In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3227

JIM LOWERY,

Petitioner-Appellant,

v.

RONDLE ANDERSON, Superintendent,

Indiana State Prison,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. IP 96-0071-C-H/G--David F. Hamilton, Judge.

Argued June 28, 2000--Decided August 29, 2000

 Before Flaum, Chief Judge, Bauer and Manion, Circuit

Judges.

 Bauer, Circuit Judge. Jim Lowery is under

sentence of death for the 1979 murders of Mark

and Gertrude Thompson. A direct appeal to the

Supreme Court of Indiana won him a new trial, but

upon retrial he was again convicted and again

sentenced to death. His appeals thereafter were

fruitless. He petitioned for collateral relief,

but his challenges to the murder convictions and

death sentence were unsuccessful. His attempt to

win a writ of habeas corpus from the U.S.

District Court also failed. Now he is before us.

We find that neither his conviction nor his

sentence were the result of constitutional

violations and affirm the District Court’s

decision to deny the writ.

I. BACKGROUND

 Mark and Gertrude Thompson were murdered in

their home on the night of September 30, 1979 by

a man they once trusted as their caretaker. The

Thompsons were an elderly couple and their

declining health necessitated that they hire

others to help care for them and their property.

During the summer of 1979, Lowery and his wife

Barbara filled that role. 

 Only a few months before the murders, Mark

Thompson fired Jim Lowery and ordered him off the
Thompson property. The loss of that job included

the loss of the rent-free caretaker’s trailer on

the Thompson property, in which Lowery and his

family lived, and the loss of the modest salary.

At first, Lowery refused to accept his demise,

pleading with Mark Thompson that he had no money

and no place to go. Thompson, however, was so

dissatisfied with the Lowerys’ service that he

offered Lowery $100.00 if he would leave the

property immediately. Lowery took the money and

moved his family to an old school bus in a nearby

campground.

 On September 30, 1979, Lowery and his friend

Jim Bennett drove to the Thompson’s home

intending to rob and murder the couple. Several

weeks before, Lowery and Bennett had discussed

committing a crime for pecuniary gain, as both

were in need of money. Lowery told Bennett he

knew where he could get some money, but it was

not until they were in the car on their way to

the Thompson’s house that Lowery told Bennett

that they were going to rob the Thompsons.

Lowery’s plan was to force Mark Thompson to write

a check for $9,000 and then to kill and bury the

couple. Lowery was armed with a pistol and

Bennett a sawed-off shotgun.

 Lowery and Bennett arrived at the Thompson’s

property around dark. Janet Brown, the new

caretaker, was in the trailer reading a book when

she heard the Thompson’s dog bark. Seconds later,

the trailer door was kicked in and an armed

Lowery entered, leaving Bennett outside. 

 Ms. Brown later told police that she

immediately recognized the man as the Thompson’s

former caretaker. The two had met at the post

office a week earlier and had struck up a

conversation. When she told Lowery that she

worked for the Thompsons, Lowery admitted that he

had been their previous caretaker and he spoke,

she thought, hatefully of them.

 Lowery put the pistol against Brown’s neck and

forced her to take him into the Thompson’s house.

Bennett joined them as they crossed the lawn to

the house. Inside, they found Mark Thompson

standing in the kitchen. Immediately upon seeing

Lowery and being told that this was a "hold up,"

Thompson said "You don’t want to do this now,

Jim." Lowery responded by shooting him in the

stomach.

 After shooting Mark Thompson, Lowery forced

Brown, with the gun to her head, through the

kitchen, down the hall, and into the den where

Gertrude Thompson was watching television. Lowery

ordered Mrs. Thompson to get up and to go into

the kitchen. She complied. As she was walking
down the hall, Lowery hit her in the head with

the gun. She began to bleed, but was able to make

it into the kitchen, where Lowery shot her once

in the head at close range. Gertrude Thompson

died before help could arrive. 

 Lowery also shot Janet Brown, but because she

put her hands in front of her, the shot was

deflected and she was grazed but alive. She

wisely lay on the floor pretending to be dead. As

she lay there, she heard the burglar alarm sound.

