                                                                  [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                  FILED
                                                        U.S. COURT OF APPEALS
                       ________________________           ELEVENTH CIRCUIT
                                                              MAR 28 2000
                                                           THOMAS K. KAHN
                              No. 98-8288                       CLERK
                       ________________________

                   D. C. Docket No. 5:95-CV-489-1(HL)

RONALD KEITH SPIVEY,

                                                          Petitioner-Appellant,

                                  versus

FREDERICK J. HEAD, Warden,
Georgia Diagnostic and
Classification Prison,
                                                         Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                     _________________________
                            (March 28, 2000)

Before ANDERSON, Chief Judge, CARNES and BARKETT, Circuit Judges.

ANDERSON, Chief Judge:
       Ronald Keith Spivey, convicted of murder, kidnaping, armed robbery, and

aggravated assault in the state courts of Georgia and sentenced to death, appeals the

district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. For the reasons stated below, we affirm.

                 I.   FACTUAL & PROCEDURAL BACKGROUND

       Ronald Spivey began the evening of December 27, 1976, by entering a bar in

Macon, Georgia. Inside he got into an argument with Charles McCook over a twenty-

dollar pool game bet. Spivey ended the dispute by firing his gun which wounded a

bystander and killed McCook, from whose shirt pocket Spivey then took a twenty-

dollar bill. Spivey went next to another Macon bar and robbed it at gunpoint.1

       From there, he proceeded to Columbus, Georgia where he entered another bar,

the Final Approach. While robbing the two waitresses and one customer inside,

Spivey saw Billy Watson, an off-duty Columbus police officer working as a security

guard at a nearby restaurant, and Buddy Allen, the restaurant’s manager, coming to

investigate. At close range, Spivey shot and killed Watson. He also shot Allen two

or three times. Spivey took the waitresses and customer hostage and proceeded to the

   1
      In Bibb County, Spivey was tried and convicted of murder and armed robbery and sentenced
to life imprisonment for the former and twenty years for the latter. The Supreme Court of Georgia
affirmed the conviction in Spivey v. State, 259 S.E.2d 60 (Ga. 1979). On state collateral review,
however, the Superior Court of Butts County, Georgia granted Spivey a writ of habeas corpus in
1986, thus vacating the conviction, because it was based in part on the use of evidence gathered in
a psychiatric examination of Spivey that was conducted in violation of his constitutional rights.

                                                2
parking lot, picking up Watson’s gun and shooting Allen again along the way. Allen,

still alive, got up and went to his restaurant to get help. Spivey shot several times into

the restaurant wounding a bartender. He then took one of his hostages, Mary Jane

Davidson, with him as he fled by car.2 The next morning, police in Alabama arrested

Spivey and freed Davidson.

       In June of 1977, Spivey was tried for the activities taking place in Columbus

and convicted of murder, kidnaping, armed robbery, and aggravated assault in

Muscogee County Superior Court. The court, upon the recommendation of the jury,

sentenced him to death. The Georgia Supreme Court affirmed the conviction in

Spivey v. State, 246 S.E.2d 288 (Ga. 1978). The United States Supreme Court denied

certiorari. See Spivey v. Georgia, 439 U.S. 1039 (1978) (mem.). Spivey then pursued

state collateral relief, but the Superior Court of Butts County denied his habeas corpus

petition, the Georgia Supreme Court denied a certificate of probable cause to appeal,

and the United States Supreme Court denied certiorari. See Spivey v. Zant, 444 U.S.

957 (1979) (mem.).

       Spivey next petitioned the United States District Court for the Middle District

of Georgia for a writ of habeas corpus. The district court denied the petition. Spivey



  2
    Although Spivey allegedly sexually assaulted Davidson, he was never charged with any sexual
offense.

                                              3
appealed to the United States Court of Appeals for the Fifth Circuit. The Court of

Appeals reversed and remanded for an evidentiary hearing on the circumstances of a

psychiatric evaluation of Spivey conducted before his trial. See Spivey v. Zant, 661

F.2d 464 (5th Cir. Unit B Nov. 1981), cert. denied, 458 U.S. 1111 (1982). The district

court held an evidentiary hearing and again denied Spivey relief. The Court of

Appeals vacated and remanded. See Spivey v. Zant, 683 F.2d 881 (5th Cir. Unit B.

Aug. 1982). On remand in September of 1982, the district court granted habeas

corpus relief.

      In November of 1983, Spivey was tried and convicted again in Muscogee

County. Again the jury recommended the death penalty and the court sentenced

Spivey to death. The Georgia Supreme Court affirmed, see Spivey v. State, 319

S.E.2d 420 (Ga. 1984), and the United States Supreme Court denied certiorari, see

Spivey v. Georgia, 469 U.S. 1132 (1985) (mem.).

      Spivey then pursued the various avenues of collateral relief. In March of 1985,

Spivey petitioned the Superior Court of Butts County for a writ of habeas corpus. The

court held a hearing in October 1987 and denied relief in March 1989. The Supreme

Court of Georgia denied a certificate of probable cause to appeal and the Supreme

Court of the United States denied certiorari. See Spivey v. Zant, 494 U.S. 1074

(1990) (mem.). He next petitioned the United State District for the Middle District of


                                          4
Georgia for habeas relief. The district court in April 1993 stayed the habeas

proceedings to allow Spivey to pursue a second state habeas petition regarding the

State’s withholding of evidence favorable to the defense. The state habeas court

dismissed this second petition as successive in April 1995, the Supreme Court of

Georgia denied Spivey a certificate of probable cause to appeal in June 1995, and the

Supreme Court of the United States denied certiorari in January 1996. See Spivey v.

Thomas, 516 U.S. 1077 (1996) (mem.). Although the district court dismissed the

federal habeas petition without prejudice, Spivey filed a second habeas petition with

the district court on November 17, 1995; the State does not contend that the petition

is successive. On December 19, 1997, the district court denied the petition. From

this order, Spivey now appeals.

       On appeal, he enumerates twenty claims.3 Among them, Spivey argues that 1)

he was deprived of a fair trial because of pretrial publicity and the failure to change

venue, 2) he was deprived of a fair trial by excessive security measures during the

   3
     Spivey enumerated twenty-four claims before the district court, but on appeal does not argue
Claims XIX (arguing that underrepresentation of distinct groups, in particular blacks, women, and
persons between 18 and 30 years of age, on his grand and traverse juries violated his Sixth and
Fourteenth Amendment rights), XX (challenging the trial court’s denial of his request for funds to
obtain sociological and statistical experts to assist in establishing his challenges to the jury pools),
XXI (arguing that the exclusion at trial of some mental illness evidence, in particular portions of
medical records which were relied on by Spivey’s psychiatric expert, violated his Fifth, Sixth,
Eighth, and Fourteenth Amendment rights), and XXIV (arguing that the cumulative effect of all
constitutional errors rendered the trial fundamentally unfair) and thus we find these four claims
abandoned. Nonetheless, we use the claim numbers utilized by the district court below and in the
parties’ briefs.

                                                   5
trial, 3) he was denied his right to a fair and impartial jury by the trial judge’s

restrictions on voir dire, refusal to excuse prospective jurors for bias, and excusal of

prospective jurors who objected to the death penalty, 4) he was denied a

fundamentally fair trial by the prosecutor’s improper arguments to the jury, 5) his

prior vacated conviction was relied on in sentencing thus violating his Eighth

Amendment rights under Johnson v. Mississippi, 486 U.S. 578 (1988), and 6) the state

unconstitutionally withheld exculpatory material in violation of Brady v. Maryland,

373 U.S. 83 (1963).

                          II.   STANDARD OF REVIEW

      When reviewing a habeas petition from someone convicted in state court,

federal courts can only grant the writ on the ground of a violation of the Constitution

or federal law. See 28 U.S.C. 2254(a). Furthermore, we will not review state court

decisions on federal claims that rest on state law grounds, including procedural default

grounds, that are independent and adequate to support the judgment. See Coleman v.

