Gary Leon BROWN, Petitioner-Appellant,

                                                   v.
  Charlie P. JONES, Warden, Bill Pryor, Attorney General, State of Alabama, Respondents-Appellees.

                                            No. 99-14261.

                                    United States Court of Appeals,

                                           Eleventh Circuit.
                                            June 29, 2001.

Appeal from the United States District Court for the Northern District of Alabama.(No. 95-01792-CV-C-S),
U.W. Clemon, Chief Judge.
Before ANDERSON, Chief Judge, and EDMONDSON and DUBINA, Circuit Judges.

        ANDERSON, Chief Judge:

                              I. FACTS AND PROCEDURAL HISTORY
        On May 26, 1986, Gary Leon Brown, Archie Bankhead, James Bynum, and Jimmy Davenport went
fishing near Locust Fork, Alabama, about thirty miles north of Birmingham. The men drank alcohol while

they fished and then went to Chuck and Willie's Lounge in Birmingham, where they continued to drink and
played pool.
        While at the lounge, Brown, Bankhead, and Bynum discussed the possibility of going to Jack

McGraw's home in Pinson, Alabama, to obtain money. Brown and Bynum were both familiar with McGraw.
The four men then left the lounge and headed to McGraw's home. Davenport drove, and Bynum gave
directions. When they arrived at McGraw's home that night, Davenport remained in the car, while Brown,

Bankhead, and Bynum went to McGraw's door and knocked. McGraw let them in and said that he could not
"party" with them that evening because he had to go to work the next morning. When the three men began

to leave, McGraw walked outside with them. Bankhead then grabbed McGraw in a headlock, and Brown and

Bynum began hitting McGraw. Davenport also saw Brown make a "slashing" movement at McGraw's neck.

McGraw and Bankhead fell to the ground and struggled. Bankhead, Brown, and Bynum then picked up
McGraw and carried him inside his home. Brown recalled Bankhead saying that they would have to kill

McGraw, because McGraw had seen Bankhead. Brown admitted that he repeatedly stabbed McGraw in the

back with a small pocket knife. He claimed that either Bankhead or Bynum caused the fatal wounds to
McGraw's neck area.1

        After killing McGraw, Bankhead, Brown, and Bynum gathered McGraw's possessions, loaded them

in Davenport's car, and drove to Bankhead's house, where they divided the stolen property and the money
from McGraw's wallet and burned their clothes which were covered in blood. According to Bankhead's wife,

the men joked about the murder. She overhead Brown telling Bankhead how he "kept stabbing and stabbing

and stabbing and stabbing" McGraw. She also heard Bankhead and Bynum stating that they had cut
McGraw's neck. The next afternoon McGraw's body was discovered by a neighborhood child.

        A few days later Jefferson County deputy sheriffs found Brown at Bankhead's house. Brown

accompanied them to the Center Point substation and gave them a statement that he and the other three men

had gone fishing, to the bar, and then home. After giving this statement, Brown rode with the officers to
Bynum's house, where the officers questioned Bynum while Brown remained in the squad car with one of

the officers. Bynum told the officers that Brown had inflicted all the stab wounds on McGraw and struck his
head with a skillet. Brown claims that the officers returned to the squad car, arrested him, and told him that
Bynum's statement reflected that Bankhead stabbed McGraw and was the ringleader. Brown then gave a

second statement to the officers to the effect that Bankhead had inflicted all of the wounds on McGraw.
Later, after Brown learned that Bankhead had been arrested, Brown gave a third statement in which he

admitted that he stabbed McGraw in the back repeatedly with a pocket knife and participated in the robbery
along with Bynum and Bankhead.
        Brown was indicted for the capital offense of the murder of Jack McGraw during a robbery in

violation of § 13A-5-40(a)(2), Code of Alabama 1975. Brown's appointed counsel was Russell T. McDonald,
Jr. The jury found Brown guilty of capital murder as charged in the indictment. After the penalty phase of

the trial, the jury returned an advisory verdict for death by a vote of ten to two. After a sentencing hearing,

the trial judge accepted the jury's recommendation and sentenced Brown to death. On direct appeal, the

Alabama Court of Criminal Appeals, Brown v. State, 

(Ala.Crim.App.1988), and the Alabama

Supreme Court, Ex parte Brown, 

(Ala.1989), affirmed Brown's conviction and death sentence.

