                    United States Court of Appeals,

                           Eleventh Circuit.

                                No. 94-8224.

               Ellis Wayne FELKER, Petitioner-Appellant,

                                     v.

           Albert G. THOMAS, Warden, Respondent-Appellee.

                                May 8, 1995.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 93-171-3-MAC (WDO)) Wilbur D. Owens, Jr.,
Judge.

BIRCH, BLACK and CARNES, Circuit Judges.

     CARNES, Circuit Judge:

     This appeal involves the denial of habeas corpus relief, 28

U.S.C. § 2254, to Ellis Wayne Felker, in connection with his 1983

murder conviction and death sentence imposed by the State of

Georgia.   Felker raises three issues.         He contends that there was

insufficient    evidence   to   convict   him;     that   the   prosecution

suppressed evidence favorable to him in violation of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963);          and,

that his retained trial counsel rendered ineffective assistance of

counsel at the sentence stage by conceding that Felker was guilty

of the crime for which the jury had convicted him.              We find no

merit in any of Felker's contentions.
                                  I. FACTS

     In 1976, Felker used deception to lure Jane W., a waitress, to

his residence, where he overpowered her. Felker then subjected her

to bondage, beating, sadistic sexual abuse, and sodomy.           When Jane

W. pleaded with Felker to release her, he told her he could not let
her go because she would tell the police what he had done to her.

Fortunately for her, she managed to escape after Felker fell

asleep.      Because of what he had done to Jane W., Felker was

convicted of aggravated sodomy and sentenced to twelve years

imprisonment with four years of the twelve-year sentence to be

probated.

     Unfortunately, Felker was paroled in 1980 after serving only

four years of his sentence.             Less than a year after he was released

on parole, Felker used deception to lure Evelyn Joy Ludlam, a

nineteen-year-old college student working as a waitress, to his

residence.     There, he forcibly subjected her to bondage, beating,

rape, and sodomy.           As the Georgia Supreme Court said in comparing

what Felker had done to Jane W. in 1976 to what he did to Joy

Ludlam    in        1981:        "The     similarities   are   numerous     and

distinctive...." Felker v. State, 252 Ga. 351, 314 S.E.2d 621, 632

(detailing the similarities), cert. denied, 469 U.S. 873, 105 S.Ct.

229, 83 L.Ed.2d 158 (1984).             Tragically for Joy Ludlam, there was

one major difference:          she did not escape.    Felker murdered her and

threw her body in a creek.
                              II. PROCEDURAL HISTORY

     For the crimes he committed against Joy Ludlam, Felker was

convicted      of     murder,     rape,     aggravated   sodomy,   and    false

imprisonment.        At the sentence stage, the jury found two statutory

aggravating circumstances:           the murder was committed while Felker

was engaged in a rape;             and, the offense was outrageously or

wantonly vile, horrible or inhuman because it involved torture or

depravity of mind.           Felker was sentenced to death.
     In     his   direct   appeal,    Felker   raised    forty   issues    or

enumerations of error. The Georgia Supreme Court held there was no

merit in any of them, and affirmed his conviction and death

sentence.     Felker v. State, 252 Ga. 351, 314 S.E.2d 621 (1984).

The United States Supreme Court denied certiorari.               Felker v.

Georgia, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).

     Felker then challenged his conviction and sentence in a state

habeas corpus proceeding in which he raised fourteen issues.              The

state trial court denied collateral relief, and the Georgia Supreme

Court denied Felker's application for a certificate of probable

cause to appeal that denial.           The United States Supreme Court

denied certiorari.     Felker v. Zant, 502 U.S. 1064, 112 S.Ct. 950,

117 L.Ed.2d 118 (1992).

     Felker then filed, in the United States District Court for the

Middle District of Georgia, a petition for federal habeas corpus

relief pursuant to 28 U.S.C. § 2254.            In his petition, Felker

raised five claims, alleging:        1) insufficiency of the evidence to

convict;    2) a violation of        Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963);         3) ineffective assistance of

counsel at the sentence stage;          4) improper use of hypnosis to

refresh the memory of a witness for the state;          and 5) violation of

double jeopardy and collateral estoppel principles by the use of

evidence of Felker's crime against Jane W. in his trial for crimes

against Joy Ludlam.        The district court denied relief, and this

appeal followed.      In this Court, Felker presses only the first

three issues.
                             III. DISCUSSIONS
              A. THE SUFFICIENCY OF THE EVIDENCE CLAIM

        Felker contends that he is entitled to habeas corpus relief

under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979), because the evidence was insufficient to convict him.

