DeShields v. Snyder

• Decision Date: 31 July 1993
• Docket Number: Civ. A. No. 93-349-JJF.
• Parties: Kenneth W. DeSHIELDS, Petitioner, v. Robert SNYDER, Warden, Delaware Correctional Center, Respondent.
• Court: U.S. District Court — District of Delaware

829 F. Supp. 676

Kenneth W. DeSHIELDS, Petitioner, v. Robert SNYDER, Warden, Delaware Correctional Center, Respondent.

Civ. A. No. 93-349-JJF.

United States District Court, D. Delaware.

July 31, 1993.

COPYRIGHT MATERIAL OMITTED

Kevin M. Howard, of Prickett Jones Elliott Kristol & Schnee, Dover, DE, for petitioner.

Richard E. Fairbanks, Jr. and Loren C. Meyers, Deputy Attys. Gen., Dept. of Justice, Wilmington, DE, for respondent.

OPINION

FARNAN, District Judge.

Presently before the Court is a Motion for Stay of Execution and a Motion to Proceed In Forma Pauperis filed by Kenneth DeShields ("DeShields") in this habeas corpus case filed pursuant to 28 U.S.C. § 2254. For the reasons stated below, the Motion for a Stay of Execution will be denied,¹ the Motion to Proceed In Forma Pauperis will be granted, and the habeas Petition will be dismissed as lacking merit.²

I. FACTUAL BACKGROUND³

Following a jury trial in March 1986, DeShields was convicted and sentenced on two counts of murder in the first degree in violation of 11 Del.C. § 636; robbery in the first degree in violation of 11 Del.C. § 832(a)(2); and possession of a deadly weapon during the commission of a felony in violation of 11 Del.C. § 1447(a). The jury voted that the death penalty be imposed for each of the counts of murder in the first degree pursuant to 11 Del.C. § 4209. Further, the court imposed a 30 year term of imprisonment for the robbery conviction and 30 years imprisonment for the weapons charge.

On direct appeal, the Supreme Court of the State of Delaware affirmed the convictions and sentences. DeShields v. State, 534 A.2d 630 (Del.Supr.1987). On May 16, 1988, the United States Supreme Court denied DeShields' Petition for writ of certiorari. DeShields v. State, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 217 (1988).

Subsequently, DeShields' original defense counsel filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61. On October 4, 1988, the Superior Court appointed new counsel to represent DeShields in his post-conviction relief efforts. On August 17, 1992, the Delaware Superior Court denied DeShields' motion and on June 10, 1993, the Delaware Supreme Court affirmed the Superior Court's denial of post-conviction relief. On July 7, 1993, the Superior Court of the State of Delaware in and for Sussex County ordered that DeShields be executed on August 4, 1993.

On July 26, 1993, DeShields filed this habeas Petition pursuant to 28 U.S.C. § 2254 (D.I. 2), a Motion for a Stay of Execution (D.I. 4) and a Motion to Proceed In Forma Pauperis (D.I. 3). The State filed an Answer on July 27, 1993 (D.I. 9), and an Answer to the Motion to Stay on July 28, 1993 (D.I. 10). Pursuant to Rule 8 of the Rules governing § 2254 cases, the Court finds no evidentiary hearing is necessary and disposition of the Petition is proper at this time.⁴

II. DISCUSSION

In determining whether a stay of execution should be granted a court must balance the equities in the case. Consideration of the following factors is required:

a) Whether the movant has made a showing of likelihood of success on the merits;

b) Whether the movant has made a showing of irreparable injury if the stay is not granted;

c) Whether the granting of the stay would substantially harm the other parties; and

d) Whether the granting of the stay would serve the public interest.

Herrera v. Collins, 954 F.2d 1029, 1033 (5th Cir.1992); O'Bryan v. Estelle, 691 F.2d 706 (5th Cir.1982), cert. denied sub nom., O'Bryan v. McKaskle, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); Flamer v. Chaffinch, 774 F.Supp. 211, 217 (D.Del.1991).

There is no question that irreparable injury may result if the stay is not granted. O'Bryan, 691 F.2d at 708; Flamer, 774 F.Supp. at 218. As in all death penalty cases, an irreparable injury to the Petitioner results if a stay is denied and subsequently it is determined that the Petition had merit. However, this fact alone is not a sufficient reason to grant a stay. See Gregg v. Georgia, 429 U.S. 1301, 96 S.Ct. 3235, 50 L.Ed.2d 30 (1976) (Powell, Circuit Justice). Therefore, while cognizant of the ominous nature of the motion presently before the Court, the Court will focus on the merits of the claims asserted in the Petition. See Mulligan v. Zant, 531 F.Supp. 458, 460 (M.D.Ga.1982) ("the law cannot contemplate the carrying out of the execution alone as that harm, else that single consideration becomes overriding to the exclusion of" all others); See also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983) ("the nature of the penalty is a proper consideration in determining whether to issue a certificate of probable cause, but the severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate").

