Gary Leon Brown v. Charlie Jones ( 2001 )


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  •                                                                   [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                  FILED
    U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    ________________________              JUNE 29, 2001
    THOMAS K. KAHN
    No. 99-14261                      CLERK
    ________________________
    D. C. Docket No. 95-01792-CV-C-S
    GARY LEON BROWN,
    Petitioner-Appellant,
    versus
    CHARLIE P. JONES, Warden,
    BILL PRYOR, Attorney General,
    State of Alabama,
    Respondents-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    _________________________
    (June 29, 2001)
    Before ANDERSON, Chief Judge, EDMONDSON and DUBINA, Circuit Judges.
    ANDERSON, Chief Judge:
    I. FACTS AND PROCEDURAL HISTORY
    On May 26, 1986, Gary Leon Brown, Archie Bankhead, James Bynum, and
    Jimmy Davenport went fishing near Locust Fork, Alabama, about thirty miles north
    of Birmingham. The men drank alcohol while they fished and then went to Chuck and
    Willie's Lounge in Birmingham, where they continued to drink and played pool.
    While at the lounge, Brown, Bankhead, and Bynum discussed the possibility
    of going to Jack McGraw's home in Pinson, Alabama, to obtain money. Brown and
    Bynum were both familiar with McGraw. The four men then left the lounge and
    headed to McGraw's home. Davenport drove, and Bynum gave directions. When
    they arrived at McGraw's home that night, Davenport remained in the car, while
    Brown, Bankhead, and Bynum went to McGraw's door and knocked. McGraw let
    them in and said that he could not "party" with them that evening because he had to
    go to work the next morning. When the three men began to leave, McGraw walked
    outside with them. Bankhead then grabbed McGraw in a headlock, and Brown and
    Bynum began hitting McGraw. Davenport also saw Brown make a "slashing"
    movement at McGraw's neck. McGraw and Bankhead fell to the ground and
    struggled. Bankhead, Brown, and Bynum then picked up McGraw and carried him
    inside his home. Brown recalled Bankhead saying that they would have to kill
    McGraw, because McGraw had seen Bankhead. Brown admitted that he repeatedly
    2
    stabbed McGraw in the back with a small pocket knife. He claimed that either
    Bankhead or Bynum caused the fatal wounds to McGraw's neck area.1
    After killing McGraw, Bankhead, Brown, and Bynum gathered McGraw's
    possessions, loaded them in Davenport's car, and drove to Bankhead's house, where
    they divided the stolen property and the money from McGraw's wallet and burned
    their clothes which were covered in blood. According to Bankhead's wife, the men
    joked about the murder. She overhead Brown telling Bankhead how he "kept stabbing
    and stabbing and stabbing and stabbing" McGraw. She also heard Bankhead and
    Bynum stating that they had cut McGraw's neck. The next afternoon McGraw's body
    was discovered by a neighborhood child.
    A few days later Jefferson County deputy sheriffs found Brown at Bankhead's
    house. Brown accompanied them to the Center Point substation and gave them a
    statement that he and the other three men had gone fishing, to the bar, and then home.
    After giving this statement, Brown rode with the officers to Bynum's house, where the
    officers questioned Bynum while Brown remained in the squad car with one of the
    officers. Bynum told the officers that Brown had inflicted all the stab wounds on
    McGraw and struck his head with a skillet. Brown claims that the officers returned
    1
    McGraw suffered at least fifteen cuts to his neck, including several deep wounds
    striking his carotid artery and jugular venous complex. He suffered fifty-nine stab wounds to his
    back, the deepest of which were two inches deep.
    3
    to the squad car, arrested him, and told him that Bynum’s statement reflected that
    Bankhead stabbed McGraw and was the ringleader. Brown then gave a second
    statement to the officers to the effect that Bankhead had inflicted all of the wounds on
    McGraw. Later, after Brown learned that Bankhead had been arrested, Brown gave
    a third statement in which he admitted that he stabbed McGraw in the back repeatedly
    with a pocket knife and participated in the robbery along with Bynum and Bankhead.
