                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-28-2006

Shelton v. Carroll
Precedential or Non-Precedential: Precedential

Docket No. 04-9004




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                                            PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                        NO. 04-9004
                          _____

                   STEVEN SHELTON,

                             Appellant,

                              v.

              THOMAS CARROLL,* Warden,
               Delaware Correctional Center.

         *(Amended - See Clerk's Order of 11/23/04)
                          _____

       On Appeal From the United States District Court
                 For the District of Delaware
                (D.C. Civ. No. 00-cv-00078)
         District Judge: Honorable Sue L. Robinson
                            _____

                    Argued July 27, 2006


 Before: RENDELL, AMBRO, and FUENTES, Circuit Judges.

             (Opinion filed: September 28, 2006)

Thomas A. Pedersen
727-B North Market Street
Wilmington, DE 19801

Michael W. Modica (Argued)
P.O. Box 437, Suite 300
715 King Street
Wilmington, DE 19899
ATTORNEYS FOR APPELLANT

Thomas E. Brown (Argued)
Deputy Attorney General
Delaware Department of Justice
820 North French Street
Wilmington, DE 19801

ATTORNEY FOR APPELLEE

                               _____

                   OPINION OF THE COURT
                           _____

FUENTES, Circuit Judge.

        In 1993, Steven Shelton was convicted by a Delaware
jury of first-degree murder and sentenced to death. After
exhausting his state court remedies, Shelton filed a 28 U.S.C. §
2254 petition for a writ of habeas corpus in federal court. The
United States District Court for the District of Delaware denied
relief, and Shelton now appeals. Shelton argues first that trial
counsel was ineffective in investigating and presenting
mitigating evidence at the penalty phase of his trial. Second,
Shelton asserts that his right to a fair sentencing hearing was
violated by the trial court’s limitation on the scope of his
allocution. For the reasons that follow, we agree with the
District Court’s ruling that Shelton’s counsel was not ineffective
in his investigation and presentation of mitigating evidence and
that Shelton’s right to a fair hearing was not violated by the trial
judge’s limitation of Shelton’s statement (called allocution) to
the sentencing jury.

I.     FACTUAL AND PROCEDURAL BACKGROUND 1



       1
        The factual and procedural background of this case is
well-documented in the prior opinions of the District Court and
the Delaware state courts. See Outten v. State, 650 A.2d 1291

                                 2
       A.     The Murder

       On January 11, 1992, appellant Steven Shelton
(“Shelton”), his brother Nelson Shelton, his cousin Jack Outten,
and Nelson Shelton’s girlfriend, Christine Gibbons, spent the
afternoon drinking approximately one and one-half cases of beer
at Gibbons’ home in Newark, Delaware. At some point, the
group discussed going to a bar where Gibbons would pose as a
prostitute in order to lure men outside of the bar where Outten
and the Sheltons could rob them. After stopping at several
establishments in the area, the group eventually convened at a
bar in New Castle known as “Fat Boys” or “Green Door.”
There, Gibbons met and talked with a stranger, Wilson Mannon,
who bought her drinks. After last call, Mannon left with
Gibbons, Outten, and the Sheltons in Nelson Shelton’s car. The
next day, January 12, 1992, police discovered Mannon’s body on
a deserted street in East Wilmington. Mannon’s skull was
completely shattered, his pockets were turned inside out, and his
empty wallet was lying on the ground nearby. See Shelton IV,
2004 U.S. Dist. LEXIS 5538, at *5-8.

       B.     The Trial

       On January 21, 1992, Outten and the two Shelton brothers
were indicted for first-degree murder, first-degree felony
murder, first-degree conspiracy, first-degree robbery, and
possession of a deadly weapon during the commission of a
felony. The three men were tried together by a jury in the
Superior Court of Delaware over a period of one month.

       Gibbons served as the prosecution’s principal witness at



(Del. 1994) (denying direct appeal) (Shelton I); State v. Outten,
No. CR. A. IN 92-01, 1997 WL 855718 (Del. Super. Ct. Dec.
22, 1997) (denying motion for post-conviction relief) (Shelton
II); Shelton v. State, 744 A.2d 465 (Del. 2000) (affirming denial
of post-conviction relief) (Shelton III); Shelton v. Snyder, Civ.
No. 00-78-SLR, 2004 U.S. Dist. LEXIS 5538 (D. Del. Mar. 31,
2004) (denying 28 U.S.C. § 2254 petition) (Shelton IV).

                                3
trial.2 She ultimately testified that all three men beat Mannon
and that Shelton kicked and punched Mannon in the face.
According to Gibbons, Nelson Shelton hit Mannon with a
hammer on the back of the head, causing Mannon to fall to the
ground. Outten then struck Mannon in the face and head
approximately ten times with a large object Gibbons described as
a “sink.” 3 Shelton II, 1997 WL 855718, at *7. The medical
examiner testified that Mannon died of wounds to the face and
head and blows to the brain. None of the defendants testified at
trial.

       On February 24, 1993, following two days of
deliberations, the jury found the defendants guilty of all charges.

       C.     Penalty Phase 4

       The first discussions between the trial court and counsel
concerning the penalty phase of the proceedings took place at a
conference on February 24, 1993, during the jury’s second day
of deliberations. Id. at *17. Outten’s counsel briefly mentioned
his plans for the penalty hearing to the trial court. Shelton’s
counsel indicated that while he had begun interviewing
witnesses, he was anticipating a potential dilemma about what he
could present at the hearing. Nelson Shelton’s counsel stated
that he had twelve witnesses, but that his client might not want


       2
         Gibbons initially provided inconsistent statements to
investigators and at trial exculpating certain of the defendants.
She later recanted and testified that all three defendants had in
fact participated in the murder. A detailed account of Gibbons’
conflicting statements is set forth in Shelton IV, 2004 U.S. Dist.
LEXIS 5538, at *7-14.
       3
       The object was in fact the top of a discarded washing
machine.
       4
        Because Shelton’s arguments in this appeal relate to the
penalty phase of his trial, we provide a detailed account of those
proceedings and, where appropriate, quote extensively from the
record.

                                 4
to present any mitigating evidence. Id.

        Later that day, after the jury returned its guilty verdict, the
trial court asked counsel, in the presence of the defendants, what
each of their clients intended to present at the penalty hearing.
Outten’s counsel stated that they planned to present mitigating
evidence at the hearing, but Shelton and his brother stated that
they would not be presenting such evidence. Shelton also stated
that he wanted to proceed without counsel. Id.

       Shelton’s counsel explained to the court:

       Your honor, my client has advised me that he has
       maintained his innocence throughout this trial, and
       that if he was found guilty, he has no wish to bring
       any family members or anyone else in his behalf
       into this courtroom to plea for him. He does not
       wish to plea for mercy. He does not wish to plea
       for mercy in any way. He does not wish to put in
       any mitigating circumstances whatsoever. He’s
       prepared to take whatever faces him. He’s
       instructed me that I am not to put on mitigating
       factors in his behalf, and he’s just now told me that
       he does not wish me to represent him any further;
       that he’s giving notice to the Court that he wishes
       to represent himself and that I am not to say much
       more than that for him at this point.

