Riley v. Taylor ( 2001 )


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  •                                                                                                                            Opinions of the United
    2001 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    12-28-2001
    Riley v. Taylor
    Precedential or Non-Precedential:
    Docket 98-9009
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    Recommended Citation
    "Riley v. Taylor" (2001). 2001 Decisions. Paper 304.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2001/304
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    Volume 1 of 2
    Filed December 28, 2001
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 98-9009
    JAMES WILLIAM RILEY,
    Appellant
    v.
    STANLEY W. TAYLOR;
    *M. JANE BRADY
    *(Pursuant to Rule 43(c), F.R.A.P.)
    On Appeal from the United States District Court
    for the District of Delaware
    (D.C. No. 91-cv-00438)
    District Judge: Hon. Joseph J. Farnan, Jr.
    Argued November 29, 1999
    Before: SLOVITER, ALITO and STAPLETON, Circuit     Judges
    Argued En Banc May 23, 2001
    Before: BECKER, Chief Judge, SLOVITER, MANSMANN,
    SCIRICA, NYGAARD, ALITO, ROTH, McKEE, BARRY,
    AMBRO, FUENTES, and STAPLETON, Circuit Judges
    (Filed: December 28, 2001)
    Thomas J. Allingham, II (Argued)
    Stephen D. Dargitz
    Skadden, Arps, Slate, Meagher &
    Flom
    Wilmington, DE 19899
    Mary M. MaloneyHuss
    Wolf, Block, Schorr & Solis-Cohen
    Wilmington, DE 19801
    Lawrence J. Connell
    Widener University School of Law
    Wilmington, DE 19803
    Attorneys for Appellant
    James W. Riley
    Loren C. Meyers (Argued)
    Chief of Appeals Division
    William E. Molchen, II
    Deputy Attorney General
    Department of Justice
    Wilmington, DE 19801
    Attorney for Appellees
    Stanley Taylor and M. Jane Brady
    OPINION OF THE COURT
    SLOVITER, Circuit Judge,   with whom Judges Mansmann,
    Nygaard, Roth, McKee and   Ambro join, with whom Judges
    Scirica and Fuentes join   as to Part II B, and with whom
    Chief Judge Becker joins   in the judgment.
    Appellant James W. Riley, a 22 year old black man, was
    sentenced to death on the vote of a Delaware state jury in
    December 1982. If the time intervening between that
    sentence and this court's en banc consideration of the
    matter has been lengthy, it is not because there has been
    undue delay at any stage but because the case raises
    legitimate questions that go to the constitutionality of the
    original trial and sentencing. It was necessary to complete
    a series of proceedings in both state and federal court, none
    of them duplicative, before the case reached this stage.
    2
    After all, there can be no reconsideration after the
    execution of a death sentence.
    I.
    INTRODUCTION
    According to testimony at the trial, Riley and Tyrone
    Baxter stopped in a liquor store in Dover, Delaware, on
    February 8, 1982, to get some beer and rob the store.
    Michael Williams waited in the car. Baxter testified that
    Riley, armed with a gun, placed a bottle of beer on the
    counter and announced the store was being robbed. When
    the store owner, James Feeley, a 59 year old white man,
    backed away from the cash register, Baxter grabbed the
    money out of the cash drawer. Riley tried to take Feeley's
    wallet, but Feeley resisted. At Baxter's urging, Riley shot
    Feeley in the leg. Feeley, who was then hopping up and
    down, apparently from the gunshot, said "[Y]ou f 'ing
    niggers." App. at 327. As Riley and Baxter were proceeding
    to the door to leave, Feeley threw a wine bottle that struck
    Riley in the arm. Riley then shot Feeley in the chest, killing
    him.
    In May 1982, Riley, Baxter, and Williams were indicted
    on charges of felony murder, intentional murder, first
    degree robbery, possession of a deadly weapon during a
    felony, and second degree conspiracy. Riley pled not guilty
    to all charges. Baxter pled guilty to first degree murder and
    was sentenced to life imprisonment in exchange for his
    testimony against Riley. The murder and weapon charges
    against Williams were also dropped in exchange for his
    testimony against Riley, and he was subsequently convicted
    of the robbery and conspiracy charges.
    Riley was represented at trial by appointed counsel, a
    defense-side civil litigator who had never represented a
    criminal defendant in either a murder or a capital case. His
    pretrial motions for co-counsel and funds for a private
    investigator were denied. The prosecutors in Riley's case
    were James Liguori and Mark McNulty. Liguori, the lead
    prosecutor, was a friend and neighbor of Feeley's, and they
    belonged to the same church.
    3
    The State presented the testimony of Baxter, Williams,
    Baxter's mother (who testified that Riley spent the night
    before the robbery at her house), and a witness who
    reported that Riley's fingerprints were on a bottle of beer in
    the liquor store. In defense, Riley testified that he was in
    Philadelphia on the day of the murder celebrating his
    mother's birthday. However, Riley's mother did not testify in
    support of his alibi. The only witness Riley presented other
    than himself was an inmate at the prison in which Baxter
    was incarcerated, and he testified that Baxter had admitted
    to shooting Feeley.
    Riley was tried before and convicted on all counts by an
    all white jury in Kent County Superior Court (the Delaware
    trial court) in December 1982. Four days after the verdict,
    the jury proceeded to consider the penalty. The State
    sought the death penalty, relying only on Riley's felony
    murder conviction and using the underlying robbery as the
    lone aggravating circumstance. Following a two-hour
    penalty hearing, the jury unanimously recommended a
    sentence of death which the court accepted. Riley was also
    sentenced to life imprisonment without parole for
    intentional murder, 20 years imprisonment for robbery, 5
    years imprisonment for possession of a deadly weapon, and
    3 years imprisonment for conspiracy. Riley's attorney
    explained to the trial court that he spent only 14 hours
    preparing for the penalty phase because he had been too
    busy "with the defense and the merits" to spend more time
    building a case in mitigation. App. at 443-444.
    Riley appealed his conviction and sentence on numerous
    grounds. In July 1985, the Delaware Supreme Court
    affirmed, see Riley v. State, 
    496 A.2d 997
    (Del. 1985)
    (hereafter "Riley I"), and the Supreme Court of the United
    States denied certiorari, see Riley v. Delaware , 
    478 U.S. 1022
    (1986).
    Represented by new counsel, Riley filed a motion for
    post-conviction relief in Kent County Superior Court in
    March 1987 before Judge Bush, the judge who had
    presided at the trial (the "trial judge"), alleging, inter alia,
    that his trial counsel had provided ineffective assistance of
    counsel and that the prosecution had exercised its
    peremptory challenges in a racially discriminatory manner
    4
    in violation of Batson v. Kentucky, 
    476 U.S. 79
    (1986). After
    three days of evidentiary hearings limited to the ineffective
    assistance of counsel claim, the trial judge denied Riley's
    motion. See State v. Riley, 
    1988 WL 47076
    (Del. Super.
    1988) (hereafter "Riley II"). Riley then requested the
    Superior Court consider reargument on his Batson claim.
    The trial judge had passed away and Judge Steele of the
    Superior Court ("the hearing judge") granted Riley's request
    for reargument, finding that Riley had established a prima
    facie case of discrimination under Batson . See State v.
    Riley, 
    1988 WL 130430
    , at *3 (Del. Super. 1988) (hereafter
    "Riley III"). After holding an evidentiary hearing, the hearing
    judge rejected Riley's Batson claim and all his other claims
    as well. See Riley v. State, No. 200, 1988 (Del. Super. Ct.
    April 21, 1989), App. at 886 (hereafter "Riley IV"). On
    appeal, the Delaware Supreme Court again affirmed, see
    Riley v. State, 
    585 A.2d 719
    (Del. 1990) (hereafter "Riley
    V"), and the Supreme Court of the United States again
    denied certiorari, see Riley v. Delaware, 
    501 U.S. 1223
    (1991).
    On August 12, 1991, Riley filed a petition for a writ of
    habeas corpus in the United States District Court for the
    District of Delaware pursuant to 28 U.S.C. S 2254. Again
    Riley obtained new lead counsel, although his post-
    conviction counsel remained as co-counsel. The District
    Court denied Riley's request to amend his petition to add
    two additional claims and then denied his petition without
    an evidentiary hearing. See Riley v. Snyder, 
    840 F. Supp. 1012
    (D. Del. 1993) (hereafter "Riley VI"). Riley appealed,
    and this court held that the denial of his motion to amend
    was an abuse of discretion and remanded the case so that
    Riley could raise all the issues he sought to raise in an
    amended petition. See Riley v. Taylor, 
    62 F.3d 86
    (3d Cir.
    1995) (hereafter "Riley VII").
    Riley filed his amended habeas petition on August 28,
    1995, alleging 12 grounds for relief. The District Court
    denied Riley's petition without holding an evidentiary
    hearing. See Riley v. Taylor, 
    1998 WL 172856
    (D. Del. Jan.
    16, 1998) (hereafter "Riley VIII"). We then issued a
    certificate of probable cause and Riley appealed, raising 12
    claims. He asserted that:
    5
    1. The State's exercise of peremptory challeng es to
    strike all prospective black jurors violated the
    Equal Protection Clause under Batson v.
    Kentucky, 
    476 U.S. 79
    (1986).
    2. The State's continuing conduct in withholdi ng
    wiretap tapes of a key witness from Riley violated
    Brady v. Maryland, 
    373 U.S. 83
    (1963).
    3. Riley received ineffective assistance of co unsel
    because he was prejudiced by trial counsel's
    deficient performance at the penalty hearing.
    4. The trial court violated Riley's Sixth and
    Fourteenth Amendment rights by denying his
    motions to appoint co-counsel and a private
    investigator.
    5. The prosecution and the trial court made
    improper remarks at the penalty hearing violating
    the Eighth and Fourteenth Amendments under
    Caldwell v. Mississippi, 
    472 U.S. 320
    (1985).
    6. The trial court failed to probe equivocal r esponses
    during the death penalty voir dire in violation of
    Witherspoon v. Illinois, 
    391 U.S. 510
    (1968).
    7. Riley's jury was unconstitutionally biased in favor
    of returning the death penalty because the trial
    judge's voir dire failed to identify all prospective
    jurors who automatically would impose the death
    penalty.
    8. Riley was deprived of his constitutional ri ght to a
    fair and impartial jury because of pretrial
    publicity.
    9. The Delaware Supreme Court's proportionalit y
    review violated Riley's Eighth and Fourteenth
    Amendment rights.
    10. The trial court's jury instructions failed
    adequately to guide Riley's jurors on the law,
    thereby creating a substantial risk that the jurors
    would impose the death penalty in an arbitrary
    and capricious manner in violation of both the
    Eighth and Fourteenth Amendments.
    6
    11. The use of felony murder to establish both Riley's
    eligibility for death and the aggravating
    circumstance warranting imposition of the death
    penalty is arbitrary and capricious in violation of
    the Eighth and Fourteenth Amendments.
    12. The District Court abused its discretion in not
    holding an evidentiary hearing, in denying Riley's
    motions to conduct discovery and expand the
    record, and in denying Riley's applications for
    funds for medical and investigative experts.
    A divided panel of this court affirmed. See Riley v. Taylor,
    
    2001 WL 43597
    (3d Cir. 2001) (hereafter "Riley IX"). The
    author of this opinion dissented on two claims, those
    raising Batson and Caldwell violations (claims numbered 1
    and 5 above). On March 5, 2001, the full court granted
    Riley's petition for rehearing en banc, and vacated the
    panel's opinion and judgment. See Riley v. Taylor, 
    237 F.3d 348
    (3d Cir. 2001). Our order limited the en banc
    proceedings to the District Court's denial of Riley's Batson
    and Caldwell claims. See 
    id. We now
    reverse and direct the
    District Court to grant the writ of habeas corpus. 1
    The District Court exercised subject matter jurisdiction
    pursuant to 28 U.S.C. S 2254. We possess appellate
    jurisdiction pursuant to 28 U.S.C. SS 1291 and 2253.
    II.
    DISCUSSION
    Riley presents two arguments to the en banc court. He
    argues first, that the prosecution exercised its peremptory
    challenges to strike black jurors in violation of the Equal
    Protection Clause of the Fourteenth Amendment, and
    second, that the prosecutor's statements to the jury in his
    opening argument at sentencing misled the jury regarding
    _________________________________________________________________
    1. Our en banc order vacated the panel opinion and judgment in full. We
    will reinstate the portion of the panel opinion authored by Judge Alito
    that disposed of Riley's ten other claims, and append it hereto as
    Appendix A.
    7
    its role in the sentencing process in violation of the Eighth
    and Fourteenth Amendments. We will address each of these
    arguments in turn.
    A.
    THE BATSON CLAIM
    Riley's claim that the prosecution violated the Equal
    Protection Clause by using its peremptory challenges to
    strike all three prospective black jurors from the jury panel
    because of their race, thereby leaving no black juror sitting
    on the jury, stems from the Supreme Court decision in
    Batson v. Kentucky, 
    476 U.S. 79
    (1986).2
    1. Preservation of Claim
    The District Court held that Riley was procedurally
    barred from raising his Batson claim in his habeas petition
    because he failed to present that claim to the trial court.
    See Riley VIII, 
    1998 WL 172856
    , at *15. We do not agree.3
    The Delaware Supreme Court concluded on Riley's direct
    appeal "that no Sixth Amendment peremptory challenge
    claim was fairly presented to the Trial Court," and also
    held, in the alternate, that Riley's Batson claim failed on
    the merits. Riley 
    I, 496 A.2d at 1010
    . However, the
    Supreme Court of the United States has since made clear
    that, "[i]f the last state court to be presented with a
    particular federal claim reaches the merits, it removes any
    bar to federal-court review that might otherwise have been
    available." Ylst v. Nunnemaker, 
    501 U.S. 797
    , 801 (1991).
    In his memorandum opinion granting Riley's motion for a
    post-conviction evidentiary hearing, the Superior Court
    _________________________________________________________________
    2. Although Riley's trial occurred several years before the Batson
    decision, the Supreme Court did not deny certiorari in Riley's direct
    appeal until shortly after Batson was decided, thus entitling Riley to the
    benefit of that decision. See Griffith v. Kentucky, 
    479 U.S. 314
    , 328
    (1987); Deputy v. Taylor, 
    19 F.3d 1485
    , 1491 n.6 (3d Cir. 1994).
    3. Much of the discussion of procedural bar is taken from the opinion of
    Judge Alito from the panel opinion that was vacated. See Riley IX, 
    2001 WL 43597
    , at *2-*6.
    8
    hearing judge stated that he did not think the State
    Supreme Court would maintain its position that Riley had
    failed to timely present a Batson claim. See Riley III, 
    1988 WL 130430
    , at *2 (citing Baynard v. State, 
    518 A.2d 682
    (Del. 1986)).4 Thereafter, the hearing judge considered and
    rejected Riley's Batson claim on the merits. See Riley IV,
    App. at 887-891. On appeal, the Delaware Supreme Court
    affirmed the hearing judge's decision, using language that
    expressly refers to the Superior Court's rejection of Riley's
    Batson claim on the merits. See infra note 9. Moreover, in
    that passage, the Delaware Supreme Court expressly
    reaffirmed its holding on direct appeal that the
    prosecution's use of peremptory challenges in this case did
    not violate the state constitution. Not only is there no
    reaffirmation of its prior holding concerning procedural
    default, but there is no reference to that holding, leading us
    to conclude it no longer relied on a procedural bar. See
    Harris v. Reed, 
    489 U.S. 255
    , 266 (1989) (concluding that
    habeas claim was not procedurally barred where state court
    rejected the claim on the merits notwithstanding its
    observation that allegations "could have been raised [on]
    direct appeal").
    If the Delaware Supreme Court had continued to believe
    at the time of its most recent decision that Riley's Batson
    claim was foreclosed for failure to make a proper objection
    at the time of trial, it seems likely that the Court would
    have made that point expressly, instead of affirming the
    hearing judge's findings on the merits. Indeed, it is unlikely
    that it would have made no comment on the hearing
    judge's failure to follow its earlier decision on foreclosure.
    Thus, we interpret the decision of the Delaware Supreme
    Court in Riley V (its most recent) to be a rejection of Riley's
    Batson claim on the merits. Accordingly, Riley's Batson
    claim is not procedurally barred and we proceed to examine
    its merits.
    _________________________________________________________________
    4. In Baynard, the Court held that the defendant sufficiently raised an
    objection to the State's peremptory challenges which resulted in an all
    white jury being impaneled where defendant "noted the race of each
    black against whom the State exercised a peremptory challenge," "moved
    the Court to refuse the peremptory challenges against two of the drawn
    black jurors and moved to quash the entire panel at the end of the jury
    selection 
    process." 518 A.2d at 687
    .
    9
    2. Batson v. Kentucky
    In Batson, the Supreme Court reiterated the well-settled
    principle that the Equal Protection Clause prohibits
    discrimination on account of race in selection of both the
    venire and the petit jury. 
    See 476 U.S. at 88
    . This principle,
    which dates back at least as far as Strauder v. West
    Virginia, 
    100 U.S. 303
    (1880), recognizes that racial
    discrimination in the selection of jurors harms"not only the
    accused whose life or liberty they are summoned to try,"
    but also harms the potential juror, whose race "is unrelated
    to his fitness as a juror." 
    Batson, 476 U.S. at 87
    (quotation
    omitted). As the Court noted in Batson,"[s]election
    procedures that purposefully exclude black persons from
    juries undermine public confidence in the fairness of our
    system of justice." 
    Id. The Court
    granted certiorari in Batson so that it could
    reexamine the evidentiary burden its opinion in Swain v.
    Alabama, 
    380 U.S. 202
    (1965), had placed on a criminal
    defendant who alleged that the State improperly used its
    peremptory challenges to exclude jurors based on race. In
    Swain, the Court had held that a defendant could satisfy a
    prima facie case of purposeful discrimination by showing
    that a prosecutor, "in case after case, whatever the
    circumstances, whatever the crime and whoever the
    defendant or the victim may be, is responsible for the
    removal of Negroes who have been selected as qualified
    jurors by the jury commissioners and who have survived
    challenges for cause, with the result that no Negroes ever
    serve on petit juries." 
    Id. at 223.
    The Batson Court noted
    that many lower courts interpreted Swain to hold "that
    proof of repeated striking of blacks over a number of cases
    was necessary to establish a violation of the Equal
    Protection Clause." 
    Batson, 476 U.S. at 92
    . The Court in
    Batson recognized that this standard had "placed on
    defendants a crippling burden of proof " that resulted in
    "prosecutors' peremptory challenges [becoming] largely
    immune from constitutional scrutiny." 
    Id. at 92-93
    (footnote
    omitted). Accordingly, it rejected the Swain evidentiary
    formulation.
    In the jurisprudence that has evolved following Batson,
    the inquiry has been characterized as a three-step one.
    10
    Batson stated that "a defendant may establish a prima facie
    case of purposeful discrimination in selection of the petit
    jury solely on evidence concerning the prosecutor's exercise
    of peremptory challenges at the defendant's trial." 
    Id. at 96.
    Once the defendant makes a prima facie showing of racial
    discrimination (step one), the prosecution must articulate a
    race-neutral explanation for its use of peremptory
    challenges (step two). If it does so, the trial court must
    determine whether the defendant has established
    purposeful discrimination (step three). See 
    id. at 96-98;
    Simmons v. Beyer, 
    44 F.3d 1160
    , 1167 (3d Cir. 1995);
    Deputy v. Taylor, 
    19 F.3d 1485
    , 1492 (3d Cir. 1994). The
    ultimate burden of persuasion regarding racial motivation
    rests with, and does not shift from, the defendant. See
    Purkett v. Elem, 
    514 U.S. 765
    , 768 (1995).
    3. Riley's Batson Challenge in State Court
    In this case, the hearing judge determined, and the State
    does not contest, that Riley made out a prima facie case of
    discrimination in jury selection, as the State had used its
    peremptory challenges to strike all three prospective black
    jurors from the venire, "result[ing] in an all-white jury
    sitting on a first degree murder trial involving a black
    defendant and a white victim." Riley III, 
    1988 WL 130430
    ,
    at *2. The hearing judge then conducted an evidentiary
    hearing. The State proceeded to step two of the Batson
    inquiry by offering race-neutral justifications for its use of
    the peremptory challenges to strike Ray Nichols, Lois
    Beecher, and Charles McGuire, each of whom was black.
    Liguori, the lead prosecutor at trial and the State's
    principal witness at the post-conviction relief hearing,
    testified that the State "wanted to have minority
    representation on the jury panel." App. at 792-793. He
    stated that he wanted jurors who would be attentive and
    who would vote for a death sentence. He testified that he
    wanted "to make sure we were not only going to get a
    conviction of murder in the first degree, but also the death
    penalty." App. at 797.
    With respect to Nichols, Liguori remembered clearly that
    "Mr. Nichols was an individual who, and unfortunately the
    record doesn't reflect this, who was not, in my particular
    11
    mind, not certain with regard to being able to return a
    verdict for death." App. at 797-798 (emphasis added). As
    Liguori explained, "there was a pause and a significant
    pause in [Nichols'] answering [the court's] inquiry [at voir
    dire] and that to me was enough to suggest that he might
    not be able to return a death penalty and I didn't want
    anyone that wasn't going to give me a death penalty." App.
    at 798-799.
    With regard to Beecher, Liguori testified that he struck
    her because of her response to the court that she did not
    think she could impose the death penalty. App. at 804.
    As for McGuire, Liguori explained that he used the
    peremptory challenge because he presumed McGuire would
    be unable to "give his full time and attention" to the trial.
    App. at 801. According to Liguori,
    Mr. McGuire was an individual who had requested--
    remember, this was going to be around Christmas also.
    Mr. McGuire had previously requested to be excused
    from jury service. When Mr. McGuire came up, the first
    thing I wanted to make clear--as I said earlier, I
    wanted someone that was going to be attentive and you
    can read all the books you want with regard to
    selecting prospective jurors and it is always make sure
    you have attentive jurors, people not concerned about
    getting home early to take care of their kids, or
    vacation.
    Mr. McGuire himself had requested the Court to
    excuse him. The Court didn't. When he went through
    his inquiry, we asked the judge to excuse him for
    cause. The judge said no. It then left us with no
    alternative but to think he would not give his full time
    and attention and therefore we struck Mr. McGuire.
    App. at 801.
    On cross-examination of Liguori, Riley's attorney
    introduced Liguori's handwritten notes from voir dire.
    Written next to McGuire's name was the word "Out." App.
    at 832. Among the names on the same page was that of
    Charles Reed, a white man who actually served on Riley's
    jury. Next to Reed's name on the sheet was written,"works
    12
    Lowe's, wants off." App. at 823. Despite repeated efforts by
    Riley's counsel to refresh Liguori's recollection, Liguori
    testified that he had no recollection of Reed whatsoever.
    Liguori agreed, however, that the notation next to Reed's
    name indicated that Reed had requested to be excused from
    service on the jury. Liguori offered no explanation for his
    decision not to strike Reed.
    Riley then presented McGuire as a witness at the state
    post-conviction hearing. McGuire testified that, in contrast
    to Liguori's testimony, he had never asked to be excused
    from the jury. McGuire specifically denied ever indicating to
    either the prosecutors or the court that he was unwilling to
    serve on the jury or that he wanted to be excused. Instead,
    he testified that his supervisor had told him that he was
    going to make a "formal request" that McGuire be excused
    and that his supervisor did send a letter to the trial judge
    requesting he be relieved from jury duty. App. at 860.
    According to McGuire, in response to his supervisor's letter,
    he was questioned by the trial judge whom he advised of
    his willingness to serve on the jury. App. at 849-850.
    Riley also presented evidence that in addition to the
    prosecutor's striking of the three prospective black jurors in
    his trial, the Kent County Prosecutor's office used its
    peremptory challenges to remove every prospective black
    juror in the three other first degree murder trials that
    occurred within a year of his trial.5 Counsel for the State
    objected to the admission of this evidence, arguing that
    _________________________________________________________________
    5. The three other trials were:
    a. Andre Deputy--state struck the lone prospective black juror, a
    second juror designated as "Indian," and six prospective white
    jurors;
    b. Judith McBride--state struck all three prospective black jurors,
    five whites, plus two other jurors whose race has not been
    identified; and
    c. Daniel Pregent--state struck the lone prospective black juror
    and four whites.
    Although the race of two of the jurors who were ultimately impaneled
    has not been identified, the State does not contest Riley's assertion that
    every impaneled juror was white.
    13
    evidence of general prosecutorial practices was relevant
    only to Riley's prima facie case. The hearing judge rejected
    this argument and admitted the evidence, explaining that it
    was being offered to show that "the exercise of the
    peremptory challenges in this particular case followed some
    kind of pattern that exists in the prosecutorial actions in
    first degree murder cases involving minority defendants and
    it is not segregable or severable from past history." App. at
    872.
    Counsel for the State then requested and received an
    additional four weeks in which to "attempt to prepare the
    same sort of information which . . . would be contrary to
    the representations made by [Riley's counsel's]
    information." App. at 874. He informed the court that he
    had not yet been able to obtain materials from other cases,
    but he assured the court that "they do exist." App. at 874.
    Yet approximately one month after the hearing, the State
    advised the hearing judge by a letter dated January 27,
    1989 from Jeffrey M. Taschner, Deputy Attorney General,
    that stated in full: "Please be advised that the State will not
    supplement the record of the post conviction relief hearing
    held in the above-captioned matter on December 30, 1988."
    Letter to this Court from Thomas J. Allingham II (Dec. 16,
    1999), Ex. B (on file in the Clerk's office).
    The hearing judge ultimately accepted the State's race-
    neutral explanations and rejected Riley's Batson claim,
    without mentioning any of the evidence introduced by Riley
    at the hearing. See Riley IV, App. at 887-891. The Delaware
    Supreme Court affirmed, likewise without discussion of
    Riley's evidence. See Riley 
    V, 585 A.2d at 725
    .
    4. Standard of Review
    A Batson claim presents mixed questions of law and fact.
    See Jones v. Ryan, 
    987 F.2d 960
    , 965 (3d Cir. 1993). We
    exercise plenary review over questions of law and we look to
    28 U.S.C. S 2254 for our standard of review of findings of
    fact. See 
    id. Riley's federal
    habeas petition was filed before
    the enactment of the Antiterrorism and Effective Death
    Penalty Act ("AEDPA") of 1996, 110 Stat. 1214, and
    therefore AEDPA does not govern our standard of review.
    See Lindh v. Murphy, 
    521 U.S. 320
    (1997). Instead, under
    14
    the federal habeas statute in effect at the time Riley filed
    his petition, we must presume correct the state court's
    findings of fact unless one of the statutory exceptions
    applies. See 28 U.S.C. S 2254(d) (1988).
    The District Court rejected Riley's Batson claim on the
    merits by relying on this presumption of correctness. See
    Riley VIII, 
    1998 WL 172856
    , at *17. Riley contends that the
    presumption of correctness is not warranted because the
    hearing judge's factual findings are "not fairly supported by
    the record," 28 U.S.C. S 2254(d)(8) (1988), and because he
    "did not receive a full, fair, and adequate hearing in the
    State court proceeding," 28 U.S.C. S 2254(d)(6) (1988).
    Because we resolve Riley's appeal pursuant to S 2254(d)(8),
    we need not consider Riley's latter argument.
    The limited nature of review underlying the requirement
    that a federal court must defer to the state court findings
    of fact if they are "fairly supported by the record" reflects
    important policy considerations. See, e.g., Miller v. Fenton,
    