    Brown was indicted for the capital offense of the murder of Jack McGraw
    during a robbery in violation of § 13A-5-40(a)(2), Code of Alabama 1975. Brown’s
    appointed counsel was Russell T. McDonald, Jr. The jury found Brown guilty of
    capital murder as charged in the indictment. After the penalty phase of the trial, the
    jury returned an advisory verdict for death by a vote of ten to two. After a sentencing
    hearing, the trial judge accepted the jury's recommendation and sentenced Brown to
    death. On direct appeal, the Alabama Court of Criminal Appeals, Brown v. State, 
    545 So. 2d 106
     (Ala. Crim. App. 1998), and the Alabama Supreme Court, Ex parte Brown,
    
    545 So. 2d 122
     (Ala. 1989), affirmed Brown's conviction and death sentence. The
    United States Supreme Court denied Brown's petition for writ of certiorari. See
    Brown v. Alabama, 
    493 U.S. 900
    , 
    110 S. Ct. 257
     (1989). On February 16, 1990,
    Brown filed a petition for post-conviction relief under Temporary Rule 20 of the
    4
    Alabama Rules of Criminal Procedure.2 Brown twice amended his Rule 20 petition.
    An evidentiary hearing was held on Brown's petition, and on January 21, 1990, the
    Rule 20 court denied the petition. The Alabama Court of Criminal Appeals affirmed
    the denial of the Rule 20 petition, and the Alabama Supreme Court denied Brown's
    petition for writ of certiorari. See Brown v. State, 
    663 So. 2d 1028
     (Ala. Crim. App.),
    cert. denied, 
    663 So. 2d 1028
     (Ala. 1995). Brown then petitioned the district court for
    a writ of habeas corpus pursuant to 
    28 U.S.C. § 2254.3
     On October 1, 1999, the
    district court denied the petition, holding that most of Brown's federal constitutional
    claims were procedurally barred and that his remaining claims failed on the merits.
    On appeal, Brown argues that his trial counsel was ineffective at both the guilt
    and penalty phases of his trial because he failed to investigate and present evidence
    of Brown’s drug and alcohol abuse and its effects upon his mental state at the time of
    the crime. He also argues that his trial counsel was ineffective in failing to question
    the jurors during voir dire to identify those who were biased in favor of the death
    penalty. Brown then argues that his trial was rendered fundamentally unfair because
    2
    The rule is now Rule 32 of the Alabama Rules of Criminal Procedure, but we will refer
    to the state post-conviction proceedings as the Rule 20 proceedings.
    3
    Because Brown's habeas petition was filed on July 14, 1995, prior to the enactment of
    the Anti-Terrorism and Effective Death Penalty Act (AEDPA) on April 24, 1996, which
    amended portions of 
    28 U.S.C. § 2254
    , we review Brown’s petition under the pre-AEDPA
    standard. See Mincey v. Head, 
    206 F.3d 1106
    , 1130 n.58 (11th Cir. 2000).
    5
    Davenport’s testimony was procured through coercive prosecutorial tactics. For the
    reasons stated below, we affirm the district court’s denial of Brown’s habeas petition.4
    II. DISCUSSION
    A. Ineffective Assistance for Failure to Introduce Evidence of Brown’s Alcohol and
    Drug Use
    Brown asserts that he received ineffective assistance during the penalty phase
    of his trial because counsel failed to investigate and present evidence of Brown’s drug
    and alcohol use and its effects upon his mental state. The district court denied
    Brown’s claim, emphasizing the Rule 20 court’s findings that counsel’s failure to
    present such evidence was part of his unified guilt and punishment phase strategy.
    Brown argues that any such strategy was chosen without reasonable investigation or
    preparation.
    Claims of ineffective assistance during the sentencing phase of a capital case
    are subject to the two-prong analysis set out by the Supreme Court in Strickland v.
    Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
     (1984). To make out a successful claim,
    4
    Brown also argues on appeal that the state trial court’s failure to instruct the jury that it
    did not have to be unanimous as to mitigating circumstances deprived him of a right to a
    constitutional sentencing hearing and that the state trial court’s jury instruction on reasonable
    doubt impermissibly shifted the burden of proof. We agree with the district court that both of
    these claims are procedurally defaulted and thus we do not address these claims. Brown
    additionally argues that the district court erred in not affording him an evidentiary hearing. We
    conclude that the district court did not abuse its discretion in failing to hold an evidentiary
    hearing.
