Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
5-2-1994
Reynolds v. Elingsworth, et al.
Precedential or Non-Precedential:
Docket 93-7106
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"Reynolds v. Elingsworth, et al." (1994). 1994 Decisions. Paper 1.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/1
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
N0. 93-7106
GEORGE L. REYNOLDS,
Appellant
v.
JACK C. ELLINGSWORTH, Warden;
CHARLES M. OBERLY, III
On Appeal From the United States District Court
For the District of Delaware
(D.C. Civil Action No. 86-00142)
Argued November 3, 1993
BEFORE: SLOVITER, Chief Judge, and STAPLETON,
Circuit Judges, and RESTANI,* Judge,
United States Court of International
Trade
(Opinion Filed May 2, 1994)
1
* Honorable Jane A. Restani, Judge of the United States Court of
International Trade, sitting by designation.
2
Beverly L. Bove (Argued)
Tomar, Porks, Seliger, Simonoff &
Adourian
Suite 1701 Mellon Bank Center
919 Market Street
P.O. Box 955
Wilmington, DE 19801
Attorneys for Appellant
Loren C. Meyers (Argued)
Deputy Attorney General
Department of Justice
State Office Building
820 French Street
Wilmington, DE 19801
Attorney for Appellee
OPINION OF THE COURT
STAPLETON, Circuit Judge:
This appeal requires us to consider the situation of a
criminal defendant whose lawyers make a tactical decision not to
raise federal due process objections in the defendant's state
trial or on state direct appeal, and do so under circumstances in
which they could have a good faith expectation that the defendant
would be able to raise these federal objections in state
collateral review proceedings. The issue we address is whether
the rule of Fay v. Noia, 372 U.S. 391 (1963), bars such a
defendant from later raising his federal objections in federal
3
court through a petition for writ of habeas corpus. We hold that
it does not.
4
I.
In 1976, George Lee Reynolds was tried for felony
murder, conspiracy, and robbery in the Superior Court of the
State of Delaware. His alleged role in the crimes was to drive
his two codefendants to and from the scene of the murder and
robbery. The prosecuting Deputy Attorney General, in his opening
statement to the jury, referred extensively to two purported
confessions Reynolds had made to the police. Later in the trial,
when the prosecution sought to introduce Reynolds' confessions
into evidence, a hearing was held to determine their
admissibility. At the hearing, the prosecution withdrew its
proffer of the confessions. The prosecution never renewed its
proffer,0 and the evidence it did present turned out to be weak.0
After the prosecution withdrew its proffer of Reynolds'
confessions, Reynolds' counsel did not request a curative jury
instruction regarding the Deputy Attorney General's opening
statement, nor did Reynolds' counsel ask that a mistrial be
declared. Reynolds was convicted and sentenced to life in
prison.
0
In the separate trial of one of Reynolds' codefendants, the
Delaware judge excluded Reynolds' confessions as unreliable
because the police had induced them by making promises of freedom
and a monetary reward to Reynolds that were "extravagant in the
extreme." State of Delaware v. Rooks, 411 A.2d 316, 316 (Del.
1980); see also, State v. Rooks, 401 A.2d 943 (Del. 1979). After
excluding Reynolds' confessions, the judge directed a verdict of
acquittal for Reynolds' codefendant.
0
See, e.g., Reynolds v. Ellingsworth, 843 F.2d 712, 716 n.10 (3d
Cir. 1988), cert. denied, 488 U.S. 960 (1988) ("Reynolds I")
(state's case was "weak").
5
Following a direct appeal to the Delaware Supreme
Court, a remand by the supreme court to the trial court for
further hearings in light of newly discovered evidence (at which
hearings the chief investigating police officer appeared as a
defense witness), and a second direct appeal to the supreme
court, the supreme court affirmed Reynolds' conviction. Reynolds
v. State, 424 A.2d 6 (Del. 1980). In none of these proceedings
did Reynolds' counsel complain that Reynolds' federal rights had
been violated at trial.
Reynolds then sought state collateral review of his
conviction pursuant to Delaware Superior Court Criminal Rule 35.0
In that proceeding, he complained for the first time that the
prosecutor's references to the confessions during his opening
statement, coupled with the trial judge's failure to give a
limiting jury instruction or to declare a mistrial sua sponte,
denied Reynolds the due process required by the federal
Constitution.
In the Rule 35 proceedings, the Delaware Superior Court
held hearings to determine why Reynolds' lawyers had not raised
his federal claims either at trial or on direct appeal. Reynolds'
two trial lawyers, one of whom also represented Reynolds on
direct appeal, testified at the hearings. Both said they had no
0
Delaware Superior Court Criminal Rule 35(a) provides:
(a) Correction of Sentence. The court
may correct an illegal sentence at any time
and may correct a sentence imposed in an
illegal manner within the time provided
herein for the reduction of sentence.
6
recollection, independent of the transcript they were supplied,
that the Deputy Attorney General had mentioned Reynolds'
confessions to the jury. Moreover, both testified that they did
not remember why they had not requested a limiting instruction,
moved for a mistrial, or complained on direct appeal about the
prosecutor's statements. Each counsel did offer hypothetical
explanations, based largely upon his usual practices and his
review of the record, as to why, for tactical reasons, he might
have conducted Reynolds' trial and/or direct appeal as he did.
Reynolds' lead trial lawyer, an experienced criminal
defense attorney who made most of the tactical trial decisions,
offered three reconstructive hypotheses as to why he might not
have moved for a mistrial. The first hypothesis was that he did
not want a mistrial because it would give the prosecution a
second opportunity to proffer the confessions after having
marshalled stronger evidence to support their admissibility. The
second was that a motion for a mistrial might have prompted the
prosecutor to ask for a recess and rethink his decision to
withdraw the confessions. The third hypothesis was that defense
counsel simply overlooked the issue -- in his words, "I didn't
catch it," or "I blew it." Appendix at 368 and 364. When asked
which hypothesis he "placed the most reliance on," Reynolds' lead
trial counsel answered, "Intellectually, the first. Emotionally,
the third." Appendix at 368. While denying any recollection on
the subject, lead counsel also hypothesized that he did not ask
for any cautionary instruction because it would serve primarily
to refocus the jury's attention on the confessions.
7
The defense counsel who handled the direct appeal gave
the following testimony as to why the matter of the confessions
had not been raised on appeal:
The reason it was not raised on appeal
was because, as far as I am concerned, the
better grounds for appeal were the
interpretation of the stipulation regarding
the truth serum and also the very good ground
of the newly-discovered evidence when we had
the investigating officer saying he believed
the wrong man had been convicted.
Appendix at 382.
The superior court analyzed the testimony of Reynolds'
counsel to ascertain whether Reynolds had shown "cause" for his
failure to raise his due process claims at trial or on direct
appeal. The superior court performed this analysis because it
interpreted the Delaware Supreme Court's opinion in Conyers v.
State, 422 A.2d 345 (Del. 1980), to impose a contemporaneous-
objection requirement for preserving Rule 35 review, and to adopt
the United States Supreme Court's Wainwright v. Sykes "cause and
prejudice" test as the Delaware standard for deciding whether to
impose a procedural bar for failure to comply with the
contemporaneous-objection requirement. State v. Reynolds, Nos.
76-04-0026; 0027; 0027A, letter op. at 2-3 (Del. Super. Ct. Dec.
9, 1983). In Sykes, 433 U.S. 72 (1977), the United States
Supreme Court held that a state criminal defendant forfeits the
availability of federal habeas review if his lawyer fails to
raise his federal claim at the time or in the manner specified by
"independent and adequate" state procedural requirements unless
8
the defendant can show "cause" for his counsel's state default
and "prejudice" resulting from it.
