                                                                                      PUBLISH

                IN THE UNITED STATES COURT OF APPEALS
                       FOR THE ELEVENTH CIRCUIT

                           -------------------------------------------              FILED
                                        No. 97-6998                     U.S. COURT OF APPEALS
                                                                          ELEVENTH CIRCUIT
                                                                               03/11/99
                           --------------------------------------------
                            D. C. Docket No. 95-A-1035-N                   THOMAS K. KAHN
                                                                                CLERK


ROBERT LEE TARVER, JR.,

                                                              Petitioner-Appellant,

     versus


JOE S. HOPPER, Commissioner,
Alabama Department of Corrections,
BILL PRYOR, The Attorney General of
the State of Alabama,

                                                              Respondents-Appellees.



                 ----------------------------------------------------------------

                 Appeal from the United States District Court
                     for the Middle District of Alabama

                 ----------------------------------------------------------------
                                     (March 11, 1999)


Before TJOFLAT, EDMONDSON and COX, Circuit Judges.



EDMONDSON, Circuit Judge:
   Robert Lee Tarver, Jr., using 28 U.S.C. §


2254, challenges his death sentence.            We


affirm the district court’s denial of relief.




                BACKGROUND




   Tarver,     in   1985,   was   convicted      of


murdering Hugh Kite, the owner of Kite’s


Store.   The   State   proved     at   trial   that


Tarver shot Kite three times behind the


store and stole Kite’s wallet. See Tarver v.




                        2
State, 500 So.2d 1232, 1235-36, 1239-41 (Ala.


Crim. App. 1986).


   The    district   court   found     that,   in


preparation for Tarver’s trial, Tarver’s


lawyers    “made     a   deliberate    strategic


decision to concentrate on preparing for


the guilt phase of the Petitioner’s trial


based on his assessment of the likelihood of


an acquittal [and] that the trial counsel


dedicated      substantial            time     to


interviewing         numerous     community


members and relatives of the Petitioner,
                         3
not    only    in    an    attempt     to   discover


evidence of the Petitioner’s innocence, but


also in an attempt to prepare for the


sentencing phase.” The district court added


“that there was substantial overlap in the


trial counsel’s preparation for the guilt


and sentencing phases of the trial.”


     The parties continue to dispute whether,


at    the     time    of    Tarver’s    trial,    the


prosecution         had    an   agreement        with


Tarver’s       associate,       Richardson,      for


favorable      treatment        in     return    for
                            4
Richardson’s testimony.               The state courts


and the district court rejected Tarver’s


claim(s) based on this alleged agreement.


   The    jury      found          Tarver      guilty     and


recommended          life   without         parole.        The


Alabama trial court judge overrode the


jury’s    recommendation                 and     sentenced


Tarver to death.


   In     1986,    the   Supreme          Court       decided


Batson     v.     Kentucky,        476    U.S.   79     (1986).


About a month after the Supreme Court


decided   Batson,        the       Alabama       Court      of
                               5
Criminal    Appeals       affirmed   Tarver’s


sentence and conviction on direct appeal.


Tarver’s   petition   for    rehearing   was


denied, and the Alabama Supreme Court


denied relief. Four days after the Alabama


Supreme Court denied Tarver’s petition


for rehearing, the United States Supreme


Court decided Griffith v. Kentucky, 479 U.S.


314 (1987), making Batson retroactive to


all cases on direct appeal when Batson was


decided.




                      6
   Later, Tarver sought state collateral


relief under Temporary Rule 20 (now, Rule


32)    of    the   Alabama       Rules   of    Criminal


Procedure and raised, for the first time, a


Batson claim. After taking testimony, the


Rule 20 judge rejected this claim and others,


but he set aside Tarver’s death sentence,


ruling       that    Tarver’s            counsel   was


ineffective during the penalty phase.               The


Court of Criminal Appeals remanded the


case    to    the   trial       court    for   written


findings of fact and conclusions of law.
                            7
The trial court then said that, but for the


procedural bar to the Batson claim, he also


would find a Batson violation in Tarver’s


trial. The trial court repeated its decision


on the ineffectiveness of Tarver’s counsel.


