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


5-17-2000

Hameen v. Delaware
Precedential or Non-Precedential:

Docket 96-9007




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"Hameen v. Delaware" (2000). 2000 Decisions. Paper 98.
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Filed May 17, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-9007

ABDULLAH TANZIL HAMEEN, a/k/a
CORNELIUS FERGUSON

v.

STATE OF DELAWARE

CORNELIUS E. FERGUSON, JR.,
a/k/a Abdullah Tanzil Hameen,

       Appellant

On Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 96-00306)
District Judge: Honorable Joseph J. Lonogobardi

Argued January 28, 1998

BEFORE: MANSMANN, GREENBERG, and MCKEE,
Circuit Judges.

Reargued February 22, 2000

BEFORE: GREENBERG, MCKEE, and RENDELL,
Circuit Judges.

(Filed: May 17, 2000)
       John S. Malik (argued)
       100 E. 14th Street
       Wilmington, DE 19801

       Joseph R. Slights, III
       Kent A. Jordan (argued)
       Morris, James, Hitchens & Williams
       222 Delaware Avenue, 10th Floor
       P.O. Box 2306
       Wilmington, DE 19899

        Attorneys for Appellant

       Loren C. Meyers (argued)
       Chief of Appeals Division
       Timothy J. Donovan, Jr.
       William E. Molchen
       Thomas E. Brown
       Deputy Attorneys General
       Department of Justice
       820 North French Street
       Wilmington, DE 19801

        Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. BACKGROUND

This matter comes before the court on an appeal by
Cornelius Ferguson, a/k/a Abdullah Tanzil Hameen, from
the denial of relief in this habeas corpus case. We have
considered each of Ferguson's contentions, and for the
reasons that follow, we will affirm the district court's order.

In 1992, a Delaware state jury convicted Ferguson of two
counts of first-degree murder as well as other charges
resulting from a single homicide and robbery. After a
penalty hearing, the jury unanimously found that the state
established three aggravating circumstances beyond a
reasonable doubt: (1) Ferguson previously had been

                                  2
convicted of another murder or manslaughter or of a felony
involving the use of, or threat of, force or violence upon
another person, Del. Code Ann. tit. 11, S 4209(e)(i) (1995);
(2) Ferguson committed the murder while engaged in the
commission of, or attempt to commit, or flight after
committing or attempting to commit any degree of robbery,
id. S 4209(e)(j); and (3) Ferguson committed the murder for
pecuniary gain, id. S 4209(e)(o). The jury also unanimously
found, by a preponderance of the evidence, that the
aggravating circumstances outweighed the mitigating
circumstances.

The trial court then independently analyzed the evidence
and reached the same conclusions, though it considered
the robbery and pecuniary gain aggravators as one factor,
and placed no independent weight on the pecuniary gain
aggravator. App. at 138. In particular, the court concluded
"that the mitigating factors proven by [Ferguson] have been
proven by a preponderance of the evidence to be far
outweighed by the callous nature of this crime, the fact that
the murder took place during the attempted commission of
a robbery, the fact that [Ferguson] had previously been
convicted of a murder and an aggravated assault with a
firearm, the fact that [Ferguson] has demonstrated a
propensity for extremely violent activity every time he has
been released from prison, and [Ferguson's] almost cavalier
attitude toward the victim's death." Id. at 141. In
accordance with Delaware law at the time of sentencing,
the court imposed a death sentence for the first-degree
murder convictions because it determined that the
aggravating circumstances outweighed the mitigating
circumstances. The Delaware Supreme Court affirmed the
convictions and sentences on direct appeal. See Ferguson v.
State, 642 A.2d 772 (Del. 1994) (en banc).

Thereafter, Ferguson filed an unsuccessful petition for
post-conviction relief in the Delaware Superior Court, see
State v. Ferguson, 1995 WL 413269 (Del. Super. Ct. Apr. 7,
1995), and on appeal, the Delaware Supreme Court
affirmed its denial. See Ferguson v. State, 676 A.2d 902
(Del. 1995) (table). He then filed his unsuccessful habeas
corpus petition in the district court, leading to this appeal.
See Ferguson v. State, 1996 WL 1056727 (D. Del. Dec. 13,

                               3
1996). We are concerned on this appeal only with
sentencing issues.

The Supreme Court of Delaware set forth the facts of the
case as follows:

        The record reflects that Ferguson shot and killed
       Troy Hodges (`Hodges'). The homicide took place on the
       night of August 5, 1991, in the parking lot of the Tri-
       State Mall (the `Mall') in Claymont, Delaware. Ferguson
       was accompanied by Tyrone Hyland (`Hyland').

        Both Ferguson and Hyland lived in Chester,
       Pennsylvania. Hodges, who was apparently a drug
       dealer living in Wilmington, had negotiated to purchase
       a half-kilogram of cocaine for $10,000 either directly
       from Hyland or from a third party, with Hyland acting
       as middleman. Hodges arranged to meet Hyland at the
       Mall.

        Hodges had a friend, Alvin Wiggins (`Wiggins'),
       accompany him to the Mall. Wiggins was seventeen
       years old at the time of these events. Wiggins was also
       apparently a drug dealer. Wiggins testified at
       Ferguson's trial.

        According to Wiggins, before they drove to the Mall,
       Hodges gave Wiggins a plastic bag holding two smaller
       packages, each of which contained $5,000 in cash.
       They then drove to the Mall and parked in the lower
       lot. Wiggins testified that after they arrived at the Mall,
       Hodges took one of the two packages of money and
       instructed him to stay in his car until he received a
       sign from Hodges or until he returned.

        Hodges then left and entered a passageway leading to
       the upper parking lot of the Mall. Hodges was no longer
       visible to Wiggins. Wiggins waited for Hodges for
       approximately ninety minutes. During that time, he
       unsuccessfully attempted to contact Hodges via his
       `beeper.' When Wiggins learned that someone had been
       shot at the Mall, he drove away.

        Ferguson gave a tape recorded statement to the
       Delaware State Police on September 26, 1991. It was
       admitted into evidence at trial during the State's case-

                               4
       in-chief. In his statement, Ferguson admitted that he
       was a passenger in a car driven by Hyland to the Mall
       on the night of August 5, 1991. Ferguson stated that
       he was sitting in the back seat of the car.

        According to Ferguson, when they arrived at the
       Mall, Hyland parked the car. Hodges got into the front
       passenger seat of the car. Hyland and Hodges then
       argued about money and drugs. According to
       Ferguson, Hyland then clandestinely gave him a gun.
       Ferguson stated that the gun was already cocked when
       he received it. Ferguson pointed the gun at Hodges.

        Hyland and Hodges continued to argue. Ferguson
       stated that although the car was moving slowly
       towards the Mall, Hodges opened the car door and tried
       to leave the car. According to Ferguson, Hodges then
       slapped at the gun, causing it to `accidentally'fire a
       single shot. Ferguson claimed that he did not know
       Hodges had been wounded and died, until days later.

        Stewart Cohen (`Cohen') testified that on the night of
       August 5, 1991, he was in the parking lot of the
       K-Mart at the Tri-State Mall. Cohen stated that he
       heard a `popping sound.' Cohen turned and saw a blue
       Chevrolet Cavalier moving slowly in the parking lot.
       Cohen stated that he saw a person shoved or jumping
       out of the car. Cohen testified that this person then
       ran towards him and collapsed on the sidewalk.

        An autopsy revealed that Hodges died of massive
       hemorrhaging due to a single gunshot wound. The
       record reflects that the bullet, which was fired from
       behind, entered his left side and travelled through his
       body in an upward trajectory. The hole in Hodges' shirt
       and the wound in his torso indicated that the muzzle
       of the gun had been pressed against Hodges' body
       when the shot was fired.

Ferguson v. State, 642 A.2d at 775-76 (footnotes omitted).
The Supreme Court of Delaware also noted that the gun
used in the shooting belonged to Ferguson. Id. at 776 n.4.

The critical issue on this appeal is attributable to the
trial court's having sentenced Ferguson under Delaware's

                               5
capital sentencing statute as amended effective November
4, 1991, even though Ferguson murdered Hodges on
August 5, 1991. The court employed the amended law as by
its terms it applies "to all defendants tried or sentenced
after its effective date." 68 Del. Laws ch.189,S 6 (1991).
Ferguson contends that inasmuch as the Delaware
legislature enacted the amendments after he murdered
Hodges, use of the amended law violated the Ex Post Facto
Clause of the United States Constitution.

Obviously, it is important in resolving the ex post facto
issue that we carefully consider the provisions of the capital
provisions both at the time of the offense and the time of
the sentencing, for if the amended law did not make
significant changes in the sentencing process, there hardly
could be an ex post facto problem. At the time that
Ferguson committed his offenses, in a Delaware capital
case the jury determined the sentence, and it could impose
a death sentence only if it unanimously found at least one
statutory aggravating circumstance beyond a reasonable
doubt, and concluded, after weighing the aggravating and
mitigating circumstances, that it should impose a death
sentence. Nevertheless, the statute did not require the jury
to impose a death sentence if the aggravating factors
outweighed the mitigating factors. In addition, although the
court instructed the jury as to the types of things that it
could take into account in making its decision, the statute
placed no limitations on what the jury could consider.

The amended law changed the foregoing procedure, and
the Delaware Supreme Court describes its capital
sentencing provision as follows:

       Under Delaware law, as revised in 1991, a sentence of
       death may be imposed only under the bifurcated
       procedure prescribed by 11 Del. C. S 4209. That
       statute requires the jury to determine, during the
       penalty phase, (1) whether the evidence shows beyond
       a reasonable doubt the existence of at least one
       statutory aggravating circumstance and (2) whether, by
       a preponderance of the evidence, the aggravating
       circumstances outweigh any mitigating circumstances
       found to exist. 11 Del. C. S 4209(c). The trial court,
       after considering the recommendation of the jury, is to

                                6
       decide the same questions. If the court concludes that
       the answer to both questions is in the affirmative, it
       must impose a sentence of death; otherwise, it must
       impose a sentence of life imprisonment without the
       possibility of probation, parole, or other reduction in
       sentence. 11 Del. C. S 4209(d). Thus, the Superior
       Court bears the ultimate responsibility for imposition
       of the death sentence while the jury acts in an advisory
       capacity `as the conscience of the community.' State v.
       Cohen, Del. Supr., 604 A.2d 846, 856 (1992).

Wright v. State, 633 A.2d 329, 335 (Del. 1993).

The trial court in its "Findings After Penalty Hearing" at
the trial summarized the essential differences between the
law in effect on the date of Ferguson's offenses and the
amended law it applied at his sentencing:

       [U]nlike a jury under the old law, this Court, under the
       new law, may consider only whether or not aggravating
       factors outweigh mitigating factors. The Court may not
       in unfettered discretion refuse to impose a sentence of
       death where aggravating factors are proven and found
       to be of substantial weight and mitigating factors are
       found to be of less weight. The Court may not consider,
       in reaching its decision, mercy, societal concerns,
       proportionality of the sentence to other sentences
       imposed for Murder First Degree in other cases, or any
       other issues not specifically pertaining to `the
       particular circumstances or details of the offense[or]
       . . . the character and propensities of the offender. . . .'
       These factors most likely were considered by and may
       have influenced the jury or individual jury members in
       their decision under the prior statute to recommend or
       fail to recommend death. Under that law, the jury
       clearly acted as `the conscience of the community' and
       could in its unfettered discretion recommend life as the
       appropriate punishment for the crime and offender
       even though it had found the aggravating factors to
       outweigh the mitigating factors.

App. at 129-30 (emphasis in original, footnote omitted).