    474 U.S. 104
    , 114 (1985) (presumption of correctness
    recognizes that "as a matter of the sound administration of
    justice, one judicial actor is better positioned than another
    to decide the issue"). In Rushen v. Spain, 
    464 U.S. 114
    , 122
    n.6 (1983), the Court stated that "28 U.S.C.S 2254(d)
    requires that a federal habeas court more than simply
    disagree with the state court before rejecting its factual
    determinations." The Court further noted that the statutory
    test set forth in S 2254(d)(8) "is satisfied by the existence of
    probative evidence underlying the [state court's]
    conclusion." 
    Id. In the
    instant case, it appears that the hearing judge's
    factual findings were based primarily on determinations
    regarding the credibility of Liguori at the post-conviction
    hearing. Such findings are generally owed "even greater
    deference" because "only the trial judge can be aware of the
    variations in demeanor and tone of voice that bear so
    heavily on the listener's understanding of and belief in what
    is said." Anderson v. City of Bessemer City , 
    470 U.S. 564
    ,
    575 (1985); see also 
    Batson, 476 U.S. at 98
    n.21 ("Since
    the trial judge's findings in [this] context .. . largely will
    turn on evaluation of credibility, a reviewing court
    ordinarily should give those findings great deference.").
    15
    Still, this does not signify that "federal review. . . is a
    nullity." Caldwell v. Maloney, 
    159 F.3d 639
    , 651 (1st Cir.
    1998) (hereafter "Maloney"). In Purkett, the Supreme Court
    stated that "implausible or fantastic justifications may (and
    probably will) be found to be pretexts for purposeful
    
    discrimination." 514 U.S. at 768
    . In addition, the Supreme
    Court has suggested, albeit in a non-habeas context, that
    reviewing courts need not accept a trial judge's findings
    based on credibility determinations if the witness has not
    told a "coherent and facially plausible story" or if his story
    is "contradicted by extrinsic evidence." 
    Anderson, 470 U.S. at 575
    . Thus, we must determine whether there is fair
    support to conclude that the State put forth "a coherent
    and facially plausible" explanation of its strikes of the
    prospective black jurors or whether the State's explanations
    are "implausible." Ultimately, when we review the record at
    step three of the Batson inquiry, we must decide whether
    the state courts' acceptance of the State's explanation has
    been made after consideration of all the evidence on the
    record.
    5. State's Race-Neutral Explanations
    At the post-conviction hearing, the State proceeded to
    step two of the Batson inquiry by offering race-neutral
    reasons for striking the black jurors. It did so primarily
    through Liguori's testimony. Riley does not argue that the
    State failed to meet its step two burden. His contention is
    that the state courts failed to engage in the step three
    inquiry, which requires evaluation of the proffered race-
    neutral reasons in light of all the other evidence in the
    record.
    Liguori contended he struck Nichols because he doubted
    whether Nichols would be willing to return a death
    sentence. He based this doubt on his clear recollection of "a
    significant pause" by Nichols when asked about the death
    penalty. App. at 798. Yet, as Liguori himself admitted in his
    testimony, the record reflects no such pause and no such
    uncertainty on Nichols' part.
    At voir dire, Nichols had answered the two questions
    posed by the court regarding the jurors' willingness to
    sentence a defendant to death in a manner seemingly
    favorable to the prosecution:
    16
    Q: Do you have any conscientious scruples against
    finding a verdict of guilty where the punishment might
    be death or against imposing the death penalty even if
    the evidence should so warrant?
    A: No.
    Q: Regardless of any personal beliefs or feelings that
    you may have, if the evidence justified it, would you be
    able to find a person guilty of murder in the first
    degree and would you be able to impose the death
    penalty.
    A: I think so.
    App. at 226-227. A prospective white juror, Angelo LePore,
    provided the exact same answers to the court's questions,
    yet he was not stricken and actually served on Riley's jury.
    App. at 231-232. The record provides no basis for
    distinguishing Nichols from LePore.
    Moreover, despite Nichols' alleged pause, the prosecutors
    did not ask the trial court to remove Nichols for cause or to
    inquire further into his willingness to award the death
    penalty, even though the trial judge excused six
    venirepersons for cause because they said they couldn't, or
    believed they couldn't, impose the death penalty, App. at
    234-237, 245-246, 265-271, and two more who responded
    equivocally, App. at 273-276, 282-286. This raises the
    question why, if Nichols actually did pause "a significant
    pause," the State did not seek to have him removed for
    cause like the others. The record does not show (and the
    State does not claim) that the prosecutors ever expressed to
    the trial court the concern that Nichols would be unwilling
    to impose the death penalty, that the court independently
    expressed concern, or that any of the contemporaneous
    notes kept by the prosecutors as to some of the jurors
    reflected either the existence of a pause or the concern
    about which Liguori testified six years later. Thus, Liguori's
    explanation is entirely unsupported by the record. See
    Johnson v. Vasquez, 
    3 F.3d 1327
    , 1331 (9th Cir. 1993)
    (stating that courts are not bound to accept race-neutral
    reasons that are either unsupported by the record or
    refuted by it).
    17
    Similarly, the record offers little basis for distinguishing
    McGuire, a prospective black juror who was struck, from
    Reed, a white juror who served without challenge by the
    State. Liguori testified that he struck McGuire because
    McGuire asked to be excused from jury service and he
    feared that McGuire would be an inattentive juror. 6 Liguori,
    who claimed to remember Nichols' pause six years later
    without benefit of any assistance, testified that he had no
    recollection at all regarding Reed. Liguori's notes from voir
    dire, however, state that Reed "works Lowe's, wants off,"
    App. at 823, which strongly suggests that Reed too was
    likely to be an inattentive juror. Yet at no point during voir
    dire did the prosecution ever express any concern over
    Reed's place on the jury. Based on this record evidence,
    there is no basis for distinguishing between McGuire's
    desire to be excused and Reed's desire to be excused.
    Although the State strains to distinguish the two jurors
    by arguing that McGuire's desire to be excused from jury
    service was stronger than Reed's desire because McGuire's
    employer had intervened to seek his release, its effort is not
    persuasive. First, Liguori did not testify before the hearing
    judge that this was the basis for the strike; in fact, Liguori
    testified to the opposite -- that McGuire himself had asked
    to be excused from jury service. Second, even if McGuire
    would have been inattentive for work-related reasons, the
    prosecution's notes from voir dire connecting Reed's
    employment to his "wants off " suggest that Reed's desire to
    be excused from jury service may have been work-related
    as well. Third, there is no evidence in the record to suggest
    that a juror will be more inattentive because s/he wants to
    be off the jury for work-related reasons rather than for
    other reasons, which is the basis for the State's position
    that McGuire's desire to be excused was stronger than
    Reed's desire to "want[ ] off," documented in Liguori's
    contemporaneous notes.
    With regard to both Nichols and McGuire, the state
    courts failed to mention in their opinions the weaknesses in
    the State's explanations, and therefore failed to complete
    the required step three Batson inquiry.
    _________________________________________________________________
    6. In fact, McGuire testified at the post-conviction hearing that he never
    asked to be excused from the jury.
    18
    6. Statistical Evidence
    In addition to Riley's challenge to the State's explanations
    at the post-conviction hearing for striking Nichols and
    McGuire by pointing to inconsistencies in the record, Riley
    introduced evidence that the prosecution used its
    peremptory challenges to strike every prospective black
    juror in the three other first degree murder trials occurring
    in Kent County within one year of Riley's trial. It did so
    both for the other black murder defendant and the two
    white murder defendants.7 In these four trials (including
    Riley's), the prosecution struck all 8 prospective black
    jurors who were called, i.e., 100%. By contrast, the
    prosecution used its peremptory challenges to strike only
    23 of the 71 prospective white jurors, or 32%. After the
    prosecution used its peremptory challenges to strike 23
    whites, 8 blacks, 1 Indian, and 2 jurors of unidentified
    race, the remaining racial makeup of the actual jurors in
    the four trials was 48 white jurors. See Letter to this Court
    from Thomas J. Allingham II (Dec. 16, 1999), Ex. A (on file
    in the Clerk's office).
    An amateur with a pocket calculator can calculate the
    number of blacks that would have served had the State
    used its strikes in a racially proportionate manner. In the
    four capital cases there was a total of 82 potential jurors on
    the venires who were not removed for cause, of whom eight,
    or 9.76%, were black. If the prosecution had used its
    peremptory challenges in a manner proportional to the
    percentage of blacks in the overall venire, then only 3 of the
    34 jurors peremptorily struck (8.82%) would have been
    black and 5 of the 48 actual jurors (10.42%) would have
    been black. Instead, none of the 48 jurors were black.
    Admittedly, there was no statistical analysis of these
    figures presented by either side in the post-conviction
    proceeding. But is it really necessary to have a
    sophisticated analysis by a statistician to conclude that
    _________________________________________________________________
    7. The exclusion by the Kent County prosecutor of all black jurors in the
    trials of the two white defendants is relevant to establishing a pattern
    of
    race-based use of peremptories. See Powers v. Ohio, 
    499 U.S. 400
    (1991)
    (excluding jurors on the basis of race is unconstitutional regardless of
    the race of the defendant).
    19
    there is little chance of randomly selecting four consecutive
    all white juries? The State never argued before the hearing
    judge and does not argue before this court that the
    selection of four consecutive all white juries could have
    been due to pure chance. Nor does it suggest that Riley's
    evidence does not accurately represent Kent County
    prosecutorial practices. Moreover, not once has the State
    offered an explanation for its use of peremptory challenges
    to strike all prospective black jurors in the four consecutive
    capital cases. The State has never sought to explain the
    data by variables other than race. Nor has it sought to
    rebut Riley's evidence.
    The failure of the State to produce evidence from other
    trials is significant because it was the State, not Riley, that
    would have had access to such evidence, it was the State
    that asserted that such evidence was available and
    forthcoming, and it was the State, not Riley, that failed to
    provide it. Yet again, neither the hearing judge in his
    opinion nor the Delaware Supreme Court discussed Riley's
    evidence that showed the systematic exclusion of blacks
    from the petit juries in Delaware. In fact, having stated that
    this evidence was introduced to demonstrate that"the
    exercise of the peremptory challenges in this particular case
    followed some kind of pattern that exists in the
    prosecutorial actions in first degree murder cases involving
    minority defendants," App. at 872, the hearing judge
    discussed neither the statistics nor the State's failure to
    explain them. Thus, once again by overlooking and ignoring
    a significant segment of Riley's evidence, the hearing
    judge's opinion does not satisfy the crucial third step of the
    Batson analysis.
    7. Analysis
    At the conclusion of the evidentiary post-conviction
    hearing, the hearing judge issued a written opinion in
    which he addressed the prosecutors' reasons for striking
    the three black jurors, as required by step three of the
    Batson inquiry. He stated:
    The State in this case provided race-neutral
    explanations for the peremptory challenges on all three
    black jurors. After examining the demeanor and
    20
    credibility of the witnesses and prosecutors at the
    evidentiary hearing, I believe the State exercised its
    peremptory challenges entirely within the strictures of
    the Fourteenth Amendment. No factual basis exists for
    a successful claim of an equal protection violation. The
    State successfully rebutted any prima facie showing of
    discrimination in jury selection based upon race.
    Riley IV, App. at 890-891. This determination that the
    prosecutors did not intend to discriminate on the basis of
    race in exercising their peremptory strikes against the three
    challenged jurors is a factual finding entitled to a
    presumption of correctness unless one of the exceptions in
    S 2254(d) (1988) applies. See Hernandez v. New York, 
    500 U.S. 352
    , 365-66 (1991).
    The inquiry required by Batson must be focused on the
    distinctions actually offered by the State in the state court,
    not on all possible distinctions we can hypothesize. See
    Mahaffey v. Page, 
    162 F.3d 481
    , 483 n.1 (7th Cir. 1998)
    (concerning itself with actual reasons, not apparent ones,
    for state's use of peremptory challenges); Turner v.
    Marshall, 
    121 F.3d 1248
    , 1253 (9th Cir. 1997) ("The
    arguments that the State has made since the evidentiary
    hearing do not form part of the prosecutor's explanation.").
    Apparent or potential reasons do not shed any light on the
    prosecutor's intent or state of mind when making the
    peremptory challenge. As to both Nichols and McGuire, the
    hearing judge merely repeated Liguori's articulated
    explanations without any reference to, or analysis of, Riley's
    evidence of pretext and seems to have accepted the State's
    justifications at face value.
    Liguori simply testified that he struck McGuire because
    he would be inattentive at trial, and for no other reason, a
    justification that would apply equally to Reed. The State
    gave no explanation as to Reed other than Liguori's plain
    lack of memory. Cf. Harrison v. Ryan, 
    909 F.2d 84
    , 87 (3d
    Cir. 1990) (concluding that prosecutor's failure to recall his
    reason for striking prospective juror did not constitute a
    race-neutral explanation). And the credibility of Liguori's
    lack of memory is somewhat in doubt considering that he
    claimed to remember Nichols' "significant pause." The only
    distinction between the two jurors that is apparent from the
    21
    record is that McGuire, who was struck, is black; Reed,
    who was retained, is white.
    A comparison between a stricken black juror and a
    sitting white juror is relevant to determining whether the
    prosecution's asserted justification for striking the black
    juror is pretextual. See McClain v. Prunty, 
    217 F.3d 1209
    ,
    1220 (9th Cir. 2000) ("A prosecutor's motives may be
    revealed as pretextual where a given explanation is equally
    applicable to a juror of a different race who was not
    stricken by the exercise of a peremptory challenge.");
    Jordan v. Lefevre, 
    206 F.3d 196
    , 201 (2d Cir. 2000)
    ("Support for the notion that there was purposeful
    discrimination in the peremptory challenge may lie in the
    similarity between the characteristics of jurors struck and
    jurors accepted. Where the principal difference between
    them is race, the credibility of the prosecutor's explanation
    is much weakened."); 
    Maloney, 159 F.3d at 653
    ("[A]s a
    general matter, comparisons between challenged jurors and
    similarly situated, unchallenged jurors of a different race or
    gender can be probative of whether a peremptory challenge
    is racially motivated."); Coulter v. Gilmore , 
    155 F.3d 912
    ,
    921 (7th Cir. 1998) ("A facially neutral reason for striking a
    juror may show discrimination if that reason is invoked
    only to eliminate African-American prospective jurors and
    not others who also have that characteristic."); 
    Turner, 121 F.3d at 1251-52
    ("A comparative analysis of jurors struck
    and those remaining is a well-established tool for exploring
    the possibility that facially race-neutral reasons are a
    pretext for discrimination.").
    The comparison between McGuire and Reed is strongly
    suggestive of the State's race-based use of its peremptory
    challenges. See, e.g., 
    McClain, 217 F.3d at 1224
    (concluding
    that Batson was violated where two of six proffered race-
    neutral explanations were "pretextual based upon
    comparisons of voir dire responses by non-black jurors who
    were seated without objection by the prosecutor," and other
    four were contrary to the facts); 
    Turner, 121 F.3d at 1253
    -
    54 (holding that the district court clearly erred in finding
    that prosecutor did not discriminate in jury selection where
    sole justification offered for striking a black juror applied
    equally to non-stricken white juror); Devose v. Norris, 53
    
    22 F.3d 201
    , 205 (8th Cir. 1995) (concluding that Batson was
    violated where the only justification prosecutor offered for
    striking three out of four prospective black jurors with prior
    jury experience was that they might be "burned out" by
    prior service and where at least five white jurors were not
    stricken although they had previously served on juries);
    Jones v. Ryan, 
    987 F.2d 960
    (3d Cir. 1993) (rejecting the
    prosecutor's proffered race-neutral explanation for striking
    black jurors where the prosecutor did not apply the same
    rationale to similarly-situated white jurors); Garrett v.
    Morris, 
    815 F.2d 509
    , 514 (8th Cir. 1987) ("The prosecutor's
    rationale [for striking three black jurors]-- the blacks'
    purported lack of education, background, and knowledge --
    seems clearly pretextual in light of his decision not to strike
    white jurors who differed in no significant way").
    Nichols' answers as to his willingness to return a death
    sentence were the same as LePore's, and were it not for
    Liguori's testimony as to the suspect "significant pause,"
    there would be no significant difference between them as
    well, except, of course, that Nichols, who was struck, is
    black and LePore, who was retained, is white.
    Furthermore, each piece of evidence should not be
    reviewed in isolation. It is clear that "[a]n explanation for a
    particular challenge need not necessarily be pigeon-holed
    as wholly acceptable or wholly unacceptable. The relative
    plausibility or implausibility of each explanation for a
    particular challenge . . . may strengthen or weaken the
    assessment of the prosecution's explanation as to other
    challenges." United States v. Alvarado, 
    923 F.2d 253
    , 256
    (2d Cir. 1991). In short, "[a] reviewing court's level of
    suspicion may . . . be raised by a series of very weak
    explanations for a prosecutor's peremptory challenges. The
    whole may be greater than the sum of its parts." 
    Maloney, 159 F.3d at 651
    .
    It is in this connection that we must turn to the
    statistical evidence presented by Riley of the pattern of the
    State's use of its peremptories. It may be that such
    evidence, standing alone, would not be sufficient to show
    intentional discrimination in selection of juries by the Kent
    County Prosecutor's office in the year in question. It is,
    however, particularly troublesome because the State failed
    23
    to provide the rebuttal data as to Riley's evidence when
    given the opportunity which it requested. In that
    circumstance, an inference adverse to the State may fairly
    be drawn. As has been recognized, "[w]here relevant
    information . . . is in the possession of one party and not
    provided, then an adverse inference may be drawn that
    such information would be harmful to the party who fails to
    provide it." McMahan & Co. v. Po Folks, Inc. , 
    206 F.3d 627
    ,
    632 (6th Cir. 2000) (quotation omitted). Indeed, the
    Supreme Court has stated, "The production of weak
    evidence when strong is available can lead only to the
    conclusion that the strong would have been adverse."
    Interstate Circuit, Inc. v. United States, 
    306 U.S. 208
    , 226
    (1939). Accordingly, the State must accept the negative
    inference that flows from its failure to provide the rebuttal
    data, and that inescapable inference is that the Kent
    County Prosecutor's office did not want blacks on its juries
    in first degree murder cases.
    The Supreme Court in Batson recognized the significance
    of evidence of systematic exclusion of blacks in jury
    selection. It stated, "Proof of systematic exclusion from the
    venire raises an inference of purposeful discrimination
    because the ``result bespeaks discrimination.' " 
    Batson, 476 U.S. at 94-95
    (quoting Hernandez v. Texas, 
    347 U.S. 475
    ,
    482 (1954)). It likewise recognized the relevance of
    systematic exclusion of blacks from the petit jury. See 
    id. at 96-97;
    see also 
    McClain, 217 F.3d at 1224
    (finding that "the
    fact that all blacks in the venire pool were struck raises an
    inference of discrimination" where 3 of 39 people in venire
    pool were black). On the record before us, it is difficult to
    avoid drawing the inference that the Kent County
    Prosecutor followed a pattern of using peremptory
    challenges in a racially discriminatory manner. 8
    _________________________________________________________________
    8. The pattern is relevant even if Riley has not undertaken to prove a
    Batson violation in the other three trials. Defendants Daniel Pregent and
    Judith McBride were both tried before Batson was decided, and thus
    were not likely to have raised a Batson objection, particularly since
    neither was black and the Supreme Court did not extend the Batson
    holding to apply regardless of whether the defendant and excluded juror
    were of the same race until its opinion in Powers v. Ohio, 
    499 U.S. 400
    (1991). The third capital defendant, Deputy, did not challenge the
    24
    Despite the State's efforts to explain away the various
    parts of the evidentiary picture Riley has presented, the
    record as a whole squarely contradicts its position. The
    questionable nature of Liguori's explanations for the strikes
    of McGuire and Nichols must be evaluated not only in light
    of the uncontested evidence of the use of peremptory
    strikes in Kent County but also in light of the nature of the
    State's pre-Batson defense on direct appeal.
    When Riley's direct appeal came before the Delaware
    Supreme Court in 1984, the State justified the use of race
    in selecting jurors in criminal trials. On that occasion,
    which was the State's first opportunity to defend the use of
    its peremptory challenges in Riley's trial, the State did not
    offer a single race-neutral explanation, not even as an
    alternate argument; instead, it claimed that it was
    permissible -- even socially desirable -- to exclude jurors
    based on what it called "group association," App. at 896,
    which a Justice of the Delaware Supreme Court was
    reported to have recognized as a "euphemism for race,"
    App. at 1321. In its brief to the Delaware Supreme Court,
    the State interpreted Swain v. Alabama, 
    380 U.S. 202
    (1965), as "recogniz[ing] how peremptory challenges, even
    those exercised on the basis of group association, foster the
    constitutional goal of an impartial jury." App. at 896. The
    State added in a footnote that it "emphatically denies that
    the prosecutor [in Riley's case] exercised any of his
    challenges solely on the assumption that the juror's race, in
    the context of the facts of this case, indicated a verdict
    position adverse to the prosecution. Rather, the State will
    argue that even if such was the case, no constitutional
    command would have been contravened." App. at 896
    (emphasis added).
    _________________________________________________________________
    composition of the jury in the state courts and thus the racial makeup
    of the venire was not available when this court decided the appeal. See
    
    Deputy, 19 F.3d at 1491-93
    . Moreover, the Supreme Court in Batson
    made clear that "a defendant may make a prima facie showing of
    purposeful racial discrimination in selection of the venire by relying
    solely on the facts concerning its selection in his case." 
    Batson, 486 U.S. at 95
    (emphasis in original).
    25
    Before this court, the State contends that Swain was
    "good law" at the time, so reliance on that case cannot be
    viewed as a concession that some of its peremptory
    challenges may not have been race-neutral. Tr. of Oral
    Argument at 31. Yet, significant for purposes here is that in
    response to Riley's challenge to its use of peremptories, the
    State never denied on direct appeal that race played a role
    in its use of peremptory challenges; it only claimed that it
    did not exercise them solely based on race. Its justification
    for that practice certainly suggests that race was at least a
    partial basis for its use of peremptory challenges. And that
    suggestion further supports the conclusion we are led to by
    our earlier analysis of the record that the State's proffered
    race-neutral explanations are pretextual.
    The requirement that we defer to the State's findings of
    fact does not apply when those findings are not supported
    by probative evidence. The State's position is that under
    S 2254(d) "all that is required" is that the state court make
    findings of fact, and flatly states that because the hearing
    judge did so, we must defer. Tr. of Oral Argument at 41.
    Although the State concedes that we must concern
    ourselves under 
    Rushen, 464 U.S. at 121
    n.6, with whether
    there is probative evidence in the record to support the
    state court's findings, it then seems to argue that since the
    findings are primarily based on credibility determinations,
    the mere fact that Liguori testified is sufficiently probative
    to support these determinations.
    Certainly it is not required that a federal court should
    defer to a state court's findings of fact on habeas review as
    long as the state court accepted the prosecutor's race-
    neutral explanation, no matter how incredible,
    contradicted, and implausible it may be. On the contrary,
    several courts of appeals have acknowledged that the
    traditional level of deference should not govern appellate
    review when a prosecutor's explanations are obviously not
    credible. See 
    McClain, 217 F.3d at 1221
    (" ``[I]mplausible or
    fantastic justifications may (and probably will) be found to
    be pretexts for purposeful discrimination.' ") (quoting
    