Id. at *47.

       The trial court then asked Shelton’s counsel what he had
done in preparation for the penalty phase of the trial:

       COUNSEL: Well, Your Honor, I’ve just spent the
       last three and a half hours with his family, his
       mother and his sister. They were my original plan.
       They are two witnesses that I originally intended to
       call in his behalf.
       THE COURT: What were they going to say?
       COUNSEL: Your Honor, they were going to talk

                                   5
       about his life, what kind of kid he was, what kind
       of upbringing he’s had, all the difficulties in his
       life, what kind of a family-
       ....
       SHELTON: It’s none of your business what my
       family has to say in my behalf.
       THE COURT: I have to make a record. Numerous
       court opinions have made that quite clear. What
       they would have gone into, [counselor].
       COUNSEL: Your Honor, his childhood, his
       upbringing, his life, their relationship with him.
       THE COURT: Based on your discussion with
       them, were there any other witnesses or areas that
       you might have wanted to explore such as
       schooling or things like that?
       COUNSEL: Nothing like that, Your Honor, no.
       There would be a real strong possibility that if I
       had my way, if my client would have so allowed
       me, I would be calling also his nieces.
       THE COURT: For what purpose?
       COUNSEL: And perhaps his step-brother for the
       same reason, Your Honor, to show the family
       relationship and their love for him.

Id. at *48.

       Next the trial court inquired about counsel’s discussions
with Shelton concerning counsel’s preparation for the penalty
phase of the proceedings:

       THE COURT: How much of this have you
       discussed with [Mr. Shelton], particularly
       apparently because you were in your office a little
       while ago discussing these matters with–
       COUNSEL: Your Honor, [Mr. Shelton] has from
       very early on told me his position in this regard,
       and I told him what my intentions were. He, in
       fact, instructed me not to talk to his mother and not
       to talk to his sister, and to absolutely–
       THE COURT: When did he tell you that?

                                 6
       COUNSEL: Just in the past couple of days when I
       told him of the dilemma . . . Your Honor . . . [,] I
       told him that as an officer of the Court I felt that I
       had to at least prepare because Your Honor could
       very possibly rule against me and him on his
       position in this regard so that therefore I was
       honor-bound to this Court to prepare something.
       He advised me that it was his strongest wishes that
       I not do that and, if I may, for the record, Your
       Honor, [Mr. Shelton] has advised [sic] will not
       now allow his mother even to visit him in prison
       because he does not want to cause anyone more
       pain or hurt in his family. He wants to remove
       himself from those people. He does not wish to
       have them be put in here and be put through this.
       That’s his sincere and honest wishes, Your Honor.

Id. at *48-49.

       The court asked counsel for his views on Shelton’s
decision not to present mitigating evidence:

       THE COURT: As his counsel, are you indicating
       that you disagree with his decision to not present
       mitigating evidence?
       COUNSEL: Your Honor, because I could possibly
       save him from the death penalty, I do. However,
       Your Honor, I believe that his dignity as a human
       being comes first, and my duty to him as an
       attorney goes to that issue first, and I also believe,
       Your Honor, as my client has said to me in this
       case, “I have maintained my innocence throughout,
       but this case is so horrible there’s nothing I can say
       that would make any difference to this jury” and as
       a strategic matter, he feels that the jury would hold
       him in a higher regard, in a higher respect, if he
       said nothing, and in that regard, Your Honor, I
       believe that its possible that the jury could say and
       feel that if we presented no mitigating
       circumstances, that they could feel by the man’s

                                 7
       silence and acceptance of his position that that is a
       more honorable, better thing that he’s doing than
       to parade witnesses in here in his behalf, and they
       could, in fact, find that that single silence
       overweighed the aggravating factors. So I think
       there’s a distinct possibility, I have to say, Your
       Honor–morally I agree with my client that he’s
       entitled to the human dignity to go to his death if
       need be without fighting it and without having to
       come into this courtroom. As he said, “I will not
       crawl, I will not be part of begging for mercy from
       anyone,” and I believe that he is absolutely entitled
       to that dignity. That perhaps, Your Honor, may be
       his last opportunity.

Id. at *49.

       The trial court then addressed Shelton directly:

       THE COURT: . . . [Y]ou asked for some time to
       collect your thoughts and maybe talk to [trial
       counsel]. I don’t know whether you spoke to [trial
       counsel]. Have you had enough time as of the
       moment to collect your thoughts about this?
       SHELTON: Yes, I have, Your Honor.
       THE COURT: Go [a]head.
       SHELTON: In light of the decision of the jury, I
       wish to dismiss my lawyer. I wish to further
       represent myself in this penalty phase. I feel that
       [trial counsel] has made his application to me. I
       paid him. He made his application to me as far as
       representing me through this trial even though I
       felt that he was insufficient in representing me
       through the trial, that the Court has denied me my
       right, I feel, since I paid for him, my right or
       decision to dismiss him during the trial. During
       this penalty phase I wish to represent myself. In
       respect to the victim’s family, I do not wish to
       have my family in here in front of the jurors. The
       Court has found me guilty or the jurors has [sic]

                                 8
found me guilty of the evidence that the State has
presented to them. I wish or I plead with the Court
to use the evidence that the State has presented
them with in the penalty hearing. I still retain my
innocence in this matter, and what I’m doing is
asking the Court to use the evidence which they
convicted me on.
THE COURT: They do. That’s almost automatic
if you will.
SHELTON: Then what I’m asking the Court is not
to allow me or my attorney which I am-I don’t
want him to do anyway, to flaunt my family in
front of the jurors and in front of the victim’s
family. I accept the decision, and I am asking the
Court that I don’t wish to flaunt any–
THE COURT: How long have you been thinking
about this [Mr. Shelton]?
SHELTON: Quite sometime.
THE COURT: Can you tell me or put some time
frame on that? Are you talking about days, hours
or what?
SHELTON: Months.
THE COURT: That if it got to this stage, you
didn’t want to have anything said at the penalty
phase?
SHELTON: Yes, sir.
THE COURT: When did you and [trial counsel]
ever first talk about that? Or when did you ever
first tell him in relation to this trial that that was
your wish?
SHELTON: Months ago.
THE COURT: He mentioned before we recessed
the fact that these were your wishes from early on I
think were his words. You expressed to him some
months ago that you desired that if you were found
guilty of first degree murder, you did not want any
mitigating evidence presented to the jury at the
penalty phase?
SHELTON: That is true.
THE COURT: Do you understand that you have

                          9
       the right to call witnesses to come in here and
       testify in front of this jury about why a life
       sentence should be appropriate? That’s mitigating
       evidence.
       SHELTON: I understand that completely.
       THE COURT: You’re sure?
       SHELTON: Yeah. Yes, I understand that
       completely, and I do not want it.

Id. at *49-50.

