On June 23, 1992, the United States District Court for the Southern District of Georgia denied Alderman's petition for habeas corpus relief. On October 23, 1992, the district court granted Alderman a certificate of probable cause and thus this appeal. Because we find Petitioner's multiple allegations to be procedurally barred, an abuse of the writ, or in the alternative without merit, we AFFIRM the ruling of the district court.

The Petitioner, Jack E. Alderman ("Alderman"), and his wife, Barbara Alderman ("Mrs. Alderman"), lived in an apartment in Chatham County Georgia. Alderman was employed as an assistant manager at the local Piggly Wiggly supermarket. Mrs. Alderman was employed in the Tax Assessor's office for the City of Savannah. In conjunction with her employment, Mrs. Alderman maintained a $10,000.00 life insurance policy that paid double benefits in the event of accidental death. Mrs. Alderman also had another life insurance policy in the amount of $25,000.00 which named her mother as beneficiary.

Alderman met John Arthur Brown ("Brown"), later convicted as an accessory to Mrs. Alderman's murder, when both Alderman and Brown were employed in the vehicle maintenance department for the City of Savannah. Brown testified that on September 19, 1974, Alderman phoned Brown and asked him to meet him at the Piggly Wiggly supermarket. Brown stated that during this meeting Alderman asked Brown to kill Mrs. Alderman in exchange for half the insurance proceeds. Brown, although claiming not to take Alderman seriously, accepted the proposition.

On Saturday, September 21, 1974, Alderman asked Brown to come to his apartment. When Brown arrived, Alderman handed Brown a twelve-inch crescent wrench and instructed Brown to go into the bedroom and kill Mrs. Alderman. Testimony indicates that Brown was initially reluctant, but agreed to strike Mrs. Alderman when persuaded by the gun wielding Alderman. Brown entered the dining room and struck Mrs. Alderman in the head with the wrench. Mrs. Alderman cried out and ran into the living room where she confronted her husband. Alderman tackled Mrs. Alderman, then assisted by Brown, placed his hands over Mrs. Alderman's nose and mouth until she was unconscious.

Alderman and Brown carried Mrs. Alderman's limp body to the bathroom and placed it in the bathtub. Alderman started to fill the tub while Brown cleaned the blood stains from both the living and dining rooms. Alderman and Brown changed clothes and left the apartment for several hours. The two men went to the Piggly Wiggly supermarket where Alderman borrowed $100.00. Alderman and Brown then went to two local Savannah bars. At some time during the evening Alderman gave Brown the $100.00.

Alderman and Brown returned to the apartment around 10:00 p.m., removed Mrs. Alderman's body from the bathtub and wrapped it in a green quilt. The two men carried the body to Alderman's 1974 Pontiac and placed it in the trunk. Brown drove Alderman's car as Alderman followed on his motorcycle. Alongside a creek in Rincon, Georgia, Brown and Alderman removed the body from the trunk and placed it in the driver's seat. At Alderman's direction, Brown reached in the driver's window and released the emergency brake allowing the car to roll into the creek. The car stopped halfway into the creek. Again at Alderman's direction, Brown opened the car door, pulled Mrs. Alderman's body halfway out and allowed her face to fall into the creek. The two men removed the green quilt and the rubber trunk mat from the car and fled the scene on Alderman's motorcycle.

Later that evening, on September 21, 1974, Randy Hodges ("Hodges") and Terry Callahan ("Callahan") were driving home on Baker Hill Road and Highway 131. As they turned onto Highway 131 and approached Dasher's Creek, they noticed a car in the creek. Hodges jumped out, saw that there was a woman in the car and sent Callahan to Lamar Rahn's house to call for help. Effingham County Sheriff Lloyd Fulcher ("Fulcher") responded to the call. Upon his arrival at the scene, Fulcher found the victim's car in the water adjacent to the bridge. Fulcher noticed no apparent physical damage to the car. He ordered Mrs. Alderman's body to be removed from the car and taken to the hospital. Fulcher observed that there were no skid marks from the car but that motorcycle tracks were apparent in the area. Fulcher also noticed blood stains on the seat of the car and that the trunk mat was missing.

At the direction of Fulcher, Garden City police officer J.D. Crosby ("Crosby") went to Alderman's apartment only to find it locked. Crosby later returned to the apartment at approximately 2:30 a.m. and found Alderman there with a woman. Crosby informed Alderman that his wife had been involved in a traffic accident, and asked him to accompany Effingham County authorities to the hospital. Georgia Bureau of Investigation Agent H.H. Keadle ("Keadle") was present at the Effingham County hospital. Keadle and Fulcher noticed red/brown stains in the seat and crotch of Alderman's pants and on his belt. At that time, Alderman's clothes were taken from him.

Keadle's investigation confirmed Crosby's findings at the accident scene. Keadle also recovered a stained portion of a green rug and Alderman's motorcycle helmet, which had been removed from the Alderman's apartment by Mrs. Alderman's mother. Alderman's father, Jack Alderman, Sr., also gave the police the twelve inch crescent wrench that he had removed from Alderman's apartment.