The voluminous evidence against Felker has been set out in detail

by the Georgia Supreme Court, 314 S.E.2d at 626-31, 635-36, and we

will   not   repeat   it   here.   The   constitutional   test   for   the

sufficiency of the evidence is "whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond

a reasonable doubt."       Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

       In determining that there was sufficient evidence to convict

Felker of false imprisonment and of murder, the Georgia Supreme

Court explained:

            The evidence supports a finding that Joy Ludlam was bound
       at her wrists and ankles, gagged, and blindfolded, all against
       her will. She was therefore confined and detained without
       legal authority in violation of her personal liberty. Thus,
       the evidence was sufficient to support the conviction for
       false imprisonment.

314 S.E.2d at 638 (footnote omitted).      As to the basis for the rape

and aggravated sodomy convictions, the court said:

            We conclude that the evidence was sufficient to convince
       a rational trier of fact beyond a reasonable doubt that
       appellant accosted the victim for purposes of achieving
       deviant sexual gratification and that to this end she was
       bound and gagged, beaten, raped and sodomized. Thus, we find
       that the convictions for rape and aggravated sodomy are
       supported by sufficient evidence. Jackson v. Virginia, supra.

Id.    Reviewing the evidence de novo, we reach the same conclusions

as the Georgia Supreme Court.

                            B. THE BRADY CLAIM

       Felker claims that the State of Georgia violated Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by

failing to disclose to the defense evidence indicating that the

last time someone other than the murderer saw Joy Ludlam alive was

at sometime between approximately 2:30 and 4:00 p.m. on Wednesday,

November 25, 1981, instead of at 5:00 p.m. the day before.         Either

time is consistent with the State's forensic testimony at trial,

which established a broad range for the time during which death

could have occurred—any time from November 24 to December 5, 1981.

The materiality of the undisclosed evidence, Felker argues, is that

the prosecution's theory at trial was that Joy Ludlam was killed

after 6:30 p.m. on Tuesday, November 24, either later that night or

in the early morning hours of November 25.      The State concedes that

Felker    had   an   alibi   for   all   relevant   times   beginning   at

approximately 7:00 p.m. on the evening of Wednesday, November 25,

and his alibi was a good one—the police had him under surveillance

from 7:00 p.m. that Wednesday until he was arrested on December 8,

1981.

         A successful Brady claim requires three elements:        (1) the

prosecution suppressed evidence, (2) the evidence suppressed was

favorable to the defense or exculpatory, and (3) the evidence

suppressed was material.      Brady, 373 U.S. at 87, 83 S.Ct. at 1196-

97;     Jacobs v. Singletary, 952 F.2d 1282, 1288 (11th Cir.1992);

Delap v. Dugger, 890 F.2d 285, 298 (11th Cir.1989), cert. denied,

496 U.S. 929, 110 S.Ct. 2628, 110 L.Ed.2d 648 (1990).            Felker's

claim fails on the first and third elements.         He cannot establish

that the evidence in question was suppressed, because the evidence

itself, if true, proves that Felker was aware of the existence of
that evidence before trial. The parties disagree about whether the