Thompson, 501 U.S. 722, 729 (1991). Factual determinations made by the state court

are presumed to be correct unless rebutted in one of eight possible ways, including a




                                           6
showing that the factual determination is not fairly supported by the record. See 28

U.S.C. 2254(d) (1995) (amended 1996).4

                                  III.    LEGAL ANALYSIS

       A.       Claim I & II: Pretrial Publicity And Change Of Venue

       Spivey argues that, given the amount of prejudicial pretrial publicity, the trial

judge’s refusal to change the venue deprived the appellant of his constitutional right

to a trial by a fair and impartial jury. Spivey further argues that the reporting of the

prosecutor’s comments criticizing the death penalty jurisprudence of the U.S. Court

of Appeals for the 11th Circuit exacerbated the problem of pretrial publicity.5

       To establish that pretrial publicity prejudiced Spivey without an actual showing

of prejudice in the jury box, he must show first that the pretrial publicity was

   4
     Spivey filed his petition for writ of habeas corpus on November 17, 1995, before the effective
date (April 24, 1996) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and
therefore the AEDPA standard of review provisions, codified at 28 U.S.C. § 2254 (d), (e), are not
applicable. See Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA standard of review
provisions inapplicable in a noncapital case pending when AEDPA was enacted); Mills v.
Singletary, 161 F.3d 1273, 1280 n.6 (11th Cir. 1998) (holding same in a capital case). In addition,
the AEDPA’s special habeas corpus procedures for capital cases, codified at 28 U.S.C. §§ 2261-66,
do not apply because they require a state to “opt in” to them by meeting certain requirements, see
Nelley v. Nagle, 138 F.3d 917, 921-22 (11th Cir. 1998), cert. denied, ___ U.S.___, 119 S.Ct. 811
(1999) (mem.), and the state here has not asserted that it opted in by meeting these requirements.
   5
     In Claim II, Spivey contends that the prosecutor’s comments inflamed the community against
him and constitute misconduct warranting habeas relief. To the extent Spivey’s Claim II is a
substantive claim based on prosecutorial misconduct independent of Claim I’s venue change and
prejudicial pretrial publicity grounds, we agree with the district court and find it procedurally
defaulted for failure to raise in the trial court and on direct appeal. Nonetheless, in evaluating Claim
I and whether the pretrial publicity was prejudicial, we consider all the relevant pretrial publicity
including any reports of the prosecutor’s comments.

                                                   7
sufficiently prejudicial and inflammatory and second that the prejudicial pretrial

publicity saturated the community where the trial was being held. See Coleman v.

Kemp, 778 F.2d 1487, 1490 (11th Cir. 1985); Rideau v. Louisiana, 373 U.S. 723

(1963). In Coleman, we emphasized that the “presumptive prejudice standard

recognized in Rideau is only rarely applicable . . . and is reserved for an extreme

situation.” 778 F.2d at 1537 (citations and quotation marks omitted). Furthermore,

Spivey’s burden “to show that pretrial publicity deprived him of his right to a fair trial

before an impartial jury is an extremely heavy one.” Id.

      We have carefully reviewed the record and conclude that Spivey has not

satisfied this burden. The publicity cited is a number of newspaper articles. Most of

these are factual accounts of the criminal events and are neither sufficiently prejudicial

nor inflammatory to make the necessary showing. Many of these accounts were

published years before the trial. Other articles, including the one containing the

prosecutor’s comments, direct criticism at how the federal courts have handled death

penalty cases and only obliquely mention Spivey’s case and, therefore, are not

sufficiently, if at all, prejudicial or inflammatory. Although some articles had

prejudicial elements, for instance the mention in the November 14, 1983 Columbus

Enquirer of a letter to the editor Spivey once wrote confessing his guilt, Spivey has

not shown that such articles were typical or widespread. Cf. Rideau, 373 U.S. at 726


                                            8
(finding a denial of due process where trial court refused the request for a change of

venue after the community was exposed “repeatedly and in depth” to a television

broadcast of an interview of defendant confessing in detail). Thus, Spivey fails to

establish that the pretrial publicity was sufficiently prejudicial or inflammatory

constitutionally to require a change of venue.

      Furthermore, Spivey fails to show that the pretrial publicity saturated the

community where the trial was being held. In contrast to Coleman where the trial

court had to strike almost one-half of the prospective jurors who were questioned

whether they had formed an opinion because they had a fixed opinion, see 778 F.2d

at 1543, here many of the prospective jurors had not heard anything about the case

and most remembered very little, if anything, about it. See Spivey, 319 S.E.2d at 432.

In fact, only six of the seventy prospective jurors were struck because of their

exposure to pretrial publicity. See id. We agree with the Georgia Supreme Court that

“[t]he low percentage of venire men excused for prejudice resulting from pretrial

publicity is strong evidence of the absence of prejudicial community bias.” Id. We

affirm the district court with respect to Claims I & II.

      B.     Claim III: Security Measures In The Courtroom

      Spivey argues in Claim III that the trial court abdicated responsibility for

courtroom security to the sheriff and that excessive security measures unduly


                                           9
prejudiced Spivey thereby depriving him of his constitutional right to a fair trial. The

record neither reflects that the trial court abdicated its responsibility nor that the

measures were unduly prejudicial.

       The trial court relied on the sheriff’s expertise and assistance in matters of

courtroom security, but did not abdicate control. Early in the trial, the court made

clear that it was “aware of the fact that the sheriff’s office does provide adequate

security and will provide adequate security” and was going to rely on this expertise.

Tr. Trans. 211-12. The court decided at which table each party must sit in light of the

security of both the courtroom and the defendant after considering the advice of the

sheriff. See Tr. Trans. 4-11. When the defense counsel objected to the number of

guards, the court responded:

       Because of your concerns [about the safety of the defendant], I have
       ordered these people to be here so that we can – there can be no question
       that he is safe . . . .
       But based on your concern and Mr. Spivey’s concerns about Columbus,
       that is why the security is – and I think I would not be doing my duty if
       I did not see that there was ample security.

Tr. Trans. 21-22 (emphasis added). Although the court later said, “I have given

responsibility of securing this courtroom to the sheriff’s office . . . I’m not going to

tell them how to carry on their security” and “I’ve given that responsibility [for

security] to the sheriff’s office and it is their duty to do whatever they feel is necessary

to make it safe,” in the context of the proceeding these remarks only indicate that the

                                            10
court, while maintaining ultimate responsibility for the trial’s fairness, security, and

decorum, was letting the sheriff’s office make the tactical decisions regarding

deployment of the guards, which was necessarily overseen by the trial court judge.

If the sheriff’s office or the guards acted in a manner inconsistent with the trial court’s

ultimate responsibilities, the court had the authority to order different security

measures. Unlike an abdication, the delegation here was partial and revocable. In

addition, when the trial court overruled Spivey’s motion for a mistrial based on the

security measures taken by the sheriff and the guards, it implicitly approved of the

measures. Cf. Allen v. Montgomery, 728 F.2d 1409, 1412 n.3 (11th Cir. 1984)

(finding no constitutional error in permitting the sheriff to decide what security

measures were necessary to transport defendant safely to trial where the sheriff

shackled him and trial judge implicitly at least indicated he would have ordered

similar security precautions by denying a motion for mistrial in which he found that

the precautions were reasonable).

       The failure of Spivey’s abdication argument is not dispositive of Claim III, for

a constitutional violation takes place, regardless of who is ultimately responsible for

the measures, if the security measures were so inherently prejudicial that they denied

him a fair trial. In Holbrook v. Flynn, 475 U.S. 560 (1986), the Supreme Court denied

a habeas petitioner’s claim that conspicuous uniformed armed guards present at trial


                                            11
unduly prejudiced the jury. The Court first rejected the idea that the deployment of

security personnel should, like the inherently prejudicial practice of shackling, be

closely scrutinized and instead held that “a case-by-case approach is more

appropriate.” 475 U.S. at 568-69. The Court articulated the standard:

        All a federal court may do in such a situation is look at the scene
        presented to jurors and determine whether what they saw was so
        inherently prejudicial as to pose an unacceptable threat to defendant’s
        right to a fair trial; if the challenged practice is not found inherently
        prejudicial and if the defendant fails to show actual prejudice, the inquiry
        is over.

475 U.S. at 572.

        Spivey asserts that uniformed guards, usually eight, surrounded him, moved

when he moved running behind him and leaping from the corners, treated him like a

wild dog, interfered with his ability to communicate freely with counsel, and cut off

his attorney from his defense consultants.6 The guards’ actions, Spivey argues, gave

the jurors the impression that he was a dangerous man.7

   6
      These last two complaints are more properly grounded in the right to counsel rather than the
right to fair trial. Regardless, the record provides no factual basis for the Spivey’s claims that the
security measures impermissibly interfered with his ability to communicate with his attorney and
cut the attorney off from the defense’s jury consultants. In fact, the record indicates that Spivey’s
attorney was able to confer adequately with these consultants, including on at least one occasion in
a private room provided by the court during the jury selection process. See Tr. Trans. 393, 415-16.
    7
      The potentially most prejudicial incident is when one guard allegedly shoved the standing
Spivey back down into his chair during the voir dire of potential juror Allena McCann. See Tr.
Tran. 765-67. However, the guard testified that he did not physically push Spivey and McCann was
never empaneled, see Tr. Trans. 1248.23, so Spivey was not denied a fair and impartial juror by her
observing whatever transpired here. Cf. Ross v. Oklahoma, 487 U.S. 81 (1988) (holding that claims

                                                 12
       We first ascertain the scene presented to the jurors. See id. Spivey was not

shackled. He was permitted to stand to ask questions during voir dire. There were at

times eight uniformed guards in the courtroom, though at other times fewer. The

guards did not form a semicircle around Spivey. See Tr. Trans. 22 (“[T]hey’re not

forming a semicircle around him.”); Spivey, 319 S.E.2d at 436 (“The record shows

the officers did not form a semicircle around Spivey.”). We find that this scene was

not so inherently prejudicial as to pose an unacceptable threat to the right to a fair trial.