Ferguson argued in state court that application of the
amended sentencing statute in his case violated the Ex Post

                                7
Facto Clause because it eliminated the jury's unfettered
discretion to impose a life sentence even though it may
have determined that aggravating circumstances
outweighed mitigating circumstances, and instead required
the court to impose a death sentence if it made that same
finding. The Delaware Supreme Court rejected Ferguson's
ex post facto claim as "without merit," citing the following
reasons for its decision:

       This Court has previously held that `the changes
       effected by Delaware's new death penalty statute are
       procedural,' because the 1991 amendments `merely
       alter[ed] the method of determining imposition of the
       death penalty. The quantum of punishment for the
       crime of first-degree murder in Delaware remains
       unchanged.' State v. Cohen, Del. Supr., 604 A.2d 846,
       853 (1992). See Dobbert v. Florida, 432 U.S. 282, 293-
       94, 97 S.Ct. 2290, 2298-99, 53 L.Ed.2d 344 (1977).
       The restrictive nature of the advisory jury's findings
       and the mandatory imposition of the death penalty by
       the sentencing judge under the amended statute are
       likewise `procedural,' and therefore do not implicate ex
       post facto concerns. See State v. Cohen, 604 A.2d at
       849, 853-54.

        Ferguson `has cited no legal precedent or intervening
       changes in the law that would undermine the ratio
       decidendi of this Court's holding in Cohen on the ex
       post facto issue.' Dawson v. State, Del.Supr., 637 A.2d
       57, 61 (1994). Accordingly, we decline to overrule
       Cohen. We adhere to our ex post facto holding in that
       decision and its progeny. Accord Gattis v. State , Del.
       Supr., 637 A.2d 808, 821 (1994); Wright v. State , Del.
       Supr., 633 A.2d 329, 343 (1993); Red Dog v. State, Del.
       Supr., 616 A.2d 298, 305-06 (1992).

Ferguson v. State, 642 A.2d at 783. In Dawson, Gattis,
Wright and Red Dog, the Delaware Supreme Court similarly
adhered to, and did not expand upon, its analysis in State
v. Cohen, 604 A.2d 846 (Del. 1992).

In view of the Delaware court's reliance in Cohen on
Ferguson's appeal, we now describe its ruling in Cohen,
though we will return to it later in this opinion after we

                                8
consider the germane United States Supreme Court
opinions. In Cohen, the Delaware court largely relied on
Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290 (1977),
which it cited for the proposition that, " `[e]ven though it
may work to the disadvantage of a defendant, a procedural
change [in the law] is not ex post facto.' " 604 A.2d at 853
(quoting Dobbert, 432 U.S. at 293, 97 S.Ct. at 2298)
(second alteration in original). Dobbert was concerned with
a change in the sentencing process which, as is the case in
the amended Delaware sentencing law at issue here,
modified the functions of the court and jury. The Delaware
Supreme Court found that Dobbert was " `[t]he case most
analogous to the issue here. . . ." Id. It observed that the
death penalty statute under challenge in Dobbert " `simply
altered the methods employed in determining whether the
death penalty was to be imposed; there was no change in
the quantum of punishment attached to the crime.' . . .
That is precisely the issue before us." 604 A.2d at 853
(citation omitted). It concluded that,

       [g]iven the teaching in Dobbert, it is clear that the
       changes effected by Delaware's new death penalty
       statute are procedural. The revisions in the new law,
       like those in Dobbert, merely alter the method of
       determining imposition of the death penalty. The
       quantum of punishment for the crime of first-degree
       murder in Delaware remains unchanged.

Id.

The Delaware Supreme Court also held in Cohen that its
"conclusions regarding the defendants' ex post facto claims
are buttressed by the recent case of Collins v. Youngblood,
497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)." Id. at
854. It noted that Collins overruled the ex post facto
analysis in Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443
(1883), and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620
(1898), leading the Delaware court to infer that,"by
rejecting Kring and Thompson, it is now beyond
peradventure that under Collins the new law survives an ex
post facto analysis." Id. at 854. The Delaware court
explained that "it is apparent that the new law does not
involve `a right that has anything to do with the definition
of crimes, defenses, or punishments, which is the concern

                               9
of the Ex Post Facto Clause.' " Id. (quoting Collins, 497 U.S.
at 51, 110 S. Ct. at 2724).

In Cohen the Delaware court concluded that"procedural
statutes which merely act to the disadvantage of those
affected by their enactment are not prohibited as ex post
facto laws." Id. The Delaware court rejected the defendants'
reliance in Cohen on Miller v. Florida , 482 U.S. 423, 107
S.Ct. 2446 (1987), a case involving retroactive changes in
sentencing guidelines, as it distinguished Miller on the
ground that in Miller "the retroactive application of revised
sentencing guidelines . . . increased the quantum of a
defendant's punishment-- an effect manifestly prohibited
by the Ex Post Facto Clause." Cohen, 604 A.2d at 854
(citing Miller, 482 U.S. at 433-34, 107 S.Ct. at 2453). The
Delaware Supreme Court believed that the changes brought
by the new sentencing process did not make a comparable
increase in the quantum of sentence.

Finally, the court in Cohen rejected the defendants'
reliance on Lindsey v. Washington, 301 U.S. 397, 57 S.Ct.
797 (1937), and State v. Dickerson, 298 A.2d 761, 768-69
(Del. 1973). Lindsey invalidated the use on ex post facto
grounds of a new law that required the imposition of a
sentence which under earlier law had not been mandatory.
Dickerson relied on Lindsey to hold that a newly adopted
mandatory death penalty provision in the Delaware murder
statute could not be applied retroactively. See Cohen, 604
A.2d at 855. The defendants in Cohen argued that the
November 4, 1991 changes in the Delaware law were
substantive and not merely procedural because "the new
law . . . makes mandatory a sentence, which under the
prior law, was discretionary, and . . . eliminates the
unanimous jury requirement thus making a death sentence
more likely." Id. at 855.

The Delaware court rejected that argument as "predicated
upon a flawed interpretation of what is meant by a
mandatory sentence." Id. The court observed that, under
Lindsey and Dickerson, the retroactive application of a
statute to make mandatory what was only the maximum
sentence at the time of the offense violated the Ex Post
Facto Clause. But the court ruled that Delaware's amended
law "is not `mandatory' [in the Lindsey sense because]

                                10
imposition of the death penalty is based upon the predicate
factual findings made by the jury and trial judge as to
aggravating and mitigating circumstances. The existence of
such factors and their relative weight, although ultimately
determined by the trial judge, do not mandate a death
sentence unless the aggravating factors outweigh the
mitigating circumstances. Thus, the new law is not
`impermissibly mandatory.' " Id. The court cited Walton v.
Arizona, 497 U.S. 639, 651-52, 110 S. Ct. 3047, 3056
(1990); Blystone v. Pennsylvania, 494 U.S. 299, 306-07,
110 S.Ct. 1078, 1083 (1990); Boyde v. California , 494 U.S.
370, 374, 110 S.Ct. 1190, 1194-95 (1990); and Proffitt v.
Florida, 428 U.S. 242, 260-61, 96 S.Ct. 2960, 2970 (1976),
in support of this conclusion. The court concluded that,
"[b]y ignoring the weighing process, a crucial and
constitutionally required step under the new law, the
[defendants] demonstrate[ ] the weakness of [their]
argument. The sentencing process remains basically
discretionary, merely shifting the ultimate decision from the
jury to the trial judge." Id.

On June 13, 1996, after his unsuccessful post-conviction
relief proceedings in the state courts, Fergusonfiled his
habeas petition pursuant to 28 U.S.C. S 2254 in the district
court. The district court granted a stay and appointed
counsel. On December 13, 1996, the district court, without
holding an evidentiary hearing but after entertaining oral
argument, denied the petition in a comprehensive opinion
and declined to issue a certificate of appealability. See
Ferguson v. State, 1996 WL 1056727, at *28.

Ferguson then appealed. We granted a certificate of
appealability and, pursuant to the Antiterrorism and
Effective Death Penalty Act ("AEDPA"), Pub. L. 104-132,
110 Stat. 1214, 28 U.S.C. S 2253(c)(3), directed the parties
to address the following issues:

        (1) What deference, if any, must this Court gi ve to
       the Delaware court's conclusions and applications of
       law? See 28 U.S.C. S 2254(e);

        (2) Whether application of Delaware's amended death
       penalty statute is a violation of the Ex Post Facto
       Clause?; and

                               11
        (3)(a) Whether the aggravating factors of pecu niary
       gain and robbery are duplicative and violative of the
       Eighth Amendment?; and

        (b) Whether the state court's review of this c laim for
       plain error indicates that it is not an independent and
       adequate state ground barring federal review?

Insofar as we review the opinion of the district court we
exercise plenary review on this appeal. See Hartey v.
Vaughn, 186 F.3d 367, 371 (3d Cir. 1999). We have
jurisdiction under 28 U.S.C. S 1291.

II. DISCUSSION

A. Application of the Antiterrorism and Effective Death
       Penalty Act

As we have indicated, our certificate of appealability
included a question of the scope of the AEDPA which is
applicable in this action as Ferguson initiated the habeas
proceeding after the effective date of the AEDPA. See Hartey
v. Vaughn, 186 F.3d at 371. Subsequently, after we issued
the certificate of appealability, we addressed this issue in
Matteo v. Superintendent, 171 F.3d 877, 880 (3d Cir. 1999)
(en banc). Since then, however, the Supreme Court has
decided the same issue in Williams v. Taylor, 68 U.S.L.W.
4263 (U.S. Apr. 18, 2000). Accordingly, we will apply that
case without making our own determination on the issue
regarding the effect of the AEDPA.

Williams v. Taylor construed the AEDPA, 28 U.S.C.
S 2254(d)(1), which, as germane here in a case concerning
a person in custody pursuant to the judgment of a State
court, provides that "with respect to any claim that was
adjudicated on the merits in State court proceedings" an
application for a writ of habeas corpus shall not be granted
unless the adjudication of the claim "resulted in a decision
that was contrary to or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States."
The Court in Williams v. Taylor held that"[u]nder the
`contrary to' clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to

                               12
that reached by [the Supreme] Court on a question of law
or if the state court decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable
facts." Id. at 4277. Williams v. Taylor further held that
"[u]nder the `unreasonable application' clause, a federal
habeas court may grant the writ if the state court identifies
the correct legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case." Id. The"unreasonable
application" inquiry requires the habeas court to"ask
whether the state court's application of clearly established
federal law was objectively unreasonable." Id . at 4276.
Thus, under the "unreasonable application" clause, "a
federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that
application must also be unreasonable." Id . at 4277. The
Court in Williams v. Taylor made it clear that the "contrary
to" and "unreasonable application" clauses have
independent meaning. Id. at 4275.

B. The Ex Post Facto Clause Issue

(a) Supreme Court cases

Inasmuch as our obligation under the AEDPA, 28 U.S.C.
S 2254(d), as construed by the Supreme Court in Williams
v. Taylor, is to determine whether the Delaware court's
decisions in Cohen and Ferguson, were "contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States," we must make an analysis of the Supreme
Court's opinions and then consider the Delaware law and
the Delaware Supreme Court's decisions within that
analysis. Our starting point naturally is Article I,S 10 of the
Constitution which provides that "[n]o State shall . . . pass
any . . . ex post facto Law." Shortly after the Constitution
was ratified, the Supreme Court identified four categories of
penal laws that implicate the Ex Post Facto Clause, the
third one of which was "[e]very law that changes the
punishment, and inflicts a greater punishment, than the
law annexed to the crime, when committed." Calder v. Bull,

                               13
3 Dall. 386, 390, 1 L.Ed. 648 (1798). It is this category
which Ferguson claims is implicated here. See br. at 21.

More than a century later, the Court reaffirmed the
Calder v. Bull principle by holding that a law is ex post
facto if it "makes more burdensome the punishment for a
crime, after its commission[.]" Beazell v. Ohio, 269 U.S.
167, 169, 46 S.Ct. 68 (1925). The Court continues to
adhere to that principle, see Lynce v. Mathis , 519 U.S. 433,
440-41, 117 S.Ct. 891, 895-96 (1997), and indeed"[t]he
bulk of [the Supreme Court's] ex post facto jurisprudence
has involved claims that a law has inflicted `a greater
punishment, than the law annexed to the crime, when
committed.' " Id. at 441, 117 S.Ct. at 895 (quoting Calder v.
Bull, 3 Dall. at 390). Such laws are prohibited because they
"implicate the central concerns of the Ex Post Facto Clause:
`the lack of fair notice and governmental restraint when the
legislature increases punishment beyond what was
prescribed when the crime was consummated.' " Id., 117
S.Ct. at 896 (quoting Weaver v. Graham, 450 U.S. 24, 30,
101 S.Ct. 960, 965 (1981)).

