Dawson v. Snyder (988 F. Supp. 783, 1997)

OPINION

MeKELVIE, District Judge.

This is a habeas corpus case. Petitioner David F. Dawson is a state prisoner incarcerated at the Delaware Correctional Center (“DCC”) in Smyrna, Delaware. Respondent Robert Snyder is the warden of the DCC. Dawson is contesting the constitutionality of his .murder conviction and his death sentences.

On June 24, 1988, a jury in the Kent County Superior Court of the State of Delaware convicted Dawson of four counts of first degree murder, one count of first degree robbery, one count of second degree burglary, six counts of possession of a deadly weapon during the commission of a felony, and one count of possession of a deadly weapon by a person prohibited. The four murder counts included one count of intentional murder, one count of killing in furtherance of an escape from prison, and two counts of felony murder. On July 22, 1988, a jury sentenced Dawson to death by lethal injection for the murder convictions, and to 100 years for the other convictions.

The Delaware Supreme Court affirmed Dawson’s convictions and sentences on direct appeal. See Dawson v. State, 581 A.2d 1078 (Del.1990) (“Dawson I”). Dawson subsequently petitioned the United States Supreme Court for a writ of certiorari to consider whether constitutional error occurred when, during the penalty hearing, the Superior Court admitted evidence that was not relevant to any issue being decided during the punishment phase. The United States Supreme Court granted certiorari, and on March 9, 1992, it found that this constituted constitutional error. Thus, the United States Supreme Court ordered the death sentences vacated, and remanded the case for further proceedings to determine whether the error was harmless. See Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992).

On remand, the Delaware Supreme Court concluded that the error was not harmless. See Dawson v. State, 608 A.2d 1201 (Del. 1992). Accordingly, it reversed the death sentences and remanded the matter to the Superior Court for a new sentencing hearing. Dawson subsequently moved for a change of venue from Kent County to New Castle County on the grounds that pre-trial publicity of the escape and murder prejudiced him, and that an impartial jury could not be impaneled in Kent County. -The Superior Court granted this motion.

In March 1993, following a second penalty hearing, a New Castle County jury unanimously recommended death sentences for each first degree murder conviction. On April 2, 1993, Judge Henry duPont Ridgely sentenced Dawson to death by lethal injection after independently reviewing the jury’s recommendation, as required by Delaware’s newly amended death penalty statute. See Del.Stat.Ann. tit. 11 § 4209. The Delaware Supreme Court affirmed these sentences .on direct appeal. See Dawson v. State, 637 A.2d 57 (Del.1994) (“Dawson II”).

Dawson filed a motion for postconviction relief in the New Castle County Superior Court alleging ineffective assistance of coun- ■ sel. While the court considered this motion Judge Ridgely ordered venue returned to Kent County, and on June 9, 1995, he denied Dawson’s motion for postconviction relief. See State v. Dawson, 681 A.2d 407 (Del.Super.Ct.1995) (“Dawson III”). On April 17, 1996, the Delaware Supreme Court affirmed this -decision and remanded for the limited purpose of setting an execution date. See Dawson v. State, 673 A.2d 1186 (Del.Super.1996) (“Dawson IV”), cert. denied, - — U.S. -, 117 S.Ct. 127, 136 L.Ed.2d 76 (1996). Judge Ridgely scheduled Dawson’s execution for June 13,1996.

On June 10, 1996, Dawson filed a petition for a writ of habeas corpus in this court claiming several constitutional infirmities in his trial and penalty hearings, including allegations of ineffective assistance of counsel, improper jury selection and instruction, and failure of the prosecution to divulge relevant evidence before and during the trial. The following is the court’s decision on Dawson’s petition for a writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

The court draws the following facts from a number of sources: the Delaware Supreme Court’s findings in its decision on Dawson’s direct appeal in 1990, Dawson I, 581 A.2d 1078 (Del.1990); the Delaware Supreme Court’s findings in its 1994 decision on Dawson’s direct appeal from his second penalty hearing, Dawson II, 637 A.2d 57 (Del.1994); the Superior Court’s 1995 findings in its decision on his motion for postconviction, relief, Dawson III, 681 A.2d 407 (Del.Super.1995); the Delaware Supreme Court’s findings in its 1996 decision on Dawson’s appeal from the Superior Court’s denial of his motion for posteonviction relief, Dawson TV, 673 A.2d 1186 (Del.1996); and this court’s independent review of the record of the state court proceedings and the parties’ briefs.

A. After the Escape from Prison

Sometime between 1:00 a.m. and 2:30 a.m. on December 1, 1986, four inmates escaped from the Delaware Correctional Center in Smyrna, Delaware.- The inmates were David Dawson, Larry Nave, Mark McCoy, and Richard Irwin.

After Dawson, Nave, McCoy and Irwin escaped, the four men began heading north on foot. Shortly thereafter, a car turned the corner where the men were, and without any discussion the group split up. Dawson headed south, while Nave, McCoy and Irwin went north.

1. Dawson and the Murder of Mrs. Kisner

Not far from where Dawson left the other three escapees, a 1979 Oldsmobile Starfire was stolen from the south side of Smyrna. Sometime before 6:30 a.m. the ear was discovered abandoned on County Road 139 between Smyrna and Kenton, a few miles from where it was stolen.

Approximately two to four miles from the abandoned car, Frank and Dorothy Seeney left their home near Kenton and went to work at 6:30 a.m. When Dorothy Seeney returned home that afternoon, she discovered that while they were at work, somebody broke into their house and stole a black leather motorcycle jacket, containers holding loose change, and several pocket watches.

Approximátely a half-mile from the Seeney residence, Richard Kisner and his sixteen-year-old son, Brian, left for work and school sometime before 7:45 a.m. Madeline Kisner, Brian’s mother, was in the shower getting ready for work when they left the house. Mrs. Kisner typically left for her job at Roth-well’s Garage around 8:30 a.m.

At approximately 3:30 p.m., Brian arrived home from school. As Brian walked past his parent’s room to his room, he noticed his mother in her red housecoat laying on her back across her bed. Brian assumed she was ill and had come home early from her job. He decided not to disturb her. Brian went to his room to change his clothes, and then he went to the kitchen to remove his contact lenses. Sometime before 4:00 p.m'., Alice Holman, one of Mrs. Kisner’s colleagues at Rothwell’s Garage, called and spoke with Brian. She told Brian that Mrs. Kisner never arrived at work that day.

