Free Response to Habeas Petition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Petitioner, : : v. : : THOMAS C. CARROLL, : Warden, and CARL C. DANBERG, : Attorney General for the State of Delaware, : : Respondents. : DAMONE E. FLOWERS,

Civ. Act. No. 06-356-GMS

ANSWER Pursuant to Rule 5 of the Rules Governing Section 2254 Actions, 28 U.S.C. foll. § 2254, respondents state the following in response to the petition for a writ of habeas corpus: In April 2000, a Delaware grand jury indicted the petitioner, Damone E. Flowers, for first degree murder, possession of a firearm during the commission of a felony, and possession of a firearm by a person prohibited, all in connection with an August 1, 1998 shooting. See Del. Super. Ct. Crim. Dkt. ("Del. Dkt.") at Item 3 in case no. 9808000280A. The person prohibited charge was severed, and, in October 2002, a Superior Court jury found Flowers guilty of first degree murder and the remaining weapon offense. Flowers moved for a new trial, but that motion was denied by Superior Court in February 2003. See Del. Dkt. at Item 86. On April 25, 2003, Flowers was sentenced to life in prison without the possibility of probation or parole for the murder and ten years in prison for the weapon offense. See D.I. 2 at 2. Flowers' convictions and sentence were affirmed on appeal. Flowers v. State, 858 A.2d 328 (Del. 2004).

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In May 2005, Flowers filed a pro se motion for postconviction relief under Superior Court Criminal Rule 61.1 See Del. Dkt. at Item 103. Superior Court denied the motion without prejudice on June 28, 2005, to allow Flowers to set forth his claims in summary form as required by the Rule. See Del. Dkt. Item 106 (attached as Exhibit A to D.I. 4). In September 2005, Flowers filed an amended motion for state postconviction relief under Superior Court Criminal Rule 61. See Del. Dkt. at Item 108. The court denied the motion in December 2005. See Del. Dkt. Item 110 (attached to D.I. 2). The state supreme court dismissed Flowers' appeal as untimely on April 4, 2006. Flowers v. State, 2006 WL 889368 (Del. Apr. 4, 2006). Flowers' federal habeas petition is dated May 24, 2006. D.I. 2. Facts As detailed by the Delaware Supreme Court in Flowers v. State, 858 A.2d 328, 330 (Del. 2004), the facts leading to Flowers' arrest and conviction are as follows: On August 1, 1998 Alfred Smiley drove a car with two passengers in the area of 22nd and Lamotte Streets in Wilmington. At some point, Smiley became involved in an argument with people on the street. A gunshot fired from the sidewalk next to the car struck Smiley in the chest. The car careened out of control on the street and came to rest against a utility pole. Wilmington Police responded to the call and took Smiley to the hospital where he died from the gunshot wound. The State charged Damone Flowers with Smiley's murder and presented five witnesses at trial who were alleged to have been present at the scene of the shooting. Most of the incriminating evidence was presented through pretrial taped statements. Flowers presented no witnesses and did not testify. Discussion In his petition for federal habeas relief, Flowers raises fifteen grounds for relief: (1) the offer by prosecutors of favorable plea agreements to potential witnesses who had been arrested in exchange for testimony violated Flowers' right to a fair trial; (2) Flowers' right to a fair trial was
1

Flowers originally attempted to file his postconviction motion in April 2005, but it was rejected for lack of Flowers' original signature. See Del. Dkt. at Item 102. 2

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violated when the prosecutors allowed Othello Predeoux to plead to a reduced charge in exchange for his testimony and the prosecutors failed to disclose the plea agreement; (3) prosecutors deliberately misled the court to delay the trial proceedings to further develop Predeoux as a witness in violation of Flowers' due process rights; (4) the prosecutors improperly suggested that Flowers was a member of the Deuce-Deuce gang and that gang members were intimidating witnesses; (5) the trial judge abused her discretion by not giving, sua sponte, a curative instruction after Flowers' family and friend were ejected from the courtroom; (6) the cumulative errors at trial (revelation to the jury of defense counsel's prior representation of a prosecution witness and Flowers' criminal history; admission of hearsay evidence) resulted in a fundamentally unfair trial; (7) Flowers was denied effective cross-examination of Ponetta Sudler, Tyshiek McDougal and Othello Predeoux due to their claimed memory loss at trial in violation of the Confrontation Clause; (8) prosecutors elicited false testimony from Predeoux regarding the disposition of his criminal charges; (9) prosecutors committed a Brady2 violation by failing to turn over exculpatory statements made by four different men in which they indicated that Flowers was not the shooter or identified another shooter in addition to Flowers; (10) the police used suggestive interview techniques that led to unreliable identifications of Flowers by Vernon Mays and Matthew Chamblee; (11) trial counsel did not provide effective assistance because he failed to: hire drug and identification experts; put on the planned defense; object to unreliable identifications and courtroom ejections; address Flowers' flight or request jury instructions regarding flight; and counsel withdrew his motion for a new trial on the day of the scheduled hearing; (12) Ronetta Sudler's videotaped statement should not have been admitted at trial (under DEL. CODE ANN.
TIT.

