1492 and it necessarily follows that the defendants are entitled to summary judgment on quali- fied immunity grounds. See Siegert, 500 US, at 282, 111 S.Ct at 1793, We are confident that the distriet court would have ‘reached that conclusion, and ruled differently than it did, if the Farmer decision had been available to it, B. The Exeossive Force Claim [24] The district court disposed of the defendants’ motion for summary judgment on the Fourth Amendment excessive force claim in a footnote, simply stating that be- cause of its decision to deny summary judg- ment as to the due process claim, “prudence dictates that it also denied defendants’ mo- tion for summary judgment on (plaintiff's) Fourth Amendment claim. Defendants are aiven leave to raise this issue again at the time of trial” When their motion for sum- mary judgment on qualified immunity grounds is denied, defendants are not re- {quired to have leave of court in order to raise the defense again at trial. See supra pp. 487-1488 To the extent that the district court's language eould be interpreted as de- lining to rule on the qualified immunity issue until trial, ite action had the same effect, for our interlocutory jurisdiction pur- poses, as a complete denial. ‘See, eg, Collins +, School Bd. of Dade County, Fla, 981 F.2d 1208, 1205 (Lith Cir.1998). To the extent that the district court’s reasoning is based, as its language seemingly indicates, upon its decision to deny the motion for summary Judgment as to the due process claim, then it is erroneous because the court's reasoning on the due process claim is itself erroneous, for the reasons we have previously discussed, [25,26] In any event, the two claims in- volve different legal standards. The proper standard for judging Fourth Amendment ex- cessive force claims is set out in Graham 2: Connor, 490 US. 386, 109 S.Ct. 1865, 104 L.Ed2d 443 (1989). ‘That standard is one of objective reasonableness: “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and cireum- stances confronting them, without regard to their underlying intent or motivation.” 490 US. at 397, 109 S.Ct at 1872, The distriet 85 FEDERAL REPORTER, 34 SERIES court's detailed factfindings concerning the events surrounding the arrest and the foree applied make it clear that there is no genuine issue of material fact concerning excessive force in this ease, and the defendant officers are entitled to summary judgment as a mat- ter of law. Tt necessarily follows that the district court should have granted their mo- tion for summary judgment on qualified im- munity grounds. “See Siegert, 500 US, at 282, 111 8.Ct, at 1798. Y. CONCLUSION We REVERSE the district court's denial of the defendants’ motion for summary judg- ‘ment on qualified immunity grounds as to both claims and REMAND this ease for fur- ther proceedings consistent with this opinion. Henry F. HAYS, Pe joner-Appetlant, STATE OF ALABAMA, CE. Jones, Respondents-Appellees No. 95-8878, United States Court of Appeals, Eleventh Circuit, Tune 6, 1996. Petitioner was convicted in the Cireuit, Court, Mobile County, Braxton L. Kittrell, Ir, J. of robbery-murder and was sentenced to death despite jury recommendation of life imprisonment. Petitioner appealed. ‘The Court of Criminal Appeals, Taylor, J, 518 So2d 749, affirmed, but set aside death sen- tenee. Certiorari was granted. ‘The Su- preme Court, 518 So.2d 768, reinstated death sentence. Petitioner sought writ of habeas corpus. The United States Distriet. Court for the Southern District of Alabama, No. 98-623-CB-S, Charles R. Butler, Jr, Chief Judge, denied relief. Petitioner appealed,HAYS v. STATE OF ALA. 1493 Gheasss Fd 192 (LUCE, 196) ‘The Court of Appeals, Edmondson, Cireuit Judge, held that: (1) attorney did not render ineffective assistance; (2) denial of request for continuance did not deprive defendant of cffective assistance of counsel; (8) law en- forcement memos about statements made by coperpetrator who testified against defendant were not material for purposes of Brady; (4) admitting coperpetrator’s testimony did not violate due process, even though it was incon sistent with testimony in connection with plea; (6) evidence supported conviction; (6) overriding jury recommendation of life i prisonment was constitutional; (7) defendant, received adequate notice of possibility of death sentence; and (8) Alabama Supreme Court did not act with discriminatory par- pose in upholding trial judge's decision to override recommendation of life imprison- ment, Affirmed. 1. Criminal Law ©641.13(2.1, 6) Defendant: was required to explain how better preparation of witnesses and develop- ‘ment of facts would have changed course of tial in order to demonstrate prejudiee from attomney’s allegedly ineffective preparation of witnesses and development of facts USCA. Const-Amend. 6. 