    6
    Brown must show (1) that his counsel’s performance was deficient, and (2) that the
    deficient performance prejudiced the defense. See 
    id. at 687
    , 
    104 S. Ct. at 2064
    .
    Ineffective assistance is a mixed question of law and fact, and our review is de novo.
    See Williams v. Head, 
    185 F.3d 1223
    , 1227 (11th Cir. 1999).
    1. Performance Prong
    Under the performance prong, the standard is “reasonableness under prevailing
    professional norms.” See Strickland, 
    466 U.S. at 688
    , 
    104 S. Ct. at 2065
    . Trial
    counsel cannot be deemed “incompetent for performing in a particular way in a case,
    as long as the approach taken ‘might be considered sound trial strategy.’” Chandler
    v. United States, 
    218 F.3d 1305
    , 1314 (11th Cir. 2000) (en banc) (quoting Darden v.
    Wainwright, 
    477 U.S. 168
    , 186, 
    106 S. Ct. 2464
    , 2474 (1986)).
    McDonald had over thirty years of experience in the practice of criminal law
    and had prosecuted or defended dozens of capital cases. We have stated that the
    “strong reluctance to second guess strategic decisions is even greater where those
    decisions were made by experienced criminal defense counsel.” Chandler, 
    218 F.3d at 1316
     (quoting Provenzano v. Singletary, 
    148 F.3d 1327
    , 1332 (11th Cir. 1998)).
    “The more experienced an attorney is, the more likely it is that his decision to rely on
    his own experience and judgment in rejecting a defense . . . was reasonable under the
    circumstances.” Gates v. Zant, 
    863 F.2d 1492
    , 1498 (11th Cir. 1989).
    7
    This is not a case where counsel failed to investigate with respect to Brown’s
    drug and alcohol use. McDonald testified at the Rule 20 hearing that he was aware
    of Brown’s background of drug and alcohol use and had discussed it with him. Based
    on his more than thirty years of experience in trying cases in Jefferson County,
    Alabama, McDonald testified that he believed that jurors are prejudiced against
    criminal defendants who use drugs. McDonald testified that there was plenty of
    evidence of Brown’s drug and alcohol abuse that he could have presented at the
    penalty phase of the trial, but he rejected this line of defense in favor of one he
    believed would be more effective: that Brown, who had a boyish appearance at the
    time of trial, was a “follower” who was led into an act inconsistent with his character
    by Bankhead, his co-Defendant, who was older and violent and had a more hardened
    look.
    We readily conclude that McDonald’s decision not to present evidence of
    Brown’s drug and alcohol use at the penalty phase in favor of a defense that he
    thought would be more favorable was a reasonable tactical decision. See, e.g., Duren
    v. Hopper, 
    161 F.3d 655
    , 661 (11th Cir. 1998) (readily concluding that counsel’s
    decision not to present evidence of defendant’s history of substance abuse during the
    penalty phase of trial was reasonable).
    2. Prejudice Prong
    8
    In order to prevail on this claim, Brown would also have to establish prejudice
    from his counsel’s unreasonable assistance. See Horton v. Zant, 
    941 F.2d 1449
    , 1463
    (11th Cir. 1991). A petitioner satisfies the prejudice prong when he shows that trial
    counsel’s deficient performance deprived him of “a trial whose result is reliable.”
    Strickland, 
    466 U.S. at 687
    , 
    104 S. Ct. at 2064
    . “The defendant must show that there
    is a reasonable probability that, but for counsel’s unprofessional errors, the result of
    the proceeding would have been different.” 
    Id. at 694
    , 
    104 S. Ct. at 2068
    .
    We conclude that, in addition to failing to establish the performance prong of
    his Strickland claim, Brown has also failed to establish the prejudice prong. At the
    Rule 20 hearing, Brown presented witnesses whom he contended McDonald should
    have called at trial. The Rule 20 court found that the testimony of these witnesses
    either would not have been helpful to Brown or that such testimony was not credible.
