Flamer v. State of DE

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

10-19-1995

Flamer v State of DE
Precedential or Non-Precedential:

Docket 93-9000

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 93-9000
____________

WILLIAM H. FLAMER

v.

STATE OF DELAWARE, DARL CHAFFINCH,
RAYMOND CALLAWAY, HAROLD K. BRODE,
WILLIAM H. PORTER, GARY A. MYERS,
LOREN C. MEYERS, DANA REED, JAMES E.
LIGUORI, CHARLES M. OBERLY, III,
WALTER REDMAN, STANLEY W. TAYLOR, Acting Warden;
WARDEN ROBERT SNYDER

William Henry Flamer

Appellant

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
(D.C. Civil No. 87-00546)
____________________

Argued: February 16, 1994
Before: BECKER, HUTCHINSON,* and ALITO, Circuit Judges

(Opinion Filed: October 19, 1995)

____________________

CHARLENE D. DAVIS, ESQ. (Argued)
Bayard, Handelman & Murdoch, P.A.
902 Market Street, 13th Floor
P. O. Box 25130
Wilmington, DE 19899

JOSHUA L. SIMON, ESQ.
Law Office of David Staats
Concord Plaza Office Park
3411 Silverside Road
Rodney Building, Suite 100H

1
 Wilmington, DE 19810

Attonreys for Appellant

_________________________

*Judge Hutchinson participated in the panel argument and
conference, but died before this opinion was filed.

GARY A. MYERS, ESQ. (Argued)
Deputy Attorney General
Delaware Department of Justice
114 Market Street
Market Street Center, Suite 201
Georgetown, DE 19947

PAUL R. WALLACE, ESQ.
CARL C. DANBERG, ESQ.
Department of Justice
820 North Front Street
Wilmington, DE 19801

Attorneys for Appellees

____________________

OPINION OF THE COURT
____________________

ALITO, Circuit Judge:

William Henry Flamer, whose first-degree murder

conviction and death sentence were affirmed by the Delaware

Supreme Court, took this appeal from an order of the district

court denying his petition for a writ of habeas corpus. When

Flamer's appeal was initially presented to this panel, he argued:

(1) that his confession was obtained in violation of the Fifth

and Sixth Amendments and therefore should have been suppressed;

(2) that his trial counsel was constitutionally ineffective; (3)

2
that the penalty-phase jury instructions violated the Eighth

Amendment because they improperly implied that the jury's

imposition of a death sentence would be reviewed by an appellate

court; (4) that the penalty-phase jury instructions violated the

Eighth Amendment because they referred to vague and duplicative

statutory aggravating circumstances; and (5) that the district

court record should have been expanded to include the criminal

record of Flamer's accomplice, Andre Deputy. The fourth of these

arguments was similar to an argument that was raised in Bailey v.

Snyder, No. 93-9002, which was heard by another panel of our

court while Flamer's appeal was under consideration by this

panel. Before a panel opinion was filed in either case, the full

court voted to rehear both cases for the purpose of addressing

the shared issue. In this opinion, the panel that initially

heard Flamer's appeal discusses and rejects all of Flamer's

arguments other than the argument that was considered by the

court in banc. The latter issue is addressed and rejected in a

separate opinion that is being filed simultaneously on behalf of

the in banc court. Therefore, the order of the district court

denying Flamer's petition for a writ of habeas corpus will be

affirmed.

I.

The bodies of Byard and Alberta Smith, an elderly

couple, were discovered by their 35-year old son, Arthur, on the

morning of February 7, 1979, in their home just outside

Harrington, Delaware. Byard Smith had been stabbed 79 times,

3
primarily in the head and neck. His wife, Alberta, had been

stabbed 66 times. Both victims had been stabbed with two knives.

The Smiths were found on the floor of the living room, surrounded

by blood and overturned chairs. Byard Smith's pockets had been

turned out and emptied. In the kitchen, packages of frozen food

lay strewn about the floor. The Smiths' car and television set

were missing.

Upon discovering the bodies, the Smiths' son

immediately called the police. Within hours, the police located

the stolen car and identified William Henry Flamer, a nephew of

Alberta Smith, as a possible suspect. The police went to

Flamer's residence, which he shared with his grandmother and his

father, and Flamer's grandmother invited the police to search the

home. In Flamer's room, they discovered packages of frozen food

similar to those found on the floor of the Smiths' kitchen. The

Smiths' television set and fan were discovered in the kitchen

closet, and a blood-encrusted bayonet was found on a stand in the

kitchen.

The police presented their evidence to a Justice of the

Peace and obtained a warrant to arrest Flamer for murder in the

first degree. Acting on information that Flamer was in the Blue

Moon Tavern on Route 13, the police discovered him walking near

the tavern with two companions. Flamer had blood on his hands

and clothing and fresh scratches on his neck and chest. The

police arrested Flamer and brought his companions in for

questioning. One of Flamer's companions, Ellsworth Coleman, was

4
released soon thereafter. The other man, Andre Deputy,0 was

found to be carrying several items belonging to the Smiths,

including two watches and a wallet containing Byard Smith's

driver's license, automobile registration, and Social Security

card.

Flamer and Deputy were questioned, at times together

and at times separately, from 4:00 in the afternoon until 7:00 or

8:00 that evening at Troop 5 in Bridgeville. The men gave

conflicting accounts, each blaming the other for the murders.

Miranda rights were read to Flamer several times during the

interrogation, and each time, he waived his right to an attorney.

Flamer claimed at a later suppression hearing that he repeatedly

asked permission to call his mother so that she could contact

Herman Brown, Sr., their family's lawyer, to represent him.

However, this testimony was not credited by the Delaware courts,

which found that Flamer did not request an attorney until his

arraignment. See Flamer v. State ("Flamer IV"), 585 A.2d 736,

747 (Del. 1990); Flamer v. State ("Flamer I"), 490 A.2d 104, 114

(Del. 1983 and 1984).

There was a snowstorm on the day of the arrest, and the

Harrington Justice of the Peace had closed at 4 p.m. Rather than

drive Flamer to Dover, which was the nearest available site for

an arraignment, the police placed him in a cell in Troop 5

overnight. Without further interrogation, Flamer was brought

0
See Deputy v. Taylor, 19 F.3d 1485 (3d Cir.), cert. denied, 114
S. Ct. 2730 (1994).

5
before the Harrington Justice of the Peace in the morning for his

initial appearance.

At the arraignment, Flamer was informed of the charges

against him and was again informed of his rights. Flamer asked

the magistrate whether he could call his mother in order to ask

about possible representation by Herman Brown, Sr. The

magistrate told him he would be able to do so but also appointed

the Public Defender to represent him in the interim. Flamer was

then committed to Sussex County Correctional Institution without

bail.

After the arraignment, Flamer called his mother,

Mildred Smith, the half-sister of Alberta Smith. Flamer's mother

told him that Herman Brown, Sr. had retired. Flamer arranged to

meet his mother at Troop 5 before he was taken to the

correctional facility, and she spoke with her son briefly at

Troop 5 after the arraignment. Soon after Mildred Smith's

departure, Corporal Porter, one of the officers who had

questioned Flamer a day earlier, addressed him as follows:
I asked him, I said, "Do you believe in God?"
and he said, "Yeah." I said, "Then you got
to believe in heaven and hell, right?" He
said, "Yeah." I said, "Well, then you're
going to burn in hell unless you get straight
with me about what's happened today" or "what
happened yesterday. I want you to tell me."
I said, "You have to clear your conscience of
what's going on" and this is when he started
weakening up a little bit. He had some tears
in his eyes and he said, "Okay, I'll talk to
you." That's when I took him out of the
cell.

Joint Appendix ("JA") at 1096. A short time later, Flamer

confessed.

6
 In his confession, which was given before he had

consulted an attorney, Flamer gave the following account of the

murders. After a day of drinking, he and Andre Deputy went to

the Smiths' house just before midnight in order to rob them. Id.

at 32. They brought with them a bayonet, a smaller knife, and a

shotgun, and they hid the shotgun outside the Smiths' home.

Flamer carried the smaller knife, and Deputy concealed the

bayonet under his coat. In order to gain entry to the Smiths'

home, Flamer told Alberta Smith that his grandmother had had a

stroke and was missing. Id. at 32. Flamer and Deputy stood just

inside the house speaking to the Smiths for about ten or fifteen

minutes until Flamer, acting on a signal from Deputy, began to

stab Byard Smith with the smaller knife, which he later threw

away when he was stopped by the police on Route 13. Id. at 33-

34. After Flamer began stabbing his uncle, Deputy began to stab

Alberta Smith with the bayonet. At some point, Deputy also

stabbed Byard Smith with the bayonet. After the couple died, the

two men searched the bodies for money and found four wallets. Id.

at 36. They fled in the Smiths' car, which they had loaded with

property stolen from the house.

The two men drove to Flamer's home, where they stored

some stolen items and burned three of the four wallets that they

had taken from the Smiths. (The fourth was recovered from Deputy

when the men were arrested.) Id. at 36. Flamer left his home

alone in the Smiths' car. Outside Felton, Delaware, he became so

drunk that he fell asleep. When he awoke, the car's battery was

dead. Id. at 36-37. He abandoned the car, went to the Blue Moon

7
Tavern to meet Deputy and to shoot pool and drink, and he was

arrested a few hours later.

Flamer was tried before a jury in 1980 on four charges

of murder in the first degree,0 possession of a deadly weapon

during the commission of a felony, first-degree robbery, and

misdemeanor theft. Id. at 648. Among the witnesses at the trial

was the state medical examiner, who had performed autopsies on

the bodies of Alberta and Byard Smith. The medical examiner

testified that both bodies had been stabbed with two different

weapons, a bayonet and a smaller knife described as a kitchen

paring knife. Id. at 1070-72. She testified that 19 of the

wounds on Byard Smith were made by the bayonet, eight were from

the paring knife, and 52 could have come from either weapon.

Regarding Alberta Smith's wounds, the medical examiner testified

that 25 wounds were inflicted by the bayonet, two by the paring

knife, and 39 could have come from either weapon. Id.