In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, the
case on which the Delaware Supreme Court principally
relied in Cohen, the Court considered an ex post facto
challenge to a statute that changed "the function of the
judge and jury in the imposition of death sentences in
Florida between the time [Dobbert] committed the acts
charged and the time he was tried for them." Id. at 287, 97
S.Ct. at 2295. At the time of Dobbert's offense, Florida law
required the jury to impose a death sentence forfirst-degree
murder, "unless the verdict included a recommendation of
mercy by a majority of the jury." Id. at 288 & n.3, 97 S.Ct.
at 2296 & n.3. But at the time of his sentencing, a new law
which Florida enacted after the Florida Supreme Court
invalidated its prior capital law as unconstitutional under
Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726 (1972),
provided that, after a murder conviction, there must be a
separate sentencing hearing before the court and jury. See
id. at 290, 97 S.Ct. at 2297. The new law required the jury
to consider the aggravating and mitigating factors and
render a non-binding advisory decision. See id. at 291, 97
S.Ct at 2297. The trial court then would weigh the same

                               14
evidence and, in its discretion, impose a sentence of life
imprisonment or death. See id., 97 S.Ct. at 2297.

A majority of the jurors at Dobbert's trial, after
considering the aggravating and mitigating factors,
recommended life imprisonment. Nevertheless, the trial
court rejected that recommendation and imposed a death
sentence. Dobbert argued that application of the amended
Florida statute constituted an ex post facto violation
because it deprived him of "a substantial right to have the
jury determine, without review by the trial judge, whether
[the death penalty] should be imposed." Id. at 292, 97 S.Ct.
at 2298.

The Supreme Court rejected that argument, ruling that
"[t]he new statute simply altered the methods employed in
determining whether the death penalty was to be imposed;
[thus] there was no change in the quantum of punishment
attached to the crime." Id. at 293-94, 97 S.Ct. at 2298. The
Court explained that "[i]t is axiomatic that for a law to be
ex post facto it must be more onerous than the prior law."
Id. at 294, 97 S.Ct. at 2299. Specifically, to violate the Ex
Post Facto Clause, the law must cause a "change in the
quantum of punishment attached to the crime." Id., 97
S.Ct. at 2298. Therefore, "[e]ven though[a new law] may
work to the disadvantage of a defendant [as it did in
Dobbert ], a procedural change is not ex post facto." Id. at
293, 97 S.Ct. at 2298. The Court found that Florida's new
law, insofar as it had no substantive effect on the range of
sentences, i.e., life imprisonment or death for first-degree
murder, did not change the quantum of punishment
prescribed for the offense. Accordingly, the changes in the
law were "merely procedural" and not ex post facto.1
_________________________________________________________________

1. The Court also explained in Dobbert that a law is not ex post facto if
it is "ameliorative," i.e., when "viewing the totality of the procedural
changes wrought by the new statute, . . . the new statute did not work
an onerous application of an ex post facto change in the law" because it
afforded the defendant more safeguards or protections than the law in
place at the time the offense was committed. See Dobbert, 432 U.S. at
296-97, 97 S.Ct. at 2300. The Delaware Supreme Court did not
determine in Cohen or Ferguson whether the amended Delaware law was
ameliorative; instead, it rejected the ex post facto challenge solely on
the
alternative ground that the changes enacted were"merely procedural."

                                15
Subsequently, in Weaver v. Graham, 450 U.S. 24, 101
S.Ct. 960, the Court considered a situation in which a
Florida trial court sentenced the petitioner to 15 years in
prison for second-degree murder at a time when a Florida
law provided for mandatory reductions in the term of
imprisonment based on "gain-time credits" earned through
compliance with prison regulations. The legislature later
amended the law to reduce the number of gain-time credits
available to prisoners, thereby postponing the date when
they would become eligible for early release. The Supreme
Court held that application of the amended statute to the
petitioner was an ex post facto violation because"the new
provision constricts the inmate's opportunity to earn early
release, and thereby makes more onerous the punishment
for crimes committed before its enactment." Id. at 35-36,
101 S.Ct. at 968.

The Court identified in Weaver the "two critical elements"
of an ex post facto law: "it must be retrospective . . . and
it must disadvantage the offender affected by it." Id. at 29,
101 S.Ct. at 964. The Court noted that it also had held that
there was not an "ex post facto violation . . . if the change
effected is merely procedural, and does `not increase the
punishment nor change the ingredients of the offense or
the ultimate facts necessary to establish guilt.' " Id. at 29
n.12, 101 S.Ct. at 964 n.12 (quoting Hopt v. Utah, 110 U.S.
574, 590, 4 S.Ct. 202, 210 (1884), and citing Dobbert, 432
U.S. at 293, 97 S.Ct. at 2298). The Court explained,
however, that "[a]lteration of a substantial right . . . is not
merely procedural, even if the statute takes a seemingly
procedural form." Id., 101 S.Ct. at 964 n.12 (citing
Thompson v. Utah, 170 U.S. at 354-55, 18 S.Ct. at 624, and
Kring v. Missouri, 107 U.S. at 232, 2 S.Ct. at 452). The
Court found that application of the amended gain time law
in Weaver was an ex post facto violation because it
"disadvantaged" the petitioner by making the punishment
for his offense "more onerous" than the punishment
prescribed at the time of the offense. The Court rejected the
state's attempt to characterize the new law as "merely
procedural," ruling that "the new provision reduces the
quantity of gain time automatically available, and does not
merely alter procedures for its allocation." Id. at 36 n.21,
101 S.Ct. at 968 n.21.

                               16
The Court also observed in Weaver that "a law may be
retrospective not only if it alters the length of the sentence,
but also if it changes the maximum sentence from
discretionary to mandatory." Id. at 32 n.17, 101 S.Ct. at
966 n.17 (citing Lindsey v. Washington, 301 U.S. at 401, 57
S.Ct. at 799). The Court reached this conclusion because
"[t]he critical question . . . is whether the new provision
imposes greater punishment after commission of the
offense, not merely whether it increases a criminal
sentence." Id. (citations omitted).

The Court's decision in Lindsey v. Washington exemplifies
this principle. In Lindsey the Court ruled that a law is ex
post facto if its effect "is to make mandatory what was
before only the maximum sentence." 301 U.S. at 400, 57
S.Ct. at 798-99. At the time of the petitioners' grand
larceny offenses in Lindsey, they had been subject to a
statutory minimum sentence of six months to five years
and a maximum sentence of not more than 15 years, with
the court required to impose an indeterminate sentence up
to whatever maximum it selected, but not to exceed 15
years. See id. at 398, 57 S.Ct. at 797. But the legislature
amended the law before the petitioners' sentencing so that
the court was required to impose a 15-year sentence and a
defendant could obtain earlier release only through the
grace of the parole board. See id. at 398-99, 57 S.Ct. at
798. The trial court imposed sentence under the new law.

In finding an ex post facto violation in Lindsey, the Court
held that "the measure of punishment prescribed by the
later statute is more severe than that of the earlier." Id. at
401, 57 S.Ct. at 799. Specifically, although a sentence of 15
years had been permissible under the law at the time of the
offenses, 15 years became the only sentence that the court
could impose under the new law. Moreover, the new law
eliminated the trial court's discretion to impose a shortened
sentence. Thus, the Court held that the new law imposed a
more severe punishment after commission of the offense,
and violated the Ex Post Facto Clause.2 In Miller v. Florida,
_________________________________________________________________

2. Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, effectively
overruled the aspect of the Court's decision in Lindsey that the law was
ex post facto merely because it worked to the detriment or "substantial

                               17
482 U.S. 423, 107 S.Ct. 2446, the Court ruled that a
revision in Florida's sentencing guidelines which became
effective between the date of the petitioner's offense and the
date of his conviction violated the Ex Post Facto Clause
because the new guideline was "more onerous than the
prior law." Id. at 431, 107 S.Ct. at 2452 (quoting Dobbert,
432 U.S. at 294, 97 S.Ct. at 2299). At the time of the
offense, the petitioner faced a presumptive sentence of
three and one-half to four and one-half years in prison, but
at the time of sentencing, the revised guidelines called for
a presumptive sentence of five and one-half to seven years.
In fact, the trial court sentenced the petitioner to seven
years. See id. at 425, 107 S.Ct. at 2448.

The Court held in Miller that the petitioner had been
"substantially disadvantaged" by the change in Florida's law
because under the prior law the sentencing judge would
have had to depart from the guidelines to impose a seven-
year term of imprisonment and provide a statement of clear
and convincing reasons for the departure reviewable on
appeal. See id. at 432, 107 S.Ct. at 2452. Under the revised
law, the seven-year term was within the guidelines range
and was unreviewable on appeal. Consequently, the Court
concluded that by foreclosing the petitioner's ability "to
challenge the imposition of a sentence longer than his
presumptive sentence under the old law," id. at 433, 107
S.Ct. at 2452, the new law worked a "substantial
disadvantage" to him. Accordingly, the Court held that the
new law violated the Ex Post Facto Clause.

However, the Court in Miller, taking note of its holding in
Dobbert, explained that, even when application of a new law
works to a defendant's "disadvantage," the ex post facto
prohibition "does not restrict `legislative control of remedies
and modes of procedure which do not affect matters of
substance.' " Id. at 433, 107 S.Ct. at 2452 (quoting Dobbert,
_________________________________________________________________

disadvantage" of the defendants, see Lindsey , 301 U.S. at 401-02, 57
S.Ct. at 799. Nevertheless, the Court in Collins did not overrule
Lindsey's
holding, as well as its assessment that the change in the law in Lindsey
was ex post facto because "the measure of punishment prescribed by the
later statute is more severe than that of the earlier."

                               18
432 U.S. at 293, 97 S.Ct. at 2298). Hence, the Court will
not find an "ex post facto violation . . . if the change is
merely procedural and does `not increase the punishment,
nor change the ingredients of the offence or the ultimate
facts necessary to establish guilt.' " Id. , 107 S.Ct. at 2452-
53 (quoting Hopt v. Utah, 110 U.S. at 590, 4 S.Ct. at 210,
and citing Dobbert, 432 U.S. at 293-94, 97 S.Ct. at 2298).
The Court added, however, that "a change in the law that
alters a substantial right can be ex post facto,`even if the
statute takes a seemingly procedural form.' " Id., 107 S.Ct.
at 2453 (quoting Weaver, 450 U.S. at 29 n.12, 101 S.Ct. at
964 n.12).

Applying Dobbert, the Court in Miller observed that,
"[a]lthough the distinction between substance and
procedure might sometimes prove elusive, here the change
at issue appears to have little about it that could be
deemed procedural." Id., 107 S.Ct. at 2453. The Court
found that "[t]he 20% increase in points for sexual offenses
in no wise alters the method to be followed in determining
the appropriate sentence: it simply inserts a larger number
into the same equation." Id., 107 S.Ct. at 2453. Thus, the
Court refused to characterize the revisions to Florida's
sentencing guidelines as "merely procedural."

In Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715,
the Court abandoned portions of its analysis in Weaver and
Miller, and it narrowed the scope of the framework for
analyzing ex post facto claims. In Collins, the Court
considered a situation in which a state court jury convicted
the petitioner and sentenced him to life imprisonment plus
a fine of $10,000. The petitioner argued in the state courts
that the fine had been unauthorized under the law in effect
at the time of sentencing, and he requested a new trial.
Relying on an intervening change in state law not in effect
at the time of the offense, the trial, or the sentencing, which
allowed it to reform an improper jury verdict that assessed
an unauthorized punishment, the state appellate court
reformed the verdict by vacating the fine. Therefore, the
appellate court denied the petitioner's request for a new
trial, a form of relief to which he would have been entitled
under state case law prior to enactment of the new statute.
Id. at 39-40, 110 S.Ct. at 2717-18.

