                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2008

Campbell v. Burris
Precedential or Non-Precedential: Precedential

Docket No. 05-5156




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                                  PRECEDENTIAL

   IN THE UNITED STATES COURT
            OF APPEALS
       FOR THE THIRD CIRCUIT


              NO. 05-5156


         JAMAR L. CAMPBELL
             Appellant

                    v.

*ACTING WARDEN ELIZABETH BURRIS;
 OFFICE OF THE ATTORNEY GENERAL
    OF THE STATE OF DELAWARE

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


   On Appeal From the United States
               District Court
       For the District of Delaware
  (D.C. Civil Action No. 03-cv-00916)
  District Judge: Hon. Gregory M. Sleet


        Argued October 23, 2007

  BEFORE: FISHER, STAPLETON and
       COWEN, Circuit Judges
             (Opinion Filed: February 14, 2008)


George A. Bibikos (Argued)
David R. Fine
Kirkpatrick & Lockhart Preston Gates Ellis
17th North Second Street, 18th Floor
Harrisburg, PA 17101
 Attorneys for Appellant

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




                OPINION OF THE COURT




STAPLETON, Circuit Judge:

      Appellant Jamar Campbell was convicted by a jury in
2001 of possession of crack cocaine with intent to deliver and
possession of cocaine within three hundred feet of a park. He

                              2
appealed his conviction to the Supreme Court of Delaware,
which affirmed. After unsuccessfully seeking post-conviction
relief in the Superior and Supreme Courts of Delaware,
Campbell, acting pro se, filed this habeas proceeding under 28
U.S.C. § 2254 in the District Court. His petition and
accompanying memorandum of law alleged ineffective
assistance of counsel on a number of grounds and an assortment
of six other violations of his federal constitutional rights.1 The


     1
      The District Court summarized Campbell’s claims as
follows:

         (1) numerous allegations that defense counsel
         provided ineffective assistance; (2) prosecutorial
         misconduct, stemming from the prosecutor’s
         prejudicial remarks made throughout the trial; (3)
         the trial court erred by not curing the effect of the
         improper prosecutorial statements, by permitting
         suggestive and perjured testimony to occur, by
         asking Campbell improper and prejudicial
         questions, and by disclosing Campbell’s past
         record; (4) the State changed the elements of the
         charges in the indictment, causing a structural
         defect in the trial, and therefore violated his rights
         to due process and a fair trial; (5) the State did not
         prove the elements of the charged offenses
         beyond a reasonable doubt, and there was
         insufficient evidence to sustain his convictions;
         (6) the evidence at trial had been tampered with;
         and (7) the jury instructions were improper.


                                   3
District Court concluded that all of Campbell’s claims other than
his ineffective assistance of counsel claims were unreviewable
because the Delaware Supreme Court had rejected them
pursuant to Delaware Supreme Court Rule 8, which provided an
independent and adequate state law ground supporting that
Court’s judgment. Therefore, the Court reviewed those claims
only for “cause and prejudice” or a “miscarriage of justice.” See
Thompson v. Coleman, 501 U.S. 722, 749-50 (1991). With
respect to Campbell’s ineffective assistance of counsel claims,
the District Court held (1) that Campbell had failed to exhaust
three of them in the state courts and had not shown cause and
prejudice or a miscarriage of justice, and (2) that the Delaware
Supreme Court’s rejection of the remainder was neither contrary
to, nor an unreasonable application of, clearly established
federal law within the meaning of 28 U.S.C. § 2254(d)(1).

        This Court granted Campbell’s application for a
certificate of appealability under 28 U.S.C. § 2253(c)(1) with
respect to the following issues: “(1) is Delaware Supreme Court
Rule 8 an independent and adequate state ground that precludes
federal habeas review . . . (2) did the District Court properly
discern all of the ineffective assistance of counsel claims that
Campbell presented to the state court, . . . and (3) was the
Delaware Supreme Court’s application of Strickland v.
Washington, 466 U.S. 668, 697 (1984) unreasonable.” App. at
21a-22a. We also granted his application for appointment of
counsel. We conclude (1) that Delaware Supreme Court Rule
8 provides an independent and adequate state law ground for the



Campbell v. Carroll, 2005 WL 2917466, *4 (D. Del. Nov. 4,
2005).

                               4
Delaware Supreme Court’s judgment, (2) that any error of the
District Court in rejecting three of Campbell’s claims of
ineffective assistance of counsel as unexhausted was harmless,
and (3) that the Delaware Supreme Court’s application of
Strickland was not unreasonable.

               I. Delaware Supreme Court Rule 8

       Delaware Supreme Court Rule 8 provides:

              Only questions fairly presented to the trial
       court may be presented for review; provided,
       however, that when the interests of justice so
       require, the Court may consider and determine
       any question not so presented.

D EL. S UPR. C T. R. 8.