Forensic Serologist Elizabeth Quarles, of the Georgia State Crime Laboratory, examined the blood found on Alderman's clothes. The blood type was consistent with Mrs. Alderman's blood. An examination of the vehicle revealed one palm print and four fingerprints which were stipulated as Alderman's. Brown's fingerprints, however, were not found on the car.

Dr. Charles Sullinger ("Dr. Sullinger") performed the autopsy upon Mrs. Alderman's body. Dr. Sullinger concluded that the laceration on the back of Mrs. Alderman's head was inflicted by a blunt instrument. Dr. Sullinger also concluded that because there existed only a small amount of blood in the car, the blow to Mrs. Alderman's head did not occur as a result of the accident. Dr. Sullinger found no evidence of any abnormalities in the heart, no scratches on the forearms and no evidence of strangulation. Dr. Sullinger concluded that the liquid in Mrs. Alderman's lungs revealed that Mrs. Alderman died as a result of asphyxia due to drowning.

Keadle's investigation led him to Brown. Brown eventually gave a statement incriminating himself and Alderman. At trial, Alderman testified on his own behalf and denied that he killed his wife.1 Alderman testified that on the night of September 21, 1974, he and his wife had an argument and that he left the apartment alone. He allegedly took a bus to Savannah where he spent some time at two local bars. Alderman testified that he returned home at approximately 10:00 p.m. but his wife was not at home. Alderman decided to go to Rincon, Georgia to see if Mrs. Alderman was at her grandparent's home.

Alderman testified that on his way to Rincon, he observed his car on the side of the bridge at Dasher's Creek. Alderman stopped his motorcycle and went to the car where he discovered his wife's body. Alderman stated that he picked up Mrs. Alderman's head and placed it in his lap. Upon hearing a noise, Alderman fled the scene in shock and fear. Alderman allegedly forgot about his wife's body, drove to Savannah and returned to a local bar. Alderman then went to Johnny Ganem's for breakfast with friends. While at breakfast, Alderman offered Gerlina Carmack (the female present in the Alderman's apartment when Officer J.D. Crosby arrived) a ride home. Alderman had allegedly stopped at his apartment to pick up a jacket when the police arrived and took him to the hospital where he identified his wife's body.

Alderman testified that he did not know why he had left his wife's body in the creek; that he recalled nothing of his trip back to Savannah; and, the fact that his wife was dead had completely left his mind. Appellant testified that he first realized the full facts surrounding his wife's death after being treated by a psychiatrist who was able to refresh his memory as to the events surrounding her death. He further testified that after being treated by the psychiatrist he realized that fear had caused him to leave his wife's body in the creek because he knew her family would blame him for her death.

Alderman was originally convicted in the Superior Court of Chatham County for the murder of his wife, Barbara Alderman. The jury determined guilt accompanied by two statutory aggravating circumstances: (1) Ga.Code Ann. Sec. 27-2534.1(b)(4), i.e., murder "committed ... for the purpose of receiving money or any other thing of monetary value"; and (2) Ga.Code Ann. Sec. 27-2534.1(b)(7), i.e., murder which was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." The jury sentenced Alderman to death. On direct appeal, the Supreme Court of Georgia affirmed his conviction and sentence. Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978), reh'g. denied, 439 U.S. 1122, 99 S. Ct. 1036, 59 L. Ed. 2d 84 (1979).

Alderman sought state habeas corpus relief in an action filed in the Superior Court of Chatham County, Georgia. Alderman v. Griffin, Civil Action No. 14385-C. On June 4, 1979, the state habeas corpus court held a hearing without restricting counsel in the presentation of evidence or argument. Relief was denied. The Supreme Court of Georgia subsequently denied Alderman a certificate of probable cause to appeal. The Supreme Court of the United States denied Alderman's petition for a writ of certiorari. Alderman v. Balkcom, 444 U.S. 1103, 100 S. Ct. 1068, 62 L. Ed. 2d 788, reh'g denied, 445 U.S. 973, 100 S. Ct. 1670, 64 L. Ed. 2d 252 (1980).

Alderman then filed an application for federal habeas corpus relief in federal district court. The district court ruled on two issues and granted relief as to the conviction and sentence. Alderman v. Austin, 498 F. Supp. 1134 (S.D.Ga.1980). On appeal, the Fifth Circuit Court of Appeals reversed the death sentence but affirmed the conviction. Alderman v. Austin, 663 F.2d 558 (5th Cir. Unit B 1981); Alderman v. Austin, 695 F.2d 124 (5th Cir. Unit B 1983) (en banc ). Alderman did not urge the district court to rule on the remaining issues, and proceeded with a new sentencing hearing in the Superior Court of Chatham County, Georgia.