The threat to the right to a fair trial posed by the presence of these uniformed guards

was both slight and acceptable, especially in light of the threats to the defendant’s life

and the bullet fired through his jail window. Cf. Zygadlo v. Wainwright, 720 F.2d

1221 (11th Cir. 1983) (denying habeas relief where state trial court ordered the

shackling of the defendant's legs, in light of fact that defendant had made previous

escape attempt while awaiting appearance before court). Accordingly, we affirm the

district court with respect to Claim III.

       C.      Claims IV, V, VI, & VII: Right To A Fair And Impartial Jury

       In Claim V and VI, Spivey argues his right to a jury of impartial jurors under

the Sixth and Fourteenth Amendments was violated when the trial court refused to




that jury was not impartial must focus on the jury that actually sat).

                                                 13
excuse prospective jurors for cause.8 Spivey maintains that prospective jurors Linda

Day, Waltroud Moseley, Celestrial Lyons, Justine McMichael, John Meachum,

Sidney Broom, Edward Burrus, Dorothy Penny, Mark Lynes, and Ruby Huckaby

demonstrated bias and that prospective jurors Ollie Tellis, Kenneth Morgan, Edward

Burrus, Betty Brown, and Ruby Huckaby were biased in favor of the death penalty

and therefore the trial court should have excused them all.

       The state habeas court found that Spivey did not preserve for later review the

issue of the trial court’s refusal to excuse Penny, Huckaby, Tellis, Morgan, and Brown

because he did not raise it on direct appeal. Resp. Ex. 4(W) p. 33, 47. Having

carefully reviewed the record, we agree and find his claim with respect to these

prospective jurors procedurally defaulted.

       The right to a jury trial “guarantees to the criminally accused a fair trial by a

panel of impartial ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 722 (1961); see Ross


   8
      In Claim IV, Spivey argues that the trial court unfairly restricted voir dire. Although the trial
court did not permit some of defense counsel’s questions, such as “In what type of cases do you
think the death penalty would be appropriate?” “When you first heard that this was a death penalty
case, what went through your mind?”and “On what do you base your belief in the death penalty?”
Tr. Trans. 347, 350, 360-362, it did allow many others including “Do you feel the death penalty
should be limited to certain types of crimes?” “In your opinion in any case should revenge or
vengeance play in your decision whether or not to impose the death penalty?” “How do you feel
about the death penalty as a criminal punishment?” and “What is the basis of your conscientious
decision to favor the death penalty?” Tr. Trans. 347, 350, 356-57, 362. Given the breadth of the
questions permitted defense counsel as well as the trial court’s own questions, we find the voir dire
constitutionally adequate to test the prospective jurors for bias or partiality and therefore affirm the
district court with respect to Claim IV.

                                                  14
v. Oklahoma, 487 U.S. 81, 85 (1988) (“It is well settled that the Sixth and Fourteenth

Amendments guarantee a defendant on trial for his life the right to an impartial jury.”).

Claims that the jury was not impartial must focus on the jurors who actually sat. See

Ross, 366 U.S. at 86; Heath v. Jones, 941 F.2d 1126, 1133 (11th Cir. 1991) (holding

that habeas petitioner can only raise the trial court’s denials of challenges for cause

of those venire members who eventually sit on the jury). None of the prospective

jurors, however, that Spivey complains of–save Penny, who is procedurally

defaulted–were part of the jury that actually sat in this case. The defendant used his

peremptory challenges to strike Day, Moseley, Lyons, McMichael, Meachum, Broom,

and Lynes as jurors and Burrus and Huckaby as alternate jurors. See Tr. Trans.

1248.16-1248.28.

       The appellant complains9 that he was forced to use his peremptory challenges

to remove prospective jurors whom he alleges should have been removed for cause.

He argues that because he had to reserve his last peremptory challenge for Burrus,

Doris Estell, whom he would have otherwise peremptorily challenged, ended up on

the jury.      In Ross, the Supreme Court “reject[ed] the notion that the loss of

peremptory challenges constitutes a violation of the constitutional right to an impartial



  9
    Appellant’s argument is vague; he points to no constitutional violation and articulates no theory
other than a general suggestion of unfairness. Appellant does not even cite Ross.

                                                 15
jury.” Ross, 366 U.S. at 88. The Court elaborated: “So long as the jury that sits is

impartial, the fact that the defendant had to use a peremptory challenge to achieve that

result does not mean the Sixth Amendment was violated.” Ross, 366 U.S. at 88; see

also United States v. Farmers, 923 F.2d 1557, 1566 (11th Cir. 1991) (rejecting

appellant’s argument that trial court’s refusal to excuse jurors for cause and the

resultant use by the defendant of his peremptory challenges to remove these jurors

required reversal). The fact that Estell sat on the jury did not produce an impartial

jury or a constitutional error. Spivey never challenged Estell for cause in the trial

court and now only asserts that she is an undesirable juror, not a juror who should

have been excused for cause.10 See Tr. Trans. 1097-1103 and Appellant’s brief 10-29-

98 at 17, n.7. Spivey fails to establish that his constitutional right to an impartial jury

was violated by the trial court’s refusal to excuse these jurors for cause.

        In Claim VII, Spivey relies on Witherspoon v. Illinois, 391 U.S. 510 (1968),

and Adams v. Texas, 448 U.S. 38 (1980), to argue that the trial court violated his

constitutional rights by excusing for cause those jurors whose views opposed the death

but who said they could follow the law. Prospective jurors Waltina Hughley and




   10
      Although Spivey on his direct appeal to the state supreme court claimed Estell should have
been struck for cause, he did not repeat this claim to the district court below or make it to this Court.

                                                   16
Denise Hale, Spivey asserts, at first stated their conscientious objections to the death

penalty but then said they were willing to consider it.

      In Witherspoon, the Supreme Court held that “a sentence of death cannot be

carried out if the jury that imposed or recommended it was chosen by excluding venire

men for cause simply because they voiced general objections to the death penalty or

expressed conscientious or religious scruples against its infliction.” 391 U.S. at 522.

Attempting to alleviate confusion in the lower courts and to refine the standard, in

Wainwright v. Witt, 469 U.S. 412 (1985), the Court revisited the issue of what degree

of deference a federal court in a habeas corpus proceeding should pay a state court’s

excusal of prospective jurors for their views opposing capital punishment. It held that

the standard is “whether the juror’s views would ‘prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his oath.’”

Witt, 469 U.S. 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). The Court

added that this standard does not require that the “juror’s bias be proved with

‘unmistakable clarity.’” Id. Noting that assessments of demeanor and credibility are

“peculiarly within a trial judge’s province,” the Court decided that the trial court’s

determination on this issue is a factual finding deserving deference on habeas review.

Witt, 469 U.S. at 428-29.




                                          17
         Applying this standard, the trial court did not constitutionally err in excusing

Hughley and Hale. Although Hughley at some points said she thought she could do

her duty as a juror and consider the death penalty, her testimony viewed in its entirety

supports the trial court’s excusal.11 Hughley stated:

         Well, even if I did know about the case to [be] fair about it and still she
         [the trial judge] said we had to, you know, say death penalty, I don’t
         think I could vote for it. I don’t, I really don’t think I could vote for it.
         ...

         [I could] [n]ever give the death penalty. I’m being fair. I’m telling the
         truth.

Tr. Tran. 723. This testimony sufficiently demonstrates that Hughley’s views would

prevent or substantially impair her ability to impose the death penalty. Likewise,

Hale’s testimony, though at times contradictory, sufficiently demonstrates that her

views would prevent or substantially impair her ability to impose the death sentence.

She indicates she could not fully and fairly consider the death penalty and that she can


   11
        On voir dire, the following exchange took place between Hughley and the prosecutor:

         Q: Are your feelings about the death penalty. . . so strong that no matter what the facts or
         circumstances of the case might be. . . you could never vote to impose the death penalty?

         A: That’s right.

