Full opinion text
KING, Circuit Judge: Willie Albert Smith appeals the district court’s denial of his petition for a writ of habeas corpus from the judgment of conviction and death sentence entered against him on July 30, 1981, in the Circuit Court of the First Judicial Circuit of Hinds County, Mississippi. Smith was convicted of the murder of a convenience store clerk during the course of a robbery and was sentenced to death. Smith’s conviction rests upon the eyewitness testimony of two men who claimed to have seen Smith abducting the clerk and upon circumstantial evidence which the Supreme Court of Mississippi fairly described as “overwhelming.” Smith v. State, 492 So.2d 260, 267 (Miss.1986). Among the many claims asserted by Smith in his petition for habeas relief are four that are particularly troubling. The first two relate to the testimony of the eyewitnesses to the abduction. The Mississippi Supreme Court found, by clear and convincing evidence, that the witnesses had perjured themselves at trial in identifying Smith as the assailant, id. at 261, 264, and Smith claims that his conviction based on their testimony violates the due process clause of the fourteenth amendment. Smith argues further that his ability to impeach the two eyewitnesses at trial was fatally impaired by the prosecution’s failure to disclose police reports containing contemporaneous disavowals by the witnesses of their ability to identify the assailant. Third, Smith argues that his sentence rests in part on evidence of rape properly excluded at the guilt phase but admitted at sentencing, and that this evidence, combined with the prosecution’s repeated allegation in closing arguments that Smith raped the murder victim, violated his right to due process under the fourteenth amendment. Finally, Smith argues that his sentence was based in part on an aggravating circumstance, that the murder was “especially heinous, atrocious or cruel,” which was unconstitutional at the time his conviction became final. For the reasons set forth below, we affirm the judgment of the district court denying habeas relief based on these claims and on a host of other claims that Smith raises with respect to his conviction and sentence. I. The nature of Smith’s claims requires a detailed understanding of the crime, the trial, and the post-trial proceedings. Shirley Roberts, the manager of a convenience store in Jackson, Mississippi, was robbed, abducted, and murdered after she attempted to open the store for business shortly after 5 a.m. one Sunday morning. About 5:30 a.m. Sgt. Oatis of the Jackson Police Department stopped in the convenience store parking lot to use a public phone, and was there approached by two men, Kenneth Thomas and James Wells, who asked him if there had been a robbery, explaining that they had a few minutes earlier seen a black man forcing a white woman into a red Pinto. Oatis noticed that the chain used to secure the store door was lying on the pavement in front of the door, and that nearby lay a $20 bill, a set of car keys, and a silver-colored pair of brass knuckles. On the parking lot next to Oatis’ patrol car lay a woman’s tennis shoe and a pair of eyeglasses with a silver neck chain. Oatis radioed an alarm at 5:40 a.m., and the police rapidly determined that Roberts had been scheduled to open the store that morning and that a car remaining in the lot had belonged to her. At 6:00 a.m., while Oatis remained in the parking lot, the defendant Smith approached the store driving a red Pinto, but reversed direction by making a U-turn after he noticed the police cars parked there. Oatis observed this maneuver and pursued and stopped Smith. Seeing Smith reach under the right-hand seat of the car, and suspecting a weapon, Oatis looked through the car window and noticed a half-protruding woman’s shoe that appeared to be the exact mate of the shoe found in the parking lot. Oatis arrested Smith, and while handcuffing him noticed that one of his hands was stained with blood. A jailor subsequently removed a one-hundred dollar bill from the pants Smith was wearing when arrested. At the time of arrest, Smith denied knowing anything about the woman and refused to discuss the shoe, but agreed to lead the police to Charles MacDonald, the man whose car he had borrowed. The police were led to MacDonald’s room by his mother, where they awoke him from a deep sleep. He explained that Smith had borrowed the car from him at 4:30 that morning after they had returned from a party. The police satisfied themselves that MacDonald was not a likely suspect for the crime, and he led them to Smith’s apartment. It was unlocked, and the police entered, fearing for the safety of Roberts. They found her purse and a woman's white sweater on Smith’s bed, and on the floor found a lock and key, muddy dress shoes, and a pair of khaki pants stained with mud and blood. In the pants was a one-hundred dollar bill. Mud and leaves were on the floor by the back door and in the kitchen. About fifteen feet behind the apartment house the police found the beginning of a drag trail, which led after approximately fifty yards to a small drainage ditch from which a human ankle protruded. The victim’s body lay face down in the water, covered by leaves and sticks. A. Guilt Phase During opening statements, the prosecution made no reference to eyewitness testimony. Smith’s trial counsel conceded that the state possessed “awesome” circumstantial evidence, but emphasized several times that he expected no eyewitness testimony, and that if Thomas testified as an eyewitness he would have to “have changed his story,” since he had been unable to identify Smith at a lineup held before trial. Thomas was in fact the first witness called by the state. Thomas testified that he had observed the victim’s abduction from approximately thirty feet away while traveling past the convenience store in a car driven by Wells, and that he had been seated on the side of the car closest to the parking lot. He described the sequence of events and the perpetrator’s car, a red Pinto, in some detail. Thomas also testified that although he had been initially reluctant to cooperate with the police, he had identified Smith in a lineup conducted by the police the day after the trial. He also testified that he had identified Smith’s photograph