                                                                   PUBLISH



                 IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                 _____________________________________

                             No. 95-6378
                 _____________________________________




HENRY F. HAYS,

                                             Petitioner-Appellant,

           versus


STATE OF ALABAMA,
C. E. JONES,

                                             Respondents-Appellees.

                  ______________________________________

           Appeal from the United States District Court
               for the Southern District of Alabama
                _______________________________________
                            (June 6, 1996)


Before KRAVITCH, EDMONDSON and BIRCH, Circuit Judges.



EDMONDSON, Circuit Judge:

     Henry Hays petitioned for a writ of habeas corpus, alleging

constitutional errors in the state court proceedings surrounding his

conviction for murder and sentence of death. The district court denied
relief. We affirm.1


                         FACTS AND BACKGROUND


      In 1981, the defendant Henry Hays ("Hays"), his father Bennie Hays,

and Henry's friend and later accomplice James "Tiger" Knowles were
following developments in the trial of a black man accused of killing a white

man. The three men, all members of the Ku Klux Klan, discussed the likely

public reaction to the hanging of a black man. Perhaps worried about
property values, Bennie Hays told his son and Knowles to do nothing until
Bennie had sold some apartments on Herndon Avenue.

      Shortly thereafter, according to Knowles's testimony, the property
sale closed.     Hays and Knowles got a rope, which they tied into a
hangman's noose, and a gun from fellow Klansmen. The two then set out

to look for a black man. They randomly found Michael Donald, pulled
alongside him in their car, and asked for directions. They forced him into
the car at gunpoint. Knowles made Donald empty his pockets; Knowles's

trial testimony indicates he wanted to be sure the victim was unarmed.




  1
   Shortly before the release of this opinion the Antiterrorism and Effective Death
Penalty Act of 1996 was signed into law; the Act aims to expedite the process of
federal collateral review. Because we deny the petition according to pre-existing
standards, we have no occasion to consider whether the Act provides a basis for the
denial of relief. We are confident the Act does not help Hays.

                                         2
     Hays found a desolate area and parked; all three men got out of the

car. Facing Hays and Knowles (who was holding the gun), Donald jumped

Knowles in an attempt to escape. After a struggle, Hays and Knowles
forced Donald to the ground. Hays retrieved the noose, and the two of them

put it around Donald's neck. Hays dragged Donald while Knowles beat him
with a tree limb; and when Hays's hands began to hurt, they switched.

When Donald collapsed, the two men dragged him, face first, across the

ground. Autopsy reports showed Donald probably died from asphyxiation
during this time.   Nevertheless, Henry Hays slashed Donald's throat.

Donald's body was found later that morning, hanging from a tree on
Herndon Avenue.

     Hays was charged after a two year investigation. The prosecution --
after requesting a continuance, ostensibly because it had not received
some evidence -- returned a new indictment one day before trial. At trial,

Hays was convicted; the jury recommended life without parole; but the trial
judge overrode the recommendation and sentenced Hays to death by

electrocution.

     On direct appeal, the intermediate appellate court reversed, holding
the trial judge lacked the power to override the jury's decision. Hays v.
State, 518 So.2d 749, 767-68 (Ala.Crim.App. 1985). The Alabama Supreme

Court reversed the appellate court and reinstated the death sentence. Ex
Parte Hays, 518 So.2d 768, 777 (Ala. 1986). The U.S. Supreme Court denied


                                    3
the petition for certiorari. Hays v. Alabama, 485 U.S. 929 (1988). Petitions
for post-conviction relief were denied by the Alabama state courts, and the
U.S. Supreme Court again denied certiorari. The present petition for habeas

relief was denied by the district court in a comprehensive opinion.



