                   United States Court of Appeals,

                          Eleventh Circuit.

                             No. 94-6793.

                 Walter HILL, Petitioner-Appellant,

                                  v.

Ronald E. JONES, Commissioner, Alabama Department of Corrections,
Respondent-Appellee. (No. CV-90-N-0713-S), Edwin L. Nelson, Judge.

                           April 9, 1996.

Appeal from the United States District Court for the Northern
District of Alabama.

Before HATCHETT, COX and BLACK, Circuit Judges.

     BLACK, Circuit Judge:

     Walter Hill, an Alabama inmate convicted of capital murder and

sentenced to death, appeals the district court's denial of his

petition for a writ of habeas corpus.       Finding the district court

did not err in denying relief on these claims, we affirm.

                             I. BACKGROUND

A. The Crime

     Walter Hill was convicted and sentenced to death for the

January 1977 murders of Willie Mae Hammock, John Tatum and Lois

Tatum in the Booker Heights community of Jefferson County, Alabama.

In 1976, while residing in Jefferson County, Hill frequently

gambled and drank at Willie Mae Hammock's home in Booker Heights.

At the time, Ms. Hammock operated what has been described as a

"shot house"—an illegal social club—out of her home.      Ms. Hammock,

Toni Hammock, John Tatum, and Lois Tatum all lived in Ms. Hammock's

house.   John Tatum, a 31-year-old retarded man, was the brother of

Lois Tatum.    Toni, the 13-year-old ward of Ms. Hammock, was often
present at the house while patrons, including Hill, were gambling

and drinking.

     Hill apparently developed a romantic interest in Toni and

quarreled with Ms. Hammock approximately two weeks before the

murders when Ms. Hammock refused to allow Toni to go with him to

California.     On January 7, 1977, at approximately 4:30 in the

afternoon, Hill went to Ms. Hammock's home.       Sometime after he

arrived, Ms. Hammock gave Hill a pistol which he had left there on

an earlier occasion.    Hill asked whether he could marry Toni, but

Ms. Hammock refused her permission.

     Shortly thereafter, when Ms. Hammock turned to enter a closet

in a front bedroom, Hill followed and shot her in the back of the

head with his pistol.    Proceeding to the dining room, Hill shot

John Tatum twice in the head.   Hill then chased down Lois Tatum and

shot her in the back of the head as well.   Hill told Toni, who had

witnessed the shootings, he had "one more to kill."        Hill was

referring to Toni's 16-year old brother Robert.

     Hill and Toni drove to another house to get Robert.     Robert

got into the car with Hill and Toni, but threatened to jump from

the car when Hill was evasive about their destination.    Hill told

Robert he would "put a bullet in his head" if he attempted to

escape.   Hill, Toni, and Robert then drove to Georgia where their

car broke down.     At that point, Robert escaped and returned to

Birmingham where he discovered the bodies of Ms. Hammock and the

Tatums.

     After Robert escaped, Hill and Toni walked into a residential

neighborhood in Decatur, Georgia where they encountered Lewis
Nunnery. Hill and Toni told Nunnery they needed assistance getting

their car repaired, and Nunnery agreed to help.        After the three of

them got into Nunnery's car, Hill ordered Nunnery to drive them to

South Carolina.      Hill told Nunnery that he was a fugitive from

Alabama who had just killed three people and would kill again.

Hill warned he would kill the police or anyone else who tried to

stop him.

      Hill forced Nunnery on a drive that took them through South

Carolina and Tennessee.      After their car overheated and broke down

in North Carolina, Hill fell asleep and Nunnery escaped.            Nunnery

reported his abduction to the police, and Hill was arrested in the

disabled car on the side of the road.       Police found the pistol with

which Hill had killed Ms. Hammock and the Tatums in his pocket.

      At the time of his arrest, Hill was 45 years old and had spent

most of his adult life incarcerated.         In 1952, Hill was convicted

of second-degree murder in an Alabama state court and sentenced to

ten years' imprisonment. He was released from custody in 1960, but

a   year   later   was   convicted   in   federal   court   in   Alabama   of

kidnapping and interstate transportation of a stolen vehicle.              He

received a 25-year sentence for the crime.            While serving that

sentence in the federal penitentiary in Atlanta, Hill was convicted

of stabbing another inmate to death and was sentenced to an

additional five years in custody.         Hill was paroled in 1975 after

having served approximately 13 years of his federal sentences.             He

returned to live in Birmingham where less than two years later he

committed the murders for which he is sentenced to death.

B. State Court Proceedings
     In October 1977, Hill was convicted in Alabama circuit court

of capital murder in the killings of Ms. Hammock and the Tatums.

At the time, Hill was represented by attorneys William Short and

Jackie McDougal.      Following a sentencing hearing, Judge Harry

Pickens sentenced Hill to death.              The Alabama Court of Criminal

Appeals reversed the conviction after finding the prosecution had

improperly used "for cause" challenges to strike death-scrupled

jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88

S.Ct. 1770, 20 L.Ed.2d 776 (1968).             See Hill v. State, 371 So.2d

64, 67 (Ala.Crim.App.1979).

     Hill was tried a second time for capital murder before Judge

Pickens beginning on August 21, 1979.             At his second trial, Hill

was represented by McDougal and Robert Boyce.                     Hill was again

convicted    of   capital    murder,    and     Judge    Pickens      conducted   a

sentencing hearing on September 14, 1979, at which he orally

sentenced Hill to death.       Judge Pickens died before he could enter

a signed sentencing order.

     Thereafter, Judge Gardner Goodwyn assumed Hill's case.                  Judge

Goodwyn held a de novo sentencing hearing on February 19, 1980, to

determine whether Hill should be sentenced to death or life without

parole.     In preparation for this hearing, Judge Goodwyn read the

transcript of Hill's second guilt-phase trial in Judge Pickens'

court. Following the hearing, Judge Goodwyn made separate findings

of   fact     concerning      relevant        aggravating       and      mitigating

circumstances.     Judge Goodwyn found the evidence supported three

statutory    aggravating     circumstances:         (1)     the    murders    were

"especially    heinous,     atrocious    or    cruel,"    (2)     Hill   knowingly
created a "great risk of death to many persons," and (3) Hill had

been convicted of several prior violent felonies.                  Finding no

mitigating circumstances, Judge Goodwyn sentenced Hill to death.

      Represented by McDougal and Boyce, Hill appealed his second

conviction and death sentence to the Alabama Court of Criminal

Appeals.    The appeals court reversed Hill's conviction citingBeck

v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980),

where the Supreme Court held unconstitutional a portion of the

Alabama death penalty statute under which Hill was convicted. Hill

v. State, 407 So.2d 567 (Ala.Crim.App.1981).           The Supreme Court of

Alabama    denied    certiorari.      Hill    v.    State,   407   So.2d   567

(Ala.1981).     Neither McDougal nor Boyce represented Hill in any

proceeding after the petition for certiorari in the Alabama Supreme

Court.

      The State of Alabama petitioned the United States Supreme

Court for certiorari, arguing the Beck decision did not invalidate

Hill's conviction and sentence.            On June 14, 1982, the Supreme

Court vacated and remanded in light of Hopper v. Evans, 456 U.S.

605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).            Alabama v. Hill, 457

U.S. 1114, 102 S.Ct. 2920, 73 L.Ed.2d 1325 (1982).             After review,

the Alabama Court of Criminal Appeals affirmed Hill's conviction

and sentence.       Hill v. State, 455 So.2d 930 (Ala.Crim.App.1984).

