On Appeal From the United States District Court For the District of Delaware. (D.C. Civil Action No. 86-00142).
Before: Sloviter, Chief Judge, and Stapleton, Circuit Judges, and Restani,*fn* Judge, United States Court of International Trade.
STAPLETON, Circuit Judge:
This appeal requires us to consider the situation of a criminal defendant whose lawyers make a tactical decision not to raise federal due process objections in the defendant's state trial or on state direct appeal, and do so under circumstances in which they could have a good faith expectation that the defendant would be able to raise these federal objections in state collateral review proceedings. The issue we address is whether the rule of Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963), bars such a defendant from later raising his federal objections in federal court through a petition for writ of habeas corpus. We hold that it does not.
In 1976, George Lee Reynolds was tried for felony murder, conspiracy, and robbery in the Superior Court of the State of Delaware. His alleged role in the crimes was to drive his two codefendants to and from the scene of the murder and robbery. The prosecuting Deputy Attorney General, in his opening statement to the jury, referred extensively to two purported confessions Reynolds had made to the police. Later in the trial, when the prosecution sought to introduce Reynolds' confessions into evidence, a hearing was held to determine their admissibility. At the hearing, the prosecution withdrew its proffer of the confessions. The prosecution never renewed its proffer,*fn1 and the evidence it did present turned out to be weak.*fn2 After the prosecution withdrew its proffer of Reynolds' confessions, Reynolds' counsel did not request a curative jury instruction regarding the Deputy Attorney General's opening statement, nor did Reynolds' counsel ask that a mistrial be declared. Reynolds was convicted and sentenced to life in prison.
Following a direct appeal to the Delaware Supreme Court, a remand by the supreme court to the trial court for further hearings in light of newly discovered evidence (at which hearings the chief investigating police officer appeared as a defense witness), and a second direct appeal to the supreme court, the supreme court affirmed Reynolds' conviction. Reynolds v. State, 424 A.2d 6 (Del. 1980). In none of these proceedings did Reynolds' counsel complain that Reynolds' federal rights had been violated at trial.
Reynolds then sought state collateral review of his conviction pursuant to Delaware Superior Court Criminal Rule 35.*fn3 In that proceeding, he complained for the first time that the prosecutor's references to the confessions during his opening statement, coupled with the trial Judge's failure to give a limiting jury instruction or to declare a mistrial sua sponte, denied Reynolds the due process required by the federal Constitution.
In the Rule 35 proceedings, the Delaware Superior Court held hearings to determine why Reynolds' lawyers had not raised his federal claims either at trial or on direct appeal. Reynolds' two trial lawyers, one of whom also represented Reynolds on direct appeal, testified at the hearings. Both said they had no recollection, independent of the transcript they were supplied, that the Deputy Attorney General had mentioned Reynolds' confessions to the jury. Moreover, both testified that they did not remember why they had not requested a limiting instruction, moved for a mistrial, or complained on direct appeal about the prosecutor's statements. Each counsel did offer hypothetical explanations, based largely upon his usual practices and his review of the record, as to why, for tactical reasons, he might have conducted Reynolds' trial and/or direct appeal as he did.
Reynolds' lead trial lawyer, an experienced criminal defense attorney who made most of the tactical trial decisions, offered three reconstructive hypotheses as to why he might not have moved for a mistrial. The first hypothesis was that he did not want a mistrial because it would give the prosecution a second opportunity to proffer the confessions after having marshalled stronger evidence to support their admissibility. The second was that a motion for a mistrial might have prompted the prosecutor to ask for a recess and rethink his decision to withdraw the confessions. The third hypothesis was that defense counsel simply overlooked the issue -- in his words, "I didn't catch it," or "I blew it." Appendix at 368 and 364. When asked which hypothesis he "placed the most reliance on," Reynolds' lead trial counsel answered, "Intellectually, the first. Emotionally, the third." Appendix at 368. While denying any recollection on the subject, lead counsel also hypothesized that he did not ask for any cautionary instruction because it would serve primarily to refocus the jury's attention on the confessions.
The defense counsel who handled the direct appeal gave the following testimony as to why the matter of the confessions had not been raised on appeal:
The reason it was not raised on appeal was because, as far as I am concerned, the better grounds for appeal were the interpretation of the stipulation regarding the truth serum and also the very good ground of the newly-discovered evidence when we had the investigating officer saying he believed the wrong man had been convicted.