                                 DISCUSSION

I.          Trial Counsel's Strategic Decisions

      Hays argues his trial counsel was ineffective within the meaning of
Strickland v. Washington, 104 S.Ct. 2052 (1984), because he (1) failed to

interview Knowles early enough; (2) never spoke to several defense

witnesses before putting them on the stand; (3) failed to examine physical
evidence early enough; (4) failed to request funds for an investigator; (5)
failed to attempt to show cause why Hays was entitled to grand jury

materials; (6) failed to use the testimony of Hays's father; (7) failed to object
to the introduction of uncharged criminal offenses; (8) failed to object to the
trial court's failure to find mitigating circumstances; (9) failed to argue

Hays's sentence was disproportionate to Knowles's; (10) failed to object to

the court's failure to give a lesser included offense charge; and (11) failed
to object to the trial judge's override of the jury's sentence

recommendation.




                                       4
      The district court accepted Petitioner's assertions that these acts

constituted deficient performance. The court held, however, that because

the petitioner "completely omits any discussion of the prejudice prong" of
the Strickland formulation, and because the "evidence against the petitioner
at trial was such that even a flawless performance by counsel would have
had little effect on the outcome," there was no denial of effective

assistance.

      Petitioner's brief in this court also includes no discussion of how
better performance by trial counsel would have changed the likely outcome
of the trial or sentence; and we agree with the district court that absent

such a showing, Petitioner's Strickland claims fail. See, e.g., Strickland, 104

S.Ct. at 2068 (petitioner arguing ineffective assistance "must show that

there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different"). To allege

prejudice successfully, Hays must "show that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is
reliable." Lockhart v. Fretwell, 113 S.Ct. 838, 842 (1993) (citations and

internal quotation marks omitted).

      For those factors dealing with trial counsel's preparation of witnesses
and development of the facts (the claims numbered 1-6 above), Hays

provides no explanation of how better preparation might have changed the

course of the trial. Thus, the alleged errors cannot support reversal. See,


                                      5
e.g., Devier v. Zant, 3 F.3d 1445, 1452 (11th Cir. 1993) (declining to grant
relief where petitioner "has not carried his burden of showing how the
testimony of these witnesses would have changed if they had been better

prepared").

      For factors 7-11, Petitioner again fails to show with particularity how

the decision not to make the listed objections was constitutionally
unreasonable or prejudicial. For example, Hays nowhere argues that the

evidence of uncharged offenses was actually inadmissible or that that
evidence probably swayed the jury. See Strickland, 104 S.Ct. at 2068
(requiring prejudice to be shown). Nor does he succeed in demonstrating

that mitigating circumstances could have been proved under Alabama law.
In view of the overwhelming evidence supporting the verdict, we conclude

there has been no showing, under Strickland, that Hays's counsel's
allegedly unreasonable errors affected the outcome of the guilt or penalty

phases of the trial.




                                     6
II.        Refusal to Grant a Continuance



      Hays also argues he was denied effective assistance of counsel by the
trial court's refusal of his request for a continuance after the prosecution

returned a new indictment, alleging different facts, less than one day before
trial was to begin. The new indictment charged robbery-murder; the old

indictment had charged kidnapping-murder. Kidnapping-murder was not

punishable by death under the statute effective on the date of Donald's
murder. The original indictment did give notice of the state's intent to seek

the death penalty, but did not mention robbery or the use of a gun.
      As the Court noted in an analogous situation, the Constitution

"nowhere specifies any period which must intervene between the required
appointment of counsel and trial." Avery v. Alabama, 308 U.S. 444, 446, 60
S.Ct 321, 322, 84 L.Ed. 377 (1940). Thus, in this context, the courts must

"respect . . . the States' determination of local social policy." 308 U.S. at
447, 60 S.Ct. at 322. "[B]road discretion must be granted trial courts on

matters of continuances; only an unreasoning and arbitrary insistence upon

expeditiousness in the face of a justifiable request for delay violates the
right to assistance of counsel." Morris v. Slappy, 103 S.Ct. 1610, 1616
(1983) (citations and internal quotation marks omitted).

