D. Motion for Funds to Hire Expert Witnesses

Prior to trial, Bell also filed a motion for funds to hire expert witnesses.4 Specifically, counsel claimed that expert assistance was necessary to refute and cross-examine the findings of the State's (a) forensic pathologist who performed the Orr autopsy and (b) serology expert who examined blood and sperm samples taken from the crime scene. The trial court granted the motion, allowing up to Alabama's $500 statutory limit for expert funds.

On a defense motion for an evaluation, the trial court ordered that the supervisor of Bryce Hospital, an Alabama state hospital, be appointed to examine Grayson to determine: (1) his sanity; (2) his ability to consult with his attorney with a reasonable degree of rational understanding; (3) his understanding of the nature of the charges against him; (4) whether he was suffering from a mental disease or defect at the time of the crime; and (5) whether he lacked the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. The examination generated reports and observations from the Bryce Hospital staff which the court released to the State and Grayson. These reports concluded that Grayson had average intelligence with a full-scale IQ score of 92, and that his criminal activity was "not viewed as being the product of a mental disease, defect, or derangement.". Although the reports concluded that Grayson was an alcoholic with dependent traits, they found no suggestion of organic impairment. Neither the State nor the defense introduced any evidence regarding the Bryce Hospital evaluation at trial.

The trial court charged the jury with respect to the capital offenses charged in counts one and two of the indictment, as well as the lesser included offenses. In charging the jury with respect to the capital offenses, the court specifically instructed the jury regarding the intent element of an intentional killing, as follows:

[T]here must also be an intentional killing. Now the intentional killing must be intended and I will define to you intentional as follows. Intentional does not mean accidentally or inadvertently nor is a killing considered intentional because death occurs in a burglary. But it does mean that a person acted intentionally with respect to a result or to conduct described by the statute defining an offense when his purpose is to cause that result or engage in that conduct. The intent to kill must be independent of the act of committing the burglary itself but the two, the burglary and the intent to kill, must co-exist before this defendant could be convicted of the capital offense, as I have mentioned to you, and that is the highest offense included in this indictment.

Shortly thereafter, the trial court again instructed the jury regarding an "intentional killing:"

The third element involves the defendant's intentional killing of Annie Laura Orr in that the State must prove beyond a reasonable doubt that the defendant personally shot, stabbed or otherwise killed the victim or that the defendant knowingly sanctioned and facilitated the killing done by another.

Later in the jury instructions, the court again explained the general meaning of the term "intentionally," stating that: "[a] person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his purpose is to cause that result or to engage in that conduct." The trial court also charged the jury as to the lesser included offenses and explained the felony murder doctrine. The court instructed the jury that "when a homicide is committed in the course of or during an attempt to commit certain felonies which are inherently dangerous to life, the intent which must be shown to support a conviction for murder is supplied by the criminal intent involved in the underlying felony." Thus, the court explained that the defendant did not have to intend the death of the victim in order to be guilty of felony murder. Id. The trial court strongly admonished the jury that the theory of intent underlying the felony murder doctrine could not be used to support a conviction of the capital offenses charged against Grayson:

I charge you, ladies and gentlemen of the jury, that looking to the intent of the defendant on the capital felony crime as charged in Count One and Count Two of the indictment, you may not, and I emphasize the words may not, look to or consider the felony murder doctrine, though said doctrine could be applicable to lesser included charges as the Court will define them to you.

With respect to Grayson's intoxication, the court instructed the jury, as follows:

Ladies and gentlemen of the jury. I will charge you as to involuntary intoxication. If you believe from the evidence that Darrell Grayson was involuntarily intoxicated and did not act - and did not as a result of being involuntarily intoxicated, lacked capacity either to appreciate the criminality of his alleged conduct or to conform his alleged conduct to the requirements of the law the defendant therefore could not form the necessary intent to commit the act.

A person may become involuntarily intoxicated by the introduction into his body of substances such as alcohol or other drugs which impair or disturb his mental or physical capacities either, one, inadvertently as by accident or without knowing the nature or tendencies of the substance or, two as a result of being deceived or tricked into doing so by fraud, artifice or guile, or, three, as a result of being forced to do so himself or of it being forcibly introduced into his body without his consent.

A person may be deemed to know the nature or tendencies of a substance if, under the circumstances, he reasonably should have known such nature and tendencies.

Intoxication of the defendant whether voluntary or involuntary may be considered by the jury if relevant to consider as negating an element of the offense charged, such as intent.

However, being unaware of a risk because of voluntary intoxication is immaterial in a consideration of whether the defendant acted recklessly where recklessness is an element of the offense charges or a lesser included offense.

Intoxication does not in and of itself constitute a mental disease within the meaning of the 1975 Code of Alabama as defined in Section 13A-3-1.

Intoxication, other than involuntary intoxication, is not a defense to a criminal charge but may be considered by the jury, if relevant, on the question of whether the fact of intoxication negates an element of the offense charged such as intent, but not the element of recklessness.

(emphasis added). Finally, the court instructed the jury that it was free to disregard the defendant's confessions if it found them unworthy of belief.

After approximately forty minutes of deliberation, the jury submitted several written questions to the court, one of which asked the court to define "intent." The court decided that the oral charge was sufficient and that the jury should be instructed to rely upon that charge in response to their questions. Defense counsel did not request a reinstruction on intent or object. Approximately one hour and ten minutes later, the jury returned a verdict finding Grayson guilty of capital murder.

At the sentencing phase, the State presented no additional evidence. The defense presented the testimony of Grayson and Grayson's mother. Grayson testified that he was only nineteen when he had committed the offense and that he had never committed a felony offense before, while his co-defendant, Kennedy, was a convicted felon. He told the jury that he had lived in Montevallo, Alabama his entire life and that he had completed the tenth grade in the public school system. He told the jury that he was one of eleven children and that most of his siblings worked to help support the family. Grayson's mother testified that Grayson had no prior felony record. It appears that defense counsel may have attempted to introduce evidence regarding Victor Kennedy's trial through the clerk of court but was prevented from doing so by the court's rulings.

In closing arguments, the State focused on the brutality of Grayson's crime, after explaining to the jury their responsibility to weigh the aggravating and mitigating circumstances in the case.5 The State emphasized that Mrs. Orr's death was slow and agonizing and that she was horribly beaten and raped. The State claimed that these factors outweighed the defendant's age, record, and any remorse he might have. The State suggested to the jury that the atrocious nature of the crime would outweigh any set of mitigating circumstances that a defendant could present.

In closing, defense counsel argued to the jury that a death sentence would cause continuing grief to the Orr family and fail to bring a resolution to the death of Mrs. Orr the way a life sentence without parole would. Therefore, he argued that the jury should return a life sentence even though "[t]he evidence shows that this is a death by electrocution case." He argued that Grayson could not be more greatly punished than to have to sit in a cell every day for the rest of his life. In arguing to the jury the mitigating circumstances, counsel told the jury that Grayson respected Mrs. Orr despite his actions. The focus of the closing, however, was on the best resolution for the Orr family.

The court instructed the jury with respect to the aggravating and mitigating circumstances to be considered in arriving at the proper punishment for Grayson's crime. The judge instructed the jury with respect to the mitigating circumstances of age and of no history of criminal activity. Although the court did not specifically discuss alcohol in its sentencing charge, the court instructed the jury at length on the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law as a mitigating circumstance. After deliberating for approximately forty minutes, the jury determined that Grayson should be punished by death.

