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

ROBERT LEE TARVER, JR., Petitioner-Appellant, versus

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

---------------------------------------------------------------- Appeal from the United States District Court for the Middle District of Alabama ---------------------------------------------------------------- (March 11, 1999)

Before TJOFLAT, EDMONDSON and COX, Circuit Judges.

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

2254, challenges his death sentence. We

affirm the district court’s denial of relief.

BACKGROUND

Tarver, in 1985, was convicted of

murdering Hugh Kite, the owner of Kite’s

Store. The State proved at trial that

Tarver shot Kite three times behind the

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

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

Crim. App. 1986).

The district court found that, in

preparation for Tarver’s trial, Tarver’s

lawyers “made a deliberate strategic

decision to concentrate on preparing for

the guilt phase of the Petitioner’s trial

based on his assessment of the likelihood of

an acquittal [and] that the trial counsel

dedicated substantial time to

interviewing numerous community

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

evidence of the Petitioner’s innocence, but

also in an attempt to prepare for the

sentencing phase.” The district court added

“that there was substantial overlap in the

trial counsel’s preparation for the guilt

and sentencing phases of the trial.”

The parties continue to dispute whether,

at the time of Tarver’s trial, the

prosecution had an agreement with

Tarver’s associate, Richardson, for

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

and the district court rejected Tarver’s

claim(s) based on this alleged agreement.

The jury found Tarver guilty and

recommended life without parole. The

Alabama trial court judge overrode the

jury’s recommendation and sentenced

Tarver to death.

In 1986, the Supreme Court decided

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

About a month after the Supreme Court

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

sentence and conviction on direct appeal.

Tarver’s petition for rehearing was

denied, and the Alabama Supreme Court

denied relief. Four days after the Alabama

Supreme Court denied Tarver’s petition

for rehearing, the United States Supreme

Court decided Griffith v. Kentucky, 479 U.S. 314 (1987), making Batson retroactive to

all cases on direct appeal when Batson was

decided.

Later, Tarver sought state collateral

relief under Temporary Rule 20 (now, Rule

32) of the Alabama Rules of Criminal

Procedure and raised, for the first time, a

Batson claim. After taking testimony, the

Rule 20 judge rejected this claim and others,

but he set aside Tarver’s death sentence,

ruling that Tarver’s counsel was

ineffective during the penalty phase. The

Court of Criminal Appeals remanded the

case to the trial court for written

findings of fact and conclusions of law.

The trial court then said that, but for the

procedural bar to the Batson claim, he also

would find a Batson violation in Tarver’s

trial. The trial court repeated its decision

on the ineffectiveness of Tarver’s counsel.

The Alabama Court of Criminal Appeals

reversed the ineffectiveness decision,

however, and ordered the trial court to

reinstate the death penalty. The Alabama

Supreme Court and the United States

Supreme Court later denied discretionary

review.

In 1995, Tarver filed a petition for

writ of habeas corpus in federal district

court. The case was referred to a

Magistrate Judge. The Magistrate

recommended denying Tarver’s petition,

and the District Judge agreed.

DISCUSSION

On appeal, Tarver advances his Batson

claim, raises ineffective assistance of

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

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

address each of Tarver’s claims separately,

giving facts found by state trial and

appellate courts a presumption of

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

2254(d). See Mills v. Singletary, 161 F.3d 1273, 1277 n.1 (11th Cir. 1998).

A. The Batson Claim

We review de novo Tarver’s claim that

his Batson claim is not procedurally

defaulted. See Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993). Tarver makes two

arguments why we should hear his Batson

claim. First, he says the federalism and

comity concerns embodied by our respect

for state procedural default rules do not

apply in this context because Alabama

courts could review Tarver’s claim for

plain error and because Alabama’s Rule 20

courts had an opportunity to review

Tarver’s Batson claim.

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

rule does not preclude a finding of

procedural default,” however. Julius v.

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

Likewise, state post-conviction proceedings

do not preclude a finding of procedural

default. Tarver’s argument would allow

federal review of procedurally defaulted

claims in every state with state post-

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

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

Cir. 1998) (we cannot review procedurally-

defaulted claims absent a showing of “cause

and prejudice” or “actual innocence”).