The superior court held that Reynolds had failed to
show "cause" for his trial and appellate lawyers' silence
regarding his federal due process claims, and therefore ruled
that Conyers barred Reynolds from raising the claims in state
collateral review proceedings. State v. Reynolds, Nos. 76-04-
0026; 0027; 0027A, letter op. at 7 (Del. Super. Ct. Dec. 9,
1983). The Delaware Supreme Court upheld the superior court's
decision. Reynolds v. State, No. 370 1983, letter op. (Del.
Jan. 16, 1985).
Reynolds filed pro se a second Rule 35 motion raising
federal constitutional claims of ineffective assistance of
counsel. The superior court denied Reynolds' second Rule 35
motion as repetitive. State v. Reynolds, No. IS76-04-0026, 0027,
letter op. at 2 (Del. Super. Ct. Mar. 12, 1986). Reynolds did
not appeal. Reynolds I, 843 F.2d at 723.
Reynolds later filed a pro se petition for a writ of
habeas corpus in the United States District Court for the
District of Delaware pursuant to 28 U.S.C. § 2254. His petition
raised both unfair trial and ineffective assistance of counsel
claims. The unfair trial claims were based on the prosecutor's
reference to Reynolds' confessions and the failure of the trial
judge sua sponte to instruct the jury to disregard that
reference. The district court referred the case to a magistrate
judge who recommended that Reynolds' unfair trial claims be
barred from habeas review under the "cause and prejudice" or
9
"independent and adequate state ground" test of Wainwright v.
Sykes, supra. The magistrate judge recommended that Reynolds'
ineffective assistance claims be rejected on their merits. The
district court adopted the magistrate's recommendations, and
denied Reynolds' habeas petition. Reynolds I, 843 F.2d at 716.
Reynolds appealed the district court's dismissal of his
habeas petition. We reversed the district court's ruling that
Reynolds' unfair trial claims were procedurally barred. The
Delaware courts' determination that Reynolds had forfeited his
opportunity for Rule 35 review, we concluded, was not based on an
independent and adequate state procedural ground of default as
required by Sykes. Reynolds I, 843 F.2d at 719. Essentially, we
found that the Delaware courts had subjected Reynolds to a new
contemporaneous-objection requirement when they reviewed his Rule
35 motion, a requirement which had not existed at the time
Reynolds could have contemporaneously objected.0 While the
0
See Reynolds I, 843 F.2d at 719:
To decide whether Conyers provides an
"independent and adequate" basis for
precluding federal habeas review of
Reynolds's claims, we turn to the three
factors upon which the Supreme Court relied
to so decide in Sykes, to wit: whether the
state procedural requirement is stated in
"unmistakable terms," whether the state
courts have refused to review the claims on
the merits, and whether the state courts'
refusal in this instance is "consistent" with
other state decisions. Id. at 85-86, 97 S.
Ct. at 2505-06.
Notwithstanding the Delaware courts'
refusal to consider the merits of Reynolds's
claims, we find that the Conyers decision
10
Delaware courts might be free to impose a surprise forfeiture
rule to preclude state collateral review of a state trial's
compliance with federal law, we held that state forfeiture-by-
surprise was an inadequate ground for precluding federal
collateral review. We also found that Reynolds had not exhausted
his available state remedies regarding his ineffective assistance
claims. Accordingly, we reversed the district court's
disposition of both Reynolds' unfair trial claims and his
ineffective assistance claims. We remanded for further
proceedings consistent with our opinion. In our opinion, we
noted that, if Reynolds chose to amend his petition to drop his
unexhausted ineffective assistance claims, the district court
does not constitute an "independent and
adequate state procedural ground" barring
federal courts from habeas review of the due
process claim raised here. No specific
Delaware procedural rule governs, in
"unmistakable terms," Sykes, 433 U.S. at 85,
97 S. Ct. at 2505, the precise claim raised
in Reynolds's Rule 35 motion, namely, that
due process was denied by the prosecutor's
over-reaching coupled with the absence of the
judge's sua sponte limiting instruction or
declaration of mistrial. In addition, the
Delaware courts' invocation of Conyers is not
consistent with other state authority. Thus,
of the three elements that could support a
conclusion that this state procedural
requirement is "adequate" to preclude federal
review, two are blatantly missing here.
See also id. at 720 ("Whether enunciated by court rule or case
law, there is no Delaware procedural rule on point, and therefore
Reynolds violated none."); id. at 722 ("Even if we were to
conclude that a new Delaware procedural rule was created by
Conyers, we could not also conclude that the rule barred
collateral federal review, where it was applied to claims [like
Reynolds' claims] for the first time in the instant case.").
11
"could then proceed to the merits" of Reynolds' unfair trial
claims. Reynolds I, 843 F.2d at 724 n.22.
On remand, Reynolds dropped his ineffective assistance
claims, and the district court once again referred his unfair
trial claims to a magistrate judge. This time the magistrate
judge considered the merits of Reynolds' unfair trial claims, and
recommended that the claims be dismissed. Reynolds v.
Ellingsworth, No. 86-142-JRR, 1992 WL 404453, at *6 (D. Del.
Dec. 31, 1992). The district court, however, decided once again
that it was barred from considering the merits of Reynolds'
unfair trial claims. This time the district court ruled that
Reynolds' habeas petition was barred under the "deliberate
bypass" rule of Fay v. Noia, 372 U.S. 391 (1962), a rule we had
no occasion to address directly in Reynolds I.
The district court interpreted Fay to require that
Reynolds' federal due process claims be barred from federal
habeas review if, for strategic reasons, Reynolds' counsel
deliberately bypassed the opportunity to object at trial and on
appeal to the Deputy Attorney General's opening statements and
the trial court's failure to give a curative instruction.
Applying 28 U.S.C. § 2254(d), the district court ruled that it
was bound by what it characterized as the Delaware Superior
Court's "factual determination that Reynolds' counsel
intentionally decided not to object or move for a mistrial."
Reynolds v. Ellingsworth, No. 86-142-JRR, 1992 WL 404453, at *8
(D. Del. Dec. 31, 1992). Therefore, the district court held,
"because of his counsel's intentional decision to forgo objection
12
to the prosecution's opening statement, Reynolds is precluded
from mounting a due process challenge to the effect of the
statement upon the fairness of his trial." Id. at *9.
Reynolds now appeals the district court's second
refusal to consider the merits of his due process claims.
II.
Our legal analysis is premised on two threshold
assumptions, one legal and the other factual. First, we assume
that Fay v. Noia has survived Sykes, supra, and Coleman v.
Thompson, 111 S. Ct. 2546 (1991). Second, we assume that
Reynolds' counsel made strategic decisions not to move for a
mistrial or ask for a curative instruction.
There is substantial support for the view that the
"independent and adequate state law ground" rule, as applied in
cases like Sykes, Murray v. Carrier, 477 U.S. 478 (1986), and
Coleman v. Thompson, 111 S. Ct. 2546 (1991), has subsumed the
"deliberate bypass" rule of Fay.0 If Fay is currently without
0
In creating and applying the "cause and prejudice" standard in
Sykes and Carrier, the Supreme Court "limited Fay to its facts."
Coleman, 111 S. Ct. at 2563, 2564. In Coleman, the Supreme Court
went further, stating:
In Harris [v. Reed, 489 U.S. 255
(1989)], we described in broad terms the
application of the cause and prejudice
standard, hinting strongly that Fay had been
superseded . . . .
