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

  •                                                                    PUBLISH
                           FOR THE ELEVENTH CIRCUIT
                                 No. 95-6378
    C. E. JONES,
               Appeal from the United States District Court
                   for the Southern District of Alabama
                                (June 6, 1996)
    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 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.
       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.
         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
         On direct appeal, the intermediate appellate court reversed, holding
    the trial judge lacked the power to override the jury's decision. Hays v.
    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
     (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, 
    104 S. Ct. 2052
     (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
          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
          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, 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, 
    113 S. Ct. 838
    , 842 (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, 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, 
    103 S. Ct. 1610
    , 1616
    (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.
    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, 113 S.Ct. at
    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.
    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 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, 
    115 S. Ct. 1555
    which discussed the "reasonable probability" standard of Brady. Without
        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.
    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, 115 S.Ct. at 1566
    (citing United States v. Bagley, 
    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, 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 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 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
       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.
    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
          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.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
    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 statements
    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
    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, 
    79 S. Ct. 1173
    , 1177 (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, 
    92 S. Ct. 763
     (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, 
    90 S. Ct. 1068
    , 1071 (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, 
    104 S. Ct. 871
    , 875 (1984)
    ("A federal court may not issue the writ on the basis of a perceived error of
    state law."). See also Parker v. Dugger, 
    111 S. Ct. 731
    , 742 (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 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?
         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.
         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.
         Petitioner's claim that there was inadequate notice of the possibility
    of an override must likewise fail; and Lankford v. Idaho, 
    111 S. Ct. 1723
    (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' 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.
    115 S. Ct. 1031
     (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 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
          D.      Did the Trial Court's 'Upward Override' Violate the Ban on
                  Ex Post Facto Laws?
          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, 
    97 S. Ct. 2290
    2298 (1977).
        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.
          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, 
    107 S. Ct. 1756
    , 1769 (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.