         Q: You could never even consider giving the death penalty, is that right?

         A: That is right.

Tr. Tran.719

                                                 18
imagine no type of case where she could consider voting to impose the death penalty.

See Tr. Trans. 1177, 1182. The assessments of jurors’ states of mind are “based upon

determinations of demeanor and credibility that are peculiarly within a trial judge’s

province” and are therefore entitled to deference on habeas review. Witt, 469 U.S. at

428. The testimony of these jurors satisfied the trial court that they should be struck

for cause. Having reviewed the voir dire testimony of these prospective jurors in its

entirety and applying the standard articulated in Witt, we find no constitutional error

in the trial court’s excusal of Hughley and Hale.12 We affirm the district court with

respect to Claims IV, V, VI, & VII.

         D.    Claims VIII, IX, X: Propriety Of The Prosecutor’s Arguments

         In Claims VIII, IX, and X, Spivey argues that the prosecutor made improper

arguments in his closing arguments at both the guilt-innocence determination phase

and the sentencing phase. These improper arguments, Spivey claims, denied him of

a fundamentally fair trial and warrant reversal.

         Improper prosecutorial arguments, especially misstatements of law, must be

considered carefully because “while wrapped in the cloak of state authority [they]

have a heightened impact on the jury.” Drake v. Kemp, 762 F.2d 1449, 1459 (11th

    12
       Although the district court below also found no violation with respect to the excusal of
prospective jurors Albert Moore and Annette White because of their conscientious objection to the
death penalty, we do not address these jurors because Spivey does not argue on appeal that their
excusal was improper.

                                               19
Cir. 1985). When assessing this type of claim, this Court examines the entire context

of the judicial proceeding to determine if it was fundamentally unfair. See Brooks v.

Kemp, 762 F.2d 1383, 1400 (11th Cir. 1985) (en banc), vacated, 478 U.S. 1016

(1986), reinstated, 809 F.2d 700 (1987). Not every improper prosecutorial remark,

therefore, renders the trial unfair. See id. Improper arguments do, however, render

the capital sentencing hearing fundamentally unfair and require reversal when there

is a reasonable probability that they changed the outcome of the case. See id. at 1402.

“‘A reasonable probability is a probability sufficient to undermine confidence in the

outcome.’” Id. at 1401 (quoting Strickland v. Washington, 466 U.S. 668, 669 (1984)).

Proper arguments, regardless of their impact on the outcome of the case, do not render

a trial unfair. Therefore, first we examine the state’s arguments here to identify those

that were improper in light of Georgia’s capital sentencing regime. Then we

determine if these improper arguments in a reasonable probability changed the

outcome of the case.

      In Claim VIII, Spivey argues that the prosecutor improperly argued that the

community wanted a death sentence and would hold the jury accountable for their

verdict. In his closing argument at the sentencing phase, the prosecutor argued:

             Your verdict will say one of two things and everyone will know
      it. There has been a lot of interest in this trial. You have been isolated
      from news media coverage and properly so because you are to pass on,
      and I don’t know what someone’s interpretation is of the events which

                                       20
        have occurred here, but you are to pass on what you perceive the
        evidence to be in [sic] the charge you hear from the court. But there has
        been a lot of interest attracted to this case. And I reminded you
        yesterday if you recall that it is your verdict, speaks not for just the
        twelve of you individually and collectively which is certainly done but
        it is your verdict that speaks for the entire system, the entire population,
        all 173,000 of us, I believe, in Muscogee County. And not one of you
        chose to be here. I am confident of that. . . .

                But by the system of justice that we operate under and by the lack
        of a better term, the lot we draw, 12 of you 14 will make this decision
        which is critically important obviously to the defendant, literally it is his
        life that is at stake, but also critically important to each and every one of
        the citizens of Muscogee County whose eyes are focused on us at this
        time.

Tr. Trans. 2460-61. Spivey maintains that the prosecutor argued that the jury should

sentence the defendant to death not on the evidence in accordance with the appropriate

legal standards, but because it was what the community wanted and expected.

Although such an argument would be improper, we interpret the prosecutor’s closing

here differently and find it proper, though somewhat ambiguously phrased.13 See

Brooks, 762 F.2d at 1400 (“[I]solated or ambiguous or unintentional remarks must be

viewed with lenity.”). Rather than urging the jury to return a death sentence because




   13
      Defense counsel did not object at trial on this “community expectations” basis which suggests
that he too at the time interpreted the statement as we do and not as Spivey now asserts it should be
interpreted. See Brooks, 762 F.2d at 1397 n. 19 (“Although counsel's failure to object to the
argument does not bar our review of the claim in this case, the lack of an objection is a factor to be
considered in examining the impact of a prosecutor's argument.”). Only on appeal did Spivey raise
this issue. See Spivey, 319 S.E.2d at 427. The State does not assert a procedural bar in this regard.

                                                 21
the community demands it, the prosecutor emphasized that the jury must decide based

on the evidence they perceived and on the charge the court will give.

      The references to the community indicate the obvious:           the jury at the

sentencing phase is asked to decide “what justice demands that society perform in

response [to the crime].” Collins v. Francis, 728 F.2d 1322, 1341 (11th Cir. 1983).

A jury’s consideration of the appropriateness of retribution is proper. See Brooks, 762

F.2d at 1407. In this case, the prosecutor essentially argued that Spivey should be

sentenced to death because that is the punishment he owes to society. In other words,

the jurors acting as the representatives of the county must decide if the death penalty

is the appropriate punitive action. Clarifying this point, the prosecutor continued:

      And your verdict is going to say one of two things, one of two things.
      It’s going to say that in Muscogee County, Georgia, and in Columbus if
      you violate the law, if you take human life with malice of aforethought,
      if it’s done under aggravating circumstances you are going, and you are
      given a trial, a fair trial and you are convicted, found guilty beyond a
      reasonable doubt you are going to be punished and you are going to be
      punished appropriately. And I submit to you that is what a verdict of,
      “We, the jury, recommend the death penalty” will say. Or your verdict
      will say in Muscogee County, given those circumstances if you take
      human life with malice of aforethought, if you do it under aggravating
      circumstances such as in an armed robbery you are going to get literally
      a slap on the wrist.

Tr. Trans. 2461-62. In light of the jury’s representative and policy role and its

discretion in determining whether or not to recommend the death sentence, the



                                          22
prosecutor may argue what policy statement each verdict will make for Muscogee

County.14 Thus, Claim VIII fails because the prosecutor’s argument is not improper.

       Of course, it is improper for a prosecutor to mislead or misrepresent the law to

the jury, including the meaning of a verdict. In Claim X, Spivey contends that the

prosecutor did just that by misleading the jury on the meaning of Spivey’s prior life

sentence and the effect of a second life sentence. Explaining why a life sentence

verdict would be just “a slap on the wrist,” the prosecutor in his closing during the

sentencing phase continued:

       State’s Exhibit Number 22 . . . is an Indictment, a verdict of guilty, and
       a sentence to life imprisonment for the defendant in Bibb County,
       Georgia. You know when he committed that murder in Bibb County,
       Georgia? Two hours before he committed the one, or three hours before
       he committed the one in Muscogee County. So your verdict of life
       imprisonment will not add one day of punishment to this man. . . . If he
       is sentenced to life imprisonment on the first murder and you give him
       life on the second, is that appropriate punishment?

Tr. Trans. 2462-63. Spivey claims that the second life sentence would have extended

the time before which he was eligible for parole under Ga. Code Ann. § 42-9-39(b)


  14
      In Collins, 728 F.2d at 1340-41, we explained the important policy and representative role that
the jury plays:

       Under the sentencing model employed by Georgia in capital cases the jury is given
       the task, subject to full Georgia Supreme Court review, of fashioning state
       sentencing policy. In discharging this task, the jury functions as a fact finder in
       determining the presence of aggravating and mitigating circumstances, but [also] acts
       as a policy maker in determining whether a sentence of death or life imprisonment
       should be imposed.

                                                 23
and therefore would have been additional punishment. The state responds that at the

time of Spivey’s sentencing Georgia law barred the jury from considering parole

eligibility in sentencing. See Quick v. State, 353 S.E.2d 497, 503 (1987). In Quick,

the Georgia Supreme Court recommended, upon an inquiry into parole eligibility by

the jury, that the trial court should instruct the jurors to assume that their sentence,

death or life imprisonment, will be carried out. See id. at 503 n.3. Although a second

life sentence would have affected parole eligibility, the sentence imposed would have

been the same: life imprisonment.

      Assuming arguendo that the prosecutor did misstate the law and his argument

was therefore improper, we conclude that there is not a reasonable probability that the

misstatement changed the outcome of the case. At the sentencing stage, the jury faced

the central question of whether to sentence Spivey to death or to life imprisonment.