With regard to the merits of the Petition, the central issue for the Court is whether the Petitioner has presented a "substantial case on the merits" of a serious legal question. Herrera, 954 F.2d at 1033 (quoting Celestine v. Butler, 823 F.2d 74, 77 (5th Cir.1987) (quoting O'Bryan, 729 F.2d at 993)).⁵ The Court concludes that DeShields has not presented any serious legal question in his Petition.

The claims raised by DeShields are as follows:

1) Failure of counsel to properly raise and preserve issues in the state courts thus violating DeShields' Sixth Amendment rights to effective assistance of counsel (D.I. 4 ¶ a);

2) Prosecutorial misconduct in the closing argument which resulted in a destruction of his right to a fair trial and denied him his right to due process under the Fourteenth Amendment (D.I. 4 ¶ b);

3) Prosecutorial misconduct in argument during the penalty phase thus violating his rights to due process under the Fourteenth Amendment (D.I. 4 ¶ c);

4) Ineffective assistance of counsel denying him his Sixth Amendment rights by failure of counsel to advise him of his right to address the jury during the penalty phase (D.I. 4 ¶ d);

5) Violation of his rights to due process under the Fourteenth Amendment because the trial court failed to instruct the jury properly on the issue of mitigating circumstances (D.I. 4 ¶ d);

6) Death by hanging or lethal injection is cruel and unusual punishment in violation of the Eighth Amendment (D.I. 4 ¶ e);

7) Violation of his due process rights under the Fourteenth Amendment when the trial court failed to strike certain jurors for cause (D.I. 4 ¶ f);

8) Trial court's failure to assure that he knowingly and voluntarily waived his rights pursuant to 11 Del.C. § 4209(c)(2) depriving him of his right to a fair trial under the Fourteenth Amendment (D.I. 4 ¶ g); and

9) The Delaware Supreme Court erred in their review of the Superior Court resulting in a violation of DeShields' due process rights under the Fourteenth Amendment (D.I. 4 ¶ h).

A. Ineffective Assistance of Counsel Claims

1. Standard of Review

To be successful in establishing a claim of ineffective assistance of counsel, a Petitioner must establish that (1) the "attorney's representation fell below an objective standard of reasonableness and, (2) had the attorney not failed the representation of the client, there is a reasonable probability that the result would have been different." Flamer v. Snyder, et al., 827 F.Supp. 1079, 1100 (D.Del.1993) (citing Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064-65, 2068, 80 L.Ed.2d 674 (1984)). The first prong of Strickland is satisfied when the Petitioner can show that errors were made that were so serious as to deprive the Petitioner of counsel as guaranteed by the Sixth Amendment. Id. at 1100 (citing Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064). In making this determination, the Court must look to the totality of circumstances. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Further, the Court on federal habeas review is bound by the underlying factual findings of the state court so long as they are adequately supported by the record. 28 U.S.C. § 2254(d). However, the Court is not bound by the state court's conclusion regarding the effectiveness of assistance the Petitioner received. Strickland, 466 U.S. at 697-98, 104 S.Ct. at 2069-70; Reese v. Fulcomer, 946 F.2d 247, 254 (3d Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1679, 118 L.Ed.2d 396 (1992). Finally, on review, the Court is to presume that the attorney's conduct falls within the realm of objective reasonableness and it is the burden of the Petitioner to show otherwise. Flamer, 827 F.Supp. at 1101 (citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).

2. Discussion

a. Failure to Advise of Right to Address Jury

DeShields claims that his counsel was ineffective because he failed to advise DeShields of his right to address the jury during the penalty phase. (D.I. 4 ¶ a). Without addressing what, if any, effect DeShields' testimony may have had on the outcome, DeShields argues that the mere failure to advise him of this right is a violation of his Sixth Amendment right to effective assistance of counsel.

This claim was fairly presented to the state court on DeShields' motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61. The Superior Court held an evidentiary hearing and at the conclusion of the hearing made the following finding:

The Court accepts the testimony of Edward C. Gill, Esq. to the effect that it was the defense plan to have DeShields speak to the jury in the form of a closing argument to avoid his cross-examination. When Gill counseled DeShields to make such a statement, DeShields rejected this advice. Additionally, DeShields has not demonstrated a reasonable probability that his own argument which he now states he wanted to make would have changed the outcome.

DeShields II, 1992 WL 245582, at *7.

The Court finds that these factual findings of the state court made at the conclusion of an evidentiary hearing are fairly supported by the record, and are entitled to a presumption of...