective
assistance claims, we do not foresee that the district court will
again be required to decide whether the superior court "resolved"
the "strategic decision" issue within the meaning of § 2254(d)(1)
and we express no opinion on that issue.


                                 18
process claims in a state post-conviction relief proceeding under

Rule 35.
                               III.

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

had been convicted on the basis of a coerced confession in

violation of the Fifth and Fourteenth Amendments.     He had not

appealed his conviction, however, and he was subsequently denied

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

The Supreme Court held that he was entitled to federal habeas

review of his contention that he was being confined in violation

of the federal Constitution.

           The Court in Fay viewed its task as determining "the

proper accommodation of [the] great constitutional privilege [of

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

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

to grant relief from unconstitutional state confinement where

state courts have rejected or refused to consider the

petitioner's constitutional argument.     The limitations which it

recognized on the appropriate exercise of that power were

grounded in federalism and the necessity of comity between the

federal and state court systems.

           The Court noted the exhaustion doctrine codified in 28

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

system of government for a federal district court to upset a

state court conviction without an opportunity to the state courts

to correct a constitutional violation."    Id. at 419-20, quoting
from Darr v. Burford, 339 U.S. 200, 204 (1950).     The Fay court


                                19
held, however, that the exhaustion doctrine of § 2254 barred

federal review only when there were state remedies still

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

U.S. at 434-35.

          The Fay court also held that the "independent and

adequate state ground" doctrine that barred direct review by the

Supreme Court of state judgments having a basis in state law

should not be applied to bar habeas review in federal district

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

state procedural rule and was thereby barred from further state

review of a federal constitutional issue did not alone foreclose

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

           The Fay court nevertheless did recognize that there

were situations not covered by the exhaustion doctrine in which

the "exigencies of federalism" counselled against federal habeas

review:
          [T]he exigencies of federalism warrant a
          limitation whereby the federal judge has
          discretion to deny relief to one who has
          deliberately sought to subvert or evade the
          orderly adjudication of his federal defenses
          in the state courts.

                            * * *

          We therefore hold that the federal habeas
          judge may in his discretion deny relief to an
          applicant who has deliberately bypassed the
          orderly procedures of the state court and in
          doing so has forfeited his state remedies.

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

          The Fay court's conclusion with regard to the
"independent and adequate state ground" doctrine was subsequently


                                20
abandoned in Wainwright v. Sykes, 433 U.S. 72 (1977), because it

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

undervalues the importance of state procedural rules."    Coleman

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

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

noncompliance with a state procedural requirement, comity

counsels that the independent and adequate state ground doctrine

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

absence of a showing of "cause and prejudice."
          Just as in those cases in which a state
          prisoner fails to exhaust state remedies, a
          habeas petitioner who has failed to meet the
          State's procedural requirements for
          presenting his federal claims has deprived
          the state courts of an opportunity to address
          those claims in the first instance. . . . The
          independent and adequate state ground
          doctrine ensures that the States' interest in
          correcting their own mistakes is respected in
          all federal habeas cases.

Coleman, 111 S. Ct. at 2555.

            With this background, we turn to the "deliberate

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

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

federal courts after we had determined that such access was not

barred by the independent and adequate state ground doctrine. The

important point for present purposes is that, like the doctrines

of exhaustion and independent and adequate state ground, the

deliberate bypass doctrine finds its justification in comity

concerns.    A petitioner should not be able to secure federal

relief if he has deliberately deprived the state judicial system

of an opportunity to correct the alleged constitutional error.


                                 21
As articulated by the Supreme Court in Fay, the deliberate bypass

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

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

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

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

applicant . . . understandingly and knowingly forewent the

privilege of seeking vindication of his federal claims in the

state courts."   Id.

          Fay's rationale for the deliberate bypass doctrine is

inapplicable to the facts of this case.   Reynolds did not

understandingly and knowingly forego the privilege of seeking to

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

counsel been found to have made a decision to bypass state

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

deprived the Delaware courts of the opportunity to pass on his

constitutional contention.   On the contrary, Reynolds tried to

raise his federal claims in Delaware Superior Court and in the

Delaware Supreme Court pursuant to Delaware's collateral review

procedures.    If his trial and appellate counsel made a strategic

decision to bypass state trial and appellate procedures, it was

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

forward in the hope of an acquittal by the jury and raise the due
process argument in a Rule 35 proceeding.

