The jury convicted Flamer on all charges, id. at 1416-17, and the trial then proceeded to the penalty phase. Defense counsel called as witnesses the defendant, his mother, and his grandmother. Defense counsel introduced into evidence the reports of a psychologist and psychiatrist who had examined Flamer. Id. at 59-63, 65-67. Both reports concluded that Flamer seemed to be of low but normal intelligence, with no symptoms of psychosis or other mental illness, and would be competent to assist in his own defense and to stand trial. The psychiatrist's report diagnosed Flamer as an alcoholic, and stated that he had admitted being intoxicated at the time of the murders. After deliberating for about two hours and twenty minutes, the jury returned and imposed a penalty of death for each of the murder convictions.

In February 1983, the Delaware Supreme Court affirmed Flamer's convictions on direct appeal, but withheld decision on the death sentences pending the resolution of two death-penalty cases before the United States Supreme Court. Flamer I, 490 A.2d at 110-20. Following the denial of Flamer's certiorari petition to the United States Supreme Court, 464 U.S. 865, 104 S.Ct. 198, 78 L.Ed.2d 173 (1983), and more briefing in the Delaware Supreme Court, the Delaware Supreme Court affirmed Flamer's death sentences in September 1984. Flamer I, 490 A.2d at 120-58. Flamer again petitioned the United States Supreme Court for a writ of certiorari, but his petition was denied on October 7, 1985. 474 U.S. 865, 106 S.Ct. 185, 88 L.Ed.2d 154 (1985).

In June 1986, Flamer filed a motion for state post-conviction relief pursuant to Delaware Superior Court Criminal Rule 35(a),³ asserting various claims, including ineffective assistance of counsel and some issues that he had raised on direct appeal. This motion was denied, and Flamer appealed the denial to the Delaware Supreme Court. In February 1988, the Delaware Supreme Court issued an order consolidating Flamer's two post-conviction relief petitions and remanded to the Superior Court for a second post-conviction hearing pursuant to its newly promulgated Rule 61.⁴ Flamer v. State ("Flamer II "), No. 216, 1987, 1988 WL 235535 (Del. Feb. 19, 1988). In April 1988, Flamer filed a new petition for post-conviction relief expanding upon his earlier claims. After supplemental briefing and an evidentiary hearing, the Superior Court denied Flamer's petition in June 1989. State v. Flamer ("Flamer III "), Nos. IK79-11-0236-R1, -0237-R1, -0238-R1, and -0239-R1, 1989 WL 70893 (Del.Super.Ct. June 16, 1989). This denial was affirmed by the Delaware Supreme Court in December 1990. Flamer IV, 585 A.2d at 745.

In addition to his state post-conviction relief petitions, Flamer filed a federal habeas petition in August 1987. In July 1989, this petition was stayed because Flamer had not yet exhausted his state post-conviction remedies. Once the Delaware Supreme Court affirmed the denial of Flamer's state petition, the federal stay was lifted. In October 1991, Flamer filed his third amended petition in the district court. In June 1993, the district court denied that petition. Flamer v. Chaffinch, 827 F.Supp. 1079 (D.Del.1993). Flamer then took the appeal now before us.

II.

Several of Flamer's arguments are based on the confession that he gave shortly after his arraignment. Flamer argues that this confession should have been suppressed under the Fifth and Sixth Amendments. Because the legality of the questioning that led to this confession is central to several of Flamer's claims, we will address this question first. Our analysis is divided into two parts. First, we will address whether the police violated Flamer's rights under the Sixth Amendment. Then we will consider whether they violated his Fifth Amendment rights.

A. The Sixth Amendment Right to Counsel

As noted, Flamer asked for counsel at his arraignment. By subsequently questioning him and obtaining the confession at issue, Flamer contends, the police violated his Sixth Amendment right to counsel. Flamer advances two theories to support this argument. First, he argues that his confession should have been suppressed under Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), because he did not voluntarily waive his right to an attorney after the arraignment. Second, he asserts that the Supreme Court's decision in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), should be applied retroactively to his case and requires the suppression of his confession.