      This instance is not one where circumstances conspired to create a

"presumption" that ineffective assistance changed the likely outcome of the


                                     7
trial. In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657
(1984), the Court carved a narrow exception to the general rule that those
persons claiming ineffective assistance must show prejudice. 466 U.S. at

658-59, 104 S.Ct. at 2046-47; see also Stano v. Dugger, 921 F.2d 1125, 1152
(11th Cir. 1991) (en banc). Prejudice is presumed when counsel was either
totally absent or prevented from assisting the accused during a critical

stage of the proceedings, Cronic, 466 U.S. at 662, 104 U.S. at 2049, or if
counsel entirely failed to subject the prosecution's case to meaningful
adversarial testing. Id. But, this case is not one of those situations.

Therefore, Hays must show prejudice. Because he cannot, his ineffective

assistance claim fails.
      From the start, the strategy followed by Hays's trial counsel was to

contend that Knowles acted alone and later implicated Hays to increase his
chances of a reduced sentence. The decision to present an alibi defense
was not undermined by the prosecution's change in its theory of the

underlying felony.    Hays was simply not present during the murder,

according to the defense; and therefore the presence or absence of a gun
should not have significantly impacted the defense's preparation of

witnesses and arguments for trial.
      Because the denial of the continuance had no substantial impact on

the orderly preparation for trial, the circumstances of the denial of the

continuance are similar to (but, far less egregious than) the facts of Avery,


                                      8
supra. There Justice Black, writing for a unanimous Court, held that no
Sixth Amendment violation occurred when the petitioner's lawyers were
appointed on Monday for a trial scheduled to begin Wednesday and a

continuance was denied. Nothing concrete indicated that extra time could

have changed the trial's outcome.

       For one thing, Avery's trial took place in "a County largely rural,"
where access to witnesses is easier than elsewhere. Avery, 308 U.S. at 452.
Here, Hays's attorney had access to the only two witnesses to the murder.
And, the record at Avery's trial showed an "absence of any indication . . .
that [counsel] could have done more had additional time been granted." Id.

Hays's habeas counsel claims that interviews and tests pertaining to the
gun were necessary; but in the years since the trial, no evidence has

emerged to show that such a course would have changed the evidentiary
balance at trial. In addition, we also conclude, as discussed above, that

Hays has failed to make out a compelling case for ineffective assistance
based on trial counsel's strategic decisions. Thus, the facts in Avery, where
counsel was found not to be ineffective, closely parallel those here. And,

the substantial evidence supporting the fact of the robbery suggests that
even with more time, the verdict would have been the same. Thus, Hays

was not deprived of "a trial whose result is reliable." Lockhart, 113 S.Ct. at

842.




                                      9
III.            Suppression of Witness Testimony



           Hays argues the state violated its obligation to turn over exculpatory
evidence in its possession by withholding some 20 statements made by

Knowles, the state's main witness, which Hays alleges could have been
used to impeach. The District Court held that the state suppressed the

statements, and the defense had no other source.2                 Thus, Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires a new
trial if the petitioner has shown, in addition to the above two factors, that

the information was favorable to the defendant and that, "had the evidence
been disclosed to the defense, a reasonable probability exists that the

outcome of the proceedings would have been different." See United States

v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989) (setting out four-factor test for
determining whether evidence is Brady material).
           The issue is thus whether it is reasonably probable that the

suppression of the statements caused a different outcome at trial. The

Supreme Court recently decided Kyles v. Whitley, 115 S.Ct. 1555 (1995),
which discussed the "reasonable probability" standard of Brady. Without


       2
    As a preliminary matter, the district judge held that knowledge of statements in
the possession of federal agents could be imputed to the state. This conclusion was
based on the level of cooperation between the state prosecutors and the F.B.I. See
United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979) (looking to the "extent of
cooperation between the two governments" to determine whether possession should
be imputed). Citing no cases, the state argues here that the district court's holding
was error. We decline to conclude that the district court erred in this case on the
imputation issue.

                                         10
announcing new rules, the Court cited four guideposts for determining

materiality. First, "a showing of materiality does not require demonstration

by a preponderance that disclosure of the suppressed evidence would have
resulted ultimately in the defendant's acquittal." Kyles, 115 S.Ct. at 1566
(citing United States v. Bagley, 105 S.Ct. 3375, 3383-84 (1985). Thus,

undisclosed evidence can require a new trial even if it is more likely than
not that a jury seeing the new evidence would still convict. A defendant

must show simply that "the Government's evidentiary suppression

undermines confidence in the outcome of the trial." Kyles, 115 S.Ct. at 1566
(citations and internal quotation marks omitted).