          Because Reynolds' counsel could not have anticipated

that their failure to raise the federal due process claims at

trial and on direct review would prevent Reynolds from raising

the claims in state collateral review proceedings, they could not


                                 22
have deliberately forfeited Reynolds' chance at state review of

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

the state courts indicate that a federal constitutional claim is

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

disrespect for the State by entertaining the claim."     County

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

          The most helpful Supreme Court precedent in this

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

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

possessing heroin.    He subsequently sought federal habeas review

of the constitutionality of the search of his person that

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

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

offense in a state court waives his right to federal habeas

corpus review of any constitutional issues other than those

involving the plea itself.   The Supreme Court recognized that

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

the deliberate bypass doctrine of Fay:
          A defendant who chooses to plead guilty
          rather than go to trial in effect
          deliberately refuses to present his federal
          claims to the state court in the first
          instance. McMann v. Richardson, supra, at
          768. Once the defendant chooses to bypass
          the orderly procedure for litigating his
          constitutional claims in order to take the
          benefits, if any, of a plea of guilty, the
          State acquires a legitimate expectation of
          finality in the conviction thereby obtained.
          Cf. Fay v. Noia, 372 U.S. 391, 438.

          The Supreme Court refused to apply the deliberate

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



                                 23
allowed a defendant to plead guilty and ascertain what sentence

he would receive and thereafter pursue all of his constitutional

claims in the state appellate process.   The Supreme Court held

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

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

courts, there is no federal justification for denying federal

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

petitioner has complied with the procedure required by state law,



0
In the name of federalism, the dissent insists that concern for
a "State's interest in the finality of its criminal judgments"
(Dis. typescript op. at 6) justifies a federal rule precluding
federal habeas review even in the absence of a state procedural
default. Lefkowitz, as we read it, teaches that federalism
requires federal courts to permit a state to determine how
"final" its own judgments will be. New York had there decided
that a New York criminal judgment based on a guilty plea would
not preclude a subsequent challenge in the New York courts on
constitutional grounds. The respondent urged a federal rule that
would give greater finality to New York criminal judgments in
federal habeas courts than New York had chosen to give its
criminal judgments in its own courts. The Supreme Court rejected
this suggestion, holding that judgments based on guilty pleas
should be given the same degree of finality in federal habeas
courts as the state entering the judgment would give it.

          Because all human institutions are fallible, no
judicial system of which we are aware has chosen to insist on
absolute finality. Each judicial system strikes a balance
between the stability concerns served by judgments that preclude
further proceedings and the justice concerns served by rules
permitting alleged injustices to be reviewed after judgment is
entered. A state's position with respect to the necessity for
contemporaneous objections necessarily reflects its judgment
about how these conflicting concerns should be reconciled. The
creation of a federal contemporary objection rule in this case,
as urged by the dissent, would give Reynolds' criminal judgment
greater finality in a federal habeas court than Delaware had
chosen to give its judgments in its own courts at the time of
Reynolds' trial. We believe this would be inconsistent with the
federalism concerns of Fay and Lefkowitz.


                               24
his deliberate decision to avail himself of the benefits of

pleading guilty should not bar federal review.

           The Supreme Court stressed in Lefkowitz that applying

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

unwary" because defendants could understandably believe they had

the option of availing themselves of the benefits of a guilty

plea while preserving their right to appellate review of their

constitutional issues and might only later discover that they had

inadvertently waived their right to federal habeas review.