At the state habeas hearing, Grayson also submitted the testimony of numerous lay witnesses. Richard W. Bell represented Grayson at trial and on appeal. His deposition was taken and introduced; plus he testified at the state habeas hearing. Bell had been practicing law in Alabama for approximately ten years when was appointed as defense counsel for Grayson. Although Bell had practiced in the area of criminal law prior to his appointment to Grayson's case, the defense of Darrell Grayson was Bell's first capital case. He recalls that his fee for the case was a $1,000 flat fee. Bell was the only attorney appointed to represent Grayson at the trial level. Bell explained that the thrust of his defense at the guilt phase of the trial was Grayson's lack of intent to kill Mrs. Orr.

The trial judge authorized him to spend the statutory maximum of $500 on experts in the case. Bell testified that he contacted some expert pathologists to seek assistance with Grayson's defense but was unable to hire those experts because their fees were more than $1500 per day. Counsel thought it would be futile to attempt to obtain funds over the statutory cap for experts from the trial judge and, therefore, he did not try. He stated that the lack of a serology expert was extremely important because he could not challenge the findings of the State's serologist regarding the rape of Mrs. Orr to ascertain whether his client was actually involved in the rape.

Counsel also opined that the testimony of an expert pathologist would have been critical in defending Grayson. He explained his opinion that the autopsy doctor never specifically testified as to the cause of Mrs. Orr's death at trial. Counsel felt that he could have showed that the State's pathologist had decided on death by asphyxiation as a result of an inability to determine any other cause of death. Counsel wanted to explore the possibility that Mrs. Orr died of a cardiac arrest and felt that the testimony of a defense pathologist would have been crucial in showing that Grayson had not intended Mrs. Orr to die. Counsel testified that the lack of sufficient funds to hire experts caused Grayson to "just almost confess a plea to the death penalty."

Because Grayson had consumed gallons of alcohol prior to the killing, counsel expressed his opinion that he needed a toxicologist to develop evidence regarding the chemical effects on the body of consuming huge amounts of alcohol. Further, counsel testified that it would have been important to show the jury the genetic and physiological factors that lead to alcohol dependence and the physiological effects of such dependence, such as blackouts. If he could have afforded experts, counsel would have presented such evidence, both as a mitigating factor and to show a lack of intent. Finally, counsel explained that expert testimony regarding the effects of alcohol and alcohol withdrawal would have been crucial in support of his motion to suppress Grayson's confessions.

Trial counsel further testified that a good forensic psychologist would have been critical in explaining to the jury the "psychological events [that] had occurred in [Grayson's] life that may have led to him entering that home between eleven and midnight of Christmas Eve eve and committing whatever acts were done in there." He explained that this evidence would have been critical in demonstrating to the jury that Grayson had not "intentionally killed" Mrs. Orr. According to counsel, this evidence might have produced a conviction of a lesser included offense in light of the jury's apparent concern over the intent issue as evidenced by their question to the judge regarding intent. Further, counsel conceded that such an expert may have assisted him in developing evidence regarding Kennedy's domination of Grayson in connection with the offense.

With respect to the Bryce Hospital records, counsel testified that he received them and read them, but that he would have picked them apart if he had been able to hire a mental health expert. Counsel did not talk with any of the doctors who evaluated Grayson at Bryce Hospital prior to trial and attributed this to his lack of an investigator. Counsel was not asked during his deposition why he did not utilize the hospital records he did have at trial.

Trial counsel also expressed his opinion that it would have been important to gather facts about Grayson's home life and community in preparation of a mitigation case. Counsel talked with Grayson about his background, but did not interview other witnesses and members of the community to develop evidence for the mitigation phase of the case due to his lack of funding and investigatory help. Bell testified that the lack of adequate funding prevented him from taking time from his busy civil practice to investigate fully the case against Grayson.

Although he did not sit through the earlier trial against Kennedy, Bell had heard that the lawyer who defended Kennedy had been extremely animated and aggressive, challenging every exhibit and witness. Because that strategy had resulted in a death sentence for Kennedy, Bell explained that his strategy was to keep Grayson's defense "calm" and under "control." He felt that he could appease the jury by presenting Grayson as calmly as possible and by accepting a lot of the damaging but admissible evidence without putting up a big fight in front of the jury.

Counsel also explained that the case was extremely politically charged in that the Orr family was a prominent family in Montevallo, Alabama and because it was an attack on an elderly white widow by "two black individuals." Due to the politically sensitive nature of the case and the prominence of the family, counsel explained that he subpoenaed every family member and then invoked the rule of sequestration of witnesses in an effort to keep them from all sitting in the front row before the jury throughout the entire trial. Counsel conceded that the actual nature of the crime was "horrendous" and opined that the trial judge was compelled to sentence Grayson to death for political reasons.

When the jury came back with a question to the trial judge about the definition of intent and manslaughter, counsel testified that he felt that his points about Grayson's lack of intent to kill Mrs. Orr had been communicated to the jury and he felt good about the question being asked. ("I just felt that this was very, very good, as far as this jury was concerned, and I was hoping that we were going to come out with the manslaughter conviction, or possibly even just a straight murder."). He testified that the prosecutors prosecuting the case similarly felt that the jury had bought the defense case, saying to Bell: "I don't know how it happened, but I think that you whipped us on this, if that's what they're thinking." Counsel testified that he felt that the judge's failure to re-instruct the jury may have cost Grayson his life.

Bell explained that Grayson was a cooperative client and had informed him that he was drunk at the time of the crime. Bell did not recall being informed of a history of alcohol abuse, however. After reviewing his own preadmission form for Grayson's evaluation at Bryce Hospital, which stated "Cannot control drinking, drinks to the point of blacking out," counsel testified that he must have known of the problem.

Counsel testified that he felt that he might have secured a verdict on a lesser included offense if the trial had been held in another venue where the victim was not a well-known pillar of the community. Counsel for Grayson queried: "So, even here, and even with this jury, but without any expert help or anything else, you gave them a run for their money on the question of whether there was intent or not?" Bell answered: "That's right."

On examination by the State, Bell acknowledged that mental health and other mitigating evidence is a double-edged sword that often does not affect the outcome in favor of a defendant. He admitted that such evidence is sometimes so negative that defense counsel would not want to use it. He conceded that the facts of the case were horrible and that the evidence against his client was "very strong." Counsel also admitted that he thought Judge Walden would have sentenced Grayson to death even if the jury had given him a life sentence.

Grayson's habeas counsel asked Bell on cross-examination: "Was it very important to you to investigate for the presence of mitigating circumstances about the life and background of your client, Darrell Grayson?" Bell responded: "Yes." Counsel asked "Again, were you not about to do that because of the five hundred dollar limit, you didn't have an investigator?" He responded: "That's correct. I did not investigate, but there was possibly sociological implications in the family that would have been best served by a person trained in that kind of observations of a family unit." Other than the fact that Grayson was from a large family and that his mother was a cafeteria worker, counsel testified that he knew very little about Grayson's background. Thus, Bell's testimony appears to indicate that he did little or no investigation into the possibly mitigating factors present in Grayson's background. Counsel testified that he believed Grayson's alcoholism and intoxication on the night of the crime could have been a deciding factor with the jury with proper expert testimony.