The jury convicted Flamer on all charges, id. at 1416-

17, and the trial then proceeded to the penalty phase. Defense

0
Del. Code Ann. tit. 11, § 636(a), provides in pertinent part as
follows:

A person is guilty of murder in the first degree when:

(1) He intentionally causes the death of another
person;

(2) In the course of and furtherance of the
commission or attempted commission of a felony or
immediate flight therefrom, he recklessly causes
the death of another person.

Flamer was tried on both of these theories of first-degree murder
for each of his two victims.

8
counsel called as witnesses the defendant, his mother, and his

grandmother. Defense counsel introduced into evidence the

reports of a psychologist and psychiatrist who had examined

Flamer. Id. at 59-63, 65-67. Both reports concluded that Flamer

seemed to be of low but normal intelligence, with no symptoms of

psychosis or other mental illness, and would be competent to

assist in his own defense and to stand trial. The psychiatrist's

report diagnosed Flamer as an alcoholic, and stated that he had

admitted being intoxicated at the time of the murders. After

deliberating for about two hours and twenty minutes, the jury

returned and imposed a penalty of death for each of the murder

convictions.

In February 1983, the Delaware Supreme Court affirmed

Flamer's convictions on direct appeal, but withheld decision on

the death sentences pending the resolution of two death-penalty

cases before the United States Supreme Court. Flamer I, 490 A.2d

at 110-20. Following the denial of Flamer's certiorari petition

to the United States Supreme Court, 464 U.S. 865 (1983), and more

briefing in the Delaware Supreme Court, the Delaware Supreme

Court affirmed Flamer's death sentences in September 1984. Flamer
I, 490 A.2d at 120-58. Flamer again petitioned the United States

Supreme Court for a writ of certiorari, but his petition was

denied on October 7, 1985. 474 U.S. 865 (1985).

In June 1986, Flamer filed a motion for state post-

conviction relief pursuant to Delaware Superior Court Criminal

9
Rule 35(a),0 asserting various claims, including ineffective

assistance of counsel and some issues that he had raised on

direct appeal. This motion was denied, and Flamer appealed the

denial to the Delaware Supreme Court. In February 1988, the

Delaware Supreme Court issued an order consolidating Flamer's two

post-conviction relief petitions and remanded to the Superior

Court for a second post-conviction hearing pursuant to its newly

promulgated Rule 61.0 State v. Flamer ("Flamer II"), No. 216,

0
Rule 35, which was superseded in 1988 by Rule 61, permitted a
court (a) to correct an illegal sentence at any time and (b) to
correct a sentence imposed in an illegal manner upon motion
within four months after sentence was imposed. Del. Super. Ct.
Crim. Rule 35.
0
Rule 61 "governs the procedure on an application by a person in
custody . . . under a sentence of this court to set aside a
judgment of conviction on the ground that the court lacked
jurisdiction to enter the judgment or on any other ground that is
a sufficient factual and legal basis for a collateral attack upon
a criminal conviction." Del. Super. Ct. Crim. Rule 61(a)(1). A
motion for Rule 61 relief "shall specify all the grounds for
relief which are available and of which the movant has, or, by
the exercise of reasonable diligence, should have knowledge."
Del. Super. Ct. Crim. Rule 61(b)(2). In addition to establishing
routine procedures such as for the appointment of counsel and the
timing and content of supporting briefs, Rule 61 permits the
court to hold an evidentiary hearing or expand the record if
necessary. See Del. Supr. Ct. Crim. Rule 61(b)-(h).

Subsection (i) of Rule 61 establishes the procedural bars to
relief. Subsection (i)(1) limits the time in which to file a
motion for postconviction relief to three years after the time
the judgment of conviction becomes final or, "if it asserts a
retroactively applicable right that is newly recognized after the
judgment is final, [to no] more than three after the right is
first recognized by the Supreme Court of Delaware or by the
United States Supreme Court." Del. Super. Ct. Crim. Rule
61(i)(1). Subsection (i)(2) bars repetitive motions "unless
consideration of the claim is warranted in the interest of
justice." Del. Super. Ct. Crim. Rule 61(i)(2). Subsection
(i)(3) establishes "procedural default" for "[a]ny ground for
relief that was not asserted in the proceedings leading to the
judgment of conviction" unless there is "[c]ause for relief from

10
1987 (Del. Feb. 19, 1988). In April 1988, Flamer filed a new

petition for post-conviction relief expanding upon his earlier

claims. After supplemental briefing and an evidentiary hearing,

the Superior Court denied Flamer's petition in June 1989. State

v. Flamer ("Flamer III"), Nos. IK79-11-0236-R1, -0237-R1, -0238-

R1, and -0239-R1. (Del. Super. Ct. June 16, 1989). This denial

was affirmed by the Delaware Supreme Court in December 1990.

Flamer IV, 585 A.2d at 745.

In addition to his state post-conviction relief

petitions, Flamer filed a federal habeas petition in August 1987.

In July 1989, this petition was stayed because Flamer had not yet

exhausted his state post-conviction remedies. Once the Delaware

Supreme Court affirmed the denial of Flamer's state petition, the

federal stay was lifted. In October 1991, Flamer filed his third

amended petition in the district court. In June 1993, the

district court denied that petition. Flamer v. Chaffinch, 827 F.

Supp. 1079 (D. Del. 1993). Flamer then took the appeal now

before us.

II.

the procedural default" and "[p]rejudice from violation of the
movant's rights." Del. Super. Ct. Crim. Rule 61(i)(3). Likewise,
subsection (i)(4) bars any claim previously adjudicated unless
"warranted in the interest of justice." Del. Super. Ct. Crim.
Rule 61(i)(4). Finally, subsection (i)(5) provides that the bars
established in subsections (i)(1)-(3) do not apply to a claim the
court lacked jurisdiction or to "a colorable claim that there was
a miscarriage of justice because of a constitutional violation
that undermined the fundamental legality, reliability, integrity
or fairness of the proceedings leading to the judgment of
conviction." Del. Super. Ct. Crim. Rule 61(i)(5).

11
 Several of Flamer's arguments are based on the

confession that he gave shortly after his arraignment. Flamer

argues that this confession should have been suppressed under the

Fifth and Sixth Amendments. Because the legality of the

questioning that led to this confession is central to several of

Flamer's claims, we will address this question first. Our

analysis is divided into two parts. First, we will address

whether the police violated Flamer's rights under the Sixth

Amendment. Then we will consider whether they violated his Fifth

Amendment rights.

A. The Sixth Amendment Right to Counsel

As noted, Flamer asked for counsel at his arraignment.

By subsequently questioning him and obtaining the confession at

issue, Flamer contends, the police violated his Sixth Amendment

right to counsel. Flamer advances two theories to support this

argument. First, he argues that his confession should have been

suppressed under Brewer v. Williams, 430 U.S. 387 (1977), because

he did not voluntarily waive his right to an attorney after the

arraignment. Second, he asserts that the Supreme Court's

decision in Michigan v. Jackson, 475 U.S. 625 (1986), should be
applied retroactively to his case and requires the suppression of

his confession.

1. In Brewer, the defendant, a "deeply religious"

escapee from a mental institution, 430 U.S. at 390, 392, was

arrested on suspicion of murdering a young girl. The police

transported him from Davenport to Des Moines, Iowa, where he was

12
supposed to meet with his attorney. The police had agreed that

they would not interrogate Williams en route, but while driving

to Des Moines, a police officer, Detective Leaming, gave what has

come to be known as the "Christian burial speech."0 See id. at

392. Addressing Williams as "Reverend," the officer said that he

felt that they should locate the girl's body so that her parents,

whose child had been "snatched away from them on Christmas

[E]ve," could give her a Christian burial. 430 U.S. at 392-93.

Williams eventually led the police to the girl's body. Id. at

393.

0
The Court recounted the speech as follows:

"I want to give you something to think about
while we're traveling down the road. . . .
Number one, I want you to observe the weather
conditions, it's raining, it's sleeting, it's
freezing, driving is very treacherous,
visibility is poor, it's going to be dark
early this evening. They are predicting
several inches of snow for tonight, and I
feel that you yourself are the only person
that knows where this little girl's body is,
that you yourself have only been there once,
and if you get a snow on top of it you
yourself may be unable to find it. And,
since we will be going right past the area on
the way into Des Moines, I feel that we could
stop and locate the body, that the parents of
this little girl should be entitled to a
Christian burial for the little girl who was
snatched away from them on Christmas [E]ve
and murdered. And I feel we should stop and
locate it on the way in rather than waiting
until morning and trying to come back out
after a snow storm and possibly not being
able to find it at all."

430 U.S. at 392-93.

13
 The Supreme Court held that the Sixth Amendment

required the suppression of the evidence elicited by the

"Christian burial speech." Because judicial proceedings against

Williams had begun, the Court noted, he had the right to the

assistance of counsel. Id. at 398. In order to show that

Williams had waived this right, the Court held, the state was

required to prove "`an intentional relinquishment or abandonment

of a known right or privilege.'" Id. at 404 (quoting Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)). The Court also stated that,

in determining whether such a waiver had been made, it was

necessary to "indulge in every reasonable presumption against

waiver." Id. Viewing the question of waiver, not as "a question

of historical fact, but one which . . . requires `application of

constitutional principles to the facts as found,'" id. (citations

omitted), the Court concluded that the state had not established

that Williams had waived his right to counsel. The Court wrote:
Despite Williams' express and implicit
assertions of his right to counsel, Detective
Leaming proceeded to elicit incriminating
statements from Williams. Leaming did not
preface this effort by telling Williams that
he had a right to the presence of a lawyer,
and made no effort at all to ascertain
whether Williams wished to relinquish that
right. The circumstances of record in this
case thus provide no reasonable basis for
finding that Williams waived his right to the
assistance of counsel.

The Court of Appeals did not hold, nor
do we, that under the circumstances of this
case Williams could not, without notice to
counsel, have waived his rights under the
Sixth and Fourteenth Amendments. It only
held, as do we, that he did not.