The Alabama Supreme Court affirmed, Ex parte Hill, 455 So.2d 938,

939   (Ala.1984),     and   the   United   States    Supreme   Court   denied

certiorari.    Hill v. Alabama, 469 U.S. 1098, 1098, 105 S.Ct. 607,

608, 83 L.Ed.2d 716 (1984).         On his final petition to the United

States Supreme Court on direct appeal, only attorney Alan W. Howell
represented Hill.

      On December 5, 1985, Howell filed a petition for writ of error

coram nobis on Hill's behalf in the Circuit Court of Jefferson

County, Alabama.     The petition raised only one claim:                 that the

prosecution withheld exculpatory evidence from Hill's trial counsel

in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963).     On January 21, 1987, Circuit Judge James

Garrett held an evidentiary hearing on Hill's Brady claim.                  Judge

Garrett denied the claim by written order.              The Alabama Court of

Criminal   Appeals    affirmed,       Hill   v.     State,    541    So.2d     83

(Ala.Crim.App.1988),    and     the    Alabama      Supreme      Court     denied

certiorari, Ex parte Hill, 562 So.2d 315 (Ala.1989).

      On petition for certiorari to the United States Supreme Court,

Hill argued for the first time that his death sentence rested on

the   "especially    heinous,     atrocious        or   cruel"      aggravating

circumstance which had been applied in an unconstitutionally vague

manner in violation of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct.

1759, 64 L.Ed.2d 398 (1980) and Maynard v. Cartwright, 486 U.S.

356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).              The Supreme Court

denied certiorari on October 2, 1989.             Hill v. Alabama, 493 U.S.

874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989).

      In March 1990, Hill filed a second petition for collateral

relief in the Alabama trial court under Rule 20 of the Alabama

(Temporary) Rules of Criminal Procedure.1               In his petition, he

listed twelve claims, including the Brady claim denied in his 1985


      1
      Temporary Rule 20 is now codified as Rule 32 of the Alabama
Rules of Criminal Procedure.
coram nobis petition.   He also raised for the first time claims of

ineffective assistance of trial and appellate counsel.     Without

holding an evidentiary hearing, Judge Garrett dismissed all but the

Brady claim as barred under Alabama's "successive petition rule"

codified in Temporary Rule 20.2(b).   As for the   Brady claim, he

found it factually insufficient and concluded Hill was attempting

to reargue an issue previously litigated in the 1985 coram nobis

petition.

C. District Court Proceedings

     Hill, represented by attorneys Howell and Oliver Loewy, filed

a petition for habeas corpus in the district court for the Northern

District of Alabama on April 12, 1990.     On April 17, 1990, the

district court ordered Hill to make any amendments adding new

claims to his petition within 30 days.     Hill filed his amended

petition by the deadline, asserting seventeen grounds for relief.

In its answer, the State of Alabama (the State) countered that most

of Hill's claims, including those alleging ineffective assistance

of counsel, were procedurally defaulted under Alabama law.    Hill

responded to the State's procedural default defense in a footnote

of his reply brief.

     Seven months later, the court sua sponte      issued an order

questioning Hill's cursory reply to the State's procedural default

defense.    The court directed the parties to review and present

additional argument and authority on the default issues raised in

Hill's petition.   The court further noted that, in light of the

State's argument that most of Hill's claims were procedurally

defaulted, Hill may desire to claim Howell was ineffective in
failing     to     present    those    claims   in   Hill's   1985   coram   nobis

petition.        On March 22, 1991, Howell withdrew from the case so as

"to permit Mr. Hill to more clearly present issues critical to his

case."      Loewy continued to represent Hill.             By August 21, 1991,

Hill had not alleged his collateral counsel was ineffective, and

the court therefore assumed Hill had raised all the issues he

intended to present.

      The court still instructed Hill to file a supplemental brief

on the issue of procedural default.              Citing Coleman v. Thompson,

501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) and Johnson v.

Singletary, 938 F.2d 1166 (11th Cir.1991) (en banc), cert. denied,

506 U.S. 930, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992), the court

ordered Hill to address what effect, if any, these decisions had on

his claims.        In his supplemental brief, Hill raised three general

arguments        against     finding    most    of   his   claims    procedurally

defaulted.2        First, he argued that because this was his initial

federal petition, he was entitled to an evidentiary hearing on his

claims regardless of their status under state law.                    Second, he

contended the State did not adequately compensate his coram nobis

counsel or provide sufficient funds to investigate and present all

viable claims in 1985.           Third, he argued it would be manifestly

unjust to bar review of his claims on procedural grounds.

      On April 13, 1994, the district court dismissed Hill's claims

and       denied     his     petition     without     a    hearing.          In   a

      2
      Hill also argued claims of ineffective assistance of
appellate counsel were not cognizable in Alabama coram nobis
proceedings in 1985. Since this cause argument is particular to
the ineffective assistance claim, we will address it in section
II.B, infra.
thoroughly-researched and carefully-reasoned order, the court found

twelve of Hill's claims were procedurally defaulted, and determined

that Hill had failed to demonstrate cause and prejudice or manifest

injustice excusing the defaults. The court concluded the remainder

of Hill's claims, while not procedurally barred, were without

merit.

     Fifteen days after the court denied Hill's petition, Mr. Loewy

moved to withdraw as Hill's counsel, and Barry Fisher and Palmer

Singleton filed a notice of appearance on Hill's behalf.               Hill's

new counsel contemporaneously filed a "Second Amended Petition" for

habeas corpus, as well as motions to alter or amend judgment and

for an evidentiary hearing.            In these pleadings, Hill raised

several new arguments rebutting the State's procedural default

defense. The district court struck the second amended petition and

supplemental evidentiary materials as untimely in light of the

court's April 17, 1990, order.              The court further denied as

dilatory      Hill's   motions    to   amend   its   judgment   and   for   an

evidentiary hearing.

     Hill now appeals the district court's denial of his petition.

                                 II. DISCUSSION

         At   the   outset,   we    note   several    arguments   concerning

procedural default which Hill attempted to raise in the district

court through his untimely post-judgment motions reappear in his

briefs and argument before this Court.          As a general rule, we will

not entertain issues or arguments on appeal that were not fairly

presented to the district court.           Depree v. Thomas, 946 F.2d 784,

793 (11th Cir.1991); White v. State of Fla., Dept. of Corrections,
939 F.2d 912, 914 (11th Cir.1991), cert. denied, 503 U.S. 910, 112

S.Ct. 1274, 117 L.Ed.2d 500 (1992);                   Campbell v. Wainwright, 738

F.2d 1573, 1575-76 (11th Cir.1984), cert. denied, 475 U.S. 1126,

106 S.Ct. 1652, 90 L.Ed.2d 195 (1986).                    In its April 17, 1990,

order     and    several    hearings     with    Hill    and       his   attorneys,   the

district court ordered Hill to raise all claims and arguments early

in the review process.            The court went so far as to single out the

question        of   procedural     default     for    special      attention    by   the

parties.

      After more prodding by the district court, Hill filed a

supplemental brief on procedural default on September 20, 1991. As

noted above, he relied only upon this being his first federal

petition, the lack of state funding for his coram nobis counsel,

and   a   contention       of     manifest    injustice       to   rebut   the   State's

procedural default defense.              He did not attempt to apprise the

court of any new arguments on procedural default in the nearly two

and a half years between his filing of this brief and the district

court's judgment.          Thus, he had ample opportunity to raise several

of the new theories he now relies upon, but failed to do so.

