After a long history of domestic violence, Weeks broke into the
Wilmington apartment of his estranged wife, Gwendolyn Weeks, and
shot her twice in the head while she pleaded with a 911 operator for
An accomplice, Arthur Govan, shot and killed her boyfriend and co-worker,
Craig Williams. Weeks pled guilty and was sentenced to death. The
jury recommended death for Govan, but the Judge sentenced him to
life without parole.
Dwayne Weeks was sentenced to die for the April
10, 1992 murder of his estranged wife, Gwendolyn Weeks, 27, and her
friend and co-worker Craig Williams, 33, in Wilmington, Delaware.
Gwendolyn had left Dwayne after a lengthy
documented history of domestic violence. Gwendolyn was shot twice in
the head and Craig was shot three times by Weeks accomplice Arthur
Govan as he called 911 on the phone.
Weeks stole Gwendolyn's purse to make it appear
as though the murder had been part of a robbery. The jury
recommended a death sentence for Govan also, but the judge sentenced
him to two life sentences.
Weeks was arrested leaving his residence with his
girlfriend who originally told police that Weeks was with her all
day but later admitted that he had been out for a while.
11/15/00 - A panel of federal appeals court
judges in Philadelphia has ordered the execution of Dwayne Weeks put
on hold so the U.S. Supreme Court can decide whether it will take up
an appeal filed by defense attorneys.
The stay is being challenged
by state prosecutors, who have asked the U.S. Supreme Court to
overturn the order immediately so that Weeks' execution, scheduled
for Friday morning, can go forward.
Weeks' attorneys argued that his original defense
lawyer failed to tell him about an important weakness in the
prosecution's case. Before Weeks pleaded guilty in 1993, his lawyer,
Jack Willard, should have told him that damaging statements made by
his co-defendant, Arthur Govan, could not be used in a trial against
Weeks, appeals lawyer Adam Balick said.
That argument has been
rejected by Delaware's Supreme Court and the U.S. Third Circuit
Court of Appeals. Weeks also has challenged the constitutionality of
Delaware's death-penalty statute. His lawyers filed an appeal in the
Third Circuit arguing that a recent U.S. Supreme Court decision
voids Delaware's law.
The U.S. Supreme Court ruled that when
prosecutors argue that an aggravating factor in a crime makes the
defendant eligible for a sentence stiffer than the legal maximum,
only a jury may decide if the factor exists, Weeks' defense lawyer,
Joe Bernstein, said. Under Delaware law, the jury recommends whether
a defendant should receive the death penalty and a judge makes the
In 1993, Weeks pleaded guilty to the 1992
slayings of his estranged wife, Gwendolyn Weeks, and her friend
Craig Williams. A jury was empaneled for Weeks' sentencing and it
voted 10-2 to recommend the death penalty. Judge John E. Babiarz
ordered Weeks put to death, citing his previous criminal record and
the fact that he masterminded the attack.
A jury found Govan guilty
of murder and recommended that he be executed, but Babiarz sentenced
him to life in prison, citing his limited mental capacity and his
compliant personality. - 11/16/00 - Stay was lifted
The Review: University of
Dwayne Weeks executed by state - By Yvonne Thomas
and Kevin Barrett
SMYRNA, Del. - Dwayne Weeks died 1230 a.m. Friday
from lethal injection in the Delaware Correctional Center. Weeks was
convicted of murdering his estranged wife Gwendolyn Weeks and her
boyfriend Craig Williams in 1992.
Before midnight on Friday, about 100 protesters
gathered outside the prison gates, praying, waving signs and ringing
bells to show they disagreed with capital punishment. "It think it
is important that each time we kill in the name of justice, we kill
in the name of all the citizens in our state," said Kevin O'Connell
of Delaware Citizens Opposed to the Death Penalty. "Our presence
shows a number of citizens don't believe in what's going to happen
Meanwhile, inside the prison walls, print and
broadcast media, prison officials and other witnesses gathered in
Building 26, recently built by the Delaware Correctional Center for
the sole purpose of housing executions. Weeks' death was the first
to take place in the building.
Witnesses peered through glass panes
separating them from the white-clad body on the gurney. They waited
for Dwayne Weeks to die.
Rena Mack stood among the witnesses. Mack, the
sister of Gwendolyn Weeks, watched as her sister's killer spoke his
final words. Weeks glanced at the crowd through the windows on his
left and right.
Then he fixed his eyes on the ceiling. "Over eight
years ago, I asked the Lord into my life and make me a new creature
in here," he said. "I say to all who hear my voice: I hope and pray
that you, too, ask the Lord to come into your heart and that you are
Moments after Weeks made his statement, he gasped
audibly. Ninety-two seconds later, his diaphragm stilled and his
eyes narrowed. Two minutes and 32 seconds later, the curtains were
pulled and Dwayne Weeks was pronounced dead. Outside, the protesters,
who had not yet received word of Weeks' death, continued with their
demonstrations for another half an hour.
Around 12:45 a.m., a representative from the
Delaware Department of Corrections arrived to inform the crowd that
Weeks had been put to death. The protesters remained outside the
prison. Standing in the rain, the crowd sang hymns of hope and
mourning for the life that had ended during their vigil.
Weeks was the 11th person executed in Delaware
since 1992, when convicted serial killer Steven Pennell received
In 1986, the General Assembly passed a statute
making lethal injection the only legal method of capital punishment.
Before Pennell, no one had received the death penalty in the state
of Delaware since 1946.
Weeks received the death penalty for breaking
into his wife's Wilmington apartment and fatally shooting her and
Williams through the head while she made a 911 call. Weeks'
attorneys had appealed his sentence to the 3rd U.S. Circuit Court of
Appeals in Philadelphia.
They claimed Weeks had ineffective
assistance of counsel. He claimed he pleaded guilty believing he
would receive a lighter sentence. However, he said, his lawyers had
failed to inform him that he could still receive the death penalty.
After considering the aggravating circumstances
of the crime, the jury recommended and the judge sentenced Weeks to
receive the death penalty. Weeks' lawyers also appealed because of a
recent U.S. Supreme Court ruling that the jury must unanimously vote
to seek death in a capital case.
In Delaware, the decision for
capital punishment does not have to be unanimous. In a statement to
the media after the execution, Mack said she felt a sense of closure.
"This has been a long eight years for my family," she said. "A lot
of unnecessary pain."
A man who shot his estranged wife and her
boyfriend in the head while she pleaded with a 911 operator for help
was executed by injection.
Dwayne Weeks, 37, was pronounced dead early
Friday, hours after the Supreme Court lifted a stay of execution
issued by the 3rd U.S. Circuit Court of Appeals in Philadelphia.
Strapped to the gurney just before his execution, Weeks said, "Over
eight years ago, I asked the Lord to come into my life and make me a
new creation in here. I say to all who hear my voice: I hope and
pray that you, too, ask the Lord to come into your heart."
On April 10, 1992, Weeks and Arthur Govan, of
Chester, Pa., broke into the Wilmington apartment of Weeks'
estranged wife. Gwendolyn Weeks was on the phone with a 911 operator
when she died instantly from two bullets fired into her head by her
Her boyfriend and co-worker, Craig Williams, was shot three
times in the head, twice by Govan and once by Weeks. Prosecutors
said the final shot was fatal.
Weeks was picked up by police within an hour of
the shootings. Govan surrendered and told police that Weeks was
angry with his wife, and had offered Govan money to kill her. Govan,
who worked at Weeks' family's construction firm, is serving a life
sentence without parole in the Delaware Correctional Center, where
Weeks was executed.
Prosecutors described the Weeks marriage as
troubled, with Dwayne Weeks beating his wife, taking drugs and
running afoul of the law. Weeks pleaded guilty at his trial over the
objection of his then-lawyer. Rena Mack, whose sister was killed by
Weeks, witnessed the execution. "This has been a long eight years
for my family, a lot of unnecessary pain. But tonight brings a
certain sense of closure," she said. He was the 11th inmate put to
death in Delaware since 1992.