    The Rule 20 court found that the testimony of Brown’s family members and friends
    concerning Brown’s drug use was exaggerated in an attempt to make him appear to
    have a greater drug problem than he actually had. The Rule 20 court also found that
    the amount of alcohol that Brown claimed to have consumed on the day of the
    robbery/murder was substantially less than he claimed to consume on a regular basis
    prior to the day of the crime. The Rule 20 court found that Brown had not suffered
    from delirium tremors or other withdrawal symptoms, had exaggerated his drug use,
    9
    and was not a credible witness. The Rule 20 court also concluded that the testimony
    of Dr. Kirkland, Brown’s expert witness, that Brown suffered from diminished
    capacity at the time of the crime due to alcohol or drug use would not have
    outweighed the aggravating factors against Brown. Furthermore, the state’s expert,
    Dr. Dixon, testified that Brown exaggerated his claims of drug and alcohol abuse.
    Especially in light of the Rule 20 court’s findings of fact, we agree with the
    conclusion of the Rule 20 court that the evidence of Brown’s drug and alcohol abuse
    would not have been helpful to him; “there is no reasonable probability that the result
    of the penalty phase would have been different, even if the suggested evidence of
    alcohol and drug abuse had been explored in great detail.” Duren, 161 F.3d at 662.5
    B. Ineffective Assistance for Failure to Engage in “Reverse-Witherspoon”6 Inquiry
    During Voir Dire
    Brown also argues that McDonald rendered ineffective assistance when he
    failed to ask potential jurors during voir dire whether they would automatically vote
    5
    Brown also claims that he received ineffective assistance due to McDonald’s failure to
    present evidence of his drug and alcohol use during the guilt phase of his trial. Because we
    conclude that McDonald made a reasonable tactical decision not to present evidence of Brown’s
    substance abuse, given his opinion, based on years of experience, that juries are unsympathetic
    to drug users, especially those like Brown who also dealt drugs, we hold that Brown has failed to
    establish a claim of ineffective assistance with respect to the guilt phase of his trial.
    6
    The voir dire inquiry used to determine whether there are jurors who would vote
    automatically to impose the death penalty if a defendant were found guilty of a capital crime is
    referred to as the “reverse-Witherspoon” inquiry, because it arose from a line of death penalty
    voir dire cases exemplified by Witherspoon v. Illinois, 
    391 U.S. 510
    , 
    88 S. Ct. 1770
     (1968).
    10
    to impose the death penalty if Brown were convicted of capital murder – a so-called
    “reverse-Witherspoon” inquiry. The Rule 20 court and the district court rejected this
    claim.
    1. Performance Prong
    At the Rule 20 hearing, Brown offered the testimony of two Birmingham
    lawyers, Dan Turberville and Roger Appell, who testified that they always engage in
    such “reverse-Witherspoon” questioning during voir dire. The Rule 20 court found
    that the testimony of these two lawyers did not establish that McDonald’s failure to
    ask the reverse-Witherspoon question during voir dire showed that his performance
    was inadequate, because McDonald had as much, if not more, experience in criminal
    defense than either of these lawyers.
    McDonald was not asked any questions during the Rule 20 hearing regarding
    his failure to engage in a reverse-Witherspoon inquiry. Although during voir dire the
    trial judge asked the potential jurors a few questions to determine whether any of them
    was unalterably opposed to the death penalty, this questioning was limited. Thus,
    McDonald may well have thought it better to avoid any focus on the death penalty.
    McDonald’s decision not to ask potential jurors whether they would automatically
    vote to impose the death penalty if Brown were convicted of capital murder appears
    to have been a reasonable tactical decision, because it seems reasonable for trial
    11
    counsel to want to focus the jury on the idea of the death penalty as little as possible.
    Moreover, there is a strong presumption that McDonald’s actions were the result of
    sound trial strategy. See Strickland, 
    466 U.S. at 689
    , 
    104 S. Ct. at 2065
    . Nevertheless,
    we need not decide whether Brown failed to establish the performance prong on this
    claim, because we conclude that he failed to establish the prejudice prong.