     Second (and logically implicit in the first rule), a defendant need not
show there was insufficient evidence to convict in view of the suppressed

evidence. Id. Third, there is no harmless error review of Bagley errors. Id.
Fourth, materiality is to be determined collectively, not "item-by-item." Id.
at 1567.   The Supreme Court's reiteration, in Kyles, of the prejudice
standard of Brady is consistent with the threshold set by the district court.
     Whether a reasonable probability existed that the suppressed

evidence would have changed the outcome is a mixed question of law and
fact, and this court's review is de novo. United States v. Rivalta, 925 F.2d

596, 597-98 (2d Cir. 1991).

     The "statements" at issue are actually memos about statements made

by Knowles, recording the recollections of federal and state agents. Hays


                                     11
asserts two theories to explain why suppression of the statements requires

reversal: first, the suppressed statements, taken together, show Knowles

to be so totally unworthy of belief that a jury would have rejected his
testimony entirely. Second, specific inconsistencies in the statements

would have cast enough doubt on critical junctures in the prosecution's
version of the murder to undermine confidence in the verdict.

      Hays argues first that the suppressed statements, in total, showed

Knowles to be so inconsistent in his retelling of Donald's murder that no
rational juror could have credited Knowles's testimony. The district court

disagreed, writing that the suppressed statements show not a pathological
dishonesty, but rather a consistent progression from obfuscation to truth-

telling.   That is, Knowles's testimony, taken in the light of all of his
statements, shows a pattern of first withholding and then divulging more
and more of his ultimate version of the crime.3                Also, the withheld
statements are almost uniformly consistent with Knowles's trial (that is,

later) testimony. That the statements would have helped, rather than

hindered, Knowles's overall credibility at trial is thus very possible. In any
event, we agree with the district judge's observation that trial counsel

succeeded in compelling Knowles to admit to so many lies that the
marginal impact of the suppressed statements would have been


  3
   Knowles contends he withheld some aspects of the crime at first because,
though he wanted to confess, he was still uncomfortable revealing to authorities just
how "gruesome" the details of the crime were.

                                         12
insignificant.    Thus, we reject Hays's suggestion that the withheld

statements show such a pattern of inconsistency as to create a "reasonable

probability" that a jury hearing them would have rejected Knowles's
testimony in toto.
      In his brief to this court, Petitioner also enumerated several specific
inconsistencies between Knowles's earlier and later accounts of the crime,

each of which ostensibly could have been highlighted only by reference to

the suppressed statements. These are: (1) Knowles earlier said Donald
voluntarily agreed to ride in the car; he later said he used the gun to force
Donald into the car. (2) Knowles earlier said he and Hays picked Donald up

without intending to kill him; later he said they did so intend. (3) Knowles
earlier omitted any mention of the use of the gun; but he later admitted the
gun was used. (4) Knowles earlier said the cross-burning that occurred the

night of the murder was unrelated to the murder, and later contradicted this
statement.
      Taken together, these assertions do not undermine confidence in the

verdict. The main reason for this is that most of the asserted uses of the

suppressed statements would have been redundant, because Hays's

counsel in fact elicited testimony from Knowles on the witness stand
acknowledging that he had been inconsistent on many of the listed points.4

  4
   For example, when asked successively about a number of inconsistencies,
Knowles admitted lying about the fact that Donald got into the car voluntarily:

      Q. And you told [the investigating agent] in that same statement that you

                                         13
And on others (particularly the relatedness of the murder and cross-

burning), no obvious reason suggests that the jury would have regarded the

inconsistency as particularly significant. Therefore, we conclude that
Petitioner's argument on the materiality of the alleged Brady statements
fails.




called Michael Donald over to the car and he got in voluntarily to show you the way
to a club?
       A. Yes, sir.
       Q. That's another lie, huh?
       A. Yes, sir.

         Tr. Trans. at R-273.