Grayson's sister testified as to the drinking and violence in Grayson's childhood home. She described an argument between her sister and her mother in which her mother shot her sister and an argument between her mother and her stepfather in which shots were fired in the home. Grayson's mother was convicted of manslaughter in connection with the death of her first husband Edward Grayson. Defense Exhibit 7 in state habeas proceeding).

The state habeas court denied Grayson's petition for post-conviction relief. Without analysis, the court found all of Grayson's claims of ineffective assistance of counsel to be "without merit." With respect to Grayson's claim that his arrest violated the Fourth Amendment, the court found that claim procedurally barred due to Grayson's failure to raise the claim at trial or on appeal. In the alternative, the court found that "the evidence before the court at the time of trial did not establish that Grayson's arrest was illegal. Moreover, none of the evidence which was presented in this proceeding establishes that Grayson's arrest was not founded upon sufficient probable cause."

The state habeas court similarly found Grayson's claim that his confessions were involuntary was procedurally barred and, in the alternative, that it lacked merit. The court found: "When all of the evidence is considered, it is apparent that Grayson's statements were properly admitted into evidence. Nothing before this Court establishes that Grayson's statements were involuntary, and Grayson is not entitled to relief on this claim because it lacks merit."

With respect to Grayson's claim that he was denied sufficient funds to retain an expert forensic pathologist, the court found the claim procedurally barred and then made an alternative finding that the claim lacked merit. First, the court found that Grayson could not state a claim for the denial of funds where his counsel sought and received the maximum funding allowable under Alabama law for expert assistance. Furthermore, the court found that the lack of such pathology evidence in no way prejudiced Grayson where the expert pathologist hired by the defense in connection with the post-conviction proceedings agreed with the State's pathologist who testified at trial.

The Alabama Court of Criminal Appeals denied Grayson's appeal. Thereafter, Grayson filed a § 2254 petition, which the district court denied. Grayson timely appealed.

In reviewing the denial of Grayson's § 2254 petition, we review the district court's findings of historical fact for clear error only, reserving de novo review for its holdings of law and its application of law to facts. Housel v. Head, 238 F.3d 1289, 1294 (11th Cir. 2001) (citing Freund v. Butterworth, 165 F.3d 839, 861 (11th Cir. 1999), cert. denied, 528 U.S. 817 (1999)).7 The district court entered a Certificate of Appealability ("COA") on five issues, which we address in turn.8

Grayson contends that his trial counsel, Richard Bell, was ineffective. We discuss the applicable law and then Grayson's claims.

The Supreme Court set forth the standard governing claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show that: (1) counsel's performance was deficient because it fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced the defense:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687. In a capital case, this two-part test applies to claims of ineffective assistance of counsel during the sentencing phase, as well as the guilt phase of the trial, because a "capital sentencing proceeding . . . is sufficiently like a trial in its adversarial format and in the existence of standards for decision . . . that counsel's role in the proceeding is comparable to counsel's role at trial - to ensure that the adversarial testing process works to produce a just result under the standards governing decision." Collier v. Turpin, 177 F.3d 1184, 1198 (11th Cir. 1999) (quoting Strickland, 466 U.S. at 686-87).

The standard for judging counsel's performance is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. There is a strong presumption that counsel's conduct falls within the "wide range of reasonable professional assistance." Waters v. Thomas, 46 F.3d 1506, 1511-12 (11th Cir. 1995) (en banc) (quoting Strickland, 466 U.S. at 689); see also Housel v. Head, 238 F.3d 1289, 1294 (11th Cir. 2001); Bolender v. Singletary, 16 F.3d 1547, 1557 (11th Cir. 1994) ("It is important to note that judicial scrutiny of an attorney's performance is appropriately highly deferential because the craft of trying cases is far from an exact science; in fact, it is replete with uncertainties and obligatory judgment calls."); Strickland, 466 U.S. at 689 ("Even the best criminal defense attorneys would not defend a particular defendant in the same way."). Because there is such a wide range of constitutionally acceptable performance, a petitioner seeking to rebut the presumption of adequate performance must bear a heavy burden:

The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. . . . . We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Thus, in order to show that counsel's performance was unreasonable, the petitioner must establish that no competent counsel would have taken the action that his counsel did take. See Holladay v. Haley, 209 F.3d 1243, 1253 n.6 (11th Cir. 2000) ("A tactical decision is ineffective only 'if it was so patently unreasonable that no competent attorney would have chosen it.'") (quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)); Waters, 46 F.3d at 1512 (stating that the court's inquiry was whether some reasonable attorney could have acted as the petitioner's attorneys did in his trial).

Furthermore, an attorney's performance is to be evaluated from his perspective at the time, rather than through the prism of hindsight. Strickland, 466 U.S. at 689. "The widespread use of the tactic of attacking trial counsel by showing what 'might have been' proves that nothing is clearer than hindsight -- except perhaps the rule that we will not judge trial counsel's performance through hindsight." Waters, 46 F.3d at 1514. "To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But the issue is not what is possible or 'what is prudent or appropriate, but only what is constitutionally compelled.'" Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc) (quoting Burger v. Kemp, 483 U.S. 776 (1987)). With these principles in mind, we examine Grayson's claims that his counsel was ineffective in the following respects.

B. Ineffective Assistance in Motion to Suppress

Defense counsel moved to suppress Grayson's confessions based upon the Fifth Amendment but not the Fourth Amendment. Grayson argues that his arrest on December 24, 1980 was without probable cause and that trial counsel was ineffective in not asserting this Fourth Amendment violation in a motion to suppress his confessions, a hair from his sock, and Mrs. Orr's wedding rings.

The fact that there was probable cause for Grayson's arrest defeats this claim. Probable cause within the meaning of the Fourth Amendment has been described as more than bare suspicion: "Probable cause exists where the facts and circumstances within [law enforcement officers'] knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76 (1948) (quotation omitted). "The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating *** often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." Beck v. Ohio, 379 U.S. 89, 91 (1964) (quoting Brinegar, 338 U.S. at 176).

In light of the evidence in the record, officers had probable cause to arrest Grayson on December 24, 1980. The officers investigating Mrs. Orr's murder and the burglary of her home testified that they spotted a trail of playing cards leading from Mrs. Orr's house in the direction of the house where Victor Kennedy resided. In this small community, Kennedy was a known convicted burglar who had been arrested by the investigating officers some fifteen times in the past, including recently. Indeed, one of Kennedy's recent burglaries had gone along the same route followed by the trail of cards.

The evidence also showed that the officers knew prior to Grayson's arrest that Kennedy and Grayson were seen together on the evening of the crime at a convenience store and that Grayson and Kennedy were friends. Further, officers testified that they were made aware that Grayson had worked for Mrs. Orr in the past and that he was familiar with her home, leading further to their reasonable suspicion about his involvement in the crime. Then when Grayson was located, officers found Grayson squatting in the bushes in a wooded area near his home and took him into custody. In the context of the small community of Montevallo, this series of links, (1) between the direct physical evidence found at the crime scene and Kennedy, a known burglar who had used the same trail before, (2) between Kennedy and Grayson the very night of the crime, and (3) between the victim and Grayson, were sufficient to support a showing of probable cause and Grayson's counsel did not perform unreasonably in failing to challenge the evidence obtained incident to Grayson's arrest on Fourth Amendment grounds.9

Grayson does not attempt to refute this evidence. Indeed, he concedes that he and Kennedy were friends, that they had been together the evening of the murder, and that he was located squatting in the bushes in a wooded area near his home. Grayson's trial testimony and statements to police further corroborate that Grayson and Kennedy made several trips to purchase alcohol on the night in question, during which they could have been seen together by law enforcement officers. Finally, Grayson has conceded that he was employed by Mrs. Orr at some point prior to killing her and that her home was, in fact, selected as a target due to Grayson's familiarity with it. This, if anything, confirms the reasonableness of the officers' belief that Grayson was involved in this crime.