        On Campbell’s direct appeal, the Supreme Court of
Delaware expressly invoked Rule 8 in the disposition of all of
Campbell’s claims other than his ineffective assistance of
counsel claims. After ruling that Campbell’s ineffective
assistance claims would have to be pursued in a post-conviction
relief proceeding, the Court turned to the first of the remaining
six claims and ruled as follows:

              We review this claim, as well as the rest of
       Campbell’s claims, for plain error, since he raises
       them for the first time in this appeal. SUPR. CT.
       R.8; Wainwright v. State, 504 A.2d 1096, 1100
       (Del. 1986). Plain error is error that is “so clearly
       prejudicial to substantial rights as to jeopardize

                                5
       the fairness and integrity of the trial process”. Id.

Campbell v. State, 801 A.2d 10 (Del. 2002). The Court held that
all six of these claims failed to pass the “plain error” test.

       As this ruling and the citation to Wainwright indicate, the
“interest of justice exception” to Rule 8 has been interpreted in
the context of criminal litigation to call for what the Delaware
Supreme Court terms a “plain error” analysis. Wainwright
explains this concept as follows:

               Under the plain error standard of review,
       the error complained of must be so clearly
       prejudicial to substantial rights as to jeopardize
       the fairness and integrity of the trial process.
       Dutton v. State, Del.Supr., 452 A.2d 127, 146
       (1982). Furthermore, the doctrine of plain error is
       limited to material defects which are apparent on
       the face of the record; which are basic, serious
       and fundamental in their character, and which
       clearly deprive an accused of a substantial right or
       which clearly show manifest injustice.

Wainwright, 504 A.2d at 1100.

        As the Delaware Supreme Court’s opinions in
Wainwright and this case indicate, this “plain error” rule is a
state law rule and is applied without reference to federal case
law. See Dutton v. State, 452 A.2d 127, 146 (Del. 1982).

      A federal habeas court may not address the merits of a
procedurally-defaulted claim if the state court opinion includes

                                6
a plain statement indicating that the judgment rests on a state
law ground that is both “independent” of the merits of the
federal claim and an “adequate” support for the court’s decision.
Coleman v. Thompson, 501 U.S. 722, 729 (1991). As we have
explained:

       [a] state rule provides an independent and
       adequate basis for precluding federal review of a
       claim if the “rule speaks in unmistakable terms[,]
       all state appellate courts refused to review the
       petitioner’s claim on the merits[, and] the state
       courts’ refusal [was] consistent with other
       decisions,” that is, the procedural rule was
       “consistently and regularly applied.” Doctor v.
       Walters, 96 F.3d 675, 683-84 (3d Cir. 1996).

Albrecht v. Horn, 485 F.3d 103, 115 (3d Cir. 2007). The
question before us is whether the Delaware Supreme Court’s
application of its Rule 8 in Campbell’s case was “independent”
of the merits of his federal claims and “adequate” support for its
judgment.2


   2
    We have not previously had occasion to resolve this issue.
Contrary to Campbell’s suggestion, Reynolds v. Ellingsworth,
843 F.2d 712 (3d Cir. 1988), does not rule upon it. In that case,
the Supreme Court of Delaware had held that Reynolds had
procedurally defaulted a claim by failing to move for a mistrial.
While there was no court rule requiring such a motion, the
Delaware Supreme Court interpreted its prior decision in
Conyers v. State, a case decided after Reynolds’ trial, as holding
that all issues were foreclosed in post-conviction relief

                                7
                        A. Independence

      When, as here, a state court expressly relies on a state
procedural rule of preclusion as a basis for its decision, the
independence issue turns on whether the state law alone
provides everything necessary to support the court’s judgment.
Even when the state court decision rests on alternative holdings,
one based on federal law and the other based on a state
procedural rule of preclusion, for example, the court’s reliance
on federal law does not deprive the state rule of its
independence if the state rule is sufficient alone to support the
judgment. Caruso v. Zelinski, 689 F.2d 435, 440 (3d Cir.




proceedings in Delaware unless there was a contemporaneous
objection or the petitioner had shown cause and prejudice of the
kind required by Wainwright v. Sykes, 433 U.S. 72 (1977). We
reversed the District Court’s denial of habeas relief and held that
Conyers did not provide an independent and adequate ground
supporting Reynolds’ conviction. We did so because (1)
“[w]hether enunciated by court rule or case law, there was no
Delaware procedural rule on point, and therefore Reynolds
violated none,” Reynolds, 843 F.2d at 720; and (2) “[t]he history
of [Delaware post-conviction relief jurisprudence] belie[d] the
sweeping proposition that a procedural bar exists to all claims
raised for the first time in” such a proceeding. Id. While we
there referred to Delaware Supreme Court Rule 8 in the course
of our analysis, contrary to Campbell’s suggestion, we did not
identify any inconsistency in its application.

