Appeal from the United States District Court for the District of Delaware. (D.C. Civil Docket No. 93-00387).
Present: Greenberg, Hutchinson and Nygaard, Circuit Judges.
HUTCHINSON, Circuit Judge.
Appellant, Andre Stanley Deputy ("Deputy"), a death row inmate in a Delaware state prison, seeks to appeal an order of the United States District Court for the District of Delaware denying his petition for a writ of habeas corpus. The state court imposed the sentence after a jury convicted Deputy of two counts of intentional murder, two counts of felony murder, one count of first-degree robbery and one count of possession of a deadly weapon during the commission of a felony.*fn2 cThe same jury thereafter unanimously voted to impose the death penalty for four murder convictions. See Del. Code Ann. tit. 11, § 4209(d)(1) (1987) (amended 1988).*fn3 On direct appeal, the Delaware Supreme Court overturned the intentional murder convictions but affirmed the findings of guilt and the sentences on the two felony murders and the other counts. Deputy v. State, 500 A.2d 581 (Del. 1985) ("Deputy II "), cert. denied, 480 U.S. 940, 94 L. Ed. 2d 778, 107 S. Ct. 1589 (1987). Deputy unsuccessfully sought post-conviction relief in the Delaware courts. See Deputy v. State, 602 A.2d 1081 (Del. 1991) (table) ("Deputy III ").
On October 3, 1991, Deputy filed his initial petition for a writ of habeas corpus under 28 U.S.C.A. § 2254 (West 1977). After the district court appointed counsel, it granted Deputy's motion for leave to amend and Deputy filed an amended petition on February 26, 1992. Contemporaneously with the amended petition, Deputy filed motions seeking leave for discovery, authorization to hire a psychiatric expert at government expense and permission to expand the record.
The petition and motions were referred to a magistrate- Judge. She issued a Report and Recommendation of denial on April 23, 1993. Deputy filed objections to the report, but on May 28, 1993, the district court dismissed the amended petition without prejudice as a mixed petition which contained both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 510-18, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). On July 30, 1993, the Delaware Superior Court dismissed all but one of Deputy's unexhausted claims as procedurally barred and denied his motion for a stay of execution. On August 13, 1993, it denied post-conviction relief on the last remaining unexhausted claim.
On August 11, 1993, before the superior court's post-conviction ruling on the remaining unexhausted claim, Deputy filed this habeas petition, renewed his prior motions, and expressly abandoned the claim still before the superior court. The district court denied Deputy's motions as well as his petition for habeas corpus relief. That order was the first federal decision on the merits of Deputy's claim that his death sentence was unconstitutionally imposed. In his petition, Deputy raised, in scattergun fashion, many arguments. The district court decided, without Discussion, that many of them lacked merit but it did discuss many others in a lengthy opinion. The district court refused to issue a certificate of probable cause and declined to issue a stay of execution. See Deputy v. Taylor, Civ. A. No. 93-387 (D.Del. Aug. 17, 1993).
On August 17, 1993, Deputy filed with this Court a motion to stay his execution, then scheduled for August 19, along with an application for a certificate of probable cause. On August 18, 1993, the State filed a response opposing Deputy's motion for a stay and its own motion for summary affirmance of the district court order. We heard oral argument on these motions that same day. After recessing for conference, we entered an order from the bench staying execution pending further order of this Court. We concluded a stay was needed to give us an opportunity to review all of Deputy's contentions. In light of the extensive record before us we could not immediately resolve the threshold issue whether Deputy had made a "substantial showing of the denial of a federal right," Barefoot v. Estelle, 463 U.S. 880, 893, 77 L. Ed. 2d 1090, 103 S. Ct. 3383 (1983) (quoting Stewart v. Beto, 454 F.2d 268, 270 n.2 (5th Cir. 1971), cert. denied, 406 U.S. 925, 32 L. Ed. 2d 126, 92 S. Ct. 1796 (1972)), and was thus entitled to the issuance of a certificate of probable cause. In addition, this was our first opportunity to consider Deputy's claims on their merits, and we were aware that the Supreme Court had granted certiorari in a case presenting an issue similar to one Deputy had raised. We ordered the parties to file briefs by August 30, 1993, addressing, but not limited to, the issues discussed in oral argument. We also requested submission of those portions of the state and district court records that the parties deemed material to their arguments.