      Although        we   will    discuss    these     new    arguments     below,    we

emphasize that even if they had merit, we would not grant relief on

these grounds.         Capital habeas cases present district courts with

complex and sometimes novel issues in subjects such as procedural

default, cause and prejudice, and retroactivity.                         Given the time

district courts must invest in researching and reviewing such

questions, courts must, as in this case, define early in the

process the issues they face in ruling on a petition.                        A court is
not obliged to stand by as successive teams of attorneys cull the

record and conjure up new arguments for the court to consider.3    At

some point, the court has to assume the parties have made their

arguments, and it can begin resolving the disputed issues.        The

district court in this case gave Hill ample opportunity to raise

all the arguments he intended to present before proceeding to rule

on his petition.   The district court correctly refused to consider

Hill's untimely arguments, and we will not sanction Hill's effort

to circumvent this ruling on appeal.

     With this in mind, we turn to Hill's claims on appeal.

Although Hill listed seventeen claims in his petition before the

district court, he has narrowed his appeal to six.    We find only

     3
      We note the attorneys who filed the post-judgment motions
in district court on Hill's behalf, Barry Fisher and Palmer
Singleton, were the third and fourth attorneys to represent Hill
in his state and federal collateral petitions. In an affidavit
filed with the district court, Fisher claims he agreed to
represent Hill in March 1994 and was reviewing the record in this
case when the district court entered its order denying Hill's
petition. According to Fisher, his review of the record and
additional legal research uncovered issues and claims which he
felt should have been raised in Hill's amended petition filed on
May 17, 1990. He felt obligated to present these claims and
arguments in the second amended petition and motion to amend the
judgment filed two weeks after the district court's decision.

          While Fisher allegedly uncovered issues prior counsel
     overlooked, the fact remains the second amended petition and
     the arguments in support of it were untimely. Hill's
     petition had been pending for four years at the time the
     district court issued its ruling. Hill had ample
     opportunity to amend his petition and raise pertinent
     arguments in support thereof. Though Fisher and Singleton
     appear to have acted with dispatch once they took up Hill's
     case, their late entry into the proceedings did not require
     the district court to postpone its review of the amended
     petition and await the views of these new attorneys. When
     they accepted Hill's case, Fisher and Singleton were bound
     by the district court's orders, the procedural posture of
     the case, and the decisions of Hill's prior counsel on what
     arguments to make to the court.
four claims merit discussion. 4              In them, Hill alleges:            (A)

ineffective assistance of trial counsel based on his counsel's

purported failure to conduct an adequate pre-trial investigation,

object to errors of the Alabama trial court, and present evidence

of mitigating circumstances during Hill's sentencing hearing;                  (B)

ineffective assistance of appellate counsel in failing to challenge

two aggravating circumstances relied upon by the Alabama trial

court in sentencing Hill to death;                 (C) his death sentence is

unconstitutional      under      Beck    because    he   was      precluded    from

presenting    evidence      in     support     of     jury     instructions     on

lesser-included offenses;           and (D) the prosecutor at his 1979

murder trial used his peremptory challenges to strike African-

American citizens from the jury panel in violation of Swain v.

Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

A. Ineffective Assistance of Trial Counsel

     Hill    argues   the     district    court     erred    in   dismissing   his

ineffective assistance of trial counsel claim without first holding

an evidentiary hearing when no hearing had been held on the claim

     4
      Hill also asserts: (1) the three aggravating circumstances
found by the Alabama trial court support his death sentence were
either not supported by the facts of the crime or were applied in
an unconstitutional manner by the court; and (2) he was denied a
reliable sentencing hearing because he was not permitted to
cross-examine certain state witnesses before the judge who
conducted the sentencing hearing in violation of Moore v. Zant,
885 F.2d 1497 (11th Cir.1989), cert. denied, 497 U.S. 1010, 110
S.Ct. 3255, 111 L.Ed.2d 765 (1990) and Proffitt v. Wainwright,
685 F.2d 1227 (11th Cir.1982), modified, 706 F.2d 311 (11th
Cir.), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697
(1983).

          We find these claims were procedurally defaulted and
     Hill has failed to demonstrate either cause or manifest
     injustice to excuse the bar. Hence, we affirm the district
     court's dismissal of these claims.
in state court.   Hill contends his trial counsel's failure to

investigate and present mitigating evidence, in combination with

other alleged errors, rendered their assistance constitutionally

ineffective within the meaning of Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).5

     Hill first raised a Strickland claim in his Rule 20 petition,

which was his second state collateral attack on his conviction and


     5
      In the district court, Hill alleged the following errors of
McDougal and Boyce in support of his claim of ineffective
assistance of trial counsel: (1) failure to conduct an adequate
pre-trial investigation of the crime and Hill's background; (2)
failure to raise a Swain challenge to the prosecutor's use of
peremptory challenges; (3) failure to obtain exculpatory
evidence in the hands of the prosecution; (4) failure to
challenge the prosecution's alleged improper guilt-phase closing
argument; (5) failure to challenge the aggravating circumstance
that the murders were "heinous, atrocious or cruel"; (6) failure
to challenge the aggravating circumstance that Hill had a prior
conviction for a violent felony; (7) failure to challenge the
aggravating circumstance that Hill had created a great risk of
death to many persons; (8) failure to challenge the sentencing
court's alleged reliance on the character of the victims in
sentencing Hill to death; (9) failure to challenge the
sentencing court's alleged refusal to consider non-statutory
mitigating circumstances; (10) failure to challenge the trial
court's denial of a jury hearing on whether the murders were
"heinous, atrocious or cruel" and whether Hill created a great
risk of death to many persons; (11) failure to challenge the
sentencing judge's alleged "presumption" in favor of death; (12)
failure to challenge the sentencing judge's alleged deference to
the jury having "fixed" Hill's sentence at death; (13) failure
to challenge the prosecution's introduction of an inaccurate copy
of Hill's 1967 homicide conviction; (14) eliciting damaging
testimony from Hill regarding his prior convictions during the
guilt phase of his trial; and (15) failure to challenge the
prosecution's elicitation of testimony from Hill regarding a
prior conviction.

          On appeal, Hill cites his attorneys' failure to conduct
     an adequate pre-trial investigation, failure to object to
     the alleged Swain violation, decision to have Hill testify
     during both the guilt and sentencing phases of his trial,
     and failure to present mitigating evidence during the
     sentencing phase of his trial in support of his ineffective
     assistance of trial counsel claim.
sentence.     By the time of his Rule 20 proceeding in 1990, Alabama

had codified its "successive petition rule":

     The court shall not grant relief on a second or successive
     petition on the same or similar grounds on behalf of the same
     petitioner.   A second or successive petition on different
     grounds shall be denied unless the petitioner shows both that
     good cause exists why the new ground or grounds were not known
     or could not have been ascertained through reasonable
     diligence when the first petition was heard, and that failure
     to entertain the petition will result in a miscarriage of
     justice.

Ala.Temp.R.Crim.P. 20.2(b).6      The Alabama trial court dismissed

Hill's ineffective assistance claim as procedurally barred because

Hill could have raised the claim in his 1985 state collateral

petition but failed to do so.

