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            Title Flamer v. Delaware

 

            Date 1995

            By Alito

            Subject Habeas Corpus

                

 Contents

 

 

Page 1

LEXSEE 68 F.3D 710

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

No. 93-9000

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

68 F.3d 710; 1995 U.S. App. LEXIS 29677

February 16, 1994, Argued

October 19, 1995, Filed

SUBSEQUENT   HISTORY:               **1        As   Corrected

January 4, 1996.

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

LexisNexis(R) Headnotes

COUNSEL:  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, Wilmington, DE 19810, Attorneys for Appellant.

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.

JUDGES:  Before:   BECKER,  HUTCHINSON,  *  and

ALITO, Circuit Judges.

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

OPINIONBY: ALITO

OPINION:   *714   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,   *715   took this appeal from an order of the district court denying his petition for a writ of habeas corpus. When **2   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) 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  re- viewed by an appellate court; (4) that the penalty-phase jury instructions violated the Eighth Amendment because they referred to vague and duplicative statutory aggravat- ing 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 opin- ion was filed in either case, the full court voted to rehear both cases for the purpose of addressing the shared is- sue. In this opinion, the panel that initially heard Flamer's appeal discusses and rejects all of Flamer's **3    argu- ments 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

68 F.3d 710, *715; 1995 U.S. App. LEXIS 29677, **3

Page 2

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,  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 immedi- ately 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 **4    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' tele- vision 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 mur- der 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 com- panions. 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 released soon thereafter. The other man, Andre Deputy, n1 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.

n1 See Deputy v. Taylor, 19 F.3d 1485 (3d Cir.), cert. denied, 114 S. Ct. 2730 (1994).

**5

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 sev- eral  times  during  the  interrogation,  and  each  time,  he waived his right to an attorney. Flamer claimed at a later suppression  hearing  that  he  repeatedly   *716    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 before the Harrington Justice of the Peace **6   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 of- ficers 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 **7  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.

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

68 F.3d 710, *716; 1995 U.S. App. LEXIS 29677, **7

Page 3

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 **8   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 Tavern to meet Deputy and to shoot pool and drink, and he was arrested a few hours later.

*717   Flamer was tried before a jury in 1980 on four charges of murder in the first degree, n2 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 **9   ex- aminer,  who had performed autopsies on the bodies of Alberta  and  Byard  Smith.  The  medical  examiner  testi- fied 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 in- flicted by the bayonet,  two by the paring knife, and 39 could have come from either weapon. Id.

n2 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 commis- sion  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.

**10

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

17,  and  the  trial  then  proceeded  to  the  penalty  phase. Defense  counsel  called  as  witnesses  the  defendant,  his mother, and his grandmother. Defense counsel introduced into evidence the reports of a psychologist and psychia- trist 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 mur- ders. 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 af- firmed Flamer's convictions on direct appeal,  but with- held  decision  on  the  death  sentences  pending  the  res- olution  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

**11    more briefing in the Delaware Supreme Court, the Delaware Supreme Court affirmed Flamer's death sen- tences 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 Rule 35(a), n3 asserting various claims, includ- ing 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 is- sued 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. n4 Flamer v. State ("Flamer II"),

*718    No.  216,  1987  (Del.  Feb.  19,  1988).  In  April

1988, Flamer filed a new petition for post-conviction re- lief expanding upon his earlier claims. After supplemental briefing and an evidentiary hearing,  the Superior Court

68 F.3d 710, *718; 1995 U.S. App. LEXIS 29677, **11

Page 4

denied  Flamer's  petition  in  June  1989.  State  v.  Flamer

**12    ("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.

n3 Rule 35, which was superseded in 1988 by Rule  61,  permitted  a  court  (a)  to  correct  an  ille- gal sentence at any time and (b) to correct a sen- tence  imposed  in  an  illegal  manner  upon  motion within  four  months  after  sentence  was  imposed. Del. Super. Ct. Crim. Rule 35.

n4 Rule 61 "governs the procedure on an appli- cation 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 collat- eral attack upon a criminal conviction." Del. Super. Ct. Crim. Rule 61(a)(1). A motion for Rule 61 re- lief "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 pro- cedural bars to relief. Subsection (i)(1) limits the time  in  which  to  file  a  motion  for  postconvic- tion  relief  to  three  years  after  the  time  the  judg- ment of conviction becomes final or, "if it asserts a retroactively applicable right that is newly rec- ognized after the judgment is final,   to no  more than three years 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 "any ground for relief that was not as- serted in the proceedings leading to the judgment of conviction" unless there is "cause for relief from the procedural default" and "prejudice from viola- tion 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, in- tegrity or fairness of the proceedings leading to the judgment of conviction." Del. Super. Ct. Crim. Rule

61(i)(5).