evidence was effectively disclosed to defense counsel, but that

dispute need not detain us.    Viewed most favorably to Felker, the

evidence in question is that a sales clerk at a western wear store

saw Joy Ludlam in the presence of Felker and another woman at that

store sometime around 2:30 p.m. to 4:00 p.m. on Wednesday, November

25, 1981.1   However, the witness Felker claims would have testified

to that fact also would have testified that Felker himself was

present with the victim on that occasion, and that Felker directed

the victim to pay for her purchase in cash instead of with a

check.2   If the witness's statements are true, and Felker's Brady

     1
      A police report indicated that on December 11, 1981,
Katherine Gray of Thaxton's Western Center had told two officers
that at approximately 3:00 or 4:00 p.m. on Wednesday, November
25, 1981, Joy Ludlam had come into the store and purchased a pair
of boots. Ms. Gray located a receipt reflecting the sale of
boots on that date, but the receipt did not contain Joy Ludlam's
name or anything else identifying the purchase as hers. When
placed under hypnosis on December 14, 1981, Ms. Gray said that
the time Joy Ludlam came into the store was 2:30 p.m. on the
Wednesday before Thanksgiving, which would have been November 25.
Ms. Gray did not testify at trial. However, she did testify by
deposition in the state post-conviction proceeding that she could
not remember what date Joy Ludlam had been in the store.

          It is undisputed that neither the contents of the
     December 11 police report nor the statements Ms. Gray made
     during the December 14 hypnosis session was disclosed to
     defense counsel. But it is also undisputed that Ms. Gray's
     name was provided by the prosecution to defense counsel, who
     interviewed her twice before trial. Defense counsel
     testified in the state post-conviction proceeding that Ms.
     Gray was not forthcoming when he interviewed her. She
     testified she had answered truthfully everything he asked
     her.
     2
      The December 11, 1981, police report indicated that Ms.
Gray identified Felker as the man who had accompanied Joy Ludlam
to the store. In her hypnotized statement, Ms. Gray described
how Felker had prevented Ludlam from paying with a check. Her
state post-conviction proceeding deposition testimony included
identification of Felker as the man who had been with Ludlam and
claim assumes they are, then Felker was there in the store with Joy

Ludlam on the afternoon of Wednesday, November 25, 1981.                 Because

he was there with her, Felker knew all about the victim having gone

into that particular store at that time and having been seen alive

at that time by the store clerk, and possibly by other persons in

the store.     Not only did Felker know all of that, but because he

was   there   when   it   happened,   he   knew    it   well    before    anyone

representing the State did.

      We have held numerous times that there is no suppression, and

thus no Brady violation, if either the defendant or his attorney

knows before trial of the allegedly exculpatory information. E.g.,

United States v. Valera, 845 F.2d 923, 927-28 (11th Cir.1988),

cert. denied, 490 U.S. 1046, 109 S.Ct. 1953, 104 L.Ed.2d 422

(1989);       Halliwell v. Strickland,       747     F.2d   607,    609    (11th

Cir.1984), cert. denied, 472 U.S. 1011, 105 S.Ct. 2711, 86 L.Ed.2d

726 (1985);      United States v. Cravero,         545 F.2d 406, 420 (5th

Cir.1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d

377 (1977). Because the information in question was not suppressed

from Felker's own personal knowledge, his Brady claim fails for

that reason.

       Another independently adequate reason why Felker's                  Brady

claim fails is that the evidence in question is not material.                 We

measure   materiality     pursuant    to   the    Supreme      Court's    latest

instructions on the subject in Kyles v. Whitley, --- U.S. ----, 115

S.Ct. 1555, --- L.Ed.2d ---- (1995).              Although the evidence in
question would have been inconsistent with the prosecution's theory


had insisted that Ludlam pay with cash instead of with a check.
at trial about when the victim was last seen alive, it would not

have been inconsistent with any of the evidence proving Felker's

guilt.3   More importantly, the evidence in question would have

flatly contradicted Felker's testimony on his own behalf.   Felker

took the stand at trial and testified that he had last seen Joy

Ludlam at about 6:00 p.m. on Tuesday, November 24, 1981, and that

he knew nothing whatsoever about her whereabouts after that time.