14
Id. at 405-06 (emphasis in original).

In this case, the Delaware Supreme Court carefully

applied the legal standard set out in Brewer and concluded that

Flamer had made a valid waiver of his right to counsel. Flamer

I, 490 A.2d at 112-16. The court explained:
[W]e see the defendant as a twenty-five
year old male who reached the eleventh grade
of school, a convicted felon, and one who at
the outset informed the police he knew his
rights. There is no contention that he was
not on numerous occasions given his
constitutionally required rights as set forth
in Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L.Ed.2d 694 (1966). Nor is
there any contention that defendant from the
moment of arrest until contact was made with
him through the Public Defender's office,
ever attempted to invoke any of the Miranda
rights. Instead, when confronted with the
physical evidence seized by the police at his
home, the blood on the coat he was wearing
when he was arrested, the blood under his
fingernails, and the articles belonging to
the victim Byard Smith taken from one of his
companions at the time of arrest, defendant
volunteered fictitious stories of his
complicity in the crimes while at the same
time denying that he was guilty of killing
anyone. He first told the police he was home
asleep, that Andre Deputy aroused him, and
that he went to the murder scene to help
Deputy take the fruits of the murder to
defendant's house. Defendant next told the
police that he, Johnny Christopher and Andrew
Deputy, had gone into the victims' home, and
that it was Johnny who did the stabbing. In
the entire record of this case there appears
to be no time except initially when he
claimed to be home asleep, that defendant
denies his participation in the robberies and
murders, although throughout, including the
taking of his recorded statement, he
steadfastly denies actually inflicting the
fatal wound upon either victim. Neither is
there any evidence in the record of this case
that defendant was so religiously oriented

15
 that [Corporal Porter's] speech had the
effect upon this defendant as [the "Christian
Burial speech"] did upon the defendant in
Brewer v. Williams, 430 U.S. 387, 97 S. Ct.
1232, 51 L.Ed.2d 424 (1977).

Id. at 114-15.

Reviewing the waiver question de novo, the district
court reached the same conclusion, 827 F. Supp. at 1092-93, as do

we. While there are factual similarities between this case and

Brewer, we are convinced, based on the totality of the

circumstances, that Flamer understood his right to have an

attorney present before speaking to Corporal Porter and that he

validly waived that right. As noted by the state supreme court,

Flamer had an eleventh grade education and prior experience with

the criminal justice system. Before arraignment, he had been

repeatedly advised of his right to have an attorney present

during questioning, but he had repeatedly decided to speak with

the police without an attorney, telling a succession of different

stories in an obvious attempt to further his own interests. After

the arraignment but before giving the taped confession, Flamer

was again advised of his rights under Miranda v. Arizona, 384

U.S. 436 (1966), and he stated that he understood them. See

Patterson v. Illinois, 487 U.S. 285, 292-95 (1988). Moreover,

while Flamer's attorneys have referred to Corporal Porter's

remarks as a modified Christian burial speech, we agree with the

Delaware Supreme Court and the district court that there are

significant differences between the tactics employed by the

police in the two cases. The police in Brewer appear to have

16
capitalized on Williams' unusual susceptibility to a religious

appeal. Williams, as noted, was a "deeply religious" man with a

history of mental illness, and he was addressed by the police as

"Reverend." Here, by contrast, there is nothing in the record to

indicate that Flamer was especially religious or that he suffered

from any mental problems comparable to Williams'. Exercising

plenary review, taking into account the totality of the

circumstances, and applying the legal standard set out in Brewer,

we conclude that Flamer knowingly and voluntarily waived his

Sixth Amendment right to counsel before he confessed.

2. We thus turn to Flamer's argument that his post-

arraignment confession must be suppressed under Michigan v.

Jackson. In that case, the Supreme Court held that under the

Sixth Amendment, "if police initiate interrogation after a

defendant's assertion, at an arraignment or similar proceeding,

of his right to counsel, any waiver of the defendant's right to

counsel for that police-initiated interrogation is invalid." 475

U.S. at 636. Before considering the merits of Flamer's argument,

however, we must decide whether, as the state argues and the

district court held, the application of Jackson to this case
would violate the nonretroactivity principle of Teague v. Lane,

489 U.S. 288 (1989) (plurality), and subsequent Supreme Court

decisions. See, e.g., Caspari v. Bohlen, 114 S. Ct. 948, 952-53

(1994); Graham v. Collins, 113 S. Ct. 892, 879-98 (1993); Butler

v. McKellar, 494 U.S. 407, 412-14 (1990); Saffle v. Parks, 494

U.S. 484, 487-88 (1990); Penry v. Lynaugh, 492 U.S. 302 (1989).

17
 The Supreme Court has explained Teague's

nonretroactivity principle as follows:
The nonretroactivity principle prevents
a federal court from granting habeas corpus
relief to a state prisoner based on a rule
announced after his conviction and sentence
became final. See, e.g., Stringer v. Black,
502 U.S. ___, ___, 112 S. Ct. 1130, 1139, 117
L.Ed.2d 367 (1992). A threshold question in
every habeas case, therefore, is whether the
court is obligated to apply the Teague rule
to the defendant's claim. . . .

"[A] case announces a new rule if the
result was not dictated by precedent existing
at the time the defendant's conviction became
final." Teague v. Lane, 489 U.S., at 301,
109 S. Ct., at 1070. In determining whether
a state prisoner is entitled to habeas
relief, a federal court should apply Teague
by proceeding in three steps. First, the
court must ascertain the date on which the
defendant's conviction and sentence became
final for Teague purposes. Second, the court
must "[s]urve[y] the legal landscape as it
then existed," Graham v. Collins, supra, 506
U.S. at ____, 113 S. Ct., at 898, and
"determine whether a state court considering
[the defendant's] claim at the time his
conviction became final would have felt
compelled by existing precedent to conclude
that the rule [he] seeks was required by the
Constitution." Saffle v. Parks, 494 U.S.
484, 488, 110 S. Ct. 1257, 1260, 108 L.Ed.2d
415 (1990). Finally, even if the court
determines that the defendant seeks the
benefit of a new rule, the court must decide
whether that rule falls within one of the two
narrow exceptions to the nonretroactivity
principle. See Gilmore v. Taylor, 508 U.S.
___, ___ , 113 S. Ct. 2112, 2113, 124 L.Ed.2d
306 (1993).

Caspari, 114 S. Ct. at 953.
The first of these exceptions applies to decisions that

decriminalize "`certain kinds of primary, private individual

18
conduct beyond the power of the criminal-law making authority to

proscribe.'" Teague, 489 U.S. at 311 (quoting Mackey v. United

States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in the

judgment). The second exception, which applies to "watershed

rules of criminal procedure," id., is generally restricted to

decisions announcing "new procedures without which the likelihood

of an accurate conviction is seriously diminished." Id. at 313.

Proceeding in accordance with the three steps outlined

in Caspari, we first note that Flamer's conviction and sentence

became final for Teague purposes on October 7, 1985, when the

Supreme Court denied his petition for a writ of certiorari to

review the decision of the Delaware Supreme Court upholding his

conviction and death sentence on direct appeal. See Caspari, 114

S. Ct. at 953 ("A state conviction and sentence become final for

purposes of retroactivity analysis when the availability of

direct appeal to the state court has been exhausted and the time

for filing a petition for a writ of certiorari has elapsed or a

timely filed petition has been finally denied."); Griffith v.

Kentucky, 479 U.S. 314, 321 n.6 (1987).

Advancing to the second step, we note that Jackson had
not been decided on that date.0 We must therefore survey the

pre-Jackson legal landscape and determine whether a state court

would have felt compelled by existing Sixth Amendment precedent

to apply the Jackson rule even before it was embraced by the

Supreme Court. Addressing this question in Collins v. Zant, 892

0
Jackson was decided approximately six months later, on April 1,
1986. See 475 U.S. at 625.

19
F.2d 1502 (11th Cir.), cert. denied, 498 U.S. 881 (1990), the

Eleventh Circuit held that "the rule announced in Jackson

undoubtedly constitutes a `new rule'." Id. at 1511. The

Eleventh Circuit explained that Jackson "imposed a new obligation

on police (not to initiate an interrogation after a defendant has

asserted his right to counsel under the [S]ixth [A]mendment) and

established a bright-line rule excluding police-initiated

statements (a result not dictated by then existing precedent)."

Id. at 1512; accord Henderson v. Singletary, 968 F.2d 1070, 1073

(11th Cir.), cert. denied, 113 S. Ct. 621 (1992). See Bannister

v. Armontrout, 4 F.3d 1434, 1440 n.7 (8th Cir. 1992) (petitioner

could not rely on Jackson because it was decided after his

conviction became final); see also McNeil v. Wisconsin, 501 U.S.

171, 179-80 (1991) (stating that Jackson established "a new Sixth

Amendment rule of no police-initiated interrogation") (emphasis

added).

Flamer argues that the decision in Jackson was

"expressly foreshadowed" by Maine v. Moulton, 474 U.S. 159

(1985). It is clear, however, that Moulton does not support

Flamer's position in this case. Like Jackson, Moulton was not
decided0 until after Flamer's conviction became final for

retroactivity purposes. Moreover, Jackson was not "dictated" by

Moulton. The holding in Moulton was quite narrow: that the Sixth

Amendment right to counsel prohibits the police, after the

initiation of judicial proceedings against a defendant, from

0
Moulton was decided on December 10, 1985.

20
monitoring a conversation in which an undercover agent elicits

statements from the defendant about the pending case.0 This

fact-specific holding did not compel the adoption of the sweeping

Jackson rule, and nothing in the Jackson opinion suggests that

the Supreme Court felt that it did. Indeed, the Jackson opinion

did not rely heavily on Moulton and cited that case only for

propositions that were quite peripheral to the Court's holding.0

Flamer next argues that the following court of appeals

decisions dictated the Jackson rule: Felder v. McCotter, 765

F.2d 1245, 1250 (5th Cir. 1985), cert. denied, 475 U.S. 1111

0
In Moulton, the police knew that a defendant under indictment
was planning to meet with his codefendant, a secret government
informant, for the purpose of discussing the pending charges and
planning a defense. The police therefore arranged for the
informant to wear a body recorder, and they recorded the
conversation. Relying chiefly on Massiah v. United States, 377
U.S. 201 (1964), and United States v. Henry, 447 U.S. 264 (1980),
the Court held that the state had violated Moulton's Sixth
Amendment rights when it arranged to record his conversations
with the undercover agent, Colson. "By concealing the fact that
Colson was an agent of the State," the Court explained, "the
police denied Moulton the opportunity to consult with counsel and
thus denied him the assistance of counsel guaranteed by the Sixth
Amendment." 474 U.S. at 177 (footnote omitted).
0
Jackson cited Moulton four times. See 475 U.S. at 630 (citing
Moulton, along with three other cases, for the proposition that,
after the initiation of judicial proceedings, interrogation of
the accused is a "critical stage" for Sixth Amendment purposes);
id. at 632 (quoting Moulton's statement that the "Sixth Amendment
guarantees the accused, at least after the initiation of formal
charges, the right to rely on counsel as a `medium' between him
and the State."); id. (footnote omitted) (citing Moulton for the
proposition that "the electronic surveillance of conversations
with third parties . . . may violate the defendant's Sixth
Amendment right to counsel even though the same methods of
investigation might have been permissible before arraignment or
indictment"); id. at 634 (citing Moulton in support of the
proposition that "the Sixth Amendment concerns the confrontation
between the State and the individual.").