**13

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.

Several of Flamer's arguments are based on the con- fession that he gave shortly after his arraignment. Flamer argues that this confession should have been suppressed under the Fifth and Sixth Amendments. Because the legal- ity 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 **14   for counsel at his ar- raignment. By subsequently questioning him and obtain- ing 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,  51 L. Ed. 2d

424, 97 S. Ct. 1232 (1977), because he did not voluntar- ily 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, 89 L. Ed. 2d 631, 106

S. Ct. 1404 (1986), should be applied retroactively to his case and requires the suppression of his confession.

1. In Brewer, the defendant, a "deeply religious" es- capee from a mental institution, 430 U.S. at 390, 392, was arrested on suspicion of murdering a young girl. The po- lice transported him from Davenport to Des Moines, Iowa, where he was supposed to meet with his attorney. The po- lice had agreed that they would not interrogate Williams

68 F.3d 710, *718; 1995 U.S. App. LEXIS 29677, **14

Page 5

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." n5 See id. at *719   392. Addressing Williams as "Reverend," the officer said that he felt **15   that they should locate the girl's body so that her parents,  whose child had been "snatched away from them on Christmas Eve," 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.

n5 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 ob- serve the weather conditions, it's rain- ing, 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 Eve 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.

**16

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 relinquish- ment or abandonment of a known right or privilege.'" Id. at 404 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82

L. Ed. 1461, 58 S. Ct. 1019 (1938)). The Court also stated that, in determining whether such a waiver had been made,

it was necessary to "indulge in every reasonable presump- tion 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  con- cluded  that  the  state  had  not  established  that  Williams had waived his right to counsel. The Court wrote:

Despite  Williams'  express  and  implicit  as- sertions  of  his  right  to  counsel,  Detective Leaming  proceeded  to  elicit  incriminating statements from Williams. Leaming did not preface this effort **17  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 coun- sel,  have waived his rights under the Sixth and  Fourteenth  Amendments.  It  only  held, as do we, that he did not.

430 U.S. at 405-06 (emphasis in original).

In this case, the Delaware Supreme Court carefully ap- plied the legal standard set out in Brewer and concluded that Flamer had made a valid waiver of his right to coun- sel. Flamer I, 490 A.2d at 112-16. The court explained:

We  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  con- stitutionally  required  rights  as  set  forth  in Miranda v. Arizona, 384 U.S. 436, 86 **18  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  wear- ing when he was arrested,  the blood under

68 F.3d 710, *719; 1995 U.S. App. LEXIS 29677, **18

Page 6

his fingernails, and the articles belonging to the  victim  Byard  Smith  taken  from  one  of his companions at the time of arrest, defen- dant volunteered fictitious stories of his com- plicity 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   *720   told the po- lice 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  ap- pears 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,   **19    in- cluding 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 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).

Flamer I, 490 A.2d 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 total- ity 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 ad- vised of his right to have an attorney present during ques- tioning, but he had repeatedly decided to speak with the police without an attorney, telling a succession of **20  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,  16  L.  Ed.  2d  694,

86 S. Ct. 1602 (1966), and he stated that he understood them. See Patterson v. Illinois, 487 U.S. 285, 292-95, 101

L. Ed. 2d 261, 108 S. Ct. 2389 (1988). Moreover, while Flamer's attorneys have referred to Corporal Porter's re- marks  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 capitalized on Williams' unusual susceptibility to a religious appeal. Williams,  as noted, was a "deeply religious" man with a history of mental ill- ness, and he was addressed by the police as "Reverend." Here, by contrast, there is nothing in the record to indi- cate that Flamer was especially religious or that he suf- fered 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 **21   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 arraign- ment 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, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989)