Brian walked back to his parent’s room and stood in the doorway. He called out to his mother, but he did not receive a response. He then noticed a pool of blood around her ■head. Brian went into his room and armed himself with a hunting knife he kept there. Brian observed that one of the baseball trophies he kept on a shelf near the door was missing. Brian called the police, and then he locked himself in the pickup truck in the driveway and waited for the police.

When the police arrived, they discovered Mrs. Kisner on her bed, her red housecoat opened, her bra exposed. A pool of blood surrounded Mrs. Kisner’s head. Shoe laces bound Mrs. Kisner’s hands, and a sock placed over her mouth and knotted at the back of her head gagged her. A nylon stocking around her neck appeared to have been used in an - attempt to strangle her. The base of a trophy lay near the bed. There were • twelve stab wounds in her neck and chest areas.

Mr. Kisner arrived home from work at approximately 5:30 p.m. and learned what happened. When Mr. Kisner went through the house he found money and the keys to Mrs. Kisner’s 1986 LeBaron missing. The LeBaron, parked in the driveway when Mr. Kisner left for work that morning, was also missing. Mr. Kisner informed police that Mrs. Kisner habitually carried two-doliar bills in her wallet.

Around 7:30 p.m., Geraldine Ryan began speaking with a man in the Zoo Bar, a bar located in Milford, approximately twenty miles southeast of Kenton. Ryan’s roommate, Patty Dennis, was playing pool in the bar, and she observed Ryan talking with a man wearing a black leather hat and a black leather jacket that was too large for him.

Approximately an hour later, Dennis, Ryan, and the man Ryan spoke with left the Zoo Bar, to go to the Hide-A-Way, a bar located outside of Milford. As they were leaving, the man referred to himself as “Abaddon,” Dawson’s nickname. After an hour at the Hide-A-Way the bartender asked them to leave after an incident between the man and Ryan. The three returned to the Zoo Bar, and within five minutes he was thrown out of the bar for being disorderly- '

Around 9:30 p.m., Sergeant Keith Hudson, a Milford police officer, noticed a person matching Dawson’s description, wearing a black leather jacket and hat, leave the Zoo Bar. Sergeant Hudson and another officer lost the individual they suspected was Dawson after he went around a corner not far from the Zoo Bar. However, Sergeant Hudson did discover Mrs. Kisner’s 1986 LeBaron in a parking lot about half a block from the Zoo Bar. He found a carton of cigarettes and a bag of corn chips inside the car. Tests later showed that each of these items bore Dawson’s fingerprints. Sergeant Hudson also found in the car a postcard signed “Abaddon.”

At approximately 10:30 p.m., Trooper Douglas Hudson of the Delaware State Police received a call to investigate a one car accident on Sussex County Route 207 in Lincoln, approximately two miles from Milford. Trooper Hudson discovered a car with Texas tags abandoned in a ditch. Trooper Hudson found a black leather hat in the car. When he ran a registration check, the results did not show that the ear was stolen.

At approximately 2:00 a.m. on December 2, after having the car towed to a garage, Trooper Hudson first learned of the search for Dawson when another officer showed him a picture of Dawson. In the picture, Dawson wore a hat similar to the one Trooper Hudson had seen in the car. Trooper Hudson went to retrieve the hat from the car, and at this time he found papers listing a Milford address inside. Trooper Hudson went to this address, located near the Zoo Bar, and determined that the car had been stolen.

Trooper Hudson and other officers returned to Lincoln and began a house to house search for Dawson. At approximately 5:25 a.m. on December 2, Trooper Hudson discovered Dawson hiding on the floor of a car less than a half mile from the Route 207 accident involving the car with the Texas tags.

When Trooper Hudson arrested Dawson, Dawson was wearing the black leather jacket stolen from the Seeney residence. The police found four of the Seeney’s watches in the jacket pockets. Police also discovered a cotton sock in one of the pockets. This sock matched the one used to gag Mrs. Kisner. Dawson also had a two-dollar bill, two Exeed-rin bottles filled with coins, and a small knife.

2. Nave, McCoy and Irwin

In the early hours of December 1, while events transpired in Kenton, a 1965 Mustang was stolen from north Smyrna. Around 6:15 a.m., police located the car, abandoned and broken down, about a half-mile from Fields-boro, which is approximately eight miles north of Smyrna. The police recovered a fingerprint from the right front window, later identified as McCoy’s, and an address book from the back seat, later determined to belong to Nave.

Around 5:45 a.m., the operator of the Fieldsboro Service Station, Wilbert Dill, arrived for work. As Dill drove into the parking lot, he noticed three men standing by the bathroom. The men all wore identical blue clothing. After entering the station, Dill watched the men attempt to break into several vehicles in the area. Dill last saw the three men at approximately 6:45 a.m. Dill later identified the men as Nave, McCoy, and Irwin.

Around 6:35 a.m., Nave’s sister, Kathleen Spence, received the first of two telephone calls placed from the Fieldsboro Service Station. Approximately ten minutes later she received the second phone call. Spence later told officials that she drove to the service station, picked up three men, and provided them with new clothing. Later that day, she drove them northward into New Castle County. At approximately 6:30 p.m. Spence left the three men.

During the early hours of December 2, three men kidnaped a woman, Donna Boyer, from a parking lot in New Castle County, drove her around Delaware and into Pennsylvania, and released her several hours later in the parking lot of a motel. Boyer later identified Nave, McCoy and Irwin as the three men that kidnaped her.

On December 11, Delaware state police learned of the two calls placed from the telephone outside the Fieldsboro Service Station. The police subsequently conducted a taped interview with Spence. Spence admitted that Nave called her and requested that she come pick up him, McCoy and Irwin. She told the police that she refused to help them. Spence later admitted assisting the three escapees.

Police arrested Nave, McCoy and Irwin in Arizona on December , 22, 1986, sometime after they robbed a convenience store near St. George, Utah. In the three weeks after their escape from DCC, the three men committed a series of crimes in which they threatened their victims with knives, and bound their hands and feet with cord. At the time of Nave’s, McCoy’s and Irwin’s arrest, the police found several stolen items in their possession, including knives and firearms.