11, § 3507) because it was not voluntarily obtained; (13) the prosecutor

2

Brady v. Maryland, 373 U.S. 83 (1963). 3

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recklessly elicited from the State's witness, Adrienne Dawson, that Flowers had been in jail, and the curative instruction was insufficient to cure the prejudice; (14) Predeoux's non-responsive answer to defense counsel's question revealed to the jury that defense counsel had previously represented the witness, destroying counsel's credibility with the jury; and (15) the prosecutor's references in his opening statement to "the double deuce group, the 22nd Street regulars" and a "code of silence" were not supported by the evidence and were extremely prejudicial. D.I. 2 at 6-33. Flowers' claims, however, do not provide a basis for relief. Claims are time barred Flowers is not entitled to relief because the claims presented in his petition are untimely under 28 U.S.C. § 2244(d). Because Flowers' petition was filed in May 2006, it is subject to the Antiterrorism and Effective Death Penalty Act ("AEDPA") signed into law by the President on April 24, 1996. See generally Lindh v. Murphy, 521 U.S. 320, 336 (1997) (holding the AEDPA applies to "such cases as were filed after the statute's enactment."); Lawrie v. Snyder, 9 F. Supp.2d 428, 433 n.1 (D. Del. 1998); Dawson v. Snyder, 988 F. Supp. 783, 802-03 (D. Del. 1997). By the terms of § 2244(d)(1), a federal habeas petitioner must file the petition within one year of the date on which the state court judgment became final upon the conclusion of direct review. See 28 U.S.C. § 2244(d)(1)(A); Calderon v. Ashmus, 523 U.S. 740, 742-43 (1998). Thus, the one-year period of limitations began to run when Flowers' conviction became final under § 2244(d)(1)(A).3 See, e.g., Gibbs v. Carroll, 2004 WL 1376588, *2 (D. Del.). The Delaware Supreme Court affirmed Flowers' conviction and sentence on August 31, 2004. Flowers, 858 A.2d 328. Although Flowers did not seek review by the United States Supreme Court, the ninety-day period in which he could have filed a petition for a writ of certiorari Flowers does not allege, nor can respondents discern, any reason to believe that the terms of 28 U.S.C. § 2244(d)(1)(B)-(D) are applicable. 4
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expired on November 29, 2004. See Kapral v. United States, 166 F.3d 565, 576 (3d Cir. 1999) (holding that on direct review, the limitation period of § 2244(d)(1)(A) begins to run at the expiration of the time for seeking review in the United States Supreme Court). Flowers thus had until November 29, 2005, to file his federal habeas petition without running afoul of § 2244(d). See, e.g., Samuel v. Carroll, 2004 WL 1368845 (D. Del.); Morales v. Carroll, 2004 WL 1043723 (D. Del.). Flowers' petition, dated May 24, 2006, is obviously filed past the November 2005 deadline.4 The petition is thus untimely and must be dismissed, unless the time period can be statutorily or equitably tolled. See Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999). In turn, the tolling mechanism of § 2244(d)(1) does not save Flowers' petition from the running of the limitations period. See 28 U.S.C. § 2244(d)(2). When applicable, § 2244(d)(2) tolls the one-year period of § 2244(d)(1) during the time that a properly filed state postconviction action is pending in the state courts. Although Flowers' postconviction motion acted to toll the limitations period, an aggregate period of more than the one-year limitations period elapsed, and his claims are time barred. In the first instance, 293 days elapsed after November 29, 2004, the date after which the limitations period started to run, before Flowers properly filed a state postconviction motion in Superior Court under Criminal Rule 61 on September 20, 2005. See Del. Dkt. at Item 108. Flowers had first attempted to file a postconviction motion on April 27, 2005, but that filing was rejected as non-conforming for failure to have an original signature. See Del. Dkt. at Item 102. Flowers' second attempt at filing a postconviction motion, filed on May 3, 2005, was denied without prejudice for failure to comply with Superior Court Criminal Rule 61(b)(2), requiring that a petitioner set forth the facts supporting his grounds for relief in See Longenette v. Krusing, 322 F.3d 758, 761 (3d Cir. 2003) (a prisoner's petition is considered filed on the date he delivers it to prison officials for mailing); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998) (same); Woods v. Kearney, 215 F. Supp.2d 458, 460 (D. Del. 2002) (date on petition is presumptive date of mailing and, thus, of filing). 5
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summary form. See Del. Dkt. Item at 106 (Exhibit A attached to D.I. 4). Thus, the motion was not "properly filed" until September 20, 2005.5 See Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("An application [for state post-conviction relief] is properly filed when its delivery and acceptance are in compliance with the applicable laws and rules governing filings."); Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001) ("we must look to state law governing when a petition for collateral relief is properly filed"); Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). Superior Court ultimately denied the motion on December 13, 2005 as procedurally barred. Del. Dkt. Item 110 (attached to D.I. 2). Flowers then attempted to appeal this decision, but his appeal was dismissed as untimely. See Flowers, 2006 WL 889368 at *1 (Del. Apr. 4, 2006). Because Flowers' appeal was dismissed as being untimely, the appeal was not properly filed, and thus did not toll the limitation period. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005); Cannon v. Carroll, 2006 WL 2949302, *3 (D. Del. Oct. 17, 2006). Consequently, Flowers' postconviction action tolled the limitations period only from September 20, 2005 through January 12, 2006, the date on which the thirty-day period for filing a timely state postconviction appeal expired. Cannon, 2006 WL 2949302 at *3; Eley v. Snyder, 2002 WL 441325 at *2-3 (D. Del. Mar. 21, 2002). Another 131 days passed after January 12, 2006 before Flowers filed his federal habeas petition on May 24, 2006. An aggregate of 424 days elapsed, and as a result, the one-year limitation period of § 2244 expired. Flowers' claims are thus untimely and should be dismissed. Nonetheless, the limitation period may be subject to equitable tolling. See, e.g., Thomas v. Snyder, 2001 WL 1555239, at *3-4 (D. Del.) (describing rule). Equitable tolling, however,

The question of whether a properly filed postconviction motion can relate back to the date that the motion was first filed, albeit not properly, is currently before the Third Circuit in Austin v. Carroll, No. 04-3811. 6

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applies only where the petitioner "has in some extraordinary way been prevented from asserting his or her rights." Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). In order to trigger equitable tolling, Flowers must demonstrate that he "exercised

reasonable diligence in investigating and bringing [the] claims" and that he was prevented from asserting his rights in some extraordinary way; mere excusable neglect is insufficient. Id. at 61819 (citations omitted); Schlueter v. Varner, 384 F.3d 69, 77 (3d Cir. 2004). Here, Flowers alleges that because he did not receive the Superior Court order denying his state postconviction motion until December 15, 2005 (two days after it was issued), the prison staff was slow to provide various necessary services during the holiday season, and his mail was not sent from the prison in a timely manner, his appeal was untimely. D.I. 4. Presumably, although not

articulated in his petition or supporting documents, Flowers believes that but for the rejection of his untimely appeal by the state supreme court, the limitations period would have been tolled while the court reviewed his claims and he could have timely filed his habeas petition. Regardless of the actions or inaction of the prison staff, the Clerk of the Delaware Supreme Court issued a notice to show cause on January 17, 2006, at which point Flowers was on notice that he had filed an untimely appeal. See D.I. 4 at Exhibit E. Under clearly established Delaware law, the timely filing of a notice of appeal is a jurisdictional requirement. E.g., Eller v. State, 531 A.2d 951, 952 (Del. 1987). Unless Flowers could show that his failure to file a timely notice of appeal was attributable to the actions of judicial personnel, the appeal would be dismissed. E.g., Bey v. State, 402 A.2d 362, 363 (Del. 1979). When Flowers received notice that his appeal was untimely, he could have filed his federal habeas petition to forestall the expiration of the limitations period. See Pace, 544 U.S. at 415 ("A prisoner seeking state postconviction relief might avoid this predicament [of discovering too late his motion was not