         Federal courts may not review a claim procedurally defaulted

under state law if the last state court to review the claim states

clearly and expressly that its judgment rests on a procedural bar,

and the bar presents an independent and adequate state ground for

denying relief.     Harris v. Reed, 489 U.S. 255, 260-61, 263, 109

S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989).      There are only two

exceptions to the procedural default rule. First, a petitioner may

gain federal review of an otherwise procedurally defaulted claim if

he can demonstrate both cause excusing the default and actual

prejudice resulting from the bar. Murray v. Carrier, 477 U.S. 478,

485, 106 S.Ct. 2639, 2644, 91 L.Ed.2d 397 (1986);     see Wainwright


     6
      Alabama Rule of Criminal Procedure 20.2(b) was enacted as a
temporary rule effective April 1, 1987. Toles v. Jones, 888 F.2d
95, 98 (11th Cir.1989), vacated, 905 F.2d 346 (11th Cir.1990),
reinstated, 951 F.2d 1200 (11th Cir.) (en banc), cert. denied,
506 U.S. 834, 113 S.Ct. 106, 121 L.Ed.2d 65 (1992). The current
Rule 32.2(b) of the Alabama Rules of Criminal Procedure replaced
Rule 20.2(b) effective January 1, 1991, and contains language
identical to that of its predecessor.
v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594

(1977). Second, in extraordinary cases, a federal habeas court may

grant the writ without a showing of cause and prejudice to correct

a fundamental miscarriage of justice. See Engle v. Isaac, 456 U.S.

107, 135, 102 S.Ct. 1558, 1576, 53 L.Ed.2d 594 (1982).                    To excuse

a default of a guilt-phase claim under this latter standard, a

petitioner   must    prove      "a    constitutional     violation    [that]   has

probably    resulted       in   the   conviction   of    one   who   is    actually

innocent."   Carrier, 477 U.S. at 496, 106 S.Ct. at 2649 (1986).                 To

gain   review   of     a    sentencing-phase       claim   based     on    manifest

injustice, a petitioner must show that "but for constitutional

error at his sentencing hearing, no reasonable juror could have

found him eligible for the death penalty under [state] law."

Sawyer v. Whitley, 505 U.S. 333, 346-48, 112 S.Ct. 2514, 2423, 120

L.Ed.2d 269 (1992).

       A state habeas petitioner is not entitled to an evidentiary

hearing in federal court on the merits of a procedurally defaulted

claim unless he can first overcome the procedural bar.                         This

requires showing either cause for failing to develop in state court

proceedings the facts supporting his claim, and prejudice resulting

from that failure, Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112

S.Ct. 1715, 1721, 118 L.Ed.2d 318 (1992);               Weeks v. Jones, 26 F.3d

1030, 1043 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct.

1258, 131 L.Ed.2d 137 (1995), or a "fundamental miscarriage of

justice would result from failure to hold a federal evidentiary

hearing."    Tamayo-Reyes, 504 U.S. at 11-12, 112 S.Ct. at 1721.                  A

petitioner is not entitled to a hearing on the threshold issues of
cause and prejudice or manifest injustice without first proffering

specific facts which support a finding that one of these exceptions

to the procedural default rule exists.     See Smith v. Wainwright,

741 F.2d 1248, 1261 (11th Cir.1984), cert. denied, 470 U.S. 1087,

105 S.Ct. 1853, 85 L.Ed.2d 151 (1985).

     Hill advances two arguments against finding his ineffective

assistance of trial counsel claim procedurally defaulted.      Hill

initially contends Alabama's successive petition rule, as applied

in his case, is not an "independent and adequate" state ground for

denying the claim.   Assuming we find Alabama's successive petition

rule supports the procedural bar, Hill claims he is still entitled

to a decision on the merits of the claim, and therefore an

evidentiary hearing, because the ineffectiveness of his coram nobis

counsel excuses his failure to raise a Strickland claim in his 1985

coram nobis petition.

1. Alabama's common law successive petition rule as an independent
     and adequate ground for procedural default.

      A state procedural rule cannot bar federal habeas review of

a claim unless the rule is "firmly established and regularly

followed."   Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850,

857, 112 L.Ed.2d 935 (1991) (quoting James v. Kentucky, 466 U.S.

341, 348, 104 S.Ct. 1830, 1835, 80 L.Ed.2d 346 (1984));   Cochran v.

Herring, 43 F.3d 1404, 1408 (11th Cir.1995), cert. denied, --- U.S.

----, 116 S.Ct. 776, 133 L.Ed.2d 728 (1996).          Prior to its

codification in 1987 as part of Temporary Rule 20, Alabama's

successive petition rule existed in the state's common law. See Ex

parte Cox, 451 So.2d 235, 238-39 (Ala.1983);    Waldon v. State, 284

Ala. 608, 227 So.2d 122, 123 (1969);     Ex parte Phillips, 277 Ala.
82, 167 So.2d 165, 166 (1964).           Thus, at the time Hill filed his

1985 petition, Alabama's successive petition rule existed only in
                           7
its common law form.            Hill argues that at common law, Alabama

courts randomly invoked the rule and at times reviewed the merits

of new claims raised in successive petitions.             Hill reasons that

because    the    rule    was   not   "firmly   established    and   regularly

enforced" at the time of his coram nobis proceedings, the rule

cannot support a procedural default of his Strickland claim.

         A review of the pleadings before the district court reveals

Hill raised this argument for the first time in his motion to amend

the judgment filed two weeks after the court dismissed Hill's

petition. Since Hill did not properly present this argument to the

district court, he cannot rely on it to gain relief in this Court.

         Alternatively, even if Hill had properly preserved this

argument,    it   would    be   unsuccessful    given   this   Court's   prior

holdings in Alabama capital habeas cases.           On several occasions we

have upheld procedural defaults based on Alabama's common law

successive petition rule. See Kennedy v. Herring, 54 F.3d 678, 684

(11th Cir.1995);     Weeks, 26 F.3d at 1043;       Toles v. Jones, 888 F.2d

95, 98-99 (11th Cir.1989), vacated, 905 F.2d 346 (11th Cir.1990),

reinstated, 951 F.2d 1200 (11th Cir.) (en banc), cert. denied, 506

U.S. 834, 113 S.Ct. 106, 121 L.Ed.2d 65 (1992);                Richardson v.

Johnson, 864 F.2d 1536, 1539-40 (11th Cir.), cert. denied, 490 U.S.

1114, 109 S.Ct. 3175, 104 L.Ed.2d 1037 (1989).            Implicitly, these

cases recognize Alabama's common law successive petition rule was

     7
      Hill's petition, however, was still pending in the Alabama
trial court on April 1, 1987, when Temporary Rule 20.2(b) came
into effect.
"firmly established and regularly followed" before it was codified

in Temporary Rule 20.2.       In the face of this precedent, Hill's

argument must fail.

2. Coram nobis counsel's ineffectiveness as cause.

      Given Alabama's successive petition rule is an independent and

adequate state ground for default, Hill must demonstrate either

cause and prejudice or manifest injustice to excuse the bar.

Relying on Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115

L.Ed.2d 640 (1991), Hill contends the ineffective performance of

his coram nobis counsel, Howell, excuses his failure to include his

Strickland claim in his 1985 state petition.           As noted above,

Howell argued only the Brady claim on Hill's behalf in the coram

nobis proceedings.

       As with his attack on the adequacy of Alabama's successive

petition rule, Hill failed to raise his cause argument premised on

Coleman until after the district court had rendered its final

judgment.   As a result, we will not credit this argument on appeal.

Hill's failure to preserve this issue, however, is of no moment.

Our   precedent   precludes   Hill    from   relying   on   the   alleged

ineffectiveness of his collateral counsel to excuse the procedural

default of not only his Strickland claim, but any other claim he

failed to include in his coram nobis petition.