1. In Brewer, the defendant, a "deeply religious" escapee from a mental institution, 430 U.S. at 390, 392, 97 S.Ct. at 1235, 1236, was arrested on suspicion of murdering a young girl. The police transported him from Davenport to Des Moines, Iowa, where he was supposed to meet with his attorney. The police had agreed that they would not interrogate Williams en route, but while driving to Des Moines, a police officer, Detective Leaming, gave what has come to be known as the "Christian burial speech."⁵ See id. at 392, 97 S.Ct. at 1236. Addressing Williams as "Reverend," the officer said that he felt that they should locate the girl's body so that her parents, whose child had been "snatched away from them on Christmas [E]ve," could give her a Christian burial. 430 U.S. at 392-93, 97 S.Ct. at 1236. Williams eventually led the police to the girl's body. Id. at 393, 97 S.Ct. at 1236.

The Supreme Court held that the Sixth Amendment required the suppression of the evidence elicited by the "Christian burial speech." Because judicial proceedings against Williams had begun, the Court noted, he had the right to the assistance of counsel. Id. at 398, 97 S.Ct. at 1239. In order to show that Williams had waived this right, the Court held, the state was required to prove " 'an intentional relinquishment or abandonment of a known right or privilege.' " Id. at 404, 97 S.Ct. at 1242 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). The Court also stated that, in determining whether such a waiver had been made, it was necessary to "indulge in every reasonable presumption against waiver." Id. Viewing the question of waiver, not as "a question of historical fact, but one which ... requires 'application of constitutional principles to the facts as found,' " id. (citations omitted), the Court concluded that the state had not established that Williams had waived his right to counsel. The Court wrote:

Despite Williams' express and implicit assertions of his right to counsel, Detective Leaming proceeded to elicit incriminating statements from Williams. Leaming did not preface this effort by telling Williams that he had a right to the presence of a lawyer, and made no effort at all to ascertain whether Williams wished to relinquish that right. The circumstances of record in this case thus provide no reasonable basis for finding that Williams waived his right to the assistance of counsel.

The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not.

Id. at 405-06, 97 S.Ct. at 1242-43 (emphasis in original).

In this case, the Delaware Supreme Court carefully applied the legal standard set out in Brewer and concluded that Flamer had made a valid waiver of his right to counsel. Flamer I, 490 A.2d at 112-16. The court explained:

[W]e see the defendant as a twenty-five year old male who reached the eleventh grade of school, a convicted felon, and one who at the outset informed the police he knew his rights. There is no contention that he was not on numerous occasions given his constitutionally required rights as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Nor is there any contention that defendant from the moment of arrest until contact was made with him through the Public Defender's office, ever attempted to invoke any of the Miranda rights. Instead, when confronted with the physical evidence seized by the police at his home, the blood on the coat he was wearing when he was arrested, the blood under his fingernails, and the articles belonging to the victim Byard Smith taken from one of his companions at the time of arrest, defendant volunteered fictitious stories of his complicity in the crimes while at the same time denying that he was guilty of killing anyone. He first told the police he was home asleep, that Andre Deputy aroused him, and that he went to the murder scene to help Deputy take the fruits of the murder to defendant's house. Defendant next told the police that he, Johnny Christopher and Andrew Deputy, had gone into the victims' home, and that it was Johnny who did the stabbing. In the entire record of this case there appears to be no time except initially when he claimed to be home asleep, that defendant denies his participation in the robberies and murders, although throughout, including the taking of his recorded statement, he steadfastly denies actually inflicting the fatal wound upon either victim. Neither is there any evidence in the record of this case that defendant was so religiously oriented that [Corporal Porter's] speech had the effect upon this defendant as [the "Christian burial speech"] did upon the defendant in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

Flamer I, 490 A.2d at 114-15.

