PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________________

No. 95-6378 _____________________________________

HENRY F. HAYS,

Petitioner-Appellant,

versus

STATE OF ALABAMA,

C. E. JONES,

Respondents-Appellees.

______________________________________

Appeal from the United States District Court

for the Southern District of Alabama

_______________________________________

(June 6, 1996)

Before KRAVITCH, EDMONDSON and BIRCH, Circuit Judges.

EDMONDSON, Circuit Judge:

Henry Hays petitioned for a writ of habeas corpus, alleging

constitutional errors in the state court proceedings surrounding his

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

Shortly before the release of this opinion the Antiterrorism and Effective Death

Penalty Act of 1996 was signed into law; the Act aims to expedite the process of

federal collateral review. Because we deny the petition according to pre-existing

standards, we have no occasion to consider whether the Act provides a basis for the

denial of relief. We are confident the Act does not help Hays.

2

relief. We affirm.1

FACTS AND BACKGROUND

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

and Henry's friend and later accomplice James "Tiger" Knowles were

following developments in the trial of a black man accused of killing a white

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

public reaction to the hanging of a black man. Perhaps worried about

property values, Bennie Hays told his son and Knowles to do nothing until

Bennie had sold some apartments on Herndon Avenue.

Shortly thereafter, according to Knowles's testimony, the property

sale closed. Hays and Knowles got a rope, which they tied into a

hangman's noose, and a gun from fellow Klansmen. The two then set out

to look for a black man. They randomly found Michael Donald, pulled

alongside him in their car, and asked for directions. They forced him into

the car at gunpoint. Knowles made Donald empty his pockets; Knowles's

trial testimony indicates he wanted to be sure the victim was unarmed.
3

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

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

Knowles in an attempt to escape. After a struggle, Hays and Knowles

forced Donald to the ground. Hays retrieved the noose, and the two of them

put it around Donald's neck. Hays dragged Donald while Knowles beat him

with a tree limb; and when Hays's hands began to hurt, they switched.

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

ground. Autopsy reports showed Donald probably died from asphyxiation

during this time. Nevertheless, Henry Hays slashed Donald's throat.

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

Herndon Avenue.

Hays was charged after a two year investigation. The prosecution --

after requesting a continuance, ostensibly because it had not received

some evidence -- returned a new indictment one day before trial. At trial,

Hays was convicted; the jury recommended life without parole; but the trial

judge overrode the recommendation and sentenced Hays to death by

electrocution.

On direct appeal, the intermediate appellate court reversed, holding

the trial judge lacked the power to override the jury's decision. Hays v.

State, 518 So.2d 749, 767-68 (Ala.Crim.App. 1985). The Alabama Supreme

Court reversed the appellate court and reinstated the death sentence. Ex

Parte Hays, 518 So.2d 768, 777 (Ala. 1986). The U.S. Supreme Court denied
4

the petition for certiorari. Hays v. Alabama, 485 U.S. 929 (1988). Petitions

for post-conviction relief were denied by the Alabama state courts, and the

U.S. Supreme Court again denied certiorari. The present petition for habeas

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

DISCUSSION

I. Trial Counsel's Strategic Decisions

Hays argues his trial counsel was ineffective within the meaning of

Strickland v. Washington, 104 S.Ct. 2052 (1984), because he (1) failed to

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

witnesses before putting them on the stand; (3) failed to examine physical

evidence early enough; (4) failed to request funds for an investigator; (5)

failed to attempt to show cause why Hays was entitled to grand jury

materials; (6) failed to use the testimony of Hays's father; (7) failed to object

to the introduction of uncharged criminal offenses; (8) failed to object to the

trial court's failure to find mitigating circumstances; (9) failed to argue

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

the court's failure to give a lesser included offense charge; and (11) failed

to object to the trial judge's override of the jury's sentence

recommendation.
5

The district court accepted Petitioner's assertions that these acts

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

the petitioner "completely omits any discussion of the prejudice prong" of

the Strickland formulation, and because the "evidence against the petitioner

at trial was such that even a flawless performance by counsel would have

had little effect on the outcome," there was no denial of effective

assistance.