Second, Tarver says we should decide his

Batson claim because Alabama has not

consistently applied the procedural default

rule on Batson claims. He relies on our

statement in Cochran v. Herring, 43 F.3d 1404, 1409 (11th Cir. 1995): “Alabama courts

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

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

like Cochran’s” are cases where the

defendant (like Cochran) made a Swain objection at trial. Cochran distinguished

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

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

court’s later statement that Tarver

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

default rule is applied inconsistently

cannot sustain the weight Tarver places

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

statement that “Alabama courts have not

consistently applied a procedural bar to

Batson claims asserted in state collateral

petitions where the defendant had raised a

Swain objection at trial.” Id. More

important, the Cochran court was not

faced with a case where no Swain objection

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

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

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

(Edmondson, J., concurring), cited with

approval in Combs v. Plantation Patterns,

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

We cannot say that Alabama courts

have been inconsistent in applying the

procedural default rule to cases, like

Tarver’s, that is, where no Swain objection

was made at trial. Tarver cites to no case

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

and decided a Batson claim when no Swain objection was made at trial. Batson

claims not raised at trial have been

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

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

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

Bonner v. State, 564 So.2d 99, 99 (Ala.

Crim. App. 1990).

We also reject Tarver’s argument that

his case is like Morrison v. Jones, 952 F. Supp. 729 (M.D. Ala. 1996), and Floyd v. State,

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

in Morrison and Floyd both raised Swain

objections at trial, dropped the claim on

appeal, but got a review on the merits of

their Batson claim. Tarver argues,

according to Smith v. Murray, 477 U.S. 527 (1986), that the appellate defaults in Morrison and Floyd are indistinguishable

from his default “at the trial level.” But

Alabama can pick its own procedural rules

and has done so here. For some reason

(like the chance for trial courts to cure

errors in the first instance) Alabama has

chosen to allow Swain claims defaulted on

appeal, but not those defaulted at trial, to

proceed to collateral review on the merits

if the case was on direct appeal when

Batson was decided. Smith does not

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

and appellate defaults the same. Smith

requires that we treat trial and appellate

defaults equally, if Alabama does so. We

cannot require Alabama to treat trial

and appellate defaults the same when Alabama has not chosen to do so.

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

B. The Ineffective Assistance of Counsel

Claims

We review Tarver’s ineffective

assistance of counsel claims de novo. See

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

Cir. 1998).

Tarver argues that his trial counsel was

constitutionally ineffective for failing to

raise a Batson-type objection at trial. We

have said, however, that a lawyer who

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

assistance of counsel. See Pitts, 923 F.2d at 1574; see also Poole v. United States, 832 F.2d 561, 565 (11th Cir. 1987).

Tarver says three facts distinguish his

case from Pitts and Poole, but we disagree.

First, Tarver says his trial counsel knew of

“the systematic use by the prosecutor of

[per]emptories to exclude blacks from the

jury.” Our examination of the record,

however, shows that Tarver’s trial counsel

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

During state collateral proceedings,

Tarver’s trial counsel’s testimony was

that “on occasion,” when he had been a

prosecutor, he had struck black veniremembers based on race alone.

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

Second, Tarver says his trial counsel

could give no tactical reason for his

failure to object to the discriminatory use

of peremptory challenges. This argument

misses the point: to be effective, Tarver’s

lawyer did not need a reason because he

was not obligated to have anticipated the

Batson decision. See Pitts, 923 F.2d at 1573. Tarver might complain that his

lawyer was unimaginative, but a lack of

creativity does not constitute ineffective

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

because no evidence in this case would have supported a Swain violation: the only

valid objection available at that time. See

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

1987); see also Reece v. United States, 119 F.3d 1462, 1465 (11th Cir. 1997) (lawyer’s failure to

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

sentencing was not prejudicial when

evidence shows court used correct kind of

methamphetamine).

Third, Tarver presents the testimony of

two lawyers that lawyers in the

community were at the pertinent time

routinely raising Batson-type objections

at trial. The Rule 20 court in this case,

however, found that making a Batson-type

challenge before Batson was “not the

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

make a Batson challenge before Batson is

not ineffective. See Horsley v. State, 527 So.2d 1355, 1357-58 (Ala. Crim. App. 1988).

Tarver says his trial lawyer was

constitutionally ineffective by failing to

prepare adequately for the sentencing

phase. Tarver says his trial counsel should

have devoted more time to preparation

and should have presented additional

witnesses in the penalty phase of the trial.

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

required by the Constitution.

Tarver’s trial lawyer testified that he

consulted with a lawyer at the Southern

Poverty Law Center about how to proceed

with Tarver’s case and concluded that

focusing on Tarver’s acquittal of the

capital offense was the best approach to

defending Tarver. He met with Tarver

almost daily from the time he was

appointed until the trial. And he testified

that either he, his co-counsel, or an

investigator interviewed every witness

Tarver thought would be helpful as

mitigation witnesses, including Tarver’s

mother, grandmother, aunt, cousin,

girlfriends, former employers, and

members of the community. Tarver’s

lawyer said he presented every witness he

thought would be helpful. Tarver’s lawyer did

present the testimony of Tarver’s Uncle.

