Robert Lee TARVER, Jr., Petitioner-Appellant,

                                                       v.

 Joe S. HOPPER, Commissioner, Alabama Department of Corrections, Bill Pryor, The Attorney General
of the State of Alabama, Respondents-Appellees.

                                                 No. 97-6998.

                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                               March 11, 1999.

Appeal from the United States District Court for the Middle District of Alabama. (No. CV-95-A-1035-N),
W. Harold Albritton, Judge.

Before TJOFLAT, EDMONDSON and COX, Circuit Judges.

         EDMONDSON, Circuit Judge:

         Robert Lee Tarver, Jr., using 28 U.S.C. § 2254, challenges his death sentence. We affirm the district

court's denial of relief.

                                               BACKGROUND

         Tarver, in 1985, was convicted of murdering Hugh Kite, the owner of Kite's Store. The State proved

at trial that Tarver shot Kite three times behind the store and stole Kite's wallet. See Tarver v. State, 

, 1235-36, 1239-41 (Ala.Crim.App.1986).

         The district court found that, in preparation for Tarver's trial, Tarver's lawyers "made a deliberate

strategic decision to concentrate on preparing for the guilt phase of the Petitioner's trial based on his

assessment of the likelihood of an acquittal [and] that the trial counsel dedicated substantial time to

interviewing numerous community members and relatives of the Petitioner, not only in an attempt to discover

evidence of the Petitioner's innocence, but also in an attempt to prepare for the sentencing phase." The district

court added "that there was substantial overlap in the trial counsel's preparation for the guilt and sentencing

phases of the trial."
        The parties continue to dispute whether, at the time of Tarver's trial, the prosecution had an agreement

with Tarver's associate, Richardson, for favorable treatment in return for Richardson's testimony. The state

courts and the district court rejected Tarver's claim(s) based on this alleged agreement.

        The jury found Tarver guilty and recommended life without parole. The Alabama trial court judge

overrode the jury's recommendation and sentenced Tarver to death.

        In 1986, the Supreme Court decided Batson v. Kentucky, 

, 

, 

(1986). About a month after the Supreme Court decided Batson, the Alabama Court of Criminal Appeals

affirmed Tarver's sentence and conviction on direct appeal. Tarver's petition for rehearing was denied, and

the Alabama Supreme Court denied relief. Four days after the Alabama Supreme Court denied Tarver's

petition for rehearing, the United States Supreme Court decided Griffith v. Kentucky, 

, 

, 

(1987), making Batson retroactive to all cases on direct appeal when Batson was

decided.

        Later, Tarver sought state collateral relief under Temporary Rule 20 (now, Rule 32) of the Alabama

Rules of Criminal Procedure and raised, for the first time, a Batson claim. After taking testimony, the Rule

20 judge rejected this claim and others, but he set aside Tarver's death sentence, ruling that Tarver's counsel

was ineffective during the penalty phase. The Court of Criminal Appeals remanded the case to the trial court

for written findings of fact and conclusions of law. The trial court then said that, but for the procedural bar

to the Batson claim, he also would find a Batson violation in Tarver's trial. The trial court repeated its

decision on the ineffectiveness of Tarver's counsel. The Alabama Court of Criminal Appeals reversed the

ineffectiveness decision, however, and ordered the trial court to reinstate the death penalty. The Alabama

Supreme Court and the United States Supreme Court later denied discretionary review.

        In 1995, Tarver filed a petition for writ of habeas corpus in federal district court. The case was

referred to a Magistrate Judge. The Magistrate recommended denying Tarver's petition, and the District

Judge agreed.



                                                      2
                                               DISCUSSION

        On appeal, Tarver advances his Batson claim, raises ineffective assistance of counsel claims, and

argues that the prosecution breached its duty under Giglio v. United States, 

, 

, 

(1972). We will address each of Tarver's claims separately, giving facts found by state trial and

appellate courts a presumption of correctness, as required by 28 U.S.C. § 2254(d). See Mills v. Singletary,

, 1277 n. 1 (11th Cir.1998).

