Final Meal:

Steak, fried chicken breast, baked potato, salad, garlic bread, a pint of butter pecan ice cream, half a pecan pie and soda.

Final Words:

Mize, in his final statement to a room of about 25 witnesses, accused the Oconee County Sheriff's Office of setting him up. He said Hattrup tried to take responsibility "but the courts have never heard him. I saw my friend killed by another friend. I'm here because of a travesty of justice. It's on their hands, not mine. I'm ready."

Georgia Department of Corrections

MIZE, WILLIAM MARK
GDC ID: 0000159189
YOB: 1956
RACE: WHITE
GENDER: MALE
HEIGHT: 5'10''
WEIGHT: 226
EYE COLOR: BROWN
HAIR COLOR: BROWN
KNOWN ALIASES: HART,SAMUEL JR

STATE OF GEORGIA - CURRENT SENTENCE:
CASE NO: 204979
OFFENSE: MURDER
CONVICTION COUNTY: OCONEE COUNTY
CRIME COMMIT DATE: 10/16/1994
SENTENCE LENGTH: DEATH

CASE NO: 204979
OFFENSE: POSS FIREARM CONVCT FELON
CONVICTION COUNTY: BARROW COUNTY
CRIME COMMIT DATE: 09/12/1986
SENTENCE LENGTH: 5 YEARS, 0 MONTHS, 0 DAYS

CASE NO: 204979
OFFENSE: ARSON 1ST DEGREE
CONVICTION COUNTY: JACKSON COUNTY
CRIME COMMIT DATE: 08/08/1986
SENTENCE LENGTH: 12 YEARS, 0 MONTHS, 0 DAYS

STATE OF GEORGIA - PRIOR SENTENCES

CASE NO: 43795
OFFENSE: poss of marijuana
CONVICTION COUNTY: FULTON COUNTY
CRIME COMMIT DATE: N/A
SENTENCE LENGTH: 0 YEARS, 8 MONTHS, 0 DAYS OFFENSE: NOT AVAILABLE
CONVICTION COUNTY: CONVERSION
CRIME COMMIT DATE: N/A
SENTENCE LENGTH: NOT AVAILABLE

CASE NO: 108507
OFFENSE: NOT AVAILABLE
CONVICTION COUNTY: CONVERSION
CRIME COMMIT DATE: N/A
SENTENCE LENGTH: NOT AVAILABLE

CASE NO: 108507
OFFENSE: THEFT MOTORVEH OR PART
CONVICTION COUNTY: GWINNETT COUNTY
CRIME COMMIT DATE: N/A
SENTENCE LENGTH: 5 YEARS, 0 MONTHS, 0 DAYS

CASE NO: 108507
OFFENSE: ESCAPE
CONVICTION COUNTY: GWINNETT COUNTY
CRIME COMMIT DATE: N/A
SENTENCE LENGTH: NOT AVAILABLE

CASE NO: 108507
OFFENSE: crmnl trespassing
CONVICTION COUNTY: GWINNETT COUNTY
CRIME COMMIT DATE: N/A
SENTENCE LENGTH: NOT AVAILABLE

CASE NO: 108507
OFFENSE: ROBBERY
CONVICTION COUNTY: FULTON COUNTY
CRIME COMMIT DATE: N/A
SENTENCE LENGTH: 5 YEARS, 0 MONTHS, 0 DAYS

CASE NO: 108507
OFFENSE: NOT AVAILABLE
CONVICTION COUNTY: CONVERSION
CRIME COMMIT DATE: N/A
SENTENCE LENGTH: NOT AVAILABLE

STATE OF GEORGIA - INCARCERATION HISTORY

03/10/1995 ACTIVE
06/25/1987 to 03/25/1993
10/28/1977 to 02/11/1982
10/08/1974 to 01/23/1975

Georgia Attorney General

PRESS ADVISORY

Monday, April 13, 2009

Execution Date Set For White Supremacist Convicted For 1994 Oconee County Murder

Georgia Attorney General Thurbert E. Baker offers the following information in the case of William Mark Mize, who is currently scheduled to be executed on April 28, 2009 at 7:00pm.

Scheduled Execution

On April 13, 2009, the Superior Court of Oconee County filed an order, setting the seven-day window in which the execution of William Mark Mize may occur to begin at noon, April 28, 2009, and ending seven days later at noon on May 5, 2009. The Commissioner of the Department of Corrections set the specific date and time for the execution as 7:00pm on April 28, 2009. Mize has concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.

Mize’s Crimes

On direct appeal, the Georgia Supreme Court found the evidence at trial established the following:

Viewed in the light most favorable to the verdict, the evidence adduced at trial showed that Mize was the leader of a small group, similar to the Ku Klux Klan, called the National Vastilian Aryan Party (NVAP). Witnesses testified that Mize made all the decisions for the NVAP. Several witnesses also testified that Mize displayed a single-shot 12-gauge shotgun at an NVAP meeting and told the members that the shotgun was the kind of weapon that the group would use because it could not be traced. Several of Mize’s friends and co-workers were members of the NVAP, or in the initiation process. Eddie Tucker, the victim, had filled out an application form but was not a full member.

On Saturday, October 15, 1994, several NVAP members and applicants gathered at Mize’s home after Mize got off from work. Those present were Mize, Mark Allen, Chris Hattrup, Brian Dove, Samantha Doster (Mize’s girlfriend), and Tucker. Mize told Doster that the group was going camping that night and they all got in Mize’s car. When they were driving, Mize told the group that there was a crack house in Athens that he wanted "gotten rid of." Mize stated that he wanted Hattrup and Tucker to set the house on fire, and they stopped at a convenience store and bought a can of lighter fluid. Hattrup and Tucker were dropped off near the house but their attempt to set it on fire was unsuccessful. When they rejoined the group, Hattrup told Mize that he needed to talk with him. Hattrup also said, referring to Tucker, that they "didn’t need anybody around that couldn’t follow orders."

After spending an hour at a bar, Mize drove the group to a wooded area in Oconee County. Dove and Doster were given camping gear to carry and the group set out into the woods. No one had a flashlight even though it was night. Tucker was in the lead, followed by Mize, Allen, Doster, Dove and Hattrup. After they had gone only a short distance, Hattrup passed Dove and Doster and moved up the trail to talk with Allen and Mize. Mize told Allen to stop Dove and Doster from continuing into the woods. At this point, Tucker, Hattrup and Mize were out of sight in the woods ahead of Allen, Dove and Doster. There was a shot, and Tucker exclaimed, "My God, what did you do that for?" There was a second shot. Doster heard Hattrup ask Mize if he had the gun and Mize replied, "No, man. I thought you had it." Hattrup stated, "No. He took it away from me," and Mize said, "If you can’t finish it I can." Allen left Dove and Doster and moved up the trail. Dove and Doster heard a discussion among Mize, Allen, and Hattrup about muscle spasms and how Tucker was still moving. There was a third shot.

Dove and Doster ran back to Mize’s car. Mize emerged from the woods holding a shotgun and trying to break it down. Once in the car, Mize asked everyone if they knew why it was done. Everyone nodded in agreement. Mize told the group that the same thing could happen to them if they ran their mouth. Mize also told the group that, if asked about Tucker, they should say that they had dropped him off at a convenience store. While they were driving, Allen and Hattrup noticed that the barrel of the shotgun had shattered so they stopped at a bridge and threw the gun in a river. Later, Mize confided to Doster that he had finished Tucker off by shooting him in the head.

The police discovered Tucker’s body several days later. He had been shot in the back, chest and head with a shotgun. The medical examiner testified that the back and chest wounds were inflicted by a shotgun fired at close range. The victim’s head exhibited widely scattered pellet wounds that failed to penetrate the skull; the head wounds were consistent with a close-range shotgun blast that had shattered the barrel.

The medical examiner further testified that the shots to the back and chest tore through the victim’s right lung, but that none of the wounds were immediately fatal. The victim’s death was due to blood loss, and it could have taken him several minutes to die. A fragment of the shotgun barrel was discovered about two feet from the body’s location; the gun was not recovered.

After the body was discovered but before anyone was arrested, Chris Hattrup showed his roommate, Paul McDonald, the newspaper article about Tucker’s death and told him what had happened. When the crack house failed to burn, Mize asked how Tucker had done and Hattrup responded that Tucker "didn’t do what he was supposed to do." Mize then said, "you know what we have to do." Hattrup admitted to McDonald that he shot Tucker in the back and chest, but that Tucker was still alive. He was out of ammunition, though, so he asked Mize for another shotgun shell and Mize gave it to him. Hattrup then shot Tucker in the head. Hattrup also boasted to McDonald that he was now a "hit man for the Klan."

Brian Dove told the police what he had seen and heard that night, and he later testified at Mize’s trial. The other four NVAP members involved in Tucker’s death were arrested. After spending a year in jail, Doster agreed to testify against the others and her charges were dropped. Mize v. State, 269 Ga. 646-648, 501 S.E.2d 219 (1998).

The Trial (1995)

Mize was indicted in the Superior Court of Oconee County, Georgia on January 11, 1995, for the malice murder of Eddie Tucker. On December 12, 1995, a jury found Mize guilty of malice murder. The jury’s recommendation of a death sentence was returned on December 13, 1995.

The Direct Appeal (1998-1999)

The Georgia Supreme Court unanimously affirmed Mize’s conviction and death sentence on June 15, 1998. Mize v. State, 269 Ga. 646, 501 S.E.2d 219 (1998). Petitioner filed a petition for writ of certiorari in the United States Supreme Court, which was denied on January 11, 1999. Mize v. Georgia, 525 U.S. 1078, 119 S.Ct. 817 (1999).

State Habeas Corpus Petition (1999-2001)

Mize, represented by John Matteson, filed his first petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia on March 3, 1999. Mize subsequently discharged Mr. Matteson, and he filed, acting pro se, a second petition for writ of habeas corpus on March 19, 1999. In filing his second state habeas petition, Mize repeatedly made it clear that he was not represented by Mr. Matteson and that any pleadings filed by Mr. Matteson were to be withdrawn immediately. On April 7, 1999, Mr. Matteson filed a notice to dismiss the petition for habeas corpus previously filed by him on Mize’s behalf.

Mize then informed the state habeas corpus court that he wanted Bruce Harvey to represent him. As such, Mr. Harvey entered an appearance as counsel for Mize on April 9, 1999. Mize subsequently informed the court that he no longer wanted to be represented by Mr. Harvey. On October 8, 1999, the state habeas corpus court allowed Mr. Harvey to withdraw as counsel from Mize’s case. Thereafter, Mize informed the state habeas corpus court that he wanted to dismiss his state habeas corpus petition. On October 27, 1999, the state habeas corpus court entered an order dismissing Mize’s state habeas corpus petition without prejudice.

Mize, acting pro se, filed a third petition for writ of habeas corpus in the Superior Court of Butts County, Georgia on December 28, 1999. Again, Mize continually asserted his pro se status; however, Thomas H. Dunn of the Georgia Resource Center assisted Mize with his petition and provided Mize with evidence and investigative services.

In July of 2000, during the pendency of his state habeas corpus petition, Mize filed an extraordinary motion for new trial in the Superior Court of Oconee County wherein he alleged prosecutorial misconduct in that the prosecutor in his criminal trial suborned perjury from Samantha Doster. On January 26, 2000, the Honorable Lawton Stephens granted Mize a hearing on his extraordinary motion for new trial.

Prior to the commencement of an extraordinary motion for new trial hearing, an evidentiary hearing was held on Mize’s third state habeas corpus petition on February 1, 2001 with Mize acting pro se. At the close of the evidence, the state habeas corpus court entered an order closing the evidence and held that it would reserve ruling on his state habeas petition until the trial court ruled on Mize’s extraordinary motion for new trial.

Subsequently, Mize, with the advice of counsel, withdrew his extraordinary motion for new trial on July 2, 2001. Thereafter, the state habeas corpus court entered an order denying relief on January 10, 2002. Mize’s application for a certificate of probable cause to appeal filed in the Georgia Supreme Court was denied on July 15, 2002.

Federal Habeas Corpus Petition (2002-2007)

Mize, acting pro se, filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia, Athens Division, on October 31, 2002. Counsel was subsequently appointed by the court, and he filed an amended petition for writ of habeas corpus on July 21, 2003.

On November 17, 2006, the district court denied Mize federal habeas corpus relief. The district court then denied a motion to alter and amend judgment on January 17, 2007. Thereafter, the district court granted Mize a certificate of appealability on specific issues on March 22, 2007.

11th Circuit Court of Appeals (2008)

The case was orally argued before the Eleventh Circuit Court of Appeals on February 25, 2008. On July 2, 2008, the Eleventh Circuit issued an opinion which denied relief. Mizev. Hall, 532 F.3d 1184 (11th Cir. 2008). Mize filed a petition for panel rehearing, which was denied on August 27, 2008.

United StatesSupreme Court (2009)

Mize filed a petition for writ of certiorari in the United States Supreme Court on January 23, 2009, which was denied March 23, 2009. Mize v. Hall, 2009 U.S. LEXIS 2140 (Case No. 08-8359).

White supremacist executed

Atlanta Journal Constitution - AJC.com

Associated Press - Wednesday, April 29, 2009

Jackson, Ga. — A Georgia man has been executed for the murder of a follower of his white supremacist group.

William Mark Mize was put to death Wednesday by lethal injection at the state prison at Jackson. The 52-year-old inmate was pronounced dead at 7:28 p.m. by authorities. Mize became the second person executed in Georgia this year.

Mize’s attorneys sought this week to block the execution. But an appeals court dismissed their appeals and the U.S. Supreme Court also rejected a request to stay the execution.

Killer granted 24-hour reprieve; Execution delayed

By Adam Thompson - OnlineAthens.com

April 29, 2009

A condemned Madison County man received a last-minute stay of execution Tuesday as state and local courts worked through a technical issue in his 11th-hour appeal. But the stay, issued just hours before 52-year-old William Mark Mize was scheduled to die by lethal injection, likely gave Mize only a 24-hour reprieve. His execution has been rescheduled for 7 tonight.

The Georgia Supreme Court briefly delayed the death penalty so Oconee County Superior Court Judge Lawton Stephens could rule on a motion that Mize filed this month asking for a new trial. Stephens had denied Mize's request for a hearing on a motion for a new trial, but had not ruled on the motion itself, the high court said. That prevented justices from ruling on an appeal Mize's lawyers filed Monday with the Supreme Court.

Following the stay late Tuesday afternoon, Stephens explicitly denied the motion, adding that the denial was "implicit" in his previous orders. The state Department of Corrections then quickly rescheduled the execution. Mize's attorneys plan to re-appeal Stephens' decision to the Supreme Court. The stay, though, will automatically expire 24 hours after Stephens' 4:07 p.m. ruling.

Mize and his family heard about the stay just before visitation ended at 3 p.m. Tuesday at the Georgia Diagnostic and Classification Prison in Jackson, where Mize is on death row, said his attorney, Franklin J. Hogue. Without the stay, the meeting "would have been their last moments together," Hogue said. "They were elated, and they remain hopeful that Mark will not be executed."

Mize, a former Ku Klux Klansman, was to be put to death for the 1994 murder of a Hull man, Eddie Tucker. He led a small white supremacist group authorities said was related to the Klan, and was convicted in December 1995 of killing Tucker, another white man who had applied to join.

Mize and some of his followers went into the Oconee County woods Oct. 15, 1994, supposedly to camp, after Tucker and another group member failed to follow Mize's orders to burn down a purported crack house in Athens. Mize then killed Tucker with a shotgun blast, and the group left him in the woods, where he bled to death, prosecutors said. Two other members of Mize's group, the National Vastilian Aryan Party, also pleaded guilty to the murder and are serving life sentences.

In the years since his conviction, two group members have changed their stories and said Mize never fired at Tucker and didn't order his killing. Mize and his attorneys contend there is enough lingering doubt about his role in Tucker's death to keep him from the death chamber.

Gov. Sonny Perdue's office has received four letters since March asking for clemency for Mize, said office spokesman Chris Schrimpf. Most of the letters are from members of a church Mize has joined and say he has been "born again" while in prison, Schrimpf said.

However, state lawmakers years ago delegated the executive authority to grant clemency to the state Board of Pardons and Paroles, in an attempt to take politics out of those decisions, he said. The parole board already denied clemency this month for Mize.

Besides appeals from attorneys and family members representing Mize, the board hasn't received any letters or communication from outside asking for clemency, a spokeswoman said.

Killer sought death penalty; Execution Tuesday

By Adam Thompson - OnlineAthens.com

April 27, 2009

A man checking a mill pond late in October 1994 stumbled on a grisly scene in the Northwestern Oconee County woods. The discovery is expected to lead this week to the first execution for an Oconee County crime since 1946, authorities said.

Facedown on the leaf-covered ground that autumn day, about 50 feet on the Oconee side of the Apalachee River, lay the lifeless, bullet-riddled body of 34-year-old Eddie Tucker. Less than 14 months later, a jury decided that William Mark Mize, a Ku Klux Klansman from Madison County, used a shotgun to murder Tucker, a recently divorced construction worker from Hull.

Mize was a charismatic leader who prosecutors said had started a new Klan-like group and ordered a follower's death to maintain control. After his conviction, Mize turned his commands on the jurors, demanding a death sentence instead of "living death" in prison. "Sitting in an 8-by-10 cell, if you didn't go stone-cold lunatic, you'd commit suicide," he said then, according to reports. "Ladies and gentlemen, I'm not an idiot." Now, more than 13 years after the jury granted Mize's death-wish, the 52-year-old Atlanta native will be executed by lethal injection.

Federal and state courts have denied all of Mize's appeals in recent years, and the state parole board last week sunk his request for clemency, clearing the way for the execution Tuesday evening. The bizarre murder - of a white man, by a white supremacist who rallied his ragtag group by hoisting a shotgun overhead at one meeting - has stuck with many of the people involved in the case.

The stand

Hue Henry, the local attorney who defended Mize during his 1995 trial, still believes Mize is innocent. Tuesday's looming deadline brings "profound sadness" for Henry, he said last week. Mize took the stand against his lawyer's advice, delivering his death-minded diatribe during the one-day sentencing portion of the five-day trial.

Henry, who refused to participate in the sentencing, called the penalty phase "a state-sanctioned suicide" and the low point of his 37-year law career. "I felt like I was being compelled to choose between my legal responsibility and my moral duty to refuse assistance to a man who intended to ask the jury to kill him," he said. "It was the most excruciating moment of my life."

But Oconee County Sheriff Scott Berry, who had taken office just a year before the killing, said last week the jury was correct in sending Mize to his death. Although by no means happy about the execution, Berry said it would bring closure to one of his most memorable cases. He plans to witness Mize's final moments at the man's execution in Jackson. "Satisfaction isn't the word I'd use, but the state of Georgia has a right to demand that certain people pay the ultimate price for their crimes, and this was a case where Mark Mize deserves to pay the ultimate price for his crime," Berry said. "He's an unrepentant killer."