Based upon the undisputed evidence in the record, there was sufficient evidence to support a finding of probable cause.10 Thus, counsel was not unreasonable in failing to challenge the probable cause to arrest Grayson on December 24, 1980.

Alternatively, we note that the record is silent as to why trial counsel did not pursue a motion to suppress the evidence obtained from Grayson incident to his arrest on Fourth Amendment grounds; Grayson's habeas counsel did not inquire as to trial counsel's reasons for not raising such a claim either during counsel's deposition or his testimony at the state habeas hearing. "An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption [of effective representation]. Therefore, 'where the record is incomplete or unclear about [counsel]'s actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment.'" Chandler v. United States, 218 F.3d 1305, 1314 n. 15 (11th Cir. 2000) (en banc) (quoting Williams v. Head, 185 F.3d 1223, 1228 (11th Cir. 1999)). Indeed, trial counsel did move to suppress Grayson's statements to law enforcement officers on Fifth Amendment grounds. Thus, counsel was focused on the admissibility of the evidence provided to law enforcement following Grayson's arrest and challenged its admission prior to trial and at trial. Counsel may have made a decision to focus his efforts on what he perceived to be the stronger Fifth Amendment challenge to Grayson's statements. Such a decision would not have been per se unreasonable in light of the evidence surrounding Grayson's arrest and even assuming arguendo probable cause is arguably lacking, we must indulge the strong presumption that counsel's conduct was reasonable in the absence of evidence regarding his reasons for failing to raise such a challenge.

C. Ineffective Assistance at Guilt/Innocence Phase

Grayson contends that counsel's performance during the guilt/innocence phase was defective in three respects. First, Grayson argues that counsel should have developed and presented additional evidence at trial regarding his chronic alcoholism and intoxication at the time of the offense to negate the intent required for a capital murder offense. Grayson focuses on what trial counsel could have done, but did not. As this Court has held, "[a]lthough Petitioner's claim is that his trial counsel should have done something more, we first look at what the lawyer did in fact." Chandler v. United States, 218 F.3d 1305, 1320 (11th Cir. 2000). "Our court's proper inquiry is limited to whether th[e] course of action [followed by defense counsel] might have been a reasonable one." Id. at 1319.

At trial, defense counsel's theory was that Grayson lacked the specific intent to be guilty of capital murder. Grayson testified as to the large quantity of alcohol he and Kennedy had consumed on the night of the killing. Counsel emphasized Grayson's repeated trips to buy alcohol and his consumption of large amounts of wine right out of the bottle for several hours immediately preceding the crime. Consistent with his intoxication, Grayson repeatedly testified on direct regarding his inability to recall the specifics of the crime. Indeed, Grayson testified that he completely forgot committing the crime the next morning until his mother told him of Mrs. Orr's killing.

Grayson also testified that he had taped a pillowcase over Mrs. Orr's head and face solely to keep from being identified. Grayson testified that Mrs. Orr was breathing and alive when he left her house. Counsel directly asked Grayson if he had gone to Mrs. Orr's house to murder her, to which Grayson responded, "No sir." On cross-examination, Grayson again emphasized that he was extremely intoxicated at the time of the crime and his problem with alcohol. He insisted that he would not have committed the crime at all if he had not been so drunk.

Defense counsel also called Grayson's mother and sister to confirm Grayson's story that he did not remember the events at Mrs. Orr's house the morning after the crime. Both Grayson's sister and mother testified to Grayson's surprise and dismay when he was told about the break-in at Mrs. Orr's house and about her death. Defense counsel also called State witness Sheriff Glasgow to confirm Grayson's story that his intoxication prevented him from recalling the events of the crime the next day. Glasgow confirmed that Grayson had expressed surprise at the discovery of Mrs. Orr's wedding rings in his own wallet and had told Glasgow that he had never seen them before.

During the State's case-in-chief, defense counsel also cross-examined the autopsy doctor with respect to the issues directly relevant to Grayson's intent to kill Mrs. Orr. Defense counsel asked the doctor whether Mrs. Orr's many injuries contributed to Mrs. Orr's death or were in any way "life-endangering injuries." The doctor conceded that the injuries had not contributed to Mrs. Orr's death by asphyxiation and were not individually life threatening.

In addition, defense counsel questioned the doctor about the pillow case taped around Mrs. Orr's head. The doctor admitted that Mrs. Orr was able to receive some air through the pillow case and that Mrs. Orr's own bodily fluids may have filled the pores of the pillow case fabric and caused the air flow to be diminished over a period of time. Further, defense counsel asked the doctor whether there was any physical evidence that Mrs. Orr's hands had been bound at any time to prevent her from removing the pillowcase, to which the doctor replied in the negative. Defense counsel emphasized that the autopsy doctor had been able to remove the pillowcase over the top of Mrs. Orr's head without loosening or cutting the masking tape that held it. Finally, defense counsel explored with the doctor any possible connection between Mrs. Orr's arteriosclerotic disease and her death by suffocation. Counsel emphasized all of these issues tending to negate Grayson's intent in closing arguments to the jury at the guilt/innocence phase.

In light of counsel's emphasis on Grayson's alcohol consumption and lack of intent to kill Mrs. Orr at trial, we do not find that counsel's presentation of evidence regarding the intent issue fell below the standard of reasonable professional performance. Counsel highlighted the intent issue and Grayson's consumption of excessive alcohol on the night in question. In addition, counsel focused the jury on the physical and forensic evidence suggesting Grayson's lack of intent to kill Mrs. Orr. This approach was not unreasonable. See Thompson v. Haley, No. 00-15572 (11th Cir. July 3, 2001).

Grayson claims that counsel was ineffective despite these efforts because counsel did not present additional evidence with respect to the intent issue. First, Grayson claims that available information in the Bryce Hospital records regarding his intoxication on the night of the offense and his alcoholism generally should have been utilized. Again, Grayson's state habeas counsel never asked defense counsel his reasons for not introducing these records that were in his possession and we must, therefore, presume that the lawyer's decision not to present this evidence at trial was a reasonable one.11

This presumption is amply supported by the Bryce Hospital records themselves. First, it is clear from the records themselves that the opinions regarding Grayson's level of intoxication on the night of the crime and his alcoholism generally are derived exclusively from Grayson's self-reports. As such, those opinions appear no more credible than Grayson's own trial testimony in this regard and would have been merely cumulative on the intoxication issue. At best, this evidence would have been of limited benefit to the defense case. More importantly, defense counsel's use of these particular records at trial would have opened the door for the State to put before the jury significant information contained in the records that could have damaged the defense.12 For example, some information in the reports painted Grayson as a recreational alcohol abuser who lived off women and used alcohol as an excuse for his poor behavior. Further, the reports would have told the jury that Grayson was an individual of average intelligence who appreciated the criminality of his conduct on the night in question. Grayson's statement that he "would never be taken to court" would have contradicted counsel's efforts to paint Grayson as accepting responsibility for the crime and truthfully denying any intent to cause the victim's death. Finally, statements in the reports that Grayson recalled the crime quite clearly would have impeached his trial testimony regarding his lack of recall. Thus, the Bryce Hospital records were potentially very damaging to the defense. As such, counsel's failure to utilize these records at trial does not amount to deficient representation.13