                               19
In his federal habeas petition in Collins, the petitioner
claimed an ex post facto violation by reason of the use of
the new jury verdict reformation law. The district court,
however, denied relief on the ground that his punishment
"was not increased (but actually decreased)" as a result of
the change in the law. See id. at 40, 110 S.Ct. at 2718
(internal quotation marks omitted). The Court of Appeals
for the Fifth Circuit reversed, holding that, under Thompson
v. Utah, 170 U.S. 343, 18 S.Ct. 620, retroactive
applications of procedural statutes "violate the Ex Post
Facto Clause unless they leave untouched all substantial
protections with which existing law surrounds the person
accused of the crime." Id. (internal quotation marks
omitted). The court of appeals held that the petitioner's
right to a new trial under the governing case law was a
"substantial protection," and thus it ordered the district
court to grant habeas relief.

The Supreme Court reversed, concluding that the
definition of "ex post facto" that it had adopted in Beazell
v. Ohio, 269 U.S. 167, 46 S.Ct. 68, was "faithful to the use
of the term `ex post facto law' at the time the Constitution
was adopted." Id. at 44, 110 S.Ct. at 2720. In Beazell, the
Court ruled that a law is ex post facto if it "punishes as a
crime an act previously committed, which was innocent
when done; which makes more burdensome the
punishment for a crime, after its commission; or which
deprives one charged with crime of any defense available
according to law at the time when the act was committed."
Beazell, 269 U.S. at 169, 46 S.Ct. at 68. Limiting its
analysis to these three "Beazell categories," the Court in
Collins rejected the petitioner's ex post facto claim.

The Court found that the sentencing reformation law was
merely "a procedural change that allow[ed] reformation of
improper verdicts." Collins, 497 U.S. at 44, 110 S.Ct. at
2720. It thus rejected the court of appeals' holding that the
statute, although clearly procedural, was nevertheless ex
post facto because it denied the petitioner a "substantial
protection," i.e., the right to a new trial that had been
available at the time of sentencing. The Court noted that
"[s]everal of [its] cases have described as `procedural' those
changes which, even though they work to the disadvantage

                               20
of the accused, do not violate the Ex Post Facto Clause." Id.
at 45, 110 S.Ct. at 2720 (citing Dobbert, 432 U.S. at 292-93
& n.6, 97 S.Ct. 2297-98 & n.6; Beazell, 269 U.S. at 171, 46
S.Ct. at 69; Mallett v. North Carolina, 181 U.S. 589, 597, 21
S.Ct. 730, 733 (1901)). The Court added that, "[w]hile these
cases do not explicitly define what they mean by the word
`procedural,' it is logical to think that the term refers to
changes in the procedures by which a criminal case is
adjudicated, as opposed to changes in the substantive law
of crimes." Id.

The Court observed, however, that it also had stated in
several cases "that a procedural change may constitute an
ex post facto violation if it `affect[s] matters of substance,'
. . . by depriving a defendant of `substantial protections
with which the existing law surrounds the person accused
of crime,' . . . or arbitrarily infringing upon`substantial
personal rights.' " Id. (citations omitted). The Court found
that such language had "imported confusion into the
interpretation of the Ex Post Facto Clause." Id. at 45, 110
S.Ct. at 2721. Thus, the Court ruled in Collins that "[t]he
references in [earlier cases] to `substantial protections' and
`personal rights' should not be read to adopt without
explanation an undefined enlargement of the Ex Post Facto
Clause" as defined in Beazell. See id. at 46, 110 S.Ct. at
2721. The Court explained that the proper meaning of
those earlier cases is that "by simply labeling a law
`procedural,' a legislature does not thereby immunize it
from scrutiny under the Ex Post Facto Clause." Id. at 46.
Ultimately, the Court in Collins expressly overruled
Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, and Kring
v. Missouri, 107 U.S. 221, 2 S.Ct. 443, two cases which the
Court had cited in Weaver for the proposition that
"[a]lteration of a substantial right . . . is not merely
procedural, even if the statute takes a seemingly procedural
form." Weaver, 450 U.S. at 29 n.12, 101 S.Ct. at 964 n.12.3

In California Department of Corrections v. Morales, 514
U.S. 499, 115 S.Ct. 1597 (1995), the Court explained that,
in light of the framework it set forth in Collins, "the focus
_________________________________________________________________

3. Miller cited Weaver for the same point. Miller, 482 U.S. at 433, 107
S.Ct. at 2453.

                               21
of the ex post facto inquiry is not on whether a legislative
change produces some ambiguous sort of `disadvantage,' "
as language in Miller, Weaver and Lindsey had suggested.
Rather, the proper focus is limited to whether the change in
the law "alters the definition of criminal conduct or
increases the penalty by which a crime is punishable." Id.
at 506 n.3, 115 S.Ct. at 1602 n.3. The Court noted in
Morales that it nevertheless had reached the correct result
in those three cases because in each of them the law at
issue impermissibly increased the "quantum of
punishment" that had been prescribed at the time of the
offense. Id. at 505-06 & n.3, 115 S.Ct. at 1601-03 & n.3.

The particular holding in Morales was that an
amendment to California's parole procedures which
decreased the frequency of parole hearings for certain
offenders had not changed the quantum of punishment
attached to the petitioner's offense, and therefore was not
ex post facto. The amendment allowed the Parole Board,
after holding an initial hearing, to defer for up to three
years a subsequent parole suitability hearing for prisoners
convicted of multiple murders if the Board found that it
was unreasonable to expect that it would grant parole at a
hearing during the subsequent years. The Court explained
that the relevant inquiry is whether the "change alters the
definition of criminal conduct or increases the penalty by
which a crime is punishable." Id. at 506 n.3, 115 S.Ct. at
1602 n.3. The Court determined that "there is no reason to
conclude that the amendment will have any effect on any
prisoner's actual term of confinement." Id. at 512, 115 S.Ct.
at 1604. Thus, the Court found that the petitioner failed to
show, as required under Collins, that the new law actually
had increased, and not merely posed an attenuated or
theoretical possibility of increasing, the quantum of
punishment for his offense.

The Court rejected the petitioner's argument that"the Ex
Post Facto Clause forbids any legislative change that has
any conceivable risk of affecting a prisoner's punishment."
Id. at 508, 115 S.Ct. at 1602. The Court noted that "the
question of what legislative adjustments will be held to be
of sufficient moment to transgress the [ex post facto]
prohibition must be a matter of degree." Id. at 509, 115

                               22
S.Ct. at 1603 (internal quotation marks omitted). Thus, the
Court declined "to articulate a single `formula' for
identifying those legislative changes that have a sufficient
effect on substantive crimes or punishments to fall within
the prohibition." Id. The Court ruled that the law at issue
in Morales "creates only the most speculative and
attenuated possibility of producing the prohibited effect of
increasing the measure of punishment for covered crimes,
and such conjectural effects are insufficient under any
threshold we might establish under the Ex Post Facto
Clause." Id. at 509, 115 S.Ct. at 1603 (citing Dobbert, 432
U.S. at 294, 97 S.Ct. at 2299).

In Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, the
Court again applied Collins and inquired whether the law at
issue retrospectively increased the quantum of punishment
for the petitioner's offense. The law challenged in Lynce
canceled the petitioner's award of 1,860 days of provisional
early release credits, which had been granted for the sole
purpose of alleviating prison overcrowding. The Court
concluded that the new law was ex post facto because its
effect was to lengthen the petitioner's sentence, thereby
retrospectively increasing the quantum of punishment. See
id. at 445, 117 S.Ct. at 897-98.

But in Lynce, unlike in Morales, the new law actually
increased the petitioner's term of incarceration so its effect
was neither speculative nor attenuated. The Court rejected
in Lynce any suggestion that the new law was"merely
procedural." Id. at 447 n.17, 117 S.Ct. at 898 n.17. The
Court cited Dobbert for the proposition"that a procedural
statute is one that `simply alters the methods employed in
determining' whether the punishment is `to be imposed'
rather than `chang[ing] the quantum of punishment
attached to the crime.' " Id. (quoting Dobbert, 432 U.S. at
293-94, 97 S.Ct. at 2298) (internal punctuation omitted)
(alteration in original). The Court ruled that, unlike in
Dobbert, the law challenged in Lynce was not "merely
procedural" because it "did not change the method of
determining the sentence, but rather lengthened the
sentences of certain prisoners by making them ineligible for
early release[.]" Id.

                               23
Recently in Garner v. Jones, 120 S.Ct. 1362 (2000), the
Court was concerned with a situation similar to that in
Morales in that it considered an ex post facto challenge to
a rule extending the time for required reconsideration of
denied parole applications from every three years to every
eight years. Based on the record presented, the Court
upheld the application of the amended rule, as the prisoner
had not demonstrated that it created "a significant risk of
prolonging [his] incarceration," and "the requisite risk [was]
not inherent in the framework" of the rule. Id. at 1368. The
Court cited Morales for the point that the Ex Post Facto
Clause should not be employed for the micromanagement
of an endless array of legislative adjustments to parole and
sentencing procedures. Id. Moreover, the Court noted that
the ex post facto doctrine included to some extent the
concept that before a criminal commits an offense, he
should have either actual or constructive notice of the
penalty for the transgression. Id. at 1369.

In Garner, however, the Court did not make a definitive
statement of the scope of ex post facto protections. Indeed,
the Court did not make an analysis of Beazell , Collins,
Dobbert, or Lindsey, the cases which, as will be seen, we
regard as its most significant on the ex post facto issue we
consider here. In fact, the Court did not cite Dobbert or
Lindsey. Rather, Garner's particular significance is in the
area of modification of parole procedures.

The Court's most recent ex post facto case is Carmell v.
Texas, 68 U.S.L.W. 4325 (U.S. May 1, 2000). In Carmell the
Court was concerned with a section of a Texas statute
which provided that in certain sexual offenses a conviction
"is supportable on the uncorroborated testimony of the
victim of the sexual offense if the victim informed any
person, other than the defendant, of the alleged offense
within six months after the date on which the offense is
alleged to have occurred." Id. at 4326. This requirement is
referred to as an "outcry" provision. Until September 1,
1993, the requirement that the victim inform another
person of the alleged offense did not apply "if the victim was
younger than 14 years of age at the time of the alleged
offense." Id. The statute, however, was amended in 1993 to
extend the child victim exception to victims under 18 years

                               24
old. The convictions at issue in Carmell were for offenses
before the amendment when the victim was 14 or 15 years
old. Id. at 4327. Thus, the petitioner argued that the
convictions could not stand under the Ex Post Facto Clause
because the victim was not under 14 years old at the time
of the offenses and she had not made a timely outcry. The
Texas courts rejected his argument, upholding the
application of the statutory amendment against an ex post
facto challenge.

The Supreme Court reversed. It held that in Collins it had
not intended to suggest that in Beazell it had abandoned
the fourth Calder category, i.e., see Calder, 3 Dall. at 390,
that the Ex Post Facto Clause precludes a "law that alters
the legal rules of evidence, and receives less, or different,
testimony, than the law required at the time of the
commission of the offence, in order to convict the offender."
Id. at 4330. Thus, it held that the 1993 amendment to the
Texas law was ex post facto as applied to the petitioner
because it reduced the "quantum of evidence" necessary to
convict the petitioner inasmuch as without the amendment
he could not have been convicted on the counts in
question. Carmell like Garner did not, however, make a
definitive statement of the scope of ex post facto protections
as it was dealing with a narrow situation not concerned
with the quantum of punishment. Moreover, it dealt with a
Calder category of ex post facto laws not implicated on this
appeal.

Having completed our review of the Supreme Court's ex
post facto cases we now return to consideration of our
obligations under Williams v. Taylor. As we have indicated
the "contrary to" and "unreasonable application" clauses in
28 U.S.C. S 2254(d)(1) have independent meaning. See
Williams v. Taylor, 68 U.S.L.W. at 4275. Thus, claims may
fit within one of these clauses more "comfortably" than the
other. See id. But still when a petitioner presents a claim
as does Ferguson which challenges a statutory scheme
rather than only the outcome in a particular case we
believe that we have an obligation to make our analysis
under both clauses, particularly inasmuch as Ferguson has
presented his ex post facto claim under both clauses.

