Full opinion text
OPINION McKELVIE, District Judge. This is a habeas corpus case. Petitioner, Robert Allen Gattis, is a state prisoner incarcerated at the Delaware Correctional Center (“DCC”) in Smyrna, Delaware. Respondent, Robert Snyder, is the warden of the DCC. Gattis is contesting the constitutionality of his murder conviction and his death sentence. On September 22, 1992, a jury in the New Castle County Superior Court of the State of Delaware convicted Gattis of first degree murder, first degree burglary, possession of a deadly weapon by a person prohibited, and two counts of possession of a deadly weapon during the commission of a felony for the murder of Shirley Y. Slay. During the penalty phase of his trial, the jury found by a ten to two vote that the aggravating circumstances of his crime outweighed the mitigating circumstances. On October 29, 1992, Judge Norman A. Barron of the Superior Court sentenced Gattis to death by lethal injection. State v. Gattis, 1992 WL 358030, Del.Super. Cr.A. No. IN90-05-1017 through 1019, and 1106 through 1107, Barron, J. (Oct. 29, 1992). The Delaware Supreme Court affirmed Gattis’s convictions and sentence on direct appeal. See Gattis v. State, 637 A.2d 808, 823 (Del.1994). Gattis subsequently filed a petition for writ of certiorari to the United States Supreme Court, which it denied. Gattis v. Delaware, 513 U.S. 843, 115 S.Ct. 132, 130 L.Ed.2d 75 (1994). On October 21, 1994, Judge Barron set an execution date of December 2, 1994. On November 21, 1994, Gattis filed a pro se motion for post-conviction relief. On the same day, Judge Barron entered an order staying the scheduled execution and setting a schedule for filing an amended motion for post-conviction relief. On February 8, 1995, Gattis filed an amended motion for post-conviction relief. On August 24, 1995, Judge Barron denied Gattis’s post-conviction relief motions and rescheduled his execution. See State v. Gattis, 1995 WL 562254, Del.Super. Cr.A. No. IN90-05-1017 through 1018; 1106; 1019-R2; and 1107-R2, Barron, J. (Aug. 24, 1995). Gattis filed a motion to reargue, which Judge Barron granted in part and denied in part. On October 20, 1995, Judge Barron conducted a hearing on whether Gattis received ineffective assistance of counsel at trial, and then denied Gattis’s motion for post-conviction relief. State v. Gattis, 1995 WL 790961, DeLSuper., Cr.A. No. IN90-05-1017 to 1019-R2; IN90-05-1106; 1107-R2, Barron, J. (Dec. 28, 1995). Judge Barron rescheduled Gattis’s execution for March 29,1996. Gattis filed an appeal with the Delaware Supreme Court. The Court heard oral argument and remanded the matter to Judge Barron to make factual findings and conclusions of law on two issues: (1) whether the state’s theory of the homicide was impossible; and (2) whether the state improperly excluded a potential juror for gender-related reasons. Gattis v. State, Del.Supr. No. 37, 1996, Holland, J. (October 15, 1996). On December 11, 1996, Judge Barron denied Gattis’s motion for post-conviction relief on the second issue. See State v. Gattis, 1996 WL 769328, DeLSuper. No. 90004576DI, Barron J. (Dec. 11, 1996). On December 17, 1996, Judge Barron held an evidentiary hearing on the first issue, and denied Gattis’s motion for post-conviction relief. See State v. Gattis, 1997 WL 127007, DeLSuper. No. 90004576DI, Barron, J. (Feb. 13, 1997). Gattis appealed this decision to the Delaware Supreme Court, which affirmed Judge Barron’s decisions to deny post-conviction relief. Gattis v. State, 697 A.2d 1174 (Del.1997), as revised on denial of rehearing (Sept. 8, 1997) cert. denied, —- U.S.-, 118 S.Ct. 1070, 140 L.Ed.2d 130 (1998). On September 19, 1997, Judge Barron rescheduled Gattis’s execution for January 9,1998. On November 25, 1997, Gattis filed a petition for writ of habeas corpus in this court, alleging constitutional infirmities in his trial and post-conviction appeals. Gat-tis alleges he received ineffective assistance of counsel at trial because his counsel failed to adequately prepare for trial and investigate his version of events; delays leading up to trial denied him the right to a speedy trial; the prosecution failed, to divulge relevant evidence before and during trial; the prosecution improperly used a peremptory challenge to remove a potential juror based on gender; the court did not use random means to select a jury; the court improperly failed to permit expansion of the record on post-conviction claims; and the court improperly affirmed his conviction and death sentence on post-conviction review based upon a theory of the crime not originally presented at trial. The following is the court’s decision on Gattis’s petition for a writ of habeas corpus. I. FACTUAL AND PROCEDURAL BACKGROUND The court draws the following facts from the following sources: the Superior Court’s penalty hearing findings, State v. Gattis, 1992 WL 358030, Del.Super. No. Cr.A. No. IN90-05-1017 through 1019; 1106 through 1107, Barron, J. (Oct. 29, 1992); [hereinafter Gattis I]; the Delaware Supreme Court’s findings in its decision on Gattis’s direct appeal in 1994, Gattis v. State, 637 A.2d 808 (Del.1994) [hereinafter Gattis II]; the Superior Court’s findings in its decisions denying Gattis’s motions for post-conviction relief, State v. Gattis, 1995 WL 790961, Del,Super., Cr.A. No. IN90-05-1017 to 1019-R2; IN90-05-1106; 1107-R2, Barron, J. (Dec. 28, 1995) [hereinafter Gattis III]; the Delaware Supreme Court’s decision affirming the Superior Court’s denial of Gattis’s motions for post-conviction relief, Gattis v. State, 697 A.2d 1174 (Del.1997) [hereinafter Gattis IV]; and this court’s independent review of the state court proceedings’ record. A. Gattis’s shooting of Slay Robert Allen Gattis and Shirley Y. Slay began a relationship in 1984. Gattis physically and emotionally abused Slay during the course of their relationship. Gattis repeatedly accused Slay of infidelity, punched and slapped her, and threatened her with a gun and a knife. Gattis and Slay lived together from time to time, both in apartments rented by Slay, and at Slay’s parent’s house. In the months before her death, Slay lived in an apartment in Wilmington, to which Gattis had a key. In April of. 1990, Slay moved into a second floor apartment in the DuPont Parkway Apartments in New Castle. She did not give Gattis a key to her new apartment. Slay planned to have her eleven-year old daughter, Tykisha Slay, who lived with Slay’s parents, move in with her before school started that fall. Slay told her friend and neighbor, Lisa Watson, and ■her work supervisor, Ruth Ann Noel McCory, that she wanted to end her relationship with Gattis before Tykisha moved in with her. Around this time, Gattis began spending several nights a week at the home of another girlfriend, Wanda Scri-vens. On the night of May 8, 1990, Gattis telephoned Slay at her apartment, but there was no answer. On May 9, 1990, Slay told her supervisor, McCory that she intended to end her relationship with Gat-tis that day. After work on the same day, Slay went to a softball game in Wilmington with Watson. Slay left the game with Gattis, who arrived separately looking for Slay. Gattis accused Slay of having another man in her apartment. They drove to Slay’s apartment. There, they argued over Gattis’s inability to reach Slay by telephone the previous day. Slay told Gat-tis her telephone was broken. Gattis then arranged for a friend, Roosevelt