Somehow, despite his wound, Mark Thompson had

activated it, obviously greatly distressing

Lowery and Bennett. Lowery went back to where

Mark Thompson was, and Brown heard two more

shots. Lowery and Bennett then fled.

 Later, when she was certain the two men were

gone, Brown called the police. When they arrived,

Gertrude Thompson was dead and Mark Thompson was

dying from a gunshot wound to the head. Before

his death, Mark Thompson was able only to say

that four "monkeys" assaulted him. His son

testified that Mr. Thompson used the term

"monkeys" when he could not remember someone’s

name.

 Using the back roads, Lowery and Bennett

returned to the old school bus. They told

Lowery’s wife, Barbara, about the shootings.

Lowery was arrested two days later. Bennett the

day after that. After his arrest, Lowery made

several incriminating statements to police

officers. He also told his cellmate of his

crimes, describing them in a detailed manner.

Before trial he challenged the admissibility of

these statements, but was successful in excluding

only some.

 The prosecution struck a deal with Bennett. In

exchange for his testimony against Lowery and a

plea of guilty, the State dropped the habitual

offender charge against Bennett and its request

for the death penalty. It also guaranteed Bennett

a sentence of 40 years.

 Bennett testified that he and Lowery had

planned to rob the Thompsons and that Lowery shot

the Thompsons and Ms. Brown during the attempted

burglary. Brown identified Lowery in court and

testified that he was the person who shot her and

the Thompsons. Barbara Lowery also testified,

recounting how her husband and Bennett left the

camp with a handgun and a shotgun, saying they

were "off on a caper." When they returned later

that night, she said, they were visibly upset and

shaking, with Bennett explaining that it "went

bad," and, in Lowery’s presence, saying "he"

(meaning Lowery) shot them in the head. The jury

convicted Lowery of two counts of murder and one
count of attempted murder and recommended that he

be put to death. The judge sentenced him to

death. The Supreme Court of Indiana reversed

Lowery’s convictions on direct appeal because the

trial court failed to sequester the jury. Lowery

v. State, 434 N.E.2d 868 (Ind. 1982). Lowery was

tried a second time.

 Bennett refused to testify at the second trial.

He wanted a "better deal" on his plea bargain.

The State refused. Bennett was brought before the

court (out of the jury’s presence) and refused to

be sworn in. The court threatened to hold Bennett

in contempt, but Bennett still refused to

testify. He was held in contempt. The next day,

this procedure was repeated and the same result

obtained. Frustrated, the trial judge told

Bennett that if he continued to refuse to

testify, the court would order the prosecutor to

bring murder charges against Bennett because he

had violated his plea agreement. Both the

prosecutor and the defense counsel agreed that

such an order was beyond the scope of the court’s

authority and the court recanted. Before Bennett

was aware that the threat of prosecution had been

removed, however, he changed his mind and agreed

to testify. That change was short lived. Once

Bennett was advised that the only penalty for

refusing to testify was to be held in contempt of

court, he again refused to testify. The court

then declared Bennett to be unavailable and

allowed the prosecutor to read Bennett’s

testimony from the first trial to the jury. The

jury convicted Lowery of the murders of Mark and

Gertrude Thompson and the attempted murder of

Janet Brown.

 At the sentencing phase of the trial, the

prosecution argued for the death penalty, saying

it was justified because the murders were

committed during an attempted burglary (an

aggravating factor) and because there were

multiple murders. Lowery’s mother, father and

youngest sibling testified on Lowery’s behalf, as

did a psychiatrist retained by the defense.

Lowery also took the stand, admitting to the

crimes. Nevertheless, the jury recommended the

death penalty. The trial judge sentenced Lowery

accordingly.

 The Supreme Court of Indiana affirmed the

murder convictions and death sentences. Lowery v.

State, 478 N.E.2d 1214 (Ind. 1985). However, it

later reversed the conviction of attempted

murder, saying the jury had been wrongly

instructed on that count. Lowery v. State, 640

N.E.2d 1031 (Ind. 1994). The State chose not to

retry Lowery for the attempted murder. The U.S.

District Court denied habeas relief. Lowery v.

