                                                                      [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                    FILED
                                                           U.S. COURT OF APPEALS
                           ______________________            ELEVENTH CIRCUIT
                                                             NOVEMBER 15, 2001
                               No. 00-15886                   THOMAS K. KAHN
                          ______________________                   CLERK
                       D.C. Docket No. 97-00828-1-JOF



JAMES WILLIE BROWN,
                                                            Petitioner-Appellant,

                                        versus

FREDERICK HEAD, Warden,
Georgia Diagnostic and Classification
Prison,

                                                            Respondent-Appellee.


                           ______________________

               Appeal from the United States District Court for the
                          Northern District of Georgia
                          ______________________
                             (November 15, 2001)


Before CARNES, BARKETT and HULL, Circuit Judges.

CARNES, Circuit Judge:
      Just over a quarter of a century ago, in 1975, James Willie Brown and

Brenda Watson went on a date to the Mark Inn Lounge in Stone Mountain,

Georgia. They ate a steak and potato dinner and spent several hours drinking and

dancing. Brown v. State, 250 Ga. 66, 66, 295 S.E.2d 727, 729 (1982). Afterwards

Brown took Watson to an old logging road in a heavily wooded area, tied her up

with a nylon cord, raped and orally sodomized her, and suffocated her by forcing

her panties so far down her throat that they were not discovered until the autopsy.

Id. She was the third woman Brown had attacked, but the other two were fortunate

enough to have escaped with their lives. Id. at 73, 295 S.E.2d at 734. Because

Watson did not, Brown was charged with capital murder.

      The trial of the case was delayed for six years because of concerns about

Brown’s mental competency. When the case did go to trial in 1981, a jury

convicted Brown and sentenced him to death. That conviction and death sentence

were affirmed by the Georgia Supreme Court, id., state collateral relief was denied,

and the United States Supreme Court denied certiorari review. Brown v. Dodd,

404 U.S. 874, 108 S.Ct. 33 (1987). Brown was more successful in seeking federal

habeas relief. In 1988 the United States District Court for the Northern District of

Georgia issued the writ, effectively requiring a new trial, on Pate v. Robinson, 383

U.S. 375, 86 S.Ct. 836 (1966), and related Brady v. Maryland, 373 U.S. 83, 83


                                          2
S.Ct. 1194 (1963), grounds. After conducting proceedings to ensure that Brown

was competent, the State retried him in 1990. The evidence at the retrial, like that

at the initial trial, was overwhelming, and the jury convicted Brown and sentenced

him to death again. The Georgia Supreme Court affirmed that new conviction and

sentence. Brown v. State, 261 Ga. 66, 401 S.E.2d 492, cert. denied, 502 U.S. 906,

112 S.Ct. 296 (1991). State collateral relief was denied as well. After the Supreme

Court denied certiorari, Brown v. Turpin, 519 U.S. 1098, 117 S.Ct. 781 (1997),

Brown sought federal habeas review which was denied in November 2000. This

is the appeal from that denial. Brown raises a number of issues, several of which

deserve discussion.1

                  I. THE INEFFECTIVE ASSISTANCE CLAIMS

       Brown raises ineffective assistance claims relating to two witnesses who

testified at the sentence stage, Carl White and Anita Tucker. We hold that even

assuming that Brown’s trial counsel should have discovered and used certain

impeachment evidence to attack the testimony of these witnesses, the state habeas


       1
        Brown’s claim that execution in the electric chair is cruel and unusual punishment under
the United States Constitution is moot in light of Dawson v. State, 2001 WL 1180615 (Ga. Oct.
5, 2001). We affirm without discussion the district court’s rejection of Brown’s claims that he
was denied the right to a speedy trial, that trial counsel was ineffective for relying upon Brown’s
decision to forego a mental health defense at the guilt stage of the trial, and was ineffective for
not presenting more mental state mitigating circumstances evidence than he did at the sentence
stage. We also do not disturb the district court’s rejection of Brown’s Ford v. Wainwright, 477
U.S. 399, 106 S. Ct. 2595 (1986), claim.

                                                 3
court’s conclusion that counsel’s failure to do so did not prejudice Brown’s

sentence is objectively reasonable.