A new sentencing hearing was held in the Superior Court of Chatham County in March, 1984. Alderman was again sentenced to death. The Supreme Court of Georgia affirmed the death sentence. Alderman v. State, 254 Ga. 206, 327 S.E.2d 168, cert. denied, 474 U.S. 911, 106 S. Ct. 282, 88 L. Ed. 2d 245, reh'g. denied, 474 U.S. 1000, 106 S. Ct. 419, 88 L. Ed. 2d 369 (1985). Alderman then filed a petition for state habeas corpus relief in the Superior Court of Butts County, Georgia. Alderman v. Kemp, Civil Action No. 86-V-524. The state habeas corpus court dismissed the petition on September 10, 1987 following a hearing on June 29, 1987. On October 28, 1987, the Supreme Court of Georgia denied the application for a certificate of probable cause to appeal. The United States Supreme Court denied the petition for a writ of certiorari. Alderman v. Georgia, 485 U.S. 943, 108 S. Ct. 1124, 99 L. Ed. 2d 285, reh'g denied, 485 U.S. 1030, 108 S. Ct. 1588, 99 L. Ed. 2d 903 (1988).

On June 23, 1988, Alderman filed a second federal petition for a writ of habeas corpus in the United States District Court for the Southern District of Georgia. The district court denied relief on June 6, 1989, without an evidentiary hearing. Subsequent to the entry of the judgment, both Alderman and the State ("Respondent") filed motions to alter and amend. On June 22, 1989, the district court entered an order denying Alderman's Motion to Alter and Amend but did not rule on Respondent's motion. During the pendency of Respondent's Motion to Alter and Amend, Alderman filed a notice of appeal.

On August 10, 1990, this Court dismissed the appeal for lack of jurisdiction based on Respondent's pending Motion to Alter and Amend. On remand, the district court entered an order on September 20, 1990 granting Respondent's Motion to Alter and Amend in part and denying the motion in part.2 Alderman then filed an appeal challenging both decisions by the district court while at the same time challenging the court's jurisdiction to consider his own appeal due to the failure to rule on an issue. On December 27, 1991, this Court again dismissed the appeal for lack of jurisdiction because the district court failed to rule on Petitioner's claim regarding the unconstitutional composition of the traverse jury.3

On February 21, 1992, the district court ordered the parties to submit briefs and scheduled an evidentiary hearing for March 18, 1992. On May 11, 1992, the district court denied Petitioner's request for an evidentiary hearing on the traverse jury issue, and refused to consider the issue at the evidentiary hearing. Subsequent to the evidentiary hearing, the deposition of Brown taken on May 20, 1992, was made part of the record. On June 23, 1992, the district court entered an order denying the petition for habeas corpus relief. On October 23, 1992, the district court granted Alderman a certificate of probable cause to appeal.

In this appeal, both Appellant and Appellee briefed the issues extensively. Appellant, Alderman, framed twenty-nine issues while Appellee, Zant, poses thirty-one. Petitioner attacks multiple rulings by both the state and federal courts which have adjudicated his claims.4 We find that the district court issued detailed, well reasoned orders addressing each of Petitioner's allegations, and AFFIRM the district court's rulings as stated in those orders. As supplement, this Court will address those issues raised by Appellant which it finds merit some discussion.

Petitioner asserts that his Sixth Amendment rights to effective assistance of counsel and confrontation and his Fifth Amendment right to due process were violated when the prosecution falsely denied and failed to disclose an alleged agreement with witness Brown in violation of Giglio, Brady, and Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).5 Petitioner asserts that Brown agreed to testify in exchange for a life sentence. This Court affirms the district court's finding that the claim is procedurally barred or in the alternative without merit.6

Pursuant to the doctrine of procedural default, a state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitution claim in state court, or who attempts to raise it in a manner not permitted by state procedural rules is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 2506, 53 L. Ed. 2d 594 (1977); Presnell, 835 F.2d 1567, 1580 (11th Cir.1988). "[W]here a state court correctly applies a procedural default principle of state law, Sykes requires the federal court to abide by the state court decision." Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.), cert. denied, 498 U.S. 832, 111 S. Ct. 96, 112 L. Ed. 2d 68 (1990).

A federal court is not required to honor a state procedural ruling unless the ruling rests on an independent and adequate state ground. Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989). Consequently, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Id. at 263, 109 S.Ct. at 1043. However, should a state court reach the merits of a claim notwithstanding a procedural default, the federal habeas court is not precluded from considering the merits of the claim. County Court of Ulster County v. Allen, 442 U.S. 140, 148-49, 99 S. Ct. 2213, 2220, 60 L. Ed. 2d 777 (1979); Dobbert v. Strickland, 718 F.2d 1518, 1524 (11th Cir.1983), cert. denied, 468 U.S. 1220, 104 S. Ct. 3591, 82 L. Ed. 2d 887 (1984). Where it is unclear whether the state court has reached the merits of a claim, problems in applying the independent and adequate state ground doctrine may arise. Dobbert, 718 F.2d at 1524. However, as here, where a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim. Harris, 489 U.S. at 264 n. 10, 109 S. Ct. at 1044 n. 10; Richardson v. Thigpen, 883 F.2d 895, 898 (11th Cir.1989), cert. denied, 492 U.S. 934, 110 S. Ct. 17, 106 L. Ed. 2d 631 (1989).