       Counsel explained his own position on the matter:

       Your Honor, as I have discussed, as we have
       discussed this and was first mentioned many, many
       months ago. It was my sincere hope that [Mr.
       Shelton] would not pursue this avenue and that he
       would allow me to speak in his behalf, and in fact,
       I urged him, if not for him, for the other two
       gentlemen or for anybody whoever may come
       down after him; that there may be something said
       against capital punishment and in behalf of a
       sentence of life rather than death. He has
       throughout our discussions maintained a very
       straightforward and competent attitude to me that
       it was a sincere, honest, firm desire that he did not
       wish to be part of any sort of a plea or a request for
       mercy; that it’s not his way, it’s not in him; that the
       jury has found him guilty and he’s ready to take his
       medicine.

Id. at *50.

       Concerned that Shelton had not fully considered the
implications of his decision, the trial court instructed Shelton to
spend additional time thinking about his request. Id. at *18. The
following day, February 25, 1993, in accordance with state
procedural rules, Shelton’s counsel submitted to the court and
the prosecution a letter setting forth forty-three potential



                                 10
mitigating factors.5 Id. The full text of the letter reads as
follows:

       This letter is in response to the State’s notice of the
       statutory aggravating circumstances upon which
       they will rely in the penalty phase of the hearing.
       Defendant, [Steven Shelton], will rely upon the
       following mitigating circumstances:

       1.     That he was raised in a three bedroom
              house with 10 other half-brothers and
              sisters.
       2.     That his family experienced extreme
              financial difficulties as a result of his
              father’s inability to work.
       3.     That [Mr. Shelton] was happy as a very
              young child until he began experiencing
              great difficulty in school.
       4.     That he became truant from school very
              regularly at the ages of 10 to 13 years of
              age.
       5.     That at the age of 13, he was incarcerated at
              the Ferris School for truancy.
       6.     That at the age of 15, he was charged with
              the crime of rape and tried as an adult and
              was sentenced to a lengthy period of
              incarceration.
       7.     That while incarcerated as an adult, he was
              convicted of a crime within the prison and
              received an additional sentence.
       8.     That [Mr. Shelton] was released from
              prison in August of 1991, at the age of 26
              years, having served half of his life in
              prison.


       5
         Under D EL. C ODE A NN. tit. 11, § 4209(c), in cases in
which the death penalty is a potential punishment, each side is
required to give notice to the other of the aggravating or
mitigating circumstances on which they intend to rely. Shelton
II, 1997 WL 855718, at *18.

                                 11
9.    That [Mr. Shelton] was raised in a home
      with a father who was severely crippled,
      having lost his legs in an industrial accident.
10.   That [Mr. Shelton]’s father was an
      alcoholic, who was physically, verbally and
      emotionally abusive to the children.
11.   That [Mr. Shelton]’s brothers and sisters
      were taken from the home and placed in
      foster care a number of times and his family
      had been regularly broken up for that
      reason.
12.   That all of [Mr. Shelton]’s older brothers
      became involved in some sort of juvenile or
      adult criminal activity and all of them were
      incarcerated at either Ferris School or at an
      adult facility.
13.   That [Mr. Shelton], at the age of 10 and 11,
      was forced to go out at night to find his
      father, who was drinking in local bars, and
      push him home in the wheelchair.
14.   That [Mr. Shelton]’s father would regularly
      whip him with a belt or a paddle, leaving
      welts and temporary marks which
      embarrassed him at school.
15.   That [Mr. Shelton], at a very early age, was
      required to wear glasses which embarrassed
      and humiliated him in school and caused
      him to be the brunt of children’s jokes and
      often violent attacks.
16.   That [Mr. Shelton] was raised in a racially
      mixed neighborhood where there was great
      racial tension.
17.   That [Mr. Shelton], as a young child, was
      regularly beaten and stolen from by blacks
      in his neighborhood.
18.   That [Mr. Shelton]’s family did not require
      him to attend church as a young child and in
      his teenage years those efforts were
      unsuccessful.
19.   That [Mr. Shelton], at the age of 15, was


                        12
      charged with rape and was tried as an adult
      and sentenced to 8 years incarceration.
20.   That despite the trauma and turmoil of his
      childhood and family life, he maintained a
      very close, warm relationship with both his
      mother and all of his brothers and sisters.
21.   That [Mr. Shelton], since his last release
      from incarceration, has worked regularly for
      his sister and that he was a responsible and
      effective worker.
22.   That [Mr. Shelton], during his spare time,
      remodeled a home for his sister so that she
      would have a place to live.
23.   That during the period of time after his
      release from his last incarceration, [Mr.
      Shelton] worked full-time during the day
      with his sister and had a second job at night
      on a part-time basis.
24.   That [Mr. Shelton] after his release from
      incarceration, was very mature and
      responsible regarding his work obligations.
25.   That he seemed to demonstrate a need to
      relive his teenage years which he had spent
      in prison and thus would drink heavily at
      times and insisted on living life to its
      fullest.
26.   That [Mr. Shelton] enjoys a very close,
      warm relationship with his sister Louise and
      her children.
27.   That he is particularly close to his three
      nieces with whom he had demonstrated a
      great deal of affection and who are very
      close to him and would testify on his behalf.
28.   That [Mr. Shelton] has demonstrated an
      inordinate concern for the well-being of his
      sisters and had regularly made extensive
      efforts to care for them and to protect them.
29.   That [Mr. Shelton] has recently refused to
      allow his mother to visit him in prison
      because of the anxiety and concern which it


                       13
      causes her.
30.   That [Mr. Shelton] has always been a
      respectful and caring son to his mother.
31.   That [Mr. Shelton] regularly cared for his
      mother, who as [sic] been very ill after a
      kidney transplant, and that he cared for her
      and provided her food and household
      services.
32.   That [Mr. Shelton]’s father died on
      February 12, 1990, while he was
      incarcerated.
33.   That defendant, [Mr. Shelton], was
      permitted to attend his father’s funeral but
      only under guard and was not allowed to
      spend any time with him [sic] family to
      mourn his father’s death. Additionally, his
      brother [Nelson Shelton], who was also
      incarcerated, was not allowed to be present
      with him and they were not permitted to
      comfort each other with the family at his
      father’s funeral.
34.   That [Mr. Shelton] took the death of his
      father very hard and was very depressed and
      emotionally disturbed by his death.
35.   That [Mr. Shelton], like his father, was a
      very strong-willed individual.
36.   That when [Mr. Shelton] was a young boy,
      he experienced the rape of his sister in his
      neighborhood and that had a very traumatic
      effect upon his life.
37.   That [Mr. Shelton’s] father was both
      physically abusive and cruel to him and was
      particularly cruel to him verbally and
      emotionally.
38.   That [Mr. Shelton] grew up in a situation
      where nothing he could do was appropriate
      and right in his father’s eyes and that he
      was subjected to constant emotional abuse
      because of that.
39.   That [Mr. Shelton], as a young child on at


                       14
               least two occasions, was assaulted and
               robbed while he was trick or treating.
       40.     That [Mr. Shelton]’s family would testify
               that his father never told [Mr. Shelton] that
               he loved him and that such words were
               never used in his presence.
       41.     That [Mr. Shelton]’s father was an alcoholic
               and from his earliest years, [Mr. Shelton]
               was subjected to this behavior. There is
               some evidence from the family that [Mr.
               Shelton] himself may suffer from an alcohol
               problem although he has never been so
               diagnosed.
       42.     That [Mr. Shelton] would regularly
               intercede between his brother [Nelson
               Shelton] and [Christine Gibbons] to prevent
               violence and that he worked with both of
               them extensively trying to make them
               resolve their conflicts without violence.
       43.     That [Mr. Shelton]’s mother was also an
               alcoholic, who regularly physically abused
               her children and that [Mr. Shelton] was
               both a victim of and witness to this abuse.