    Purkett, 514 U.S. at 768
    ); United States v. Griffin, 
    194 F.3d 808
    , 826 (7th Cir. 1999) (noting that a basis for reversal of
    state court exists where "the reason given [by the
    26
    prosecutor] is completely outlandish or there is other
    evidence which demonstrated its falsity"); 
    Maloney, 159 F.3d at 651
    (stating that serious questions of pretext arise
    when the facts in the record are "objectively contrary to" the
    prosecutor's explanations).
    In light of the lack of probative evidence in the record to
    support the findings that the State exercised its peremptory
    challenges at Riley's trial in a race-neutral manner, we
    decline to give these findings deference. Such deference is
    ordinarily based, at least in part, on the original trial
    court's ability to make contemporaneous assessments. See
    Hernandez v. New 
    York, 500 U.S. at 365
    . Recently, the
    Court of Appeals for the Fourth Circuit deferred to the state
    court's findings on a Batson claim precisely because the
    court had that opportunity. It explained,
    Indeed, it would be an impermissible exercise in
    hindsight for us now to upset the trial court's
    credibility determination in evaluating the prosecutor's
    explanation. And as the district court correctly
    observed, the ``retrospective parsing of the ``curricula
    vitae' of the jurors' is no substitute for the observations
    of the trial judge, who witnessed first-hand the
    process. We simply cannot overlook the fact that the
    trial court had conducted an extensive voir dire of the
    jury pool, which was documented in several hundred
    pages of trial transcripts, and was able to observe the
    demeanor and hear the responses of the prospective
    jurors in court. This insight enabled the trial court to
    compare the prosecutor's explanation with what
    occurred at the bench and in open court. Most
    significantly, the trial court was able to observe the
    prosecutor's demeanor and conduct and evaluate the
    credibility of his explanation.
    Evans v. Smith, 
    220 F.3d 306
    , 316 (4th Cir. 2000)
    (emphases added).
    It may be that because the findings at issue here were
    made by the hearing judge six years after the State had
    exercised its peremptory challenges before the trial judge
    and the hearing judge neither witnessed the challenges
    first-hand nor examined the witnesses at the time the
    27
    challenges were exercised, he did not note or comment on
    some of the troublesome inconsistencies in the State's race-
    neutral explanations.
    Deference in a Batson case must be viewed in the context
    of the requirement that the state courts engage in the
    three-step Batson inquiry. As the Court of Appeals for the
    Fourth Circuit described step three: "If [the State's] burden
    [under step two] is met, the court then addresses and
    evaluates all evidence introduced by each side (including all
    evidence introduced in the first and second steps) that
    tends to show that race was or was not the real reason and
    determines whether the defendant has met his burden of
    persuasion." McMillon, 
    14 F.3d 948
    , 953 n.4 (4th Cir.
    1994); see also 
    Jordan, 206 F.3d at 200
    (stating that step
    three of Batson inquiry requires examination of "all the
    facts and circumstances") (quotation omitted).
    Here, the state courts failed to examine all of the
    evidence to determine whether the State's proffered race-
    neutral explanations were pretextual. Not only is there no
    indication on the record that the hearing judge engaged in
    the required analysis, but there is no indication that the
    Delaware Supreme Court did so, by making findings which
    also would have been entitled to deference. See Sumner v.
    Mata, 
    449 U.S. 539
    , 547 (1981). The omission of the crucial
    step of evaluating the State's proffered explanations in light
    of all the evidence can be gleaned by the absence of the
    word "pretext" in both the opinion of the hearing judge and
    in the opinion of the Delaware Supreme Court. Nor is there
    any language in either opinion that suggests, whatever the
    words used, that either court recognized the nature of the
    analysis it was required to undertake. In Jones v. Ryan, we
    noted that the state court decision rejecting a Batson claim
    contained no factual findings relating to the different
    prongs of the Batson analysis, to which we could accord a
    presumption of correctness. 
    See 987 F.2d at 965-66
    . The
    situation before us is similar.
    The State argues that our concern with the hearing
    judge's failure to discuss critical evidence in his decision is
    merely a complaint about the manner in which he wrote his
    opinion. It states in its supplemental brief that"[i]t may
    well have been better for the state judge to have further
    28
    explained his decision . . . [b]ut the federal habeas statutes
    do not set standards for the writing of opinions by state
    judges." Supp. Memo. of Appellees at 7.
    But the concern is not how the decision was written, a
    trifling matter. It is the failure of the state courts to
    complete the required Batson analysis by comparing the
    stricken black jurors with the sitting white jurors,
    acknowledging the statistical evidence of striking all black
    jurors in capital murder cases in Kent County within a year
    of Riley's trial, and recognizing the State's position in this
    very case that use of peremptories for racial reasons was
    both constitutional and socially beneficial.
    Comparable to the case before us is the decision in
    Coulter v. Gilmore, 
    155 F.3d 912
    (7th Cir. 1998). There the
    court acknowledged that deference is owed to the state
    court findings under S 2254(d), but rejected those findings
    and refused to apply the presumption of correctness
    because "the state judge made those findings without ever
    taking into account the totality of the circumstances on the
    record." 
    Id. at 920.
    It noted that Batson requires "that, one
    way or another, a trial court . . . consider all relevant
    circumstances before it issues a final ruling on a
    defendant's motion." 
    Id. at 921.
    In a compelling statement
    of the court's role under step three of the Batson inquiry,
    the court wrote:
    In light of the deferential standard of the post-AEDPA
    S 2254 and the perfunctory quality of the second step
    of a Batson inquiry after Purkett v. Elem, it is more
    important today than ever that the Batson inquiry not
    omit consideration of the totality of the circumstances,
    both for itself and as it relates to the evaluation of
    similarly situated potential jurors. . . . Under the pre-
    AEDPA standards that apply here, we agree with the
    district court that [defendant's] rights under Batson
    were denied.
    
    Id. at 921-22.
    The state courts in this case rejected Riley's Batson claim
    without discussing any of the ample evidence that throws
    into question the explanations offered by the prosecutor for
    striking two of the black jurors and there is nothing
    29
    relevant in the record that might otherwise support the
    state courts' decisions. Thus, we do not know why the state
    courts found the State's explanation was plausible and
    credible in light of the other evidence. It is because of the
    state courts' omission of a requirement under the third step
    of the Batson inquiry -- of an ultimate determination on the
    issue of discriminatory intent based on all the facts and
    circumstances -- that the State's argument founders.
    We cannot avoid noting that Batson was not a death
    penalty case. This is. If the State failed to accord Riley his
    constitutional right to a jury selected on a race-neutral
    basis, we must not shirk to so hold. As Riley's lawyer asked
    at oral argument, "If not this case, what case? If the
    evidence in this case is insufficient to show that the
    prosecutors' race-neutral rationales were pretextual, what
    case, short of a prosecutorial mea culpa would do the job?"
    Tr. of Oral Argument at 3.
    After consideration of all the arguments and the record,
    we are compelled to conclude that the prosecution violated
    Riley's constitutional rights under Batson, and that Riley is
    entitled to relief.
    8. The Dissenting Opinion -- The Batson Issue
    It is fitting to discuss the Dissenting Opinion at this point
    because our difference with the Dissent is most acute in
    our respective views of the requirements of step three of the
    Batson inquiry. Although the Dissent takes issue with
    much of the majority opinion, its principal argument is that
    in a habeas case the federal court must defer to the state
    courts' findings, in this case the finding that the prosecutor
    did not use the State's peremptory challenges striking black
    jurors in a manner that violated the principles of Batson.
    We have already discussed in detail when a state court's
    findings are entitled to deference and when they are not,
    focusing on the exception in S 2254(d)(8) for the situation
    where the state court's findings are "not fairly supported by
    the record." 
    See supra
    Part II.A.4 (Standard of Review). It is
    manifest that a finding that Batson has been satisfied must
    be made in accordance with the process enunciated in that
    case.
    30
    The Dissent agrees that under step three of the Batson
    inquiry a judge or court must consider "all of the relevant
    evidence that has been adduced." See Dis. Op. at 88. As we
    previously discussed, the courts after Batson have
    described step three as requiring the judge or court to
    examine the prosecutor's proffered reasons for striking the
    minority jurors against the evidence presented by the
    defendant and/or the weaknesses in the prosecutor's
    reasons. See, e.g., 
    McMillon, 14 F.3d at 953
    n.4; 
    Jordan, 206 F.3d at 200
    . The Dissent sees no reason to believe that
    the Delaware courts did not do so in Riley's case, even
    though the opinions of the Delaware courts rejecting Riley's
    Batson challenges never commented on the weaknesses in
    the State's case or, even more important, never
    acknowledged that there was a step three to the Batson
    inquiry. We, therefore, proceed to try to ascertain whether
    the hearing judge and the Delaware Supreme Court made
    their findings that there was no purposeful discrimination
    in accordance with the process required by Batson. If not,
    then deference to those findings is not appropriate.
    The extent of the Delaware courts' recognition of the need
    to engage in the step three inquiry is open to question on
    this record. Nothing in the discussion of the hearing judge
    suggests that the court performed the necessary evaluation.
    See Riley IV, App. at 887-91. The hearing judge, using
    language taken from Riley I rather than Batson, understood
    that his obligation was to consider the prosecutor's
    proffered explanation for striking the jurors and"then . . .
    be satisfied by that neutral explanation and make a ruling
    to that effect." App. at 888. Accordingly, following what he
    understood to be the applicable law, the hearing judge
    discussed the prosecutor's proffered reasons for the two
    strikes at issue here, and found that the prosecutor was
    credible. See App. at 889 ("the State provided a credible,
    race-neutral reason for exercising its peremptory
    challenge") (emphasis added); 
    id. ("The State
    articulated a
    specific race-neutral ground for challenging juror McGuire.
    . . .") (emphasis added). Throughout, the hearing judge
    made clear that he understood that "[t]he test applied is the
    credibility of the explanation given . . . ." App. at 890.
    Nothing in the hearing judge's discussion suggests that he
    undertook an evaluation of the proffered reasons in light of
    31
    the evidence submitted by Riley, which is the essence of
    step three.
    It is even more questionable whether on appeal from that
    decision the Delaware Supreme Court fully appreciated the
    requirement. Its entire discussion of this issue is fully set
    forth in the margin.9 In this one paragraph, the Court relied
    on its 1985 decision on Riley's direct appeal where it
    rejected Riley's challenge to the State's peremptory
    challenges. Riley I, 
    496 A.2d 997
    (Del. 1985). The 1985
    decision is noteworthy because on that occasion (a year
    before Batson), the Delaware Supreme Court concluded, for
    the first time, that "use of peremptory challenges to exclude
    prospective jurors solely upon the basis of race violates a
    criminal defendant's right under Del. Const., Art. I, S 7 to a
    trial by an impartial jury." Riley 
    I, 496 A.2d at 1012
    .
    In Riley I, the Court also set out the procedure to be
    followed10 but nothing in the Delaware Court's laudable
    _________________________________________________________________
    9. The Court stated:
    Riley's next contention, that the State exercised its peremptory
    challenges for racial reasons, we find to be simply a renewed
    attempt to reopen previously settled issues. In Riley I, [
    496 A.2d 997
             (Del. 1985)], we set forth a legal analysis functionally identical
    to the
    Supreme Court's analysis later articulated in 
    Batson, 476 U.S. at 79
    . In Riley I, we found that Riley's constitutional right to an
    impartial jury had not been 
    violated. 496 A.2d at 1009
    . The
    Superior Court, after an evidentiary hearing on Riley's motion for
    postconviction relief, held that Riley had not been denied equal
    protection as a result of the State's use of peremptory challenges.
    The court found that the State had provided race-neutral
    explanations for its peremptory challenges. We find no error in
    Superior Court's rejection of Riley's Batson claim. See Holland v.
    Illinois, 
    493 U.S. 474
    (1990) (the Sixth Amendment fair cross-
    section
    requirement of an impartial jury does not deprive a party of the
    right
    to exercise peremptory challenges on racial or any other grounds
    from a venire that otherwise meets Sixth Amendment cross-sectional
    standards of representativeness). Moreover, we reaffirm our earlier
    decision sustaining the State's peremptory challenges on state
    constitutional grounds. Riley 
    I, 496 A.2d at 1010
    -1013.
    Riley V, 
    585 A.2d 719
    , 725 (Del. 1990).
    10. That procedure required that the defendant make a prima facie
    showing after which the trial judge
    32
    decision requires an inquiry comparable to the Batson step
    three. The Delaware cases at that time appear to have
    required that the prosecutor provide, or articulate, a race-
    neutral reason for the peremptory challenges, and that the
    court find the prosecutor to be credible. They do not require
    an evaluation comparable to step three. Therefore, if, as it
    appears, the Delaware Supreme Court in Riley IV rejected
    Riley's Batson claim by relying on its earlier opinion in Riley
    I, and the Riley I opinion did not require a step three
    inquiry, any assumption that the Court engaged in such an
    inquiry would be unwarranted. Or, to phrase it somewhat
    differently, if the state courts' findings to which the Dissent
    would defer were not made in accordance with the process
    required by the United States Supreme Court, deference is
    not required.
    This digression into Delaware law was undertaken to
    provide the context in which to view the Dissent's
    subsidiary argument, which is that we should assume that
    the Delaware courts performed the step three analysis and
    that it was not necessary for the Delaware courts to
    comment on that analysis. We do not suggest that every
    state court decision that is the subject of a habeas review
    be as explicit as a Social Security Administrative Law
    Judge's decision. See Dis. Op. at 89. But Batson is not a
    disability case. Although a judge considering a Batson
    challenge is not required to comment explicitly on every
    piece of evidence in the record, some engagement with the
    evidence considered is necessary as part of step three of the
    Batson inquiry.
    _________________________________________________________________
    determine[s] whether there is a substantial likelihood that the
    prosecutor is exercising the State's peremptory challenges on the
    basis of race. A ruling in favor of the State will end any further
    inquiry. A ruling in favor of the defendant, however, will shift
    the
    burden to the State to prove that the exercised challenges were not
    racially motivated. To sustain this burden, the State . . . must
    satisfy the court that its peremptory challenges were made on
    grounds of specific, individual juror bias, or on grounds
    reasonably
    related to the particular case or trial . . . and not solely on the
    ground of the juror's race.
    Riley 
    I, 496 A.2d at 1013
    (quotation and citation omitted).
    33
    In United States v. Harris, 
    192 F.3d 580
    , 588 (6th Cir.
    1999), the Sixth Circuit reviewed the district court's
    rejection of a Batson challenge in a case where one African-
    American juror was seated but two were struck by the
    government's peremptory challenges. The Court of Appeals
    remanded because it found that the district court's"terse
    analysis" of step three of the Batson inquiry was
    insufficient as it appeared that the district court"made no
    effort to weigh the credibility of the prosecutor's asserted
    reasons for striking the panelists." 
    Id. at 588.
    A year earlier,
    in United States v. Hill, 
    146 F.3d 337
    (6th Cir. 1998), the
    same court remanded another case to the district court
    because its analysis of step three of the Batson inquiry was
    insufficient. The court stated, in language that could be
    equally applicable here, that "[t]he record before us
    indicates nothing about the district court's thought
    processes in its step three analysis apart from its abrupt
    conclusion indicating the apparent view that the
    prosecutor's asserted justification outweighed [the
    defendant's] showing under the totality of circumstances."
    
    Id. at 342.
    And in Hill, unlike here, the trial court ruling on
    the Batson claim at least stated that it performed some sort
    of weighing analysis.
    Although both of these cases came to the Court of
    Appeals on direct appeal of a district court decision rather
    than on habeas review of a state decision, that does not
    detract from the force of the court's understanding of what
    is required in a Batson inquiry. The process required by
    Batson, including step three, does not differ if the
    prosecutor used the peremptories to strike jurors in a state
    trial or in a federal trial. After all, the same Constitution
    applies to both fora.
    The Dissent relies almost exclusively on the statutory
    presumption of correctness owed to a state court's factual
    determination made after a hearing on the merits. This
    deference is indeed the fulcrum on which our federalism
    turns. Yet in case after case -- and most particularly in
    capital cases -- we have found that even applying the more
    stringent post-AEDPA standard of review (not applicable
    here), there are reasons not to accord the usual deference
    to the state courts' findings. See, e.g., Jermyn v. Horn, 266
    
    34 F.3d 257
    , 305 (3d Cir. 2001) (post-AEDPA denial of
    deference to state court because it unreasonably applied
    the principles of Strickland v. Washington, 
    466 U.S. 668
    (1984)); Moore v. Morton, 
    255 F.3d 95
    , 120 (3d Cir. 2001)
    (post-AEDPA denial of deference to state court because "[a]
    reasonable application of Supreme Court precedent . . .
    requires finding [defendant's] trial was so infected with
    unfairness that he was denied due process"); Appel v. Horn,
    
    250 F.3d 203
    , 211 (3d Cir. 2001) (post-AEDPA denial of
    deference to state court because, among other things, the
    state court failed to apply the relevant Supreme Court
    precedent of United States v. Cronic, 
    466 U.S. 648
    (1984)).
    As we discuss in detail in the immediately preceding
    section of this opinion, 
    see supra
    Part II.A.7 (Analysis), the
    requirement that the state courts faced with a Batson
    challenge engage in the critical step three analysis is not a
    product of our own creativity but an accepted element of a
    habeas court's obligation to examine whether a defendant's
    constitutional right to a race-neutral jury has been
    infringed. See, e.g., 
    Jordan, 206 F.3d at 200
    ; 
    Coulter, 155 F.3d at 921
    ; 
    McMillon, 14 F.3d at 953
    n.4; 
    Jones, 987 F.2d at 967
    .
    The Dissent accords little weight to these authorities. But
    our disinclination to include long string cites does not
    mean that there are not numerous cases in which the
    courts, both state11 and federal, have made clear that the
    Batson step three inquiry is not merely a formalistic one,
    but an integral element of the required analysis. In addition
    to Harris and Hill, the Sixth Circuit cases cited above, the
    Second Circuit has also made this point. In Barnes v.
    Anderson, 
    202 F.3d 150
    (2d Cir. 1999), the court ordered a
    _________________________________________________________________
    11. See, e.g., MacKintrush v. State , 978 S.W.2.d 293, 297 (Ark. 1998)
    (describing step three of Batson as requiring "that the trial court weigh
    and assess what has been presented to it to decide whether in light of
    all the circumstances, the proponent's explanation is or is not
    pretextual"); State v. Collier, 
    553 So. 2d 815
    , 821 (La. 1989) (holding
    that
    the trial judge cannot simply "[r]ubber stamp. . . [a prosecutor's] non-
    racial explanation, no matter how whimsical or fanciful, . . . [but] in
    order to permit a questioned [peremptory] challenge, . . . must conclude
    that the proffered reasons are, first, neutral and reasonable, and,
    second, not a pretext") (quotation omitted).
    35
    new trial because the trial court had denied a Batson
    motion "without explicit adjudication of the credibility of the
    non-movant's race-neutral explanations for the challenged
    strikes." 
    Id. at 156
    (emphasis added).
    The Dissent suggests that we exceed our authority as a
    habeas court when we comment on the failure of the state
    courts reviewing Riley's Batson challenge to provide a
    reasoned statement for their rejection of Riley's challenge.
    Although the state court is not required to "comment on all
    of the evidence" before it, Dis. Op. at 89 (emphasis added),
    an adequate step three Batson analysis requires something
    more than a "terse," 
    Harris, 192 F.3d at 588
    , "abrupt," 
    Hill, 146 F.3d at 342
    , comment that the prosecutor has satisfied
    Batson.
    Similarly, we do not think that a habeas court may reject
    a state court's ruling on a Batson claim simply because "it
    was not persuaded by a particular piece of proof," as the
    Dissent states. Dis. Op. at 87. However, as we have
    explained, without any such statement there is no basis on
    this record to determine if the state courts undertook, or
    even were aware of, the required Batson step three inquiry.
    The Fourth Circuit expressed the same thought in United
    States v. Joe, 
    928 F.2d 99
    , 103 (4th Cir. 1991), where it
    stated: "[T]he failure of the district court to rule at each
    step of the Batson analysis deprives . . .[a reviewing] court
    of the benefit of its factual determination and the reasons
    supporting its ultimate holding." And its cases make clear
    that such review requires that the trial court's rulings must
    be clearly articulated. See, e.g., Jones v. Plaster, 
    57 F.3d 417
    , 421 (4th Cir. 1995) ("The ruling of the district court is
    so unclear that we cannot determine on the present record
    whether the ultimate conclusion of the district court to
    overrule [the Batson] objection may be sustained."); United
    States v. Blotcher, No. 95-5590, 1996 U.S. App. Lexis
    19835, *11-*12 (4th Cir. August 7, 1996) (unpublished)
    ("We find the record so unclear that we cannot determine
    whether the district court applied the proper legal analysis
    in sustaining the prosecution's Batson objection to
    [defendent's] peremptory strike against [a] juror.").
    Most of the Dissent's other comments on the Batson
    issue in this case have been previously anticipated and
    36
    discussed. We take this opportunity, however, to remark
    upon the manner in which the Dissent comments upon the
    reference to the pattern of the State's use of its
    peremptories to exclude black jurors in all four first degree
    murder cases, including Riley's, tried in the county the
    same year. Because of the lack of information about some
    of those cases, we refrained from suggesting that such
    evidence, standing alone, would show intentional
    discrimination but pointed out that it was the State that
    sought an opportunity to produce supplementary evidence.
    The following correspondence, which was preceded by the
    oral dialogue quoted previously in its 
    opinion, supra
    at
    typescript page 18, clarifies the situation.
    On January 9, 1989, the hearing judge wrote to counsel:
    This will confirm the conclusion of the postconviction
    relief hearing in the above-captioned matter. It is the
    Court's understanding that the defendant's
    presentation and all rebuttal by the State available on
    the date of the hearing has been completed. However,
    at the State's request, the Court did hold the record
    open on the hearing to be supplemented by a rebuttal
    summary of jury composition in State peremptory
    challenges in first degree murder trials in Kent County
    over a determined period of time if the State wished to
    supplement the record.
    Further, the hearing record will close on January 30,
    1989; the Court expects proposed findings of fact and
    conclusions of law from both parties no later than
    February 6, 1989.
    See Letter to this Court from Thomas J. Allingham II (Dec.
    16, 1999), Ex. B (on file in the Clerk's office) (emphasis
    added).
    Some three weeks later, on January 27, 1989, and just
    before the hearing record was to close, the State advised
    the court as follows:
    Please be advised that the State will not supplement
    the record of the post conviction relief hearing held in
    the above-captioned matter on December 30, 1988.
    