                                8
1982).3


  3
    Campbell insists that the Delaware Supreme Court “actually
reviewed” the merits of his federal claims other than his
ineffective assistance of counsel claims. If the Delaware
Supreme Court had not made a plain statement that it “relied
independently on a violation of a state procedure,” but rather
had “based [its] decision on the merits of the claim,” the District
Court would not have been barred from reaching those claims in
the course of its habeas review. Harris v. Reed, 489 U.S. 255,
261-62 (1989). See also Johnson v. Pinchak, 392 F.3d 551, 557
(3d Cir. 2004). However, the Delaware Supreme Court did
make a “plain statement” that Rule 8 applied to each of those
claims and then proceeded to examine each under the standards
applicable to Rule 8's “interests of justice” exception. The
Court concluded that each claim, in turn, did not involve “plain
error.” Campbell v. State, 801 A.2d 10 (Del. 2002). While it is
true, as Campbell stresses, that the Court found Campbell’s
appeal “wholly without merit” and stated that his perjured
testimony was “meritless,” this does not detract from the
independence of the “no plain error” ruling on each of
Campbell’s claims. Even if one reads those statements as
references to the underlying merits of the claims under federal
law, as we explained in Caruso, alternative holdings based on
federal law do not deprive a state law ruling of its independence.
Moreover, given that Delaware’s Rule 8 jurisprudence requires
a showing both that the error is “apparent on the face of the
record” and that the fairness and integrity of the trial process has
been compromised, when the Delaware Supreme Court, as here,
uses a phrase like “no merit” in the context of its “plain error”
analysis, it is best understood as a declaration that no error is

                                 9
        While the Delaware Supreme Court when applying Rule
8 in this context of criminal litigation must, of course, be
cognizant of the nature of the alleged federal constitutional
violation, federal law is not essential to support its judgment.
The Court is applying state, not federal, law and it can apply that
state law without resolving the merits of the federal
constitutional issue. Delaware case law establishes that the
issue of whether the alleged error in the context of this particular
case was “apparent on the face of the record”and “so clearly
prejudicial to substantial rights as to jeopardize the fairness and
integrity of the trial process” are issues governed by Delaware
law. And those issues may be resolved by assuming arguendo
the merit of the federal claim. In these respects, the situation
before us is much like that before the Court of Appeals for the
Seventh Circuit in Willis v. Aiken, 8 F.3d 556 (7th Cir. 1993).
The Court there posed the issue before it in the following
manner:

               The Indiana postconviction appellate court
       addressed federal constitutional concerns in
       analyzing the appropriateness of the jury
       instruction. As we have just noted, however, it
       did so in the context of determining whether
       waiver of the issue through failure to object ought
       to be forgiven because the instruction constituted
       “fundamental error.” We must now determine



perceived on the face of the record and a fortiori no “plain”
error. See, e.g., Dutton v. State, 452 A.2d 127, 146 (Del. 1982)
(“We fail to find any error . . ., much less plain error.”).


                                10
       whether, in this procedural context, the Indiana
       appellate court’s judgment can be said to rest on
       an independent and adequate state law ground or
       whether the determination of “no fundamental
       error” is so “interwoven,” Coleman, 501 U.S. at
       735, 111 S.Ct. at 2557, with the federal claim as
       to justify federal review without a demonstration
       of cause and prejudice.

Willis, 8 F.3d at 562.

       The Willis Court’s ensuing description of the case law
dealing with the Indiana “fundamental error” doctrine is an
accurate description of the Delaware “plain error” jurisprudence
under Rule 8:

       These cases demonstrate that the principle of
       fundamental error in Indiana law involves an
       assessment not only of the substantive rights at
       stake but also of their impact on the particular
       trial. While there have been occasions in which
       Indiana courts have looked to a federal court’s
       assessment of federal rights to “corroborate” its
       own assessment, see Winston v. State, 165 Ind.
       App. 369, 332 N.E.2d 229, 233 (1975), there is no
       discernible pattern of dependency on federal court
       assessment of a particular error as “fundamental.”
       Rather, the term, as employed in the Indiana
       cases, appears to be a term of art employed on a
       fact-specific basis for the purpose of determining
       whether to excuse noncompliance with the
       requirement that a timely objection be made on

                              11
       the record.

                               ***

       Indiana mandates review on the merits of
       fundamental rights claims only when the denial of
       the right “gives rise to a question of fundamental
       error as defined by state law.” Gutierrez, 922
       F.2d at 1469 (emphasis supplied).

Willis, 8 F.3d at 556, 567.

        Delaware’s “plain error” exception to Rule 8 is not
unique. Many states have procedural default rules with similar
“safety valves” for situations in which enforcing the procedural
default would work a serious injustice. Neal v. Gramley, 99
F.3d 841, 844 (7th Cir. 1996). As a result, while the United
States Supreme Court has not definitively resolved the matter,
there is ample court of appeals case law on whether invocation
of similar “plain error” review of alleged violations of the
federal constitution in order to mitigate the effect of a state
procedural default rule will suffice to deprive a state court ruling
of its “independent” character. We agree with our sister Courts
of Appeals for the First, Fourth, Sixth, Seventh, Tenth and
Eleventh Circuits that it does not. Gunter v. Maloney, 291 F.3d
74, 80 (1st Cir. 2002) (“mere fact that a state appellate court
engages in a discretionary, and necessarily cursory, review under
a ‘miscarriage of justice’ analysis does not in itself indicate that
the court has determined to waive an independent state
procedural ground for affirming the conviction”); Daniels v.
Lee, 316 F.3d 477, 487 (4th Cir. 2003) (federal court
procedurally barred from considering claim where state court