Anderson, 69 F.Supp.2d 1078 (S.D.Ind. 1999).

Lowery appeals, claiming that the introduction of
Bennett’s prior testimony violated his Sixth and

Fourteenth Amendment rights, that the State and

trial court violated Caldwell v. Mississippi, 472

U.S. 320 (1985), by leading the jury to believe

that its recommendation to the judge concerning

the death penalty carried less weight than in

fact it does, and that he was denied effective

assistance of counsel. We affirm.

II. DISCUSSION

 Federal courts may grant a writ of habeas

corpus when a person is held in custody under a

state court judgment in violation of the United

States Constitution. 28 U.S.C. sec.2254; Kavanagh

v. Berge, 73 F.3d 733, 735 (7th Cir. 1996).

Because Lowery filed his petition before the

effective date of the Antiterrorism and Effective

Death Penalty Act of 1996, our review is plenary.

Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en

banc) rev’d on other grounds 521 U.S. 320 (1997).

We must accept as true the reasonable factual

findings of the state courts, Abrams v. Barnett,

121 F.3d 1036, 1038 (7th Cir. 1997), but questions

of law or mixed questions of law and fact are

considered de novo. Brewer v. Aiken, 935 F.2d

850, 855 (7th Cir. 1991). Furthermore, we may

consider our own jurisprudence, in addition to

the jurisprudence of the United States Supreme

Court. Abrams, 121 F.3d at 1037-38.

 A. Admission Of Bennett’s Prior Testimony

 At Lowery’s first trial, Jim Bennett testified

for the prosecution. He did so pursuant to a plea

agreement that required his testimony and

guaranteed him a sentence of 40 years. Before the

retrial, Bennett informed the prosecutor that he

would not testify again unless the prosecutor

reduced his sentence to 10 years. The prosecutor

refused. Bennett, then, true to his word, refused

to testify when called. The trial judge held

Bennett in contempt, but Bennett still refused to

testify. As described below, this procedure was

repeated several times, outside the jury’s

presence. Finally, Bennett was called with the

jury present. He refused again to testify and was

again held in contempt. At that point, the trial

judge declared Bennett to be an unavailable

witness and allowed the prosecutor, over Lowery’s

objection, to read to the jury Bennett’s

testimony from the first trial. Lowery claims

this was reversible error because it denied him

his constitutional right to confront and crossexamine the witness against him. He also argues

that Bennett was not truly "unavailable" because

the State failed to exhaust other means which

might have induced Bennett to testify.

 The Confrontation Clause of the Sixth Amendment
guarantees the right of the accused to "be

confronted with the witnesses against him." U.S.

Const. Amendment VI. See also Delaware v. Van

Arsdall, 475 U.S. 673, 678 (1986). The main and

essential purpose of confrontation is to secure

for the opponent the opportunity for crossexamination. United States v. Sasson, 62 F.3d

874, 882 (7th Cir. 1995), cert. den’d, 516 U.S.

1131 (1996). Lowery contends that he was deprived

of this right when Bennett’s prior testimony was

read to the jury. 

 The Sixth Amendment confrontation clause,

however, "permits, where necessary, the admission

of certain hearsay statements against a defendant

despite the defendant’s inability to confront the

declarant at trial." Maryland v. Craig, 497 U.S.

836, 847-48 (1990) (citations omitted). The

confrontation clause is satisfied, and no

constitutional violation occurs, when the

defendant had a full and fair opportunity to

cross-examine the witness at the earlier

proceeding and the witness is "unavailable" for

the subsequent proceeding. Mancusi v. Stubbs, 408

U.S. 204, 216 (1972). Lowery admits that

Bennett’s testimony was subject to crossexamination at the first trial and does not

contend that the cross-examination was less than

full or meaningful. He complains that Bennett’s

prior testimony was improperly admitted because

Bennett was not truly "unavailable" the second

time around.

 It is well established that a witness may be

deemed "unavailable" and use of his former

testimony permitted if the witness "persists in

refusing to testify . . . despite an order of the

court to do so." Fed.R.Evid. 804(a)(2). See also

California v. Green, 399 U.S. 149, 168-69 (1970).