    Id. 37 Thus
    the State, which had assured the court that
    materials from other cases "do exist" that would be contrary
    to Riley's representation, App. at 874, and having been
    given the opportunity that it requested to supplement the
    record with evidence as to jury composition, surprisingly
    and without explanation, declined to produce evidence that
    blacks served on juries in first degree murder cases in the
    county in the same period that Riley was tried before an all-
    white jury. The presumption that could be drawn from
    these facts is one of the circumstances that should have
    been evaluated by the Delaware courts in the required step
    three inquiry.
    The Dissent comments that Riley offered no expert
    analysis of the statistics. The procedural posture of the
    case at that time provided no such opportunity. Riley
    produced evidence of the statistics of the racial composition
    of the jurors in the four cases, the State requested the
    additional time to provide counter-evidence, and the
    hearing judge left the record open for that purpose. There
    would have been no basis for expert analysis until all the
    evidence as to jury composition was produced. The State's
    letter that it would produce no evidence was dated three
    days before the record closed.
    Further, the Dissent's attempt to analogize the statistical
    evidence of the use of peremptory challenges to strike black
    jurors to the percent of left-handed presidents requires
    some comment. The dissent has overlooked the obvious fact
    that there is no provision in the Constitution that protects
    persons from discrimination based on whether they are
    right-handed or left handed. To suggest any comparability
    to the striking of jurors based on their race is to minimize
    the history of discrimination against prospective black
    jurors and black defendants, which was the raison d'etre of
    the Batson decision.
    To reiterate, the factual findings of a state court are
    entitled to deference only when there is "probative evidence
    underlying [its] conclusion." See 
    Rushen, 464 U.S. at 122
    n.6. The Dissent points to no such probative evidence. It
    relies merely on the credibility finding of the hearing judge,
    a finding that we cannot be sure was made following
    consideration of all the evidence presented by Riley and the
    38
    weaknesses he pointed to in the prosecutor's proffered
    reasons.
    9. Appropriate Remedy
    When counsel for the State was asked at the en banc
    argument whether, if this court were to find a Batson
    violation, the State would rather the relief be the grant of a
    new trial or the remand for a federal evidentiary hearing,
    counsel candidly responded:
    MR. MEYERS: If we -- the answer is yes. If, and if we
    -- I mean, if the court imagines, has all these problems
    with the hearing that was done six years after the trial,
    those problems are simply going to be magnified,
    amplified by exponential order of magnitude 20 years
    after the trial. I mean if you think that people have
    memory problems six years, how much worse are you
    going to be 20 years later?
    Tr. of Oral Argument at 46. Riley's counsel concurred,
    stating that a federal habeas judge would be no better off
    than the hearing judge was in 1988.
    We agree. Much of the Dissent's opposition is directed to
    the majority's failure to remand to the District Court for a
    hearing but the Dissent may have overlooked that both
    parties preferred a new trial to a remand should this court
    find that the state proceedings were not shown to be
    consistent with the requirement of Batson. It is highly
    unlikely that the witnesses can provide more illuminating
    testimony thirteen years later. Moreover, there are no
    factual issues that can be solved by a federal evidentiary
    hearing.12 Although the Dissent chooses to characterize the
    result in this case as a federal court's substitution of its
    own findings for those of the state court, in fact we are
    merely fulfilling the traditional role of a federal habeas
    court, which is, in part, to determine whether the state
    court's decision is "fairly supported by the record." The one
    _________________________________________________________________
    12. This is unlike the situation in Hakeem v. Beyer, 
    990 F.2d 750
    (3d
    Cir. 1993), where we held that the state court's finding regarding the
    delay in the proceedings was not entitled to the presumption of
    correctness but directed the district court to determine in a federal
    habeas evidentiary hearing the reason for the delay.
    39
    possible factual issue cannot be resolved by a hearing,13
    and the statistical evidence, which might be the subject of
    some analysis at such a hearing, is relevant but not
    dispositive to our decision.
    The question of the remedy a habeas court should order
    following a finding that the state process did not comply
    with constitutional requirements is not a new one. In
    Brown v. Kelly, 
    973 F.2d 116
    (2d Cir. 1992), the federal
    court of appeals was faced with a comparable situation as
    that before us. Defendant was convicted in state court of
    murder and first degree robbery. He eventually came to the
    federal court with a petition for a writ of habeas corpus,
    claiming, inter alia, a violation of Batson. The federal courts
    did not find that Batson had been violated but the Second
    Circuit took the opportunity to consider the appropriate
    remedy when a constitutional violation is found by the
    federal courts sitting in habeas. The court stated,"[T]here
    are cases where the passage of time may impair a trial
    court's ability to make a reasoned determination of the
    prosecutor's state of mind when the jury was selected.
    Where such demonstrably exists, there must be a new
    trial." 
    Id. at 121.
    The Brown court cited United States v. Alcantar, 
    897 F.2d 436
    , 438-39 (9th Cir. 1990) (ordering a new trial because
    there was inadequate evidence to determine, as part of
    Batson analysis, why the jurors were struck). And in
    
    Barnes, 202 F.3d at 157
    , the Court of Appeals ordered a
    new trial rather than a remand for a hearing on the Batson
    issues because the trial judge had died and the court was
    "not confident . . . that further proceedings would . . . shed
    reliable light upon the voir dire.") (quotation omitted).
    The circumstances of this case are closely analogous to
    those in Hardcastle v. Horn, ___ F. Supp. 2d ___, 2001 WL
    _________________________________________________________________
    13. Although neither party has focused on it, there is an apparent
    factual discrepancy between McGuire's testimony that he did not request
    to be excused, App. at 850, and the trial judge's statement that McGuire
    came to see him and requested to be excused, App. at 250. It is agreed
    that McGuire saw the trial judge, but McGuire testified it was at the
    judge's direction. As the trial judge is deceased, a federal evidentiary
    hearing would not resolve this issue, even if it were important to do so.
    40
    722781 (E.D. Pa., June 27, 2001), where the district court
    found a Batson violation but dismissed the notion of
    ordering a federal evidentiary hearing instead of a new trial
    in state court, commenting that "[n]early twenty years have
    passed since Petitioner's trial, such a length of time that
    even Respondents admit that an evidentiary hearing on
    Petitioner's Batson claim is unlikely to be helpful." 
    Id. at *19.
    The Hardcastle court stated that "[a] new trial is
    especially appropriate where as here, the passage of time
    makes a new evidentiary hearing on the petition
    impossible." Id.14 Likewise, we see no reason to order the
    District Court to provide Riley with an evidentiary hearing
    that it declined to provide on two prior occasions. Instead,
    we will reverse the District Court's order denying Riley's
    petition for a writ of habeas corpus, and remand for the
    District Court to grant the writ without prejudice to the
    State retrying the case pursuant to the guidelines to be set
    by the District Court.
    B.
    THE CALDWELL CLAIM
    In addition to Riley's Batson claim presented to the en
    banc court, Riley argues that the prosecutor and the trial
    judge made remarks to the jury during the penalty hearing
    that misled the jury as to its sense of responsibility in the
    sentencing process, in violation of the principles set forth in
    Caldwell v. Mississippi, 
    472 U.S. 320
    (1985). In Caldwell,
    the Supreme Court held that prosecutorial comments at
    sentencing violated the Eighth Amendment by leading the
    jury to believe that ultimate responsibility for determining
    the appropriateness of the death sentence rested with the
    state supreme court. 
    See 472 U.S. at 333
    .
    The Delaware Supreme Court, on direct appeal, rejected
    Riley's Caldwell claim, commenting that"[i]n no sense may
    _________________________________________________________________
    14. The Hardcastle case is on appeal to this court, and our reference to
    this limited aspect of the decision, which is applicable here, is not
    intended to reflect an opinion as to the merits of the District Court's
    decision on the Batson issue.
    41
    it reasonably be said that the prosecutor was either
    misstating the law, misleading the jury as to its role, or
    minimizing its sentencing responsibility." Riley 
    I, 496 A.2d at 1025
    . The District Court agreed, thus denying Riley
    habeas relief. See Riley VIII, 
    1998 WL 172856
    , at *31. A
    Caldwell claim presents mixed questions of law and fact
    subject to plenary review in the habeas context. See Miller
    v. Fenton, 
    474 U.S. 104
    , 112-14 (1985); see also Moore v.
    Gibson, 
    195 F.3d 1152
    , 1171 (10th Cir. 1999).
    In Caldwell, the defense attorney in a capital murder
    case pleaded with the jury in closing arguments at the
    sentencing phase to spare the defendant's life. In reply, the
    prosecutor stated:
    Ladies and gentlemen, I intend to be brief. I'm in
    complete disagreement with the approach the defense
    has taken. I don't think it's fair. I think it's unfair. I
    think the lawyers know better. Now, they would have
    you believe that you're going to kill this man and they
    know--they know that your decision is not the final
    decision. My God, how unfair can you be? Your job is
    reviewable. They know 
    it. 472 U.S. at 325
    (emphases added).
    Caldwell's defense counsel objected to this statement but
    the trial court overruled the objection, stating that it was
    "proper that the jury realizes it is reviewable automatically
    as the death penalty commands." 
    Id. The prosecutor
    continued:
    Throughout their remarks, they attempted to give you
    the opposite, sparing the truth. They said ``Thou shall
    not kill.' If that applies to him, it applies to you,
    insinuating that your decision is the final decision and
    that they're gonna take Bobby Caldwell out in the front
    of this Courthouse in moments and string him up and
    that is terribly, terribly unfair. For they know, as I
    know, and as Judge Baker has told you, that the
    decision you render is automatically reviewable by the
    Supreme Court. Automatically, and I think it's unfair
    and I don't mind telling them so.
    
    Id. at 325-26
    (emphasis added).
    42
    Although the jury's sentence in Caldwell was indeed
    subject to automatic review by the state supreme court, the
    United States Supreme Court's plurality opinion stated that
    the prosecutor's statement was "inaccurate, both because it
    was misleading as to the nature of the appellate court's
    review and because it depicted the jury's role in a way
    fundamentally at odds with the role that a capital sentencer
    must perform." 
    Id. at 336.
    Justice O'Connor, who cast the
    fifth and deciding vote, emphasized that "[j]urors may
    harbor misconceptions about the power of state appellate
    courts or, for that matter, [the United States Supreme
    Court] to override a jury's sentence of death." 
    Id. at 342
    (O'Connor, J., concurring). According to Justice O'Connor,
    the prosecutor's statements were impermissible because
    they "creat[ed] the mistaken impression that automatic
    appellate review of the jury's sentence would provide the
    authoritative determination of whether death was
    appropriate" whereas under state law the relevant scope of
    review was limited to whether the verdict was "so arbitrary
    that it was against the overwhelming weight of the
    evidence." 
    Id. at 343
    (O'Connor, J., concurring) (quotation
    omitted).
    In Romano v. Oklahoma, 
    512 U.S. 1
    (1994), the Supreme
    Court clarified the Caldwell holding. Accepting Justice
    O'Connor's concurrence as controlling, the Romano Court
    explained that Caldwell prohibits prosecutorial comments
    that "mislead the jury as to its role in the sentencing
    process in a way that allows the jury to feel less responsible
    than it should for the sentencing decision." 
    Id. at 9
    (quotation omitted). Accordingly, "[t]o establish a Caldwell
    violation, a defendant necessarily must show that the
    remarks to the jury improperly described the role assigned
    to the jury by local law." 
    Id. (quotation omitted).
    The Court
    subsequently rejected Romano's Caldwell claim because
    "the jury was not affirmatively misled regarding its role in
    the sentencing process." 
    Id. In Riley's
    case, Liguori began his opening comments in
    the penalty phase by stating:
    As the Judge has explained to you we have a specific
    statute with regard to what occurred in a penalty
    hearing in a capital case.
    43
    Let me say at the outset that what you do today is
    automatically reviewed by our Supreme Court and that
    is why there is an automatic review on the death
    penalty. That is why, if you return a decision of death,
    that is why you will receive and have to fill out a two-
    page interrogatory that the Court will give you. This is
    an interrogatory that specifically sets out the questions
    that the State request and whether or not you believe
    it beyond a reasonable doubt and if you want in your
    determination, if you believe the sentence should be
    death than each and every one of you has to sign this.
    This goes to the Supreme Court. That is why it is
    concise and we believe clear and it should be looked
    carefully on and answered appropriately.
    App. at 393 (emphases added).
    At oral argument before the en banc court, the State
    conceded that Liguori's statement, at least "on its face," is
    no different from that of the prosecutor in Caldwell. Tr. of
    Oral Argument at 49. Counsel for the State told us that
    when "[y]ou compare the two, they are pretty much alike."
    Tr. of Oral Argument at 49. Like the statement in Caldwell,
    Liguori's statement regarding automatic appellate review
    was technically accurate since Delaware law provided for
    automatic review by the Delaware Supreme Court of a
    jury's sentence of death. However, that automatic review
    was extremely limited, as was that of the Mississippi
    Supreme Court in Caldwell.
    At the time of Riley's sentencing hearing, the relevant
    portion of the capital sentencing statute provided:
    The Supreme Court shall limit its review under this
    section to the recommendation on and imposition of
    the penalty of death and shall determine:
    a. Whether, considering the totality of evidence in
    aggravation and mitigation which bears upon the
    particular circumstances or details of the offense and
    the character and propensities of the offender, the
    death penalty was either arbitrarily or capriciously
    imposed or recommended . . . .
    Del. Code Ann. tit. 11, S 4209(g)(2) (1982) (emphasis
    44
    added). Indeed, in Delaware the jury's weighing of
    aggravating and mitigating circumstances was, for all
    practical purposes, final. We have found no published
    opinion during the relevant time period in which the
    Delaware Supreme Court reversed a jury's sentence of
    death as arbitrarily or capriciously imposed.15
    It is apparent, then, that, like the prosecutor's statement
    in Caldwell, Liguori's reference to automatic appellate
    review was misleading as to the scope of appellate review.
    As was explained in Caldwell, jurors may not understand
    the limited nature of appellate review, which affords
    substantial deference to a jury's determination that death is
    the appropriate sentence. 
    See 472 U.S. at 332-33
    .
    Furthermore, jurors who are unconvinced that death is the
    appropriate punishment but who are eager to send a
    message of disapproval for the defendant's acts might be
    "very receptive to the prosecutor's assurance that [they] can
    more freely err because the error may be corrected on
    appeal." 
    Id. at 331
    (quotation omitted). As one of our sister
    circuits has explained, "[f]or the jury to see itself as
    advisory when it is not, or to be comforted by a belief that
    its decision will not have effect unless others make the
    same decision, is a frustration of the essence of the jury
    function." Sawyer v. Butler, 
    881 F.2d 1273
    , 1282 (5th Cir.
    1989).
    It is therefore not enough to argue, as the State does,
    that Liguori's comments at sentencing were a correct and
    accurate statement of Delaware law. The statute at the time
    contained more than 40 different provisions detailing
    procedures and requirements applicable to a death
    sentence, but the only one the prosecutor chose to
    emphasize was that providing for automatic review of the
    jury's sentence.
    _________________________________________________________________
    15. The Delaware capital sentencing scheme was substantially amended
    in 1991. Under the amended statute, "the jury now functions only in an
    advisory capacity. The judge, after taking the jury's recommendation into
    consideration, has the ultimate responsibility for determining whether
    the defendant will be sentenced to life imprisonment or death." State v.
    Cohen, 
    604 A.2d 846
    , 849 (Del. 1992). In contrast, when Riley was
    sentenced, the jury's death sentence was binding on the judge.
    45
    Nor does the State satisfactorily explain why Liguori
    referred to "automatic review on the death penalty" in
    connection with his explanation of the interrogatory form.
    App. at 393. The interrogatory form contained only two
    questions: whether the jury unanimously found beyond a
    reasonable doubt that an aggravating circumstance existed16
    and, if the jury answered "yes," whether it unanimously
    recommended a sentence of death. Such a simple and
    straightforward form hardly needed an explanation.
    Instead, that "explanation" appears to have been used as a
    segue to alert the jury to the fact that the Delaware
    Supreme Court would automatically review its decision to
    impose a death sentence.
    "The sentencing decision in capital cases is born out of
    an inherent and unique mixture of anger, judgment and
    retribution, and requires a determination whether certain
    acts are so beyond the pale of community standards as to
    warrant the execution of their author." 
    Sawyer, 881 F.2d at 1278
    . Perhaps more than any other decision rendered by a
    jury, a sentence of death is "irreducibl[y] discretionary." 
    Id. Yet in
    Caldwell, the Supreme Court noted that "[b]elief in
    the truth of the assumption that sentencers treat their
    power to determine the appropriateness of death as an
    awesome responsibility has allowed this Court to view
    sentencer discretion as consistent with--and indeed as
    indispensable to--the Eighth Amendment's need for
    reliability in the determination that death is the appropriate
    punishment in a specific 
    case." 472 U.S. at 330
    (quotations
    omitted). It follows that there is particular concern "when
    there are state-induced suggestions that the sentencing
    jury may shift its sense of responsibility to an appellate
    court." 
    Id. Unlike our
    decision in Zettlemoyer v. Fulcomer,
    
    923 F.2d 284
    , 306 (3d Cir. 1991), where we rejected a
    Caldwell claim, in part because "[t]here was no suggestion
    to the jury that the [state] Supreme Court . .. or anyone
    else would have the last word in the case," here the
    prosecutor expressly stated both "there is an automatic
    _________________________________________________________________
    16. The jury had previously been instructed that, by convicting Riley of
    felony murder, it already had found that an aggravating circumstance
    existed.
    46
    review" and "[t]his goes to the [state] Supreme Court." App.
    at 393.
    The Dissent suggests that there was no Caldwell violation
    here because the prosecutor's statement was made"near
    the very beginning of his summation," and consisted of
    "accurate, unemotional, passing remarks." The Dissent also
    characterizes the prosecutor's remarks as "the mere
    mention of the fact that there would be an automatic
    appeal to the state supreme court."
    It is true that the prosecutor's statement was made near
    the beginning of his summation, but his summation was
    not a lengthy speech, occupying a mere four pages of the
    transcript, App. at 393-97, of which the remarks in
    question take almost a full page. We cannot tell whether
    they were "emotional" or not, but they can hardly be
    characterized as "passing," as the prosecutor began by
    saying, "Let me say at the outset that what you do today is
    automatically reviewed by our Supreme Court." And, as we
    noted above, in that one paragraph, the prosecutor referred
    not once but twice to the Supreme Court -- both
    mentioning "automatic review" and that the interrogatory to
    be completed by the jurors also "goes to the Supreme
    Court."
    We are unwilling to treat lightly the prosecutor's pointed
    references to appellate review of this crucial decision.
    Statements, like those made by the prosecutor here,"can
    be literally true but quite misleading by failing, for example,
    to disclose information essential to make what was said not
    misleading." 
    Sawyer, 881 F.2d at 1285
    . As a result, a
    Caldwell violation may be established where a technically
    accurate statement describing the state appellate review
    process nonetheless "misled the jury to minimize its role in
    the sentencing process." Driscoll v. Delo, 
    71 F.3d 701
    , 713
    (8th Cir. 1995) (holding that prosecutor had violated
    Caldwell by emphasizing that the trial judge could
    disregard the jury's recommendation of death even though
    no state judge had in fact ever done so).
    Given the limited nature of the Delaware Supreme
    Court's review of a jury's sentence of death at the time of
    Riley's sentencing, a fact Liguori did not explain to the jury,
    47
    we conclude that there was a Caldwell violation in this case.17
    As suggested in Caldwell, jurors are unlikely to understand
    the exceptionally narrow scope of appellate review given to
    jury determinations on death. 
    See 472 U.S. at 330-31
    ; see
    also 
    id. at 342
    (O'Connor, J., concurring). Although
    Liguori's remarks were brief, they were the first comments
    that the jury heard at sentencing, making them more likely
    to have made an impression. A statement does not have to
    be lengthy to be effective in suggesting to the jury that
    ultimate responsibility for sentencing lies elsewhere.
    Moreover, nothing the trial court said corrected any
    misimpression left by the prosecution's statements, as the
    judge made no comment whatsoever pertaining to appellate
    review. Unlike Jones v. Butler, 
    864 F.2d 348
    , 360 (5th Cir.
    1988), where the Court of Appeals for the Fifth Circuit held
    that the prosecutor's statement that "[I]f, in fact, you do
    return the death penalty . . . yours will not be the last
    word. Every sentence is reviewed by the Supreme Court,"
    was improper but cured by a prompt curative instruction
    by the trial judge, here there was no curative instruction.18
    Caldwell and its progeny make clear that"the sentencing
    jury must continue to feel the weight of responsibility so
    long as it has responsibility." 
    Sawyer, 881 F.2d at 1282
    .
    Because the prosecutor's remarks may have misled the jury
    into thinking the Delaware Supreme Court was the final
    arbiter of Riley's fate, we conclude that Riley's
    constitutional rights were violated under Caldwell. Thus,
    even were we to find that Riley has not shown a Batson
    violation entitling him to a new trial, we still would direct
    the District Court to grant the writ of habeas corpus
    entitling Riley to a new sentencing hearing.
    _________________________________________________________________
    17. At oral argument counsel for the State acknowledged that "[p]erhaps
    better practice would have been for Liguori to insert the word ``limited' "
    into his reference to automatic appellate review. Tr. of Oral Argument at
    50. This could be construed as a concession by the State that Liguori's
    comments were misleading because of what they did not tell the jury.
    18. We are not persuaded by Riley's contention that the trial judge's
    repeated references to the jury's determination on death as a
    "recommendation" misled the jury as to its actual responsibility in the
    sentencing process. See generally Flamer v. Delaware, 
    68 F.3d 710
    (3d
    Cir. 1995).
    48
    III.
    CONCLUSION
    This is an appropriate case for the issuance of a writ of
    habeas corpus. One of the principal objections to the
    operation of the death penalty in this country is that it is
    applied unevenly, particularly against poor black
    defendants. Another concern is that because of the complex
    review process, the jury may not comprehend the
    significance of its life-or-death decision. Both of these
    issues are implicated in this case. An appropriate order
    follows.
    49
    [This page intentionally left blank]
    50
    Volume 2 of 2
    51
    APPENDIX A
    Excerpts from Panel Opinion in Riley v. Taylor,
    No. 98-9009
    Filed January 17, 2001
    Panel: SLOVITER, ALITO, and STAPLETON, Circuit    Judges
    ALITO, Circuit Judge:
    . . .
    III.
    Riley next argues that adverse publicity prevented him
    from obtaining a trial by an impartial jury. He contends,
    first, that it should be presumed that he was prejudiced by
    pretrial publicity because the record establishes the
    existence of a "hostile trial atmosphere" and, second, that
    the record shows that several jurors were unable to be
    impartial due to exposure to unfavorable pretrial publicity.
    A.
    "Where media or other community reaction to a crime or
    a defendant engenders an atmosphere so hostile and
    pervasive as to preclude a rational trial process, a court
    reviewing for constitutional error will presume prejudice to
    the defendant without reference to an examination of the
    attitudes of those who served as the defendant's jurors."
    Rock v. Zimmerman, 
    959 F.2d 1237
    , 1252 (3d Cir. 1992).
    See also Sheppard v. Maxwell, 
    384 U.S. 333
    (1966); Estes
    v. Texas, 
    381 U.S. 532
    (1965); Rideau v. Louisiana, 
    373 U.S. 723
    (1963); Flamer v. Delaware, 
    68 F.3d 736
    , 755 (3d
    Cir. 1995) (en banc). "The community and media reaction,
    however, must have been so hostile and so pervasive as to
    make it apparent that even the most careful voir dire
    process would be unable to assure an impartial jury.. . .
    Such cases are exceedingly rare." 
    Rock, 959 F.2d at 1252
    -
    53.
    In this case, the state courts made a finding of
    impartiality. Such a finding is entitled to deference, see
    Patton v. Yount, 
    467 U.S. 1025
    , 1031 & n. 7 (1984), and we
    find no basis for overturning that finding.
    52
    Riley relies on a relatively small number of newspaper
    articles, almost half of which appeared six months or more
    before the trial. Although two of the articles named Riley as
    a suspect in Feeley's murder, and although a few of the
    articles discussed the plight of the Feeley children, who
    were orphaned by the murder, the articles were not
    inflammatory. In short, the media coverage was not"so
    hostile and pervasive as to preclude a rational trial
    process." 
    Rock, 959 F.2d at 1252
    .
    B.
    Because Riley has not shown the presence of
    circumstances justifying a presumption of prejudice, he
    "must establish that those who actually served on his jury
    lacked a capacity to reach a fair and impartial verdict based
    solely on the evidence they heard in the courtroom." 
    Rock, 959 F.2d at 1253
    . See also 
    Patton, 467 U.S. at 1035
    ; Irvin
    v. Dowd, 
    366 U.S. 717
    , 723 (1961). "The fact that jury
    members may have been exposed to press reports or other
    community reaction concerning the case and even the fact
    that they may have formed a tentative opinion based on
    that exposure will not establish a constitutional violation if
    the trial court has found, with record support, that each of
    the jurors was able to put aside extrinsic influences." 
    Rock, 959 F.2d at 1253
    .
    Riley contends that two jurors, Leon Morris and Carl
    Patterson, were unable to be impartial due to exposure to
    pretrial publicity. We do not agree.
    Morris testified during voir dire that he "had read
    something about" the case in the newspaper at the time of
    the murder and that he had heard on the radio that the
    case was "coming to trial." App. 277. The following
    exchange then occurred:
    Q. . . . Because of what you read in the newspaper,
    do you feel that you could sit here as an impartial
    jury?
    A. Yes, because I know nothing of the evidence or
    anything else.
    App. 278.
    53
    Carl Patterson during voir dire was asked whether
    anything he had read in the newspaper had created bias or
    prejudice against the defendant. See App. 294. He
    responded that he could not remember a lot of what he
    read in the newspaper. See 
    id. The following
    colloquy then
    occurred:
    Q. Then do you know of any reason why you can't
    render an impartial verdict based solely upon the law
    and the evidence?
    A. No, Your Honor.
    