                                 A.     Witness White

      During the sentence phase, White testified that he was the officer who

booked Brown on the murder charge on May 15, 1975, and that he did not notice

anything unusual about Brown’s demeanor or ability to communicate. White also

testified about something Brown said: “When I got through taking the

information, as I recall, he made a statement that he wasn’t worried about this

charge, that he would plead insanity and be out in a few years.”

      Brown contends that his trial counsel should have discovered and used other

evidence to impeach the testimony of White. The other evidence consists of

documents in the State’s files indicating that White did not report Brown’s

statement until six years after it was made, and that he did so then only after an

investigator, at the prosecutor’s direction, questioned White about whether Brown

had made any statements while being booked that might shed some light on his

mental state at that time. Brown argues that delay in reporting the statement could

have been used to impeach White’s testimony that Brown made the statement,

because if such a statement really had been made, White would not have kept quiet

about it for six years.


                                          4
      Since White had testified at Brown’s competency hearing about the

statement made at booking, Brown argues that his trial counsel should have

anticipated that testimony would be repeated at trial and set about to find a way to

impeach it. If counsel had looked, Brown says, he could have discovered the

documents indicating White’s six-year silence about the statement. The failure to

discover and use that evidence to impeach White’s testimony at trial was

ineffective assistance of counsel, Brown argues. He asserts this ineffective

assistance claim as to sentencing, not as to the guilt stage.

      The state habeas court concluded that trial counsel performed deficiently in

not discovering and using the fact that White had not reported to the prosecutor

Brown’s statement at booking soon after it was made. The court denied relief,

however, on the ground that no reasonable probability existed that Brown’s

sentence would have been different had counsel discovered and used the fact of the

delay in reporting to attack White’s testimony.

      In this federal habeas proceeding, the district court agreed with the state

habeas court that Brown had not established prejudice from his trial counsel’s

failure to discover the information and use it to impeach White. Like the state

court, the district court reasoned that even apart from White’s testimony, the other

evidence supporting the death sentence was overwhelming. It followed that the


                                           5
state habeas court’s decision was not an unreasonable application of federal law,

and federal habeas relief was due to be denied.


                                B. Witness Tucker

      Anita Tucker also testified during the sentence phase. She told how she had

met Brown while both of them were incarcerated in the Gwinnett County Jail. On

one occasion, she and Brown were transported from that jail to the courthouse in

the same car. During that trip, Brown had told her she “should play crazy and that

[she] would not do any more than two years.” Tucker said that Brown knew of her

because he had been incarcerated with her co-defendants in an unrelated case.

      Tucker also testified about another meeting with Brown which had taken

place after her conviction, when she was incarcerated at Hardwick Correctional

Institution. This meeting occurred when Tucker was transported to Central State

Hospital for a dental evaluation. While she was there, Tucker testified, Brown had

asked her “what happened to you in Gwinnett County?” Tucker told Brown she

“was found guilty and given a sentence of life plus sixty years,” to which Brown

replied, “Well, I told you.” Tucker explained to the jury that his statement referred

to their earlier conversation about “playing crazy.”

      During her testimony, Tucker was asked whether she had received any

benefit for her testimony, either for the testimony she was then giving or for her
                                          6
testimony at the first trial. Tucker answered by denying that she had received a

benefit, explaining that she had been convicted of murder and armed robbery, and

stating that she had served her sentence and was out on parole. On cross-

examination, Brown’s trial counsel inquired about how the prosecution had

become aware of Tucker’s testimony. Tucker explained that Detective Burt

Blanott, the investigator who worked her case, had come to see her at Hardwick

prison before Brown’s first trial, and that was when she had told the detective

about Brown’s statement.

      Brown’s claim as it relates to Tucker is that his trial counsel should have

discovered evidence that could have been used impeach her testimony.

Specifically, in the state habeas proceedings, Brown contended that Tucker’s

testimony could have been impeached on three grounds, none of which trial

counsel had pursued: (1) Tucker and Brown were never at the dentist’s office on

the same day; (2) Tucker had changed her story as to the location of her first

conversation with Brown from a holding cell to the back seat of a patrol car; and

(3) after the first trial, Tucker was treated favorably by the State in regard to her

sentence.