Later, on August 25, 1993, we specifically asked the parties to address the effect of State v. Middlebrooks, 840 S.W.2d 317 (Tenn.), cert. granted, 113 S. Ct. 1840 (April 13, 1993), on Deputy's motion for a stay of execution and a certificate of probable cause. In Middlebrooks , the writer of the majority opinion for the Supreme Court of Tennessee concluded that the Eighth Amendment to the United States Constitution prohibits a sentencer in a felony murder prosecution from considering the fact that the murder was committed in the perpetration of a felony as an aggravating circumstance to impose the death penalty. Id. at 346.*fn4
On September 29, 1993, after briefing, we ordered Deputy's case held c.a.v. pending the Supreme Court's decision in Middlebrooks and thereafter until further order of this Court. The Supreme Court heard oral argument in Middlebrooks on November 1, 1993, but on December 13, 1993, entered a brief order holding that certiorari had been improvidently granted.
Though Deputy makes many arguments before the district court and on the merits of this appeal in his written motion for a certificate of probable cause and at oral argument on it, he limits himself to the following:*fn5 (1) admission of evidence he says the state obtained in violation of the Fourth and Fourteenth Amendments; (2) his challenge to the jury's composition based on Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986); (3) ineffective assistance of counsel at the sentencing phase; (4) the effect of the jury's consideration of evidence which the Delaware Supreme Court held was unconstitutionally seized on its finding that Deputy was guilty of felony murder and deserved the death penalty; (5) the jury's improper imposition of a death sentence on him on a theory of accomplice liability; (6) the trial court's action excusing for cause three jurors who had moral scruples against the death penalty; and (7) the jury's dual consideration of the robbery that culminated in the two murders as the basis for its finding that he was guilty of felony murder and as an aggravating circumstance justifying the death penalty. For the reasons that follow, we hold that Deputy has failed to make a substantial showing of a right to federal habeas relief.
Therefore, we will deny Deputy's application for a certificate of probable cause and vacate the stay we imposed on August 18, 1993.
Deputy, pre-trial, appealed the superior court's refusal to suppress the victim's watch and wallet, as well as money the police seized from him after they interrogated him at the police station. The superior court agreed with Deputy and suppressed the items seized from Deputy's person during his investigatory detention. The Delaware Supreme Court reversed. See State v. Deputy, 433 A.2d 1040 (Del. 1981) ("Deputy I "). Deputy alleges that the failure of the Delaware Supreme Court to accord retroactive effect to Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979), see Deputy I, 433 A.2d at 1044, violated the right of due process guaranteed him by the Fourteenth Amendment to the Constitution. In Dunaway, the Supreme Court held that police violated Dunaway's Fourth Amendment rights when they detained him without probable cause to arrest and transported him to the police station for interrogation. Dunaway, 442 U.S. at 216. New York had conceded, as Delaware does here, that it did not have probable cause for arrest. Id. at 207. The Supreme Court held that the "reasonable suspicion" which permits a limited stop under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1986), is not enough to allow the police to transport the person stopped to the police station and extract information through detention and interrogation. Dunaway, 442 U.S. at 212-15.
The district court held that Deputy's Dunaway claim was barred by Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976). Dist. Ct. op. at 29-32. In Stone, the Supreme Court held a federal court should not grant a state prisoner habeas corpus relief because evidence obtained in an unconstitutional search or seizure was introduced at his trial if the state had already provided an "opportunity for full and fair litigation" of this Fourth Amendment claim. Stone, 428 U.S. at 494; see also Townsend v. Sain, 372 U.S. 293, 313-14, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963) (defining requirements of full and fair hearing). In Cardwell v. Taylor, 461 U.S. 571, 572-73, 76 L. Ed. 2d 333, 103 S. Ct. 2015 (1983) (per curiam), the Supreme Court held, on habeas review that Stone precluded the court of appeals from considering petitioner's argument that Dunaway required the exclusion of statements taken after he was detained without probable cause in violation of the Fourth Amendment. Even otherwise potentially meritorious Fourth Amendment claims are barred on habeas when the petitioner had a full and fair opportunity to litigate them. See also Gilmore v. Marks, 799 F.2d 51, 57 (3d Cir. 1986) (rejecting argument that erroneous determination of habeas petitioner's Fourth Amendment claim overcomes Stone because that claim is really for a due process violation), cert. denied, 479 U.S. 1041, 93 L. Ed. 2d 853, 107 S. Ct. 903 (1987). Here, Deputy had a full and fair opportunity to litigate the Dunaway Fourth Amendment issue in the state courts. See Deputy I, 433 A.2d at 1044-45; cf. Deputy II, 500 A.2d at 581; Deputy III, 602 A.2d at 1081. Accordingly, we agree with the district court that Stone bars consideration of Deputy's Fourth Amendment Dunaway claim.