Grayson also argues that trial counsel was ineffective in failing to gather and present a defense expert regarding intoxication and alcoholism and their effects on an individual's ability to appreciate and understand the consequences of his actions. Given the limited resources available, both financial and temporal, counsel's approach to the intent issue at the guilt/innocence phase of Grayson's trial and failure to retain and present expert testimony regarding alcoholism was reasonable. See Chandler, 218 F.3d at 1318 n.22 ("As we have recognized, Strickland's approach toward investigation 'reflects the reality that lawyers do not enjoy the benefit of endless time, energy or financial resources.' How a lawyer spends his inherently limited time and resources is also entitled to great deference by the court.") (citations omitted). This is especially true with respect to expert testimony regarding alcohol consumption. While detailed expert testimony regarding the effects of alcohol on an individual's appreciation of consequences may have been helpful to the jury, the effects of excess alcohol consumption are not necessarily outside the ken of the average juror.14 See United States v. Boyles, 57 F.3d 535, 551-52 (7th Cir. 1995) (rejecting claim of ineffective assistance of counsel which was based, in part, on trial counsel's failure to present expert testimony regarding intoxication, and noting that: "In recent years, there has been much media and television coverage dedicated to the problems of the use of alcohol, educational awareness programs from groups such as M.A.D.D., government mandated labels on bottles warning of the effects of alcohol consumption, and articles and reports concerning domestic violence and sexual assault involving alcohol consumption. In light of all of this information, as well as the jurors's common knowledge and experience in the everyday affairs of life, we are of the opinion that they were more than capable of concluding that [the victim was capable of communicating her lack of consent to the defendant despite her intoxication]").

Grayson points out trial counsel's own testimony at the state habeas hearing that he would have wanted expert evidence had he been able to afford it and that he realized the importance of expert assistance in defending a later capital case. As we have said many times before, a court should avoid "the distorting effects of hindsight" in reviewing a lawyer's performance and should look to "counsel's perspective at the time." Chandler, 218 F.3d at 1316 (citing Strickland, 466 U.S. at 689). Thus, even counsel's own hindsight regarding what might have influenced the jury cannot support a finding of deficient performance.15 "[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689. Because counsel's presentation of evidence regarding the issue of intent and Grayson's intoxication were reasonable under the circumstances facing counsel at the time, counsel's failure to do something more does not rise to the level of ineffective assistance of counsel. See Chandler, 218 F.3d at 1313 ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or 'what is prudent or appropriate, but only what is constitutionally compelled.'") (quoting Burger v. Kemp, 483 U.S. 776 (1987)). In sum, Grayson's presentation of evidence at trial to negate the element of intent was not ineffective.

Grayson next contends that counsel's closing argument to the jury regarding intent was ineffective, but the transcript of that argument belies this assertion. Counsel emphasized that the key question in the case was one of "intent." "The key word in that indictment for consideration by you is intentionally." "The evidence ladies and gentlemen, unequivocably [sic] to me does not demonstrate a capital offense." "Take a look at the intent to kill this woman." "Darrell said to you right there that he didn't go down there to kill this woman." "I submit to you that the scientific evidence . . . doesn't indicate that kind of killing." "Now I submit to you that there is no specific intent and there was no intent to end the life of Mrs. Orr when he went to that home." "Just as randomly as we have been brought together here today, I submit to you that as randomly that the facts fell into position on the night of the 23rd of December, 1980." "[W]eighing [the evidence] with what has been charged in that written indictment that he intentionally killed Mrs. Orr, or with the intent to kill Mrs. Orr, it is not there."

Defense counsel highlighted the testimony of the autopsy doctor that none of Mrs. Orr's injuries were life-threatening and that the injuries did not contribute to her death by asphyxiation. Thus, the injuries inflicted evidenced no intent to kill the victim. Counsel also queried why Grayson had not simply shot Mrs. Orr with the .38 pistol carried by Kennedy rather than bind her head in a pillowcase if the intent was to kill her. "If, in fact, Darrell went there to kill Mrs. Orr, he had the means readily available." Counsel stated that Grayson was strong enough to kill the small and weak Mrs. Orr with his bare hands if his intent had been to kill her. Defense counsel suggested that Grayson could have killed her more easily in that fashion if death had been his intent. Defense counsel also focused the jury on evidence that Mrs. Orr's hands were never bound by Grayson and Kennedy. If the intent of the pillowcase had been murder, counsel asked why the defendants would leave her hands free to remove the pillowcase from her face. "Another aspect about this intent that causes a question to me is the fact that Mrs. Orr's hands were not tied."

In arguing the lack of specific intent, defense counsel made references to Grayson's intoxicated state at the time of the crime. "We are not saying voluntary intoxication completely absolves him of his fault." "Why would two individuals, able bodied as Darrell was at that time and Victor Kennedy, drink themselves into a position of feeling power possibly, feeling that they need to have a reward for Christmas holidays or spending money for whatever reason around the Christmas holidays. Whatever was going through their system because of the cultural background, I don't know." Counsel encouraged the jury to come back with a verdict of a lesser included offense. "[Y]ou will have the opportunity not just to come back with a verdict of capital offense but manslaughter, murder and these offenses that may have been committed by my client, Mr. Grayson." Defense counsel told the jury that Grayson was ashamed for what he had done and commended him for telling the truth from the start about his conduct and accepting whatever punishment resulted. Counsel also pointed out to the jury that Grayson had no prior record of violent crime and came from a family and cultural background that may have influenced his actions.

Counsel's closing argument focused the jury on all the evidence, direct and circumstantial, that tended to negate Grayson's specific intent to kill. While there is undoubtedly always something more that could have been said in every case, counsel's closing argument at the guilt/innocence phase of Grayson's trial was far from unreasonable under the circumstances. Therefore, counsel was not ineffective in this regard.

Finally, Grayson contends that counsel's performance in the guilt/innocence phase was defective because counsel failed to request a reinstruction of the jury regarding intent following the jury's question to the court. In hindsight, trial counsel testified that the judge's failure to reinstruct the jury may have cost Grayson his life. Looking to the lawyer's conduct from his perspective at the time of the jury question, however, it is clear that his failure to request a reinstruction was not unreasonable. First, it is important to note that at the same time the trial judge informed counsel that a question had been posed, the judge stated that he felt that the original instruction was adequate and that additional charges to the jury were not appropriate. Because the jury had been instructed regarding intent only forty minutes prior to the question and because reinstruction of the jury is within the trial judge's discretion, defense counsel was not unreasonable in failing to pursue such an instruction after the judge's statements that no additional instruction was appropriate at that time. See Grayson v. State, 675 So. 2d 516, 523-24 (Ala. Crim. App. 1995) (reinstruction of the jury is within the trial judge's discretion under Alabama law).