(plurality), and subsequent Supreme Court decisions. See, e.g., Caspari v. Bohlen, 127 L. Ed. 2d 236, 114 S. Ct. 948,

952-53 (1994); Graham v. Collins, 506 U.S. 461, 122 L. Ed.  2d  260,  113  S.  Ct.  892,  897-98  (1993);  Butler  v. McKellar, 494 U.S. 407, 412-14, 108 L. Ed. 2d 347, 110

S. Ct. 1212 (1990); Saffle v. Parks, 494 U.S. 484, 487-

88, 108 L. Ed. 2d 415, 110 S. Ct. 1257 (1990); Penry v. Lynaugh,  492 U.S. 302,  106 L. Ed. 2d 256,  109 S. Ct.

2934 (1989).

The  Supreme  Court  has  explained  Teague's  non- retroactivity principle as follows:

The  nonretroactivity   **22              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.   *721    Black, 503 U.S. 222,          , 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. . . .

68 F.3d 710, *721; 1995 U.S. App. LEXIS 29677, **22

Page 7

" A  case announces a new rule if the re- sult 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  pur- poses. Second, the court must "surve 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 **23   precedent to conclude that the rule he  seeks was re- quired 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 de- cide whether that rule falls within one of the two narrow exceptions to the nonretroactiv- ity 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 individ- ual conduct beyond the power of the criminal-law making authority to proscribe.'" Teague, 489 U.S. at 311 (quot- ing Mackey v. United States, 401 U.S. 667, 692, 28 L. Ed. 2d 404, 91 S. Ct. 1160 (1971) (Harlan, J., concurring in the judgment). The second exception,  which applies to "watershed rules of criminal procedure," id., is gener- ally 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  out- lined in Caspari, we first note that Flamer's **24   con- viction 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 availabil- ity 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 de- nied."); Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 93

L. Ed. 2d 649, 107 S. Ct. 708 (1987).

Advancing to the second step, we note that Jackson had not been decided on that date. n6 We must therefore survey  the  pre-Jackson  legal  landscape  and  determine whether a state court would have felt compelled by ex- isting 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 F.2d 1502

(11th  Cir.),  cert.  denied,  498  U.S.  881,  112  L.  Ed.  2d

180,  111  S.  Ct.  225  (1990),  the  Eleventh  Circuit  held that "the rule announced in Jackson undoubtedly consti- tutes  a  'new  rule'."   **25    Id.  at  1511.  The  Eleventh Circuit explained that Jackson "imposed a new obligation on police (not to initiate an interrogation after a defen- dant  has  asserted  his  right  to  counsel  under  the  Sixth Amendment) 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,

121 L. Ed. 2d 554, 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 de- cided after his conviction became final); see also McNeil v. Wisconsin, *722   501 U.S. 171, 179-80, 115 L. Ed.

2d 158, 111 S. Ct. 2204 (1991) (stating that Jackson es- tablished  "a  new  Sixth  Amendment  rule  of  no  police- initiated interrogation") (emphasis added).

n6  Jackson  was  decided  approximately  six months  later,  on  April  1,  1986.  See  475  U.S.  at

625.

Flamer argues that the decision in Jackson was "ex- pressly foreshadowed" by Maine v. Moulton,   **26   474

U.S. 159, 88 L. Ed. 2d 481, 106 S. Ct. 477 (1985). It is clear,  however,  that Moulton does not support Flamer's position in this case. Like Jackson, Moulton was not de- cided n7 until after Flamer's conviction became final for retroactivity purposes. Moreover, Jackson was not "dic- tated"  by  Moulton.  The  holding  in  Moulton  was  quite narrow:  that the Sixth Amendment right to counsel pro- hibits the police, after the initiation of judicial proceed- ings against a defendant, from monitoring a conversation in which an undercover agent elicits statements from the defendant about the pending case. n8 This fact-specific holding  did  not  compel  the  adoption  of  the  sweeping Jackson  rule,  and  nothing  in  the  Jackson  opinion  sug- gests 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. n9

68 F.3d 710, *722; 1995 U.S. App. LEXIS 29677, **26

Page 8

n7  Moulton  was  decided  on  December  10,

1985.