Wright, to call Slay’s apartment. When the telephone rang, Gattis became enraged and beat Slay, accusing her of seeing another man. Gattis then left. Slay called 911 at around 10:45 p.m. to report the assault. Watson arrived at Slay’s apartment at this time. Patrolman John Gahan arrived at 11:10 p.m. in response to Slay’s 911 report. Slay told Gahan that Gattis had accused her of having a man in her apartment the night before, and punched her in the head four times. Gattis called Slay’s apartment several times while Gahan took Slay’s report of the incident. Gahan spoke with Gattis on the telephone and told him to have no contact with Slay. Gattis borrowed Wright’s car, and then drove back to Slay’s apartment building with a loaded .38 caliber gun. Around midnight on May 10, 1990, Slay telephoned Watson, who lived downstairs from Slay, and asked her to check outside to see if Gattis had returned, because she heard some noise outside her apartment. Watson stepped out of her apartment, and saw Gattis standing outside the entryway to the building. Watson urged Gattis to stop fighting with Slay. Gattis asked if Slay was in, and then headed up the flight of stairs to Slay’s apartment. Watson walked back to her apartment, locked the door, and returned to the phone to warn Slay that Gattis was on his way up to her apartment. Watson hung up the phone, called Slay’s parents, and then called Slay back. While on the phone with Slay, Watson heard Slay telling Gattis to go away and that she was not going to open the door. Watson then heard Gattis kicking in Slay’s door. Watson and her boyfriend, Frank Gillette, ran out of her apartment and up the stairs to Slay’s apartment. Watson’s and Slay’s apartments were separated by two flights of stairs. While running up the first set of stairs, which faced the entrance to the apartment building, Watson heard a gunshot and saw a flash reflected in the glass around the door. Watson then saw. Gat-tis leap over the second floor landing and run out of the building. Gattis had kicked in Slay’s door and then shot Slay directly between the eyes. Slay died of the bullet wound shortly thereafter. Watson found the door panel and door jamb broken and the door partially open. Slay’s body lay just inside the entry to her apartment, with her feet closest to the door. When Watson pushed the door to Slay’s apartment, it opened eight to twelve inches before hitting Slay’s feet. Gillette, who entered next, pushed the door against Slay’s body to open the door further. Paramedics, who arrived next, removed the door to gain entry into the apartment. After running out of the apartment building, Gattis drove back to Wilmington. While driving, he threw the gun out of the car window along Route 9. The gun was never recovered in the crime investigation. Gattis went to Wanda Scrivens’s house, where he joined the sleeping Scrivens in her bed. That afternoon, on May 10, 1990, Gattis, accompanied by Scrivens and his friend, Lee Simpson, turned himself into the police at the Delaware State Hospital. B. Preparation for Gattis’s Trial On May 23, 1990, the Grand Jury charged Gattis with first degree murder, first degree burglary, possession of a deadly weapon by a person prohibited and two counts of possession of a deadly weapon during commission of a felony. Following his arrest, Gattis was represented by the Office of Public Defender. On May 30, 1990, the Office of the Public Defender assigned assistant public defenders Richard M. Baumeister, Esquire, and John H. McDonald, Esquire, to represent Gattis. Baumeister contacted Elizabeth Dew-son, the Public Defender’s Office’s psycho-forensic evaluator. Upon Baumeister’s direction, Dewson taped an interview with Gattis. In the interview, Gattis told Dew-son his gun accidentally discharged while he forced his way into Slay’s apartment. Gattis told Dewson that he could see part of Slay’s head behind her door, and that Slay was standing behind the door when his gun discharged, and that she turned, and then fell. Gattis also told Dewson he heard Slay say “Oh God” when he ran out of the building. At Baumeister’s request, Dr. Cono Gal-liani, Ph.D, performed a psychological evaluation of Gattis. Gattis told Galliani that he thought another man was in Slay’s apartment at the time of the shooting. Gattis also told Galliani, he heard Slay say “Oh God” after the gun discharged. Joseph Slights is an attorney who worked for the Law Offices of Sidney Bal-ick at this time. Slights interviewed Gattis after Sidney Balick was approached by someone seeking legal representation on behalf of Gattis. During this interview, Gattis told Slights that he was trying to force entry into Slay’s apartment when his gun accidentally discharged. Gattis said he heard Slay speak after the gun discharged. Gattis also told Slights that he thought a man was in Slay’s apartment at this time. The Superior Court initially set a trial date of November 1, 1990, but granted a postponement requested by Gattis’s counsel, so that Gattis could be examined by a neurologist. The court set a new trial date of March 11, 1991, but granted another postponement, so that additional medical tests could be conducted upon Gattis. The court set a new trial date of May 20, 1991. The state sought a postponement in a March 11, 1991 letter. On May 29, 1991, Judge Charles H. Toliver, IV, held a hearing to determine whether the court should grant another postponement request. Judge Toliver referred to a May 28, 1991 letter from Baumeister. According to Judge Toliver, the letter “indicate[d] the defendant did not object to the requested rescheduling because the defendant’s ongoing psychological and neurological examinations were not complete and [would] not be complete until July or August.” At the hearing, Gattis expressed concern about the delays, but agreed to postpone trial until November 26, 1991, to give his counsel time to prepare the case. On November 4, 1991, the Delaware’s governor, Michael Castle, signed Senate Substitute 1 for Senate Bill 79, amending 11 Del. C. § 4209, relating to the imposition of the death penalty. The terms of the amended law apply to all defendants tried or sentenced after its effective date. According to the amended law, the jury, at the penalty phase, makes a death sentence recommendation to the court by answering the following questions: 1. 'Whether the evidence shows beyond a reasonable doubt the existence of at least 1 aggravating circumstance as enumerated in subsection (e) of this section; and 2. Whether, by a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bear upon the particular circumstances or details of the commission of the' offenses and the character and propensities of the offender, the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist. 11 Del.C. § 4209(c)(3)a.l-2. The court is not bound by the jury’s recommendation. Section 4209, as amended, requires the judge to impose a death sentence after considering the recommendation of the jury, if the judge finds: a. Beyond a reasonable doubt at least 1 statutory aggravating circumstance; and b. By- a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission -of the offense and the character and propensities of the offender, that the aggravating circumstances found by the court to exist outweigh the mitigation circumstances found by the court to exist. 