2, Criminal Law ©641.19(2.1, 6) Defendant was required to show with particularity how attorney's decisions not to ‘object to evidence or decisions by trial judge ‘was constitutionally unreasonable or prejudi- cial for purposes of test for ineffective assis- tance of counsel. U.SC.A. Const.Amend. 6. 3, Criminal Law 641.120) ‘Trial courts refusal to grant continuance after prosecutor returned new indictment one day before trial on charge of robbery and murder, rather than kidnapping and murder, id not prejudice defendant claiming alibi and, therefore, did not deprive defendant of effective assistance of counsel; presence or absence of gun should not have significantly affected defendant's preparation of witnesses: and arguments for trial. US.C.A. Const Amend, 6. 4. Criminal Law ©=641.12(2), 641.1(1) Prejudice from attorney's allegedly inef- fective assistance is presumed when counse] ‘was either totally absent or prevented from assisting accused during critical stage of pro- ceedings or if counsel entirely failed to sub- Jeet prosecution's ease to meaningful adver- ‘savial testing, US.C.A. Const.Amend. 6. 5. Constitutional Law ©2685) Criminal Law €=700(4) Law enforcement officers’ memos about statements by defendant's coperpetrator were not shown to be material, and, thus, suppression ofthe memos did not volte due process; tril counsel suceeeded in eompel- ling coperpetrator to admit to s0 many ies that marginal impact of suppressed state- rents would have been insignificant; with- held statements thus did not show such a patter of ineonssteney as to ereate reason- able probability that jury would have totally rejected coperpetratar’s tstimony, and using tmemos to highlight inconsstences between coperpetrator’s cali and later accounts of the crime would have been redundant since defense attamey elicited coperpetrator's ne- Imowledgment of inconsistency on many points. USCA. Const Amends 5, 14 6, Criminal Law 1139 ‘Whether reasonable probability existed that suppressed evidence would have changed outeome of trial is mixed question of law and fact, and, thus, review of Brady ‘seue under due process is de novo. US.C.A. Const.Amends. 5, 14. 17. Constitutional Law 268(9) Criminal Law €=706(2) Prosecutor's alleged use of perjured tes- timony by defendant's eoperpetrator did not violate due process, even though it was incon- sistent with prior testimony in connection with guilty plea; there was no showing that later, rather than earlier, testimony was false. USS.C.A. Const-Amends. 5, 14. 8, Robbery 8 Under Alabama law, intent to deprive vielim of weapons when requiring him to empty his pockets provided requisite intent for robbery in connection with taking of wal-1494 let, regardless of whether self-protection was overriding motive. 9. Robbery 3 Under Alabama law, intent to rob is intent to take and earry away personal prop- erty of another by using foree or putting other in fear of use of foree. 10, Robbery 6, 7 Under Alabama law, taking wallet while fone has goal of depriving vietim of weapons is robbery if taking is accomplished by using force or putting vietim in fear of use of fore. Al, Homicide e=14(1) ‘Under Alabama law, possibility that de- fendant initially did not set ont to kill vietim ‘was of no consequence to conviction for pre- ‘meditated murder; vietim suffered beating with tree limb, dragging by noose, and slit ting of throat, and premeditation could be formed at time of fatal act. 12, Constitutional Law ©250.3(1), 2701) Criminal Law €1208.1(6) ‘Alabama Supreme Court's decision that Alabama law permitted trial judge to impose death penalty despite jury recommendation of life without parole’ did not violate due process or equal protection elauses or Kighth Amendment; Alabama Supreme Court per- suasively explained why upward override was. permitted. U.S.C.A. Const Amends. 5, 8,14. 13, Constitutional Law ©270(1) Homicide =858(2) ‘Two days was sufficient notice from tral Judge that he might override jury recommen- dation of live imprisonment and impose death penalty, and, thus, notice of upward override of sentencing recommendation did not violate ‘due process; prosecution sought death penal- ty from beginning of tral, and defendant had ineentive to build ease from start for life imprisonment, rather than death. US.C.A. Const. Amends. 5, 14 14. Constitutional Law €270(1) Homicide 351 Alabama's sentencing scheme adequate ly channeled trial judge’s diseretion in over riding jury recommendation of life imprison- ment and imposing death penalty, and, thus, 85 FEDERAL REPORTER, 34 SERIES scheme did not violate due process; judge ‘was explicit about reasons for overriding sen- tence and noted consideration of jury's ree- ommendation. US.C.A. Const.Amends. 