Tarver’s uncle said they were like brothers,

that Tarver was no troublemaker, and had no criminal “bent.” Tarver’s lawyer also

presented an expert to testify about

Tarver’s successful polygraph test result, a

test in which Tarver denied killing Kite.

Tarver’s lawyer’s preparation for

sentencing was, at least, within the broad

range of reasonable performance we have

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

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

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

shown under the circumstances and saying

we “have held counsel’s performance to be

constitutionally sufficient when no

mitigating evidence at all was

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

(11th Cir. 1986) (no ineffective assistance

for failure to present mitigating

evidence because counsel feared damaging

counter evidence); Stanley v. Zant, 697 F.2d 955 (11th Cir. 1983) (no ineffective

assistance for talking only to defendant

and defendant’s mother and presenting

no mitigating evidence). Tarver’s

lawyer’s effectiveness at the sentencing

stage is strongly evidenced by the jury’s

decision to recommend not death, but life

without parole. We think Tarver’s trial

lawyer’s efforts toward sentencing are

constitutionally adequate. See Burger v.

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

required to investigate and present all

available mitigating evidence to be

reasonable).

Tarver relies on the fact that Tarver’s

lawyer only spent four hours on Tarver’s

case between the conviction and

sentencing to argue that Tarver’s lawyer

did not adequately prepare for the

sentencing stage. Like the district court,

we believe this argument is “inaccurate

and misleading,” because of the overlap in

preparation for the sentencing and

guilt/innocence stages of the trial. For

example, Tarver’s lawyer’s meeting with

the potential witnesses took place before

sentencing.

The record shows that Tarver’s lawyer

tried to create sufficient residual doubt

about Tarver’s guilt during trial and

sentencing to add, in reality, another

mitigating factor to the jury’s sentencing

deliberations. That the creation of

lingering doubt was part of the strategy of

Tarver’s lawyer is evidenced by the

polygraph examiner’s testimony at

sentencing and Tarver’s lawyer’s closing

sentencing argument. The polygraph

examiner testified that Tarver did not lie

when asked, in different ways, if he killed Hugh Kite. During Tarver’s lawyer’s

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

Tarver’s trial judge accepted that closing argument at the sentencing

hearing he said repeatedly that he did not

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

without drawing objection -- added:

I would hope that the evidence

presented both in the case-in-chief

last week and anything that you

Tarver’s lawyer could present the polygraph test results to the jury at sentencing.

The jury recommended against death.

Although in Alabama the judge is the ultimate sentencer, the jury’s recommendation must be considered; and having the jury on the side of life is bound to help a defendant some. have heard today might be sufficient

to raise in your mind at least a

shadow of a doubt about the

defendant’s guilt, and if that doubt

exists in your mind, I would pray

that you would resolve it in favor

of the defendant.

A lawyer’s time and effort in

preparing to defend his client in the guilt

phase of a capital case continues to count

at the sentencing phase. Creating

lingering doubt has been recognized as an

effective strategy for avoiding the death

penalty. We have written about it. See,

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

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

comprehensive study on the opinions of

jurors in capital cases concluded:

“Residual doubt” over the

defendant’s guilt is the most

powerful “mitigating” fact.--[The

study] suggests that the best thing a

capital defendant can do to

improve his chances of receiving a

life sentence has nothing to do with

mitigating evidence strictly

speaking. The best thing he can do,

all else being equal, is to raise doubt

about his guilt.

Stephen P. Garvey, Aggravation and

Mitigation in Capital Cases: What do

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

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

Geimer & Jonathan Amsterdam, Why

Jurors Vote Life or Death: Operative

Factors in Ten Florida Death Penalty Cases,

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

existence of some degree of doubt about the

guilt of the accused was the most often

recurring explanatory factor in the life

recommendation cases studied.”); see also

Jennifer Treadway, Note, ‘Residual Doubt’

in Capital Sentencing: No Doubt it is an

Appropriate Mitigating Factor, 43 Case W.

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

American Law Institute, in a proposed

model penal code, similarly recognized the

importance of residual doubt in

sentencing by including residual doubt as a

mitigating circumstance. So, the efforts

of Tarver’s lawyer, during trial and

sentencing, to create doubt about Tarver’s

guilt may not only have represented an

adequate performance, but evidenced the

most effective performance in defense to

the death penalty.

We are also unpersuaded by the

admission (during state collateral

proceedings) of Tarver’s lawyer that he had

not prepared adequately for sentencing.

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

(11th Cir. 1992) (admissions of deficient

performance are not significant). As

noted by the Rule 20 court and the District

Court, Tarver’s lawyer’s decision to focus

on an acquittal at the expense of

sentencing was “a deliberate decision.”