      The state habeas court concluded that trial counsel’s performance in regard

to the credibility issues involving Tucker was deficient, because counsel could and


                                           7
should have discovered, and used to impeach Tucker, the information about her not

being at the dentist’s office at the same time as Brown and about her arguably

receiving favorable treatment in return for her testimony at the first trial. But the

state court denied relief on the ineffective assistance claim relating to Tucker on

prejudice grounds. In this federal habeas proceeding, the district court agreed with

the state habeas court that trial counsel’s representation was deficient, but found

the state court’s conclusion that trial counsel’s representation did not result in

prejudice to Brown’s defense was objectively reasonable.

                             C. Discussion and Analysis

      We need not address the performance deficiency component of this

ineffective assistance claim, because failure to satisfy the prejudice component is

dispositive. See Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052,

2069 (1984) (“If it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, which we expect will often be so, that course should be

followed.”). The prejudice component requires Brown to establish that but for the

deficient representation, there is a reasonable probability of a different result in the

proceeding– here, the sentence proceeding. See Strickland, 466 U.S. 668, 694,

104 S. Ct. 2052, 2068 (1984). A reasonable probability is a probability sufficient

to undermine confidence in the outcome– the outcome here, a death sentence.


                                           8
      Brown points out that use of mental illness as a mitigating circumstance was

his central strategy in the sentencing phase, and that White and Tucker were

important witnesses supporting the prosecution’s position that Brown was not

mentally ill. It follows, he argues, there is a reasonable probability that if the

impeachment evidence had been disclosed or discovered and used against White

and Tucker, the jury would not have returned a verdict imposing a sentence of

death. That is the issue the state courts faced but it is not the issue we must

address, because our review of Brown’s claims is confined by 28 U.S.C. § 2254(d),

as explicated by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct.

1495 (2000). Under § 2254(d)(1) and the Williams decision, we can grant relief

only if we the state court decision denying relief is “contrary to” clearly established

federal law or is an “unreasonable application” of federal law.

      Brown does not dispute that the state habeas court correctly identified the

controlling law, which is found in Strickland v. Washington, but he contends that

the state court unreasonably applied Strickland’s prejudice prong. It is the

objective reasonableness, not the correctness per se, of the state court decision that

we are to decide. See Williams, 529 U.S. at 411, 120 S. Ct. at 1522 (“Under §

2254(d)(1)’s ‘unreasonable application’ clause, then, a federal habeas court may

not issue the writ simply because that court concludes in its independent judgment


                                           9
that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be unreasonable.”)

(O’Connor, J., concurring). We turn now to that issue.

      The evidence of Brown’s guilt was overwhelming. At the sentence stage,

Brown presented evidence of mental state mitigating circumstances, taking the

position that he was seriously mentally ill. He called two expert witnesses to

testify in support of the theory that he was schizophrenic, and he put forward some

documentary evidence of his mental condition. The State presented an expert

witness of its own whose testimony was that Brown was not schizophrenic. In

other words, there was the usual disagreement of expert witnesses. Brown’s

mother also testified to his mental problems and about his abusive childhood.

      The testimony of White and Tucker hurt Brown’s chances at convincing the

jury that he was mentally ill, because it strongly suggested he had planned, and was

faking, his mental defense. The effect the impeachment evidence would have had

on the sentence verdict, however, is limited for two reasons. First, much of the

evidence Brown touts as impeachment does not actually contradict the testimony

of White and Tucker. That evidence, insofar as it relates to White, establishes only

that White did not report the statement Brown made at booking to the prosecutor

until asked six years after the fact whether Brown had acted normally that night.


                                          10
White never claimed he had reported the statement any earlier. Moreover, the

habeas court found as a fact that White was not lying about having heard the

statement, and that is a factfinding which we must and do accept as presumptively

correct. See 28 U.S.C. § 2254(e)(1).

      Similarly, none of the impeachment evidence relating to Tucker directly

contradicts her testimony at the retrial, which is where the death sentence under

review originated. As the district court explained, Tucker’s statement to the police

about her initial conversation with Brown is not necessarily inconsistent with any

of her testimony during this retrial’s sentence hearing. Tucker’s testimony was that

Brown had told her while they were in a deputy’s car that she should act insane.

