Full opinion text
OPINION FARNAN, District Judge. Presently before the Court are cross Motions for Summary Judgment filed by the Respondent and the Petitioner in this habeas corpus case filed pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the Respondent’s Motion for Summary Judgment will be granted and the Petitioner’s Motion for Summary Judgment will be denied. I. FACTUAL BACKGROUND On February 7, 1979 Alberta and Byard Smith (herein referred to as the “Smiths”) were found murdered in their home in Harrington, Delaware. Their nephew, William Henry Flamer (“Flamer”) was arrested the same day and charged with their murders. The following day, February 8, 1979, Flamer was taken before a state magistrate at Justice of the Peace Court No. 6 in Harrington, Delaware for his initial appearance. The state magistrate read Flamer the charges lodged against him and advised him of his constitutional rights. Flamer I, 490 A.2d at 110; Flamer IV, 585 A.2d at 742. Also, at the initial appearance, a State Public Defender was appointed to represent Flamer. After the initial appearance, Flamer was then taken back to the Delaware State Police Troop No. 5 where he met with his mother. After she left the troop, Corporal Porter, one of the officers who had questioned Flamer the day before, approached Flamer in his cell. Flamer I, 490 A.2d at 113-14. Flamer was again read his rights by Corporal Porter, however, Flamer did not request that his recently appointed attorney be present. Flamer IV, 585 A.2d at 743. During the course of providing a tape recorded statement to Corporal Porter, Flamer admitted stabbing Byard Smith several times; however, he claimed that Andre Deputy (“Deputy”), who was apprehended with Flamer and eventually charged with the Smiths’ murders, actually killed both of the Smiths. A jury convicted Flamer of the following offenses related to the homicides of the Smiths: (1) four counts of first degree murder; (2) one count of first degree robbery; (3) one count of possession of a deadly weapon during the commission of a felony; and (4) one count of misdemeanor theft. See Flamer III. At the close of the trial, Flamer’s counsel moved for a judgment of acquittal which was denied. Subsequently, after a penalty hearing was held, the jury voted a sentence of death. Thereafter, Flamer’s counsel moved to vacate the penalties, including the death penalty, on evidentiary, statutory and constitutional grounds, which was also denied. Flamer IV, 585 A.2d at 744. The Delaware Supreme Court upheld the conviction on direct appeal in February 1983 but reserved its ruling on the issues regarding the death sentence. Flamer I, 490 A.2d at 112 n. 5, 119. Flamer moved for reargument in the Delaware Supreme Court which was denied and unsuccessfully petitioned the United States Supreme Court to review the decision. Flamer v. Delaware, 464 US. 865, 104 S.Ct. 198, 78 L.Ed.2d 173 (1983). In September 1984 the Delaware Supreme Court affirmed the sentence of death that had been imposed. Flamer I, 490 A.2d at 120-53. Again, Flamer unsuccessfully sought reargument in the Delaware Supreme Court and review by the United States Supreme Court. Flamer v. Delaware, 474 U.S. 865, 106 S.Ct. 185, 88 L.Ed.2d 154 (1985). In June 1986 Flamer sought post conviction relief pursuant to then Del.Super.Ct.Crim.R. 35. In his petition, Flamer claimed that his trial and appellate counsel had been ineffective. He also raised several other issues that had been decided adversely to him on his prior direct appeal. The Delaware Superior Court, after holding a hearing, denied the relief sought by Flamer. See Flamer III. On appeal, the Delaware Supreme Court vacated the decision of the Superior Court and remanded the matter for Flamer to file a new application under the new state statute for post conviction relief, Del.Super.Ct.Crim.R. 61. Flamer v. Delaware, 1988 WL 235535 (Del.Supr.1988); Flamer IV, 585 A.2d at 744. Delaware Superior Court Criminal Rule 35 was replaced by Delaware Superior Court Criminal Rule 61 which contained new provisions related to post-convietion relief. Rule 61 was intended to apply “to all pending and future post conviction relief applications unless” it was unfeasible or unjust. In accordance with the Delaware Supreme Court record, Flamer filed a new motion for post conviction relief in the Delaware Superi- or Court. Again, in June 1989, the Delaware Superior Court held an evidentiary hearing and denied all of Flamer’s claims for relief. See Flamer III. On appeal, the Delaware Supreme Court in December 1990 affirmed the Superior Court decision. See Flamer IV. The Delaware Supreme Court found that the claims had been resolved in prior litigation or were barred due to procedural default. Flamer IV, 585 A.2d at 745-53. In its decision, the Supreme Court rejected Flamer’s claims of ineffective assistance of counsel. The Supreme Court indicated that Flamer had failed to establish that the representation provided was unreasonable to the extent that it would undermine the confidence one could have in the verdicts and sentences. Flamer IV, 585 A.2d at 753-58. Thereafter, Flamer filed this action seeking federal habeas review of his convictions and the death sentence imposed upon him. II. DISCUSSION The Court will review each claim of Petitioner and the answer of Respondent in turn. A. THE EDWARDS v. ARIZONA CLAIM The issue presented here is whether the trial court erred in admitting into evidence a taped statement of an interrogation of Flamer by Corporal Porter, a Delaware State Police detective. In the statement, Flamer admitted to planning the robbery and stabbing of Byard Smith and disclosed the location of one of the murder weapons. This statement was made during a police initiated interrogation that occurred after Flamer’s Initial Appearance in the state Justice of the Peace Court where the state magistrate appointed a State Public Defender to represent Flamer “before this court, or other court, in all matters thereof, unless and until received by order of a higher Court.” Flamer IV, 585 A.2d at 742 & n. 1. Flamer contends that the appointment of counsel by the state magistrate coupled with his request to make a phone call to his mother regarding an attorney during his initial detention was sufficient to invoke his Fifth Amendment right to counsel. Thus, Flamer claims that his Fifth and Fourteenth Amendment rights were violated when the trial court decided to admit the taped statement and fruits of that statement into evidence at his trial. According to Flamer, he had invoked his right to counsel prior to the police initiating the interrogation that led to his giving the statement and, therefore the admission of the statement violated the law as announced in Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981). Although Edwards is not applicable retroactively, Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), it may be applicable to cases that were pending on appeal at the time of the decision. Shea v. Louisiana, 470 U.S. 51, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985). Flamer’s conviction and sentencing were on appeal at the time the Edwards decision was handed down and therefore the law as announced in Edwards may be applicable to Flamer’s ease. It is important, however, to reiterate the holding of Edwards in order to determine its applicability to the issues raised by Flamer. In Edwards the United States Supreme Court held: [a]nd we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates farther communication, exchanges, or conversations with the police. We reconfirm these views and, to lend them substance, emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to rein-terrogate an accused in custody if he has clearly asserted his right to counsel. Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85. The Delaware Superior Court in considering Flamer’s petition for post-conviction relief under Criminal Rule 61 held that Flamer’s actions, although sufficient to invoke his Sixth Amendment right to counsel during the adjudicatory process, was not an adequate invocation of his Fifth Amendment rights against self-incrimination and, therefore Edwards was inapplicable. Flamer III, 1989 WL 70893, *9. Further, the Delaware Superior Court held that an expansion of Edwards to the extent argued by Flamer was not appropriate as it was not dictated by legal precedent existing at the time Flamer’s convictions became final. Flamer III, 1989 WL 70893, *9-10. On appeal, the Delaware Supreme Court refused to consider Flamer’s Edwards claim on the merits. Rather, the Supreme Court held that Flamer was procedurally barred from raising the Edwards claim as he had failed to raise it on direct appeal. Flamer IV, 585 A.2d at 747. 1. The “New Rule Argument” The Respondent answers that he is entitled to summary judgment on Petitioner’s Edwards claim. First, Respondent contends that the appointment of counsel for Flamer at his initial appearance before the state magistrate did not trigger the protections afforded by Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880. According to the Respondent, Flamer seeks to invoke a “new rule” and this is not cognizable on his request for habeas relief. Second, Respondent contends that Flamer is now barred from raising this claim as the state appellate court found that he had procedurally defaulted on this issue by failing to raise it on direct appeal. According to Respondent, the United States Supreme Court has consistently required that to properly invoke one’s right to counsel under the Fifth Amendment and Edwards it must be done in the context of a custodial interrogation, not in an anticipatory style or in response to an examination before a committing magistrate. The Respondent argues that Flamer’s request for counsel at his initial appearance did not constitute a Miranda invocation and therefore is not sufficient to trigger the protections afforded by the Edwards decision. As a result, Respondent concludes that if the Court were to consider Flamer’s Edwards claim it would require the application of a “new rule”. According to the Respondent, unless two limited situations exist, a court, considering a petition for federal habeas relief, should not entertain claims which are based on a rule that would have been new at the time the convictions became final. Flamer, responds that application of Edwards to the facts as alleged by him would not constitute a “new rule.” First, Flamer argues that the application of the Edwards rule to a Sixth Amendment invocation of the right to counsel as opposed to a Fifth Amendment right against self incrimination to which Edwards spoke does not create a “new rule.” Thus, Flamer asserts a federal court on habeas review may retroactively apply the rule even if at the time the petitioner’s conviction became final it would not have felt compelled by existing precedent to do so. Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). In support of his position, Flamer contends that, there was an evolution to support an application of Edwards to his case clearly present in both the federal system and the Delaware system prior to his convictions becoming final. According to Flamer, courts were applying a rule equivalent to that announced in Edwards prior to and contemporaneously with Flamer’s direct appeal. Finally, Flamer argues that prior to Flamer’s convictions becoming final, courts had applied the Edwards standard in the context of protecting an accused’s Sixth Amendment rights as well as Fifth Amendment rights. Flamer farther contends that the facts upon which the Respondent relies to support its “new rule” argument are not properly supported by the state court record as required under 28 U.S.C. § 2254. Flamer points specifically to several times in the state court proceedings where he testified he requested a phone call while in custody prior to being brought before the state magistrate. According to Flamer, both prior to and at his initial appearance he made requests to make a phone call and: Apparently, the Delaware Supreme Court felt constrained to note Flamer’s Rule 61 testimony about his requests to call about an attorney while en route to Troop 6, but chose to ignore it. Rather, the [Delaware] Supreme Court reaffirmed its earlier “findings of fact” that Flamer never invoked his Miranda right to counsel. Flamer, 585 A.2d at 746-47. The earlier finding had been made on direct appeal when there was no record of Flamer’s request for counsel at the initial appearance. In fact, the Court had observed on direct appeal: 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. Flamer, 490 A.2d at 114. (Docket Item 206, at 22). Thus, according to Flamer, the state court record does not adequately support the findings and, therefore, they cannot be presumed correct as the Respondent urges. 2. State Procedural Default The Respondent also claims that Flamer is now barred from having his Edwards claim considered because the state supreme court refused to reach the merits of his argument due to his failure to raise it on direct appeal. Respondent answers that in order to have the Court now consider this claim, Flamer must show cause and prejudice. According to the Respondent, Flamer cannot demonstrate cause and prejudice for his appellate counsel’s failure to raise this claim on direct appeal or that a “fundamental miscarriage of justice” will result absent consideration of the claim by this Court. Thus, Respondent concludes review of the Edwards claim by this Court is barred. Flamer makes several arguments as to why his claim should not be procedurally barred from federal habeas review. First, Flamer argues that the Delaware Supreme Court’s discussion of his Edwards claim was not an independent and adequate state ground. Second, at the time the state supreme court relied on Rule 61 for its finding of a procedural default, it was a novel rule that was not in effect at the time Flamer purportedly waived the claim. Third, even if Rule 61 could act as a procedural bar, Flamer asserts he clearly could show cause and prejudice from not having Edwards applied, specifically, he cites the ineffectiveness of his trial counsel and the failure to receive the required remand and suppression of the tape. Fourth, Flamer contends even if the “cause and prejudice” standard could not be met, it is clear that a fundamental miscarriage of justice resulted from the refusal of the state court to review this claim during the post-conviction relief proceedings. 