                                12
merely reviewed whether the error “so infected the trial with
unfairness as to make the resulting conviction a denial of due
process”); Scott v. Mitchell, 209 F.3d 854, 865-66 (6th Cir.
2000) (that Ohio Supreme Court reserved discretion, in
exceptional cases, to review for plain error an alleged violation
of the federal constitution that would otherwise be barred by its
contemporaneous objection rule does not preclude that rule from
serving as an independent state law ground); Neal, 99 F.3d at
844 (“Illinois like many states provides a safety valve for
situations in which enforcing a procedural default would mask
a plain error. To decide whether an error is plain requires
consideration of the merits – but only so far as may be required
to determine that issue. It does not open up the merits any wider
for consideration by the federal court.”) (internal citations
omitted); Cargle v. Mullin, 317 F.3d 1196, 1206 (10th Cir.
2003) (“a state court [can] deny relief for what it recognizes or
assumes to be federal error, because of the petitioner’s failure to
satisfy some independent state law predicate. In such a case,
that non-merits predicate would constitute an independent state
ground for decision which would warrant application of
procedural-bar principles on federal habeas.”); Julius v.
Johnson, 840 F.2d 1533, 1546 (11th Cir. 1988) (“the mere
existence of a ‘plain error’ rule does not preclude a finding of
procedural default”). Cf. Osborne v. Ohio, 495 U.S. 103, 123
(1990) (where state court reviewed claim for plain error citing
exclusively state law, “we have no difficulty agreeing with the
State that Osborne’s counsel’s failure to [contemporaneously
object] constitutes an independent and adequate state-law
ground preventing us from reaching [the claim]”); Roy v.
Coxon, 907 F.2d 385, 391 (2d Cir. 1990) (distinguishing
Osborne and concluding that, where state court cited to and
relied on federal law in its plain error review, claim not

                                13
procedurally defaulted). But see Walker v. Endell, 850 F.2d
470, 474 (9th Cir. 1988).

        Thus, our case, like Willis, is one in which the applicable
state law is not dependent on a federal law. It is unlike Ake v.
Oklahoma, 470 U.S. 68 (1985), where the “escape valve” for the
procedural default rule was phrased in terms of fundamental
trial error and, under Oklahoma law, all federal constitutional
errors were “fundamental.” As the Supreme Court explained in
Ake, that was a situation in which “the state made application of
the procedural bar depend on an antecedent ruling on federal
law, that is, on the determination of whether federal
constitutional error had been committed. Before applying the
waiver doctrine to a constitutional question, the state court [was
required to] rule, either explicitly or implicitly, on the merits of
the constitutional question.” Id. at 75.

       Rule 8, as applied by the Delaware Supreme Court in this
case, was “independent” of federal law.

                          B. Adequacy

      A state procedural rule is “adequate” to bar federal
habeas review only if it is “firmly established and regularly
followed” by the state courts at the time of the petitioner’s trial.
Ford v. Georgia, 498 U.S. 411, 424 (1991). This rule is
intended both to ensure that state courts do not insulate
disfavored claims from federal review, and to ensure that
federal habeas review is not barred unless petitioners have fair
notice of the steps they must take to avoid default. Bronshtein
v. Horn, 404 F.3d 700, 707-08 (3d Cir. 2005); Dugger v.
Adams, 489 U.S. 401, 410 n.6 (1989); Hathorn v. Lovorn, 457

                                14
U.S. 255, 262-63 (1982) (“state courts may not avoid deciding
federal issues by invoking procedural rules that they do not
apply evenhandedly to all similar claims”). In applying these
principles, this Court seeks to determine whether the state rule
itself provides guidance regarding how the rule should be
applied or whether such standards have developed in practice.
See, e.g., Doctor v. Walters, 96 F.3d 675, 684-85 (3d Cir. 1996)
(because the rule on its face provided little or no guidance
regarding the application of the rule to the present facts,
examining the case law to determine whether the rule, at the
time of its application to petitioner, was “firmly established and
regularly applied”). However, “neither an occasional act of
grace by a state court . . . nor a willingness in a few cases to
overlook the rule and address the claim on the merits” renders
a rule inadequate. Banks v. Horn, 126 F.3d 206, 211 (3d Cir.
1997). A rule can be adequate if the state supreme court
faithfully applies it in “the vast majority” of cases. Dugger, 489
U.S. at 410 n.6.

        Rule 8 and the case law interpreting it served clear notice
on Campbell and his trial counsel in “unmistakable terms” that
an issue not presented to the trial court would not be considered
on appeal unless the alleged error was so prejudicial to
substantial rights as to jeopardize the fairness and integrity of
the trial process. Wainwright v. Sykes, 433 U.S. 72, 85 (1977).
Moreover, Campbell does not, and cannot, claim that the
Supreme Court of Delaware as of 2001 regularly ignored this
state rule when presented with an issue not fairly presented to
the trial court. Based on our review of its application of this




                                15
rule,4 as of the time of Campbell’s trial in 2001, it appears that,
when confronted with an issue raised for the first time on
appeal, the Court virtually always relied upon Rule 8 in some
manner.5 In the vast majority of such cases, it held that review



