                                                                  [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                  FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                       ________________________              JUNE 29, 2001
                                                          THOMAS K. KAHN
                             No. 99-14261                      CLERK
                       ________________________

                    D. C. Docket No. 95-01792-CV-C-S

GARY LEON BROWN,

                                                          Petitioner-Appellant,

                                  versus

CHARLIE P. JONES, Warden,
BILL PRYOR, Attorney General,
State of Alabama,

                                                       Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________
                             (June 29, 2001)


Before ANDERSON, Chief Judge, EDMONDSON and DUBINA, Circuit Judges.

ANDERSON, Chief Judge:
                   I. FACTS AND PROCEDURAL HISTORY

      On May 26, 1986, Gary Leon Brown, Archie Bankhead, James Bynum, and

Jimmy Davenport went fishing near Locust Fork, Alabama, about thirty miles north

of Birmingham. The men drank alcohol while they fished and then went to Chuck and

Willie's Lounge in Birmingham, where they continued to drink and played pool.

      While at the lounge, Brown, Bankhead, and Bynum discussed the possibility

of going to Jack McGraw's home in Pinson, Alabama, to obtain money. Brown and

Bynum were both familiar with McGraw. The four men then left the lounge and

headed to McGraw's home. Davenport drove, and Bynum gave directions. When

they arrived at McGraw's home that night, Davenport remained in the car, while

Brown, Bankhead, and Bynum went to McGraw's door and knocked. McGraw let

them in and said that he could not "party" with them that evening because he had to

go to work the next morning. When the three men began to leave, McGraw walked

outside with them. Bankhead then grabbed McGraw in a headlock, and Brown and

Bynum began hitting McGraw. Davenport also saw Brown make a "slashing"

movement at McGraw's neck. McGraw and Bankhead fell to the ground and

struggled. Bankhead, Brown, and Bynum then picked up McGraw and carried him

inside his home. Brown recalled Bankhead saying that they would have to kill

McGraw, because McGraw had seen Bankhead. Brown admitted that he repeatedly


                                        2
stabbed McGraw in the back with a small pocket knife. He claimed that either

Bankhead or Bynum caused the fatal wounds to McGraw's neck area.1

       After killing McGraw, Bankhead, Brown, and Bynum gathered McGraw's

possessions, loaded them in Davenport's car, and drove to Bankhead's house, where

they divided the stolen property and the money from McGraw's wallet and burned

their clothes which were covered in blood. According to Bankhead's wife, the men

joked about the murder. She overhead Brown telling Bankhead how he "kept stabbing

and stabbing and stabbing and stabbing" McGraw. She also heard Bankhead and

Bynum stating that they had cut McGraw's neck. The next afternoon McGraw's body

was discovered by a neighborhood child.

       A few days later Jefferson County deputy sheriffs found Brown at Bankhead's

house. Brown accompanied them to the Center Point substation and gave them a

statement that he and the other three men had gone fishing, to the bar, and then home.

After giving this statement, Brown rode with the officers to Bynum's house, where the

officers questioned Bynum while Brown remained in the squad car with one of the

officers. Bynum told the officers that Brown had inflicted all the stab wounds on

McGraw and struck his head with a skillet. Brown claims that the officers returned


       1
         McGraw suffered at least fifteen cuts to his neck, including several deep wounds
striking his carotid artery and jugular venous complex. He suffered fifty-nine stab wounds to his
back, the deepest of which were two inches deep.

                                                3
to the squad car, arrested him, and told him that Bynum’s statement reflected that

Bankhead stabbed McGraw and was the ringleader. Brown then gave a second

statement to the officers to the effect that Bankhead had inflicted all of the wounds on

McGraw. Later, after Brown learned that Bankhead had been arrested, Brown gave

a third statement in which he admitted that he stabbed McGraw in the back repeatedly

with a pocket knife and participated in the robbery along with Bynum and Bankhead.