The United States Supreme Court denied Brown's petition for writ of certiorari. See Brown v. Alabama, 

, 

, 

(1989). On February 16, 1990, Brown filed a petition for


    1
     McGraw suffered at least fifteen cuts to his neck, including several deep wounds striking his carotid
artery and jugular venous complex. He suffered fifty-nine stab wounds to his back, the deepest of which
were two inches deep.
post-conviction relief under Temporary Rule 20 of the Alabama Rules of Criminal Procedure.2 Brown twice

amended his Rule 20 petition. An evidentiary hearing was held on Brown's petition, and on January 21, 1990,
the Rule 20 court denied the petition. The Alabama Court of Criminal Appeals affirmed the denial of the

Rule 20 petition, and the Alabama Supreme Court denied Brown's petition for writ of certiorari. See Brown

v. State, 

(Ala.Crim.App.), cert. denied, 

(Ala.1995). Brown then petitioned

the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.3 On October 1, 1999, the district
court denied the petition, holding that most of Brown's federal constitutional claims were procedurally barred
and that his remaining claims failed on the merits.

         On appeal, Brown argues that his trial counsel was ineffective at both the guilt and penalty phases

of his trial because he failed to investigate and present evidence of Brown's drug and alcohol abuse and its
effects upon his mental state at the time of the crime. He also argues that his trial counsel was ineffective in
failing to question the jurors during voir dire to identify those who were biased in favor of the death penalty.

Brown then argues that his trial was rendered fundamentally unfair because Davenport's testimony was
procured through coercive prosecutorial tactics. For the reasons stated below, we affirm the district court's
denial of Brown's habeas petition.4
                                               II. DISCUSSION

A.       Ineffective Assistance for Failure to Introduce Evidence of Brown's Alcohol and Drug Use
         Brown asserts that he received ineffective assistance during the penalty phase of his trial because
counsel failed to investigate and present evidence of Brown's drug and alcohol use and its effects upon his
mental state. The district court denied Brown's claim, emphasizing the Rule 20 court's findings that counsel's



     2
     The rule is now Rule 32 of the Alabama Rules of Criminal Procedure, but we will refer to the state
post-conviction proceedings as the Rule 20 proceedings.
     3
     Because Brown's habeas petition was filed on July 14, 1995, prior to the enactment of the Anti-
Terrorism and Effective Death Penalty Act (AEDPA) on April 24, 1996, which amended portions of 28
U.S.C. § 2254, we review Brown's petition under the pre-AEDPA standard. See Mincey v. Head, 

, 1130 n. 58 (11th Cir.2000).
     4
      Brown also argues on appeal that the state trial court's failure to instruct the jury that it did not have
to be unanimous as to mitigating circumstances deprived him of a right to a constitutional sentencing
hearing and that the state trial court's jury instruction on reasonable doubt impermissibly shifted the
burden of proof. We agree with the district court that both of these claims are procedurally defaulted and
thus we do not address these claims. Brown additionally argues that the district court erred in not
affording him an evidentiary hearing. We conclude that the district court did not abuse its discretion in
failing to hold an evidentiary hearing.
failure to present such evidence was part of his unified guilt and punishment phase strategy. Brown argues

that any such strategy was chosen without reasonable investigation or preparation.
         Claims of ineffective assistance during the sentencing phase of a capital case are subject to the

two-prong analysis set out by the Supreme Court in Strickland v. Washington, 

, 

,

(1984). To make out a successful claim, Brown must show (1) that his counsel's performance

was deficient, and (2) that the deficient performance prejudiced the defense. See 

104 S.Ct. at 2064.

Ineffective assistance is a mixed question of law and fact, and our review is de novo. See Williams v. Head,

, 1227 (11th Cir.1999).

1.      Performance Prong
         Under the performance prong, the standard is "reasonableness under prevailing professional norms."

See 

, 104 S.Ct. at 2065. Trial counsel cannot be deemed "incompetent for

performing in a particular way in a case, as long as the approach taken 'might be considered sound trial

strategy.' " Chandler v. United States, 

, 1314 (11th Cir.2000) (en banc) (quoting Darden v.

Wainwright, 

, 186, 

, 2474, 

(1986)).

         McDonald had over thirty years of experience in the practice of criminal law and had prosecuted or
defended dozens of capital cases. We have stated that the "strong reluctance to second guess strategic
decisions is even greater where those decisions were made by experienced criminal defense counsel."

(quoting Provenzano v. Singletary, 

, 1332 (11th Cir.1998)). "The

more experienced an attorney is, the more likely it is that his decision to rely on his own experience and

judgment in rejecting a defense ... was reasonable under the circumstances." Gates v. Zant, 

,

1498 (11th Cir.1989).