The fire

The sheriff's case against Mize came together quickly in 1994. Deputies and state investigators rounded up Mize and three followers less than a week after Tucker's body was found, charging them all with the murder. The other members of his fledgling supremacist group - he called it the National Vastilian Aryan Party - accompanied Tucker and Mize into the woods and facilitated the death, investigators said.

Two of the members, Christopher Hattrup and Terry Mark Allen, pleaded guilty and now are serving life sentences in prison. Prosecutors dropped charges against Mize's then-girlfriend, Samantha Doster, who testified against Mize.

The version of events that emerged at the trial begins on Oct. 15, 1994, when Mize and several NVAP members - some of them fellow electricians - gathered at Mize's Madison County trailer, then left to go camping. On the way, Mize told the group there was a crack house on Chase Street in Athens that he wanted "gotten rid of."

After buying some lighter fluid at a Hawthorne Avenue grocery store, they dropped off Hattrup and Tucker, who were supposed to set the house on fire. But the two didn't finish the job, and Hattrup later blamed the failed mission on Tucker, who had applied to the NVAP but wasn't yet a member.

According to Berry, Tucker had realized that Mize wanted them to burn not only the house, but the black resident inside as well. "In my opinion, Tucker got sucked along into something he didn't understand, and when he realized what it took to be a member of this group, he couldn't go along with it," the sheriff said. "Eddie Tucker died because he wasn't willing to hurt anybody." Tucker's family members declined to be interviewed last week.

After his body was found in 1994, though, they told reporters they were surprised to learn he had been involved in white supremacist activity. The Clarke County native was a good father to his children, who were 1 and 4 years old when he died, said his aunt, Inez Rogers.

The shots

That evening, the group headed for a bar in Winder, shot some pool, then drove to the Oconee County woods off U.S. Highway 78. They entered the trail after dark, without a flashlight. Soon, Tucker, Hattrup, Mize and Allen got ahead of Doster and another friend, who later testified they heard a shot and Tucker say, "My God, what did you do that for?"

Two shots followed, and then the group left the woods, without Tucker. Mize reportedly asked the group if they knew "why it was done" and threatened them with the same punishment for crossing him. The theory that Harry Gordon, then the district attorney, pieced together at trial was that Hattrup shot Tucker first, then Mize fired the third and final shot at his head to finish him off.

But Hattrup, who was under indictment during the trial and didn't testify, now claims he was drunk and fired all the shots. He wasn't acting under Mize's orders, he claims. Hattrup's sworn statements from prison, along with Doster's recanted testimony, have formed the basis of many of Mize's recent appeals.

To Henry and Mize's current attorneys, it's a shame that Mize was the first NVAP member tried for Tucker's murder. "The prosecution decided to try him first, which denied (Mize) the opportunity to call Mr. Hattrup as a witness, because (Hattrup) had a Fifth Amendment right to refuse to answer questions, which he understandably invoked," Henry said. "Mr. Hattrup told me prior to Mr. Mize's trial that he was the triggerman, not Mr. Mize."

Gordon, though, still has no question that Mize demanded the killing. "He was the mastermind on this thing. If you could see the people that he was leading - Mize wasn't by any means brilliant, but if you compare him with the people he was leading, he was a genius. "He was making them all do it. ... He participated," Gordon said. "There's always that little element in it that you never know who shot first, and nobody knows. But they just kind of left a man there to die."

Henry tried during the trial to convince jurors Mize's former friends were unreliable witnesses, especially Doster, who he said was offered "a remarkable carrot" in exchange for her testimony. "She was on the road to death row one day and on the streets of our community the next day," he said.

The Klan

Mize claims, in a hand-written federal petition for habeas corpus filed in 2002, that he left the Klan in 1988. Still, his racist past was given full exposure during his trial, as prosecutors showed jurors a KKK belt buckle, Klan banner and Confederate flag found in his trailer. The National Vastilian Aryan Party apparently was in its nascent stages when Tucker was killed. Mize and a few friends had met only a couple of times at his trailer outside Danielsville, performing initiation rites beneath a cross, according to testimony.

Mize, though, pictured himself as the next great Klan leader, authorities said. Henry thinks prosecutors prejudiced the jury by hammering away at the KKK connection. "Very inflammatory magazines and other extreme material was admitted at the trial, and no one seemed to notice that the victim was a Caucasian," he said. "No one suggested during the trial that the murder was racially motivated, but his admittedly bigoted history was placed before the jury in extreme form."

Witnesses who testified to the parole board on Mize's behalf this month portrayed him as a changed man. The pastor of a church he has joined since entering prison reportedly told the board Mize has renounced his racist past.

But Berry thinks Mize's behavior since his conviction tells a different story - especially his three years at the Oconee County Jail before being transferred to Jackson following his first failed appeals. "During the time he was here, he plotted escape attempts, he beat another inmate with a crutch he said he needed because of some back pain," Berry said. "He bit the ear off and actually swallowed a piece of the ear of another inmate. He's a violent, evil man."

The end

Mize, Berry said, "doesn't follow anybody." He apparently has feuded with and fired a long string of mostly court-appointed lawyers over the years. At one point, he filed attempted murder charges against one man he thought had failed in representing him, according to his habeas petition.

However, Mize's current attorneys, Franklin J. Hogue and Laura D. Hogue of Macon, have gotten along with him for most of the nearly eight years they've been with him. The Hogues contend there is lingering doubt about Mize's role in Tucker's killing, which should give the state pause as it gets ready to carry out his capital punishment.

Mize would be the second man put to death in Georgia this year and the 45th person executed in the state since the U.S. Supreme Court reinstated the death penalty in 1973.

ProDeathPenalty.com

William Mark Mize was the leader of a small group, similar to the Ku Klux Klan, called the National Vastilian Aryan Party (NVAP). Witnesses testified that Mize made all the decisions for the NVAP. Several witnesses also testified that Mize displayed a single-shot 12-gauge shotgun at an NVAP meeting and told the members that the shotgun was the kind of weapon that the group would use because it could not be traced. Several of Mize’s friends and co-workers were members of the NVAP, or in the initiation process. Eddie Tucker, the victim, had filled out an application form but was not a full member.

On Saturday, October 15, 1994, several NVAP members and applicants gathered at Mize’s home after Mize got off from work. Those present were Mize, Mark Allen, Chris Hattrup, Brian Dove, Samantha Doster (Mize’s girlfriend), and Tucker. Mize told Doster that the group was going camping that night and they all got in Mize’s car. When they were driving, Mize told the group that there was a crack house in Athens that he wanted “gotten rid of.” Mize stated that he wanted Hattrup and Tucker to set the house on fire, and they stopped at a convenience store and bought a can of lighter fluid. Hattrup and Tucker were dropped off near the house but their attempt to set it on fire was unsuccessful. When they rejoined the group, Hattrup told Mize that he needed to talk with him. Hattrup also said, referring to Tucker, that they “didn’t need anybody around that couldn’t follow orders.”

After spending an hour at a bar, Mize drove the group to a wooded area in Oconee County. Dove and Doster were given camping gear to carry and the group set out into the woods. No one had a flashlight even though it was night. Tucker was in the lead, followed by Mize, Allen, Doster, Dove and Hattrup. After they had gone only a short distance, Hattrup passed Dove and Doster and moved up the trail to talk with Allen and Mize. Mize told Allen to stop Dove and Doster from continuing into the woods. At this point, Tucker, Hattrup and Mize were out of sight in the woods ahead of Allen, Dove and Doster. There was a shot, and Tucker exclaimed, “My God, what did you do that for?” There was a second shot. Doster heard Hattrup ask Mize if he had the gun and Mize replied, “No, man. I thought you had it.” Hattrup stated, “No. He took it away from me,” and Mize said, “If you can’t finish it I can.” Allen left Dove and Doster and moved up the trail. Dove and Doster heard a discussion among Mize, Allen, and Hattrup about muscle spasms and how Tucker was still moving. There was a third shot. Dove and Doster ran back to Mize’s car. Mize emerged from the woods holding a shotgun and trying to break it down.

Once in the car, Mize asked everyone if they knew why it was done. Everyone nodded agreement. Mize told the group that the same thing could happen to them if they ran their mouth. Mize also told the group that, if asked about Tucker, they should say that they had dropped him off at a convenience store. While they were driving, Allen and Hattrup noticed that the barrel of the shotgun had shattered so they stopped at a bridge and threw the gun in a river. Later, Mize confided to Doster that he had finished Tucker off by shooting him in the head.

The police discovered Tucker’s body several days later. He had been shot in the back, chest and head with a shotgun. The medical examiner testified that the back and chest wounds were inflicted by a shotgun fired at close range. The victim’s head exhibited widely scattered pellet wounds that failed to penetrate the skull; the head wounds were consistent with a close-range shotgun blast that had shattered the barrel. The medical examiner further testified that the shots to the back and chest tore through the victim’s right lung, but that none of the wounds were immediately fatal. The victim’s death was due to blood loss, and it could have taken him several minutes to die. A fragment of the shotgun barrel was discovered about two feet from the body’s location; the gun was not recovered.

After the body was discovered but before anyone was arrested, Chris Hattrup showed his roommate, Paul McDonald, the newspaper article about Tucker’s death and told him what had happened. When the crack house failed to burn, Mize asked how Tucker had done and Hattrup responded that Tucker “didn’t do what he was supposed to do.” Mize then said, “you know what we have to do.” Hattrup admitted to McDonald that he shot Tucker in the back and chest, but that Tucker was still alive. He was out of ammunition, though, so he asked Mize for another shotgun shell and Mize gave it to him. Hattrup then shot Tucker in the head. Hattrup also boasted to McDonald that he was now a “hit man for the Klan.” Brian Dove told the police what he had seen and heard that night, and he later testified at Mize’s trial. The other four NVAP members involved in Tucker’s death were arrested. After spending a year in jail, Doster agreed to testify against the others and her charges were dropped.

At trial, the prosecution relied on the testimony of six principal witnesses in addition to the crime scene investigators. Brian Dove and Samantha Doster gave eyewitness accounts of the events before, on, and after October 15. Paul McDonald, Chris Hattrup’s roommate, testified about Hattrup’s statements regarding the incident. Ronald Allen, a member of the NVAP who was not present on October 15, testified that Mize displayed a shotgun at a meeting, and that Mize displayed animosity toward Tucker at a meeting less than a month before Tucker was killed. Michael Hollis, a prospective NVAP member, also testified that Mize displayed a shotgun at a meeting. Finally, Jeremy Phillips, a resident of the supposed crack house, testified that he put out a fire on the night of October 15, and that a detective later found a can of lighter fluid on the property.

The defense put on only two witnesses. Both testified that they remembered seeing Tucker at a restaurant on October 18, more than two days after he died (according to the crime scene investigators, Dove, Doster, and McDonald). The defense attempted to call Chris Hattrup, but because he had not yet finalized his plea deal, he asserted his Fifth Amendment privilege against self-incrimination. Hattrup later pled guilty to murder and received a sentence of life with no parole eligibility for twenty years. Mark Allen (who was also present on October 15) also did not testify; the record does not reveal whether he relied on his privilege or whether he was not called. Allen also later pled guilty to murder.

The jury convicted Mize of malice murder. During the sentencing phase, Mize took the stand and, while still asserting his innocence, testified that he wanted no sentence other than death. The jury sentenced him to death on the basis of two aggravating factors: he ordered another to commit the murder, and the murder was outrageously or wantonly vile (because it was accompanied by aggravated battery).

Canadian Coalition against the Death Penalty

CCADP.org

William Mark Mize, Death Row, Georgia
Information provided by William Mize and his supporters.
Wrongfully Convicted With Proof Of Actual Innocence !

90% of all prisoners claim to be innocent.
How many can actually prove it ? I CAN !

I have sworn affidavits.
The usual Death Penalty assistance groups won't help.

My case would start the ball rolling for a moratorium here in Georgia as was done in Illinois.

The Resource Center has attempted to delay and lose issues for me. They have withheld crucial documents from me and attempted to default so I could only have sentencing phase relief.

My case is ONLY attacking the conviction. I need an Attorney. I need an Attorney who will step in and fight and not delay.

My entire case can be won in less than a year. I am already in State Habeas proceedings. Is anyone out there willing to fight a winning case that will win on the conviction phase and thereby void the sentence ?

HELP ! Fast. Time is running out. Please call me today !
Lets win and when I walk out we'll get a moratorium here in Georgia. Contact me today !

WILLIAM'S PENPAL REQUEST :

White male, 44 years old, born July 30, 1956, 5'11" brown eyes, brown hair, 200 lbs. Divorced. 1 son. Locked up since October '94. Country boy at heart, love outdoors, NASCAR, history. Seeking friendship, moral support, legal help, romance, or just exchanging experiences. Prison has open mail policy. We can write anyone, even other prisons. All letters will be answered. Let me hear from y'all soon.

William Mark Mize
EF204979 G House
PO Box 3877
Jackson, Georgia
30233 USA

Profiles of inmates on Georgia's death row

By Sandy Hodson - Augusta Chronicle

Monday, September 22, 1997

Jack Edward Alderman, 45, was sentenced to death in June 1975 by a Chatham County jury for killing his wife, Barbara Jean Alderman, 27, on Sept. 21, 1974. His sentence was overturned on a federal appeal in 1980, but in April 1984, he was again sentenced to death. A co-defendant, John Arthur Brown, pleaded guilty for a life sentence and told investigators Mr. Alderman wanted to kill his wife for the insurance money. Mr. Brown was paroled in 1987. The state appeal concerning the fairness of Mr. Alderman's second trial has been pending in Mr. Alderman's case since December 1994.

Stanley Edward Allen, 42, was sentenced to death in Elbert County in July 1981. Mr. Allen and an accomplice, Woodrow Davis, 18, were convicted in the Jan. 5, 1981, break-in of the home of Susie C. Rucker, 72. Both men raped the woman, and she was strangled to death. Mr. Davis was sentenced to life in prison. Mr. Allen's death sentence was overturned by the Georgia Supreme Court in January 1982, but he was resentenced to death in October 1984. Mr. Allen had previously been sentenced to 10 years in prison for rape in 1975. Since September 1991, Mr. Allen has been awaiting a new sentencing trial on the issue of mental retardation.

James Douglas Andrews, 28, was sentenced to death on Oct. 16, 1992, in Muscogee County for rape, robbery and murder. Investigators say that on July 23, 1990, he broke into the home of Viola Hick, 78. His first appeal ­ to the state Supreme Court ­ hasn't been filed.

Joseph Martin Barnes, 27, was sentenced to death in Newton County in June 1993 for the robbery and shooting death of Prestiss Lamar Wells, 57, on Feb. 13, 1992. Although Mr. Barnes was sentenced to death four years ago, his first appeal hasn't been filed yet.

Norman Darnell Baxter, 45, was sentenced to death in Henry County in November 1983 for the murder of Kathryn June "June Bug" Brooks, 22. Her nude body ­ bound feet, wrists and neck ­ was found a week after she was reported missing in July 1980. Mr. Baxter, who spent time in state mental hospitals, had prior criminal convictions. A new sentencing trial has been pending since February 1995.

Jack Alfred Bennett, 68, was sentenced to death in Douglas County for killing his 55-year-old wife four days after they were married on June 24, 1989. As she lay sleeping, Mr. Bennett stabbed her more than 100 times and caved in the left side of her head with a claw hammer. His state appeal challenging the fairness of his trial has been pending since December 1995.

Billy Sunday Birt, 60, and Bobby Gene Gaddis, 56, were sentenced to death in Jefferson County for the Dec. 22, 1973, torture and killing of Lois and Reed Oliver Fleming, ages 72 and 75. Three other men, including the man who arranged the robbery-killings, were granted immunity. A third man, Charles Reed, was sentenced to life in prison. Four years after Mr. Birt and Mr. Gaddis were sentenced to death for killing the white couple, their sentences were overturned by a state judge reviewing the fairness of their trials. Nothing has been done since and this year the Department of Corrections moved Mr. Birt and Mr. Gaddis off death row.

Joshua Daniel Bishop, 22, was sentenced to death in Baldwin County on Feb. 13, 1996, for the robbery and beating death of Leverett Lewis Morrison, 44, who refused to turn over his jeep keys. Mr. Bishop helped beat to death another man and that evidence was used against him in his capital murder trial. His first appeal is pending.

Roy Willard Blankenship, 41, was sentenced to death in April 1980 in Chatham County for beating, raping and killing Sara Bowen, 78, for whom he had done work in the past. Ms. Bowen actually died from a heart attack brought on by trauma including being bitten, scratched and stomped. Mr. Blankenship has been sentenced to death three times, the last time in June 1986, following the reversal of his sentence. A state appeal challenging the fairness of his trial has been pending since March 1994.

Kenneth Dan Bright, 36, was sentenced to death in Muscogee County for the Oct. 30, 1989, robbery and murder of his grandparents, R.C. Mitchell, 74, and Fannie Monroe Mitchell, 69, less than eight months after being released from a mental hospital. Mr. Bright was a crack addict on parole at the time of the killings. His sentence was overturned by the state Supreme Court in March 1995. He's still awaiting retrial.

Ward Anthony Brockman, 25, was sentenced to death March 12, 1994. He and three others killed a service station attendant during an attempted robbery on June 27, 1990. Mr. Brockman, who was the triggerman, and his accomplices had pulled a number of armed robberies, and he was arrested after a chase in Phenix City, Ala. His first appeal to the state Supreme Court hasn't been filed yet.

James Willie Brown, 48, was sentenced to death in Gwinnett County in July 1981 after he had been hospitalized for nearly six years. Mr. Brown, who had a history of mental illness and convictions for an attempted rape and robbery, killed Brenda Sue Watson, 19, on May 12, 1975, after the two went out for dinner and dancing. A federal court reversed Mr. Brown's death sentence in 1988. He was sentenced to death a second time in February 1990.

Raymond Burgess, 38, was sentenced to death on Feb. 25, 1992, in Douglas County. During a robbery spree with co-defendant Norris Young. Mr. Burgess shot and killed Liston Chunn, 44, eight months after he was paroled from a life sentence for another robbery-killing. Mr. Burgess was also convicted in 1977 of armed robbery and sexual assault. Mr. Young was sentenced to life in prison. Mr. Burgess' state appeal challenging the fairness of his trial has been pending since August 1995.

David Loomis Cargill, 38, was sentenced to death in Muscogee County in July 1985 for the robbery and murder of a couple with four children under age 10. Cheryl Williams, 29, and Danny Williams, 41, were at a service station when Mr. Cargill and his brother, Tommy, robbed it the night of Jan. 22, 1985. The couple was forced to lie on the floor where David Cargill shot both twice in the head. Tommy Cargill received a life sentence. David Cargill's federal appeal challenging the fairness of his trial is pending.

Timothy Don Carr, 26, was sentenced to die in Monroe County in October 1992. He and his girlfriend were partying the night of Oct. 8, 1992, with Keith Patrick Young, 18, whom Mr. Carr stabbed numerous times, slit his throat and bashed his head with a baseball bat. Mr. Carr, who was on probation, and his girlfriend stole Mr. Young's car and $120. The girlfriend was sentenced to life in prison plus 20 years. Mr. Carr's first appeal to the state Supreme Court was denied in February. Mr. Carr's execution was set in August. Since Mr. Carr had no attorneys, a deadline to appeal to the U.S. Supreme Court passed in May. The state Supreme Court and U.S. Supreme Court rejected the Attorney General's attempt to lift the stay of execution.