Id. at *18, n.16.

        On February 26, 1993, Shelton was again called before
the trial court. For the second time, Shelton stated that he
wanted to proceed without counsel. Id. at *18. Counsel offered
the following explanation of Shelton’s decision:

       COUNSEL: Now, Your Honor, one other point.
       You have asked [Mr. Shelton] about what I
       explained yesterday, and I’m not sure if I am
       expressing his words. I would say that we initially
       talked about–and maybe it answers Your Honor’s
       question, [Mr. Shelton] said to me at one point, my
       feeling is that this was such a grievous, horrible
       murder, that there is nothing I could put in front of
       the jury that would make them have enough mercy


                                15
       on me to give me life rather than death, and in fact,
       begging for mercy in front of this jury may have an
       adverse effect. They may feel that because, after
       being found guilty of this crime, if I come in here
       and plead for mercy, that may turn them off, and
       make them want to give me death. They may think
       less of me as a man if I plead for mercy. So as a
       strategic matter, there is the potential that he would
       be better off in getting a life sentence by saying to
       the jury, I have nothing to say. I will not ask–I will
       not put on mitigating circumstances and I will
       allow you to make your decision on the evidence
       the State has put forward, and that because–that a
       jury may very well look at that and say, here is a
       man who has been found guilty and is not going to
       plead for mercy, and we respect him for that . . . .
       That was the discussion that Steve and I have had.
       I hope I’m not saying something he doesn’t want
       me to say because when you asked him that
       question, he didn’t respond that way.
       SHELTON: That’s pretty close.

Id. at *51-52.

       The trial court then engaged Shelton in a lengthy
discussion. The court reviewed with Shelton several of the
mitigating factors set forth in counsel’s February 25 letter, which
Shelton said he had already reviewed with counsel. Id. at *52.
The trial court explained to Shelton that if he did not present any
evidence to the jury at the penalty hearing, the jury would not
hear about any of these potentially mitigating circumstances.
Shelton repeated that he understood the consequences of his
decision. Id. The trial court thereafter ruled that Shelton could
proceed pro se and his attorney was appointed as standby
counsel. Id. at *18.

       On the day of the penalty hearing, March 1, 1993, counsel
informed the trial court that Shelton had changed his mind and
now wanted counsel to represent him at the hearing provided
certain conditions were met. Shelton had to be able to approve


                                16
all of his counsel’s questions to witnesses, have veto power over
which witnesses would be called, and have the right to speak in
allocution. In addition, his counsel would be permitted to make
a closing argument to the jury. Id. at *18-19.

      With respect to the scope of the mitigating evidence that
would be presented, counsel explained:

       COUNSEL: I submitted a list to Your Honor of
       mitigating circumstances. I intended to call
       several witnesses to produce that. Already in our
       discussions, [Mr. Shelton] has advised me that I
       will not be able to call those witnesses. There’s
       possibly one witness who will be called for three
       or four very brief questions. And in fact, my list of
       questions that I prepared for that witness, I have
       this morning reviewed with [Mr. Shelton], and
       he’s advised me that he will not allow me to even
       ask some of those questions. And he tells me that
       sometime later today, we will meet and will hone
       down those questions to the one witness to his
       liking. And I would be permitted to ask only those
       questions, and then give my closing arguments.
       There may be more than one witness.
       THE COURT: You just want to keep your options
       open?
       COUNSEL: Yes, Your Honor.
       THE COURT: Is that correct, [Mr. Shelton]?
       SHELTON: That is correct.

Id. at *53.

       The Court again questioned Shelton directly about his
decision:

       THE COURT: [Trial counsel] has indicated there
       are some matters of the forty-three he listed in his
       letter of potential mitigating circumstances here,
       mitigating factors, that you do not want some of
       them presented to the jury. Is that correct?


                                17
       SHELTON: That’s correct.
       THE COURT: And you would like him to stay in
       this case as [y]our attorney, and have him represent
       you, but on the condition that you be able to decide
       to present certain of those matters but to not
       present other matters. Is that correct?
       SHELTON: That is correct. Only what I instruct
       him to bring up is basically all that I would want
       him to bring out. I understand [trial counsel]’s
       position against the death penalty, and I respect
       that decision, as he respects my decision, and I feel
       that I’m not doing nothing unethical in his belief as
       far as his representation of me.
       THE COURT: How, if you retain the right to not
       present some or any, shall we say, of the forty-
       three items he’s listed in the letter, okay, do you
       understand that you may or you are–may be or you
       are keeping from the jury and from me certain
       mitigating factors?
       SHELTON: I understand that completely.

Id.

        The joint penalty hearing for Outten and the Shelton
brothers commenced with opening statements by the prosecution
and the defense. Shelton’s counsel stated to the jury: “My client
has instructed me to advise you that he will not be begging for
his life in this case.” Id. at *19.

       The prosecution then presented evidence relating to
Shelton’s prior criminal history, including testimony about
Shelton’s 1982 conviction for rape, his 1985 conviction for
assault, his assault of a fellow inmate while incarcerated for the
rape, and his arrests in 1991 and 1992 for first-degree robbery
and driving under the influence. Id. at *19-20.

       The defense then presented its mitigation case to the jury.
Shelton’s older half-brother, Edward, and two older half-sisters,
Dorothy and Louise, were the only witnesses to testify on his
behalf. Edward explained that there were eleven children in the


                                18
Shelton household. Five children were from their father’s
previous marriage and four were from Shelton’s mother’s
previous marriage. Shelton and his brother Nelson were the
only two biological children of both parents. Id. at *23. Edward
stated that their father had lost both of his legs in a work
accident, drank a lot, beat his children regularly while rarely, if
ever, expressing affection. Edward said that Shelton was very
upset when their father died in 1990. Id. With respect to his
own life, Edward testified that when he was twelve years old, he
contacted a social worker to help him get out of the house. He
described his own problems with violence and substance abuse,
explaining that he had only recently managed to straighten
himself out. Id.

        Shelton’s thirty-nine year-old half-sister, Dorothy,
testified that she had moved out of the house when she was a
teenager because of the anger and violence there. Dorothy
explained that her parents

       were incapable of handling the task they took on.
       And the task was a blended family, which
       developed into nine children, which developed into
       eleven. There was a lot of pressure in raising that
       number of children in such a small environment.
       My father had suffered many hardships. And I
       think through those hardships, he resorted to
       alcohol. He lost his legs. He was in a coma for
       encephalitis, and they thought he would never
       come out of it, but he did. He developed cancer.
       He developed diabetes. He eventually lost his
       voice.