However, there is more to consider. The

prosecution must also demonstrate that it made a

good faith effort to obtain the witness’

testimony, in person, before the trier of fact.

Ohio v. Roberts, 448 U.S. 56, 74 (1980). The

lengths to which the prosecution must go to

produce a witness is a question of

reasonableness. Id.

 Here, in an effort to secure Bennett’s

testimony for the second trial, the prosecutor

had Bennett transported from the state prison in

which he was incarcerated to a county jail so

that he could be available to testify. He also

attempted to talk with Bennett before calling him

as a witness, and kept calling him as a witness

during the trial, even though Bennett refused to

testify and had been held in contempt of court.

What the prosecution did not do was, as the trial

judge suggested, threaten to revoke Bennett’s

plea agreement and try him for murder, or
threaten to try him for obstruction of justice.

The Supreme Court of Indiana found that Bennett

"was amenable" to these tactics and Lowery

suggests that because they might have worked, the

State did not act reasonably or in good faith in

attempting to obtain Bennett’s testimony for the

retrial. The District Court disagreed, saying:

[t]he fact that other steps the prosecution did

not take might also have been reasonable does not

show either that it failed to make a reasonable,

good faith effort to secure Bennett’s testimony,

or that Lowery’s Sixth Amendment rights were

violated by use of Bennett’s testimony from

Lowery’s first trial.

Lowery, 69 F.Supp.2d at 1093. We agree. Although

the record is silent as to why the prosecution

chose not to threaten Bennett with further

prosecution or charge him with a crime, there is

no requirement that it do so and such decisions

are well within the prosecution’s discretion.

Johnson v. State, 675 N.E.2d 678, 683 (Ind.

1996); LaMotte v. State, 495 N.E.2d 729, 733

(Ind. 1986). We decline to impose a rule imposing

the court’s will upon the prosecution and we fear

that to do so would violate the separation of

powers. 

 The fact that more, theoretically, could have

been done to persuade Bennett to testify does not

persuade us to reach a contrary result. If we

adopt Lowery’s position and mandate that the

prosecution threaten recalcitrant witnesses, or

possibly even charge them with minor crimes,

where do we stop? A bright line test is not

possible in cases such as this. We believe the

better rule is to consider the totality of the

circumstances and determine reasonableness and

good faith on a case by case basis. In this case

we find that the prosecution did make a good

faith effort to secure Bennett’s testimony for

the retrial.

 We understand the passion with which Lowery

presents his argument, especially in light of the

inconsistent statements Bennett made between the

first and second trials. During that interim,

Bennett wrote letters to state officials and to

Lowery, saying in one that there were three

people involved in the crime and, in another,

that Lowery was not present when the crime

occurred. In each instance, he offered to

exchange information for a further reduction in

his sentence./1 Lowery argues that he was

irrevocably prejudiced by the prosecution’s

failure to procure Bennett as a live witness so

that he could cross-examine him with this new

information. He asks that we review this claim

under the harmless error standard of Chapman v.
California, 386 U.S. 18 (1967), and says that

once we do reversal is mandated.

 Under the Chapman harmless error standard, the

government has the burden of demonstrating that

the error was harmless beyond a reasonable doubt.

Id. at 22. We have reviewed and rejected that

argument and instead adopted the standard set

forth by the Supreme Court in Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993), which holds

that an error is harmless unless the defendant

can show that it had a "substantial and injurious

effect or influence in determining the jury’s

verdict." Tyson v. Trigg, 50 F.3d 436, 446-47 (7th

Cir. 1995), cert. den’d, 516 U.S. 1041 (1996).

See also Fleenor v. Anderson, 171 F.3d 1096, 1101

(7th Cir. 1999), cert. den’d, 120 S.Ct. 215 (1999)

(applying the Brecht standard in a capital case).

The Brecht standard recognizes that an earlier

court has already reviewed the claimed error

under the heightened Chapman standard and,

therefore, permits a lower level of scrutiny on

appeal. Here, the "new evidence" upon which

Lowery relies developed before the second trial.

His claims thereafter could have been reviewed by

the Supreme Court of Indiana on direct appeal and

on petition for collateral relief or by the U.S.