           We read Lefkowitz to hold that Fay's deliberate bypass

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

habeas review in the absence of a procedural default under state

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

as New York law afforded state appellate review despite a guilty

plea, Delaware law afforded state habeas review despite the

absence of a contemporary objection.   Since Reynolds, like

Newsome, complied with the procedural requirements of the courts

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

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

engaged in a deliberate bypass of state process.   To hold

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

the unwary" than a contrary result in Lefkowitz would have
fashioned from New York law.0

0
Four years after Lefkowitz, in County Court of Ulster County v.
Allen, 442 U.S. 140 (1979), the Supreme Court considered the case
of three habeas petitioners who complained that they had
been convicted of firearms possession in state court on the basis
of an unconstitutional state evidentiary presumption. Only after
they had been convicted did the petitioners raise the federal


                                25
          We believe Lefkowitz's reading of Fay is inconsistent

with the interpretation which the Court of Appeals for the

Seventh Circuit has given to the deliberate bypass doctrine.   In

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


issue in state court. In the ensuing federal habeas proceeding,
the respondent argued that review was precluded by the deliberate
bypass doctrine. Id. at 146. The Supreme Court ruled that the
petitioners were entitled to federal habeas recourse because the
state had never adopted a clearly applicable contemporaneous-
objection policy. Id. at 150. The Court expressed no concern
that the petitioners' failure to raise their federal objection
until after the jury's verdict was announced might actually have
been a "deliberate" or "strategic" decision by the petitioners.
It saw comity as the sole relevant issue and rejected the
respondent's position because "if neither the state legislature
nor the state courts indicate that a federal constitutional claim
is barred by some state procedural rule, a federal court implies
no disrespect for the State by entertaining the claim." Id. at
154.

          In Lefkowitz and Ulster County, state appellate courts
had addressed the petitioners' federal claims on their merits.
This does not distinguish Lefkowitz and Ulster County from this
case, however. Under the federal habeas law we applied in
Reynolds I, where a respondent urges that there has been a
procedural default, the claim must be treated as one involving no
procedural default if, inter alia, (1) the state procedural
requirement has not been enunciated in "unmistakable terms," (2)
the state courts have not insisted on that requirement in
petitioner's case and have reached the merits, or (3) the state
courts have insisted on the requirements in petitioner's case but
in doing so have acted in a manner inconsistent with other state
cases. See footnote 4, supra. In cases where there has been no
procedural default, or any alleged default that may have occurred
does not meet these three criteria, there is no independent and
adequate state law ground for the judgment. The absence of an
independent and adequate state law ground in Reynolds' case is
precisely the reason we permitted his habeas petition to go
forward in Reynolds I, and it is what makes his situation
equivalent to that of the petitioners in Lefkowitz and Ulster
County.




                               26
836 (7th Cir. 1985), cert. denied, 474 U.S. 858 (1985), the court

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

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

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

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

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

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

candidly admitted during his federal habeas hearing that he was

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

fact that his trial judge was committing reversible error by

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

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

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

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

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

if no prejudice was shown.

           The Brownstein court began by quoting Fay's holding:

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

applicant who has deliberately by-passed the orderly procedure of

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

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

proceeded to ignore this holding, finding that the petitioner was

barred from federal habeas review under Fay by his "strategic

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




                                  27
procedure of the state courts" nor "forfeited his state

remedies."0   We respectfully decline to follow suit.

          We have found no Supreme Court case and no Court of

Appeals case other than Brownstein that recognizes or gives

content to the concept of "strategic behavior" outside the

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

0
 We perceive some irony in the fact that Brownstein finds a
"strategic behavior" bar implicit in Fay. In Fay, it will be
recalled, the state procedural default was a failure to assert
the coerced confession claim in a direct appeal. Noia made a
deliberate decision not to appeal in part because he had not
received a death sentence and feared he might receive one if
convicted after a new trial. Only fourteen years later, after
the state's ability to retry him in the absence of the confession
had been impaired, did he seek collateral relief, first from the
state and then from the federal court. The Supreme Court
recognized that Noia had obtained a benefit from his procedural
default. His strategic behavior was of no moment, however,
because "[u]nder no reasonable view can the State's version of
Noia's reason for not appealing support an inference of
deliberate by-passing of the state court system." 372 U.S. at
439 (emphasis supplied).
0
 All but one of the habeas cases the district court cited as
authority for refusing to entertain Reynolds' habeas petition
involved bars to federal habeas review premised on state
procedural default, forfeiture rules which the defendants and/or
their counsel were or should have been aware of, or,
equivalently, a petitioner's deliberate abandonment of state
recourse in favor of collateral federal review. See Reed v.
Ross, 468 U.S. 1, 8 & n.5, 10 (1984) ("Under North Carolina law,
exceptions to jury instructions must be made after trial if they
are to be preserved for appellate review, and errors that could
have been raised on appeal may not be raised for the first time
in postconviction proceedings."); Wainwright v. Sykes, 43 U.S. at
76 n.5 (Florida Rule Crim. Proc. 3.190(i) imposed a
"contemporaneous objection rule"); Henry v. Mississippi, 379 U.S.
443, 445, 448 & n.3 (1965) (petitioner failed to comply with a
Mississippi contemporaneous-objection requirement; procedural
defaults in state proceedings do not prevent vindication of
federal rights in federal court except "where state rule is a
reasonable one and clearly announced to defendant and counsel");
Beaty v. Patton, 700 F.2d 110 (3d Cir. 1983) (rather than
petition Pennsylvania Supreme Court for allocatur, defendant
petitioned federal court for writ of habeas corpus); United