3. Discussion The Court concludes, based on the submissions of the parties and their argument that the Respondent is entitled to summary judgment "with respect to the Edwards claim. In this regard, as a court sitting in a habeas review of state court proceedings, the Court is bound by the factual findings of the state court unless they are not adequately supported by the state court record. 28 U.S.C. § 2254(d). a. State Court Factual Findings The Court finds that it is bound by the state court findings regarding Flamer’s request for an attorney. Although there is conflicting testimony in the record regarding his request for an attorney, a district court in a habeas review is not in a position to make credibility determinations and findings based on conflicting testimony. Rather, the state court, with the opportunity to assess the candor and credibility of the witnesses, is the proper forum for making those determinations. Therefore, this Court is bound by the finding of the state court that the Petitioner had not attempted to invoke his Miranda rights prior to his contact with the State Public Defender’s Office. b. The Rule 61 Procedural Bar The Court concludes that Flamer is proee-durally barred from raising a claim under Edwards. The Court concludes there is adequate support in the state court record for the finding that Flamer had notice of the possible Edwards claim as early as the time his case was on direct appeal. Thus, the Edwards claim could have been brought at anytime after 1981 when the Edwards decision was handed down. Flamer IV, 585 A.2d at 746-47. The Delaware Supreme Court held that Flamer was procedurally barred, pursuant to Superior Court Criminal Rule 61(i)(3), from raising the Edwards claim in the post conviction relief proceeding absent a showing of cause and prejudice. Flamer IV, 585 A.2d at 747. In this regard, the Delaware Supreme Court first considered Flamer’s allegations that it was his attorney’s error for failing to raise the Edwards claim on appeal. The Delaware Supreme Court held that any failure of Flamer’s attorney was insufficient to establish cause to cure the procedural default. Flamer IV, 585 A.2d at 747. The Delaware Supreme Court also analyzed the question of prejudice, although it stated it was unnecessary to do so. Flamer IV, 585 A.2d at 748. It was in this context that the Delaware Supreme Court turned to the possibility of success that Flamer might have in asserting an Edwards claim. Id. at 747. The Delaware Supreme Court held that Flamer was unable to show that, under the laws existing at the time his convictions became final, there would have been a substantial likelihood of a different result and, therefore, Flamer could not establish the necessary prejudice to excuse the procedural default. Id. In a federal habeas review, a procedural bar requires a finding that the procedural default is based on independent and adequate state grounds. Bond v. Fulcomer, 864 F.2d 306, 311 (3d Cir.1989), citing, Reynolds v. Ellingsworth, 843 F.2d 712, 717 (3d Cir.), cert. denied, 488 U.S. 960, 109 S.Ct. 403, 102.L.Ed.2d 891 (1988). Thus, only if the petitioner can show cause for the noncompliance and actual prejudice resulting from the alleged violation will habeas review be proper. Id. (quoting Neely v. Zimmerman, 858 F.2d 144, 147 (3d Cir.1988)). Courts invoke a three part test to determine if the basis for denying review was on independent and adequate state grounds. In this regard, the district court must determine if: (1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner’s claims on the merits, and (3) the state courts consistently apply the procedural rules. Id. at 312. There can be no question that Delaware’s rule speaks in unmistakable terms. Delaware Superior Court Criminal Rule 61(i)(3) states: Procedural Default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this Court, is thereafter barred, unless the movant shows (A) cause for relief from the procedural default and (B) prejudice from violation of the movant’s rights. Sup.Ct.Crim.R. 61(i)(3). Likewise, there is no question that the Delaware state courts consistently apply Rule 61(i)(3). The cases are now overwhelming in which the state courts in Delaware have found a habeas petitioner to have procedurally defaulted on the basis of a failure to raise the asserted ground on direct appeal. Johnson v. State, 460 A.2d 539, 540-541 (Del.Super.1983); Younger v. State, 574 A.2d 264 (Del.Supr.1990); Wilson v. State, 574 A.2d 264 (Del.Supr.1990) (Text in Westlaw); Younger v. State, 580 A.2d 552 (Del.Supr.1990); Riley v. State, 585 A.2d 719 (Del.Supr.1990); Webster v. State, 609 A.2d 669 (Del.Supr.1992) (Text in Westlaw); Clark v. State, 622 A.2d 1094 (Text in Westlaw) (1993). The only issue that remains then is whether “all state appellate courts refused to review the petitioner’s claims on the merits.” Bond v. Fulcomer, 864 F.2d at 312. In the present case, it is unchallenged that the Delaware Supreme Court is the only state appellate court and that it refused to review Flamer’s Edwards claim on the merits. On this record, the Court must conclude that the procedural default found by the state court rests on adequate and independent state grounds and is entitled to recognition in this habeas review. Thus, the Court concludes that under the strict language of Bond and consistent with the purpose of recognizing a procedural bar, the Court is precluded from considering the merits of the Edwards claim raised by Flamer. A petitioner may still have his claim considered, however, on habeas review if the petitioner can show “cause” for the default and “prejudice” attributable thereto. Bond v. Fulcomer, 864 F.2d at 310. As recently stated by the United States Supreme Court: Unless a habeas petitioner shows cause and prejudice, see Wainwright v. Sykes, 433 U.S. 72 [97 S.Ct. 2497, 63 L.Ed.2d 594] (1977), a court may not reach the merits of: (a) successive claims which raise grounds identical to grounds heard and decided on the merits in a previous petition; (b) new claims not previously raised which constitute an abuse of the writ; or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims. These cases are premised on our concerns for the finality of state judgments of conviction, and the significant costs of federal habeas review. We have previously held that even if a state prisoner cannot meet the cause and prejudice standard a federal court may hear the merits of the successive claims if the failure to hear the claims would constitute a “miscarriage of justice.” In a trio of 1986 decisions, we elaborated on the miscarriage of justice or “actual innocence,” exception ... [t]he miscarriage of justice exception would allow successive claims to be heard if the petitioner “establishes] that under the probative evidence he has a colorable claim of factual innocence.” In the second of