B. Events Before Dawson’s Trial

On December 5, 1986, three days after Dawson’s arrest, Dawson appeared at a preliminary hearing before the Kent County Court of Common Pleas. The two attorneys appointed to represent Dawson, Joseph A. Gabay and Duane Werb, did not meet with him prior to the hearing.

During the early part of 1987, the public defender’s office appointed James R. Lally and David M. Lukoff to replace Gabay and Werb as Dawson’s counsel. Dawson then allegedly sent to the public defender’s office several unanswered letters, requesting an opportunity to meet with his new counsel.

In November 1987, the public defender’s office replaced Lally and Lukoff with attorneys Paul S. Swierzbinski and John S. Ed-inger. On November 27, 1987, Swierzbinski met with Dawson to gather background information from him. Raymond J. Otlowski replaced Edinger in early 1988.

On April 13, 1988, Swierzbinski and two investigators from the public defender’s office met with Dawson to discuss Dawson’s version of what occurred on December 1, 1986. In an affidavit Swierzbinski later prepared in response to allegations of ineffective assistance of counsel he stated that the evidence he reviewed, and much of what Dawson told him at this meeting, was inconsistent with a statement Dawson made to DCC corrections officers around December 9, 1986.

In Dawson’s statement to DCC corrections officers he said that after the four men escaped they walked into Smyrna where they stole a ear and drove north. Dawson stated that McCoy drove, Nave sat in the right front seat, and Irwin sat in the left back seat. The foursome abandoned the car outside of Fieldsboro and returned to Smyrna on foot after unsuccessfully looking for another ear to steal and. failing to convince Kathleen Spence to assist them. It took them an hour-and-a-half to walk from the Fieldsboro area to Smyrna.

Dawson stated that after arriving in Smyrna they stole another car. Dawson drove for at least a half-hour before he wrecked the car somewhere outside of Kenton. Dawson said that he burglarized the Seeney residence alone, and then he entered the Kisner house. Dawson contended that while he was tying up Mrs. Kisner, Nave, McCoy and Irwin entered. Dawson stated that he subsequently left the Kisner residence to get gasoline for Mrs. Kisner’s LeBaron, and when he returned, Mrs. Kisner was dead and the other three escapees had left the house.

In contrast with the December 1986 statement, during' the April 1988 meeting with Swierzbinski, Dawson admitted that he split from the other three men shortly after the escape. ' He also admitted burglarizing the Kisner residence without any assistance. However, Dawson continued to deny killing Mrs. Kisner.

. C. .Dawson’s Trial

Dawson’s trial for the murder of Mrs. Kis-ner began in June 1988. Prior to the commencement of jury selection, Dawson moved for a change of venue, claiming that pretrial publicity about his case and hostility directed toward him in Kent County prevented the court from impaneling an impartial jury in that forum. The Superior Court denied Dawson’s motion on May 10,1988.

1." Jury Selection

Jury selection, for Dawson’s trial began on June 6, 1988. As agreed by the parties, Judge Ridgely conducted individualized voir dire of approximately 130 venirepersons over a four day period. Judge Ridgely impaneled twelve jurors and four alternate jurors.

Six selected jurors told the court during voir dire that they did not have any knowledge of the facts and issues relating to Dawson’s case. Although nine jurors had admitted hearing media reports about Mrs. Kisner’s death and Dawson’s subsequent arrest, they stated that this exposure was limited to the December 1-2 time period. One of these nine jurors, Francis Angel, stated during voir dire that he would be able to render a fair and impartial verdict based exclusively on the law and evidence presented at trial, despite having some knowledge of the facts and issues related to Dawson’s case. Dawson’s counsel moved to excuse Angel for cause. The court denied the motion, concluding that Angel could be impartial.

The sixteenth juror was Buel Parrish, an African-American.- -After being told of Dawson’s affiliation with a white supremacist organization called the Aryan Brotherhood, Parrish stated that he could remain fair and impartial. Parrish further stated that he inadvertently read part of a newspaper article about Dawson’s case during the jury selection process, but in compliance with the court’s instruction that the jury pool avoid exposure to news reports relating to the case, he stopped reading once he realized what the article was about. Parrish said that he had not formed an opinion about Dawson’s guilt or innocence and could remain fair and impartial despite having read the article. Parrish also mentioned that although his brother was the victim of an unsolved murder in 1978, he would not allow his family history to affect his impartiality as a juror. Dawson’s counsel moved to-strike Parrish for cause. The court denied the motion, finding Parrish impartial based on his responses to voir dire questions.

All sixteen jurors, including Angel and Parrish, represented to the court that they had not formed opinions regarding Dawson’s guilt or innocence, were not biased against him, and could render an impartial verdict based solely on the evidence introduced at Dawson’s trial. Thus, after the jury was selected Judge Ridgely stated: '“I am satisfied that a fair and impartial jury has been selected.”

2. The Presentation of Evidence

During the trial, the prosecution, with Ferris W. Wharton and Charles E. Butler representing the State of Delaware, presented evidence of Dawson’s, Nave’s, McCoy’s and Irwin’s activities after their escape from DCC on December 1. With respect to Dawson, the prosecution presented evidence physically linking Dawson to the murder of Mrs. Kisner. Specifically, State witnesses gave testimony regarding the results of tests the Federal Bureau of Investigation (“FBI”) performed on the sock discovered in Dawson’s pocket, and the clothing Dawson was wearing at the time of his arrest.

Andrew Podolak, a retired FBI special agent, performed fiber comparisons between the sock used to gag Mrs. Kisner and the one discovered in Dawson’s pocket. Podolak testified at trial that the microscopic properties, as well as the color, composition, and construction of the sock found in Dawson’s leather jacket matched the one used to gag Mrs. Kisner. Podolak also stated that an examination of the jacket and Dawson’s T-shirt revealed red triacetate fibers that matched fibers found in Mrs. Kisner’s housecoat. During cross-examination Podolak stated that a brown hair discovered at the crime scene did not match Dawson’s hair, or the hairs of Richard or Brian Kisner. FBI serol-ogists testified that blood found on Dawson’s undershirt and sweatshirt contained enzyme markers inconsistent with Dawson’s blood, but consistent with Mrs. Kisner’s blood.