        This is not a case where counsel failed to investigate with respect to Brown's drug and alcohol use.
McDonald testified at the Rule 20 hearing that he was aware of Brown's background of drug and alcohol use

and had discussed it with him. Based on his more than thirty years of experience in trying cases in Jefferson
County, Alabama, McDonald testified that he believed that jurors are prejudiced against criminal defendants

who use drugs. McDonald testified that there was plenty of evidence of Brown's drug and alcohol abuse that

he could have presented at the penalty phase of the trial, but he rejected this line of defense in favor of one

he believed would be more effective: that Brown, who had a boyish appearance at the time of trial, was a
"follower" who was led into an act inconsistent with his character by Bankhead, his co-Defendant, who was
older and violent and had a more hardened look.

        We readily conclude that McDonald's decision not to present evidence of Brown's drug and alcohol
use at the penalty phase in favor of a defense that he thought would be more favorable was a reasonable

tactical decision. See, e.g., Duren v. Hopper, 

, 661 (11th Cir.1998) (readily concluding that

counsel's decision not to present evidence of defendant's history of substance abuse during the penalty phase

of trial was reasonable).
2.      Prejudice Prong

         In order to prevail on this claim, Brown would also have to establish prejudice from his counsel's

unreasonable assistance. See Horton v. Zant, 

, 1463 (11th Cir.1991). A petitioner satisfies the

prejudice prong when he shows that trial counsel's deficient performance deprived him of "a trial whose result

is reliable." Strickland, 466 U.S. at 

. "The defendant must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have

been different." 

104 S.Ct. at 2068.

         We conclude that, in addition to failing to establish the performance prong of his Strickland claim,

Brown has also failed to establish the prejudice prong. At the Rule 20 hearing, Brown presented witnesses
whom he contended McDonald should have called at trial. The Rule 20 court found that the testimony of
these witnesses either would not have been helpful to Brown or that such testimony was not credible. The
Rule 20 court found that the testimony of Brown's family members and friends concerning Brown's drug use
was exaggerated in an attempt to make him appear to have a greater drug problem than he actually had. The

Rule 20 court also found that the amount of alcohol that Brown claimed to have consumed on the day of the
robbery/murder was substantially less than he claimed to consume on a regular basis prior to the day of the

crime. The Rule 20 court found that Brown had not suffered from delirium tremors or other withdrawal

symptoms, had exaggerated his drug use, and was not a credible witness. The Rule 20 court also concluded
that the testimony of Dr. Kirkland, Brown's expert witness, that Brown suffered from diminished capacity

at the time of the crime due to alcohol or drug use would not have outweighed the aggravating factors against

Brown. Furthermore, the state's expert, Dr. Dixon, testified that Brown exaggerated his claims of drug and
alcohol abuse. Especially in light of the Rule 20 court's findings of fact, we agree with the conclusion of the

Rule 20 court that the evidence of Brown's drug and alcohol abuse would not have been helpful to him;

"there is no reasonable probability that the result of the penalty phase would have been different, even if the
suggested evidence of alcohol and drug abuse had been explored in great detail." 

.5

B.       Ineffective Assistance for Failure to Engage in "Reverse-Witherspoon"6 Inquiry During Voir Dire
         Brown also argues that McDonald rendered ineffective assistance when he failed to ask potential
jurors during voir dire whether they would automatically vote to impose the death penalty if Brown were

convicted of capital murder—a so-called "reverse-Witherspoon" inquiry. The Rule 20 court and the district

court rejected this claim.

1.       Performance Prong
         At the Rule 20 hearing, Brown offered the testimony of two Birmingham lawyers, Dan Turberville

and Roger Appell, who testified that they always engage in such "reverse-Witherspoon" questioning during

voir dire. The Rule 20 court found that the testimony of these two lawyers did not establish that McDonald's

failure to ask the reverse-Witherspoon question during voir dire showed that his performance was inadequate,

because McDonald had as much, if not more, experience in criminal defense than either of these lawyers.
         McDonald was not asked any questions during the Rule 20 hearing regarding his failure to engage

in a reverse-Witherspoon inquiry. Although during voir dire the trial judge asked the potential jurors a few

questions to determine whether any of them was unalterably opposed to the death penalty, this questioning
was limited. Thus, McDonald may well have thought it better to avoid any focus on the death penalty.

McDonald's decision not to ask potential jurors whether they would automatically vote to impose the death
penalty if Brown were convicted of capital murder appears to have been a reasonable tactical decision,

because it seems reasonable for trial counsel to want to focus the jury on the idea of the death penalty as little
as possible. Moreover, there is a strong presumption that McDonald's actions were the result of sound trial

strategy. See 

, 104 S.Ct. at 2065. Nevertheless, we need not decide whether

Brown failed to establish the performance prong on this claim, because we conclude that he failed to establish

the prejudice prong.