Parole was not a meaningful factor in their decision as the focus of defense counsel’s

argument implicitly demonstrated:

      Ron Spivey should not ever, ever, ever be released from jail. I submit to
      you that when the last breath passes out of his body, he will be behind
      bars, ladies and gentlemen; and that’s where he should be, and we have
      never asked you to compromise that fact one iota. Ron Spivey is under
      a life sentence from Macon. He’s under a 20-year sentence from Macon.
      You returned a verdict last night, and whether it had been guilty or guilty
      but mentally ill, he would be under life sentences and 20 years and ten
      . . . . The Judge will impose those sentences on Ron Spivey. This man
      will never be out of jail, and the Judge will instruct you that life


                                       24
      imprisonment in this case means to remain in jail for the remainder of his
      life. And I wouldn’t ask you for one day less.”

Tr. Trans. at 2488. Furthermore, he emphasized that “Ron Spivey will never ever,

ever be anyplace other than the state penitentiary . . . . He’s never going to be

released” and that “We’re not asking that Ron Spivey be released. We are asked that

he be kept in prison the rest of his life.” Tr. Trans. 2494. The slap on the wrist

phrasing is hyperbola which is unlikely to have affected even minimally a jury facing

a question with the gravity of the one put before it here. In light of the totality of the

circumstances, the prosecutor’s argument about the meaning of the sentence does not




                                           25
undermine confidence in the outcome.15                  Thus, the sentencing trial was not

fundamentally unfair.

        In Claim IX, Spivey argues that the prosecutor also misled the jury about the

meaning and consequence of a verdict of guilty but mentally ill. During the

prosecutor's closing argument, the following transpired:

[Prosecutor]:                  And let me make the position of the State of
                               Georgia, whom I represent, clear in this case from
                               this moment forward. And that is this. The verdict
                               of guilty but mentally ill is the same as a not guilty
                               verdict. On behalf of these victims --.

[Defense Counsel]:             [objecting] Your Honor, that's a misstatement of the law
                               and it misleads the jury. And I never interrupt during a


   15
       Spivey also complains that this argument renders the trial fundamentally unfair because, as
it turns out, the prior murder conviction in Bibb County was set aside because it relied on evidence
acquired in violation of Spivey’s constitutional rights. We disagree. We do not believe the result
here would have been different if instead of arguing as he did, the prosecutor had made an argument
along the following lines: Spivey has already been convicted and sentenced to life imprisonment;
true, Spivey might argue that collateral appeals of the Bibb County conviction are available and
might set aside that conviction and order a new trial; but, even if that should happen, Spivey would
likely be reconvicted and sentenced again to life imprisonment as he has testified to this jury that
even he believes he is “100-percent guilty of everything they say I have done” in Bibb County, Tr.
Trans. 1726, and he has admitted an egregious criminal history. In other words, if the prosecutor
had given the jury a completely accurate and precise account of the status of Spivey’s prior Bibb
County conviction and sentence, we are satisfied that the jury’s decision would have been the same.
In fact, when cross-examining Spivey, the prosecutor essentially provided an account of the
conviction’s status by asking if Spivey was “aware that the same witnesses testified in that [prior
Bibb County] case that testified in the first trial here [in Muscogee County] and [the prior Bibb
County conviction is] subject to being overturned for the very same reasons [for which the prior
Muscogee County conviction was overturned]?” Tr. Trans. 1804. Moreover, in light of all the
evidence, Spivey’s egregious criminal history, and the fact that the only real defense theory to avoid
the death sentence was mental health evidence, which the jury obviously rejected, we doubt in any
event that the jury imposed the death sentence because of the technical fact that he already had a
prior life sentence.

                                                 26
                               closing argument, but, Your Honor, that is a misstatement
                               of the law.

The Court:             The Court will give the law.

....

[Prosecutor]:                  In the eyes of these victims, members of the jury, I submit
                               they are synonymous, one and the same. Of course, they're
                               separate verdicts. Of course they are. You're going to be
                               given four potential verdicts. And I submit to you, in the
                               eyes of the prosecution and the eyes of the victims, they're
                               one and the same.

Tr. Trans. 2268-69.

        Taken literally, the prosecutor’s remarks in this exchange incorrectly state that

a verdict of guilty but mentally ill is equivalent to a not guilty verdict and imply that

returning a guilty but mentally ill verdict will result in the same sentencing as a not

guilty verdict, i.e., no sentence. In fact, Georgia law at the time provided that

“[w]henever a defendant is found guilty but mentally ill at the time of a felony, or

enters a plea to that effect that is accepted by the court, the court shall sentence him

in the same manner as a defendant found guilty of the offense.” 1982 Ga. Laws 1476,

1481 (codified at Ga. Code Ann. § 17-7-131).16 The misstatement during this

   16
      The trial court responded to the defense counsel’s objection with the promise “The Court will
give the law.” Ordinarily the “giving of curative instructions by the trial court may remedy effects
of improper comments.” Brooks, 762 F.2d at 1400. Yet here, although the court did instruct the
jury on the legal definitions of insanity and mental illness, the court never clarified that a defendant
found guilty but mentally ill is sentenced in the same manner as a defendant found guilty. The
court’s omission, however, is understandable because under Georgia law, Spivey was not entitled

                                                  27
exchange is exacerbated somewhat because it is prefaced by the prosecutor's

deliberate waving of the “cloak of state authority.” Drake, 762 F.2d at 1459.

However, we find that this literal interpretation–i.e., that a verdict of guilty but

mentally ill is no different from a not guilty verdict–is so outrageously incredible and

contrary to common sense that it could not be the way the jury interpreted the

prosecutor’s statements.

       Instead, we conclude that the jury’s probable interpretation of the prosecutor’s

remarks and argument is: a verdict of guilty should be returned because if the jury

returns a verdict of guilty but mentally ill, then the death penalty is no longer a

sentencing option and Spivey will only receive life imprisonment. This interpretation

is consistent with the defense’s own position. Spivey’s admitted strategy was to



to jury instructions regarding the consequences and sentencing options associated with a guilty but
mentally ill verdict. See Crawford v. State, 369 S.E.2d 50, 51 (Ga. Ct. App. 1988) (“[Defendant]
was not entitled to an instruction on sentencing options of that verdict [of guilty but mentally ill],
as that would have no bearing on his guilt or innocence.”); cf. Cooper v. State, 325 S.E.2d 137 (Ga.
1985) (holding that there was no need to charge on consequences of a verdict of not guilty by reason
of insanity “because the provisions of the law dealing with the disposition of the case after the
finding of not guilty by reason of insanity have no bearing upon the guilt or innocence of the
defendant”). Interestingly, after the trial the Georgia legislature amended § 17-7-131 of the code
in 1985 to require the following jury instruction when the defense of insanity is interposed to clarify
the consequences of a verdict of guilty but mentally ill:

       I charge you that should you find the defendant guilty but mentally ill at the time of
       the crime, the defendant will be given over to the Department of Offender
       Rehabilitation or the Department of Human Resources, as the mental condition of the
       defendant may warrant.

1985 Ga. Laws 637, 639.

                                                  28
concede the facts alleged by the state, but argue that, due to an emotional disturbance

as explained by the testimony of two expert witnesses, the jury should find him guilty

but mentally ill and impose a life sentence. Nowhere during the trial did Spivey argue

that he should receive anything less than a life sentence, and thus he effectively

conceded that a verdict of guilty but mentally ill would result in a life sentence, at

least. In his closing argument, the prosecutor added, “What the defense is asking you

to do is to find him guilty but mentally ill and send him to a hospital because he’s sick,

instead of where he belongs and where the second phase of this trial will concern itself

with.” Tr. Trans. 2285. The second phase, needless to say, was to concern itself with

the central issue: should society execute Spivey or put him in prison for life. In other

words, is death row when Spivey belongs? Within the context of the trial and the

closing arguments of both sides, the jury probably interpreted the prosecutor’s

remarks to mean that if the verdict is guilty but mentally ill, then Spivey is no longer

eligible for the death penalty.