We now make it explicit: In all cases in
which a state prisoner has defaulted his
federal claims in state court pursuant to an
independent and adequate state procedural
13
independent significance, of course, the judgment of the district
court cannot be upheld in light of our holding in Reynolds I.
Since we conclude that Reynolds' petition would merit review
under Fay as well as Sykes, and that a reversal is required even
if Fay retains independent vitality, we will assume arguendo that
the district court properly looked to Fay as a relevant
precedent.
With respect to the factual predicate for our decision,
we note, again, that the purpose of the evidentiary hearing in
the superior court in the first Rule 35 proceeding was to
determine whether Reynolds could show "cause" and "prejudice"
under Conyers and Sykes. Reynolds maintained in that proceeding
that the ineffective assistance of his counsel with respect to
the confession references provided "cause" under Conyers and
rule, federal habeas review of the claims is
barred unless the petitioner can demonstrate
cause for the default and actual prejudice as
a result of the alleged violation of federal
law, or demonstrate that failure to consider
the claims will result in a fundamental
miscarriage of justice. Fay was based on a
conception of federal/state relations that
undervalued the importance of state
procedural rules.
* * *
. . . By applying the cause and prejudice
standard uniformly to all independent and
adequate state procedural defaults, we
eliminate the irrational distinction between
Fay and the rule of cases like Francis[v.
Henderson, 425 U.S. 536 (1976)], Sykes,
Engle[v. Isaac, 456 U.S. 107 (1982)], and
Carrier.
111 S. Ct. at 2564-65.
14
Sykes to excuse his failure to make a contemporaneous objection.
The superior court held that Reynolds had not satisfied his
burden of proof on the cause issue and characterized the record
as reflecting a situation like that involved in Engle v. Isaac,
456 U.S. 107 (1982), a case in which the Supreme Court held that
neither a deliberate strategic decision nor an inadvertent
failure of counsel to raise an issue constitute "cause" unless
counsel's performance has failed to meet the Sixth Amendment
standard for competent assistance, 456 U.S. at 133-34; see also
Murray v. Carrier, 477 U.S. at 485-87. The superior court cast
its holding as follows:
Defendant contends that the reason for the
failure of his attorneys to raise the issue
at trial or at the appeal stage was either
inadvertence or lack of knowledge of the
applicable law. I do not find that those
contentions have been proved by this record.
4. Considering the experience and
competence of defendant's attorneys and the
quality of the defense made in this case, I
find that the situation here falls squarely
within the language of Engle that "[c]ounsel
might have overlooked or chosen to admit
[omit] respondents' due process argument
while pursuing other avenues of defense".
Under the reasoning of Engle the situation
existing here does not constitute cause
justifying relief from the failure to make
timely objection.
State v. Reynolds, Nos. 76-04-0026; 0027; 0027A, letter op. at
6-7 (Del. Super. Ct. Dec. 9, 1983).
In the course of his opinion, the superior court judge
also described the testimony of defense counsel that we have
15
summarized above. That description included the following
observations:
It is clear from the testimony of the
defendant's attorneys that they viewed the
announcement of the Deputy Attorney General
that he would not seek to introduce the
confession in evidence as a substantial
victory and that they desired to push forward
to conclude the trial because they then
anticipated a verdict in defendant's favor.
Defendant's lead trial counsel testified that
he did not seek an admonition from the Court
for the jury to disregard the Deputy Attorney
General's prior reference to the confession
because it would only focus attention on the
prior references. With reference to his not
seeking a mistrial, he testified that he had
had no recollection of his mental processes.
However, he testified, based upon his
experience, that after two or three days of
trial a jury forgets what was said in an
opening statement. . . . Defendant's other
attorney . . . testified that . . . he felt
that raising [the prosecutor's reference to
the confessions] would detract from the more
meritorious arguments which were the thrust
of the appeal.
State v. Reynolds, Nos. 76-04-0026; 0027; 0027A, letter op. at
5-6 (Del. Super. Ct. Dec. 9, 1983).
Both the Supreme Court of Delaware and the district
court read the superior court's opinion as finding that Reynolds'
counsel made deliberate strategic decisions not to ask for a jury
instruction or a mistrial. The district court regarded this
factual finding as supported by the evidence and therefore
binding upon it under 28 U.S.C. § 2254(d).
We have no difficulty in concluding that the evidence
before the superior court would have supported a factual finding
that strategic decisions were made. That hypothesis would seem
16
to be the most reasonable one given the general quality of
counsel's trial performance and the fact that it would appear to
have been in Reynolds' best interest not to seek a mistrial. In
that way, he could see what the jury would do with the state's
weak evidence and, if he was convicted, the then existing
Delaware law did not appear to foreclose him from raising his due
process objections later. If counsel deliberately chose this
course, it would clearly have been permissible trial strategy not
to resurrect the state's opening by asking for a curative
instruction.
While we are thus confident that the evidence before
the Superior Court would support a factual finding of strategic
decision making, we are less confident about the district court's
holding that it was required by 28 U.S.C. § 2254(d) to presume
that such decision making occurred. Before the presumption
provided in Section 2254(d) arises, it must appear that "the
merits of the factual dispute [in the district court] were
resolved in the State Court hearing." 28 U.S.C. § 2254(d)(1).
While the issue found crucial by the district court was whether
deliberate strategic decisions were made, the holding of the
superior court was that Reynolds' counsel either overlooked the
issue or made a strategic decision, neither of which would
constitute cause under Conyers and Sykes. While we acknowledge
that there is language in the superior court's opinion from which
it can be inferred that it believed strategic decisions were
made, the superior court's statement of its ultimate conclusion
17
and its focus on the Conyers cause issue make the district
court's approach to the Fay v. Noia issue problematic.
Nevertheless, we will assume, consistent with the
district court's approach, that Reynolds' counsel made strategic
decisions not to request a mistrial and not to ask for a curative
instruction. We do so because our present task -- reviewing the
district court's refusal to reach the merits of Reynolds' due
process arguments -- does not require us to determine whether or
not such decisions were made.0 We may assume arguendo that
strategic decisions were made because the district court's
refusal was inappropriate even if strategic decisions were made.
While we thus accept that Reynolds' counsel made
strategic decisions not to move for a mistrial and not to ask for
an instruction, we emphasize before proceeding with our legal
analysis that neither the superior court nor any other court has
found that Reynolds' counsel made a strategic decision to forego
state process in order to seek federal habeas corpus relief. Nor
is there any reason to infer such an intent. As we pointed out
in Reynolds I, Reynolds' counsel at the time of trial had no
reason to anticipate that the failure to ask for a mistrial or a
jury instruction (or even the failure to raise the confession
issue on direct appeal) would bar consideration of Reynolds' due
0
Because the district court on remand will be required to reach
the merits of Reynolds' unfair trial due process claims, and
because Reynolds has withdrawn his constitutionally ineffective
assistance claims, we do not foresee that the district court will
again be required to decide whether the superior court "resolved"
the "strategic decision" issue within the meaning of § 2254(d)(1)
and we express no opinion on that issue.
18
process claims in a state post-conviction relief proceeding under
Rule 35.
III.
In Fay v. Noia, Noia, the petitioner, claimed that he
had been convicted on the basis of a coerced confession in
violation of the Fifth and Fourteenth Amendments. He had not
appealed his conviction, however, and he was subsequently denied
state post-conviction relief because of this failure to appeal.
The Supreme Court held that he was entitled to federal habeas
review of his contention that he was being confined in violation
of the federal Constitution.