these cases we held that the actual innocence exception also applies to procedurally defaulted claims. Sawyer v. Whitley, — U.S. -, - -, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992) (citations omitted). As a result, if Flamer can show “cause and prejudice” or manifest injustice, the Court can reach the merits of Flamer’s Edwards claim. Flamer argues that the change in the Delaware post-conviction relief rule between the time of his direct appeal to the state supreme court and his seeking post-conviction relief is sufficient cause to excuse his procedural default. Although cause is a difficult threshold question, the Court believes that the change in Delaware’s post-conviction relief provisions between the time of Flamer’s direct appeal and his motion for post-conviction relief is sufficient to satisfy the first prong of the Wainwright v. Sykes test of cause and prejudice. To conclude otherwise would be to prohibit the accused from a consistent application of the laws in effect at the time of his trial and subsequent collateral relief proceedings without notice a possible change in his rights. In this case, at the time of his direct appeal, Delaware’s post-conviction relief proceedings were governed by Superior Court Criminal Rule 35 which did not limit either the number of post-conviction relief filings nor the time in which one could raise a claim of a constitutional infringement. The only restriction on a post conviction relief application was that the time for taking a direct appeal had elapsed. As such, when Delaware’s rule governing post-conviction relief was replaced with Superior Court Criminal Rule 61, Flamer’s direct appeal had already been presented in the state court. The application of the new procedural rule by the state court to issues Flamer had not previously raised on direct appeal impermissibly cut-off rights, that at the time he presented his appeal Flamer was not aware could later be barred for failing to raise. For this reason, the Court concludes that Flamer has sufficiently shown cause for the default and the Court will now consider if Flamer is capable of establishing that actual prejudice has resulted from the default. Bond v. Fulcomer, 864 F.2d at 310. In order to show prejudice, Flamer must be able to demonstrate that there was a “substantial likelihood” that, if he had pressed the Edwards claim the outcome of his case would have been different. United States v. Frady, 456 U.S. 152, 172-74, 102 S.Ct. 1584, 1596-97, 71 L.Ed.2d 816 (1982). Thus, Flamer must be able to show that had he asserted this challenge that “he might not have been convicted.” Reed v. Ross, 468 U.S. 1, 12, 104 S.Ct. 2901, 2908, 82 L.Ed.2d 1 (1984). Flamer is unable to make such a showing. In reaching a decision on this question, the Court is bound by the law existing at the time Flamer’s convictions became final and not as it evolved in subsequent cases. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), reh’g denied, 490 U.S. 1031, 109 S.Ct. 1771, 104 L.Ed.2d 206 (1989). Although Flamer, in his brief cites the Court to several eases which purportedly support his position, there is more authority for finding that the ability to pursue his Edwards claim would have been to no avail. See Flamer IV, 585 A.2d at 748 and cases cited therein. There is absolutely no scenario presented that persuades the Court that Flamer would have been ultimately successful in avoiding conviction had he pursued his Edwards claim. Thus, there is no basis for the Court to find that Flamer has demonstrated prejudice sufficient for the Court to consider the merits of his Edwards claim. Lastly, a petitioner may have his proeedurally barred claims considered on the merits by a federal court on habeas review if he is able to establish that a failure to hear the claims would constitute a “miscarriage of justice.” Sawyer v. Whitley, — U.S. at -, 112 S.Ct. at 2519. To establish the existence of a “miscarriage of justice” Flamer must show that there is probative evidence that he has “a colorable claim of factual innocence.” Id. Flamer makes no argument that he is able to meet this standard and the Court finds there is no basis for the application of this exception to the procedural bar present. As a result, the Court concludes that it is proeedurally barred from reviewing Flamer’s Edwards claim. B. THE MICHIGAN v. JACKSON CLAIM In his petition, Flamer contends that the admission into evidence at trial of his taped statement made following his initial appearance in the state Justice of the Peace Court violated his Sixth Amendment right to counsel. On direct appeal, before Jackson had been decided, the Delaware Supreme Court concluded that Flamer’s statement was admissible because he had knowingly waived his right to the assistance of counsel. Flamer I, 490 A.2d at 112-115. When Flamer subsequently raised the Jackson argument in his state motion for post-conviction relief, the state court refused to reconsider its prior decision. Flamer IV, 585 A.2d at 745-46, 748-50. The Respondent concedes that if Flamer were tried today Jackson would bar the admission of the statement Flamer made following his initial appearance. Thus, according to the Respondent, the only question is whether or not Jackson should be applied retroactively. Again the Respondent, relying on the distinction of a “new rule” analysis, contends that because Jackson announced a “new rule” it cannot be applied to Flamer’s ease where the convictions and sentences were final almost eight months before the ruling in Jackson was announced. The Respondent further argues that under pre-Jackson standards, Flamer had waived his Sixth Amendment right to counsel, as found by the state court, before making the incriminating taped statement. Flamer, on the other hand, contends that Jackson was not a “new rule.” Flamer argues that Jackson did not create a “new rule” because had the trial court considered Flamer’s argument the court would have been compelled to suppress the statement based on existing precedent. Referring to both the Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and Deputy v. State, 500 A.2d 581 (Del.Supr.1985) eases, Flamer argues that had the state court only known of Flamer’s invocation of his right to counsel at his appearance before the state magistrate the state court would have been compelled, under then existing law, to suppress the taped statement. Further, Flamer points to cases in other circuits where evidence was suppressed, if it was obtained from police initiated interrogation following the accused’s invocation of his Sixth Amendment rights. Thus, according to Flamer, Jackson does not represent a new rule and should be applied to suppress his taped statement as a per se violation of the rule announced in Jackson. With respect to the retroactive applicability of Jackson, Flamer argues that although the United States Supreme Court has not determined that Jackson should apply retroactively, at least one court has determined, upon a balancing of factors, that it could properly be applied to the facts of the habeas proceeding before it. Fleming v. Kemp, 837 