n8 In Moulton,  the police knew that a defen- dant 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  ar- ranged for the informant to wear a body recorder, and they recorded the conversation. Relying chiefly on Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964), and United States v. Henry, 447 U.S. 264, 65 L. Ed. 2d 115, 100 S. Ct. 2183 (1980), the Court held that the state had violated Moulton's Sixth Amendment rights when it arranged to record his conversations with the un- dercover  agent,  Colson.  "By  concealing  the  fact that Colson was an agent of the State," the Court explained, "the police denied Moulton the oppor- tunity to consult with counsel and thus denied him the assistance of counsel guaranteed by the Sixth Amendment." 474 U.S. at 177 (footnote omitted).

**27

n9 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  coun- sel 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 con- cerns the confrontation between the State and the individual.").

Flamer next argues that the following court of appeals decisions dictated the Jackson rule:  Felder v. McCotter,

765  F.2d  1245,  1250  (5th   **28    Cir.  1985),  cert.  de- nied, 475 U.S. 1111, 89 L. Ed. 2d 921, 106 S. Ct. 1523

(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,

79 L. Ed. 2d 245, 104 S. Ct. 1015 (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 fi- nal." 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. n10

n10  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 tra- ditional 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 Sixth Amendment right to have counsel present at an interrogation is essentially the same standard applied to waivers of the Fifth Amendment right to counsel where the right to counsel has been pre- viously  invoked," id. (footnote  omitted),  a  single court of appeals decision cannot by itself "dictate" a rule subsequently articulated by the Supreme Court.

**29

*723   Flamer's final argument in support of the con- clusion 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, 94 L. Ed. 2d 778, 107 S. Ct. 1589 (1987), com- pelled  that  court  to  adopt  the  Jackson  rule.  In  Deputy, the Delaware Supreme 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 coun- sel 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.

68 F.3d 710, *723; 1995 U.S. App. LEXIS 29677, **29

Page 9

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   **30    does  not  appear  that  the  Delaware Supreme Court interprets its decision in Deputy as adopt- ing 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  postcon- viction  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  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  foreshad- owing 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 **31   con- fession,  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 morn- ing after the day of his arrest, Deputy was interrogated at Troop 5 on the morning of his arrest and was given a poly- graph 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 to- tality of the circumstances surrounding the two confes- sions,  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 confession was not required. See Flamer I, 490 A.2d at

113-115. n11

n11  Furthermore,  we  doubt  that,  as  Flamer seems to argue, a rule can be old for Teague pur- poses in some states but new in others. Certainly, Flamer has not cited any precedent for this propo- sition. Accordingly, we hold, as has the Eleventh Circuit, that Jackson announced a "new rule."

**32

Flamer contends that Jackson should nevertheless be applied retroactively because it fits within the second ex- ception to the Teague principle. We disagree. This excep- tion 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 ex- ception applies to that "small core of rules requiring 'ob- servance 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 prophylac- tic rule that provides   *724   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 sup- pressed under the Supreme Court's decision in Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct.

1880 (1981), **33  and other Fifth Amendment jurispru- dence. n12 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 the accused initiates the con- versation 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 there- fore 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 inter- rogation prior to his arraignment and (2) the Edwards rule became applicable when he asked for counsel at the time of his arraignment.

n12 The district court held that Flamer's Fifth

Amendment  claim  was  procedurally  barred.  See

827 F. Supp. at 1087-89. However, the state's ap- pellate brief did not advance this argument, and we decline to address it.

**34

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

68 F.3d 710, *724; 1995 U.S. App. LEXIS 29677, **34

Page 10

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

"at  no  time  prior  to  or  during  the  taped  statement  did Flamer tell any police officer that he wished to have an at- torney 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 find- ings.  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 com- petent  jurisdiction  unless  one  of  the  exceptions  set  out in 28 U.S.C. § 2254(d) applies. Flamer relies on the ex- ception 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 **35   is owed to the factual find- ings of a state appellate court as well as to those of a trial court.  Sumner v. Mata, 449 U.S. 539, 66 L. Ed. 2d 722,

101 S. Ct. 764 (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 be- fore  the  Delaware  Superior  Court  in  a  post-conviction proceeding, that on several occasions prior to his confes- sion, he had asked permission to make a phone call. JA at

1861, 1862, 1864, 1865, 1867. However, Flamer's testi- mony that he asked for a lawyer during his interrogation was contradicted at the suppression hearing by several of- ficers. 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 occa- sions 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 **36    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   *725   that on nei- ther 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. n13

n13   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.