The Alabama Court of Criminal Appeals


reversed   the     ineffectiveness    decision,


however, and ordered the trial court to


reinstate the death penalty. The Alabama


Supreme    Court    and    the   United   States


Supreme Court later denied discretionary


review.
                       8
   In 1995, Tarver filed a petition for


writ of habeas corpus in federal district


court.      The    case     was    referred   to    a


Magistrate         Judge.         The    Magistrate


recommended denying Tarver’s petition,


and the District Judge agreed.




                   DISCUSSION




   On appeal, Tarver advances his Batson


claim,    raises   ineffective      assistance     of


counsel    claims,     and      argues    that     the
                            9
prosecution breached its duty under Giglio


v. United States, 405 U.S. 150 (1972). We will


address each of Tarver’s claims separately,


giving   facts   found        by   state   trial    and


appellate    courts      a         presumption           of


correctness,     as   required       by    28   U.S.C.    §


2254(d).    See Mills v. Singletary, 161 F.3d


1273, 1277 n.1 (11th Cir. 1998).




A.   The Batson Claim




                         10
      We review de novo Tarver’s claim that


his    Batson         claim     is     not    procedurally


defaulted.     See Tower v. Phillips, 7 F.3d 206,


210    (11th   Cir.    1993).        Tarver     makes   two


arguments why we should hear his Batson


claim.     First, he says the federalism and


comity concerns embodied by our respect


for state procedural default rules do not


apply in this context because Alabama


courts    could       review         Tarver’s   claim   for


plain error and because Alabama’s Rule 20




                                11
courts     had   an    opportunity       to   review


Tarver’s Batson claim.


   “[T]he mere existence of a ‘plain error’


rule   does      not   preclude    a     finding    of


procedural       default,”    however.     Julius   v.


Johnson, 840 F.2d 1533, 1546 (11th Cir. 1988).


Likewise, state post-conviction proceedings


do not preclude a finding of procedural


default.    Tarver’s argument would allow


federal review of procedurally defaulted


claims in every state with state post-


conviction       proceedings.       This   result   is
                             12
clearly against our precedent and practice.


See Sims v. Singletary, 155 F.3d 1297, 1311 (11th


Cir. 1998) (we cannot review procedurally-


defaulted claims absent a showing of “cause


and prejudice” or “actual innocence”).


   Second, Tarver says we should decide his


Batson claim because Alabama has not


consistently applied the procedural default


rule on Batson claims.         He relies on our


statement in Cochran v. Herring, 43 F.3d


1404, 1409 (11th Cir. 1995):   “Alabama courts


have not consistently applied a procedural
                        13
bar     to    Batson        claims   in    cases   like


Cochran’s.”      We think, however, that “cases


like    Cochran’s”     are        cases   where     the


defendant (like Cochran) made a Swain

                        1
objection at trial.          Cochran distinguished


Tarver, 629 So.2d at 18-19, on this ground.


See Cochran, 43 F.3d at 1409.             The Cochran


court’s       later   statement       that    Tarver


    1
       Swain v. Alabama, 380 U.S. 202 (1965),
was the predecessor to Batson.             To prove
a Swain violation, a defendant had to
show a systematic exclusion of blacks
from juries over time.            See id. at 223;
Love v. Jones, 923 F.2d 816, 819-20 (11th
Cir. 1991).
                             14
“suggest[s]” that the Alabama procedural


default   rule   is   applied     inconsistently


cannot sustain the weight Tarver places


upon it, in the light of the panel’s explicit


statement that “Alabama courts have not


consistently applied a procedural bar to


Batson claims asserted in state collateral


petitions where the defendant had raised a


Swain     objection   at     trial.”   Id.   More


important, the Cochran court was not


faced with a case where no Swain objection


was made at trial; and, therefore, they
                        15
could make no binding decision about such


a case. See New Port Largo, Inc. v. Monroe


County, 985 F.2d 1488, 1500 (11th Cir. 1993)