The prosecution also called Dr. Judith To-bin, the Assistant State Medical Examiner who performed the autopsy of Mrs. Kisner. Tobin determined that cardiac tamponade, a hemorrhage within the heart that prevents it from pumping, and hemorrhaging due to the stab wounds, caused Mrs. Kisner’s death. Tobin testified that she could not conclude whether a particular knife caused Mrs. Kis-ner’s wounds. Instead, she could only conclude that the murder weapon was a sharp, knifelike instrument.

The prosecution presented evidence of the theft of several cars in Kent County in the early hours of December L Dawson was not indicted on charges relating to these thefts, and therefore, the court permitted the prosecution to introduce this evidence provided that it could link the stolen cars to Dawson. However, the prosecution did not proffer any physical evidence, such as fingerprints, demonstrating Dawson’s presence in the vehicles. The prosecution also presented evidence of the Seeney burglary, a crime to which Dawson plead guilty.

The prosecution called Brian Kisner to the stand to testify about discovering his mother’s body and the subsequent arrival of the police at his house. During cross-examination, Swierzbinski asked Brian several questions in an apparent effort to convince the jury that Brian was not being entirely truthful about the discovery of his mother’s body.

With respect to Nave’s, McCoy’s, and Irwin’s activities after the escape, the prosecution presented evidence of the theft of the 1965 Mustang abandoned outside of Fields-boro on the morning of December 1. The operator of the Fieldsboro Service Station, Wilbert Dill, testified about watching Nave, McCoy, and Irwin attempt to break into cars near his station on that same morning. Dill further testified that he did not see Dawson that morning.

Sometime during the middle of Dawson’s trial, Nave’s sister, Kathleen Spence, contacted the prosecution. Spence said that she was prepared to recant her December 11, 1986, statement in which she told police that she did not assist Nave, McCoy and Irwin. Spence gave a second statement to police. Spence stated that on the morning of December "1, she received a call from Nave, and she went to get the three men at the Fieldsboro Service Station. Thus, as its final witness during its case-in-chief, the prosecution called Spence to the stand. The prosecution did not inform Dawson’s counsel about Spence’s proposed change in stories until shortly before she testified.

Spence testified that after receiving Nave’s call she packed her car with fresh clothes for the escapees and drove to the Fieldsboro Service Station. The clothes included “about four pair of pants” and “a few shirts.” Spence also testified that she did not see Dawson on the morning of December 1,1986. During cross-examination, Swierzbinski introduced the tape of Spence’s December 11, 1986, statement and played it to the jury. Swierzbinski questioned Spence about her motivation for testifying, suggesting that she had come forward to- protect Nave from being charged with Mrs. Kisner’s murder.

After the prosecution rested, Swierzbinski called Kevin Castelline, a former Delaware Detective Sergeant who traveled to Arizona where he interviewed Nave and McCoy shortly after their arrest. It is unclear from the record whether Castelline also interviewed Irwin. On cross-examination Castel-line stated that he concluded that Dawson separated from the other three escapees and acted alone in burglarizing the Seeney residence and killing Mrs. Kisner. Castelline also stated that there was no apparent connection between the knives found on Nave, McCoy and Irwin , and Mrs. Kisner’s homicide. Furthermore, reports from other jurisdictions indicated that Nave, McCoy, and Irwin obtained these knives during various burglaries and robberies committed outside of Delaware during their crime spree.

3. Closing Arguments

During closing arguments the prosecution argued that the evidence led to one conclusion only, that Dawson acted alone in murdering Mrs. Kisner. Specifically, the prosecution focused on Dill’s and Spence’s testimony, and on the abandoned Mustang near Fieldsboro. The prosecution attempted to disprove, Dawson’s theory that Nave, McCoy and Irwin murdered Mrs. Kisner by showing that the three men were not near Kenton.

The defense objected to statements made during the prosecution’s closing argument. For example, while explaining its theory about Dawson’s state of mind when he killed Mrs. Kisner, the prosecution argued:

We don’t think this was a reckless killing.

We don’t think it was a negligent killing.

We don’t think it was merely a knowing killing. We think it was an intentional killing.

After an objection by Swierzbinski the court immediately instructed the jury as follows:

Members of the jury, during the closing statements just made, the Deputy Attorney General use the word we referring to we think. You are to disregard any reference of that kind. The personal opinion of the lawyers in this case should not, in any way, affect your deliberations. You are to decide this case solely upon the evidence presented at trial.

While describing the jury’s duty to evaluate and weigh the evidence presented, the prosecution again used “we,” arguing:

Both sides owe you the duty of giving arguments that make sense and are not refuted by other evidence that means something----So we are still here and we are still asking ourselves why. Why? Why?

Additionally, during rebuttal the prosecution asserted that the jury verdict should “tell everyone that he [Dawson] is a murderer.”

In its closing argument, the defense attempted, to discredit Dill’s'and Spence’s testimony, particularly based on Spence’s December 1986 statement. The defense also highlighted the prosecution’s failure to produce the murder weapon or to test the weapons found on Nave, McCoy and Irwin to determine if these three murdered Mrs. Kisner.

On June 24, 1988, a jury found Dawson guilty on four separate counts of first degree murder, one count of first degree robbery, one count of second degree burglary, six counts of possession of a deadly weapon during the commission of a felony, and one count of possession of a deadly weapon' by a person prohibited.

D.The First Penalty Hearing

After the jury verdict, the Superior Court conducted a penalty hearing. The prosecution sought to present evidence concerning Dawson’s affiliation with a white supremacist group called the Aryan Brotherhood. Over the objections of defense counsel, the judge permitted the prosecution to provide a brief description and history of the Aryan Brotherhood.

On June 28,1988, the jury sentenced Dawson to death by lethal injection for each of . his four murder convictions. The jury also sentenced Dawson to 100 years for the other convictions. The Delaware Supreme Court affirmed Dawson’s convictions and death sentence. See Dawson I, 581 A.2d 1078 (Del.1990).

E. Proceedings Before the United States Supreme Court

In 1991, the United States Supreme Court granted Dawson’s petition for a writ of cer-tiorari to determine whether, during the penalty hearing, the admission of evidence concerning Dawson’s white supremacist ties violated his First and Fourteenth Amendment rights. See Dawson v. Delaware, 499 U.S. 946, 111 S.Ct. 1412, 113 L.Ed.2d 465 (1991). On March 9, 1992, the Supreme Court ordered Dawson’s death sentence vacated, ruling that evidence concerning the Aryan Brotherhood affiliation was not relevant to the charges against him and its admission therefore violated, among other things, Dawson’s First Amendment right to freedom of association. See Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). The Supreme Court remanded the case to the Delaware Supreme Court to determine whether the admission constituted harmless error.