                                25
We turn to the "contrary to" clause first as 28 U.S.C.
S 2254(d)(1) lists it first. In light of our foregoing analysis of
the Supreme Court's ex post facto cases, we conclude that
the Court has established certain ex post facto rules with
sufficient specificity so that we may make a determination
under the AEDPA whether the Delaware Supreme Court's
decisions in Cohen and Ferguson were contrary to clearly
established federal law as determined by the Supreme
Court of the United States. In particular, under the
framework set forth in Collins, a law violates the Ex Post
Facto Clause if it is both retrospective and increases the
penalty by which a crime is punishable, a standard which
requires the petitioner to show that the law retrospectively
increased or made more onerous the "quantum of
punishment" attached to the crime. The infringement of a
"substantial right" or a showing of a mere"disadvantage" as
a result of a new law is insufficient.

In addition, as the Court explained in Dobbert and
Collins, a law is "merely procedural," and not ex post facto,
if it simply alters the methods employed in determining the
punishment to be imposed as opposed to working a
substantive change in the quantum of punishment
attached to the crime. Moreover, the Court consistently has
applied these rules, and they are quite specific. Thus, we
conclude that the Supreme Court cases formulate rules to
apply when an ex post facto claim is made so that we can
consider the Delaware Supreme Court's decision in Cohen,
and hence its decision in Ferguson, under the AEDPA's
"contrary to" clause.

We emphasize that Lindsey did not establish a
sufficiently specific "framework" or rule of law that is any
different from the rules we have noted. In Lindsey, the
Court found a law to be ex post facto because its effect was
"to make mandatory what was before only the maximum
sentence." Lindsey, 301 U.S. at 400, 57 S.Ct. at 798-99.
That holding survives under Collins because, as the Court
noted in Morales, it is clear that the law challenged in
Lindsey impermissibly increased the "quantum of
punishment" prescribed at the time of the offense. See
Morales, 514 U.S. at 505-06 & n.3, 115 S.Ct. at 1601-02 &
n.3. Thus, while it might be argued that Lindsey

                               26
established a rule that "a law is ex post facto if it makes
mandatory what was before only the maximum sentence,"
in view of the Court's subsequent refinements it is more
accurate to say that the rule in Lindsey is that a statute is
ex post facto if it retroactively makes the quantum of
punishment for an offense more onerous. Of course, there
was such a violation in Lindsey because the new law made
mandatory a sentence that was only a maximum at the
time of the petitioners' offenses.

The Court, however, did not define formally in Lindsey
what makes a law "mandatory" for ex post facto purposes,
and it did not expressly generalize its holding into a
framework or rule for future cases. In addition, while the
Court in Weaver cited Lindsey for the proposition that "a
law may be retrospective not only if it alters the length of
the sentence, but also if it changes the maximum sentence
from discretionary to mandatory," 450 U.S. at 32 n.17, 101
S.Ct. at 966 n.17, it did so to illuminate its point that "the
critical question" in an ex post facto analysis"is whether
the new provision imposes greater punishment after
commission of the offense, not merely whether it increases
a criminal sentence." Id. Thus, rather than establishing a
framework or rule of law in its own right, we regard Lindsey
as merely one of the continuum of cases applying the
Beazell categories the Court reaffirmed in Collins, and
which the Court further explained in Carmell.

Carmell, of course, does not supply an ex post facto rule
applicable here as it merely held that the state could not
reduce the quantum of evidence necessary to convict the
petitioner, at least in the manner it did, an application of
the Ex Post Facto Clause not implicated here. Moreover, the
Court emphasized that "a sufficiency of the evidence rule
resonates with the interest to which the Ex Post Facto
Clause is addressed" because "the elements of unfairness
and injustice in subverting the presumption of innocence
are directly implicated by rules lowering the quantum of
evidence required to convict." Carmell, 68 U.S.L.W. at 4335.
These interests, derived from the fourth Calder category,
are not involved in this case.

(b) The Delaware Supreme Court's opinions

Against this backdrop of relevant Supreme Court
jurisprudence, we return now to the Delaware Supreme

                               27
Court's decision in Cohen, and hence its ruling in Ferguson,
so that we may consider each under the AEDPA standards
as clarified in Williams v. Taylor. The state court first ruled
in Cohen that, "[g]iven the teaching in Dobbert, it is clear
that the changes effected by Delaware's new death penalty
statute are procedural. The revisions in the new law, like
those in Dobbert, merely altered the method of determining
imposition of the death penalty. The quantum of
punishment for the crime of first-degree murder in
Delaware remains unchanged." Cohen, 604 A.2d at 853.
The Court added in Ferguson that, "[t]he restrictive nature
of the advisory jury's findings and the mandatory
imposition of the death penalty by the sentencing judge
under the amended statute are likewise `procedural,' and
therefore do not implicate ex post facto concerns."
Ferguson, 642 A.2d at 783.

It is unquestionable that the changes enacted by the
amended Delaware law simply have "altered the methods
employed in determining the punishment to be imposed."
For example, like the law at issue in Dobbert , Delaware's
amended law reassigned the task of imposing sentence
from the jury to the court, a change which Ferguson's
attorney at oral argument before us acknowledged in itself
did not implicate ex post facto concerns and in light of
Dobbert hardly could have done so.4 In addition, the
amended statute retained life imprisonment or death as the
range of sentences for first-degree murder, and merely
redesigned the method or formula for determining which of
the two sentencing choices should be imposed in a given
case. Thus, we are satisfied that the amended Delaware law
fully justified the state court's reliance on Dobbert and its
conclusion that the changes were "merely procedural."

Nevertheless we must continue our analysis because at
the time of Ferguson's offenses, Delaware did not require a
death sentence when aggravating circumstances were found
to outweigh mitigating circumstances, as the jury could
impose a sentence of life imprisonment in that
_________________________________________________________________

4. We also note that in general there is no federal constitutional right
to
a jury trial on sentencing in a capital case. See Clemons v. Mississippi,
494 U.S. 738, 745-46, 110 S.Ct. 1441, 1446-47 (1990).

                               28
circumstance. At the time of his sentencing, however, the
amended law required a death sentence once the court
determined that aggravating circumstances outweighed
mitigating circumstances.

While these changes arguably implicate the holding
under Lindsey, the Delaware Supreme Court in Cohen
distinguished Lindsey by ruling that the amended law

       is not `mandatory' . . . [because] imposition of the
       death penalty is based upon the predicate factual
       findings made by the jury and trial judge as to
       aggravating and mitigating circumstances. The
       existence of such factors and their relative weight,
       although ultimately determined by the trial judge, do
       not mandate a death sentence unless the aggravating
       factors outweigh the mitigating circumstances. Thus,
       the new law is not `impermissibly mandatory.'

Cohen, 604 A.2d at 855. As we have indicated, in support
of this proposition the court cited Walton v. Arizona, 497
U.S. at 650-52, 110 S.Ct. at 3056; Blystone v.
Pennsylvania, 494 U.S. at 306-07, 110 S.Ct. at 1083;
Boyde v. California, 494 U.S. at 374, 110 S.Ct. at 1195;
and Proffitt v. Florida, 428 U.S. at 260-61, 96 S.Ct. at 2970.
Of course, each of those cases presented a challenge to a
death penalty statute under the Eighth Amendment which
prohibits the imposition of an "impermissibly mandatory"
death sentence, i.e., a death sentence that is imposed
automatically upon conviction without an individualized
inquiry into the defendant and the nature of the crime. See,
e.g., Blystone, 494 U.S. at 305, 110 S.Ct. at 1082-83. The
cases nevertheless are germane to the question of whether
the amended sentencing statute "increased the quantum of
punishment" for Ferguson's capital offenses, which is the
relevant inquiry under the Ex Post Facto Clause, as the ex
post facto inquiry considers the alleged mandatory aspects
of a sentencing. See Lindsey, 301 U.S. at 400, 57 S.Ct. at
798-99; see also Morales, 514 U.S. at 506 n.3, 115 S.Ct. at
1602 n.3.

The Delaware Supreme Court in Cohen further
distinguished Lindsey and its own opinion in Dickerson by
ruling that a death sentence under the amended law is not

                               29
truly "mandatory" because the trial court must assign a
"relative weight" to the aggravating and mitigating evidence
before it determines which sentence, life imprisonment or
death, is required by the statute. Therefore, given the
presence of a "weighing process," the Delaware court
concluded that "[t]he sentencing process remains basically
discretionary, merely shifting the ultimate decision from the
jury to the trial judge." Cohen, 604 A.2d at 855.

Thus, though the jury convicted Ferguson of first-degree
murder the court did not impose a death sentence
automatically. Rather, it held a separate hearing to
determine whether to impose a sentence of life
imprisonment or death. Before imposing sentence, the trial
court weighed the evidence presented at the hearing as well
as the jury's sentencing recommendation, and then made a
determination that in Ferguson's case the aggravating
circumstances outweighed the mitigating circumstances.
Obviously, the court could have reached the opposite result
in this inherently subjective evaluation for aggravating
circumstances cannot outweigh mitigating circumstances in
the definitive sense that a ton necessarily outweighs a
pound. Accordingly, it is perfectly clear that, as the
Delaware Supreme Court explained, the "weighing process"
effectively insured that the death penalty was a
discretionary maximum sentence, and therefore, the death
sentence was not "mandatory" in the sense contemplated in
Lindsey.5

The district court agreed with the Delaware Supreme
Court's analysis, citing the following rationale:

       The current case is somewhat different from Lindsey.
       The revised Delaware statute does not make the
       maximum penalty for first-degree murder, death,
       mandatory. The options remain the same: life
       imprisonment or death. The difference is that under
       the old statute the decisionmaker needed to weigh the
       aggravating and mitigating factors, but was not
_________________________________________________________________

5. Moreover, although our conclusion is not dependent on this point, we
are satisfied that if the court held that the mitigating circumstances
outweighed the aggravating circumstances, its determination would not
have been subject to appellate review.

                               30
       necessarily compelled by the outcome of that weighing
       process. Under the revised law, if the aggravating
       circumstances are found to outweigh the mitigating
       circumstances, then a decision of death is commanded.
       If the opposite conclusion is reached, a sentence of life
       imprisonment is required. The discretion of the
       sentencing authority is therefore not eliminated, but is
       restricted to a reasoned consideration of relevant
       aggravating and mitigating circumstances. The
       sentencing decision has not been reduced to a
       mechanical exercise, as it was in Lindsey.

Ferguson v. State, 1996 WL 1056727, at *9.

We find this analysis compelling and thus we will not
hold that Lindsey "required" the Delaware Supreme Court
to find that the amended law violated the Ex Post Facto
clause or that there was an ex post facto violation in this
case. Indeed, in our view we could not possibly hold that
the Delaware Supreme Court's opinions in Cohen and
Ferguson were "opposite" to any opinions of the Supreme
Court. While Delaware's amended law undoubtedly
established standards for a trial court to consider when
imposing sentence in a capital case, the law did not
eliminate discretion from the sentencing process, something
which Lindsey suggested is required to establish an ex post
facto violation. See Lindsey, 301 U.S. at 400-01, 57 S.Ct. at
798-99.

We recognize that the amended law eliminates the
possibility that a defendant will receive a life sentence on
the basis of a single juror refusing to vote for death.
Consequently, we think that it is reasonable to believe that
the amended law makes it more likely that a defendant will
receive a death sentence than would have been the case
under the earlier law. But that circumstance only
establishes that a defendant is "disadvantaged" by the
amended law, which is an insufficient basis to establish an
ex post facto violation unless the change in the law actually
increased the quantum of punishment for the offense. 6 See
_________________________________________________________________

6. We note that the dissenting opinion in Garner pointed out that the
parole board's chairman said its policies "were intended to increase time
served in prison." Garner, 120 S.Ct. at 1373 (Souter, J., dissenting).
Apparently, the majority was not moved by this observation.