2.  Flamer  also  argues  that  he  invoked  his  Fifth Amendment right to counsel at the arraignment, which oc- curred before his **37   confession. At the arraignment, Flamer asked permission to call his mother "in order to in- quire 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 de- fender 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 "requested 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 States, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994). n14 In that case, the Court held that Edwards applies only if a defendant "unambiguously" requests counsel. Id. at

4589. "If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the **38   circumstances would have understood only that the suspect might be invoking the right to coun- sel," Edwards does not come into play. Id. Here, Flamer's request to telephone about possible representation "failed to meet the requisite level of clarity" that Davis demands. Id.

n14 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, 124 L. Ed. 2d 306, 113 S. Ct.

2112, 2116 (1993). See also Lockhart v. Fretwell,

506 U.S. 364, 122 L. Ed. 2d 180, 113 S. Ct. 838,

844 (1993).

As  for  Flamer's  contention  that  Edwards  was  trig- gered  by  his  request  for  the  appointment  of  counsel  at the arraignment, this argument is foreclosed by McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991). n15 There, the defendant requested an attorney at his arraignment for an armed robbery in West Allis, Wisconsin, n16 but during subsequent custodial in- terrogation regarding offenses that occurred in Caledonia,

68 F.3d 710, *725; 1995 U.S. App. LEXIS 29677, **38

Page 11

Wisconsin, he waived his Miranda rights **39   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 un- der either the Sixth or Fifth Amendments. The Court con- cluded 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   *726   to invoke Edwards. Rather, the Court concluded, Edwards "requires, at a min- imum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attor- ney 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).

n15   Like   Davis,   McNeil   may   be   applied retroactively because McNeil did not work a change in the law favoring criminal defendants. See supra note 14.

**40

n16 The Supreme Court was reviewing a deci- sion of the Wisconsin Supreme Court that answered

"no" to the following question certified by the in- termediate state appellate court:

Does an accused's request for counsel at an initial appearance on charged of- fense  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.

Under  McNeil,  Flamer's  request  for  counsel  at  ar- raignment  did  not  constitute  an  invocation  of  his  Fifth Amendment right to counsel during custodial interroga- tion. 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).

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 coun- sel does not preclude police initiated interro- gations  related   **41    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 ap- pointed an attorney at a bail hearing on speci- fied 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  propo- sitions:   (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:

**42   Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached re- garding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988).

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 coun- sel cannot be questioned concerning any crime, not just the one that put him in custody."), cert. denied, 130 L. Ed.

2d 1085, 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, in-

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Page 12

sufficient to invoke the Fifth Amendment right to counsel at subsequent custodial interrogation -- even if that inter- rogation 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  inter- rogation **43   concerning the West Allis offense, this request would have likewise restricted future custodial in- terrogation concerning any other offenses, including the Caledonia offense, because "once a suspect invokes the Miranda right to counsel for interrogation regarding one offense,  he may not be reapproached regarding any of- fense unless counsel is present." McNeil, 501 U.S. at 177

(emphasis  in  original).  The  Supreme  Court  held,  how- ever, that the Edwards rule did not apply to McNeil's sub- sequent custodial interrogation concerning the Caledonia offenses. In light of the fact that the Edwards rule is not of- fense-specific, this holding cannot rest on the distinction between the West Allis and Caledonia offenses. Rather, it

*727   must rest on the proposition that merely request- ing an attorney at arraignment is insufficient to constitute a request for an attorney in connection with future custo- dial interrogation. As the Court stated, the Edwards rule applies

only  when  the  suspect  "has  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