      4
    According to Westlaw, the Delaware Supreme Court cited
Rule 8 in 224 cases prior to the end of 2001. While we have not
read all of these cases, we have studied all of the cases cited by
the parties and a fair sampling of the remainder.
  5
    Between 1973 and 1991, the Delaware Supreme Court on at
least five occasions did address the merits of sufficiency of
evidence issues not presented to the trial court without
mentioning Rule 8. In 1992, however, the Court noted this
aberration from its general practice and applied Rule 8 to bar
review of a sufficiency of evidence issue in Gordon v. State, 604
A.2d 1367 (Del. 1992). Since that time, Gordon has been held
to establish that Rule 8 bars review of sufficiency of evidence
issues not fairly presented to the trial court unless “the trial court
committed plain error requiring review in the interest of justice.”
Monroe v. State, 652 A.2d 560, 563 (Del. 1995) (finding plain
error); Liket v. State, 719 A.2d 935 (Del. 1998) (applying
Gordon and finding no plain error). Liket and Monroe are also
consistent with a substantial line of unpublished cases. See,
e.g., Andrews v. State, 781 A.2d 692 (Del. 2001); Cooper v.
State, 679 A.2d 469 (Del. 1996); Wimbley v. State, 660 A.2d
396 (Del. 1995); Dickson v. State, 653 A.2d 304 (Del. 1994);
Worley v. State, 633 A.2d 372 (Del. 1993); Thomas v. State,
628 A.2d 84 (Del. 1993). In contrast, we have found no case
decided since 1991 involving a sufficiency of evidence issue not
fairly presented to the trial court where the Supreme Court

                                 16
was precluded by the Rule. The Court occasionally, but
infrequently, merely cited Rule 8 and found the claim waived or



addressed the merits without reference to Rule 8. Accordingly,
we conclude that, by the time of Campbell’s trial in 2001, Rule
8 was “firmly established and regularly followed” by the
Delaware Supreme Court in sufficiency of evidences cases.
Campbell had ample notice from a line of cases decided over the
preceding decade that if he failed to raise his sufficiency of
evidence claim before the trial court, he could secure review
only if the alleged error was so prejudicial to substantial rights
as to jeopardize the fairness and integrity of the trial process.
        With the exception of the 1973-1991 insufficiency of
evidences cases referenced in Gordon, we have been referred to,
and have found, no case in which the failure to fairly present an
issue to the trial court was ignored and the merits addressed
without reference to Rule 8. In Nelson v. State, 628 A.2d 69
(Del. 1993), the Delaware Supreme Court noted that one of the
state’s arguments was based on Rule 8 and then proceeded to
address the merits of the appellant’s claimed error without
expressly addressing that argument. The Court ultimately
concluded that, while the trial court had committed error (by
admitting evidence of a DNA match in this rape case while
excluding the statistical evidence necessary to permit the jury to
evaluate it), the error was harmless. The appellant had objected
in the trial court to the admission of all of the DNA evidence,
and the Court may have regarded Rule 8 as not applicable. It
did not expressly say so, however. As far as we have been able
to determine, this is as close as the Delaware Supreme Court
came to ignoring Rule 8 in a case in the decade preceding
Campbell’s trial.

                               17
defaulted, without further discussion.         See, e.g., Wade
Insulation, Inc. v. Visnovsky, 773 A.2d 379, 382 n.3 (Del. 2001);
Manley v. State, 709 A.2d 643, 655 (Del. 1998); Marine v. State,
624 A.2d 1181, 1186 (Del. 1993);6 it also frequently engaged in
plain error review and with a few sentences of explanation,
found none. See, e.g., Weedon v. State, 647 A.2d 1078, 1082-83
(Del. 1994); Gattis v. State, 637 A.2d 808, 820 (Del. 1994). As
one would expect given the requirements of the plain error test,
the Court occasionally, but rarely, concluded that the test was
satisfied and proceeded to resolve the merits of the claim. See,
e.g., Lewis v. State, 757 A.2d 709, 712 (Del. 2000) (invoking the
“interests of justice” exception because, on appeal, defendant
raised “important questions” relating to the Sixth Amendment
and “fundamental fairness in the administration of justice”;
finding violations); Reynolds v. Ellingsworth, 843 F.2d 712,
721-22 (3d Cir. 1988) (collecting cases). Importantly, we have
been referred to, and have found, no cases in which the
Delaware Supreme Court’s plain error analysis has led to
inconsistent results.

        In the final analysis, Campbell’s argument on “adequacy”
boils down to his insistence that a “discretionary procedural rule
such as Rule 8 cannot be ‘adequate’ for purposes of procedural
default.” Appellant’s Br. at 18. If accepted, this proposition
that a state procedural rule is rendered per se inadequate merely


    6
     The absence of an “interest of justice” analysis in these
cases does not, of course, suggest that Rule 8 is anything other
than “adequate.” In each, as in Campbell’s case, the Rule was
applied to preclude review. In none is there an indication that
an interest of justice exception was being urged upon the Court.