21
(1986); United States v. Ledezma-Hernandez, 729 F.2d 310, 313

(5th Cir. 1984); United States v. Eagle Elk, 711 F.2d 80, 83 (8th

Cir. 1983), cert. denied, 465 U.S. 1013 (1984). We see no merit

in this argument. Jackson is not a new rule within the meaning

of Teague unless it was "dictated by precedent existing at the

time the defendant's conviction became final." Teague, 489 U.S.

at 301 (emphasis in original). A rule is not dictated by

precedent merely because there is a "debate among reasonable

minds" as to its applicability. Butler, 494 U.S. at 415 (1990).

At best, the cases cited by Flamer indicate a difference of

opinion regarding the test for determining, under the Sixth

Amendment, whether a defendant has waived the right to the

presence of counsel during interrogation.0

Flamer's final argument in support of the conclusion

that Jackson did not announce a "new rule" is that the Delaware

Supreme Court's own decision in Deputy v. State, 500 A.2d 581,

591-92 (1985), cert. denied, 480 U.S. 940 (1987), compelled that

court to adopt the Jackson rule. In Deputy, the Delaware Supreme

0
Ledezma-Hernandez, 729 F.2d at 313, discussed the defendant's
Fifth Amendment right to counsel pursuant to Edwards and Miranda.
In Felder, 765 F.2d at 1248-50, the court applied a traditional
Brewer analysis to circumstances in which a defendant is known to
have counsel.

Although the Eighth Circuit in Eagle Elk, 711 F.2d at
82-83, did conclude that "the appropriate standard for reviewing
the validity of a waiver of the [S]ixth [A]mendment right to have
counsel present at an interrogation is essentially the same
standard applied to waivers of the [F]ifth [A]mendment right to
counsel where the right to counsel has been previously invoked,"
id. (footnote omitted), a single court of appeals decision cannot
by itself "dictate" a rule subsequently articulated by the
Supreme Court.

22
Court excluded the confession of Flamer's codefendant, Andre

Deputy, which was obtained after Deputy's arraignment. Deputy,

500 A.2d at 592. In support of its conclusion excluding Deputy's

confession, the Delaware Supreme Court wrote:
In the Sixth Amendment context, once the
adversarial judicial process has begun, [the]
defendant is entitled to the presence of
counsel during police interrogations as a
matter of inherent right. Therefore, the
only means by which waiver could be
established, and still remain consistent with
the Fifth Amendment waiver analysis, would
involve some form of affirmative overt action
by the defendant which indicated his
willingness to talk to law enforcement
officers.

Id. at 591. We see at least three major flaws in Flamer's

argument that Deputy dictated the adoption of the Jackson rule.

First, it does not appear that the Delaware Supreme

Court interprets its decision in Deputy as adopting a Jackson-

like rule. In affirming the denial of Flamer's petition for

postconviction relief, the Delaware Supreme Court decided, as a

matter of state law, to adopt the Teague nonretroactivity rule

for use in state postconviction proceedings. See 585 A.2d at
749. Under this rule, the Delaware Supreme Court's decision in

Deputy was applicable to Flamer, since that decision was handed

down before Flamer's conviction became final. Thus, if the

Delaware Supreme Court had felt that its own decision in Deputy

had adopted a rule like Jackson's, the Delaware Supreme Court

should have applied that rule in Flamer's case. But Deputy was

not even mentioned in this context. Instead, the Delaware

23
Supreme Court simply held that Jackson established a new rule and

refused to apply that rule retroactively.

Second, we do not interpret Deputy as a foreshadowing

of Jackson, but as an application of the totality-of-the-

circumstances test set out in Brewer. The court in Deputy

distinguished the factual circumstances of Deputy's confession

from those of Flamer's confession, id. at 591-92 n.15, in a

manner that suggested it was applying a traditional Brewer

analysis. Unlike Flamer, who was brought before a magistrate on

the morning after the day of his arrest, Deputy was interrogated

at Troop 5 on the morning of his arrest and was given a polygraph

before being arraigned at 2:00 P.M. Id. Although the magistrate

ordered that Deputy be committed to the Sussex County

Correctional Facility at this time, he was brought back to Troop

5 and questioned for another eight hours. Deputy did not respond

when he was asked whether he wished to speak with an attorney.

Considering the totality of the circumstances surrounding the two

confessions, the Delaware Supreme Court held that Deputy's

confession had to be suppressed under Brewer, id. at 592,

although it had earlier held that suppresion of Flamer's
0
confession was not required. See Flamer I, 490 A.2d at 113-115.
Flamer contends that Jackson should nevertheless be

applied retroactively because it fits within the second exception

0
Furthermore, we doubt that, as Flamer seems to argue, a rule can
be old for Teague purposes in some states but new in others.
Certainly, Flamer has not cited any precedent for this
proposition. Accordingly, we hold, as has the Eleventh Circuit,
that Jackson announced a "new rule."

24
to the Teague principle. We disagree. This exception is limited

to "`watershed rules of criminal procedure' implicating the

fundamental fairness and accuracy of the criminal proceeding."

Saffle, 494 U.S. at 495 (quoting Teague, 489 U.S. at 311). As

stated in Graham, this exception applies to that "small core of

rules requiring `observance of those procedures that . . . are

implicit in the concept of ordered liberty.'" 113 S. Ct. at 903

(quoting Teague, 489 U.S. at 311). Like the Eleventh Circuit, we

do not think that the Jackson rule fits into this category but is

instead more accurately described as a prophylactic rule that

provides one means of protecting a constitutional right. See

Collins, 892 F.2d at 1512.

We therefore hold that Jackson may not be applied

retroactively in this case and that Flamer is not entitled to

relief under the Sixth Amendment.

B. The Fifth Amendment right to counsel

Flamer also argues that his confession must be

suppressed under the Supreme Court's decision in Edwards v.
Arizona, 451 U.S. 477 (1981), and other Fifth Amendment

jurisprudence.0 In Edwards, the Court held that under the Fifth

Amendment, once an accused has invoked the right to have counsel

present during custodial interrogation, the accused cannot be

questioned further until counsel has been made available unless

0
The district court held that Flamer's Fifth Amendment claim was
procedurally barred. See 827 F. Supp. at 1087-89. However, the
state's appellate brief did not advance this argument, and we
decline to address it.

25
the accused initiates the conversation and knowingly and

intelligently waives his right to have counsel present. Id. at

484-85. Although Edwards was not decided until after Flamer's

trial, Flamer's direct appeal was pending at the time of the

decision, and therefore Edwards is applicable to his case. Flamer

makes two separate arguments for the suppression of his

confession under Edwards: (1) the Edwards rule came into play

when he allegedly asked for an attorney during custodial

interrogation prior to his arraignment and (2) the Edwards rule

became applicable when he asked for counsel at the time of his

arraignment.

1. In support of the first of these arguments, Flamer

maintains that he requested an attorney during custodial

interrogation by asking to call his mother. The Delaware courts

found, however, that Flamer did not ask for an attorney during

the interrogation. On direct appeal, the Delaware Supreme Court

wrote that "defendant did not request counsel at any stage of his

interrogation." Flamer I, 490 A.2d at 114. In denying Flamer's

petition for post-conviction relief, the Delaware Superior Court

found that "[a]t no time prior to or during the taped statement

did Flamer tell any police officer that he wished to have an

attorney present before any further questioning." Flamer III, JA
at 2626-27. In affirming the decision of the Superior Court, the

Delaware Supreme Court adhered to these findings. Flamer IV, 585

A.2d at 747.

Under the federal habeas statute, this court is bound

by factual determinations made by a state court of competent

26
jurisdiction unless one of the exceptions set out in 28 U.S.C.

§2254(d) applies. Flamer relies on the exception in 28 U.S.C.

§2254(d)(8) that applies if a state court's factual determination

is not "fairly supported by the record." Deference is owed to

the factual findings of a state appellate court as well as to

those of a trial court. Sumner v. Mata, 449 U.S. 539 (1981);

Pemberthy v. Beyer, 19 F.3d 857, 864 (3d Cir. 1994); Hakeem v.

Beyer, 990 F.2d 750, 768 (3d Cir. 1993). Thus, the factual

findings of the Delaware courts are binding on this court if they

have fair support in the record. We conclude that they do.

Flamer testified at his suppression hearing, held

before the Delaware Superior Court in a post-conviction

proceeding, that on several occasions prior to his confession, he

had asked permission to make a phone call. JA at 1861, 1862,

1864, 1865, 1867. However, Flamer's testimony that he asked for

a lawyer during his interrogation was contradicted at the

suppression hearing by several officers. See, e.g., Transcript

of Suppression Hearing (Oct. 29, 1979), Testimony of Officer

Chaffinch, JA at 120 ("Q: Did he [Flamer] ever ask for a lawyer?