(Edmondson,       J.,   concurring),     cited    with


approval in Combs v. Plantation Patterns,


106 F.3d 1519, 1533 (11th Cir. 1997).


    We cannot say that Alabama courts


have been inconsistent in applying the


procedural     default     rule    to    cases,   like


Tarver’s, that is, where no Swain objection


was made at trial. Tarver cites to no case


(and   we   can    find    none)    in    which    an
                          16
Alabama court ignored the procedural bar


and decided a Batson claim when no Swain

                                     2
objection was made at trial.             Batson


claims   not   raised   at   trial   have   been


procedurally defaulted. See, e.g., Ross v. State,


581 So.2d 495, 496 (Ala. 1991) (citing cases);




   2
    Tarver cites Watkins v. State, 632
So.2d 555 (Ala. Crim. App. 1992), and cases
cited by Watkins, to say that “Alabama
courts have not strictly or consistently
applied the procedural default rule to
Batson claims.”    The pertinent cases are
distinguishable because they all involved
Batson claims raised on direct appeal,
and most involved plain error review.
                        17
Bonner v. State, 564 So.2d 99, 99 (Ala.


Crim. App. 1990).


   We also reject Tarver’s argument that


his case is like Morrison v. Jones, 952 F.


Supp. 729 (M.D. Ala. 1996), and Floyd v. State,


571 So.2d 1234 (Ala. 1990).   The petitioners


in Morrison and Floyd both raised Swain


objections at trial, dropped the claim on


appeal, but got a review on the merits of


their   Batson      claim.    Tarver   argues,


according to Smith v. Murray, 477 U.S.


527 (1986), that the appellate defaults in
                        18
Morrison and Floyd are indistinguishable


from his default “at the trial level.”       But


Alabama can pick its own procedural rules


and has done so here.       For some reason


(like the chance for trial courts to cure


errors in the first instance) Alabama has


chosen to allow Swain claims defaulted on


appeal, but not those defaulted at trial, to


proceed to collateral review on the merits


if the case was on direct appeal when


Batson   was     decided.   Smith     does   not


command     --   as   Tarver   says    it    does
                       19
command -- that Alabama treat its trial


and appellate defaults the same.            Smith


requires that we treat trial and appellate


defaults equally, if Alabama does so.         We


cannot require Alabama to treat trial


and     appellate   defaults   the   same   when

                                       3
Alabama has not chosen to do so.




    3
     Tarver’s argument that Griffith v.
Kentucky, 479 U.S. 314 (1987), allows him to
raise his Batson claim in post-
conviction proceedings is foreclosed by
Pitts v. Cook, 923 F.2d 1568, 1571 & n.3 (11th
Cir. 1991).   We decline his invitation to
“revisit” Pitts.
                        20
B.   The Ineffective Assistance of Counsel


Claims




     We       review    Tarver’s             ineffective


assistance of counsel claims de novo.                 See


Holsomback v. White, 133 F.3d 1382, 1385 (11th


Cir. 1998).


     Tarver argues that his trial counsel was


constitutionally ineffective for failing to


raise a Batson-type objection at trial. We


have      said,   however,        that   a   lawyer   who


failed to make a Batson challenge before
                             21
Batson     did   not    provide     ineffective


assistance of counsel.       See Pitts, 923 F.2d


at 1574; see also Poole v. United States, 832


F.2d 561, 565 (11th Cir. 1987).


   Tarver says three facts distinguish his


case from Pitts and Poole, but we disagree.


First, Tarver says his trial counsel knew of


“the systematic use by the prosecutor of


[per]emptories to exclude blacks from the


jury.”   Our examination of the record,


however, shows that Tarver’s trial counsel


never     said   that    blacks   were   struck
                        22
“routinely” because of their race alone.


During        state        collateral   proceedings,


Tarver’s      trial   counsel’s    testimony       was


that “on occasion,” when he had been a


prosecutor,           he     had    struck     black

                                               4
veniremembers based on race alone.