Roddy Elroy Childress, 49, was sentenced to death in May 1994 in Glynn County for the shooting deaths of his half-sister's husband, Patrick Kappus, 40, and her daughter, Emma Kappus, 15, on May 1, 1989. Mr. Childress' conviction and sentence were overturned in March 1996, however, because Mrs. Kappus violated the rules of sequestration during the trial by talking to other witnesses about testimony. Mr. Childress is awaiting a new trial.

Scott Lynn Christenson, 26, was sentenced to death in Harris County in March 1990 for the robbery and murder of Albert L. Oliver III, 31. Mr. Oliver gave Mr. Christenson a ride on July 6, 1989. His body, with five gunshot wounds, was found later that day. Mr. Christenson, then 18, had a juvenile record of burglaries and thefts and adult convictions for forgery, burglary and car thefts. His state appeal challenging the fairness of his trial has been pending since October 1995.

Michael Anthony Cohen, 40, was sentenced to death in Glynn County in December 1986. Mr. Cohen, who had a history of burglary convictions, had been out of prison about a month when he started burglarizing homes again, stealing a handgun Oct. 13, 1985. The next day, Auzzie Douglas Sr., 55, a disabled man, was shot to death inside his home. His case has been sent back to Glynn County on the issue of mental retardation.

Robert Lewis Collier, 49, was convicted in Catoosa County in August 1978 for shooting to death a sheriff's investigator, Baxter Shavers, 24. Investigator Shavers was investigating a robbery call April 14, 1978, when shot. Investigator Shavers, the youngest chief deputy in state history at the time, was married with one son. Jeremy Shavers followed in his father's footsteps and now is a sheriff's deputy in Catoosa County. Mr. Collier's second federal appeal challenging the fairness of his conviction is pending in the 11th U.S. Circuit Court of Appeals.

Roger Collins, 38, was sentenced to death in Houston County on Feb. 17, 1978, for the rape and murder of Deloris Luster, 17. On Aug. 6, 1977, he and a friend offered Ms. Luster a ride. The teen was raped, then Mr. Collins killed her with a car jack. William Durham was sentenced to life in prison. Mr. Collins' case was returned to the Houston County trial court in March 1991 on the issue of mental retardation.

Robert Dale Conklin, 36, was sentenced to death in June 1984 in Fulton County. Mr. Conklin was having an affair with attorney George Grant Crooks, 27, when the two got into an argument on March 28, 1984, and Mr. Conklin stabbed the other man in the ear with a screw driver. Mr. Conklin said he panicked afterward because he was on parole at the time. So he drained the blood from Mr. Crook's body and cut it up into nine pieces. Mr. Conklin's appeal is pending in federal court.

John Wayne Conner, 40, was sentenced to death in July 1982 in Telfair County. Six months before, Mr. Conner was drinking with his friend, James T. White, 29, when he became enraged and started beating Mr. White with his fist, a whiskey bottle and a stick. In the most recent appeal action, Mr. Conner's state appeal challenging the fairness of his trial was denied in December. That decision is being appealed to the state Supreme Court.

Eddie A. Crawford, 50, was sentenced to death in Spalding County in March 1984 for the kidnapping, rape and murder of his 29-month old niece, Leslie Michelle English, on Sept. 25, 1983. The toddler was strangled to death, bruised and raped. He told police he remembered the toddler had been in his car and remembered carrying her out of the car. He was sentenced to death twice. He was on probation when he killed the girl.

Samuel David Crowe, 36, was sentenced to death in Douglas County in November 1989. The former church deacon was convicted of the robbery and murder of his former boss, Joe Pala, 39. Mr. Pala was knocked to the floor of Wickes Lumber Co., shot, hit with a paint can and crowbar, and covered in paint the night of March 2, 1988. Mr. Crowe had no criminal record before the killing. His first appeal to the state Supreme Court was denied in June 1995, and the U.S. Supreme Court rejected hearing the case on appeal in March 1996.

George Bernard Davis Jr., 39, was sentenced to death in Elbert County in February 1985. He was convicted of robbing and shooting to death Richard L. Rice, 63. The garage owner was found dead in his tow truck Feb. 13, 1984. His wallet had been stolen along with more than $800. Mr. Davis had argued with Mr. Rice over payments for car repairs. Davis, who had no major felony convictions before the killing, has been awaiting a trial court decision on the issue of mental retardation since April 1990.

Troy Anthony Davis, 28, was sentenced to death in Chatham County in September 1991 for killing an off-duty police officer, Mark Allen MacPhail, 27. Officer MacPhail was trying to break up a fight between Mr. Davis and another man when Mr. Davis shot him. He was wearing a bullet-proof vest, but as Mr. Davis stood over the officer and shot him again, the bullet pierced his side. Mr. Davis' state appeal challenging the fairness of his trial has been pending since March 1994.

Andrew Grant DeYoung, 22, was sentenced to die in October 1995 in Cobb County. He and a friend, David Michael Haggerty, 28, stabbed to death his parents and little sister ­ Gary Wayne, 42, Kathryn, 41, and Sarah, 14, ­ on July 15, 1993. Mr. DeYoung had no prior criminal record. Mr. Haggerty was sentenced to life in prison in July 1996. An appeal hasn't been filed yet for Mr. DeYoung.

Wilbur Wiley Dobbs, 48, was sentenced to death in Walker County in May 1974 for the shotgun slaying of Roy L. Sizemore, 50. The grocery store owner was killed Dec. 14, 1973, when Mr. Dobbs and two others robbed the store. A salesman visiting the store was also shot but survived, as did a female customer who suffered a skull fracture after she was hit with a gun butt. Mr. Dobbs' co-defendants were sentenced to life in prison. In May, a federal judge ordered a new sentencing hearing for Mr. Dobbs, ruling his trial attorney was ineffective.

Leonard Maurice Drane, 37, was sentenced to death in Elbert County in September 1992 for killing Linda Renee Blackmon, 27, on June 13, 1990, while he was on probation for other crimes. The trial was moved from Spalding County to Elbert County. She had been raped and shot. Her throat was cut. Co-defendant David Robert Willis was sentenced to life in prison. Three years ago, the state Supreme Court sent Mr. Drane's case back to the trial court for a ruling on appeal issues.

Eric Lynn Ferrell, 34, was sentenced to death in September 1988 in DeKalb County for the robbery and murder of his 72-year-old grandmother and 15-year-old cousin. The bodies were found Dec. 30, 1987. Both had been shot twice in the head at close range. Mr. Ferrell was on probation at the time. At the time of his grandmother's and cousin's killings, two of his uncles had killed a man and police initially thought the double homicide was revenge for that homicide. When arrested, police found four spent .22-caliber casings in Mr. Ferrell's pockets, along with $600. The murder weapon was later found at his home. A state appeal challenging the fairness of his trial and sentence has been pending since July 1995.

Eddie William Finney Jr., 40, was sentenced to death in Jones County in November 1977 ­ about three months after the bodies of Thelma Kalish, 69, and Ann Kaplan, 60, were found in their home. On Sept. 22, 1977, the women were robbed, raped and beaten to death. Mr. Finney and Johnny Mack Westbrook, who had both done yard work for the women, were convicted and sentenced to death. The Georgia Supreme Court reversed Mr. Westbrook's death sentence because the judge sent the jury back into the deliberation room when it first voted for life. Mr. Westbrook died of heart disease in prison in 1993. Mr. Finney's case was returned to the trial court in April 1991 for a decision on the issue of mental retardation.

Son Fleming, 66, was sentenced to death in January 1978 in Lanier County for the murder of Ray City Police Chief Ed Giddens, 29. The officer stopped a speeding car in February 1976, not knowing the men inside had just pulled an armed robbery. It was Chief Giddens' last day on the job ­ he had intended to move to Florida. Mr. Fleming's brother was sentenced to life in prison. Henry Willis III, 36, was sentenced to death, too, and he was executed May 18, 1989. Mr. Fleming was the test case for the 1988 mental retardation exception for the death penalty. He was returned to Lanier County in March 1991 for a new sentencing trial.

Melbert Ray Ford Jr., 36, was sentenced to death in Newton County in October 1986. Seven months before, Mr. Ford shot to death his former girlfriend, Martha Chapman Matich, 31, and her 11-year-old niece, Lisa Renee Chapman. Although prosecutors contended Mr. Ford killed the woman and child in revenge for a romantic breakup, Mr. Ford also robbed the store where Ms. Matich was working that night. His attorneys are currently appealing the denial of his first appeal challenging the fairness of his trial and sentence.

Timothy Tyrone Foster, 29, was sentenced to death in Floyd County in May 1987. Mr. Foster confessed that on the night of Aug. 27, 1986, he broke into the home of Queen Madge White, 79. Her jaw was broken, she had gashes on the top of her head and she had been sexually assaulted and strangled. Mr. Foster had a juvenile record including armed robbery. In July 1991, his case was sent back to the trial court on the issue of mental retardation.

Wallace Marvin Fugate III, 47, was sentenced to death in Putnam County in April 1992 for killing his estranged wife, Pattie Fugate, 40. On May 4, 1991, he broke into his wife's home and waited for her. When she came in, he grabbed Ms. Fugate and dragged her outside to his vehicle, pistol whipped her about 50 times and then shot her in the forehead. Their son, who witnessed the killing and testified against his father, was the victim of a homicide the next year. One of the men who beat his son to death is now on Death Row too. Mr. Fugate's attorney has appealed the denial of his first appeal, challenging the fairness of his trial and sentence in October 1996.

Kenneth E. Fults, 28, was sentenced to death in May in Spalding County for killing a neighbor, 19-year-old Cathy Bonds, after breaking into her home on Jan. 30, 1996. Mr. Fults smothered her with a pillow and then shot her before stealing her car. Mr. Fults had a history of mental illness but no prior felony convictions. A direct appeal hasn't been filed yet.

Carlton Gary, 46, was sentenced to death in Muscogee County in August 1986. Between Sept. 11, 1977, and April 19, 1978, eight elderly women in Columbus were raped and strangled in their homes. One survived. In 1984, a gun stolen in the same neighborhood as the killing spree was found in Michigan in the possession of Mr. Gary's cousin. Mr. Gary's fingerprints were then matched to some left in the homes of four of the homicide victims. He was convicted of murdering three women. Mr. Gary had been accused of the rape and murder of an 89-year-old New York woman in 1970 and an additional rape, but he blamed another man who was tried and acquitted. Mr. Gary's second state appeal challenging the fairness of his trial and sentence was denied in December 1995. On May 27, the U.S. Supreme Court rejected an appeal on the same grounds.

Johnny Lee Gates, 41, was sentenced to death in Muscogee County in September 1977. On Nov. 30, 1976, Mr. Gates posed as a gas company employee to get into the home of 19-year-old Katharina Wright, whom he robbed, raped and then shot in the head. Mr. Gates was on parole at the time. He was arrested on unrelated charges Jan. 31, 1977, and confessed. Between Mrs. Wright's killing and his arrest, Mr. Gates also committed two other armed robberies and voluntary manslaughter. In 1992, Mr. Gates' case was sent back to Muscogee County for a new sentencing trial on the question of mental retardation.

Exzavious Lee Gibson, 25, was sentenced to death in Dodge County in June 1990. He was convicted of robbing and stabbing to death 46-year-old Douglas Coley at the Eastman convenience store where Mr. Coley was working Feb. 2, 1990. Mr. Gibson, who was covered in Mr. Coley's blood when arrested shortly after the robbery-slaying, was convicted four months later. This year, Augusta Judicial District Superior Court Judge J. Carlisle Overstreet denied Mr. Gibson's state appeal challenging the fairness of his trial, although Mr. Gibson had no legal counsel.

Fred Marion Gilreath Jr., 59, was sentenced to death in Cobb County in March 1980 for the killing of his estranged wife and her father. On May 11, 1979, Linda Gilreath, 28, and Gerrit W. VanLeevwen, 57, were shot to death ­ she had been shot five times with a rifle, and then shot in the face at close range with a 12-gauge shotgun, he was shot with a rifle, shotgun and handgun. Mr. Gilreath's federal appeal challenging the fairness of his trial was denied in April 1996.

Daniel Greene, 30, was sentenced to death in December 1992 in Clayton County where the venue was changed from Taylor County. He committed a violent crime spree the night of Sept. 27, 1991, when he walked into a Reynolds convenience store and pulled a clerk into the back room, demanded money and stabbed her. He then stabbed customer Bernard Walker, 20, in the heart, killing him. A short time later, he forced his way into the home of an elderly couple he knew and stabbed both and stole their car. He then went to a convenience store in Warner Robins where he robbed and stabbed the clerk. In May, the state Supreme Court let the conviction and sentence stand.

Dennis Charles Hall, 41, was sentenced to death in August 1990 in Barrow County for the shotgun killing of his 10-year-old son, Adrian Hall. Police had been called to the Hall home numerous times before Jan. 7, 1990, when they found a drunken Hall and the dead child. His wife and two daughters told police Mr. Hall became enraged at Adrian for being noisy. The girls tried to hide Mr. Hall's gun, but he found it and shot the boy. He told a neighbor afterward, " I couldn't learn him nothing by beating him with a belt. So I guess I learned him something this time." His state appeal challenging the fairness of his trial has been pending since December 1995.

Willie James "Bo" Hall, 40, was sentenced to death in DeKalb County in February 1989 for killing his estranged wife, Thelma Hall, 23, who moved out of the family home just six days before her murder. On July 11, 1988, Ms. Hall made a frantic call to 911, and the dispatcher heard the sound of breaking glass and screams. Police arrived in minutes but, Mr. Hall had stabbed her 17 times. The day before, Mr. Hall told his sister-in-law that he would kill his wife and wouldn't get more than 10 years in prison for it. His state appeal was denied.

Emanuel Fitzgerald "Demon" Hammond, 30, was sentenced to die in Fulton County in March 1990 for the kidnapping, robbery, rape and murder of 27-year-old Julie Love. She was last seen by her boyfriend the night of July 11-12, 1988, when she left his apartment for home. A year later, in August 1989, Janice Weldon filed assault charges against Mr. Hammond after he tried to strangle her. Ms. Weldon told police that he and his cousin Maurice Porter killed Ms. Love. Mr. Porter confessed and took police to Ms. Love's remains near a trash pile. Ms. Love was kidnapped at gunpoint, Mr. Porter told police. Ms. Love was raped by Mr. Porter and beaten. Then the men tried to strangle her by wrapping a coat hanger around her neck and pulling the opposite ends. When that didn't work, Mr. Hammond shot her. Mr. Hammond had carjacked three other women ­ stabbing one and leaving her to die on a trash pile, and he also broke into a woman's home and raped her. As a juvenile, he raped, robbed and kidnapped a woman and slit her throat, and he raped and sodomized another. While awaiting trial, he bragged to a deputy that he also had raped Ms. Love. His state appeal challenging the fairness of his trial was filed in December 1995.

George Russell Henry, 28, was sentenced to death in Cobb County in November 1994 for shooting to death a police officer. Officer Robert Ingram, a two-year police veteran, was shot in the face and behind his left ear while he was investigating a report of a suspicious person. Mr. Henry had previously been convicted of burglaries and forgery and was on probation at the time of the murder. His first appeal to the state Supreme Court hasn't been filed yet.

Robert Karl Hicks, 40, was sentenced to death in January 1986 in Spalding County for the kidnapping, rape and murder of 28-year-old Toni Strickland Rivers. On July 13, 1985, Ms. Rivers was waiting for a friend at a public park when she disappeared. That night, two men driving down a country road heard a scream and saw a man making stabbing motions. Ms. Rivers bled to death. Mr. Hicks had previously been convicted of rape. At his trial, doctors testified yes and no that Mr. Hicks was mentally ill. The denial of his state appeal challenging the fairness of his trial was upheld by the state Supreme Court in November 1995.

Jose Martinez High, 38, was sentenced to death in December 1978 in Tallaferro County for the kidnap and murder of 11-year-old Bonnie Bulloch who was kidnapped along with his father in July 1976. Judson Ruffin and Nathan Brown also were convicted and sentenced to death for Bonnie's murder, but their cases were reversed on appeal. They were resentenced to life in prison. A fourth man with the gang when Bonnie and his father were kidnapped and shot, Alphonso Morgan, was convicted and sentenced to die in Richmond County for another abduction and murder in the gang's crime spree. His sentence, however, also was overturned and he's now serving a life sentence. A second federal appeal challenging the fairness of Mr. High's trial is pending.

John W. Hightower, 53, was sentenced to death in Morgan County in May 1988 for killing his wife and two stepdaughters. Mr. Hightower's trial was moved from Baldwin County, where on July 12, 1987, the bodies of Dorothy Hightower, 42, Sandra Reaves, 22, and Evelyn Reaves, 19, were found at their home. Each had been shot. Mr. Hightower was arrested hours later in his wife's car, a bloody handgun inside. He bought the murder weapon the day before the slayings. A federal appeal challenging the fairness of his trial has been pending since November.

Floyd Ernest Hill, 60, was sentenced to death in July 1981 in Cobb County for shooting to death Austell Police Officer Gregory Mullinax. On Feb. 8, 1981, Officer Mullinax was sent to a trailer park on a domestic disturbance call. Officer Mullinax became the target of the battling couple when Mr. Hill got into the fray and shot the officer, and the officer shot and killed another person in the fight. Mr. Hill's death sentence was overturned on federal appeal in December.

Warren Lee Hill, 36, was sentenced to death in September 1991 in Lee County for beating to death fellow inmate Joseph Handspike, 34, with a nail-embedded board on Aug. 17, 1990. At the time, Mr. Hill was serving time for a 1985 murder. Mr. Hill's state appeal challenging the fairness of his trial has been pending since April 1994.

Travis Clinton Hittson, 26, was sentenced to death in Houston County in March 1993 for killing 20-year-old Conway U. Herbeck, a fellow sailor. On April 3, 1993, Mr. Hittson, Edward Vollmer and the victim left Pensacola, Fla., where they were stationed, and drove to Mr. Vollmer's parent's home in Warner Robins. Mr. Vollmer wanted to kill Mr. Herbeck and gave Mr. Hittson a baseball bat to use on April 5, 1992. Mr. Hittson hit the victim in the head several times with the bat and then shot him. They cut up Mr. Herbeck's body, buried the torso in Houston County and the rest in Pensacola. Mr. Vollmer was sentenced to life in prison. Mr. Hittson had never been convicted of a felony before the killing. A state appeal challenging the fairness of his trial has been pending since December 1995.

Dallas Bernard Holiday, 34, was sentenced to death in November 1986 in Jefferson County for killing 66-year-old Leon Johnson Williams on March 11, 1986. Mr. Williams went on his usual early morning walk when Mr. Holiday attacked him, hitting him in the head at least seven times and shooting him. Mr. Holiday had broken into a home the night before and stolen the murder weapon. Mr. Holiday had prior felony convictions. His case was returned to the trial court on the issue of mental retardation in June 1990.