The Court in Fay viewed its task as determining "the
proper accommodation of [the] great constitutional privilege [of
habeas review] and the requirements of the federal system." 372
U.S. at 426. It reaffirmed the power of a federal habeas court
to grant relief from unconstitutional state confinement where
state courts have rejected or refused to consider the
petitioner's constitutional argument. The limitations which it
recognized on the appropriate exercise of that power were
grounded in federalism and the necessity of comity between the
federal and state court systems.
The Court noted the exhaustion doctrine codified in 28
U.S.C. § 2254, observing that "it would be unseemly in our dual
system of government for a federal district court to upset a
state court conviction without an opportunity to the state courts
to correct a constitutional violation." Id. at 419-20, quoting
from Darr v. Burford, 339 U.S. 200, 204 (1950). The Fay court
19
held, however, that the exhaustion doctrine of § 2254 barred
federal review only when there were state remedies still
available to the petitioner at the time of his petition. 372
U.S. at 434-35.
The Fay court also held that the "independent and
adequate state ground" doctrine that barred direct review by the
Supreme Court of state judgments having a basis in state law
should not be applied to bar habeas review in federal district
courts. Thus, the fact that a habeas petitioner had violated a
state procedural rule and was thereby barred from further state
review of a federal constitutional issue did not alone foreclose
federal habeas relief. 372 U.S. at 428-34.
The Fay court nevertheless did recognize that there
were situations not covered by the exhaustion doctrine in which
the "exigencies of federalism" counselled against federal habeas
review:
[T]he exigencies of federalism warrant a
limitation whereby the federal judge has
discretion to deny relief to one who has
deliberately sought to subvert or evade the
orderly adjudication of his federal defenses
in the state courts.
* * *
We therefore hold that the federal habeas
judge may in his discretion deny relief to an
applicant who has deliberately bypassed the
orderly procedures of the state court and in
doing so has forfeited his state remedies.
372 U.S. at 433, 438 (emphasis supplied).
The Fay court's conclusion with regard to the
"independent and adequate state ground" doctrine was subsequently
20
abandoned in Wainwright v. Sykes, 433 U.S. 72 (1977), because it
was "based on a conception of federal/state relations that
undervalues the importance of state procedural rules." Coleman
v. Thompson, 111 S. Ct. 2546, 2565 (1991). Where state review of
a federal claim is barred because of a habeas petitioner's
noncompliance with a state procedural requirement, comity
counsels that the independent and adequate state ground doctrine
be applied to bar collateral access to the federal courts in the
absence of a showing of "cause and prejudice."
Just as in those cases in which a state
prisoner fails to exhaust state remedies, a
habeas petitioner who has failed to meet the
State's procedural requirements for
presenting his federal claims has deprived
the state courts of an opportunity to address
those claims in the first instance. . . . The
independent and adequate state ground
doctrine ensures that the States' interest in
correcting their own mistakes is respected in
all federal habeas cases.
Coleman, 111 S. Ct. at 2555.
With this background, we turn to the "deliberate
bypass" doctrine articulated in Fay. It is this doctrine that
was applied by the district court to bar Reynolds' access to the
federal courts after we had determined that such access was not
barred by the independent and adequate state ground doctrine. The
important point for present purposes is that, like the doctrines
of exhaustion and independent and adequate state ground, the
deliberate bypass doctrine finds its justification in comity
concerns. A petitioner should not be able to secure federal
relief if he has deliberately deprived the state judicial system
of an opportunity to correct the alleged constitutional error.
21
As articulated by the Supreme Court in Fay, the deliberate bypass
doctrine is a waiver doctrine. "The classic definition of waiver
. . . -- 'an intentional relinquishment or abandonment of a known
right or privilege' -- furnishes the controlling standard." 372
U.S. at 439. The doctrine applied only when the "habeas
applicant . . . understandingly and knowingly forewent the
privilege of seeking vindication of his federal claims in the
state courts." Id.
Fay's rationale for the deliberate bypass doctrine is
inapplicable to the facts of this case. Reynolds did not
understandingly and knowingly forego the privilege of seeking to
vindicate his federal claims in the Delaware courts, nor have his
counsel been found to have made a decision to bypass state
process for federal. Accordingly, he cannot be said to have
deprived the Delaware courts of the opportunity to pass on his
constitutional contention. On the contrary, Reynolds tried to
raise his federal claims in Delaware Superior Court and in the
Delaware Supreme Court pursuant to Delaware's collateral review
procedures. If his trial and appellate counsel made a strategic
decision to bypass state trial and appellate procedures, it was
on the basis of a state legal landscape in which they could go
forward in the hope of an acquittal by the jury and raise the due
process argument in a Rule 35 proceeding.
Because Reynolds' counsel could not have anticipated
that their failure to raise the federal due process claims at
trial and on direct review would prevent Reynolds from raising
the claims in state collateral review proceedings, they could not
22
have deliberately forfeited Reynolds' chance at state review of
his federal claims. And, "if neither the state legislature nor
the state courts indicate that a federal constitutional claim is
barred by some state procedural rule, a federal court implies no
disrespect for the State by entertaining the claim." County
Court v. Allen, 442 U.S. at 154.
The most helpful Supreme Court precedent in this
context is Lefkowitz v. Newsome, 420 U.S. 283 (1975). Newsome,
the petitioner there, pleaded guilty in a New York state court to
possessing heroin. He subsequently sought federal habeas review
of the constitutionality of the search of his person that
disclosed the heroin. The respondent argued that, as a matter of
federal habeas corpus law, a defendant who pleads guilty to an
offense in a state court waives his right to federal habeas
corpus review of any constitutional issues other than those
involving the plea itself. The Supreme Court recognized that
this was the general rule and explained the rule by reference to
the deliberate bypass doctrine of Fay:
A defendant who chooses to plead guilty
rather than go to trial in effect
deliberately refuses to present his federal
claims to the state court in the first
instance. McMann v. Richardson, supra, at
768. Once the defendant chooses to bypass
the orderly procedure for litigating his
constitutional claims in order to take the
benefits, if any, of a plea of guilty, the
State acquires a legitimate expectation of
finality in the conviction thereby obtained.
Cf. Fay v. Noia, 372 U.S. 391, 438.
The Supreme Court refused to apply the deliberate
bypass rule in Newsome's case, however, because New York law
23
allowed a defendant to plead guilty and ascertain what sentence
he would receive and thereafter pursue all of his constitutional
claims in the state appellate process. The Supreme Court held
that, where a state voluntarily chooses not to give a conviction
based on a guilty plea the normal preclusive effect in its own
courts, there is no federal justification for denying federal
habeas review of federal constitutional issues.0 So long as the
petitioner has complied with the procedure required by state law,
0
In the name of federalism, the dissent insists that concern for
a "State's interest in the finality of its criminal judgments"
(Dis. typescript op. at 6) justifies a federal rule precluding
federal habeas review even in the absence of a state procedural
default. Lefkowitz, as we read it, teaches that federalism
requires federal courts to permit a state to determine how
"final" its own judgments will be. New York had there decided
that a New York criminal judgment based on a guilty plea would
not preclude a subsequent challenge in the New York courts on
constitutional grounds. The respondent urged a federal rule that
would give greater finality to New York criminal judgments in
federal habeas courts than New York had chosen to give its
criminal judgments in its own courts. The Supreme Court rejected
this suggestion, holding that judgments based on guilty pleas
should be given the same degree of finality in federal habeas
courts as the state entering the judgment would give it.