                               18
because it allows for some exercise of discretion by state courts
would all but vitiate the long-standing doctrine of procedural
default in the federal habeas context. As we have earlier noted,
numerous Courts of Appeals cases have sustained the validity of
state procedural bar rules having “safety valves” which involve
exercise of the same kind of discretion required by the “interest
of justice” exception to Rule 8. See also, e.g., Wedra v. Lefevre,
988 F.2d 334, 340 (2d Cir. 1993) (“[w]e are not convinced that
simply because New York law allows some discretion to be
exercised in the granting of extensions that a dismissal on the
basis of untimeliness does not constitute an adequate procedural
bar”); Hutchison v. Bell, 303 F.3d 720, 738 (6th Cir. 2002) (due
process exception does not render state rule inadequate for
federal procedural default as long as discretion is not
unfettered); Prihoda v. McCaughtry, 910 F.2d 1379, 1385 (7th
Cir. 1990) (state rule allowing court to disregard procedural bar
for “sufficient reason” is not necessarily inadequate); Wood v.
Hall, 130 F.3d 373, 376-77 (9th Cir. 1997) (that “the application
of a rule requires the exercise of judicial discretion does not
render the rule inadequate to support a state decision”). The
issue is not whether the state procedural default rule leaves room
for the exercise of some judicial discretion – almost all do.
Rather, the issue is whether, at the relevant point in time, the
judicial discretion contemplated by the state rule is being
exercised in a manner that lets people know when they are at
risk of default and treats similarly-situated people in the same
manner. Our review of Delaware Supreme Court Rule 8 law
convinces us that it performs both of these functions.

       Campbell cites very little in support of his condemnation
of discretion. He complains that “the Delaware Supreme Court
frequently exercises its discretion under Rule 8 to review federal

                               19
claims raised for the first time on appeal” but the cases he cites,
by his own acknowledgment, “present[ed] fundamental
constitutional problems” which the Delaware Supreme Court
found to satisfy the “plain error” standard. Appellant’s Br. at
19. We do not agree that this happens “frequently,” but, in any
event, the frequency of such findings is not material so long as
the “plain error” rule is being regularly and consistently applied.

        The only category of cases where Campbell purports to
identify instances in which Rule 8 has been applied in an
inconsistent manner to similar situations is ineffective assistance
of counsel cases. He cites a number of cases for the proposition
that the Delaware Supreme Court “often invokes Rule 8 to
review claims of ineffective assistance of counsel for the first
time on direct appeal” and then cites a number of cases for the
proposition that it “also frequently exercises its discretion to not
consider ineffective assistance of counsel cases for the first time
on appeal.” Appellant’s Br. at 20-21 (emphasis in original).
Given the variety of forms ineffective assistance of counsel
claims may take and the infinite variety of circumstances in
which they may have occurred, this alone hardly demonstrates
that Rule 8 is inconsistently applied by the Supreme Court of
Delaware in ineffective assistance of counsel cases. Moreover,
frequently, when it decides not to consider ineffective assistance
of counsel claims for the first time on appeal, the Delaware
Supreme Court, as here, does not reach the Rule 8 issue, relying
instead on a different and independent rule – such claims are
generally best heard in the first instance in a post-conviction
relief proceeding because the trial record will not be adequate
for resolving the relevant issues, and because trial counsel, if
continuing to pursue his representation on direct appeal, should
not be required to argue his own ineffectiveness. Campbell v.

                                20
State, 801 A.2d 10, 2002 WL 1472283, *4 (Del. 2002) (citing
Desmond v. State, 654 A.2d 821, 829 (Del. 1994)). See also
Duross v. State, 494 A.2d 1265, 1267-69 (Del. 1985); Collins v.
State, 420 A.2d 170, 177 (Del. 1980). In one of the cases relied
upon by Campbell, Johnson v. State, 765 A.2d 926, 929 (Del.
2000), for example, the Court concluded that the “plain error”
rule gave it the power to hear the ineffective assistance of
counsel issue, but that, as here, these kinds of prudential
considerations dictated that it stay its hand until the trial court
addresses that issue in the first instance. In short, we perceive
no inconsistency in the cases Campbell cites.

       We hold that Delaware Supreme Court Rule 8 as applied
by the Delaware Supreme Court in Campbell’s case provides an
independent and adequate state ground which forecloses federal
habeas review as the District Court held.

                   II. Ineffective Assistance

                                A.

       The state’s case against Campbell was straightforward.
Two police officers observed Campbell at 1:30 A.M. on
December 16, 1999, standing with a woman on the sidewalk.
He and the woman had their hands out towards one another and
were looking down as they appeared to exchange something.
The officers stopped their patrol car near Campbell and got out.
As they did, Campbell began to walk away and threw an object
into the street under a car. One of the officers retrieved the
object almost immediately. It was a bag containing twenty-four
smaller bags which held, in total, 2.45 grams of crack cocaine.
Campbell was arrested.

                                21
       The police officers testified at Campbell’s trial along
with a senior forensic chemist and those having responsibility
for the chain of custody of the drugs. Campbell was the sole
witness for the defense. He denied selling drugs. He indicated
that he was on his way to visit his aunt and uncle but had some
difficulty remembering his uncle’s name.

       The Supreme Court of Delaware when reviewing the
judgment of the Superior Court in the post-conviction relief
proceeding described the ineffective assistance of counsel
claims before it as follows:

       [H]is trial counsel provided ineffective assistance
       by failing to conduct an adequate investigation,
       subpoena trial witnesses, make appropriate
       objections at trial, conduct a proper cross-
       examination of the State’s witnesses, move to
       suppress evidence, challenge the arrest warrant,
       object to improper jury instructions, and move for
       a mistrial.