5, M, 15, Constitutional Law <=203 Criminal Law €1208.1(6) Alabama Supreme Court's decision elari- fying death penalty statute to allow judge to override jury recommendation of life impris- ‘onment and impose death sentence did not violate prohibition against ex post facto laws. USCA, Const. Art. 1, §§ 9, el. 8 10, el. 1, 16, Constitutional Law ¢=223 Homicide 346 Albama Supreme Court's statement that no white defendants were on death row for killing blacks did not establish diseriming tory purpose in violation of equal protection clause in upholding trial judge's decision to override jury recommendation of life impris- fonment and impose death penalty for white defendant's murder of black man; Court was attributing racial motive to jury's recommen- dation of life imprisonment, other factors supporting death penalty were defendant's moral depravity, shocking nature of the crime, and inability to explain jury's sen- tenee, and by setting out historical back- ground, Court was merely suggesting possi- ble reason for sentence that it would have reversed regardless of jury's underlying ‘methodology. U'S.C.A. Const.Amend. 14 Richard M, Kerger, Marshall & Melhorn, Toledo, Ohio, Dominick J. Graziano, Hearne Graziano & Nader, P.A., Tampa, Florida, for Petitioner appellant. Jeff Sessions, Attorney General for the State of Alabama, Montgomery, Alabama, Jo- soph G.L. Marston, III, Asst. Atty. General, Montgomery, Alabama, for respondents-ap- pellees Appeal from the United States District Court for the Southern Distriet of Alabama, Before KRAVITCH, EDMONDSON and BIRCH, Circuit Judges.HAYS v. STATE OF ALA. 1495 Ce uskS F.3d 1492 (11h C 1996) EDMONDSON, Cireuit Judge: Henry Hays petitioned for a writ of habeas corpus, alleging constitutional errors in the state court proceedings surrounding his eon- vietion for murder and sentence of death. ‘The district court denied relief. We affirm.’ PACTS AND BACKGROUND In 1081, the defendant Hemy Hays Hays"), his father Bennie Hays, and Hen- xy’s friend and later accomplice James “T- or” Knowles were following developments in the trial ofa black man acsased of killing a white man, ‘The three men, all members of the Ku Klux Klan, discussed the likely public reaction to the hanging ofa black man, Per- haps worried about property values, Bennie Hays told his son and Knowies to do nothing until Bennie had sold some apartments on Herndon Avenue. Shortly thereafter, according to Knowies's testimony, the property sale closed. Hays and Knowles got a rope, which they tied into ‘hangman's noose, and a gun from fellow Klansmen, ‘The two then set out to look for f black man, They randomly found Michael Donald, palled alongside him in their car, and asked for direetions. ‘They foreed him into ‘tho ear at gunpoint. Knowles made Donald empty his pockets; Knowles's tral testimony Indicates he wanted to be sure the vietim 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 cseape. ‘Aer a struggle, Hays and Knowles foreed Donald to the ground. Hays retrieved the noose, and the to 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 round. Autopsy reports showed Donald probably died from asphyaiation during this time, Nevertheless, Henry Hays slashed 1. Shorty befor the release of this opinion the Astterroriam and Effective Death Penalty Act of 196 wa signed iz iw the Act ast expe die the process af fora collateral review. Be- Sasoe we deny the peion according 10 pre Dona’s throat. Donald's body was found later that morning, hanging from a tree on Hemdon Avenue, Hays was charged after a two year investi- gation. The prosecution—after requesting continuance, ostensibly because it had not received some evidence—returned a new in- dictment one day before tral. At tral, 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 appe!- late court reversed, holding the trial judge lacked the power to override the jury’s desi sion. Hays v. State, 518 So2d 749, 767-68 (Ala Crim.App.1985)." The Alabama Supreme Court reversed the appellate court and rein- stated the death sentence. Bz parte Hays 518 S02 168, 7 (Ala 1980). The US. So- rome Court denied the petition for certiora- Hi. Hays 1. Alabama, 485 US, $29, 108 S.Ct 1090, 99 LEd2a 262 (1988). Petitions for post-conviction relief wore denied by the Ala- Dama state courts, and the US. Supreme Court again denied certiorari, The present petition for habeas relief was denied by the distriet court in a comprehensive opinion. DISCUSSION I. Trial Counsel's Strategie Devisions Hays argues his trial counsel was ineffec- tive within the meaning of Strickland w ‘Washington, 466 US. 668, 104 S.Ct, 2052, 80, L.Bd.2d 674 (1984), because he (1) failed to interview Knowles early enough; @) never spoke to several defense witnesses. before putting them on the stand; @) failed to ‘examine physical evidence early enough; (4) failed to request funds for an investigator; ) failed to attempt to show eause why Hays ‘was entitled to grand jury materials; (6) failed to use the testimony of Hays's father; (D failed to object to the introduction of uncharged eriminal offenses; (8) failed to object to the tril eourt’s failure