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properly filed], however, by filing a 'protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted."). Instead, Flowers elected to try to convince the Delaware Supreme Court to excuse the untimely filing of the notice of appeal. See, e.g., Vroman v. Brigano, 346 F.3d 598, 605 (6th Cir. 2003) (no equitable tolling when petitioner had been informed that his state filing was untimely and yet petitioner elected to file only a state appeal rather than filing his federal habeas petition). In any case, Flowers' litany of excuses as to why his appeal was untimely does not constitute extraordinary circumstances meriting equitable tolling. "To the extent that petitioner's failure to timely file his petition was the result of a mistake, a mistake does not constitute an extraordinary circumstance." Wilmer v. Carroll, 2003 WL 21146750, *5 (D. Del.); see Simpson v. Snyder, 2002 WL 1000094, order at *3 (D. Del.) (rejecting such an argument made by petitioner). "In non-capital cases, 'attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the "extraordinary" circumstances required for equitable tolling.'" Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir. 2003) (quoting Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001)); see also Johnson v. Hendricks, 314 F.3d 159, 163 (3d Cir. 2002). Further, there is no reason to invoke equitable tolling for the time between when Flowers filed his nonconforming postconviction motion on April 27, 2005 or May 3, 2005 and when he properly filed his postconviction motion on September 20, 2005. In the first instance, the delay in processing Flowers' filing was not an extraordinary circumstance sufficient to invoke the doctrine of equitable tolling. The obligation to exercise due diligence does not relate only to the filing of the federal habeas petition, but also requires diligence during the time that the petitioner is exhausting state court remedies. See LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005); see also Jones, 195 F.3d at 160 (no equitable tolling warranted where petitioner failed to show due

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diligence in satisfying the exhaustion requirement). Flowers acknowledged that he was aware of the one-year limitations period some time before November 29, 2004, the day before the limitations clock began to run. See D.I. 7 at Exhibit R. Having made no attempt to file any motions for more than eight months after his conviction was affirmed by the Delaware Supreme Court, while also being aware that the clock was ticking, Flowers can hardly then complain that a judge might take several weeks to review a post-conviction motion. An eight-week delay in the court system is not an "extraordinary" situation. Cf. Phillips v. Donnelly, 216 F.3d 508 (5th Cir. 2000) (holding equitable tolling may be available where petitioner alleged receipt of notice denying state writ four months after decision). Criminal Rule 61 provides for the clerk to return a non-complying motion "if a judge of the court so directs." DEL. SUPER. CT. CRIM. R. 61(c)(1). Based on the language of the rule, Flowers should have known that there was some potential for his motion to be returned after review by a judge. Certainly, it would have been reasonable for Flowers to expect that a judge would not review his motion immediately. Flowers has not explained how the delay prevented him from filing his federal habeas petition. See Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) ("The word 'prevent' requires the petitioner to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing . . . ."). In Rainey v. Secretary for the Dep' of Corrections, 443 F.3d 1323, 1329-30 (11th Cir. t 2006), the Eleventh Circuit held that Rainey had not carried his burden of establishing the propriety of equitable tolling where the limitations period of § 2244(d)(1) expired while his state post-conviction motion was pending for seven months before being dismissed for failure to comply with Florida's oath requirement. The court noted that Rainey did not attempt to ascertain the status of his motion during the seven-month period, and thus he "failed to act diligently, and

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the untimeliness of his petition was due to circumstances within his control." 443 F.3d at 1330. Flowers, on the other hand, had notice that his motion was deficient before the expiration of § 2244(d)(1)'s limitations period, and yet still he failed to file a timely federal petition. See Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003) (pro se petitioner who had five days to submit a notice of appeal, but failed to do so was not entitled to equitable tolling). Flowers' assertions simply do not rise to "the rare situation where equitable tolling is demanded." Jones, 195 F.3d at 159. In short, Flowers' claims are untimely under § 2244(d), and there is no basis upon which any relevant time should be excluded by virtue of the equitable tolling doctrine. Claims 1-11 are procedurally barred Alternatively, Flowers' claims 1-3 and 5-11 (see supra at 2-3) 6 were not presented to the Delaware Supreme Court and are thus unexhausted. See Gibson v. Scheidemantel, 805 F.2d 135, 139 (3d Cir. 1986). Ordinarily, a failure to exhaust a claim results in dismissal of the habeas petition, Rose v. Lundy, 455 U.S. 509 (1982), or a stay of the federal habeas proceedings to allow the prisoner to exhaust state court remedies (Rhines v. Weber, 544 U.S. 269 (2005)). If, however, there is no available state remedy, then Flowers is excused from the exhaustion requirement with respect to these claims. See Teague v. Lane, 489 U.S. 288, 298 (1989); Castille v. Peoples, 489 U.S. 346, 351-52 (1989). Because Flowers would now be procedurally barred from raising these claims in state court by Superior Court Criminal Rule 61(i)(4) barring any ground for relief that was formerly adjudicated unless reconsideration is warranted in the interest of justice,7 exhaustion is excused. See Teague, 489 U.S. at 297-98; Castille, 489 U.S. at 351-52; Lines v. Larkin, 208 F.3d 153, 160 (3d Cir. 2000); Clark v. Pennsylvania, 892 F.2d 1142, 1146-47 (3d Claim 4 is essentially the same as Claim 15, and will be discussed at Claim 15. See, e.g., McLaughlin v. Carroll, 270 F. Supp. 2d 490, 512-13 (D. Del. 2003); Qualls v.Williams, 2004 WL 2283595 (D. Del. Sept. 29, 2004); Kennedy v. Kearney, 1996 WL 534877 (D.Del. Sept. 11, 1996).
7 6

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Cir. 1989); Lawrie v.Snyder, 9 F. Supp. 2d 428, 454 (D. Del. 1998); Dawson v. Snyder, 988 F. Supp. 783, 804 (D. Del. 1997). Although deemed exhausted, such claims are still considered to be procedurally barred. Lines, 208 F.3d at 160. Thus, because Flowers procedurally defaulted his claims in the state courts, federal habeas review is barred unless he establishes cause for his procedural default in the state courts and actual prejudice, or that a fundamental miscarriage of justice will result if the court does not review the claim. See Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Caswell v. Ryan, 953 F.2d 853, 86162 (3d Cir. 1992); McLaughlin, 270 F. Supp. 2d at 513. To demonstrate cause for a procedural default, a petitioner must show that "some objective factor external to the defense" precluded his compliance with state procedural rules. McCleskey v. Zant, 499 U.S. 467, 493 (1991); Murray v. Carrier, 477 U.S. 478, 487 (1986); Dawson, 988 F. Supp. at 805. To establish prejudice under the cause and prejudice standard, a petitioner "must show 'not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Carrier, 477 U.S. at 493-94 (quoting United States v. Frady, 456 U.S. 152, 179 (1982)); Dawson, 988 F. Supp. at 804-05. Flowers asserts the delay in the prison mail system as cause for his procedural default. Flowers apparently placed his notice of appeal from the denial of his postconviction motion in the prison mail on Sunday, January 8, 2006. D.I. 4 at 3. The notice did not reach the Delaware Supreme Court until January 17, 2006. See D.I. 4 at Exhibit E. Flowers contends that the prison mail system was an external factor that precluded his compliance with state procedural rules. See Maples v. Stegall, 340 F.3d 433, 439 (6th Cir. 2003) (finding cause for procedural default where pro se prisoner had delivered his petition to the prison for mailing five days before the