      Knowles also admitted (more than once) that he had given numerous
statements, in his early rendition of the murder, in which he omitted any mention of
the use of a gun. For example:

      Q. Did you give [the previously read statement] to Mr. Tom Calhoun of the
Mobile Police Department?
      A. Yes, I did.
      Q. Did you make any mention in that statement about any gun?
      A. No, sir, I did not.

         Tr. Trans. at R-209.

      Finally, Hays's counsel did read a statement indicating an agent's recollection
that Knowles said "they [he and Hays] did not intend to hurt" Donald when they
picked him up. Tr. Trans. at R-208. This testimony was also contradicted by other
statements Knowles made on the stand.

      Thus, at least three of what Petitioner regards as the most effective uses of
the suppressed statements would in fact have added little or nothing to the defense
case.


                                         14
IV.         The State's Use of Allegedly Perjured Testimony



      Knowles testified at his plea hearing in federal court (pursuant to
which he was sentenced to life in prison) that he and Hays did not intend to

kill Donald when they picked him up or when they first got the rope with
which Donald was hung. But at Hays's trial, Knowles testified they set out

that night with the intent to kill a black man.

      Napue v. Illinois, 79 S.Ct. 1173, 1177 (1959), dictates that knowing use
by the prosecution of perjurious testimony violates a defendant's right to

due process. But, as the district court points out, there has been no
showing that Knowles's later, rather than earlier, testimony was false; and

the circumstances of Knowles's testimony (which show a progression
toward greater revelation of the truth) indicate it is likely the former was
untrue. Because Hays can cite no case holding that plea testimony must

be consistent with later testimony, use of Knowles's testimony did not
violate due process.
      Hays also contends the prosecution unconstitutionally refused to

disclose that Knowles's testimony was obtained in exchange for a plea
bargain.   Giglio v. United States, 92 S.Ct. 763 (1972), requires such

disclosure. Hays has inferred that because Alabama never prosecuted

Knowles for the murder, there must have been an agreement; the state

responds there was none. Hays has presented no evidence that there was


                                      15
an agreement between state agents and Knowles; and the jury was fully

informed of Knowles's plea agreement with the federal government. There

was no Giglio violation.


V.         The Sufficiency of the Evidence of Robbery-Murder



     Hays argues the state did not present sufficient evidence at his trial
to prove intent to rob. Intent to rob was an element of the underlying

offense, and therefore proof beyond a reasonable doubt was required under

In re Winship, 90 S.Ct. 1068, 1071 (1970).
     Donald was carrying money given to him by a relative when he was

last seen, and his wallet was not with the body. The money was never
found. Knowles testified he and Hays had Donald empty his pockets to
ensure Donald had no weapons. The district court found this satisfied the

intent requirement because Hays and Knowles intended to deprive Donald
of weapons, but instead deprived him of cash: "The fact that Donald did not
have the item Knowles and the petitioner were seeking does not render

their intent illusory, any more than the intent present in a mugger's 'Your

money or your life' demand is negated when the victim hands over his
watch in place of cash." Hays contests the analogy, arguing there was no

true intent to take weapons, only to ensure their absence.




                                    16
      The intent to rob under Alabama law is the intent to take and carry

away the personal property of another by force or by putting the other in

fear of the use of force. Davis v. State, 401 So.2d 187, 189 (Ala. Crim. App.
1981). Applying this test, the intent to deprive someone of weapons
provides the requisite intent, regardless of whether self-protection is the

overriding motive. Taking a wallet with this goal in mind is robbery; and,

therefore, Knowles's testimony on his and his accessory's state of mind is
sufficient evidence to convict for robbery-murder.

      Hays also asserts there was no intent to kill. He cites testimony by

Knowles that the two set out to harass, not to kill, a black person. But as
noted in the state post-conviction proceedings, under Alabama law
"[p]remeditation and deliberation may be formed while the killer is pressing

the trigger that fired the fatal shot." See Hays v. State, 599 So.2d 1230, 1238
(Ala.Cr.App. 1992) (citations and internal quotation marks omitted). Thus,

in view of the extensive testimony about Donald's ordeal (the beating with
the tree limb, the dragging by the noose, and the slitting of his throat), that

Hays might not initially have set out to kill Donald is of no consequence.