Reviewing the waiver question de novo, the district court reached the same conclusion, 827 F.Supp. at 1092-93, as do we. While there are factual similarities between this case and Brewer, we are convinced, based on the totality of the circumstances, that Flamer understood his right to have an attorney present before speaking to Corporal Porter and that he validly waived that right. As noted by the state supreme court, Flamer had an eleventh grade education and prior experience with the criminal justice system. Before arraignment, he had been repeatedly advised of his right to have an attorney present during questioning, but he had repeatedly decided to speak with the police without an attorney, telling a succession of different stories in an obvious attempt to further his own interests. After the arraignment but before giving the taped confession, Flamer was again advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he stated that he understood them. See Patterson v. Illinois, 487 U.S. 285, 292-95, 108 S.Ct. 2389, 2394-96, 101 L.Ed.2d 261 (1988). Moreover, while Flamer's attorneys have referred to Corporal Porter's remarks as a modified Christian burial speech, we agree with the Delaware Supreme Court and the district court that there are significant differences between the tactics employed by the police in the two cases. The police in Brewer appear to have capitalized on Williams' unusual susceptibility to a religious appeal. Williams, as noted, was a "deeply religious" man with a history of mental illness, and he was addressed by the police as "Reverend." Here, by contrast, there is nothing in the record to indicate that Flamer was especially religious or that he suffered from any mental problems comparable to Williams'. Exercising plenary review, taking into account the totality of the circumstances, and applying the legal standard set out in Brewer, we conclude that Flamer knowingly and voluntarily waived his Sixth Amendment right to counsel before he confessed.

2. We thus turn to Flamer's argument that his post-arraignment confession must be suppressed under Michigan v. Jackson. In that case, the Supreme Court held that under the Sixth Amendment, "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." 475 U.S. at 636, 106 S.Ct. at 1411. Before considering the merits of Flamer's argument, however, we must decide whether, as the state argues and the district court held, the application of Jackson to this case would violate the nonretroactivity principle of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality), and subsequent Supreme Court decisions. See, e.g., Caspari v. Bohlen, --- U.S. ----, ---- - ----, 114 S.Ct. 948, 952-53, 127 L.Ed.2d 236 (1994); Graham v. Collins, 506 U.S. 461, ----, 113 S.Ct. 892, 897-98, 122 L.Ed.2d 260 (1993); Butler v. McKellar, 494 U.S. 407, 412-14, 110 S.Ct. 1212, 1216-17, 108 L.Ed.2d 347 (1990); Saffle v. Parks, 494 U.S. 484, 487-88, 110 S.Ct. 1257, 1259-60, 108 L.Ed.2d 415 (1990); Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

The Supreme Court has explained Teague's nonretroactivity principle as follows:

The nonretroactivity principle prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final. See, e.g., Stringer v. Black, 503 U.S. 222, 234, 112 S.Ct. 1130, 1139, 117 L.Ed.2d 367 (1992). A threshold question in every habeas case, therefore, is whether the court is obligated to apply the Teague rule to the defendant's claim....

"[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S., at 301, 109 S.Ct., at 1070. In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps. First, the court must ascertain the date on which the defendant's conviction and sentence became final for Teague purposes. Second, the court must "[s]urve[y] the legal landscape as it then existed," Graham v. Collins, supra, 506 U.S. at ----, 113 S.Ct., at 898, and "determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990). Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle.

See Gilmore v. Taylor, 508 U.S. ----, ----, 113 S.Ct. 2112, 2113, 124 L.Ed.2d 306 (1993).

Caspari, --- U.S. at ----, 114 S.Ct. at 953.

The first of these exceptions applies to decisions that decriminalize " 'certain kinds of primary, private individual conduct beyond the power of the criminal-law making authority to proscribe.' " Teague, 489 U.S. at 311, 109 S.Ct. at 1075 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1171, 1179, 28 L.Ed.2d 388 (1971) (Harlan, J., concurring in the judgment)). The second exception, which applies to "watershed rules of criminal procedure," id., is generally restricted to decisions announcing "new procedures without which the likelihood of an accurate conviction is seriously diminished." Id. at 313, 109 S.Ct. at 1076.

Proceeding in accordance with the three steps outlined in Caspari, we first note that Flamer's conviction and sentence became final for Teague purposes on October 7, 1985, when the Supreme Court denied his petition for a writ of certiorari to review the decision of the Delaware Supreme Court upholding his conviction and death sentence on direct appeal. See Caspari, --- U.S. at ----, 114 S.Ct. at 953 ("A state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state court has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied."); Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 712 n. 6, 93 L.Ed.2d 649 (1987).