Campbell v. State, 830 A.2d 409, 2003 WL 21998563, *1 (Del.
2003). The Delaware Supreme Court denied all of these claims
for the same reason:

              In order to prevail on his ineffective
       assistance of counsel, Campbell must show that
       his counsel’s representation fell below an
       objective standard of reasonableness and that, but
       for counsel’s professional errors, there is a
       reasonable probability that the outcome of the
       proceedings would have been different.5

                               22
              5
               Strickland v. Washington, 466 U.S.
              668, 688, 694 (1984).

                             ***

              Campbell’s claims of ineffective assistance
       of counsel are unavailing.        Campbell has
       presented no evidence that any claimed error on
       the part of his counsel resulted in prejudice to
       him.

Id.

        Campbell insists that this ruling was an unreasonable
application of Strickland because the “Delaware Supreme Court
essentially required Mr. Campbell, a pro se litigant, to produce
‘evidence’ of prejudice at the pleading stage without giving him
an opportunity to present evidence of prejudice.” Appellant’s
Br. at 34-35. We disagree.

        While it is true that the Court employed the phrase
“presented no evidence,” we decline to attribute to the Delaware
Supreme Court an intent to fault Campbell for not having
presented evidence to the Court when no hearing had been held.
In context, – that is, in the context of a motion by the state to
summarily “affirm the Superior Court’s judgment on the ground
that it [was] manifest on the face of Campbell’s opening brief
that the appeal was without merit,” App. at 45a, – the Court
clearly was ruling that Campbell had provided no reason to
believe he could present a prima facie case of prejudice if the
matter proceeded to a hearing. This was not an unreasonable
application of Strickland. We approved a similar application of

                               23
Strickland in Wells v. Petsock, 941 F.2d 253, 259 (3d Cir. 1991),
where the petitioner, in his petition and brief, had “pointed to no
evidence of such prejudice.” We affirmed the District Court’s
dismissal of the habeas petition without a hearing. While we
there dealt with a District Court’s dismissal of a habeas petition,
our holding makes clear that the Delaware Supreme Court’s
application of Strickland was not unreasonable.

              When a district court has denied a petition
       for a writ of habeas corpus without an evidentiary
       hearing, we must remand for a hearing only if
       “the petitioner has alleged facts that, if proved,
       would entitle him to relief.” Zettlemoyer v.
       Fulcomer, 923 F.2d 284, 291 (3d. Cir. 1991),
       petition for cert. filed (June 18, 1991). Thus, to
       merit a hearing, a claim for ineffective assistance
       of counsel, accepting the veracity of its
       allegations, must satisfy both prongs of the
       Strickland test, deficient counsel and prejudice to
       the defense. U.S. v. Dawson, 857 F.2d 923, 928
       (3d Cir. 1988). Here, Wells’ allegation of
       ineffective assistance of counsel is impaled on the
       second prong of the Court’s analysis in
       Strickland.

Wells, 941 F.2d at 259-60.

        In order to establish the prejudice required by Strickland,
the party claiming ineffective assistance “must show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
 Strickland, 466 U.S. at 694. “It is not enough for the defendant

                                24
to show that the errors had some conceivable effect on the
outcome of the proceeding . . . not every error that conceivably
could have influenced the outcome undermines the reliability of
the result of the proceeding.” Id. at 693. While it is true, as
Campbell stresses, that his factual allegations had to be accepted
for the purpose of determining his entitlement to a hearing,
“bald assertions and conclusory allegations do not afford a
sufficient ground for an evidentiary hearing.” Mayberry v.
Petsock, 821 F.2d 179, 185 (3d Cir. 1987).

        Campbell’s brief insists that the Delaware Supreme Court
failed to accept his factual allegations regarding prejudice. He
fails, however, to identify any such fact. The following segment
of his brief before us is typical:

               Accepting Mr. Campbell’s pro se
       pleadings and briefs as true, they demonstrate a
       reasonable probability that his counsel’s deficient
       performance affected the outcome of his case.
       Mr. Campbell argued that counsel wholly failed to
       investigate this case. Mr. Campbell argued that
       counsel failed to subpoena a potentially
       exonerating witness to determine, at a minimum,
       what she knew and who she was, and he wholly
       failed to investigate the evidence against his
       client.

Appellant’s Br. at 36. Campbell fails, however, to allege what
this witness would have been able to say that would have been
of help to him. As we have previously stressed, “a showing [of
Strickland type prejudice] may not be based on mere speculation
about what the witnesses [counsel] failed to locate might have

                               25
said.” United States v. Gray, 878 F.2d 702, 712 (3d Cir. 1989).

       This segment of Campbell’s brief sets forth only one
other claim of “unreasonableness” on the part of the Delaware
Supreme Court when it ruled that there was no reason to believe
that Campbell had experienced Strickland prejudice from
counsel’s error. Campbell insists that counsel should have
prevented the admission of testimony regarding Campbell’s
criminal history and that evidence of “prior criminal acts is
highly prejudicial.” Appellant’s Br. at 36. Campbell does not
explain, however, how this alleged error could have had a
“reasonable probability” of affecting the outcome of the
proceeding. So far as we are able to determine from the record,
the jury received only the information that Campbell had been
convicted of the felony of receiving stolen property in 1997 and
an unspecified “second felony” in 1998. This information
would appear to have been admissible under Delaware Rule of
Evidence 609 as relevant only to the credibility of Campbell as
a witness, and the trial judge so instructed at some length.7 App.