The evidence that Brown says could have been used to impeach that testimony is a

report of what Tucker told the police during an earlier interview, namely, that

Brown had made that statement to her “on at least one occasions [sic] when both

she and James Willie Brown had been transported to court and were in the holding

cell together.” The report’s second-hand recounting of Tucker’s statement to

police is sufficiently ambiguous that it is not worth much as impeachment.

      Brown also argues that at the first trial Tucker had testified that she later ran

into Brown at the dental clinic on the grounds of Central State Hospital and that is

where Brown, upon learning that she had been convicted, reminded her that he had


                                          11
told her to fake insanity. At this retrial, during the sentencing phase, Tucker

testified that she encountered Brown on the Central State Hospital grounds, but she

did not specifically identify the location as the dental clinic. At the habeas

proceeding, Brown introduced evidence that supposedly showed he and Tucker

were never at the dental clinic together. The impeachment value of that evidence is

diminished by the fact that although it contradicted one detail of White’s testimony

at the first trial, it did not conflict with any of her testimony at the retrial, and it is

the result of the retrial that we have under review.

       The second reason that the impeachment evidence aimed at the testimony of

White and Tucker has limited effect is that evidence other than the testimony of

White and Tucker also leads to the conclusion that Brown was faking his mental

illness. For example, there was undisputed evidence that within a day or two after

the crime Brown had sufficient possession of his mental faculties to have two tires

on the car he used in the abduction changed. His doing so was powerful evidence

of his consciousness of guilt, his awareness of the possibility he had left his

automobile’s tire tracks near the scene of the crime out on the old logging road,

and his efforts to avoid detection.

       The aggravating circumstances were unequivocal and overwhelming. The

jury found three statutory aggravating circumstances: (1) Brown had a prior felony


                                             12
conviction of armed robbery; (2) Brown committed the crime of rape during this

murder; and (3) the capital crime Brown committed was outrageously or wantonly

vile in that it involved both depravity of mind and torture to the victim before she

died. Not only that, but the jury also heard and was permitted to consider in

sentencing Brown the fact that he had previously attacked two other women in a

manner similar to the way he attacked the victim in this case, although those other

two women had managed to escape with their lives. The totality of the evidence at

sentencing weighs heavily against Brown on the prejudice issue. See Strickland,

466 U.S. at 695, 104 S.Ct. at 2069 (“In making this [prejudice] determination, a

court hearing an ineffectiveness claim must consider the totality of the evidence

before the judge or jury.”).

      In view of all of these circumstances, we conclude the state habeas court’s

decision that Brown had failed to establish the prejudice prong of his ineffective

assistance claims is objectively reasonable within the meaning of § 2254(d).

                               II. THE BRADY CLAIMS

      In addition to his ineffective assistance claims relating to the testimony of

witnesses White and Tucker, Brown pursues Brady claims relating to them. He

also presses a Brady claim relating to the potential testimony of an individual

named John Wood, who did not testify at either of Brown’s trials.


                                          13
                          A. Witnesses White and Tucker

      Brown’s Brady claims relating to witnesses White and Tucker overlap with

his ineffective assistance claim involving the impeachment evidence that might

have been used against those two witnesses. He argues that if it was not deficient

performance (and perhaps even if it was) for his counsel to fail to discover the

impeachment evidence that could have been used against White and Tucker, then

the State’s suppression of that evidence (or most of it) violated Brady. The state

habeas court bypassed the suppression issue by holding that the evidence was not

“material” for Brady purposes anyway. In this federal habeas proceeding, the

district court also denied relief, but on different grounds with respect to the

evidence relating to White and Tucker. As to White, the court concluded that the

State had not suppressed the evidence, and as to Tucker, the court concluded that

the evidence, although suppressed, was not material.



                                  B. Witness Wood

      Brown also contends that the State suppressed evidence relating to the

corroboration of his alibi. The evidence in question was a note saying that an

individual named John Wood had reported to the police that Brown’s brother had




                                          14
heard Brown come home at 12:30 a.m. on the night that Watson was killed.2 This

information, Brown contends, would have led to the discovery of his brother,

Johnny Brown, as a corroborating witness, which would have buttressed his

defense at the guilt stage of his retrial that he was home at the time of the murder.

