George L. Reynolds v. Jack C. Ellingsworth, Warden and Charles M. Oberly, III

SUR DENIAL OF REHEARING

PER CURIAM:

In their petition for rehearing, appellees raise three points that merit discussion. First, they argue that Delaware Superior Court Criminal Rule 511 acts as a procedural bar to claims raised for the first time in a proceeding brought pursuant to Delaware Superior Court Criminal Rule 35, where counsel had made a tactical choice not to object at trial or to present the issue on appeal. We cannot read this specific requirement into the general language of Conyers v. State, 422 A.2d 345 (Del.1980) (per curiam). Conyers does not refer to, or rely upon, Rule 51. The other cases upon which appellees rely in support of this argument, see King v. State, 239 A.2d 707, 708 (Del. 1968) (per curiam); State v. Her-*725hal, 307 A.2d 553, 555 (Del.Super.1973), also fail to discuss the effect of Rule 51 on post-conviction proceedings. In fact, the Delaware courts in King and Herhal go to the merits of the claims raised, after raising the possible waiver problem. Therefore, to the extent that a waiver rule pursuant to Rule 51 was impliedly articulated in these cases, the procedural default was nonetheless overlooked.

Second, appellees bring to our attention the existence of some twenty unpublished opinions of the Delaware Supreme Court that apply the Conyers holding to a variety of claims raised in Rule 35 proceedings. While under Delaware law, such orders have precedential value, see New Castle County v. Goodman, 461 A.2d 1012, 1013 (Del.1983), we need not decide the significance of their precedential value here. Each of the cases raised in the petition was decided after Reynolds’s trial and direct appeal. Therefore, none of them bear on the question of whether, at the time of the purported waiver in this case, Delaware had a rule that barred claims from being raised for the first time in a Rule 35 proceeding.2 As we stated earlier, procedural default is determined by the “ ‘waiver law in effect at the time of the asserted waiver.’ ” Panel op. supra at 822.

Finally, appellees contend that various other courts of appeals have supported the proposition that sporadic application of procedural rules by state courts should be overlooked by federal courts. See, e.g., Gardner v. Ponte, 817 F.2d 183, 188 (1st Cir.), cert. denied sub nom. Gardner v. Maloney, — U.S. -, 108 S.Ct. 181, 98 L.Ed.2d 134 (1987); Bass v. Estelle, 705 F.2d 121, 122-23 (5th Cir.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983); Hockenbury v. Sowders, 620 F.2d 111, 113 (6th Cir.1980), cert. denied, 450 U.S. 933 (1981). To the extent that these cases stand for such a proposition, they are directly contrary to law of this circuit as enunciated in this case and in Hochman v. Rafferty, 831 F.2d 1199, 1202-03 (3d Cir.1987). We reiterate our holding that one factor in determining adequacy of a state procedural rule is whether the state courts consistently apply the rule. See Wainwright v. Sykes, 433 U.S. 72, 85-86, 97 S.Ct. 2497, 2505-06, 53 L.Ed.2d 594 (1977).

. This rule provides that:

Exceptions to rulings or orders of the Court are unnecessary and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the Court is made or sought, makes known to the Court the action which he desires the Court to take or his objection to the action of the Court and the grounds therefor. Where justice requires the Court may relieve a party from the consequences of failure to assign the proper reasons in support of an objection. If a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him.

Del.Super.Ct.R.Crim.Pro. 51 (1974).

. In any case, this Court’s inability to detect any of these cases after exhaustive research illustrates one reason why the adequacy of a state waiver rule that is unarticulated either by court rule or by published opinion is subject to close scrutiny.