**44    that can reasonably be construed to be  an  expression  of  a  desire  for  the  assis- tance 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 interroga- tion 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 di- rectly controlled by McNeil, we do not believe that his argument could survive Teague's nonretroactivity princi- ple. 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 al- ready concluded, however, that Jackson was a "new rule," and consequently this conclusion seriously **45   under- mines Flamer's contention that his invocation of his right to counsel at arraignment prohibited any subsequent po- lice-initiated questioning about any offense without coun- sel present. Prior to Jackson, no such rule was dictated by existing precedent. Indeed, we are not aware of any prece- dent 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 suf- ficient 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, 79

L. Ed. 2d 579, 104 S. Ct. 1338 (1983), would constitute a  "new  rule"  that  could  not  be  applied  retroactively  to Flamer's case. n17

n17  Although  respondent  expressly  relied  on Teague  in  the  district  court,  their  brief  on  ap- peal  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,

127  L.  Ed.  2d  47,  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 rela- tion 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.

**46  III.

Flamer contends that he is entitled to a new trial be- cause he was given constitutionally ineffective assistance by the attorney who represented him in his original trial and direct appeal, Dennis Reardon. Flamer rests his argu- ment 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 "uni- fied"  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

68 F.3d 710, *727; 1995 U.S. App. LEXIS 29677, **46

Page 13

evidence and a cursory closing in the penalty phase of the trial.

In Strickland v. Washington, 466 U.S. 668, 80 L. Ed.

2d 674, 104 S. Ct. 2052 (1984), the Supreme Court estab- lished a two-part test for judging ineffective assistance of  counsel  claims.  First,  the  defendant  must  show  that counsel's performance was deficient. This requires show- ing that "counsel made errors so serious that counsel was not   *728    functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. After ex- plaining that this showing requires proof that "counsel's representation fell below an objective **47   standard of reasonableness...  under  prevailing  professional  norms," id. at 688, the Court admonished:

Judicial  scrutiny  of  counsel's  performance must be highly deferential..., because  it 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 un- reasonable.

Id. at 689.

Second, the defendant must show that counsel's inef- fectiveness was prejudicial.  Id. at 692. In Strickland, the Court wrote that "when a defendant challenges a convic- tion, the question is whether there is a reasonable prob- ability 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 mit- igating circumstances did not warrant death." Id. More recently,  in Lockhart v. Fretwell,  506 U.S. 364,  113 S. Ct. 838, 842, 122 L. Ed. 2d 180 **48   (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 de- fendant  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 un- reliable, is defective.

Id. (citation and footnote omitted). Applying these stan- dards,  we  will  address  each  of  the  errors  alleged  by Flamer.

A. Admission of Flamer's confession

Flamer  alleges  that  his  attorney  rendered  constitu- tionally deficient assistance because he failed to investi- gate the circumstances of Flamer's confession and failed to move to suppress the confession before trial. As we discussed 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 in- effective assistance of counsel argument must fail.

First,  it  seems  clear  that  Flamer's  trial  attorney  did not render constitutionally deficient **49   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 inef- fective because he failed to develop or pursue a theory of the case that was uniform throughout the guilt and penalty phases of the trial. In response to this **50   argument, the Supreme Court of Delaware wrote:

We adopt the finding of the Superior Court which concluded that Flamer's claim is con- tradicted 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   *729   was within the wide range of reasonable professional as- sistance.

585 A.2d at 755-56. The district court agreed, stating:

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Page 14

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 find- ings of the state courts, unless one of the exceptions set out in 28 U.S.C. § 2254(d) is met. Flamer seems to sug- gest that the exception in 28 U.S.C. § 2254(d)(8) applies, because the **51    state courts' findings are not fairly supported  by  the  record,  but  we  find  it  unnecessary  to reach this question. n18 Even if Reardon never formu- lated a "unified" theory, that in itself would not constitute ineffective assistance of counsel.

n18 There is clearly some support in the record for the state courts'  findings  that Reardon's  strat- egy  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 "that William Flamer  didn't do it. That any participation William had was at the instigation of Andre  Deputy.  I  think  William's  statement  indi- cated  that  he  did  do  some  stabbing  but  he  didn't cause any death." J.A. 2350. Consistent 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 the- ory 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 cast- ing of blame on Deputy.

**52

It seems quite obvious that a defense attorney's per- formance  need  not  be  based  on  some  grand  overarch- ing theory in order to meet constitutional requirements.