    Id. The trial
    judge implicitly found that these jurors were
    impartial, and the Delaware Supreme Court agreed on
    direct appeal. Such implicit findings are entitled to a
    presumption of correctness. Parke v. Raley, 
    506 U.S. 20
    , 35
    (1992); Weeks v. Snyder, 
    2000 WL 975043
    (3d Cir. July 17,
    2000); Campbell v. Vaughn, 
    209 F.3d 280
    , 290 (3d Cir.
    2000), and we see no ground for holding that that
    presumption has been overcome.
    IV.
    Riley argues that the prosecution violated his right to due
    process by failing to disclose exculpatory evidence in its
    possession as required by Brady v. Maryland, 
    373 U.S. 83
    (1963). In Brady, the Supreme Court held that "the
    suppression by the prosecution of evidence favorable to an
    accused upon request violates due process where the
    evidence is material either to guilt or to punishment,
    irrespective of the good faith or bad faith of the
    prosecution." 
    Id. at 87.
    To state a valid Brady claim, a
    plaintiff must show that the evidence was (1) suppressed,
    (2) favorable, and (3) material to the defense. See United
    States v. Perdomo, 
    929 F.2d 967
    , 970 (3d Cir. 1991).
    Evidence is material if there is a reasonable probability that
    the outcome would have been different had the evidence
    been disclosed to the defense. See United States v. Bagley,
    
    473 U.S. 667
    , 678 (1985). Evidence that may be used to
    impeach may qualify as Brady material. See Kyles v.
    Whitley, 
    514 U.S. 419
    , 445 (1995); Bagley , 473 U.S. at 676.
    54
    Riley's Brady argument concerns a wiretap on the
    telephone of the mother of Tyrone Baxter. Before trial,
    Riley's lawyer asked the state to produce recordings or
    transcripts of the intercepted calls, but the state refused,
    arguing that the tapes contained no exculpatory material.
    Without listening to the tape himself, the trial judge
    accepted the prosecutor's representation and denied Riley's
    motion for production. Throughout the subsequent
    proceedings in state and federal court, no judge listened to
    the tapes.
    In his briefs in this appeal, Riley made a strong Brady
    argument. He asserted that between the time of the Feeley
    murder and Baxter's arrest, "Baxter spoke to his mother on
    the telephone on several occasions"; that "Baxter's
    testimony was the State's strongest evidence against" him;
    and that statements made by Baxter to his mother might
    have provided valuable impeachment evidence. Appellant's
    Br. at 5. At a minimum, he contended, the state courts or
    the District Court should have listened to the tapes in
    camera to determine whether they contained Brady
    material.
    At oral argument, however, counsel for the appellees
    represented that an examination of the logs of the wiretap
    on Mrs. Baxter's telephone did not reveal any intercepted
    conversations in which Baxter participated. Copies of the
    logs were provided to Riley's attorneys and to the court, and
    Riley's attorneys submitted a letter-brief commenting on the
    contents of the logs. We have examined the logs, and it
    appears that the state's representation is correct: we see no
    record of any conversations in which Baxter participated.
    The revelation that the logs do not mention any such
    conversations fatally undermines the Brady argument made
    in Riley's briefs.
    In their post-argument letter-brief commenting on the
    logs, Riley's attorneys advance different arguments to show
    that an in camera inspection of the wiretap recordings is
    required. A defendant seeking an in camera inspection to
    determine whether files contain Brady material must at
    least make a "plausible showing" that the inspection will
    reveal material evidence. Pennsylvania v. Ritchie, 
    480 U.S. 39
    , 58 n.15 (1987) (quoting United States v. Valenzuela-
    55
    Bernal, 
    458 U.S. 858
    , 867 (1982)). Mere speculation is not
    enough. United States v. Navarro, 
    737 F.2d 625
    , 631 (7th
    Cir. 1984). The arguments made by Riley's attorneys in
    their post-argument submission do not satisfy this
    standard.
    Riley's attorneys first note that several log entries
    "expressly refer to conversations about Tyrone Baxter."
    12/16/99 Letter-brief at 3 (emphasis added). But it is
    unlikely that statements "about" Baxter by third persons --
    unlike statements made by Baxter himself -- could have
    been used to impeach Baxter's testimony or could have
    been admitted at trial on some other ground. For that
    reason alone, it is unlikely that these statements are
    material. See Wood v. Bartholomew, 
    516 U.S. 1
    , 5-6 (1995).
    Moreover, even if the problem of admissibility is put aside,
    it is pure speculation to suppose that the contents of the
    statements are in any way exculpatory.
    Riley's attorneys also suggest that conversations between
    Baxter and his mother may have been intercepted and
    recorded but that the person or persons who compiled the
    logs may not have recognized Baxter's voice. This, however,
    is nothing but the purest speculation. We note that the
    wiretap occurred while the police were seeking to arrest
    Baxter; they therefore had a strong incentive to identify him
    if he participated in any of the intercepted conversations.
    We have considered all of Riley's Brady arguments and find
    them to be without merit.
    V.
    Riley argues that he was denied the effective assistance
    of counsel at the penalty phase of his trial.1 The District
    Court held that many of Riley's arguments concerning the
    alleged deficiencies of his attorney's performance were never
    _________________________________________________________________
    1. Riley's amended federal habeas petition raised claims regarding the
    alleged ineffectiveness of trial counsel at the guilty phase, but the
    District Court held that these claims were procedurally barred. See Riley
    VI, 
    1998 WL 172856
    , at **18-20. On appeal, Riley refers to these claims
    in a footnote. See Appellant's Br. at 38 n.16. This footnote is inadequate
    to raise the issue on appeal.
    56
    presented to the Delaware Supreme Court and were thus
    procedurally barred, and the District Court rejected Riley's
    remaining arguments regarding this matter on the merits.
    On appeal, Riley attacks both parts of the District Court's
    holding.
    A.
    Riley contends that the District Court was required to
    hold an evidentiary hearing on the question of procedural
    default for two reasons. First, he maintains that at least
    some of the arguments that the District Court held were
    procedurally barred might have been presented to the
    Delaware Supreme Court during the oral argument of his
    direct appeal even though those arguments were not
    contained in his brief. Because the record does not include
    a transcript of the oral argument, Riley maintains that the
    District Court should have held an evidentiary hearing for
    the purpose of reconstructing the record. See Appellant's
    Br. at 38-39. We disagree.
    On direct appeal, Riley was represented by the same
    attorney who had represented him at trial. In his amended
    habeas petition, Riley acknowledges that no ineffective
    assistance argument was made in the direct appeal brief
    that was ultimately submitted on his behalf and accepted
    for filing by the Delaware Supreme Court.2 See App. 1198.
    In addition, the opinion issued by the Delaware Supreme
    Court in the direct appeal makes no mention of ineffective
    assistance of counsel. See Riley I. Under these
    circumstances, the District Court was certainly not
    required to conduct an evidentiary hearing to determine
    whether the attorney who represented Riley at trial chose at
    oral argument before the state supreme court to make
    arguments not mentioned in his brief and to condemn his
    own performance in the trial court.
    _________________________________________________________________
    2. The first brief submitted by Riley's attorney on direct appeal
    contained
    a conclusory passage that purported to raise the issue of ineffective
    assistance (without any factual elaboration) for the purpose of preserving
    the issue. See App. 1198. However, this brief was rejected by the
    Delaware Supreme Court, and the brief that was ultimately submitted
    and accepted contained no such passage. See App. 1198-99.
    57
    With little elaboration, Riley also contends that the
    District Court should have held an evidentiary hearing so
    that Riley could show that he had "cause" for not raising
    the arguments in question in state court. See Appellant's
    Br. at 39. However, Riley has not even identified any
    "cause" that he would have attempted to show. We will not
    reverse the decision of the District Court and order that
    Court to conduct an evidentiary hearing so that Riley can
    develop the factual predicate for a "cause" that Riley has
    not even disclosed.
    Perhaps the most frequently asserted "cause" for
    procedural default is ineffective assistance of counsel, and
    we will therefore comment briefly on the steps that Riley
    should have taken if he wished to rely on this "cause." As
    the District Court pointed out, in order for Riley to show
    that ineffective assistance provided "cause" for failing to
    raise the arguments in question in the state court
    proceedings, Riley would have to show that the new
    attorney who represented him in the state post-conviction
    relief proceedings was ineffective. See Dist. Ct. Op. at 50 &
    n.16, 56-57. This is so because Delaware permits a claim of
    ineffective assistance to be raised in a post-conviction relief
    proceeding even if it was not raised on direct appeal. See
    Riley VI, 
    1998 WL 172856
    , at **17-18 & n.16. 3
    Riley has not argued, however, that the attorney who
    represented him in the state post-conviction relief
    proceedings provided ineffective assistance by failing to
    make the specific arguments that the District Court held
    were procedurally barred.4 Moreover, because Riley never
    raised a claim in state court that his post-conviction relief
    attorney was ineffective, he runs afoul of the rule that "a
    _________________________________________________________________
    3. Indeed, in Riley's case, ineffective assistance was vigorously argued
    in
    the post-conviction relief proceedings, and the Delaware Supreme Court
    addressed these arguments on the merits. See Riley 
    V, 585 A.2d at 726
    -
    29.
    4. Even if Riley had asserted a "cause" for the procedural default, he
    would have to confront the rule that a habeas petitioner is not entitled
    to an evidentiary hearing in federal court to establish a factual record
    unless the petitioner can show "cause" for not making the necessary
    factual record in the state proceedings. See Keeney v. Tamayo-Reyes,
    
    504 U.S. 1
    , 11-12 (1992).
    58
    petitioner must demonstrate independent cause and
    prejudice excusing the default of the ineffectiveness claim
    before that claim can be assessed as cause in relation to a
    second, substantive claim." Hill v. Jones, 
    81 F.3d 1015
    ,
    1030 (11th Cir. 1996). See also Justus v. Murray , 
    897 F.2d 709
    , 713 (4th Cir. 1990).
    B.
    We will now discuss the ineffective assistance arguments
    that were not procedurally defaulted. In order to show that
    his constitutional right to the assistance of counsel was
    violated at the penalty phase, Riley must satisfy the two-
    pronged test of Strickland v. Washington, 
    466 U.S. 668
    , 687
    (1984). First, he must demonstrate that his attorney"made
    errors so serious that counsel was not functioning as the
    ``counsel' guaranteed the defendant by the Sixth
    Amendment." 
    Id. at 687.
    "Judicial scrutiny of counsel's
    performance must be highly deferential. It is all too
    tempting for a defendant to second-guess counsel's
    assistance after . . . [an] adverse sentence, and it is all too
    easy for a court, examining counsel's defense after it has
    proved unsuccessful, to conclude that a particular act or
    omission of counsel was unreasonable." 
    Id. at 689.
    Second,
    if counsel's representation is shown to fall outside"the wide
    range of reasonable professional assistance," 
    id., it must
    be
    shown that "the deficient performance prejudiced the
    defense," that is, that "there is a reasonable probability
    that, but for counsel's unprofessional errors, the result of
    the proceeding would have been different." Id . at 694.
    1. In his brief in our court, Riley presented a greatly
    truncated version of arguments previously advanced
    regarding trial counsel's failure to call certain family
    members to testify at the penalty phase of the trial and trial
    counsel's failure to locate or contact other family members
    who might have testified. All of these family members, Riley
    argues, could have provided evidence about his traumatic
    experiences as a child and his "severely dysfunctional
    family." Appellant's Br. at 41.
    The Superior Court, the Delaware Supreme Court, and
    the District Court all addressed these arguments in some
    59
    detail and rejected them. They concluded that Riley's trial
    attorney made reasonable efforts to find certain family
    members who could not be located, that he did not act
    unreasonably in failing to call others as witnesses, and that
    his failure to rely on what was termed Riley's "social
    history" represented a reasonable strategy. See Riley II,
    
    1988 WL 47076
    at *3-4, *7-9; Riley 
    V, 585 A.2d at 726
    -28;
    Riley VI, 
    1998 WL 172856
    , at **20-23.
    In his brief in our court, Riley merely states without
    elaboration that "trial counsel failed to call as witnesses
    members of Mr. Riley's immediate family, several of whom
    lived within a few hours of Dover, Delaware" and that these
    witnesses could have testified about his childhood and
    family. Appellant's Br. at 41. He provides no response to
    the detailed reasons given by the state courts and the
    District Court for holding that trial counsel was not
    ineffective in failing to call or locate family members for the
    purpose of eliciting testimony about Riley's childhood and
    family.
    Nothing has been presented that convinces us that the
    state courts and the District Court erred. We agree with the
    state courts and the District Court that Riley has not
    shown that trial counsel was ineffective in failing to call
    those family members who could be located, such as Riley's
    mother. The District Court analyzed trial counsel's decision
    not to put Riley's mother on the stand as follows:
    The record is replete with circumstances that
    support trial counsel's decision not to call Petitioner's
    mother. First, Petitioner informed trial counsel that he
    did not wish to expose his mother's problems at trial.
    . . . Second, trial counsel testified that Petitioner's
    mother refused to support Petitioner's alibi, and as a
    result, he was concerned about the prosecutor's cross-
    examination of her during the penalty phase. . . .
    Third, the record indicates that Petitioner's mother had
    a severe drinking problem and was drinking heavily at
    the time of the trial. . . . As a result, trial counsel
    believed that the witnesses that he chose to call in
    mitigation, instead, would make a better impression on
    the jury. . . . Under these circumstances, the Court
    finds trial counsel's decision not to call Petitioner's
    60
    mother to be reasonable and within the bounds of his
    strategic discretion.
    Riley VI, 
    1998 WL 172856
    , at *2. We agree.
    We also agree that Riley has not demonstrated that his
    trial attorney was ineffective in failing to locate certain
    other family members. See Riley II, **3-5; Riley 
    V, 585 A.2d at 727-28
    ; Riley VI, 
    1998 WL 172856
    , at *21. Finally, we
    agree that a strategy of not introducing evidence regarding
    Riley's background and family fell within "the wide range of
    reasonable professional assistance." 
    Strickland, 466 U.S. at 689
    . The Superior Court wrote as follows:
    The adverse inferences to be drawn from the fact that
    defendant's parents were both alcoholics, his sister an
    unwed mother of three, his brother an incarcerated
    criminal and his home life a series of jails and
    temporary living quarters would no doubt have been
    magnified in the semi-rural county where this case was
    tried . . . . Likewise, it is certainly within the range of
    strategic choices to forego mitigating evidence, which
    may be seen as "excuse making" and rely upon a plea
    for mercy . . . . In Riley's case, evidence offered as to
    mitigating circumstances included: that the actual
    killer was Tyrone Baxter, the co-defendant; that Baxter
    received a less severe penalty; and that Riley's
    background indicated that he was a diligent worker,
    possessing a non-violent and good character.
    In this case, trial counsel gave a strong argument that
    Riley's life should be spared in light of the fact that
    Tyrone Baxter, defendant's accomplice and principal
    accuser, would be spared the death penalty as the
    result of a plea bargain. Moreover, Walter Ross testified
    without contradiction at the [post-conviction relief]
    hearing that the defendant did not want his family
    background discussed at the penalty phase. Given
    defendant's wishes, the lack of positive evidence in
    mitigation, counsel's focused argument for leniency in
    light of Baxter's plea bargain, and the potentially
    negative impact the purportedly positive evidence
    would have wrought before the jury, defendant has
    failed to show that counsel's decision to limit the
    61
    testimony at the penalty phase was constitutionally
    deficient.
    Riley II, 
    1988 WL 47076
    , at *11-12. This analysis was
    accepted by the Delaware Supreme Court and the District
    Court. We cannot disagree.
    2. Riley contends that his trial attorney was ineffective
    because he did not present testimony by a mental health
    expert. Riley relies on the affidavits of two experts, who
    examined him in connection with the post-conviction relief
    proceeding. One of the experts characterized Riley as a
    person with "borderline defective" intelligence whose
    capacity "for objectively analyzing events, circumstances
    and relationships [is] narrowed by stress and complexity."
    Appellant's Br. at 42. We agree with Riley that this
    explanation might have been helpful at the penalty phase.
    The question remains, however, whether trial counsel was
    ineffective in failing to obtain such evidence at the time.
    In the post-conviction relief proceeding in Superior Court,
    trial counsel testified that he did not seek to have Riley
    examined by a mental health expert because he had no
    reason to think, in light of his conversations with Riley,
    that such an examination would have revealed anything
    useful. See App. 592-96. He testified that Riley appeared to
    understand what they discussed and that Riley prepared
    and filed some motions on his own behalf. See App. 592-
    93. Trial counsel stated that Riley never mentioned any
    head injury or any psychological problems. See App. 590.
    Relying on this testimony, the Superior Court found that
    trial counsel "had no inkling that evaluation of Mr. Riley's
    mental or emotional state might be helpful in mitigation."
    Riley II, 
    1988 WL 47076
    , at *7.
    Before us, Riley has not argued that counsel in a capital
    case must always seek a mental examination of the
    defendant, and cases from other circuits reject that
    proposition. Instead, they hold that a case-by-case
    determination must be made and that counsel is not
    ineffective if he or she has no reason to think that a mental
    examination would be useful. See Thomas v. Gilmore, 
    144 F.3d 513
    , 515-16 (7th Cir. 1998); United States v. Miller,
    
    907 F.2d 994
    , 998-99 (10th Cir. 1990); United States ex rel.
    Rivera v. Franzen, 
    794 F.2d 314
    , 317 (7th Cir. 1986).
    62
    Under this standard, we see no ground for reversing the
    decision of the District Court here. Riley has simply not
    identified any fact that should have alerted his trial
    attorney that he had mental problems that might have
    provided the basis for mitigation. The only fact even
    mentioned in Riley's briefs is the "implausible" nature of
    Riley's alibi, see Reply Br. at 21, but this is insufficient to
    alert counsel to the possibility of mental problems that
    might be relevant to mitigation. For the most part, Riley
    merely notes what the subsequent examinations by mental
    health experts revealed. However, "[a] fair assessment of
    attorney performance requires that every effort be made to
    eliminate the distorting effects of hindsight, to reconstruct
    the circumstances of counsel's challenged conduct, and to
    evaluate the conduct from counsel's perspective at the
    time." 
    Strickland, 466 U.S. at 689
    .
    3. Finally, Riley cites trial counsel's inexperience and
    the fact that he spent only 14 hours preparing for the
    penalty phase of the trial. These facts are not comforting,
    but they do not in themselves establish that counsel was
    ineffective. We have taken them into account in evaluating
    the other deficiencies properly asserted in this appeal. We
    cannot say, however, that Riley's constitutional right to the
    effective assistance of counsel was denied.
    VI.
    Relying on Ake v. Oklahoma, 
    470 U.S. 68
    , 76-77 (1985),
    Riley argues that his right to due process was violated
    because the trial judge refused to appoint co-counsel or an
    investigator to assist his attorney. Riley again notes the
    inexperience of his attorney, and he asserts that co-counsel
    had been appointed in Kent County in prior capital cases.
    Although Riley claims that the lack of co-counsel and an
    investigator caused him "extreme prejudice," his brief
    provides no details.
    A. We turn first to Riley's argument that he was
    constitutionally entitled to the appointment of co-counsel.
    In some jurisdictions, there is a statutory right to the
    appointment of two defense attorneys in capital cases. See,
    e.g., 18 U.S.C. S 3005. However, we are aware of no
    63
    authority holding that the federal Constitution confers such
    a right, and we see no basis for such a holding. The
    Constitution specifies the quality of representation that all
    criminal defendants, including capital defendants, must
    receive, namely, "reasonably effective assistance."
    
    Strickland, 466 U.S. at 687
    . The Constitution does not
    specify the number of lawyers who must be appointed. If a
    single attorney provides reasonably effective assistance, the
    Constitution is satisfied, and if a whole team of lawyers
    fails to provide such assistance, the Constitution is
    violated. Thus, there is no constitutional right per se to the
    appointment of co-counsel in a capital case. Bell v.
    Watkins, 
    692 F.2d 999
    , 1009 (5th Cir. 1982); Jimenez v.
    State, 
    703 So. 2d 437
    , 439 (Fla. 1997) (per curiam); State
    v. Phelps, 
    478 S.E.2d 563
    , 574-75 (W.Va. 1996) (per
    curiam); State v. Rodriguez, 
    921 P.2d 643
    , 652 (Ariz. 1996);
    Spranger v. State, 
    650 N.E.2d 1117
    , 1122-23 (Ind. 1995);
    Uptergrove v. State, 
    881 S.W.2d 529
    , 531 (Tex. Ct. App.
    1994). Cf. Hatch v. Oklahoma, 
    58 F.3d 1447
    , 1456 (10th
    Cir. 1995).
    Riley's brief does not identify any unusual features of this
    case that demanded the appointment of a second attorney.
    While he does cite the inexperience of his trial attorney,
    without a showing that this attorney did not provide the
    level of representation required by the Constitution, we
    cannot hold that the failure to appoint co-counsel to assist
    him violated the Constitution.
    B. We must also reject Riley's argument that the failure
    to appoint a private investigator violated the Constitution.
    In Caldwell v. Mississippi, 
    472 U.S. 320
    , 323 n.1 (1985),
    the Supreme Court made it clear that there is no
    constitutional right to the appointment of an investigator
    where the defendant offers "little more than undeveloped
    assertions that the requested assistance would be
    beneficial." See also Gray v. Thompson, 
    58 F.3d 59
    , 66-67
    (4th Cir. 1995), vacated on other grounds sub nom. Gray v.
    Netherland, 
    518 U.S. 152
    (1996). Riley has offered nothing
    more here.
    . . .
    64
    VIII.
    Riley contends that the trial judge contravened the
    holding of Witherspoon v. Illinois, 
    391 U.S. 510
    (1968),
    when the judge dismissed two jurors for cause after they
    responded to voir dire questions concerning capital
    punishment. In Witherspoon, the Supreme Court held that
    members of a jury panel may not be excused for cause
    "simply because they voiced general objections to the death
    penalty or expressed conscientious or religious scruples
    against its infliction." 
    Id. at 522.
    Some lower courts,
    however, interpreted footnotes in Witherspoon to mean that
    potential jurors could be dismissed only if they stated
    unambiguously that they would automatically vote against
    the death penalty.5
    The Supreme Court clarified the meaning of Witherspoon
    in Wainwright v. Witt, 
    469 U.S. 412
    (1985). The Court held
    that "the proper standard for determining when a
    prospective juror may be excluded for cause because of his
    or her views on capital punishment . . . is whether the
    juror's views would ``prevent or substantially impair the
    performance of his duties as a juror in accordance with his
    instructions and his oath.' " 
    Id. at 424
    (quoting
    
    Witherspoon, 391 U.S. at 45
    ). The Court noted:
    [T]his standard . . . does not require that a juror's bias
    be proved with ``unmistakable clarity' . . . because
    determinations of juror bias cannot be reduced to
    question-and-answer sessions which obtain results in
    the manner of a catechism. What common sense
    should have realized experience has proved: many
    veniremen simply cannot be asked enough questions to
    reach the point where their bias has been made
    "unmistakably clear"; these veniremen may not know
    how they will react when faced with imposing the death
    sentence, or may be unable to articulate, or may wish
    to hide their true feelings. Despite this lack of clarity in
    the printed record, however, there will be situations
    where the trial judge is left with the definite impression
    that a prospective juror would be unable to faithfully
    and impartially apply the law.
    _________________________________________________________________
    5. See Wainwright v. Witt, 
    469 U.S. 412
    , 419 (1985).
    65
    
    Id. at 424
    -26 (footnote omitted). The Court went on to hold
    that a trial judge's finding under this standard is entitled to
    the presumption of correctness in 28 U.S.C. S 
    2254(d).6 469 U.S. at 428
    . Applying these standards, the Court sustained
    the dismissal of a juror who said, when asked whether her
    beliefs would interfere with her sitting as a juror in a
    capital case, "I am afraid it would" and "I think it would."
    
    Id. at 416.
    The two potential jurors at issue in the present case are
    Mae Floyd and Gerald Mood. During Floyd's voir dire, the
    following exchange occurred:
    The Court: . . . Do you have any conscientious
    scruples against finding a verdict of guilty where the
    punishment might be death or against imposing the
    death penalty if the evidence should so warrant?
    Ms. Floyd: I would say yes, I think so.
    The Court: You do have conscientious scruples?
    Ms. Floyd: Yes.
    The Court: Regardless of any personal beliefs or
    feelings you have, if the evidence justified it, would you
    be able to find a person guilty of murder in the first
    degree and impose the death penalty?
    Ms. Floyd: That is a hard one to tell you the truth.
    The Court: I will repeat the question.
    Ms. Floyd: I heard it. All right. Repeat the question.
    The Court: I will repeat it. Regardless of your
    personal belief or feelings, if the evidence justified it,
    would you be able to find a person guilty of murder in
    the first degree and would you be able to impose the
    death penalty?
    _________________________________________________________________
    6. See also Deputy v. Taylor, 
    19 F.3d 1485
    , 1498 (3d Cir. 1994) (citations
    omitted) (internal quotation marks omitted)("a trial court may excuse a
    juror for cause where such juror's views would prevent or substantially
    impair the performance of his duties as a juror in accordance with his
    instructions and his oath. . . . [and] that a state trial judge's finding
    that
    a prospective juror is impermissibly biased against the death penalty is
    entitled to a presumption of correctness under S 28 U.S.C.A. 2254(d).").
    66
    Ms. Floyd: That is a two-part question, right?
    The Court: Yes, it is.
    Ms. Floyd: The latter part--
    The Court: First of all, would you be able to find a
    person guilty of murder in the first degree?
    Ms. Floyd: I may, yes.
    The Court: And the second part is would you be
    able to impose the death penalty?
    Ms. Floyd: I tell you the truth I don't think so.
    The Court: I will excuse you. Thank you very much.
    App. 285-86 (emphasis added).
    As both the Delaware Supreme Court and the District
    Court observed, Floyd's responses were very similar to
    those of the potential juror in question in Wainwright v.
    