District Court on the petition for writ of habeas

corpus. They were not, however, because the

letters and testimony regarding Bennett’s alleged

recantation were not offered at trial. The

Supreme Court of Indiana, in refusing to review

the alleged error said "the court did not have an

opportunity to rule on the offer of the letter,

and there is no error presented for our review."

Lowery, 478 N.E.2d at 1223-24 (Ind. 1985). Thus,

contrary to Lowery’s assertion, we believe that

the courts before us have had an opportunity to

address the claimed error and have rejected it,

finding that it was either waived or did not

present an issue of manifest injustice requiring

the reversal of his conviction. We therefore

believe the rationale behind Brecht has been

satisfied and apply its standard of review to

this case.

 We find that Lowery has not met that burden.

The trial court indicated that Lowery could

inform the jury about Bennett’s letter and

statements, but Lowery’s attorney never attempted

to do so. Lowery, 478 N.E.2d at 1223.

Furthermore, the jury was informed that Bennett

was testifying pursuant to a plea agreement

which, as the State points out, could make the

jury skeptical of his testimony anyway. But most

importantly, we believe that Lowery fails to meet

his burden of proving that the claimed error had

a "substantial and injurious effect or influence

in determining the jury’s verdict" because of the

wealth of corroborative information presented by
the prosecution. Not only did Bennett testify

that it was Lowery who shot the Thompsons and Ms.

Brown, Lowery himself confessed those facts to

various police officers and his cellmate and

those statements were presented to the jury. Ms.

Brown also testified and identified Lowery as her

attacker and as the murderer of the Thompsons.

And, finally, there was the testimony of Lowery’s

ex-wife, Barbara. Our review of the entire record

in this case convinces us that any error (and we

believe there was none) in the admission of

Bennett’s prior testimony was harmless.

 B. Role Of The Jury’s Recommendation Of Death

 A death sentence may not be based on "a

determination made by a sentencer who has been

led to believe that the responsibility for

determining the appropriateness of the

defendant’s death rests elsewhere." Caldwell v.

Mississippi, 472 U.S. 320, 328-29 (1985). Lowery

complains that he was denied due process and a

fair sentencing determination because the court

and prosecutor "demeaned" the jury’s sense of

responsibility in a "materially inaccurate and

misleading manner" that violated Caldwell. The

court told the jury during voir dire that "it’s

not the function of the jury to sentence a

defendant. It is solely the responsibility of the

Judge, me, and the Judge must make the final

decision. The jury’s decision is merely a

recommendation." The prosecutor spoke likewise. 

 In Caldwell, the prosecutor, apparently hoping

to sway timid jurors, argued to the jury that if

it decided to impose the death penalty, its

decision would not be the "final decision," and

that its decision was "automatically reviewable"

by the state’s supreme court. The Supreme Court

held that these comments were inappropriate and

required reversal because the suggestion that

"the responsibility for any ultimate

determination of death will rest with others

presents an intolerable danger that the jury will

in fact choose to minimize the importance of its

role." Id. at 333. Any decision based upon a

jury’s inaccurate perception about its role in

the imposition of a death sentence is, under the

reasoning of Caldwell, unconstitutional. Lowery

argues to us that the court’s and prosecutor’s

statements were inaccurate and require reversal

of his sentence because they minimized the jury’s

role and made the juror’s believe their role in

imposing a death sentence was almost ceremonial.

We do not agree. 

 To violate Caldwell, the remarks to the jury

must inaccurately describe the role of the jury

under state law. Romano v. Oklahoma, 512 U.S. 1,
9 (1994); Dugger v. Adams, 489 U.S. 401, 401

(1989); Darden v. Wainwright, 477 U.S. 168, 183-

84 n.15 (1986). Under Indiana law, the jury

recommends to the judge whether the death penalty

should be imposed. The judge must consider the

jury’s recommendation, but, the final decision is

his. Ind. Code sec.35-50-2-9(e). In this case,

the jury was informed that its role was to

recommend to the trial judge whether or not to

impose the death penalty. Contrary to Lowery’s

suggestion, the jury was properly instructed as

to its role and there was no Caldwell violation.