Id. at *23-24. Dorothy went on to describe the abuse:

       There were times when they would come home at
       night after being out drinking, and we would be
       called downstairs. Sometimes we were beaten
       with a leather strap, which left welts on our legs,
       blood welts. And when I was a child, we were not
       allowed to wear pants to school, and we didn’t go


                                19
       to school because of the marks. They were
       embarrassing.

Id. at *24. Dorothy stated that after she moved out of the house,
she was not surprised to learn that Shelton, who was seven or
eight years-old at the time, was having trouble in school and
getting into a lot of fights. Id.

        Louise, seven years older than Shelton, testified that she
saw Shelton change from a happy child to an upset one around
the third or fourth grade. According to Louise, their father
would call the children belittling names and curse them. Louise
stated that when Shelton was ten or eleven years-old, he was
forced, even on school nights, to go to bars and bring his drunk
father home in his wheelchair. Louise testified that, around this
time, Shelton started becoming truant in school, eventually
resulting in his incarceration at the Ferris School. Louise also
said that because their father was often drunk, he did not notice
that Shelton had begun drinking at an early age. Id. at *24-25.

        According to Louise, because they were one of the few
white families in a predominantly African-American
community, Shelton got into a lot of fights with other kids in the
neighborhood, which added to his difficulties in school. Id. at
*54. Louise stated that she too missed a lot of school and spent
at least one year during high school in a juvenile home. Id. at
*25.

        Louise testified that despite his many problems, Shelton
was a loving and caring brother. She explained that after
Shelton was released from prison after his rape conviction, he
visited her and her family quite frequently. She also noted that,
around this time, Shelton worked for her and her family during
the day, and held a part-time job at night. Finally, Louise
testified that Shelton helped another one of their sisters repair
her home and that, when Shelton earned money he helped his
mother pay her bills. Id. No other mitigating evidence was
presented to the jury.

       After the jury was excused, the trial court again


                                20
questioned Shelton directly about his mitigation case. Shelton
stated that he and counsel had consulted and agreed not to
present additional witnesses, and that he was satisfied with the
questions already asked of the witnesses. When the jury
returned, Shelton made the following brief statement to the jury:

       Ladies and gentlemen of the jury, I stand before
       you not to plead for my life. I feel that’s wrong
       and improper and basically disrespectful to the
       victim’s family and to mine. The State has painted
       a picture, and that picture is not very pretty,
       pertaining to me and my co-defendants. And I
       would just like to present to the jury a different
       side or a different meaning to Steven Shelton. The
       State has pictured me as being a monster, as being
       a rapist, as being a violent individual, that’s not so.
       The State only presents one side of the picture.
       There’s two sides to every story. And the State
       just presents a negative side. The jury has found
       me guilty of these allegations, and now it’s the
       jury’s turn to render a verdict. And that verdict is
       either life or death. Again, I’m not here to plead
       for my life, but just ask the jury to be fair in their
       decisions. That’s all I have to say.

Id. at *26.

        Two days later, the jury unanimously decided that the
evidence showed beyond a reasonable doubt the existence of
three statutory aggravating circumstances: (1) the murder was
committed during a robbery; (2) the murder was committed for
pecuniary gain; and (3) the victim was more than sixty-two years
old. Shelton IV, 2004 U.S. Dist. LEXIS 5538, at *19-20. By a
vote of eight to four, the jury found by a preponderance of the
evidence that the statutory and non-statutory aggravating
circumstances 6 outweighed the mitigating circumstances


       6
        The non-statutory aggravating circumstances included
evidence of Shelton’s prior criminal history, which was
introduced by the State at the penalty hearing.

                                 21
presented by the defense. Accordingly, the jury recommended
that Shelton receive a death sentence. Id. The trial court agreed
and, on April 30, 1993, Shelton was sentenced to death by lethal
injection.7 Id. at 20.

       D.     Direct Appeal

       Shelton raised six principal arguments on appeal to the
Delaware Supreme Court: (1) the State negligently failed to
secure and preserve certain key physical evidence introduced by
the prosecution; (2) the trial court erred in finding Gibbons to be
a competent witness; (3) the trial court improperly instructed the
jury regarding the burden of proof for non-statutory aggravating
circumstances; (4) the trial court improperly excluded certain
defense witness testimony; (5) the trials should have been
severed; and (6) the prosecution exercised at least one of its
peremptory challenges in violation of Batson v. Kentucky, 476
U.S. 79 (1986). Finding that Shelton failed to show that the trial
court committed any errors of law or abused its discretion, the
Delaware Supreme Court affirmed his sentence. Shelton I, 650
A.2d at 1293.

       E.     State Post-Conviction Relief Proceedings

       After the denial of his direct appeal, Shelton filed a
motion for post-conviction relief in the Delaware Superior
Court. Shelton asserted a number of errors arising out of the
penalty phase of the proceedings: (1) the trial court erred in
conducting a joint penalty hearing; (2) trial counsel was


       7
         The jury recommended the death penalty for Outten by a
vote of seven to five and for Nelson Shelton by a vote of eight to
four. Shelton IV, 2004 U.S. Dist. LEXIS 5538, at *19-20. The
trial court sentenced both men to death. Outten filed a direct
appeal of his sentence, which the Delaware Supreme Court
denied. After applying, unsuccessfully, in state court for post-
conviction relief, Outten filed a federal habeas corpus petition in
the United States District Court for the District of Delaware.
This too was denied. Nelson Shelton did not challenge his
conviction or sentence. He was executed in 1995. Id. at *2.

                                22
ineffective for not requesting a separate hearing; (3) appellate
counsel failed to raise the severance issue on direct appeal; (4)
the trial court impermissibly restricted his right to allocution; (5)
trial and appellate counsel were ineffective in not raising the
allocution issue; (6) trial counsel was ineffective in his
preparation and presentation of mitigating evidence; (7) the
prosecutor made an improper statement concerning Shelton’s
allocution; and (8) trial and appellate counsel were ineffective
for not raising the issue of prosecutorial misconduct. Shelton II,
1997 WL 855718, at *37.

       The Delaware Superior Court rejected each of these
arguments. Id. at *75. The decision was subsequently affirmed
by the Delaware Supreme Court. Shelton III, 744 A.2d at 472.

       F.     Federal Habeas Petition

        Having exhausted his state court remedies, Shelton filed a
pro se petition for a writ of habeas corpus in the United States
District Court for the District of Delaware on February 7, 2002.
After the District Court appointed counsel, Shelton filed an
amended petition, asserting six grounds for relief: (1) his right to
a fair trial was violated by the trial court’s admission of
testimony about his prior criminal history; (2) the trial court
improperly limited the scope of his allocution; (3) the
prosecutor’s closing remarks regarding Shelton’s lack of
remorse violated his Fifth Amendment right against self-
incrimination; (4) he received ineffective assistance of trial
counsel in violation of the Sixth and Fourteenth Amendments;
(5) the Delaware Death Penalty Statute under which he was
convicted and sentenced to death was unconstitutional; (6) the
trial court failed to properly instruct the jury regarding the
burden of proof for non-statutory aggravating circumstances.
Shelton IV, 2004 U.S. Dist. LEXIS 5538, at *32-33.