F. The Second Penalty Hearing

On June 26, 1992, the Delaware Supreme Court ruled that the admission of evidence of Dawson’s membership in the Aryan Brotherhood was not harmless error. Thus, it remanded the case to the Superior Court for a second penalty hearing. See Dawson v. State, 608 A.2d 1201 (Del.1992).

Dawson’s counsel subsequently filed a motion for a change of venue from Kent County to the New Castle County Superior Court on the grounds that the publicity of the case prejudiced him and that an impartial jury could not be impaneled. Judge Ridgely granted the motion.

The second penalty hearing occurred in March 1993. During jury selection Judge Ridgely excused for cause several members of the jury pool because they expressed reservations about their ability to impose a death sentence. For example, he excused Ruth Marshall after she responded “yes” to whether she would “automatically vote that the aggravating circumstances are outweighed by the mitigating circumstances because of [her] beliefs about the death penalty.”

After jury selection and the prosecution’s presentation of its case-in-chief, the defense called a DCC records supervisor, Cathy Guessford, to testify about Dawson’s institutional record. On cross-examination, when the prosecution questioned Guessford about a notation in Dawson’s record concerning his “behavioral problem” identified by prison social workers, Guessford replied, “death sentence and escape risk.”

The defense immediately objected and moved for a mistrial, arguing that Guess-ford’s testimony was prejudicial because it informed the jury that the first jury sentenced Dawson to death for the four counts of first degree murder. Judge Ridgely disagreed, stating that the jury would most likely infer that Guessford was testifying about the possibility of receiving a death sentence. However, Judge Ridgely also stated that he would read a limiting instruction to the jury to remove any prejudice potentially caused by Guessford’s testimony.

The defense renewed its motion for a mistrial. In response, the prosecution noted that the particular record from which Guess-ford read the phrase “death sentence” was created after the United States Supreme Court ordered Dawson’s original death sentence vacated. Consequently, the phrase could only be construed to mean that a death sentence might potentially be imposed. Judge Ridgely agreed and again denied the motion for a mistrial.

Judge Ridgely then instructed the jury as follows:

Members of the jury, the fact that a defendant faces a potential death sentence to be determined by the Court is not, , in and of itself, either an aggravating circumstance nor a mitigating circumstance to be considered by the jury. The last testimony of this witness is stricken. You are to disregard it.

. At the conclusion of the penalty hearing, Judge- Ridgely instructed the jury regarding aggravating and mitigating factors:

After you consider whether the evidence shows beyond a reasonable doubt that one or more of the alleged statutory aggravating circumstances exists, you must also weigh and consider the mitigating circumstances and the aggravating circumstances, including but not limited to the statutory aggravating circumstances that you may already have found to exist.

You must weigh 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.

You must then determine whether, based on a preponderance of the evidence, the aggravating factors outweigh the mitigating factors. The side on which the greater weight is found is the side on which the preponderance of the evidence exists.

Following deliberations, the jury recommended a sentence of death for each of the four counts of murder for which Dawson was convicted. Because Delaware’s newly-amended death penalty statute applied to Dawson’s second 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 Del.Stat.Ann. tit. 11 § 4209. Judge Ridgely reviewed the recommendation and independently sentenced Dawson to death by lethal injection. The Delaware Supreme..Court affirmed Dawson’s death sentences. See Dawson II, 637 A.2d 57 (Del.1994).

G. Postconvietion Proceedings

On June 22, 1994, Dawson filed a pro se motion for postconvietion relief, pursuant to Superior Court Criminal Rule 61. Because Dawson’s arguments for postconvietion relief included claims for- ineffective assistance of counsel, the court appointed Kevin J. O’Con-nell and Sheryl Rush-Milstead to represent Dawson. While the court considered Dawson’s motion for postconviction relief,-Judge Ridgely ordered venue returned to Kent County Superior Court.

Judge Ridgely ordered Paul Swierzbinski and Bernard O’Donnell, Dawson’s trial and appellate counsel, respectively, to prepare affidavits in response to Dawson’s allegations of ineffective assistance of counsel. Judge Ridgely also permitted Dawson to submit the affidavit of Eugene J. Maurer, Jr., an expert, retained to evaluate the ineffectiveness claims raised in Dawson’s postconviction motion.

On September 14, 1994, Dawson sought leave to conduct discovery, and to expand the record to include any materials that might be obtained via discovery. Dawson sought discovery on the following matters:

1) any and all reports of police officers or any state or federal forensic 'examiners who analyzed, for their evidentiary significance, the knives and other articles seized from Nave, McCoy and Irwin following their arrest in December 1986;

2) any and all police reports generated in conjunction with the kidnaping and robberies that Nave, McCoy and Irwin had perpetrated following their escape from the Delaware Correctional Center, including, but not limited to, a kidnaping and robbery of an elderly couple in Pennsylvania whereat the victims were threatened with a knife and bound with drapery cord, a kidnaping and robbery in Sayer, Oklahoma, whereat the victims were threatened with a knife and again bound up and homicides which authorities believed Nave, McCoy and Irwin had committed in Clayton, New Mexico and in Florida;

8) copies of or access to any and all taped statements given by Kathleen Spence, any transcripts generated as a result of those statements and notes from the officers present during those statements; and

4) copies of any and all police reports generated by officers assigned to substantiate the veracity of the allegation made by Spence that she had spent more than twelve hours with Nave, McCoy and Irwin on December 1,1986.

The court ruled that Dawson could obtain access to “any and all taped statements not otherwise introduced into evidence given by Kathleen Spence in the possession, custody or control of the prosecution” and could expand the record in accordance with that discovery.

Additionally, on September 14, 1994, Dawson filed an amended motion for postconvietion relief, and a motion for leave to conduct an evidentiary hearing to resolve certain factual issues raised in Dawson’s amended motion. Judge Ridgely granted the motion and conducted an evidentiary hearing.

In the amended motion Dawson first claimed that the court should not procedurally bar him from arguing that the prosecution’s failure to preserve potentially exculpatory evidence, the knives found on Nave, McCoy and Irwin, violated his Sixth and Fourteenth Amendment rights because of ineffective assistance of counsel.