Robert Wayne Holsey, 31, was sentenced to death on Feb. 13, 1997, in Morgan County where his trial was moved. In December 1995, he shot to death Baldwin County Sheriff's Deputy Will Robinson, 26. The officer had stopped Mr. Holsey's vehicle after an armed robbery. At the time, Mr. Holsey had been out on parole less than a year following convictions for assault and armed robbery.

Tracy Lee Housel, 38, was sentenced to death in February 1986 in Gwinnett County for the rape and murder of 46-year-old Jean D. Drew. Ms. Drew was in the habit of stopping at a truck stop for a snack after her ballroom dancing lessons. On the night of April 7, 1985, she met Mr. Housel at the restaurant. Her body was found the next day, and he was arrested about a week later in Daytona Beach, Fla., after using her credit cards. He confessed to killing Ms. Drew, killing a man in Texas, and trying to kill two others in Illinois and Texas. He also confessed to murders in California and Tennessee. A decision is pending from the 11th Circuit Court of Appeals on Mr. Housel's federal appeal challenging the fairness of his trial.

Carl J. Isaacs, 43, was sentenced to death in Seminole County in 1974 and again in Houston County at a retrial in 1988. In May 1973 when he was 19 years old, he escaped from a Maryland prison and took off for Florida with his brother Billy, half brother Wayne Coleman and friend George Dungee. On May 14, 1973, they ran out of gas in Seminole County and stopped to burglarize a trailer. Within hours, they had shot to death Jerry Alday, Ned Alday, Jimmy Alday, Chester Alday and Aubrey Alday in addition to raping Mary Alday and then killing her. They were arrested in West Virginia with the murder weapons and items belonging to the Alday family. Billy Isaacs, 15 years old at the time of the killings, received a 40-year sentence. He was taken to Maryland in 1993 to serve a life sentence there for murder. At the 1988 retrial, Mr. Coleman and Mr. Dungee received life sentences.

Jonathen Jarrells, 40, was sentenced to death in March 1988 in Walker County for the robbery and murder of Gertie E. Elrod, a 77-year-old woman. On Aug. 24, 1987, Ms. Elrod and her sister, Lorraine Elrod, were attacked in their home by Mr. Jarrells. He stabbed both with scissors, tied their hands and feet and beat them with an iron. Lorriane survived the attack although she lost the sight in one eye and her hearing in one ear. When arrested in Hazard, Ky., he had items belonging to the Elrod sisters in his possession. In May 1991, Mr. Jarrell's case was sent back to the trial court on the issue of mental retardation.

Lawrence Joseph Jefferson, 42, was sentenced to death in March 1986 in Cobb County for the robbery and killing of his construction job supervisor Edward Taulbee, 37. On May 1, 1985, they went fishing at Lake Allatoona. Later, Mr. Jefferson arrived home in the victim's vehicle and told a neighbor, "My fat little buddy is dead." Mr. Taulbee's body was found the next day; he had been beaten with a stick and then his skull was crushed with a 40-pound tree trunk. In 1979, Mr. Jefferson had pleaded guilty in Louisville to armed robbery and burglary. His first appeal to the state Supreme Court and next state appeal challenging the fairness of his trial have been denied.

Larry L. Jenkins Jr., 21, was sentenced to death in Wayne County for the robbery and killing of the owner of a laundry and her 15-year-old son. Mr. Jenkins accosted Terry Ralston, 37, and her son Michael on Jan. 8, 1993. He kidnapped the mother and son and shot them both to death in a rural area. Although sentenced to death in September 1995, his first appeal to the Georgia Supreme Court hasn't been filed yet.

Ashley Lyndol Jones, 23, was sentenced to death in June 1995 in Coffee County. On March 31, 1993, in Ware County, Mr. Jones and co-defendant Allen Brunner were drinking and driving in a stolen vehicle when it developed car trouble. Mr. Jones knocked on the door at Carlton Keith Holland's home and asked for help. As Mr. Holland, 39, leaned over the engine and his wife watched through the window, Mr. Jones slammed a wrench and later a sledgehammer on Mr. Holland's head. Mr. Brunner was sentenced to life without parole. In March, the state Supreme Court affirmed Mr. Jones' conviction and death sentence.

Brandon Aston Jones, 54, was sentenced to death in October 1979 in Cobb County. On June 17, 1979, he and Van Roosevelt Solomon were arrested at a service station after an officer who just happened to drive up heard gunshots. In the storeroom, the officer found 29-year-old Roger Tackett, the station manager, who had been shot in the legs and arms and beaten before the fatal contact shot was fired behind his left ear. Mr. Solomon also was sentenced to death and he was executed on Feb. 20, 1985. In 1989, a U.S. District Court judge reversed Mr. Jones' sentence, ruling it was unfairly imposed considering the prosecutor's Bible quoting. Mr. Jones is still awaiting a new sentencing trial. In September 1996, the Department of Corrections transferred him off death row and into the general prison population.

Ronald Leroy Kinsman, 39, was sentenced to death April 18, 1987, in Muscogee County for the robbery and murder of a Hardee's manager. Bruce Keeter, 29, was found shot to death the morning of Sept. 14, 1984. About $400 was stolen from the restaurant safe, and Mr. Keeter's car was later found abandoned. Two years later, a friend of Mr. Kinsman's told police Mr. Kinsman had admitted to the murder. In 1976, Mr. Kinsman had been convicted of another robbery-murder and was paroled not long before Mr. Keeter was murdered. A state appeal challenging the fairness of his trial has been pending since December 1995.

J.W. Ledford Jr., 25, was sentenced to death in Murry County ­ with a jury selected from Gordon County ­ in November 1992 for the murder of a neighbor he had known all his life, Dr. Harry Johnston Jr., 73. On Jan. 31, 1992, Mr. Ledford went to the Johnston home and asked his wife, Antoinette, to speak to Mr. Johnston. He forced his way into the home at knife point, demanding money and guns. Mr. Johnston's body was found later, his head nearly cut off and a knife in his back. Mr. Ledford's state appeal challenging the fairness of his trial has been pending since December 1995.

James Allyson Lee, 22, was sentenced to death in June by a Charlton County Superior Court jury. On Nov. 17, 1996, he shot his 43-year-old stepmother, Sharon Varnadore Chancey, to death. Although Mr. Lee pleaded with the jury to spare him because he wasn't the same man who committed murder, when first questioned by police, Mr. Lee said killing was so easy it would be easy to do again.

Larry Lee, 36, was sentenced to death in November 1987 in Wayne County for the robbery and killing of a couple and their 14-year-old son. Clifford and Nina Murray Jones Sr., both 48, and Clifford Jones Jr. were killed April 26, 1988 ­ all had been shot, stabbed and beaten. Mr. Lee's brother Bruce Lee was reportedly also involved in the triple homicide, but he died while committing a burglary two months after the Jones family killings. Mr. Lee's state appeal challenging the fairness of his trial was denied, but the judge was ordered to reconsider it in June 1995 because of new case law.

William Anthony Lipham, 33, was sentenced to death in Coweta County in February 1987 for the rape, robbery, burglary and murder of a 79-year-old woman, Kate Furlow. Mr. Lipham was seen in Ms. Furlow's home on Dec. 4, 1985. The next day, her nude body was found at home with a .25-caliber bullet wound in her head. Mr. Lipham confessed but said he had sex with the elderly woman after she was dead. A state appeal challenging the fairness of his trial has been pending since 1989.

William Earl Lynd, 42, was sentenced to death in February 1990 for killing his girlfriend three days before Christmas 1988. Mr. Lynd was living with 27-year-old Virginia "Ginger" Moore when they got into an argument and he shot her in the face and went outside. Ms. Moore followed him outside where he shot her again and put her in the trunk of his car. When he heard noise from the trunk, he stopped the car and shot her a third time. After burying her body, Mr. Lynd drove to Ohio where he shot and killed another woman. He returned to Georgia and surrendered to police on New Year's Eve. Mr. Lynd had numerous convictions for prior assaults on women. His state appeal challenging the fairness of his trial has been pending since December 1995.

James Mathis, 51, was sentenced to death in Douglas County in May 1991 for killing J.L. Washington and his wife Ruby Washington, both 69. On Thanksgiving Day 1980, Mr. Mathis was seen in the back seat of the Washington's vehicle as they drove through their apartment complex. Their bodies were found in a wooded area. Both had been beaten, stabbed and shot. In 1989, a U.S. District judge reversed Mr. Mathis' death sentence because of ineffective counsel, but in 1992 the 11th Circuit sent the case back to the federal judge to explain the ruling.

Mark Howard McClain, 30, was sentenced to death in Richmond County in September 1995 for the robbery and murder of a Domino's Pizza store manager. In November 1994, Mr. McClain, who had previously been convicted of armed robbery, forced his way into the closed Domino's store and robbed Kevin Brown, 28. As Mr. McClain turned to leave he shot and killed Mr. Brown, an eyewitness testified. The witness got the license tag number off the getaway car and police traced the vehicle to Mr. McClain's girlfriend. Earlier this year, the state Supreme Court affirmed Mr. McClain's conviction and sentence, and in June, the U.S. Supreme Court refused to consider an appeal of that decision.

James R. McDaniel, 23, was sentenced to death in June by a Butts County Superior Court jury. He was convicted of murdering his grandparents ­ Erner and Eugene Barkley, ages 70 and 75, and his 10-year-old stepbrother, Justin Davis. Family members of the victims, also Mr. McDaniel's family, opposed the death penalty for the young man with a history of commitments to mental hospitals and crack addition. Police said Mr. McDaniel robbed his grandfather to buy crack.

Kim Anthony McMichen, 39, was sentenced to death in Douglas County in July 1993 for the shooting deaths of his estranged wife and her boyfriend. On Nov. 16, 1990, he shot Luan McMichen, 27, and Jeff Robinson, 27, and then walked his 8-year-old daughter past the bodies. Ms. McMichen's friends told police he had harassed her since she left him in January 1990 and that he had raped her. Mr. McMichen had no prior criminal convictions. His first appeal to the Georgia Supreme Court hasn't been filed.

Jimmy Fletcher Meders, 36, was sentenced to death in April 1989 in Glynn County for the robbery and murder of a convenience store clerk. Don Anderson, 47, was shot twice as he lay on the floor after being robbed of $38 the night of Oct. 14, 1987. Police say two men with Mr. Meders weren't involved in the killing and they weren't prosecuted. Mr. Meders' current attorneys claims just the opposite ­ that the other two men did the robbery and killing while a drunken Mr. Meders was in the back of the store. All three men had prior felony convictions. Mr. Meders state appeal challenging the fairness of his trial has been pending since April 1993.

Michael Miller, 34, was sentenced to death in November 1988 in Walton County for the robbery and killing of 35-year-old Larry Judson Sneed. On Oct. 29, 1987, Mr. Sneed was driving along a Walton County road when shots were fired at his vehicle and he was forced off the road. Mr. Sneed got out and ran but he was shot in the back and bled to death. Two days before, Mr. Miller and another man had kidnapped a man during a burglary. In January 1995 his case was sent back to the trial court on the issue of mental retardation.

Terry Mincey, 37, was sentenced to death in August 1982 in Bibb County for the robbery and killing of a store clerk, the mother of two small children. On April 12, 1982, Paulette Riggs was working at a convenience store when Mr. Mincey and two others decided to rob it. After making Ms. Riggs hand over the money, he walked her outside where Russell Peterman was pumping gas into his car. Mr. Mincey shot Mr. Peterman in the chest and when he fell, Mr. Mincey shot him again in the face. Ms. Riggs tried to run away, but Mr. Mincey shot her and after she fell, he shot her in the face. Mr. Peterman survived but lost 40 percent of his vision in one eye and lives with a bullet lodged near his spine. Mr. Mincey, a preacher's son, had at least three prior armed robbed convictions in 1977. His two co-defendants in the 1989 killing received life sentences. In September 1996, his federal appeal challenging the fairness of his trial was filed.

Nelson Earl Mitchell, 34, was sentenced to death in January 1990 in Early County for killing Iron City Police Chief Robert Cunningham, 51, during a routine traffic stop. Mr. Mitchell, who had prior convictions for larceny and theft, testified that the white police chief used racial slurs and the gun went off during a struggle. One issue the defense may raise on appeal is an allegation that the jury foreman's husband was sitting in the courtroom and allegedly signaled his wife to vote for death by drawing his finger across his throat. Although it's been more than seven years since his conviction, the first appeal to the Georgia Supreme Court hasn't been filed.

William Mark Mize, 40, was sentenced to death in Oconee County in December 1995 after demanding the jury sentence him to death. The Klansman ordered the killing of William Eddie Tucker, 34, because he was angry Mr. Tucker had messed up an arson job on a crack house in October 1994. Mr. Mize had prior convictions for escape, theft, arson, and being a felon in possession of a firearm. Co-defendants Christopher Hattrup and Mark Allen received life sentences.

Stephen Anthony Mobley, 31, was sentenced to death in Hall County in February 1994. During a Feb. 17, 1991, robbery of a Domino's store, he shot and killed 24-year-old John Copeland Collins. Mr. Mobley had been convicted of burglary and forgery, but he didn't get into violent crimes until 1991 when he began a robbery spree that ended in Mr. Collins' death. While awaiting trial, Mr. Mobley raped his cellmate and had Domino's tattooed on his chest. His state appeal challenging the fairness of his trial has been pending since March 1996.

Larry Eugene Moon, 52, was sentenced to death in Catoosa County in January 1988 for killing 34-year-old Ricky Callahan who had driven to a convenience store to buy his wife some aspirin on Nov. 24, 1984. At the time Mr. Callahan was murdered, Mr. Moon was hiding out in Georgia after committing a Tennessee murder. After killing Mr. Callahan, Mr. Moon drove back to Chattanooga and on Dec. 1, 1984, he robbed an adult book store and kidnapped a female impersonator whom he raped. The next day, he killed another man in Gatlinburg, Tenn., and shot at a woman; then on Dec. 7, 1984 he robbed a Chattanooga convenience store. He was arrested Dec. 14, 1984 in Oneida, Tenn., in another stolen car containing a number of guns, including Mr. Callahan's murder weapon. Mr. Moon's prior record included seven burglaries, three aggravated assaults and escape. Mr. Moon's federal appeal challenging the fairness of his trial was filed in April 1996.

Carzell Moore, 45, was sentenced to death in January 1977 in Monroe County for the Dec. 12, 1976 rape, robbery and murder of 18-year-old Teresa Carol Allen, an honors college student. Mr. Moore met up with Roosevelt Greene the day before the killing. Mr. Greene had just escaped from prison. On Feb. 12, 1976, they robbed the store where Ms. Allen worked, taking her, $466 and her vehicle. Both men raped Ms. Allen and Mr. Moore shot her. Mr. Green was arrested in South Carolina driving Ms. Allen's car. He was sentenced to death and executed Jan. 9, 1985, at the age of 28. Mr. Moore's sentence was overturned once but he was resentenced to death. It was overturned a third time, and a new sentencing trial has been pending since August 1992. Mr. Moore, who has a Web site, was transferred to the general prison population last September.

Ernest Ulysses Morrison, 36, was sentenced to death in November 1987 by Richmond County Superior Court Judge Albert Pickett. Mr. Morrison pleaded guilty to the rape, robbery and murder of a family acquaintance, Mary Edna Griffin, 54, on Jan. 9, 1987. Mr. Morrison asked Judge Pickett to sentence him to death. At the time he killed Mrs. Griffin, he was an escapee from the Aiken jail where he was awaiting trial for rape and robbery. A new sentencing trial to include the issue of mental retardation has been pending in Richmond County Superior Court since June 1993.

Robert L. Newland, 54, was sentenced to death in August 1987 in Glynn County for killing Carol Beatty, a 27-year-old woman who lived across the street from Mr. Newland and his roommate. Mr. Newland used a pocket knife to cut Ms. Beatty, slashing her throat deep enough to cut her vocal cords and her stomach enough for her intestines to show. Ms. Beatty lived for 22 hours after the attack and with an investigator's help she was able to spell out the name of her attacker. Mr. Newland had previously been convicted of a similar assault, but that conviction was reversed on appeal. His state appeal challenging the fairness of his trial has been pending since January 1991.

Curtis Osborne, 27, was sentenced to death in Spalding County in August 1991 for shooting to death two acquaintances ­ Linda Lisa Seaborne, 28, and Arthur Lee Jones, also 28. Mr. Osborne confessed that on Aug. 6, 1990, he shot both people as they sat in a car parked alongside a dirt road. His state appeal challenging the fairness of his trial and sentence has been pending since June 1994.

Lyndon Fitzgerald Pace, 32, was sentenced to death in March 1996 in Fulton County. Mr. Pace committed a series of rapes and murders, mainly preying on elderly women from August 1988 through February 1989. He was convicted of killing women ages 78, 86, 79, 78 and 42. He was also convicted of several burglaries during that time period His first appeal to the Georgia Supreme Court hasn't been filed yet.

Bryan Ashley Parker, 36, was sentenced to death in Douglas County in November 1984 for the sexual assault and murder of an 11-year-old girl June 1, 1984. When Christie Anne Griffith disappeared from her trailer park home, Mr. Parker was among the people police questioned. They later learned he had been convicted in Florida of a child molesting charge. Mr. Parker choked and tried to rape the girl while he left his 2-year-old son sitting a car parked nearby. His federal appeal challenging the fairness of his trial was filed in December.

David Aaron Perkins, 36, was sentenced to death in June in Clayton County for the Aug. 13, 1995, slaying of Herbert Ryals III, a 38-year-old man who lived in the same apartment complex. Prosecutors believe Mr. Perkins, who had a long history of criminal convictions for violence and theft, lured Mr. Ryals to his home to rob him. Mr. Ryals' body was found in the bathroom where he had fledtrying to defend himself from more than 11 stab wounds. During his trial when a Virginia police officer testified how Mr. Perkins had thrown a fellow officer through a window, Mr. Perkins taunted the courtroom by making boxing gestures.

Jack H. Potts, 52, was sentenced to death in March 1976 in two counties ­ Forsyth and Cobb counties for the kidnapping and murder of a 24-year-old good Samaritan, Michael Priest. Mr. Priest agreed to help Mr. Potts, who told him there had been an accident May 8, 1975. His co-defendant pleaded guilty to aggravated assault in exchange for a 10-year sentence. Mr. Potts escaped from the Forsyth County Jail in September 1987 and was shot twice by officers. Mr. Potts' conviction was overturned in May 1984, but he was resentenced to death in 1988 and again 1990.

Virgil Delano Presnell Jr., 43, was sentenced to death in October 1976 in Cobb County. Five months earlier, on May 4, 1976, he kidnapped two school girls . Mr. Presnell lay in wait for the 10- and 8-year-old girls, he confessed. He raped and sodomized the older girl and when 8-year-old Lori Ann Smith tried to run away, he drowned her in a stream. His sentence was overturned in 1992 by a federal appeals court. Mr. Presnell is still awaiting a new sentencing trial.

