Reynolds v. Ellingsworth, 93-7106

• Decision Date: 02 May 1994
• Docket Number: No. 93-7106,93-7106
• Parties: George L. REYNOLDS, Appellant, v. Jack C. ELLINGSWORTH, Warden; Charles M. Oberly, III.
• Court: U.S. Court of Appeals — Third Circuit

Page 756

23 F.3d 756

George L. REYNOLDS, Appellant, v. Jack C. ELLINGSWORTH, Warden; Charles M. Oberly, III.

No. 93-7106.

United States Court of Appeals, Third Circuit.

Argued Nov. 3, 1993.

Decided May 2, 1994.

Beverly L. Bove (argued), Tomar, Simonoff, Adourian & O'Brien, Wilmington, DE, for appellant.

Loren C. Meyers (argued), Deputy Atty. Gen., Dept. of Justice, Wilmington, DE, for appellee.

Before: SLOVITER, Chief Judge, and STAPLETON, Circuit Judge, and RESTANI, ^* Judge, United States Court of International Trade.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

This appeal requires us to consider the situation of a criminal defendant whose lawyers make a tactical decision not to raise federal due process objections in the defendant's state trial or on state direct appeal, and do so under circumstances in which they could have a good faith expectation that the defendant would be able to raise these federal objections in state collateral review proceedings. The issue we address is whether the rule of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), bars such a defendant from later raising his federal objections in federal court through a petition for writ of habeas corpus. We hold that it does not.

I.

In 1976, George Lee Reynolds was tried for felony murder, conspiracy, and robbery in the Superior Court of the State of Delaware. His alleged role in the crimes was to drive his two codefendants to and from the scene of the murder and robbery. The prosecuting Deputy Attorney General, in his opening statement to the jury, referred extensively to two purported confessions Reynolds had made to the police. Later in the trial, when the prosecution sought to introduce Reynolds' confessions into evidence, a hearing was held to determine their admissibility. At the hearing, the prosecution withdrew its proffer of the confessions. The prosecution never renewed its proffer, ¹ and the evidence it did present turned out to be weak. ² After the prosecution withdrew its proffer of Reynolds' confessions, Reynolds' counsel did not request a curative jury instruction regarding the Deputy Attorney General's opening statement, nor did Reynolds' counsel ask that a mistrial be declared. Reynolds was convicted and sentenced to life in prison.

Following a direct appeal to the Delaware Supreme Court, a remand by the supreme court to the trial court for further hearings in light of newly discovered evidence (at which hearings the chief investigating police officer appeared as a defense witness), and a second direct appeal to the supreme court, the supreme court affirmed Reynolds' conviction. Reynolds v. State, 424 A.2d 6 (Del.1980). In none of these proceedings did Reynolds' counsel complain that Reynolds' federal rights had been violated at trial.

Reynolds then sought state collateral review of his conviction pursuant to Delaware Superior Court Criminal Rule 35. ³ In that proceeding, he complained for the first time that the prosecutor's references to the confessions during his opening statement, coupled with the trial judge's failure to give a limiting jury instruction or to declare a mistrial sua sponte, denied Reynolds the due process required by the federal Constitution.

In the Rule 35 proceedings, the Delaware Superior Court held hearings to determine why Reynolds' lawyers had not raised his federal claims either at trial or on direct appeal. Reynolds' two trial lawyers, one of whom also represented Reynolds on direct appeal, testified at the hearings. Both said they had no recollection, independent of the transcript they were supplied, that the Deputy Attorney General had mentioned Reynolds' confessions to the jury. Moreover, both testified that they did not remember why they had not requested a limiting instruction, moved for a mistrial, or complained on direct appeal about the prosecutor's statements. Each counsel did offer hypothetical explanations, based largely upon his usual practices and his review of the record, as to why, for tactical reasons, he might have conducted Reynolds' trial and/or direct appeal as he did.

Reynolds' lead trial lawyer, an experienced criminal defense attorney who made most of the tactical trial decisions, offered three reconstructive hypotheses as to why he might not have moved for a mistrial. The first hypothesis was that he did not want a mistrial because it would give the prosecution a second opportunity to proffer the confessions after having marshalled stronger evidence to support their admissibility. The second was that a motion for a mistrial might have prompted the prosecutor to ask for a recess and rethink his decision to withdraw the confessions. The third hypothesis was that defense counsel simply overlooked the issue--in his words, "I didn't catch it," or "I blew it." Appendix at 368 and 364. When asked which hypothesis he "placed the most reliance on," Reynolds' lead trial counsel answered, "Intellectually, the first. Emotionally, the third." Appendix at 368. While denying any recollection on the subject, lead counsel also hypothesized that he did not ask for any cautionary instruction because it would serve primarily to refocus the jury's attention on the confessions.