F.2d 940, 947 (11th Cir.1988). Moreover, Flamer argues that even if this Court were to determine that Jackson represented a “new rule”, the fundamental fairness required in a criminal proceeding requires this Court to retroactively apply the rule of Jackson. Flamer asserts that given the unmistakable goal of achieving fairness and accuracy of statements made by an accused, the Teague, 489 U.S. 288, 109 S.Ct. 1060, exception to the “new rule” bar must be applied here, thus permitting retroactive application of Jackson to the facts now known in this case. Finally, Flamer contends that the findings made by the state courts must be set aside in this court’s determination of the legality of his waiver of counsel because the finding that Flamer had intentionally waived his right to counsel was predicated on “a record bereft of the highly relevant evidence that Flamer had asked for and been appointed counsel at his initial appearance.” (Docket Item 206, at 37). Flamer urges the court to deny the Respondent’s Motion for Summary Judgment because even if Jackson is found not to apply, Flamer argues the evidence establishes he did not waive his right to counsel prior to the taped statement being made. Flamer presents the court with the factual record available to the state courts at the time they found that the waiver was voluntary and Flamer concludes that the state courts failed to recognize Flamer’s repeated requests for counsel and thus, he argues the state court finding is unsupported by the available record. According to Flamer, although he replied yes to each of the questions related to whether he understood his Miranda rights, he never intentionally and knowingly relinquished his right to counsel. Flamer contends that this evidence when coupled with the presumption against waiver afforded by Brewer clearly creates a genuine issue of material fact, which requires the Court to deny Respondent’s Motion for Summary Judgment. 1. Discussion The Court must first determine the applicability of Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), to this case and then determine the effect of the purported waiver of rights by Flamer. In analyzing Jackson’s applicability, the Court will first consider if the rule announced in Jackson is a “new rule.” Second, the Court will then consider the retroactive applicability of the Jackson rule. Finally, if none of those determinations are dispositive, the Court will turn to the question of the validity of Flamer’s waiver. a. Jackson New Rule/Retroactivity The issue of whether the Jackson decision constitutes a “new rule” is a question of law that the Court reviews de novo. Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983). Likewise the issue of the retroactive application of Jackson is also subject to the de novo standard. Id. The Court concludes that the rule announced in Michigan v. Jackson was a “new rule” and should not be applied retroactively under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Self v. Collins, 973 F.2d 1198, 1207 (5th Cir.1992), cert. denied — U.S. -, 113 S.Ct. 1613, 123 L.Ed.2d 173 (1993); Henderson v. Singletary, 968 F.2d 1070, 1072 (11th Cir.), cert. denied — U.S. -, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992); Collins v. Zant, 892 F.2d 1502, 1510-12 (11th Cir.1990), cert. denied 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990). Support for this conclusion can also be found in the case of Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1983), where the United States Supreme Court determined that the rule announced in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), was a new rule and should not be retroactively applied. In Solem the Supreme Court stated: Edwards nonetheless did establish a new rule. We do not think that the police can be faulted if they did not anticipate its per se approach. Prior to Edwards, the emphasis in our cases had been on whether, as an individual, case-by-case matter, a waiver of the right to counsel had been knowing, voluntary, and intelligent ... It does not in any way cast doubt on the legitimacy or necessity of Edwards to acknowledge that in some cases a waiver could be knowing, voluntary, and intelligent even though it occurred when the police recommenced questioning after an accused had invoked the right to counsel. Id. 465 U.S. at 647-48, 104 S.Ct. at 1344. (citations omitted). Further, in announcing that Edwards should not be retroactively applied, the Supreme Court stated: The same logic argues against retroactive application of Edwards, which, in light of the disagreements among lower courts, laid down additional guidelines for the implementation of Miranda. In short, it cannot be said that our decision in Edwards had been “clearly” or “distinctly” foreshadowed. In these circumstances, we consider the rebanee interest compelling, even though Edwards did not overrule a specific decision. In sum, Edwards has little to do with the truthfinding function of the criminal trial, and the rights it is designed to protect may still be claimed by those whose convictions preceded the decision. It would be unreasonable to expect law enforcement authorities to have conducted themselves in accordance with its bright-line rule prior to its announcement; and retroactive appbeation would disrupt the administration of justice. Weighing these considerations, we conclude that Edwards should not be applied retroactively. Id. at 649-650, 104 S.Ct. at 1345. Applying the reasoning utilized in Solem v. Stumes the Court concludes that Jackson announced a new rule with respect to a waiver of Sixth Amendment rights as did Edwards in the context of Fifth Amendment rights. Prior to each decision, the clear precedent was to do a case by ease analysis of the voluntariness of the waiver of rights for each of the constitutional protections. The bright line rule provided by Jackson was no less a change in the approach taken by courts regarding the waiver of Sixth Amendment rights than was the “new rule” announced in Edwards. Having decided that the principles found in Jackson are not available to Flamer the Court must turn to the question of whether Flamer’s waiver of his rights was voluntary under the standard applicable at the time of his interrogation by Corporal Porter. b. Validity of Waiver “Federal habeas corpus serves to ensure that state convictions comport with the federal law that was established at the time the petitioner’s conviction became final.” Sawyer v. Smith, 497 U.S. 227, 239, 110 S.Ct. 2822, 2830, 111 L.Ed.2d 193 (1990). Therefore, it is necessary to consider the law regarding the validity of a waiver at the time that Flamer’s convictions became final. A determination that petitioner’s waiver of his Sixth Amendment right to counsel was voluntary and knowing is a determination that the federal court in a habeas proceeding must make independent of the state court’s conclusion on the matter. See Riddick v. Edmiston, 894 F.2d 586, 589 (3d Cir.1990). While making the determination of whether the waiver was knowing, voluntary and intelligent, Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), all reasonable presumptions must be made against finding a waiver of constitutional rights. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). Further, the determination requires “application of constitutional principles to the facts as found.” Brewer, 430 U.S. at 403, 97 S.Ct. at 1242, quoting, Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (Frankfurter, separate opinion). For a waiver of the Sixth Amendment right to counsel to be valid, the state must prove “an intentional relinquishment or abandonment of a known right or privilege”. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). The waiver inquiry is dependent “upon the particular facts and. circumstances surrounding that case, including the background, experience, and conduct of the accused”. Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023. The Court is convinced, after reviewing the state record, that there is nothing to indicate that Flamer’s taped statement was a result of coercion or lacked the indicia of a voluntary waiver of his already invoked right to counsel. In considering this claim, the Court is bound by the findings of the state court so long as they are supported by the record. It is only the application of those facts to the proper standard of waiver that is to be conducted independently of the state court assessment. The facts, as found by the state court may be summarized as follows: There is no issue raised by defense counsel in this appeal of any physical or abusive tactics of the police during interrogation .and custody although we are mindful and consider as a part of the totality of circumstances, the testimony of defendant as to his fear of retribution, the failure of the police to give him alcohol and cigarettes, to provide him with a warm comfortable place to sleep or permit him to call his mother. [w]e 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 constitutionally required rights as set forth in Miranda v. Arizona, 384 U.S. 436 [86 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 wearing when he was arrested, the blood under his fingernails, and the articles belonging to the victim Byard Smith taken from one of his companions at the time of arrest, defendant volunteered fictitious stories of his complicity 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 Andrew 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 told the police 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 appears 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, including the taking of his recorded statement, he steadfastly denies actually inflicting the fatal wound upon either victim. Flamer I, 490 A.2d at 114. There is nothing in the record that would permit this Court to find anything but a knowing, voluntary and intelligent relinquishment of a known right. Although not persuasive under today’s law, the fact that Flamer responded affirmatively each time he was asked about his individual Miranda rights prior to answering any of the police officer’s questions does lend further support to the conclusion that, considering the totality of circumstances, Flamer intentionally abandoned his known right to counsel C. THE DOUBLE JEOPARDY CLAIM Flamer was convicted of two counts of intentional murder (11 Del.C. § 636(a)(1)) as well as two counts of felony murder in the first degree with robbery as the underlying predicate felony (11 Del.C. § 636(a)(2)). At the same trial, Flamer was also convicted and separately sentenced for robbery (11 Del.C. § 832(a)(1)). Flamer contends that to be convicted and sentenced both for robbery and for felony murder with the predicate offense being the same robbery violates the Double Jeopardy Clause of the United States Constitution. This issue was raised in the state courts. Flamer I, 490 A.2d at 110-112. The Respondent answers that Flamer’s position regarding the Double Jeopardy Clause cannot withstand scrutiny. According to the Respondent, the Double Jeopardy Clause simply prevents the sentencing court from prescribing greater punishment than the legislature intended. The Respondent contends that the Delaware General Assembly intended separate convictions and punishments for robbery and-for felony-murder arising during a robbery and therefore, convictions and sentences for each is appropriate. Flamer contends that the Fifth Amendment Double Jeopardy Clause of the United States Constitution prohibits punishing an individual more than once for the same offense within a single proceeding unless the legislature clearly expressed an intent that multiple punishments be imposed. Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1435, 63 L.Ed.2d 715 (1980); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Thus, Flamer argues the Fifth Amendment requires the Court to inquire into the legislative intent to determine whether multiple sentences for the same offense could be imposed. Flamer asserts that there" is no clear expression by the Delaware legislature to impose double punishment for a lesser included offense. Flamer further contends that because each element of robbery had to be proven in order to establish the felony murder conviction, his conviction and sentence for both robbery and felony murder violated his Fifth Amendment right against double jeopardy and must be set aside. 1. Discussion The Respondent contends that this issue is not reviewable by this Court because the state courts have determined the appropriateness of permitting a person to be convicted of both the robbery and felony-murder when appropriate pursuant to 11 Del.C. § 206. Flamer contends that the Delaware Supreme Court’s interpretation of 11 Del.C. § 206 is subject to habeas review because their construction is incorrect as a matter of law and acts to deprive Flamer of his fundamental constitutional rights. The Court is bound by a state’s interpretation of its own laws. Thus, the intent of the Delaware legislature is not before this court on habeas review. As stated in Missouri v. Hunter: “[t]he [state] Supreme Court has construed the two statutes at issue as defining the same crime. In addition, the [state] Supreme court has recognized that the legislature has intended that punishment for violations of the statutes be cumulative. We are bound to accept the [state] court’s construction of that State’s statutes. However, we are not bound by the [state] Supreme Court’s legal conclusion that these two statutes violate the Double Jeopardy Clause. Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial. 459 U.S. 359, 368, 103 S.Ct. 673, 679 (citations omitted). Thus, as required by Hunter the Court accepts the conclusion of the Delaware courts regarding the legislative intent underlying the subject statutes. The Court’s singular obligation on habeas review is to assure that the intent as found by the Delaware courts comports with the guarantees of the Fifth Amendment against double jeopardy. On this question, the Court concludes that the penalty imposed for the prohibited conduct was proscribed by two separate statutes and that each statute was meant to have a different sanction imposed for a violation. Thus, the Court concludes the separate penalties imposed upon Flamer for the robbery and the felony murders are appropriate and do not violate the Fifth Amendment Double Jeopardy Clause of the United States Constitution. D. THE AGGRAVATING CIRCUMSTANCES CLAIM During the penalty hearing, the trial court instructed the jury on four “statutory aggravating circumstances.” See 11 Del.C. § 4209(e)(1)(j), (k), (n) and (p) (1974, 1978 Supp.). Thereafter, the jury found that all four aggravating circumstances existed. Flamer I, 490 A.2d at 126. On direct appeal, the Delaware Supreme Court held that one of the aggravating circumstances (11 Del.C. § 4209(e)(1)(n)) was unconstitutionally vague, Flamer I, 490 A.2d at 131, and that two of the circumstances overlapped (11 Del.C. § 4209(e)(1)(j) and (p)) Flamer I, 490 A.2d at 125. However, the Delaware Supreme Court found that Delaware’s death penalty statute was styled on the Georgia scheme and considered the then recent decision in Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). After reviewing Zant, the Delaware Supreme Court refused to overturn the death sentences imposed upon Flamer. The Delaware Supreme Court held that any error that may have occurred with regard to the required finding of aggravating circumstances was harmless given the amount of admissible evidence present. Flamer I, 490 A.2d at 136. During its consideration of Flamer’s post-conviction relief proceedings appeal the Delaware Supreme Court refused to reconsider the position taken earlier by the court on direct appeal. Flamer IV, 585 A.2d at 753. The Respondent answers that the death penalty statute in existence at the time Flamer was sentenced was not a “weighing” scheme and, therefore, the existence of both an invalid and two possibly duplicative statutory aggravating, circumstances does not require that the death sentences imposed be overturned. However, Flamer argues that the statute was a weighing scheme and that the penalty must be overturned because it violates the dictates of Clemons v. Mississippi, 494 U.S. 738, 744, 110 S.Ct. 1441, 1446, 108 L.Ed.2d 725 (1990). In Clemons, the United States Supreme Court held that the consideration of an invalid aggravating circumstance was not harmless error under the traditional test presented in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The Respondent, contends that Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) should control this inquiry not Clemons, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). According to the Respondent, Delaware’s statute, like the one upheld in Zant is designed to provide the minimum constitutional guarantees required by the Eighth Amendment. The Respondent contends that as long as one of the aggravating circumstances is present, a jury is entitled to consider all evidence relevant to the imposition of a death penalty and not constricted to only those factors listed in the statute. Thus, the Respondent argues that it is irrelevant that two of the aggravating circumstances were found to be duplicative and a third invalid for vagueness because a fourth aggravating circumstance had been established in a constitutionally permissible manner. The Respondent contends that once the jury found the existence of one aggravating circumstance it was permitted to consider all other relevant evidence even if that evidence did not amount to a specific aggravating circumstance as outlined by the statute. Thus, the Respondent concludes that any error that my have occurred in the penalty phase of the trial was harmless error. According to the Respondent, in Clemons, the Mississippi legislature had provided a specified number of aggravating circumstances which could be considered in deciding whether to impose the death penalty and only those circumstances could be considered. Other evidence, regardless of its relevance to the sentencing phase, was to be excluded. As a result, Respondent argues the statute was not a threshold type statute where after a single aggravating factor is found all other evidence can be considered. Rather, Respondent asserts the Mississippi statute specifically narrowed the aggravating circumstances that could be considered. So, if one of those circumstances was found to be unconstitutional, the sentencing would be in violation of the Eighth Amendment or the state court charged with reviewing the sentence on appeal would have to re-weigh the specific aggravating circumstances provided by the statute to determine if the sentence could be sustained. Flamer contends that the totality of circumstances presented here makes it clear that the imposition of the death penalty, in view of the instructions given the jury, violated Flamer’s Fifth, Eighth and Fourteenth Amendment rights. Flamer disputes Respondent’s argument that Zant controls. Specifically, Flamer contends that the Delaware statute is a weighing statute while the Georgia statute involved in Zant was not. Accordingly, Flamer argues that Zant is inapplicable to his case and at the very least he was entitled to a reweighing of the aggravating and mitigating factors by the Delaware Supreme Court to determine if the error caused by the trial court’s instruction was harmless. According to Flamer, the Respondent cannot meet his burden of proving that any error was harmless. Flamer contends that the instruction that was given by the trial court assigned a greater weight to those statutory aggravating factors than to other possible aggravating factors. Thus, according to Flamer, he is entitled to de novo review of this claim. 1. Discussion The findings of harmless error by the Delaware Supreme Court with respect to the aggravating circumstances instructions presents a mixed question of law and fact. Thus, the Court is required to conduct a de novo review of the record to determine if, in fact, the alleged error was harmless beyond a reasonable doubt. Ruff v. Kincheloe, 843 F.2d 1240, 1242 (9th Cir.1988); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). In the guilt/innocence context, the harmless error standard is whether, absent the unconstitutional conduct, it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict. United States v. Hasting, 461 U.S. 499, 510-11, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983). The Court is bound by the findings of the state courts that Delaware’s capital sentencing statute is not a weighing type of statute. With that principle in mind, the Court concludes that any error as a result of the aggravating circumstances included in the charge to the jury at Flamer’s trial was harmless error. The statute — both in its literal language and as interpreted by the Delaware state courts — is clear in requiring that a jury need only find one of the enumerated aggravating circumstances. Under Delaware’s scheme, once one aggravating circumstance is found to exist then the sentencing authority may consider all aggravating and mitigating circumstances whether or not they are statutorily defined. Flamer’s jury found four aggravating circumstances. Although three were later determined to be unconstitutional or duplicative, one remained. The