                                28
would be unwise and unfair to impose upon defense counsel the

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

right to federal habeas review, not only whether each tactical

trial choice is permissible under state law but also whether it

may ultimately be considered by a federal court to constitute

"strategic behavior."

          Finally, we believe application of the Seventh

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

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

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

-- bar federal habeas review through the creation and retroactive

application of a contemporaneous objection rule Reynolds' counsel

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

impose a "strategic behavior" restriction on access to federal

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

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


States ex rel. Abdul-Sabur v. Cuyler, 653 F.2d 828 (3d Cir.
1981), aff'g 486 F. Supp. 1141, 1162 & n.31 (E.D. Pa. 1980)
(Becker, Dist. J.) ("classic example of waiver"; "under
Pennsylvania law, contemporary-objection is required to preserve
an issue for appeal"), cert. denied, 454 U.S. 1088 (1981); Green
v. Rundle, 452 F.2d 232, 236-37 (3d Cir. 1971) (under
Pennsylvania law, motions to sever multiple indictments and
motions regarding jury instructions must be made on timely
basis).

          The final habeas case relied upon by the district court
is Estelle v. Williams, 425 U.S. 501 (1976), which we understand
to have granted habeas review and to have addressed the merits of
the petitioner's claim. Estelle ruled that, because the
petitioner had not asked to wear civilian clothing during his
state trial, the state could not have "compelled" him to be tried
in prison clothing in violation of the Fourteenth Amendment. 425
U.S. at 512-13.


                                29
in Reynolds I, that states may not bar federal habeas review

under the independent and adequate state ground doctrine of Sykes

by unfairly applying a new contemporaneous objection rule

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

create and retroactively apply a contemporaneous objection rule

of its own.0




0
Cf. Ford v. Georgia, 111 S. Ct. 850, 858 (1991) (retroactively
applied state procedural-default rule not adequate to preclude
direct review by U.S. Supreme Court of equal protection attack on
state court judgment).


                               30
                              IV.

          The judgment of the district court will be reversed,

and this proceeding will be remanded to the district court for

consideration of the merits of Reynolds' petition.




                               31
George L. Reynolds v. Jack C. Ellingsworth, Warden;
Charles M. Oberly, III, No. 93-7106

SLOVITER, Chief Judge, dissenting.
          Last term in Brecht v. Abrahamson, 113 S. Ct. 1710,

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

state court convictions should be challenged primarily through

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

Great Writ of habeas corpus is to be reserved for extraordinary

situations:
          The principle that collateral review is
          different from direct review resounds
          throughout our habeas jurisprudence. Direct
          review is the principal avenue for
          challenging a conviction. "When the process
          of direct review . . . comes to an end, a
          presumption of finality and legality attaches
          to the conviction and sentence. The role of
          federal habeas proceedings, while important
          in assuring that constitutional rights are
          observed, is secondary and limited. Federal
          courts are not forums in which to relitigate
          state trials."

               In keeping with this distinction, the
          writ of habeas corpus has historically been
          regarded as an extraordinary remedy, "a
          bulwark against convictions that violate
          'fundamental fairness.'" "Those few who are
          ultimately successful [in obtaining habeas
          relief] are persons whom society has
          grievously wronged and for whom belated
          liberation is little enough compensation."