      The question still remains of whether the prosecutor’s remarks so

interpreted–that a guilty but mentally ill verdict precludes the death penalty–are

incorrect or misleading. Complicating the issue, the Georgia Supreme Court has not

answered this question. The language of the statute, that a defendant found guilty but

mentally ill is sentenced “in the same manner as a defendant found guilty,” indicates


                                           29
that the guilty but mentally ill defendant, the same as a guilty defendant, can be

sentenced to death. 1982 Ga. Laws. 1476, 1485 (codified at Ga. Code. Ann. § 17-7-

131(g)). Yet, in Spraggins v. State, 364 S.E.2d 861 (Ga. 1988), the Supreme Court

of Georgia, while leaving open the question of whether a defendant found guilty but

mentally ill for a capital crime can be executed, commented:

      We have not yet resolved the question of whether a defendant found to
      be guilty but mentally ill is eligible for a death sentence, in light of the
      statutory provisions concerning such a verdict, but we need not do so
      today, for in any event, we are not prepared to hold that the legislature
      of this state has created a meaningless verdict, or that the difference
      between a verdict of guilty and a verdict of guilty but mentally ill is
      inconsequential.

Id. at 863 n. 2 (emphasis added). This comment, albeit dicta, signals that there must

be a meaningful, consequential difference between the guilty verdict and the guilty but

mentally ill verdict. The court suggests implicitly that this difference might be that

the former permits the death penalty while the latter precludes it.

      In response to the Spraggins decision, the Georgia legislature amended the code

in 1988 putting it in its present form. See 1988 Ga. Laws 1003-1010. The

amendment added a guilty but mentally retarded verdict to the verdict of guilty but

mentally ill and provided that both guilty but mentally ill and guilty but mentally

retarded defendants are sentenced the same as those found guilty of the offense except

that those found guilty but mentally retarded are not eligible for the death penalty.


                                          30
See Ga. Code Ann. §17-7-131(b), (g), (j); see generally Anne S. Emanuel, Guilty But

Mentally Ill and the Death Penalty: An Eighth Amendment Analysis, 68 N.C. L. Rev.

37, 67 (1989) (arguing that the amendment is an indication that the legislature

intended to allow the death penalty for guilty but mentally ill defendants). This

legislative action could be interpreted as a clarification of the legislature's original

intent for the guilty but mentally ill verdict, i.e., that those receiving this verdict,

unlike mentally retarded individuals, can be executed. On the other hand, the 1988

amendment could be a change in the law and irrelevant to the state of the law in 1983

when this case was tried.

      We need not resolve this issue of Georgia law because Spivey’s claim fails

whether or not a defendant found guilty but mentally ill could have been executed

under Georgia law as it existed at the relevant time, i.e. in 1983. First, if Georgia law

precluded the death penalty for a defendant found guilty but mentally ill, then the

prosecutor’s remarks correctly stated the law. Upon consideration of these remarks,

the jury could have rejected the guilty but mentally ill verdict to preserve its option

to recommend the death penalty. Having preserved this option and considered the

evidence at the sentencing phase, the jury ultimately exercised the option and

recommended the death penalty. On the other hand, if Georgia law permitted the

death penalty for a defendant found guilty but mentally ill, then the prosecutor’s


                                           31
argument was a misstatement of the law. However, Spivey has suffered no harm

despite the prosecutor’s misstatement of the law. The jury may have relied upon the

prosecutor’s misstatement and rejected the guilty but mentally ill verdict to preserve

its sentencing options, but ultimately at the sentencing phase the jury recommended

the death penalty on the same evidence as would have been presented had the jury

returned a verdict of guilty but mentally ill. In other words, if the jury accepted the

prosecution’s argument and rejected the guilty but mentally ill verdict because it

thought Spivey should receive the death penalty, then that is powerful evidence that

the jury was not in any event going to return a life sentence. With or without the

prosecutor’s remarks on the guilty but mentally ill verdict, the reasonable probability

is that the outcome was going to be the same, namely the death penalty. We conclude

that Spivey’s trial was fundamentally fair, despite the possibility that the prosecutor

misstated the law.17 Accordingly, we affirm the district court with respect to Claim

IX.

        E.     Claim XI: Johnson v. Mississippi Claim



   17
      If Spivey had been found guilty but mentally ill, instead of guilty, Georgia law would have
provided that “he shall be further evaluated and then treated, within the limits of state funds
appropriated therefor, in such manner as is psychiatrically indicated for his mental illness.” 1982 Ga.
Laws at 1476, 1485 (codified at Ga. Code Ann. § 17-7-131(g)). Spivey does not argue nor do we
believe that this difference amounts to fundamental unfairness under these circumstances.
Moreover, there is no evidence to suggest that Spivey’s psychiatric needs have been denied in any
respect.

                                                  32
        Spivey argues in Claim XI that his death sentence is fundamentally unfair and

violates due process and the Eighth Amendment because it is based on his

unconstitutionally obtained prior conviction and life sentence in Bibb County.18 In

Johnson v. Mississippi, 486 U.S. 578, 581 (1988), a state court had sentenced

defendant Johnson to death citing his previous New York felony conviction as one of

three aggravating factors supporting the sentence. The prosecution introduced no

evidence about the conduct underlying the prior conviction, but relied instead on a

single authenticated copy of a document indicating the conviction. See id. at 585.

Thus, the death sentence relied on the mere fact of conviction. After the New York

Court of Appeals reversed the conviction, the Mississippi Supreme Court denied

Johnson post conviction relief even though the relied on conviction was now invalid.

See id. at 582. The United States Supreme Court reversed and held that allowing the

death sentence to stand although based in part on a reversed conviction violates Eighth

Amendment principles. See id. at 586.

        In contrast to Johnson, here there is extensive evidence of the conduct

underlying the Bibb County conviction, much of it introduced by the defense as part

of its trial strategy. Criminal conduct, even absent a conviction, is relevant and


   18
     In light of the disposition of Claim XI, we need not address the state’s arguments based on
procedural default and Teague v. Lane, 489 U.S. 288 (1989) (barring retroactive application of
“new” rules).

                                              33
properly considered by the jury. See Tucker v. Kemp, 762 F.2d 1480, 1487 (11th Cir.

1985) (en banc) (“In addition to previous convictions, it is acceptable to consider

evidence of crimes for which a defendant has been indicted but not convicted.

Activities for which there has been no charge filed can be considered as well. In

general, the relevant inquiry is whether it is reliable.”) (citations omitted), vacated,

474 U.S. 1001 (1985), reinstated, 802 F.2d 1293 (11th Cir. 1986) (en banc) (per

curiam). Thus, the question here is not what effect the introduction of evidence

regarding the Bibb County crimes had on the trial, but rather what marginal impact

the fact of conviction and life sentence had above and beyond the impact that the

criminal conduct had on the outcome. See Richardson v. Johnson, 864 F.2d 1536,

1541 (11th Cir. 1989) (“Even if the sentencing judge could not rely on these North

Carolina convictions because they were unconstitutionally obtained, evidence of

Richardson’s past criminal ‘activity’ would have been admissible if the sentencing

judge had found such information reliable.”). We find that the marginal impact of the

conviction and life sentence was slight in light of the extensive evidence and brutal

nature of the actual underlying conduct.

      The Supreme Court’s decision in Brecht v. Abramson, 507 U.S. 619 (1993),

guides us in determining whether or not this slight impact is harmless error. See

Duest v. Singletary, 997 F.2d 1336, 1338 (11th Cir. 1993) (adopting Brecht harmless


                                           34
error standard for Johnson v. Mississippi claims on habeas review). In Brecht, the

Court stated the proper harmless error standard for trial errors on habeas review:

        [W]hether the error had substantial and injurious effect or influence in
        determining the jury’s verdict. Under this standard, habeas petitioners
        may obtain plenary review of their constitutional claims, but they are not
        entitled to habeas relief based on trial error unless they can establish that
        it resulted in actual prejudice.

407 U.S. at 637 (quotation marks and citations omitted). Given the slight marginal

impact, we conclude that although the trial court erred in using the vacated Bibb

County conviction and sentence, the error was harmless because the effect was neither

substantial nor injurious.19 Accordingly, we affirm the district court with respect to

Claim XI.

        F.     Claims XII & XVIII: Brady v. Maryland Claims

        Spivey claims that the prosecutor unconstitutionally withheld three documents

that contained favorable evidence to the defense: 1) Mary Jane Davidson’s December

29, 1976 statement to the police, 2) the December 28, 1976 Supplemental Report of

Columbus Police Department Detective R.G. Matthews, and 3) a letter of September

8, 1983 from the district attorney to Central State Hospital.20 In Brady v. Maryland,

   19
        See also note 15, supra.
  20
     The state contends that Spivey’s Brady claims are procedurally defaulted. Spivey did not raise
them in his first state habeas petition. After Spivey acquired the documents in 1992 through the
Georgia’s Open Records Act, he raised the Brady claims with respect to these three documents for
the first time in his second state habeas petition. In 1995, the state court dismissed the second

                                                35
373 U.S. 83, 87 (1963), the Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the

good faith of the prosecution.” To establish a Brady violation, Spivey must prove: 1)

that the government possessed evidence favorable to the defense, 2) that the defendant

did not possess the evidence and could not obtain it with any reasonable diligence, 3)

that the prosecution suppressed the evidence, and 4) that a reasonable probability

exists that the outcome of the proceeding would have been different had the evidence




petition finding it successive under Ga. Code Ann. § 9-14-51, which mandates that all grounds for
relief be raised by a petitioner in his original or amended petition and mandates that any grounds not
so raised are waived “unless the Constitution of the United States or of this state otherwise requires
or unless any judge to whom the petition is assigned, on considering a subsequent petition, finds
grounds for relief asserted therein which could not reasonably have been raised in the original or
amended petition.” The second state habeas court found no suppression of exculpatory evidence
within the meaning of Brady. See Resp exh. vol 3 of 4, ex L.