Because all human institutions are fallible, no
judicial system of which we are aware has chosen to insist on
absolute finality. Each judicial system strikes a balance
between the stability concerns served by judgments that preclude
further proceedings and the justice concerns served by rules
permitting alleged injustices to be reviewed after judgment is
entered. A state's position with respect to the necessity for
contemporaneous objections necessarily reflects its judgment
about how these conflicting concerns should be reconciled. The
creation of a federal contemporary objection rule in this case,
as urged by the dissent, would give Reynolds' criminal judgment
greater finality in a federal habeas court than Delaware had
chosen to give its judgments in its own courts at the time of
Reynolds' trial. We believe this would be inconsistent with the
federalism concerns of Fay and Lefkowitz.
24
his deliberate decision to avail himself of the benefits of
pleading guilty should not bar federal review.
The Supreme Court stressed in Lefkowitz that applying
the respondent's rule "would make New York's law a trap for the
unwary" because defendants could understandably believe they had
the option of availing themselves of the benefits of a guilty
plea while preserving their right to appellate review of their
constitutional issues and might only later discover that they had
inadvertently waived their right to federal habeas review.
We read Lefkowitz to hold that Fay's deliberate bypass
doctrine is based on comity and that it does not bar federal
habeas review in the absence of a procedural default under state
law. Lefkowitz's teaching for this case seems clear to us. Just
as New York law afforded state appellate review despite a guilty
plea, Delaware law afforded state habeas review despite the
absence of a contemporary objection. Since Reynolds, like
Newsome, complied with the procedural requirements of the courts
of his state and provided them with an opportunity to pass on his
constitutional claim, he, like Newsome, cannot be said to have
engaged in a deliberate bypass of state process. To hold
otherwise would fashion from Delaware law no less of a "trap for
the unwary" than a contrary result in Lefkowitz would have
fashioned from New York law.0
0
Four years after Lefkowitz, in County Court of Ulster County v.
Allen, 442 U.S. 140 (1979), the Supreme Court considered the case
of three habeas petitioners who complained that they had
been convicted of firearms possession in state court on the basis
of an unconstitutional state evidentiary presumption. Only after
they had been convicted did the petitioners raise the federal
25
We believe Lefkowitz's reading of Fay is inconsistent
with the interpretation which the Court of Appeals for the
Seventh Circuit has given to the deliberate bypass doctrine. In
Brownstein v. Director of Illinois Dep't of Corrections, 760 F.2d
issue in state court. In the ensuing federal habeas proceeding,
the respondent argued that review was precluded by the deliberate
bypass doctrine. Id. at 146. The Supreme Court ruled that the
petitioners were entitled to federal habeas recourse because the
state had never adopted a clearly applicable contemporaneous-
objection policy. Id. at 150. The Court expressed no concern
that the petitioners' failure to raise their federal objection
until after the jury's verdict was announced might actually have
been a "deliberate" or "strategic" decision by the petitioners.
It saw comity as the sole relevant issue and rejected the
respondent's position because "if neither the state legislature
nor the state courts indicate that a federal constitutional claim
is barred by some state procedural rule, a federal court implies
no disrespect for the State by entertaining the claim." Id. at
154.
In Lefkowitz and Ulster County, state appellate courts
had addressed the petitioners' federal claims on their merits.
This does not distinguish Lefkowitz and Ulster County from this
case, however. Under the federal habeas law we applied in
Reynolds I, where a respondent urges that there has been a
procedural default, the claim must be treated as one involving no
procedural default if, inter alia, (1) the state procedural
requirement has not been enunciated in "unmistakable terms," (2)
the state courts have not insisted on that requirement in
petitioner's case and have reached the merits, or (3) the state
courts have insisted on the requirements in petitioner's case but
in doing so have acted in a manner inconsistent with other state
cases. See footnote 4, supra. In cases where there has been no
procedural default, or any alleged default that may have occurred
does not meet these three criteria, there is no independent and
adequate state law ground for the judgment. The absence of an
independent and adequate state law ground in Reynolds' case is
precisely the reason we permitted his habeas petition to go
forward in Reynolds I, and it is what makes his situation
equivalent to that of the petitioners in Lefkowitz and Ulster
County.
26
836 (7th Cir. 1985), cert. denied, 474 U.S. 858 (1985), the court
held that federal habeas review is barred, even in the absence of
a procedural default by the petitioner under state law, where the
petitioner engaged in "strategic behavior" in the state court.
Id. at 841. In that case, the state trial judge had neglected to
secure an express waiver of the petitioner's right to a jury
trial prior to the petitioner's bench trial. The petitioner
candidly admitted during his federal habeas hearing that he was
aware during his trial both of his right to a jury and of the
fact that his trial judge was committing reversible error by
failing to secure an express waiver. He did not object, however,
because his counsel believed he could "use the judge's omission
to secure a new trial, should he lose the first time around." Id.
at 839. Under Illinois law, no objection was required to
preserve this specific issue, and a new trial was mandated even
if no prejudice was shown.
The Brownstein court began by quoting Fay's holding:
"The federal habeas judge may in his discretion deny relief to an
applicant who has deliberately by-passed the orderly procedure of
the state courts and in doing so has forfeited his state court
remedies." Id. at 839. It seems to us that the court then
proceeded to ignore this holding, finding that the petitioner was
barred from federal habeas review under Fay by his "strategic
behavior," even though he had neither "by-passed the orderly
27
procedure of the state courts" nor "forfeited his state
remedies."0 We respectfully decline to follow suit.
We have found no Supreme Court case and no Court of
Appeals case other than Brownstein that recognizes or gives
content to the concept of "strategic behavior" outside the
context of a state procedural default.0 Moreover, we think it
0
We perceive some irony in the fact that Brownstein finds a
"strategic behavior" bar implicit in Fay. In Fay, it will be
recalled, the state procedural default was a failure to assert
the coerced confession claim in a direct appeal. Noia made a
deliberate decision not to appeal in part because he had not
received a death sentence and feared he might receive one if
convicted after a new trial. Only fourteen years later, after
the state's ability to retry him in the absence of the confession
had been impaired, did he seek collateral relief, first from the
state and then from the federal court. The Supreme Court
recognized that Noia had obtained a benefit from his procedural
default. His strategic behavior was of no moment, however,
because "[u]nder no reasonable view can the State's version of
Noia's reason for not appealing support an inference of
deliberate by-passing of the state court system." 372 U.S. at
439 (emphasis supplied).
0
All but one of the habeas cases the district court cited as
authority for refusing to entertain Reynolds' habeas petition
involved bars to federal habeas review premised on state
procedural default, forfeiture rules which the defendants and/or
their counsel were or should have been aware of, or,
equivalently, a petitioner's deliberate abandonment of state
recourse in favor of collateral federal review. See Reed v.
Ross, 468 U.S. 1, 8 & n.5, 10 (1984) ("Under North Carolina law,
exceptions to jury instructions must be made after trial if they
are to be preserved for appellate review, and errors that could
have been raised on appeal may not be raised for the first time
in postconviction proceedings."); Wainwright v. Sykes, 43 U.S. at
76 n.5 (Florida Rule Crim. Proc. 3.190(i) imposed a
"contemporaneous objection rule"); Henry v. Mississippi, 379 U.S.
443, 445, 448 & n.3 (1965) (petitioner failed to comply with a
Mississippi contemporaneous-objection requirement; procedural
defaults in state proceedings do not prevent vindication of
federal rights in federal court except "where state rule is a
reasonable one and clearly announced to defendant and counsel");
Beaty v. Patton, 700 F.2d 110 (3d Cir. 1983) (rather than
petition Pennsylvania Supreme Court for allocatur, defendant
petitioned federal court for writ of habeas corpus); United
28
would be unwise and unfair to impose upon defense counsel the
burden of determining, on pain of having waived their clients'
right to federal habeas review, not only whether each tactical
trial choice is permissible under state law but also whether it
may ultimately be considered by a federal court to constitute
"strategic behavior."