B. Procedural Default of the Brady/Giglio Allegation

The record reflects that the state habeas corpus court, focusing primarily upon the 1975 proceedings, stated that the allegation was procedurally barred pursuant to O.C.G.A. Sec. 9-14-517 even though the state habeas court continued and stated that even in the alternative, reaching the merits, the evidence presented by Petitioner did not support the allegation that there existed an agreement.8 This ruling in the alternative does not have the effect, as Petitioner argues, of blurring the clear determination by the court that the allegation was procedurally barred pursuant to O.C.G.A. Sec. 9-14-51. Rather, this Court finds the ruling evidences the court's thorough examination of the Petitioner's claims.

As the Supreme Court stated, "a state court need not fear reaching the merits of a federal claim in an alternative holding." Harris, 489 U.S. at 264 n. 10, 109 S. Ct. at 1044 n. 10. "By its very definition, the adequate and independent state ground doctrine rule requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law." Id. Thus, the Court observed that "as long as the state explicitly invokes a state procedural bar rule as a separate basis for a decision," an alternative ruling on the merits would not preclude the federal courts from applying the state procedural bar. Id.

Our reading of the order reveals that the state court simply commented upon the evidence presented by the Petitioner and then held, in a clear statement, that the allegations were procedurally barred under O.C.G.A. Sec. 9-14-51. Therefore, this Court finds no error in the district court's determination that Petitioner's Brady/ Giglio allegation concerning the 1975 guilt/innocence trial was procedurally barred.

Petitioner also asserts that the prosecution not only violated his rights in 1975, but also committed separate and independent constitutional violations in 1984 by failing to reveal the existence of the alleged understanding to the defense and the jury at Alderman's 1984 resentencing trial. It appears from the record that the state habeas court did not directly address the procedural default related to the 1984 trial but only stated generally that the Brady/ Giglio claim was procedurally barred. Petitioner failed to raise this allegation on direct appeal from the resentencing trial and did not raise the allegation until the subsequent state habeas corpus proceeding. The district court determined the issue to be subject to procedural default pursuant to O.C.G.A. Sec. 9-14-48(d).9 Thus, the issue on appeal is whether the district court erred in its finding.

The district court determined that precedent allowed the court to honor what it perceived as a state procedural default.10 The district court cited this Court's decision in Collier v. Jones, 910 F.2d 770 (11th Cir.1990) and applied the state procedural default rule, holding:

Although the Petitioner raised the Brady/ Giglio claim at the 1984 trial, the Petitioner did not present the claim on direct appeal as required by O.C.G.A. Sec. 9-14-48(d). O.C.G.A. Sec. 9-14-48(d) was amended in 1982, almost two years before Alderman's resentencing trial, to require compliance with Georgia procedural rules at trial and on appeal as a condition for habeas corpus relief. Georgia courts routinely honor procedural defaults under section 9-14-48(d), and undoubtedly would do so in this case. [Cit.]

* * * * * *

Finally, although the state court did not explicitly mention the 1984 procedural default, the record reflects that the Respondent made this argument to the Butts County habeas court.... Thus, consistent with this Court's finding that the Georgia courts would find Petitioner's claim procedurally defaulted, and in the absence of any evidence to the contrary, the Court may presume that the Butts County habeas court applied the established default rule which was briefed by the Respondent.

(Order entered June 22, 1992, at 23-24.)

This Court finds that the district court was correct in finding that there exists a procedural bar to Appellant's Brady/ Giglio allegation relating to Appellant's 1984 resentencing trial.

An adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show "cause" for the default and "prejudice attributable thereto," or demonstrate that failure to consider the federal claim will result in a " 'fundamental miscarriage of justice.' " Harris, 489 U.S. at 262, 109 S.Ct. at 1043 (citations omitted). In his brief, Petitioner asserts that there exists cause to excuse the defaults and that newly discovered evidence, namely the affidavit of Alex Zipperer, and prosecutorial misconduct caused the delay. Petitioner argues that "cause and prejudice" exist, excusing his failure to raise these claims on direct appeal, therefore, this Court should address the allegation on the merits. However, we agree with the district court's finding that there exists no cause or prejudice to except Petitioner's Brady/ Giglio allegations from being procedurally barred.