to find miti- ating cireumstanees; (@) failed to argue ‘existing standards, we have no occasion to con sider whether the Act provides a basis for the denial of relief, "We are confident the Act does not help Haye,1496 Hays’s sentence was disproportionate to Knowles’ (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 ree- ‘ommendation, ‘The district court accepted Petitioner's as- sertions that these acts constituted deficient performance. The court held, however, that because the petitioner “completely omits any diseussion of the prejudice prong” of the ‘Strickland formulation, and beeause the “evi- dence 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. [1] Petitioner's brief in this court also includes no diseussion of how better perfor- ‘mance by trial counsel would have changed the likely outcome of the trial or sentence; and we agree with the distret court that absent such @ showing, Petitioner's Strick land claims fail. See, eg, Strickland, 466 US. at 698-94, 104 S.Ct. at 2068 (petitioner arguing ineffective assistance “must. show that there is a reasonable probability that, Dut 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 80 serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Lockhart v. Fretwell, 906 US. 364, 369, 113 S.Ct, 888, 842, 122 L.Ked.2d 180 (1998) (cita- ‘tions and internal quotation marks omitted) For those factors dealing with trial coun- sel's preparation of witnesses and develop- ‘ment 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, eg., Devier v. Zant, 3 Fd 1445, 1452 (11th Cir1993) (de- lining to grant relief where petitioner “has not carried his burden of showing: how the testimony of these witnesses would have ‘changed if they had been better prepared”) [2] For factors 7-11, Petitioner again fails to show with particularity how the deci- sion not to make the listed objections was constitutionally unreasonable or prejudicial. 85 FEDERAL REPORTER, 3d SERIES 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 dem- onstrating that mitigating eireumstances could have been proved under Alabama law. In view of the overwhelming evidence sup- porting the verdict, we conclude there has been no showing, under Strickland, that Hays's counsel's allegedly unreasonable er- rors affected the outcome of the guilt or penalty phases ofthe tral IL. Refusal to Grant a Continuance [8] Hays also argues he was denied effoc- tive assistance of counsel by the trial court's refusal of his request for @ continuance after the prosecution retuned a new indictment, alleging different facts, less than one day before tral was to begin, The new indit- rent charged robbery-murder; the old in- dictment had charged kidnapping murder. Kidnapping-murder was not punishable by death under the statate 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 rob- bery or the use ofa gun. AAs the Court noted in an analogous situs- ion, the Constitution “nowhere specifies any period which must intervene between the required appointment of counsel and tial.” Avery v. Alabama, 808 US. 444, 46, 60 S.Ct 321, 822, 81 L.Ed. 377 (1940), "Thus, in this context, the courts must “respect... the States’ determination of lea! socal pliy.” 308 US. at 447, 60 SCL at $22. “{Bleoad Aiseretion must’ be granted teial courts on matters of continuances; only an unreason- ing and arbitrary insistence upon expedi- tiousness in the face of a justifiable request for delay violates the right to assistance of counsel.” Morris v. Slappy, 461 US. 1, 1 12, 168 SCt. 1610, 1616, 75 LBA2d 610 (2988) (citations and internal quotation marks omitted. [4] This instance is not one where cir- ‘cumstances conspired to ereate a “presamp- tion” that ineffective assistance changed the likely outeome ofthe trial. In United StatesHAYS v. STATE OF ALA. 1497 tea 85 F.3d 1492 (LCi. 1996) 1% Cronie, 466 U.S. 648, 104 S.Ct, 2039, 80 L.B4.24 657 (1984), the Court carved a nar- row exception to the general rule that those persons claiming ineffective assistance must show prejudice. 465 US. at 658-69, 104 S.Ct. at 2046-47; ee also Stano u. Dugger, 921 F.2d 1125, 1162 (U1th Cir.1981) (en bane). Prejudice is presumed when counsel was ei- ther totally absent or prevented from assist- ing the accused during a critical stage of the proceedings, Cronic, 465 USS. at 662, 104 S.Ct, at 2049, or if counsel entirely failed to subject the prosecution's ease to meaningful adversarial testing. Id But, this ease is not ‘one of those situations. Therefore, Hays rust show prejudice. Because he eannot, his ineffective assistance claim fails. From the start, the strategy followed by Haye's trial counsel was to contend that Knowles acted alone and later implicated Hays to inerease his chances of a reduced sentence. The decision to present an alibi defense was not undermined by the proseeu- tion's change in its theory of the underlying folony. 