      Brown was indicted for the capital offense of the murder of Jack McGraw

during a robbery in violation of § 13A-5-40(a)(2), Code of Alabama 1975. Brown’s

appointed counsel was Russell T. McDonald, Jr. The jury found Brown guilty of

capital murder as charged in the indictment. After the penalty phase of the trial, the

jury returned an advisory verdict for death by a vote of ten to two. After a sentencing

hearing, the trial judge accepted the jury's recommendation and sentenced Brown to

death. On direct appeal, the Alabama Court of Criminal Appeals, Brown v. State, 545

So. 2d 106 (Ala. Crim. App. 1998), and the Alabama Supreme Court, Ex parte Brown,

545 So. 2d 122 (Ala. 1989), affirmed Brown's conviction and death sentence. The

United States Supreme Court denied Brown's petition for writ of certiorari. See

Brown v. Alabama, 493 U.S. 900, 110 S. Ct. 257 (1989). On February 16, 1990,

Brown filed a petition for post-conviction relief under Temporary Rule 20 of the




                                           4
Alabama Rules of Criminal Procedure.2 Brown twice amended his Rule 20 petition.

An evidentiary hearing was held on Brown's petition, and on January 21, 1990, the

Rule 20 court denied the petition. The Alabama Court of Criminal Appeals affirmed

the denial of the Rule 20 petition, and the Alabama Supreme Court denied Brown's

petition for writ of certiorari. See Brown v. State, 663 So. 2d 1028 (Ala. Crim. App.),

cert. denied, 663 So. 2d 1028 (Ala. 1995). Brown then petitioned the district court for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254.3 On October 1, 1999, the

district court denied the petition, holding that most of Brown's federal constitutional

claims were procedurally barred and that his remaining claims failed on the merits.

       On appeal, Brown argues that his trial counsel was ineffective at both the guilt

and penalty phases of his trial because he failed to investigate and present evidence

of Brown’s drug and alcohol abuse and its effects upon his mental state at the time of

the crime. He also argues that his trial counsel was ineffective in failing to question

the jurors during voir dire to identify those who were biased in favor of the death

penalty. Brown then argues that his trial was rendered fundamentally unfair because



       2
          The rule is now Rule 32 of the Alabama Rules of Criminal Procedure, but we will refer
to the state post-conviction proceedings as the Rule 20 proceedings.
       3
         Because Brown's habeas petition was filed on July 14, 1995, prior to the enactment of
the Anti-Terrorism and Effective Death Penalty Act (AEDPA) on April 24, 1996, which
amended portions of 28 U.S.C. § 2254, we review Brown’s petition under the pre-AEDPA
standard. See Mincey v. Head, 206 F.3d 1106, 1130 n.58 (11th Cir. 2000).

                                               5
Davenport’s testimony was procured through coercive prosecutorial tactics. For the

reasons stated below, we affirm the district court’s denial of Brown’s habeas petition.4

                                        II. DISCUSSION

A. Ineffective Assistance for Failure to Introduce Evidence of Brown’s Alcohol and
   Drug Use

       Brown asserts that he received ineffective assistance during the penalty phase

of his trial because counsel failed to investigate and present evidence of Brown’s drug

and alcohol use and its effects upon his mental state. The district court denied

Brown’s claim, emphasizing the Rule 20 court’s findings that counsel’s failure to

present such evidence was part of his unified guilt and punishment phase strategy.

Brown argues that any such strategy was chosen without reasonable investigation or

preparation.

       Claims of ineffective assistance during the sentencing phase of a capital case

are subject to the two-prong analysis set out by the Supreme Court in Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To make out a successful claim,



       4
         Brown also argues on appeal that the state trial court’s failure to instruct the jury that it
did not have to be unanimous as to mitigating circumstances deprived him of a right to a
constitutional sentencing hearing and that the state trial court’s jury instruction on reasonable
doubt impermissibly shifted the burden of proof. We agree with the district court that both of
these claims are procedurally defaulted and thus we do not address these claims. Brown
additionally argues that the district court erred in not affording him an evidentiary hearing. We
conclude that the district court did not abuse its discretion in failing to hold an evidentiary
hearing.