    4
     These facts distinguish Tarver’s case
from Jackson v. Herring, 42 F.3d 1350 (11th
Cir. 1995).   In Jackson, the petitioner
introduced “overwhelming” evidence of a
Swain violation, including the
prosecutor’s testimony that there was
widespread and systematic misuse of
peremptory challenges by the state.           Id.
at 1359-60.
                             23
   Second, Tarver says his trial counsel


could   give   no   tactical   reason   for   his


failure to object to the discriminatory use


of peremptory challenges.       This argument


misses the point:     to be effective, Tarver’s


lawyer did not need a reason because he


was not obligated to have anticipated the


Batson decision.       See Pitts, 923 F.2d at


1573.    Tarver might complain that his


lawyer was unimaginative, but a lack of


creativity does not constitute ineffective


assistance.    See id. at 1574.   Futility also
                        24
justifies Tarver’s lawyer’s refusal to object


because no evidence in this case would have

                                  5
supported a Swain violation:          the only


valid objection available at that time. See


Lindsey v. Smith, 820 F.2d 1137, 1152 (11th Cir.


1987); see also Reece v. United States, 119 F.3d


1462, 1465 (11th Cir. 1997) (lawyer’s failure to



   5
    For reasons explained elsewhere, we
are unpersuaded by the anecdotal
evidence of two defense lawyers (who had
practiced in Russell County) about the use
of Batson-type challenges and by the
practice of one prosecutor who struck
jurors for race alone “on occasion,” as
evidence of a Swain violation.
                       25
challenge kind of methamphetamine for


sentencing     was   not    prejudicial      when


evidence shows court used correct kind of


methamphetamine).


   Third, Tarver presents the testimony of


two   lawyers     that     lawyers      in    the


community were at the pertinent time


routinely raising Batson-type objections


at trial.   The Rule 20 court in this case,


however, found that making a Batson-type


challenge   before   Batson    was   “not     the


normal      generalized    practice.”        And,
                      26
Alabama courts have said that failure to


make a Batson challenge before Batson is


not ineffective. See Horsley v. State, 527


So.2d 1355, 1357-58 (Ala. Crim. App. 1988).


     Tarver       says    his     trial      lawyer    was


constitutionally ineffective by failing to


prepare      adequately         for    the   sentencing


phase.    Tarver says his trial counsel should


have devoted more time to preparation


and      should    have      presented        additional


witnesses in the penalty phase of the trial.


We    think,      however,      that    Tarver’s      trial
                             27
lawyer provided the assistance of counsel


required by the Constitution.


   Tarver’s trial lawyer testified that he


consulted with a lawyer at the Southern


Poverty Law Center about how to proceed


with   Tarver’s     case        and   concluded    that


focusing    on     Tarver’s       acquittal   of    the


capital offense was the best approach to


defending Tarver.          He met with Tarver


almost     daily   from         the   time    he   was


appointed until the trial. And he testified




                           28
that   either   he,   his    co-counsel,    or   an


investigator interviewed every witness


Tarver    thought     would     be   helpful      as


mitigation witnesses, including Tarver’s


mother,    grandmother,          aunt,      cousin,


girlfriends,    former        employers,         and


members    of   the   community.           Tarver’s


lawyer said he presented every witness he


thought would be helpful. Tarver’s lawyer did


present the testimony of Tarver’s Uncle.


Tarver’s uncle said they were like brothers,




                        29
that Tarver was no troublemaker, and had

                      6
no criminal “bent.”            Tarver’s lawyer also


presented    an   expert         to   testify   about


Tarver’s successful polygraph test result, a


test in which Tarver denied killing Kite.


   Tarver’s     lawyer’s         preparation     for


sentencing was, at least, within the broad


range of reasonable performance we have


recognized in other cases. See, e.g., Waters


v. Thomas, 46 F.3d 1506, 1510-11 (11th Cir. 1995)



   6
    This testimony was substantially
refuted by Tarver’s criminal record.
                          30
(en   banc)     (holding        no   ineffectiveness


shown under the circumstances and saying


we “have held counsel’s performance to be


constitutionally        sufficient         when   no


mitigating        evidence            at    all   was


introduced”).    Dobbs v. Kemp, 790 F.2d 1499


(11th Cir. 1986) (no ineffective assistance


for   failure      to      present         mitigating


evidence because counsel feared damaging


counter evidence); Stanley v. Zant, 697


F.2d 955 (11th Cir. 1983) (no ineffective




                           31
assistance for talking only to defendant


and defendant’s mother and presenting


no   mitigating     evidence).      Tarver’s


lawyer’s effectiveness at the sentencing


stage is strongly evidenced by the jury’s


decision to recommend not death, but life


without parole.   We think Tarver’s trial


lawyer’s efforts toward sentencing are


constitutionally adequate.    See Burger v.