Further, counsel's failure to ask for additional instruction was reasonable in light of his perspective at the time the jury came back with a question: counsel testified that he felt that his points about Grayson's lack of intent to kill Mrs. Orr had been communicated to the jury and that he felt optimistic about the question being asked. ("I just felt that this was very, very good, as far as this jury was concerned, and I was hoping that we were going to come out with the manslaughter conviction, or possibly even just a straight murder."). He testified that the prosecutors similarly felt that the jury had bought the defense case, saying to Bell: "I don't know how it happened, but I think that you whipped us on this, if that's what they're thinking." Therefore, in light of the perspective of both the defense and the prosecution at the time that the jury had understood the intent defense, counsel's failure to ask for additional instructions as to intent was not unreasonable. As testified to at the state habeas proceeding: "[s]o, even here, and even with this jury, but without any expert help or anything else, you gave them a run for their money on the question of whether there was intent or not?" Bell answered: "That's right."

Finally, it is important to examine the jury charge given in determining counsel's failure to ask for reinstruction. The record demonstrates that the court gave the jury repeated instructions about the element of intent and the necessity of a finding of an "intentional killing" to support the capital offenses contained in the indictment. For this reason as well, counsel's failure to request reinstruction was not unreasonable.

D. Ineffective Assistance at Sentencing Phase

Grayson next contends that trial counsel was ineffective at the sentencing phase due to counsel's failure to gather and present the evidence developed during Grayson's state habeas proceedings regarding: (1) Grayson's impoverished and dysfunctional family background; (2) Grayson's history of alcoholism; (3) Grayson's intoxication at the time of the offense; (4) Grayson's domination by his co-defendant; (5) Grayson's remorse over Mrs. Orr's death; and (6) Grayson's family's desire that his life be spared.

"The purpose of a sentencing hearing is to provide the jury with the information necessary for it to render an 'individualized sentencing determination . . . [based upon] the character and record of the individualized offender and the circumstances of the particular offense." Dobbs v. Turpin, 142 F.3d 1383, 1386-87 (11th Cir. 1998) (quoting Penry v. Lynaugh, 492 U.S. 302, 316 (1989) (citations omitted)). "A sentencing jury should 'not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'" Id. at 1387 (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978) (emphasis in original)).

Although no absolute duty exists to investigate particular facts or a certain line of defense, this Circuit has held that, in preparing for a death penalty case, "[a]n attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence." Porter v. Singletary, 14 F.3d 554, 557 (11th Cir. 1994) (citations omitted). "A failure to investigate can be deficient performance in a capital case when counsel totally fails to inquire into the defendant's past or present behavior or life history." Housel v. Head, 238 F.3d 1289, 1294 (11th Cir. 2001). However, counsel is not required to investigate and present all mitigating evidence in order to be reasonable. See Tarver v. Hopper, 169 F.3d 710, 715 (11th Cir. 1999). For that reason, even when trial counsel's investigation and presentation is less complete than collateral counsel's, trial counsel has not performed deficiently when a reasonable lawyer could have decided, under the circumstances, not to investigate or present particular evidence. See Housel, 238 F.3d at 1294.

In this case, we need not decide whether counsel's performance was in fact deficient because Grayson so clearly fails to satisfy the prejudice prong of the Sixth Amendment analysis. See Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."). Under the prejudice prong of Strickland, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Instead, "the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695; see also Tompkins v. Moore, 193 F.3d 1327 (11th Cir. 1999); Dobbs v. Turpin, 142 F.3d 1383, 1390 (11th Cir. 1998) ("Our analysis of the prejudice prong, however, must also take into account the aggravating circumstances associated with Dobbs's case, to determine whether 'without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different.'") (quoting Bolender, 16 F.3d at 1556-57); see also Chandler v. United States, 218 F.3d 1305, 1328 (11th Cir. 2000) ("The ultimate question is whether Chandler has shown that any deficient performance prejudiced him such that, without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different.") (Cox, J., specially concurring).

Even assuming arguendo ineffective assistance in the mitigating case at sentencing, there is no reasonable probability that the balance of aggravating and mitigating circumstances that led to the imposition of the death penalty in this case would have been different had counsel introduced the evidence compiled and presented in Grayson's state habeas proceedings. Two aggravating circumstances were found during the sentencing phase: (1) that the murder was committed during the commission of a rape, robbery, and burglary and (2) that the murder was especially heinous, atrocious, and cruel, especially when compared to other capital felonies. Several mitigating circumstances were also found: (1) Grayson had no long history of prior criminal involvement; (2) Grayson was nineteen years old at the time of the offense; and (3) Grayson was "relatively poor and unemployed, had abandoned his education in the tenth grade, although he did receive training at a technical school, had been raised without a father, and had given his mother little trouble in growing up, at the time of the capital felony."

The sentencing judge specifically rejected several other possible mitigating circumstances. The court found that "[t]here was no evidence that the Defendant was under the influence of extreme mental or emotional disturbance while committing the capital felony." Further, the court found that "[w]hile the Defendant was an accomplice in the capital felony, he did in fact commit the capital felony and certainly his participation was not relatively minor." With respect to Grayson's domination by his co-defendant, the sentencing judge found that there was no compelling evidence that Grayson acted under extreme duress or the substantial domination of any other person. Finally, the court found that there was "no compelling evidence that the Defendant lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. He clearly knew what he was going to do, what he was doing, and what he did, was wrong and illegal."

Based upon these factual findings, the sentencing judge found that "the actions of the Defendant were completely barbaric, showing a complete and utter disregard for not only human life, but human dignity. The Court cannot think of a case it has seen, heard, or even read, that would equal the cruelty shown in this case by the Defendant to Mrs. Orr. Indeed, the Court has some difficulty i[n] imagining what more the Defendants could have done to make this crime any more heinous, atrocious, or cruel."16

In light of the brutal nature of this crime against an elderly victim and the specific findings made by the court that sentenced Grayson to death, we find no reasonable probability that the mitigating circumstances gathered and presented in connection with Grayson's state habeas proceedings would have altered the balance of aggravating and mitigating factors in this case. First, none of the evidence developed in connection with the state habeas proceedings served to alter in any way the aggravating circumstance of a heinous and atrocious crime that supported the imposition of the death penalty in this case. The medical evidence presented at the state habeas proceeding, like the evidence at trial, showed that Mrs. Orr lived through a substantial portion of her ordeal, fighting her attackers and attempting to defend against repeated rapes, before finally dying. (Testimony of Dr. Joseph Burton, (opining that Mrs. Orr's bruises show that she was not unconscious during the attack, but awake and struggling). Grayson offered nothing at the state habeas hearing to alter his statements or his trial testimony that he repeatedly raped Mrs. Orr and that he taped the pillow case that killed her over her head. Nothing presented at the state habeas hearing undermined Grayson's trial testimony that he could have worked for the money he wanted, but that he had terrorized Mrs. Orr for it instead. Nor did the evidence presented at the state habeas hearing change Grayson's statements that he raped and terrorized Mrs. Orr to the point that he thought she might have a heart attack even though she had always been nice to him. Thus, the mitigating evidence not heard by the judge and the jury would not have served to alter the extreme aggravating circumstances present in this case.