                               31
Morales, 514 U.S. at 506 n.3, 115 S.Ct. at 1602 n.3. In
sum, we have considered all of the Supreme Court cases
and simply cannot find that the decisions of the Supreme
Court of Delaware in Cohen and Ferguson are contrary to
any of them, at least to the extent that they have not been
overruled. In fact, we would have reached the result we do
even if we exercised independent judgment in the way
required before the adoption of the AEDPA. See Williams v.
Taylor, 68 U.S.L.W. at 4274. In the circumstances, if we
found an ex post facto violation here we surely would be
unfaithful to our obligations under the AEDPA.

Our conclusion that the decisions in Cohen and Ferguson
upholding the amended law do not violate the "contrary to"
clause of the AEDPA takes us to the question of whether
the Delaware court's result nevertheless was an
unreasonable application of clearly established federal law
as determined by the United States Supreme Court. See 28
U.S.C. S 2254(d)(1). In considering this possibility we will
not repeat our analysis of the Supreme Court cases.
Rather, we merely state that we are satisfied that we cannot
hold that the Delaware Supreme Court's opinions in Cohen
and Ferguson were an unreasonable application of clearly
established federal law as determined by the United States
Supreme Court. Quite to the contrary, we have no basis to
hold that the Delaware Court unreasonably applied the
Supreme Court's ex post facto cases to the facts of this case
or unreasonably refused to extend ex post facto principles
to this case. See Williams v. Taylor, 68 U.S.L.W. at 4276.
Indeed, we think that the Delaware Supreme Court reached
the correct result and, as we have indicated, even
exercising the independent judgment required by pre-
AEDPA law we would have come to the result it did.

We close our consideration of the ex post facto issue with
a final observation. Ferguson argues that under the
amended law the percentage of defendants convicted of first
degree murder sentenced to death has increased
substantially from the percentage under the earlier law in
effect at the time of his offenses. This contention, however,
even if true is without legal significance because the
legislature neither has increased nor made mandatory the
penalty for first-degree murder and the mere fact, if such

                               32
be the case, that the change disadvantaged Ferguson and
other defendants in capital cases cannot lead us to a
different result. Moreover, we must consider the increased
imposition of the death penalty against the circumstance
that under the amended law the court as opposed to a
unanimous jury must determine to impose a death penalty.
Surely it would be expected that, in light of that difference,
there would have been more sentences of death. Yet, as we
have indicated, Ferguson acknowledges that the transfer of
the responsibility to make the ultimate decision to the court
does not in itself raise ex post facto concerns and plainly it
does not. Thus, we reject Ferguson's ex post facto
arguments.

C. Duplicative Aggravating Statutory Circumstances

As we have indicated, during the penalty phase of
Ferguson's case, the state advanced three statutory
aggravating circumstances in support of the death penalty:
(1) Ferguson previously had been convicted of murder,
manslaughter or a violent felony;7 (2) he committed the
murder in this case for pecuniary gain; and (3) he
committed the murder during the course of a robbery. Both
the jury and the court found that the prosecution had
proven each of the three aggravating circumstances with
respect to both counts of first degree murder. But Ferguson
contends that murder for pecuniary gain and murder
during the course of a robbery are the same aggravating
factor as a person who attempts to rob someone necessarily
seeks pecuniary gain. Thus, in his view, the court permitted
the jury to "double count" the factor. Accordingly, he
argues, the sentencing scheme was arbitrary and
capricious in violation of the Eighth Amendment.

(a) Exhaustion

The state argues, as it did in the district court, that the
duplicate aggravating circumstances claim is unexhausted
because Ferguson did not present it to the state courts in
terms of the denial of a federal right. See Duncan v. Henry,
513 U.S. 364, 365-66, 115 S.Ct. 887-88 (1995) (per
_________________________________________________________________

7. The evidence established that Ferguson had been convicted of murder
and aggravated assault.

                               33
curiam). Yet in his supplemental opening brief to the
Delaware Supreme Court, Ferguson cited Espinosa v.
Florida, 505 U.S. 1079, 112 S.Ct. 2926 (1992), in support
of his argument that the court should have instructed the
jury to consider these two duplicative factors as one when
balancing the aggravating and mitigating factors. In
Espinosa, the Supreme Court held that in states where the
sentencer must weigh the aggravating and mitigating
factors, the weighing of an invalid factor violates the Eighth
Amendment. Id. at 1082, 112 S.Ct. at 2928. Thus,
Ferguson supported his argument by citing Supreme Court
case law which directly addressed the Eighth Amendment
argument he advanced. Accordingly, he did present his
duplicative aggravating circumstance claim in terms of the
denial of the same federal right he asserts here.

The state nevertheless emphasizes that the Delaware
Supreme Court did not analyze Ferguson's duplicative
circumstances claim in federal terms. But to satisfy the
exhaustion requirement, a defendant only need have given
the state courts the opportunity to pass on the merits of a
claim. See Picard v. Connor, 450 U.S. 270, 275, 92 S.Ct.
509, 512 (1971). Moreover, in its opinion in Ferguson, the
Delaware Supreme Court indicated that it previously had
held in Deputy v. State, 500 A.2d 581 (Del. 1985), that "the
question of whether these aggravating circumstances are
`duplicative' is a matter of statutory construction, rather
than an issue of constitutionality." Ferguson , 642 A.2d at
782 (citing Deputy, 500 A.2d at 600-01). However, in
Deputy the court relied on its previous decision in Flamer v.
State, 490 A.2d 104, 125 (Del. 1983), which had noted that
in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909 (1976),
the United States Supreme Court upheld a sentence of
death in which these same two allegedly duplicative
aggravating circumstances were presented to the jury
without an instruction to treat them as a single factor. See
Deputy, 500 A.2d at 600-01. The Delaware court in Deputy
noted that in Gregg the Supreme Court held that the
"statutory system under which [the defendant] was
sentenced to death does not violate the Constitution." Id. at
600-01. Therefore, it appears that the Delaware Supreme
Court in Ferguson's case limited its review to a question of
statutory construction in reliance on its conclusion that the

                               34
Supreme Court had rejected the constitutional basis for the
argument. It thus did not confine its review because
Ferguson failed to assert a constitutional claim.
Accordingly, the duplicative aggravating statutory
circumstances claim is exhausted.

(b) Merits of the claim

In our view, the Delaware court read Gregg v. Georgia too
broadly. In Gregg, although the petitioner attacked certain
aggravating circumstances as vague and therefore violative
of the Eighth Amendment, he did not raise a duplicative
aggravating circumstances argument before the Supreme
Court. Indeed, the Court emphasized that it was reviewing
the sentencing system "as a whole". See Gregg, 428 U.S. at
200, 96 S.Ct. at 2938. Thus, notwithstanding the Delaware
court's reliance on Gregg, we are satisfied that it did not
pass on Ferguson's Eighth Amendment constitutional
duplicative aggravating circumstances argument, even
though it had the opportunity to do so. Accordingly, we
cannot say that the Delaware Supreme Court took into
account controlling Supreme Court decisions. This point is
critical because under the AEDPA the limitation on the
granting of an application for a writ of habeas corpus is
only "with respect to any claim that was adjudicated on the
merits in State court proceedings." Hence we exercise pre-
AEDPA independent judgment on the duplicative
aggravating circumstances claim.

In considering the duplicative aggravating circumstances
claim, we recognize that the Delaware Supreme Court's
interpretation of state law is entitled to deference. The court
rejected the claim, holding that under Delaware law, the
robbery and pecuniary gain claims are not always
duplicative. See Ferguson, 642 A.2d at 782. It noted that in
Delaware robbery is defined as forcible theft, which
"encompasses two separate concepts: `[T]he actor may
intend to deprive the owner of property, or his mind may be
focused rather on gain to himself or another mind entitled
thereto.' " Id. (emphasis in original). The court therefore
concluded that not all robberies are committed for
pecuniary gain and thus "those two factors are not always
duplicative." Id. But the Delaware Supreme Court's
explanation of state law does not resolve the duplicative

                               35
aggravating circumstances claim for the court at Ferguson's
trial did not instruct the jury with respect to the two
concepts of theft. See app. at 109-19. Moreover, there was
no evidence at the trial that Ferguson intended to deprive
his victim of his money for any other purpose other than
pecuniary gain. Consequently, the distinction dependent on
the nature of the theft the Delaware Supreme Court in
Ferguson drew was not tied to the circumstances
surrounding the consideration of the aggravating factors at
Ferguson's trial.

We also recognize that the Delaware Supreme Court
further distinguished the two aggravating factors as follows:
"Robbery, as an aggravating factor, focuses on the means of
accomplishing the crime, i.e., force. Pecuniary gain, as an
aggravating factor, focuses on the motive for the crime, i.e.
either gain or owner deprivation." Ferguson , 642 A.2d at
782 (emphasis in original). Once again, although the two
aggravators may be conceptually distinct, the trial court did
not instruct the jury to consider these concepts in the
discrete way the Delaware Supreme Court described them
and consequently, whatever might be true in other cases,
the distinction the court made is not germane here. See
app. at 109-19. Accordingly, we cannot resolve the
duplicative aggravating circumstances issue by holding that
in fact at Ferguson's trial the pecuniary gain and robbery
circumstances were not duplicative.

Nevertheless, even assuming arguendo that the robbery
and pecuniary gain factors were duplicative in this case, we
are satisfied that the jury's consideration of them did not
constitute an Eighth Amendment violation. We held in
Flamer v. Delaware, 68 F.3d 736 (3d Cir. 1995) (en banc),
that Delaware's death penalty statute prior to its 1991
amendment was a "non-weighing statute," that is, after the
jury narrowed the class of persons eligible for the death
penalty based on a finding of at least one statutory
aggravating factor, it then determined whether the
aggravating circumstances, statutory or not, outweighed
the mitigating circumstances. See id. at 745-49. The latter
stage of the sentencing process is described as the
"selection" stage because the jury determines whether the
particular defendant found to be eligible for the death

                               36
penalty should be sentenced to death. See United States v.
McCullah, 76 F.3d 1087, 1106 (10th Cir. 1996). 8 We
reiterate that in making this selection in a non-weighing
state the jury considers all aggravating circumstances, not
merely those enumerated in the statute. See Flamer, 68
F.3d at 749. In contrast, during this latter stage under a
"weighing statute," the jury is required to weigh only the
statutory aggravating factors against any mitigating factors.

Determining whether a sentencing scheme is a "weighing
statute" is pivotal in our duplicative circumstances inquiry.
In Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct.
1441, 1451 (1990), the Court held that in a weighing state
if the jury considers an invalid statutory aggravating
circumstance at the selection stage, on appeal the court
either must reweigh the remaining valid statutory
aggravators and any mitigating circumstance or make a
harmless error analysis. But Zant v. Stephens , 462 U.S.
862, 881, 103 S.Ct. 2733, 2745 (1983), held that in a non-
weighing state the consideration of an invalid statutory
aggravator at the narrowing stage does not render a death
verdict at the selection stage constitutionally infirm,
provided there is at least one valid statutory aggravator
rendering the defendant death penalty eligible. Plainly if
Zant is applicable Ferguson's duplicative aggravating
circumstances argument must fail.

Ferguson makes several arguments in support of
construing the Delaware statute as a weighing statute. He
first contends that notwithstanding our opinion in Flamer
the 1991 amendments transformed the statute into a
weighing statute. See br. at 36. However, as the state notes,
the 1991 amendments did not alter the relevant provisions
regarding what is to be considered during the selection
stage in a capital case. While the amendments did change
the functions of the jury and the court in the sentencing
process, making the court the ultimate decisionmaker, this
modification made the sentencing scheme consistent with
the one at issue in Zant and did not change Delaware to a
"weighing" state. Because the Delaware statute has not
_________________________________________________________________

8. Rehearing was denied in McCullah but the opinion on rehearing is not
germane to the point involved here. See 87 F.3d 1136 (10th Cir. 1996).

                               37
been amended in any significant way relevant to the
duplicative factors issue, we are bound by our persuasive
opinion in Flamer, which concluded that the Delaware
sentencing statute is not a "weighing statute." See Flamer,
68 F.3d at 749. Indeed, Flamer recognized that the 1991
amendments were, with respect to the weighing issue,
"substantially the same" as earlier law. See id. at 740 n.1.
Thus, in light of Zant Ferguson's duplicative aggravating
circumstances argument must fail even if the robbery and
pecuniary gain aggravators are singular in character.