Rick Halperin Death Penalty
Nov. 17, 2000
Dwayne L. Weeks was put to death early today at
the Delaware Correctional Center near Smyrna for the 1992 murders of
his estranged wife and a male friend. According to Department of
Correction spokesman Jim Hutchison, Weeks was pronounced dead by
lethal injection at 12:10 a.m.
The execution followed a frantic series of last-minute
appeals launched on behalf of the condemned man by his defense team.
The final effort failed at about 7 p.m. Thursday when the U.S.
Supreme Court declined to act on an application from Weeks that his
death sentence was unconstitutional, said Todd W. Hallidy, a
spokesman for the state Department of Justice. At the same time, the
high court lifted a stay of execution granted Wednesday by the
federal Third Circuit Court of Appeals in Philadelphia.
Although there were also appeals from death
penalty opponents to Gov. Thomas R. Carper, the governor did not
intercede after the state Board of Pardons voted last week against
recommending a commutation to life in prison. Weeks died after being
strapped to a gurney and wheeled into DCC's new execution chamber.
An intravenous bag and tubing was inserted into his arm and the flow
of lethal substances began, administered by a DOC executioner in an
Witnesses for the victims and the condemned man's
family observed through windows from an opposite room, separated by
a stub wall. Representatives of the media, as well as 10 official
witnesses selected by DOC, were also present.
According to DOC spokeswoman Elizabeth S. Welch,
the official witnesses were Howard Wilson, representing the Violent
Crimes Compensation Board; Delaware State Police Sgt. John R. Evans,
Smyrna Police Chief Richard Baldwin, Martin W. Johnson III of the
Delaware Police Chiefs Council, and deputy attorneys general Marsha
Epstein and Cynthia Kelsey. 4 state lawmakers rounded out the
official witness list; Sen. James T. Vaughn Sr., D-Smyrna; Rep.
Bruce C. Ennis, D-Smyrna; Rep. George R. "Bobby" Quillen, R-Harrington;
and Clifford G. "Biff" Lee, R-Laurel. Alternate witnesses, Mrs.
Welch said, were DOC staffers Joyce A. Talley and Linda A. Riddagh.
In his final 24 hours, Weeks spent his time
sleeping, eating, watching television, reading and visiting with
members of his family, Ms. Welch said.
Weeks pleaded guilty in 1993 to 1st-degree murder
in the deaths of Gwendolyn Weeks, 27, and Craig Williams, 33, a
friend who was with Mrs. Weeks in her Bear apartment at the time.
Police said Weeks and another man, Arthur Govan,
broke down the door to the residence as Mrs. Weeks was placing a
desperate 911 call for help. Mr. Williams and Mrs. Weeks were each
shot in the head as they huddled together on the living room floor.
Police said Mrs. Weeks was shot twice in the head.
Mr. Williams was
shot 3 times in the head, as well as in his arm and chest. The arm
wound, authorities said, came as he raised his arm in an attempt to
Govan was convicted of 1st-degree murder in a
jury trial and sentenced to life in prison without parole.
Prosecutors said Weeks masterminded the killings, roped Govan into
the scheme and even offered to pay him for being an accomplice.
Weeks becomes the 1st condemned inmate to be put
to death this year in Delaware and the 11th overall since the state
resumed capital punishment in 1992. Weeks becomes the 79th condemned
inmate to be put to death this year in the USA and the 677th overall
since America resumed executions on January 17, 1977.
(sources: Newszap & Rick Halperin)
By Dennis Wilson - The Collegian Online
"Whatever the part played by feelings of humanity
for the condemned in the abandonment of the liturgy of public
executions, there was, in any case, on the part of the state power,
a political fear of the effects of these ambiguous rituals." —
A cold and empty phone booth stood at the edge of
an open field of dead weeds and heavy night, across the road from a
closed mechanic's shop. We were lost. We imagined for a moment
walking across the vacant street, picking up the hard plastic
receiver, dialing 911. There was a murder about to happen, we would
tell the emergency operator, a man was about to be killed, we would
tell her, our breath short and smoky in the leaning booth.
We laughed, imagining it: the red and blue strobe
lights slicing through the night, fast and determined police cars
making frantic turns, the looks of stupor and confusion when the
policemen found themselves standing outside of the Delaware
Department of Corrections as the cold gathered and it began to rain.
Standing there, unsure and feeling cheated out of an actual murder.
After driving past a few times, trying to look as
nonchalant as it was possible to look in our dark car and our
college skins, we pulled up to one of the roadblocks that had been
set up around the prison. We approached a policeman holding a radio
and rolled our window down as directed. The November air rushed in
against our artificial heat, and the policeman asked us what our
"We're here to protest tonight's execution," our
driver said. We saw no point in being vague about these things. "Hold
on," the young policeman said, and stepped away from the car to
speak into his radio. In front of us, in the rain, another policemen
walked past with a large black dog on a short leash.
The rain, and the night, and our destination;
every movement seemed slow, submarine. It was about a quarter past
ten. I imagined roadblocks like this one all around the prison,
flashing lights echoing out away from the approaching moment,
compact men with close-shaved heads waiting in the rain, asking
questions, redirecting traffic.
Over $25,000 would be spent on overtime pay alone,
and it wasn't to prevent the prisoner from escaping; it was simply
the cost of making one man's death as shielded and invisible to the
public as possible, a part of the ritual and circumstance that was
summoned up to preserve our current explanation of justice.
We pulled up to a second officer, standing by the
side of the road in a reflective yellow raincoat. We rolled down our
window again. The policeman leaned over. "For or against?" he asked.
In the car, there was momentary confusion. And then we understood,
and laughed uneasily. "Oh," our driver replied, "we're against the
Later, we would laugh about this. What if we had
said "both"? Or what if two of us had said "for," and two "against"?
It was one of those things we wished we had thought of at the time,
"Drive up here and park your car on the right,"
the officer directed. Having done this, we gathered our jackets and
stepped out of the car. We were approached by three or four other
policemen. We were given a few instructions: once we left our car,
we could not return unless it was to leave the premises.
If we wanted to protest against the execution of
Dwayne Weeks, we had to stand in the designated protest area — there
was a separate area for those who approved of the death penalty on
the other side of the road. We were not to approach that area, or
even cross to the other side of the road. Again, once we entered the
protest area, we could not step outside of it unless it was to leave.
This having been said, we walked to the protest
area under the gaze of the policemen. The area in question was about
200 square feet, demarcated by a chest-high orange fence strung with
POLICE LINE — DO NOT CROSS tape. The entirety of the muddy square
was grossly illuminated by a set of floodlights that poured out
white light in slashes across the freezing rain.
The whole of it was patrolled periodically by a
police officer with a German Shepherd. We continued to do what we
had been doing all night — we half-joked about it. Hey, we said,
they're policemen. Maybe this is the only way they know to go about
We were the first ones to arrive, and for a very
long time we stood out in the middle of our field, alone under the
rain, removed from the view of even a passing motorist. We huddled
together with our backs turned to the floodlights, away from the
prison complex. We thought about waiting in our car, but then we
remembered the rules.
We were approached by local television anchors
and journalists who seemed to emerge from the night like slow trains.
Hooded men hoisted their unwieldy cameras and bathed us in more
artificial light as a woman stood in front of us, asking us
questions about our motivations, our reasoning, speaking in clipped
tones to the perpetually silent cameramen.
Students from college newspapers asked us similar
questions. One man asked us how we could sanction the activities of
a heinous man such as Dwayne Weeks, who had admitted to killing two
people in a fit of calculated anger. They wanted short, direct
answers to their weighted, impossible questions.
They wanted to get
out of the rain. We gave them their answers, and they left as they
had come, leaving us still huddled in our oversized pen. Not long
after they left, others like us began to arrive.