Although the Supreme Court has "declined ... to essay a comprehensive catalog of the circumstances that would justify a finding of cause," Smith v. Murray, 477 U.S. 527, 533-34, 106 S. Ct. 2661, 2666, 91 L. Ed. 2d 434 (1986), the Court has made it clear that "the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645, 91 L. Ed. 2d 397 (1986). It has been held that state misconduct may constitute grounds for cause. Amadeo v. Zant, 486 U.S. 214, 222, 108 S. Ct. 1771, 1776, 100 L. Ed. 2d 249 (1988); Dorman v. Wainwright 798 F.2d 1358, 1370 (11th Cir.1986), cert. denied sub nom. Dugger v. Dorman, 480 U.S. 951, 107 S. Ct. 1616, 94 L. Ed. 2d 801 (1987).

The Supreme Court has recently reiterated, "cause ... requires a showing of some external impediment preventing counsel from constructing or raising the claim." McCleskey v. Zant, 499 U.S. 467, 497, 111 S. Ct. 1454, 1472, 113 L. Ed. 2d 517 (1991), quoting Murray, 477 U.S. at 488, 106 S.Ct. at 2645. For cause to exist, the external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim. Murray, 477 U.S. at 488, 106 S.Ct. at 2645. The requirement of cause in the abuse-of-the-writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition. McCleskey, 499 U.S. at 498, 111 S.Ct. at 1472. "If what petitioner knows or could discover upon reasonable investigation supports a claim for relief ... what he does not know is irrelevant." Id. The omission of a claim will not be excused merely because evidence discovered later may have supported or strengthened the claim. Id.

Appellant asserts that the prosecution's misconduct was its failure to divulge the existence of a deal between itself and Brown. Appellant further asserts that cause existed because he lacked a good faith factual basis to assert the Brady/ Giglio claim. The record reflects that Appellant was both aware of the facts he contends support a potential Brady/ Giglio violation several years before 1987 and that Appellant did nothing to supplement the evidence to support the claim. That Appellant did not possess Zipperer's affidavit fails to establish cause if known or discoverable evidence could have supported the claim.

There is no evidence in the record as to why Mr. Zipperer was not subpoenaed to testify as a witness in the state court habeas proceeding. Furthermore, apart from Petitioner's bare allegation that there was an understanding and that the prosecution failed to disclose the same, Appellant has failed to substantiate his claim with any evidence of governmental interference or misconduct which would have prevented him from raising the claim in a timely fashion. In the absence of such evidence, this Court finds that the district court did not err in holding that Appellant could not establish cause and prejudice to exempt his claim from being procedurally barred. Therefore, we find that the district court correctly determined Appellant's 1975 and 1984 Brady/ Giglio claims to be procedurally barred.

In an extraordinary case, where a petitioner cannot show cause and prejudice, a federal court may still consider a procedurally defaulted claim if it determines that a fundamental miscarriage of justice has probably occurred. Johnson v. Singletary, 938 F.2d 1166, 1182-83 (11th Cir.1991) (en banc ). A fundamental miscarriage of justice can be said to have occurred when a court finds that a constitutional violation has resulted in the conviction of someone who is actually innocent. Murray, 477 U.S. at 496, 106 S.Ct. at 2639; Engle v. Isaac, 456 U.S. 107, 135, 102 S. Ct. 1558, 1575, 71 L. Ed. 2d 783 (1982). This Court has stated that the fundamental miscarriage of justice exception is only available upon a showing of "actual innocence," which we have defined as follows:

[A] petitioner may make a colorable showing that he is actually innocent of the death penalty by presenting evidence that an alleged constitutional error implicates all of the aggravating factors found to be present by the sentencing body. That is, but for the alleged constitutional error, the sentencing body could not have found any aggravating factors and thus the petitioner was ineligible for the death penalty. In other words, the petitioner must show that absent the alleged constitutional error, the jury would have lacked the discretion to impose the death penalty; that is, that he is ineligible for the death penalty.

Johnson, 938 F.2d at 1183. One year later, the Supreme Court cited, quoted, condensed and restated the Johnson actual innocence test holding that, in order "to show actual innocence one must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Sawyer v. Whitley, --- U.S. ----, ----, ---- & n. 15, 112 S. Ct. 2514, 2517, 2523 & n. 15, 120 L. Ed. 2d 269 (1992) (internal quotations deleted).

In our later decision, Johnson v. Singletary, 991 F.2d 663, 667-68 (11th Cir.1993), we recognized that the actual innocence exception stated in the en banc Johnson decision and the Supreme Court's Sawyer decision replaced the old "ends of justice" exception to the abuse of the writ bar. Petitioner's action involves procedural default bars and abuse of the writ bars, whereas Johnson and Sawyer involved abuse of the writ bars only. However, the difference does not matter as the Supreme Court has concluded, "from the unity of structure and purpose in the jurisprudence of state procedural defaults and abuse of the writ that the standard for excusing a failure to raise a claim at the appropriate time should be the same in both contexts." McCleskey v. Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 1470, 113 L. Ed. 2d 517 (1991).