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state's deadline). Even if the prison mailroom delay is sufficient to establish cause for his procedural default in state court, Flowers cannot establish prejudice for any of his claims. Claims 1-3 ­ prosecutorial misconduct Flowers alleges prosecutorial misconduct involving the arrests of potential witnesses who were offered favorable plea agreements in exchange for testimony, failure to disclose Predeoux's plea agreement, and misleading the court to delay the trial. The trial court, having considered these claims either in Flowers' motion for a new trial or in his motion for postconviction relief, properly found that the claims were without merit. See D.I. 6 at 63-71 (order denying Flowers' motion for a new trial); Attachment to D.I. 2 (order denying Flowers' motion for postconviction relief). There is no reason for this Court to find differently. In the first instance, Flowers asserts that prosecutors and police "approached criminals from the 22nd & Lamotte Street area in Wilmington, after they had been arrested on serious charges and propositioned these men and women to make damaging statements against the petitioner." D.I. 5 at 14. Flowers states that two of these witnesses gave damaging statements and received benefits. D.I. 5 at 17. Further, Flowers claims that because he was not provided with Brady material regarding Othello Predeoux and Marvin Swanson (Swanson did not testify at trial), the petitioner was precluded from properly cross-examining Predeoux regarding his plea agreement and from calling Swanson as a defense witness. Had the State not suppressed

information that Predeoux had entered into a plea bargain and that Swanson had made a statement, Flowers contends that he could have argued to the jury that the State systematically approached people in a corrupt manner to obtain evidence against him at trial. D.I. 5 at 16. The record belies Flowers' claims. Flowers' counsel withdrew his motion for a new trial in which he had argued that Predeoux received a plea bargain that should have been disclosed at

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trial because "I am unable to support the factual allegations initially alleged." D.I. 6 at A60-61. Predeoux was cross-examined at length about his pending charges, the plea he had negotiated regarding his violation of probation and whether he expected to receive a benefit for testifying in the case. See D.I. 6 at A146-51. Further, Flowers' trial counsel was aware that Swanson had spoken to police and that he had stated that someone other than Flowers was the shooter. See D.I. 6 at 18, 19-20, 73. Flowers has failed to demonstrate how the police actions regarding potential witnesses affected his trial. The jury was at liberty to determine the credibility of the witnesses, and to consider any benefits the witnesses might be receiving in exchange for their testimony as part of that credibility determination. See United States v. Universal Rehabilitation Services (PA), Inc., 205 F.3d 657, 665 (3d Cir. 2000) (collecting cases). As noted in Hoffa v. United States, 385 U.S. 293 (1966), in the criminal justice system, it is often necessary for prosecutors to rely upon informers. 385 U.S. at 311. "[I]t has long been recognized that grants of immunity, plea agreements, and sentencing leniency are appropriate tools for use in the criminal justice system." United States v. Levenite, 277 F.3d 454, 461-62 (4th Cir. 2002). Simply because a witness received a benefit from the State, does not mean that his testimony was constitutionally inadmissible. Hoffa, 385 U.S. at 311. Given the testimony of "five eyewitnesses placing the Defendant at the scene of the murder with a weapon or identif[ying] the Defendant as the shooter" (D.I. 6 at A70), Flowers' inability to argue a systematic police approach of arresting potential witnesses was unlikely to have affected the outcome of trial. The same can be said for Flowers' assertion that the prosecutors intentionally delayed the trial. The record shows that after the jury had been selected, but not sworn, prosecutors had received a proffer from Predeoux's defense counsel the day before as to testimony that Predeoux could offer at Flowers' trial. See D.I. 6 at A169. Prosecutors had immediately notified Flowers'

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counsel when they learned of the proffer. D.I. 6 at A168-69. Because Flowers' counsel had represented Predeoux in a prior criminal matter, the prosecutors moved to have defense counsel disqualified. D.I. 6 at A168-71. Ultimately, defense counsel asked the court to either exclude the witness or grant a continuance to allow counsel to argue why he should not be disqualified. D.I. 6 at A170. Thus, there is no basis in the record for Flowers' claim that the prosecutors purposely delayed trial, and consequently Flowers cannot demonstrate prejudice. Claim 5 ­ ejection of spectators On the third day of trial, two women spectators were ejected from the courtroom by the bailiff. After their ejection, the jury was removed and the bailiff explained to the court that the women had been communicating with the defendant after having been told several times not to communicate with him. D.I. 6 at A139. See, e.g., United States v. Kobli, 172 F.2d 919, 922 (3d Cir. 1949) (spectators "must observe proper decorum and if their conduct tends in any way to interfere with the administration of justice in the courtroom they may, of course, be removed.") (collecting cases). Defense counsel conceded that Flowers had been told by the Department of Correction officers not to communicate with the people in the audience. Id. Nevertheless, defense counsel was concerned that the jury would associate the women who were ejected with his client in a damaging way. Id. at A140. Counsel specifically stated that he was not requesting a curative instruction, but would request that if another incident occurred, the jury should be removed prior to any ejection of spectators. Id. Flowers now complains that the trial judge should have sua sponte given the jury a curative instruction. D.I. 5 at 39-43. In rejecting the claim in postconviction proceedings, the Superior Court simply found that the record did not support the claim. See Order at ¶16, attached to D.I. 2.