At about 12:20 a.m., a non-descript blue car
drove across the empty field and pulled up to the protest area. By
that time, about 80 other people had assembled to show their
disapproval of the death penalty: church congregations, Amnesty
International representatives, members of the Delaware State Green
Party, and others.
The rain had abated, and now came down in cold,
drifting drizzles, highlighted like hollow fragments of crystal in
the floodlights. For the past twenty minutes, a large bell supplied
by a local order of Franciscan monks had been tolling, and all else
had been silence and spotted flames from the white candles supplied
by Amnesty. Across the road, the area for pro-death penalty
advocates was empty.
As the car came to a full stop, a man emerged
from the passenger side. Those few reporters that were left crowded
around him as he spoke from the confines of his business suit, which
looked strangely out of place. He stated simply that at 12:16 a.m.,
the state of Delaware had executed Dwayne Weeks on two charges of
first degree murder. Having said this, he stepped back into the car,
which promptly drove back across the field in the direction of the
There was a momentary silence, until a male voice
from somewhere in the crowd started to sing 'We Shall Overcome.'
Other voices picked it up, and the song ran its usual course. After
the song had finished, a man from a local anti-death penalty
organization said a few words about the ongoing struggle.
this, we walked with the others out of the demarcated area and back
to our cars, having been unseen by anyone expect for the police, a
handful of reporters, and ourselves. Our hands were cold, and
difficult to move.
United States Court of Appeals
For the Third
DWAYNE WEEKS, APPELLANT
ROBERT SNYDER, WARDEN; ATTORNEY GENERAL OF THE
STATE OF DELAWARE
January 26, 2000
On Appeal from the United
States District Court for the District of Delaware (D.C. Civ. No.
96-cv-00622) District Judge: Hon. Sue L. Robinson
McKEE and Rendell, Circuit Judges
OPINION OF THE COURT
This is an appeal
from the decision of the United States District
Court for the District of Delaware denying the
petition of Dwayne Weeks for a writ of habeas
corpus. Weeks, who pled guilty to the first degree
murder of his wife, Gwendolyn Weeks, and her friend,
Craig Williams, was sentenced to death. His
subsequent appeals and post-conviction proceedings
have been unsuccessful. He raises one narrow issue
before us: whether his trial attorney afforded him
constitutionally ineffective assistance of counsel
in connection with his guilty plea.
Because of the
nature of the proceeding, we will review the facts
and procedural background in detail before turning
to the legal analysis.
A. The Murders
of Gwendolyn Weeks and Craig Williams
At 8:36 p.m. on
April 10, 1992, the 911 center of the New Castle
County Police received a call from Gwendolyn Weeks
who requested that police come to her apartment
immediately. She told the 911 operator that someone
was trying to get into her apartment, and that she
believed it was her estranged husband Darryl Weeks.
Gwendolyn Weeks explained that she lived in a high-security
apartment complex where all visitors were announced
by the security guards and that she had not
authorized any visitors.
The 911 tapes then
captured the grim events. Approximately four minutes
after calling the 911 operator, Gwendolyn Weeks
became alarmed and frightened, crying out "He's in
here. He has a gun. A gun." Several gunshots and
screams were heard over the open line and the
operator sped the police to the caller's apartment,
but they arrived too late to prevent the murders.
police officers found evidence of forced entry and
the bodies of Gwendolyn Weeks and Craig Williams
lying face down in the living room in a pool of
blood. The police later determined that both
Gwendolyn Weeks and Williams were killed while they
huddled on the floor of her apartment. Gwendolyn
Weeks was shot twice in the head. Williams sustained
defensive gunshot wounds to his right hand and upper
extremity, two wounds to his face, and a fatal wound
to his head. Both victims died virtually
B. The Case Against
investigation of the murders focused immediately on
Dwayne Weeks, the husband of Gwendolyn Weeks since
1983. The police discovered that during their
marriage, Dwayne Weeks "subjected Gwendolyn to
possessiveness, irresponsible behavior, and abuse."
Weeks v. State of Delaware, 653 A.2d 266, 268 (Del.
1995) ("Weeks I").
In September 1991,
Gwendolyn Weeks left her husband and moved into a
high-security apartment complex specifically
selected to protect her from her abusive husband.
After she separated from her husband and moved into
her own apartment, she contacted an attorney to
discuss possible divorce proceedings.
Soon after the
murders a police broadcast listed Weeks as a suspect.
That same evening, a police officer stopped a
vehicle leaving Dwayne Weeks' residence with Weeks,
his girlfriend Tammy Robinson, and her daughter.
Weeks was arrested and both Weeks and Robinson were
transported to police headquarters.
three statements to the police that night. Initially,
she told the police that Weeks had been with her the
entire day. She later told the police that Weeks had
returned home at around 9 o'clock that evening and
that she had seen a gun in a brown case on the
kitchen table while she was at Weeks' house.
Eventually, she confessed that Weeks said he was out
with his friend Arthur Govan and told her to lie if
asked about his whereabouts that evening.
Late that evening,
Govan learned that Weeks and Robinson had been taken
into custody and that the police wanted to talk with
him in connection with the murders. Govan decided to
go to the police and tell his side of the story.
The next day,
after being read his Miranda warnings, Govan
confessed that he was present during the murders but
claimed that Weeks was the only shooter. Govan
explained to the officers that after Weeks had
received divorce papers earlier that week, Weeks
called him and tried to hire him to kill his wife.
Govan said he refused Weeks' offer but that he
accompanied Weeks to his wife's apartment and was
present during the murders.
that after the murders, Weeks took his wife's
pocketbook and the two men drove to a junk yard
owned by Weeks' father to hide the gun and the
pocketbook. Weeks then drove Govan to the train
station and returned to his home to pick up Robinson
and her daughter. Govan repeated these statements to
the police two days later when the police asked more
specific questions relating to the number of weapons
and bullets used to murder Gwendolyn Weeks and
obtained a search warrant. When they searched Weeks'
home they found a gun box for a .38 caliber pistol
on a bookshelf in Weeks' living room. The serial
number on the gun box matched one of the murder
weapons recovered later at his father's junk yard.
determined that two guns were fired in Gwendolyn
Weeks' apartment the night she and Williams were
murdered: a .38 caliber gun with copper jacketed
slugs and a .32 caliber gun using lead bullets. Two
weapons were subsequently recovered from the junk
yard owned by Weeks' father: a .38 caliber handgun
and a .32 caliber handgun. The forensic evidence
revealed that the .38 caliber gun was used to shoot
Gwendolyn Weeks and fired one shot into the head of
Williams. The .32 caliber gun was shot six times,
twice into the floor and four times into Williams.
In addition to the
two weapons, the investigators recovered from the
junk yard a partially used box of .38 caliber copper
jacketed bullets, a make-up kit, a purse, a wallet,
a checkbook, an address book, and various cards and
papers. Gwendolyn Weeks' name appeared on the
address book and the checkbook.
evidence that two guns were used in the murders, the
police arrested Govan who, after signing a waiver of
rights form, confessed to shooting Williams. Weeks
and Govan were jointly indicted in Delaware for,
inter alia, two counts of first degree murder for
the deaths of Gwendolyn Weeks and Williams. The
criminal case against both Weeks and Govan was
listed before the Delaware Superior Court, which is
the state trial court. Judge John E. Babiarz
presided throughout. The court granted the State's
motion to sever the trials of the defendants and to
schedule Weeks' trial after Govan's.
proceeded before a jury. Despite his attempts to
suppress his three statements to the police, the
court admitted Govan's two earlier statements as
well as his confession. The jury convicted Govan on
all counts of the indictment. The jury in the
penalty hearing decided that the aggravating
circumstances outweighed the mitigating
circumstances, thereby recommending that the judge
sentence Govan to death. The trial judge reserved
making a decision so that he could sentence Govan
and Weeks together.