11 Del.C § 4209(d)(l)a-b. ' Pursuant to the previous version of 11 Del.C. § 4209 in existence before November 4, 1991, the jury had to unanimously recommend the death penalty for a defendant to receive that sentence. Pursuant to Delaware Supreme Court Rule 41, the Superior -Court certified questions of law to the Delaware Supreme Court, on whether the new death penalty statute violated the U.S. Constitution or the Delaware Constitution. See State v. Cohen, 604 A.2d 846 (Del.1992). Defendants awaiting trial for first-degree murder who allegedly committed murders before the new law became effective, including Gattis, participated in the certification process. See State v. Cohen, 604 A.2d 846 (Del.1992). In a November 13, 1991 Administrative Directive, the Superior Court postponed all trials and penalty hearings in capital first-degree murder cases, including Gat-tis’s trial, while the Delaware Supreme Court considered the certified questions of law. See Administrative Directive of the Presiding Judge of the Superior Court of the State of Delaware No. 91-2, Nov. 13, 1991, revised Nov. 20,1991. On January 28, 1992, the Office of the Public Defender moved for leave to withdraw as counsel and requested that conflict counsel be appointed, citing a conflict of interest. The court granted the motion. On February 3, 1992, Howard F. Hillis, Esquire, was appointed to represent Gat-tis, but soon thereafter, Hillis withdrew from the case .due to health problems. On February 14, 1992, the Delaware Supreme Court answered the certified questions of law, by finding § 4209, as amended, did not violate the U.S. Constitution or the Delaware Constitution. See State v. Cohen, 604 A.2d 846 (Del.1992). In a February 18, 1992 Administrative Directive, the Superior Court rescinded the temporary stay of all trials and penalty hearings in capital first-degree murder cases. See Administrative Directive of the Presiding Judge of the Superior Court of the State of Delaware No. 92-2, Feb. 18, 1992 (rescinding Administrative Directive 91-2). On March 5, 1992, Jerome M. Capone, Esquire, was appointed to represent Gat-tis. Capone met with Gattis approximately six times prior to trial. Capone visited Slay’s apartment building prior to trial, but did not enter her apartment. He attempted to speak with Watson, but she refused to discuss the case with him. Capone reviewed the physical evidence held at police headquarters. On March 10, 1992, the Superior Court scheduled trial to commence on September 9, 1992. On March 30, 1992, the court appointed Joseph M. Bernstein, Esquire as co-counsel to Gattis. On April 23, 1992, the court granted Gattis’s motion for authorization to pay for psychological and psychiatric evaluation. Gattis’s counsel retained Robert L. Sadoff, M.D. to provide a psychological and psychiatric evaluation of Gattis. C. Trial 1. Jury Selection Trial commenced on September 1, 1992, presided over by Judge Barron. Capone and Bernstein represented Gattis. Mark W. Bunitsky and Marsha J. Epstein represented the State of Delaware. The Superior Court summoned approximately 400 people from the jury pool. Among the 400 people, 40 were Black and 4 were of Hispanic origin. On the morning of September 1, 1992, the jury manager assembled the prospective juror panels on a “first-come, first-served” basis. This entailed assigning sequential numbers to the first 150 potential jurors as they arrived at the courthouse on the first morning of trial. Once court convened, Judge Barron collectively asked the array preliminary questions, and then called the prospective jurors in sequential order in groups of twenty for individual voir dire. The court subjected ninety-nine jurors in all to individual voir dire, including ten Black jurors and four Hispanic jurors. The first thirty-five prospective jurors called for individual voir dire were Caucasian. Gattis is Black. Gattis’s counsel inquired into the method for assembling the jury panels because they were concerned about racial bias. After finding out the jury manager had assembled the jury on a “first-come, first-served” basis, counsel moved to stay or dismiss the jury panel, alleging jury selection had not complied with procedures mandated by the Delaware Jury Selection and Service Act, 10 Del.C. § 4501. Section 4501 requires jurors be “selected at random from a fair cross section of the population.... ” 10 Del.C. § 4501. Gattis’s counsel argued the “first-come, first-served” jury selection method is not random, because prospective jurors might “segregat[e] themselves” into groups as they walked in and mingled before getting a number. Counsel also argued that the “distribution of blacks throughout the first forty and first one hundred is not consistent with a showing of random selection.” On September 8, 1992, Judge Barron held a hearing on defendant’s motion. Mark Vavala, the Superior Court jury manager, testified about the method used to assign numbers to jurors. Defendant presented expert testimony of Dr. Barry Morstain, Ph.D. Morstain testified that the “first-come, first-served” method is not random because human nature and external factors may impact the order in which people arrive. Judge Barron denied Gattis’s motion to dismiss the panel, finding there was no conscious effort to exclude Black prospective jurors. Judge Barron noted that 10% of the 99 jurors participating in individual voir dire were Black, which was the same as the percentage of Black jurors in the initial group of 400. Of the remaining 64 potential jurors, 10 were Black. Judge Barron deemed the racial composition of the first 35 jurors “irrelevant,” because the racial percentage of the entire voir dire represented the entire jury assembly. During jury selection, the state used one of its peremptory challenges to strike Wilfred Moore from the panel. After the court excused Moore, Bunitsky offered two reasons on the record for using his peremptory challenge: Number one, I believe that this juror was very, very conservative in his application of the possible application of the death penalty. He answered very quickly yes to the possibility of imposing a life sentence under the appropriate facts and circumstances, yet, to our belief, had a very difficult time in answering whether or not he could impose the death penalty under the appropriate circumstances. He seemed to be very, very .conservative in the application of the death penalty. Number two, he is an older gentleman and we have, I believe, four or five older gentlemen on the jury panel already. And I would suggest that it’s the State’s point of- view that we would prefer to have some more women on the jury. Judge Barron then made the following statement: “I would just observe again for the record that in light of his responses, it’s not surprising at all that the state utilized a challenge, and I’m convinced beyond any doubt whatsoever that challenge was not predicated upon racial motives.” When Moore was struck from the jury, four men and three women had already been selected and the state had used peremptory challenges to remove two women and two men. After Moore was removed, the state used peremptory challenges to remove three women and two men. Also, four jurors who were unable to impose the death penalty were struck for cause on the state’s motion. Ultimately, six men and six women were selected for the jury. Four alternate jurors were also selected, including three women and one man. 2. Presentation of Evidence Opening arguments began on September 9, 1992. During the trial, the