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 argu- ‘ments for trial. Because the denial of the continuance had zo substantial impact on the orderly prepara- tion for trial, the eireumstanees 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 viola- tion ocurred when the petitioner's lawyers ‘were appointed on Monday for a trial sched- uled to begin Wednesday and a continuance ‘was denied. Nothing conerete indicated that extra time could have changed the trial’s outeome. For one thing, Avery's trial took place in “a County largely rural,” where access to witnesses is easier than elsewhere, Avery, 2. As a preliminary mater, the district judge held that Knowledge of statements in the possession of Tederal agents could be imputed to the state “This conclusion was based on the level of cooper ion between the slate prosecutors and the E.BIL_ See Und State. Antone, 603 F.2d 566, 570 (Sth Ci.1979) (looking to the “extent of 908 US, at 452, 60 S.Ct at 824-25. Here, Haye's attorney had aceess to the only two ‘witnesses to the murder. And, the record at Avery's trial showed an “absonce of any indi- cation ... that [counsel] could have done ‘more had additional time been granted” Id. ‘Hays's habeas eounsel claims that interviews and tests pertaining to the gun were neves- sary; but in the years sinee the trial, no evidence has emerged to show that such @ ‘course would have changed the evidentiary balance at trial. In addition, we also con- elude, as disenssed above, that Hays has failed to make out a compelling case for ineffective assistanee based on trial counsel's strategie decisions. ‘Thus, the facts in Avery, ‘where counsel was found not to be inoffee- tive, closoly parallel those here, And, the substantial evidence supporting the fact of the robbery suggests that even with more time, the verdiet would have been the same. ‘Thus, Hays was not deprived of “a trial whose result is reliable” Lockhart, 606 U.S, at $69, 118 S.Ct. at 842. TIL Suppression of Witness Testimony [5] Hays argues the state violated its ob- ligation to turn over exculpatory evidence in its possession by withholding some 20 state- ments 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 souree* Thus, Brady x Maryland, 373 US. 83, 88 S.Ct. 1154, 10 L.Ea.2d 215 (1968), requires a new tuial 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 de- fense, a reasonable probability exists that the ‘outcome of the proceedings would have been different.” See United States ». Moros, 866 24 1904, 1908 (11th Cir-1989) (setting out four-factor test for determining whether evi- dence is Brady material). cooperation between the two governments” to ‘determine whether possession should be imput fed) Citing no cases, the state argues here that the district court's holding was error. We de line to conclude thatthe district court erred this case onthe imputation sue.1498, ‘The issue is thas whether itis reasonably probable that the suppression of the state- rents caused a different outeome at trial. ‘The Supreme Court recently decided Kyles x Whitley, — US. —, 116 8.Ct. 1585, 181 1L-Ed.24 490 (1995), which diseussed the “rea- sonable probability” standard of Brady Without announcing new rules, the Court cited four puideposts for determining materi ality, First, “a showing of materiality does not require demonstration by a preponder- ance that disclosure of the suppressed ev- dence would have resuited ultimately in the defendant's acquittal” Kyles, — US. at — 1b SCL at 1566 (citing United States % Bagley, 478 US. 661, 680-84, 105 S.Ct 3875, 3883-84, 87 L.Bd.2d 481 (1985). Thus, undisclosed evidence ean require a new tral even if itis 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 under- tines confidence in the outeome ofthe trial.” Kyles, — US. at —, 115 SCL at 1566 (tations and internal quotation marks omit- ted) 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 isto be determined col lectively, not “item-by-item” Id at —, 115 SCt. at 1567. ‘The Supreme Courts reiteration, in Kyles, of the prejudice stan- dard of Brady is consistent with the thresh- od set by the district court, [6] Whether a reasonable probability ex- isted that the suppressed evidence would have changed the outcome is a mixed ques- tion of law and fact, and this court’s review is de novo. United States n. 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 ‘3. Knowles contends he withheld some aspects of the crime at first because, though he wanted fo confess, he was sil uncomfortable revealing to 85 FEDERAL REPORTER, 34 SERIES 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 state- ments would have east enough doubt on erit cal 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 80 inconsistent in his retelling of Donald’s mur- der that no rational juror could have credited Knowles's testimony. ‘The district court dis- agreed, writing that the suppressed state- ‘ments show not a pathologieal dishonesty, Dut rather a consistent progression from ob- fuseation to truth-teling. That is, Knowles's testimony, taken in the light of all of his statements, shows a pattern of first withhold- ing and then divulging more and more of his ultimate version of the crime? 