Petitioner's brief in this court also includes no discussion of how

better performance by trial counsel would have changed the likely outcome

of the trial or sentence; and we agree with the district court that absent

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

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

there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different"). To allege

prejudice successfully, Hays must "show that counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is

reliable." Lockhart v. Fretwell, 113 S.Ct. 838, 842 (1993) (citations and

internal quotation marks omitted).

For those factors dealing with trial counsel's preparation of witnesses

and development of the facts (the claims numbered 1-6 above), Hays

provides no explanation of how better preparation might have changed the

course of the trial. Thus, the alleged errors cannot support reversal. See,
6

e.g., Devier v. Zant, 3 F.3d 1445, 1452 (11th Cir. 1993) (declining to grant

relief where petitioner "has not carried his burden of showing how the

testimony of these witnesses would have changed if they had been better

prepared").

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

the decision not to make the listed objections was constitutionally

unreasonable or prejudicial. For example, Hays nowhere argues that the

evidence of uncharged offenses was actually inadmissible or that that

evidence probably swayed the jury. See Strickland, 104 S.Ct. at 2068

(requiring prejudice to be shown). Nor does he succeed in demonstrating

that mitigating circumstances could have been proved under Alabama law.

In view of the overwhelming evidence supporting the verdict, we conclude

there has been no showing, under Strickland, that Hays's counsel's

allegedly unreasonable errors affected the outcome of the guilt or penalty

phases of the trial.
7

II. Refusal to Grant a Continuance

Hays also argues he was denied effective assistance of counsel by the

trial court's refusal of his request for a continuance after the prosecution

returned a new indictment, alleging different facts, less than one day before

trial was to begin. The new indictment charged robbery-murder; the old

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

punishable by death under the statute effective on the date of Donald's

murder. The original indictment did give notice of the state's intent to seek

the death penalty, but did not mention robbery or the use of a gun.

As the Court noted in an analogous situation, the Constitution

"nowhere specifies any period which must intervene between the required

appointment of counsel and trial." Avery v. Alabama, 308 U.S. 444, 446, 60

S.Ct 321, 322, 84 L.Ed. 377 (1940). Thus, in this context, the courts must

"respect . . . the States' determination of local social policy." 308 U.S. at

447, 60 S.Ct. at 322. "[B]road discretion must be granted trial courts on

matters of continuances; only an unreasoning and arbitrary insistence upon

expeditiousness in the face of a justifiable request for delay violates the

right to assistance of counsel." Morris v. Slappy, 103 S.Ct. 1610, 1616

(1983) (citations and internal quotation marks omitted).

This instance is not one where circumstances conspired to create a

"presumption" that ineffective assistance changed the likely outcome of the
8

trial. In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657

(1984), the Court carved a narrow exception to the general rule that those

persons claiming ineffective assistance must show prejudice. 466 U.S. at

658-59, 104 S.Ct. at 2046-47; see also Stano v. Dugger, 921 F.2d 1125, 1152

(11th Cir. 1991) (en banc). Prejudice is presumed when counsel was either

totally absent or prevented from assisting the accused during a critical

stage of the proceedings, Cronic, 466 U.S. at 662, 104 U.S. at 2049, or if

counsel entirely failed to subject the prosecution's case to meaningful

adversarial testing. Id. But, this case is not one of those situations.

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

assistance claim fails.

From the start, the strategy followed by Hays's trial counsel was to

contend that Knowles acted alone and later implicated Hays to increase his

chances of a reduced sentence. The decision to present an alibi defense

was not undermined by the prosecution's change in its theory of the

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

according to the defense; and therefore the presence or absence of a gun

should not have significantly impacted the defense's preparation of

witnesses and arguments for trial.

Because the denial of the continuance had no substantial impact on

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

continuance are similar to (but, far less egregious than) the facts of Avery,
9

supra. There Justice Black, writing for a unanimous Court, held that no

Sixth Amendment violation occurred when the petitioner's lawyers were

appointed on Monday for a trial scheduled to begin Wednesday and a

continuance was denied. Nothing concrete indicated that extra time could

have changed the trial's outcome.