Id. at 1719 (citations omitted).

          Significantly, the Court also noted that "it hardly

bears repeating that 'an error that may justify reversal on

direct appeal will not necessarily support a collateral attack on

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

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


                                32
prominence of the trial itself' and at the same time encourages

habeas petitioners to relitigate their claims on collateral

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

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

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

supported a factual finding that strategic decisions were made."

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

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

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

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

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

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

because I believe that the extraordinary remedy of habeas corpus

is not meant to grant relief to someone who deliberately and

strategically declined the opportunity to assert his rights

during his state trial and direct appeal.



                                 I.

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

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

decisions in Wainwright v. Sykes, 433 U.S. 72 (1977), Murray v.
Carrier, 477 U.S. 478 (1986), and Coleman v. Thompson, 111 S. Ct.

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

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

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

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




                                 33
of Fay underlies my approach to this case, I discuss it

notwithstanding the majority's concession.

            One of the two principal prongs of the Fay holding was

that a state procedural default did not constitute a bar to

federal court review under the federal habeas statutes comparable

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

and independent state law ground.     The other prong gave

discretion to the federal courts to deny relief to a petitioner

who had deliberately bypassed the orderly procedure of the state

courts and, in so doing, forfeited available state court

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

            Fourteen years later, after gradual erosion of the

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

reinvigorated the independent and adequate state ground basis of

precluding of federal habeas review because of procedural

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

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

The suggestion here by the majority that a procedural default may

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

the context in which the Sykes rule replaced that of Fay.
            It is no surprise that the Court itself has

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

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

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

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

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

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


                                 34
rendering state contemporaneous objection rules ineffective to

bar review of underlying federal claims in federal habeas

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

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

background, the principles and purposes behind habeas corpus, the

policy against relitigation of matters that have been concluded,

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

Supreme Court would disapprove the continued vitality of the Fay

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

where this court held the "cause and prejudice" test

unavailable.0

                                 II.

          One of the bases for the current habeas jurisprudence

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

Brennan and Marshall, that the Fay test was not sufficiently

respectful of the states' interests in their procedural default

rules.   The Court explained:

0
Although the majority accepts without discomfort our holding in
Reynolds v. Ellingsworth (Reynolds I), 843 F.2d 712, 719 (3d
Cir.), cert. denied, 488 U.S. 960 (1988), I cannot avoid some
comment on the curious nature of that decision. As the majority
notes, the Superior Court of Delaware, affirmed by the Supreme
Court of Delaware, held that Reynolds had waived his right to
object to the prosecutor's opening comments and the court's
failure to sua sponte give a curative instruction because he
failed to make a contemporaneous objection as required by the
Delaware Supreme Court's earlier opinion in Conyers v. State, 422
A.2d 345, 346 (Del. 1980) (per curiam). Nonetheless, despite the
fact that in this very case the Delaware Supreme Court
acknowledged that Conyers had enunciated such a rule, this court
held that the absence of a governing "specific Delaware
procedural rule" precluded our finding that Conyers constituted
an adequate and independent state procedural ground supporting
default.


                                  35
                We think that the rule of Fay v. Noia,

           broadly stated, may encourage "sandbagging"

           on the part of defense lawyers, who may take

           their chances on a verdict of not guilty in a

           state trial court with the intent to raise

           their constitutional claims in a federal

           habeas court if their initial gamble does not

           pay off.

433 U. S. at 89.

           The Court again stressed the significance of state

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

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

petitioner's negligent failure to develop material facts in the

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

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

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

to comply with a state contemporaneous-objection rule, stating

that the state rule deserved more respect than the Fay standard

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

referred to its decision the year before in Coleman v. Thompson,
111 S. Ct. 2546 (1991), where "we described Fay as based on a

conception of federal/state relations that undervalued the

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

1718-19.   In Coleman, the Court had stated:
           The cause and prejudice standard in federal
           habeas evinces far greater respect for state
           procedural rules than does the deliberate
           bypass standard of Fay. These incompatible
           rules are based on very different conceptions


                                36
          of comity and of the importance of finality
          in state criminal litigation.