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Under the facts of this case, Flowers cannot establish prejudice from the trial court's decision not to instruct the jury after the spectators had been ejected. Although the women had been seated behind the defendant, the jury had no way of knowing whether the women had any relationship with Flowers. Moreover, the record reveals that Flowers had been communicating with the women in direct contravention of the instructions of Department of Correction officers. D.I. 6 at A140 (Flowers "has been observed with his hand signals and verbally. Now, those two young ladies that just came in, he turned and faced them. He communicated with them verbally and that's when I approached the bailiff when she came through and asked to have them removed because he keeps turning around and we can't have it."). Any negative repercussions from the incident flow from his own disorderly conduct. Flowers cannot now expect this Court to find that his trial was unfair due to his disregard of courtroom security procedures. Claim 6 ­ cumulative errors During trial, defense counsel moved for a mistrial on three separate occasions: (1) when Adrienne Dawson, Flowers' sister, referred to Flowers' prior incarceration during her testimony; (2) when Predeoux revealed that he had previously been represented by Flowers' counsel; and (3) when the chief investigating officer, Detective Brock, testified regarding interviews with nontestifying witnesses. See D.I. 6 at A159, 190-92. Flowers contends that the cumulative effect of these errors amounts to prejudice constituting plain error infecting the entire trial. D.I. 5 at 4448. Errors that individually do not warrant habeas relief may do so when combined. Marshall v. Hendricks, 307 F.3d 36, 94 (3d Cir. 2002). "Cumulative errors are not harmless if they had a substantial and injurious effect or influence in determining the jury's verdict, which means that a habeas petitioner is not entitled to relief based on cumulative errors unless he can establish 'actual prejudice.'" Albrecht v. Horn, --F.3d --, 2006 WL 3392633, *30 (3d Cir. Nov. 21, 2006)

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(citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Flowers cannot establish actual prejudice. As noted infra, Dawson's single unsolicited reference to the fact that Flowers had been in jail was a mishap, and the trial judge gave the jury a curative instruction. See Flowers, 858 A.2d at 333. The state supreme court found no abuse of discretion in the trial court's decision to give a curative instruction rather than grant the defense motion for a mistrial. Id. Predeoux's nonresponsive retort to defense counsel's question during cross-examination that defense counsel had previously represented him also failed to affect the outcome of trial. See id. at 334-35. The state supreme court found "it highly improbable that defense counsel lost significant credibility in the eyes of the jury." Id. at 335. During the direct examination of Detective Brock, the prosecutor asked Brock how many people, other than the testifying witnesses, he had interviewed in this case. D.I. 6 at A158. Then, the prosecutor asked "And how cooperative - -" before she was interrupted by defense counsel's hearsay objection. D.I. 6 at A158-59. After a sidebar and a discussion outside the presence of the jury, the court sustained the objection. D.I. 6 at A159. Because the jury never heard the entire question (or an answer, for that matter), Flowers can hardly complain that the abortive question affected the outcome of his trial. As noted by the Delaware Supreme Court, this case "turned on the credibility of the five eyewitnesses who corroborated the basic facts about the shooting and the shooter." Flowers, 858 A.2d at 335. Given the trial court's prompt intervention in each of these three "errors," there can be little doubt that the cumulative effect did not affect the verdict. Jurors are presumed to follow the court's instructions to disregard inadmissible evidence inadvertently presented to them, unless there is an overwhelming possibility that the jury will be unable to follow the instructions

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and there is a strong likelihood that the effect of that evidence on the jury would be devastating to the defendant. See United States v. Fisher, 10 F.3d 115, 119 (3d Cir. 1993) (citing Greer v. Miller, 483 U.S. 756, 766 n. 8 (1987)). Flowers thus cannot establish actual prejudice, and this claim must be dismissed. Claim 7 ­ Confrontation Clause Flowers alleges that he was denied effective cross-examination of Ponetta Sudler, Tyshiek McDougall and Othello Predeoux due to their claimed memory loss at trial, thus violating the Confrontation Clause. The witnesses had made prior statements to the police that were admitted at trial under section 3507 of Title 11 of the Delaware Code, but they each professed to have forgotten the events of August 1, 1998 at the time of trial. The Supreme Court has long recognized that "the Confrontation Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in original); see United States ex rel Hamilton v. Ellingsworth, 692 F. Supp. 356, 358-59 (D. Del. 1988) (no confrontation problem in admission of prior statement of witness suffering from amnesia). Thus, Flowers cannot establish prejudice from the unproductive cross-examination of the witnesses at trial. Claim 8 ­ prosecutorial misconduct During the direct examination of Othello Predeoux, the prosecutor asked Predeoux if he had "any promises or agreements with regards to what would happen with your charges" when Predeoux spoke with Detective Brock in July 2002. D.I. 6 at A143. Predeoux answered no. Flowers contends that this particular question was a purposeful elicitation of false testimony on the part of the prosecutor. D.I. 5 at 56. In her closing argument, the prosecutor, while discussing

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the testimony of a hostile witness named Ronetta Sudler, remarked that "[t]here is not anybody who definitely say they saw Joe Harris shooting." D.I. 6 at A164. Once again, Flowers contends that this statement was false. D.I. 5 at 56. As a result of these two instances, Flowers argues that he was denied due process because false testimony was used to convict him. D.I. 5 at 57. Flowers claims that the prosecutors knew before trial that Predeoux had entered into a plea deal concerning both his violation of probation and other pending charges. Therefore, he argues, prosecutors were under an obligation to correct Predeoux's testimony that he did not have an agreement regarding his charges. The record is clear, however, in April 2002, Predeoux had been found to have violated his probation (D.I. 6 at A142), and that he did not enter into a plea agreement concerning his other charges until after Flowers' trial. See supra at Claims 1-3. There is simply no basis for this claim in the record. Moreover, defense counsel cross-examined Predeoux at length regarding his outstanding charges and any possible expectations he may have had of a reduced sentence in exchange for his testimony. Flowers contends that Marvin Swanson and Bruce Duncan, who had both been interviewed by police, would have testified that Joe Harris shot Smiley. See D.I. 5 at 59. The record does not support Flowers' contention that Swanson would identify Joe Harris as the shooter. See D.I. 6 at A82-87. In fact, the record shows that Swanson could not identify the shooter. See D.I. 6 at A87. Although several witnesses, including Swanson and Duncan, put Joe Harris at the scene of the shooting, no one identified Harris as the shooter ­ just as the prosecutor stated in closing argument. D.I. 6 at A164. Flowers has not established any actual prejudice, and these two claims can be dismissed as being procedurally barred.