Kemp, 107 S. Ct. 3114, 3126 (1987) (lawyer not


required to investigate and present all




                      32
available     mitigating       evidence     to    be


reasonable).


      Tarver relies on the fact that Tarver’s


lawyer only spent four hours on Tarver’s


case     between       the    conviction         and


sentencing to argue that Tarver’s lawyer


did    not   adequately       prepare     for    the


sentencing stage.       Like the district court,


we believe this argument is “inaccurate


and misleading,” because of the overlap in


preparation      for    the    sentencing        and




                         33
guilt/innocence stages of the trial.             For


example, Tarver’s lawyer’s meeting with


the potential witnesses took place before


sentencing.


   The record shows that Tarver’s lawyer


tried to create sufficient residual doubt


about   Tarver’s    guilt      during   trial    and


sentencing    to   add,    in    reality,   another


mitigating factor to the jury’s sentencing


deliberations.      That        the   creation    of


lingering doubt was part of the strategy of




                          34
Tarver’s       lawyer    is    evidenced    by   the


polygraph          examiner’s     testimony      at


sentencing and Tarver’s lawyer’s closing


sentencing          argument.      The    polygraph


examiner testified that Tarver did not lie


when asked, in different ways, if he killed

               7
Hugh   Kite.         During    Tarver’s    lawyer’s


   7
    At the time of Tarver’s trial, how a
sentencing jury might consider residual
doubt about the defendant’s guilt had not
been directly addressed by Alabama
courts.   At any rate, Tarver’s lawyer was
not unreasonable to believe that the use
of evidence and argument linked to
lingering doubt was sound strategy.
Tarver’s trial judge accepted that
                          35
closing   argument      at   the   sentencing


hearing he said repeatedly that he did not


want to “challenge the verdict.”      But he --


without drawing objection -- added:


   I   would   hope   that   the   evidence


   presented both in the case-in-chief


   last week and anything that you


Tarver’s lawyer could present the
polygraph test results to the jury at
sentencing.
   The jury recommended against death.
Although in Alabama the judge is the
ultimate sentencer, the jury’s
recommendation must be considered; and
having the jury on the side of life is
bound to help a defendant some.
                       36
   have heard today might be sufficient


   to raise in your mind at least a


   shadow   of    a    doubt   about   the


   defendant’s guilt, and if that doubt


   exists in your mind, I would pray


   that you would resolve it in favor


   of the defendant.




   A   lawyer’s   time      and   effort     in


preparing to defend his client in the guilt


phase of a capital case continues to count




                       37
at      the   sentencing            phase.       Creating


lingering doubt has been recognized as an


effective strategy for avoiding the death


penalty.         We have written about it.               See,


e.g., Stewart v. Dugger, 877 F.2d 851, 855-56


(11th     Cir.     1989).           In       addition,     a


comprehensive study on the opinions of


jurors in capital cases concluded:


          “Residual         doubt”        over      the


     defendant’s            guilt    is   the    most


     powerful        “mitigating”            fact.--[The




                               38
  study] suggests that the best thing a


  capital      defendant     can    do   to


  improve his chances of receiving a


  life sentence has nothing to do with


  mitigating         evidence      strictly


  speaking.     The best thing he can do,


  all else being equal, is to raise doubt


  about his guilt.




Stephen   P.   Garvey,     Aggravation    and


Mitigation in Capital Cases:         What do




                      39
Jurors Think?, 98 Colum. L. Rev. 1538, 1563


(1998) (footnotes omitted); see William S.