Advancing to the second step, we note that Jackson had not been decided on that date.⁶ We must therefore survey the pre-Jackson legal landscape and determine whether a state court would have felt compelled by existing Sixth Amendment precedent to apply the Jackson rule even before it was embraced by the Supreme Court. Addressing this question in Collins v. Zant, 892 F.2d 1502 (11th Cir.), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990), the Eleventh Circuit held that "the rule announced in Jackson undoubtedly constitutes a 'new rule'." Id. at 1511. The Eleventh Circuit explained that Jackson "imposed a new obligation on police (not to initiate an interrogation after a defendant has asserted his right to counsel under the [S]ixth [A]mendment) and established a bright-line rule excluding police-initiated statements (a result not dictated by then existing precedent)." Id. at 1512; accord Henderson v. Singletary, 968 F.2d 1070, 1073 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992). See Bannister v. Armontrout, 4 F.3d 1434, 1440 n. 7 (8th Cir.1992) (petitioner could not rely on Jackson because it was decided after his conviction became final); see also McNeil v. Wisconsin, 01 U.S. 171, 179-80, 111 S.Ct. 2204, 2209-10, 115 L.Ed.2d 158 (1991) (stating that Jackson established "a new Sixth Amendment rule of no police-initiated interrogation") (emphasis added).

Flamer argues that the decision in Jackson was "expressly foreshadowed" by Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). It is clear, however, that Moulton does not support Flamer's position in this case. Like Jackson, Moulton was not decided⁷ until after Flamer's conviction became final for retroactivity purposes. Moreover, Jackson was not "dictated" by Moulton. The holding in Moulton was quite narrow: that the Sixth Amendment right to counsel prohibits the police, after the initiation of judicial proceedings against a defendant, from monitoring a conversation in which an undercover agent elicits statements from the defendant about the pending case.⁸ This fact-specific holding did not compel the adoption of the sweeping Jackson rule, and nothing in the Jackson opinion suggests that the Supreme Court felt that it did. Indeed, the Jackson opinion did not rely heavily on Moulton and cited that case only for propositions that were quite peripheral to the Court's holding.⁹

Flamer next argues that the following court of appeals decisions dictated the Jackson rule: Felder v. McCotter, 765 F.2d 1245, 1250 (5th Cir.1985), cert. denied, 475 U.S. 1111, 106 S.Ct. 1523, 89 L.Ed.2d 921 (1986); United States v. Ledezma-Hernandez, 729 F.2d 310, 313 (5th Cir.1984); United States v. Eagle Elk, 711 F.2d 80, 83 (8th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984). We see no merit in this argument. Jackson is a new rule within the meaning of Teague only if it was not "dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301, 109 S.Ct. at 1070 (emphasis in original). A rule is not dictated by precedent merely because there is a "debate among reasonable minds" as to its applicability. Butler, 494 U.S. at 415, 110 S.Ct. at 1217 (1990). At best, the cases cited by Flamer indicate a difference of opinion regarding the test for determining, under the Sixth Amendment, whether a defendant has waived the right to the presence of counsel during interrogation.¹⁰

Flamer's final argument in support of the conclusion that Jackson did not announce a "new rule" is that the Delaware Supreme Court's own decision in Deputy v. State, 500 A.2d 581, 591-92 (1985), cert. denied, 480 U.S. 940, 107 S.Ct. 1589, 94 L.Ed.2d 778 (1987), compelled that court to adopt the Jackson rule. In Deputy, the Delaware Supreme Court excluded the confession of Flamer's codefendant, Andre Deputy, which was obtained after Deputy's arraignment. Deputy, 500 A.2d at 592. In support of its conclusion excluding Deputy's confession, the Delaware Supreme Court wrote:

In the Sixth Amendment context, once the adversarial judicial process has begun, [the] defendant is entitled to the presence of counsel during police interrogations as a matter of inherent right. Therefore, the only means by which waiver could be established, and still remain consistent with the Fifth Amendment waiver analysis, would involve some form of affirmative overt action by the defendant which indicated his willingness to talk to law enforcement officers.

Id. at 591. We see at least three major flaws in Flamer's argument that Deputy dictated the adoption of the Jackson rule.

First, it does not appear that the Delaware Supreme Court interprets its decision in Deputy as adopting a Jackson-like rule. In affirming the denial of Flamer's petition for postconviction relief, the Delaware Supreme Court decided, as a matter of state law, to adopt the Teague nonretroactivity rule for use in state postconviction proceedings. See 585 A.2d at 749. Under this rule, the Delaware Supreme Court's decision in Deputy was applicable to Flamer, since that decision was handed down before Flamer's conviction became final. Thus, if the Delaware Supreme Court had felt that its own decision in Deputy had adopted a rule like Jackson 's, the Delaware Supreme Court should have applied that rule in Flamer's case. But Deputy was not even mentioned in this context. Instead, the Delaware Supreme Court simply held that Jackson established a new rule and refused to apply that rule retroactively.