C. June 15, 1993
At about 4 p.m. on
June 15, 1993, attorneys for the State, Weeks, and
Govan met with the trial judge to discuss a
potential plea of guilty by Weeks. Counsel for Weeks,
John Willard, was an experienced criminal defense
lawyer of nineteen years who had recently tried two
capital murder cases. He was also a friend of the
Weeks family. Willard informed the judge that over
his strenuous objections Weeks was intent on
pleading guilty to the crimes, even though the State
persisted on pressing for the death penalty.
MR. WILLARD: After
meeting with the State yesterday, I discussed it
again with my client and with his parents. The
parents were immediately of the opinion that it was
in his best interest to plead and face a jury,
having admitted it rather than trying it.
I spoke to him
about it last night and he thought he wanted to do
that too. He said he wanted to have a chance to talk
to his parents last night. He talked to them and
they advised me this morning he wanted to plead, and
I just left him and that's what he wants to do, Your
Honor. I'm physically ill about it. It just-- I'm a
trial man and I thought we were going to try it, and
that's what he wants to do. I'm not terribly
surprised, because from the beginning he indicated
that he might want to do this, and I'm convinced
that he's absolutely competent in every way.
He is an extremely
deeply religious person, and that's been a big part
of it. We talked about that yesterday. He made me
stand there and hold his hand while he prayed about
it, and this is what he wants to do, and I've
discussed every facet that I can imagine about it. I
discussed with him the State, Miss Epstein,
graciously gave me virtually everything that she was
going to come at him with at the penalty phase, and
she gave me more today and I discussed that with him.
He fully understands that the State intends to
aggressively seek the death penalty, despite his
plea, just as they would have if he went through
I discussed with
him the possible evidence we can offer in mitigation,
the witnesses, what they would possibly testify to,
and he knows what he's got for that phase.
App. at 8-10
(Office Conference Transcript of June 15, 1993).
scheduling matters regarding the selection of a jury,
Judge Babiarz advised counsel that if Weeks chose to
plead guilty, he should do so the next day. The
judge explained that he thought it would be in Weeks'
best interest if he pled guilty before jury
selection since the judge would be able to tell the
jury that Weeks had pled guilty instead of first
reading the full charge against him. The judge also
stated that "[i]f Weeks changes his mind and backs
out, then we go ahead and select the jury on guilt
or innocence." App. at 12.
The judge then
turned to ascertain why Govan's attorney was present.
Govan's attorney first requested the State not to
seek the death penalty for Govan and to agree not to
seek to admit any testimony to be given by Govan at
Weeks' trial in Govan's sentencing proceeding. The
State declined. Govan's attorney then advised the
State that Govan would assert his Fifth Amendment
privilege if called to testify at Weeks' trial. At
this point, Willard objected:MR. WILLARD: Your
Honor, I don't mean to split hairs here, but in my
last capital case there was some effort to call some
people and the Court ruled if we knew ahead of time
they were going to take the Fifth, we couldn't call
them, or attempt to call them, and I don't know if
he's going to testify or not.
THE COURT: If he
agrees to testify voluntarily, he will testify. If
he's going to assert the Fifth Amendment, he will
not testify unless the State persuades me that
privilege has been eliminated by his conviction, and
I won't allow the State to call him as a witness to
the stand to simply have him assert his Fifth
If I rule he
waived it, then I'll put him on the stand, and how I
force a person in that position to testify with the
threat of contempt, I don't know, but that's the
situation. I'm not going to let him go through a
show for the jury. If he maintains that position, I
simply will have to hear legal argument on whether
the State can call him and whether I can take any
action to compel him to testify or what. That's an
open issue, as Miss Epstein indicated on the record.
App. at 17 (Office
Conference Transcript of June 15, 1993).
The trial judge
then summarized his view by stating:
[A]s far as I'm
concerned, as of now, Govan is not going to testify,
and if the State plans to call him, they either have
to supply me with a document that says that he will
testify voluntarily, or present argument as to how I
could compel him to testify.
App. at 18 (Office
Conference Transcript of June 15).
D. June 16, 1993
The next morning,
Weeks and his counsel appeared in court to enter his
guilty plea. At the beginning of the plea hearing,
Willard informed the judge that a doctor had briefly
examined his client and found him competent to stand
trial and to assist at trial. Willard then advised
the court that the State had agreed to drop all
other charges if Weeks pled guilty to murder in the
first degree and felony murder but that the plea
would not affect the State's right to aggressively
seek the death penalty. Willard then stated:
Because of my
relationship with his family, Your Honor, I wanted
them to know the latest events of exactly what was
happening. They considered what I told them. They
have their own ideas about the merits of that plea.
They advised me to speak to my client and not to
convey their thoughts, as they wanted this to be his
I met with my
client two nights ago, Your Honor. I relayed to him
the State's offer and advised him in great detail of
the consequences of his plea. I advised him there
would be no trial record, for purposes of an appeal.
I advised him that the Supreme Court would only
review the penalty. I reiterated the State's
position regarding their seeking the death penalty.
I reviewed each and every factor of aggravation
which the State had given to me. I reviewed with him
the evidence we would submit. He advised me he
wished to accept the plea. He told me, however, that
he wished to speak to his parents that evening prior
to formally advising me of his decision. He said
that he would speak with his parents that night.
representations of Mr. Weeks, Your Honor, he has
demonstrated to me a very sincere and deep religious
conviction. He has repeatedly advised me of his
shortcomings and failures, and that he was at peace
with his god. He told me that he willingly accepted
whatever was in store for him.
Before I left him
that night, he asked me to join him in prayer about
his decision. He prayed that God would give me and
his family the strength, and the Court and jury to
go through with this; never once voiced any concern
for himself, except to ask God to give him the
strength to continue with his convictions.
Your Honor, in my
19 years before the Bar I've never known a client
who was more together and content with what he was
doing. I advised him again that we could still go to
trial as we had planned and there was absolutely no
pressure for him to plead guilty. He told me he had
no interest in going to trial and he wished to admit
his guilt. He advised me that he was completely and
fully prepared to live with the consequences of his
App. at 22-25 (Plea
Willard also gave
a detailed recitation of all the advice he had given
Weeks regarding his constitutional rights and the
consequences of entering a guilty plea for the two
capital offenses. He concluded by informing the
court that, in his opinion, Weeks was entering the
plea knowingly, intelligently, and voluntarily.
Your Honor, I'm
content that the plea is being entered without
improper threat or promise. I've advised my client
that if there has been any improper threat or
promise made to him that he say so now in this Court.
I've advised him
that if he enters this plea today, of course, that
there is virtually no likelihood of his ever being
able to withdraw that guilty plea.
all these things in great detail, Your Honor, with
my client, I'm content that he's entering that plea
knowingly, intelligently and voluntarily.
App. at 31 (Plea
Weeks was then
sworn in and questioned at length by the trial judge.
The court asked Weeks if he had listened to his
counsel's recitation and if he had any disagreements
with anything his counsel had told the court. The
trial judge asked if Weeks understood that even
though he pled guilty, the jury for the penalty
phase would still learn, through witnesses, how the
State alleges the crimes were committed. Weeks
stated on the record that he understood the
proceedings and the consequences of the proceedings.
Weeks then admitted to having shot and killed
Gwendolyn Weeks and Williams on April 10, 1992.
importance on this appeal is the following series of
questions from the judge. After Weeks admitted to
having shot and killed the two victims, the judge
advised Weeks regarding Govan's refusal to testify
Q: [Judge] One
other matter that I meant to mention to you and I'll
ask you about it now. I was advised yesterday that
Mr. Govan may elect not to testify against you; were
you aware of that fact?
A: [Weeks] No, I
wasn't, Your Honor.
Q: [Judge] Let me
be more specific about it. I know there have been
discussions between Mr. Govan's lawyers, one of whom
is present in the courtroom right now, Mr. Pankowski,
and the State about whether he would testify in your
trial against you, either in the guilt part of the
trial or in the penalty part of the trial. They have
been talking about whether that would happen.