      Hill's cause argument presumes he had a constitutional right

to counsel during the 1985 coram nobis proceedings.         For counsel's

ineffectiveness to establish cause, i.e., be a factor external to

the defense, it must be attributable to the state.          Coleman, 501

U.S. at 754, 111 S.Ct. at 2567.      Such error can only be imputed to
the state when the Sixth Amendment requires the state furnish the

defendant with effective counsel.              Id.;   see Carrier, 477 U.S. at

488, 106 S.Ct. at 2645.           While defendants have a Sixth Amendment

right to counsel at trial and on direct appeal, they do not have a

corresponding right to counsel when collaterally attacking their

convictions.      Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct.

1990, 1993, 95 L.Ed.2d 539 (1987).                 This is so even in capital

cases. Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct. 2765, 2770,

106 L.Ed.2d 1 (1989).

     Hill contends Finley and Giarratano do not prevent him from

citing his coram nobis counsel's ineffectiveness as cause given the

peculiar posture of his Strickland claim.                   Hill could not have

asserted this claim on direct appeal because his trial counsel

represented him on appeal as well.                 Since the 1985 coram nobis

petition    was      Hill's    first    opportunity    to     assert   a   claim   of

ineffective assistance of counsel, Hill reasons he was entitled to

constitutionally effective counsel in prosecuting that claim.                      In

Hill's view, his coram nobis counsel's ineffectiveness cost him his

one opportunity to raise a claim of ineffective assistance of

counsel    in   Alabama       courts.     Hill     contends    that    under   these

circumstances, his collateral counsel's ineffectiveness should

qualify as cause.

     In Coleman, the Supreme Court faced a similar but distinct

situation.      The petitioner inColeman raised a claim of ineffective

assistance      of    trial    counsel    in   a   Virginia     habeas     petition.

Coleman, 501 U.S. at 755, 111 S.Ct. at 2567.                Under Virginia law at

the time of the petitioner's trial and direct appeal, ineffective
assistance of trial counsel claims could only be brought in state

habeas.    Id. (citing state authority).         The state trial court

denied the petitioner's claim.    Id. at 727, 755, 111 S.Ct. at 2553,

2567. The petitioner's state habeas counsel then failed to perfect

a timely appeal of the denial.        Id. at 727-28, 111 S.Ct. at 2552-

53.   As a result, the claim was procedurally defaulted under state

law, and presumptively barred from federal review. Id. Like Hill,

the Coleman petitioner argued his habeas attorney's ineffectiveness

caused    the   default    of   his     Strickland     claim,    and     this

ineffectiveness should excuse the procedural bar.          Id. at 752-55,

111 S.Ct. at 2566-67.

      Addressing   this   argument,    the   Supreme   Court    in   Coleman

emphasized that "counsel's ineffectiveness will constitute cause

only if it is an independent constitutional violation."                Id. at

755, 111 S.Ct. at 2567.    The Court reiterated there was no right to

counsel in state collateral proceedings.             Id.   The Court then

noted, but left unanswered, the question of whether "there must be

an exception to the rule of Finley and Giarratano in those cases

where state collateral review is the first place a prisoner can

present a challenge to his conviction."         Id.    The Court found it

unnecessary to address this question because the petitioner in

Coleman had presented his Strickland claim to the Virginia trial

court, and that court ruled against him on the merits.          Id. at 755,

111 S.Ct. 2567-68. Hill claims his case fits the "exception" noted

in Coleman because unlike the petitioner in that case, Hill never

presented his ineffective assistance of counsel claim to the

Alabama trial court that heard his coram nobis petition.                Thus,
Hill asserts his coram nobis counsel's ineffectiveness can serve as

cause to excuse the default of his ineffective assistance of trial

counsel     claim   because     his   coram   nobis    counsel's        deficient

performance denied him his one opportunity to litigate this claim.

     In several post-Coleman decisions, this Court has rejected the

proposition that collateral counsel's ineffectiveness can serve as

cause excusing a procedural default.            In     Toles, we concluded

ineffective assistance of collateral counsel cannot serve as cause

and cited     Finley   in     support.    Toles,      888   F.2d   at    99-100.8

Likewise, in Weeks we again dismissed the argument that collateral

counsel's ineffectiveness can serve as cause excusing a procedural

default.    In doing so, we noted:

     The Supreme Court has clarified that attorney error or
     ineffective assistance of counsel in a state collateral
     proceeding is not cause to override a procedural bar that
     precludes review of a claim in federal court.

Weeks, 26 F.3d at 1046 (citing Coleman, 501 U.S. at 752-757, 111

S.Ct. at 2566-68).9

     8
      In reinstating the panel opinion in Toles, the en banc
court noted that the Supreme Court's holding in Coleman decided
the issue of whether collateral counsel's ineffectiveness could
serve as cause to excuse a procedural default. Toles, 951 F.2d
at 1201.
     9
      Like Hill, the petitioners in Weeks and Toles sought to
rely on ineffective assistance state collateral counsel to excuse
their default of ineffective assistance of counsel claims.
Weeks, 26 F.3d at 1042-46; Toles, 888 F.2d at 97.

          In Toles, the petitioner argued his coram nobis
     counsel's ineffectiveness should excuse his failure to raise
     a Strickland claim in his first state collateral petition.
     Toles, 888 F.2d at 99. Like Hill, the petitioner in Toles
     was represented by the same counsel at trial and on direct
     appeal, and different counsel in his coram nobis proceeding.
     Id. at 97. The coram nobis proceeding was therefore his
     first opportunity to present a claim of ineffective
     assistance of trial counsel. See id.
        Thus, the possible exception to            Finley and Giarratano the

Supreme Court noted in Coleman simply does not exist in this

circuit:      a petitioner may not rely on his collateral counsel's

ineffectiveness to excuse the procedural default of a claim even

when the state collateral proceeding was the petitioner's first

opportunity to raise the claim.             See also, Johnson v. Singletary,

938 F.2d at 1174-75 (citing Coleman and rejecting argument that

collateral counsel's ineffectiveness could serve as cause).                       To

recognize such error as cause, we would have to find a petitioner

has a constitutional right to counsel in collateral proceedings.

Finley and Giarratano hold otherwise;                  and the Supreme Court

emphasized this point in        Coleman.       As in     Toles and Weeks, we

decline to find an exception to the rule of Finley and Giarratano

that    would   allow    Hill   to    cite     his    coram    nobis      counsel's

ineffectiveness as cause excusing his failure to raise a Strickland

claim in his 1985 coram nobis petition.

       Since Hill's ineffective assistance of trial counsel claim is

procedurally     defaulted   and     Hill    has   failed     to   show   cause   or

manifest injustice, the district court did not err in dismissing

this claim without a hearing.

B. Ineffective Assistance of Appellate Counsel

       Hill   contends   McDougal      and    Boyce    were    constitutionally

ineffective when they failed to challenge on appeal two of the



            Similarly, the state coram nobis petition was the first
       opportunity for the petitioner in Weeks to assert a claim of
       ineffective assistance of trial counsel. See Weeks, 26 F.3d
       at 1033 (citing prior history indicating petitioner had same
       counsel at trial and on appeal, but different counsel at
       coram nobis).
aggravating circumstances relied upon by the Alabama court in

sentencing him to death.     Hill believes that given the undisputed

facts of how Ms. Hammock and the Tatums died, Alabama law at the

time of his sentencing would not have permitted the state court to

find the murders "heinous, atrocious or cruel" or that Hill's

conduct created a great risk of death to many others. 10             Hill

concludes his attorneys' failure to challenge these aggravating

circumstances    violated   his   constitutional   right   to   effective

counsel on direct appeal.    See Evitts v. Lucey, 469 U.S. 387, 396,

105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985).