Second, some of the information developed at the state habeas hearings may have been harmful to Grayson's request for a life sentence. The jury would have heard that Dr. Zimmerman's MMPI analysis of Grayson stated that Grayson was not a candidate for rehabilitation. ("The long-range prognosis for this individual is not good as this type does not learn from experience, including psychotherapy and incarceration."). The jury also would have heard Dr. McClaren's testimony that Grayson received a verbal IQ score of 88, a performance IQ of 80, and a full scale IQ of 83, which suggests average intellectual functioning. The jury also would have heard McClaren's opinion that Grayson was able to appreciate the consequences of his actions on the night of the murder despite his intoxication. Furthermore, we note that emphasizing Grayson's alcoholic youth and intoxication may also have been damaging to Grayson in the eyes of the jury. See Tompkins v. Moore, 193 F.3d 1327, 1338 (11th Cir. 1999) ("[A] showing of alcohol and drug abuse is a two-edged sword which can harm a capital defendant as easily as it can help him at sentencing.") (citing Waldrop v. Jones, 77 F.3d 1308, 1313 (11th Cir. 1996)); Clisby v. Alabama, 26 F.3d 1054, 1056 (11th Cir. 1994) ("Precedents show that many lawyers justifiably fear introducing evidence of alcohol and drug use."); Rogers v. Zant, 13 F.3d 384, 388 (11th Cir. 1994) (noting reasonableness of lawyer's fear that defendant's voluntary drug and alcohol use could be "perceived by the jury as aggravating instead of mitigating") (emphasis in original). Despite presenting evidence regarding Grayson's horrific childhood, Grayson presented no evidence that any of his eleven siblings had ever been convicted of any violent crime.17 The fact that Grayson was the only child to commit such a heinous crime also may have undermined defense efforts to use his childhood in mitigation. Thus, some of the "mitigation" evidence presented at the state habeas hearing actually may have been damaging to Grayson in the eyes of the judge and jury that sentenced him to death.

Third, some of these mitigating factors were known to the jury and the sentencing judge. They heard testimony that Grayson was intoxicated, that he was "bad with alcohol," and that he would not have committed the crime if he had been sober. The jury was specifically instructed that voluntary intoxication could negate a defendant's intent. Nonetheless, the jury recommended a sentence of death and the trial judge imposed a sentence consistent with that recommendation. The sentencing judge made a factual finding that Grayson had been drinking wine on that night.

Although the expert testimony presented at Grayson's state habeas proceedings offered a more complete picture of the possible role of alcohol in Grayson's history and in Mrs. Orr's death, we cannot find a reasonable probability that it would have changed the outcome for Grayson's sentencing judge or the members of the jury, all of whom heard testimony that Grayson was heavily intoxicated and that he would not have committed the crime but for alcohol.

The sentencing judge also acknowledged Grayson's family and cultural background as a mitigating circumstance in this case. He noted Grayson's impoverished background, his lack of education, and the absence of a father figure in his life. Although the graphic picture of Grayson's home life painted at the state habeas proceedings was not presented at trial, the judge did not wholly disregard Grayson's unfortunate background in sentencing him to death. In light of the horrendous nature of this crime, we find no reasonable probability that the sentence would have been different if the judge and jury had possessed detailed information regarding Grayson's history.18

In sum, we find no reasonable probability that the balance of aggravating and mitigating circumstances underlying Grayson's death sentence would have been different if the judge and jury had heard the state habeas evidence. "We note that '[m]any death penalty cases involve murders that are carefully planned, or accompanied by torture, rape or kidnapping.'" Dobbs v. Turpin, 142 F.3d 1383, 1390 (11th Cir. 1998) (emphasis added) (quoting Jackson v. Herring, 42 F.3d 1350, 1369 (11th Cir. 1995)). "In these types of cases, this court has found that the aggravating circumstances of the crime outweigh any prejudice caused when a lawyer fails to present mitigating evidence." Id. (citing Francis v. Dugger, 908 F.2d 696, 703-04 (11th Cir. 1990) (finding that the failure to present mitigating evidence of a deprived and abusive childhood did not prejudice capital defendant at trial for torture-murder of government informant) and Thompson v. Wainwright, 787 F.2d 1447, 1453 (11th Cir. 1986)).

In Thompson v. Wainwright, 787 F.2d 1447 (11th Cir. 1986), this court found that Thompson's trial counsel was ineffective in connection with the capital sentencing phase of his murder trial. In that case, Thompson and a co-defendant pled guilty to the brutal torture-murder of a woman at a motel after she failed to supply them with sufficient money. Id. at 1448. This court found that Thompson's counsel was ineffective in handling the capital sentencing trial that followed the guilty plea where counsel: (1) failed to investigate the background of the co-defendant; (2) failed to consider offering psychiatric reports despite counsel's belief that the defendant was retarded; and (3) failed to investigate the defendant's background, including early family life, school records, and service records. Id. at 1451-52.

Thompson's school records, ignored by his trial counsel, indicated that Thompson was "mildly retarded," that he had "poor motor skills," was "hyperactive and difficult." Id. at 1453. Four psychiatric reports prepared in advance of trial and ignored by Thompson's counsel revealed Thompson's troubled childhood and other potentially mitigating evidence: "[t]hree of the psychiatrists diagnosed Thompson as having a personality disorder; the fourth questioned the extent of Thompson's participation in the crime due to possible intoxication and drug use." Id. at 1453. Further, investigation regarding Thompson's co-defendant revealed that the co-defendant "was involved with violent motorcycle gangs, had been convicted of intimidating a government witness, and at age fourteen had killed a playmate." Id.

Despite the existence of this mitigating evidence that was unreasonably ignored and omitted by Thompson's counsel during Thompson's sentencing trial, this court found no prejudice:

Even had the jury heard this evidence, however, we are confident that Thompson's sentence would have been the same. The jury's determination was strongly supported by the aggravating circumstances introduced in the record. Nothing [counsel] could have presented would have rebutted the testimony concerning Thompson's participation in the brutal torture murder. The testimony indicated that although Surace initiated the beatings, Thompson took over, beating the victim with a chain, his fist, a chair leg, and a billy club. The testimony also indicated that it was Thompson who actually raped the victim with the chair leg and billy club. After hearing testimony that Thompson committed these atrocities, the jury heard nothing from Thompson himself in reply. . . . We do not believe that there is a reasonable probability that evidence of a difficult youth, an unsavory co-defendant, and limited mental capacity would have altered this jury's decision.