The defense counsel who handled the direct appeal gave the following testimony as to why the matter of the confessions had not been raised on appeal:

The reason it was not raised on appeal was because, as far as I am concerned, the better grounds for appeal were the interpretation of the stipulation regarding the truth serum and also the very good ground of the newly-discovered evidence when we had the investigating officer saying he believed the wrong man had been convicted.

Appendix at 382.

The superior court analyzed the testimony of Reynolds' counsel to ascertain whether Reynolds had shown "cause" for his failure to raise his due process claims at trial or on direct appeal. The superior court performed this analysis because it interpreted the Delaware Supreme Court's opinion in Conyers v. State, 422 A.2d 345 (Del.1980), to impose a contemporaneous-objection requirement for preserving Rule 35 review, and to adopt the United States Supreme Court's Wainwright v. Sykes "cause and prejudice" test as the Delaware standard for deciding whether to impose a procedural bar for failure to comply with the contemporaneous-objection requirement. State v. Reynolds, Nos. 76-04-0026; 0027; 0027A, letter op. at 2-3 (Del.Super.Ct. Dec. 9, 1983). In Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the United States Supreme Court held that a state criminal defendant forfeits the availability of federal habeas review if his lawyer fails to raise his federal claim at the time or in the manner specified by "independent and adequate" state procedural requirements unless the defendant can show "cause" for his counsel's state default and "prejudice" resulting from it.

The superior court held that Reynolds had failed to show "cause" for his trial and appellate lawyers' silence regarding his federal due process claims, and therefore ruled that Conyers barred Reynolds from raising the claims in state collateral review proceedings. State v. Reynolds, Nos. 76-04-0026; 0027; 0027A, letter op. at 7 (Del.Super.Ct. Dec. 9, 1983). The Delaware Supreme Court upheld the superior court's decision. Reynolds v. State, No. 370 1983, letter op. (Del. Jan. 16, 1985).

Reynolds filed pro se a second Rule 35 motion raising federal constitutional claims of ineffective assistance of counsel. The superior court denied Reynolds' second Rule 35 motion as repetitive. State v. Reynolds, No. IS76-04-0026, 0027, letter op. at 2 (Del.Super.Ct. Mar. 12, 1986). Reynolds did not appeal. Reynolds I, 843 F.2d at 723.

Reynolds later filed a pro se petition for a writ of habeas corpus in the United States District Court for the District of Delaware pursuant to 28 U.S.C. Sec. 2254. His petition raised both unfair trial and ineffective assistance of counsel claims. The unfair trial claims were based on the prosecutor's reference to Reynolds' confessions and the failure of the trial judge sua sponte to instruct the jury to disregard that reference. The district court referred the case to a magistrate judge who recommended that Reynolds' unfair trial claims be barred from habeas review under the "cause and prejudice" or "independent and adequate state ground" test of Wainwright v. Sykes, supra. The magistrate judge recommended that Reynolds' ineffective assistance claims be rejected on their merits. The district court adopted the magistrate's recommendations, and denied Reynolds' habeas petition. Reynolds I, 843 F.2d at 716.

Reynolds appealed the district court's dismissal of his habeas petition. We reversed the district court's ruling that Reynolds' unfair trial claims were procedurally barred. The Delaware courts' determination that Reynolds had forfeited his opportunity for Rule 35 review, we concluded, was not based on an independent and adequate state procedural ground of default as required by Sykes. Reynolds I, 843 F.2d at 719. Essentially, we found that the Delaware courts had subjected Reynolds to a new contemporaneous-objection requirement when they reviewed his Rule 35 motion, a requirement which had not existed at the time Reynolds could have contemporaneously objected. ⁴ While the Delaware courts might be free to impose a surprise forfeiture rule to preclude state collateral review of a state trial's compliance with federal law, we held that state forfeiture-by-surprise was an inadequate ground for precluding federal collateral review. We also found that Reynolds had not exhausted his available state remedies regarding his ineffective assistance claims. Accordingly, we reversed the district court's disposition of both Reynolds' unfair trial claims and his ineffective assistance claims. We remanded for further proceedings consistent with our opinion. In our opinion, we noted that, if Reynolds chose to amend his petition...