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 possi- ble. In any event, we agree with the district Jjudge’s observation that trial counsel sue- ‘ceeded in compelling Knowies to admit to s0 many lies that the marginal impact of the suppressed statements would have been in- significant. ‘Thus, we reject Hays’s sugges- tion that the withheld statements show such pattern of inconsistency as to ereate a “reasonable probability” that a jury hearing them would have rejected Knowles's testimo- ny 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 hhave been highlighted only by reforeneo to the suppressed statements, ‘These are: (1) Knowles earlier said Donald voluntarily agreed to ride in the ear; he later said he used the gun to foree Donald into the ear. @) Knowles earlier said he and Hays picked Donald up without intending to Kil him; la- ter he said they did so intend. @) Knowles authorities just how “gruesome” the details of the crime were,HAYS v. STATE OF ALA. 1499 Citsanks F.3d 1092 (11K Ce. 196) earlier omitted any mention of the use of the gun; but he later admitted the gun was used, @) Knowles earlier said the eross-burning that occurred the night of the murder was unrelated to the murder, and later contra dicted this statement. ‘Taken together, these assertions donot 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- Durning), no obvious reason suggests that the Jury would have regarded the inconsistency fas particularly significant, Therefore, we conclude that Petitioner's argument on the materiality of the alleged Brady statements fails. IV. The State's Use of Allegedly Perjured ‘Testimony [71 Knowles testified at his plea hearing {in federal court (pursuant to which he was sentenced to life in prison) that he and Hays Gd 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 ‘rial, Knowles testified they set out that night with the intent to kill 2 black man, Napue v, Iinois, 360 U.S, 264, 268-10, 79 S.Ct. 1178, 1177, 8 LEd2a 1217 (1959), dic- tates that knowing use by the proseeution of perjurious testimony violates a defendant's 4. For example, when asked suocessvely about a ‘number of inconsistencies, Knowles admited ly ing about the fact that Donald yot into the car voluntarily ©. And you told [the investigating agent) in that same statement that you called Michael Donald over t the car and he got in voluntarily to show you the way toa club? A Yen a That's nnother ie, hak? A. Yes si ‘Ty. Trans, at R27. Knowles also admitted (more than once) that he had given numerous statements, in his early rendition of the murder in which he omited any mention of the we of « gun. For example right to due process. But, as the distret court points out, there has been no showing that Knowles's later, rather than ealie, tes- timony was false; and the circumstances of Knowie's testimony (which show a progres- sion toward greater revelation of the truth) Indieate it is likely the former was untrue. Because Hays can cite no ease holding that plea testimony must be consistent with later testimony, use of Knowies's testimony did not violate due process Hays also contends the prosecution uncon- stitutionally refused to disclose that Knowies’s testimony was obtained in ex- change for a plea bargain. Giglio v. United States, 405 U.S. 160, $2 S.Ct. 768, 31 L.Ed 2d 104 (1972), requires such disclosure, Hays hhas inferred that because Alabama never proseeuted Knowles for the murder, there ‘must have been an agreement; the state ‘responds there was none, Hays has present- ‘ed 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 Evidenee of Rob- bery-Murder [8] 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 be- yond a reasonable doubt was required under In re Winship, 897 US, 358, 361, 90 S.Ct 1008, 1071, 25 L.Kod.24 368 (1970). ©. Did you give {the previously read state- ment] to Mr Tom Calhoun of the Mobile Police Department? ‘he Yes, 1 dd (. Did you make any mention in that state ‘mei sbout any gun? ‘A No, si, dl not ‘Th trans, at R200, Finally, Hays's counsel did read statement Indicating an agent's recollection that Knowles sid "they the and Hays] dd not intend o hurt” Donald when they pleted him up. ‘Tr, Trane, st R208, ‘Ths testimony was also contradicted by other statements Knowles made on the stand "Thus, atleast three of what Petitioner regards ‘as the most effective uses ofthe suppressed state ments would infact ave added litle oF nothing tothe defense case1500 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 poekets to en- sure Donald had no weapons. ‘The distriet court found this satisfied the intent req ‘ment because Hays and Knowles