Second, we do not interpret Deputy as a foreshadowing of Jackson, but as an application of the totality-of-the-circumstances test set out in Brewer. The court in Deputy distinguished the factual circumstances of Deputy's confession from those of Flamer's confession, id. at 591-92 n. 15, in a manner that suggested it was applying a traditional Brewer analysis. Unlike Flamer, who was brought before a magistrate on the morning after the day of his arrest, Deputy was interrogated at Troop 5 on the morning of his arrest and was given a polygraph before being arraigned at 2:00 P.M. Id. Although the magistrate ordered that Deputy be committed to the Sussex County Correctional Facility at this time, he was brought back to Troop 5 and questioned for another eight hours. Deputy did not respond when he was asked whether he wished to speak with an attorney. Considering the totality of the circumstances surrounding the two confessions, the Delaware Supreme Court held that Deputy's confession had to be suppressed under Brewer, id. at 592, although it had earlier held that suppression of Flamer's confession was not required. See Flamer I, 490 A.2d at 113-115.¹¹

Flamer contends that Jackson should nevertheless be applied retroactively because it fits within the second exception to the Teague principle. We disagree. This exception is limited to " 'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle, 494 U.S. at 495, 110 S.Ct. at 1263 (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1075). As stated in Graham, this exception applies to that "small core of rules requiring 'observance of those procedures that ... are implicit in the concept of ordered liberty.' " 506 U.S. at ----, 113 S.Ct. at 903 (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1075). Like the Eleventh Circuit, we do not think that the Jackson rule fits into this category but is instead more accurately described as a prophylactic rule that provides one means of protecting a constitutional right. See Collins, 892 F.2d at 1512.

We therefore hold that Jackson may not be applied retroactively in this case and that Flamer is not entitled to relief under the Sixth Amendment.

B. The Fifth Amendment right to counsel

Flamer also argues that his confession must be suppressed under the Supreme Court's decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and other Fifth Amendment jurisprudence.¹² In Edwards, the Court held that under the Fifth Amendment, once an accused has invoked the right to have counsel present during custodial interrogation, the accused cannot be questioned further until counsel has been made available unless the accused initiates the conversation and knowingly and intelligently waives his right to have counsel present. Id. at 484-85, 101 S.Ct. at 1884-85. Although Edwards was not decided until after Flamer's trial, Flamer's direct appeal was pending at the time of the decision, and therefore Edwards is applicable to his case. Flamer makes two separate arguments for the suppression of his confession under Edwards: (1) the Edwards rule came into play when he allegedly asked for an attorney during custodial interrogation prior to his arraignment and (2) the Edwards rule became applicable when he asked for counsel at the time of his arraignment.

1. In support of the first of these arguments, Flamer maintains that he requested an attorney during custodial interrogation by asking to call his mother. The Delaware courts found, however, that Flamer did not ask for an attorney during the interrogation. On direct appeal, the Delaware Supreme Court wrote that "defendant did not request counsel at any stage of his interrogation." Flamer I, 490 A.2d at 114. In denying Flamer's petition for post-conviction relief, the Delaware Superior Court found that "[a]t no time prior to or during the taped statement did Flamer tell any police officer that he wished to have an attorney present before any further questioning." Flamer III, JA at 2626-27. In affirming the decision of the Superior Court, the Delaware Supreme Court adhered to these findings. Flamer IV, 585 A.2d at 747.

Under the federal habeas statute, this court is bound by factual determinations made by a state court of competent jurisdiction unless one of the exceptions set out in 28 U.S.C. Sec. 2254(d) applies. Flamer relies on the exception in 28 U.S.C. Sec. 2254(d)(8) that applies if a state court's factual determination is not "fairly supported by the record." Deference is owed to the factual findings of a state appellate court as well as to those of a trial court. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Pemberthy v. Beyer, 19 F.3d 857, 864 (3d Cir.1994); Hakeem v. Beyer, 990 F.2d 750, 768 (3d Cir.1993). Thus, the factual findings of the Delaware courts are binding on this court if they have fair support in the record. We conclude that they do.