    Witt, supra
    . See Riley 
    I, 496 A.2d at 1005-06
    Riley VI, 
    1998 WL 172856
    , at *11. We agree with their analysis and hold
    that Riley has not overcome the presumption of correctness
    that attaches to the implicit finding of the trial judge.
    The dismissal of the other potential juror in question,
    Gerald Mood, took place after the following colloquy:
    The Court: . . .   . Do you have any conscientious
    scruples against   finding a verdict of guilty when the
    punishment might   be death or against imposing the
    death penalty if   the evidence should so warrant?
    Mr. Mood: I don't know. I have mixed emotions about
    that.
    The Court: Regardless of any personal belief or
    feelings that you have, if the evidence justified it, would
    you be able to find a person guilty of murder in the
    first degree and would you be able to impose the death
    penalty?
    Mr. Mood: Maybe I could. I don't really know.
    The Court: I am going to excuse you sir . . . .
    App. 276.
    67
    The District Judge aptly analyzed the dismissal of Mood,
    and we adopt his analysis:7
    Unlike venireperson Floyd, venireperson Mood's
    responses were much more succinct. Mood twice
    responded to the trial court's capital punishment
    questions with the phrase, "I don't know." . .. .
    Particularly in situations such as this, where an
    individual's record response is so brief that its printed
    reproduction reveals little, the Court should defer to
    those credibility factors that would only have been
    known to the trial court, such as the juror's demeanor,
    tone of voice and attitude. See 
    Witt, 469 U.S. at 434
           (emphasizing importance of trial court's assessment of
    venireperson's demeanor, particularly where printed
    record may not be "crystal clear"). Accordingly, the
    Court finds adequate record support for the trial
    court's decision to excuse venireperson Mood.
    Riley VI, 
    1998 WL 172856
    , at *12.
    IX.
    Relying on Morgan v. Illinois, 
    504 U.S. 719
    (1992), Riley
    argues that the trial judge erred in failing sua sponte to ask
    prospective jurors during voir dire whether they would
    automatically impose the death penalty if they found him
    guilty. The District Court rejected this claim on the ground
    that Morgan requires that such questions be asked only if
    the defense so requests. We agree.
    In Morgan, the Supreme Court framed the relevant issue
    in these terms: "whether on voir dire the court must, on
    defendant's request, inquire into the prospective jurors'
    views on capital 
    punishment." 504 U.S. at 726
    (emphasis
    added). The Court stated its holding as follows:
    _________________________________________________________________
    7. In addition, as the District Court noted, some of the answers given by
    Floyd and Mood to questions not concerning capital punishment may
    have influenced the trial judge's decision to dismiss them. Floyd revealed
    that she knew Tyrone Baxter and was a casual friend of Baxter's mother.
    Mood said that he was a good friend of one of the police officers involved
    in the case and had served with him in the fire department. See Riley VI,
    
    1998 WL 172856
    , at *12.
    68
    Petitioner was entitled, upon his request, to inquiry
    discerning those jurors who, even prior to the State's
    case in chief, had predetermined the terminating issue
    of his trial, that being whether to impose the death
    penalty.
    
    Id. at 736
    (emphasis added). The dissent described the
    Court's holding in similar language: "The Court today holds
    that . . . the Constitution requires that voir dire directed to
    [reverse-Witherspoon] ``bias' be provided upon the
    defendant's request." 
    Id. at 739
    (Scalia, J., dissenting)
    (emphasis added).
    We cannot regard the Court's choice of words as
    accidental, and we think that the holding of Morgan is
    clear: a reverse-Witherspoon inquiry must be made "on
    defendant's request." See United States v. Tipton, 
    90 F.3d 861
    , 879 (4th Cir. 1996).
    Riley makes two arguments in response. First, he notes
    that the state supreme court rejected his argument on the
    merits, and he contends that "the State should not now be
    heard to raise alleged procedural bars to federal court
    resolution of the claim on the merits." Appellant's Br. at 52.
    Our holding, however, has nothing to do with a procedural
    bar, i.e., a state rule of procedure that bars a federal
    habeas court from reaching the merits of a federal claim.
    Rather, our holding is based on the fact that the
    constitutional right recognized in Morgan applies only if the
    defense makes a request for a reverse-Witherspoon inquiry.
    Second, Riley argues that his trial attorney was
    ineffective in failing to request reverse-Witherspoon
    questioning. However, this argument was not made in the
    state courts, and it is thus procedurally barred.
    X.
    Under 
    11 Del. C
    . S 4209(g)(2), the Delaware Supreme
    Court is required to undertake a proportionality review in
    death penalty cases. The statute mandates that the Court
    inquire into whether "the death penalty was either
    arbitrarily or capriciously imposed or recommended, or
    disproportionate to the penalty recommended or imposed in
    69
    similar cases." 
    11 Del. C
    . S 4209(g)(2)(a). In affirming Riley's
    death sentence, the Delaware Supreme Court examined 21
    cases, including five in which the death penalty was
    imposed. It found that Riley's case was comparable to the
    five death penalty cases (Whalen, Rush, Deputy, Flamer
    and Bailey), because they all involved
    an unprovoked, cold-blooded murder of a helpless
    person (or persons) committed upon victims lacking the
    ability to defend themselves and solely for the purposes
    of pecuniary gain (except in Whalen's case). In none of
    these killings is there any evidence of provocation or of
    homicide committed out of passion or rage. In each
    case, except Whalen, the murder occurred in the court
    of a robbery that was deliberately planned and carried
    out with the use of deadly weapons. In each case, the
    perpetrators of these crimes offered no extenuating
    circumstance for taking the life of another.
    Riley 
    I, 496 A.2d at 1027
    .
    Riley challenges this finding on two grounds. First, he
    points to the fact that two of the death sentences relied on
    -- Rush and Whalen -- had been vacated. Second, he
    argues that the remaining cases -- Deputy, Bailey, and
    Flamer -- do not furnish appropriate comparisons because
    each involved the killing of more than one person. He
    maintains that these errors violated the Eighth and
    Fourteenth Amendments.
    It is clear that proportionality review is not required by
    the federal Constitution. See Pulley v. Harris , 
    465 U.S. 37
    ,
    50-51 (1984). Riley justifies advancing his proportionality
    argument in federal court on two grounds.8 First, he argues
    that the allegedly improper review resulted in a punishment
    that was "inherently disproportionate and, therefore,
    arbitrary and capricious" in violation of the Eighth
    Amendment. Appellant's Br. at 56. Second, he argues that
    _________________________________________________________________
    8. Ordinarily, federal habeas relief is not available for an error of
    state
    law: the habeas statute provides that a writ disturbing a state court
    judgment may issue only if a prisoner is in custody"in violation of the
    Constitution or laws or treaties of the United States." 28 U.S.C.
    S 2241(c)(3). See Pulley v. Harris, 
    465 U.S. 37
    , 41 (1984).
    70
    Delaware's failure to abide by its own statutory scheme for
    proportionality review violated due process. See Fetterly v.
    Paskett, 
    997 F.2d 1295
    , 1300 (9th Cir. 1993) ("the failure
    of a state to abide by its own statutory commands may
    implicate a liberty interest protected by the Fourteenth
    Amendment against arbitrary deprivation by a state").
    Riley bases his first argument on the principle that"[i]f a
    State has determined that death should be an available
    penalty for certain crimes, then it must administer the
    penalty in a way that can rationally distinguish between
    those individuals for whom death is an appropriate
    sanction and those for whom it is not." Spaziano v. Florida,
    
    468 U.S. 447
    , 460 (1984). Riley claims that the
    proportionality review conducted by the Delaware Supreme
    Court in his case failed to protect him from arbitrary
    imposition of the death penalty, and in fact upheld a
    disproportionate punishment. This argument rests on the
    premise that applying the death penalty in Riley's case
    would be so disproportionate as to constitute cruel and
    unusual punishment under the Eighth Amendment.
    Therefore, Riley's argument really attacks the imposition of
    the penalty itself, rather than the state's method of
    reviewing proportionality.
    Riley's argument is not tenable. The Supreme Court has
    "occasionally struck down punishments as inherently
    disproportionate, and therefore cruel and unusual, when
    imposed for a particular crime or category of crime." 
    Pulley, 465 U.S. at 43
    . However, in this case, Riley's crime--
    killing a defenseless person without provocation in the
    course of an armed robbery -- is not such that application
    of the death penalty in these circumstances would"shock
    the conscience." See Lindsey v. Smith, 
    820 F.2d 1137
    , 1154
    (11th Cir. 1987); Spinkellink v. Wainwright, 
    578 F.2d 582
    ,
    606 n.28 (5th Cir. 1976). Riley has thus failed to show an
    Eighth Amendment violation.
    Riley's second argument is based on the principle that
    when a state creates a right, the Due Process clause of the
    Fourteenth Amendment entitles a defendant to procedures
    to ensure that the right is not arbitrarily denied. He argues
    that the Delaware Supreme Court, by failing to conduct an
    71
    adequate proportionality review as required by state
    statute, denied him due process.
    As a threshold matter, it is unclear whether, under Third
    Circuit law, a state proportionality-review statute creates
    any cognizable liberty interest for due process purposes.
    See Frey v. Fulcomer, 
    132 F.3d 916
    , 925 n.7 (3d Cir. 1997)
    (noting that Supreme Court precedent on this issue is in
    flux). We need not address this question, however, because
    even if Riley has such a liberty interest, he has not shown
    any denial of due process. In evaluating a claim that a state
    court erred in conducting its proportionality review, a
    federal court may only inquire into whether the state court
    "undertook its proportionality review in good faith and
    found that [the defendant's] sentence was proportional to
    the sentences imposed in cases similar to his." Walton v.
    Arizona, 
    497 U.S. 639
    , 656 (1990). Because there is no
    federal constitutional right to proportionality review, if the
    federal court finds that the review was undertaken in good
    faith, it cannot "look behind" the state court's conclusion of
    proportionality to consider whether the state court
    misapplied state proportionality law. See id.; Bannister v.
    Delo, 
    100 F.3d 610
    , 627 (8th Cir. 1996). In this case, the
    Delaware Supreme Court compared Riley's case with a
    substantial number of other death-eligible cases, and, even
    disregarding the two vacated death sentences, it found
    common characteristics between Riley's case and three
    other cases in which the sentence was not vacated.
    Although Riley argues that these cases are not entirely
    analogous, because each contained an additional
    aggravating factor (more than one victim), there is no
    indication that the Delaware court acted in bad faith in
    conducting its review. We are thus without power to order
    habeas relief.
    XI.
    We now turn to Riley's contentions concerning jury
    instructions given by the trial judge at the sentencing
    phase.
    A.
    Riley argues that the jury instructions at the penalty
    phase impermissibly restricted the jury's consideration of
    72
    mitigating circumstances. He takes issue with the following
    instruction, issued at the start of the penalty hearing:
    A sentence of death shall not be imposed unless the
    jury finds:
    (1) Beyond a reasonable doubt at least one statutory
    aggravating circumstance; and
    (2) Unanimously recommends, after weighing all
    relevant evidence in aggravation or mitigation
    which bears upon the particular circumstances or
    details of the commission of the offense and the
    character and propensities of the offender, that a
    sentence of death shall be imposed. Where the
    jury submits such a finding and recommendation,
    the Court shall sentence the defendant to death. A
    finding by the jury of a statutory aggravating
    circumstance, and a consequent recommendation of
    death, supported by the evidence, shall be binding
    on the Court.
    App. 392 (emphasis added). Riley contends that, given the
    placement of the word "consequent," "a reasonable jury
    could understand the underscored sentence to mean that
    the effect of a finding that a statutory aggravating
    circumstance existed, is that the death penalty must be
    imposed." Appellant's Br. 59. Because the trial judge had
    previously informed the jury that the statutory aggravating
    circumstance -- commission of the murder during a
    robbery -- had already been proven beyond a reasonable
    doubt in the guilt phase, Riley argues that a reasonable
    jury could have read the instruction to mean that it need
    not consider mitigation evidence.
    When reviewing a jury instruction that is claimed to
    impermissibly restrict a jury's consideration of relevant
    evidence, a court must ask "whether there is a reasonable
    likelihood that the jury has applied the challenged
    instruction in a way that prevents the consideration of
    constitutionally relevant evidence." Boyde v. California, 
    494 U.S. 370
    , 380 (1990). If there is "only a possibility" of such
    inhibition, however, the challenge must fail. Id . Moreover,
    the challenged instructions "must be evaluated not in
    73
    isolation but in the context of the entire charge." Jones v.
    United States, 
    527 U.S. 373
    , 391 (1999).
    When the jury charge is read as a whole, there is no
    reasonable likelihood that a jury could have understood it
    to preclude consideration of mitigating circumstances. At
    the close of the penalty hearing, the court again instructed
    the jury in terms that cleared up any ambiguity that might
    have been present in its earlier instruction:
    In conclusion, a sentence of death shall not be imposed
    unless you, the jury, find:
    (1) Beyond a reasonable doubt at least one statutory
    aggravating circumstance has been established;
    and
    (2) Unanimously recommend that a sentence of death
    be imposed after weighing all relevant evidence in
    aggravation and mitigation which bear upon the
    particular circumstances and details of the
    commission of the offense and the character and
    propensities of the offender.
    Should you fail to agree unanimously to either of these
    two matters, the Court shall sentence the defendant to
    life imprisonment without benefit of probation or
    parole.
    App. 438-40 (emphasis added).
    This instruction made it clear that a jury was required
    both to find at least one statutory aggravator and to weigh
    aggravating factors against mitigating factors in order to
    support a death sentence. This belies Riley's argument that
    the jury was misled into believing that its job was done
    once the felony murder aggravator was found.
    B.
    Riley next takes issue with the trial court's failure at the
    penalty phase to instruct the jury that it was required to
    conclude unanimously that aggravating circumstances
    outweigh mitigating circumstances before imposing death,
    as required by Delaware law. See Whalen v. State , 
    492 A.2d 552
    , 560 (Del. 1985) (setting forth "outweighing" standard).
    74
    Rather, the court simply instructed the jury that it had to
    "[u]nanimously recommend that a sentence of death be
    imposed after weighing all relevant evidence in aggravation
    and mitigation." App. 438; see also App. 392, 437.
    This argument provides no grounds for habeas relief. The
    federal Constitution does not require "specific standards for
    balancing aggravating against mitigating circumstances."
    Zant v. Stephens, 
    462 U.S. 862
    , 876 n.13 (1983). As long as
    a jury is permitted to consider all relevant mitigating
    circumstances in making its death recommendation, there
    is no federal constitutional problem. In addition, Riley has
    not suggested how a jury's decision would be any different
    under the language the court used in this case. Because
    the jury was instructed not to make a sentencing
    recommendation until after it had "weigh[ed] all relevant
    evidence in aggravation and mitigation," the necessary
    inference was that the death penalty should be imposed
    only if aggravating factors outweighed mitigating factors
    (otherwise, the entire "weighing" process would be
    meaningless).
    C.
    Finally, Riley argues that the penalty phase instructions
    improperly suggested that the jury had to be unanimous in
    imposing a life sentence, in violation of Whalen v. State,
    
    492 A.2d 552
    , 562 (Del. 1985). He points to the instruction
    that "[i]f you are not unanimous in your recommendation to
    impose the death penalty, or you cannot agree unanimously
    as to your recommendation, then the Court is bound to
    impose a sentence of life." App. 438 (emphasis added). The
    word "recommendation" in the underlined phrase, he
    suggests, could be read to refer to a life sentence
    recommendation as well as to a recommendation of death.
    As a threshold issue, the government argues that Riley
    failed to raise this issue before the District Court because
    he based his argument there "solely on the interpretation of
    the interrogatories posed to the jury" rather than on the
    jury instruction he points to here. Appellee's Br. at 75.
    However, Riley, although pointing specifically to the
    interrogatories to support his point, nevertheless raised the
    75
    general argument in his amended petition that "the
    instructions were likely to confuse the jury about whether
    the verdict must be unanimous." App. 1191. This is
    sufficient to preserve his argument before this Court.
    On the merits, however, Riley's claim must fail. First,
    when the jury charge is viewed as a whole, it reveals several
    instances in which the word "unanimous" was explicitly
    paired solely with the death recommendation. In light of
    this pattern, it appears unlikely that the jury would have
    viewed the isolated passage that Riley relies on as
    extending the unanimity requirement to a recommendation
    of life imprisonment. Second, the Delaware Supreme Court,
    in reviewing this allegation, stated that it was"satisfied that
    the jury understood that, in the event of its failure to
    unanimously agree upon imposition of a death penalty, an
    imposition of life imprisonment would result." Riley 
    V, 585 A.2d at 725
    . Because the instruction made clear that the
    default rule in case of a lack of unanimity was life
    imprisonment, it is hard to see how the jury's deliberations
    would have been affected even had it adopted Riley's
    interpretation of the instruction. Finally, the challenged
    instruction was identical to one approved by the Delaware
    Supreme Court in Flamer v. State, 
    490 A.2d 104
    (Del.
    1984), aff 'd sub nom. Flamer v. Delaware, 
    68 F.3d 710
    (3d
    Cir. 1995) and Flamer v. Delaware, 
    68 F.2d 736
    (3d Cir.
    1995) (en banc). The Delaware Supreme Court explicitly
    pointed to the similarities with Flamer, and distinguished
    the instructions from those in Whalen, in upholding the
    death sentence on direct appeal. See 
    Riley, 585 A.2d at 722-25
    . For these reasons, we reject Riley's claim.
    XII.
    Riley was convicted of intentional murder and felony
    murder, with the underlying felony being first-degree
    robbery. The statutory aggravating circumstance relied on
    for the death sentence was that the murder was committed
    while Riley was engaged in the commission of first degree
    robbery. See 
    11 Del. C
    . S 4209(e)(1)(j) (establishing felony
    murder aggravator). Riley argues that it is unconstitutional
    to double-count robbery as both an element of the crime
    76
    (felony murder) that made Riley death-eligible and as a
    statutory aggravating circumstance.
    This Court rejected precisely the same claim in Deputy v.
    Taylor, 
    19 F.3d 1485
    ,1502 (3d Cir. 1994), holding that
    "within the context of Delaware's death penalty statute, the
    provision requiring the double-counting of the felony at the
    guilty phase and sentencing phase does not impermissibly
    weaken the statute's constitutionally mandated narrowing
    function." This precedent binds our panel.
    XIII.
    Riley's final argument is that the District Court erred in
    denying his motion for funds for investigative and expert
    assistance and in refusing to conduct an evidentiary
    hearing. We disagree.
    A.
    Under 18 U.S.C. S 3006A(e) and 21 U.S.C. S 848(q)(4)(B)
    and (9), Riley was entitled to investigative and expert
    assistance upon a finding that such assistance was
    "necessary" or "reasonably necessary" with respect to his
    representation in the habeas proceeding. Riley sought the
    services of an investigator to gather additional evidence
    concerning his childhood experiences. He sought the
    services of a forensic psychiatrist to develop further
    mitigating evidence concerning his mental problems. All of
    these services were requested in order to support Riley's
    arguments that his trial attorney was ineffective at the
    penalty phase and that the trial judge should have
    appointed a co-counsel and investigator to assist him.
    Riley has not shown that the services in question were
    "necessary" or "reasonably necessary." The discovery at the
    time of the federal habeas proceeding of new evidence about
    Riley's childhood would not have shown that the efforts of
    Riley's trial attorney to locate family members who might
    have testified about such matters were objectively
    unreasonable. See pages 
    38-41, supra
    . Nor would the
    discovery of such evidence have demonstrated that it was
    strategically unreasonable for Riley's trial attorney to
    77
    eschew a penalty-phase defense based on Riley's"social
    history." See 
    id. Similarly, the
    development of additional
    evidence regarding Riley's mental condition at the time of
    the federal habeas proceeding would not have shown that
    Riley's trial attorney was objectively unreasonable in not
    seeking a mental examination prior to the penalty. See
    pages 
    41-43, supra
    .
    B.
    "Where the District Court denies the petition for a writ of
    habeas corpus in the absence of an evidentiary hearing," we
    ask, first, "whether the petitioner asserts facts which entitle
    him to relief " and, second, "whether an evidentiary hearing
    is needed." Todaro v. Fulcomer, 
    944 F.2d 1079
    , 1082 (3d
    Cir. 1991). See also Heiser v. Ryan, 
    951 F.2d 559
    , 561 (3d
    Cir. 1991). Riley argues that the District Court should have
    held an evidentiary hearing concerning the prosecution's
    peremptory challenges, the impartiality of the jury, his
    Brady claim, and other unspecified issues. We disagree. As
    previously discussed, we are required to accept the state
    courts' findings regarding the peremptory challenges and
    the impartiality of the jury, and those findings are
    dispositive. Thus, an evidentiary hearing in federal court on
    those matters was not needed. In addition, in light of the
    revelation after briefing that no conversation in which
    Baxter participated is listed in the logs of the wiretap on
    Mrs. Baxter's telephone, it is clear that there was no need
    for an evidentiary hearing concerning Riley's Brady claim.
    Nor do we believe that the District Court was an evidentiary
    hearing was needed on any other matter.
    78
    BECKER, Chief Judge, Concurring in the Judgment.
    This en banc appeal ultimately turns on the petitioner's
    Batson claim. Unfortunately, I find myself unable to join in
    either Judge Sloviter's or Judge Alito's opinion on that issue.1
    First, I cannot agree with Judge Sloviter's treatment of
    the prosecution's challenge to prospective juror Nichols.
    Rather, I agree with Judge Alito's opinion on this issue, see
    Dis. Op. at 83-91, largely because I do not share Judge
    Sloviter's skepticism of the prosecutor's testimony as to
    Nichols's "significant pause." Human memory can be quite
    powerful, and I think it entirely possible that this
    "significant pause" became indelibly etched in the
    prosecutor's mind. As explicated by the dissent, the hearing
    judge determined that the prosecutor's testimony on this
    matter was credible, and I cannot agree that the race-
    neutral reason proffered for striking Nichols was"not fairly
    supported by the record." 28 U.S.C. S 2254(d)(8) (1988).
    On the other hand, while the point is quite close, I
    cannot bring myself to join Judge Alito's discussion of the
    challenge to prospective juror McGuire. Unlike the
    challenge to Nichols, an action for which the prosecutor
    relied on his memory to articulate a race-neutral
    explanation, the prosecutor had no recollection whatsoever
    about the differences between McGuire and Reed. I
    therefore agree with Judge Sloviter that there is no basis in
    the record for distinguishing McGuire, a prospective black
    juror who was struck, from Reed, a white man who was not
    struck and who ultimately served on the jury. While ideally
    this issue would be developed further at a federal habeas
    hearing, I reluctantly conclude, again agreeing with Judge
    Sloviter, that no purpose would be served by having such
    a hearing at this late date. Accordingly, I will join in the
    judgment accompanying her opinion.
    While I might end at this point, I am impelled to
    comment on the statistical evidence by reason of the
    prominent discussion of the issue in the Sloviter and Alito
    opinions, and the fact that Judge Alito's dissent identifies
    _________________________________________________________________
    1. I do, however, join in Part II of Judge Alito's opinion, dealing with
    the
    Caldwell issue.
    79
    significant problems with Judge Sloviter's discussion of that
    evidence. I feel myself unable to join in Judge Alito's
    opinion on that facet of the case for he has not allayed my
    concern about the practices of the Kent County
    prosecutor's office at times relevant here. Specifically, the
    absence of black jurors on four juries in a county that was
    18% black and had a jury venire that was 9% black
    remains troubling. As the Supreme Court has observed in
    other contexts when presented with perhaps imperfect
    statistical data, "[F]ine tuning of the statistics could not
    have obscured the glaring absence of minoriti[ies]. . . . [T]he
    . . . inability to rebut the inference of discrimination came
    not from a misuse of statistics, but from the inexorable
    zero." Int'l Bhd. of Teamsters v. United States, 
    431 U.S. 324
    ,
    342 n.23 (1977) (internal quotations omitted).
    This concern is exacerbated for me by the State's failure
    to submit rebuttal evidence. If Riley's data was too weak to
    support an inference of discrimination in the face of the
    prosecutor's race-neutral explanations, there was no
    burden on the government to submit rebuttal data.
    However, as Judge Sloviter's discussion of the chronology of
    events makes clear, the State volunteered to provide
    rebuttal data, and then failed to do so. See Op. of the Court
    at 38. If the hearing judge had acknowledged the State's
    failure to provide evidence notwithstanding its promise and
    then specifically said that he did not consider this failure to
    be sufficiently probative to overcome the credibility
    determination, his factual conclusion would be fait
    accompli. But the fact that the hearing judge did not
    mention the State's failure to provide evidence, in the wake
    of the "volunteering," sticks out like a sore thumb, and
    renders it doubtful for me that the "record as a whole"
    supports the hearing judge's conclusion.
    Judge Sloviter seems to concede that a federal habeas
    hearing would give Riley ample time to conduct an expert
    statistical analysis of the complete record, time which he
    lacked at the earlier hearing, as she explains, because of
    the State's late decision not to submit any statistical
    evidence. See Op. of the Court at 38. Were the statistical
    evidence dispositive of Riley's Batson claim, I would remand
    for a federal habeas hearing. Judge Sloviter, however,
    80
    states that the statistical evidence is "relevant but not
    dispositive to our decision." Op. of the Court at 40. Because
    I accept her representation on this matter, I do not press
    the issue further, and simply join in the judgment
    accompanying her opinion.2
    _________________________________________________________________
    2. I note that, even if I did not agree with Judge Sloviter on the juror
    McGuire issue, the judgment accompanying her opinion is plainly closer
    to my own position than the views of Judge Alito. Under these
    circumstances, I would vote with her anyhow to avoid a stalemate. See
    Screws v. United States, 
    325 U.S. 91
    , 134 (1945) (Rutledge, J.,
    concurring); see also Olmstead v. L.C., 
    527 U.S. 581
    , 607-08 (1999)
    (Stevens, J., concurring); Bragdon v. Abbott, 
    524 U.S. 624
    , 656 (1998)
    (Stevens, J., concurring); AUSA Life Ins. Co. v. Ernst & Young, 
    206 F.3d 202
    , 225 (2d Cir. 2000) (Jacobs, J., concurring).
    81
    ALITO, Circuit Judge, with whom Judges SCIRICA, BARRY,
    FUENTES and STAPLETON join as to Part I, and with
    whom Chief Judge BECKER, and Judges BARRY, and
    STAPLETON join as to Part II, dissenting:
    This is a troubling case, but after considering all of the
    petitioner's arguments and applying the standard of review
    prescribed by the federal habeas statute, I see no ground
    for reversing the decision of the district court. The majority
    holds that the petitioner's rights under Batson v. Kentucky,
    
