UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: May 24, 1988.
GEORGE L. REYNOLDS, APPELLANT
JACK C. ELLINGSWORTH, WARDEN AND CHARLES M. OBERLY, III
On Appeal from the United States District Court for the District of Delaware, D.C. Civil Action No. 86-0142 [§ 2254]
Before: HIGGINBOTHAM and MANSMANN and WEIS,*fn*
SUR DENIAL OF REHEARING
In their petition for rehearing, appellees raise three points that merit discussion. First, they argue that Delaware Superior Court Criminal Rule 51*fn1 acts as a procedural bar to claims raised for the first time in a proceeding brought pursuant to Delaware Superior Court Criminal Rule 35, where counsel had made a tactical choice not to object at trial or to present the issue on appeal. We cannot read this specific requirement into the general language of Conyers v. State, 422 A.2d 345 (Del. 1980) (per curiam). Conyers does not refer to, or rely upon, Rule 51. The other cases upon which appellees rely in support of this argument, see King v. State, 239 A.2d 707, 708 (Del. 1968) (per curiam); State v. Herhal, 307 A.2d 553, 555 (Del. Super. 1973), also fail to discuss the effect of Rule 51 on post-conviction prodceedings. In fact, the Delaware courts in King and Herhal go to the merits of the claims raised, after raising the possible waiver problem. Therefore, to the extent that a waiver rule pursuant to Rule 51 was impliedly articulated in these cases, the procedural default was nonetheless overlooked.
Second, appellees bring to our attention the existence of some twenty unpublished opinions of the Delaware Supreme Court that apply the Conyers holding to a variety of claims raised in Rule 35 proceedings. While under Delaware law, such orders have precedential value, see New Castle County v. Goodman, 461 A.2d 1012, 1013 (Del. 1983), we need not decide the significance of their precedential value here. Each of the cases raised in the petition was decided after Reynolds's trial and direct appeal. Therefore, none of them bear on the question of whether, at the time of the purported waiver in this case, Delaware had a rule that barred claims from being raised for the first time in a Rule 35 proceeding.*fn2 As we stated earlier, procedural default is determined by the "'waiver law in effect at the time of the asserted waiver.'" Reynolds v. Ellingsworth, No. 86-5633, slip op. at 22 (3d Cir. Mar. 31, 1988) (citation omitted).
Finally, appellees contend that various other courts of appeals have supported the proposition that sporadic application of procedural rules by state court should be overlooked by federal courts. See, e.g., Gardner v. Ponte, 817 F.2d 183, 188 (1st Cir.), cert. denied sub nom. Gardner v. Maloney, U.S. , 108 S. Ct. 181 (1987); Bass v. Estelle, 705 F.2d 121, 122-23 (5th Cir.), cert. denied, 464 U.S. 865 (1983); Hockenbury v. Sowders, 620 F.2d 111, 113 (6th Cir. 1980), cert. denied, 450 U.S. 933 (1981). To the extent that these cases stand for such a proposition, they are directly contrary to law of this circuit as enunciated in this case and in Hochman v. Rafferty, 831 F.2d 1199, 1202-03 (3d Cir. 1987). We reiterate our holding that one factor in determining adequacy of a state procedural rule is whether the state courts consistently apply the rule. See Wainwright v. Sykes, 433 U.S. 72, 85-86 (1977).