VI.         The Trial Judge's Override of the Jury Recommendation


      After the jury recommended life without parole, the trial judge
overrode the recommendation and sentenced Hays to death. At the time,

Alabama law was unsettled on what weight the trial judge had to accord the

                                      17
jury recommendation. Hays challenges the trial judge's decision to override

on a number of theories that are grounded, in his view, in the Eighth and

Fourteenth Amendments.




                                    18
      A.    Was Override of the Life Sentence Permitted Under
            Alabama Law?


      Hays cites a passage from Beck v. State, 396 So.2d 645, 663 (Ala.
1980), stating that "If the jury cannot agree on a sentence of death, the
defendant shall be sentenced to life imprisonment without parole." He

argues that this language from Beck precluded the trial judge's override of

the jury's life-without-parole recommendation, and he asserts that
Alabama's failure to follow its own law violated due process.
      Petitioner is due no relief on the grounds that Alabama has

misinterpreted its own law. See Pulley v. Harris, 104 S.Ct. 871, 875 (1984)
("A federal court may not issue the writ on the basis of a perceived error of

state law."). See also Parker v. Dugger, 111 S.Ct. 731, 742 (1991) (White, J.,
dissenting) ("It is axiomatic that . . . the views of the State's highest court

with respect to state law are binding on the federal courts.") (citing cases)
(internal quotation marks omitted). And even if we, as did the Court in

Pulley, assume for the sake of argument that some errors of state law might
be so "egregious" as to offend the due process or equal protection clause,

we conclude that the Alabama Supreme Court in Ex Parte Hays committed

no such error in reading the relevant language from Beck. A sufficient
reason for our conclusion is that Beck decided nothing about whether a

judge could impose death when the jury had voted for life imprisonment:



                                      19
that question was not presented in Beck.5               And to say the least, no

egregious error glares out of Ex Parte Hays's ultimate conclusion that the
death penalty law under which Hays was sentenced permitted upward
override.6 Thus, the state courts' alleged misinterpretation of Alabama law
gives rise to no ground on which the writ might issue.




      B.     Was Hays Afforded the Minimum Notice Required By the
             Constitution That Death Was a Possible Sentence?



  5
     As Chief Justice Marshall wrote in Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 399,
5 L.Ed. 257 (1821):
      It is a maxim not to be disregarded, that general expressions, in every
      opinion, are to be taken in connection with the case in which those
      expressions are used. If they go beyond the case, they may be
      respected, but ought not to control the judgment in a subsequent suit
      when the very point is presented for decision. The reason for this
      maxim is obvious. The question actually before the Court is
      investigated with care, and considered in its full extent.

  6
     After discounting the Beck dictum, Alabama's Supreme Court persuasively
explained why upward override is permitted. First, the court explained that the
quoted language could be squared with Beck's holding--that ultimate sentencing
authority lay with the judge--only by interpreting the quoted language to mean that if
the jury cannot unanimously agree on death, the jury shall recommend a sentence of
life imprisonment. Ex Parte Hays, 518 So.2d 768, 775 (Ala. 1986).
        Second, the court also explained why the 1975 Alabama death penalty act
explicitly allows the judge to override in favor of life but not in favor of death. This
seeming omission is because as initially drafted, the capital sentencing statute
simply did not allow a jury to recommend life imprisonment without parole in the first
place. Once the Beck decision permitted juries to recommend life, judges impliedly
became permitted to override in favor of death. See id. at 775-76.
        As the district judge pointed out, there are other instances when Alabama law
can most plausibly be read to afford the jury ultimate sentencing authority, but where
such is not the case (because the judge can override). The instant circumstances
present another one of those cases. Thus, we decline to hold that erroneous
application of state law to the petitioner violated the Fourteenth Amendment.