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Claim 9 ­ Brady violation Once again, Flowers assets that prosecutors withheld Brady material, i.e., statements to state investigators made by Marvin Swanson, Bruce Duncan, Benny Wright and Charmaine Mayo. D.I. 5 at 61-68. In Brady, the Supreme Court held that "the suppression by the

prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment." Brady v. Maryland, 373 U.S. 83, 87 (1963). A new trial will be granted for a Brady violation only if the defendant can demonstrate both that the prosecution withheld exculpatory evidence, and that the evidence was material, in that the defendant did not receive a fair trial because of its absence. See Hollman v. Wilson, 158 F.3d 177, 180 (3d Cir. 1998); United States v. Pelullo, 105 F.3d 117, 122 (3d Cir. 1997). Flowers' claim, however, is purely speculative. The record reveals that defense counsel was fully aware of the existence of all four witnesses. See D.I. 6 at A72-73, 80. The record also shows that prosecutors supplied defense counsel with statement summaries and other Brady material relating to these witnesses. See, e.g., D.I. 6 at A13, A14-16, A17, A35. Flowers points to various defense requests for Brady material in support of his contention that the State failed to provide the material. See generally D.I. 6. As noted by the Superior Court, Flowers' contention that there existed additional exculpatory materials that the prosecutors failed to provide to the defense is unsupported by the record. See Order at ¶20 (attached to D.I. 2). Flowers asserts that these witnesses all made statements to police exonerating him and identifying someone else as the shooter. D.I. 5 at 66. Yet, Flowers has failed to establish that witness statements exist, or that those statements were exculpatory. Without some basis for the claim, Flowers cannot establish actual prejudice. Cf. Mayberry v. Petsock, 821 F.2d 179, 185-87 (3d Cir. 1987).

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Claim 10 ­ unreliable identifications Two witnesses, Vernon Mays and Matthew Chamblee, selected Flowers from a photographic lineup as Smiley's shooter. Flowers contends that the identifications were the result of suggestive and corruptive interview techniques. D.I. 5 at 69-75. Based on the transcript of Mays' cross-examination, Flowers asserts that Mays was exposed to information regarding the case that tainted his identification. Id. A pretrial identification by photographic array, however, will be set aside only if the photographic identification procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968); see also United States v. Stevens, 935 F.2d 1380, 1383-84 (3d Cir. 1991). "The general inquiry is whether the procedure was unnecessarily suggestive, and if so, whether its corrupting influence outweighs the reliability of the identification testimony." Burkett v. Fulcomer, 951 F.2d 1431, 1448 (3d Cir. 1991) (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977); and Neil v. Biggers, 409 U.S. 188 (1972) (factors for determining reliability of identification testimony)). Detective Brock testified regarding the circumstances surrounding Mays' statement and identification. See D.I. 6 at 106-08. Brock reported that Mays was interviewed in a small room, before being moved to a conference room to look at four photo arrays. Mays was alone in the conference room for about fifteen minutes before he identified a picture of Flowers. D.I. 6 at 107. After he selected the photograph, Mays was left in the conference room for more than an hour while police continued their investigations. Brock specifically testified that no one

suggested anything to Mays during that time period regarding which hand the shooter used to shoot Smiley. D.I. 6 at 107-08. After the identification, Mays was put back into an interview room so that the identification could be made on videotape. D.I. 6 at 108. During cross-

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examination of Mays, defense counsel also questioned Mays regarding the circumstances of his identification of Flowers. Mays testified that he was with several police officers in the

conference room before he looked at the photo arrays. D.I. 6 at 114-15. Further, Mays stated that the officers went in and out of the room while he just sat there. D.I. 6 at 115. Contrary to Flowers' allegations, Mays did not testify that the police informed him about the investigations or discussed the case with him. There is no basis in the record to support Flowers' contention that the identification was the result of suggestive or coercive police tactics. Moreover, the

circumstances of the identification process were presented to the jury and could be considered by the jury in making a credibility assessment of Mays' identification of Flowers. Chamblee also identified Flowers as the shooter. D.I. 6 at A130. During cross-

examination, defense counsel was successful in getting Chamblee to concede that he couldn't see the shooter's face very well and that he could have been mistaken. D.I. 6 at 135-36. Counsel also highlighted for the jury the fact that Brock had told Chamblee that the shooter was likely to have been someone from the neighborhood. D.I. 6 at A131. There is nothing in the record to suggest that Chamblee was coerced into identifying Flowers. Any inconsistencies between his testimony and that of Mays were resolved by the jury. There was no basis to suppress these identifications, and defense counsel certainly highlighted the weaknesses of the witnesses and their ability to properly identify the defendant. Here too, Flowers has not established actual prejudice for purposes of excusing his procedural default. Claim 11 ­ ineffective assistance of counsel Flowers claims that his trial counsel's performance was deficient because counsel: failed to hire drug and identification experts; failed to put on the planned defense; failed to object to unreliable identifications by witnesses; failed to object to the courtroom ejection of spectators;

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failed to address Flowers' flight or to request jury instructions regarding the flight; and withdrew his second motion for a new trial on the day of a scheduled hearing on the motion. Flowers' claims, however, are unavailing. To prevail on a claim of ineffective assistance of counsel, a petitioner must first demonstrate that counsel's performance at trial or on appeal fell below "an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984). In evaluating whether counsel performed reasonably, a court "must be highly deferential." Id. at 689. Therefore, a petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (quotation omitted). Second, a petitioner must illustrate that counsel's ineffective performance caused prejudice. See Strickland, 466 U.S. at 687. The Third Circuit has stated that prejudice occurs where "there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different." Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (citing Strickland, 466 U.S. at 668); see also Hill v. Lockhart, 474 U.S. 52, 58 (1985). Although not insurmountable, the Strickland standard is highly demanding and leads to a "strong presumption that the representation was professionally reasonable." Strickland, 466 U.S. at 689. "[A]ctual

ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id. at 693. See id. at 696 (court "must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors"). In turn, the petitioner must specifically allege prejudice (and substantiate the allegation). See Wells v. Petsock, 941 F.2d 253, 259-60 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885, 891-92 (3d Cir. 1987).

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A. Flowers first asserts that because counsel failed to retain a drug expert to testify regarding the effects of drug use on witnesses known to be drug users, the jury had no foundation upon which to evaluate the witnesses' testimony. D.I. 5 at 79. Defense counsel cross-examined the prosecution witnesses regarding their drug use, both historically and at the time of the shooting. See, e.g., D.I. 6 at A128. In so doing, counsel was able to elicit from Ronetta Sudler that she sometimes hallucinates and that she was usually in such a state around the time of the shooting. Id. Tyshiek McDougall also testified that she was a chronic drug user and that she probably would have said anything to the police. D.I. 6 at A154-55. Both of these witnesses had made statements to the police that were admitted at trial pursuant to § 3507 of Title 11 of the Delaware Code. See D.I. 6 at A126, A156. Defense counsel elicited from McDougall that her drug use affects everything, that she wouldn't believe herself on drugs, and that she was clearly on drugs when she gave her statement to police. D.I. 6 at A157. Because the jury heard that the witnesses were chronic drug users who hallucinated and were intoxicated at the time of both the shooting and their interviews, Flowers cannot establish that the outcome of his trial would have been different had his counsel hired an expert to discuss the effects of drugs on memory. B. Flowers next claims that he was prejudiced by his counsel's decision not to hire an identification expert. D.I. 5 at 80. As noted by Flowers, three of the five prosecution witnesses claimed memory loss at trial while "the remaining two eyewitnesses essentially recanted their previous identification of the petitioner." Id. In light of the inability of the witnesses to recall (at trial) the shooting or their statements to police about the shooting, any expert testimony regarding the stages of memory, the effects of various things on memory, and the changes to memories over time would not have been useful to the defense. The testimony showed that the witnesses all had different perceptions of the situation and had difficulty remembering the scene