    476 U.S. 79
    (1986), were violated, but I do not believe that
    there is a proper basis for disturbing the credibility findings
    made by the conscientious state judge. The majority also
    holds that comments made by the prosecutor in closing
    argument at the penalty phase of the trial violated Caldwell
    v. Mississippi, 
    472 U.S. 320
    (1985), but in my view the
    majority misinterprets that decision as in effect embodying
    a per se prohibition against any mention of the availability
    of appellate review of a death sentence, a procedure of
    which virtually all jurors are surely aware. Because I
    cannot agree with the majority's analysis of either of these
    issues, I must respectfully dissent.
    I.
    A.
    I turn first to the argument that the prosecution violated
    Batson by using peremptory challenges to strike three
    African Americans from the jury panel. In Batson , the
    Supreme Court held that it is a violation of the Equal
    Protection Clause for a prosecutor to strike a juror because
    of race. The Court also set out a three-step process for
    adjudicating a claim that a particular peremptory was
    racially based.
    [O]nce the opponent of a peremptory challenge has
    made out a prima facie case of racial discrimination
    (step one), the burden of production shifts to the
    proponent of the strike to come forward with a race-
    neutral explanation (step two). If a race-neutral
    explanation is tendered, the trial court must then
    decide (step three) whether the opponent of the strike
    82
    has proved purposeful racial discrimination. Hernandez
    v. New York, 
    500 U.S. 352
    , 358-359 (1991)(plurality
    opinion); 
    id., at 375
    (O'CONNOR, J., concurring in
    judgment); Batson, [476 U.S.] at 96-98.
    Purkett v. Elem, 
    514 U.S. 765
    , 767 (1995)(per curiam).
    In this case, the Superior Court found that the petitioner,
    William Riley, made out a prima facie case, see Riley v.
    State, No. 200, 1988 (Super. Ct. April 21, 1989) at 2, and
    the state does not dispute this point. The state offered race-
    neutral justifications for its contested strikes, and the state
    courts accepted those explanations and found that the
    disputed peremptories were not racially based. 
    Id. at 3-6;
    Riley v. State, 
    585 A.2d 719
    , 725 (Del. Sup. Ct. 1990). The
    majority however, rejects the state courts' findings
    regarding two of the state's peremptories and substitutes
    its own contrary findings. I will discuss each of the
    challenges on which the majority relies.1
    B: Ray Nichols
    1. The prosecutor testified that he struck Nichols
    because he was uncertain that Nichols would be able to
    vote for a death sentence. See App. 797-99. According to
    the prosecutor's testimony, "there was a pause and a
    significant pause in [his] answering [the trial judge's]
    inquiry and that to me was enough to suggest that he
    might not be able to return a death penalty." 
    Id. Having heard
    the prosecutor's testimony, the judge who presided
    over the Batson hearing [hereinafter"the hearing judge"],
    concluded: "I find the State provided a credible, race-
    neutral reason for exercising its peremptory challenge after
    appraising the demeanor and credibility of the juror. The
    State's exercise of its peremptory challenge was non-
    discriminatory. I am satisfied that the peremptory challenge
    was not made on the ground of the juror's race." 
    Id. at 889.
    _________________________________________________________________
    1. Riley also contends that a third member of the venire, Lois Beecher,
    was peremptorily challenged by the state because of race. The majority,
    however, does not rely on this strike, and accordingly I do not discuss
    it in this opinion.
    83
    Riley suggests that it is not believable that the prosecutor
    was able to remember at the time of the evidentiary hearing
    in 1988 that Nichols had paused while answering a
    question during voir dire six years earlier. In addition, Riley
    contrasts the prosecutor's ability to remember this pause
    with his inability to remember another potentially
    significant aspect of the jury selection process, and Riley
    notes that the prosecutor was a friend and neighbor of the
    victim. These facts were highlighted during the cross-
    examination of the prosecutor at the Batson hearing, see
    App. 820-29, and I agree that they were important factors
    to be considered in assessing the prosecutor's credibility.
    The hearing judge was aware of these facts and had the
    opportunity to observe the prosecutor testify on the witness
    stand. Despite these facts, however, the hearing judge
    found that the prosecutor's testimony was credible.
    Our standard of review of the hearing judge's finding is
    narrow. In Batson, the Supreme Court took pains to note
    that "[s]ince the trial judge's findings in the context under
    consideration here will largely turn on evaluation of
    credibility, a reviewing court ordinarily should give those
    findings great deference." 
    Batson, 476 U.S. at 98
    n.21. In a
    later case applying Batson, the plurality elaborated:
    In the typical peremptory challenge inquiry, the
    decisive question will be whether counsel's race-neutral
    explanation for a peremptory challenge should be
    believed. There will seldom be much evidence bearing
    on that issue, and the best evidence often will be the
    demeanor of the attorney who exercised the challenge.
    . . . [E]valuation of the prosecutor's state of mind based
    on demeanor and credibility lies ``peculiarly within a
    trial judge's province.'
    Hernandez v. New York, 
    500 U.S. 352
    , 353 (1991) (pluralty)
    (citation omitted).
    Because the present case is a proceeding under the
    federal habeas statute, our scope of review is, if anything,
    even narrower. Under 28 U.S.C. S2254(d)(8)(1988 & Supp.
    1990), any state-court factual finding that is "fairly
    supported by the record" is entitled to a presumption of
    correctness. Discussing this provision, the Supreme Court
    84
    wrote in Marshall v. Lonberger, 
    459 U.S. 422
    , 434 (1983),
    that "28 U.S.C. S 2254(d) gives federal habeas courts no
    license to redetermine credibility of witnesses whose
    demeanor has been observed by the state trial court, but
    not by them." Accord, Rushen v. Spain, 
    464 U.S. 114
    , 122
    n.6 (1983)(per curiam). The Marshall Court elaborated:
    In United States v. Oregon Medical Society, 
    343 U.S. 326
    (1952), commenting on the deference which this
    Court gave to the findings of a District Court on direct
    appeal from a judgment in a bench trial, we stated:
    "As was aptly stated by the New York Court of
    Appeals, although in a case of a rather different
    substantive nature: ``Face to face with living
    witnesses the original trier of the facts holds a
    position of advantage from which appellate judges
    are excluded. In doubtful cases the exercise of his
    power of observation often proves the most
    accurate method of ascertaining the truth. . . . How
    can we say the judge is wrong? We never saw the
    witnesses. . . . To the sophistication and sagacity of
    the trial judge the law confides the duty of
    appraisal.' Boyd v. Boyd, 
    252 N.Y. 422
    , 429,169
    N.E. 632." 
    Id., at 339.
    We greatly doubt that Congress, when it used the
    language "fairly supported by the record" considered
    "as a whole" intended to authorize broader federal
    review of state court credibility determinations than are
    authorized in appeals within the federal system 
    itself. 459 U.S. at 434
    . See also 
    Purkett, 514 U.S. at 769
    .
    Under the very limited scope of review that applies here,
    I do not see how the hearing judge's finding that the
    prosecutor testified truthfully regarding the reason for
    challenging Nichols can be overturned. The hearing judge
    heard the prosecutor testify. He was aware of the factors
    noted above that provided grounds for doubting his
    testimony, but he nevertheless found that the prosecutor
    was truthful. I would sustain that finding.
    2. The majority rejects that finding (as well as the state
    courts' finding with respect to another prospective juror
    85
    whom I discuss below) in large part because, in the
    majority's view, "there is no basis to determine if the state
    courts undertook, or even were aware of, the required
    Batson step three inquiry." Maj. Op. at 36. In making this
    argument, the majority (a) misunderstands what Batson
    requires, (b) ignores what the Delaware courts did in this
    case, (c) imposes novel and unwarranted procedural
    requirements on the state courts, and (d) awards relief that
    extends beyond what its own logic warrants.
    What step three of Batson requires. Although the majority
    makes step three seem elaborate and elusive -- so elusive
    that, according to the majority, the Delaware courts may
    not have "fully appreciated the requirement" (Maj. Op. at
    32) -- step three, is neither conceptually difficult nor
    procedurally complicated. Step three simply requires the
    judge to make a finding of fact -- "to determine if the
    defendant has established purposeful discrimination,"
    
    Batson, 476 U.S. at 98
    (footnote omitted). See also 
    Purkett, 514 U.S. at 767
    ; 
    Hernandez, 500 U.S. at 358-59
    (plurality
    opinion); 
    id. at 375
    (O'Connor, J., concurring in judgment).
    Neither Batson nor any subsequent Supreme Court or
    Third Circuit case has added to this requirement.
    What the Delaware courts did. The Delaware courts did
    exactly what step three requires. With respect to potential
    juror Nichols, the hearing judge, whose analysis the state
    supreme court endorsed, 
    see 585 A.2d at 725
    , noted that
    the state had provided a race-neutral reason for the
    challenge, stated that he found the explanation credible,
    and concluded: "I am satisfied that the peremptory
    challenge was not made on the ground of the juror's
    race."2 This is precisely the finding that step three of
    Batson mandates. See 
    Batson, 476 U.S. at 98
    (the court
    has "the duty to determine if the defendant has established
    purposeful discrimination").
    What the majority requires. Although the majority opinion
    is loathe to admit it, what the majority really finds wanting
    in the opinions of the Delaware courts is not a failure to
    make the finding mandated by step three of the Batson
    _________________________________________________________________
    2. The state courts' findings regarding the other potential juror at
    issue,
    Charles McGuire, are discussed below. See infra at 91-93.
    86
    inquiry but a failure to comment on the record regarding
    evidence that seems, in the majority's view, to undermine
    the prosecution's proffered explanations for the disputed
    peremptories. See Maj. Op. at 29 ("the state courts in this
    case rejected Riley's Batson claim without discussing any of
    the ample evidence that throws into question the
    explanations offered by the prosecutor for striking two of
    the black jurors . . . .").3 This approach is inconsistent with
    the federal habeas statute and Supreme Court precedent.
    The provision of the federal habeas statute on which the
    majority relies provides that if a state court's
    "determination after a hearing on the merits of a factual
    issue" is "evidenced by a written finding, written opinion, or
    other reliable and adequate written indicia," that
    determination "shall be presumed to be correct" unless it is
    not "fairly supported by the record" as a whole. 28 U.S.C.
    S2254(d)(8)(1988 & Supp. 1990)(amended 1996). Under this
    provision, the state court's factual determination must
    simply be evidenced by "a written finding, written opinion,
    or other reliable and adequate written indicia," and it is not
    even necessary that a state court "specifically articulate its
    credibility findings." LaVallee v. Delle Rose , 
    410 U.S. 690
    ,
    692 (1973). See also Marshall v. 
    Lonberger, 459 U.S. at 433
    . Thus, 28 U.S.C. S 2254(d) plainly does not authorize
    us to disregard a state court's factual finding on the ground
    that the state court failed to discuss all the evidence or to
    explain why it was not persuaded by a particular piece of
    proof.
    I do not question that a judge, in making the factual
    finding required by step three of Batson, should consider all
    _________________________________________________________________
    3. See, e.g., Maj Op. at 18 ("With regard to both Nichols and McGuire,
    the state courts failed to mention in their opinions the weaknesses in the
    State's explanations . . . ."); 
    id. at 20
    ("[T]he hearing judge discussed
    neither the statistics nor the State's failure to explain them[,] . . .
    overlooking and ignoring a significant segment of Riley's evidence . . .
    .");
    
    id. at 21
    (hearing judge made no "reference to, or analysis of, Riley's
    evidence of pretext"); 
    id. at 28
    ("Here, the state courts failed to
    examine
    all of the evidence to determine whether the State's proffered race-
    neutral explanations were pretextual. Not only is there no indication on
    the record that the hearing judge engaged in the required analysis, but
    there is no indication that the Delaware Supreme Court did so.").
    87
    of the relevant evidence that has been adduced. But neither
    Batson nor any later Supreme Court or Third Circuit case4
    suggests that a federal habeas court is free to reject the
    factual findings of a state court if the state court does not
    comment on all of the evidence or provide what the federal
    court regards as a satisfactory explanation for its finding.5
    _________________________________________________________________
    4. The only Third Circuit case cited in this connection by the majority
    (see Maj. Op. at 35) is Jones v. Ryan, 
    987 F.2d 960
    (1993). Jones,
    however, was very different from the present case (see footnote nine,
    infra) and does not support the proposition that a finding of a state
    court
    is not entitled to the presumption of correctness if the state court did
    not
    explain why the court was not persuaded by particular items of evidence.
    5. Nor does the majority cite much other authority to support its
    position. See Maj. Op. at 28, 30, 34, 35. The majority (at 28) quotes
    dictum in a footnote in United States v. McMillon, 
    14 F.3d 948
    , 953 n.4
    (4th Cir. 1994)(emphasis added), to the effect that at step three of
    Batson
    "the court then addresses and evaluates all evidence introduced by each
    side." The reasons for not attaching too much weight to one word
    ("addresses") in this statement are too obvious to require mention.
    The majority cites two federal habeas cases in which courts of appeals
    found great fault with the procedures used by state judges in
    adjudicating Batson objections. In Jordan v. LeFevre, 
    206 F.3d 196
    (2d
    Cir. 2000), the court of appeals held that the trial judge "could not
    properly decide the third Batson step" because he "resisted counsel's
    efforts to make arguments regarding the peremptory strikes so as to
    create a full record" and instead "ruled summarily" after "an extremely
    brief colloquy." 
    Id. at 201.
    Likewise, in Coulter v. Gilmore, 
    155 F.3d 912
    (7th Cir. 1998), the court of appeals spent several pages describing the
    bizarre nature of the procedure used by the state trial court in ruling on
    Batson objections. 
    Id. at 9
    15-16, 918. The court of appeals ultimately
    concluded that the state court had not considered the totality of the
    relevant circumstances and thus ordered that the petitioner be released
    if the state court did not conduct a Batson hearing using "the proper
    methodology." 
    Id. at 9
    22. The procedures used by the Delaware courts
    in the present case bear no resemblance to the procedures found
    deficient in Jordan and Coulter.
    The majority also cites two appeals in which the Sixth Circuit
    remanded cases for the district courts to provide more complete
    explanations of Batson rulings. See United States v. Harris, 
    192 F.3d 580
    , 588 (6th Cir. 1999); United States v. Hill , 
    146 F.3d 337
    (6th Cir.
    1998). These, however, were direct federal appeals, not habeas
    proceedings initiated by state prisoners, and the relief ordered --
    remands for fuller explanation -- goes far beyond what the majority
    ordered here.
    88
    The majority confuses the obligation to consider all of the
    relevant evidence (something that a court should always do
    in making findings of fact) with the obligation to comment
    on all of the evidence (an obligation that we are not free to
    impose on state courts).
    In this case, as I have noted, there is no question that
    the state courts did precisely what step three of Batson
    required -- they made findings as to whether Riley had
    established purposeful discrimination. And they did so only
    after discovery and a thorough hearing. There is no reason
    to believe that the state courts did not consider all of the
    relevant evidence, including all of the evidence that the
    majority now finds persuasive. The Delaware courts simply
    did not comment on all of this evidence. (Judgments about
    credibility based on a witness's demeanor often do not lend
    themselves to such explanation). But the Delaware courts
    were not obligated to comment on all of the evidence. The
    majority in this case reviews the decisions of the Delaware
    courts as if they were decisions of a Social Security
    administrative law judge, who must, we have held,"give
    some reason for discounting the evidence she rejects."
    Plummer v. Apfel, 
    186 F.3d 422
    , 429 (3d Cir. 1999). The
    Delaware courts, however, are not to be treated as if they
    were federal administrative agencies.
    The majority's relief. Even if the majority were correct
    that the Delaware courts were obligated to explain on the
    record why they accepted the prosecution's explanations for
    its strikes and were not persuaded by Riley's evidence, that
    would hardly justify the relief that the majority orders --
    the granting of the writ unless Riley is re-tried. When a
    decision is found to be faulty for failure to provide an
    adequate explanation, the logical remedy is to remand so
    that an adequate explanation can be supplied. See, e.g.,
    Florida Power & Light Co. v. Lorion, 
    470 U.S. 729
    , 744
    (1985); Motor Vehicle Mfrs. Assn. v. State Farm Mut., 
    463 U.S. 29
    , 57 (1983). Here, however, the majority does not
    give the Delaware courts a chance to comply with the
    majority's newly found procedural requirements. Nor does
    the majority remand to the District Court for a hearing and
    findings specifically addressing the points that the majority
    views as important. Instead, the majority orders that the
    writ be granted unless Riley is re-tried.
    89
    How the state courts' failure to address Riley's evidence
    on the record can justify such relief is baffling. If the lack
    of explanations on the record is important to the majority's
    analysis, then the case should be remanded so that
    explanations may be provided. If no explanations on the
    record could satisfy the majority -- and I believe that to be
    the case -- then the majority's lengthy discussion of the
    inadequacy of the Delaware courts' opinions is beside the
    point.
    3. The majority's remaining reasons for rejecting the
    hearing judge's finding require little response. The majority
    notes that, although the prosecutor testified that Nichols
    paused, "the record reflects no such pause." Maj. Op. at 16.
    I have read many trial transcripts, and I do not recall any
    in which the court reporter noted that a witness had or had
    not paused before answering a question.
    The majority finds it significant that "despite Nichols'
    alleged pause, the prosecutors did not ask the trial court to
    remove Nichols for cause." Maj. Op. at 17. The majority
    raises the question "why if Nichols actually did pause ``a
    significant pause,' the state did not seek to have him
    removed for cause." 
    Id. Does the
    majority seriously believe
    that a prospective juror who pauses before answering a
    question about the death penalty may properly be removed
    for cause?
    The majority observes that "[t]he record does not show
    . . . that any of the contemporaneous notes kept by the
    prosecutors as to some of the jurors reflected either the
    existence of a pause or the concern about which[the
    prosecutor] testified six years later." Maj. Op. at 17. The
    prosecutor's notes, however, consist of a handwritten sheet
    with a few words or abbreviations scrawled next to the
    names of some of the prospective jurors. Nichols's name is
    not even on this sheet. The notes by no means record the
    reasons for all of the prosecution's strikes.
    I wish there were some scientific test that could
    determine with complete certainty whether Nichols paused
    and whether the prosecutor told the truth. Unfortunately,
    there is no such test. We must rely to a substantial degree
    on the ability of the judge who heard the prosecutor's
    90
    testimony to make an accurate assessment of his
    credibility. There is no question that the hearing judge took
    his responsibility seriously and made his finding in good
    faith. Our role under the federal habeas statute is to
    determine whether that credibility finding is "fairly
    supported by the record." It is.
    C: Charles McGuire.
    1. Riley's strongest Batson claim concerns the
    prosecution's strike of Charles McGuire. At trial, the
    prosecutor first used a peremptory challenge against
    McGuire and then immediately made the following
    application to the trial judge:
    [THE PROSECUTOR]: Your Honor, may I ask the
    Court to reconsider charging the State for that strike.
    This Mr. McGuire came to chambers yesterday and
    expressed his belief that he didn't know if he could last
    the two weeks [the estimated length of the trial], there
    was some problem with work. He was an inspector or
    something for the Department of Labor. I know he
    came in yesterday.
    THE COURT: I will not strike him for cause for that
    reason. He asked to be excused yesterday and I
    decided not to excuse him.
    App. 250.
    At the evidentiary hearing held before the hearing judge,
    the prosecutor testified that he struck McGuire because
    McGuire "had previously requested to be excused from jury
    service" and because the prosecutor "wanted attentive
    jurors" who were not worried about missing other
    obligations or activities while the trial took place. App. 801.
    The defense called McGuire as a witness at the
    evidentiary hearing. McGuire testified that he was employed
    by the State of Delaware as a Social Security "disability
    adjudicator," App. 846-47; that he had been reporting for
    jury duty in the courthouse in Dover for two to three weeks
    before he was questioned in connection with the Riley case
    but had not been seated on a jury, 
    id. at 852-53;
    that while
    he was away from work, the disability claims assigned to
    91
    him would "just sit[ ]," 
    id. at 850;
    that the director of his
    office had told him that he was going to make a"formal
    request" that McGuire be excused, 
    id. at 860;
    that such a
    request was sent, 
    id. at 853,
    856; and that the request had
    been discussed in chambers with the judge. Id . at 849-50,
    856. McGuire said, however, that he himself had never
    expressed an unwillingness to serve on the jury and had
    been willing to do so. See 
    id. at 850.
    The hearing judge accepted the prosecutor's explanation
    of the reason for striking McGuire. The hearing judge
    found:
    The State peremptorily challenged Charles McGuire
    because [the prosecutor] believed he requested to be
    excused from jury duty and, therefore, may have been
    unable or unwilling to serve for the entirety of the trial.
    . . . McGuire's employer sent a letter requesting he be
    released from jury duty because he could not be
    replaced at his job if he was chosen for jury duty. The
    letter by McGuire's employer clearly gave the State
    reason to question whether McGuire would give his full
    time and attention to the trial and whether he would
    be able to serve for the entirety of the time projected for
    the trial. Whether McGuire, in fact, did not request
    relief from jury duty and did wish to serve is of no
    consequence.
    Riley v. State, No. 200, 1988 at 4-5 (emphasis added). The
    hearing judge then noted that the state's explanation for
    striking McGuire, was "entirely unrelated to the juror's
    race," and the judge credited that explanation. 
    Id. at 5.
    Obviously, by crediting an explanation that was"entirely
    unrelated to the juror's race," the hearing judge necessarily
    found that Riley had not "established purposeful
    discrimination," 
    Batson, 476 U.S. at 98
    , and the hearing
    judge thus fully complied with Batson's step three.6
    Several factors provide substantial support for this
    finding. It is apparent that McGuire's work situation was on
    _________________________________________________________________
    6. The majority, however, incorrectly suggests (Maj. Op. at 33) that
    finding "the prosecutor to be credible" is different from finding that
    purposeful discrimination was not proved.
    92
    the prosecutor's mind when McGuire was peremptorily
    challenged because, as noted, immediately after striking
    McGuire, the prosecutor asked that McGuire's dismissal be
    deemed for cause since he had "expressed his belief that he
    didn't know if he could last the two weeks." App. 250. In
    addition, a reasonable prosecutor might well have wondered
    whether McGuire's work situation would adversely affect
    his attentiveness at trial. As noted, McGuire's supervisor
    had made a "formal request" that he be excused"because
    he could not be replaced at his job if he was chosen for jury
    duty."7 Whether or not McGuire himself in fact wished to
    serve on the jury, the impression apparently was conveyed
    that McGuire wanted to be excused and to return to work,
    since the trial judge commented: "He asked to be excused
    yesterday and I decided not to excuse him." See App. 250.
    Under these circumstances, a reasonable prosecutor could
    have been concerned that McGuire might have been
    inattentive at trial due to worry about missing work, leaving
    his duties unattended, and perhaps incurring his
    supervisor's displeasure.
    Riley attacks the hearing judge's finding on two grounds.
    First, he points out that, according to McGuire's testimony
    at the post-conviction relief evidentiary hearing, McGuire
    himself did not ask to be excused. This argument is
    unpersuasive. Although McGuire testified that he did not
    ask to be excused, the trial judge, as noted, stated at the
    time of McGuire's dismissal: "He asked to be excused
    yesterday and I decided not to excuse him." App. 250
    (emphasis added). Thus, McGuire, who was unable to
    remember many details at the time of the post-conviction
    relief evidentiary hearing, see 
    id. at 853,
    857-62, may have
    been mistaken, or he may have conveyed the impression at
    the time of trial that he personally wanted to be excused.
    Second, Riley points out that the handwritten sheet
    prepared by the prosecutors during voir dire contains the
    following notation next to the name of a white juror,
    Charles Reed, whom the prosecution did not peremptorily
    strike: "works Lowe's -- wants off." One of the prosecutors
    _________________________________________________________________
    7. Riley v. State, No. 200, 1988 at 4. See also App. 860 (McGuire's
    testimony at the evidentiary hearing).
    93
    was questioned about this notation by Riley's attorney at
    the post-conviction relief evidentiary hearing, but the
    prosecutor testified that he had no recollection of Reed. See
    App. 823-24.
    The notation by Reed's name and the prosecutor's
    testimony at the evidentiary hearing are certainly factors
    that the hearing judge could have viewed as tending to
    undermine the credibility of the prosecutor's explanation for
    striking McGuire, but the notation and the prosecutor's
    testimony are insufficient to show that the hearing judge's
    finding is not "fairly supported by the record." 28 U.S.C.
    S 2254(d). It is reasonable to infer from the notation "wants
    off " that, at some point in the jury selection process, Reed
    expressed a desire to be excused for some reason. As far as
    I am aware, however, the record does not establish why8 or
    how strongly Reed wanted to be excused. The transcript of
    the voir dire shows that, at the final stage of the jury
    selection process, the members of the venire were asked
    whether there was "any reason why [they] absolutely [could
    not] serve," App. 223; that members of the venire then
    successfully asked to be released for reasons such as a
    previously planned vacation, 
    id. at 253;
    but that Reed made
    no request to be excused at that time. See id . at 229-30.
    Thus, as far as the record appears to reveal, Reed may have
    had a relatively weak desire and reason to be excused, and
    his situation may not have been at all comparable in this
    respect to McGuire's.9
    _________________________________________________________________
    8. Although the notation "wants off " appears after the words "works at
    Lowe's," it is not clear that Reed's desire to be excused was related to
    his
    employment. The prosecutor's notes appear to contain notations of the
    employment of other jurors.
    9. Many decisions have held that Batson is not contravened simply
    because two jurors exhibit similar characteristics and one is excluded
    while the other is retained. See, e.g., Matthews v. Evatt, 
    105 F.3d 907
    ,
    918 (4th Cir. 1997); United States v. Spriggs , 
    102 F.3d 1245
    , 1255 (D.C.
    Cir. 1997); United States v. Stewart, 
    65 F.3d 918
    , 926 (11th Cir. 1995);
    United States v. Alvarado, 
    951 F.2d 22
    , 25 (2d Cir. 1991); United States
    v. Lance, 
    853 F.2d 1177
    , 1181 (5th Cir. 1988); United States v. McCoy,
    