Deputy is African-American. He was convicted by an all white jury. He contends that his Sixth and Fourteenth Amendment rights were violated when the prosecutor intentionally exercised peremptory challenges to remove African-Americans from the jury. The district court decided the record before it did not present a sufficient factual basis to support Deputy's Batson claim. It also denied Deputy's request for further discovery on the Batson issue, stating:
There is simply no evidence that could be discovered now that was not available during Petitioner's post-conviction claim for relief for which [the state court] held explicitly was unproven by the record. As such, the Court will not judicially endorse a practice whereby Petitioner can further delay these proceedings with a discovery request that is way past due and without even a hint of resulting in probative evidence.
Dist. Ct. Op. at 69 (citation omitted).
In order to consider the merits of Deputy's Batson claim, we will assume without deciding that Batson applies to this case.*fn6
Even if Batson retroactively applies to Deputy's collateral attack on his conviction and sentence, the state says we should not reach the merits of Deputy's Batson claim because he never raised a question about the composition of the jury in the criminal case itself, even under the Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965), standard that was in effect before Batson. Cf. Government of the V.I. v. Forte, 865 F.2d 59, 63-64 (3d Cir. 1989).*fn7 In Allen v. Hardy, 478 U.S. 255, 92 L. Ed. 2d 199, 106 S. Ct. 2878 (1986) (per curiam), the Supreme Court held that Batson would not be applied on collateral review of convictions. There, however, the direct appeal was over and the time for certiorari had expired before Batson was decided. The state nevertheless argues Batson should not apply in this collateral proceeding. But see Pitts v. Cook, 923 F.2d 1568, 1571 n.3 (11th Cir. 1991) (Batson applies in a habeas case where the petitioner's direct appeal was still pending when Batson was decided) (dicta). Because we assume Batson 's application, we need not decide this question. Nevertheless, argument on delay is not without all force. It points out that it was not until 1989, when Deputy filed his first habeas petition in the district court, that he requested permission to conduct discovery and expand the record for further exploration of the Batson issue and that he should have some obligation to raise an issue within a reasonable time after he became aware of it.
In any event, in the present habeas proceeding in the district court, Deputy filed an affidavit of his trial counsel that contained some evidence that was not put before the state courts in the state post-conviction proceeding. In the affidavit, trial counsel averred that the prosecutor used a peremptory challenge to strike one black venireman and that the jury that convicted Deputy was all white.
Under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), a defendant may establish a prima facie case of purposeful discrimination in the exercise of peremptory challenges by showing that the prosecutor used peremptory challenges to remove from the venire a member or members of a particular racial group during the course of trial. Id. at 96-98. If a defendant makes a prima facie showing of discrimination, the burden shifts to the state to produce a race neutral explanation. Id. In Batson, the Court required that the defendant be of the same race as the members of the jury removed by way of the peremptory challenge. Subsequently, in Powers v. Ohio, 499 U.S. 400,111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), the Court deleted this requirement.*fn8 We have said that striking a single black juror might be sufficient to make out a prima facie case of racial discrimination even where other blacks were seated on the panel. See United States v. Clemons, 843 F.2d 741, 747 (3d Cir.) (dicta) (citing United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir. 1987), cert. dismissed, 487 U.S. 1265 (1988)), cert. denied , 488 U.S. 835 (1988).
If the exclusion of one member of any race always makes a prima facie case of racial discrimination, every time any party excuses a juror he or she will have to give an explanation, but no per se rule concerning the creation of a prima facie case exists. Thus, in Clemons and again in Jones v. Ryan, 987 F.2d 960, 970 (3d Cir. 1993), we utilized a five factor test to ...