We recognize that Ferguson argues further that the effect
of the jury charge and the special interrogatory submitted
to it was to transform the statute as applied into a
"weighing" sentencing scheme by leading the jury to believe
that it was required to rely on statutory aggravating factors
in recommending a sentence. See br. at 39-41. We rejected
a similar argument in Flamer even though the special
interrogatory in that case arguably could have suggested to
the jury that it could not impose the death sentence at the
selection stage unless it relied on a statutory aggravating
circumstance.

In this case Ferguson's argument is weaker on this
transformation point because the interrogatory submitted
to the jury at his trial was not ambiguous in this respect as
it provided as follows:

       #1 Do you find the following statutory aggravating
       circumstance has been proven to exist beyond a
       reasonable doubt? . . .

       #2 Do you find by a preponderance of the evidence,
       after weighing all relevant evidence in aggravation
       or mitigation which bears upon the particular
       circumstances or details of the commission of the
       offense and the character and propensities of the
       offender, the aggravating circumstances found to
       exist outweigh the mitigating circumstances found
       to exist?

App. at 120-21. Moreover, the interrogatory did not ask the
jury, as was the case in Flamer, see 68 F.3d at 751, to
specify the specific statutory aggravating circumstances on
which it relied, if any, during the selection stage.

                               38
Furthermore, the court specifically instructed the jury that
it was not limited to consideration of the statutory
aggravating circumstances:

       Delaware law specifies certain statutory aggravating
       circumstances which the State may contend exist in a
       particular case. The law does not specify, define, or
       otherwise identify what constitutes a mitigating
       circumstance, but the defendant may offer evidence
       relating to any mitigating circumstance which it
       contends exists in a particular case. The State may
       likewise offer evidence as to matters in aggravation in
       addition to any statutory aggravating circumstances
       they seek to prove.

       An aggravating circumstance is a factor which tends to
       make the defendant's conduct more serious or
       imposition of a penalty of death more appropriate.

       . . .

       After you have decided whether one or more statutory
       aggravating circumstances exists, you must then weigh
       and consider the mitigating circumstances and the
       aggravating circumstances including, but not limited
       to, the statutory aggravating circumstance or
       circumstances that you may have already found to
       exist.

App. at 113-16.

Thus, while court clearly instructed the jury to consider
the statutory aggravating circumstances, the court did not
give the jury the impression that it could not impose the
death penalty unless it relied on one of these factors.
Furthermore, the prosecutor argued at length to the jury
regarding the presence of nonstatutory aggravating factors
and Ferguson's attorney and Ferguson personally argued to
the jury that it should take into account numerous
mitigating circumstances. Accordingly, the interrogatory did
not convert the selection stage at Ferguson's trial into a
weighing process in a Clemons sense.9
_________________________________________________________________

9. We note that in making its decision the court at Ferguson's trial
specifically relied in part on aggravating circumstances that were not
included in the three factors the jury found.

                               39
Ferguson nevertheless suggests that consideration by the
jury of any statutory aggravating circumstances during the
selection stage transforms the statute into a weighing
scheme. See br. at 38-39. To support this argument,
Ferguson focuses on the dissent's reasoning in Flamer;
however, the majority in Flamer rejected this contention.
See Flamer, 68 F.3d at 749. Moreover, the Supreme Court
noted that the statutory scheme in Zant, which was a non-
weighing statute, did not "place particular emphasis on the
role of statutory aggravating circumstances" during the
selection stage. Zant, 462 U.S. at 889, 103 S.Ct. at 2749.
The Court did not indicate that any consideration would
have transformed the statute into a weighing scheme.
Indeed, the Court's opinion presupposes that consideration
of all aggravating circumstances at the selection stage
includes those enumerated by statute. Likewise, in
Delaware, the jury is instructed to consider all aggravating
circumstances, and is not instructed to place particular
emphasis on the statutory factors.

As Ferguson concedes, in reviewing a non-weighing
statute, this court may uphold a death verdict where the
jury considered an invalid statutory aggravating factor, br.
at 36, if the jury also found a valid statutory factor. Of
course, here we know that the jury found at least two valid
statutory factors. Furthermore, while the Supreme Court
held in Zant that merely labeling an aggravating
circumstance as "statutory" may cause a jury to give
somewhat greater weight to that factor during the selection
stage than otherwise would be the case, it recognized that
that circumstance may have an "inconsequential" impact
on the verdict. Id. at 888-89, 103 S.Ct. at 2749. As we
previously noted, the instructions did not suggest to the
jury that it should place any greater emphasis on the
statutory aggravating circumstances during the selection
stage.

Moreover, unlike the situation in Zant and Flamer where
the aggravating circumstances were invalid because they
were too vague to channel a sentencer's discretion in a
capital case, the challenge here is that the jury was
permitted to consider the same factor twice. Yet the court
obviously mitigated the effect of that double consideration

                               40
because it instructed the jury that "[i]n weighing the
aggravating and mitigating circumstances, it is not a
question of mere numbers of each, but rather the relative
weight of each as compared to the others." App. at 116.
Thus, this was not a case in which the jury could have
made its recommendation merely because it determined
that there were three rather than two aggravating factors.
Accordingly, it is perfectly clear that consideration of both
the robbery and pecuniary gain factors did not result in an
arbitrary or capricious imposition of the death penalty.
Overall, we cannot possibly find an Eighth Amendment
duplicative aggravating circumstances violation here even
though our determination of the issue is predicated on our
exercise of independent judgment.

Finally, we point out that it is highly significant that the
jury's finding was only a recommendation that the court
was obliged to consider but ultimately could reject. As we
previously explained, the court regarded the robbery and
pecuniary gain aggravators as one factor. In the
circumstances, we conclude that Ferguson was not
prejudiced by the jury's finding that the two factors were
separate. After all, the jury's consideration of the factors as
discrete could have made a difference in the sentence
imposed only if the jury would have recommended a
sentence of life imprisonment if it considered the robbery
and pecuniary gain factors as singular, and the court would
have followed its recommendation. We think that such a
scenario is far-fetched in view of the court's findings.
Accordingly, even if there was error in the jury considering
the pecuniary gain and robbery factors as separate
aggravating factors, the error was harmless under any
standard against which it could be considered no matter
how exacting.

In recognition that the Delaware Supreme Court
considered Ferguson's duplicative aggravating
circumstances claim on a plain error basis, see Ferguson,
642 A.2d 781, the final issue we directed the parties to
address in the certificate of appealability related to the
possibility of there being an independent and adequate
state ground barring federal review because of a procedural
default in the state courts. Our disposition on the merits of

                               41
the duplicative aggravating circumstances claim makes it
unnecessary for us to consider the procedural default
issue, particularly inasmuch as the Delaware Supreme
Court, in rejecting the duplicative aggravating
circumstances claim on the merits, did not suggest that its
result might have been different if it did not regard the
matter as being before it on a plain error basis. See
Ferguson, 642 A.2d at 781-83. Thus, although 28 U.S.C.
S 2254(b)(2), which provides that "[a]n application for a writ
of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State," is not in
terms applicable to procedural defaults we see no reason
why we should not act consistently with that section when
there is a possible procedural default. Of course, the
procedural default issue differs from the exhaustion of state
remedies issue which, notwithstanding 28 U.S.C.
S 2254(b)(2), we examined because we needed to parse the
Delaware Supreme Court's opinion in Ferguson to
determine the effect of the AEDPA in this case.

III. CONCLUSION

For the foregoing reasons, the order of the district court
of December 13, 1996, denying habeas corpus relief will be
affirmed.

                                42
McKEE, Circuit Judge, concurring.

I agree that Ferguson's claims must fail under AEDPA's
deferential standard of review, and I therefore concur in the
court's judgment. I write separately, however, because I
disagree with several of the observations expressed in the
majority opinion.

Our review here is narrowly confined by 28 U.S.C.
S 2254(d)(1). Affording the deference required by that
statute, I agree that the Delaware courts decided
Ferguson's ex post facto claim in a manner that is neither
"contrary to," nor "an unreasonable application of," the
analysis required under the Supreme Court case law
discussed in section II B of the majority opinion. See Maj.
Op. at 13-27.1 However, my colleagues do not stop there.
Rather, they opine: "we would have reached the result we
do even if we exercised independent judgment in the way
required before the adoption of the AEDPA." Maj. Op. at 32.
That statement is, of course, pure dictum, and I strongly
disagree with it.

This case is governed by AEDPA, and there is no reason
to hypothesize a de novo review of Ferguson's ex post facto
claim. Furthermore, I do not agree that Ferguson's claim
would necessarily fail if we were permitted to afford it
independent review. At the very least, resolution of
Ferguson's ex post facto claim presents an issue over which
reasonable minds can differ, and therefore resolution of the
issue is not nearly as clear as the majority suggests.
Indeed, it is solely because "reasonable" minds can differ on
this very close call that Ferguson's claim fails on habeas
review of the state court ruling. Under AEDPA, we must
defer to "reasonable" state court decisions even though, in
our independent judgment, they are wrong. "Section
2254(d) requires us to give state courts' opinions a
respectful reading, and to listen carefully to their
conclusions, but when the state court addresses a legal
question, it is the law as determined by the Supreme Court
_________________________________________________________________

1. I agree with my colleagues that the Supreme Court's most recent case
of Carmwell v. Texas, 2000 WL 504585 (U.S. May 1, 2000), is not
implicated here given the arguments that Ferguson is making in his
appeal. See Maj. Op. at 24-25.

                               43
of the United States that prevails." Williams v. Taylor, ___
U.S. ___, ___ S.Ct. ___, 2000 WL 385369, *24 (U.S. Apr. 18,
2000) (internal quotation marks omitted). This analytical
paradox is endemic to an analysis under AEDPA, but the
key to resolving it here is the deference that the Supreme
Court has instructed us to afford the decision of the
Delaware Supreme Court.2

In Williams , the Supreme Court confronted the enigmatic
language of S 2254(d)(1). Writing for the majority, Justice
O'Connor amplified the meaning of AEDPA's requirement
that a state court decision be "contrary to," or involve "an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States." The "contrary to" clause, the Court explained,
permits a federal habeas court to grant relief for a
constitutional violation in two scenarios: (1) when"the state
court applies a rule that contradicts the governing law set
forth in [Supreme Court] cases"; or (2) when "the state
court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a result different from[Supreme
Court] precedent." Id. at *24. "[I]n either of these two
scenarios, a federal court will be unconstrained by
S 2254(d)(1) because the state-court decision falls within
that provision's `contrary to' clause." Id. The Court
cautioned, however, that "a run-of-the-mill state-court
decision applying the correct legal rule from [Supreme
_________________________________________________________________

2. The tension inherent in this paradox is illustrated in the Court's
observation that:

       When federal judges exercise their federal-question jurisdiction
       under the judicial power of Article III of the Constitution, it is
       emphatically the province and duty of those judges to say what the
       law is. At the core of this power is the federal courts'
independent
       responsibility -- independent from its coequal branches in the
       Federal Government, and independent from the separate authority
       of the several states -- to interpret federal law. A construction
of
       AEDPA that would require the federal courts to cede this authority
       to the courts of the States would be inconsistent with the practice
       that federal judges have traditionally followed in discharging
their
       duties under Article III of the Constitution.

Williams, 2000 WL 385369, at *9 (Stevens, J., dissenting).