Geimer     &    Jonathan           Amsterdam,      Why


Jurors Vote Life or Death:                Operative


Factors in Ten Florida Death Penalty Cases,


15   Am.   J.   Crim.   L.    1,   28   (1988)   (“[t]he


existence of some degree of doubt about the


guilt of the accused was the most often


recurring explanatory factor in the life


recommendation cases studied.”); see also


Jennifer Treadway, Note, ‘Residual Doubt’




                         40
in Capital Sentencing:      No Doubt it is an


Appropriate Mitigating Factor, 43 Case W.


Res. L. Rev. 215 (1992).    Furthermore, the


American Law Institute, in a proposed


model penal code, similarly recognized the


importance       of   residual      doubt    in


sentencing by including residual doubt as a


mitigating circumstance.       So, the efforts


of   Tarver’s   lawyer,    during   trial   and


sentencing, to create doubt about Tarver’s


guilt may not only have represented an




                      41
adequate performance, but evidenced the


most effective performance in defense to


the death penalty.


   We   are   also   unpersuaded     by   the


admission     (during     state    collateral


proceedings) of Tarver’s lawyer that he had


not prepared adequately for sentencing.


See Atkins v. Singletary, 965 F.2d 952, 960


(11th Cir. 1992) (admissions of deficient


performance are not significant).         As


noted by the Rule 20 court and the District




                     42
Court, Tarver’s lawyer’s decision to focus


on       an   acquittal     at      the   expense        of


sentencing       was   “a        deliberate       decision.”


State v. Tarver, 629 So.2d 14, 21 (Ala. Crim.


App. 1993) (quoting Tarver’s lawyer).                   The


decision to focus on acquittal of capital

                                              8
murder was not unreasonable.                        Despite


     8
      Tarver was indicted for committing
one capital offense:             a murder during a
robbery in the first degree, in violation
of Ala. Code. § 13A-5-40(a)(2).           To prove this
crime, the state had to prove two lesser
included offenses: murder, see id. § 13A-6-
2(a)(1), and robbery in the first degree,
see id. § 13A-8-41.   The jury could acquit on
murder or robbery in the first degree
                            43
overwhelming evidence that Tarver or his


associate, Richardson, actually killed Hugh


Kite, very little evidence made Tarver a


better candidate than Richardson to be


found to be the actual killer. See Tarver v.




and still convict Tarver of the
remaining lesser offense.      Tarver’s
lawyer tried to convince the jury that
Richardson, not Tarver, was the actual
killer.   If believed, Tarver would have been
acquitted of murder and, therefore,
murder during a robbery in the first
degree.    Tarver’s jury was told they had to
find that Tarver committed the killing.
They were not instructed that Tarver
could be found guilty if Richardson
committed the killing.
                       44
State, 500 So.2d 1232, 1235-41 (Ala. Crim.


App.   1986)   (describing     evidence   against


Tarver); see also Stewart, 877 F.2d at 855-


56     (lawyer’s     decision    to   focus   on


innocence, even when evidence of guilt


was great, rather than other forms of


mitigation         did   not     make     counsel


constitutionally ineffective).




C.   The Giglio Claim




                         45
    Tarver argues that, when he was tried,


a   plea   agreement     existed    between   his


associate, Richardson, and the prosecution.


The government’s failure to disclose that


agreement, says Tarver, violates Giglio v.


United States, 405 U.S. 150 (1972).       Giglio


requires the government to disclose an


agreement between a witness and the


government       that   might   motivate      the


witness     to   testify.     See    Brown     v.


Wainwright, 785 F.2d 1457, 1464-65 (11th Cir.




                        46
1986).    The district court found that no


agreement existed when Tarver was tried.




    Richardson’s       attorney,      Loftin,     has


testified   on   his    understanding        of   the


alleged   agreement:          “if   Mr.   Richardson


testified against Mr. Tarver . . . he would


receive some consideration for that in


that he would get a reduced sentence from


the standpoint of not pleading to murder


or capital murder.”