                                          20
     Petitioner's claim that there was inadequate notice of the possibility

of an override must likewise fail; and Lankford v. Idaho, 111 S.Ct. 1723
(1991), is not to the contrary. In Lankford, the Supreme Court held the

petitioner was afforded inadequate notice where the prosecution stated, in
response to a question from the trial judge, that the state would not seek

the death penalty. The trial judge there had never announced before the

sentencing hearing that death was a possible sentence. Here, however, the
defendant got two days' notice from the trial judge that he might override

the jury. And, the prosecution here sought the death penalty from the

beginning of trial, in contrast to Lankford. Because the prosecution's tack
gave Hays an incentive to build a case from the start for life imprisonment

rather than death, two days is sufficient notice.


     C.    Did the Alabama Sentencing Scheme Sufficiently Channel
           the Discretion of the Judge and Jury?



     Hays argues further that the Alabama sentencing scheme dividing the
responsibilities of jury and trial judge at the time he was sentenced was

standardless and failed to accord due deference to the jury's sentence
recommendation. The Supreme Court rejected this argument in Harris v.

Alabama, 115 S.Ct. 1031 (1995). In Harris, the court held there is no

constitutional requirement that a judge assign any minimum degree of

weight to a jury recommendation. The issue is simply whether "the scheme

                                     21
adequately channels the sentencer's discretion so as to prevent arbitrary

results." Id. at 1035. Considering a sentencing scheme materially identical
to the one here, the Harris Court held there was adequate channeling of

discretion.    Here, the trial judge was explicit about his reasons for
overriding the jury sentence, and he noted that he considered the jury

recommendation; there was therefore no violation of Hays's right to due

process.7


      D.      Did the Trial Court's 'Upward Override' Violate the Ban on
              Ex Post Facto Laws?


      Petitioner next contends the Alabama Supreme Court's decision in Ex

Parte Hays (holding application of the death penalty to be proper) functions
as an ex post facto law. As the district court held, and as we have

discussed earlier, however, the Alabama Supreme Court's decision
clarified, rather than altered, the meaning of the Alabama death penalty

statute pursuant to which Hays was sentenced. In view of this conclusion,

no need exists to address Petitioner's argument that the change in the law
was substantive, not procedural, under Dobbert v. Florida, 97 S.Ct. 2290,

2298 (1977).



  7
    Hays concedes in his brief that this argument is foreclosed by Harris but then
goes on to make the argument anyway, apparently in an effort to preserve the issue
for higher appellate review.

                                        22
      E.    Did the Motive For the Override Violate the Equal
            Protection Clause?


      Petitioner argues that the Alabama Supreme Court's mention of the

number of white defendants on death row in Alabama for the killing of

blacks (zero) indicates an intention to "balance the books" by considering
the petitioner's race in determining sentence, in violation of his right to

equal protection.     But, this mention was only part of an extended
discussion of elements favoring the imposition of the death penalty. These
elements were Hays's moral depravity, the shocking nature of the crime,
and the inability to explain the jury's sentence. And, even if the Alabama

Supreme Court did look at historical statistics, it might just as well not have
been to "balance the books" but to find some motivation to explain the

jury's failure to impose the death penalty. That is, the Alabama Supreme
Court was attributing a racial motive to the jury's decision, rather than
setting out a racial motive for its own decision to reinstate the sentence

imposed by the trial judge. See, e.g., Ex Parte Hays, 518 So.2d at 776-77
(noting that "[t]he jury's recommendation of life imprisonment in this case

is unquestionably a bizarre result," and recalling that in previous cases "the
death penalty had likely been imposed in an arbitrary or capricious manner

based upon racial discrimination").         By setting out this historical

background, the Alabama court was merely suggesting a possible reason

for a sentence that it would have reversed regardless of the jury's

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underlying methodology. Because Hays has failed to meet his burden of

showing a decision-maker acted with a discriminatory purpose, his equal

protection argument fails. McCleskey v. Kemp, 107 S.Ct. 1756, 1769 (1987).
     In conclusion, Petitioner's conviction did not violate constitutional
rights. The decision of the district court is AFFIRMED. The petition for the

writ of habeas corpus is DENIED.




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