Mark Anthony Pruitt, 32, was sentenced to death in September 1987 in Pulaski County for the Montgomery County killing of 5-year-old Charise Walker. The girl was found raped, sodomized and beaten Nov. 15, 1986, when she disappeared from home. Charise, who's skull was fractured and leg broken, died a short time later. Mr. Pruitt was seen coming out of the woods where Charise was found. He wasn't wearing any pants and had blood on him. Mr. Pruitt has been awaiting a new sentencing trial on the issue of mental retardation since September 1994.

Timothy Pruitt, 25, was sentenced to death in Lumpkin County in October 1996 for the stabbing and strangulation killing of a 10-year-old neighbor girl. Wendy Nicole Vincent was killed in her own home. Mr. Pruitt's first appeal to the Georgia Supreme Court has not been filed yet.

William Howard Putman, 54, was sentenced to death in September 1982 in Cook County. Mr. Putnam, who had no prior felony record, attacked and robbed people at a truck stop the night of July 10, 1980, killing William Gerald Hodges, 49, David N. Hardin, 22, and Katie Christine Back, 28. His state appeal challenging the fairness of his trial was denied, as was his appeal of that to the state Supreme Court in September 1995.

Willie James Pye, 29, was sentenced to death in Spalding County in July 1996. He was convicted of the November 1993 rape, sodomy and shooting death of a 21-year-old woman in a supposed drug deal gone bad. His co-defendant was sentenced to life in prison. Mr. Pye still claims he's innocent and a motion for a new trial is pending.

Billy Daniel Raulerson Jr., 27, was sentenced to death in March 1996 in Chatham County for a Memorial Day 1993 killing spree. Mr. Raulerson killed 18-year-old Charlye Dixon and her fiance, 19-year-old Jason Hampton, raping Ms. Dixon after her murder. Mr. Raulerson then broke into the home of Teresa Gail Taylor, 40, and killed her. His first possible appeal to the Georgia Supreme Court has not been filed yet.

James Randall Rogers, 36, was sentenced to death in May 1982 in Floyd County for the torture and killing of a 75-year-old woman. On May 21, 1980, Grace Perry died when a rake handle was forced up her vagina so hard it punctured a lung, causing massive hemorrhaging. At the time of the killing, Mr. Rogers was on parole for burglary. Mr. Rogers' case has been pending in the trial court since 1994 on the issue of mental retardation.

Larry Romine, 45, was sentenced to die in April 1982 in Pickens County for the shotgun slayings of his parents, Roy Lee, 48, and Aville R. Romine, 50. Police say robbery was the motive for the March 19, 1991, double homicide. Mr. Romine's death sentence was reversed by the Georgia Supreme Court in June 1983, but he was resentenced to death again in August 1985. His federal appeal challenging the fairness of his trial was filed in 1996.

William C. Sallie, 31, was sentenced to death in March 1991 in Bacon County for killing his 41-year-old ex-father-in-law. In a violent rampage against his ex-wife and her family on March 31, 1990, Mr. Sallie shot to death John Lee Moore and wounded Mr. Moore's wife. He then kidnapped his ex-wife and her sister and took them to Liberty County where he repeatedly raped both women. His first possible appeal to the Georgia Supreme Court has not been filed yet.

Demarcus Ali Sears, 25, was sentenced to death in September 1993 in Cobb County. He and Phillip Williams kidnapped Gloria Ann Wilbur, 59, on Oct. 7, 1990, and then robbed, raped, stabbed and beat her with brass knuckles over a four-hour period. Mr. Williams was sentenced to two life sentences in May 1991. Mr. Sears first appeal to the Georgia Supreme Court has not been filed yet.

David Phillip Smith, 20, was sentenced to death Jan. 24 in Clayton County. He was convicted of the shotgun slaying of 16-year-old Jeremy Javies, a friend and neighbor. Mr. Smith methodically shot Jeremy in the arms and legs before putting the barrel of a sawed-off shotgun in the teen-ager's mouth and firing a final time. The first appeal to the state Supreme Court hasn't been filed yet.

Norris Speed, 26, was sentenced to death in October 1993 in Fulton County for killing a police officer, 32-year-old Niles Johantgen, known on his beat as "Russian." Prosecutors contended Mr. Speed was angry with Officer Johantgen who had arrested a man selling drugs from Mr. Speed's home, and for stopping and patting down three friends on Dec. 12, 1991. Witnesses said Mr. Speed walked up behind Officer Johantgen and shot him in the head. Mr. Speed had prior felony convictions. His first possible appeal to the state Supreme Court hasn't been filed yet.

Ronald Keith Spivey, 57, was sentenced to death in August 1977 in Muscogee County for shooting to death Columbus Police Officer Billy Watson, 41. The officer was off-duty on Dec. 28, 1976, when Mr. Spivey was in the process of robbing a lounge. Officer Watson, a six-year veteran officer, was married with three children. A federal appeal challenging the fairness of his trial has been pending since November 1995.

William Kenny Stephens, 49, was sentenced to death in Richmond County in February 1980 and again in November 1989. The second jury heard evidence of Mr. Stephens' schizophrenia and mental retardation but found death was the appropriate punishment for the shooting death of Investigator Larry D. Stevens, 38. The state Supreme Court sent Mr. Stephens' case back to Richmond County Superior Court for an answer to a question nearly seven years ago. The case has been pending every since.

Alphonso Stripling, 39, was sentenced to death in July 1989 in Douglas County. Mr. Stripling, who served time for armed robberies in 1973, 1979 and 1980, was convicted of shooting four co-workers on Oct. 15, 1988, when he decided to rob the fast food restaurant. Two of the employees ­ 19-year-old Anthony Evans and 34-year-old Gregory Bass ­ died from gunshot wounds. A state appeal challenging the fairness of his trial has been pending since June 1995.

Keith Bryan Taylor, 43, was sentenced to death in October 1990 in Pierce County for killing his 29-year-old estranged wife the day he received a court order to stay away from her. When an officer went to check on Lorrie Taylor on Jan. 12, 1989, Mr. Taylor answered the door dripping blood. The jury rejected an insanity defense by Mr. Taylor, who had been hospitalized for paranoid schizophrenic in 1987 and 1988. His state appeal challenging the fairness of his trial has been pending since December 1995.

Bryan Keith Terrell, 29, was sentenced to death in January 1995 in Newton County for the robbery and murder of 70-year-old John Henry Watson. Mr. Terrell had been released on parole about two months before Mr. Watson's June 22, 1992, murder. Mr. Terrell had forged about $8,000 in checks on Mr. Watson's bank account before the killing. Mr. Watson was beaten in the head and shot four times. Mr. Terrell's first possible appeal to the state Supreme Court hasn't been filed yet.

Keith Leroy Tharpe, 39, was sentenced to death in January 1991 in Jones County for the shotgun slaying of his 29-year-old sister-in-law, Jacqueline Freeman. On Sept. 25, 1990, Mr. Tharpe, who had repeatedly threatened and harassed his estranged wife and her family, used his vehicle to force his wife's car off the road. After shooting Ms. Freeman twice, he kidnapped and raped his estranged wife. Mr. Tharpe's only prior arrests were for driving violations. The state Supreme Court ordered the trial court to reconsider Mr. Tharpe's sentence, and that has been pending since February 1993.

Gary Chad Thomason, 21, was sentenced to death in Floyd County in October 1996. Mr. Thomason was convicted of killing 34-year-old Jerry Self, who was shot in his truck in his own driveway when he interrupted a burglary. Mr. Thomason's defense attorney had him plead guilty and waive a jury trial, leaving a judge to determine his punishment. The Supreme Court affirmed his conviction and sentence in July.

Ronnie Thornton, 32, was sentenced to death in November 1992 in Douglas County for the beating death of his girlfriend's 2-year-old daughter, Artealia Lavant, on May 7, 1991. Doctors determined Artealia and her siblings had been repeatedly abused. The state Supreme Court reversed Mr. Thornton's convictions in May 1994 because the prosecutor used videotaped testimony instead of calling the children to testify. A retrial hasn't been held yet and Mr. Thornton was transferred off death row in September. Artealia's mother, Shirley Lavant, pleaded guilty to cruelty to children and received a four-year sentence.

William Lamar Todd, 40, was sentenced to death in May 1989 in Harris County. On July 12, 1988, a co-worker found the body of Randy Churchwell, 33, at his home. Mr. Churchwell had been hit at least 12 times with a hammer. Mr. Todd later told police that he and his girlfriend stole Mr. Churchwell's wallet and car and headed to Texas where they were arrested two weeks later. Mr. Todd's only prior conviction was for simple possession of marijuana in Florida. A state appeal challenging the fairness of his trial has been pending since December 1995.

Johnny Lamar Wade, 41, was sentenced to death in March 1987 in Newton County for the strangulation killing of 13-year-old Lance Barnes. The boy disappeared Aug. 8, 1986, after riding his bike to the store. Lance was seen leaving the store with Mr. Wade, his bike in the back of Mr. Wade's pickup truck. Lance's body was found the next day in the woods, his bike nearby. He had been beaten on the head and strangled. The Georgia Supreme Court reversed Mr. Wade's death sentence, but he was resentenced to death by another jury in April 1989. His state appeal challenging the fairness of his second trial has been pending since January 1994.

Tommy Lee Waldrip, 51, was sentenced to death in October 1994 in Dawson County for killing an eyewitness to a robbery that his son committed. Keith Evans, 23, was beaten and shot to death on April 13, 1991. Mr. Waldrip's son John Mark Waldrip and friend Howard Kelly Livingston were both sentenced to life in prison. In March the Georgia Supreme Court affirmed Mr. Waldrip's conviction and sentence. In July, the state Supreme Court overturned Mr. Livingston's conviction.

Jamie Ray Ward, 41, was sentenced to death in July 1991 in Walker County for killing a 23-year-old woman who was five months pregnant. Investigators believe Mr. Ward was a serial rapist whose crimes escalated to murder on Aug. 17, 1989, when he abducted Nikia Gilbreath from her home. Mr. Ward was arrested months later after he kidnapped and raped a woman in another county and police found items belong to Mrs. Gilbreath at his home. Mr. Ward's state appeal challenging the fairness of his trial has been pending since April 1993.

Eurus Kelly Waters, 52, was sentenced to death in January 1981 in Glynn County for killing a teen-age girl and a woman. On April 25, 1980, emergency workers found 35-year-old Kathryn Ann Culpepper bleeding from a chest wound. She described Mr. Waters and his car and told police that she and her friend, 16-year-old Anita Lynette Paseur, were fishing when accosted. Anita's body was found that night on a back road, and Ms. Culpepper died five days later. Mr. Waters, a Waycross cab driver, had been treated for mental illness since 1978. His case was sent back to the trial court on the issue of mental retardation in December 1995.

Marcus Wellons, 41, was sentenced to death June 1993 in Cobb County. In December, Mr. Wellons came within three hours of execution because an attorney who had just volunteered to file an appeal petition was denied time to study the case. A U.S. District judge stayed the execution. Mr. Wellons was convicted of the rape and murder of 15-year-old India Roberts who lived in the same apartment building as Mr. Wellons' girlfriend on the morning of Aug. 31, 1989.

Frederick R. Whatley, 23, was sentenced to die in Spalding County this year for the Nov. 3, 1993, robbery and beating death of a McDonald's restaurant employee. The 18-year-old victim, Mark Fugate, was a key witness against his own father, Wallace Marvin Fugate III, who killed his mother and is now on death row in Georgia. Mr. Whatley's co-defendant Jeffery Cross hasn't been tried yet. Mr. Whatley's first appeal to the Georgia Supreme Court hasn't been filed yet.

Alexander E. Williams, 29, was sentenced to death in Richmond County in August 1986 for the kidnapping, robbery, rape and murder of 16-year-old Aleta Carol Bunch. She disappeared March 4, 1986. Her body was found 11 days later after Mr. Williams' then attorney told police where to look. Mr. Williams had prior convictions for theft and entering an automobile. In August, U.S. District Judge Dudley H. Bowen Jr. denied Mr. Williams' federal appeal challenging the fairness of his trial.

A jury convicted William Mark Mize of malice murder in the shooting death of Eddie Tucker. The jury recommended a death sentence after finding two statutory aggravating circumstances: 1) that Mize caused or directed another to commit the murder and 2) that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved an aggravated battery to the victim. OCGA 17-10-30 (b) (6), (7). 1 We affirm.

Viewed in the light most favorable to the verdict, the evidence adduced at trial showed that Mize was the leader of a small group, similar to the Ku Klux Klan, called the National Vastilian Aryan Party (NVAP). Witnesses testified that Mize made all the decisions for the NVAP. Several witnesses also testified that Mize displayed a single-shot 12-gauge shotgun at an NVAP meeting and told the members that the shotgun was the kind of weapon that the group would use because it could not be traced. Several of Mize's friends and coworkers were members of the NVAP, or in the initiation process. Eddie Tucker, the victim, had filled out an application form but was not a full member.

On Saturday, October 15, 1994, several NVAP members and applicants gathered at Mize's home after Mize got off from work. Those present were Mize, Mark Allen, Chris Hattrup, Brian Dove, Samantha Doster (Mize's girl friend), and Tucker. Mize told Doster that the group was going camping that night and they all got in Mize's car. When they were driving, Mize told the group that there was a crack house in Athens that he wanted "gotten rid of." Mize stated that he wanted Hattrup and Tucker to set the house on fire, and they stopped at a convenience store and bought a can of lighter fluid. Hattrup and Tucker were dropped off near the house but their attempt to set it on fire was unsuccessful. When they rejoined the group, Hattrup told Mize that he needed to talk with him. Hattrup also said, referring to Tucker, that they "didn't need anybody around that couldn't follow orders."

After spending an hour at a bar, Mize drove the group to a wooded area in Oconee County. Dove and Doster were given camping gear to carry and the group set out into the woods. No one had a flashlight even though it was night. Tucker was in the lead, followed by Mize, Allen, Doster, Dove and Hattrup. After they had gone only a short distance, Hattrup passed Dove and Doster and moved up the trail to talk with Allen and Mize. Mize told Allen to stop Dove and Doster from continuing into the woods. At this point, Tucker, Hattrup and Mize were out of sight in the woods ahead of Allen, Dove and Doster. There was a shot, and Tucker exclaimed, "My God, what did you do that for?" There was a second shot. Doster heard Hattrup ask Mize if he had the gun and Mize replied, "No, man. I thought you had it." Hattrup stated, "No. He took it away from me," and Mize said, "If you can't finish it I can." Allen left Dove and Doster and moved up the trail. Dove and Doster heard a discussion among Mize, Allen, and Hattrup about muscle spasms and how Tucker was still moving. There was a third shot.

Dove and Doster ran back to Mize's car. Mize emerged from the woods holding a shotgun and trying to break it down. Once in the car, Mize asked everyone if they knew why it was done. Everyone nodded in agreement. Mize told the group that the same thing could happen to them if they ran their mouth. Mize also told the group that, if asked about Tucker, they should say that they had dropped him off at a convenience store. While they were driving, Allen and Hattrup noticed that the barrel of the shotgun had shattered so they stopped at a bridge and threw the gun in a river. Later, Mize confided to Doster that he had finished Tucker off by shooting him in the head.

The police discovered Tucker's body several days later. He had been shot in the back, chest and head with a shotgun. The medical examiner testified that the back and chest wounds were inflicted by a shotgun fired at close range. The victim's head exhibited widely scattered pellet wounds that failed to penetrate the skull; the head wounds were consistent with a close-range shotgun blast that had shattered the barrel.

The medical examiner further testified that the shots to the back and chest tore through the victim's right lung, but that none of the wounds were immediately fatal. The victim's death was due to blood loss, and it could have taken him several minutes to die. A fragment of the shotgun barrel was discovered about two feet from the body's location; the gun was not recovered.

that the State possessed evidence favorable to the defendant; the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; the prosecution suppressed the favorable evidence; and had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceeding would have been different.

Burgeson v. State, 267 Ga. 102 (2) (475 SE2d 580) (1996). The notes were not favorable to the defense because they unequivocally stated that Mize participated in Tucker's murder. In addition, Mize claims that the notes revealed that Doster had used drugs on the night of the murder and that this information could have been used to impeach her recollection of events. The notes, however, only state that Doster had used drugs on some night prior to the night of the murder, and Doster readily admitted her past drug abuse at trial. We find no Brady error with regard to the State's notes of the interview with Samantha Doster. 2

The second contention, that the State withheld the identity of a GBI intern, is also not a Brady violation. Mize claims that the State should have given Mize the intern's identity because the intern had information that was exculpatory. When the body was discovered, the GBI attempted to sweep the vicinity of the body with a metal detector, but a GBI agent testified that the batteries died before they could complete the job. The agent also testified that a GBI intern was operating the metal detector at the scene. A month after the murder, the GBI returned to the murder scene with another metal detector and recovered a shotgun barrel fragment within two feet of the body's former location. At the hearing on the motion for new trial, Mize introduced an affidavit from Kevin Smith, the GBI intern, that stated that the batteries on the metal detector did not become low on the first crime scene search until after the area had been swept with the metal detector. Mize claims that the failure of the State to give the defense Kevin Smith's name prevented Mize from using Smith's information at trial to argue that the barrel fragment had been planted by the State. The name of the metal detector operator, though, is not by itself favorable to the defense. What Mize really contends is favorable to the defense is that the intern believed that the batteries had failed at a different time than the GBI agent supervising the crime scene. The record is clear that the State did not know this information before trial and therefore could not possess it and suppress it in violation of Brady. See Burgeson, supra. We find no Brady violation with regard to the identity of the GBI intern.

3. Mize complains that the State introduced inflammatory, irrelevant evidence about Mize's racist beliefs and Ku Klux Klan affiliation in an attempt to prejudice the jury. At trial, several witnesses testified about the racist goals and beliefs of Mize and the NVAP. Photographs of items seized from Mize's home, such as flags bearing the NVAP or Klan insignia, a racist poster, a Klan belt buckle, and a cross with NVAP symbols, were admitted into evidence. Normally, evidence concerning a defendant's political or racial beliefs is irrelevant to a determination of guilt or innocence. OCGA 24-2-2. Under the facts of this case, however, the evidence was admissible because it explained Mize's motive for the murder and his bent of mind. The evidence at trial showed that Mize, as leader of a small Klan-like organization, ordered and participated in Tucker's murder because Tucker had failed to follow Mize's orders to burn a crack house. " 'Evidence that is otherwise relevant and material to the issues in a criminal case does not become inadmissible simply because it incidentally puts a defendant's character or reputation into evidence.' " Boutwell v. State, 256 Ga. 63 (2) (344 SE2d 222) (1986), quoting Daniels v. State, 252 Ga. 30 (6) (310 SE2d 904) (1984); Earnest v. State, 262 Ga. 494 (1) (422 SE2d 188) (1992) (evidence of defendant's involvement in satanic cult admissible to show motive). The State had to present evidence of Mize's Klan affiliation and position within the NVAP in order to show his motive for the murder and his role in the killing.