Flamer testified at his suppression hearing, held before the Delaware Superior Court in a post-conviction proceeding, that on several occasions prior to his confession, he had asked permission to make a phone call. JA at 1861, 1862, 1864, 1865, 1867. However, Flamer's testimony that he asked for a lawyer during his interrogation was contradicted at the suppression hearing by several officers. See, e.g., Transcript of Suppression Hearing (Oct. 29, 1979), Testimony of Officer Chaffinch, JA at 120 ("Q: Did he [Flamer] ever ask for a lawyer? A: No. In fact, I asked him did he want to call one on a couple of occasions and he said no, indicating no."). In addition, Flamer acknowledged at the Rule 61 evidentiary hearing that he thought his Miranda rights had been read to him shortly after his arrest. JA at 2547. See also Transcript of Suppression Hearing (Oct. 31, 1979), Testimony of Officer Callaway, JA at 342 (stating that Flamer's rights had been read to him when he was arrested and again when he was first brought to Troop 5, and that on neither of these occasions did Flamer request an attorney). In light of this evidence, the state courts' findings that Flamer did not request an attorney are fairly supported by the record and are thus binding.¹³

2. Flamer also argues that he invoked his Fifth Amendment right to counsel at the arraignment, which occurred before his confession. At the arraignment, Flamer asked permission to call his mother "in order to inquire about bail and possible representation by counsel." Flamer IV, 585 A.2d at 742. The magistrate told him he was free to do so "but that he would appoint the public defender to represent him in any event." Id. Flamer and the magistrate both signed a form labeled "Application and Order Appointing Counsel." See JA at 30. The portion signed by Flamer stated that he "request[ed] appointment of counsel"; the portion signed by the magistrate stated that, "not having waived the appointment of counsel," the defendant would be represented by the public defender. Id.

Turning first to Flamer's request to call his mother "to inquire about ... possible representation," 585 A.2d at 742, we hold that this request was insufficient to trigger Edwards under the Supreme Court's decision in Davis v. United States, --- U.S. ----, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).¹⁴ In that case, the Court held that Edwards applies only if a defendant "unambiguously" requests counsel. Id. at ----, 114 S.Ct. at 2355. "[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," Edwards does not come into play. Id. Here, Flamer's request to telephone about possible representation "fail[ed] to meet the requisite level of clarity" that Davis demands. Id.

As for Flamer's contention that Edwards was triggered by his request for the appointment of counsel at the arraignment, this argument is foreclosed by McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).¹⁵ There, the defendant requested an attorney at his arraignment for an armed robbery in West Allis, Wisconsin,¹⁶ but during subsequent custodial interrogation regarding offenses that occurred in Caledonia, Wisconsin, he waived his Miranda rights without the presence of counsel and gave incriminating statements about the Caledonia offenses. The Supreme Court held that suppression of these statements was not required under either the Sixth or Fifth Amendments. The Court concluded that the Sixth Amendment and the rule adopted in Michigan v. Jackson, supra, did not apply because they are "offense specific." Id. at 175, 111 S.Ct. at 2207. Thus, the Court held, invocation of the Sixth Amendment right to counsel does not restrict police-initiated interrogation concerning other offenses. Id. at 175-78, 111 S.Ct. at 2207-09. As for the Fifth Amendment right to counsel recognized in Miranda and Edwards, the Court held that the defendant had never invoked that right. The Court held that the defendant's request for counsel at arraignment was inadequate to invoke Edwards. Rather, the Court concluded, Edwards "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction." Id. at 178, 111 S.Ct. at 2209 (emphasis in original).

Under McNeil, Flamer's request for counsel at arraignment did not constitute an invocation of his Fifth Amendment right to counsel during custodial interrogation. Pursuant to this precedent, Flamer's request cannot "reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police." 501 U.S. at 178, 111 S.Ct. at 2209 (emphasis in original).

In response to the state's reliance on McNeil, Flamer's reply brief first argues as follows:

McNeil stands only for the proposition that an accused's Sixth Amendment right to counsel does not preclude police initiated interrogations related to offenses distinct from those with which he or she is charged. This holding has absolutely no applicability in Flamer's case.

Reply Br. at 11. This brief later states:

McNeil simply stands for the proposition that an accused who has requested and been appointed an attorney at a bail hearing on specified charges has not invoked his right to have counsel present when questioned regarding other charges.