                                                   6
Brown must show (1) that his counsel’s performance was deficient, and (2) that the

deficient performance prejudiced the defense. See id. at 687, 104 S. Ct. at 2064.

Ineffective assistance is a mixed question of law and fact, and our review is de novo.

See Williams v. Head, 185 F.3d 1223, 1227 (11th Cir. 1999).

      1. Performance Prong

      Under the performance prong, the standard is “reasonableness under prevailing

professional norms.” See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. Trial

counsel cannot be deemed “incompetent for performing in a particular way in a case,

as long as the approach taken ‘might be considered sound trial strategy.’” Chandler

v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc) (quoting Darden v.

Wainwright, 477 U.S. 168, 186, 106 S. Ct. 2464, 2474 (1986)).

      McDonald had over thirty years of experience in the practice of criminal law

and had prosecuted or defended dozens of capital cases. We have stated that the

“strong reluctance to second guess strategic decisions is even greater where those

decisions were made by experienced criminal defense counsel.” Chandler, 218 F.3d

at 1316 (quoting Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998)).

“The more experienced an attorney is, the more likely it is that his decision to rely on

his own experience and judgment in rejecting a defense . . . was reasonable under the

circumstances.” Gates v. Zant, 863 F.2d 1492, 1498 (11th Cir. 1989).


                                           7
        This is not a case where counsel failed to investigate with respect to Brown’s

drug and alcohol use. McDonald testified at the Rule 20 hearing that he was aware

of Brown’s background of drug and alcohol use and had discussed it with him. Based

on his more than thirty years of experience in trying cases in Jefferson County,

Alabama, McDonald testified that he believed that jurors are prejudiced against

criminal defendants who use drugs. McDonald testified that there was plenty of

evidence of Brown’s drug and alcohol abuse that he could have presented at the

penalty phase of the trial, but he rejected this line of defense in favor of one he

believed would be more effective: that Brown, who had a boyish appearance at the

time of trial, was a “follower” who was led into an act inconsistent with his character

by Bankhead, his co-Defendant, who was older and violent and had a more hardened

look.

        We readily conclude that McDonald’s decision not to present evidence of

Brown’s drug and alcohol use at the penalty phase in favor of a defense that he

thought would be more favorable was a reasonable tactical decision. See, e.g., Duren

v. Hopper, 161 F.3d 655, 661 (11th Cir. 1998) (readily concluding that counsel’s

decision not to present evidence of defendant’s history of substance abuse during the

penalty phase of trial was reasonable).

        2. Prejudice Prong


                                           8
      In order to prevail on this claim, Brown would also have to establish prejudice

from his counsel’s unreasonable assistance. See Horton v. Zant, 941 F.2d 1449, 1463

(11th Cir. 1991). A petitioner satisfies the prejudice prong when he shows that trial

counsel’s deficient performance deprived him of “a trial whose result is reliable.”

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. “The defendant must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068.

      We conclude that, in addition to failing to establish the performance prong of

his Strickland claim, Brown has also failed to establish the prejudice prong. At the

Rule 20 hearing, Brown presented witnesses whom he contended McDonald should

have called at trial. The Rule 20 court found that the testimony of these witnesses

either would not have been helpful to Brown or that such testimony was not credible.

The Rule 20 court found that the testimony of Brown’s family members and friends

concerning Brown’s drug use was exaggerated in an attempt to make him appear to

have a greater drug problem than he actually had. The Rule 20 court also found that

the amount of alcohol that Brown claimed to have consumed on the day of the

robbery/murder was substantially less than he claimed to consume on a regular basis

prior to the day of the crime. The Rule 20 court found that Brown had not suffered

from delirium tremors or other withdrawal symptoms, had exaggerated his drug use,


                                           9
and was not a credible witness. The Rule 20 court also concluded that the testimony

of Dr. Kirkland, Brown’s expert witness, that Brown suffered from diminished

capacity at the time of the crime due to alcohol or drug use would not have

outweighed the aggravating factors against Brown. Furthermore, the state’s expert,

Dr. Dixon, testified that Brown exaggerated his claims of drug and alcohol abuse.