"There are countless ways to provide effective assistance in any given case. Even the best criminal defense attor- neys  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 strat- egy 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. n19

n19 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.

**53

Thus,  even  if  Reardon  did  not  have  a  single  "uni- fied" theory, it does not necessarily follow that his perfor- mance was deficient. Whatever other strategy or strategies Reardon might 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 per- formance 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 vio- lation 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, 80 L. Ed. 2d

657, 104 S. Ct. 2039 (1984) (emphasis added).

In  this  connection,  Flamer  complains  that  Reardon did not do enough to shift blame to Deputy. We will dis- cuss the penalty phase below, but with respect to the guilt phase we see no merit in this argument.   *730   Flamer refers to Deputy's prior criminal **54   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

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Page 15

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 po- tential for 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 con- necting 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,   **55    had a violent criminal record at the time of the slayings, we do not believe there is a "rea- sonable 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 tes- timony regarding a possible third weapon, Reardon could have created reasonable doubt regarding Flamer's guilt on the intentional first-degree murder count.

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 ad- mitted 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 **56    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 mak- ing 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. n20

n20

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?

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.

**57

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 testi- mony at trial   *731    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

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Page 16

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,   **58   present Chief Justice Christie 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 un- likely  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 prob- ably 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

**59   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  di- vulged 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.

E. Waiver of closing argument

lamer 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 pros-

ecutors give a simple and relatively brief closing state- ment followed by a lengthy rebuttal after the defense had closed. Id. at 1909. Reardon also stated that after **60  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 ex- planation, 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 af- ter  the  defense  had  given  its  closing  argu- ment to the jury. The Superior Court further found that Reardon's choice to omit a clos- ing  argument  was  made  after  Reardon  as- sessed  the  prosecution's  opening  argument as having little impact on the jury. When this assessment and the waiver of closing argu- ment are viewed in light of the "sandbagging" practice said to be utilized during rebuttal by Kent County prosecutors, such a waiver was within the   *732   wide range of reasonable professional assistance.

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

**61   "what would otherwise appear an utterly inexpli- cable act." Appellant's Br. at 40. We reject this argument. For one thing,  we believe that the state court was enti- tled 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 conclu- sion that Reardon's failure to give a closing argument was a conscious strategic decision.

Whether Reardon's decision was reasonable, however,

68 F.3d 710, *732; 1995 U.S. App. LEXIS 29677, **61

Page 17

is a question of law that we must decide separately. Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991), cert. de- nied, 503 U.S. 952   **62    (1992). Our court and oth- ers 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 (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  peti- tioner ."). 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 **63   asserts that Reardon made two serious errors in the penalty phase of the trial: (1) he failed to in- vestigate, 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 stan- dards  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 stan- dard of reasonableness . . . under prevailing professional norms," id. at 688, and that there is "a reasonable proba- bility 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 inform- ing 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

**64  the psychiatrist and psychologist, noting that these two experts were employed by the state and not the de- fense. 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   *733

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 psychia- trist 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 par- ticular 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 **65    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. n21 Finally, Reardon called  Flamer's  grandmother,  Florence  Benson,  to  tes- tify. Mrs. Benson stated that Flamer had always been "a good boy," who had taken care of her by doing household chores. Id. 1456.

n21  In  1975,  Flamer  was  convicted  of  two counts of forgery.

The  state  presented  no  testimony  and   **66    only one piece of evidence during the penalty phase -- a certi- fied 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 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.

ith respect to Reardon's failure to seek out Flamer's school and medical records, we note that Flamer has not

68 F.3d 710, *733; 1995 U.S. App. LEXIS 29677, **66

Page 18

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 in- troduce such evidence. See Zettlemoyer v. Fulcomer, 923

F.2d 284, 300-02 (3d Cir.), cert. denied, 502 U.S. 902,

116 L. Ed. 2d 232, 112 S. Ct. 280 (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 ag- gravating and mitigating circumstances **67    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 evi- dence 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 main- tains 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  ear- lier, it was Flamer, according to his own confession, who first stabbed Mr. Smith. In addition, it was 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   *734   must under Strickland, 466 U.S. at **68

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 aggravat- ing and mitigating circumstances did not warrant death. Id.