For one thing, Avery's trial took place in "a County largely rural,"

where access to witnesses is easier than elsewhere. Avery, 308 U.S. at 452.

Here, Hays's attorney had access to the only two witnesses to the murder.

And, the record at Avery's trial showed an "absence of any indication . . .

that [counsel] could have done more had additional time been granted." Id.

Hays's habeas counsel claims that interviews and tests pertaining to the

gun were necessary; but in the years since the trial, no evidence has

emerged to show that such a course would have changed the evidentiary

balance at trial. In addition, we also conclude, as discussed above, that

Hays has failed to make out a compelling case for ineffective assistance

based on trial counsel's strategic decisions. Thus, the facts in Avery, where

counsel was found not to be ineffective, closely parallel those here. And,

the substantial evidence supporting the fact of the robbery suggests that

even with more time, the verdict would have been the same. Thus, Hays

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

842.
 2

As a preliminary matter, the district judge held that knowledge of statements in

the possession of federal agents could be imputed to the state. This conclusion was

based on the level of cooperation between the state prosecutors and the F.B.I. See

United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979) (looking to the "extent of

cooperation between the two governments" to determine whether possession should

be imputed). Citing no cases, the state argues here that the district court's holding

was error. We decline to conclude that the district court erred in this case on the

imputation issue.

10

III. Suppression of Witness Testimony

Hays argues the state violated its obligation to turn over exculpatory

evidence in its possession by withholding some 20 statements made by

Knowles, the state's main witness, which Hays alleges could have been

used to impeach. The District Court held that the state suppressed the

statements, and the defense had no other source.2

 Thus, Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires a new

trial if the petitioner has shown, in addition to the above two factors, that

the information was favorable to the defendant and that, "had the evidence

been disclosed to the defense, a reasonable probability exists that the

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

v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989) (setting out four-factor test for

determining whether evidence is Brady material).

The issue is thus whether it is reasonably probable that the

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

Supreme Court recently decided Kyles v. Whitley, 115 S.Ct. 1555 (1995),

which discussed the "reasonable probability" standard of Brady. Without
11

announcing new rules, the Court cited four guideposts for determining

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

by a preponderance that disclosure of the suppressed evidence would have

resulted ultimately in the defendant's acquittal." Kyles, 115 S.Ct. at 1566

(citing United States v. Bagley, 105 S.Ct. 3375, 3383-84 (1985). Thus,

undisclosed evidence can require a new trial even if it is more likely than

not that a jury seeing the new evidence would still convict. A defendant

must show simply that "the Government's evidentiary suppression

undermines confidence in the outcome of the trial." Kyles, 115 S.Ct. at 1566

(citations and internal quotation marks omitted).

Second (and logically implicit in the first rule), a defendant need not

show there was insufficient evidence to convict in view of the suppressed

evidence. Id. Third, there is no harmless error review of Bagley errors. Id.

Fourth, materiality is to be determined collectively, not "item-by-item." Id.

at 1567. The Supreme Court's reiteration, in Kyles, of the prejudice

standard of Brady is consistent with the threshold set by the district court.

Whether a reasonable probability existed that the suppressed

evidence would have changed the outcome is a mixed question of law and

fact, and this court's review is de novo. United States v. Rivalta, 925 F.2d

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

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

by Knowles, recording the recollections of federal and state agents. Hays
 3

Knowles contends he withheld some aspects of the crime at first because,

though he wanted to confess, he was still uncomfortable revealing to authorities just

how "gruesome" the details of the crime were.

12

asserts two theories to explain why suppression of the statements requires

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

to be so totally unworthy of belief that a jury would have rejected his

testimony entirely. Second, specific inconsistencies in the statements

would have cast enough doubt on critical junctures in the prosecution's

version of the murder to undermine confidence in the verdict.