Following the September 1987 kidnaping trial of Nave, McCoy and Irwin, the prosecution determined that the knives found on them at the time of their arrest were not probative of any ongoing investigations or cases. Thus, the prosecution earmarked the knives for disposal at auction. Before being auctioned off, nobody tested the knives for the presence of blood that could be linked to Mrs. Kisner. In May 1988, investigators from the public defender’s office contacted the Delaware state police about examining the knives, however, the State had already auctioned them off.

Judge Ridgely concluded that the knives would only be relevant if Dawson’s version of events’ were true. After determining that the evidence did not support Dawson’s account of the events following the escape, he stated that “Dawson’s timetable is totally inconsistent with the evidence.” Dawson III, 681 A.2d 407, 416 (Del.Super.Ct.1995). Acknowledging that Swierzbinski expressed a similar position in his affidavit, Judge Ridgely stated:

Dawson’s trial counsel reached the same conclusion. Additionally, Dawson admitted to his counsel that his initial statement that the four were together was not true and that he separated from the other three shortly after their escape.

Id at 417 n. 2. Thus, Judge Ridgely concluded that failure to timely raise the preservation of evidence claim did not prejudice Dawson, and he was proeedurally barred from bringing it in a postconviction proceeding. See id at 415-18.

Second, Dawson claimed ineffective assistance of counsel because of appellate counsel’s failure to consider whether the prosecution violated Dawson’s rights to due process of the law and a fair trial by not immediately giving him Kathleen Spence’s second statement to the police, the statement in which she admitted assisting Nave, McCoy, and Irwin. Judge Ridgely ruled that the prosecution’s failure to turn over the statement to Dawson in a timely fashion did not violate the prosecution’s obligation to produce exculpatory material. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Consequently, the alleged ineffectiveness of counsel did not prejudice Dawson. See Dawson III, 681 A.2d at 418-19.

Third, Dawson claimed ineffective assistance of counsel because of trial counsel’s failure to have an expert examine a brown hair of Caucasian origin found at the Kisner crime scene. Judge Ridgely rejected Dawson’s claim because Swierzbinski stated in both his affidavit and his testimony at the evidentiary hearing that he did not hire an expert because Dawson told him that he was the only escapee present in the Kisner house on December 1, 1986. Thus, Judge Ridgely stated that “the Court accepts the testimony of Dawson’s trial counsel that Dawson told him that he split from the other three escapees shortly after the breakout and went alone to the Kisner residence. Based on this statement by Dawson, it was reásonable for trial counsel not to have the hair compared to the three other escapees.” Id at 422.

Fourth, Dawson claimed ineffective assistance of counsel because trial counsel did not adequately consult with Dawson about whether he should testify at trial. Judge Ridgely denied this claim, relying on an affidavit from Swierzbinski stating “that he discussed with Dawson his choice of testifying or not testifying on several occasions,” and on an affidavit from Dawson indicating that Dawson did not want to testify at trial and that he would notify counsel if he changed his mind. See id.

Fifth, Dawson claimed ineffective assistance of counsel because trial counsel neither adequately consulted with Dawson regarding the facts of the case, nor developed Dawson’s version of events. Judge Ridgely rejected Dawson’s argument, stating that “[t]he record shows that defense counsel investigated the case carefully,” and that Dawson did not demonstrate “what evidence counsel would have discovered or introduced that would have helped the defense.” Id. at 423.

Sixth, Dawson claimed ineffective assistance of counsel on the grounds that trial counsel did not “fully use certain discovery procedures” and failed “to make appropriate pre-trial motions and objections. during the trial.” Id. Judge Ridgely denied this claim, concluding that the record did not support Dawson’s allegations, and noting that Dawson did not substantiate the claim by showing how the alleged failures affected the trial. See id.

Seventh, Dawson claimed ineffective assistance of counsel because prior to trial, counsel failed to sever from the indictment the count charging Dawson with possession of a deadly weapon by a person prohibited. Dawson argued that the decision to try this count with the murder charges prejudiced him because the jury consequently became aware of his past criminal record. However, Judge Ridgely stated that the count charging Dawson with murdering Mrs. Kisner in furtherance of an escape notified the jury of Dawson’s incarceration for prior criminal convictions. See id. Thus, Dawson did not suffer prejudice from trial counsel’s decision because the jury was otherwise aware of Dawson’s past criminal history.

Eighth, Dawson claimed ineffective assistance of counsel because Swierzbinski failed to offer into evidence Dawson’s December 1986 statement to DCC corrections officers after referring to it in his opening statement at trial. Judge Ridgely denied this claim, accepting “as reasonable counsel’s belief that the State would introduce the statement, given the State’s intense opposition to the defense motion to suppress” at the hearing immediately prior to opening statements. See id.

Ninth, Dawson claimed ineffective assistance of counsel because of the aggressive cross-examination of Brian Kisner. Judge Ridgely denied this claim, stating that he accepted Swierzbinski’s “explanation that he believed he had a duty to Dawson to explore Brian’s story carefully. After reviewing the record, the Court is unpersuaded that counsel’s cross-examination was deficient under Strickland." Id.

Tenth, Dawson claimed ineffective assistance of counsel because trial counsel failed to present a unified theory for his defense. Judge Ridgely denied this claim, remarking that “[a]fter a complete review of the trial and expanded record, the Court finds that trial counsel’s strategy to ask sufficient questions so as to create a reasonable doubt in the minds of the jury was not unreasonable or deficient under Strickland." Id.

Eleventh, Dawson claimed ineffective assistance of counsel because appellate counsel failed on direct appeal to raise the issue of whether the court improperly excused four prospective jurors for cause during the second penalty hearing. Judge Ridgely found that “given the record of the jury selection in this case, counsel’s failure to raise this issue on appeal did not constitute ineffective assistance of counsel.” Id. at 420.

Finally, Dawson claimed ineffective assistance of counsel because appellate counsel inadequately prepared for, and presented the case at, the second penalty hearing. Judge Ridgely denied this claim, stating that “[a]f-ter careful consideration of each of Dawson’s [penalty phase] claims, the Court is not persuaded that defense counsel’s preparation or presentation during the penalty phase was deficient under Strickland.” Id. at 426.