In regards to a defaulted sentence stage claim, it is clear that the Sawyer formulation of the actual innocence test must be applied because the Johnson and Sawyer decisions dealt with alleged sentence stage errors. However, in regards to the defaulted guilt stage claims, there is a split of authority. Some habeas petitioners suggest that the Sawyer formulation of the actual innocence test applies only to the sentence stage claims while the "colorable showing of innocence" test announced in Kuhlmann v. Wilson, 477 U.S. 436, 454 n. 17, 106 S. Ct. 2616, 2627 n. 17, 91 L. Ed. 2d 364 (1986) (plurality opinion), is the proper exception to apply to guilt stage claims.11 See Schlup v. Delo, 11 F.3d 738, 740 (8th Cir.1993), cert. granted, --- U.S. ----, 114 S. Ct. 1368, 128 L. Ed. 2d 45 (1994); Montoya v. Collins, 988 F.2d 11, 13 (5th Cir.), cert. denied, --- U.S. ----, 113 S. Ct. 1630, --- L.Ed.2d ---- (1993).

The Fifth Circuit appears to have held that the Kuhlmann formulation applies to guilt stage claims, while the Sawyer formulation is restricted in application to sentence stage claims. Montoya v. Collins, 988 F.2d at 13. On the other hand, the Eighth Circuit has expressly held that "the more subjective Kuhlmann test" is no longer applicable even to guilt stage claims; instead, the Sawyer test applies equally to guilt and sentence stage claims. Schlup, 11 F.3d at 740, citing Cornell v. Nix, 976 F.2d 376 (8th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S. Ct. 1820, 123 L. Ed. 2d 450 (1993).

This Circuit has not taken a position on the question of whether the Kuhlmann or Sawyer version of the actual innocence test is applicable to guilt stage claims. The Supreme Court has recently granted certiorari in the Schlup case to decide that very question. Schlup v. Delo, --- U.S. ----, 114 S. Ct. 1368, 128 L. Ed. 2d 45 (1994).

Notwithstanding, we conclude that the facts of this case are such that regardless of the Supreme Court's decision as to whether the Kuhlmann or the Sawyer formulation of the actual innocence test applies, the decision we reach today will be the same. This petitioner has not made a sufficient showing of actual innocence under either the Kuhlmann or the Sawyer test. Therefore, we hold that petitioner is not entitled to the benefit of the fundamental miscarriage of justice exception to overcome the procedural or abuse of writ bars against his allegations.

Although this Court finds Appellant's 1975 and 1984 Brady/Giglio issues to be procedurally barred, we feel it necessary to briefly discuss the merits of the claim and the district court's factual findings. Appellant asserts that the state entered into an implicit understanding with John Brown that he would receive a life sentence in return for his testimony at Appellant's trial. Appellant contends that the prosecution's failure to disclose the alleged deal violates Brady/Giglio and constitutes prosecutorial misconduct.

A prosecutor has a duty to provide a defendant with all evidence in the state's possession materially favorable to the defendant's defense. Brady, 373 U.S. at 87, 83 S.Ct. at 1196. When the defendant's guilt or innocence may turn on the reliability of a witness, the prosecutor's nondisclosure of the evidence affecting the credibility of this witness falls within this general rule. Napue, 360 U.S. at 269, 79 S.Ct. at 1177. Promises made by the state to a witness in exchange for his testimony relate directly to the credibility of the witness. Giglio, 405 U.S. at 155, 92 S.Ct. at 766. Therefore, where the credibility of the witness is an important issue in the case, without which there could have been no indictment and no evidence to carry the case, the prosecutor has a duty to disclose evidence of any promises made by the state to such a witness in exchange for his testimony. Id. at 154-55, 92 S.Ct. at 766.

As this Circuit has explained, "Giglio does not require that the word 'promise' is a word of art that must be specifically employed." Brown v. Wainwright, 785 F.2d 1457, 1464-65 (11th Cir.1986). Nor is the phrase "any understanding or agreement" limited to bona fide enforceable grants of immunity. Haber v. Wainwright, 756 F.2d 1520, 1524 (11th Cir.1985). "Even mere 'advice' by a prosecutor concerning the future prosecution of a key government witness may fall into the category of discoverable evidence since it constitutes an informal understanding which could directly affect the witness's credibility before the jury." Id. This Circuit has emphasized that "the thrust of Giglio and its progeny has been to ensure that the jury know the facts that might motivate a witness in giving testimony." McCleskey v. Kemp, 753 F.2d 877, 884 (11th Cir.1985) (en banc), aff'd on other grounds, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), quoting Smith v. Kemp, 715 F.2d 1459, 1467 (11th Cir.), cert. denied, 464 U.S. 1003, 104 S. Ct. 510, 78 L. Ed. 2d 699 (1983).

On remand from this Court, the district court conducted a evidentiary hearing concerning whether there was an understanding, agreement or promise between Brown and the state within the meaning of Giglio. After conducting the evidentiary hearing and receiving the testimony of John Brown by deposition, the district court found that the claim was procedurally defaulted, an abuse of the writ, or in the alternative without merit.