One of Mr. Govan's
lawyers was present at the conference that occurred
yesterday between your lawyer and the State's
lawyers, and I was advised then and the State was
advised then, that Mr. Govan would assert his Fifth
Amendment Right, that is, the right to remain silent,
if he were called as a witness in your case. It's an
open question as to whether I could then compel him
to testify or let the State use his statements
against you and not decide it. There was uncertainty
about whether that could be used against you, but as
of yesterday afternoon, Mr. Govan was going to stand
on that Fifth Amendment Right and call into question
the State's ability to use any of that material
Now, were you
aware of that?
Q: [Judge] Have
you understood what I've said? If you have any
questions, please ask me and I'll try to explain
A: [Weeks] No,
sir. Thank you, sir, I understand.
Q: [Judge] You do
Q: [Judge] Would
that have made a difference in your decision to
plead guilty? If it does --
THE COURT: Very
well. I will accept the plea as being freely,
voluntarily and intelligently entered and judgments
of guilt are entered, and we'll proceed to jury
selection on the penalty phase forthwith.
App. at 43-44 (Plea
Hearing Transcript) (emphasis added).
E. Weeks' Penalty
During the penalty
hearing, the State presented much of the same
evidence it would have used had it gone to trial.
Thirty-six witnesses testified for the State, among
them several of Gwendolyn Weeks' and Williams'
friends, relatives, and co-workers. The officers and
detectives testified about the guns, bullets, and
shell casings, and an FBI agent testified regarding
the forensic evidence.
testified that she had met with Gwendolyn Weeks just
prior to the murders regarding a possible divorce
and the legal implication of her husband's recent
request to refinance their home. Robinson testified
that she had seen a gun in a brown case on Weeks'
kitchen table, and that on the night of the murders
Weeks had left the house a little after six p.m. and
did not return until around nine p.m. She also
testified that Weeks instructed her to lie to the
police and tell them he was with her the entire
was the evidence of Weeks' elaborate plan to murder
his wife provided by his accomplice Govan, who
testified before the jury under an agreement with
the prosecution. In exchange for Govan's testimony,
the prosecution agreed not to use Govan's testimony
against him in any other proceeding. The prosecution
also agreed to recommend that the court consider
Govan's testimony a mitigating factor in his
that Weeks had learned that his wife was going to
divorce him and he did not want to divide the
property or pay her alimony, so he devised a plot to
murder his wife: "[h]e [was] not going to let her
take all he worked for, cars, stuff like that." App.
at 189. Three days before the killings, Weeks tried
to hire Govan to kill his wife and offered to pay
him $500 or $250 and a gun, an offer Govan claimed
he turned down. Weeks purportedly wanted Govan to
murder her rather than perform the act himself, so
that Weeks might pass a polygraph test if asked if
he killed his wife.
On the day of the
murders, Weeks drove Govan to St. Francis Hospital,
where Gwendolyn Weeks worked, so that Govan could
case the area and familiarize himself with where she
worked, what exit she used, and where she parked her
The plan was to
kill Gwendolyn Weeks after she left work in the
parking garage where she regularly parked. In the
early evening, Govan and Weeks hurriedly returned to
St. Francis Hospital to catch Gwendolyn Weeks, who
was scheduled to get off work at 8:30 p.m. After the
two unsuccessfully searched the parking garage for
her car, Weeks telephoned one of her co-workers at
the hospital and learned she was not at work because
she had plans that evening.
Weeks and Govan
then sped to Gwendolyn Weeks' high-security
apartment. According to Govan, Weeks had learned
that Williams might be with Gwendolyn Weeks that
evening and, if so, "he going to get the same thing
she get." App. at 205. Weeks parked in a nearby
church parking lot to avoid detection by the
apartment complex's security and proceeded to
Gwendolyn Weeks' apartment. Weeks gave Govan the .32
caliber gun on the landing and told him to knock on
the door, ask for a cup of sugar, and pretend to be
When no one
answered the door, Govan began to walk away; Weeks,
however, pulled out a .38 caliber handgun, forced
the door open, and entered the apartment with Govan
on his heels. Govan testified that after Weeks broke
the door down, Weeks ran straight at Gwendolyn Weeks,
wrestled with her while she was on the phone as she
tried desperately to move the gun away from her head,
and then shot her twice in the head. Govan claimed
that he fired two shots into the floor to make Weeks
think he had shot Williams.
Govan also claimed
that after Weeks had killed Gwendolyn Weeks, Weeks
turned and shot Williams several times in the head.
When Govan was asked how six shots were fired out of
the .32 caliber revolver, he claimed that he only
fired two shots and then gave the revolver back to
Weeks, who fired the remaining four shots.
Hoping to conceal
the nature of these murders, Weeks took Gwendolyn
Weeks' purse so that the murders would look like a
robbery, and the two fled the murder scene to the
approaching sound of police sirens. Weeks drove to a
lot owned by his father and hid the purse and murder
weapons in one of the trucks on the lot.
Weeks then dropped
Govan off at the train station, telling him, "I got
her like I wanted to get her. I got her good. Got
both of them good," and returned home to his
girlfriend Robinson. App. at 214. According to Govan,
part of the master plan was for Robinson to provide
Weeks with an alibi by pretending Weeks was with her
in Philadelphia during the time of the murders.
with his inconsistent statements to the police,
Govan admitted that he lied to the police in order
to appear more innocent. Finally, before Govan was
excused, the court asked Govan to explain how
Gwendolyn Weeks was found lying on top of Williams
if she was shot first as he testified. Govan said he
did not know but acknowledged that when he left the
apartment that night, Gwendolyn Weeks was lying on
top of Williams.
At the conclusion
of Weeks' penalty hearing, the jury deliberated for
two days before finding that the aggravating
circumstances outweighed the mitigating
circumstances on each count. On September 7, 1993,
the trial judge sentenced Weeks to death and Govan
to consecutive life terms.
Delaware Post-Conviction Proceedings
his direct appeal to the Delaware Supreme Court,
which rejected all Weeks' claims of error and
affirmed. See Weeks I, 653 A.2d at 275. Thereafter,
Weeks filed a motion for state post-conviction
relief. The petition claimed that Weeks received
ineffective assistance of counsel from his trial
attorney did not advise him [prior to his guilty
plea] that Govan would refuse to testify against him
in the trial;
attorney did not advise him that if Govan persisted
in his refusal to testify, then Govan's out-of-court
statement to the police would not be admissible in
Weeks' trial, thereby substantially weakening the
State's case against Weeks; [and]
attorney failed to tell Weeks that the State would
present the very same evidence concerning the
circumstances and details of the crime in the
penalty hearing that would have been presented if
Weeks had elected to go to trial on the issue of
App. at 420 (Motion
for Post-Conviction Relief).
conceded that "Weeks told Willard that he was in
favor of entering a guilty plea because he believed
that such a plea would somehow spare the victims'
family and his family from the additional trauma of
having all of the details and circumstances of the
crimes brought out in court." App. at 419 (Motion
for Post-Conviction Relief).
Judge Babiarz, the
same judge who presided over the guilty plea hearing
and sentencing, held an evidentiary hearing on
September 8, 1995 at which both Weeks and his
counsel testified and presented starkly conflicting
testimony. Willard declared that from the day of
Weeks' arrest, Weeks immediately began talking about
accepting responsibility for the killings by
pleading guilty. As Willard testified:
My very first
meeting with Dwayne, he made it very, very clear to
me that he had a very close, warm, personal
relationship with Jesus Christ, his savior and Lord,
and throughout every conversation, that came up and
was part of everything.
And in fact,
virtually every time I met with Dwayne he would ask
that we pray together. He would take my hands in his
and we'd sit there and we'd pray.
Now, while I may
not have a reputation for that, I happen to be a
very deeply religious man in my own way, and I was
very touched by that, and we were very close and
very open from the very, very first meeting.