     As with his claim of ineffective assistance of trial counsel,

Hill defaulted his appellate counsel claim by failing to assert it

in his 1985 coram nobis petition.       Though Hill presents several

arguments supporting cause excusing this default, only one merits

discussion.11

          Hill contends that claims of ineffective assistance of

appellate counsel were not cognizable in Alabama coram nobis

proceedings in 1985.   If Alabama law prevented such a claim at the

time Hill filed his coram nobis petition, then the legal basis for

the claim was unavailable to Hill and he would not be barred from

     10
      Hill also contends that at the time he was sentenced,
Alabama's "heinous, atrocious or cruel" circumstance was
unconstitutionally vague according to Godfrey v. Georgia, 446
U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Hill cites his
attorneys' failure to raise on appeal an "obvious" claim under
Godfrey as further evidence of their ineffectiveness.
     11
      Hill again proposes Alabama's common law successive
petition rule was not consistently enforced and therefore cannot
bar review of this claim. Hill also reiterates his belief that
ineffective assistance of coram nobis counsel amounts to cause.
We already addressed these arguments above, and found them waived
and without merit.
asserting it in his federal petition.                 Carrier, 477 U.S. at 488,

106 S.Ct. at 2645.      A careful review of Alabama case law, however,

reveals an Alabama coram nobis court would have entertained a claim

of ineffective assistance of appellate counsel back in December

1985.

     Prior to Hill's filing his state petition, Alabama courts had

stated generally that claims of ineffective assistance of counsel

were grounds for coram nobis relief.                  See Summers v. State, 366

So.2d 336, 341 (Ala.Crim.App.1978), cert. denied, 366 So.2d 346

(Ala.1979);           Sheehan     v.      State,       411    So.2d        824,     828

(Ala.Crim.App.1981).          Hill      does    not    contest     that    claims   of

ineffective assistance of trial counsel were cognizable in 1985.

Rather, citing Cannon v. State, 416 So.2d 1097 (Ala.Crim.App.1982),

Hill contends Alabama courts did not permit claims of ineffective

assistance of appellate counsel.               In Cannon, the Alabama Court of

Criminal   Appeals     stated    "allegations         of   inadequacy      of   appeal

counsel are not within the scope of coram nobis," but cited no

authority in support.         Cannon, 416 So.2d at 1100.                In 1991, the

same court characterized this language in Cannon as "dicta" and

counseled the statement "should not be interpreted to limit the

ability    of   the   trial     court    to    hear    a   claim   of     ineffective

assistance of appellate counsel."               Tedder v. State, 586 So.2d 50,

53 (Ala.Crim.App.1991).12
     Hill argues Tedder's "clarification" of Cannon and Alabama law

     12
      Cannon 's dicta was cited in only one case prior to
Tedder. See Holsclaw v. State, 481 So.2d 445, 446 n. 2
(Ala.Crim.App.1985). In Holsclaw, however, the reference to
Cannon was likewise dicta because the alleged attorney error in
Holsclaw occurred pre-judgment. See id. at 446.
came too late to permit him to assert a claim of ineffective

assistance of appellate counsel.          According to Hill,   Cannon 's

statement created, at a minimum, confusion as to whether claims

concerning ineffectiveness of appellate counsel were cognizable

throughout the time his petition was pending in state trial and

appellate courts.         Hence, he claims he cannot be faulted for

failing to include such a claim in his coram nobis petition.

     Hill's argument gives Cannon's statement weight it does not

deserve.       As the   Tedder court recognized, Cannon 's comment on

ineffective assistance of appellate counsel claims was dicta given

the nature of the claims raised in         Cannon.   Moreover, Cannon 's

unsupported statement is inconsistent with prior and subsequent

decisions in which Alabama courts entertained claims in coram nobis

proceedings premised on alleged post-judgment errors by counsel.

See, e.g., Ex parte Dunn, 514 So.2d 1300 (Ala.1987) (failure to

file briefs in support of appeal);         Jones v. State, 495 So.2d 722

(Ala.Crim.App.1986) (failure to timely perfect appeal by filing

transcript of trial), cert. denied, 514 So.2d 1068 (1987)13; Dawson

v. State, 480 So.2d 18 (Ala.Crim.App.1985) (failure to perfect

appeal);        Traylor v. State, 466 So.2d 185 (Ala.Crim.App.1985)

(failure to file motion for rehearing after conviction affirmed by

court     of     appeals);     Harrison    v.   State,   461   So.2d   53


     13
      Although Dunn and Jones were decided after Hill filed his
coram nobis petition in 1985, these decisions were handed down
while Hill's petition was still pending in the Alabama trial
court. Jones was decided September 9, 1986, prior to the Alabama
trial court's January 21, 1987 hearing on Hill's petition. The
Alabama Supreme Court issued its opinion in Dunn six months
before the trial court issued its first order denying Hill's
coram nobis petition in March 1988.
(Ala.Crim.App.1984) (failure to file brief in support of appeal);

Moffett v. State, 457 So.2d 990 (Ala.Crim.App.1984) (failure to

comply with the requirements of Anders v. California, 386 U.S. 738,

87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) in filing no merit letter);

Chappell v. State, 457 So.2d 995 (Ala.Crim.App.1984) (failure to

file brief in support of appeal);    Gwin v. State, 456 So.2d 845

(Ala.Crim.App.1984) (advising petitioner to dismiss direct appeal);

Thomas v. State,   373 So.2d 1264 (Ala.Crim.App.1979) (allegation

that counsel had "not properly represented" petitioner on appeal);
Brutley v. State, 358 So.2d 527 (Ala.Crim.App.1978) (failure to

timely file transcript of trial with appellate court);   Messelt v.

State, 351 So.2d 627 (Ala.Crim.App.1977) (failure to timely file

transcript of trial with appellate court).14

     14
      Hill contends Alabama courts distinguished between claims
where counsel failed to perfect an appeal, and claims grounded on
an appellate attorney's failure to raise certain issues.
According to Hill, Alabama courts granted collateral relief on
claims of the former type, but not the latter.

          In Longmire v. State, 443 So.2d 1265 (Ala.1982), the
     Alabama Supreme Court held the petitioner was entitled to an
     "out-of-time" appeal when his attorney failed to perfect a
     direct appeal of his conviction. Longmire, 443 So.2d at
     1269. Following Longmire, Alabama courts regularly granted
     coram nobis petitioners out-of-time appeals when their
     attorneys failed to perfect an appeal. See, Ex parte
     Sturdivant, 460 So.2d 1210, 1212 (Ala.1984), cert. denied,
     484 U.S. 862, 108 S.Ct. 180, 98 L.Ed.2d 133 (1987); Rodgers
     v. State, 453 So.2d 769, 770 (Ala.Crim.App.1984); Peterson
     v. State, 428 So.2d 201, 202 (Ala.Crim.App.1983). Hill
     argues Alabama courts deemed the failure to perfect an
     appeal a trial error rather than an appellate error. Thus,
     in Hill's view, Alabama courts would grant relief on these
     claims because they were not attributable to appellate
     counsel.

          The district court cited Longmire in concluding claims
     of ineffective assistance of counsel were cognizable in
     coram nobis proceedings in 1985. Hill contends the court
     erred in relying on Longmire because his claim is not a
     As these cases indicate, Alabama courts reviewed claims based

on alleged errors of appellate counsel prior to Hill's filing his

coram nobis petition in December 1985.   In Dawson v. State, a case

decided five months before Hill filed his coram nobis petition, the


     "Longmire " claim: he does not contend his attorneys erred
     in failing to timely perfect an appeal. Rather, he faults
     his attorneys for not raising a particular claim—a challenge
     to the trial court's reliance on two aggravating
     circumstances.