remaining aggravating circumstance was sufficient to permit the jury to determine, based on all of the evidence submitted, the appropriateness of the imposition of the death penalty in Flamer’s case. Accord Bailey v. Snyder, 826 F.Supp. 804 (D.Del.1993) (holding that the Delaware statute is a non-weighing statute). E. THE CALDWELL CLAIM Flamer contends that two phrases used by the trial court in its instructions at the end of the penalty hearing in his case violated the rule announced in Caldwell v. Mississippi 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), which was decided four months before Flamer’s convictions became final. In Caldwell the United States Supreme Court held that “the Eighth Amendment prohibits the imposition of a death sentence by a sentencer that has been led to the false belief that the responsibility for determining the appropriateness of the defendant’s capital sentence rests elsewhere.” Sawyer v. Smith, 497 U.S. 227, 232, 110 S.Ct. 2822, 2826, 111 L.Ed.2d 193 (1990). In light of the Caldwell decision Flamer challenges the following instruction: Where the jury submits such a finding and recommendation, the Court will sentence the defendant to death. A finding by the jury of a statutory aggravating circumstance, and a consequent recommendation of death, if supported by the evidence, shall be binding on the Court. Later, the Court stated the following: [y]our unanimous recommendation for the imposition of the death penalty, if supported by the evidence, is binding on this Court. When Flamer objected to these instructions on appeal, the Delaware Supreme Court held that the phrase “if supported by the evidence” simply-instructed the jurors that their decision must be based on the evidence, it did not suggest to them that the ultimate decision was vested in the trial court. Flamer I, 490 A.2d at 129. The Respondent answers that Flamer’s Caldwell challenge must fail for two reasons. First, the trial judge did nothing more than convey the statutory wording as it appeared in § 4209(d)(1). Second, Flamer cannot show that there was a reasonable likelihood that the jury took the phrase “if supported by the evidence” in a way that relinquished them from the responsibility of applying the death penalty. In support of this latter contention, the Respondent points out that the trial judge emphasized “[w]here the jury submits such a finding and recommendation the Court will sentence the defendant to death.” Respondent also asserts that in charging the jury, the trial court emphasized that to impose the death penalty the decision of the jury would have to be unanimous. The trial court advised the jury that if they were unable to reach a unanimous decision, then the Court would be bound to impose a sentence of life imprisonment. Flamer contends that the language of the subject instruction gave the jury the impression that their recommendation in the penalty phase of his trial would be reviewed by the judge and thus, a recommendation of the death penalty was not solely within their province. According to Flamer, it is the Respondent’s burden to show, under a totality of the circumstances, that the improper instruction had no effect upon the sentencing. Flamer argues that the instruction given to the jury in his trial made it appear that the role of the jury was advisory in nature rather than binding on the court. Thus, Flamer concludes the situation is one in which Caldwell is clearly applicable. Further, Flamer claims the Respondent is unable, as a matter of law, to establish that the allegedly improper instruction had no effect on the penalty imposed upon him. 1. Discussion The determination of the validity of a single instruction cannot be done in “artificial isolation” but must be viewed in relation to the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Further, on habeas review, the authority of the Court to consider the jury instructions in a state proceeding is limited to circumstances where the improper instruction “so infected the entire trial that the resulting conviction violates due process.” Id. It is not enough that the instruction was merely “undesirable, erroneous or even ‘universally condemned.’” Id; Henderson v. Kibbe, 431 U.S. 145, 156, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1976). Where the instruction given by the state court “violates specific federal constitutional standards imposed on the states through the due process clause of the Fourteenth Amendment” then the federal court, on review, may consider the instruction. Hallowell v. Keve, 555 F.2d 103, 106 (3d Cir.1977). The United States Supreme Court in Caldwell was faced with an entirely different situation than the one presented here. In Caldwell, the prosecutor argued to the jury that their decision was not binding on the trial court and that an automatic review of their decision would occur. 472 U.S. 320, 325, 105 S.Ct. 2633, 2637, 86 L.Ed.2d 231 (1984). Faced with that situation, the Supreme Court concluded: The Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its “truly awesome responsibility.” In this case, the State sought to minimize the jury’s sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires. Id. at 341, 105 S.Ct. at 2646. In the present case the Court is persuaded that a review of the entire jury charge indicates that the jury was fully apprised of its responsibility for determining the appropriateness of a sentence of death and thus, the Court concludes the instructions given by the trial court comported with the requirements of the Eighth Amendment. F. THE MITIGATING CIRCUMSTANCES ARGUMENT Flamer contends that the trial court’s charge to the jury violated the Eighth Amendment of the United States Constitution because it did not clearly instruct the jury that even if they found an aggravating circumstance to exist it did not necessarily follow that they had to impose the death penalty. In support of this claim, Flamer argues that the jury might have believed that it could not consider mitigating circumstances presented by Flamer since there was no specific instruction in this regard. The state supreme court twice considered this argument and twice held, as a matter of law, that the penalty instructions adequately communicated to the jury the discretionary nature of its sentencing authority. Flamer I, 490 A.2d at 127-28; Flamer IV, 585 A.2d at 751-53, 757-58. The Respondent answers that Flamer would be unable to demonstrate that there is any reasonable likelihood that the jury did not understand its duty under the instructions given. Accordingly, the Respondent contends that under the totality of the circumstances, it cannot be found that the jury failed to consider the mitigating circumstances as presented by defense counsel on behalf of Flamer. The Respondent asserts that the mere fact that a penalty phase hearing was held and Flamer presented evidence on his behalf indicates the jury must have known that the decision of what punishment to be imposed rested with it. Flamer makes no specific argument in response to the state’s contention, however, he does assert some general argum