Filed: Mar. 11, 1999
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT - FILED No. 97-6998 U.S. COURT OF APPEALS ELEVENTH CIRCUIT 03/11/99 - D. C. Docket No. 95-A-1035-N THOMAS K. KAHN CLERK ROBERT LEE TARVER, JR., Petitioner-Appellant, versus JOE S. HOPPER, Commissioner, Alabama Department of Corrections, BILL PRYOR, The Attorney General of the State of Alabama, Respondents-Appellees. - Appeal from the United States District Court for the Middle District of Alabama - (March 11, 1999) Before TJO
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT - FILED No. 97-6998 U.S. COURT OF APPEALS ELEVENTH CIRCUIT 03/11/99 - D. C. Docket No. 95-A-1035-N THOMAS K. KAHN CLERK ROBERT LEE TARVER, JR., Petitioner-Appellant, versus JOE S. HOPPER, Commissioner, Alabama Department of Corrections, BILL PRYOR, The Attorney General of the State of Alabama, Respondents-Appellees. - Appeal from the United States District Court for the Middle District of Alabama - (March 11, 1999) Before TJOF..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
------------------------------------------- FILED
No. 97-6998 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
03/11/99
--------------------------------------------
D. C. Docket No. 95-A-1035-N THOMAS K. KAHN
CLERK
ROBERT LEE TARVER, JR.,
Petitioner-Appellant,
versus
JOE S. HOPPER, Commissioner,
Alabama Department of Corrections,
BILL PRYOR, The Attorney General of
the State of Alabama,
Respondents-Appellees.
----------------------------------------------------------------
Appeal from the United States District Court
for the Middle District of Alabama
----------------------------------------------------------------
(March 11, 1999)
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.
2
State, 500 So. 2d 1232, 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,
3
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
4
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, 476 U.S. 79 (1986).
About a month after the Supreme Court
decided Batson, the Alabama Court of
5
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, 479 U.S.
314 (1987), making Batson retroactive to
all cases on direct appeal when Batson was
decided.
6
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.
7
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.
8
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.
DISCUSSION
On appeal, Tarver advances his Batson
claim, raises ineffective assistance of
counsel claims, and argues that the
9
prosecution breached its duty under Giglio
v. United States, 405 U.S. 150 (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,
161 F.3d
1273, 1277 n.1 (11th Cir. 1998).
A. The Batson Claim
10
We review de novo Tarver’s claim that
his Batson claim is not procedurally
defaulted. See Tower v. Phillips, 7 F.3d 206,
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
11
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, 840 F.2d 1533, 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
12
clearly against our precedent and practice.
See Sims v. Singletary, 155 F.3d 1297, 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,
43 F.3d
1404, 1409 (11th Cir. 1995): “Alabama courts
have not consistently applied a procedural
13
bar to Batson claims in cases like
Cochran’s.” We think, however, that “cases
like Cochran’s” are cases where the
defendant (like Cochran) made a Swain
1
objection at trial. Cochran distinguished
Tarver, 629 So. 2d at 18-19, on this ground.
See
Cochran, 43 F.3d at 1409. The Cochran
court’s later statement that Tarver
1
Swain v. Alabama, 380 U.S. 202 (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
id. at 223;
Love v. Jones,
923 F.2d 816, 819-20 (11th
Cir. 1991).
14
“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.” Id. More
important, the Cochran court was not
faced with a case where no Swain objection
was made at trial; and, therefore, they
15
could make no binding decision about such
a case. See New Port Largo, Inc. v. Monroe
County, 985 F.2d 1488, 1500 (11th Cir. 1993)
(Edmondson, J., concurring), cited with
approval in Combs v. Plantation Patterns,
106 F.3d 1519, 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
16
Alabama court ignored the procedural bar
and decided a Batson claim when no Swain
2
objection was made at trial. Batson
claims not raised at trial have been
procedurally defaulted. See, e.g., Ross v. State,
581 So. 2d 495, 496 (Ala. 1991) (citing cases);
2
Tarver cites Watkins v. State, 632
So. 2d 555 (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.
17
Bonner v. State, 564 So. 2d 99, 99 (Ala.
Crim. App. 1990).
We also reject Tarver’s argument that
his case is like Morrison v. Jones, 952 F.
Supp. 729 (M.D. Ala. 1996), and Floyd v. State,
571 So. 2d 1234 (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,
477 U.S.
527 (1986), that the appellate defaults in
18
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
19
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
3
Alabama has not chosen to do so.
3
Tarver’s argument that Griffith v.
Kentucky, 479 U.S. 314 (1987), allows him to
raise his Batson claim in post-
conviction proceedings is foreclosed by
Pitts v. Cook,
923 F.2d 1568, 1571 & n.3 (11th
Cir. 1991). We decline his invitation to
“revisit” Pitts.