Having reviewed the evidence, the district court made specific credibility and factual findings which are entitled to be reviewed under the clearly erroneous standard.12 Trust Co. Bank v. MGM/UA Entertainment Co., 772 F.2d 740, 746 (11th Cir.1985). The court found, "that whatever impression Zipperer may have had or communicated to Brown, it did not serve as the motivating factor for Brown's testifying against the Petitioner." (R4-85-36). The district court further found that, "Brown's testimony was not shaded or influenced by any deals with the prosecution. By his own admission, Brown refused to entertain any suggestion of a guilty plea until after he was sentence (sic) to death. (Brown Dep. at 7)" (R4-85-36).

The rule announced in Giglio is clear and dispositive of the instant issue. The rule states that there must be a full disclosure of any agreements entered into between the prosecutor and the witness which may motivate the witness to testify and which may affect the outcome of the trial. The 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.

The district court's findings are supported by the record. The record indicates that there was no understanding in exchange for or motivating John Brown's testimony. "Any impression formed by Zipperer was nothing more than a lawyer's hope that his client would come to his senses and allow him to enter plea negotiations with the district attorney, and a criminal defense attorney's expectation that the fact that Brown had testified would provide him with an entree in plea negotiations." (R4-85-41). The record fully supports the district court's finding of no promise, understanding or agreement that would fall within the parameters of the rule announced in Giglio.

This Court further finds that there is nothing in the record to support Petitioner's assertion of prosecutorial misconduct or other violation of Petitioner's rights in order to exempt Petitioner's claims from procedural default. Therefore, we find Petitioner's allegations to be procedurally barred and state in the alternative that were we to reach the merits, Appellant would be unsuccessful. Where there is, in fact, no agreement, there is no duty to disclose.

Appellant asserts that the trial judge erred in excluding certain alleged mitigating evidence from the guilt/innocence phase of the 1975 trial, the penalty phase of the 1975 trial, and the 1984 resentencing hearing. Appellant focuses his claim on two specific evidentiary rulings, namely, (1) the alleged limitations placed on the testimony of both Dr. Herbert Smith and himself regarding his hypnotic treatment, and (2) the exclusion of a statement purportedly made by Jon Sato ("Sato"). This Court finds that the trial court did not err in its exclusion of evidence and testimony pertaining to the hypnosis of the Appellant, nor did the 1984 resentencing court err in excluding Sato's proffered statement.

As a general rule, a federal court in a habeas corpus case will not review the trial court's actions concerning the admissibility of evidence. Lisenba v. California, 314 U.S. 219, 228, 62 S. Ct. 280, 286, 86 L. Ed. 166 (1941); Osborne v. Wainwright, 720 F.2d 1237, 1238 (11th Cir.1983). However, where a state court's ruling is claimed to have deprived a defendant of his right to due process, a federal court should then "inquir[e] only to determine whether the error was of such magnitude as to deny fundamental fairness to the criminal trial...." Osborne, 720 F.2d at 1238, quoting Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.), cert. denied sub nom. Hills v. Maggio, 429 U.S. 850, 97 S. Ct. 139, 50 L. Ed. 2d 124 (1976).13 When reviewing state evidentiary rulings, the established standard is that habeas relief will only be granted if the state trial error was material as regards a critical, highly significant factor. McCoy v. Newsome, 953 F.2d 1252, 1256 (11th Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 2283, 119 L. Ed. 2d 208 (1992) (citations omitted).

At Appellant's original trial, Appellant sought to introduce testimony concerning his hypnotic treatment. The trial court instructed counsel for both parties to avoid all references to the hypnotic treatment of the Appellant relying upon Emmett v. State, 232 Ga. 110, 205 S.E.2d 231, 235 (1974) (The Supreme Court of Georgia concluded that according to state law, the reliability of testimony while under hypnosis had not been established; therefore, statements made while the witness was in a trance were inadmissible).

On direct appeal, the Supreme Court of Georgia concluded that under state law, "any reference to the hypnosis of the appellant was inadmissible, and, therefore, the trial court did not err in refusing defense counsel's request to examine their expert witness concerning this matter." Alderman v. State, 246 S.E.2d at 651. Our review of the record reveals that the district court did not err in finding that the narrow exclusion of any reference to the word hypnosis or any statements made by Petitioner while in a hypnotic trance did not deny Petitioner a fundamentally fair trial.

In support of his allegation, Appellant mistakenly relies upon the Supreme Court decision in Rock.15 The issue before the Court in Rock was "whether a criminal defendant's right to testify may be restricted by a state rule that excludes her posthypnosis testimony." Rock, 483 U.S. at 53, 107 S.Ct. at 2710. (emphasis added). In Rock, the trial judge held a pretrial hearing on the motion to exclude petitioner's testimony and concluded that no hypnotically refreshed testimony would be admitted. The court limited the Petitioner's testimony to the matters remembered and stated to the examiner prior to her being placed under hypnosis. The Supreme Court ruled that Arkansas' per se rule excluding all posthypnosis testimony infringes impermissibly on the right of a defendant to testify on his/her own behalf. Id. at 61, 107 S.Ct. at 2714. This holding in Rock is completely inapplicable to the issue raised by the Appellant and is therefore neither binding nor persuasive.