       The District Court rejected each of these arguments, but
granted a certificate of appealability with respect to the two
claims raised in this appeal.

II.    JURISDICTION AND STANDARD OF REVIEW


                                 23
       The District Court had jurisdiction over Shelton’s habeas
petition under 28 U.S.C. § 2254. We have appellate jurisdiction
under 28 U.S.C. §§ 1291 and 2253. Because the District Court
did not hold an evidentiary hearing on these claims, our review
of the District Court’s legal conclusions is plenary. Jacobs v.
Horn, 395 F.3d 92, 99 (3d Cir. 2005).

        28 U.S.C. § 2254 provides that an application for a writ
of habeas corpus cannot be granted on a claim that was
adjudicated on the merits in the state court unless the
adjudication: (1) resulted in a decision that was either “contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States;” or (2) resulted in a decision that “was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d).

        A state court decision is contrary to Supreme Court
precedent under § 2254(d)(1), if the state court reached a
“conclusion opposite to that reached by [the Supreme] Court on
a question of law or if the state court decides a case differently
than [the Supreme] Court has on a set of materially
indistinguishable facts.” Jacobs, 395 F.3d at 100 (internal
quotation marks omitted).

       The state court’s decision is an unreasonable application
of clearly established law, under § 2254(d)(1) if the state court:
(1) unreasonably applies the correct Supreme Court precedent to
the facts of a case; or (2) unreasonably extends or refuses to
extend that precedent to a new context where it should (or
should not) apply. Id. “The unreasonable application test is an
objective one–a federal court may not grant habeas relief merely
because it concludes that the state court applied federal law
erroneously or incorrectly.” Id.

       We have previously held that our analysis under § 2254 is
a two step process. Matteo v. Superintendant, SCI Albion, 171
F.3d 877 (3d Cir. 1999) (en banc). First, we “identify the


                                24
applicable Supreme Court precedent and determine whether it
resolves the petitioner’s claim.” Id. at 888. “If [we determine]
that the state court decision was not ‘contrary to’ the applicable
body of Supreme Court law–either because the state court
decision complies with the Supreme Court rule governing the
claim, or because no such rule has been established–then [we]
should undertake the second step of analyzing whether the
decision was based on an ‘unreasonable application of’ Supreme
Court precedent.” Id. at 889.

III.   DISCUSSION

        Shelton argues on appeal that (1) his trial counsel
provided ineffective assistance at the penalty phase, and (2) the
trial court improperly limited his right of allocution. We address
each argument in turn.

       A.     Ineffective Assistance of Counsel

              1.     Mitigation Evidence at the Penalty Hearing

        On the day the jury returned its verdict, Shelton’s counsel
informed the trial court that he had interviewed Shelton’s mother
and sister for approximately three and one-half hours the
previous day and intended to call both women as witnesses at the
penalty hearing. Counsel also stated that he was considering
calling other family members as witnesses to testify on Shelton’s
behalf, including Shelton’s brother Edward and two of Shelton’s
nieces. Counsel explained that he planned to focus on “what
kind of kid [Mr. Shelton] was, what kind of upbringing he’s had,
all the difficulties in his life,” and to show “the family
relationship and their love for him.” Shelton II, 1997 WL
855718, at *48. The trial court asked counsel whether there
were “any other areas that [he] might have wanted to explore
such as schooling or things like that?” Counsel responded in the
negative. Id. Counsel submitted a letter to the court the
following day that identified forty-three mitigating factors which
largely echoed the themes identified to the court the previous
day. Id. at *18, n.16.



                                25
       As noted, at the penalty hearing, three witnesses testified
on Shelton’s behalf– Shelton’s half-sisters, Dorothy and Louise,
and his half-brother, Edward. Shelton’s siblings recounted their
parents’ abuse, difficulties that Shelton faced in school and in
their neighborhood, and his otherwise dysfunctional upbringing.
The siblings also described Shelton’s close relationship with
several members of his family. No other evidence–such as
family court records, social service agency records, or expert
reports or testimony–was presented to the jury.

              2.      Reports Prepared for Proceedings for Post-
                      Conviction Relief

       In his state court proceedings for post-conviction relief,
Shelton submitted two lengthy reports prepared by Pamela
Taylor, a licensed clinical social worker. Taylor’s reports were
the product of her detailed interviews with Shelton, Shelton’s
mother, several of Shelton’s sisters, and a number of individuals
who knew Shelton during his childhood and adolescence.
Taylor also reviewed various other records, including records
from the Family Court and Shelton’s schools, as well as reports
prepared by Dr. Jeffrey Janofsky, a psychiatrist who examined
Shelton in late 1995, and by Dr. David Schretlen, a psychologist
who evaluated Shelton around the same time. Id. at *57-59.

       In her initial, ninety-eight page report, Taylor opined:

       Based upon my evaluation of [Mr. Shelton] and
       review of the Penalty Phase transcript of his trial, it
       is my opinion in relation to this trial that the
       Defense Council’s [sic] investigation and ensuing
       presentation of available mitigating evidence in
       this case [were] seriously deficient. As a result,
       mitigating factors were not adequately supported,
       nor fairly represented for the Court’s
       consideration.

Id. at *63. In this regard, Taylor listed fourteen factors that she
identified as mitigating:



                                 26
      1.     Mother’s alcohol consumption during
             pregnancy with [Mr. Shelton].
      2.     Dysfunctional rearing by alcoholic parents.
      3.     Physical abuse during formative years.
      4.     Emotional abuse during formative years.
      5.     Stressful home environment during early
             development.
      6.     Additional childhood experiences of
             physical and emotional victimization by
             peer group, as minority member of a
             predominantly African-American
             neighborhood.
      7.     Prevailing negative family reputation and
             associated negative expectations, which
             preceded [Mr. Shelton] in the school and
             court systems.
      8.     Lack of appropriate role models and moral
             upbringing.
      9.     Lack of protective, supportive resources.
      10.    Lack of opportunity to benefit from
             recommended psychotherapeutic
             intervention.
      11.    Gaps in the existing community resources
             to identify and intercede in abusive
             domestic situations, and to insure early
             preventative mental health to its young
             victims.
      12.    Delayed identification by school system, of
             specialized learning needs.
      13.    Early on-set substance abuse problems.
      14.    Impaired personality organization,
             stemming from childhood experiences.

Id. at *63. In a 143-page supplemental report, Taylor further
elaborated on these same findings. Id. at *64-74.

             3.     Analysis

      Shelton argues that “[c]omparing defendant’s
background as revealed in Taylor’s report, against the minimal


                               27
evidence presented at the penalty phase hearing, leads to the
ineluctable conclusion that trial counsel was ineffective.”
Appellant’s Br. at 27. We do not agree.