     5
     Brown also claims that he received ineffective assistance due to McDonald's failure to present
evidence of his drug and alcohol use during the guilt phase of his trial. Because we conclude that
McDonald made a reasonable tactical decision not to present evidence of Brown's substance abuse, given
his opinion, based on years of experience, that juries are unsympathetic to drug users, especially those
like Brown who also dealt drugs, we hold that Brown has failed to establish a claim of ineffective
assistance with respect to the guilt phase of his trial.
     6
     The voir dire inquiry used to determine whether there are jurors who would vote automatically to
impose the death penalty if a defendant were found guilty of a capital crime is referred to as the
"reverse-Witherspoon" inquiry, because it arose from a line of death penalty voir dire cases exemplified
by Witherspoon v. Illinois, 

, 

, 

(1968).
2.       Prejudice Prong

         In order to establish the prejudice prong, Brown would have to show that, but for McDonald's failure

to engage in the reverse-Witherspoon inquiry during voir dire, the result of his trial would have been different.

See Strickland, 466 U.S. at 

. For several reasons we conclude that Brown has failed

to make the required showing. First, during the penalty phase of the trial, the trial judge instructed the jurors

that their verdict should be based on the evidence and the law and that there was no room for passion,

prejudice, or other arbitrary factors. Brown argues that we should presume that some of the jurors were
biased in favor of the death penalty and would have refused to follow the law. We have stated in numerous

cases, however, that jurors are presumed to follow the court's instructions. See e.g., Ingram v. Zant, 

, 1053 (11th Cir.1994) ("Because we presume that jurors follow such instructions, we must assume that

the jury put aside any biases it may have had, applied the legal standards as enunciated in the jury

instructions, and based its sentencing decision on the facts introduced at trial and sentencing."); Raulerson

v. Wainwright, 

, 876 (11th Cir.1985) ("Jurors are presumed to follow the law as they are

instructed."). Because we presume that the jurors followed the court's instructions to base their sentencing
decision on the evidence and the law, and not on arbitrary factors, Brown's attempt to prove prejudice is

undermined. See Stamper v. Muncie, 

, 177 (4th Cir.1991) (holding that petitioner, who alleged

ineffective assistance based on counsel's failure to "explore with certain members of the venire the

'reverse-Witherspoon' inquiry," failed "to demonstrate how any shortcoming on trial counsel's part constituted

prejudice sufficient to satisfy the second prong of the Strickland test").7 Second, Brown failed to adduce any

evidence that any juror was biased in favor of the death penalty. Third, the heinous nature of the crime and
the absence of any mitigating factors make this a case in which the prosecutor had a strong case for the death

penalty. For these reasons, we conclude that Brown has failed to show that McDonald's decision not to

engage in the reverse-Witherspoon inquiry with the jury resulted in prejudice sufficient to satisfy the second

prong of Strickland.

C.       Davenport's Testimony


     7
     This case is distinguished from Ex parte Yelder, 

(Ala.1991), where the Alabama
Supreme Court presumed prejudice where trial counsel did not object, under Batson v. Kentucky, 

, 

, 

(1986), to the state's use of its peremptory challenges to strike 17
out of 18 black jurors. In Yelder, there was a prima facie case of purposeful discrimination by the state in
the jury selection process. 

. In this case, Brown cannot show that any juror was
predisposed to impose the death penalty nor that any juror would have responded to or been excused
because of a reverse-Witherspoon inquiry.
         Brown argues that his conviction and death sentence violated his Eighth and Fourteenth Amendment
rights because Davenport's testimony, which was directly related to the issue of Brown's intent, was procured

through coercive prosecutorial tactics.8 Brown analogizes his conviction to one obtained through the use of

perjured testimony. He argues that, where a witness's testimony has been coerced, this creates an
unacceptable risk that a conviction might be obtained based upon perjured testimony.