prosecution presented evidence that Gattis was obsessively jealous and possessive of Slay, and that he had abused and terrorized Slay for years. The prosecution presented evidence that Slay had sought to break away from Gattis once and for all in the weeks leading up to her murder, and that Gattis murdered her as a means of controlling her. The prosecution presented evidence that on May 10, 1990, just after 12:00 a.m., Gattis kicked down Slay’s door, pointed a .38 caliber gun at her face and fired, murdering Slay “execution-style.” The prosecution introduced testimony by Tykisha Slay, Slay’s daughter, Shirley E. Slay, Slay’s mother, and Ruth Ann Noel McCory, Slay’s supervisor, that Gattis had a history of violence against Slay, and that Slay was trying to end her relationship with Gattis when she moved to the DuPont Parkway Apartments. The prosecution offered testimony by neighbors, friends and police officers about the events leading up to the shooting and the condition of the crime scene. John Gahan, New Castle County police officer, testified that he responded at approximately 11:10 p.m. to a domestic disturbance at Slay’s apartment. Gahan testified that Slay filed a crime report, and told him that she and Gattis had a verbal argument in which he accused her of having someone in her apartment the previous night, and then punched her in the head four times. He testified that Gattis called the apartment approximately three times while he was there, and that he spoke to Gattis one time. He testified that he told Gattis not to come back to Slay’s apartment. Lisa Watson testified to her recollection of the events leading up to and including Slay’s death and the discovery of her body. Watson testified that she was the first to enter Slay’s apartment after the shooting, and that Slay’s door only opened eight to twelve inches before hitting Slay’s feet. On cross examination, Capone questioned Watson further about the position of Slay’s body in the entryway to her apartment, and how far Slay’s door opened before hitting Slay’s feet. Capone sought to establish that Slay’s door would not open far enough to permit Gattis to enter the apartment and then exit after shooting Slay. Frank Gillette testified about the events leading up to Slay’s death. Gillette testified that Slay’s feet were pushed up against the door, and that he had to push the door against her body to enter her apartment. On cross examination, Capone introduced Gillette’s statement to the police after the shooting that he heard two loud bangs followed by a gunshot, and only then did he and Watson run out of her apartment. Capone introduce this statement to prove less time passed between when Gattis kicked in Slay’s door and when Gattis shot Slay than Watson and Gillette had alleged. Capone asked Gillette more questions about the position of Slay’s fallen body and whether it blocked the entrance to her apartment. The prosecution called Deputy Chief Medical Examiner Galicano Inguito, M.D. Inguito had performed the autopsy on Slay’s body. He offered forensic testimony concerning the facts and circumstances surrounding Slay’s death. Inguito testified that Slay died from wounds from a .38 caliber bullet shot through the bridge of her nose. He testified that Slay was incapacitated at the time she was shot, and probably fell where she stood. He testified that the bullet’s path through Slay’s head and the abrasion pattern indicated the bullet had a trajectory from Slay’s left to right and upward. He testified that the stippling around Slay’s entry wound indicated that the muzzle of the gun was four to eighteen inches from her head when Gattis shot her. Inguito testified that Slay’s wounds were consistent with the prosecution’s theory that Gattis shot Slay with his right hand as he faced her from four inches away. On cross examination, Inguito expressed the opinion that Slay’s wounds were also consistent with a scenario in which Gattis accidentally shot Slay as he reached around her door with his right hand while holding a cocked gun. On redirect examination, Inguito expressed the opinion that the prosecution’s theory was more likely in light of Slay’s wounds. The defense called Clyde Spinelli, manager of the DuPont Parkway Apartments. Spinelli testified that there is a closet in the entry hall of Slay’s apartment, and that when the front door is open twelve inches, there is only a six and one half inches opening between the door and the closet’s edge. Spinelli testified that diagrams prepared by Capone depicting the entryway to Slay’s apartment were accurate. Gattis testified in his own defense about his relationship with Slay, his history of jealousy and physical abuse, and the events leading up to and including Slay’s death. Gattis testified that he had previously drawn a gun on Slay in 1987 when he saw her talking to a man, William German, at an American Legion Post while she tended bar. Gattis testified that he was at the bar and he saw German there. Gattis testified that he thought Slay had dated German and that he believed Slay was being unfaithful to him. Gattis testified that he left the bar, retrieved a gun, and returned to the bar. Gattis testified that he hit German with the pistol, and then they wrestled. Gattis testified that while scuffling with German, the gun “went off I think maybe three times.... ” Gattis testified that he pointed the gun at Slay after fighting with German, and then left the bar. Gattis testified that he pleaded guilty to charges of reckless endangering and assault in connection with this incident. Gattis offered his account of the incident leading to Slay’s death. He testified that he shot Slay accidentally as he pushed his way into Slay’s apartment. Gattis testified that he took a gun to Slay’s apartment because he thought Slay had a male visitor there. Gattis testified that Slay would not open the door, so he kicked the door twice, causing it to swing open. Gattis testified that he grabbed his gun from his pants pocket with his right hand, cocked the gun’s hammer, and reached up and grabbed the open door, pushing his right hand into Slay’s apartment. Gattis testified that the gun then went off accidentally while he pushed the door open. Gattis testified that he saw Slay falling inside her apartment and heard her say “Oh, God.” Capone asked Gattis whether he meant to pull the gun’s trigger. Gattis testified that he did not, and that he had cocked the gun’s hammer when he pulled it out of his pants. When asked whether he intentionally cocked the gun’s hammer, Gattis stated: “It was more out of habit. I used to sit with the jacket on and had a pistol in my pocket, and I would pull the hammer back and pull the trigger, and — because I didn’t pull the trigger to have the gun go off, you know. It just — I just didn’t feel like I pulled the trigger.” On cross examination, Gattis stated he that would “pull the [gun’s] hammer back and pull the trigger and ease the hammer back up into the closed position” as a matter of habit. On cross examination, Bunitsky questioned Gattis about his prior convictions resulting from the American Legion incident. Bunitsky asked Gattis whether he fired a bullet into the floor at Slay’s feet after pointing his gun at her face at the American Legion. Gattis denied he did this. After the defense rested, the prosecution called on rebuttal Jerry Custis, a Wilmington police officer. Custis testified that he investigated