Id. at 1453. Thus, in light of the horrific nature of the killing, the court did not find a Sixth Amendment violation despite counsel's unreasonable handling of the sentencing phase of Thompson's case. See also Thompson v. Haley, No. 00-15572 (11th Cir. July 3, 2001); Gilreath v. Head, 234 F.3d 547, 552 (11th Cir. 2000) (finding no reasonable probability that relatively weak mitigation evidence would have changed outcome of capital sentencing); Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir. 1999) (finding no prejudice to support claim of ineffective assistance of counsel in capital case because aggravating circumstances surrounding strangulation of fifteen year old girl in the course of a sexual assault outweighed additional mitigating circumstances that could have been presented at sentencing of defendant's physical abuse as a child, substance abuse problems, and mental deficiencies); Clisby v. Alabama, 26 F.3d 1054, 1057 (11th Cir. 1994) (finding no prejudice from failure to present additional mitigating evidence at capital sentencing and stating: "[W]e are aware that, in reality, some cases almost certainly cannot be won by defendants. Strickland and several of our cases reflect the reality of death penalty litigation: sometimes the best lawyering, not just reasonable lawyering, cannot convince the sentencer to overlook the facts of a brutal murder - or, even a less brutal murder for which there is strong evidence of guilt in fact.") (emphasis in original); Daugherty v. Dugger, 839 F.2d 1426, 1432 (11th Cir. 1988) ("given the severity of the aggravating circumstances," failure to present psychiatric testimony was not prejudicial); Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir. 1986) (rejecting claim of ineffective assistance of counsel in sentencing phase under prejudice prong where aggravating circumstances of murders and direct evidence of guilt outweighed the relatively weak mitigating evidence available).19

As in Thompson, the murder in this case involved torture for money: Grayson and Kennedy repeatedly and brutally raped an 86 year-old woman when they could not find sufficient money to satisfy their greed. Despite Mrs. Orr's pleas that they take anything they want and leave her unharmed, Grayson and his co-defendant continued to beat and sexually assault her. As in Thompson, the victim survived this brutal ordeal, dying only after Grayson and Kennedy were through with her. Although the jury did hear from Grayson in this case, Grayson did not deny any of these extreme aggravating factors. As in Thompson, nothing contained in the mitigating evidence undermined Grayson's active participation in this heinous crime. Therefore, we are confident that Grayson's sentence would have been the same despite the presentation of mitigating circumstances in light of the brutality of the crime against an elderly widow who had been nothing but nice to him.20 Thus, Grayson has failed to meet his burden of demonstrating that he was prejudiced by the absence of additional mitigating evidence at sentencing and his Sixth Amendment claim fails.

IV. VOLUNTARINESS OF GRAYSON'S STATEMENTS TO LAW ENFORCEMENT

Grayson contends that the trial court erred in denying this motion to suppress his confessions. He contends that his intoxication and alcohol withdrawal, as well the coercive environment in which he was questioned, made his statements unreliable and involuntary. We disagree.

The evidence offered at the suppression hearing amply supports the trial court's finding that the confessions were voluntary. For example, Sergeant Pratt testified that he did not smell alcohol on Grayson or see any other indications of alcohol or drug use. Grayson was not slurring his speech and the only time that Pratt experienced difficulty understanding Grayson during his interviews was when Grayson lowered his head and talked "straight to the floor." Pratt acknowledged that no alcohol or drug tests were performed despite Grayson's statements that he had consumed gallons of wine the night before. He described Grayson's general demeanor as "normal," although he admitted that Grayson appeared nervous a few times and became fidgety. The transcripts of Grayson's statements also do not suggest that he was intoxicated or suffering from alcoholic withdrawal at the time. Further, these transcripts demonstrate the officers' repeated and exhaustive efforts to apprise Grayson of his rights and to ensure that his statements were voluntarily given. In light of this record, we conclude that the trial judge did not err in denying Grayson's motion to suppress his confessions.21

V. DENIAL OF SUFFICIENT FUNDS TO HIRE A FORENSIC PATHOLOGIST

Grayson's trial counsel sought funds to hire an expert forensic pathologist to refute and cross-examine the findings of the State's (a) forensic pathologist who performed Mrs. Orr's autopsy and (b) serology expert who examined blood and sperm samples taken from the crime scene. The trial court granted the motion up to the $500 statutory maximum allotted by the Alabama legislature. Grayson contends that his due process rights were violated because the $500 allowed was patently insufficient to retain competent forensic expertise.

The Supreme Court set forth the standards governing a criminal defendant's due process rights to appropriate expert assistance in Ake v. Oklahoma, 470 U.S. 68 (1985). In Ake, the Supreme Court held that "when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one." Ake v. Oklahoma, 470 U.S. 68, 74 (1985). In reaching this decision, the Supreme Court noted that there is no general obligation for a State to purchase for an indigent defendant all the assistance that his wealthier counterpart might buy. Rather, due process requires that an indigent defendant be given the "basic tools" necessary to present his defense. Taking into account the defendant's interest in the accuracy of the criminal proceeding, the limited financial burden imposed upon the State, and the value of psychiatric assistance in presenting an insanity defense, the Supreme Court found that such expert psychiatric assistance in investigating and presenting an insanity defense clearly constituted such a "basic tool." Id. at 77-83.

The Court emphasized that the entitlement to psychiatric assistance exists only in cases where a defendant's mental condition is "seriously in question" and that the State's obligation did not go beyond providing the defense with the assistance of one competent psychiatric expert. Further, the Court found that the states could provide such assistance as they saw fit and that a defendant's constitutional right did not include the authority "to choose a psychiatrist of his personal liking or to receive funds to hire his own." Id. at 82-83.

In this case, Grayson argues that his due process rights were violated not because of his need for expert psychiatric assistance, but because the trial court failed to award adequate funding to hire an expert pathologist. "Neither the Supreme Court, nor this court, has held that the Constitution requires a state to provide an indigent defendant with nonpsychiatric experts." Baxter v. Thomas, 45 F.3d 1501, 1511 n.24 (11th Cir. 1995) (citing Moore v. Kemp, 809 F.2d 702, 711-12 (11th Cir. 1987) (en banc) and Stephens v. Kemp, 846 F.2d 642, 646 (11th Cir. 1988)).22 As this court has done before, however, we will assume, without deciding, that the due process clause "could require the government, both state and federal, to provide nonpsychiatric expert assistance to an indigent defendant upon a sufficient showing of need." Moore v. Kemp, 809 F.2d 702, 711-12 (11th Cir. 1987) (en banc); see also Stephens v. Kemp, 846 F.2d 642, 646 (11th Cir. 1988).

Even assuming arguendo that Ake applies to nonpsychiatric assistance, we find that Grayson's due process claim lacks merit. Grayson's trial was not rendered fundamentally unfair by the absence of defense experts in forensic pathology and serology. This was not a case where the identity of the perpetrator of the crime was in question. Grayson admitted both before trial and from the stand that he had broken into Mrs. Orr's home, taped the pillow case over her head, and raped her. Indeed, the forensic evidence developed by the State was largely inconclusive as to Grayson's participation in the crime and it was Grayson's admissions that established the case against him. Thus, a defense expert to challenge what little forensic evidence was developed that tended to show that Grayson had committed the rapes and the killing, would have been useless in exonerating Grayson. See Stephens, 846 F.2d at 650 ("In light of the overwhelming evidence that Stephens did not act in self-defense, the expert testimony sought by the defendant would not have affected the outcome of the trial.").

Furthermore, to the extent that forensic evidence may have been helpful in supporting Grayson's theory that he did not intend Mrs. Orr's death, the absence of this evidence in no way rendered the trial fundamentally unfair. Grayson's counsel deftly highlighted the evidence from the autopsy doctor tending to show a lack of intent without the assistance of an expert: the absence of life threatening injuries, the slow death by suffocation, the absence of restraints on Mrs. Orr's hands, and the autopsy doctor's ability to remove the pillowcase without removing the tape. Further, the testimony offered by Dr. Burton in connection with Grayson's state habeas proceedings regarding the forensic evidence was largely cumulative of the findings of the autopsy doctor at trial and failed to add material information helpful to the defense theory of intent. Therefore, Grayson's claim that the denial of sufficient funds to retain forensic experts violated his due process rights also lacks merit.23

For all of these reasons, we conclude that the district court did not err in denying Grayson's § 2254 petition.

AFFIRMED.

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