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

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

decision to focus on acquittal of capital murder was not unreasonable. Despite

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

associate, Richardson, actually killed Hugh

Kite, very little evidence made Tarver a

better candidate than Richardson to be

found to be the actual killer. See Tarver v.

and still convict Tarver of the remaining lesser offense. Tarver’s lawyer tried to convince the jury that Richardson, not Tarver, was the actual killer. If believed, Tarver would have been acquitted of murder and, therefore, murder during a robbery in the first degree. Tarver’s jury was told they had to find that Tarver committed the killing.

They were not instructed that Tarver could be found guilty if Richardson committed the killing.

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

App. 1986) (describing evidence against

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

56 (lawyer’s decision to focus on

innocence, even when evidence of guilt

was great, rather than other forms of

mitigation did not make counsel

constitutionally ineffective).

C. The Giglio Claim

Tarver argues that, when he was tried,

a plea agreement existed between his

associate, Richardson, and the prosecution.

The government’s failure to disclose that

agreement, says Tarver, violates Giglio v.

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

requires the government to disclose an

agreement between a witness and the

government that might motivate the

witness to testify. See Brown v.

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

1986). The district court found that no

agreement existed when Tarver was tried.

Richardson’s attorney, Loftin, has

testified on his understanding of the

alleged agreement: “if Mr. Richardson

testified against Mr. Tarver . . . he would

receive some consideration for that in

that he would get a reduced sentence from

the standpoint of not pleading to murder

or capital murder.”

In contrast, Davis, the district

attorney who prosecuted Richardson and

Tarver, testified that he told Loftin only

this: “any cooperation [Richardson] gave us

and if he told the truth in this matter

would be taken into consideration.” Davis

added that he did not “reach an

understanding with Mr. Loftin regarding

a favorable disposition of Mr. Richardson’s

indictment in exchange for his

testimony.” In his own mind said Davis,

he believed that Richardson would not be

tried for capital murder if Richardson

testified for the prosecution; but he did not

say that to Loftin. Loftin could not recall

when he and Davis specifically agreed that

Richardson would plead guilty to robbery, but

Davis was certain the plea agreement was

decided after Tarver’s trial.

We accept the district court’s finding --

because it is not clearly erroneous -- that

whatever exchange may have taken place

between Loftin and Davis did not ripen

into a sufficiently definite agreement

before Tarver’s trial: no disclosure under

Giglio was required. We have said:

The [Giglio] rule does not address nor

require the disclosure of all factors

which may motivate a witness to

cooperate. The simple belief by a

defense attorney that his client

may be in a better position to

negotiate a reduced penalty should he

testify against a codefendant is

not an agreement within the

purview of Giglio.

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

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

however, recognized that a promise in this

context is not “a word of art that must be

specifically employed.” Brown v.

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

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

prosecutor concerning the future

prosecution of a key government witness

may fall into the category of discoverable

evidence.” Haber v. Wainwright, 756 F.2d 1520, 1524 (11th Cir. 1985).

But not everything said to a witness

or to his lawyer must be disclosed. For

example, a promise to “speak a word” on

the witness’s behalf does not need to be

disclosed. See McCleskey v. Kemp, 753 F.2d 877, 884 (11th Cir. 1985). Likewise, a

prosecutor’s statement that he would “take

care” of the witness does not need to be

disclosed. See Depree v. Thomas, 946 F.2d 784, 797-98 (11th Cir. 1991). Some promises,

agreements, or understandings do not

need to be disclosed, because they are too

ambiguous, or too loose or are of too

marginal a benefit to the witness to

count.

The district court’s finding of no

“agreement or understanding . . . between

the District Attorney and Richardson or

Richardson’s attorney” is not clearly erroneous. Compare Spaziano v.

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

(standard of review) with United States v.

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

(existence of plea agreement is a factual

issue). Loftin said that he only told his

client, Richardson, that “if he would testify

. . . it would be beneficial to him with

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

testified unequivocally at the Rule 20

hearing that no “arrangement or deal”

existed. He testified only that Richardson’s

testimony would be “taken into

consideration,” and such a statement is

too preliminary and ambiguous to demand

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

(promise to “take care” of witness does not

require disclosure).

Richardson testified at trial that he

was not promised a deal. We think Loftin

and his client were merely trying to

cooperate in hopes of improving their

bargaining position later. Giglio,

therefore, required no disclosure. See

Alderman, 22 F.3d at 1555.

If Loftin really believed an agreement

existed with the district attorney, then his

client committed perjury by testifying

that no agreement existed; and Loftin

would have been required to call upon

Richardson to correct his testimony or

withdraw from representation. Loftin

said he did not advise his client to change

his testimony nor did Loftin withdraw

from representation.

For the reasons we have discussed, we

conclude that Tarver’s claims were

properly rejected by the district court.

AFFIRMED.