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

Knowles to be so inconsistent in his retelling of Donald's murder that no

rational juror could have credited Knowles's testimony. The district court

disagreed, writing that the suppressed statements show not a pathological

dishonesty, but rather a consistent progression from obfuscation to truthtelling. That is, Knowles's testimony, taken in the light of all of his

statements, shows a pattern of first withholding and then divulging more

and more of his ultimate version of the crime.3

 Also, the withheld

statements are almost uniformly consistent with Knowles's trial (that is,

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

hindered, Knowles's overall credibility at trial is thus very possible. In any

event, we agree with the district judge's observation that trial counsel

succeeded in compelling Knowles to admit to so many lies that the

marginal impact of the suppressed statements would have been
 4

 For example, when asked successively about a number of inconsistencies,

Knowles admitted lying about the fact that Donald got into the car voluntarily:

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

13

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

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

probability" that a jury hearing them would have rejected Knowles's

testimony in toto.

In his brief to this court, Petitioner also enumerated several specific

inconsistencies between Knowles's earlier and later accounts of the crime,

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

the suppressed statements. These are: (1) Knowles earlier said Donald

voluntarily agreed to ride in the car; he later said he used the gun to force

Donald into the car. (2) Knowles earlier said he and Hays picked Donald up

without intending to kill him; later he said they did so intend. (3) Knowles

earlier omitted any mention of the use of the gun; but he later admitted the

gun was used. (4) Knowles earlier said the cross-burning that occurred the

night of the murder was unrelated to the murder, and later contradicted this

statement.

Taken together, these assertions do not undermine confidence in the

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

suppressed statements would have been redundant, because Hays's

counsel in fact elicited testimony from Knowles on the witness stand

acknowledging that he had been inconsistent on many of the listed points.4
called Michael Donald over to the car and he got in voluntarily to show you the way

to a club?

A. Yes, sir.

Q. That's another lie, huh?

A. Yes, sir.

Tr. Trans. at R-273.

Knowles also admitted (more than once) that he had given numerous

statements, in his early rendition of the murder, in which he omitted any mention of

the use of a gun. For example:

Q. Did you give [the previously read statement] to Mr. Tom Calhoun of the

Mobile Police Department?

A. Yes, I did.

Q. Did you make any mention in that statement about any gun?

A. No, sir, I did not.

Tr. Trans. at R-209.

Finally, Hays's counsel did read a statement indicating an agent's recollection

that Knowles said "they [he and Hays] did not intend to hurt" Donald when they

picked him up. Tr. Trans. at R-208. This testimony was also contradicted by other

statements Knowles made on the stand.

Thus, at least three of what Petitioner regards as the most effective uses of

the suppressed statements would in fact have added little or nothing to the defense

case.

14

And on others (particularly the relatedness of the murder and crossburning), no obvious reason suggests that the jury would have regarded the

inconsistency as particularly significant. Therefore, we conclude that

Petitioner's argument on the materiality of the alleged Brady statements

fails.
15

IV. The State's Use of Allegedly Perjured Testimony

Knowles testified at his plea hearing in federal court (pursuant to

which he was sentenced to life in prison) that he and Hays did not intend to

kill Donald when they picked him up or when they first got the rope with

which Donald was hung. But at Hays's trial, Knowles testified they set out

that night with the intent to kill a black man.

Napue v. Illinois, 79 S.Ct. 1173, 1177 (1959), dictates that knowing use

by the prosecution of perjurious testimony violates a defendant's right to

due process. But, as the district court points out, there has been no

showing that Knowles's later, rather than earlier, testimony was false; and

the circumstances of Knowles's testimony (which show a progression

toward greater revelation of the truth) indicate it is likely the former was

untrue. Because Hays can cite no case holding that plea testimony must

be consistent with later testimony, use of Knowles's testimony did not

violate due process.

Hays also contends the prosecution unconstitutionally refused to

disclose that Knowles's testimony was obtained in exchange for a plea

bargain. Giglio v. United States, 92 S.Ct. 763 (1972), requires such

disclosure. Hays has inferred that because Alabama never prosecuted

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

responds there was none. Hays has presented no evidence that there was
16

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

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

was no Giglio violation.

V. The Sufficiency of the Evidence of Robbery-Murder

Hays argues the state did not present sufficient evidence at his trial

to prove intent to rob. Intent to rob was an element of the underlying

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

In re Winship, 90 S.Ct. 1068, 1071 (1970).