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at all. All of this was readily apparent to the jury without the assistance of an expert. See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993) (expert testimony must assist the trier of fact to understand or determine a fact at issue). Flowers thus cannot establish prejudice from his attorney's reasonable decision to forego the services of an identification expert. C. According to Flowers, counsel did not pursue the defense strategy that had been planned prior to trial. D.I. 5 at 84. Flowers asserts that his counsel abandoned him in the midst of trial because he failed to put on a defense case. Flowers claims that he had several witnesses who would have testified that he was not the shooter, but that his counsel failed to call them. D.I. 5 at 88. Flowers did not submit any affidavits from these witnesses, and he admits that some of the witnesses may not have been available. See D. I. 5 at 86. The State's case relied almost exclusively on eyewitness testimony putting Flowers at the scene of the shooting with a gun in his hand. Due to the background of the prosecution witnesses, almost all of whom were drug users and had criminal records, defense counsel could effectively create credibility issues through cross-examination. It was not unreasonable for defense counsel to decide not to call for the defense witnesses who would have had similar credibility issues. By leaving the presentation of this type of witness to the State, defense counsel was able to avoid having the prosecutors discredit defense witnesses and counsel was able to argue that all of the witnesses were unreliable, without appearing disingenuous. See Strickland, 466 U.S. at 681 (counsel's strategic choices must be respected if based on professional judgment). Without any evidence that the defense witnesses were either available or credible, Flowers cannot demonstrate that his counsel's decision not to call the witnesses was professionally deficient or affected the outcome.

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D. Flowers complains about his counsel's failure to object to the admission of the out-ofcourt identifications of Flowers as the shooter by Vernon Mays and Matthew Chamblee. D.I. 5 at 90. As noted supra at Claim 10, there was no basis upon which defense counsel could have successfully argued to suppress the identifications. At trial, however, defense counsel pointed to the circumstances surrounding the identifications to demonstrate for the jury the inherent problems with witness identifications. Because defense counsel would not have succeeded with such a motion, Flowers cannot establish any prejudice from counsel's failure to move to suppress the out-of-court identifications. E. Framing his earlier argument concerning the ejection of spectators as an ineffective assistance of counsel claim (see supra at Claim 5), Flowers charges that his counsel should have objected to the ejection and requested a curative instruction. D.I. 5 at 93. The record shows that Flowers, in direct disregard of the instructions given by Department of Correction personnel, was communicating with members of the audience at trial. Because any curative instruction would have informed the jury that the spectators were linked to the defendant, defense counsel reasonably decided not to request an instruction that would link Flowers to people who were asked to leave the courtroom. See, e.g., United States v. Cartagena-Carrasquillo, 70 F.3d 706, 713 (1st Cir. 1995) ("Whether an instruction will `cure' a problem or exacerbate it by calling more attention to it than warranted is within the ken of counsel and part of litigation strategy and judgment."). Flowers cannot establish that his counsel's performance was deficient, nor can he establish prejudice. F. The State called Flowers' sister, Adrienne Dawson, to testify regarding Flowers' flight after the shooting. See D.I. 6 at A190. Dawson testified that prior to the shooting in 1998, Flowers had lived with her and that after the shooting, he had not returned. Id. The prosecutors

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properly used the evidence of Flowers' flight to show consciousness of guilt. See United States v. Pungitore, 910 F.2d 1084, 1151 (3d Cir. 1990) ("Evidence of a defendant's flight after a crime has been committed is admissible to prove his consciousness of guilt.") (collecting cases). Flowers complains that his trial counsel failed to argue in his closing remarks that Flowers' flight did not necessarily demonstrate guilt. D.I. 5 at 96-99. Flowers asserts that his counsel should have tried to "humanize" Flowers by arguing that young people often make rash decisions, such as fleeing, but that such decisions were not indicative of bad intentions. Defense counsel emphasized the unreliability of the prosecution witnesses and their questionable ability to tell the truth or remember the shooting. Because the State's case hinged on the credibility of the five eyewitnesses, defense counsel's decision to focus on discrediting those witnesses was certainly a reasonable trial strategy. See Strickland, 466 U.S. at 681. The fact that he did not succeed in that strategy does not render counsel's performance deficient. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Moreover, Flowers has not shown actual prejudice, stemming from his

counsel's failure to make this particular argument, that would excuse his procedural default. G. Flowers in turn complains that counsel failed to request a jury instruction regarding misidentification by eyewitnesses based on Simmons v. United States, 390 U.S. 377 (1968). D.I. 5 at 100. Both the prosecutors and defense counsel argued in closing regarding the credibility of the various witnesses. Given the focus throughout the trial on the various reasons why each witness's account was or was not credible, Flowers can hardly demonstrate prejudice from defense counsel's failure to request a jury instruction that reminds the jury to evaluate the credibility of the witnesses. H. Finally, Flowers complains that his counsel withdrew his second motion for a new trial. D.I. 5 at 103. As discussed supra at Claim 1, after filing the motion, defense counsel

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discovered that he was "unable to support the factual allegations initially alleged." D.I. 6 at A60. Defense counsel explained to Flowers that in order to prevail on the motion, counsel would need to rely on statements from Predeoux's attorneys. D.I. 6 at A61. Defense counsel spoke with those attorneys, neither of whom were able to provide information to support the allegations that Predeoux had been promised a reduction in charges in exchange for his testimony against Flowers. See D.I. 6 at A61. Flowers cannot establish that his counsel's refusal to proceed on a motion without any factual basis was an unreasonable exercise of his professional discretion. Thus, Flowers cannot demonstrate that counsel's performance was deficient under Strickland, and this claim offers no basis to excuse Flowers' procedural default. Claim 12 - involuntary witness statement Flowers asserts that Ronetta Sudler's videotaped statement should not have been admitted at trial because it was not voluntarily obtained. This claim was presented to the state supreme court only as a state law claim, however, and thus is not cognizable on federal habeas review. In his opening brief on direct appeal, Flowers argued that Sudler's statement should not have been admitted under § 3507 of Title 11 of the Delaware Code, because the standard for admission under that statute requires that the statement be voluntary. Flowers did not cite to any United States Supreme Court or federal circuit court cases in his brief. The State's answering brief also addressed the claim as a challenge to the admission of a statement under § 3507. The Delaware Supreme Court, in deciding the issue, discussed § 3507 and the trial court's adherence to Delaware case law regarding the procedure for establishing a foundation for admission of a statement under that section. See Flowers, 858 A.2d at 330-31. Ultimately, the state supreme court found that the trial judge had properly allowed voir dire examination of Sudler concerning the voluntariness of her statement, and the trial court had made a factual finding supported by the