He is the one who
began immediately talking about a plea.
App. at 443-42
(Post-Conviction Hearing Transcript).
[F]rom our first
meeting and virtually every meeting thereafter he
would say to me, "Mr. Willard, I did it" and say
things like, "We don't have to do this, we don't
have to go to trial, I did it."
App. at 455 (Post-Conviction
When asked how he
responded when Weeks immediately revealed his desire
to plead guilty, Willard testified that at that time
he knew nothing about the case and kept reminding
Weeks "we don't make any decisions yet. There's a
whole lot of things we've got to go through first,
preliminary hearings and discovery and so forth
before I can have any idea of where we are in this
matter." App. at 444-45 (Post-Conviction Hearing
Transcript). Willard stated that from the beginning
he had an overwhelming desire to go all the way and
try this case to the best of his ability.
testified that as the trial approached, he continued
to counsel Weeks against pleading guilty so long as
the State continued to seek the death penalty. It
was his position that if there was any possibility
of a deal, part of the deal must include the State
not pursuing the death penalty.
When the State
offered to drop the miscellaneous charges if Weeks
pled guilty to first degree murder, he "felt
compelled then to at least formally broach that with
[his] client" but that "[i]t was basically nothing.
It was not an offer. It was plead guilty and they
would still go for the death penalty and they still
intended to put on a full show for the penalty phase
hearing." App. at 452 (Post-Conviction Hearing
Transcript). Willard testified that he "tried to
explain to [Weeks] that to [him] . . . pleading
guilty was a worthless thing to do." App. at 456
(Post-Conviction Hearing Transcript).
But the testimony
of both Weeks and his own counsel is in agreement
that Weeks was determined to confess his guilt due
to his religious convictions and his desire to avoid
inflicting further pain on the victims' families and
his own. According to Willard's testimony, Weeks
never once said "let's have a trial on this" or
indicated a desire to make the State prove its case.
To the contrary, Willard stated "I'm the one who
kept talking about a trial, trial, trial and he
never said anything. He just would say, `Well, I did
it' and so forth." App. at 490 (Post-Conviction
When asked if he
informed Weeks that Govan may not testify, Willard
stated that following the conference with the judge,
he immediately returned to Weeks and discussed at
great length the fact that Govan might not testify
and that this would seriously weaken the State's
case. Willard also testified that although he was
hopeful that Govan would not testify, he was not
optimistic since Govan remained eager to avoid the
death penalty by cutting a deal with the State.
thought that [Govan would not testify] was an
outside possibility, and again my initial impression
was like this. Govan has been tried, convicted and
he's been through a penalty phase. He knows the
jury's verdict, vote.
I would imagine
that there's a whole lot of defendants out there who
may be a little tougher or more sophisticated than
Mr. Govan who would say, "I've got absolutely
nothing in the world to gain by helping the State
and they can go to hell . . . ."
I quite frankly
hoped in my heart that that might happen. Yet I
could tell from the way Eddie [Govan's attorney] was
playing it and the way the State was that there was
something going on that might change that and make
him want to testify.
App. at 465 (Post-Conviction
in the post-conviction hearing differed markedly
from Willard's on many significant facts. Weeks
testified that he initially considered pleading
guilty only if he could avoid the death penalty, App.
at 492; that Willard failed to advise him that
pleading guilty would not spare the victims'
families the trauma of a trial, App. at 502; and
that Willard never told him that Govan was
threatening not to testify, App. at 508, or that if
Govan refused to testify Govan's out-of-court
statements could not be used against him, App. at
that he knew that Govan's testimony would "hurt me
bad," App. at 509, that Willard met with him the
evening before he pled guilty (the evening following
the conference with the judge where Willard was
informed that Govan might not testify), App. at 523,
and that he repeatedly told his attorney that he
wanted to plead guilty to spare the victims'
families and his own, App. at 497, 512-13.
Weeks was then
presented with his statements at the time of his
guilty plea when the trial judge questioned him
regarding his understanding that Govan would not
testify and its implications. Weeks was asked to re-read
the portion of the transcript where the trial judge
informed him that Govan was threatening not to
testify and that it was an open question whether
Govan could be forced to testify or whether his out-of-court
statement could be used against Weeks. Weeks was
asked to explain why he told the judge that it would
not make a difference in his decision to plead
guilty if Govan refused to testify against him.
Weeks stated that he understood what the judge was
saying, but explained as follows:
Q: You answered
`No, Sir.' You said it wouldn't make a difference.
Why did you say that?
A: [Weeks] Well,
one, because of my understanding that I had
concerning the families and them not being brought
back into this thing, you know, of a fullness, not
re-living this thing over again.
That weighed heavy
on my heart and I didn't want to bring them back
through that. This is what I shared with Mr. Willard
on a number of occasions coming up into that. That's
mainly why I didn't change my plea.
App. at 512-13
(Post-Conviction Hearing Transcript).
In concluding his
testimony, Weeks asserted that if Willard had
informed him of the legal ramifications of Govan's
refusal to testify, he would not have pled guilty.
Q: Now, if anyone
had explained to you the legal ramifications of
Arthur Govan not testifying, and if, in addition to
that, you knew that you weren't going to spare
anybody anything by pleading guilty, would you have
A: [Weeks] No.
We'd have went to trial. App. at 515 (Post-Conviction
As the testimony
by Weeks conflicted sharply with that of his counsel,
Judge Babiarz stated in his written opinion denying
post conviction relief that the resolution of Weeks'
claims "rests primarily on [the] credibility" of
Weeks and his counsel. State of Delaware v. Weeks,
No. 92010167DI, slip op. at 2 (Del. Super. Ct. Dec.
28, 1995) ("Weeks II"). The court re-characterized
Weeks' claims as raising two instances of
ineffective assistance of counsel:
(1) that Weeks'
trial counsel failed to inform Weeks, prior to the
entry of his guilty plea, that Govan might refuse to
testify at Weeks' trial, and
(2) that Weeks'
trial counsel failed to inform Weeks that even if he
pled guilty to the murder charges, the State would
present the same evidence in the Penalty Hearing
concerning the circumstances of the killings that
they would have presented at trial.
the transcripts of the office conference, Weeks'
plea colloquy, and the testimony from the
evidentiary hearing, the court adopted Willard's
version of the events leading up to the guilty plea.
With respect to Weeks' first claim of
ineffectiveness, the court specifically found that
Weeks "was informed of Govan's indecision" about
whether to testify. Id. at 3. With respect to the
second claim, the court concluded that Weeks was
aware that the State would offer evidence of the
circumstances of the crime at the penalty hearing.
therefore dismissed Weeks' claims as unsubstantiated,
a decision the Delaware Supreme Court affirmed in a
brief opinion, see Weeks v. State of Delaware, 683
A.2d 60, 1996 WL 470717 (Del. 1996) (table) ("Weeks
III"), and Weeks was scheduled for execution.
G. Weeks' Federal
On December 20,
1996, Weeks filed this habeas petition pursuant to
28 U.S.C. S 2254, reasserting his claim of
ineffective assistance of counsel. Because Weeks'
petition was filed after the effective date of the
Antiterrorism and Effective Death Penalty Act ("AEDPA"),
Pub. L. No. 104-132, 110 Stat. 1214 (1996), the
provisions of that Act are applicable.
Weeks argued that
his legal representation was deficient because
Willard failed to research the legal implications of
Govan's refusal to testify and failed to inform
Weeks of the legal ramifications of that refusal.
The District Court determined that this issue was
presented in the state post-conviction appeal
process and thus satisfied AEDPA's exhaustion
requirement. Weeks v. Snyder , No. 96-622, 1998 WL
231025, slip op. at 44-45 (D. Del. Apr. 30, 1998) ("Weeks
Turning to the
merits of the claim, the District Court concluded
that Willard's legal representation did not fall
below the acceptable level required by the Sixth
Amendment as his failure to research this issue was
excused once he realized that the strength of the
State's case was not a factor in Weeks' decision to
plead guilty. Id. at 51.
