Hays v. State of Alabama , 85 F.3d 1492 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-6378.
Henry F. HAYS, Petitioner-Appellant,
v.
STATE OF ALABAMA, C.E. Jones, Respondents-Appellees.
June 6, 1996.
Appeal from the United States District Court for the Southern
District of Alabama. (No. 93-623-CB-S), Charles R. Butler, Jr.,
Chief Judge.
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 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
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.
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.
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 the
petition for certiorari. Hays v. Alabama, 485 U.S. 929, 108 S.Ct.
1099, 99 L.Ed.2d 262 (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, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (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.
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, 466 U.S. at 693-94, 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, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180(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, 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, 466 U.S. at 693-94, 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.
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, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616, 75
L.Ed.2d 610 (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 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, 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, 60 S.Ct. at 324-25. 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, 503 U.S. at 369, 113 S.Ct. at 842.
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
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.
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, --- U.S. ----,
115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), which discussed the
"reasonable probability" standard of Brady. Without 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, ---
U.S. at ----, 115 S.Ct. at 1566 (citing United States v. Bagley,
473 U.S. 667, 680-84, 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, --- U.S. at ----, 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 ----, 115
S.Ct. 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 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 truth-telling.
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
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.
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 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
4
inconsistent on many of the listed points. And on others
(particularly the relatedness of the murder and cross-burning), 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
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 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.
statements fails.
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, 360 U.S. 264, 268-70, 79 S.Ct. 1173, 1177,
3 L.Ed.2d 1217 (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, 405 U.S. 150, 92 S.Ct.
763, 31 L.Ed.2d 104 (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 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, 397 U.S. 358, 361, 90 S.Ct.
1068, 1071, 25 L.Ed.2d 368 (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.
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 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.
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, 465 U.S. 37, 41-
43, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984) ("A federal court may
not issue the writ on the basis of a perceived error of state
law."). See also Parker v. Dugger, 498 U.S. 308, 327, 111 S.Ct.
731, 742, 112 L.Ed.2d 812 (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: 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
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.
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?
Petitioner's claim that there was inadequate notice of the
possibility of an override must likewise fail; and Lankford v.
Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (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'
6
After 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.
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, --- U.S. ----, 115
S.Ct. 1031, 130 L.Ed.2d 1004 (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 adequately channels the sentencer's
discretion so as to prevent arbitrary results." Id. at ----, 115
S.Ct. 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?
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.
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, 432 U.S.
282, 292-94, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977).
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
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, 481 U.S.
279, 296-97, 107 S.Ct. 1756, 1769, 95 L.Ed.2d 262 (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.