        In Smith v. Zant, 301 S.E.2d 32, 37 (Ga. 1983), the Supreme Court of Georgia reversed a
lower court’s dismissal of his successive state habeas petition on § 9-14-51 grounds and held that
where “the prosecution has the constitutional duty to reveal at trial that false testimony has been
given by its witness, it cannot, by failing in this duty, shift the burden to discover the
misrepresentation after trial to the defense.” Spivey argues that Smith indicates that where a
prosecutor violates a constitutional duty to disclose, the defendant is not procedurally barred by §9-
14-51 because he could not reasonably have raised it earlier. Thus, Spivey concludes, here Georgia
procedural default law requires the consideration of the antecedent constitutional Brady question,
i.e., whether the prosecutor violated a constitutional duty to disclose, so federal review is not barred
because the second habeas court decided this question erroneously. See Ake v. Oklahoma, 470 U.S.
68, 75 (1985) (“[W]hen resolution of the state procedural law question depends on a federal
constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and
our jurisdiction is not precluded.”). Rather than attempt to resolve this state law question, we assume
arguendo that there is no procedural bar, address the merits of Spivey’s Brady claims, and, for the
reasons stated in the text, find no Brady violation.

                                                  36
been disclosed to the defense. See Duest v. Singletary, 967 F.2d 472, 478 (11th Cir.

1992), vacated and remanded, 507 U.S. 1048, reinstated in relevant part, 997 F.2d

1336 (11th Cir. 1993).

      In the first document, Davidson’s statement, she reported a number of things

that could be construed as favorable to the defendant. She said that he had a “Manic

expression in his eyes (meaning the psycological [sic] term manic) in that he would

not make direct visual contact, but a wavering expression with the eyes.” She

reported that “He explained that he had 75 rounds of ammunition and that he intended

to use every one of them and at best, he only had a day to live. He intended to kill any

cop that got near him, that they’d never take him alive” because he intended to shoot

it out with the police and that “his wife had left him four months ago and would not

let him see his daughter.” She also said he gave her back some of the money he stole

from her. Spivey argues that this evidence is favorable to him because his defense

attempted to show he acted out of an irrational and self-destructive impulse and

because it refutes the state’s assertions that he was pitiless and without remorse.

      Spivey’s claim with respect to this document fails, however, for two reasons:

1) he could have obtained it with reasonable diligence and 2) no reasonable

probability exists that the outcome would have been different had the evidence been

disclosed. First, a review of the 1977 trial transcript, which the 1983 trial counsel


                                          37
with reasonable diligence could have reviewed, reveals the existence of the statement

and some of its contents. Before beginning the cross-examination of Davidson at the

1977 trial, defense counsel requested the previously written statement of the witness

and the prosecution responded, “we’ve let the defense see the statement twice already,

we don’t mind letting them see it again, however, I don’t think he’s entitled to it until

he starts to cross-examine the witness, we’ll be glad to do that.” 1977 Tr. Trans. 382-

83. In fact, defense counsel did have the document in hand while cross-examining

Davidson and even asked questions based upon the statement, for example, “Did you

describe [his appearance] as a manic expression?”21 Since Spivey should have known

about the document and even some of its contents, he should have obtained the

evidence by a specific request for this statement and, if that failed, a request to the

court for an order to produce this specific statement.

        Second, even had defense had this statement and been able to use it at trial,

either directly or in its cross-examination of Davidson, there is no reasonable

probability that the outcome would be different. Her comment about the manic

expression provides little more understanding of Spivey’s mental state in light of the

violent outburst that followed. The comment about having only one more day to live

   21
      In addition, the State’s Response to a Motion for Discovery dated June 7, 1977 indicates that
the defendant “orally stated to Mary Jane Davidson, ‘I am sorry about this,’ at the time of his arrest”
and “‘I am not proud of the charges made against me.’” This evidence was available to the defense
and was a stronger indication of remorse Spivey showed Davidson.

                                                  38
and not being taken alive when considered in the context of his plan to shoot it out

with the police also adds little to the defense’s mental illness claim. At the 1983 trial,

Davidson testified that “He told me that he had killed five people that day, and he put

the gun back on me, touching me, and said, ‘One more doesn’t make any difference.’

He told me that if the police came up that I would get it first and then he’d battle it out

with the police.” Tr. Trans. at 1385. Given Spivey’s extensive testimony about his

marriage’s collapse shortly before the offense and how he could not see his daughter,

the fact that Davidson reported he told her about his wife leaving him and not being

able to see his daughter would have had a minimal, if any, impact on the outcome.

See Tr. Trans. 1707-12. The exclusion from jury consideration of the fact that Spivey

gave her back some of the money he stole also has negligible impact and does not

undermine confidence in the outcome.

      The second document, the Matthews Report, contains statements of both

Davidson and Spivey. In his report, Detective Matthews recorded that Davidson said

that on several occasions Spivey talked of killing himself, that he tried to give her the

gun but she refused out of fear, and that he offered to let her out of the car at one

point, but she was afraid that he would shoot her if she did. The report also indicates:

      [Spivey] stated that he was very sorry for what had happened in the past
      24 hours. He stated that he felt sorry for the dead policeman and his
      family, but that it was too late to feel sorry. He stated that it had been a


                                        39
             nightmare since “it” happened.           Spivey would make no further
             statements.

Resp. Ex. part 4 of 4. These statements, especially those of Spivey, favor the

defense’s mental illness strategy, though they suggest regret more than remorse.

             Nonetheless, even if the defense had had this document, there is no reasonable

probability of a different outcome.22 The remark about feeling sorry for the policeman

and his family add little to Spivey’s claims of remorse.23 The remark about Spivey’s

talk of suicide would have added only marginally to the considerable evidence of

mental illness that the jury rejected in the guilt-innocence phase and sentencing phase

of the trial.

             The third document, the letter from the district attorney to Central State

Hospital, lists the materials sent to the hospital for its upcoming examination of

Spivey, including the Matthews Report and Davidson’s statement. Assuming that the

list contained in this document is exculpatory evidence, there is still no reasonable



        22
        Spivey may also fail the reasonable diligence prong on this claim because some of the
statements which apparently derive from the Matthews Report are found in the 1977 trial transcript
though, unlike Davidson’s statement, there is no explicit mention of the Matthews Report in the
record.
   23
      There was extensive testimony about Spivey’s remorse since he committed the crime. Spivey
himself, when asked if he felt sorry for what he had done, answered, “More than I could ever tell
in a million lifetimes.” Tr. Trans. 2375. Based on their experiences ministering to Spivey in prison,
Rev. Stan McGraw, an Episcopal priest, and Rev. Bennett Sims, an Episcopal bishop, also testified
about the great extent and sincerity of Spivey’s remorse. See Tr. Trans. 2395, 2410-11.

                                                 40
probability of a different outcome had Spivey had this document. Presumably if

Spivey had this letter, he could have acquired the Matthews report and Davidson’s

statement.      However, for the reasons stated above, Davidson’s statement was

otherwise readily available to him and there is no reasonable probability that these two

documents would affect the outcome. Possession of the letter may have allowed, as

Spivey asserts, a better cross-examination of Dr. Jacobs, the state’s witness from

Central State Hospital, but again the marginal improvement in the cross-examination

does not produce a reasonable probability of a different outcome. Furthermore,

defense counsel had the opportunity to cross-examine Dr. Jacobs about the material

he used in evaluating Spivey.

          Having reviewed the record, we find that there is no reasonable probability of

a different outcome had these three documents been available to Spivey and,

accordingly, affirm the district court with respect to Claims XII & XVIII.