Brown contends that this evidence would have made a difference at the guilt stage,

and if not there then at the sentence phase where he could have used it to make a

residual doubt argument.

       The state habeas court denied relief on the ground that Brown could not

show that the note was material. The court reasoned that this evidence would not

have any chance in changing the outcome of Brown’s retrial because the State’s

case against Brown was overwhelming. In this federal habeas proceeding, the

district court also denied relief, but did so on the ground that Brown could not

show that the prosecution had suppressed the note.

                               C. Analysis and Discussion

       We will assume for present purposes that the State suppressed the evidence

relating to these three witnesses, which leaves the materiality of component of the

Brady claim to be addressed. As with the ineffective assistance claims, we review

for objective reasonableness, not per se correctness. See 28 U.S.C. § 2254(d). The

       2
       According to Brown, the note stated, in relevant part: “John Wood–Brother to def. up
–12:30–heard James come in–Monday night–.”

                                             15
prejudice component of an ineffective assistance claim and the materiality

component of a Brady claim both require the same thing: the petitioner must

establish that but for the deficient representation or suppression, there is a

reasonable probability of a different result in the proceeding. Compare Strickland,

466 U.S. at 694, 104 S. Ct. at 2068 with Kyles v. Whitley, 514 U.S. 419, 433-34,

115 S. Ct. 1555, 1565 (1995). If the failure to use certain evidence does not result

in prejudice for ineffective assistance purposes, the suppression of some of that

same evidence will not be material for Brady purposes. With respect to the

impeachment evidence relating to witnesses White and Tucker, that evidence,

standing alone, is not material for Brady purposes for the same reasons we have

explained that counsel’s failure to discover and use it was not prejudicial for

ineffective assistance purposes.

       But in making Brady materiality determinations, the collective impact of all

of the suppressed evidence must be considered against the totality of the

circumstances. See Kyles, 514 U.S. at 441, 115 S. Ct. at 1569. In other words, we

must add to the effect of the impeachment evidence against White and Tucker any

additional effect that the note relating to John Wood would have had on the result

of the retrial.




                                           16
      At the retrial, Brown testified that on the night Watson was killed, he did not

go with her to the Mark Inn Lounge, but went there alone, left alone, and was

home by 12:30 a.m., which the defense argued was the earliest time that Watson

could have been killed. Brown’s wife was going to tell the jury that Brown was

home with her at 12:30 a.m., but on the day she was supposed to testify, she

invoked the spousal privilege. Since Brown was not aware of any other witnesses

who could testify that he was home at that time, his testimony, and defense, went

uncorroborated.

      The lack of corroboration hurt Brown’s chances of convincing the jury he

was home at 12:30 a.m., but whether or not he was home then or not was not

crucial to the prosecution’s case or to the jury’s verdict, either at the guilt stage or

the sentence stage. As the district court explained, the exculpatory value of the

note was limited because the time of death was never pinned down at trial. We

review this finding of fact for clear error and find none. There was no evidence

that definitively established the time of Watson’s death. The closest thing was the

testimony of Dr. James Howard, a Forensic scientist with the Georgia Bureau of

Investigation, who told the jury that based on the gastric contents and the rigor of

the body when it was found, Watson died approximately two to two and a half

hours after she ate her last meal.


                                           17
       When Watson ate her meal was never established with any certainty at trial.

There was evidence that Brown and Watson arrived at the Mark Inn Lounge

around 9:00 p.m., bringing with them at least some of their dinner in styrofoam

containers. There is no evidence about how much of their dinner was in those

containers, or when they first began eating that night. (Recall that Brown denied

going there with Watson that night.) It is entirely consistent with all of the

evidence that Watson could have finished her dinner by 9:30 p.m. and Brown

could have killed her by 11:30 p.m. There is no evidence at all that it would have

taken Brown more than an hour to get from the murder scene to his home.

      So, even assuming that the note about John Wood was suppressed, it adds

nothing to the cumulative weight of the other allegedly suppressed evidence – the

impeachment evidence relating to Tucker and White. It follows that the state

habeas court’s decision that Brown had failed to establish the materiality prong of

his Brady claims is objectively reasonable within the meaning of § 2254(d).