Especially in light of the Rule 20 court’s findings of fact, we agree with the

conclusion of the Rule 20 court that the evidence of Brown’s drug and alcohol abuse

would not have been helpful to him; “there is no reasonable probability that the result

of the penalty phase would have been different, even if the suggested evidence of

alcohol and drug abuse had been explored in great detail.” Duren, 161 F.3d at 662.5

B. Ineffective Assistance for Failure to Engage in “Reverse-Witherspoon”6 Inquiry
During Voir Dire

       Brown also argues that McDonald rendered ineffective assistance when he

failed to ask potential jurors during voir dire whether they would automatically vote


       5
         Brown also claims that he received ineffective assistance due to McDonald’s failure to
present evidence of his drug and alcohol use during the guilt phase of his trial. Because we
conclude that McDonald made a reasonable tactical decision not to present evidence of Brown’s
substance abuse, given his opinion, based on years of experience, that juries are unsympathetic
to drug users, especially those like Brown who also dealt drugs, we hold that Brown has failed to
establish a claim of ineffective assistance with respect to the guilt phase of his trial.
       6
          The voir dire inquiry used to determine whether there are jurors who would vote
automatically to impose the death penalty if a defendant were found guilty of a capital crime is
referred to as the “reverse-Witherspoon” inquiry, because it arose from a line of death penalty
voir dire cases exemplified by Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770 (1968).

                                                10
to impose the death penalty if Brown were convicted of capital murder – a so-called

“reverse-Witherspoon” inquiry. The Rule 20 court and the district court rejected this

claim.

         1. Performance Prong

         At the Rule 20 hearing, Brown offered the testimony of two Birmingham

lawyers, Dan Turberville and Roger Appell, who testified that they always engage in

such “reverse-Witherspoon” questioning during voir dire. The Rule 20 court found

that the testimony of these two lawyers did not establish that McDonald’s failure to

ask the reverse-Witherspoon question during voir dire showed that his performance

was inadequate, because McDonald had as much, if not more, experience in criminal

defense than either of these lawyers.

         McDonald was not asked any questions during the Rule 20 hearing regarding

his failure to engage in a reverse-Witherspoon inquiry. Although during voir dire the

trial judge asked the potential jurors a few questions to determine whether any of them

was unalterably opposed to the death penalty, this questioning was limited. Thus,

McDonald may well have thought it better to avoid any focus on the death penalty.

McDonald’s decision not to ask potential jurors whether they would automatically

vote to impose the death penalty if Brown were convicted of capital murder appears

to have been a reasonable tactical decision, because it seems reasonable for trial


                                          11
counsel to want to focus the jury on the idea of the death penalty as little as possible.

Moreover, there is a strong presumption that McDonald’s actions were the result of

sound trial strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Nevertheless,

we need not decide whether Brown failed to establish the performance prong on this

claim, because we conclude that he failed to establish the prejudice prong.

      2. Prejudice Prong

      In order to establish the prejudice prong, Brown would have to show that, but

for McDonald’s failure to engage in the reverse-Witherspoon inquiry during voir dire,

the result of his trial would have been different. See Strickland, 466 U.S. at 694, 104

S. Ct. at 2068. For several reasons we conclude that Brown has failed to make the

required showing. First, during the penalty phase of the trial, the trial judge instructed

the jurors that their verdict should be based on the evidence and the law and that there

was no room for passion, prejudice, or other arbitrary factors. Brown argues that we

should presume that some of the jurors were biased in favor of the death penalty and

would have refused to follow the law. We have stated in numerous cases, however,

that jurors are presumed to follow the court’s instructions. See e.g., Ingram v. Zant,

26 F.3d 1047, 1053 (11th Cir. 1994) (“Because we presume that jurors follow such

instructions, we must assume that the jury put aside any biases it may have had,

applied the legal standards as enunciated in the jury instructions, and based its


                                           12
sentencing decision on the facts introduced at trial and sentencing.”); Raulerson v.