The District Court
also concluded that Weeks failed to demonstrate
prejudice because the court was convinced from
evidence in the record that Weeks would have pled
guilty even if Willard had informed Weeks that
Govan's out-of-court statements might be
inadmissible at trial. Id. at 64. Although the
District Court denied Weeks' petition, it certified
the ineffective assistance claim for appeal and
granted a stay of execution pending appeal. Id. at
65. Weeks filed a timely appeal to this court. We
have jurisdiction pursuant to 28 U.S.C. SS 1291 and
A. Applicable Legal
Weeks' only claim
before us is based on his contention that he was
deprived of his Sixth Amendment right to effective
assistance of counsel, an element of a defendant's
fundamental right to a fair trial. See Roe v.
Flores-Ortega, 120 S. Ct. 1029, 1034 (2000); Nix v.
Whiteside , 475 U.S. 157, 175 (1986); Strickland v.
Washington, 466 U.S. 668, 686 (1984). To prevail on
a claim of ineffective assistance of counsel, the
defendant must demonstrate that counsel's
representations were objectively deficient and, with
a few notable exceptions, that prejudice resulted
from these alleged deficiencies. See Flores-Ortega,
120 S. Ct. at 1037; Strickland, 466 U.S. at 687-688,
691-694; Government of Virgin Islands v. Zepp, 748
F.2d 125, 133-134 (3d Cir. 1984).
representation is considered objectively deficient
if it "fell below an objective standard of
reasonableness." Strickland, 466 U.S. at 688. To
establish prejudice, a defendant must demonstrate
that there is a "reasonable probability that but for
counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694.
"In most cases, a
defendant's claim of ineffective assistance of
counsel involves counsel's performance during the
course of a legal proceeding, either at trial or on
appeal." Flores-Ortega, 120 S. Ct. at 1037. However,
the principles apply equally to those defendants who
have pled guilty. In Hill v. Lockhart, 474 U.S. 52
(1985), the Supreme Court applied the Strickland two-part
test for determining ineffective assistance of
counsel in a case where the defendant challenged a
standard for deficient performance remains unchanged,
in a guilty plea case the standard for prejudice "focuses
on whether counsel's constitutionally ineffective
performance affected the outcome of the plea process."
Id. at 59; see United States v. Nahodil, 36 F.3d
323, 326-327 (3d Cir. 1994); Dooley v. Petsock, 816
F.2d 885, 889 (3d Cir. 1987).
In order for a
defendant such as Weeks who challenges his guilty
plea to satisfy the prejudice requirement, he must
demonstrate that there is a "reasonable probability
that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to
trial." Hill, 474 U.S. at 59. "As with all
applications of the Strickland test, the question
whether a given defendant has made the requisite
showing will turn on the facts of a particular
case." Flores-Ortega, 120 S. Ct. at 1039.
Weeks argues that
Willard's representation was deficient because
Willard failed to inform him fully of the legal
implications of Govan's refusal to testify. In so
doing, Weeks does not contest on appeal the express
factual finding by the Delaware court that Willard
alerted Weeks that Govan was refusing to testify.
Rather, Weeks contends that if Willard had
researched the legal issues, he would have learned
that there was nothing that the State or the trial
court could have done to compel Govan to testify and,
more importantly, that if Govan refused to testify
the State could not admit his out-of-court
statements against Weeks under Delaware's rules of
succinctly stated, is: "Weeks did not receive
critical legal advice that was essential to making
an informed and conscious decision whether to plead
guilty or go to trial[;] [s]imply being told that
Govan would not testify was not enough." Appellant's
Br. at 24.
that factual determinations made by a state court
are presumed correct and that the petitioner has the
burden to rebut the presumption by clear and
convincing evidence. See 28 U.S.C. S 2254(e)(1).
Weeks argues that the Delaware court failed to make
a factual determination necessary to his claim of
ineffective assistance of counsel when it rejected
his Sixth Amendment claim as "unsubstantiated." The
District Court agreed with Weeks that the Delaware
court failed to make such a finding. See Weeks IV,
1998 WL 231025, at *22.
Delaware court made no express finding in its post-conviction
opinion as to whether Willard advised Weeks of the
legal ramifications of Govan's refusal to testify,
we believe the District Court gave a far too narrow
interpretation to the Delaware court's findings, and
thereby violated the principles of comity and the "high
measure of deference to the factfindings made by the
state courts" required by S 2254(e) and S 2254(d) (pre-AEDPA).
Sumner v. Mata, 455 U.S. 591, 598 (1982); see also
Miller v. Fenton, 474 U.S. 104, 112 (1985) (federal
habeas courts must "give great weight to the
considered conclusions of coequal state judiciary").
The federal habeas
statute provides us "no license to redetermine
credibility of witnesses whose demeanor has been
observed by the state trial court, but not by [us]."
Marshall v. Lonberger, 459 U.S. 422, 434 (1983). "Thus,
the factual conclusions which the federal habeas
courts [are] bound to respect in assessing
respondent's constitutional claims [are] . . . the
finding[s] of the [State] trial court . . . and the
inferences fairly deducible from those facts." Id.
at 435 (emphasis added).
The Supreme Court
has instructed that in habeas proceedings, "if no
express findings of fact have been made by the state
court, the District Court must initially determine
whether the state court has impliedly found material
facts." Townsend v. Sain, 372 U.S. 293, 314 (1963).
suggested that if the state court rejected the
petitioner's claim on the merits in a prior state
collateral proceeding "but made no express findings,
it may still be possible for the District Court to
reconstruct the findings of the state trier of fact,
either because his view of the facts is plain from
his opinion or because of other indicia." Id. The
Court continued, "the coequal responsibilities of
state and federal judges in the administration of
federal constitutional law are such that we think
the district judge may, in the ordinary case in
which there has been no articulation, properly
assume that the state trier of fact . . . found the
facts against the petitioner." Id. at 314-15. See
also LaVallee v. Delle Rose, 410 U.S. 690, 692
(1973) (per curiam) (providing presumption of
correctness required by 28 U.S.C. S 2254(d) to
implicit findings of a state court).
precedent, this court recently held that we must
provide the same presumption of correctness required
by S 2254(e)(1) to the state courts' implicit
factual findings as we provide to express findings
of the state courts. See Campbell v. Vaughn, 209
F.3d 280, 285-86 (3d Cir. 2000). Accord Goodwin v.
Johnson, 132 F.3d 162, 183 (5th Cir. 1998); Sprosty
v. Buchler, 79 F.3d 635, 643 (7th Cir. 1996);
Ventura v. Meachum, 957 F.2d 1048, 1055 (2d Cir.
1992); Tinsley v. Borg, 895 F.2d 520, 524 (9th Cir.
1990); Crespo v. Armontrout, 818 F.2d 684, 686 (8th
One of the three
grounds Weeks asserted in his state post-conviction
proceeding in support of his contention that his
Sixth Amendment right to counsel was violated was
that "Weeks' attorney did not advise him that if
Govan persisted in his refusal to testify, then
Govan's out-of-court statement to the police would
not be admissible in Weeks' trial, thereby
substantially weakening the State's case against
Weeks." App. at 420 (Motion for Post-Conviction
Relief). At the evidentiary hearing, Willard
testified that he not only advised Weeks that Govan
was threatening to refuse to testify, see App. at
466, but also that without Govan's testimony the
State's case was much weaker, see App. at 470.
He testified that
he discussed the situation thoroughly with Weeks and
that he specifically spoke with Weeks of the legal
technicalities if Govan refused to testify, see App.
at 477-78, and told Weeks that he would not spare
the victims' families by pleading guilty because the
State would present the same evidence at trial, see
App. at 459.