        When Davenport was interviewed by deputies shortly after McGraw's murder, he apparently admitted

much of the involvement to which he later testified at trial, including the fact that he drove Brown, Bankhead,
and Bynum to McGraw's home on the fateful night, though he remained in the car. However, in his statement

to the officers at the time, he indicated that he had heard nothing about any plans to kill McGraw in the car

on the way to McGraw's home. Shortly before trial, Davenport was subpoenaed as a witness. One of the
prosecutors in the case, Mike Anderton, flew Davenport to Birmingham. Anderton and Mike McGregor, the
other prosecutor in the case, met with Davenport the day before Brown's trial and interrogated him for two

hours. The entire interview was taped. In response to a number of questions early in the interview,
Davenport denied having heard any conversation about killing McGraw on the way to McGraw's home.
McGregor persisted in questioning Davenport about this, insisting that he must have heard some conversation

on the way to McGraw's home. Davenport finally said, "[They] said they was going to go over to a queer's
house to do a job," and then admitted having heard Brown, Bankhead, and Bynum talking about hitting

McGraw. After Davenport asked whether he could be charged with this, one of the prosecutors said that he
could be, but he probably would not be,9 charged, but he went on to say that one case they would make if
need be was perjury if he lied on the stand. Anderton and McGregor told Davenport numerous times that he

must tell the truth.

        At trial, Davenport testified as to his involvement and what he saw and heard, including the fact that,
on the way to McGraw's home, he heard a conversation in the car about "going and killing a queer, or

something like that." He did not recall who made that statement. He also said that Brown and Bankhead both



    8
     Respondents argue that this claim is procedurally defaulted because it was not raised at trial or on
direct appeal. The Rule 20 court found that the claim was procedurally defaulted. The district disagreed,
but dismissed the claim on the merits. Because we agree with the district court that this claim fails on the
merits, we need not decide whether this claim is procedurally defaulted.
    9
     The prosecutor later explained that Davenport's involvement as the driver probably was not enough
to make a case against him, because there was no apparent intent on the part of Davenport to take part in
the crime.
asked Bynum how hard Bynum could hit. Davenport also testified that Brown asked Bynum, "Well, can you

knock this old man out?," and Bynum responded "yes." According to Davenport's testimony, Brown
responded, "Well, if you can't I can."

        The interrogation methods used by the prosecutors when questioning Davenport fall short of the level

of egregiousness necessary to constitute a violation of Brown's constitutional rights. See Wilcox v. Ford, 

, 1148 (11th Cir.1987). In Wilcox, the petitioner argued that testimony against him had been

coerced from two witnesses and that this violated his due process rights and rendered his trial fundamentally

unfair. 

. The two witnesses, both of whom were elderly, originally told the police that

they knew nothing of the murder, but later, after extensive interrogation, signed statements attesting to their
involvement, as well as the petitioner's involvement, in the crime. The district court held that the

"intimidation tactics" used by the police violated the petitioner's constitutional rights. We reversed. The

transcripts of the interrogation showed that the police had "threatened to charge [one of the witnesses] with
murder, threatened to lynch him, put words in his mouth, and told him he was headed for eternal damnation."

Another witness was interrogated for over eight hours without food or water and was told that

he could be sent to the electric chair or would die in prison. See 

that, while the police

misconduct was not commendable, the petitioner's due process rights were not violated and he had received

a fundamentally fair trial. See 

We reached this conclusion because the petitioner had full

knowledge of the nature of the two witnesses' interrogation, had access to the tapes and transcripts prior to

trial, had an opportunity to use those materials when examining both witnesses, and was able to

cross-examine both witnesses. See 

        The rejection of Brown's claim that his constitutional rights were violated because Davenport's

testimony was coerced follows a fortiori from Wilcox. The interrogation here falls far short of the much more

egregious interrogation which survived constitutional scrutiny in Wilcox. The interrogation in the instant case

was almost mild-mannered compared to that in Wilcox. It lasted only two hours and was taped in its entirety.

Brown's trial counsel, McDonald, knew about Davenport's testimony on the first day of trial; and, as in

Wilcox, Brown's counsel had an opportunity to review the taped interrogation before he cross-examined

Davenport. In fact, McDonald engaged in a lengthy cross-examination of Davenport concerning the
interrogation and the changes in his testimony after the interrogation. The taped interrogation was also played

for the jurors, which gave them an opportunity to evaluate whether the prosecutors had used improper
interrogation methods and whether the interrogation had resulted in untruthful testimony, and gave them an

opportunity to assess the challenged interrogation and the reliability of Davenport's testimony. The jury
obviously concluded that the interrogation did not result in untruthful testimony, but rather persuaded

Davenport to abandon the few previous untruthful statements to officers and to give truthful testimony to the

jury. Based on our own review of the challenged interrogation and Davenport's trial testimony, we conclude

that Davenport's trial testimony was both voluntary and truthful. Therefore, we readily conclude that Brown's
constitutional rights were not violated due to the introduction of Davenport's testimony.

                                            III. CONCLUSION
        For the foregoing reasons, the judgment of the district court denying relief is AFFIRMED.