4. Mize contends that the trial court erred by allowing Deputy William Ricketts to serve as a bailiff during Mize's trial. Mize claims that he needed to call Deputy Ricketts as a witness for impeachment purposes but could not do so because the deputy had formed a close relationship with the jury. Before trial, Mize moved to prevent any Oconee County deputies from serving as bailiffs during the trial. At a pre-trial hearing, Deputy Ricketts testified that his only role in the case was to provide security for a few hours on the road adjoining the crime scene. He never actually went into the woods to the crime scene, and was not involved in the investigation of the case. The State told the trial court that it did not intend to call Deputy Ricketts as a witness. The trial court ruled that Deputy Ricketts would serve as a bailiff because Deputy Ricketts was a certified EMT and the trial court wanted someone with medical training to be with the jury.

At trial, Investigator Ed Norman of the Oconee County Sheriff's Department testified that GBI Agent Cooper told him that the metal detector's batteries had died, but Investigator Norman's report stated that it was Deputy Ricketts who told him about the dead batteries. Mize claims that he needed to call Deputy Ricketts to impeach Investigator Norman, and that this dilemma should have resulted in a mistrial, which the trial court denied. We disagree with Mize's contention. First, Investigator Norman could have been impeached with his own written report. Second, nothing prevented Mize from calling Deputy Ricketts for the purpose of impeaching Investigator Norman. Mize points to Radford v. State, 263 Ga. 47 (426 SE2d 868) (1993), and Turner v. Louisiana, 379 U. S. 466 (85 SC 546, 13 LE2d 424) (1965), to support his claim that Mize's conviction must be reversed due to his need to call a bailiff as a witness. These cases do not support his argument, though, because they each involved bailiffs who were called as key witnesses for the prosecution. For example, in Radford, supra, a bailiff was called by the State and he testified that he was the first officer to respond to the scene of the crime, that he obtained a description of the defendant and his car from the victim's sister, and that he subsequently staked out the defendant's residence and observed some suspicious behavior. Radford, supra at 48-49. In Mize's case, the bailiff was never called as a State witness, and his involvement in the case was extremely minor. In fact, the rationale behind reversing the convictions in Radford and Turner, that the jury would tend to favor a witness with whom they had formed a bailiff-juror relationship, would seem to work in favor were he to call Deputy Ricketts to impeach Investigator Norman. We conclude that Mize suffered no prejudice from Deputy Ricketts serving as a bailiff in this case.

5. Mize claims that the State failed to prove chain of custody for the fragment of shotgun barrel admitted into evidence. This contention is without merit. There is no need to prove chain of custody for non-fungible physical evidence identified by a witness, since these items can be recognized by observation. Harper v. State, 251 Ga. 183 (1) (304 SE2d 693) (1983); Baker v. State, 250 Ga. 671 (1) (300 SE2d 511) (1983).

6. Mize complains that several prospective jurors were improperly qualified to serve by the trial court.

(a) Juror Hunsinger. Mize claims that Juror Hunsinger knew several of the law enforcement witnesses on the State witness list and was biased in favor of the prosecution. She stated that she had gone to high school with two of the witnesses, and that she had met another State witness because of her son's traffic violations. But she also stated that she had never been close friends with any of the witnesses, and that she had had very little contact with them in the previous decade (she had talked with one of her high school friends four times in the past eleven years). Even though Juror Hunsinger stated that she would be "hard pressed" to believe that the State witnesses whom she knew would fabricate evidence, she repeatedly and firmly stated that she would judge the credibility of the witnesses and the guilt of the defendant based on the evidence and the trial court's instructions. Whether to strike a juror for cause lies within the sound discretion of the trial court and the trial court did not abuse its discretion by denying the motion to strike Juror Hunsinger. Brown v. State, 268 Ga. 354 (3) (490 SE2d 75) (1997); Foster v. State, 248 Ga. 409 (3) (283 SE2d 873) (1981) (fact that juror has formed an opinion about the credibility of a witness does not mandate that the juror be excused for cause).

(b) Jurors Miller and Cutler. Mize claims that these jurors should have been struck for cause because they believed that the defense had a burden to produce evidence of Mize's innocence. It is apparent from the voir dire transcript that these jurors were confused about the State's burden to prove the defendant guilty beyond a reasonable doubt because they had not yet received any legal instruction from the trial court. When apprised that the State had the burden of proof and the defense did not need to produce any evidence, both jurors stated that they could adhere to this principle in their consideration of the case. The trial court did not abuse its discretion by refusing to strike these jurors for cause. Brown, supra.

(c) Juror Hicks. Mize did not move to strike Juror Hicks for cause, and the trial court did not err by failing to excuse her sua sponte. Spencer v. State, 260 Ga. 640 (1) (398 SE2d 179) (1990).

(d) Juror Gibson. Mize argues that Juror Gibson should have been excused for cause because he was predisposed to a death sentence. "The proper standard for determining the disqualification of a prospective juror based upon his views on capital punishment 'is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." ' " Greene v. State, 268 Ga. 47, 48 (485 SE2d 741) (1997), quoting Wainwright v. Witt, 469 U. S. 412, 424 (105 SC 844, 83 LE2d 841) (1985). Juror Gibson indicated that he would be "leaning" toward imposing a death sentence if the evidence showed that the murder was intentionally planned. However, he also stated that he could fairly and honestly consider all three sentencing options. A prospective juror cannot be excused for cause merely because he states that he is leaning for or against a death sentence. Greene, supra at 53. Instead, the relevant inquiry on appeal is whether the trial court's qualification of the juror is supported by the record as a whole. See id. at 49. Viewing the record as a whole and giving deference to the trial court's decision, we conclude that the trial court did not err by finding that Juror Gibson's views on capital punishment would not substantially impair his duties as a juror in accordance with his instructions and his oath. Id. at 48-49.

(e) Juror Rice. Mize complains that Juror Rice should have been excused for cause because he had negative feelings about the Ku Klux Klan that prevented him from being impartial. During voir dire, Juror Rice stated that he had personal feelings against the Klan and that he might not consider a member of the Klan to be as credible as another witness. Upon further questioning, Juror Rice stated that he had previously misstated and that he would not disbelieve someone just because they were in the Klan. He testified that he was against all kinds of hate groups, but that he would not apply his personal feelings when listening to the evidence. He further stated that Mize was presumed innocent and that he would follow the trial court's instructions. The trial court did not manifestly abuse its discretion by concluding that Juror Rice was able to lay aside his opinion concerning the Klan and render a verdict based on the evidence presented in court. See Diaz v. State, 262 Ga. 750 (2) (b) (425 SE2d 869) (1993); Irvin v. Dowd, 366 U. S. 717, 723 (81 SC 1639, 6 LE2d 751) (1961).

7. Mize complains that the trial court erred by allowing Samantha Doster to testify for the State even though the State failed to include Samantha Doster on its witness list. We disagree. A defendant has a constitutional and statutory right to a list of State witnesses before trial. Ga. Const., Art. I, Sec. I, Par. XIV; OCGA 17-16-3; 17-16-8; USCR 30.3. While Doster was not included on the State's witness list, this omission does not require a reversal because the purpose of the rule was satisfied. The witness list rule is designed to prevent a defendant from being surprised at trial by a witness that the defendant has not had an opportunity to interview. Ellis v. State, 248 Ga. 414 (3) (283 SE2d 870) (1981). The record shows that more than a month before trial the State informed Mize that it was dropping the charges against Doster in exchange for her testimony against Mize. Mize was also provided with a copy of the nolle prosequi order which explicitly stated that the dismissal of charges against Doster was in exchange for her testimony against the other defendants. Further, Doster was Mize's co-indictee and "a defendant is placed on due notice that all parties named as victims or co-indictees in an indictment may be called as witnesses." Byrd v. State, 216 Ga. App. 510 (4) (455 SE2d 318) (1995). In addition, the trial court allowed Mize's attorney to interview Doster before her trial testimony, and billing records introduced at the motion for new trial hearing show that Mize's counsel prepared for his impeachment of Doster a week before the trial. We conclude that Mize can show no harm resulting from the failure of the State to include Doster on its list of witnesses.

8. Mize complains that the prosecutor injected extrinsic and prejudicial matters into the guilt-innocence closing argument that had no basis in the evidence. See Bell v. State, 263 Ga. 776 (439 SE2d 480) (1994). Specifically, Mize complains that the State compared him to Charles Manson and that it urged the jury to consider the "type of person" Mize was in reaching a verdict. Mize, however, failed to object to any portion of the State's closing argument. "When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial." Todd v. State, 261 Ga. 766 (2) (a) (410 SE2d 725) (1991).

We find no error sufficient to overcome Mize's procedural default. The prosecutor's Manson analogy was used to illustrate Mize's control over the NVAP and his criminal liability from ordering Tucker's murder. "Analogizing a defendant or a defendant's case to a well-known defendant or case is permissible during argument if the analogy is supported by facts in evidence." Carr v. State, 267 Ga. 547 (7) (a) (480 SE2d 583) (1997). Compare Bell, supra (conviction reversed because prosecutor in drug trial closing argument referred to a well-known murder case and a rape case). In addition, when viewed in context, the "type of person" argument was used to rebut the defense assertion that Mize was just a bystander to the murder -- i.e., that Mize was the undisputed leader of his group and that he had surrounded himself with followers willing to act on his order. Under these circumstances, this argument was not improper.

9. Mize complains that the State introduced irrelevant and prejudicial evidence. At trial, the State introduced a flag bearing a marijuana leaf and the slogan "this bud's for you" that was hanging in Mize and Doster's home when Mize was arrested there. Pretermitting the issue of admissibility, we conclude that any error would be harmless because Doster testified that the flag belonged to her and not to Mize.

10. Mize claims that the trial court erred by allowing the State to display a weapon in the courtroom that was not the murder weapon. The murder weapon was not recovered. During the direct examination of a State witness who testified that he had been at an NVAP meeting where Mize had brandished a single-shot 12-gauge shotgun, the State showed the witness a single-shot 12-gauge shotgun and asked him if it was similar to the weapon that Mize had displayed. This was not improper. "A weapon that was not actually used in the commission of an offense, but which is similar to that which was so used is generally admissible into evidence." Boyd v. State, 264 Ga. 490 (2) (448 SE2d 210) (1994). The State expressly stated that the shotgun in the courtroom was not the actual murder weapon, and previous witnesses had testified that a similar shotgun had been the murder weapon. Id. We find no error.

11. Mize's trial counsel was not ineffective under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 1674) (1984). "In order to establish that trial counsel's performance was so defective as to require a new trial, [Mize] must show that counsel's performance was deficient and that the deficient performance so prejudiced [Mize] that there is a reasonable likelihood that, absent counsel's errors, the outcome of the trial would have been different." Roberts v. State, 263 Ga. 807 (2) (439 SE2d 911) (1994). There is a strong presumption that counsel's conduct fell within a broad range of reasonable professional conduct. Id. The record reveals that Mize's counsel attempted to minimize Mize's involvement in the murder through evidence that Hattrup had fired all three shots, and counsel attempted to show that the police had not been thorough in their investigation. Mize's counsel's performance was not deficient because these are reasonable strategic decisions. See Strickland, supra at 690-691. It is also apparent from the record that trial counsel conducted an adequate investigation under the circumstances, considering their client's refusal to allow an investigation for mitigation evidence. See Strickland, supra at 691. Mize additionally argues that his trial counsel improperly used a racial stereotype by characterizing Mize as a "redneck" and a "racist" during closing argument. See Kornegay v. State, 174 Ga. App. 279 (329 SE2d 601) (1985). Viewed in context, the defense's characterization of their client was a reasonable attempt to persuade the jury that Mize's unpopular views should not cause them to lean toward conviction (i.e., Mize may be racist but he is not a murderer), and that his Klan affiliation caused the police to rush to judgment. Judicial scrutiny of counsel's performance must be highly deferential, and the fact that Mize now disagrees with counsel's tactical choices does not require a finding of ineffective assistance of counsel. Strickland, supra; Stewart v. State, 263 Ga. 843 (6) (440 SE2d 452) (1994). We conclude that the trial court did not err by finding that Mize's counsel was not ineffective.

12. Mize refused to allow his attorneys to investigate and prepare for a mitigation defense during the sentencing phase of his trial. After the jury reached a guilty verdict, Mize informed the trial court that he had forbidden his lawyers from presenting a mitigation case, against his counsel's advice. Mize stated that, as a Christian, he believed in an "eye for an eye" and that, since the jury believed him to be guilty of murder, he should receive a death sentence. The trial court ordered a mental evaluation and a competency hearing before the trial could proceed. The psychologist testified that Mize was competent and was making an informed decision, and the trial court allowed the trial to continue. Mize took the stand, against his lawyer's advice, and asked the jury to return a death sentence. No other evidence was presented by Mize during the sentencing phase. Mize's lawyer then argued in closing that the State had failed to prove the statutory aggravating circumstances (Mize had tried to prevent his lawyer from arguing on his behalf in the sentencing phase but the trial court had refused to accede to this request). The trial court instructed the jury on all three sentencing options, and charged that they could return a life sentence for any reason or no reason at all.

Mize now complains that it was error to allow him to prevent the introduction of mitigation evidence. We disagree. The record reveals that Mize's lawyers, despite Mize's resistance, conducted some investigation of Mize's background and informed Mize about pursuing a mitigation defense. But the final decision about the defense belonged to Mize.

[A]fter having been informed, the defendant, and not his attorney, makes the ultimate decision about, for example, what line of defense to pursue, [cit.], whether or not to testify in his own behalf, [cit.], whether or not to plead guilty, [cit.], and whether or not to present witnesses in mitigation, [cit.].

In Pope, this Court held that the State has the burden to prove a valid waiver before a conviction resulting from a guilty plea may be used as aggravating evidence during the sentencing phase. Id. The State must prove that the earlier plea was voluntary and intelligent because "presuming waiver from a silent record is impermissible." Boykin v. Alabama, 395 U. S. 238, 242 (89 SC 1709, 23 LE2d 274) (1969). The trial court thus correctly ruled that the certified copy of Mize's 1977 robbery conviction was inadmissible. Pope, supra. The trial court, however, was not required to purge later convictions where the robbery conviction was proven as an element of the offense. The convictions for escape and possession of a firearm by a convicted felon resulted from jury trials, and both escape and possession of a firearm by a convicted felon require that the underlying previous felony conviction be proven as an element of the crime. OCGA 16-10-52; 16-11-131; Norris v. State, 227 Ga. App. 616 (1) (489 SE2d 875) (1997) (proof of the prior conviction is required in felony escape trials); Favors v. State, 182 Ga. App. 179 (2) (355 SE2d 109) (1987) (possession of a firearm by a convicted felon requires that the previous felony conviction be proven to the jury as one of the elements of the crime). The certified copies of Mize's indictments for escape and possession of a firearm by a convicted felon show that his 1977 robbery conviction was the previous, underlying conviction for both of these later convictions. Therefore, two juries have found beyond a reasonable doubt that Mize was convicted of robbery in 1977 as an element of these separate convictions. The trial court did not err by admitting certified copies of Mize's convictions for escape and possession of a firearm by a convicted felon. Mize also claims that the State was required to prove that his jury trial convictions were valid before they could be used in aggravation, but the State only has this burden with regard to the validity of guilty pleas. See Pope, supra; Boykin, supra. Mize additionally asserts that his attorney was laboring under a conflict of interest at his escape trial, and that the jury was tainted at his trial for possession of a firearm by a convicted felon. Since Mize did not raise these objections at trial, they are waived on appeal. Earnest, supra.

16. Mize claims that one of his attorneys violated the duty of loyalty and that this conflict of interest requires a new trial. From the beginning, Mize had refused to allow his lawyers to develop mitigation evidence in preparation for the sentencing phase of his trial. Mize's counsel asked Nancy Mau, an attorney with the MultiCounty Public Defender, to speak with Mize in an attempt to get his social history and to convince him to allow his attorneys to conduct a mitigation defense. Ms. Mau met with Mize and managed to obtain some limited information, but Mize continued to refuse to allow a mitigation defense. At no time did Mau actually represent Mize, and she conducted no investigation on his behalf. She testified that the staff at the MultiCounty Public Defender's Office frequently serve in an advisory capacity for attorneys representing capital defendants, and she considered herself only an advisor in the Mize case. Later, Ms. Mau met with Samantha Doster, at the request of Doster's counsel, and she encouraged Doster to keep her lawyer (Doster had threatened to fire her lawyer) and to seek a deal from the State. Doster's counsel was present for this meeting, and he had informed Mau that he was trying to strike a deal with the State. There was no conflict of interest in Mau meeting both Doster and Mize because Mau did not represent either of them, and her role in both cases was very limited. "A theoretical or speculative conflict will not impugn a conviction which is supported by competent evidence." Lamb v. State, 267 Ga. 41 (1) (472 SE2d 683) (1996). We find no error.

17. The death penalty in this case was not imposed under the influence of passion, prejudice or other arbitrary factor. OCGA 17-10-35 (c) (1). The death sentence is also not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. OCGA 17-10-35 (c) (3). The cases listed in the Appendix support the imposition of the death penalty in this case as they all involve the (b) (6) or (b) (7) aggravating circumstances.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Beth Attaway, Assistant Attorney General, for appellee.

Notes

1  The crime occurred on October 15 or 16, 1994. Mize was indicted by the Oconee County Grand Jury on January 11, 1995, for malice murder. The State filed a notice of intent to seek the death penalty on March 29, 1995, and Mize was tried before a jury from December 4-13, 1995, convicted and sentenced to death.

Mize filed a motion for new trial on January 4, 1996, and an amended motion for new trial on May 20, 1996. After a hearing, the amended motion for new trial was denied on August 22, 1996. Mize appealed to this Court, but his original trial counsel withdrew from the case. We remanded to the trial court on November 22, 1996, to consider appointment of new counsel issues. New counsel was appointed on January 30, 1997.

A motion for new trial following remand was filed on March 3, 1997, amended on June 30, 1997, and supplemented on August 4, 1997. The amended motion for new trial following remand was denied on October 2, 1997, and a second notice of appeal was filed on October 31, 1997. This case was docketed on December 10, 1997, and orally argued on March 9, 1998.

2  Mize did not elect to have OCGA 17-16-1 et seq. apply to his case. we note, however, that the prosecutor's notes of his interview with Doster would not have been discoverable under OCGA 17-16-7 because they were notes or summaries made by counsel." OCGA 17-16-1 (2) (C); Forehand v. State, 267 Ga. 254 (3) (477 SE2d 560) (1996).

Palmer C. Singleton III, for appellant.

Mize v. Hall, 532 F.3d 1184 (11th Cir. 2008) (Habeas).

Background: State prisoner under sentence of death petitioned for writ of habeas corpus. The United States District Court for the Middle District of Georgia, No. 02-00110-CV-CDL, Clay D. Land, J., denied the writ, and prisoner appealed.

Holdings: The Court of Appeals, Anderson, Circuit Judge, held that: (1) petitioner procedurally defaulted prosecutorial misconduct claim; (2) petitioner did not demonstrate cause for procedural default of prosecutorial misconduct claim based on ineffective assistance of counsel; and (3) decision of Georgia Supreme Court finding no Brady violation in failure of prosecution to disclose impeachment evidence was not contrary to, and did not involve an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; and (4) new evidence presented by petitioner was insufficient either to prove actual innocence claim or to invoke miscarriage of justice exception to procedural default doctrine. Affirmed.