 We recently addressed, in Fleenor v. Anderson,

171 F.3d 1096, 1099-101 (7th Cir. 1999), cert.

den’d, 120 S.Ct. 215 (1999), the application of

Caldwell to the jury recommendation procedure in

Indiana. There, the jury was repeatedly informed

that its role in sentencing was to make a

recommendation to the trial judge, who would make

the final sentencing decision. The judge advised

the jury during voir dire:

In Indiana, after the trial of a case, if a

defendant is found guilty, then another hearing

is held before the jury, where the parties have

an opportunity to present . . . evidence of

aggravating and mitigating circumstances in the

case and then the jury again retires to make a

recommendation to the court from the jury whether

they recommend the death penalty. It’s not the

function of a jury to sentence a defendant. It is

solely the responsibility of the Judge, me, and

the Judge must make the final decision. The

jury’s opinion is merely a recommendation to me.

Lowery, 69 F.Supp.2d at 1101, citing state court

record, exhibit 28 at page 48. These words

mirror, almost exactly, the words given to

Lowery’s jury. We found in Fleenor, and we find

here, that telling the jury that its role is

advisory and that the court makes the final

sentencing determination does not violate

Caldwell. As we said in Fleenor, "what the judge

was telling the jurors was true, and it was also

something they were entitled to know." Id. There

being no affirmative misstatement of law or fact

that could mislead the jury, we find that there

was no violation of Lowery’s rights.

 C. Ineffective Assistance Of Counsel 

 The Sixth Amendment protects a defendant’s right

to a fair trial by providing him with a right to

counsel. Strickland v. Washington, 466 U.S. 668,

684 (1984). This right is satisfied as long as

counsel’s conduct at trial was competent. This

right is violated when counsel’s conduct was so

deficient as to render the trial meaningless or
its result unreliable. Id. at 686. Lowery claims

his trial counsel was so ineffective as to meet

this standard.

 To prevail on a claim of ineffective assistance

of counsel, Lowery must prove: (1) counsel’s

representation was deficient, and (2) the

deficient performance so prejudiced him as to

deprive him of a fair trial. Id. at 687-88. The

absence of either prong defeats his claim. Id. at

700. Our review is highly deferential, id. at

689, and we will indulge "a strong presumption

that counsel’s conduct falls within the wide

range of reasonable professional assistance."

Galowski v. Berge, 78 F.3d 1176, 1180 (7th Cir.

1996), cert. den’d, 519 U.S. 878 (1996)

(citations omitted). Indeed, we will reverse only

when it has been shown with a reasonable

probability "that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different." Id. 

 Lowery argues that his trial counsel provided

ineffective assistance by (1) failing to

introduce evidence of Ms. Brown’s prior

misidentification of him at the first trial,

where she identified a picture of Bennett as a

picture of him, (2) failing to introduce

additional evidence impeaching Bennett; and (3)

failing to investigate and present additional

mitigating evidence during the sentencing phase

of the trial. Like the District Court, we quickly

dismiss Lowery’s challenge to his attorney’s

failure to impeach Brown with the mistaken

identification.

 In Lowery’s first trial, defense counsel showed

Janet Brown a photograph of Bennett and asked

whether the person in the photo was the person

who shot her. Brown said "[i]t’s not a very good

picture. It looks like James Lowery’s eyes, but

it’s not a very good picture of him." Counsel did

not repeat the exercise or raise the prior

misidentification in the second trial. Claiming

that this omission was a constitutional

violation, Lowery asks us to reverse his

conviction.

 We will not second guess a trial counsel’s

strategic or tactical decisions. United States v.

Godwin, 202 F.3d 969, 973 (7th Cir. 2000), cert.

den’d, 120 S.Ct. 2023 (2000). At a postconviction hearing, counsel testified that he did

not introduce this evidence because he considered

it a "lucky fluke" and was concerned that the

jury might have regarded the use of a poor

quality photograph as an attempt to trick Ms.