A: No. In fact, I asked him did he want to call one on a couple

of occasions and he said no, indicating no."). In addition,

Flamer acknowledged at the Rule 61 evidentiary hearing that he

thought his Miranda rights had been read to him shortly after his
arrest. JA at 2547. See also Transcript of Suppression Hearing

(Oct. 31, 1979), Testimony of Officer Callaway, JA at 342

(stating that Flamer's rights had been read to him when he was

arrested and again when he was first brought to Troop 5, and that

27
on neither of these occasions did Flamer request an attorney). In

light of this evidence, the state courts' findings that Flamer

did not request an attorney are fairly supported by the record

and are thus binding.0

2. Flamer also argues that he invoked his Fifth

Amendment right to counsel at the arraignment, which occurred

before his confession. At the arraignment, Flamer asked

permission to call his mother "in order to inquire about bail and

possible representation by counsel." Flamer IV, 585 A.2d at 742.

The magistrate told him he was free to do so "but that he would

appoint the public defender to represent him in any event." Id.

Flamer and the magistrate both signed a form labeled "Application

and Order Appointing Counsel." See JA at 30. The portion signed

by Flamer stated that he "request[ed] appointment of counsel";

the portion signed by the magistrate stated that, "not having

waived the appointment of counsel," the defendant would be

represented by the public defender. Id.

Turning first to Flamer's request to call his mother

"to inquire about . . . possible representation," 585 A.2d at

742, we hold that this request was insufficient to trigger

Edwards under the Supreme Court's decision in Davis v. United

0
Flamer asserts that these state court findings are flawed
because no Edwards Fifth Amendment claim was under consideration
during the proceedings in which the factual determinations were
made. Whether Flamer requested an attorney is a question of
fact, however, and the validity of the state courts' findings is
not affected because the courts were considering a somewhat
different legal issue when those findings were made.

28
States, 114 S. Ct. 2350 (1994).0 In that case, the Court held

that Edwards applies only if a defendant "unambiguously" requests

counsel. Id. at 4589. "[I]f a suspect makes a reference to an

attorney that is ambiguous or equivocal in that a reasonable

officer in light of the circumstances would have understood only

that the suspect might be invoking the right to counsel," Edwards

does not come into play. Id. Here, Flamer's request to

telephone about possible representation "fail[ed] to meet the

requisite level of clarity" that Davis demands. Id.

As for Flamer's contention that Edwards was triggered

by his request for the appointment of counsel at the arraignment,

this argument is foreclosed by McNeil v. Wisconsin, 501 U.S. 171

(1991).0 There, the defendant requested an attorney at his

arraignment for an armed robbery in West Allis, Wisconsin,0 but

during subsequent custodial interrogation regarding offenses that

0
Davis may be applied retroactively despite Teague v. Lane
because Teague only applies to a change in the law that favors
criminal defendants. Gilmore v. Taylor, 113 S.Ct. 2112, 2116
(1993). See also Lockhart v. Fretwell, 113 S.Ct. 838, 844
(1993).
0
Like Davis, McNeil may be applied retroactively because McNeil
did not work a change in the law favoring criminal defendants.
See supra note 14.
0
The Supreme Court was reviewing a decision of the Wisconsin
Supreme Court that answered "no" to the following question
certified by the intermediate state appellate court:

Does an accused's request for counsel at an
initial appearance on charged offense
constitute an invocation of his fifth
amendment right to counsel that precludes
police initiated interrogation on unrelated,
uncharged offenses.

See 501 U.S. at 175.

29
occurred in Caledonia, Wisconsin, he waived his Miranda rights

without the presence of counsel and gave incriminating statements

about the Caledonia offenses. The Supreme Court held that

suppression of these statements was not required under either the

Sixth or Fifth Amendments. The Court concluded that the Sixth

Amendment and the rule adopted in Michigan v. Jackson, supra, did

not apply because they are "offense specific." Id. at 175. Thus,

the Court held, invocation of the Sixth Amendment right to

counsel does not restrict police-initiated interrogation

concerning other offenses. Id. at 175-78. As for the Fifth

Amendment right to counsel recognized in Miranda and Edwards, the

Court held that the defendant had never invoked that right. The

Court held that the defendant's request for counsel at

arraignment was inadequate to invoke Edwards. Rather, the Court

concluded, Edwards "requires, at a minimum, some statement that

can reasonably be construed to be an expression of a desire for

the assistance of an attorney in dealing with custodial

interrogation by the police. Requesting the assistance of an

attorney at a bail hearing does not bear that construction." Id.

at 178 (emphasis in original).

Under McNeil, Flamer's request for counsel at
arraignment did not constitute an invocation of his Fifth

Amendment right to counsel during custodial interrogation.

Pursuant to this precedent, Flamer's request cannot "reasonably

be construed to be an expression of a desire for the assistance

of an attorney in dealing with custodial interrogation by the
police." 501 U.S. at 178 (emphasis in original).

30
 In response to the state's reliance on McNeil, Flamer's

reply brief first argues as follows:
McNeil stands only for the proposition that
an accused's Sixth Amendment right to counsel
does not preclude police initiated
interrogations related to offenses distinct
from those with which he or she is charged.
This holding has absolutely no applicability
in Flamer's case.

Reply Br. at 11. This brief later states:

McNeil simply stands for the proposition that
an accused who has requested and been
appointed an attorney at a bail hearing on
specified charges has not invoked his right
to have counsel present when questioned
regarding other charges.

Id. at 25.

We disagree with this interpretation of McNeil, which

must be based on one or both of the following propositions: (a)

that McNeil addressed only the accused's Sixth Amendment right to

counsel or (b) that the Fifth Amendment right to counsel is

offense specific. Both of these propositions, however, are

incorrect. As noted, McNeil addressed both the accused's Fifth

and Sixth Amendment rights. Moreover, it is well established

that the Fifth Amendment right to counsel during custodial

interrogation (and the Edwards rule, which is based on this

right) are not offense specific. As the Supreme Court clearly

stated in McNeil, 501 U.S. at 177 (emphasis in original):
The Edwards rule. . . is not offense
specific: Once a suspect invokes the Miranda
right to counsel for interrogation regarding
one offense, he may not be reapproached
regarding any offense unless counsel is
present. Arizona v. Roberson, 486 U.S. 675
(1988).

31
See also Alston v. Redman, 34 F.3d 1237, 1243 (3d Cir. 1994)

("The Edwards protection is not offense-specific. Rather, a

suspect who has requested the presence of counsel cannot be

questioned concerning any crime, not just the one that put him in

custody."), cert. denied, 115 S. Ct. 1122 (1995).

Once it is recognized that the Fifth Amendment right to

counsel and the Edwards rule are not offense-specific, it becomes

clear that McNeil stands for the proposition that a request for

an attorney at arraignment is, in itself, insufficient to invoke

the Fifth Amendment right to counsel at subsequent custodial

interrogation -- even if that interrogation concerns the offense

on which the defendant was arraigned. In McNeil, as noted, the

defendant requested counsel at his arraignment on the West Allis

charge. If this request had constituted the invocation of the

Miranda right to counsel with respect to future custodial

interrogation concerning the West Allis offense, this request

would have likewise restricted future custodial interrogation

concerning any other offenses, including the Caledonia offense,

because "[o]nce a suspect invokes the Miranda right to counsel
for interrogation regarding one offense, he may not be

reapproached regarding any offense unless counsel is present."

McNeil, 501 U.S. at 177 (emphasis in original). The Supreme

Court held, however, that the Edwards rule did not apply to

McNeil's subsequent custodial interrogation concerning the

Caledonia offenses. In light of the fact that the Edwards rule

is not offense-specific, this holding cannot rest on the

32
distinction between the West Allis and Caledonia offenses.

Rather, it must rest on the proposition that merely requesting an

attorney at arraignment is insufficient to constitute a request

for an attorney in connection with future custodial

interrogation. As the Court stated, the Edwards rule applies
only when the suspect "ha[s] expressed" his
wish for the particular sort of lawyerly
assistance that is the subject of Miranda.
Edwards, supra, at 484 (emphasis added). It
requires, at a minimum, some statement that
can reasonably be construed to be an
expression of a desire for the assistance of
an attorney in dealing with custodial
interrogation by the police. Requesting the
assistance of an attorney at a bail hearing
does not bear that construction.

McNeil, 501 U.S. at 178 (emphasis in original omitted; emphasis

added); see also, Alston, 34 F.3d at 1244-48 (Fifth Amendment

right to counsel at custodial interrogation cannot be invoked

anticipatorily). Consequently, we hold that Flamer's request for

counsel at arraignment did not trigger Edwards.

In addition, even if Flamer's argument were not

directly controlled by McNeil, we do not believe that his
argument could survive Teague's nonretroactivity principle. In

answer to the respondent's reliance on Teague in the district

court, Flamer's opening brief states that many of his arguments

concerning this question "parallel [his] Jackson `new rule'

argument," and he cross-references the portion of his brief that

contends that Jackson was not a "new rule." See Appellant's Br.

at 57. We have already concluded, however, that Jackson was a

"new rule," and consequently this conclusion seriously undermines

33
Flamer's contention that his invocation of his right to counsel

at arraignment prohibited any subsequent police-initiated

questioning about any offense without counsel present. Prior to

Jackson, no such rule was dictated by existing precedent. Indeed,

we are not aware of any precedent that dictates the adoption of

such a rule even today. Adoption of such a rule would extend

both Jackson (by making it non-offense-specific) and Edwards (by

making the invocation of the right to counsel at arraignment

sufficient to trigger an accused's Fifth Amendment rights). Such

an extension, like Jackson, see supra pages 16 to 24, and

Edwards, see Solem v. Stumes, 465 U.S. 638 (1983), would

constitute a "new rule" that could not be applied retroactively

to Flamer's case.0

III.