the 1987 incident at the American Legion. Custis testified that he observed two bullet holes in the American Legion’s bar area, one behind the bar in the floor, where Gattis testified Slay stood, and the other on the back of the bar in a wall just above head level, where Gattis testified he fought with German. The prosecution also recalled McCory to testify that Slay had told McCory that she feared Gattis, and that Slay had told her that Gattis had threatened to shoot Slay if she broke up with him. During closing arguments the prosecution argued that Gattis, in a jealous rage, kicked in Slay’s door, entered her apartment, pointed his gun at her and then shot her at close range between the eyes. Gat-tis’s accidental shooting story, the prosecution argued, did not fit with the evidence that at least ten seconds passed between when Gattis kicked down Slay’s door and fired his gun. The defense argued in closing that the prosecution’s theory that Gattis kicked in Slay’s door, entered into her apartment and shot her was impossible in light of the physical evidence that Slay’s body blocked the apartment door from opening more than twelve to eighteen inches. In its reply, the prosecution argued that Gattis “acted intentionally in the form of an execution-style slaying .... whether he put his foot between the door and fired the gun in her face or whether he knocked her down and walked over to her and pumped the bullet in her as she’s laying on the ground.” The prosecution argued “[t]he door was opened enough for [Gattis] to have seen [Slay] and discharged the gun into her face.” The prosecution argued that Gattis had previously pointed a gun at Slay in public at the American Legion, and had intentionally “pumped a shot into the floor” in front of Slay. The prosecution argued that this prior act demonstrated Gattis’s motive to assault Slay when he became jealous. On September 22, 1992, the jury returned with a verdict that Gattis was guilty of first degree murder, first degree burglary, possession of a deadly weapon by a person prohibited, and two counts of possession of a deadly weapon during the commission of a felony. 3. Penalty Hearing From September 24, 1992 to October 1, 1992, Judge Barron conducted a capital murder penalty hearing pursuant to 11 Del.C. § 4209(h). The state relied on the existence of two statutory aggravating circumstances: (1) “The murder was committed while the defendant was engaged in the commission of ... any degree of ... burglary!,]” 11 Del.C. § 4209(e)(l)j; and (2) “The defendant was previously convicted of ... a felony involving the use of, or threat of, force or violence upon another person!,]” 11 Del. C. § 4209(e)(l)i. The state also offered evidence regarding non-statutory aggravating circumstances including: (1) the circumstances and details surrounding the commission of the offense including Gattis and Slay’s relationship; (2) Gattis’s propensity towards violence or threats of violence; (3) the impact of the crime upon the victim’s family and friends, including her daughter, Tykisha Slay; (4) Gattis’s lack of respect for authority; and (5) Gattis’s conduct while on court supervision. Gattis offered evidence regarding the following mitigating circumstances including: (1) Dr. Robert Sadofirs diagnosis that Gattis has Intermittent Explosive Disorder and Episodic Diseontrol Syndrome; (2) Gattis’s obsessive and possessive relationship with Slay; (3) Gattis’s early years of neglect and abuse and exposure to domestic violence; (4) Gattis’s alcohol abuse; (5) Gattis’s prior good deeds and acts; and (7) Gattis’s remorse. During the penalty hearing, Lieutenant Donald Roberts of the Wilmington Police Department testified for the prosecution. Roberts investigated the 1987 American Legion incident. Roberts testified that, during a formal interview following the incident, Slay said that Gattis pointed the gun at her head and then lowered it and shot into the floor. Roberts testified that Slay, however, became uncooperative and refused to make that assertion in her formal typed police statement. Roberts testified that in the typed statement, Slay said “Me and Robert, we went to Post and had lunch and he left. He came back and all hell broke loose.” Roberts testified Slay said “Him and Bill got into an argument. I heard one bullet go off and I hollered, ‘Rob,’ and I called the cops.” The state offered this testimony to demonstrate that Slay had a pattern of protecting Gattis after he acted with violence towards her. Following deliberations, the jury unanimously found the state proved beyond a reasonable doubt the existence of both statutory aggravating circumstances. Ten out of twelve jurors also found, by a preponderance of the evidence, that the aggravating circumstances outweighed the mitigating circumstances. Gattis I, 1992 WL 358030 at *2. Because Delaware’s newly-amended death penalty statute applied to Gattis’s penalty hearing, the judge was not bound by the jury’s recommendation, and had the authority to impose the sentence he deemed appropriate after independently weighing the aggravating and mitigating factors. See 11 Del. C. § 4209. Based upon his review of the jury’s recommendation and additional argument from both sides, Judge Barron independently determined that , the state established beyond a reasonable doubt the existence of two statutory aggravating circumstances, Gattis I, 1992 WL 358030 at *3, and’that the aggravating circumstances outweighed the mitigating circumstances, id. at *13-14. According to Judge Barron, “After balancing all of the circumstances, both aggravating and mitigating, mercy is not warranted in this case.” Id. at *14. On October 29, 1992, Judge Barron ordered Gattis be executed by lethal injection. D. Post-conviction Proceedings 1. Direct Appeal Gattis appealed the convictions and sentence to the Delaware Supreme Court. In his appeal, Gattis asserted various claims of error relating to the admissibility of evidence in both the guilt and penalty phase of his trial. Gattis argued that the imposition of the death sentence was not proportionate to the offense committed. He also argued that the jury for his trial was not randomly selected. ' In his appeal, Gattis alleged there were causes for Tykisha Slay’s emotional condition other than her mother’s death. The Delaware Supreme Court remanded the case to the Superior Court to conduct an evidentiary hearing on whether Tykisha’s emotional state was attributable to causes other than her mother’s death. Gattis v. State, DelSupr. Nos. 498 and 514, 1992, Walsh, J. (Mar. 16, 1993) (ORDER). After holding a hearing, Judge Barron determined the evidence presented did not require the court to- amend its previous findings after the penalty hearing, nor to grant any other relief. See Gattis v. State, DeLSuper., Cr.A. Nos. IN90-05-1017 to 1019, IN90-05-1106 & 1107, Barron, J. (May 10, 1993) (Findings After Remand). On February 28, 1994, the Delaware Supreme Court affirmed both the convictions and the sentence imposed. Gattis II. Gat-tis filed a writ of certiorari to the United States Supreme Court, which denied cer-tiorari on October 3, 1994. Gattis v. Delaware, 513 U.S. 843, 115 S.Ct. 132, 130 L.Ed.2d 75 (1994). On October 21, 1994, Judge Barron set a new execution date of December 2, 1994, and appointed Kevin J. O’Connell, Esquire and Anthony A. Figio-la, Jr., Esquire to represent Gattis in his post-conviction proceedings. 