Id. at 25.

We disagree with this interpretation of McNeil, which must be based on one or both of the following propositions: (a) that McNeil addressed only the accused's Sixth Amendment right to counsel or (b) that the Fifth Amendment right to counsel is offense specific. Both of these propositions, however, are incorrect. As noted, McNeil addressed both the accused's Fifth and Sixth Amendment rights. Moreover, it is well established that the Fifth Amendment right to counsel during custodial interrogation (and the Edwards rule, which is based on this right) are not offense specific. As the Supreme Court clearly stated in McNeil, 501 U.S. at 177, 111 S.Ct. at 2208 (emphasis in original):

The Edwards rule ... is not offense specific: Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675[, 108 S.Ct. 2093, 100 L.Ed.2d 704] (1988).

See also Alston v. Redman, 34 F.3d 1237, 1243 (3d Cir.1994) ("The Edwards protection is not offense-specific. Rather, a suspect who has requested the presence of counsel cannot be questioned concerning any crime, not just the one that put him in custody."), cert. denied, --- U.S. ----, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995).

Once it is recognized that the Fifth Amendment right to counsel and the Edwards rule are not offense-specific, it becomes clear that McNeil stands for the proposition that a request for an attorney at arraignment is, in itself, insufficient to invoke the Fifth Amendment right to counsel at subsequent custodial interrogation--even if that interrogation concerns the offense on which the defendant was arraigned. In McNeil, as noted, the defendant requested counsel at his arraignment on the West Allis charge. If this request had constituted the invocation of the Miranda right to counsel with respect to future custodial interrogation concerning the West Allis offense, this request would have likewise restricted future custodial interrogation concerning any other offenses, including the Caledonia offense, because "[o]nce a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present." McNeil, 501 U.S. at 177, 111 S.Ct. at 2208 (emphasis in original). The Supreme Court held, however, that the Edwards rule did not apply to McNeil's subsequent custodial interrogation concerning the Caledonia offenses. In light of the fact that the Edwards rule is not offense-specific, this holding cannot rest on the distinction between the West Allis and Caledonia offenses. Rather, it must rest on the proposition that merely requesting an attorney at arraignment is insufficient to constitute a request for an attorney in connection with future custodial interrogation. As the Court stated, the Edwards rule applies

only when the suspect "ha[s] expressed" his wish for the particular sort of lawyerly assistance that is the subject of Miranda. Edwards, supra, at 484[, 101 S.Ct. at 1884] (emphasis added). It requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction.

McNeil, 501 U.S. at 178, 111 S.Ct. at 2209 (emphasis in original omitted; emphasis added); see also Alston, 34 F.3d at 1244-48 (Fifth Amendment right to counsel at custodial interrogation cannot be invoked anticipatorily). Consequently, we hold that Flamer's request for counsel at arraignment did not trigger Edwards.

In addition, even if Flamer's argument were not directly controlled by McNeil, we do not believe that his argument could survive Teague 's nonretroactivity principle. In answer to the respondent's reliance on Teague in the district court, Flamer's opening brief states that many of his arguments concerning this question "parallel [his] Jackson 'new rule' argument," and he cross-references the portion of his brief that contends that Jackson was not a "new rule." See Appellant's Br. at 57. We have already concluded, however, that Jackson was a "new rule," and consequently this conclusion seriously undermines Flamer's contention that his invocation of his right to counsel at arraignment prohibited any subsequent police-initiated questioning about any offense without counsel present. Prior to Jackson, no such rule was dictated by existing precedent. Indeed, we are not aware of any precedent that dictates the adoption of such a rule even today. Adoption of such a rule would extend both Jackson (by making it non-offense-specific) and Edwards (by making the invocation of the right to counsel at arraignment sufficient to trigger an accused's Fifth Amendment rights). Such an extension, like Jackson, see supra pages 722-26, and Edwards, see Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1983), would constitute a "new rule" that could not be applied retroactively to Flamer's case.¹⁷