                               44
Court] cases to the facts of a prisoner's case would not fit
comfortably within S 2254(d)(1)'s `contrary to' clause." Id.
The Court cited as an example a case in which a state court
properly considered an ineffective assistance of counsel
claim under the controlling precedent of Strickland v.
Washington, explaining that, "[a]lthough the state-court
decision may be contrary to the federal court's conception
of how Strickland ought to be applied in that particular
case, the decision is not `mutually opposed' to Strickland
itself." Id. The Court noted that such cases are more
appropriately reviewed solely for their "reasonableness." I
believe that best describes our situation here, and we
should therefore focus our inquiry on the reasonableness of
the Delaware Supreme Court's decision.3

The "unreasonable application" clause of S 2254(d)(1)
likewise covers two scenarios: (1) when "the state court
identifies the correct governing legal rule from[Supreme
Court] cases but unreasonably applies it to the facts of the
particular state prisoner's case"; or (2) when"the state
court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it
should not apply or unreasonably refuses to extend that
principle to a new context where it should apply." Id. at
*25. This "reasonableness" inquiry is an "objective" one. See
id. at *26. "[T]he most important point is that an
unreasonable application of federal law is different from an
incorrect application of federal law." Id. at *27. Thus, "a
federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that
application must also be unreasonable." Id. However, the
Court did not define the mercurial line that divides an
"incorrect" from an "unreasonable" application of federal
law. Rather, it simply noted that "an unreasonable
application of federal law is different from an incorrect or
erroneous application of federal law." Id.
_________________________________________________________________

3. However, this is not to suggest that an inquiry under either clause of
AEDPA necessarily displaces an inquiry under the concomitant clause.
We will often have to examine a state court decision under both clauses
of AEDPA.

                               45
Applying the Williams framework here, the majority
properly rejects Ferguson's ex post facto claim. The
Delaware Supreme Court identified the relevant Supreme
Court precedents, and it decided the merits of Ferguson's
claim in a manner that was neither "mutually opposed" to
those precedents, nor "unreasonable" in its application of
them. However, this does not mean that the state court was
correct in its application of federal law.

The Delaware Supreme Court held that,

       [g]iven the teaching in Dobbert, it is clear that the
       changes effected by Delaware's new death penalty
       statute are procedural. The revisions in the law, like
       those in Dobbert, merely altered the method of
       determining imposition of the death penalty. The
       quantum of punishment for the crime of first-degree
       murder in Delaware remains unchanged.

Cohen, 604 A.2d at 853. The simplicity of that analysis is
misleading, and it produces a conclusion that is incorrect,
though not necessarily unreasonable. To be sure,
Delaware's law "merely altered the methods employed in
determining the punishment to be imposed" insofar as it
reassigned the task of imposing sentence from the jury to
the judge. But unlike the statute in Dobbert, Delaware's law
so conflates procedure and substance that it obfuscates the
distinction between the two.

Under the new law, if a judge determines that
aggravating factors outweigh mitigating factors, he or she
must impose the death penalty. The new procedure,
therefore, mandates a substantively different outcome--the
death sentence rather than life without parole -- when
aggravating factors outweigh mitigating factors. One no
longer has the discretion to impose life imprisonment when
the aggravators weigh more heavily in the balance.
Delaware therefore converted what had been only a
discretionary maximum into a mandatory sentence when
the aggravating factors outweigh any mitigating factors. As
the majority quite correctly notes, the trial judge here
observed at sentencing:

       [U]nlike a jury under the old law, this Court, under the
       new law, may consider only whether or not aggravating

                                46
       factors outweigh mitigating factors. The Court may not
       in unfettered discretion refuse to impose a sentence of
       death where aggravating factors are proven and found
       to be of substantial weight and mitigating factors are
       found to be of less weight. The Court may not consider,
       in reaching its decision, mercy, societal concerns,
       proportionality of the sentence to other sentences
       imposed for Murder First Degree in other cases, or any
       other issues not specifically pertaining to `the
       particular circumstances or details of the offense[or]
       . . . the character and propensities of the offender. . . .'
       These factors most likely were considered by and may
       have influenced the jury or individual jury members in
       their decision under the prior statute to recommend or
       fail to recommend death. Under that law, the jury
       clearly acted as `the conscience of the community' and
       could in its unfettered discretion recommend life as the
       appropriate punishment for the crime and offender
       even though it had found the aggravating factors to
       outweigh the mitigating factors.

Maj. Op. at 7 (quoting App. at 129-130).

Thus, the "procedural change" wrought by the new law
precludes a juror from exercising mercy in a given case,
and mutes "the conscience of the community" in
deliberations into whether a member of that community
should be put to death. It is misleading to characterize
such a fundamental change in the law as merely
"procedural." I read Lindsey v. Washington to stand for the
proposition that such a change may well have increased the
quantum of punishment for Ferguson's crime.

The Delaware courts sought to distinguish Lindsey by
citing the Supreme Court's Eighth Amendment
jurisprudence and holding that the new law is not
"impermissibly mandatory." See Cohen, 604 A.2d at 855.
But clearly, a determination that the new law is not
"impermissibly mandatory" sidesteps the crucial question
whether the new law "increased the quantum of
punishment" for Ferguson's offense. The change in
Delaware's law could not have eliminated discretion without
violating the Eighth Amendment. See Furman v. Georgia,
408 U.S. 238 (1972). Thus, even if we assume that

                               47
Delaware's new law passes muster under the Eighth
Amendment because it affords an individualized inquiry
before sentence is imposed, that does not mean that
retrospective application of that law to Ferguson's case did
not make the death sentence "mandatory" by eliminating
the discretion to impose a life sentence after it was
determined that the aggravating circumstances outweighed
mitigating circumstances.

The Delaware Supreme Court also sought to distinguish
Lindsey by ruling that a death sentence is not truly
"mandatory" because the judge must assign a"relative
weight" to the aggravating and mitigating factors before
determining which sentence--life imprisonment or death--
is required by the new statute. The state court concluded
that, given the presence of this "weighing process," "[t]he
sentencing process remains basically discretionary, merely
shifting the ultimate decision from the jury to the trial
judge." Cohen, 604 A.2d at 855. The District Court agreed,
stating that "[t]he sentencing decision has not been reduced
to a mechanical exercise, as it was in Lindsey ." This
"distinction" is irrelevant.

While the new law required a "predicate" assessment of
the relative weight of the sentencing evidence before the
mandated sentence was imposed, that did not make the
imposition of this death sentence any less mechanical. As
noted, to survive scrutiny under the Eighth Amendment,
Delaware must allow for individualized findings of fact
before the death sentence is imposed. See, e.g., Blystone,
494 U.S. at 305. Thus, it is specious to distinguish Lindsey
by asserting that, because the new law did not require
imposition of a death sentence at the very moment
Ferguson was convicted, the law somehow lost its
"mandatory" and "mechanical" nature. In the context of
capital punishment jurisprudence, it clearly did not.
Rather, the Delaware law is the capital sentencing
equivalent of the law deemed ex post facto in Lindsey. The
dispositive issue in Lindsey was that a previously optional
maximum became mandatory, not the procedural context
in which that metamorphosis occurred. Thus, the state
court's reliance upon what it perceived to be the difference
between the statute in Lindsey ("the penalty for this offense

                               48
shall be fifteen years in prison") and the statute here ("if, at
sentencing, the judge finds that the aggravating factors
outweigh the mitigating factors, the sentence shall be
death") does not further the inquiry. "Subtle ex post facto
violations are no more permissible than overt ones." Collins,
497 U.S. at 46.

It is also obvious that Delaware's new law had exactly the
intended result. Delaware enacted the new sentencing
scheme to make it more difficult for convicted murderers to
escape execution. The Delaware Supreme Court has noted
that

       the catalyst for the legislation changing the death
       penalty statute was the imposition of life sentences on
       defendants by a New Castle County jury in a much
       publicized capital murder case involving the execution
       style murders of two armored car guards.

Cohen, 604 A.2d at 849. The reaction reflected the
community's justifiable outrage over those murders.
Ferguson contends that a vastly higher proportion of
defendants have been sentenced to death under the new
statute. He argues, therefore, that Lindsey prevents
Delaware from applying the new statute to him. He asserts
that of the 28 defendants who have been sentenced under
the amended statute, 15 (more than 50%) have been
sentenced to death. Of the 29 defendants sentenced under
the old statute in the 6 years prior to the amendment, only
1 (less than 4%) was sentenced to death.4

The majority minimizes this argument in part by noting:

       we must consider the increased imposition of the death
       penalty against the circumstance that under the
       amended law the court as opposed to a unanimous
       jury must determine to impose a death penalty. Surely
       it would be expected that, in light of that difference,
       there would have been more sentences of death.

Maj. Op. at 33 (emphasis added). The majority cites no
authority for this speculation, and I submit that it is at
_________________________________________________________________

4. The state disputes this latter figure, stating that 10 defendants were
sentenced to death under the previous statute.

                               49
least as likely (indeed more so) that this change would, by
itself, reduce the number of death sentences. After all, one
can safely assume that trained jurists are less likely to
allow the emotions that so often percolate into the fabric of
death penalty proceedings to impact their judgments about
the cases that are submitted to death qualified juries.
Moreover, there is a significant school of thought that a
jury that has been "death qualified" is more prone to
convict, and one might argue more prone to impose the
death penalty, than a jury composed of persons opposed to
the death penalty. See Witt v. Wainwright, 470 U.S. 1039
(1985) (and cases cited therein). Finally, I think it fair to
assume that a trained jurist who has been exposed to
numerous homicide cases has a better frame of reference
than a lay jury, and therefore less likely to be as outraged
about a given homicide as lay jurors who have never seen
a homicide, or a convicted killer, "up close and personal."
Accordingly, the trained jurist may often be far less likely to
assume that the ultimate sanction is required in a given
case.

I think it is obvious that the new statute is significantly
more likely to result in the death penalty than the statute
in effect at the time of Ferguson's crime. However, as the
majority correctly notes, that does not necessarily implicate
the Ex Post Facto Clause. See Collins v. Youngblood, 497
U.S. 37 (1990). However, that clause would be implicated
under the aforementioned Lindsey analysis under de novo
review, and I believe that Delaware's retrospective
application of the challenged statute to Ferguson's case
would violate the Ex Post Facto Clause under Lindsey.

That said, I am constrained, nevertheless, to agree with
my colleagues that the state court's treatment of Lindsey
and the other Supreme Court precedents must be upheld in
light of S 2254(d)(1)'s mandate. Under the"contrary to"
clause, the Delaware Supreme Court cited and applied the
correct law. To paraphrase Williams, while I believe the
state court decision does not square with my "conception of
how [Lindsey] ought to be applied in th[is] particular case,
the decision is not `mutually opposed' to [ Lindsey] itself."
Williams, 2000 WL 385369, at *24. Nor is it unreasonable
to hold that Delaware's new law limited the factors that

                               50
could be considered before sentence was imposed upon
Ferguson, and still conclude that the law did not eliminate
all discretion from the sentencing process. As the majority
explains, that is something that Lindsey (and subsequent
Supreme Court precedent) can be fairly said to require for
a law to contravene the ex post facto prohibition.

Nor can I conclude that the Delaware Supreme Court was
"objectively unreasonable" (as opposed to"incorrect") in its
application of, or "refusal to extend," clearly established
federal law to the facts of Ferguson's case. Thus, while I
concur in the Court's judgment, I do so solely because I
agree that the result we reach is required under AEDPA.

I also agree that Ferguson's challenge to the duplicative
nature of the aggravating factors must fail, but for reasons
that I must distinguish from the analysis of my colleagues.
I believe Ferguson's "double counting of aggravating factors"
claim fails solely because the trial judge in this case stated
that he counted the robbery and pecuniary gain
circumstances as one factor during the weighing process.
The record is clear that the judge placed "no independent
weight" on the pecuniary gain aggravator. It was the judge's
assessment of the sentencing factors, not the jury's, that
sealed Ferguson's fate. Thus, regardless of the merits of
Ferguson's Eighth Amendment claim in the abstract, it is
clear that the jury's consideration of the two circumstances
(though problematic) had no bearing on his sentence, and
Ferguson can show no prejudice as a result. Nevertheless,
I think Ferguson's argument as to the alleged "double
counting" is much stronger than the majority suggests, and
I do not join the majority's lengthy discussion of the merits
of this claim. I do, however, join the majority's conclusion
that the record does not support the Delaware Supreme
Court's resolution of the claim, and the majority's
conclusion that Ferguson was not prejudiced by double
counting because the sentencing judge didn't double count.

Accordingly, for the reasons set forth above, I concur in
the judgment of my colleagues.

                               51
A True Copy:
Teste:

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

                               52