111 S. Ct. at 2563.

          A fortiori, habeas impinges at the very heart of
federalism principles.   The majority opinion's view that the

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

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

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

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

state procedural default because the case arose in the context of

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

prior federal habeas petition), the Court recognized that

federalism concerns are still implicated.    It commented that "the

doctrines of procedural default and abuse of the writ are both

designed to lessen the injury to a State that results through

reexamination of a state conviction on a ground that the State

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

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

in the finality of its criminal judgments."    Id.

          Admittedly in this case there may not have been a

concerted effort to bypass all state review in favor of federal

court review, but federalism, although an important rationale for

habeas jurisprudence, is not the only consideration.    The

emphasis in McClesky on the significance of finality of criminal

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

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

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



                                  37
S. Ct. at 1718 ("The writ strikes at finality of a state criminal

conviction, a matter of particular importance in a federal

system.").

             Moreover, the procedural default rules, including as

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

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

habeas judge may in his discretion deny relief to an applicant

who has deliberately bypassed the orderly procedure of the state

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

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

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

                                 IV.

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

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

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

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

the majority concludes that despite these findings Reynolds'

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

a constrictive approach to "deliberate bypass" is inconsistent

with the Fay Court's own explanation of what it encompasses:
          The classic definition of waiver enunciated
          in Johnston v. Zerbst, 304 U.S. 458, 464--"an
          intentional relinquishment or abandonment of
          a known right or privilege"--furnishes the
          controlling standard. If a habeas applicant,
          after consultation with competent counsel or
          otherwise, understandingly and knowingly
          forewent the privilege of seeking to
          vindicate his federal claims in the state
          courts, whether for strategic, tactical, or
          any other reasons that can fairly be
          described as the deliberate by-passing of
          state procedures, then it is open to the


                                  38
          federal court on habeas to deny him all
          relief if the state courts refused to
          entertain his federal claims on the merits.

Fay, 372 U.S. at 439.0
          No Supreme Court decision supports the majority's view

that Reynolds "strategic choices" did not constitute a

"deliberate bypass" merely because Reynolds could have believed

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

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

the only court of appeals to have considered the issue decided

that a strategic decision not to raise an objection constituted a

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

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

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

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

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

0
 Notwithstanding the language of Fay requiring that the bypass be
personal, and not that of the defendant's attorney, later cases
have held that a litigant is bound by the conduct of his
attorney. See Henry v. Mississippi, 379 U.S. 443, 451 (1965)
("[C]ounsel's deliberate choice of the strategy would amount to a
waiver binding on petitioner and would preclude him from a
decision on the merits of his federal claim either in the state
courts or here."); see also McClesky, 499 U.S. at 494 ("Attorney
error short of ineffective assistance of counsel . . . does not
constitute cause and will not excuse a procedural default.");
Murray v. Carrier, 477 U.S. 478, 488 (1986) ("So long as a
defendant is represented by counsel whose performance is not
constitutionally ineffective . . . we discern no inequity in
requiring him to bear the risk of attorney error that results in
a procedural default."); see generally Link v. Wabash R.R. Co.,
370 U.S. 626, 633-34 (1962) ("Petitioner voluntarily chose this
attorney as his representative in the action, and he cannot now
avoid the consequences of the acts or omissions of this freely
selected agent.").
0
 We note in passing that there was no testimony by counsel that
they had, in fact, adopted the plan hypothesized by the majority.


                                39
"deliberately chose to have two chances at acquittal," id. at

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

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

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

state court finding of procedural default to which the Sykes

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

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

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

found a deliberate bypass under Fay.

           The facts are strikingly similar to those here.    In

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

inapplicable.   The majority's scenario for the strategy of

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

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

that the reasoning of the Seventh Circuit is of particular

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

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

Brownstein court looked to equitable considerations under which

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

disentitle him to the relief he seeks.'"   Id. (quoting Fay, 372
U.S. at 438).   The Court thus held that "[i]n our judgment, [Fay

v.] Noia goes beyond procedural defaults and allows federal

judges to deny habeas relief whenever the petitioner's strategic

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

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

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

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


                                 40
and in this case is enough, to call that standard into play." Id.