Flamer contends that he is entitled to a new trial

because he was given constitutionally ineffective assistance by

0
Although respondent expressly relied on Teague in the district
court, their brief on appeal does not contain any such express
reliance. Nevertheless, we believe it is appropriate for us to
apply Teague. "[A] federal court may, but need not, decline to
apply Teague if the State does not argue it." Caspari, 114 S. Ct.
at 953; Schiro v. Farley, 114 S. Ct. 783, 788 (1994). Here, the
respondents expressly argued Teague in the district court in
relation to this argument, and they vigorously argued Teague on
appeal in relation to Flamer's Jackson argument, which Flamer
acknowledges is closely related and is governed by essentially
the same Teague analysis. This case is thus quite different from
Wilmer v. Johnson, 30 F.3d 451, 454-55 (3d Cir. 1994), in which
we declined, in the exercise of our discretion, to apply Teague.
In that case, the defense had not been raised in the district
court and was first raised "in a supplemental brief requested by
the court on appeal." Id. at 7.

34
the attorney who represented him in his original trial and direct

appeal, Dennis Reardon. Flamer rests his argument on the

following alleged errors of his attorney: (1) failure to seek

suppression of the confession on Fifth and Sixth Amendment

grounds; (2) failure to present a "unified" defense theory; (3)

inadequate cross-examination of the medical examiner; (4) calling

Flamer to testify; (5) failure to make a closing argument in the

guilt phase of the trial; and (6) inadequate presentation of

mitigating evidence and a cursory closing in the penalty phase of

the trial.

In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court established a two-part test for judging ineffective

assistance of counsel claims. First, the defendant must show

that counsel's performance was deficient. This requires showing

that "counsel made errors so serious that counsel was not

functioning as the `counsel' guaranteed the defendant by the

Sixth Amendment." Id. at 687. After explaining that this

showing requires proof that "counsel's representation fell below

an objective standard of reasonableness.... under prevailing

professional norms," id. at 688, the Court admonished:
Judicial scrutiny of counsel's performance
must be highly deferential..., [because] [i]t
is all too tempting for a defendant to
second-guess counsel's assistance after
conviction or 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.

35
 Second, the defendant must show that counsel's

ineffectiveness was prejudicial. Id. at 692. In Strickland, the

Court wrote that "when a defendant challenges a conviction, the

question is whether there is a reasonable probability that,

absent the errors, the factfinder would have had a reasonable

doubt respecting guilt." Id. at 695. The Court added that "when

a defendant challenges a death sentence. . . , the question is

whether there is a reasonable probability that, absent the

errors, the sentencer . . . would have concluded that the balance

of aggravating and mitigating circumstances did not warrant

death." Id. More recently, in Lockhart v. Fretwell, 113 S. Ct.

838, 842 (1993), the Court clarified the meaning of "prejudice"

under the Strickland test, explaining:
Under our decisions, a criminal defendant
alleging prejudice must show "that counsel's
errors were so serious as to deprive the
defendant of a fair trial, a trial whose
result is reliable." . . . Thus, an analysis
focussing solely on the mere outcome
determination, without attention to whether
the result of the proceeding was
fundamentally unfair or unreliable, is
defective.

Id. (citation and footnote omitted). Applying these standards,

we will address each of the errors alleged by Flamer.

A. Admission of Flamer's confession

Flamer alleges that his attorney rendered

constitutionally deficient assistance because he failed to

investigate the circumstances of Flamer's confession and failed

to move to suppress the confession before trial. As we discussed

36
above, however, admission of the confession did not violate

Flamer's rights under the Fifth or Sixth Amendment and, in light

of this conclusion, Flamer's ineffective assistance of counsel

argument must fail.

First, it seems clear that Flamer's trial attorney did

not render constitutionally deficient assistance by failing to

seek relief -- suppression of the confession -- that was not

warranted under the law as it existed before Flamer's conviction

became final. Second, Flamer was not prejudiced by counsel's

performance because he would not have been entitled to

suppression of the confession even if that relief had been

sought. The possibility that the trial judge might have

erroneously ruled in Flamer's favor had a motion to suppress been

made -- and there is nothing to suggest that the judge would have

made such an error -- does not establish prejudice under

Strickland. "A defendant has no entitlement to the luck of a

lawless decisionmaker." Strickland, 466 U.S. at 695. As the

Court squarely held in Fretwell, 113 S. Ct. at 842-45, a finding

of prejudice under Strickland cannot be predicated on the

possibility that the defendant might have benefitted from an

erroneous decision in his or her favor.

B. Failure to pursue a "unified" theory of defense
Flamer claims that Reardon was constitutionally

ineffective because he failed to develop or pursue a theory of

the case that was uniform throughout the guilt and penalty phases

37
of the trial. In response to this argument, the Supreme Court of

Delaware wrote:
We adopt the finding of the Superior Court
which concluded that Flamer's claim is
contradicted by the evidence. Reardon's
strategy was to raise doubt in the State's
case against Flamer by asserting that Deputy,
rather than Flamer, was responsible for the
homicides. . . . Reardon's performance was
within the wide range of reasonable
professional assistance.

585 A.2d at 755-56. The district court agreed, stating:
On the record presented, the Court concludes
that a unified defense was presented and
while trial counsel may not have been the
best advocate, his performance was within the
standards required by Strickland. Further,
as found by the state court, the evidence
against Flamer even absent his confession was
so overwhelming as to prohibit any conclusion
of prejudice on collateral review.

827 F. Supp. at 1104.

Whether Reardon formulated a "unified" theory is a

question of fact, and we are therefore bound by the findings of

the state courts, unless one of the exceptions set out in 28

U.S.C. § 2254(d) is met. Flamer seems to suggest that the

exception in 28 U.S.C. § 2254(d)(8) applies, because the state

courts' findings are not fairly supported by the record, but we

find it unnecessary to reach this question.0 Even if Reardon

0
There is clearly some support in the record for the state
courts' findings that Reardon's strategy throughout the case
involved the casting of blame on Deputy. At the post-conviction
hearing, Reardon testified that his strategy in the guilt phase
was "[t]hat William [Flamer] didn't do it. That any
participation William had was at the instigation of Andre Deputy.
I think William's statement indicated that he did do some
stabbing but he didn't cause any death." J.A. 2350. Consistent

38
never formulated a "unified" theory, that in itself would not

constitute ineffective assistance of counsel.

It seems quite obvious that a defense attorney's

performance need not be based on some grand overarching theory in

order to meet constitutional requirements. "There are countless

ways to provide effective assistance in any given case. Even the

best criminal defense attorneys would not defend a particular

client in the same way." Strickland v. Washington, 466 U.S. at

689. Perhaps the single most commonly employed defense trial

strategy is to eschew any single pre-planned theory and to put

the prosecution to its proof and exploit any weakness that became

evident as the trial unfolds.0

Thus, even if Reardon did not have a single "unified"

theory, it does not necessarily follow that his performance was

deficient. Whatever other strategy or strategies Reardon might

with this approach, at the penalty phase, Reardon referred to
Deputy's role, albeit briefly, in his opening and closing.

It is true that when Reardon was asked at the post-conviction
hearing what his theory was at the penalty phase, he replied
laconically that his theory was to present Flamer as "a poor
uneducated drunk." JA at 2350. We are not persuaded, however,
that this statement alone is sufficient to undermine the findings
of the Delaware courts that Reardon's strategy at both phases of
the trial involved the casting of blame on Deputy.
0
During the Rule 35 hearing, Reardon stated that he had discussed
with Flamer prior to trial what they would be doing: "Basically
what a criminal trial is all about; how it will proceed and what
we shall do; what we shall attempt to do and that is to discredit
during cross-examination." JA at 1897. Later, he described his
strategy: "Our game plan as we expected one to be was certainly
to pay as close attention as possible in trying to grasp ahold of
any weakness the State might produce or leave out; mainly to try
to demonstrate that William was, as he said, not the instigator,
that Williams [sic] just happened to be along and got caught up
into something that was out of his control." Id. at 1899.

39
have also had in mind, the record is plainly sufficient to show

that he attempted during the guilt phase to exploit weaknesses in

the state's case and to cast blame on Deputy and that he sought

during the penalty phase to elicit pity for Flamer. In view of

the evidence with which Reardon had to contend, such an approach

hardly seems unreasonable.

At all events, we believe that it is Reardon's actual

performance at trial, rather than his pretrial strategizing, that

is most pertinent. As the Supreme Court has stated, "there is

generally no basis for finding a Sixth Amendment violation unless

the accused can show how specific errors of counsel undermined

the reliability of the burden of guilt." United States v.

Cronic, 466 U.S. 648, 659 (1984) (emphasis added).

In this connection, Flamer complains that Reardon did

not do enough to shift blame to Deputy. We will discuss the

penalty phase below, but with respect to the guilt phase we see

no merit in this argument. Flamer refers to Deputy's prior

criminal convictions, but he does not explain how Reardon could

have secured the admission of these convictions at the guilt

phase. See Del. Uniform Rule of Evid. 404(b). He also suggests

that Reardon should have emphasized the following facts:
Deputy was from the city. Flamer was the
product of a small town. Deputy was older
and larger and more violent than Flamer.
Deputy had the victims' belongings on his
person when arrested.

Appellant's Br. at 30. In view of all of the evidence in this

case, these facts strike us as having only a modest potential for

40
benefiting Flamer. We are not prepared to hold that Reardon

violated the Sixth Amendment by failing to exploit them.

Furthermore, even if evidence regarding Deputy could

have been presented more effectively, we do not believe that

Flamer was prejudiced by the failure to do so. Flamer was

confronted by overwhelming physical evidence connecting him to

the crime. In his confession, he admitted that it was he, not

Deputy, who initiated the stabbing. In addition, Flamer was the

Smiths' nephew, and it was that relationship that enabled Flamer

to talk his way into their home in order to murder them. Although

Deputy, unlike Flamer, had a violent criminal record at the time

of the slayings, we do not believe there is a "reasonable

probability" under Strickland, 466 U.S. at 695, that the jury,

had it been presented with more evidence about Deputy or his

record, would have concluded that Flamer had not committed these

murders.

C. Cross-examination of the medical examiner

Flamer asserts that Reardon did not cross-examine the

medical examiner adequately in that he "failed to inquire whether

the wounds on the victims could have been inflicted by a third

weapon even though Flamer had mentioned . . . a third weapon in

the taped statement." Flamer's Br. at 32-33. Flamer argues that

by eliciting testimony regarding a possible third weapon, Reardon

could have created reasonable doubt regarding Flamer's guilt on

the intentional first-degree murder count.