2.  Reardon's  penalty-phase  summation  was  very brief:

Good afternoon, your honor. Good after- noon, 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 impor- tant 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 sim- ply **69   going to ask you to show mercy. Do not kill William Henry Flamer simply be- cause the law and the state of Delaware say you can. There is a far, far greater law than anything  conceived  by  this  state  and  pun- ished by this State which tells you thou shalt not kill. Thank you.

JA at 1486-87. n22

n22 Though short, Reardon's closing argument in  the  penalty  phase  was  longer  than  that  of  the prosecutor, who stated:

Ladies  and  gentlemen,   my  last  re- marks 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 con- sider all the factors in this case before

your decision. Thank you.

JA at 1487.

Flamer  argues  that  this  closing  argument  was  con- stitutionally  deficient,  not  only  because  of  its  brevity, but because it was "so ill-conceived that it hurt Flamer's sentencing prospects." Appellant's **70   Br. at 48. We disagree.  Although  we  cannot  say  that  Reardon's  clos- ing 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

68 F.3d 710, *734; 1995 U.S. App. LEXIS 29677, **70

Page 19

evidence of its own. Given this, it may have been tacti- cally 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 diffi- culties. See pages 41, 51, supra. Finally and perhaps most importantly, Flamer had denied committing the murders in his testimony during the **71   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 strat- egy 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,

115 L. Ed. 2d 1009, 111 S. Ct. 2840 (1991). Under the cir- cumstances, 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 ap- peal to a sympathetic juror. Following Reardon's lengthier opening statement, the testimony   *735   of Flamer, and finally, the sad testimony of Flamer's mother and grand- mother, Reardon's summation in the penalty phase did not render his assistance constitutionally ineffective.

IV.

Flamer argues that a portion of the jury instructions in the penalty phase was unconstitutional because it created the impression that appellate review of a decision to im- pose a sentence of death would be more expansive than is actually the case. In particular, Flamer claims the **72  statutorily  required  jury  instruction  was  improperly  al- tered 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  evi- dence." Moreover, elsewhere in the instructions the jury was told:  "A finding by the jury of a statutory aggravat- ing circumstance, and a consequent recommendation of death, supported by the evidence, shall be binding on this Court," Id. at 1461. These instructions were not mislead- ing and did not violate the principle, set out in Caldwell v. Mississippi, 472 U.S. 320, 336, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (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, 103 L. Ed. 2d 435, 109 S. Ct. 1211 (1989). V.

Finally,  Flamer  argues  that  the  district  court  erred in refusing to expand the record to include the criminal record of his codefendant Andre Deputy **73   pursuant to Rule 7 of the Rules Governing § 2254 Cases  in the United States District Courts. n23 Rule 7 permits the ex- pansion of a record for relevant evidence. Flamer argues that the evidence is relevant because it bears on the compe- tence 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, 125 L. Ed.

2d 694, 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, 102 L. Ed.

2d 334, 109 S. Ct. 315 (1988).

n23  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.

**74

We do not believe the district court abused its discre- tion 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. n24 Deputy's criminal record would not have aided the district court in determining whether Reardon provided 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.

n24   Absent   extraordinary   circumstances,   a habeas petitioner may not seek an evidentiary hear- ing 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, 118 L. Ed. 2d 318, 112 S. Ct. 1715 (1992). Flamer, who was represented by new counsel dur- ing  post-conviction  proceedings  in  the  Delaware courts,  has not shown cause for his failure to re- quest that these records be included at these earlier

68 F.3d 710, *735; 1995 U.S. App. LEXIS 29677, **74

Page 20

proceedings.  Accord  Walker  v.  Vaughn,  53  F.3d

609, 613 (3d Cir. 1995).

**75

In addition, Flamer argues that the district court erred in refusing to expand the record to include Deputy's con- fession, which Flamer argues is relevant to the question of whether Flamer's own confession was admissible. As dis- cussed  earlier,  the  circumstances  surrounding  Deputy's

statement  are  distinguishable   *736    from  those  sur- rounding Flamer's statement. Moreover, the statement it- self has no bearing on whether Flamer's confession was admissible. Therefore, the court did not abuse its discre- tion 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.

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