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

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

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

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

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

federal relief."     Id. at 844.

            The majority, by disapproving the result reached by the

Seventh Circuit, thus creates a circuit split.     Although it

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

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

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

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

the petitioners' claims notwithstanding the claimed procedural

defaults.    Both Supreme Court opinions gave that as a significant

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

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

held that if the state courts have entertained the federal

constitutional claims on the merits in a subsequent proceeding,

notwithstanding the deliberate bypass, the federal courts have no

discretion to deny the applicant habeas relief to which he is

otherwise entitled.") (citations omitted).

            The majority relies on the statement in Allen that "if
neither the state legislature nor the state courts indicate that

a federal constitutional claim is barred by some state procedural

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

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


                                   41
with the majority's position is that the state courts did

indicate that they viewed Reynolds' federal constitutional claim

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

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

courts' interpretation of their own procedural rule, see dissent

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

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

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

when they did not.

            It is important to note that notwithstanding the

majority's skepticism that trial counsel "deliberate bypassed"

the claim relating to the opening statement in the state trial

court, the record is clear that appellate counsel made a

deliberate decision not to raise the issue on direct appeal for

tactical purposes.     He testified:


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

            A.    The reason it was not raised on appeal was
                  because, as far as I am concerned, the better
                  grounds for appeal were the interpretation of the
                  stipulation regarding the truth serum and also the
                  very good ground of the newly-discovered evidence
                  when we had the investigating officer saying he
                  believed the wrong man had been convicted.


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

Allen, where counsel raised the issue in the state appeals

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

cited by the majority as governing here.     As Justice Brennan

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


                                   42
electrocution.    Thus, he stated, "under the circumstances [Noia's

choice] cannot realistically be deemed a merely tactical or

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

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

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

risk incurred by taking an appeal or otherwise foregoing a

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

Each case must stand on its facts."    Id.

          Essentially, the "deliberate bypass" by Reynolds'

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

curative effect gave the district court the discretion to decline

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

was reasonable.    The Supreme Court has repeatedly warned against

using habeas to "give litigants incentives to withhold claims for

manipulative purposes and [] establish disincentives to present

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

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

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

petitioners to relitigate their claims on collateral review");

Keeney, 112 S. Ct. at 1718 (Habeas review "may give litigants
incentives to withhold claims for manipulative purposes.").

          There are powerful reasons to discourage a defendant

from bypassing opportunities to object during his trial.     As the

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

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

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




                                  43
court's attention so the trial judge will have an opportunity to

remedy the situation."

          One of the goals of procedural default rules is to

encourage full factual development in state court.   See Coleman,

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

courts often occupy a superior vantage point from which to

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

referred to expressly in Sykes where the Court noted the benefits

of rules requiring defendants to make their objections during

trial:
          A contemporaneous objection enables the
          record to be made with respect to the
          constitutional claim when the recollections
          of witnesses are freshest, not years later in
          a federal habeas proceeding. It enables the
          judge who observed the demeanor of those
          witnesses to make the factual determinations
          necessary for properly deciding the federal
          constitutional question. . . .

               A contemporaneous-objection rule may
          lead to the exclusion of the evidence
          objected to, thereby making a major
          contribution to finality in criminal
          litigation . . . the jury may acquit the
          defendant, and that will be the end of the
          case; or it may nonetheless convict the
          defendant, and he will have one less federal
          constitutional claim to assert in his federal
          habeas petition. . . . An objection on the
          spot may force the prosecution to take a hard
          look at its hole card.

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

          Perhaps the Court gave the most succinct summary of the

rationale for its habeas jurisprudence in Sykes where it stated:

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




                                44
rather than a 'tryout on the road' for what will later be the

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

           On remand from this court, the district court made the

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

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

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

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

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

concluded that Reynolds' attorneys chose not to object to the

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

jury would forget the references and eventually find Reynolds not

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

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

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

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

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

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

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

          I agree with the district court.   Reynolds took his

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

behavior that disentitles him to habeas relief.




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