intended to deprive Donald of weapons, but instead de- prived him of cash: “The fact that Donald did not have the item Knowles and the peti tioner were seeking does not render their intent ilusory, any more than the intent present in a mugger’s ‘Your money or your lif’ demand is negated when the vietim hands over his wateh in place of cash.” Hays contests the analogy, arguing there was no true intent to take weapons, only to ensure their absence. [8,10] ‘The intent to rob under Alabama Jw is the intent to take and earry 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, 180 (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 conviet for robbery-murder. [11] Hays also asserts there was no in- tent to Kill, He cites testimony by Knowles that the two set out to harass, not to kil, a black person. But as noted in the state post- conviction proceedings, under Alabama law “{plremoditation and deliberation may be formed while the killer is pressing the trig- ger that fired the fatal shot.” See Hays u. State, 599 So:2d 1230, 1238 (Ala.Cr-App.1992) (citations and internal quotation marks omit- ted). ‘Thus, in view of the extensive testimo- ny 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. 5._ As Chief Justice Marshall wrote in Cohens » Virginia, 19 US. (Wheat) 264, 399,55 LEA. 257 85 FEDERAL REPORTER, 3d SERIES VL. The Trial Judge's Override of the Jury Recommendation 112] After the jury recommended life without parole, the tral judge overrode the recommendation and sentenced Hays to death, At the time, Alabama law was unset- tied on what weight the trial judge had to accord the jury recommendation. Hays chal- lenges the ‘rial 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 Lav? Hays cites a passage from Beck v. State, 396 So.2d 645, 655 (Ala 1980) stating that “TE the Jury eannot agree on a sentence of death the defendant shall be sentenced to lie im: prisonment withoat parole” He anus that this language from Beck prechided the trial judge's override of the Jurys lif-without- parole recommendation, and he asserts that ‘Alabama’ fire to follow its ow aw violat- due process. {18} Petitioner is due no reli on the rounds that Alabama has misinterpreted its avn law. See Pulley ». Horvs, 465 US. 81, 41-48, 104 SCt 8M, 815, 19 LEA2d 2 (2984) (A federal court may not issue the ‘wit on the basis of a pereeved errr of state lav), See also Parker » Dugger, 498 US. 308, 327, 11 S.Ct. 71, 12, 112 Lid 2d 812 (2981) (White, J, dissenting) tis axiomatic that ... the views of the State's highest court with respect to state lw are binding on the federal court.” (ting eases) Gintarnal auotation marks omitted). And even if we, a8 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 concinde thatthe Alabama Supreme Contin Bx 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® And to say the least, no consHAYS ». STATE OF ALA, Cheats F.3d 1492 (LihCH. egregious error glares out of Ex parte Hoys’s ultimate conclusion that. the death penalty law under which Hays was sentenced permitted upward override’ Thus, the state courts’ alleged misinterpretation of Alabama law gives rise to no ground on which the writ, right issue, B. Was Hays Afforded the Minimum No- tice Required By the Constitution "That Death Was a Possible Sentence? [14] Petitioner's claim that there was in- adequate notice of the possibility of an over- ride must likewise fail; and Lankford 1. Ida- hho, 500 US. 110, 111 S.Ct. 1728, 114 Lided 178 (1991), is not to the contrary. In Lank- ford, 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 sen- tencing 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 prosecu- tion here sought the death penalty from the beginning of tral, in contrast to Lankford. Because the prosecution's tack gave Hays an Incentive to build a case from the start for Ife imprisonment rather than death, two days is sufficient notice. It isa maxim not tobe disregarded, that gener- al expressions, in every opinion, are to be faken in connection with the case in which those expressions are used, If they go beyond the ease, they may be respected, but ought not to contro the judgment in a subsequent sult when the very point is presented for decision. The reason for this maxim is obvious, The ‘question actually before the Court is investiga ed with care, and considered in its fll extent. 