ANDERSON, Circuit Judge:

Mark Mize, a death-sentenced prisoner in Georgia, appeals the district court's denial of his federal habeas petition. The district court concluded that Mize's prosecutorial misconduct claim was procedurally defaulted; that the Georgia Supreme Court's resolution of his Brady claim was neither contrary to nor an unreasonable application of Supreme Court precedent; and that Mize has not made out a claim of actual innocence. For the reasons detailed below, we affirm.

I. Facts

On direct appeal, the Georgia Supreme Court summarized the facts of Mize's case as follows:

Viewed in the light most favorable to the verdict, the evidence adduced at trial showed that Mize was the leader of a small group, similar to the Ku Klux Klan, called the National Vastilian Aryan Party (NVAP). Witnesses testified that Mize made all the decisions for the NVAP. Several witnesses also testified that Mize displayed a single-shot 12-gauge shotgun at an NVAP meeting and told the members that the shotgun was the kind of weapon that the group would use because it could not be traced. Several of Mize's friends and co-workers were members of the NVAP, or in the initiation process. Eddie Tucker, the victim, had filled out an application form but was not a full member.

On Saturday, October 15, 1994, several NVAP members and applicants gathered at Mize's home after Mize got off from work. Those present were Mize, Mark Allen, Chris Hattrup, Brian Dove, Samantha Doster (Mize's girlfriend), and Tucker. Mize told Doster that the group was going camping that night and they all got in Mize's car. When they were driving, Mize told the group that there was a crack house in Athens that he wanted “gotten rid of.” Mize stated that he wanted Hattrup and Tucker to set the house on fire, and they stopped at a convenience store and bought a can of lighter fluid. Hattrup and Tucker were dropped off near the house but their attempt to set it on fire was unsuccessful. When they rejoined the group, Hattrup told Mize that he needed to talk with him. Hattrup also said, referring to Tucker, that they “didn't need anybody around that couldn't follow orders.”

After spending an hour at a bar, Mize drove the group to a wooded area in Oconee County. Dove and Doster were given camping gear to carry and the group set out into the woods. No one had a flashlight even though it was night. Tucker was in the lead, followed by Mize, Allen, Doster, Dove and Hattrup. After they had gone only a short distance, Hattrup passed Dove and Doster and moved up the trail to talk with Allen and Mize. Mize told Allen to stop Dove and Doster from continuing into the woods. At this point, Tucker, Hattrup and Mize were out of sight in the woods ahead of Allen, Dove and Doster. There was a shot, and Tucker exclaimed, “My God, what did you do that for?” There was a second shot. Doster heard Hattrup ask Mize if he had the gun and Mize replied, “No, man. I thought you had it.” Hattrup stated, “No. He took it away from me,” and Mize said, “If you can't finish it I can.” Allen left Dove and Doster and moved up the trail. Dove and Doster heard a discussion among Mize, Allen, and Hattrup about muscle spasms and how Tucker was still moving. There was a third shot.

Dove and Doster ran back to Mize's car. Mize emerged from the woods holding a shotgun and trying to break it down. Once in the car, Mize asked everyone if they knew why it was done. Everyone nodded agreement. Mize told the group that the same thing could happen to them if they ran their mouth. Mize also told the group that, if asked about Tucker, they should say that they had dropped him off at a convenience store. While they were driving, Allen and Hattrup noticed that the barrel of the shotgun had shattered so they stopped at a bridge and threw the gun in a river. Later, Mize confided to Doster that he had finished Tucker off by shooting him in the head.

The police discovered Tucker's body several days later. He had been shot in the back, chest and head with a shotgun. The medical examiner testified that the back and chest wounds were inflicted by a shotgun fired at close range. The victim's head exhibited widely scattered pellet wounds that failed to penetrate the skull; the head wounds were consistent with a close-range shotgun blast that had shattered the barrel. The medical examiner further testified that the shots to the back and chest tore through the victim's right lung, but that none of the wounds were immediately fatal. The victim's death was due to blood loss, and it could have taken him several minutes to die. A fragment of the shotgun barrel was discovered about two feet from the body's location; the gun was not recovered.

After the body was discovered but before anyone was arrested, Chris Hattrup showed his roommate, Paul McDonald, the newspaper article about Tucker's death and told him what had happened. When the crack house failed to burn, Mize asked how Tucker had done and Hattrup responded that Tucker “didn't do what he was supposed to do.” Mize then said, “you know what we have to do.” Hattrup admitted to McDonald that he shot Tucker in the back and chest, but that Tucker was still alive. He was out of ammunition, though, so he asked Mize for another shotgun shell and Mize gave it to him. Hattrup then shot Tucker in the head. Hattrup also boasted to McDonald that he was now a “hit man for the Klan.”

Brian Dove told the police what he had seen and heard that night, and he later testified at Mize's trial. The other four NVAP members involved in Tucker's death were arrested. After spending a year in jail, Doster agreed to testify against the others and her charges were dropped. Mize v. State, 269 Ga. 646, 501 S.E.2d 219, 223-24 (1998).

At trial, the prosecution relied on the testimony of six principal witnesses in addition to the crime scene investigators. Brian Dove and Samantha Doster gave eyewitness accounts of the events before, on, and after October 15. Paul McDonald, Chris Hattrup's roommate, testified about Hattrup's statements regarding the incident. Ronald Allen, a member of the NVAP who was not present on October 15, testified that Mize displayed a shotgun at a meeting, and that Mize displayed animosity toward Tucker at a meeting less than a month before Tucker was killed. Michael Hollis, a prospective NVAP member, also testified that Mize displayed a shotgun at a meeting. Finally, Jeremy Phillips, a resident of the supposed crack house, testified that he put out a fire on the night of October 15, and that a detective later found a can of lighter fluid on the property. The defense put on only two witnesses. Both testified that they remembered seeing Tucker at a restaurant on October 18, more than two days after he died (according to the crime scene investigators, Dove, Doster, and McDonald).FN1

FN1. The defense attempted to call Chris Hattrup, but because he had not yet finalized his plea deal, he asserted his Fifth Amendment privilege against self-incrimination. Hattrup later pled guilty to murder and received a sentence of life with no parole eligibility for twenty years. Mark Allen (who was also present on October 15) also did not testify; the record does not reveal whether he relied on his privilege or whether he was not called. Allen also later pled guilty to murder.

The jury convicted Mize of malice murder. During the sentencing phase, Mize took the stand and, while still asserting his innocence, testified that he wanted no sentence other than death. The jury sentenced him to death on the basis of two aggravating factors: he ordered another to commit the murder, and the murder was outrageously or wantonly vile (because it was accompanied by aggravated battery). The Georgia Supreme Court determined that there was sufficient evidence for the jury to conclude either that Mize fired one of the shots, or that he intentionally aided, abetted, or ordered the murder. Mize, 501 S.E.2d at 224. The Supreme Court denied certiorari on January 11, 1999.

After the Georgia Supreme Court affirmed his conviction and the Supreme Court denied certiorari, Mize began a series of collateral challenges to his conviction in state court. Mize filed two state habeas petitions in March 1999 with the assistance of two different attorneys; each petition was voluntarily dismissed. He filed a third state habeas petition pro se in December 1999, with some assistance from yet another attorney, Thomas Dunn of the Georgia Resource Center (GRC).FN2

FN2. We refer to the state habeas case filed in December 1999 as the third state habeas case. The state courts refer to this as the second state habeas, apparently referring to the first two state habeas cases (both filed in March 1999) as a single case.

While the third habeas was pending, in June 2000, Doster executed an affidavit recanting her trial testimony. Dunn attempted to amend Mize's pro se petition to add a claim of prosecutorial misconduct based on the Doster affidavit. The claim would have alleged that the prosecution violated due process by suborning perjured testimony from Doster. Mize, however, refused to allow Dunn to represent him or to amend the petition. Mize allowed the Doster affidavit to be entered into evidence, but told the court to rely solely on his pro se pleadings, which did not contain the prosecutorial misconduct claim.

Judge Prior, of the Butts County Superior Court, held an evidentiary hearing on the third habeas petition in February 2001. Mize represented himself. Dunn attended the hearing and again attempted to assert the prosecutorial misconduct claim on behalf of Mize. Mize again expressly refused Dunn's assistance and refused to assert the claim at the hearing. At the close of that hearing, the habeas court closed the evidence, but reserved judgment pending the disposition of an extraordinary motion for new trial that Mize had recently filed in the trial court, i.e., in the Oconee County Superior Court before Judge Stephens.

Mize had filed the extraordinary motion for new trial in July 2000, and had asserted the prosecutorial misconduct claim. Judge Stephens granted a hearing on that claim, and denied relief with respect to all the other claims. However, in early July 2001, before the hearing could take place, Mize withdrew the extraordinary motion, on the advice of his attorney John Matteson. The reasons Matteson gave to Mize (as memorialized in an extensive correspondence) are disjointed and obscure. The record shows that Matteson may have had an ulterior motive for his advice: he was scheduled to attend a prepaid conference in Jackson Hole, Wyoming on the day of the hearing, and the trial court refused to reschedule the hearing to accommodate him. After Mize withdrew the motion, Judge Stephens canceled the hearing on the prosecutorial misconduct claim, in effect closing the case in Oconee County.

Back in the habeas court, Judge Prior-who had stayed the third habeas petition pending events in the Oconee Superior Court-did not act on Mize's petition for six more months. Though the Doster affidavit remained in the record, Mize never asserted the prosecutorial misconduct claim during this time. Mize also never asserted that Matteson had rendered ineffective assistance of counsel during the extraordinary motion for new trial proceeding. On January 10, 2002, Judge Prior denied the third habeas petition, finding that none of the claims in Mize's pro se pleadings had any merit. Mize filed an application for a certificate of probable cause with the Georgia Supreme Court, asserting for the first time his prosecutorial misconduct claim (among other claims).

Mize filed his federal habeas petition pro se in October 2002. Counsel was appointed and he filed an amended petition in July 2003. Only three of the claims contained therein are relevant to this appeal: the prosecutorial misconduct claim, a Brady claim, and an actual innocence claim.

While the federal case was progressing, Mize filed a fourth state habeas petition seeking to exhaust the prosecutorial misconduct claim in state court. The state habeas court denied the petition, finding that the claim was barred because it could have been raised in either the extraordinary motion for new trial proceeding or in the third habeas proceeding. Also, in this fourth state habeas, Mize asserted that Matteson had been constitutionally ineffective in advising him to withdraw the extraordinary motion. The state habeas court did not address this claim in its order.

The federal district court denied Mize's federal habeas petition. First, it held that the prosecutorial misconduct claim was procedurally defaulted because it had never been exhausted in state court and was now, according to the fourth state habeas court, procedurally barred. The court also held that Mize could not demonstrate cause to excuse the default because, even if Matteson was ineffective in advising Mize to withdraw the extraordinary motion, Mize could not explain why he failed to assert the claim during the third habeas proceeding.

The district court next addressed Mize's claim that the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to turn over six pages of notes from a pretrial interview with Samantha Doster. The Georgia Supreme Court had held that the notes were not exculpatory and had no impeachment value, and therefore did not need to be disclosed. Mize, 501 S.E.2d at 224-25. The district court concluded that this decision was not contrary to or an unreasonable application of Supreme Court precedent.

Finally, Mize asserted an actual innocence claim, relying on statements made by Chris Hattrup in his plea colloquy, at Mize's motion for new trial hearing, and in two affidavits. The district court held that this claim was procedurally defaulted and, alternatively, without merit. Mize now appeals. FN3

FN3. Pursuant to 28 U.S.C. § 2253(c), Mize filed a motion for a certificate of appealability with the district court in March 2007. The court granted the certificate of appealability on four claims: (1) whether Mize was denied due process by prosecutorial misconduct in the preparation and presentation of Doster's trial testimony, which she later recanted (prosecutorial misconduct claim); (2) whether Mize was denied due process when the assistant district attorney engaged in prosecutorial misconduct by withholding exculpatory evidence, i.e., the notes from the pretrial interview with Samantha Doster ( Brady claim); (3) whether Mize was denied due process when the state court failed to reverse his conviction in light of post-trial statements by the actual shooter that Mize did not participate in the murder (actual innocence claim); and (4) whether Mize was denied effective assistance of counsel when his trial counsel failed to adequately investigate and attempt to undermine at trial the state's theory that the murder was precipitated by a botched arson attempt. We address the prosecutorial misconduct claim in Part II of this opinion, the Brady claim in Part III, and the actual innocence claim in Part IV. Mize did not raise the last claim, ineffective assistance of counsel related to the state's arson theory, in his brief on appeal and it is therefore abandoned. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989).

II. Prosecutorial misconduct claim

The district court concluded that Mize's claim of prosecutorial misconduct, based on Doster's recantation of her trial testimony, was procedurally defaulted. Procedural default is a mixed question of law and fact, reviewed de novo. Baldwin v. Johnson, 152 F.3d 1304, 1317 (11th Cir.1998).

A claim is procedurally defaulted if it has not been exhausted in state court and would now be barred under state procedural rules. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001). A procedurally defaulted claim can support federal habeas relief in only two narrow situations. First, the petitioner may demonstrate cause and prejudice. Cause exists if there was “some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). Such external impediments include evidence that could not reasonably have been discovered in time to comply with the rule; interference by state officials that made compliance impossible; and ineffective assistance of counsel at a stage where the petitioner had a right to counsel. Id. In addition to cause, the petitioner must also show prejudice: that “there is at least a reasonable probability that the result of the proceeding would have been different” had the constitutional violation not occurred. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.2003).

Even without cause and prejudice, the procedural default of a constitutional claim may be excused if enforcing the default would result in a fundamental miscarriage of justice. This exception applies if the petitioner can show that, in light of new evidence, it is probable that no reasonable juror would have convicted him. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995). By making this showing of actual innocence, the petitioner may overcome the procedural default and obtain federal review of the constitutional claim. Id.

Mize has procedurally defaulted his prosecutorial misconduct claim. He never exhausted the claim, which would have required “raising both the factual and legal premises of the claims for relief that are now being asserted in the federal habeas proceeding.” Henderson, 353 F.3d at 898 n. 25. The prosecutorial misconduct claim became available in June 2000, when Doster executed her affidavit. Mize never asserted the claim in his third habeas proceeding. And, although he made the prosecutorial misconduct claim in the extraordinary motion for new trial proceeding, he withdrew the motion before the trial court could consider it. Mize thus never exhausted the claim in the Georgia courts.FN4

FN4. Mize argues that he raised the prosecutorial misconduct claim in a letter sent to Judge Prior in May 2001. This letter informed Judge Prior that Matteson would be representing Mize in the habeas proceedings and asked the Judge to give Matteson “wide latitude to repair whatever legal issues ... may have been messed up.” This statement in the letter does not fairly present the prosecutorial misconduct claim to Judge Prior. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971) (“[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.”); Ogle v. Johnson, 488 F.3d 1364, 1368 (11th Cir.2007) (stating that a petitioner satisfies the exhaustion requirement when his claims as presented in the state petition allow “a reasonable reader” to understand the “particular legal basis and specific factual foundation” of each claim).

Furthermore, Mize's application for a certificate of probable cause did not argue that Judge Prior erred in refusing to consider the prosecutorial misconduct claim purportedly raised in the May 2001 letter. Mize's fourth habeas petition also failed to make this argument. Therefore, Mize's prosecutorial misconduct claim was not exhausted. Furthermore, as the fourth state habeas court held, the claim is now procedurally barred under O.C.G.A. § 9-14-51. See Hill v. Jones, 81 F.3d 1015, 1022 (11th Cir.1996) (federal court must find that claim is procedurally defaulted if it is not exhausted and the state court has held that it is procedurally barred); see also Burger v. Zant, 984 F.2d 1129, 1135 (11th Cir.1993) (holding that section 9-14-51 is independent and adequate state procedural bar). Thus, absent one of the exceptions to the procedural default doctrine, Mize's prosecutorial misconduct claim cannot provide a basis for federal habeas relief.

Mize argues that he can demonstrate cause because he received ineffective assistance from Matteson during the extraordinary motion for new trial proceeding. Ineffective assistance during a stage where the petitioner had a right to counsel is a valid excuse for failing to follow a state procedural rule. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 2566-67, 115 L.Ed.2d 640 (1991). On the other hand, at stages where the petitioner had no right to counsel, “it is the petitioner who must bear the burden of a failure to follow state procedural rules.” Id. at 754, 111 S.Ct. at 2567. Because a petitioner has no right to counsel during state collateral review, even grossly ineffective assistance at the collateral review stage, or no assistance at all, does not constitute cause to excuse a procedural default. See In re Magwood, 113 F.3d 1544, 1551 (11th Cir.1997).

Mize blames his failure to present the prosecutorial misconduct claim to the state courts on Matteson. Mize claims that he had a right to counsel during the extraordinary motion for new trial proceeding. He further claims that Matteson was constitutionally ineffective because there was no good reason to withdraw the motion after the trial judge granted a hearing on the prosecutorial misconduct claim. Mize suggests that Matteson had a personal reason for his advice: to avoid missing the prepaid conference in Jackson Hole, Wyoming that was scheduled for the day of the hearing. Mize asserts that Matteson's ineffective assistance at a stage where he allegedly had a right to counsel should excuse his failure to present the prosecutorial misconduct claim to the state courts.

We need not address whether Mize had a right to counsel during the extraordinary motion for new trial proceeding or whether Matteson was ineffective.FN5 Even if Mize prevailed on those issues, he still cannot show cause, because he cannot explain why he did not assert the prosecutorial misconduct claim during the third habeas proceeding. The third habeas proceeding remained open for another six months after Mize withdrew the extraordinary motion for new trial, and was an appropriate forum for the prosecutorial misconduct claim. Mize thus still must show a valid explanation for why he failed to assert the claim during the third habeas proceeding.

FN5. We doubt seriously Mize's assertion that he had a constitutional right to counsel in the extraordinary motion for new trial proceedings. His conviction was final after the Georgia Supreme Court had affirmed his conviction, and the Supreme Court denied certiorari on January 11, 1999. Before Mize filed his extraordinary motion for new trial in July 2000, he had already filed three state habeas corpus petitions, and the third was still pending. Thus, Mize's extraordinary motion for new trial was not a proceeding which was part of the process consisting of his trial and direct appeal therefrom. Rather, it was in the nature of a collateral proceeding. And, of course, a convicted defendant has no constitutional right to effective assistance of counsel in collateral proceedings. See Coleman, 501 U.S. at 753-54, 111 S.Ct. at 2566-67 (“There is no constitutional right to an attorney in state post-conviction proceedings.”); see also Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (“Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further.”).

Moreover, even if there were a constitutional right to counsel during the extraordinary motion for new trial proceeding, and even if Matteson were ineffective in those proceedings, Mize would nevertheless be barred from asserting that ineffectiveness as cause to excuse his procedural default. See Carrier, 477 U.S. at 488-89, 106 S.Ct. at 2646 (“[T]he exhaustion doctrine ... generally requires that a claim of ineffective assistance [of counsel] be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.”). Mize failed to raise the ineffective assistance of counsel argument in his third state habeas petition. The third habeas petition was open for six months after Mize withdrew the extraordinary motion for new trial, so Mize could have amended his petition to include the ineffective assistance of counsel claim.