Donald was carrying money given to him by a relative when he was

last seen, and his wallet was not with the body. The money was never

found. Knowles testified he and Hays had Donald empty his pockets to

ensure Donald had no weapons. The district court found this satisfied the

intent requirement because Hays and Knowles intended to deprive Donald

of weapons, but instead deprived him of cash: "The fact that Donald did not

have the item Knowles and the petitioner were seeking does not render

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

money or your life' demand is negated when the victim hands over his

watch in place of cash." Hays contests the analogy, arguing there was no

true intent to take weapons, only to ensure their absence.
17

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

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

fear of the use of force. Davis v. State, 401 So.2d 187, 189 (Ala. Crim. App.

1981). Applying this test, the intent to deprive someone of weapons

provides the requisite intent, regardless of whether self-protection is the

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

therefore, Knowles's testimony on his and his accessory's state of mind is

sufficient evidence to convict for robbery-murder.

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

Knowles that the two set out to harass, not to kill, a black person. But as

noted in the state post-conviction proceedings, under Alabama law

"[p]remeditation and deliberation may be formed while the killer is pressing

the trigger that fired the fatal shot." See Hays v. State, 599 So.2d 1230, 1238

(Ala.Cr.App. 1992) (citations and internal quotation marks omitted). Thus,

in view of the extensive testimony about Donald's ordeal (the beating with

the tree limb, the dragging by the noose, and the slitting of his throat), that

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

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

After the jury recommended life without parole, the trial judge

overrode the recommendation and sentenced Hays to death. At the time,

Alabama law was unsettled on what weight the trial judge had to accord the
18

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

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

Fourteenth Amendments.
19

A. Was Override of the Life Sentence Permitted Under

Alabama Law?

Hays cites a passage from Beck v. State, 396 So.2d 645, 663 (Ala.

1980), stating that "If the jury cannot agree on a sentence of death, the

defendant shall be sentenced to life imprisonment without parole." He

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

the jury's life-without-parole recommendation, and he asserts that

Alabama's failure to follow its own law violated due process.

Petitioner is due no relief on the grounds that Alabama has

misinterpreted its own law. See Pulley v. Harris, 104 S.Ct. 871, 875 (1984)

("A federal court may not issue the writ on the basis of a perceived error of

state law."). See also Parker v. Dugger, 111 S.Ct. 731, 742 (1991) (White, J.,

dissenting) ("It is axiomatic that . . . the views of the State's highest court

with respect to state law are binding on the federal courts.") (citing cases)

(internal quotation marks omitted). And even if we, as did the Court in

Pulley, assume for the sake of argument that some errors of state law might

be so "egregious" as to offend the due process or equal protection clause,

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

no such error in reading the relevant language from Beck. A sufficient

reason for our conclusion is that Beck decided nothing about whether a

judge could impose death when the jury had voted for life imprisonment:
 5

 As Chief Justice Marshall wrote in Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 399,

5 L.Ed. 257 (1821):

It is a maxim not to be disregarded, that general expressions, in every

opinion, are to be taken in connection with the case in which those

expressions are used. If they go beyond the case, they may be

respected, but ought not to control the judgment in a subsequent suit

when the very point is presented for decision. The reason for this

maxim is obvious. The question actually before the Court is

investigated with care, and considered in its full extent.

 6After discounting the Beck dictum, Alabama's Supreme Court persuasively

explained why upward override is permitted. First, the court explained that the

quoted language could be squared with Beck's holding--that ultimate sentencing

authority lay with the judge--only by interpreting the quoted language to mean that if

the jury cannot unanimously agree on death, the jury shall recommend a sentence of

life imprisonment. Ex Parte Hays, 518 So.2d 768, 775 (Ala. 1986).

Second, the court also explained why the 1975 Alabama death penalty act

explicitly allows the judge to override in favor of life but not in favor of death. This

seeming omission is because as initially drafted, the capital sentencing statute

simply did not allow a jury to recommend life imprisonment without parole in the first

place. Once the Beck decision permitted juries to recommend life, judges impliedly

became permitted to override in favor of death. See id. at 775-76.