Dawson also advanced other arguments which Judge Ridgely rejected pursuant to Superior Court Criminal Rules 61(i)(3) or 61(i)(4) because they were procedurally barred, settled by either state or federal law, were without merit, or were “eonclusory allegations ... insufficient to support [Dawson’s] claim for relief.” Id.

On April 17, 1996, the Delaware Supreme Court affirmed Judge Ridgely’s denial of Dawson’s motion for postconviction relief. The Supreme Court remanded the case for the limited purpose of setting an execution date. See Dawson IV, 673 A.2d 1186 (Del.1996). Judge Ridgely subsequently scheduled the execution for June 13,1996.

On June 10, 1996, Dawson filed a petition for a writ of habeas corpus in this court, and moved for a stay of execution. In the original petition Dawson raised fourteen grounds for federal habeas corpus relief.

1. The State violated his Sixth and Fourteenth Amendment rights to effective assistance of counsel and due process of the law by suppressing certain exculpatory evidence both before and during trial.

2. The Superior Court’s permission to the State to introduce evidence of uncharged bad acts that were more prejudicial than probative and were not supported by an appropriate evidentiary foundation violated his Sixth and Fourteenth Amendment rights to a fair trial and due process of the law.

3. The Superior Court’s failure to sequester the jury violated his Sixth and Fourteenth Amendment rights to a fair trial and due process of the law.

4. The Superior Court’s permission to the State to offer its personal opinions regarding his guilt and to argue for conviction based on irrelevant matters violated his Sixth and Fourteenth Amendment rights to a fair trial and due process of the law.

5. The Superior Court’s permission to the State to make closing arguments that were not relevant to the aggravating factors the State was attempting to prove during the 1993 penalty hearing violated his Eighth and Fourteenth Amendment rights.

6. The Delaware death penalty statute, as administered in Delaware and applied to him, violates the Eighth and Fourteenth Amendments.

7. The death sentence violates his Eighth Amendment right to be free from cruel and unusual punishment because Delaware’s death penalty statute fails to adequately narrow the group of death-eligible defendants.

8. The Superior Court’s denial of his motion .for a change of venue because of alleged prejudicial pretrial publicity violated his Sixth and Fourteenth Amendment rights to a fair trial.

'9. The Superior Court’s striking for cause certain members of the trial jury pool who were morally against the death penalty, and not permitting him to exercise more than twenty peremptory challenges violated his Sixth and Fourteenth Amendment rights to a fair and impartial jury of his peers.

10. Trial counsel violated his Sixth Amendment right to effective assistance of counsel by not adequately preparing for trial and not making appropriate objections during the trial.

11. The Superior Court’s exclusion for cause of prospective jurors morally against the death penalty during the 1993 penalty hearing violated his Sixth and Eighth Amendment rights.

12. The Superior Court’s permission that a witness could testify about Dawson’s previous death sentences during the 1993 penalty hearing violated his Sixth and Fourteenth Amendment rights to a fair penalty hearing and due process of the law.

13. The Superior Court’s improper instruction to the jury as to the State’s burden of proof with respect to non-statutory aggravating factors, and misleading the jury into believing that Dawson had the burden of proving the existence of mitigating circumstances beyond a reasonable doubt during the 1993 penalty hearing violated his Sixth Amendment right to a fair penalty hearing.

14.The Superior Court’s improper limitation of his right to discovery, an evidentia-ry hearing, and expansion of the record during postconviction proceedings in 1995 violated his Fourteenth Amendment right to due process of the law.

On June 11, 1996, the court stayed Dawson’s execution pending the court’s determination of his habeas petition. Additionally, Dawson filed motions for leave to conduct discovery, to expand the reeord, and to conduct an evidentiary hearing. In the opening briefs Dawson requested discovery on the following issues:

a) any and all police reports or other documents evidencing the investigation of crimes alleged to have been committed by the other escapees (Nave, McCoy, and Irwin) between the time of their escape and their subsequent arrest;

b) any police reports and or documents evidencing any investigation to confirm the statements given by Kathleen Spence immediately prior to the trial of David Dawson in the summer of 1988; that is, any report which evidence [sic] an investigation as to the truthfulness of what Ms. Spence now alleged — -that she had been with the other three escapees (Nave, McCoy and Irwin) from approximately 7:00 a.m. until approximately 7:00 p.m. on December 1, 1986.

In the reply brief Dawson further requested “records relating to the lethal injection of the seven defendants who have been executed by Delaware since March of 1992.”

On January 29, 1997, the court denied Dawson’s discovery motions because Dawson failed to demonstrate with specificity that he “has actual proof to substantiate the allegations about state conduct that he seeks discovery on.” Dawson v. Snyder, 96-300-RRM, ord. at 2 (D.Del. Jan. 29, 1997) (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 232 (1991)). However, the court noted that Dawson could renew his motions at a later date if he specifically illustrated the basis for his discovery requests.

On March 24, 1997, Dawson filed an opening brief in support of his habeas petition, attaching transcript excerpts of Larry Nave’s testimony at Nave’s July 1987 kidnaping trial. When respondents filed their answering brief on May 2,1997, they moved for leave to expand the record to include the entire transcript of Nave’s testimony. Dawson did not oppose the motion. Accordingly, the court will grant respondents leave to expand the record to include the entire transcript of Nave’s testimony.

On June 6, 1997, Dawson filed a reply brief, and on June 11 he filed a motion for leave to amend his habeas petition to add the following claim:

Dawson’s counsel rendered ineffective assistance in preparing for and conducting his defense at the 1993 penalty hearing, in violation of his Sixth and Fourteenth Amendment rights, when they unreasonably and prejudicially failed to adequately investigate matters relating to the sentence to be imposed. Specifically, Dawson’s counsel failed to interview any witnesses with an eye toward demonstrating that some of the evidence put on by the State in the 1988 trial was, in fact, false; thereby creating residual doubt as to Dawson’s guilt and mitigating Dawson’s role in the offense.

Respondents did not oppose Dawson’s motion. Accordingly, the court will grant Dawson’s motion for leave to amend his petition to include the above-listed claim.