Finally, we believe application of the Seventh
Circuit's "strategic behavior" concept to bar federal habeas
review in this case would do by way of federal law precisely what
we said in Reynolds I Delaware could not do by way of state law
-- bar federal habeas review through the creation and retroactive
application of a contemporaneous objection rule Reynolds' counsel
had no reason to anticipate. Clearly, the Supreme Court could
impose a "strategic behavior" restriction on access to federal
habeas review as the dissent suggests. We do not believe it has
done so, however. Further, having determined, as we recognized
States ex rel. Abdul-Sabur v. Cuyler, 653 F.2d 828 (3d Cir.
1981), aff'g 486 F. Supp. 1141, 1162 & n.31 (E.D. Pa. 1980)
(Becker, Dist. J.) ("classic example of waiver"; "under
Pennsylvania law, contemporary-objection is required to preserve
an issue for appeal"), cert. denied, 454 U.S. 1088 (1981); Green
v. Rundle, 452 F.2d 232, 236-37 (3d Cir. 1971) (under
Pennsylvania law, motions to sever multiple indictments and
motions regarding jury instructions must be made on timely
basis).
The final habeas case relied upon by the district court
is Estelle v. Williams, 425 U.S. 501 (1976), which we understand
to have granted habeas review and to have addressed the merits of
the petitioner's claim. Estelle ruled that, because the
petitioner had not asked to wear civilian clothing during his
state trial, the state could not have "compelled" him to be tried
in prison clothing in violation of the Fourteenth Amendment. 425
U.S. at 512-13.
29
in Reynolds I, that states may not bar federal habeas review
under the independent and adequate state ground doctrine of Sykes
by unfairly applying a new contemporaneous objection rule
retroactively, we doubt that the Supreme Court would see fit to
create and retroactively apply a contemporaneous objection rule
of its own.0
0
Cf. Ford v. Georgia, 111 S. Ct. 850, 858 (1991) (retroactively
applied state procedural-default rule not adequate to preclude
direct review by U.S. Supreme Court of equal protection attack on
state court judgment).
30
IV.
The judgment of the district court will be reversed,
and this proceeding will be remanded to the district court for
consideration of the merits of Reynolds' petition.
31
George L. Reynolds v. Jack C. Ellingsworth, Warden;
Charles M. Oberly, III, No. 93-7106
SLOVITER, Chief Judge, dissenting.
Last term in Brecht v. Abrahamson, 113 S. Ct. 1710,
1719 (1993), the Supreme Court reiterated the principle that
state court convictions should be challenged primarily through
direct review. The Court emphasized, as it has before, that the
Great Writ of habeas corpus is to be reserved for extraordinary
situations:
The principle that collateral review is
different from direct review resounds
throughout our habeas jurisprudence. Direct
review is the principal avenue for
challenging a conviction. "When the process
of direct review . . . comes to an end, a
presumption of finality and legality attaches
to the conviction and sentence. The role of
federal habeas proceedings, while important
in assuring that constitutional rights are
observed, is secondary and limited. Federal
courts are not forums in which to relitigate
state trials."
In keeping with this distinction, the
writ of habeas corpus has historically been
regarded as an extraordinary remedy, "a
bulwark against convictions that violate
'fundamental fairness.'" "Those few who are
ultimately successful [in obtaining habeas
relief] are persons whom society has
grievously wronged and for whom belated
liberation is little enough compensation."
Id. at 1719 (citations omitted).
Significantly, the Court also noted that "it hardly
bears repeating that 'an error that may justify reversal on
direct appeal will not necessarily support a collateral attack on
a final judgment,'" Id. at 1720 (internal citations omitted),
and that "'[l]iberal allowance of the writ . . . degrades the
32
prominence of the trial itself' and at the same time encourages
habeas petitioners to relitigate their claims on collateral
review," Id. at 1720-21 (citation omitted).
In this case, the majority "ha[s] no difficulty in
concluding that the evidence before the [state] court would have
supported a factual finding that strategic decisions were made."
Maj. typescript op. at 16. Nonetheless, the majority concludes
that federal habeas relief is not barred under Fay v. Noia, 372
U.S. 391 (1963), because counsel's decision was made in a "legal
landscape in which they could go forward in hope of an acquittal
by the jury and raise the due process argument in a Rule 35
proceeding." Maj. typescript op. at 21. I respectfully dissent
because I believe that the extraordinary remedy of habeas corpus
is not meant to grant relief to someone who deliberately and
strategically declined the opportunity to assert his rights
during his state trial and direct appeal.
I.
Although the majority "assume[s] arguendo" that Fay
"retains independent vitality" subsequent to the Supreme Court's
decisions in Wainwright v. Sykes, 433 U.S. 72 (1977), Murray v.
Carrier, 477 U.S. 478 (1986), and Coleman v. Thompson, 111 S. Ct.
2546 (1991), it does so only grudgingly, stating that there is
"substantial support" for the view that Sykes' "independent and
adequate state law ground" has "subsumed the 'deliberate bypass'
rule of Fay." Maj. typescript op. at 11. Because the viability
33
of Fay underlies my approach to this case, I discuss it
notwithstanding the majority's concession.
One of the two principal prongs of the Fay holding was
that a state procedural default did not constitute a bar to
federal court review under the federal habeas statutes comparable
to the bar of direct Supreme Court review effected by an adequate
and independent state law ground. The other prong gave
discretion to the federal courts to deny relief to a petitioner
who had deliberately bypassed the orderly procedure of the state
courts and, in so doing, forfeited available state court
remedies. See Fay, 372 U.S. at 428-35.
Fourteen years later, after gradual erosion of the
first prong of the Fay rule, the Supreme Court in Sykes
reinvigorated the independent and adequate state ground basis of
precluding of federal habeas review because of procedural
defaults. Instead of Fay's "deliberate bypass" rule, the Court
applied the "cause and prejudice" test to procedural defaults.
The suggestion here by the majority that a procedural default may
be tested only under the "cause and prejudice" test disregards
the context in which the Sykes rule replaced that of Fay.
It is no surprise that the Court itself has
characterized the Fay "deliberate bypass" test as a "lower
standard" than that it adopted under the "cause and prejudice"
test. See Keeney v. Tamayo-Reyes, 112 S. Ct. 1715, 1720 (1992).
See also Sykes, 433 U.S. at 87 (the "cause" and "prejudice"
standard is "narrower" than the Fay test). Fay was supplanted
because the Court was uncomfortable with "an all-inclusive rule
34
rendering state contemporaneous objection rules ineffective to
bar review of underlying federal claims in federal habeas
proceedings -- absent a 'knowing waiver' or 'deliberate bypass'
of the right to so object." Id. at 85. In light of that
background, the principles and purposes behind habeas corpus, the
policy against relitigation of matters that have been concluded,
and the Court's recent jurisprudence, it is not likely that the
Supreme Court would disapprove the continued vitality of the Fay
"deliberate bypass" test in a situation like the present one
where this court held the "cause and prejudice" test
unavailable.0
II.