Brown. It also, he said, would have gone against

his trial strategy of making no reference to

Lowery’s prior trial and conviction. This is
likely because the court had granted a defense

motion in limine to exclude any reference to the

previous trial. The District Court found that

this omission was a strategic decision and did

not rise to the level of ineffective assistance

of counsel. We agree. Counsel can fairly have

been said to have been exercising trial strategy

and tactics in deciding not to challenge Brown’s

credibility in this manner. 

 Lowery also argues that his attorney was

ineffective because he failed to offer Bennett’s

letters and other inconsistent statements during

the second trial. He believes this evidence would

have further impeached Bennett’s credibility. The

State argues that counsel’s failure did not

prejudice Lowery.

 Our inquiry into whether Lowery was prejudiced

by his counsel’s omission, under Strickland,

focuses on whether the claimed deficiency

rendered the proceeding unreliable or unfair.

Lockhart v. Fretwell, 506 U.S. 364, 369-70

(1993). As the District Court noted, the jury was

already skeptical of Bennett. They were aware of

the existence of the plea agreement whereby he

was trading his testimony in exchange for

leniency, and they saw him refuse to testify and

saw the judge hold him in contempt. It is hard to

imagine that the jury could have held Bennett in

high regard after all of that. Therefore, it can

be supposed that his credibility had already been

damaged in the eyes of the jury. The additional

evidence probably would have had little

additional impact on that front.

 Furthermore, as the District Court also

discussed, "Bennett’s testimony on the critical

points was corroborated." Lowery’s ex-wife

Barbara testified to her observations and to the

statements made to her by both Lowery and

Bennett. There was also the testimony of Janet

Brown, an innocent victim who was at the wrong

place at the wrong time. Her testimony was

virtually unchallenged and powerful. It was also

consistent with and in addition to Bennett’s

testimony. Finally, there were the admissions

made by Lowery to various police officers and to

his cellmate. Viewed in the totality of these

circumstances, we believe that the admission of

this extra evidence to impeach Bennett would not

have changed the jury’s verdict. The omission did

not, then, render the trial unfair or unreliable.

 Lowery challenges the District Court’s reliance

on his penalty phase testimony to conclude that

trial counsel’s failure to offer Bennett’s

letters and statements did not prejudice him. The

District Court said that the trial result could

not be doubted as Lowery admitted on cross-
examination that he murdered the Thompsons. He

fears that the court’s analysis renders the

Strickland prejudice prong outcome determinative

and puts defendants in a no-win situation if they

choose to confess at the penalty phase in hopes

of receiving a more lenient sentence. He

correctly argues that if that were the standard,

no defendant would ever confess because he could

not later challenge any errors on appeal.

Although this argument contains some logic, it is

inapplicable here. The District Court did not

base its finding of no-prejudice on Lowery’s

penalty phase testimony alone. As discussed

above, it found a wealth of other corroborative

testimony that supported the jury’s verdict. For

this reason, we reject Lowery’s argument and

affirm the District Court’s finding that he was

not prejudiced by his trial counsel’s failure to

introduce Bennett’s letters and statements.

 Finally, we turn to Lowery’s contention that

his counsel was ineffective because he failed to

introduce additional mitigating evidence at the

sentencing phase of the trial. He wishes that his

lawyer had presented more biographical and

character evidence. The Supreme Court of Indiana

found that the desired evidence would have

mirrored evidence presented and been cumulative.

Lowery, 640 N.E.2d at 1048. This is true.

Lowery’s mother, father, and brother testified

that he had a rough childhood. A psychiatrist

testified to his previous bouts of mental

illness. The additional evidence that he wished

to present was of the same nature. It was

testimony by his younger siblings that he was

kind to children and that he showed kindness to

them while growing up. This proffered testimony,

as the courts before us found, would not have

added much and would have been largely

repetitive. Although we understand Lowery’s wish

to present as much evidence as possible to

humanize him to the jury and avoid the death

penalty, we cannot say that his trial counsel’s

failure to offer this evidence was a violation of

his constitutional rights.

III. CONCLUSION

 For the foregoing reasons, the judgment of the

District Court is affirmed.

AFFIRMED.

/1 He also reportedly told prison officials that he

was high on drugs at the time of the crime and

that he was going to "fuck up" the second trial

by saying that Lowery wasn’t there.