Flamer contends that he is entitled to a new trial because he was given constitutionally ineffective assistance by the attorney who represented him in his original trial and direct appeal, Dennis Reardon. Flamer rests his argument on the following alleged errors of his attorney: (1) failure to seek suppression of the confession on Fifth and Sixth Amendment grounds; (2) failure to present a "unified" defense theory; (3) inadequate cross-examination of the medical examiner; (4) calling Flamer to testify; (5) failure to make a closing argument in the guilt phase of the trial; and (6) inadequate presentation of mitigating evidence and a cursory closing in the penalty phase of the trial.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-part test for judging ineffective assistance of counsel claims. First, the defendant must show that counsel's performance was deficient. This requires showing that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064. After explaining that this showing requires proof that "counsel's representation fell below an objective standard of reasonableness.... under prevailing professional norms," id. at 688, 104 S.Ct. at 2064, the Court admonished:

Judicial scrutiny of counsel's performance must be highly deferential ..., [because] [i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.

Id. at 689, 104 S.Ct. at 2065.

Second, the defendant must show that counsel's ineffectiveness was prejudicial. Id. at 692, 104 S.Ct. at 2067. In Strickland, the Court wrote that "when a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068. The Court added that "when a defendant challenges a death sentence ..., the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. More recently, in Lockhart v. Fretwell, 506 U.S. 364, ----, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993), the Court clarified the meaning of "prejudice" under the Strickland test, explaining:

Under our decisions, a criminal defendant alleging prejudice must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." ... Thus, an analysis focussing solely on the mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.

Id. (citation and footnote omitted). Applying these standards, we will address each of the errors alleged by Flamer.

A. Admission of Flamer's confession

Flamer alleges that his attorney rendered constitutionally deficient assistance because he failed to investigate the circumstances of Flamer's confession and failed to move to suppress the confession before trial. As we discussed above, however, admission of the confession did not violate Flamer's rights under the Fifth or Sixth Amendment and, in light of this conclusion, Flamer's ineffective assistance of counsel argument must fail.

First, it seems clear that Flamer's trial attorney did not render constitutionally deficient assistance by failing to seek relief--suppression of the confession--that was not warranted under the law as it existed before Flamer's conviction became final. Second, Flamer was not prejudiced by counsel's performance because he would not have been entitled to suppression of the confession even if that relief had been sought. The possibility that the trial judge might have erroneously ruled in Flamer's favor had a motion to suppress been made--and there is nothing to suggest that the judge would have made such an error--does not establish prejudice under Strickland. "A defendant has no entitlement to the luck of a lawless decisionmaker." Strickland, 466 U.S. at 695, 104 S.Ct. at 2068. As the Court squarely held in Fretwell, 506 U.S. at ---- - ----, 113 S.Ct. at 842-45, a finding of prejudice under Strickland cannot be predicated on the possibility that the defendant might have benefitted from an erroneous decision in his or her favor.

B. Failure to pursue a "unified" theory of defense

Flamer claims that Reardon was constitutionally ineffective because he failed to develop or pursue a theory of the case that was uniform throughout the guilt and penalty phases of the trial. In response to this argument, the Supreme Court of Delaware wrote:

We adopt the finding of the Superior Court which concluded that Flamer's claim is contradicted by the evidence. Reardon's strategy was to raise doubt in the State's case against Flamer by asserting that Deputy, rather than Flamer, was responsible for the homicides.... Reardon's performance was within the wide range of reasonable professional assistance.

585 A.2d at 755-56. The district court agreed, stating:

On the record presented, the Court concludes that a unified defense was presented and while trial counsel may not have been the best advocate, his performance was within the standards required by Strickland. Further, as found by the state court, the evidence against Flamer even absent his confession was so overwhelming as to prohibit any conclusion of prejudice on collateral review.

827 F.Supp. at 1104.

Whether Reardon formulated a "unified" theory is a question of fact, and we are therefore bound by the findings of the state courts, unless one of the exceptions set out in 28 U.S.C. Sec. 2254(d) is met. Flamer seems to suggest that the exception in 28 U.S.C. Sec. 2254(d)(8) applies, because the state courts' findings are not fairly supported by the record, but we find it unnecessary to reach this question.¹⁸ Even if Reardon never formulated a "unified" theory, that in itself would not constitute ineffective assistance of counsel.

It seems quite obvious that a defense attorney's performance need not be based on some grand overarching theory in order to meet constitutional requirements. "There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. Perhaps the single most commonly employed defense trial strategy is to eschew any single pre-planned theory and to put the prosecution to its proof and exploit any weakness that became evident as the trial unfolds.¹⁹