41
 This claim is highly speculative. First, although

Flamer did confess to the police that he had disposed of another

knife in addition to the one with which he admitted stabbing his

uncle, JA at 33-34, Flamer did not say that this knife was

present during the murder; nor did he ever suggest that Deputy

had used it or even knew of its existence. In order to create a

reasonable doubt using a "third-knife" theory, Reardon would have

needed to establish some probability that each of the following

things occurred: (1) a third knife such as the one described by

Flamer in his confession could have produced some of the wounds

found on the bodies of the two victims; (2) this third knife was

brought to the Smiths' home; (3) Deputy elected to discard his

bayonet in favor of a smaller knife in the midst of stabbing the

two victims; and (4) Flamer did not use this knife. Even if

Reardon succeeded in making all this seem possible, however, he

still would have needed to contend with the fact that Flamer's

confession does not mention any of this in discussing the

murder.0
0
Q: You used your little knife to stab Byard? Who had
the big knife?

A: Andre.

Q: And he used it to stab who?

A: He killed Aunt Alberta and then he was killing
Byard.

Q: With the big knife?

A: Unhu.

Q: Did you ever have the big knife?

42
 We believe that the strategy now proposed by Flamer was

extraordinarily unlikely to succeed. Therefore, we cannot say

that it was constitutional error for Reardon not to pursue it.

D. Calling Flamer to testify

Flamer also assigns error to Reardon's decision to call

him as a witness in his own defense. Flamer's testimony at trial

contradicted his prior statements, which made him appear not

credible, he now says. At trial, Flamer testified that Andre

Deputy woke him up on the night of the murder and brought him to

the Smiths' house to help steal frozen food. JA at 1275-1276.

Flamer testified that when he asked Deputy where the Smiths were,

Deputy told him, "Never mind about that." Id. at 1276. Soon

after, Flamer testified, he saw the dead bodies in the living

room. Id. at 1277-78, 1280. Flamer's story was badly damaged on

cross-examination.

At the Rule 35 hearing held in September 1986, Reardon

testified that he felt it was important for Flamer to testify. As

he explained:
Through the years of criminal law, defense of
criminals, I have had occasions on many times
to talk to different judges of the Superior
Court and in this case -- if my memory serves
me correctly, present Chief Justice Christie

A: Did I ever have it?

Q: The whole time you was in the house during the
stabbing you used the small knife and he used the big
knife.

A: I used the small one.

JA at 43.

43
 in a case many, many years ago in chambers,
and I believe it was in Wilmington, told me
that he has really never presided over, or
maybe one or two cases he has presided over,
where a jury found a defendant not guilty who
did not testify and I put that in my memory
bank and I have used it ever since knowing
full well that if a person doesn't testify
they are very likely to be found guilty.
William and I discussed it and decided that
he should testify and he did testify.

Id. at 1903-04. Reardon's belief that a defendant is unlikely to

be acquitted unless he takes the stand is one that is widely

shared by practitioners. Thus, as a general matter, we do not

think it is unreasonable for a defense attorney to proceed on the

basis of this belief, particularly in a case such as this where

the prosecution's evidence is very strong.

If Flamer was harmed by his testimony, this was

probably owing to the fact that he perjured himself. Flamer,

however, has never suggested that it was Reardon's idea for him

to testify as he did, and Reardon cannot be faulted for Flamer's

decision to testify falsely. Indeed, the Delaware Supreme Court

seems to have concluded that Flamer's testimony departed from the

version of the events that he had previously told Reardon. See

Flamer IV, 585 A.2d at 755 ("Once Flamer had testified to a

different set of events than he had previously divulged to his

attorney, it was too late to alter the decision to testify.").

Moreover, given the overwhelming evidence of Flamer's guilt, we

are convinced -- as were the state supreme court, 585 A.2d at

755, and the district court, 827 F. Supp. at 1104 -- that there

is no reasonable probability that his testimony altered the

verdict that the jury would have otherwise returned.

44
 E. Waiver of closing argument

Flamer also argues that his attorney violated the Sixth

Amendment by failing to give a closing argument in the guilt

phase of the trial. In the Rule 35 post-conviction hearing,

Reardon testified that this had been a conscious strategy on his

part to avoid a devastating rebuttal from the prosecution. Id.

1906-09. Specifically, Reardon stated that in "dozens" of cases,

he had seen Flamer's two prosecutors give a simple and relatively

brief closing statement followed by a lengthy rebuttal after the

defense had closed. Id. at 1909. Reardon also stated that after

the trial, one of the prosecutors "said he was prepared for two

to three hours of rebuttal." Id. at 1907.

The Delaware Superior Court accepted Reardon's

explanation, Id. at 426, and the state Supreme Court found that

there was adequate record support for this finding. Flamer IV,

585 A.2d at 754. The state supreme court wrote:
The Superior Court found that Kent
County prosecutors at the time of Flamer's
trial were said to be routinely holding back
their major arguments in summation until
after the defense had given its closing
argument to the jury. The Superior Court
further found that Reardon's choice to omit a
closing argument was made after Reardon
assessed the prosecution's opening argument
as having little impact on the jury. When
this assessment and the waiver of closing
argument are viewed in light of the
"sandbagging" practice said to be utilized
during rebuttal by Kent County prosecutors,
such a waiver was within the wide range of
reasonable professional assistance.

45
Id. at 754-55.

Flamer argues that the state court's finding is not

fairly supported by the record and that Reardon's testimony at

the post-conviction hearing was concocted to justify "what would

otherwise appear an utterly inexplicable act." Appellant's Br.

at 40. We reject this argument. For one thing, we believe that

the state court was entitled to credit the testimony that Reardon

gave at the post-conviction hearing. Moreover, despite Flamer's

attack on Reardon's credibility, the prosecutorial tactic to

which Reardon referred is substantiated by Bailey v. State, 440

A.2d 997 (Del. 1982). In that case, which was prosecuted by one

of the prosecutors who tried Flamer, the state's "opening

summation was very brief, constituting a mere 3 1/2 pages of the

transcript and lasting only 5 minutes." Id. at 1000. "The

State's rebuttal lasted over an hour and contained the bulk of

the State's final argument to the jury." Id. at 1001. For

these reasons, we too conclude that there was adequate support in

the record for the findings of the state courts, and therefore we

accept their conclusion that Reardon's failure to give a closing

argument was a conscious strategic decision.

Whether Reardon's decision was reasonable, however, is

a question of law that we must decide separately. Horton v.
Zant, 941 F.2d 1449, 1462 (11th Cir. 1991), cert. denied, 503

U.S. 592 (1992). Our court and others have recognized that

waiver of summation may be a sound tactic in some circumstances.

United States ex rel. Spears v. Johnson, 463 F.2d 1024, 1026 (3d
Cir. 1972); Virella v. United States, 750 F. Supp. 111, 118

46
(S.D.N.Y. 1990); United States ex rel. Turner v. Cuyler, 443 F.

Supp. 263 (E.D. Pa. 1977), aff'd, 595 F.2d 1215 (3d Cir. 1979);

Melvin v. Laird, 365 F. Supp 511, 521 (E.D.N.Y. 1973) ("Had

defense counsel sought to sum up, undoubtedly the prosecution

would have countered his arguments. Such an exchange of

arguments, assuming neither counsel was much superior to the

other, could only, by dwelling on the details of the evidence,

have hurt the [habeas petitioner]."). Although Reardon's

decision to forgo a closing statement may not have been wise, we

cannot say, in light of his explanation, that the decision fell

below Strickland's objective standard of reasonableness.

Furthermore, Flamer has not shown that he suffered any

actual prejudice, for there is no reasonable probability that he

would not have been convicted even if Reardon had presented a

dazzling closing argument.

F. Alleged errors in penalty phase

Flamer asserts that Reardon made two serious errors in

the penalty phase of the trial: (1) he failed to investigate,

develop, present, and argue mitigating evidence and (2) his

closing argument was deficient. The standards for determining

whether counsel has been ineffective in a capital sentencing

proceeding are identical to the standards for the guilt phase of

the trial. Strickland, 466 U.S. at 686-87. Accordingly, the

defendant must show that counsel's representation fell below an

"objective standard of reasonableness . . . under prevailing

professional norms," id. at 688, and that there is "a reasonable

47
probability that, absent the errors, the sentencer . . . would

have concluded that the balance of aggravating and mitigating

circumstances did not warrant death," id. at 695. We do not

believe that Reardon provided ineffective assistance during the

penalty phase under the Strickland standard.

In his opening statement, Reardon began by informing

the jurors that if they chose not to impose the death penalty,

Flamer would remain in prison for life without the possibility of

parole or probation. JA at 1480. Reardon then asked the jurors

to examine carefully the reports of the psychiatrist and

psychologist, noting that these two experts were employed by the

state and not the defense. Id. at 1481. Reardon foreshadowed

the testimony of his three witnesses by stating that Flamer had

been "a good son" and "a good grandson," whose life had been

destroyed by alcoholism. Finally, Reardon argued that Flamer's

"dull normal" intelligence had rendered him particularly

susceptible to the influence of "a strong personality" such as

that of Andre Deputy. Id. at 1482.

Reardon introduced the written reports of a

psychiatrist and a psychologist into evidence. Id. at 59-63, 65-
67. Both reports concluded that Flamer was of low but normal

intelligence, without symptoms of psychosis or other mental

illness. The psychiatrist diagnosed Flamer as an alcoholic and

stated that he had admitted being intoxicated at the time of the

murders.

Reardon called three penalty-phase witnesses. Id. at
1432-1457. Flamer himself described his life, with particular

48
attention paid to his drinking problem. He told the jury about

his brief marriage, which had ended in divorce, and his three-

year old daughter. He stated that he had had trouble finding

steady employment, but that he would do odd jobs and part-time

work whenever he had an opportunity to do so. He also described

the day of the murder, a day that he had spent drinking heavily

with friends. Next, Flamer's mother, Mildred Smith, testified.