        Shelton’s claim of ineffective assistance of counsel is
governed by the familiar two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Wiggins v. Smith, 539 U.S.
510, 521 (2003). Under Strickland, a defendant must
demonstrate that: (1) counsel’s representation fell below an
objective standard of reasonableness; and (2) there is a
reasonable probability that, but for counsel’s error, the result
would have been different. Strickland, 466 U.S. at 687-88, 694.
In this case, we find that neither requirement is satisfied.

       Under Strickland, “a court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s
conduct on the facts of the particular case, viewed as of the time
of counsel’s conduct.” Id. at 690. As the Court in Strickland
explained:

       [S]trategic choices made after thorough
       investigation of law and facts relevant to plausible
       options are virtually unchallengeable; and strategic
       choices made after less than complete investigation
       are reasonable precisely to the extent that
       reasonable professional judgments support the
       limitations on investigation. In other words,
       counsel has a duty to make reasonable
       investigations or to make a reasonable decision
       that makes particular investigations unnecessary.
       In any ineffectiveness case, a particular decision
       not to investigate must be directly assessed for
       reasonableness in all the circumstances, applying a
       heavy measure of deference to counsel’s
       judgments.

Id. at 690-91.

       Moreover, “[t]he reasonableness of counsel’s actions may
be determined or substantially influenced by defendants own


                                28
statements or actions.” Id. at 691.8


       8
         In Strickland, the Court stated that “[p]revailing norms
of practice as reflected in American Bar Association standards
and the like . . . are guides to determining what is reasonable, but
they are only guides.” Strickland, 466 U.S. at 688. In this case,
the ABA guidelines concerning investigations in capital cases
applicable in 1993 provide, in relevant part:

       A.     Counsel should conduct independent
              investigations relating to the guilt/innocence
              phase and to the penalty phase of a capital
              trial. Both investigations should begin
              immediately upon counsel’s entry into the
              case and should be pursued expeditiously.
       ....

       C.     The investigation for preparation of the
              sentencing phase should be conducted
              regardless of any initial assertion by the
              client that mitigation is not to be offered.
              This investigation should comprise efforts
              to discover all reasonably available
              mitigating evidence and evidence to rebut
              any aggravating evidence that may be
              introduced by the prosecutor.

American Bar Association Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases 11.4.1 (1989).
The ABA guidelines were amended in 2003. The commentary
to current Guideline 10.7 states:

       This Guideline is based on portions of Guideline
       11.4.1 of the original edition. Changes in this
       Guideline [not applicable to trial counsel’s
       performance in this case] clarify that counsel
       should conduct thorough and independent
       investigations relating to both guilt and penalty
       issues regardless of overwhelming evidence of

                                29
        In this case, it was Shelton, not his attorney, who decided
to limit the scope of the investigation and the presentation of
mitigating evidence to the jury. Counsel had submitted to the
court a letter listing forty-three mitigating factors that could be
presented on Shelton’s behalf. Despite counsel’s investigation
and his recommendation that Shelton present this evidence,
Shelton decided that the evidence should not be presented.
Indeed, Shelton’s initial request to proceed pro se at the penalty
phase stemmed, at least in part, from his disagreement with
counsel’s insistence that Shelton present mitigating evidence.
Shelton II, 1997 WL 855718, at *18. The extensive discussions
Shelton and his counsel had with the trial court demonstrate that
Shelton decided several months prior to the verdict that, if the
jury were to find him guilty, he would not want to “plea for
mercy” or “put in any mitigating circumstances whatsoever.” Id.
at *47. Shelton’s decision was based in part on his desire to
spare his family the trauma of testifying, and he also believed it
might be an effective strategy. However unwise that decision
may have turned out to be, it was ultimately Shelton’s decision
and not counsel’s. Nonetheless, as will be discussed, evidence
in mitigation was, in fact, presented and counsel’s reliance on
Shelton’s deliberate and strategic determination that he ought not
present mitigating evidence does not rise to the level of
unreasonableness under Strickland.

        Moreover, we believe that even if Shelton could show
that counsel’s performance was deficient, he is unable to satisfy
the prejudice requirement of the Strickland test. In order to
show prejudice, Shelton must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine


       guilt, client statements concerning the facts of the
       alleged crime, or client statements that counsel
       should refrain from collecting or presenting
       evidence bearing upon guilt or penalty.

American Bar Association Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases 10.7 (2003).

                                30
confidence in the outcome.” Strickland, 466 U.S. at 694. In
challenging a death sentence, “the question is whether there is a
reasonable probability that, absent the errors, the sentencer . . .
would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Id. at 695.

        Here, almost all of Pamela Taylor’s proposed mitigating
factors were presented to the jury during the penalty phase
through the testimony of Shelton’s siblings. For example,
Shelton’s siblings described how he was physically and
emotionally abused by their alcoholic parents. They spoke of
their stressful home environment, including the crowded home
and their father’s disabilities. They discussed the racial tension
in the neighborhood, Shelton’s troubles at school, and the fact
that his siblings were removed from the family home because of
his parents’ abuse. Taylor’s report, as well as the reports of Dr.
Janofsky and Dr. Schretlen, simply discuss these very issues in
greater detail and, arguably, with greater credibility. But, they
would not have altered, in the end, the total mix of information
upon which the jury and the trial court based their decisions to
impose the death penalty.

        Moreover, any additional mitigating evidence or analysis
presented by the expert reports must be considered in light of the
aggravating circumstances presented by the State, including
testimony concerning Shelton’s prior rape and assault
convictions, his arrests for robbery and assault and, perhaps most
importantly, the victim’s age and the brutal nature of his murder.
In light of this aggravating evidence, the state court’s
determination that Shelton was not prejudiced by counsel’s
alleged deficiencies was a reasonable application of Strickland.

       B.     Allocution

       Prior to the penalty hearing, the trial court gave two
instructions concerning Shelton’s right to speak in allocution.
The first instruction was given as part of the discussion of
Shelton’s request to proceed pro se:

       COUNSEL: . . . [Mr. Shelton] reserves your


                                 31
       Honor, most particularly and first and most
       importantly his right to allocution. He has
       indicated to me that he is prepared to take the stand
       and make a statement to the jury, with or without
       having called witnesses, and that he understands
       that he has a right to allocution without cross
       examination.
       THE COURT: Well, if he takes the stand, he’s not
       speaking in allocution as such. That will be a
       separate matter during which he cannot talk about
       the events of January 11, 12 1992.
       COUNSEL: Excuse me, you Honor.
       THE COURT: He can’t get into–if he’s speaking
       in allocution, he cannot discuss the events of
       January 11 and 12, 1992.
       ....
       COUNSEL: Your Honor, he understands that. He
       can’t talk about any factual evidence. What he
       would intend to address them on is his life or his
       feelings about this matter, and that he believes and
       understands that if he does that and does not talk
       about any factual circumstances, that he can do
       that without cross examination.