2. Post-conviction Appeal On November 21, 1994, Gattis filed a pro se motion for post-conviction relief. On February 7, 1995, Gattis filed a motion to expand the record and a motion for leave to conduct an evidentiary hearing. On February 8, 1995, Gattis filed an amended motion for post-conviction relief. On February 16, 1995, Gattis moved for leave to conduct discovery, seeking an order that the state produce a crime scene video and still photographs taken by New Castle County Police investigators. Gattis also requested the court grant funds to obtain a crime scene expert to recreate the circumstances of Slay’s death and to assess the feasibility of Gattis’s defense that he shot Slay accidentally while pushing open her door with his gun in his hand. This was to provide support for his contentions that his counsel failed to adequately prepare for trial. Gattis requested the court hold a hearing on the issue of the circumstances of Slay’s death. On March 31, 1995, Judge Barron granted Gattis’s request that the state produce a crime scene video tape and photographs in its possession. Judge Barron also granted Gattis’s application for funds to hire a crime scene specialist to recreate Slay’s murder scene and to assess Gattis’s defense that he shot Slay accidentally. Gattis used the funds to hire Stuart H. James, a forensic expert. On July 11, 1995, James issued a report to the court. In his report, James concluded to a reasonable degree of scientific certainty that Slay was shot while standing in the doorway of her apartment with her telephone close to her nose and mouth, and that she fell shortly thereafter. James concluded he could not ascertain Gattis’s or Slay’s exact positions at the time of the shooting based upon the available physical evidence. In his report, James stated “I cannot determine with any scientific certainty whether the shooter fired the fatal shot while facing the victim or while pushing on the door with his right hand holding the weapon around the door.” After reading James’s report, Judge Barron concluded a hearing was not necessary, because James could not determine with any scientific certainty how Slay was shot. In his post-conviction motions, Gattis alleged he received ineffective assistance of counsel. On July 19, 1995, pursuant to Superior Court Criminal Rule 61(g)(2), Judge Barron directed Capone and Bernstein to prepare affidavits detailing then-trial preparation, performance and strategy- Bernstein stated in his affidavit that he met with Gattis for the first time on August 5, 1992, and Gattis told him that someone else shot Slay. Bernstein stated he met with Gattis again on September 12, 1992, during trial. Bernstein stated he and Capone told Gattis at this meeting “that from the testimony of the paramedic and Lisa Watson, it would have been virtually impossible for him to have seen the victim prior to the shooting because the victim was directly behind the door.” According to Bernstein, Gattis then stated for the first time “that he had been holding the gun in his right hand and, at the same time, pushing with his right hand against the edge of the door, trying to force it open. Gattis also said he did not really see the victim when she was shot.” Bernstein stated that he and Capone decided to develop evidence that would provide a factual basis for the accidental shooting theory by cross-examining Ingui-to, the deputy medical examiner, obtaining measurements of Slay’s apartment, and presenting the apartment complex’s maintenance man’s testimony about the layout of the apartment. Bernstein stated he and Capone decided not to obtain a forensic expert to reconstruct the shooting, “because we felt the facts to support an accidental shooting defense had been developed sufficiently, and especially from the state’s own witnesses, to allow us to credibly make an accidental shooting argument to the jury.” In his answer to Bernstein’s affidavit, Gattis denied that he told Bernstein that Slay was shot “by some unknown person who was inside the apartment.” According to Gattis “I consistently told all my attorneys how the shooting occurred.” Capone stated in his affidavit that Gattis maintained “well into the trial” that “some unknown boyfriend ... whom Gattis apparently imagined was in the apartment” shot Slay. Capone stated it was well into trial before “Gattis began to recall that he really didn’t see the victim at the time she was shot, and that he was holding the gun in his right hand and he tried to force his way into the apartment while holding the edge of the door with his right hand.” Capone stated that prior to trial, he “viewed the physical evidence at the New Castle County Police headquarters,” “visited the crime scene and interviewed neighbors[,]” and “met with Lisa Watson and attempted to interview her.... ” Capone stated he returned to the crime scene “[a]t the point in the trial when it began to appear that we had the basis to present the defense of an accidental shooting,” and obtained the assistance of the apartment complex’s maintenance man to take measurements of Slay’s apartment. Capone stated he subpoenaed “the maintenance man,” Spinelli, who testified at trial about the measurements. According to Capone, “[biased upon the testimony of the paramedic, Dr. Inguito, Lisa Watson, and the apartment maintenance man, Bernstein and I felt that we had presented a credible defense of an accidental shooting.” In his answer to Capone’s affidavit, Gat-tis stated under oath that “I have always maintained that the shooting was accidental. I never felt that anyone else had shot the victim — I knew that my own gun had discharged at the time the victim was killed.” On August 24, 1995, Judge Barron denied Gattis’s motions for post-conviction relief. In his amended motion for post-conviction relief, Gattis first claimed the state violated his Sixth and Fourteen Amendment rights by withholding evidence until the penalty phase. Gattis alleged the state withheld a police report following the American Legion shooting, and that this report contains a statement by Slay that Gattis discharged his gun accidentally. Gattis claimed Slay’s statement could have been used to buttress his accident defense on the murder charge. Gattis argued his trial counsel was ineffective for failing to raise the issue at trial or on appeal. Judge Barron ruled this claim was subject to procedural default pursuant to Superior Court Criminal Rule 61(i)(3), because (1) Gattis did not raise the claim at trial or on appeal, and (2) Gattis failed to meet the test set out for ineffective assistance of counsel that is cause for procedural default in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Delaware Supreme Court in Albury v. State, 551 A.2d 53 (Del.1988). Judge Barron also found this claim failed on the merits because there was no “reasonable probability that the outcome of either phase of Gattis’ trial would have been different” and that therefore the evidence was not material as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Gattis III, 1995 WL 790961 at *6. Second, Gattis claimed he was denied his right to a speedy trial in violation of his Fifth Amendment Right to due process and his Fourteenth Amendment right to equal protection because his trial was delayed after his indictment. Gattis was charged by a grand jury on May 23, 1990, and his trial did not commence until September 1,1992. Gattis argued he suffered prejudice as a