On Appeal from the United States District Court for the District of Delaware, D.C. Civil Action No. 86-0412 [§ 2254].
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
This appeal centers on the district court's determination that a procedural default in the state courts barred review of the merits of two claims raised in a petition for writ of habeas corpus challenging a state conviction. 28 U.S.C. § 2254 (1982). Petitioner asserts that the prosecutor's extensive references in his opening statement to two confessions that were never introduced into evidence, and the failure of the trial court to give a curative instruction, denied him due process. We hold that there exists no "independent and adequate state procedural ground," Wainwright v. Sykes, 433 U.S. 72, 87, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), that, as a matter of federal law, bars the district court from reaching the merits of this due process claim. As to petitioner's three claims of ineffectiveness of counsel, however, we find that state remedies may not have been exhausted. Accordingly, we will vacate the decision of the district court and remand the matter for further proceedings.
Petitioner George Lee Reynolds, John Preston Rooks and Thomas Young were all charged in 1976 for the 1974 robbery and murder of Frank Snyder, a store owner in Milton, Delaware. Their arrest marked the culmination of a protracted criminal investigation in which a large number of people, including many who were viewed as suspects, were questioned about the Snyder murder. The three co-defendants were tried separately.
During his opening statement at Reynolds's trial, the prosecutor referred to Reynolds's confessions in this manner:
You will hear evidence that his co-conspirator held such a trance over the defendant that the defendant was afraid to come forward and testify and yet you will hear evidence that sixteen months after the crime, after speaking with another prison inmate about what he knew about this crime and after talking and receiving counsel from his father one Jessie Lee James, he got it off his chest. He told the police about the crime and I believe that the testimony will reveal that he told the police about this crime on the 28th day of March, 1976. But, it's a kind of a funny statement, members of the jury panel. He tells about the crime and he tells about the crime with specific detail of things that no one could know unless they were there, details about the crime that had never been revealed in any publication. He told of details of the crime that had never been told to any newspaper or any radio station or to anybody except for the investigating officers. George Lee Reynolds knew certain details about that crime. Furthermore, members of the jury, in addition to these details that he knew about the crime that you will hear about, he lied to us in addition. He told us half the truth. He didn't tell us all of the truth. . . . Is he telling us the truth on the 31st of March, because a little later on you are going to hear George Lee Reynolds say he made it all up to collect the reward. In other words George Lee Reynolds retracted his story. How is it he retracted his story but he can't retract, members of the jury panel, those specific items that are of specific knowledge to the crime that George Lee Reynolds had when he "made up that story"?
Appendix ("App.") at 171-173.
Thereafter, an extensive mid-trial hearing was held to determine the admissibility of Reynolds's statements of February 13 and 17, and his confessions of March 28 and 31, 1976. Trial transcript ("T.T.") at 122-215.*fn1 At this proceeding, testimony was elicited regarding the voluntariness of the March 28 and 31 confessions. In addition, the prosecutor appeared to stipulate that Reynolds's attorney may not have been contacted prior to these interrogations, in violation of the sixth amendment right to counsel. He then, without argument, withdrew his offer of these confessions into evidence. App. at 224-26. The trial judge, after hearing argument based on fifth amendment grounds, ruled that the statements of February 13 and 17 were admissible. T.T. at 210. The trial, which through that point had heard testimony of some twelve witnesses regarding inconclusive physical evidence, resumed with the testimony of a Delaware police officer concerning the contents of the February 13 and 17 statements.*fn2 Id. at 223. During the course of the trial, defense counsel did not request, nor did the court give, a limiting instruction regarding the references in the opening statement to Reynolds's confessions.
The only witness to link Reynolds to the crime was Miles Cuffee, himself a former suspect. Prior to trial Cuffee gave the police at least seven different accounts of how he acquired knowledge of the crime.*fn3 At trial Detective French, a Delaware police officer, testified to some of Cuffee's prior inconsistent statements. T.T. at 379-89. These statements were apparently introduced by the prosecution at trial as substantive evidence against Reynolds, pursuant to a Delaware hearsay exception.*fn4 However, Cuffee himself would only testify affirmatively at trial to two events: that Young, in Reynolds's presence, had asked Cuffee if he wanted "to rip somebody off," and that Cuffee had seen Young, who was wearing a bloody shirt, with Reynolds in a car on the day of the murder. App. at 98-106; T.T. at 272-74, 276, 295-96, 299, 319-21, 325. The judge instructed the jury to disregard as hearsay Cuffee's testimony regarding Young's statement to Cuffee.*fn5 Id. at 274. The final jury instructions did not include the standard admonition that opening and closing statements are not to be regarded as evidence.
Reynolds was convicted on June 15, 1977 of first degree murder, first degree robbery and second degree conspiracy.*fn6
On direct appeal, the Supreme Court of Delaware remanded the matter to the Superior Court to consider a new trial motion, based on newly discovered evidence that another person may have committed the crime, that had been filed after the notice of appeal.*fn7 App. at 161. After this new trial motion was denied, Reynolds took another appeal and the conviction was affirmed. Reynolds v. State, 424 A.2d 6 (Del. 1980) (per curiam).
On June 29, 1982, Reynolds filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 35 ("Rule 35").*fn8 In this motion, Reynolds claimed for the first time that the prosecutor's references to the confessions during his opening statement, coupled with defense counsel's failure to request, and the trial judge's failure sua sponte to give, a limiting instruction, or to declare a mistrial, denied Reynolds due process under the Delaware and United States Constitutions. The state opposed the motion on the ground that the claims were procedurally barred by the holding of Conyers v. State, 422 A.2d 345 (Del. 1980) (per curiam).
The court held two hearings to adjudicate the motion. Reynolds's two trial attorneys, one of whom also represented him on direct appeal, testified at both hearings as to whether they had made deliberate choices not to request a limiting instruction, to move for a mistrial and to raise the issue on direct appeal. App. at 68-85, 292-344. The Delaware Superior Court found that
where no "contemporaneous objection" is made the holding of the Delaware Supreme Court in Conyers v. State . . . requires that the [cause and prejudice] test established by the United States Supreme Court for determining when federal habeas corpus review must be applied when considering a Rule 35 motion . . . . Under the reasoning of Engle[ v. Isaac, 456 U.S. 107, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982),] the ...