A.      The Batson Claim

         We review de novo Tarver's claim that his Batson claim is not procedurally defaulted. See Tower

v. Phillips, 

, 210 (11th Cir.1993). Tarver makes two arguments why we should hear his Batson

claim. First, he says the federalism and comity concerns embodied by our respect for state procedural default

rules do not apply in this context because Alabama courts could review Tarver's claim for plain error and

because Alabama's Rule 20 courts had an opportunity to review Tarver's Batson claim.

         "[T]he mere existence of a 'plain error' rule does not preclude a finding of procedural default,"

however. Julius v. Johnson, 

, 1546 (11th Cir.1988). Likewise, state post-conviction

proceedings do not preclude a finding of procedural default. Tarver's argument would allow federal review

of procedurally defaulted claims in every state with state post-conviction proceedings. This result is clearly

against our precedent and practice. See Sims v. Singletary, 

, 1311 (11th Cir.1998) (we cannot

review procedurally-defaulted claims absent a showing of "cause and prejudice" or "actual innocence").

         Second, Tarver says we should decide his Batson claim because Alabama has not consistently

applied the procedural default rule on Batson claims. He relies on our statement in Cochran v. Herring, 

, 1409 (11th Cir.1995): "Alabama courts have not consistently applied a procedural bar to Batson

claims in cases like Cochran's." We think, however, that "cases like Cochran's" are cases where the defendant




                                                      3
(like Cochran) made a Swain objection at trial.1 Cochran distinguished 

, on this

ground. See 

. The Cochran court's later statement that Tarver "suggest[s]" that the

Alabama procedural default rule is applied inconsistently cannot sustain the weight Tarver places upon it, in

the light of the panel's explicit statement that "Alabama courts have not consistently applied a procedural bar

to Batson claims asserted in state collateral petitions where the defendant had raised a Swain objection at

trial." 

the Cochran court was not faced with a case where no Swain objection was made

at trial; and, therefore, they could make no binding decision about such a case. See New Port Largo, Inc.

v. Monroe County, 

, 1500 (11th Cir.1993) (Edmondson, J., concurring), cited with approval

in Combs v. Plantation Patterns, 

, 1533 (11th Cir.1997).

        We cannot say that Alabama courts have been inconsistent in applying the procedural default rule

to cases, like Tarver's, that is, where no Swain objection was made at trial. Tarver cites to no case (and we

can find none) in which an Alabama court ignored the procedural bar and decided a Batson claim when no

Swain objection was made at trial.2 Batson claims not raised at trial have been procedurally defaulted. See,

e.g., Ross v. State, 

, 496 (Ala.1991) (citing cases); Bonner v. State, 

, 99

(Ala.Crim.App.1990).

        We also reject Tarver's argument that his case is like Morrison v. Jones, 

(M.D.Ala.1996), and Floyd v. State, 

(Ala.1990). The petitioners in Morrison and Floyd both

raised Swain objections at trial, dropped the claim on appeal, but got a review on the merits of their Batson

claim. Tarver argues, according to Smith v. Murray, 

, 

, 

(1986),




   1
    Swain v. Alabama, 

, 

, 

(1965), was the predecessor to
Batson. To prove a Swain violation, a defendant had to show a systematic exclusion of blacks from juries
over time. See 

; Love v. Jones, 

, 819-20 (11th Cir.1991).
   2
     Tarver cites Watkins v. State, 

(Ala.Crim.App.1992), and cases cited by Watkins, to say
that "Alabama courts have not strictly or consistently applied the procedural default rule to Batson
claims." The pertinent cases are distinguishable because they all involved Batson claims raised on direct
appeal, and most involved plain error review.

                                                      4
that the appellate defaults in Morrison and Floyd are indistinguishable from his default "at the trial level."