    2. Prejudice Prong
    In order to establish the prejudice prong, Brown would have to show that, but
    for McDonald’s failure to engage in the reverse-Witherspoon inquiry during voir dire,
    the result of his trial would have been different. See Strickland, 
    466 U.S. at 694
    , 
    104 S. Ct. at 2068
    . For several reasons we conclude that Brown has failed to make the
    required showing. First, during the penalty phase of the trial, the trial judge instructed
    the jurors that their verdict should be based on the evidence and the law and that there
    was no room for passion, prejudice, or other arbitrary factors. Brown argues that we
    should presume that some of the jurors were biased in favor of the death penalty and
    would have refused to follow the law. We have stated in numerous cases, however,
    that jurors are presumed to follow the court’s instructions. See e.g., Ingram v. Zant,
    
    26 F.3d 1047
    , 1053 (11th Cir. 1994) (“Because we presume that jurors follow such
    instructions, we must assume that the jury put aside any biases it may have had,
    applied the legal standards as enunciated in the jury instructions, and based its
    12
    sentencing decision on the facts introduced at trial and sentencing.”); Raulerson v.
    Wainwright, 
    753 F.2d 869
    , 876 (11th Cir. 1985) (“Jurors are presumed to follow the
    law as they are instructed.”). Because we presume that the jurors followed the court’s
    instructions to base their sentencing decision on the evidence and the law, and not on
    arbitrary factors, Brown’s attempt to prove prejudice is undermined. See Stamper v.
    Muncie, 
    944 F.2d 170
    , 177 (4th Cir. 1991) (holding that petitioner, who alleged
    ineffective assistance based on counsel’s failure to “explore with certain members of
    the venire the ‘reverse-Witherspoon’ inquiry,” failed “to demonstrate how any
    shortcoming on trial counsel’s part constituted prejudice sufficient to satisfy the
    second prong of the Strickland test”).7 Second, Brown failed to adduce any evidence
    that any juror was biased in favor of the death penalty. Third, the heinous nature of
    the crime and the absence of any mitigating factors make this a case in which the
    prosecutor had a strong case for the death penalty. For these reasons, we conclude
    that Brown has failed to show that McDonald’s decision not to engage in the reverse-
    Witherspoon inquiry with the jury resulted in prejudice sufficient to satisfy the second
    7
    This case is distinguished from Ex parte Yelder, 
    575 So. 2d 137
     (Ala. 1991), where the
    Alabama Supreme Court presumed prejudice where trial counsel did not object, under Batson v.
    Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
     (1986), to the state’s use of its peremptory challenges to
    strike 17 out of 18 black jurors. In Yelder, there was a prima facie case of purposeful
    discrimination by the state in the jury selection process. See 
    575 So. 2d at 138-39
    . In this case,
    Brown cannot show that any juror was predisposed to impose the death penalty nor that any juror
    would have responded to or been excused because of a reverse-Witherspoon inquiry.
    13
    prong of Strickland.
    C. Davenport’s Testimony
    Brown argues that his conviction and death sentence violated his Eighth and
    Fourteenth Amendment rights because Davenport’s testimony, which was directly
    related to the issue of Brown’s intent, was procured through coercive prosecutorial
    tactics.8 Brown analogizes his conviction to one obtained through the use of perjured
    testimony. He argues that, where a witness’s testimony has been coerced, this creates
    an unacceptable risk that a conviction might be obtained based upon perjured
    testimony.
    When Davenport was interviewed by deputies shortly after McGraw’s murder,
    he apparently admitted much of the involvement to which he later testified at trial,
    including the fact that he drove Brown, Bankhead, and Bynum to McGraw’s home on
    the fateful night, though he remained in the car. However, in his statement to the
    officers at the time, he indicated that he had heard nothing about any plans to kill
    McGraw in the car on the way to McGraw’s home. Shortly before trial, Davenport
    was subpoenaed as a witness. One of the prosecutors in the case, Mike Anderton,
    8
    Respondents argue that this claim is procedurally defaulted because it was not raised at
    trial or on direct appeal. The Rule 20 court found that the claim was procedurally defaulted.
    The district disagreed, but dismissed the claim on the merits. Because we agree with the district
    court that this claim fails on the merits, we need not decide whether this claim is procedurally
    defaulted.
    14
    flew Davenport to Birmingham. Anderton and Mike McGregor, the other prosecutor
    in the case, met with Davenport the day before Brown’s trial and interrogated him for
    two hours. The entire interview was taped. In response to a number of questions
    early in the interview, Davenport denied having heard any conversation about killing
    McGraw on the way to McGraw’s home. McGregor persisted in questioning
    Davenport about this, insisting that he must have heard some conversation on the way
    to McGraw’s home. Davenport finally said, “[They] said they was going to go over
    to a queer’s house to do a job,” and then admitted having heard Brown, Bankhead, and
    Bynum talking about hitting McGraw. After Davenport asked whether he could be
    charged with this, one of the prosecutors said that he could be, but he probably would
    not be,9 charged, but he went on to say that one case they would make if need be was
    perjury if he lied on the stand. Anderton and McGregor told Davenport numerous
    times that he must tell the truth.