The superior court analyzed the testimony of Reynolds' counsel to ascertain whether Reynolds had shown "cause" for his failure to raise his due process claims at trial or on direct appeal. The superior court performed this analysis because it interpreted the Delaware Supreme Court's opinion in Conyers v. State, 422 A.2d 345 (Del. 1980), to impose a contemporaneous-objection requirement for preserving Rule 35 review, and to adopt the United States Supreme Court's Wainwright v. Sykes "cause and prejudice" test as the Delaware standard for deciding whether to impose a procedural bar for failure to comply with the contemporaneous-objection requirement. State v. Reynolds, Nos. 76-04-0026; 0027; 0027A, letter op. at 2-3 (Del. Super. Ct. Dec. 9, 1983). In Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), the United States Supreme Court held that a state criminal defendant forfeits the availability of federal habeas review if his lawyer fails to raise his federal claim at the time or in the manner specified by "independent and adequate" state procedural requirements unless the defendant can show "cause" for his counsel's state default and "prejudice" resulting from it.
The superior court held that Reynolds had failed to show "cause" for his trial and appellate lawyers' silence regarding his federal due process claims, and therefore ruled that Conyers barred Reynolds from raising the claims in state collateral review proceedings. State v. Reynolds, Nos. 76-04-0026; 0027; 0027A, letter op. at 7 (Del. Super. Ct. Dec. 9, 1983). The Delaware Supreme Court upheld the superior court's decision. Reynolds v. State, No. 370 1983, letter op. (Del. Jan. 16, 1985).
Reynolds filed pro se a second Rule 35 motion raising federal constitutional claims of ineffective assistance of counsel. The superior court denied Reynolds' second Rule 35 motion as repetitive. State v. Reynolds, No. IS76-04-0026, 0027, letter op. at 2 (Del. Super. Ct. Mar. 12, 1986). Reynolds did not appeal. Reynolds I, 843 F.2d at 723.
Reynolds later filed a pro se petition for a writ of habeas corpus in the United States District Court for the District of Delaware pursuant to 28 U.S.C. § 2254. His petition raised both unfair trial and ineffective assistance of counsel claims. The unfair trial claims were based on the prosecutor's reference to Reynolds' confessions and the failure of the trial Judge sua sponte to instruct the jury to disregard that reference. The district court referred the case to a magistrate Judge who recommended that Reynolds' unfair trial claims be barred from habeas review under the "cause and prejudice" or "independent and adequate state ground" test of Wainwright v. Sykes, supra. The magistrate Judge recommended that Reynolds' ineffective assistance claims be rejected on their merits. The district court adopted the magistrate's recommendations, and denied Reynolds' habeas petition. Reynolds I, 843 F.2d at 716.
Reynolds appealed the district court's dismissal of his habeas petition. We reversed the district court's ruling that Reynolds' unfair trial claims were procedurally barred. The Delaware courts' determination that Reynolds had forfeited his opportunity for Rule 35 review, we concluded, was not based on an independent and adequate state procedural ground of default as required by Sykes. Reynolds I, 843 F.2d at 719. Essentially, we found that the Delaware courts had subjected Reynolds to a new contemporaneous-objection requirement when they reviewed his Rule 35 motion, a requirement which had not existed at the time Reynolds could have contemporaneously objected.*fn4 While the Delaware courts might be free to impose a surprise forfeiture rule to preclude state collateral review of a state trial's compliance with federal law, we held that state forfeiture-by-surprise was an inadequate ground for precluding federal collateral review. We also found that Reynolds had not exhausted his available state remedies regarding his ineffective assistance claims. Accordingly, we reversed the district court's Disposition of both Reynolds' unfair trial claims and his ineffective assistance claims. We remanded for further proceedings consistent with our opinion. In our opinion, we noted that, if Reynolds chose to amend his petition to drop his unexhausted ineffective assistance claims, the district court "could then proceed to the merits" of Reynolds' unfair trial claims. Reynolds I, 843 F.2d at 724 n.22.
On remand, Reynolds dropped his ineffective assistance claims, and the district court once again referred his unfair trial claims to a magistrate Judge. This time the magistrate Judge considered the merits of Reynolds' unfair trial claims, and recommended that the claims be dismissed. Reynolds v. Ellingsworth, No. 86-142-JRR, 1992 WL 404453, at 6 (D. Del. Dec. 31, 1992). The district court, however, decided once again that it was barred from considering the merits of Reynolds' unfair trial claims. This time the district court ruled that Reynolds' habeas petition was barred under the "deliberate bypass" rule of Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1962), a rule we had no occasion to address directly in Reynolds I.