Although Flamer had lived with his grandmother rather than his

mother since he was five, Mrs. Smith testified that she saw her

son nearly every day after work. She stated that he had been a

good student until he quit school in the eleventh grade and began

drinking heavily. She also said that his personality could

sometimes change when he was drinking. Mrs. Smith discussed the

failure of her son's marriage and the difficulty he had had

finding steady work as a result of his criminal record.0 Finally,

Reardon called Flamer's grandmother, Florence Benson, to testify.

Mrs. Benson stated that Flamer had always been "a good boy," who

had taken care of her by doing household chores. Id. 1456.

The state presented no testimony and only one piece of

evidence during the penalty phase -- a certified record of

Flamer's two felony convictions for check forgery.

1. Flamer argues that Reardon made three significant

errors in the development and presentation of penalty-phase

evidence: (1) he did not seek out Flamer's school and medical

records; (2) he did not call as a witness a psychiatrist or

0
In 1975, Flamer was convicted of two counts of forgery.

49
psychologist to explain the reports entered into evidence; and

(3) he did not introduce evidence of Andre Deputy's history of

violence in order to show that Deputy, rather than Flamer, was

chiefly to blame for the murders.

With respect to Reardon's failure to seek out Flamer's

school and medical records, we note that Flamer has not proffered

any such evidence that he thinks would have helped to reduce his

penalty. Therefore, Flamer cannot claim to have been prejudiced

by Reardon's failure to introduce such evidence. See Zettlemoyer

v. Fulcomer, 923 F.2d 284, 300-02 (3d Cir.), cert. denied, 502

U.S. 902 (1991). Similarly, we do not see how calling a witness

to explain the medical reports would have created a reasonable

probability that the jury "would have concluded that the balance

of aggravating and mitigating circumstances did not warrant

death," Strickland, 466 U.S. at 695. The reports themselves are

plainly worded, and we do not think the jury required additional

oral testimony to explain them.

Flamer asserts that Reardon should have offered

evidence regarding Andre Deputy's record of violence. As we

discussed in Section III.B, Flamer was not prejudiced by

Reardon's failure to present evidence of Deputy's criminal record

in the guilt phase of the trial. Here, Flamer maintains that if

the jurors had known more about Deputy, there is a reasonable

probability that they would have concluded that Flamer, as the

less aggressive of the two murderers, did not deserve to die. We

disagree. As discussed earlier, it was Flamer, according to his

own confession, who first stabbed Mr. Smith. In addition, it was

50
Flamer, as the Smiths' nephew, who was able to gain entry to

their home by telling them that his grandmother had had a stroke.

Finally, it was Flamer who told the police that Deputy did not

want to accompany Flamer into the Smiths' home, but had to be

coaxed by Flamer into doing so. JA at 32. In light of these

facts, we do not believe that Flamer has shown, as he must under

Strickland, 466 U.S. at 686-87, that in failing to portray Deputy

as the instigator, Reardon's assistance fell below an "objective

standard of reasonableness ... under prevailing professional

norms," id. at 688. Nor do we believe that there is a

"reasonable probability" that, but for any errors of his

attorney, the jury would have concluded that the balance of

aggravating and mitigating circumstances did not warrant death.

Id.

2. Reardon's penalty-phase summation was very brief:
Good afternoon, your honor. Good
afternoon, ladies and gentlemen. I am not
going to review the evidence with you. You
have heard it and you have heard it rehashed.
I simply want to point out to you one
important aspect.

There is a codefendant Andre Deputy. His
fate is out of your control. You heard the
testimony. You heard Mr. Flamer talk. What
part did Andre Deputy play in this? You must
consider that in making your determination as
to whether or not you are going to take
William Henry Flamer's life.

Other than that, please -- you have
heard his mom. You have heard his grandmom.
You have the medical reports.

Ladies and gentlemen, although we are
here today talking about murder, I am simply
going to ask you to show mercy. Do not kill

51
 William Henry Flamer simply because the law
and the state of Delaware say you can. There
is a far, far greater law than anything
conceived by this state and punished by this
State which tells you thou shalt not kill.
Thank you.

JA at 1486-87.0

Flamer argues that this closing argument was

constitutionally deficient, not only because of its brevity, but

because it was "so ill-conceived that it hurt Flamer's sentencing

prospects." Appellant's Br. at 48. We disagree. Although we

cannot say that Reardon's closing argument was especially

persuasive or well-crafted, we also cannot say it was so poor

that it fell below the Strickland standard for objectively

reasonable assistance. Furthermore, we hold that Reardon's

failure to present a more effective summation did not prejudice

Flamer, for we cannot say that there is a reasonable probability

that, but for any errors, the jury would not have imposed a

sentence of death.

Reardon was faced with several obstacles that limited

his choices in framing a penalty-phase summation. First, the
prosecution had offered virtually no penalty-phase evidence of

0
Though short, Reardon's closing argument in the penalty phase
was longer than that of the prosecutor, who stated:

Ladies and gentlemen, my last remarks are going to be
very brief. That same law thou shalt not kill pertains
to William Henry Flamer. He had a free choice in this
matter and the conduct that he took part in. His free
choice has brought him here today. Please be fair.

All the state is asking is you consider all the
factors in this case before your decision. Thank you.

JA at 1487.

52
its own. Given this, it may have been tactically wise for

Reardon not to review evidence presented in the guilt phase of

the trial, since this might have only reminded the jury of the

violence of the crimes. Second, although Flamer argues that

Reardon should have further emphasized the role of Andre Deputy,

such an approach, as previously explained, would have involved

certain difficulties. See pages 41, 51, supra. Finally and

perhaps most importantly, Flamer had denied committing the

murders in his testimony during the guilt phase of the trial.

This prior testimony made it very difficult for Reardon to argue

in the penalty phase that Flamer felt great remorse for the

murders.

One court has remarked that a defense counsel's

strategy in the sentencing phase of a capital case should be "to

appeal to just one juror who will hold out against the death

penalty and thereby prevent it." McDougall v. Dixon, 921 F.2d

518, 537 (4th Cir. 1990), cert. denied, 501 U.S. 1223 (1991).

Under the circumstances, we believe that Reardon's brief

summation, with its plea for mercy and its suggestion that Deputy

was more blameworthy than Flamer, was calculated to appeal to a

sympathetic juror. Following Reardon's lengthier opening

statement, the testimony of Flamer, and finally, the sad

testimony of Flamer's mother and grandmother, Reardon's summation

in the penalty phase did not render his assistance

constitutionally ineffective.

IV.

53
 Flamer argues that a portion of the jury instructions

in the penalty phase was unconstitutional because o expanded the

impression that appellate review of a decision to impose a

sentence of death would be more expansive than is actually the

case. In particular, Flamer claims the statutorily required jury

instruction was improperly altered by the insertion of the word,

"if": "Your unanimous recommendation for the imposition of the

death penalty, if supported by the evidence, is binding on the

Court." JA at 1464 (emphasis added).

We do not believe the inclusion of the word "if"

changed the meaning of this jury instruction at all. The word

"if" or some other qualifying preposition is implicit at the

beginning of the phrase, "supported by the evidence." Moreover,

elsewhere in the instructions the jury was told: "A finding by

the jury of a statutory aggravating circumstance, and a

consequent recommendation of death, supported by the evidence,

shall be binding on this Court," Id. at 1461. These

instructions were not misleading and did not violate the

principle, set out in Caldwell v. Mississippi, 472 U.S. 320, 336

(1985), that a jury instruction that inaccurately describes the

role of a jury in meting out a death sentence is

unconstitutional. See also Dugger v. Adams, 489 U.S. 401, 407
(1989).

V.

Finally, Flamer argues that the district court erred in

refusing to expand the record to include the criminal record of

54
his codefendant Andre Deputy pursuant to Rule 7 of the Rules

Governing § 2254 Cases in the United States District Courts.0

Rule 7 permits the expansion of a record for relevant evidence.

Flamer argues that the evidence is relevant because it bears on

the competence of his attorney, who did not present much evidence

of Deputy's past during the guilt and penalty phases of the

trial. We review the district court's decision on this question

for abuse of discretion only. Levine v. Torvik, 986 F.2d 1506,

1517 (6th Cir.), cert. denied, 113 S. Ct. 3001 (1993); Blango v.

Thornburgh, 942 F.2d 1487 (10th Cir. 1991); Ford v. Seabold, 841

F.2d 677, 691 (6th Cir.), cert. denied, 488 U.S. 928 (1988).

We do not believe the district court abused its

discretion in refusing to expand the record to include evidence

regarding Deputy's criminal past, particularly in light of the

fact that this evidence was available to Flamer during the state

proceedings.0 Deputy's criminal record would not have aided the

district court in determining whether Reardon provided

0
In his brief, Flamer also argued that the court erred in
refusing to unseal and admit into the record the results of his
attorney's Censor Committee hearing. At oral argument before our
court, however, Flamer's attorney stated that the documents had
been unsealed, that she had seen them, and that she no longer
wished to press for their inclusion. We therefore need not
address whether the record should have been expanded to include
this information.
0
Absent extraordinary circumstances, a habeas petitioner may not
seek an evidentiary hearing on the basis of records that were
available to him during the state court's proceedings but that he
did not present. Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-12
(1992). Flamer, who was represented by new counsel during post-
conviction proceedings in the Delaware courts, has not shown
cause for his failure to request that these records be included
at these earlier proceedings. Accord Walker v. Vaughn, 53 F.3d
609, 613 (3d Cir. 1995).

55
ineffective assistance of counsel. We therefore hold that it was

not an abuse of discretion for the court to refuse to expand the

record to include this material.

In addition, Flamer argues that the district court

erred in refusing to expand the record to include Deputy's

confession, which Flamer argues is relevant to the question of

whether Flamer's own confession was admissible. As discussed

earlier, the circumstances surrounding Deputy's statement are

distinguishable from those surrounding Flamer's statement.

Moreover, the statement itself has no bearing on whether Flamer's

confession was admissible. Therefore, the court did not abuse

its discretion in refusing to expand the record to include

Deputy's statement.

VI.

For the reasons stated above, the order of the district

court will be affirmed.

56
57