20
B. The Ineffective Assistance of Counsel
Claims
We review Tarver’s ineffective
assistance of counsel claims de novo. See
Holsomback v. White, 133 F.3d 1382, 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
21
Batson did not provide ineffective
assistance of counsel. See Pitts, 923 F.2d
at 1574; see also Poole v. United States,
832
F.2d 561, 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
22
“routinely” because of their race alone.
During state collateral proceedings,
Tarver’s trial counsel’s testimony was
that “on occasion,” when he had been a
prosecutor, he had struck black
4
veniremembers based on race alone.
4
These facts distinguish Tarver’s case
from Jackson v. Herring, 42 F.3d 1350 (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.
Id.
at 1359-60.
23
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 Pitts, 923 F.2d at
1573. Tarver might complain that his
lawyer was unimaginative, but a lack of
creativity does not constitute ineffective
assistance. See
id. at 1574. Futility also
24
justifies Tarver’s lawyer’s refusal to object
because no evidence in this case would have
5
supported a Swain violation: the only
valid objection available at that time. See
Lindsey v. Smith, 820 F.2d 1137, 1152 (11th Cir.
1987); see also Reece v. United States,
119 F.3d
1462, 1465 (11th Cir. 1997) (lawyer’s failure to
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.
25
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,
26
Alabama courts have said that failure to
make a Batson challenge before Batson is
not ineffective. See Horsley v. State, 527
So. 2d 1355, 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 presented additional
witnesses in the penalty phase of the trial.
We think, however, that Tarver’s trial
27
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
28
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,
29
that Tarver was no troublemaker, and had
6
no criminal “bent.” 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, 46 F.3d 1506, 1510-11 (11th Cir. 1995)
6
This testimony was substantially
refuted by Tarver’s criminal record.
30
(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, 790 F.2d 1499
(11th Cir. 1986) (no ineffective assistance
for failure to present mitigating
evidence because counsel feared damaging
counter evidence); Stanley v. Zant,
697
F.2d 955 (11th Cir. 1983) (no ineffective
31
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, 107 S. Ct. 3114, 3126 (1987) (lawyer not
required to investigate and present all
32
available mitigating evidence to be
reasonable).
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
33
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
34
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
7
Hugh Kite. During Tarver’s lawyer’s
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
35
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
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.
36
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
37
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, 877 F.2d 851, 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
38
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
39
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’
40
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
41
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, 965 F.2d 952, 960
(11th Cir. 1992) (admissions of deficient
performance are not significant). As
noted by the Rule 20 court and the District
42
Court, Tarver’s lawyer’s decision to focus
on an acquittal at the expense of
sentencing was “a deliberate decision.”
State v. Tarver, 629 So. 2d 14, 21 (Ala. Crim.
App. 1993) (quoting Tarver’s lawyer). The
decision to focus on acquittal of capital
8
murder was not unreasonable. Despite
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 id. § 13A-6-
2(a)(1), and robbery in the first degree,
see
id. § 13A-8-41. The jury could acquit on
murder or robbery in the first degree
43
overwhelming evidence that 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.
and still convict Tarver of the
remaining 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.
44
State, 500 So. 2d 1232, 1235-41 (Ala. Crim.
App. 1986) (describing evidence against
Tarver); see also
Stewart, 877 F.2d at 855-
56 (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
45
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, 405 U.S. 150 (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,
785 F.2d 1457, 1464-65 (11th Cir.
46
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.”
47
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,
48
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 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
49
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
50
testify against a codefendant is
not an agreement within the
purview of Giglio.
Alderman v. Zant, 22 F.3d 1541, 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,
785 F.2d 1457, 1464-65 (11th Cir.
1986). And, “[e]ven mere ‘advice’ by a
51
prosecutor concerning the future
prosecution of a key government witness
may fall into the category of discoverable
evidence.” Haber v. Wainwright, 756 F.2d
1520, 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,
753 F.2d
877, 884 (11th Cir. 1985). Likewise, a
52
prosecutor’s statement that he would “take
care” of the witness does not need to be
disclosed. See Depree v. Thomas, 946 F.2d
784, 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
53
the District Attorney and Richardson or
Richardson’s attorney” is not clearly
9
erroneous. Compare Spaziano v.
Singletary, 36 F.3d 1028, 1032 (11th Cir. 1994)
(standard of review) with United States v.
Cain,
587 F.2d 678, 680 (5th Cir. 1979)
(existence of plea agreement is a factual
issue). Loftin said that he only told his
client, Richardson, that “if he would testify
. . . it would be beneficial to him with
9
We note that the state court also
denied relief to Tarver on his Giglio
claim in state collateral proceedings.
54
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 Depree, 946 F.2d at 797
(promise to “take care” of witness does not
require disclosure).
55
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
Alderman, 22 F.3d at 1555.
If Loftin really believed an agreement
existed with the district attorney, then his
client committed perjury by testifying
that no agreement existed; and Loftin
56
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.
57
For the reasons we have discussed, we
conclude that Tarver’s claims were
properly rejected by the district court.
AFFIRMED.
58