In the instant case, the court allowed Appellant to testify about his amnesia and about his medical treatment by Dr. Smith. The court permitted Appellant to testify as to his hypnotically refreshed recollection of the events of the day and night of his wife's death. The court also allowed Dr. Smith to testify that he had refreshed Mr. Alderman's memory by acceptable scientific means and was later cross-examined by the state about the practice of hypnosis. It appears that the court only ruled that neither party could refer to the word hypnosis in relation to the Appellant and could not introduce statements made while Appellant was in a hypnotic trance. All other testimony was seemingly admitted. We agree with the district court's determination, and find that the exclusion did not deprive Appellant of a fundamentally fair trial.

The second part of Appellant's third allegation focuses on the exclusion of evidence at Appellant's 1984 resentencing trial pertaining to a statement purportedly made by Sato. The record reveals that Appellant only proffered his testimony of what Sato said Brown had told him.16 At the time of the resentencing, Jon Sato could not be located. The court summarized the issue before it stating:

I want to be sure that we have an understanding of the factual background. It's my understanding that Mr. Alderman contends that a prisoner in the Chatham County Jail named Sato told him something that John Brown allegedly told Sato.... That this conversation took place--and all of these conversations took place--several months after the trial, conviction, and sentencing of John Brown, as well as Alderman.... That you have made an effort to locate Mr. Sato? ... It's nine years, and you have been unable to find him.

(1984 Resentencing Trial transcript Vol. 6, p. 1248-49)

The court then ruled that Mr. Alderman would not be allowed to testify as to the alleged conversation he had with Sato concerning what Sato contends he was told by Mr. Brown.17 However, Appellant was allowed to go on the stand, make a proffer, and allowed to identify the statement.18

It is generally true that a defendant must be permitted to introduce any mitigating evidence at the sentencing phase of a capital case if the evidence relates to the defendant's character, record or the circumstances of the particular offense. Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973 (1978). However, a judge still retains the discretion to exclude otherwise inadmissable evidence which it determines lacks considerable assurances of trustworthiness. Chambers, 410 U.S. at 300, 93 S. Ct. 1048.

Therefore, we agree with the district court's finding that the trial court did not abuse its discretion in excluding the alleged Sato statement, and further that no adverse constitutional implications arose from the exclusion of such evidence.19

Appellant asserts that he was deprived of his Fifth, Eighth and Fourteenth Amendment rights to a fair trial, as well as his Sixth, Eighth and Fourteenth Amendment rights to effective assistance of counsel and his Fifth Amendment right to compulsory process, by the trial court's denial of his Motion for Continuance prior to his original 1975 trial. The motion was based upon the alleged unavailability of witness, Iris Duncan.20 The district court held, and we affirm, that no constitutional violations were occasioned by the trial court's denial of Appellant's Motion for Continuance.

When an individual is asserting a denial of a continuance as a basis for habeas corpus relief there must be a showing of an abuse of discretion and that the trial court's actions were so arbitrary as to result in the denial of due process. Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Circ. Unit B 1981). Trial courts are afforded broad discretion in determining whether a continuance should be granted. Morris v. Slappy, 461 U.S. 1, 11, 103 S. Ct. 1610, 1616, 75 L. Ed. 2d 610 (1983); Corbin v. State, 212 Ga. 231, 91 S.E.2d 764, 766, cert. denied, 351 U.S. 987, 76 S. Ct. 1057, 100 L. Ed. 1501 (1956); Gallimore v. State, 166 Ga.App. 601, 305 S.E.2d 164 (1983). There is no particular mechanistic device for determining whether the denial of a continuance results in a violation of due process. Unger v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849-50, 11 L. Ed. 2d 921 (1964). The answer must be derived from the circumstances of the particular case, especially the reasons presented to the trial judge at the time the request is denied. Id.

There is no evidence that the trial court abused its discretion in denying the Appellant's motion for a continuance.21 Nor is there any evidence that the denial of a continuance was arbitrary as to result in the denial of due process. Therefore, we find that no constitutional violation was occasioned by the trial court's denial of appellant's motion for continuance.

Appellant challenges the verdict stating that the evidence did not support a finding of the seventh statutory aggravating circumstance. We, like the district court, disagree. We find that the state court, the state supreme court and the district court properly found that there was sufficient evidence to support a finding of Georgia's (b)(7) statutory aggravating circumstance, namely that the offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. Therefore, we agree with the district court finding that no federal constitutional deprivation was occasioned and that there was sufficient evidence to corroborate the testimony of Brown.

Based upon the foregoing discussion, and for the reasons stated in the district court's dispositive orders regarding those issues enumerated in footnote 4, supra, we AFFIRM the district court's denial of relief.

AFFIRMED.