    848 F.2d 743
    , 745 (6th Cir. 1988); United States v. Lewis, 
    837 F.2d 415
    ,
    417 n.5 (9th Cir. 1988).
    94
    As I have noted, our scope of review of the hearing
    judge's finding is narrow. Although it would be satisfying to
    know why Reed was not stricken, that unanswered
    question is not enough, in view of the "great deference"10
    owed the hearing judge's credibility determination, to
    demonstrate that the hearing judge's finding is not"fairly
    supported by the record."11 28 U.S.C. S 2254(d)(8) (1988 &
    Supp. 1990).
    In an effort to bolster its unusual decision to overturn the
    hearing judge's credibility finding, the majority points to a
    statement contained in the brief filed by the state in Riley's
    direct appeal. The majority writes:
    When Riley's direct appeal came before the Delaware
    Supreme Court in 1984, the State justified the use of
    race in selecting jurors in criminal trials. On that
    occasion, which was the State's first opportunity to
    defend the use of its peremptory challenges in Riley's
    trial, the State did not offer a single race-neutral
    explanation, not even as an alternate argument;
    instead, it claimed that it was permissible -- even
    socially desirable -- to exclude jurors based on what it
    called ``group association.' "
    Maj. Op. at 25 (quoting App. 896).
    This argument is not well taken. Responding to Riley's
    suggestion that the Delaware Supreme Court should
    hold that individual race-based peremptories were
    unconstitutional, the state's brief argued as follows:
    Because the Sixth Amendment does not support
    [Riley's argument] and the decision in Swain v.
    Alabama, 
    380 U.S. 202
    (1965), more appropriately
    recognizes how peremptory challenges, even those
    _________________________________________________________________
    10. 
    Batson, 476 U.S. at 98
    n.21.
    11. This case is very different from Jones v. Ryan, 
    987 F.2d 960
    (1993).
    There, exercising plenary review in the absence of any findings of fact by
    a state court, we held that Batson was violated where the prosecutor
    excluded a black juror who had a child approximately the same age as
    the defendant, while retaining a white juror who was similarly situated.
    
    Jones, 987 F.2d at 973
    . In the present case, we are limited to deciding
    whether the state court finding is fairly supported by the evidence.
    95
    exercised on the basis of group association, foster the
    constitutional goal of an impartial jury, the state
    asserts that no reversal is required here.
    App. 896-97 (footnotes omitted). Thus, the state's brief --
    which the lead trial prosecutor did not even sign-- merely
    urged the state supreme court to follow the reasoning of the
    United States Supreme Court in what was then the
    governing federal precedent. It is far-fetched to interpret the
    state's reliance on Swain as a tacit admission that its
    peremptories in this case were based on race -- particularly
    since, in a footnote to the sentence quoted above, the state
    was careful to deny that its challenges were racially based.12
    It is also unreasonable to draw an adverse inference
    against the state for not providing race-neutral
    explanations for its challenges in its appellate brief. Since
    there was no evidence in the record regarding the reasons
    for the strikes, the state could hardly have expected the
    state supreme court to base a decision on explanations
    provided without record support. The majority's arguments
    regarding the state's brief are insubstantial.
    The majority's reliance on statistical evidence is even
    worse. In the Batson proceeding before the hearing judge,
    Riley made a proffer that no African American had served
    on any of the three other first-degree murder trials that had
    occurred in Kent County within a year of his own and that
    in those cases the prosecution had peremptorily challenged
    five African Americans. The three other trials were those of
    Andre Deputy, an African American, and two whites, Daniel
    Pregent, who was acquitted, and Judith McBride, who was
    _________________________________________________________________
    12. The state's brief stated that it "emphatically denie[d] that the
    prosecutor exercised any of his challenges solely on the assumption that
    the juror's race, in the context of the facts of this case, indicated a
    verdict position adverse to the prosecution." App. 896. The majority
    seizes on the word "solely" in this sentence as a tacit admission that
    race
    played a part in the decision to exercise peremptories. In my view, it is
    wholly unreasonable to read that much into the word"solely." The
    Supreme Court in Batson itself used this same word in the same
    context. 
    See 476 U.S. at 89
    (emphasis added)("[T]he Equal Protection
    Clause forbids the prosecutor to challenge potential jurors solely on
    account of their race.").
    96
    convicted. With respect to these cases, no information was
    provided at the time -- and none has been provided since
    -- about the identities of the prosecutors who participated
    in jury selection, the racial makeup of the venire, or the
    race of jurors who were dismissed for cause or peremptorily
    challenged by the defense.
    In the trial of Andre Deputy, who was convicted and
    ultimately executed, the state struck four whites, one
    African American, and one person listed as "Indian."
    Deputy argued that the prosecution's peremptory challenge
    of the African American venireperson violated Batson. See
    Deputy v. Taylor, 
    19 F.3d 1485
    , 1492 (3d Cir. 1994).
    Deputy's Batson argument was rejected in the district court
    decision denying his petition for a writ of habeas corpus,
    and our court affirmed. See 
    id. at 1492.
    Since it has been
    held that no Batson violation was shown in Deputy, it is
    difficult to see how that case can be viewed as supporting
    Riley's argument here.
    In Pregent's case, the state struck four whites and one
    black. There is nothing before us to indicate that any
    Batson objection was made, and it is doubtful that the
    pattern of strikes exercised by the prosecution sufficed to
    make out a prima facie case.
    The remaining case is the prosecution of Judith McBride
    for murdering her husband. See McBride v. State , 
    477 A.2d 174
    (Del. 1984). The state exercised a total of 10 strikes, of
    which three were against potential jurors identified as black.13
    There is nothing to indicate that any Batson objection was
    made. Without in effect holding a Batson hearing, there is
    no way of determining whether any prosecution
    peremptories were based on race.
    Although Riley was represented at the Batson hearing by
    a professor of law and has been represented in the federal
    habeas proceeding by attorneys from one of the nation's
    leading law firms, no expert analysis of these statistics has
    ever been offered.14 According to the majority, however, the
    "sophisticated analysis of a statistician" is not needed to
    _________________________________________________________________
    13. According to Riley's statistics, five of those struck by the state
    were
    white, and the race of two is not provided.
    14. The majority's statement that "the procedural posture of the case"
    provided "no opportunity" for Riley to offer an expert analysis of his
    statistics (Maj. Op. at 38) is difficult to understand. What stopped Riley
    from offering the evidence of a statistician as to the significance of the
    scant statistics that Riley provided?
    97
    interpret the significance of these statistics. Maj. Op. at 19.
    "An amateur with a pocket calculator," the majority writes,
    can calculate that "there is little chance of randomly
    selecting four consecutive all white juries." 
    Id. Statistics can
    be very revealing -- and also terribly
    misleading in the hands of "an amateur with a pocket
    calculator." The majority's simplistic analysis treats the
    prospective jurors who were peremptorily challenged as if
    they had no relevant characteristics other than race, as if
    they were in effect black and white marbles in a jar from
    which the lawyers drew. In reality, however, these
    individuals had many other characteristics, and without
    taking those variables into account, it is simply not possible
    to determine whether the prosecution's strikes were based
    on race or something else.
    The dangers in the majority's approach can be easily
    illustrated. Suppose we asked our "amateur with a pocket
    calculator" whether the American people take right- or left-
    handedness into account in choosing their Presidents.
    Although only about 10% of the population is left-handed,
    left-handers have won five of the last six presidential
    elections.15 Our "amateur with a calculator" would conclude
    that "there is little chance of randomly selecting" left-
    handers in five out of six presidential elections. But does it
    follow that the voters cast their ballots based on whether a
    candidate was right- or left-handed?
    Whether even a careful multiple-regression analysis of
    peremptory challenge statistics in other cases would suffice
    to show that a Batson violation occurred in this case is
    unclear. Cf. McClesky v. Kemp, 
    481 U.S. 279
    (1987). Here,
    however, we have not been presented with any expert
    statistical evidence.
    The majority and the concurrence argue that an adverse
    inference should be drawn against the state for failing to
    come forward with data to rebut Riley's statistics. I see no
    basis for this approach. Whether an adverse inference
    should be drawn under particular circumstances based on
    _________________________________________________________________
    15. See "Forget Left-Wing. Say Hello to Left-Handed Politics," New York
    Times, Jan. 23, 2000.
    98
    a party's failure to produce evidence in a state proceeding
    is in the first instance a question of state law, and unless
    a state court's failure to draw such an inference in a
    particular case denies due process or a fair and adequate
    hearing, a federal habeas court should be reluctant to
    reject the state court's ruling. Cf. 28 U.S.C. S 2254 (6) and
    (7) (1988 & Supp. 1990) (amended 1996). Moreover, even if
    this were a collateral attack on a federal conviction, we
    would defer to the decision of the judge who conducted the
    hearing as to whether the circumstances justified the
    drawing of adverse inference and would reverse only if the
    judge committed an abuse of discretion. See, e.g., Bouzo v.
    Citibank, N.A., 
    96 F.3d 51
    , 60 (2d Cir. 2000).
    Here, the state courts' failure to draw such an inference
    certainly did not constitute an abuse of discretion. The
    state was never given notice that it had any obligation to
    provide additional data, and it is not at all clear what sort
    of evidence the majority expects the state to have provided.
    The information that is most critically lacking-- the
    prosecutors' reasons for striking the five African American
    venire members in the Deputy, McBride, and Pregent cases
    -- probably could not have been obtained without in effect
    conducting retrospective Batson hearings in those cases.
    Does the majority think that such a hearing would have
    been practical? Or does the majority think that the state
    should have retained am expert to analyze the state's use
    of peremptory challenges in some other set of cases? In
    order to make such an analysis, the expert probably would
    have needed detailed information about the prospective
    jurors whom the state did and did not strike -- e.g., their
    ages, marital status, education, occupations, and past
    experiences with law enforcement, to name just a few of the
    myriad variables that often figure in decisions about
    peremptory challenges. We have no indication that such
    information was available, and in any event, compiling and
    analyzing the data concerning a reasonable sample of cases
    could have been a massive undertaking. In my view, it is
    entirely unwarranted to hold that the state courts abused
    their discretion because they did not draw adverse
    inferences from the state's failure to volunteer to conduct
    such a study in response to the statistics that Riley
    proffered.
    99
    In sum, I see no ground for overturning the hearing
    judge's credibility findings. I would thus hold that the
    presumption of correctness has not been overcome and
    would reject Riley's Batson argument. The majority -- by in
    effect making its own credibility findings on the cold state
    court record -- seriously errs. See Marshall v. 
    Lonberger, 459 U.S. at 434
    .
    II.
    I now turn to the majority's holding that a remark made
    by the prosecutor in closing argument at the penalty phase
    of the trial violated Caldwell v. Mississippi , supra. In
    Caldwell, the defense attorney's closing argument asked the
    jury to "confront both the gravity and responsibility of
    calling for another's 
    death." 472 U.S. at 324
    . In response,
    the prosecutor took strong exception to the defense
    attorney's comments and stated:
    Now, they would have you believe that you're going to
    kill this man and they know -- they know that your
    decision is not the final decision. My God, how unfair
    can you be? Your job is reviewable. They know it. . . .
    For they know, as I know, and as [the judge] has told
    you, that the decision you render is automatically
    reviewable by the Supreme Court.
    
    Id. at 325-26
    .
    By a vote of five to three, the United States Supreme
    Court reversed the defendant's death sentence. The
    plurality opinion approved by four justices concluded that
    the prosecutor's comments were improper for two reasons:
    first, because the prosecutor's description of the state
    scheme of appellate review was not "accurate" and, second,
    because the availability of appellate review was"wholly
    irrelevant to the determination of the appropriate sentence."
    
    Id. Justice O'Connor,
    who cast the deciding fifth vote for
    reversal, refused to endorse the principle that"the giving of
    nonmisleading and accurate information regarding the
    jury's role in the sentencing scheme is irrelevant to the
    sentencing 
    decision." 472 U.S. at 341
    (opinion of O'Connor,
    100
    J.) (emphasis added). However, she agreed that the
    prosecutor's statements were improper because they
    "creat[ed] the mistaken impression that automatic appellate
    review of the jury's sentence would provide the
    authoritative determination of whether death was
    appropriate," whereas in fact the state supreme court
    exercised only a narrow scope of review. 
    Id. In subsequent
    cases, the Court has clarified the holding
    in Caldwell. In Romano v. Oklahoma, 
    512 U.S. 1
    , 9 (1994),
    the Court wrote as follows:
    As Justice O'CONNOR supplied the fifth vote in
    Caldwell, and concurred on grounds narrower than
    those put forth by the plurality, her position is
    controlling. See Marks v. United States, 
    430 U.S. 188
    ,
    193 (1977) . . . . Accordingly, we have since read
    Caldwell as "relevant only to certain types of comment
    --those that mislead the jury as to its role in the
    sentencing process in a way that allows the jury to feel
    less responsible than it should for the sentencing
    decision." Durden v. Wainwright, 
    477 U.S. 168
    , 184,
    n.15 (1986). Thus, "[t]o establish a Caldwell violation,
    a defendant necessarily must show that the remarks to
    the jury improperly described the role assigned to the
    jury by local law." Dugger v. Adams, 
    489 U.S. 401
    , 407
    (1989), see also Sawyer v. Smith, 
    497 U.S. 227
    , 233
    (1990).
    The Romano Court rejected the Caldwell argument
    advanced in that case because "the jury was not
    affirmatively misled regarding its role in the sentencing
    process." 
    Id. at 10.
    Riley's argument is based on a statement made by the
    prosecutor near the very beginning of his summation at the
    sentencing phase of the trial. The prosecutor stated:
    As the Judge has explained to you we have a specific
    statute with regard to what occurred in a penalty
    hearing on a capital case.
    Let me say at the outset that what you do today is
    automatically reviewed by our Supreme Court and that
    is why there is an automatic review on the death
    101
    penalty. That is why, if you return a decision of death,
    that is why you will receive and have to fill out a two-
    page interrogatory that the Court will give you. This is
    an interrogatory that specifically sets out the questions
    that the State request and whether or not you believe
    it beyond a reasonable doubt and if you want in your
    determination, if you believe the sentence should be
    death then each and every one of you has to sign this.
    This goes to the Supreme Court. That is why it is
    concise and we believe clear and it should be looked
    carefully on and answered appropriately.
    App. 393 (emphasis added). Riley argues that the
    highlighted words quoted above violated Caldwell .
    In its decision on direct appeal, the Delaware Supreme
    Court responded to this argument as follows:
    [T]he prosecutor's remarks in no way suggested that
    responsibility for ultimately determining whether
    defendant faced life imprisonment or death rested
    elsewhere. The prosecutor's passing comment to the
    jury that its decision would be "automatically reviewed"
    was fairly made in the context of the prosecutor's
    preceding reference to the "specific statute[controlling]
    a penalty hearing on a capital case." 11 Del.C.S 4209.
    Since subsection (g) of S 4209 mandates the"Automatic
    Review of Death Penalty by Delaware Supreme Court",
    the prosecutor in the instant case was simply quoting
    the statute. In no sense may it reasonably be said that
    the prosecutor was either misstating the law,
    misleading the jury as to its role, or minimizing its
    sentencing 
    responsibility. 496 A.2d at 1025
    (alteration in original). I agree with this
    analysis.
    The prosecutor's remarks in Caldwell were"quite
    focused, unambiguous, and 
    strong." 472 U.S. at 340
    . The
    clear message was that, contrary to the suggestion of
    defense counsel that the jury should "confront both the
    gravity and responsibility of calling for another's death," 
    id. at 324,
    the jury need not shoulder that responsibility
    because "the authoritative determination of whether death
    was appropriate" would be made by the state supreme
    102
    court. 
    Id. at 343
    (Opinion of O'Connor, J.). It was in this
    sense that the remarks " ``improperly described the role
    assigned to the jury by local law' "16 and thus " ``allowed the
    jury to feel less responsible than it should for the
    sentencing decision.' "17
    The prosecutor's remarks in this case were very different.
    Here, the prosecutor made accurate, unemotional, passing
    remarks in the context of describing the state statute and
    explaining why the jury would have to "fill out a two-page
    interrogatory" if it returned a capital sentence. These
    remarks did not convey the message that the jury should
    not confront the gravity of returning a death verdict, and
    thus the mere mention of the fact that there would be an
    automatic appeal to the state supreme court did not
    mislead the jury as to its role in the sentencing process. In
    this connection, it is noteworthy that after the closing
    arguments, the trial judge instructed the jury on its role
    using language that left no doubt about its responsibility.
    The trial judge stated: "Where the jury submits such a
    finding and recommendation, the Court shall sentence the
    defendant to death." 
    See 585 A.2d at 731
    (emphasis added).
    A "recommendation of death, supported by the evidence,
    shall be binding on the Court." 
    Id. (emphasis added).
    "Your
    unanimous recommendation for the imposition of the death
    penalty, if supported by the evidence, is binding on the
    Court." 
    Id. at 734
    (emphasis added). In light of the
    substantial factual differences between Caldwell and this
    case, and in light of the Supreme Court's subsequent
    explanation of the meaning of Caldwell, I would reject
    Riley's Caldwell claim.
    The majority appears to hold that a Caldwell violation
    occurred simply because the prosecutor accurately stated
    that there would be an automatic appeal to the state
    supreme court without attempting to explain the scope of
    review that the state supreme court would exercise. I do not
    agree with this reading of Caldwell. Neither Justice
    _________________________________________________________________
    16. Romano v. 
    Oklahoma, 512 U.S. at 9
    (quoting Dugger v. 
    Adams, 489 U.S. at 407
    ).
    17. Romano v. 
    Oklahoma, 512 U.S. at 9
    (quoting Durden v. 
    Wainwright, 477 U.S. at 184
    , n.15).
    103
    O'Connor's controlling opinion in Caldwell nor the Court's
    subsequent explanation in Romano took the position that
    an unadorned reference to automatic judicial review of a
    capital verdict is enough to violate the Constitution. And
    such a holding would make little sense. As the Seventh
    Circuit has noted:
    Everyone knows that after a death sentence is
    imposed, there are tiers of appellate review designed to
    catch errors; the prosecutor wasn't telling the jurors
    anything they didn't know already. Appellate review is
    a fact of almost all criminal cases that are tried.
    Knowledge of this does not cause jurors to take lightly
    their sentencing responsibilities.
    Fleenor v. Anderson, 
    171 F.3d 1096
    , 1098 (7th Cir. 1999).
    What Caldwell forbids is not a simple reference to
    automatic appellate review, but the suggestion that the
    scope of review is broader than it is in fact. The remarks in
    Caldwell conveyed such a suggestion; the comments here
    did not. I would therefore hold that no Caldwell violation
    occurred.
    III.
    Reviewing habeas decisions in capital cases is one of the
    most important and difficult responsibilities of this court.
    Our role is vital -- but limited -- and is not to be confused
    with that of the jury or the various branches of state
    government. Applying the legal standards that are
    applicable to us in the present context, I believe that the
    decision of the district court must be affirmed.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    104
    

Document Info

Docket Number: 98-9009

Filed Date: 12/28/2001

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (108)

keith-w-zettlemoyer-v-thomas-a-fulcomer-superintendent-state , 923 F.2d 284 ( 1991 )

Caldwell v. Mississippi , 105 S. Ct. 2633 ( 1985 )

earl-matthews-jr-v-parker-evatt-commissioner-south-carolina-department , 105 F.3d 907 ( 1997 )

Dean Nathan Campbell v. Donald T. Vaughn the District ... , 209 F.3d 280 ( 2000 )

United States v. Tyransee A. Harris , 192 F.3d 580 ( 1999 )

Bragdon v. Abbott , 118 S. Ct. 2196 ( 1998 )

Donald Kenneth Fetterly v. David Paskett, Warden, Idaho ... , 997 F.2d 1295 ( 1993 )

Strauder v. West Virginia , 25 L. Ed. 664 ( 1880 )

Screws v. United States , 65 S. Ct. 1031 ( 1945 )

LaVallee v. Delle Rose , 93 S. Ct. 1203 ( 1973 )

Witherspoon v. Illinois , 88 S. Ct. 1770 ( 1968 )

Griffith v. Kentucky , 107 S. Ct. 708 ( 1987 )

Harris v. Reed , 109 S. Ct. 1038 ( 1989 )

Ake v. Oklahoma , 105 S. Ct. 1087 ( 1985 )

harrison-william-howard-v-ryan-joseph-m-supt-sci-dallas-pa-and , 909 F.2d 84 ( 1990 )

United States v. Darrell Hill (97-5009) and Donald L. Gunn (... , 146 F.3d 337 ( 1998 )

Buddy Earl Justus v. Edward W. Murray, Director, Virginia ... , 897 F.2d 709 ( 1990 )

Whalen v. State , 1985 Del. LEXIS 429 ( 1985 )

united-states-of-america-ex-rel-gilbert-rivera-v-gayle-franzen-director , 794 F.2d 314 ( 1986 )

william-h-flamer-v-state-of-delaware-darl-chaffinch-raymond-callaway , 68 F.3d 710 ( 1995 )

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