result of the delay “because his penalty was adjudicated by a non-unanimous jury recommendation to the Court” under the amended Delaware death penalty statute. Gattis argued that he would have received a life sentence if he had been sentenced by this jury prior to the change in the law. Gattis argued his trial counsel was ineffective for not pursuing this claim at trial or on appeal. Judge Barron ruled-this claim was subject to procedural default pursuant to Criminal Rule 61(i)(3), because (1) Gattis did not raise it at trial or on appeal, and (2) his claim of ineffective assistance of counsel as cause for procedural default failed to meet the Strickland test. Id. at *7. Addressing the merits of Gattis’s Sixth Amendment claims, Judge Barron found Gattis’s counsel had asked for several continuances to arrange for neurological testing, and that these requests caused the trial delays occurring before November 13, 1991. Judge Barron found another period of delay occurred from November 13, 1991 through February 18, 1992. This delay occurred when all capital murder trials were stayed pending the determination of Delaware’s new death penalty statute’s constitutionality. Judge Barron ruled Gattis could not attribute to the state the period of delay attributable to defense counsel’s requests for continuances to obtain medical testing. Also, Judge Barron concluded that, pursuant to Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101, Gattis did not suffer cognizable prejudice from the delay pending the determination of Delaware’s new death penalty statute’s constitutionality. Gattis III, 1995 WL 790961 at *8. Furthermore, Judge Barron concluded, because Gattis participated in the certification process, he effectively waived his right to a speedy trial during the certification period. Id. Judge Barron concluded Gattis’s equal protection claims did not have merit. According to the court, “all ‘similarly situated defendants’ were in fact treated in exactly the same manner as Gattis, and were uniformly made subject to the new law whether or not they participated in the certification process.” Id. at *9. Third, Gattis raised two claims pertaining to jury selection at his trial. Gattis alleged he was denied his constitutional rights when “persons with moral scruples against the death penalty were excluded for cause from his jury, making the jury abnormally prone to finding him guilty and denying [his] right to be judged by a fair cross-section of the community.” Gattis also alleged the prosecution intentionally and inappropriately exercised its peremptory challenges in a manner designed to remove “persons with moral scruples” against the death penalty from the jury in violation of the Sixth and Fourteenth Amendments. In support, Gattis argued that Wilfred Moore is an example of a juror excluded by an improper peremptory strike. Judge Barron ruled these claims were subject to procedural default pursuant to Criminal Rule 61(i)(3), because (1) Gattis did not raise them at trial or on appeal, and (2) his claim of ineffective assistance of counsel as cause for procedural default failed to meet the Strickland test. Id. at *9. Judge Barron found Gattis’s claim that the jury was abnormally prone to find him guilty, lacked merit. According to the court, the jurors named by Gattis in his arguments each stated during their individual voir dire examination “in [their] own words that [they] would not recommend the death penalty even if the facts and circumstances supported such a recommendation.” Judge Barron found, therefore, the exclusions were proper pursuant to Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Gattis III, 1995 WL 790961 at *14. Judge Barron concluded that the exclusion of any jurors named in his arguments did not deprive Gattis of his constitutional rights. Judge Barron also ruled Gattis’s fair cross-section contention was without merits pursuant to Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), which does not prohibit the states from “death qualifying” juries in capital cases. Gattis III, 1995 WL 790961 at *15. Furthermore, Judge Barron concluded the fair cross-section claim is without merit because Gattis made the argument “in relation to his petit jury rather than the overall jury panel and also since his argument focuses on juror attitudes rather than on distinctive groups within the community ....” Id. Judge Barron also concluded Gattis’s peremptory challenge claim was without merit. According to the court, Gattis failed to argue the issue with specificity, as required by Criminal Rule 61. Id. Furthermore, Judge Barron found the state’s exercise of peremptory challenge was not improper, because it was not based upon race or gender. Id. at *16. Fourth, Gattis claimed he was denied his constitutional right to due process and a fair trial when the state made prejudicial remarks referring to inadmissible and inflammatory evidence during its opening statement. Judge Barron noted, this claim is “markedly similar” to a objections made by trial counsel and raised on appeal. The court concluded it could not determine whether Gattis intended to repeat these objections, or make new ones. The court first considered Gattis’s claim as if he intended to repeat the same objections made in his direct appeal. Judge Barron ruled Gattis’s current claim, in this case, is barred because the Delaware Supreme Court had already rejected the claim, see Gattis II, at 818, and that reconsideration under Criminal Rule 61(i)(4) was not warranted. Id. The court then considered Gattis’s claim as if he intended to refer to portions of the state’s opening statement not objected to by counsel. Judge Barron concluded, in this case, Gattis failed to sufficiently specify the allegedly objectional remarks or allegedly inadmissible evidence for purposes of Criminal Rule 61. Id. Furthermore, Judge Barron found Gattis was pro-eedurally barred from raising this claim by Criminal Rule 61(i)(3). The court denied Gattis’s request to conduct a hearing “to determine the centrality of the issues raised by the inappropriate comments!,]” because the complaint lacked specificity. Fifth, Gattis claimed his constitutional rights to due process and a fair trial were violated when evidence that was irrelevant and more prejudicial than probative was improperly admitted. Gattis here referred generally to evidence of his alcohol consumption, his -infidelity to Slay, prior instances of violence toward Slay and other “bad acts” evidence. -Judge Barron concluded that similar issues were resolved on direct appeal, and to that extent, Gattis’s claims are barred by Criminal Rule 61(i)(4) because they were already adjudicated. Id. at *17. Furthermore, Judge Barron concluded that Gattis’s claims failed because Gattis did not identify newly challenged evidence with specificity. Sixth, Gattis claimed his constitutional right to due process and a fair trial were violated by the state during its closing remarks when it: 1. Usurped the jury’s role by giving its own opinion of Gattis guilt; 2. Argued for conviction based on matters irrelevant to the movant’s guilt or innocence of the charges; and 3. Made inflammatory remarks designed solely to make the jury dislike Gattis, rather than to judge the case on the evidence. Judge Barron concluded Gattis failed to allege with sufficient specificity places in the state’s closing argument or rebuttal that supported his allegations. Also, Judge