One of the bases for the current habeas jurisprudence
is the view expressed in Sykes, over a strong dissent by Justices
Brennan and Marshall, that the Fay test was not sufficiently
respectful of the states' interests in their procedural default
rules. The Court explained:
0
Although the majority accepts without discomfort our holding in
Reynolds v. Ellingsworth (Reynolds I), 843 F.2d 712, 719 (3d
Cir.), cert. denied, 488 U.S. 960 (1988), I cannot avoid some
comment on the curious nature of that decision. As the majority
notes, the Superior Court of Delaware, affirmed by the Supreme
Court of Delaware, held that Reynolds had waived his right to
object to the prosecutor's opening comments and the court's
failure to sua sponte give a curative instruction because he
failed to make a contemporaneous objection as required by the
Delaware Supreme Court's earlier opinion in Conyers v. State, 422
A.2d 345, 346 (Del. 1980) (per curiam). Nonetheless, despite the
fact that in this very case the Delaware Supreme Court
acknowledged that Conyers had enunciated such a rule, this court
held that the absence of a governing "specific Delaware
procedural rule" precluded our finding that Conyers constituted
an adequate and independent state procedural ground supporting
default.
35
We think that the rule of Fay v. Noia,
broadly stated, may encourage "sandbagging"
on the part of defense lawyers, who may take
their chances on a verdict of not guilty in a
state trial court with the intent to raise
their constitutional claims in a federal
habeas court if their initial gamble does not
pay off.
433 U. S. at 89.
The Court again stressed the significance of state
procedural rules in Keeney, 112 S. Ct. at 1720, where it held
that the "cause and prejudice" test was applicable to a
petitioner's negligent failure to develop material facts in the
state court proceeding. The Court noted that "[i]n Wainwright v.
Sykes, we rejected the application of Fay's standard of 'knowing
waiver' or 'deliberate bypass' to excuse a petitioner's failure
to comply with a state contemporaneous-objection rule, stating
that the state rule deserved more respect than the Fay standard
accorded it." Id. at 1718 (citation omitted). The Court
referred to its decision the year before in Coleman v. Thompson,
111 S. Ct. 2546 (1991), where "we described Fay as based on a
conception of federal/state relations that undervalued the
importance of state procedural rules." Keeney, 112 S. Ct. at
1718-19. In Coleman, the Court had stated:
The cause and prejudice standard in federal
habeas evinces far greater respect for state
procedural rules than does the deliberate
bypass standard of Fay. These incompatible
rules are based on very different conceptions
36
of comity and of the importance of finality
in state criminal litigation.
111 S. Ct. at 2563.
A fortiori, habeas impinges at the very heart of
federalism principles. The majority opinion's view that the
federalism concerns that underlie Sykes' and Fay's default rules
do not exist when there is no "independent and adequate" state
procedural bar is belied by the Court's holding in McClesky v.
Zant, 499 U.S. 467, 493 (1991). Even though there had been no
state procedural default because the case arose in the context of
the abuse of writ doctrine (which can be viewed as a default in a
prior federal habeas petition), the Court recognized that
federalism concerns are still implicated. It commented that "the
doctrines of procedural default and abuse of the writ are both
designed to lessen the injury to a State that results through
reexamination of a state conviction on a ground that the State
did not have the opportunity to address at a prior, appropriate
time; and both doctrines seek to vindicate the State's interest
in the finality of its criminal judgments." Id.
Admittedly in this case there may not have been a
concerted effort to bypass all state review in favor of federal
court review, but federalism, although an important rationale for
habeas jurisprudence, is not the only consideration. The
emphasis in McClesky on the significance of finality of criminal
convictions ("Without finality, the criminal law is deprived of
much of its deterrent effect." Id. at 491 (quotations omitted))
has been a frequent theme in habeas cases. See e.g., Keeney, 112
37
S. Ct. at 1718 ("The writ strikes at finality of a state criminal
conviction, a matter of particular importance in a federal
system.").
Moreover, the procedural default rules, including as
well the Fay "deliberate bypass" test, are based, in part, on
equitable principles. Thus, the holding of Fay "that the federal
habeas judge may in his discretion deny relief to an applicant
who has deliberately bypassed the orderly procedure of the state
courts and in so doing has forfeited his state court remedies" is
based on the equitable principle that "a suitor's conduct . . .
may disentitle him to the relief he seeks." 372 U.S. at 438.
IV.
The majority assumes, as indeed it must in light of the
state court's evidentiary findings, that, in the words of the
Delaware Supreme Court, "a strategic choice was made" by
Reynolds' counsel in failing to object. App. at 10. Nonetheless,
the majority concludes that despite these findings Reynolds'
failure to object did not amount to a "deliberate bypass." Such
a constrictive approach to "deliberate bypass" is inconsistent
with the Fay Court's own explanation of what it encompasses:
The classic definition of waiver enunciated
in Johnston v. Zerbst, 304 U.S. 458, 464--"an
intentional relinquishment or abandonment of
a known right or privilege"--furnishes the
controlling standard. If a habeas applicant,
after consultation with competent counsel or
otherwise, understandingly and knowingly
forewent the privilege of seeking to
vindicate his federal claims in the state
courts, whether for strategic, tactical, or
any other reasons that can fairly be
described as the deliberate by-passing of
state procedures, then it is open to the
38
federal court on habeas to deny him all
relief if the state courts refused to
entertain his federal claims on the merits.
Fay, 372 U.S. at 439.0
No Supreme Court decision supports the majority's view
that Reynolds "strategic choices" did not constitute a
"deliberate bypass" merely because Reynolds could have believed
that he could bring his claim in a Rule 35 proceeding and
therefore was not attempting to bypass the state courts.0 Indeed,
the only court of appeals to have considered the issue decided
that a strategic decision not to raise an objection constituted a
deliberate bypass. In Brownstein v. Director, Illinois Dep't of
Corrections, 760 F.2d 836 (7th Cir.), cert. denied, 474 U.S. 858
(1985), the state court failed to admonish defendant Brownstein
of his right to a jury trial. Brownstein knew that he was
entitled to a jury trial, and could have asked for it but
0
Notwithstanding the language of Fay requiring that the bypass be
personal, and not that of the defendant's attorney, later cases
have held that a litigant is bound by the conduct of his
attorney. See Henry v. Mississippi, 379 U.S. 443, 451 (1965)
("[C]ounsel's deliberate choice of the strategy would amount to a
waiver binding on petitioner and would preclude him from a
decision on the merits of his federal claim either in the state
courts or here."); see also McClesky, 499 U.S. at 494 ("Attorney
error short of ineffective assistance of counsel . . . does not
constitute cause and will not excuse a procedural default.");
Murray v. Carrier, 477 U.S. 478, 488 (1986) ("So long as a
defendant is represented by counsel whose performance is not
constitutionally ineffective . . . we discern no inequity in
requiring him to bear the risk of attorney error that results in
a procedural default."); see generally Link v. Wabash R.R. Co.,
370 U.S. 626, 633-34 (1962) ("Petitioner voluntarily chose this
attorney as his representative in the action, and he cannot now
avoid the consequences of the acts or omissions of this freely
selected agent.").
0
We note in passing that there was no testimony by counsel that
they had, in fact, adopted the plan hypothesized by the majority.
39
"deliberately chose to have two chances at acquittal," id. at
843-44, because his counsel believed he could "use the judge's
omission to secure a new trial should he lose the first time
around." Id. at 839. Despite the fact that there was no
state court finding of procedural default to which the Sykes
"cause and prejudice" rule would apply (because the state court
had erroneously found there had been notice and waiver of a jury
trial), the federal courts, both district and court of appeals,
found a deliberate bypass under Fay.