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record that the statement was voluntary. Id. at 331. The claim was presented and decided as a state law claim; for Flowers to simply add the language that the admission of Sudler's out-ofcourt statement violated his federal right to a fair trial does not alter the essence of the claim that the statement was admitted in violation of § 3507. See Bright v. Snyder, 218 F. Supp. 2d 573, 578 (D. Del. 2002). Thus, this claim must be dismissed for failure to invoke the jurisdiction of this Court. Moreover, to the extent that Flowers has raised a federal claim, that claim is unavailing. Because Flowers clearly did not present the claim as a federal claim in state court, the federal claim is unexhausted. Flowers has not alleged cause for his failure to raise the federal claim in state court, and the claim can be dismissed on that basis alone. Moreover, the

miscarriage of justice does not apply because Flowers has not alleged any facts to establish his actual innocence. See, e.g., White v. Carroll, 416 F. Supp. 2d 270, 282 (D. Del. 2006). Claim 13 - prosecutorial misconduct In this claim, Flowers alleges that the prosecutor recklessly elicited from Adrienne Dawson a remark that Flowers had been in jail, and the curative instruction was insufficient to cure the prejudice. Flowers contends that the defense strategy was for Flowers not to testify because he had prior convictions which would have been revealed to the jury if he took the stand. The State called Dawson, Flowers' sister with whom he lived prior to the shooting, to testify that Flowers fled Delaware immediately after the August 1, 1998 shooting. As recounted by the Delaware Supreme Court: "The prosecutor asked Dawson how long Flowers had lived in her house prior to August 1. Dawson responded: 'when he came home from ­ I don't remember what that was ­ I don't remember the date, when he came home from jail.' Defense counsel immediately objected and moved for a mistrial." Flowers, 858 A.2d at 333 (emphasis in

original); see D.I. 6 at A190. Flowers argues that the trial court erred by giving a curative

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instruction instead of ordering a mistrial. Having presented the claim to the state supreme court on direct appeal from his conviction, Flowers has exhausted the claim. See Smith v. Digmon, 434 U.S. 332, 333-34 (1978); Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984). Flowers, however, is not entitled to relief. Under revised § 2254, a habeas petitioner is not entitled to relief unless he can establish that the decision of the state court was contrary to, or involved an objectively unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. See Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002; Lawrie v. Snyder, 9 F. Supp. 2d 428, 434 (D. Del. 1998). "A state court decision is contrary to Supreme Court precedent under § 2254(d)(1) where the state court reached a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts." Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir.

2005) (citations and internal quotations omitted). A state court decision is an unreasonable application if the court identifies the correct governing legal rule based on Supreme Court precedent but unreasonably applies it to the facts of the particular case. Id. (citations omitted). Moreover, factual determinations by state trial and appellate courts are presumed correct absent clear and convincing evidence to the contrary; a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding. See 28 U.S.C. §§ 2254(d)(2), (e)(1). See also Williams v. Taylor, 529 U.S. 362, 402-13; Affinito v. Hendricks, 366 F.3d 252, 256-57 (3d Cir. 2004); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000).

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In the first instance, the state courts made a factual determination that "the prosecutor did not intend to elicit a response that included reference to Flowers' recent jail time and, in fact, took measures to prevent any reference to it by asking Dawson to respond in terms of time." Flowers, 858 A.2d at 333. This factual determination is presumed correct absent clear and convincing evidence to the contrary. See 28 U.S.C. §§ 2254(e)(1); Rose v. Duckworth, 764 F.2d 402, 405 (7th Cir. 1985) (determination of intention is a finding of fact). Flowers has presented no evidence that the prosecutor intentionally solicited the witness to testify that her brother had been incarcerated. Moreover, the remark was not repeated and the jury did not hear anything about why Flowers had been in jail. Such a vague and fleeting remark could hardly have infected the entire trial. Claim 14 ­ prejudicial non-responsive answer by witness Flowers contends that Predeoux's non-responsive answer to a question by defense counsel revealed that defense counsel had previously represented Predeoux, thus destroying counsel's credibility with the jury rendering the entire trial unfair. D.I. 5 at 118-22. Flowers presented this claim to the state supreme court on direct appeal, thus exhausting the claim. See Digmon, 434 U.S. at 333-34; Swanger, 750 F.2d at 295. This claim is entirely without merit. Before trial, prosecutors moved to disqualify Flowers' defense counsel because defense counsel had previously represented Predeoux. See Flowers, 858 A.2d at 333. Defense counsel represented to the trial court that his client was willing to "waive any conflict of interest that exists." State's Appendix at B11 in Del. Supr. Ct. No. 264, 2003. After an office conference and briefing by the parties, the trial judge determined that defense counsel did not have a conflict of interest in representing Flowers because the cross-examination of Predeoux would not reveal information that was not already public record. Flowers, 858 A.2d at 333.

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Predeoux testified that he had given a taped statement to police in which he stated that Flowers was the man who had shot Smiley. Defense counsel conducted a cross-examination designed to impeach Predeoux's credibility. Flowers, 858 A.2d at 333-34. Defense counsel questioned Predeoux about his statement that he had vomited when he witnessed the shooting because it was upsetting. Id. at 334. Contrasting that behavior with Predeoux's prior conviction for possession of a deadly weapon by a person prohibited, defense counsel asked Predeoux if Predeoux had had two guns on his person in September 1998. Predeoux answered, "Yes, you represented me." Id. Defense counsel immediately moved for a mistrial. The trial judge determined that a mistrial was not merited and that any prejudice could be mitigated by having defense counsel elicit from Predeoux that the earlier representation had resulted in a guilty plea. Id. The state supreme court found that "defense counsel's additional questions appropriately refocused the jury on Predeoux's, and not defense counsel's, credibility." Id. Moreover, the court held that Predeoux's uninvited response did not affect the outcome of trial: "Predeoux's fleeting, volunteered, non-responsive answer did not so damage Flowers' overall defense that the extreme remedy of a mistrial was the only meaningful or practical solution to potentially unfair prejudice." Id. That finding was manifestly correct and thus claim should be dismissed. Claim 15 ­ prosecutorial misconduct In his final claim, Flowers asserts that the prosecutor's references in his opening statement to "the double deuce group, the 22nd Street regulars" and a "code