   7
       The Court instructed:

                 The fact that the defendant had been
          convicted of a felony, if such be a fact, may be
          considered by you for only one purpose; namely,
          in judging his credibility.
                 The fact of such a conviction does not
          necessarily destroy or impair the defendant’s
          credibility, and it does not raise the suggestion
          that the defendant has testified falsely. It is
          simply one of the circumstances that you may take

                                 26
at 149a. This information, accordingly, was appropriately
before the jury. Moreover, given the limited information
presented to the jury regarding the defendant’s record and the
overwhelming evidence of his guilt, we cannot say the
conclusion reached by the Delaware Supreme Court was an
unreasonable application of Strickland.

      Campbell has failed to show that the Delaware Supreme
Court’s application of Strickland was unreasonable.

                               B.

       Campbell’s federal habeas petition consisted of 102
handwritten pages. Since ineffective assistance of counsel
claims based on different acts or omissions are discrete claims
and must each be exhausted, the District Court began with the
difficult task of gleaning from the petition twelve distinct
ineffective assistance of counsel claims. Comparing these with
the voluminous papers filed in the state post-conviction relief
petition, the Court ruled that three of these claims had not been




       into consideration on weighing the testimony of
       such a witness.
              Proof of a prior conviction on the part of
       the defendant must not and shall not be
       considered by you in determining the guilt or
       innocence of the defendant, but may only be
       considered in judging the defendant’s credibility.

App. at 149a.

                               27
exhausted.8 The District Court then concluded that Campbell
had shown neither “cause and prejudice” nor “miscarriage of
justice,” see Coleman, 501 U.S. at 750, and denied relief.

        Campbell insists that he exhausted all of his claims. He
accuses the District Court of mischaracterizing the three claims
it held to be unexhausted. Campbell’s brief then states those
claims as follows:

                 In his habeas petition and brief, Mr.
          Campbell argued that counsel was ineffective
          because (1) counsel failed to conduct discovery or
          investigate into whether the female at the scene
          was an informant, or a police officer, or offered
          immunity (R.188a, 195a, 205a); (2) he failed to
          request forensic testing of the bag containing


   8
       The District Court characterized these claims as follows:

          [(1)] counsel failed to investigate whether the
          female involved in the alleged drug transaction
          was a police officer, a police informant, or
          whether she was promised immunity,

          [(2)] counsel failed to verify crime scene
          evidence, and

          [(3)] counsel failed to develop overall trial
          strategy.

Campbell v. Carroll, 2005 WL 2917466 (D. Del. Nov. 4, 2005).

                                 28
        cocaine found at the scene (R.188a, 195a); (3)
        counsel’s overall strategy was to raise reasonable
        doubt but he failed to pursue that strategy because
        he did not investigate into the female present at
        the scene or investigate the evidence against Mr.
        Campbell (R.206a).

Appellant’s Br. at 29. Campbell insists that each of these claims
was not only presented to, but also decided by, the Delaware
Supreme Court in the post-conviction relief proceeding.9

        Liberally construing and then comparing the voluminous
pleadings in the state and federal proceedings in this case, see
Montgomery v. Brierly, 414 F.2d 552, 555 (3d Cir. 1969)
(calling for liberal construction of pro se habeas petitions), is a
difficult task, and it is not surprising that the District Court and
Campbell’s court-appointed counsel reached somewhat different
conclusions after doing so. We find it unnecessary for us to
tread that path again and believe nothing constructive would be
accomplished by our doing so. Rather, we will accept,
arguendo, Campbell’s insistence that the three claims described
in his brief before us were presented to and rejected by the
Supreme Court of Delaware.


    9
      “On appeal from the denial of post-conviction relief, the
Delaware Supreme Court . . . reviewed Mr. Campbell’s
ineffective-assistance claims. . . . As to each of Mr. Campbell’s
ineffective-assistance claims, the court summarily concluded: .
. . ‘Campbell has presented no evidence that any claimed error
on the part of counsel resulted in prejudice to him.’”
Appellant’s Br. at 25-26.

                                29
       As we have indicated, the Supreme Court of Delaware
held that Campbell’s petition and brief had provided no reason
to believe that any of the alleged deficiencies in counsel’s
performance had resulted in Strickland-type prejudice to him.
Accepting his factual allegations as true, the Court concluded
that Campbell had failed to show a reasonable probability that,
but for counsel’s professional errors, the outcome would have
been different. The District Court was powerless to overturn
such a conclusion unless it was able to say it represented an
unreasonable application of Strickland. Given the state court
record, it could not do so.

        Campbell simply did not allege in the state court what
information investigation of the female at the scene or forensic
testing of the bag would have produced that would have been
helpful to him. It necessarily follows that the District Court did
not err in denying habeas relief.

                        III. Conclusion

       The judgment of the District Court will be affirmed.




                               30