Shelton III, 744 A.2d at 489-490. The second instruction was
given later that day, after the trial court granted Shelton’s request
to proceed pro se:

       THE COURT: . . . it does not prevent you in any
       way from speaking to the jury in allocution and to
       me. Do you understand that?
       SHELTON: Allocution, I don’t–
       THE COURT: Allocution is a very technical word,
       speaking to the jury on your own behalf. I
       apologize for using a word that [even] most
       lawyers don’t know. Allocution is a very legalistic
       way for asking the sentencing authority, whether
       it’s a judge or a jury, to give you mercy, spare your
       life in this case, and sentence you to life. That’s
       what it really means, to explain your humanity, you


                                 32
       know.
       SHELTON: I understand.
       THE COURT: Whether you want to–you can’t
       argue about the facts. You can talk about yourself,
       your background, your upbringing, your education,
       your folks at home, any alcohol abuse problems,
       things like that. You can talk about all those
       things as much as you want. You just can’t talk
       about the facts surrounding the murder. Do you
       understand that?
       SHELTON: Yes.

Id. at 490.

        Shelton argues that the trial court improperly limited his
right to allocution. In particular, he argues that the trial court’s
instructions “prevented him from fully expressing his feelings to
the jury, including any statements regarding relevant matters
such as the circumstances of the crime, his conduct and relative
culpability, if any.” Shelton III, 744 A.2d at 488. Shelton
argues that his claim is not about whether a defendant has a
federal constitutional right to allocution, but whether the broad
mandate of Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings
v. Oklahoma, 455 U.S. 104 (1982), supporting the presentation
of evidence pertaining to a defendant’s conduct and the
circumstances of his crime, applies when a capital defendant is
presenting mitigating evidence in allocution. Shelton argues that
the Supreme Court in Lockett ruled that the sentencer must be
free to consider any evidence the capital defendant offers
regarding his character, record, or the crime. Appellant’s Br. at
12. He contends that allocution is just one way of presenting
mitigating evidence. Thus, Shelton argues that the Delaware
Supreme Court’s decision was contrary to the U.S. Supreme
Court’s decision in Lockett.9


       9
         In affirming the Delaware Superior Court’s denial of
post-conviction relief, the Delaware Supreme Court provided a
full explanation of its reasoning. First, the Court traced the
common-law origins and evolution of the right to allocution.
Shelton III, 744 A.2d at 491. Second, the Court noted the lack

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        We find that Shelton’s argument does not provide a basis
upon which this Court can grant relief. The Supreme Court has
not held that criminal defendants have a constitutional right to
allocution. Hill v. United States, 368 U.S. 424, 429 (1962)
(leaving open the question of a defendant’s constitutional right
to allocution).

       Some of our sister Courts of Appeals have held that
criminal defendants do not have a constitutional right to
allocution. See, e.g., United States v. Patterson, 128 F.3d 1259,
1260 (8th Cir. 1997) (holding that a capital defendant has no
constitutional right to address a sentencing jury in allocution);
United States v. Barnette, 211 F.3d 803, 820 (4th Cir. 2000)
(same); United States v. Hall, 152 F.3d 381, 396 (5th Cir. 1998)
(holding that capital defendant has no constitutional right to
make an unsworn statement of remorse to the jury that is not
subject to cross-examination), abrogated on other grounds by
United States v. Martinez-Salazar, 528 U.S. 304, 310 (2000).

       In Lockett, a plurality of the Justices held that “the Eighth
and Fourteenth Amendments require that the sentencer . . . not
be precluded from considering, as a mitigating factor, any aspect


of uniformity in the way that state and federal courts define the
right to allocution in the modern criminal context. Id. at 492-93.
Third, the Court noted that “the majority of federal courts and
state jurisdictions hold that the United States Constitution does
not protect the right to allocution.” Id. at 493. Fourth, the Court
observed that “the United States Supreme Court has not
addressed squarely the issue of whether the United States
Constitution protects the right of a capital defendant to make
before the jury an unsworn statement that is not subject to cross-
examination.” Id. at 494. The Court then went on to find that a
criminal defendant in a capital case does have a right to
allocution based on the Delaware Death Penalty Statute and state
decisional law. Id. at 494-95. Analyzing Shelton’s claim under
Delaware state law, the Court then concluded that although the
trial court’s instructions concerning the scope of Shelton’s
colloquy was “overbroad,” it was harmless error in this case. Id.
at 497.

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of a defendant’s character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a
sentence less than death.” Lockett, 438 U.S. at 604 (emphasis in
the original).10 The Court concluded that the challenged state
statute was unconstitutional because it did not permit
consideration of relevant factors such as the defendant’s age,
minor role in the offense, or lack of intent to cause death. Id. at
608.

         The Supreme Court recently addressed the applicability
of Lockett to the presentation of new evidence at the sentencing
phase of a capital murder trial. In Oregon v. Guzek, 126 S. Ct.
1226 (2006), the defendant sought to present testimony by his
mother at his re-sentencing hearing which would support his
alibi. The Court rejected the argument that Lockett supported a
right to present such evidence, and held that the state’s limitation
barring such evidence did not violate the Constitution. Id. at
1233. The Court explained that the evidence at issue in Lockett
and other prior cases involved how, and not whether, the
defendant committed the crime and was therefore not
inconsistent with the jury’s finding of guilt. Id. at 1231. The
Court also noted that in Franklin v. Lynaugh, 487 U.S. 164
(1988), a plurality of the Justices clarified that previous
decisions have not recognized an Eighth Amendment right to
present evidence casting doubt on a capital defendant’s guilt at
the sentencing phase. Id. at 1231-32.11

        As noted earlier, Shelton argued in his post-conviction
proceedings that he wished to address in his allocution “the
circumstances of the crime, his conduct and relative culpability,
if any.” Shelton III, 744 A.2d at 488 (quoting appellant’s
opening brief in support of his motion for post-conviction relief).


       10
         The plurality’s holding in Lockett was later adopted by
a majority of the Court in Eddings v. Oklahoma, 455 U.S. 104,
110 (1982).
       11
          In Guzek, the Court determined that it did not need to
reach this question because any such right would not extend to
the situation in Guzek. Guzek, 126 S. Ct. at 1232.

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However, because Shelton did not testify at trial, any factual
statements about what happened on the night of the murder and
his involvement in the crime would have been new evidence not
already in the trial record.

        We conclude that the Delaware Supreme Court’s denial
of Shelton’s claim was not contrary to or an unreasonable
application of Lockett or any other clearly established federal
law as determined by the Supreme Court. Thus, Shelton is not
entitled to relief on this claim under 28 U.S.C. § 2254.

IV. CONCLUSION

       The Delaware Supreme Court’s decision that counsel was
not ineffective in his investigation and presentation of
mitigating evidence was a reasonable application of Strickland.
The Court’s determination that Shelton’s right to a fair hearing
was not violated by the trial court’s limitation on the scope of his
allocution was not contrary to clearly established federal law.

       For these reasons, we will affirm the District Court’s
order denying Shelton’s petition for a writ of habeas corpus.




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