As the district judge pointed out, there are other instances when Alabama law

can most plausibly be read to afford the jury ultimate sentencing authority, but where

such is not the case (because the judge can override). The instant circumstances

present another one of those cases. Thus, we decline to hold that erroneous

application of state law to the petitioner violated the Fourteenth Amendment.

20

that question was not presented in Beck.

5

 And to say the least, no

egregious error glares out of Ex Parte Hays's ultimate conclusion that the

death penalty law under which Hays was sentenced permitted upward

override.6

 Thus, the state courts' alleged misinterpretation of Alabama law

gives rise to no ground on which the writ might issue.

B. Was Hays Afforded the Minimum Notice Required By the

Constitution That Death Was a Possible Sentence?
21

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

of an override must likewise fail; and Lankford v. Idaho, 111 S.Ct. 1723

(1991), is not to the contrary. In Lankford, the Supreme Court held the

petitioner was afforded inadequate notice where the prosecution stated, in

response to a question from the trial judge, that the state would not seek

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

sentencing hearing that death was a possible sentence. Here, however, the

defendant got two days' notice from the trial judge that he might override

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

beginning of trial, in contrast to Lankford. Because the prosecution's tack

gave Hays an incentive to build a case from the start for life imprisonment

rather than death, two days is sufficient notice. 

C. Did the Alabama Sentencing Scheme Sufficiently Channel

the Discretion of the Judge and Jury?

Hays argues further that the Alabama sentencing scheme dividing the

responsibilities of jury and trial judge at the time he was sentenced was

standardless and failed to accord due deference to the jury's sentence

recommendation. The Supreme Court rejected this argument in Harris v.

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

constitutional requirement that a judge assign any minimum degree of

weight to a jury recommendation. The issue is simply whether "the scheme
 7

Hays concedes in his brief that this argument is foreclosed by Harris but then

goes on to make the argument anyway, apparently in an effort to preserve the issue

for higher appellate review.

22

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

results." Id. at 1035. Considering a sentencing scheme materially identical

to the one here, the Harris Court held there was adequate channeling of

discretion. Here, the trial judge was explicit about his reasons for

overriding the jury sentence, and he noted that he considered the jury

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

process.7

D. Did the Trial Court's 'Upward Override' Violate the Ban on

Ex Post Facto Laws?

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

Parte Hays (holding application of the death penalty to be proper) functions

as an ex post facto law. As the district court held, and as we have

discussed earlier, however, the Alabama Supreme Court's decision

clarified, rather than altered, the meaning of the Alabama death penalty

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

no need exists to address Petitioner's argument that the change in the law

was substantive, not procedural, under Dobbert v. Florida, 97 S.Ct. 2290,

2298 (1977).
23

E. Did the Motive For the Override Violate the Equal

Protection Clause?

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

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

blacks (zero) indicates an intention to "balance the books" by considering

the petitioner's race in determining sentence, in violation of his right to

equal protection. But, this mention was only part of an extended

discussion of elements favoring the imposition of the death penalty. These

elements were Hays's moral depravity, the shocking nature of the crime,

and the inability to explain the jury's sentence. And, even if the Alabama

Supreme Court did look at historical statistics, it might just as well not have

been to "balance the books" but to find some motivation to explain the

jury's failure to impose the death penalty. That is, the Alabama Supreme

Court was attributing a racial motive to the jury's decision, rather than

setting out a racial motive for its own decision to reinstate the sentence

imposed by the trial judge. See, e.g., Ex Parte Hays, 518 So.2d at 776-77

(noting that "[t]he jury's recommendation of life imprisonment in this case

is unquestionably a bizarre result," and recalling that in previous cases "the

death penalty had likely been imposed in an arbitrary or capricious manner

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

background, the Alabama court was merely suggesting a possible reason

for a sentence that it would have reversed regardless of the jury's
24

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

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

protection argument fails. McCleskey v. Kemp, 107 S.Ct. 1756, 1769 (1987).

In conclusion, Petitioner's conviction did not violate constitutional

rights. The decision of the district court is AFFIRMED. The petition for the

writ of habeas corpus is DENIED.