    At trial, Davenport testified as to his involvement and what he saw and heard,
    including the fact that, on the way to McGraw’s home, he heard a conversation in the
    car about “going and killing a queer, or something like that.” He did not recall who
    made that statement. He also said that Brown and Bankhead both asked Bynum how
    9
    The prosecutor later explained that Davenport’s involvement as the driver probably was
    not enough to make a case against him, because there was no apparent intent on the part of
    Davenport to take part in the crime.
    15
    hard Bynum could hit. Davenport also testified that Brown asked Bynum, “Well, can
    you knock this old man out?,” and Bynum responded “yes.”                   According to
    Davenport’s testimony, Brown responded, “Well, if you can’t I can.”
    The interrogation methods used by the prosecutors when questioning Davenport
    fall short of the level of egregiousness necessary to constitute a violation of Brown’s
    constitutional rights. See Wilcox v. Ford, 
    813 F.2d 1140
    , 1148 (11th Cir. 1987). In
    Wilcox, the petitioner argued that testimony against him had been coerced from two
    witnesses and that this violated his due process rights and rendered his trial
    fundamentally unfair. See 
    813 F.2d at 1148
    . The two witnesses, both of whom were
    elderly, originally told the police that they knew nothing of the murder, but later, after
    extensive interrogation, signed statements attesting to their involvement, as well as the
    petitioner’s involvement, in the crime. The district court held that the “intimidation
    tactics” used by the police violated the petitioner’s constitutional rights. We reversed.
    The transcripts of the interrogation showed that the police had “threatened to charge
    [one of the witnesses] with murder, threatened to lynch him, put words in his mouth,
    and told him he was headed for eternal damnation.” 
    Id. at 1147
    . Another witness was
    interrogated for over eight hours without food or water and was told that he could be
    sent to the electric chair or would die in prison. See 
    id.
     We held that, while the police
    misconduct was not commendable, the petitioner’s due process rights were not
    16
    violated and he had received a fundamentally fair trial. See 
    id. at 1148-49
    . We
    reached this conclusion because the petitioner had full knowledge of the nature of the
    two witnesses’ interrogation, had access to the tapes and transcripts prior to trial, had
    an opportunity to use those materials when examining both witnesses, and was able
    to cross-examine both witnesses. See 
    id. at 1149
    .
    The rejection of Brown’s claim that his constitutional rights were violated
    because Davenport’s testimony was coerced follows a fortiori from Wilcox. The
    interrogation here falls far short of the much more egregious interrogation which
    survived constitutional scrutiny in Wilcox. The interrogation in the instant case was
    almost mild-mannered compared to that in Wilcox. It lasted only two hours and was
    taped in its entirety. Brown’s trial counsel, McDonald, knew about Davenport’s
    testimony on the first day of trial; and, as in Wilcox, Brown’s counsel had an
    opportunity to review the taped interrogation before he cross-examined Davenport.
    In fact, McDonald engaged in a lengthy cross-examination of Davenport concerning
    the interrogation and the changes in his testimony after the interrogation. The taped
    interrogation was also played for the jurors, which gave them an opportunity to
    evaluate whether the prosecutors had used improper interrogation methods and
    whether the interrogation had resulted in untruthful testimony, and gave them an
    opportunity to assess the challenged interrogation and the reliability of Davenport’s
    17
    testimony. The jury obviously concluded that the interrogation did not result in
    untruthful testimony, but rather persuaded Davenport to abandon the few previous
    untruthful statements to officers and to give truthful testimony to the jury. Based on
    our own review of the challenged interrogation and Davenport’s trial testimony, we
    conclude that Davenport’s trial testimony was both voluntary and truthful. Therefore,
    we readily conclude that Brown’s constitutional rights were not violated due to the
    introduction of Davenport’s testimony.
    III. CONCLUSION
    For the foregoing reasons, the judgment of the district court denying relief is
    AFFIRMED.
    18