But Alabama can pick its own procedural rules and has done so here. For some reason (like the chance for

trial courts to cure errors in the first instance) Alabama has chosen to allow Swain claims defaulted on appeal,

but not those defaulted at trial, to proceed to collateral review on the merits if the case was on direct appeal

when Batson was decided. Smith does not command—as Tarver says it does command—that Alabama treat

its trial and appellate defaults the same. Smith requires that we treat trial and appellate defaults equally, if

Alabama does so. We cannot require Alabama to treat trial and appellate defaults the same when Alabama

has not chosen to do so.3

B.       The Ineffective Assistance of Counsel Claims

         We review Tarver's ineffective assistance of counsel claims de novo. See Holsomback v. White, 

, 1385 (11th Cir.1998).

         Tarver argues that his trial counsel was constitutionally ineffective for failing to raise a Batson-type

objection at trial. We have said, however, that a lawyer who failed to make a Batson challenge before Batson

did not provide ineffective assistance of counsel. See 

; see also Poole v. United States,

, 565 (11th Cir.1987).

         Tarver says three facts distinguish his case from Pitts and Poole, but we disagree. First, Tarver says

his trial counsel knew of "the systematic use by the prosecutor of [per]emptories to exclude blacks from the

jury." Our examination of the record, however, shows that Tarver's trial counsel never said that blacks were

struck "routinely" because of their race alone. During state collateral proceedings, Tarver's trial counsel's




     3
    Tarver's argument that Griffith v. Kentucky, 

, 

, 

(1987),
allows him to raise his Batson claim in postconviction proceedings is foreclosed by Pitts v. Cook, 

, 1571 & n. 3 (11th Cir.1991). We decline his invitation to "revisit" Pitts.

                                                       5
testimony was that "on occasion," when he had been a prosecutor, he had struck black veniremembers based

on race alone.4

        Second, Tarver says his trial counsel could give no tactical reason for his failure to object to the

discriminatory use of peremptory challenges. This argument misses the point: to be effective, Tarver's

lawyer did not need a reason because he was not obligated to have anticipated the Batson decision. See 

. Tarver might complain that his lawyer was unimaginative, but a lack of creativity does not

constitute ineffective assistance. See 

Futility also justifies Tarver's lawyer's refusal to object

because no evidence in this case would have supported a Swain violation:5 the only valid objection available

at that time. See Lindsey v. Smith, 

, 1152 (11th Cir.1987); see also Reece v. United States, 

, 1465 (11th Cir.1997) (lawyer's failure to challenge kind of methamphetamine for sentencing was

not prejudicial when evidence shows court used correct kind of methamphetamine).

        Third, Tarver presents the testimony of two lawyers that lawyers in the community were at the

pertinent time routinely raising Batson-type objections at trial. The Rule 20 court in this case, however, found

that making a Batson-type challenge before Batson was "not the normal generalized practice." And, Alabama

courts have said that failure to make a Batson challenge before Batson is not ineffective. See Horsley v. State,

, 1357-58 (Ala.Crim.App.1988).

         Tarver says his trial lawyer was constitutionally ineffective by failing to prepare adequately for the

sentencing phase. Tarver says his trial counsel should have devoted more time to preparation and should have




   4
     These facts distinguish Tarver's case from Jackson v. Herring, 

(11th Cir.1995). In
Jackson, the petitioner introduced "overwhelming" evidence of a Swain violation, including the
prosecutor's testimony that there was widespread and systematic misuse of peremptory challenges by the
state. 

   5
    For reasons explained elsewhere, we are unpersuaded by the anecdotal evidence of two defense
lawyers (who had practiced in Russell County) about the use of Batson-type challenges and by the
practice of one prosecutor who struck jurors for race alone "on occasion," as evidence of a Swain
violation.