The district court interpreted Fay to require that Reynolds' federal due process claims be barred from federal habeas review if, for strategic reasons, Reynolds' counsel deliberately bypassed the opportunity to object at trial and on appeal to the Deputy Attorney General's opening statements and the trial court's failure to give a curative instruction. Applying 28 U.S.C. § 2254 (d), the district court ruled that it was bound by what it characterized as the Delaware Superior Court's "factual determination that Reynolds' counsel intentionally decided not to object or move for a mistrial." Reynolds v. Ellingsworth, No. 86-142-JRR, 1992 WL 404453, at 8 (D. Del. Dec. 31, 1992). Therefore, the district court held, "because of his counsel's intentional decision to forgo objection to the prosecution's opening statement, Reynolds is precluded from mounting a due process challenge to the effect of the statement upon the fairness of his trial." Id. at 9.
Reynolds now appeals the district court's second refusal to consider the merits of his due process claims.
Our legal analysis is premised on two threshold assumptions, one legal and the other factual. First, we assume that Fay v. Noia has survived Sykes, supra, and Coleman v. Thompson, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). Second, we assume that Reynolds' counsel made strategic decisions not to move for a mistrial or ask for a curative instruction.
There is substantial support for the view that the "independent and adequate state law ground" rule, as applied in cases like Sykes, Murray v. Carrier, 477 U.S. 478, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986), and Coleman v. Thompson, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991), has subsumed the "deliberate bypass" rule of Fay.*fn5 If Fay is currently without independent significance, of course, the judgment of the district court cannot be upheld in light of our holding in Reynolds I. Since we conclude that Reynolds' petition would merit review under Fay as well as Sykes, and that a reversal is required even if Fay retains independent vitality, we will assume arguendo that the district court properly looked to Fay as a relevant precedent.
With respect to the factual predicate for our decision, we note, again, that the purpose of the evidentiary hearing in the superior court in the first Rule 35 proceeding was to determine whether Reynolds could show "cause" and "prejudice" under Conyers and Sykes. Reynolds maintained in that proceeding that the ineffective assistance of his counsel with respect to the confession references provided "cause" under Conyers and Sykes to excuse his failure to make a contemporaneous objection. The superior court held that Reynolds had not satisfied his burden of proof on the cause issue and characterized the record as reflecting a situation like that involved in Engle v. Isaac, 456 U.S. 107, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982), a case in which the Supreme Court held that neither a deliberate strategic decision nor an inadvertent failure of counsel to raise an issue constitute "cause" unless counsel's performance has failed to meet the Sixth Amendment standard for competent assistance, 456 U.S. at 133-34; see also Murray v. Carrier, 477 U.S. at 485-87. The superior court cast its holding as follows:
Defendant contends that the reason for the failure of his attorneys to raise the issue at trial or at the appeal stage was either inadvertence or lack of knowledge of the applicable law. I do not find that those contentions have been proved by this record.
4. Considering the experience and competence of defendant's attorneys and the quality of the defense made in this case, I find that the situation here falls squarely within the language of Engle that "counsel might have overlooked or chosen to admit [omit] respondents' due process argument while pursuing other avenues of defense". Under the reasoning of Engle the situation existing here does not constitute cause justifying relief from the failure to make timely objection.
State v. Reynolds, Nos. 76-04-0026; 0027; 0027A, letter op. at 6-7 (Del. Super. Ct. Dec. 9, 1983).
In the course of his opinion, the superior court Judge also described the testimony of defense counsel that we have summarized above. That description included the following observations:
It is clear from the testimony of the defendant's attorneys that they viewed the announcement of the Deputy Attorney General that he would not seek to introduce the confession in evidence as a substantial victory and that they desired to push forward to conclude the trial because they then anticipated a verdict in defendant's favor. Defendant's lead trial counsel testified that he did not seek an admonition from the Court for the jury to disregard the Deputy Attorney General's prior reference to the confession because it would only focus attention on the prior references. With reference to his not seeking a mistrial, he testified that he had had no recollection of his mental processes. However, he testified, based upon his experience, that after two or three days of trial a jury forgets what was said in an opening statement. . . ...