          Hill's distinction between "Longmire " claims and
     claims based on other appellate errors is not supported by
     Alabama case law. His argument ignores the cases cited
     above in which Alabama courts entertained coram nobis claims
     premised on errors of appellate counsel occurring after a
     timely appeal had been perfected. Although the courts in
     these cases did not state generally that claims of
     ineffective assistance of appellate counsel were within the
     bounds of coram nobis, neither did the courts dismiss these
     claims as being beyond the scope of the writ. We do not
     agree with Hill's suggestion that a state court had to
     affirmatively recognize the viability of an ineffective
     assistance of appellate counsel claim on coram nobis for him
     to be held accountable for omitting it from his petition.

          Hill's argument also mischaracterizes the decision in
     Longmire. Contrary to Hill's suggestion, the case did not
     create a distinct subclass of ineffective assistance of
     counsel claims cognizable on coram nobis because the errors
     were deemed errors of trial counsel rather than appellate
     counsel. In Jones v. State, 495 So.2d 722
     (Ala.Crim.App.1986), the court of appeals reviewed a coram
     nobis claim based on an attorney's failure to perfect a
     direct appeal by timely filing a copy of the trial
     transcript with the appeals court. Jones, 495 So.2d at 723.
     Although the court cited Longmire for support in granting an
     out-of-time appeal, it did not reason it could do so only
     because the petitioner presented a trial counsel claim. See
     id. at 723-25. Instead, citing Evitts, it noted defendants
     have the right to effective assistance of appellate counsel.
     Id. at 724. The Jones court further reasoned "the failure
     of counsel to perfect an appeal, resulting in the
     foreclosure of state appellate review, is a denial of
     constitutionally effective counsel." Id. Contrary to
     Hill's reading of Longmire, Jones suggests that Alabama
     courts granted out-of-time appeals in failure to perfect
     cases because such an error was per se ineffective
     assistance—regardless of whether it was considered error at
     the trial or appellate level.
court stated "[t]he improper denial of a defendant's constitutional

rights to appeal or to the effective assistance of counsel on

appeal constitutes proper grounds for coram nobis."          Dawson, 480

So.2d at 19.     If the failure of McDougal and Boyce to challenge the

aggravating circumstances was as egregious an error as Hill now

makes it out to be, then he should have been aware of the error at

the time he filed his coram nobis petition.        From the United States

Supreme Court's decisions in Evitts, Anders, and Strickland, Hill

knew he was entitled under the Constitution to effective assistance

of appellate counsel.         Had Hill filed this claim, the Alabama

courts would have reviewed its merits.15

       We therefore disagree with Hill's reliance on Cannon 's dicta

to argue the Alabama coram nobis court would not have entertained

his claim of ineffective assistance of appellate counsel.             Since

Hill has failed to show cause or manifest injustice excusing the

procedural default of this claim, he was not entitled to an

evidentiary hearing in the district court.

C. Beck Claim

        Hill was convicted of capital murder under Ala.Code § 13-11-

2(a)    (1975)   (repealed)    which   precluded   Alabama   courts    from

instructing juries on lesser included offenses in capital cases.

In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392

(1980), the Supreme Court found the preclusion clause of Ala.Code

       15
      Indeed, Alabama courts entertained an ineffective
assistance of appellate counsel claim in a coram nobis petition
filed by another Alabama death row inmate six months before Hill
filed his petition. See Waldrop v. State, 523 So.2d 475, 476
(Ala.Crim.App.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 184,
102 L.Ed.2d 154 (1988); Waldrop v. Thigpen, 857 F.Supp. 872, 889
(N.D.Ala.1994), aff'd, 77 F.3d 1308 (11th Cir.1996).
§ 13-11-2(a) unconstitutional because under the Eighth Amendment a

jury must be "permitted to consider a verdict of guilt of a lesser

included non-capital offense" in cases in which "the evidence would

have supported such a verdict."      447 U.S. at 627, 100 S.Ct. at

2384.     Hill claims his conviction was unconstitutional because he

was precluded from pursuing a defense based on a lesser-included,

non-capital offense.

     In Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d

367 (1982), the Supreme Court clarified when        Beck requires a

defendant receive a new trial.       Under   Hopper, a defendant is

entitled to a new trial if he can either:      (1) demonstrate there

was evidence produced at trial upon which a conviction for a

lesser-included offense could have been based;     or (2) suggest a

plausible alternative theory that might have been made in the

absence of the preclusion clause that was not contradicted by his

trial testimony. Hopper, 456 U.S. at 611-13, 102 S.Ct. at 2053-54;

Richardson, 864 F.2d at 1538.    Hill does not contend the evidence

produced at trial would have supported a lesser-included offense

instruction.     Instead, he suggests that in the absence of the

preclusion clause, he would have introduced evidence that he is

mentally impaired, suffers from brain damage, and was intoxicated

at the time of the shootings.     This evidence, according to Hill,

would have entitled him to instructions on non-capital murder or

even manslaughter.16

     16
      Much of the evidence of Hill's mental impairment and
alleged intoxication, together with McDougal's affidavit stating
he would have followed a strategy of attacking the mens rea
required for capital murder, was filed after the district court
issued its final judgment. Since this evidence was not timely
       Hill's theory, however, conflicts with his testimony at his

1979 trial.    On direct examination, Hill testified that he never

entered Ms. Hammock's home on the afternoon of the shootings.

According to Hill, when he drove up to the house that afternoon,

Toni met him outside carrying his pistol and her clothes.                  She

returned his pistol, placed her clothes in the car, and asked him

to drive her to Atlanta.         At that point, they took off with Hill

apparently unaware of the homicides.         The unmistakable thrust of

Hill's testimony was that Toni committed the murders and he did

not.

       According to Hill's sworn testimony at trial, he took no part

in the shooting of Ms. Hammock and the Tatums.                 Hill's belated

alternative theory that he shot them but was mentally impaired or

intoxicated at the time is contradicted by his trial testimony.

Hill is therefore not entitled to relief under Hopper.                     See

Richardson, 864 F.2d at 1538-39.

D. Swain Claim

       Hill alleges the prosecutor in his 1979 trial followed his

historical    practice    of   using   peremptory   challenges     to   strike

African-American citizens from the jury panel based on their race.

Hill contends this prosecutor's intentional discrimination against

African-Americans    in    the   selection   of   the   jury    violated   his

Fourteenth Amendment rights as stated in Swain v. Alabama.                 Hill

did not raise a Swain claim at trial, on direct appeal, or in

either of his state collateral petitions. The district court found


presented to the district court, the court properly ignored it in
rejecting Hill's Beck claim.
Hill had procedurally defaulted his Swain claim under Alabama law.

The court dismissed the claim after concluding Hill had failed to

establish either cause and prejudice or manifest injustice excusing

the default.     Citing Murray v. Carrier, Hill argues the ineffective

assistance of his counsel at trial and appeal excuses the default

of his Swain claim.

         Hill raised his ineffectiveness-as-cause argument for the

first time in his motion to alter or amend the district court's

final judgment.       Since this argument was not fairly presented to

the district court, we will not grant relief on this basis.              Even

assuming this argument was properly before us, we find it to be

without merit.