                                     IV.     CONCLUSION

          For the reasons stated above, we find no federal or constitutional error

warranting habeas corpus relief.24 Accordingly, Spivey’s appeal of the district

     24
        Spivey’s remaining claims do not warrant habeas relief and do not warrant discussion.
Accordingly, we affirm the district court with respect to Claims XIII (arguing his 1983 psychiatric
evaluation was tainted by the unconstitutional 1977 evaluation), XIV (relating to the State’s use of
Spivey’s admission to the arresting officer of his sexual activity with Davidson to impeach Spivey’s
testimony at trial that he had no recollection of the events during his crime spree), XV (arguing that
the prosecutor’s closing arguments at both phases of the trial contained comments about the quality

                                                 41
court’s denial of his petition for writ of habeas corpus is denied and the district

court affirmed.

       AFFIRMED.




of the victim’s life and his family’s assumed desire for revenge and injected improper considerations
into the jury’s decision-making process), XVI (arguing the prosecutor’s closing arguments contained
other comments, in particular improper references to the jury’s responsibility, the prosecutor’s
expertise and opinions, and the defendant’s attorney and experts, which unfairly prejudiced Spivey),
XVII (arguing that the selective admission of portions of former testimony by Spivey’s ex-wife was
improper), XXII (arguing ineffective assistance of trial counsel), and XXIII (arguing ineffective
assistance of appellate counsel).

                                                 42
BARKETT, Circuit Judge, concurring in part and dissenting in part:

      I concur in the majority’s judgment with the exception of its conclusion that

the jury’s reliance on Spivey’s subsequently vacated Bibb County conviction and

sentence in violation of Johnson v. Mississippi was a harmless error. I believe that

the jury’s consideration of Spivey’s vacated conviction and life sentence,

combined with the prosecutor’s comments during closing arguments, fails to meet

the Eight Amendment’s “heightened ‘need for reliability in the determination that

death is the appropriate punishment.’” Caldwell v. Mississippi, 472 U.S. 320, 340

(1985) (quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality

opinion)). Thus, I believe Spivey is entitled to a new sentencing proceeding.

      In Johnson v. Mississippi, 486 U.S. 578 (1988), the jury found three

aggravating circumstances when sentencing Johnson for the murder of a

Mississippi highway patrolman, one of which was that Johnson had “previously

been convicted of a felony involving the use or threat of violence to the person of

another.” Id. at 581. During sentencing, the prosecutor repeatedly referred to this

prior conviction in urging the jury to sentence Johnson to death. The jury did so.

Although Johnson’s prior conviction was later vacated, the Mississippi Supreme

Court nonetheless affirmed Johnson’s death sentence despite the jury’s

consideration of the invalid conviction. Noting both the “special ‘need for


                                         43
reliability in the determination that death is the appropriate punishment’ in any

capital case,” id. at 584 (quoting Gardner v. Florida, 430 U.S. 349, 363-64 (1977)),

and the “possibility that the jury’s belief that petitioner had been convicted of a

prior felony would be ‘decisive’ in the ‘choice between a life sentence and a death

sentence’,” id. at 586 (quoting Gardner, 430 U.S. at 359), the United States

Supreme Court vacated the death sentence and remanded for re-sentencing. The

Court held that the sentence of death was inconsistent with the Eighth

Amendment’s prohibition against cruel and unusual punishment because “the jury

was allowed to consider evidence that has been revealed to be materially

inaccurate.” Id. at 590.

      As the majority has noted, in order to grant habeas relief based on this trial

error, we must find actual prejudice. Actual prejudice exists where the error “had

substantial and injurious effect or influence in determining the jury’s verdict.’”

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteas v. United

States, 328 U.S. 750, 776 (1946). In Duest v. Singletary, 997 F.2d 1336 (11th Cir.

1993), this Court, in considering whether habeas relief was warranted where “the

jury had based its recommendation of death upon consideration of a prior criminal

conviction which was later vacated,” id. at 1336, determined that the appropriate

question was whether the jury’s consideration of the defendant’s vacated criminal


                                          44
conviction for armed assault with intent to murder “substantially influence[d] the

verdict, or, at least, [if] a grave doubt exist[ed] as to whether it did.” Id. at 1339

(internal quotation marks omitted).1 We found that Duest was prejudiced by

evidence of his earlier conviction because “Duest’s sentencing jury was permitted

to consider evidence that was materially inaccurate.” Id.

       I do not believe the majority fairly analyzes the question of whether

prejudice occurred in this case. The majority assumes the answer first, by positing

the question in terms of whether the “marginal” impact of the conviction is

prejudicial and next, by asserting without analysis that the impact of this additional

evidence was “slight”. Evidence of a prior conviction may well have a slight

impact in a given case. However, our responsibility is to examine the circumstance

of this case to determine first, how the evidence of Spivey’s prior conviction and

sentence was presented to the jury, and second, in light of that presentation, what

impact that information may have had on the jury’s recommendation. In reversing

the death sentence in Johnson, the Supreme Court found that

       [t]he prosecutor repeatedly urged the jury to give [the prior
       conviction] weight in connection with its assigned task of balancing
       the aggravating and mitigating circumstances. Even without that

  1
    We had previously vacated Duest’s sentence under the then-prevailing harmless error standard
of Chapman v. California, 386 U.S. 18 (1967). See Duest v. Singletary, 967 F.2d 472 (11th Cir.
1992). That judgment was vacated by the Supreme Court and remanded for reconsideration in light
of Brecht. See Singletary v. Duest, 507 U.S. 1048 (1993).

                                              45
      express argument, there would be a possibility that the jury’s belief
      that petitioner had been convicted of a prior felony would be
      “decisive” in the “choice between a life sentence and a death
      sentence.”

Johnson, 486 U.S. at 586 (citations omitted). As in Johnson and Duest, there is no

question in this case that the jury’s attention was directly and emphatically drawn

to the prior conviction and life sentence separate and apart from the underlying

conduct. The prosecutor repeatedly urged the jury to sentence Spivey to death,

arguing that precisely because of the previous conviction and life sentence, a life

sentence would be a meaningless punishment in this case:

      State’s Exhibit Number 22 among all the exhibits that you have to go
      out with you is an Indictment, a verdict of guilty, and a sentence to
      life imprisonment for the defendant in Bibb County, Georgia. . . . So
      your verdict of life imprisonment will not add one day of punishment
      to this man. Bear that in mind. Bear that in mind. And if that is not a
      slap on the wrist, and I don’t want to be flip by using terms like a slap
      on the wrist but if that is not that then what is it? What is it? It is
      literally two lives, two human lives for the price of one because a
      person only has one life. If he is sentenced to life imprisonment on
      the first murder and you give him life on the second, is that
      appropriate punishment?

(Tr. Trans. 2462-63). In his closing argument during the sentencing hearing the

prosecutor again urged the jury to impose a death sentence because of Spivey’s

existing conviction and life sentence:

      Counsel will make a compelling argument for life imprisonment. . . .
      But is that appropriate punishment when you consider the Macon case
      where he has already got a life sentence? Why do we even go through

                                         46
       the effort of trying this case when he has already got a life sentence on
       a crime that happened within two or three hours of this? Well, you
       will answer that for us.

(Tr. Trans. 2467).

       The majority recognizes that “[a]t the sentencing stage, the jury faced the

central question of whether to sentence Spivey to death or to life imprisonment.”

Spivey was prejudiced here because the prosecutor presented the jury with a false

choice between imposing death and imposing no punishment. Not only did the

jury consider a conviction that has since been vacated, but the prosecutor presented

the vacated life sentence not simply as a factor to consider but as the decisive

factor in urging the jury to recommend a death sentence. One cannot ignore the

government’s argument to the jury and assume, as I believe the majority appears

to, that because a prior killing occurred on the same night, no juror would have

recommended a life sentence.2 Our task is not to uphold a sentence merely because

we might have imposed that sentence had we been jurors. Rather, our duty is to

provide to the defendant that to which he is entitled — a jury of his peers who had

true and accurate information on which to base their decision to impose a life or a


   2
      As in Duest, 997 F.2d at 1339, if even one juror who recommended the death sentence was
substantially influenced by the existing life sentence, habeas relief is warranted because under
Georgia law, if the sentencing jury does not unanimously recommend the death penalty, the trial
court must impose a sentence of life imprisonment. See Hill v. State, 250 Ga. 821, 301 S.E.2d 269,
270 (1983); Romine v. State, 256 Ga. 521, 350 S.E.2d 446 (1986).

                                               47
death sentence. The circumstances in this case raise a sufficiently grave doubt in

my mind that the jury’s consideration of Spivey’s vacated conviction and life

sentence substantially influenced the sentence of death. See Duest, 997 F.3d at

1339. Therefore, I believe the death penalty imposed is constitutionally

impermissible under Johnson and a new jury should be impaneled to consider the

appropriate punishment based on accurate information.




                                         48