                                                       6
presented additional witnesses in the penalty phase of the trial. We think, however, that Tarver's trial lawyer

provided the assistance of counsel required by the Constitution.

        Tarver's trial lawyer testified that he consulted with a lawyer at the Southern Poverty Law Center

about how to proceed with Tarver's case and concluded that focusing on Tarver's acquittal of the capital

offense was the best approach to defending Tarver. He met with Tarver almost daily from the time he was

appointed until the trial. And he testified that either he, his co-counsel, or an investigator interviewed every

witness Tarver thought would be helpful as mitigation witnesses, including Tarver's mother, grandmother,

aunt, cousin, girlfriends, former employers, and members of the community. Tarver's lawyer said he

presented every witness he thought would be helpful. Tarver's lawyer did present the testimony of Tarver's

Uncle. Tarver's uncle said they were like brothers, that Tarver was no troublemaker, and had no criminal

"bent."6 Tarver's lawyer also presented an expert to testify about Tarver's successful polygraph test result,

a test in which Tarver denied killing Kite.

        Tarver's lawyer's preparation for sentencing was, at least, within the broad range of reasonable

performance we have recognized in other cases. See, e.g., Waters v. Thomas, 

, 1510-11 (11th

Cir.1995) (en banc) (holding no ineffectiveness shown under the circumstances and saying we "have held

counsel's performance to be constitutionally sufficient when no mitigating evidence at all was introduced").

Dobbs v. Kemp, 

(11th Cir.1986) (no ineffective assistance for failure to present mitigating

evidence because counsel feared damaging counter evidence); Stanley v. Zant, 

(11th Cir.1983)

(no ineffective assistance for talking only to defendant and defendant's mother and presenting no mitigating

evidence). Tarver's lawyer's effectiveness at the sentencing stage is strongly evidenced by the jury's decision

to recommend not death, but life without parole. We think Tarver's trial lawyer's efforts toward sentencing

are constitutionally adequate. See Burger v. Kemp, 

, 

, 3126, 

(1987) (lawyer not required to investigate and present all available mitigating evidence to be reasonable).



   6
    This testimony was substantially refuted by Tarver's criminal record.

                                                       7
         Tarver relies on the fact that Tarver's lawyer only spent four hours on Tarver's case between the

conviction and sentencing to argue that Tarver's lawyer did not adequately prepare for the sentencing stage.

Like the district court, we believe this argument is "inaccurate and misleading," because of the overlap in

preparation for the sentencing and guilt/innocence stages of the trial. For example, Tarver's lawyer's meeting

with the potential witnesses took place before sentencing.

        The record shows that Tarver's lawyer tried to create sufficient residual doubt about Tarver's guilt

during trial and sentencing to add, in reality, another mitigating factor to the jury's sentencing deliberations.

That the creation of lingering doubt was part of the strategy of Tarver's lawyer is evidenced by the polygraph

examiner's testimony at sentencing and Tarver's lawyer's closing sentencing argument. The polygraph

examiner testified that Tarver did not lie when asked, in different ways, if he killed Hugh Kite.7 During

Tarver's lawyer's closing argument at the sentencing hearing he said repeatedly that he did not want to

"challenge the verdict." But he—without drawing objection—added:

        I would hope that the evidence presented both in the case-in-chief last week and anything that you
        have heard today might be sufficient to raise in your mind at least a shadow of a doubt about the
        defendant's guilt, and if that doubt exists in your mind, I would pray that you would resolve it in
        favor of the defendant.

        A lawyer's time and effort in preparing to defend his client in the guilt phase of a capital case

continues to count at the sentencing phase. Creating lingering doubt has been recognized as an effective

strategy for avoiding the death penalty. We have written about it. See, e.g., Stewart v. Dugger, 

,




   7
     At the time of Tarver's trial, how a sentencing jury might consider residual doubt about the
defendant's guilt had not been directly addressed by Alabama courts. At any rate, Tarver's lawyer was not
unreasonable to believe that the use of evidence and argument linked to lingering doubt was sound
strategy. Tarver's trial judge accepted that Tarver's lawyer could present the polygraph test results to the
jury at sentencing.

