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,
             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
          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
           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.
    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.
    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
             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
           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
          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
          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.
    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
          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
    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
          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
                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
         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-
    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
          As Chief Justice Marshall wrote in Cohens v. Virginia, 19
    U.S. (6 Wheat) 264, 399, 
    5 L. Ed. 257
                 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.
    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'
          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?
          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
    E. Did the Motive For the Override Violate the Equal Protection
         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
         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.