Wainwright, 753 F.2d 869, 876 (11th Cir. 1985) (“Jurors are presumed to follow the

law as they are instructed.”). Because we presume that the jurors followed the court’s

instructions to base their sentencing decision on the evidence and the law, and not on

arbitrary factors, Brown’s attempt to prove prejudice is undermined. See Stamper v.

Muncie, 944 F.2d 170, 177 (4th Cir. 1991) (holding that petitioner, who alleged

ineffective assistance based on counsel’s failure to “explore with certain members of

the venire the ‘reverse-Witherspoon’ inquiry,” failed “to demonstrate how any

shortcoming on trial counsel’s part constituted prejudice sufficient to satisfy the

second prong of the Strickland test”).7 Second, Brown failed to adduce any evidence

that any juror was biased in favor of the death penalty. Third, the heinous nature of

the crime and the absence of any mitigating factors make this a case in which the

prosecutor had a strong case for the death penalty. For these reasons, we conclude

that Brown has failed to show that McDonald’s decision not to engage in the reverse-

Witherspoon inquiry with the jury resulted in prejudice sufficient to satisfy the second



       7
         This case is distinguished from Ex parte Yelder, 575 So. 2d 137 (Ala. 1991), where the
Alabama Supreme Court presumed prejudice where trial counsel did not object, under Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), to the state’s use of its peremptory challenges to
strike 17 out of 18 black jurors. In Yelder, there was a prima facie case of purposeful
discrimination by the state in the jury selection process. See 575 So. 2d at 138-39. In this case,
Brown cannot show that any juror was predisposed to impose the death penalty nor that any juror
would have responded to or been excused because of a reverse-Witherspoon inquiry.

                                               13
prong of Strickland.

C. Davenport’s Testimony

       Brown argues that his conviction and death sentence violated his Eighth and

Fourteenth Amendment rights because Davenport’s testimony, which was directly

related to the issue of Brown’s intent, was procured through coercive prosecutorial

tactics.8 Brown analogizes his conviction to one obtained through the use of perjured

testimony. He argues that, where a witness’s testimony has been coerced, this creates

an unacceptable risk that a conviction might be obtained based upon perjured

testimony.

       When Davenport was interviewed by deputies shortly after McGraw’s murder,

he apparently admitted much of the involvement to which he later testified at trial,

including the fact that he drove Brown, Bankhead, and Bynum to McGraw’s home on

the fateful night, though he remained in the car. However, in his statement to the

officers at the time, he indicated that he had heard nothing about any plans to kill

McGraw in the car on the way to McGraw’s home. Shortly before trial, Davenport

was subpoenaed as a witness. One of the prosecutors in the case, Mike Anderton,



       8
          Respondents argue that this claim is procedurally defaulted because it was not raised at
trial or on direct appeal. The Rule 20 court found that the claim was procedurally defaulted.
The district disagreed, but dismissed the claim on the merits. Because we agree with the district
court that this claim fails on the merits, we need not decide whether this claim is procedurally
defaulted.

                                                14
flew Davenport to Birmingham. Anderton and Mike McGregor, the other prosecutor

in the case, met with Davenport the day before Brown’s trial and interrogated him for

two hours. The entire interview was taped. In response to a number of questions

early in the interview, Davenport denied having heard any conversation about killing

McGraw on the way to McGraw’s home. McGregor persisted in questioning

Davenport about this, insisting that he must have heard some conversation on the way

to McGraw’s home. Davenport finally said, “[They] said they was going to go over

to a queer’s house to do a job,” and then admitted having heard Brown, Bankhead, and

Bynum talking about hitting McGraw. After Davenport asked whether he could be

charged with this, one of the prosecutors said that he could be, but he probably would

not be,9 charged, but he went on to say that one case they would make if need be was

perjury if he lied on the stand. Anderton and McGregor told Davenport numerous

times that he must tell the truth.