If the sales clerk at the western wear store had been called as a

witness at trial to testify that Joy Ludlam was in the store the

next afternoon, her testimony also would have established that

Felker had been there with Joy Ludlam, and thus that he had lied

under oath about when he was last with the victim.   Her testimony

would have established that Felker was with the victim one day

later and thus one day closer to the time of the murder.      Her

testimony would have established that Felker had been ordering the

victim around—that shortly before Joy Ludlam was murdered Felker

had told her to pay for a purchase with cash instead of with a

     3
      We have carefully considered Felker's argument that there
would not have been enough time for him to have killed Joy Ludlam
between the time she was seen with him at the western wear store
on the afternoon of November 25, 1981, and the time police
surveillance of Felker began later that evening. The record
indicates he would have had time. At oral argument, Felker's
counsel argued that the evidence in question established that
Felker and Ludlam had left the store at approximately 3:00 p.m.
on November 25. Yet the record also establishes that police
contact with, and surveillance of, Felker did not begin until
three or four hours later. Contrary to Felker's assertion, the
testimony of the State's forensic expert, when considered in its
entirety, does not establish that the killer had begun abusing
Ludlam hours before she was killed. Accordingly, even if we
assume, as Felker now contends, that Ludlam and he left the
western wear store at 3:00 p.m. on November 25, he still would
have had time to abuse and kill Ludlam and dispose of her body
before the police officers arrived at his house three to four
hours later.
check.     The jury would have been entitled to infer, and no doubt

would have inferred, from that fact that Felker had been making

sure that the victim's whereabouts could not be traced later

through the check she had wanted to write.

     According to Kyles v. Whitley, we are to view the evidence in

question as a whole, --- U.S. at ----, 115 S.Ct. at ----, and

determine "whether in its absence [the defendant] received a fair

trial, understood as a trial resulting in a verdict worthy of

confidence," id. at ----, 115 S.Ct. at ----, or stated somewhat

differently, whether the evidence "could reasonably be taken to put

the whole case in such a different light as to undermine confidence

in the verdict," id. at ----, 115 S.Ct. at ---- (footnote omitted).

Especially given Felker's own testimony at trial, the net effect of

the entire evidence in question is not even favorable to him.    For

that reason, Felker's claim probably fails even the second prong of

Brady, and it most assuredly fails the third, or materiality prong.

The evidence in question could not reasonably be taken to put the

whole case in a different light so as to undermine confidence in

either the guilt verdict or the sentence.    Felker received a fair

trial, one resulting in a verdict and sentence worthy of our

confidence.

            C. THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

         Felker's ineffective assistance of counsel claim relates to

the sentence stage where, according to him, his counsel conceded

Felker's guilt of the crime.    Relying on decisions such as Francis

v. Spraggins, 720 F.2d 1190, 1194 (11th Cir.1983),    cert. denied,

470 U.S. 1059, 105 S.Ct. 1776, 84 L.Ed.2d 835 (1985), and Young v.
Zant, 677 F.2d 792, 799-800 (11th Cir.1982), cert. denied, 476 U.S.

1123, 106 S.Ct. 1991, 90 L.Ed.2d 672 (1986), Felker argues that

trial counsel may not concede the guilt of a defendant who has

pleaded not guilty, at least not without the defendant's consent.

That is true enough as to the guilt stage, which is what those

decisions concerned.    However, the situation is entirely different

at the penalty stage where the same jury that will be determining

the defendant's sentence has already unanimously found beyond a

reasonable doubt that he is guilty of the crime charged.           As we

said in   Green v. Zant, 738 F.2d 1529, 1542 (11th Cir.), cert.

denied, 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984), "A

defendant does not arrive at the penalty phase of a capital

proceeding with a clean slate, and there is no point in pretending

otherwise."    It is entirely reasonable for an attorney to conclude

that there is little to be gained and much to be lost by "fighting

the hypothetical" and pretending that his freshly convicted client

is not guilty in the eyes of the sentencing jury.

        We do not mean to imply that pursuit of what is sometimes

called a whimsical doubt or residual doubt strategy at the sentence

stage will constitute ineffective assistance of counsel.             Our

decisions recognize that in some circumstances a decision to

continue denying the defendant's guilt throughout the sentence

stage   will   be   within   the   range   of   reasonable   professional

assistance.    See, e.g., Julius v. Johnson, 840 F.2d 1533, 1542

(11th Cir.), cert. denied, 488 U.S. 960, 109 S.Ct. 404, 102 L.Ed.2d

392 (1988);    Funchess v. Wainwright, 772 F.2d 683, 689-90 (11th

Cir.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1242, 89 L.Ed.2d
349   (1986).    However, it is a "         wide   range   of    reasonable

professional    assistance"   that    is   constitutionally     acceptable.

Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065,

80 L.Ed.2d 674 (1984) (emphasis added).        Within that wide range of

reasonable professional assistance, there is room for different

strategies, no one of which is "correct" to the exclusion of all

others.   As we have recently observed, "The Supreme Court has

recognized that because representation is an art and not a science,

"[e]ven the best criminal defense attorneys would not defend a

particular client in the same way.' "         Waters v. Thomas, 46 F.3d

1506, 1522 (11th Cir.1995) (en banc) (quoting Strickland, 466 U.S.

at 689, 104 S.Ct. at 2065);    see also White v. Singletary, 972 F.2d

1218, 1220 (11th Cir.1992) (stating that the test is not what the

best lawyers would have done or what most good lawyers would have

done, but only whether some reasonable attorney could have acted in

the circumstances as this attorney did).           Whether to pursue a

residual doubt strategy or a strategy seeking mercy notwithstanding

guilt is a strategic question left to counsel.                We will not

second-guess counsel's answer.

      The record in this case establishes that counsel's decision

not to belabor the guilt issue at the sentence stage was entirely

reasonable.     At the trial level, Felker was represented by three

retained attorneys who divided among themselves responsibility for

various tasks.    The attorney primarily responsible for formulating

and carrying out defense strategy at the sentence stage was J.

Robert Daniel, an experienced attorney who had represented capital

defendants before.
      After conducting an evidentiary hearing on this claim in the

state habeas proceeding, the trial court found that prior to trial

Daniel   interviewed   numerous   witnesses   in   preparation   for   the

sentence stage.   Based upon his past experience, Daniel believed

that "after the jury rejects a claim of innocence there is no

wisdom in going back to the same jury and asking for a life

sentence while still telling the jury they made an erroneous

decision."   He knew of another trial in which an attorney had

attempted to litigate the guilt issue again at the sentence stage

and had been unsuccessful. Rather than follow that strategy, which

he believed to be unwise, Daniel decided to present mitigating

evidence and argue that the jury should spare Felker's life because

of his potential in the future, instead of arguing that the jury

had made a mistake in finding him guilty of the crime.

     In his opening statement at the sentence stage, Daniel told

the jury that it would be hearing from:

     family members, relatives, friends of the family, to give you
     some kind of idea of who Wayne Felker is.     You know Wayne
     Felker only as Wayne the convicted murder[er], rapist and
     sodomist at this point. You don't know anything about his
     upbringing, how he got to where he is today.

           We want you to meet Wayne Felker through his parents,
     through his friends, through his relatives, and to give you
     some kind of idea of their feelings, and they're going to ask
     you, quite frankly I expect, to impose a life sentence in the
     case, and they're going to also give you their reasons for
     that.

Daniel presented as mitigating circumstance witnesses:           Felker's

mother, his father, two aunts, one of his ex-wives, two family

friends, and his former Sunday School teacher.       In addition to the

testimony of these witnesses who knew Felker, Daniel presented the

testimony of several academics and religious scholars opposed to
the death penalty, including two professors in the Christianity

department at Mercer, a professor of political science at the

University of Georgia, and a minister with the Southern Prison

Ministry, who works with death row inmates and their families.

     There   is   nothing   unreasonable   about   the   sentence   stage

strategy that Daniel chose or about the way he carried it out.

Felker also argues that the strategy Daniel pursued was against his

wishes.   The state trial court found as a fact to the contrary.

Even if we were to ignore that factfinding, and even if we were to

assume for present purposes that Felker had a right to determine

the strategy that would be pursued, there is no possibility that a

residual doubt strategy would have produced a different result in

this case.
                            IV. CONCLUSION

     The district court's denial of the petition for habeas corpus

relief is AFFIRMED.