                The jury recommended against death. Although in Alabama the judge is the ultimate
        sentencer, the jury's recommendation must be considered; and having the jury on the side of life
        is bound to help a defendant some.

                                                       8
855-56 (11th Cir.1989). In addition, a comprehensive study on the opinions of jurors in capital cases

concluded:

                    "Residual doubt" over the defendant's guilt is the most powerful "mitigating" fact.—[The
           study] suggests that the best thing a capital defendant can do to improve his chances of receiving a
           life sentence has nothing to do with mitigating evidence strictly speaking. The best thing he can do,
           all else being equal, is to raise doubt about his guilt.

Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think?, 98 Colum. L. Rev.

1538, 1563 (1998) (footnotes omitted); see William S. Geimer & Jonathan Amsterdam, Why Jurors Vote Life

or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am. J.Crim. L. 1, 28 (1988) ("[t]he

existence of some degree of doubt about the guilt of the accused was the most often recurring explanatory

factor in the life recommendation cases studied."); see also Jennifer Treadway, Note, "Residual Doubt" in

Capital Sentencing: No Doubt it is an Appropriate Mitigating Factor, 43 Case W. Res. L. Rev. 215 (1992).

Furthermore, the American Law Institute, in a proposed model penal code, similarly recognized the

importance of residual doubt in sentencing by including residual doubt as a mitigating circumstance. So, the

efforts of Tarver's lawyer, during trial and sentencing, to create doubt about Tarver's guilt may not only have

represented an adequate performance, but evidenced the most effective performance in defense to the death

penalty.

           We are also unpersuaded by the admission (during state collateral proceedings) of Tarver's lawyer

that he had not prepared adequately for sentencing. See Atkins v. Singletary, 

, 960 (11th

Cir.1992) (admissions of deficient performance are not significant). As noted by the Rule 20 court and the

District Court, Tarver's lawyer's decision to focus on an acquittal at the expense of sentencing was "a

deliberate decision." State v. Tarver, 

, 21 (Ala.Crim.App.1993) (quoting Tarver's lawyer). The

decision to focus on acquittal of capital murder was not unreasonable.8 Despite overwhelming evidence that



   8
     Tarver was indicted for committing one capital offense: a murder during a robbery in the first degree,
in violation of Ala.Code. § 13A-5-40(a)(2). To prove this crime, the state had to prove two lesser
included offenses: murder, see 

and robbery in the first degree, see 

The jury could acquit on murder or robbery in the first degree and still convict Tarver of the remaining

                                                        9
Tarver or his associate, Richardson, actually killed Hugh Kite, very little evidence made Tarver a better

candidate than Richardson to be found to be the actual killer. See Tarver v. State, 

, 1235-41

(Ala.Crim.App.1986) (describing evidence against Tarver); see also 

(lawyer's

decision to focus on innocence, even when evidence of guilt was great, rather than other forms of mitigation

did not make counsel constitutionally ineffective).

C.      The Giglio Claim

         Tarver argues that, when he was tried, a plea agreement existed between his associate, Richardson,

and the prosecution. The government's failure to disclose that agreement, says Tarver, violates Giglio v.

United States, 

, 

, 

(1972). Giglio requires the government to disclose

an agreement between a witness and the government that might motivate the witness to testify. See Brown

v. Wainwright, 

, 1464-65 (11th Cir.1986). The district court found that no agreement existed

when Tarver was tried.

        Richardson's attorney, Loftin, has testified on his understanding of the alleged agreement: "if Mr.

Richardson testified against Mr. Tarver ... he would receive some consideration for that in that he would get

a reduced sentence from the standpoint of not pleading to murder or capital murder."