In contrast, Weeks
testified at the same hearing that Willard never
told him that Govan was refusing to testify or the
legal implications on the admissibility of Govan's
out-of-court statements, see App. at 504, and said
that Willard never told him that he would not spare
his or the victims' families any trauma by pleading
guilty, see App. at 502.
between Willard and Weeks permeate their respective
testimonies. For example, Willard testified that
Weeks continuously rejected his advice that Weeks
not plead guilty unless the State agreed not to
pursue the death penalty, see App. at 449-50, while
Weeks testified that it was his position from the
beginning that any guilty plea include such an
agreement from the State, see App. at 492.
After hearing the
testimony of both Weeks and Willard, the Delaware
Superior Court stated that "[s]ince Willard and
Weeks are in direct contradiction as to what was
said between them, the resolution of the
disagreement rests primarily on credibility." Weeks
II, slip op. at 2. The court, weighing the
credibility of the two witnesses, adopted Willard's
version of the events leading up to the guilty plea.
The court stated
that "Willard testified that he informed Weeks about
the possibility that Govan may not testify" and it
found, based on this testimony and the plea colloquy,
that "Weeks was informed of Govan's indecision" and
"knew that similar evidence would be presented at
the penalty hearing regardless of his guilty plea."
Id. at 3, 4 (emphasis added).
Although the court
never expressly rejected Weeks' contention that
Willard failed to inform him about the effect of
Govan's refusal to testify, it did find that the
factual bases for Weeks' claims of ineffectiveness
on the part of counsel were "unsubstantiated." Id.
at 4. It is significant that the state post-conviction
judge was the same judge who presided over the
guilty plea hearing and the sentencing.
the Superior Court's ruling on Weeks' post-conviction
motion, the Supreme Court of Delaware affirmed,
stating that "[t]he Superior Court, in its decision
denying the Rule 61 motion, carefully considered all
of Weeks' arguments." See Weeks III, 683 A.2d 60,
1996 WL 47017.
It is reasonable
to draw from this record the inference that the
judge who heard the evidence determined that
Willard's testimony on this issue was more credible
than Weeks', as that judge had credited Willard on
every other factual dispute that he expressly
reached. We therefore conclude that the Delaware
court made the implicit finding that Willard advised
Weeks of the implications of Govan's failure to
testify, a finding entitled to deference.
As noted above,
this implicit factual finding is due the same highly
differential presumption of correctness required by
S 2254(e), which Weeks has failed to defeat by clear
and convincing evidence. It follows that Weeks
failed to show that Willard's legal performance was
objectively deficient, the first prong of a showing
of ineffective assistance of counsel. Nonetheless,
in an abundance of caution, we will consider as well
the prejudice prong.
O'Connor emphasized in Flores-Ortega , "[t]he second
part of the Strickland test requires the defendant
to show prejudice from counsel's deficient
performance." 120 S. Ct. at 1037. Thus, even if
Weeks established that his counsel's performance was
objectively unreasonable, he must also demonstrate
that "there is reasonable probability that, but for
counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial." Hill,
474 U.S. at 59.
The Court in Hill
stated that the prejudice inquiry in many guilty
plea cases "will closely resemble the inquiry
engaged in by courts reviewing ineffective-assistance
challenges to convictions obtained through trial."
Id. Thus, as the Supreme Court explained in
Strickland, "[a] reasonable probability is a
probability sufficient to undermine confidence in
the outcome." 466 U.S. at 694.
In order to
examine the prejudice issue, we must first determine
what Willard would have learned had he researched
the effect of Govan's refusal to testify. We must
then determine whether there is a reasonable
probability that if Weeks had been informed of the
results of this research, he would have insisted on
going to trial.
In this connection,
it is important to recall that Govan had given three
inculpatory statements shortly after the murders,
each of which placed the principal responsibility on
Weeks but which also implicated Govan to differing
extents. Weeks contends that under the applicable
Delaware rule of evidence, the prosecutor cannot use
the prior statements of an accomplice as affirmative
evidence if s/he refuses to testify. See 11 Del. C.S
As stated by Weeks,
"if Govan had refused to testify and therefore could
not be cross-examined, his out-of-court statements
inculpating Weeks would have been inadmissible
against Weeks." Appellant's Br. at 22-23. The
parties agree that there was no effective way to
compel Govan to testify if he was unwilling, as
effective sanctions would be unavailable inasmuch as
Govan was already facing at least a life sentence.
Although the parties disagree as to whether Govan's
prior statements would have been admissible even if
he chose not to testify, this appeal does not turn
on that issue.
Weeks' point is
that Willard failed to tell him that they may not
have been admissible. However, even if Willard did
not tell him, he could not have been prejudiced
because the trial judge told him. During Weeks'
guilty plea colloquy, which took place while the
parties were aware of Govan's equivocation about
testifying, Judge Babiarz stated to Weeks in open
court that it was an "open question" whether Govan's
prior statements would have been admissible. The
It's an open
question as to whether I could then compel him [Govan]
to testify or let the State use his statements
against you and not decide it. There was uncertainty
about whether that could be used against you, but as
of yesterday afternoon, Mr. Govan was going to stand
on that Fifth Amendment Right and call into question
the State's ability to use any of that material
App. at 43-44 (Plea
Hearing Transcript). This summary by the judge was
an accurate and simple synopsis of the legal
ramifications of Govan's refusal to testify. See
supra note 3. When the judge asked Weeks, "If you
have any questions, please ask me and I'll try to
explain further," Weeks responded "No, sir. Thank
you, sir. I understand." App. at 44. (emphasis added).
The judge then asked Weeks if this information would
have made a difference in his decision to plead
guilty, to which Weeks responded, "No Sir." App. at
belies Weeks' assertion that he would have insisted
on going to trial if he had known about the legal
ramifications of Govan's refusal to testify. In
light of the judge's clear explanation to Weeks of
the uncertainty with respect to the admissibility of
Govan's statements, Willard's alleged failure to do
so can hardly have prejudiced Weeks. The absence of
prejudice from the alleged deficient legal
representation is clear.
While one may
wonder why, under these circumstances, Weeks
proceeded to plead guilty, in this case an
explanation is reflected in the record. Weeks
himself made plain his reason for pleading guilty in
his post-conviction testimony.
Q: So in your mind,
the main reason you pled guilty was to avoid putting
the victim's family and your family through the
trauma of re-living the events of the killings?
Q: And you thought
by pleading guilty you would accomplish that?
A: [Weeks] Yes.
App. at 499 (Post-Conviction Hearing Transcript).
This is consistent
with Willard's statements at the time of the guilty
plea that Weeks chose to plead guilty due to
concerns for his family and the family of the
victims and Willard's testimony at the post
conviction hearing. The District Court's conclusion
that further information regarding the legal
uncertainties over whether Govan's out-of-court
statements may be used against him was irrelevant to
Weeks' decision to plead guilty has ample support in
ineluctably that Weeks was advised of the
implications of Govan's possible failure to testify,
if not by Willard then at least by the judge, and,
in any event, he was emotionally committed to
pleading guilty. Weeks failed to make the requisite
showing that there is a reasonable probability that
but for Willard's alleged errors, Weeks would have
insisted on going to trial and he was therefore not
prejudiced by the alleged ineffective assistance.
We are not unaware
of the controversy currently surrounding the
imposition of the death penalty in this country.
However, this case does not trench upon the issues
in the forefront of that controversy, usually
identification of the defendant or the defendant's
competency at any of the critical stages of the
event or the criminal proceeding. This is a case in
which an estranged husband pled guilty to murdering
his wife and her friend, and that plea was supported
by ample evidence. Whether this is an appropriate
case for administration of the death penalty is a
political question, not a judicial one. Only one
judicial issue was presented to this court on this
appeal, and we have no basis to disagree with the
judgment of the District Court and the findings of
the Delaware courts that Weeks had not shown that he
received ineffective assistance of counsel. We will
therefore affirm the judgment of the District Court
denying a writ of habeas corpus.