Barron concluded the claim was subject to procedural default pursuant to Criminal Rule 61(i)(3), because (1) Gattis did not raise it at trial or on appeal, and (2) Gattis’s claim .of ineffective assistance of counsel as cause for procedural default failed to meet the Strickland test. Id. Furthermore, the court concluded, “Gattis’ allegations are hollow and ... the prosecutor did not make any of the improper statements suggested by Gattis.” Id. Seventh, Gattis alleged his attorneys rendered constitutionally ineffective assistance at trial because they failed to perform an investigation to develop his version of the events until midway through trial. Gattis claimed his counsel unreasonably and prejudicially failed to: a. Adequately determine and develop Gattis’ version of the facts; b. Adequately investigate the relevant facts; c. Interview the relevant witnesses; and d. Adequately utilize available means of discovering exculpatory evidence available. Judge Barron concluded the trial performance of Capone and Bernstein was not unreasonable based upon their affidavits. Furthermore, Judge Barron found that Gattis failed to show actual prejudice, as required by Strickland. Id. at *19 (attaching trial counsels’ affidavits as Exhibits C and D). According to the court, “Gattis has failed to demonstrate what evidence counsel would have discovered or introduced that would have helped his defense.” Id. at *20. Eighth, Gattis claimed Delaware’s death penalty statute violates the Eighth and Fourteenth Amendments. Gattis argued the death penalty statute fails to instruct the sentencing judge what weight to give the jury recommendation, and therefore results in a pattern of arbitrary and capricious capital sentencing in violation of the Eighth and Fourteenth Amendments. Judge Barron ruled this claim was subject to procedural default pursuant to Criminal Rule 61(f)(3), because (1) Gattis did not raise it at trial or on appeal, and (2) his claim of ineffective assistance of counsel as cause for procedural default failed to meet the Strickland test. Id. at *20. Also, Judge Barron ruled this claim failed on the merits because the United States Supreme Court rejected an identical argument in Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 1034, 130 L.Ed.2d 1004 (1995). Gattis argued the death penalty statute is cruel and unusual punishment in violation of the Eight Amendment and Article I, Section 11 of the Delaware Constitution, because the lethal injection method of execution offends evolving standards of decency. In support of his contention, Gattis cited the execution procedures adopted by the Delaware Department of Corrections pursuant to the authority delegated under the statute. Gattis argued these procedures are in conflict with the ethical standards of the medical profession because they provide for physician participation in an execution. Judge Barron appears to have found this claim was barred by Criminal Rule 61(i)(3). Also, he ruled that the claim lacks merit because the same contention had been rejected previously by the Delaware Supreme Court in State v. Deputy, 644 A.2d 411, 421-22 (1994). Gattis III, 1995 WL 790961 at *21. Gattis argued the lethal injection statute is preempted by federal law, and is therefore unconstitutional because it permits correctional officers to obtain the controlled substances necessary for an execution without prescription, in violation of the Federal Abuse Prevention and Control Act, 21 U.S.C. § 801 et. seq., and the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 353(b)(1). Judge Barron rejected this claim because the contention had been rejected previously by the Delaware Supreme Court in State v. Deputy, 644 A.2d at 417-20. Gattis III, 1995 WL 790961 at * 21. Gattis argued the application of a more severe death penalty sentencing law, following the 1991 amendments to 11 Del.C. § 4209, denied him due process and equal protection under the law. Gattis argued this claim is different from the ex post facto issue that he and other defendants raised on certification in State v. Cohen, 604 A.2d 846 (1992), and that he argued on direct appeal. Judge Barron ruled Gattis was proee-durally barred from raising this as a new claim by Criminal Rule 61(i)(3), and that Gattis was procedurally barred from raising this if it were the same as a prior claim by Rule 61(i)(4), which bars reconsideration of formerly adjudicated grounds for relief unless warranted in justice’s interest. Substantively, Judge Barron found “the lack of specificity both on the facts and on the law make it impossible to address the merits of this claim, although the Court finds no significant difference in this claim and the ex post facto issues already decided against Gattis and other defendants who have raised the issue.” Gattis III, 1995 WL 790961 at *21. Gattis argued a death sentence based on a non-unanimous jury recommendation violated the Sixth, Eighth, and Fourteenth Amendments and the Delaware Constitution. Judge Barron declined to address Gattis’s Eighth and Fourteenth Amendment contentions, because Gattis “has not explained” them. Judge Barron found the U.S. Constitution does not guarantee a right to be sentenced by a jury, according to Spaziano v. Florida, 468 U.S. 447, 459-60, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) and Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). Gattis III, 1995 WL 790961 at *22. Judge Barron also rejected Gattis’s argument that a right to a sentencing determination by a jury exists in the Delaware Constitution, pursuant to State v. Cohen, 604 A.2d at 852. Gattis III, 1995 WL 790961 at *22. On August 31,1995, Gattis filed a motion for reargument, which the court granted in part on the ineffective assistance of counsel issue. On October 20, 1995, Judge Barron held a hearing to determine whether Gattis’s trial counsel provided ineffective assistance by failing to investigate an accidental shooting defense before trial. Testimony was offered by Slights, Capone, Baumeister, Bernstein, Dewson, and Gattis concerning whether before trial Gattis expressed the belief that he accidentally shot Slay. Judge Barron found none of the facts adduced at the hearing altered the conclusions he reached previously in denying Gattis’s post-conviction motions. Therefore, Judge Barron denied Gattis’s motion for post-conviction relief. State v. Gattis, Del.Super., Cr.A. No. IN90-05-1017 to 1019-R2; IN90-05-1106; 1107-R2, Barron, J. (Dec. 28,1995). Gattis filed an appeal with the Delaware Supreme Court, arguing that a forensic scientist would have testified at trial that the prosecution’s theory of the case was “physically impossible” and “absolutely unsupportable.” The Delaware Supreme Court heard oral argument and remanded the matter to the Superior Court to determine whether the state’s theory of the homicide was impossible. Gattis v. State, Del.Supr. No. 37, 1996, Holland, J. (October 15, 1996). The Delaware Supreme Court also directed the Superior Court to consider on remand whether the state improperly excluded a potential juror, Wilfred Moore, for gender-related reasons. Id. Judge Barron ordered Gattis’s forensic expert, Stuart James, to provide an additional opinion as to whether the state’s theory of the homicide was impossible. On November 7, 1996, James submitted an affidavit in which he stated his opinion that “the facts of the case do not support that the shooting occurred in the ma