        In Carrier, the Supreme Court recognized that when counsel is

ineffective under the standard of Strickland v. Washington, this

may serve as cause within the meaning of Wainwright v. Sykes.

Carrier, 477 U.S. at 488, 106 S.Ct. at 2645.         The Court cautioned,

however, that the exhaustion doctrine "generally requires that a

claim of ineffective assistance be presented to the state courts as

an independent claim before it may be used to establish cause for

a procedural default."      Id. at 488-89, 106 S.Ct. at 2645-46.         Hill

acknowledges Carrier 's exhaustion requirement, but claims it does

not prevent his citing his counsel's ineffectiveness as cause.

Hill notes procedural default and exhaustion are distinct concepts

within habeas corpus law.         He contends Carrier allows petitioners

to rely on ineffective assistance as cause whenever an independent

claim    has   been   exhausted    regardless   of   whether   it   is   also

procedurally defaulted.       The State counters Hill should not be
permitted to rely on his counsel's performance as cause when he has

procedurally defaulted on his ineffective assistance claims in

state court.

     Initially,       we      note    the      issue       of     whether    a

procedurally-defaulted claim of ineffective assistance of counsel

can serve as cause under Carrier has not yet been decided in this

circuit.    See Jackson v. Herring, 42 F.3d 1350, 1358-59 n. 7, 1362

(11th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 38, 132 L.Ed.2d

919 (1995).    Citing Hollis v. Davis, 941 F.2d 1471 (11th Cir.1991),

cert. denied, 503 U.S. 938, 112 S.Ct. 1478, 117 L.Ed.2d 621 (1992)

and other cases, Hill states this Court has limited Carrier to

barring from serving as cause only unexhausted as opposed to

procedurally-defaulted claims of ineffective assistance. We do not

read Hollis or any other precedent in such a manner.

     In    Hollis,    the    petitioner     argued   his    trial    counsel's

ineffective assistance served as cause to excuse the default of a

claim that African-American citizens had been excluded from the

grand and petit juries that indicted and convicted him.                Hollis,

941 F.2d at 1476-79.        Although the petitioner in          Hollis had not

exhausted his ineffective assistance claim in Alabama state court,

we concluded he could rely on this cause argument because it would

have been futile for him to return to state court to press this

claim.     Id. at 1479.       The petitioner had filed at least three

previous pro se collateral petitions in state court.              Id. at 1473.

Each time the state court dismissed the petition without reaching

the merits.     Id.     We noted the petitioner's illiteracy, when

combined with his "inscrutable handwriting," had "greatly hindered"
his attempts to obtain post-conviction relief in the state courts.

Id.   Given these "particular facts" in               Hollis, we concluded it

would      have   been    futile    for   the     petitioner       to    exhaust       his

ineffective assistance of counsel claim as required by Carrier.

Id. at 1479.

        We do not see how our decision in Hollis has any bearing on

the     question     of     whether       Hill     can      cite        as     cause     a

procedurally-defaulted claim of ineffective assistance of counsel.

Unlike Hill, the petitioner in Hollis never defaulted his claim of

ineffective assistance in state court.               Furthermore, we found it

would have been futile for the petitioner in Hollis to exhaust an

ineffective       assistance       of   counsel     claim     given          the   unique

circumstances of his pro se status in state court, his illiteracy,

and the fact that on three separate occasions he had failed to get

an Alabama court to review the merits of his petition.                               Such

circumstances do not exist in this case.                 Neither Hollis nor the

rest of our precedent evince a reluctance to find Carrier prohibits

petitioners from relying on procedurally-defaulted ineffective

assistance claims.17        To the contrary, we conclude Carrier and the

rest of the Supreme Court's jurisprudence on procedural default

dictate      that    procedurally-defaulted          claims        of        ineffective


      17
      Hill also cites us to Orazio v. Dugger, 876 F.2d 1508
(11th Cir.1989); Bundy v. Dugger, 850 F.2d 1402 (11th Cir.1988);
and Walker v. Davis, 840 F.2d 834 (11th Cir.1988) as indicating
this Court has limited Carrier to requiring only that petitioners
exhaust their ineffective assistance claims in state court.
While these cases addressed the question of exhaustion under
Carrier, none of them concerned procedurally-defaulted
ineffective assistance claims. It strains both the facts and
reasoning in these cases to say we have limited Carrier in the
manner Hill suggests.
assistance cannot serve as cause to excuse a default of a second

claim.

     In Justus v. Murray, 897 F.2d 709 (4th Cir.1990), the Fourth

Circuit    rejected     a    similar    effort      by    a     petitioner     to    use   a

procedurally-defaulted ineffective assistance of counsel claim to

excuse the default of several underlying "substantive" claims. The

Justus court recognized Carrier 's reasoning is predicated on a

"sense of respect for the procedural default rule in the appellate

context."    Justus, 897 F.2d at 714.               While the procedural default

rule may further different goals than the exhaustion doctrine, this

does not mean these goals are not implicated when a federal court

reviews a procedurally-defaulted claim of ineffective assistance

when it is asserted as cause under Carrier.                      See id. at 713.

     The    procedural       default     rule    has      its    foundations        in   the

principles of comity and judicial efficiency.                     See Sykes, 433 U.S.

at 87-88, 97 S.Ct. at 2506-7.            To allow a federal court to review

a defaulted claim of ineffective assistance under the guise of a

cause analysis would ignore the fact that under the procedural

rules of Alabama and other states, the petitioner has forfeited his

right to have that claim reviewed by a state court.                           This hardly

amounts to respect for a state's right to enforce its procedural

rules.      This   is   especially       troubling        given        that   almost     any

procedural default of a constitutional claim can be characterized

as an attorney's error. Using a procedurally-defaulted ineffective

assistance    claim     to    open     the   door    to       review    of    underlying,

defaulted, "substantive" claims would render state procedural bars

meaningless in many cases.             We do not believe           Sykes and Carrier
countenance such a result.

      We therefore agree with the Fourth Circuit that Carrier stands

for   more    than   a   petitioner         must    simply    exhaust   a    claim    of

ineffective assistance before raising it as cause.                            Instead,

Carrier      requires    a    claim    of    ineffective        assistance    be     both

exhausted and not defaulted in state court before it can be

asserted as cause.           Justus, 897 F.2d at 714.            If the ineffective

assistance claim is defaulted, then a petitioner must demonstrate

independent     cause    and    prejudice          excusing   the   default     of    the

ineffectiveness claim before that claim can be asserted as cause in

relation to a second, substantive claim.                  Id.

       In the case before us, Hill cannot meet this burden.                          Hill

defaulted     his    claims    of     ineffective      assistance     of     trial   and

appellate counsel in the Alabama courts, and he has not shown cause

or prejudice excusing this default.18                 Hill therefore cannot rely

on his attorneys' alleged ineffectiveness to excuse the procedural

default of his Swain claim.

                                 III. CONCLUSION

      We have carefully reviewed the record and briefs of the

parties.       We are satisfied the district court did not err in

dismissing Hill's claims and denying the petition.

      AFFIRMED.

      18
      As discussed earlier, we find Hill's arguments for cause
excusing his default of his claims of ineffective assistance of
trial and appellate counsel unavailing. Alabama's successive
petition rule is an adequate and independent state ground
supporting default of these claims, see section II.A.1, supra,
and the alleged deficient performance of his coram nobis counsel
cannot serve as cause, see section II.A.2, supra. As for Hill's
appellate counsel claim, this claim was cognizable in Alabama
coram nobis proceedings back in 1985. See section II.B, supra.