46. After discounting the Beck dictum, Alabama's Supreme Court perwiasively explained why up- ‘Ward override ls permitted. First, the court ex- plained that the quoted language could be Suared with Beck's holding ukimate sen- fencing authority lay with the judge—only by Interpreting the quoted language to mean that i the jury cannot unanimously agree on death, the nay shall recommend a sentnce of life imprison ‘mont. Ex parte Hays, 518 S02d 768, 775 (Ala 1986) 1996) or ©. Did the Alabama Sentencing Scheme Suffiiently Channel the Diseretion of ‘the Judge and Jury? [15] Hays argues further that the Ala- Dama sentencing scheme dividing the respon- sibilities of jury and trial judge at the time he was sentenced was standardloss and failed ‘to accord due deference to the jury's sen- tence recommendation. The Supreme Court rejected this argument in Harris x. Ala- bama, — US. —, 115 S.Ct. 1081, 180 L.Ed2d 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 diseretion 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 diseretion. Here, the trial judge was explicit about his reasons for over- riding the jury sentenee, and he noted that hhe considered the jury recommendation; there was therefore no violation of Hays's right to due process.? D. Did the Trial Court's ‘Upward Over- ride’ Violate the Ban on Ex Post Fac- to Laws? [16] Petitioner next contends the Als- ama Supreme Court’s decision in Br parte Second, the cour also explained why the 1975 ‘Alabama death penalty act explicitly allows the judge to overide in favor of life but not fp favor (of death. ‘This seeming omission Is because as Initially drafted, the capital sentencing statute simply did not allow 3 jury to recommend life imprisonment without parole In the first place. Once the Beck decision permitted juries t0 rec ‘ommend life, jages impliedly became permitted to override in favor of death.” Ser id. at 175-76 ‘As the district judge pointed out, there are other instances when Alabama law can most plausibly be read to afford the jury ultimate Sentencing authori, but where such isnot the cease (because the judge can override). The in Stan circumstances present another one of those ‘cases. Thus, we decline to hold that erroneous ‘pplication of state law tothe petitioner violated the Fourteenth Amendment. 77. Hays concedes in is bref that this arguments forcclosed by Harri but then goes on to make the argument anyway, apparenly in an effort to preserve the issue for higher appellate reviewif application of the death penal- ty 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 eonclu- sion, no need exists to address Petitioner's argument that the change in the law was substantive, not procedural, under Dobbert 2. Florida, 432 US. 252, 292-94, 97 S.Ct. 2290, 2298, 58 L.Bd.2d 344 (1977. EB, Did the Motive For the Override Vio- late the Equal Protection Clause? Petitioner argues that the Alabama Su- preme Court’s mention of the number of ‘white defendants on death row in Alabama for the killing of blacks (zero) indicates an intention to “balanee the books” by eonsider- ing the petitioner's race in determining sen- ‘tence, in violation of his right to equal protec- tion. But, this mention was only part of an extended discussion of elements favoring the ‘imposition of the death penalty. These ele- ‘ments were Hays's moral depravity, the shocking nature of the erime, and the inabili- ty to explain the jury's sentence. And, even if the Alabama Supreme Court did look at historical statistics, it might just as well not hhave been to “halanee 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, eg, Bx parte Hays, 518 So2d ai 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 eases “the death penalty had likely been imposed in an arbi- ‘trary or eapricious manner based upon racial \iscrimination”). By setting out this histori- eal background, the Alabama court was ‘morely suggesting a possible reason for 2 sentence that it would have reversed regard- less of the jury's underlying methodology. Beeause Hays has failed to meet his burden of showing a devision-maker acted with a diseriminatory purpose, his equal protecti 85 FEDERAL REPORTER, 34 SERIES argument fails. McCleskey v. Kemp, 481 US. 219, 296-97, 107 S.Ct. 1756, 1769, 95 L.Bd2d 262 (1987), In conclusion, Petitioner's eonvietion did ‘not violate constitutional rights. The deci- sion of the distriet court is AFFIRMED. ‘The petition for the writ of habeas corpus is DENIED. Enrique DIAZ, Plaintiff-Appellant, William J. SHEPPARD, Defendant- ‘Appellee. No. 94-3308, United States Court of Appeals, Eleventh Cireuit. June 25, 1996. Prisoner brought state court suit against attorney, who had represented class of pris- oners in § 1988 suit against prison alleging health care deficiencies, alleging that attor- ney had committed malpractice by settling case without giving adequate consideration to exercise needs of prisoners in solitary con- finoment. Following removal, attorney moved to dismiss for failure to state a claim, The United States District Court for the Middle Distrit of Florida, No. 94-758-Civ- 1-20, Harvey E. Schlesinger, J, denied mo- tion for remand and granted motion to dis- rmias and appeal was taken. ‘The Court of Appeals, Edmondson, Circuit Judge, held that prisoner had made state law claim for Tegal malpractice, not involving federal ques- tion Vacated and remanded. Logan, Senior Circuit Judge, sitting by designation, dissented and filed opinion