The facts are strikingly similar to those here. In
Reynolds I the Sykes "cause and prejudice" test was also found
inapplicable. The majority's scenario for the strategy of
counsel is that they, as did counsel in Brownstein, sought two
chances, a jury acquittal or subsequent new trial. It follows
that the reasoning of the Seventh Circuit is of particular
relevance. In holding that "[Fay v.] Noia enables us to look
beyond the state procedural rules themselves," id. at 842, the
Brownstein court looked to equitable considerations under which
"'a suitor's conduct in relation to the matter at hand may
disentitle him to the relief he seeks.'" Id. (quoting Fay, 372
U.S. at 438). The Court thus held that "[i]n our judgment, [Fay
v.] Noia goes beyond procedural defaults and allows federal
judges to deny habeas relief whenever the petitioner's strategic
behavior clearly requires it." Id. It continued, "the
deliberate by-pass standard of [Fay v.] Noia, relying on general
equitable principles, does not require the by-pass of a
requirement; the passing by of a mere opportunity may be enough,
40
and in this case is enough, to call that standard into play." Id.
(emphasis added). The court thus concluded, "Although
[Brownstein] did everything state procedural rules required, [he]
did not do everything he could have; and the reason he did not
was a strategic one: he wanted the chance of another trial, if he
lost the first time. . . . We hold that he is not entitled to
federal relief." Id. at 844.
The majority, by disapproving the result reached by the
Seventh Circuit, thus creates a circuit split. Although it
purports to find support in Lefkowitz v. Newsome, 420 U.S. 283
(1975) and County Court of Ulster County v. Allen, 442 U.S. 140
(1979), neither of those cases is applicable. In both cases,
unlike here, the state appellate courts had heard the merits of
the petitioners' claims notwithstanding the claimed procedural
defaults. Both Supreme Court opinions gave that as a significant
reason why consideration on the merits by a federal court was not
barred. See Lefkowitz, 420 U.S. at 292 n.9 ("But the Court also
held that if the state courts have entertained the federal
constitutional claims on the merits in a subsequent proceeding,
notwithstanding the deliberate bypass, the federal courts have no
discretion to deny the applicant habeas relief to which he is
otherwise entitled.") (citations omitted).
The majority relies on the statement in Allen that "if
neither the state legislature nor the state courts indicate that
a federal constitutional claim is barred by some state procedural
rule, a federal court implies no disrespect for the State by
entertaining the claim." Allen, 442 U.S. at 154. One difficulty
41
with the majority's position is that the state courts did
indicate that they viewed Reynolds' federal constitutional claim
as barred by some state procedural rule and refused to hear his
claim. The fact that this court did not agree with the state
courts' interpretation of their own procedural rule, see dissent
note 1 supra, and held that it was not "adequate and
independent," Reynolds I, 843 F.2d at 719, does not mean that we
can pretend that the state courts heard this claim on the merits
when they did not.
It is important to note that notwithstanding the
majority's skepticism that trial counsel "deliberate bypassed"
the claim relating to the opening statement in the state trial
court, the record is clear that appellate counsel made a
deliberate decision not to raise the issue on direct appeal for
tactical purposes. He testified:
Q. Do you know the reason that was not raised on
appeal?
A. The reason it was not raised on appeal was
because, as far as I am concerned, the better
grounds for appeal were the interpretation of the
stipulation regarding the truth serum and also the
very good ground of the newly-discovered evidence
when we had the investigating officer saying he
believed the wrong man had been convicted.
App. at 77. Thus the case cannot be governed by Lefkowitz and
Allen, where counsel raised the issue in the state appeals
courts. Nor is it like the decision of Noia not to appeal, also
cited by the majority as governing here. As Justice Brennan
noted, had Noia appealed he would have run a substantial risk of
42
electrocution. Thus, he stated, "under the circumstances [Noia's
choice] cannot realistically be deemed a merely tactical or
strategic litigation step." Fay, 372 U.S. at 440. On the other
hand, Justice Brennan continued, "[t]his is not to say that in
every case where a heavier penalty, even the death penalty, is a
risk incurred by taking an appeal or otherwise foregoing a
procedural right, waiver as we have defined it cannot be found.
Each case must stand on its facts." Id.
Essentially, the "deliberate bypass" by Reynolds'
counsel of the opportunity to object when it might have had a
curative effect gave the district court the discretion to decline
to exercise its habeas jurisdiction, and its decision to do so
was reasonable. The Supreme Court has repeatedly warned against
using habeas to "give litigants incentives to withhold claims for
manipulative purposes and [] establish disincentives to present
claims when evidence is fresh." McClesky, 499 U.S. at 491-92.
See also Brecht v. Abrahamson, 113 S. Ct. 1710, 1720-21
("'liberal allowance of the writ . . .' encourages habeas
petitioners to relitigate their claims on collateral review");
Keeney, 112 S. Ct. at 1718 (Habeas review "may give litigants
incentives to withhold claims for manipulative purposes.").
There are powerful reasons to discourage a defendant
from bypassing opportunities to object during his trial. As the
Supreme Court stated in Estelle v. Williams, 425 U.S. 501, 508
n.3 (1976), a case cited by the majority, "if the defendant has
an objection, there is an obligation to call the matter to the
43
court's attention so the trial judge will have an opportunity to
remedy the situation."
One of the goals of procedural default rules is to
encourage full factual development in state court. See Coleman,
111 S. Ct. at 2563. See also Brecht, 113 S. Ct. at 1721 ("state
courts often occupy a superior vantage point from which to
evaluate the effect of trial error"). This consideration was
referred to expressly in Sykes where the Court noted the benefits
of rules requiring defendants to make their objections during
trial:
A contemporaneous objection enables the
record to be made with respect to the
constitutional claim when the recollections
of witnesses are freshest, not years later in
a federal habeas proceeding. It enables the
judge who observed the demeanor of those
witnesses to make the factual determinations
necessary for properly deciding the federal
constitutional question. . . .
A contemporaneous-objection rule may
lead to the exclusion of the evidence
objected to, thereby making a major
contribution to finality in criminal
litigation . . . the jury may acquit the
defendant, and that will be the end of the
case; or it may nonetheless convict the
defendant, and he will have one less federal
constitutional claim to assert in his federal
habeas petition. . . . An objection on the
spot may force the prosecution to take a hard
look at its hole card.
433 U.S. at 88-89 (footnote omitted).
Perhaps the Court gave the most succinct summary of the
rationale for its habeas jurisprudence in Sykes where it stated:
"the state trial on the merits" should be "the 'main event,'. . .
44
rather than a 'tryout on the road' for what will later be the
determinative federal habeas hearing." 433 U.S. at 90.
On remand from this court, the district court made the
"deliberate bypass" inquiry and found that it was bound by the
findings of the state evidentiary hearing, which "was by all
accounts full, fair, and adequate." Reynolds v. Ellingsworth,
1992 WL 404453, at *8 (D.Del. Dec. 31, 1992). Based on those
findings and the court's review of the record, the court
concluded that Reynolds' attorneys chose not to object to the
prosecutor's opening statement, preferring "to gamble that the
jury would forget the references and eventually find Reynolds not
guilty in light of the scanty case presented by the State." Id.
at *9. That was "precisely the kind of calculated decision that
Henry v. Mississippi and related precedent warned against." Id.
The court concluded, similar to the holding in Brownstein, that
"[a] defendant in state court may not, in short, use federal
habeas proceedings as a hedge against the chance that his or her
guess with regard to the jury will turn out to be incorrect." Id.
I agree with the district court. Reynolds took his
chances and he lost. He engaged in the kind of strategic
behavior that disentitles him to habeas relief.
45
46