                            III. THE GIGLIO CLAIM

       Finally, Brown also contends there was a Giglio violation relating to

Tucker’s testimony at the sentence phase. In order to prevail on a Giglio claim,

Brown must establish that the prosecutor “knowingly used perjured testimony, or


                                          18
failed to correct what he subsequently learned was false testimony,” United States

v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995), and that the falsehood was

material. See Giglio v. United States., 405 U.S. 150, 92 S. Ct. 763 (1972); United

States v. Agurs, 427 U.S. 97,103, S. Ct. 2392, 2397 (1976). The materiality prong

is easier to establish with Giglio claims than with Brady claims. For Giglio

purposes, “the falsehood is deemed to be material ‘if there is any reasonable

likelihood that the false testimony could have affected the judgment of the jury.’”

Alzate, 47 F.3d at 1110 (quoting Agurs, 427 U.S. at 103, 96 S. Ct. at 2397).

      During the sentencing phase of the retrial, Tucker testified that she received

no benefit in return for her testimony against Brown, either in the first trial or in

the retrial. Brown’s Giglio claim is based upon his contention that the above

statement was false and that the State knew it. The State concedes that the

prosecutor took steps to help Tucker get transferred to a halfway house, but it

denies that he did so because Tucker had testified in this case. Instead, the State’s

position is that the prosecutor did that in return for Tucker’s cooperation with

authorities against her own co-defendants.

      Brown offers several documents which he contends show that Tucker lied on

the witness stand and that the prosecution knew it. He points to letters Tucker

wrote and phone calls Tucker made to the prosecutor’s office asking for help,


                                           19
including help in the form of a transfer. He further points to documents of the

Georgia Board of Pardon and Paroles and the Department of Corrections indicating

that the prosecutor talked with the Department of Corrections about Tucker being

assigned to work release. There is also the fact that the prosecutor intervened to

help Brown about eight months after Brown’s first trial. From those documents

Brown infers that the prosecutor did help Brown because of her testimony against

him.

       The state habeas court found as a fact that Brown had not shown that Tucker

had lied when she denied receiving favorable treatment in return for her testimony

at Brown’s first trial. The state court found no evidence in the parole board

documents, which are the centerpiece of Tucker’s claim, that the benefit she had

received was connected to her testimony in this case instead of to her cooperation

against her own co-defendants in another murder case. At another point in its

decision, the state habeas court also found that the timing of Tucker’s transfer did

not show that there was any inappropriate conduct between Tucker and the

prosecutor surrounding her testimony. In this federal habeas proceeding, the

district court agreed with the state court and found that Brown had failed to show

that the testimony of Tucker about receiving no benefits for her testimony against




                                         20
Brown was false. It followed that the state court’s denial of relief was objectively

reasonable.

      We review the state court’s conclusion that there was no Giglio violation for

objective reasonableness, not per se correctness. See 28 U.S.C. § 2254(d). We

take the state habeas court’s factual finding that there was no inappropriate conduct

between Tucker and the prosecutor surrounding her testimony as presumptively

correct.

      The essence of Brown’s contention is that the timing of the prosecutor’s

assistance can only lead to the conclusion that he assisted in response to Tucker’s

testimony against Brown. Yet the very document upon which Brown places so

much reliance, the memorandum evidencing the prosecutor’s communication on

behalf of Tucker with the Georgia Department of Corrections, clearly states that

the prosecutor was intervening because Tucker had been helpful in the prosecution

of her co-defendants in that murder case. Brown’s speculation that the timing

suggests, notwithstanding what the key document says, that the prosecutor actually

intervened because of Tucker’s testimony against Brown is not enough to carry his

burden of rebutting by clear and convincing evidence the state court’s contrary

factfinding. See 28 U.S.C. § 2254(e). The state court’s decision of this claim was

not objectively unreasonable.


                                         21
                            IV. CONCLUSION

    The district court’s judgment denying the petition for writ of habeas corpus

is AFFIRMED.




                                      22
BARKETT, Circuit Judge, concurring:

      I concur with the majority with the understanding that this decision does not

address the issue of whether Brown can at another time raise a claim under Ford v.

Wainright, 477 U.S. 399, 106 S. Ct. 2595 (1986).




                                        23