Mize did raise this claim in his fourth state habeas petition. In dismissing that petition, the state habeas court did not address the ineffective assistance of counsel claim; the court ruled only that the fourth habeas was successive because Mize could have brought the prosecutorial misconduct claim in his third state habeas petition. The same reasoning defeats Mize's ineffective assistance of counsel claim. Mize had six months between the withdrawal of his extraordinary motion for new trial and the ruling on the third state habeas petition to assert his ineffective assistance of counsel claim. Georgia law bars adjudication of issues that could have been raised in an original or amended habeas petition. O.C.G.A. § 9-14-51 (2006). Mize therefore failed to exhaust his ineffective assistance of counsel claim. Because this claim is unexhausted, we must treat it as procedurally defaulted. Ogle, 488 F.3d at 1370 (“When it is obvious that the unexhausted claims would be procedurally barred in state court due to a state-law procedural default, [the court] can forego the needless ‘judicial ping-pong’ and just treat those claims now barred by state law as no basis for federal habeas relief.”) (internal citations omitted).

Therefore, Mize cannot assert ineffective assistance of counsel as cause for the procedural default of his prosecutorial misconduct claim, because the former is also procedurally defaulted. This Mize cannot do. Mize did not have a right to counsel during the third state habeas, see Jimenez v. Florida Dep't of Corrections, 481 F.3d 1337, 1344 (11th Cir.2007), and so is responsible for whatever errors were made in failing to assert the claim there. Nor has Mize demonstrated that any other external factor prevented him from asserting the claim during the third habeas. To the contrary, Mize himself was responsible for the default. Thomas Dunn, an experienced Georgia death penalty attorney, stood ready and willing to amend the petition to make that claim. Dunn also attended the evidentiary hearing and was ready to argue the claim there. Mize repeatedly refused to let him do so.FN6

FN6. Mize does not argue that he could not have raised the prosecutorial misconduct claim in the third state habeas proceeding. Therefore, he has abandoned any such argument. Moreover, the fourth state habeas court held that the claim could have been brought in the third state habeas, and Mize does not challenge that holding.

As a result, there is no causal link between Matteson's alleged ineffectiveness and Mize's procedural default. Courts have held that the procedural default cannot be excused on similar facts: where, after the alleged cause occurred, the petitioner still had an opportunity to assert the claim in state court. See Interiano v. Dormire, 471 F.3d 854, 857 (8th Cir.2006); Dellinger v. Bowen, 301 F.3d 758, 766-67, 767 n. 10 (7th Cir.2002) (holding that even though habeas petitioner's direct appeal counsel may have been ineffective, petitioner had defaulted his underlying claim on both direct appeal and collateral attack, and the latter default could not be excused because petitioner had no constitutional right to an attorney during the collateral attack). As Mize cannot show a factor external to the defense that prevented him from presenting the prosecutorial misconduct claim in the third habeas proceeding, he cannot demonstrate cause, and the claim cannot provide a basis for federal habeas relief.FN7

FN7. Mize does not argue that the default should be excused under the fundamental miscarriage of justice exception. We consider the issue in passing in Part IV, infra, where we determine that Mize has not satisfied the standard for the fundamental miscarriage of justice exception and thus, a fortiori, has not established his freestanding actual innocence claim. See House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 2087, 165 L.Ed.2d 1 (2006).

III. Brady claim

Mize next argues that the prosecution failed to disclose material impeachment evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The prosecution admittedly did not disclose six pages of part-typewritten, part-handwritten notes prepared during a pretrial interview with Samantha Doster. The Georgia Supreme Court rejected this claim on direct appeal, and the district court concluded that the decision was not contrary to or an unreasonable application of Supreme Court precedent. 28 U.S.C. § 2254(d)(1) (2006).

Under Brady, the prosecution must disclose, upon request, evidence that is material either to guilt or to punishment. Gilliam v. Sec'y for the Dep't of Corrections, 480 F.3d 1027, 1032 (11th Cir.2007). Such evidence is material only if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). Brady requires disclosure of material impeachment evidence as well as material exculpatory evidence. Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir.1998).

Mize does not argue that the Doster notes had any exculpatory value. Nor could he: the notes echo Doster's trial testimony and implicate Mize in the murder. Mize instead argues that the notes had significant impeachment value.

The notes are almost entirely consistent with Doster's trial testimony. They contain all the major points from her trial testimony, reporting, for example, Mize displaying the shotgun at the NVAP meeting; the attempted burning of the crack house; the shooting itself; Mize's invention of the alibi; the disposal of the shotgun; and Mize's later admission to Doster that he finished off Tucker. Nor did the notes omit any of the salient points from Doster's trial testimony.

The only difference whatsoever between the notes and Doster's trial testimony is relatively minor. In the notes, Doster is recorded as saying that “someone” in the woods said “if you cannot do it I can,” while at trial she testified that Mize said this. We acknowledge that this discrepancy may have had some impeachment value; it conceivably could have been used to suggest at trial that Doster was inventing details that tended to implicate Mize. As such, the prosecutor should have turned over the notes. However, this was not material impeachment evidence. In the first place, the impeachment value was weak. “Someone” was not directly in conflict with “Mize.” Because both the notes and Doster's trial testimony included the fact that Mize had later admitted guilt, the potential discrepancy between “someone” and Mize was not material. And fabrication was not the only explanation for the greater level of detail; upon reflection, and especially in light of Mize's later admission of guilt, Doster probably had simply become confident that it was Mize who had made the statement.

Further, whatever impeachment value this evidence possessed would not have added significantly to the impeachment of Doster at trial. The defense impeached Doster extensively on the basis of an alleged deal with the prosecution. The defense showed that she was released without charge after a year of imprisonment when she agreed to testify; that her story changed from an absolute denial when she was first incarcerated to the version where she implicated Mize; and that Doster had access to Brian Dove's eyewitness account before she changed her story. In closing, the defense theorized that Doster had tailored her testimony to Dove's in order to curry favor with the prosecution.FN8

FN8. The defense also impeached Doster by showing that she was a longtime drug user: she had used crack and cocaine in the past and had smoked marijuana on the night Tucker was killed.

In light of the fact that the defense already could show that Doster had changed from an absolute denial to a version that incriminated Mize, the change from “someone” to “Mize” would have been at best cumulative. It was certainly not impeachment evidence that, if disclosed, would have changed the result of the proceeding. As noted above, a habeas petitioner can prove a Brady violation only by demonstrating that there is a reasonable probability that, had the withheld evidence been disclosed to the defense, the result of the proceeding would have been different. See Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

There was very strong evidence supporting the jury's verdict convicting Mize. We know that there were only two, and possibly three, people at the murder scene with the victim, Tucker. Mize and Hattrup were there, and possibly Mark Allen. We know from the overwhelming evidence in the case that Mize was the leader of the group, and that Hattrup was a follower. It was Mize who ordered Mark Allen to go back and stop Dove and Doster. It was Mize who had the gun in his hand as Mize and Hattrup came out of the woods and into the view of Doster and Dove. It was Mize who challenged the group in the car that they knew why that had happened to Tucker and warned that “if anybody runs their mouth this could happen to them.” It was Mize who made up the alibi story that they were to tell if anyone asked what had happened. Even more significantly, Doster testified, and the prosecutor's notes from her interview also reflect, that Mize later admitted to her that he had finished Tucker off. Under these circumstances, there is not a reasonable probability that the jury would have reached a different result had the defense had access to the prosecutor's notes. There is not a reasonable probability that the jury would have concluded that Mize did not either fire the third shot or encourage Hattrup to do so.

For the foregoing reasons, we cannot conclude that the Georgia Supreme Court erroneously rejected Mize's Brady claim. A fortiori, we cannot conclude that the Georgia Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.

IV. Actual innocence claim

Finally, Mize asserts that he is entitled to habeas relief because he has new evidence showing he is actually innocent of the crime of conviction. The function of federal habeas corpus is to redress constitutional errors, not to relitigate state criminal cases. Herrera v. Collins, 506 U.S. 390, 401, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993). Consequently, “[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Id. at 400, 113 S.Ct. at 860. A claim of actual innocence is normally used not as a freestanding basis for habeas relief, but rather as a reason to excuse the procedural default of an independent constitutional claim. See id. at 404, 113 S.Ct. at 862. Nevertheless, in Herrera, the Supreme Court assumed, “for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.” Id. at 417, 113 S.Ct. at 869.

Mize claims that he has made a “truly persuasive demonstration” of actual innocence. The issue of whether such a claim is cognizable in federal habeas corpus does not arise in this case, because even if such a claim were cognizable, Mize does not qualify. Mize has fallen far short of showing that he is actually innocent. The Supreme Court, of course, has never decided what the precise burden of proof for a freestanding actual innocence claim would be. However, the Court has indicated that it would necessarily be more difficult to establish a freestanding actual innocence claim than it is to establish actual innocence under the fundamental miscarriage of justice exception to the procedural default doctrine. See House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 2087, 165 L.Ed.2d 1 (2006). To satisfy this lesser standard (which itself applies “only in the extraordinary case,” House, 126 S.Ct. at 2077), Mize would have to demonstrate that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995). In other words, he would have to show it is probable that, given the new evidence, no reasonable juror would have convicted him.FN9 See House, 126 S.Ct. at 2077. FN9. The district court also held that Mize procedurally defaulted his actual innocence claim because he failed to exhaust it in the state courts and it is too late to raise it now. It is doubtful, however, that it is possible to procedurally default a freestanding actual innocence claim. The threshold for a freestanding actual innocence claim is higher than the showing of actual innocence required to invoke the fundamental miscarriage of justice exception to the procedural default doctrine. See House, 126 S.Ct. at 2087. As a result, if a petitioner in fact has a freestanding actual innocence claim, he would be entitled to have all his procedural defaults excused as a matter of course under the fundamental miscarriage of justice exception.

Of course, because we hold that Mize has not come close to showing he is actually innocent, we need not decide whether a persuasive showing of actual innocence would in fact entitle a petitioner to habeas relief. Mize's new evidence does not even meet the relatively looser Schlup standard, and thus a fortiori does not establish a freestanding actual innocence claim. Mize relies on statements made by Chris Hattrup in his plea colloquy, his testimony at Mize's motion for new trial hearing, and two affidavits (one executed in 1996, another in 2000). At Mize's motion for new trial hearing and in the affidavits, Hattrup claimed that he was solely responsible for killing Tucker as a result of a drunken argument.

The Hattrup statements are wholly unconvincing. In the first place, they are inconsistent with each other on one of the most important points: who fired the shots that killed Tucker. Hattrup has at various times stated that he does not remember what happened after the first shot; that he definitely fired only one shot; or that he fired all three of the shots.FN10 This internal contradiction on a crucial point suggests that, at best, Hattrup has an incomplete memory of the incident (perhaps because of his admitted drunkenness), and at worst is lying in order to help his friend Mize.

FN10. Hattrup has been subject to cross-examination on only one occasion: at Mize's motion for new trial hearing. There he gave three different accounts of the shooting: that he did not remember anything after the first shot; that he in fact fired the second shot; and that he also fired the third shot. At the same hearing, two police officers who talked to Hattrup after his guilty plea said he gave them yet another account: that he fired only once, then dropped the gun and walked away. Dropping the gun and walking away is itself inconsistent with all of Hattrup's stories at the motion for new trial hearing: with not remembering anything after the first shot, or with firing the second shot or third shot. Thus, on the only occasion when Hattrup was cross-examined, he in effect gave three different, mutually inconsistent versions of the incident.

Hattrup's other statements have been equally divergent. At his plea colloquy, he admitted only to firing the first shot, and his attorney objected when the prosecutor attempted to ask who fired the second and third shots. In the 1996 affidavit, Hattrup claimed he fired one and only one shot, which is inconsistent with his statements that he did not remember what happened after the first shot, or that he fired the second and third shots. Finally, Paul McDonald testified at Mize's trial that Hattrup said he fired all three shots.

Hattrup has thus himself given three mutually inconsistent accounts: that he definitely fired only one shot, that he fired the second and third shots too, and that he does not remember what happened after the first shot. The police officers gave another account: that Hattrup said he dropped the gun after the first shot. McDonald testified that Hattrup said he fired all three shots. Mize does not deny that Hattrup's testimony is inconsistent with respect to who fired the bullets. Instead, he claims that Hattrup has consistently testified that Mize did not order him to kill Tucker, which is enough to show Mize's actual innocence. See Schlup, 513 U.S. at 327, 115 S.Ct. at 867.

But it is not true that Hattrup has consistently and unequivocally stated that Mize did not order him to kill Tucker. At Hattrup's plea hearing, Hattrup simply stated that he had fired at least one shot into Tucker, and did not know why he did it. Then, Hattrup's attorney tried to shift the blame for Tucker's death to Mize:

Persons afflicted with [ADD] are the consummate followers [talking about Hattrup]. They are never leaders. They're perfect followers. Doctor Shapiro also had the benefit of doing a psychological evaluation on Mr. Mark Mize and was able to say and would have testified that Mark Mize was a very good leader and had all of the qualities of being a leader which corroborates the State's view of this. So we have a young man who was already predisposed through some disabilities to be a follower.

I'm confident that Chris Hattrup who has never been in trouble with the law would never have been involved with nor shot unlawfully another human being but for the coming together of a number of circumstances, the egging on, the manipulation in part by Mr. Mize but for which he has real moral and legal responsibility because he, in fact, fired at least one of the shots that killed this gentleman. I think in light of what we know about Chris, his lack of prior record, the State's theory of the case and his involvement and what Doctor Shapiro has informed me about this, I believe that the interest and my client's particular interest is well served and would ask the Court to accept this plea agreement. Hattrup's attorney in part endorsed “the state's theory of the case.” This theory was, of course, that Mize ordered the shooting of Tucker. These statements made on Hattrup's behalf tend to imply Mize's guilt, not his innocence.

Hattrup made his next statement at Mize's motion for new trial hearing. He testified on direct that he was not ordered to kill Tucker, and that Mize did not cause the death. But he also testified, more equivocally, that “[a]fter the first shot I pretty much went blank.” Hattrup thus could not definitively rule out either of the state's theories of the case: that Mize ordered Hattrup to shoot Tucker (with the order perhaps taking place after the first shot), or that Mize fired the third shot. Hattrup also allowed his attorney to testify with respect to what he told her. She said Hattrup has indicated on a number of or on some occasions that he has a kind of vague recollection that someone told him after the first shot to either fire the second shot or to say something along the lines of go ahead, shoot him. He has never been able to articulate what was said, just an impression that someone was encouraging him and suggesting and promoting that he fire the second shot, never the first shot. And he has not been able to identify for me who may have made such a suggestion, if one was made, but he had believed that it would have been either Mr. Allen or Mr. Mize. But, that has been the best recollection he has ever given me about that.

Thus, Hattrup's own attorney, who had no demonstrated incentive to lie, testified that Hattrup had stated on a “number” of occasions that either Allen or Mize told him to fire the second shot. Hattrup's own testimony at the hearing could not rule out Mize's guilt, and his attorney's testimony tended to imply it.

Mize thus must rely entirely on Hattrup's affidavits to make his showing of actual innocence. In the first place, affidavits alone are not a promising way to demonstrate actual innocence. Though sworn, they are not convincing evidence of innocence because “the affiants' statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations.” Herrera, 506 U.S. at 417, 113 S.Ct. at 869. On the only occasion when Hattrup was subject to cross-examination, at Mize's motion for new trial hearing, his testimony was hopelessly ambivalent, as related above.

In addition to the inherent weakness of affidavits as new evidence of actual innocence, these affidavits are particularly unhelpful. In the affidavits Hattrup does state that he was solely responsible for shooting Tucker as a result of a drunken argument. But this confident statement about Mize's involvement contradicts Hattrup's other, more equivocal statements. For example, at his plea colloquy, Hattrup stated that he did not know why he shot Tucker. At Mize's new trial hearing, Hattrup testified that he “went blank” after the first shot. Both statements are inconsistent with knowing, with certainty, that the shooting was caused by a drunken argument.

The affidavits also are not credible. As noted above, they contradict other statements Hattrup made with respect to how many shots he fired. They also make assertions that contradict substantial record evidence. For example, both affidavits claim that there was no plan to burn down a crack house. This contradicts the following strong evidence: Jeremy Phillips's testimony that someone tried to burn down his house on the night of October 15; Brian Dove's testimony that Mize ordered Hattrup to burn down the crack house; Doster's testimony that Mize ordered Hattrup to burn down the crack house; and Hattrup's own statement, via McDonald, that Mize ordered him to burn down the crack house.

These equivocal and unreliable affidavits are all the more unconvincing when measured against the substantial evidence of Mize's guilt. Numerous witnesses testified that Mize was the head of the NVAP, had displayed a shotgun at a meeting, and said it was what the organization used to conduct its business. Ronald Allen, unconnected with the Tucker shooting and himself a member of the NVAP, also testified that Mize and Allen displayed some hostility toward Tucker at a meeting. Doster, Dove, and McDonald (recounting what Hattrup told him) testified that Mize wanted the crack house burned down. Phillips corroborated the story by testifying that someone in fact tried to burn down his house. Dove and Doster gave virtually identical accounts of the shooting itself. They both also testified that Mize told the group why Tucker had been killed, threatened anyone who talked, and concocted a group alibi. Mize later even admitted to Doster that he had fired the final shot, and Hattrup also (according to McDonald) admitted that Mize had ordered the killing.

In the face of this evidence, no reasonable juror would refuse to convict Mize simply because Hattrup now claims, without support and with numerous contradictions, that he was solely responsible for killing Tucker. The Hattrup evidence does not warrant invocation of the fundamental miscarriage of justice exception to the procedural default doctrine.FN11 A fortiori, it cannot support a freestanding actual innocence claim (if such a claim in fact exists). FN12

FN11. For this reason, Mize also cannot use the fundamental miscarriage of justice exception to excuse the default of his prosecutorial misconduct claim, discussed supra.

Although Mize does not argue the point on appeal, the Doster affidavit recanting her trial testimony does not make his actual innocence claim any stronger. In the first place, it contradicts her detailed testimony at trial and pretrial, which itself contradicted her year-long protestations of innocence in jail. At best, then, her affidavit merely makes Doster a habitual liar and leaves the Dove, Phillips, Allen, McDonald, and Hollis testimony intact. Second, Doster is biased. She is Mize's former girlfriend and testified at trial that she wrote letters to Mize while in jail telling him that he was the “sweetest” man she had ever met. Because she was released from jail without charge, she faces no downside for recanting her trial testimony in order to help her former boyfriend. Finally, as the Supreme Court has noted, the affidavit is of inherently little value because Doster has not been subject to cross-examination as to its contents. See Herrera, 506 U.S. at 417, 113 S.Ct. at 869. Thus, even considering Doster's affidavit along with the Hattrup material, there is insufficient new evidence either to prove an actual innocence claim or to invoke the miscarriage of justice exception to the procedural default doctrine.

V. Conclusion