                         47
   In    contrast,    Davis,     the    district


attorney who prosecuted Richardson and


Tarver, testified that he told Loftin only


this: “any cooperation [Richardson] gave us


and if he told the truth in this matter


would be taken into consideration.” Davis


added   that    he   did   not    “reach     an


understanding with Mr. Loftin regarding


a favorable disposition of Mr. Richardson’s


indictment      in    exchange         for   his


testimony.”    In his own mind said Davis,




                      48
he believed that Richardson would not be


tried for capital murder if Richardson


testified for the prosecution; but he did not


say that to Loftin. Loftin could not recall


when he and Davis specifically agreed that


Richardson would plead guilty to robbery, but


Davis was certain the plea agreement was


decided after Tarver’s trial.


   We accept the district court’s finding --


because it is not clearly erroneous -- that


whatever exchange may have taken place




                     49
between Loftin and Davis did not ripen


into a sufficiently definite agreement


before Tarver’s trial: no disclosure under


Giglio was required.    We have said:


   The [Giglio] rule does not address nor


   require the disclosure of all factors


   which may motivate a witness to


   cooperate.      The simple belief by a


   defense    attorney       that   his   client


   may   be   in   a   better   position     to


   negotiate a reduced penalty should he




                        50
    testify against a codefendant is


    not    an    agreement             within      the


    purview of Giglio.




Alderman v. Zant, 22 F.3d 1541, 1555 (11th


Cir. 1994) (alternate holding).             We have,


however, recognized that a promise in this


context is not “a word of art that must be


specifically      employed.”              Brown          v.


Wainwright, 785 F.2d 1457, 1464-65 (11th Cir.


1986).    And,   “[e]ven        mere    ‘advice’    by   a




                           51
prosecutor       concerning            the   future


prosecution of a key government witness


may fall into the category of discoverable


evidence.”    Haber v. Wainwright, 756 F.2d


1520, 1524 (11th Cir. 1985).


   But not everything said to a witness


or to his lawyer must be disclosed.             For


example, a promise to “speak a word” on


the witness’s behalf does not need to be


disclosed.   See McCleskey v. Kemp, 753 F.2d


877,   884    (11th   Cir.    1985).    Likewise,   a




                         52
prosecutor’s statement that he would “take


care” of the witness does not need to be


disclosed.   See Depree v. Thomas, 946 F.2d


784, 797-98 (11th Cir. 1991).       Some promises,


agreements,      or   understandings            do   not


need to be disclosed, because they are too


ambiguous,    or    too   loose     or    are   of   too


marginal     a   benefit       to   the   witness     to


count.


   The   district     court’s       finding     of   no


“agreement or understanding . . . between




                          53
the District Attorney and Richardson or


Richardson’s     attorney”   is   not   clearly

             9
erroneous.          Compare       Spaziano   v.


Singletary, 36 F.3d 1028, 1032 (11th Cir. 1994)


(standard of review) with United States v.


Cain, 587 F.2d 678, 680 (5th Cir. 1979)


(existence of plea agreement is a factual


issue).   Loftin said that he only told his


client, Richardson, that “if he would testify


. . . it would be beneficial to him with


    9
     We note that the state court also
denied relief to Tarver on his Giglio
claim in state collateral proceedings.
                      54
respect to reducing the charge.” And Davis


testified     unequivocally        at    the   Rule    20


hearing that no “arrangement or deal”


existed. He testified only that Richardson’s


testimony        would        be        “taken        into


consideration,” and such a statement is


too preliminary and ambiguous to demand


disclosure.    See Depree, 946 F.2d at 797


(promise to “take care” of witness does not


require disclosure).




                         55
   Richardson testified at trial that he


was not promised a deal. We think Loftin


and   his   client   were     merely    trying    to


cooperate in hopes of improving their


bargaining      position       later.         Giglio,


therefore,    required    no    disclosure.      See


Alderman, 22 F.3d at 1555.


   If Loftin really believed an agreement


existed with the district attorney, then his


client committed perjury by testifying


that no agreement existed; and Loftin




                         56
would   have   been   required   to   call   upon


Richardson to correct his testimony or


withdraw from representation.            Loftin


said he did not advise his client to change


his testimony nor did Loftin withdraw


from representation.




                       57
   For the reasons we have discussed, we


conclude   that   Tarver’s   claims    were


properly rejected by the district court.


   AFFIRMED.




                     58