II. DISCUSSION

The federal habeas corpus statute, 28 U.S.C. § 2254 (1997), provides that a district court will consider a petition for a writ of habeas corpus presented by an individual “in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” A district court will not consider a habeas corpus petition unless the petitioner has fulfilled certain procedural requirements, such as having “exhausted the remedies available in the courts of the State.” Id. § 2254(b)(1)(A). State remedies are not deemed exhausted if the petitioner “has the right, under the law of the State to raise, by any available procedure, the question presented.” Id. § 2254(e). However, a district court may deny the petition on the merits in spite of a petitioner’s failure to exhaust the remedies available at the state level. Id. § 2254(b)(2).

Additionally, a district court shall not grant a habeas petition for any claim heard on the merits at the state level unless the adjudication of that claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. § 2254(d).

Before considering the claims in Dawson’s habeas petition, the court must determine whether • the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“the Act”), applies to Dawson’s habeas petition. President Clinton signed the Act into law on April 24,1996. Section 104 of the Act amended the federal habeas corpus statute, 28 U.S.C. § 2254, in several ways. First, the new law provides that a federal habeas petitioner is not entitled to relief unless he can establish that the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). See also Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir.1996). Second, factual findings made by a state court “shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Dawson argues that newly amended § 2254 does not apply to his habeas petition because the State of Delaware did not satisfy the provisions of 28 U.S.C. §§ 2261 or 2265, which provide for special habeas corpus procedures in capital cases. Sections 2261 and 2265 entitle a state to, among other things, expedited review of habeas petitions, if the state provides -an adequate procedure for appointment of counsel in state postcon-viction proceedings. See e.g., Ashmus v. Calderon, 935 F.Supp. 1048, 1055-56 & n. 4 (N.D.Cal.1996). However, the United States Supreme Court recently held that amended § 2254 applies to any habeas petition filed after the effective date of the Act, April 24, 1996, even if a state does not avail itself of these provisions. See Lindh v. Murphy, — U.S. -- -, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997). Dawson filed his habeas petition on June 10, 1996. Accordingly, the court will apply the amended provisions of § 2254 to Dawson’s claims for federal habeas corpus relief.

A. Procedurally Barred Claims

The respondent argues that Dawson is procedurally barred from obtaining federal habeas review of several claims of ineffective assistance of counsel. In Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991), the United States Supreme Court stated that “a habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state of the opportunity to address those claims in the first instance.” Thus, the Supreme Court held that it “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.”' Id. at 729, 111 S.Ct. at 2553 (citation omitted). In the absence of the independent and adequate state ground rule, a prisoner could avoid the exhaustion requirement altogether by defaulting .on federal claims in state court because the prisoner technically would have “exhausted” those claims as state remedies are then no longer available. See id. Accordingly, the “independent and adequate state ground doctrine ensures that the State’s interest in correcting their own mistakes is respected in all federal habeas eases.” Id. at 732, 111 S.Ct. at 2555.

1. Are Dawson’s constitutional claims procedurally barred?

Dawson raises several claims that he failed to raise on direct appeal, and that respondent now argues are procedurally barred. To begin with, Dawson claims that the State’s failure to preserve evidence that could have been favorable to him, and suppression of certain exculpatory evidence before and during trial, violated his Sixth Amendment right to effective! assistance of counsel, and his Fourteenth Amendment right to due process of the law. Specifically, Dawson claims that by not preserving the knives found in Nave’s, McCoy’s, and Irwin’s possession at the time of their arrest, the State violated his right to due process, of the law. Dawson also claims that the State violated his right to due process of the law by not disclosing in a timely manner Kathleen Spence’s second statement to authorities, and that the State violated his right to due process of the law and to a fair trial when the court permitted it to introduce evidence of car thefts for which Dawson was not indicted.

Dawson also raises several claims of constitutional violations relating to the juries, both at trial and during the second penalty hearing in 1993. First, Dawson claims that at trial and during the 1993 penalty hearing, the Superior Court’s improper exclusion for cause of jurors with moral scruples against the death penalty violated his Sixth, Eighth, and Fourteenth Amendment rights. Second, Dawson claims that during the 1993 penalty hearing the Superior Court’s exclusion of jurors who • did not make it unmistakably clear that they could never impose a death sentence, violated his Sixth, Eighth, and Fourteenth Amendment rights. Third, Dawson claims that the Superior Court’s failure to sequester the jury violated his Sixth and Fourteenth Amendment rights to a fair trial and due process of the law, respectively, because of the jury’s exposure to prejudicial publicity.

Additionally, Dawson claims that remarks made by the State during the trial and the 1993 penalty hearing violated his constitutional rights. First, Dawson claims that the prosecution violated his rights to a fair trial and due process of the law when it made prejudicial remarks during closing arguments at trial. Second, Dawson claims that the prosecution violated his Eighth and Fourteenth Amendment rights by making arguments at the 1993 penalty hearing that “invited the jury to sentence him based on factors other than the aggravating characteristics of the particular offender and offense, including harm to the victim’s family, the need to foster general deterrence by setting an example and otherwise appealing to the emotions and biases of the jurors.”

Dawson also asserts three claims regarding the unconstitutionality of the death penalty in Delaware. First, Dawson claims that the death penalty, as administered in Delaware and applied to him, is cruel and unusual punishment in violation of the Eighth Amendment because the State has failed “to establish sufficient safeguards to minimize the problems associated with lethal injection.” Second, Dawson claims that Delaware’s lethal injection statute is “preempted by federal law because it permits correctional officers to obtain federally controlled substances necessary for carrying out the execution without a prescription.” Third, Dawson claims that the Delaware death penalty statute violates the Eighth Amendment because it fails to adequately narrow the group of death-eligible defendants.

Dawson failed to raise all of the above claims on direct appeal from his convictions and sentences. When he advanced them for the first time before the Superior Court in postconviction proceedings, Judge Ridgely ruled that they were procedurally barred pursuant to Superior Court Criminal Rule 61(i)(3). See generally Dawson III, 681 A.2d 407. On appeal, the Delaware Supreme Court affirmed all claims, except the sequestration claim and the claim that Swierzbinski provided ineffective assistance of counsel during the 1993 penalty hearing, which Dawson did not appeal. See Dawson IV, 673 A.2d 1186. Thus, Dawson has exhausted state remedies as to all claims, except the sequestration claim, the ineffective assistance of counsel claim relating to the 1993 penalty hearing, and the bad acts claim, which was not presented as a federal claim to the state court. See Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir.1984) (stating that the federal habeas exhaustion requirement “has been judicially interpreted to mean that claims must have been presented to the state courts”)