        In contrast, Davis, the district attorney who prosecuted Richardson and Tarver, testified that he told

Loftin only this: "any cooperation [Richardson] gave us and if he told the truth in this matter would be taken

into consideration." Davis added that he did not "reach an understanding with Mr. Loftin regarding a

favorable disposition of Mr. Richardson's indictment in exchange for his testimony." In his own mind said

Davis, he believed that Richardson would not be tried for capital murder if Richardson testified for the

prosecution; but he did not say that to Loftin. Loftin could not recall when he and Davis specifically agreed




lesser offense. Tarver's lawyer tried to convince the jury that Richardson, not Tarver, was the actual
killer. If believed, Tarver would have been acquitted of murder and, therefore, murder during a robbery
in the first degree. Tarver's jury was told they had to find that Tarver committed the killing. They were
not instructed that Tarver could be found guilty if Richardson committed the killing.

                                                      10
that Richardson would plead guilty to robbery, but Davis was certain the plea agreement was decided after

Tarver's trial.

         We accept the district court's finding—because it is not clearly erroneous—that whatever exchange

may have taken place between Loftin and Davis did not ripen into a sufficiently definite agreement before

Tarver's trial: no disclosure under Giglio was required. We have said:

         The [Giglio ] rule does not address nor require the disclosure of all factors which may motivate a
         witness to cooperate. The simple belief by a defense attorney that his client may be in a better
         position to negotiate a reduced penalty should he testify against a codefendant is not an agreement
         within the purview of Giglio.

Alderman v. Zant, 

, 1555 (11th Cir.1994) (alternate holding). We have, however, recognized

that a promise in this context is not "a word of art that must be specifically employed." Brown v. Wainwright,

, 1464-65 (11th Cir.1986). And, "[e]ven mere 'advice' by a prosecutor concerning the future

prosecution of a key government witness may fall into the category of discoverable evidence." Haber v.

Wainwright, 

, 1524 (11th Cir.1985).

         But not everything said to a witness or to his lawyer must be disclosed. For example, a promise to

"speak a word" on the witness's behalf does not need to be disclosed. See McCleskey v. Kemp, 

,

884 (11th Cir.1985). Likewise, a prosecutor's statement that he would "take care" of the witness does not

need to be disclosed. See Depree v. Thomas, 

, 797-98 (11th Cir.1991). Some promises,

agreements, or understandings do not need to be disclosed, because they are too ambiguous, or too loose or

are of too marginal a benefit to the witness to count.

         The district court's finding of no "agreement or understanding ... between the District Attorney and

Richardson or Richardson's attorney" is not clearly erroneous.9 Compare Spaziano v. Singletary, 

, 1032 (11th Cir.1994) (standard of review) with United States v. Cain, 

, 680 (5th Cir.1979)

(existence of plea agreement is a factual issue). Loftin said that he only told his client, Richardson, that "if



   9
    We note that the state court also denied relief to Tarver on his Giglio claim in state collateral
proceedings.

                                                      11
he would testify ... it would be beneficial to him with respect to reducing the charge." And Davis testified

unequivocally at the Rule 20 hearing that no "arrangement or deal" existed. He testified only that

Richardson's testimony would be "taken into consideration," and such a statement is too preliminary and

ambiguous to demand disclosure. See 

(promise to "take care" of witness does not

require disclosure).

         Richardson testified at trial that he was not promised a deal. We think Loftin and his client were

merely trying to cooperate in hopes of improving their bargaining position later. Giglio, therefore, required

no disclosure. See 

.

         If Loftin really believed an agreement existed with the district attorney, then his client committed

perjury by testifying that no agreement existed; and Loftin would have been required to call upon Richardson

to correct his testimony or withdraw from representation. Loftin said he did not advise his client to change

his testimony nor did Loftin withdraw from representation.

         For the reasons we have discussed, we conclude that Tarver's claims were properly rejected by the

district court.

         AFFIRMED.




                                                     12