       At trial, Davenport testified as to his involvement and what he saw and heard,

including the fact that, on the way to McGraw’s home, he heard a conversation in the

car about “going and killing a queer, or something like that.” He did not recall who

made that statement. He also said that Brown and Bankhead both asked Bynum how


       9
        The prosecutor later explained that Davenport’s involvement as the driver probably was
not enough to make a case against him, because there was no apparent intent on the part of
Davenport to take part in the crime.

                                              15
hard Bynum could hit. Davenport also testified that Brown asked Bynum, “Well, can

you knock this old man out?,” and Bynum responded “yes.”                   According to

Davenport’s testimony, Brown responded, “Well, if you can’t I can.”

      The interrogation methods used by the prosecutors when questioning Davenport

fall short of the level of egregiousness necessary to constitute a violation of Brown’s

constitutional rights. See Wilcox v. Ford, 813 F.2d 1140, 1148 (11th Cir. 1987). In

Wilcox, the petitioner argued that testimony against him had been coerced from two

witnesses and that this violated his due process rights and rendered his trial

fundamentally unfair. See 813 F.2d at 1148. The two witnesses, both of whom were

elderly, originally told the police that they knew nothing of the murder, but later, after

extensive interrogation, signed statements attesting to their involvement, as well as the

petitioner’s involvement, in the crime. The district court held that the “intimidation

tactics” used by the police violated the petitioner’s constitutional rights. We reversed.

The transcripts of the interrogation showed that the police had “threatened to charge

[one of the witnesses] with murder, threatened to lynch him, put words in his mouth,

and told him he was headed for eternal damnation.” Id. at 1147. Another witness was

interrogated for over eight hours without food or water and was told that he could be

sent to the electric chair or would die in prison. See id. We held that, while the police

misconduct was not commendable, the petitioner’s due process rights were not


                                           16
violated and he had received a fundamentally fair trial. See id. at 1148-49. We

reached this conclusion because the petitioner had full knowledge of the nature of the

two witnesses’ interrogation, had access to the tapes and transcripts prior to trial, had

an opportunity to use those materials when examining both witnesses, and was able

to cross-examine both witnesses. See id. at 1149.

      The rejection of Brown’s claim that his constitutional rights were violated

because Davenport’s testimony was coerced follows a fortiori from Wilcox. The

interrogation here falls far short of the much more egregious interrogation which

survived constitutional scrutiny in Wilcox. The interrogation in the instant case was

almost mild-mannered compared to that in Wilcox. It lasted only two hours and was

taped in its entirety. Brown’s trial counsel, McDonald, knew about Davenport’s

testimony on the first day of trial; and, as in Wilcox, Brown’s counsel had an

opportunity to review the taped interrogation before he cross-examined Davenport.

In fact, McDonald engaged in a lengthy cross-examination of Davenport concerning

the interrogation and the changes in his testimony after the interrogation. The taped

interrogation was also played for the jurors, which gave them an opportunity to

evaluate whether the prosecutors had used improper interrogation methods and

whether the interrogation had resulted in untruthful testimony, and gave them an

opportunity to assess the challenged interrogation and the reliability of Davenport’s


                                           17
testimony. The jury obviously concluded that the interrogation did not result in

untruthful testimony, but rather persuaded Davenport to abandon the few previous

untruthful statements to officers and to give truthful testimony to the jury. Based on

our own review of the challenged interrogation and Davenport’s trial testimony, we

conclude that Davenport’s trial testimony was both voluntary and truthful. Therefore,

we readily conclude that Brown’s constitutional rights were not violated due to the

introduction of Davenport’s testimony.

                                III. CONCLUSION

      For the foregoing reasons, the judgment of the district court denying relief is

AFFIRMED.




                                         18