after viewing five photographs the day before trial, and identified Smith in the courtroom. On cross-examination, Thomas re-acknowledged that he was on probation from an armed robbery conviction, and admitted or clarified that he had not identified Smith at the police lineup, that he had told relatives of Smith that he could not identify the man he saw in the parking lot, that he had seen Smith before the day of trial at the suppression hearing, and that the red Pinto had been pointed out to him before trial while it was parked in a police impoundment lot. He explained that he had previously lied in saying that he could not identify Smith because of pressure he had received from his mother and other relatives, and further described the characteristics of the man he saw the morning of the crime. Wells testified to substantially the same identification of the perpetrator and the car, though he claimed to see the abduction from approximately ten feet away. On cross-examination, Wells admitted that he could not identify the perpetrator at the time of the incident and had so informed Thomas, that he had told Smith’s counsel and several of Smith’s relatives that he could not identify the man he saw abduct the victim, that the photographic lineup conducted the day before trial was the first time he had identified Smith to anyone, that he had been told that someone resembling Smith would be in the courtroom, that Smith was easily identifiable in court as the only black sitting with a lawyer and as the only man in a blue jumpsuit, and admitted that he could not identify Smith as the man who had put the victim into the red Pinto. On re-direct, Wells indicated that he had identified Smith at his first opportunity, namely, the photographic lineup the day before trial. The state also called as a witness a forensic pathologist, who testified that the victim had been manually strangled to death and that her body bore numerous scratches, abrasions, and bruises, and that her head bore two wounds made by two blows with a blunt instrument. MacDonald testified that Smith had shown him a pair of brass knuckles similar to those found in the parking lot on the evening before the crime was committed and that he had seemed to indicate their presence at the party, and that Smith had not indicated that he had any money that night. Two witnesses testified that the victim had at least one one-hundred dollar bill in her purse during the weekend of the crime, one additionally identifying the keys found in Smith’s apartment as the store keys issued to Roberts and the other, the victim’s daughter, identifying as her mother’s the purse, sweater, and tennis shoes found in Smith’s possession or apartment that morning. A serologist testified that swabbings taken from Smith’s hand tested positive for human blood but that the blood was too insubstantial to be typed. She also testified, however, that the blood on the khaki pants could have come from the victim and could not have come from Smith, and that the characteristics shared by the victim’s blood and that blood could be expected to occur in the blood of less than 0.3% of the general population. A forensic scientist specializing in hair and fiber identification testified to the similarity of several hairs taken from Smith’s bed covers and hairs taken from the victim’s head, testified that several pubic hairs taken from the bed and the sweater were Caucasian and matched the victim, and that one Negroid pubic hair taken from the pubic hair of the victim was similar to hairs taken from Smith. Officer Oatis and other members of the police department testified to the sequence of events on the morning of the crime and to the inspection of the red Pinto and Smith’s apartment. Smith was the only witness for the defense, and he presented an elaborate alibi. Smith testified that after returning from the party in MacDonald’s car he was startled to find the lights on in his apartment and the radio playing, and that he had feared that someone was in his apartment. After knocking and receiving no response, he changed into a pair of pants, a shirt, and some shoes that were left outside his apartment, then passed out on the porch, probably because someone had drugged him at the party. He awoke to see a shadow, tall and with a large Afro, on the right side of his house, and then left the apartment driving the Pinto. He explained that he had attempted to avoid the police in the convenience store parking lot because he was ferrying marijuana to a friend and because his driver’s licence was expired, and claimed that Oatis planted the shoe in his car. He acknowledged that the muddy pants and shoes were his, though he professed ignorance as to the cause of their condition, claimed that the two one-hundred dollar bills were his, and that he owned a pair of brass knuckles but had left them on his bed before attending the party. Smith denied having been to the convenience store before. The state subsequently presented as a witness a clerk at the convenience store who had seen Smith in the store on several occasions, including once two days before the crime. Another witness testified that Smith had previously been arrested for disorderly conduct and resisting arrest, but admitted on cross-examination that the arrest record might indicate that a different person, with a different social security number, had been arrested. The prosecution’s closing emphasized both the eyewitness and circumstantial evidence, while the defendant and his counsel professed innocence and ignorance of the crime. Defense counsel also attacked the credibility of Thomas and Wells, noted the unexpectedness of their testimony, and confessed that he had made a tactical error in allowing three persons who interviewed Thomas on behalf of Smith to remain in the courtroom during Thomas’ testimony, thereby disabling them from testifying as to his previous statements, but noted that Thomas had admitted at trial his failure to identify Smith during the interview. After deliberating for approximately one hour, Smith was convicted of the murder of Shirley Roberts during the course of a robbery, a capital crime in violation of Miss. Code Ann. § 97-3-19(2)(e) (1972 & Supp. 1989). B. Sentencing Phase During its case at the sentencing phase the state recalled the pathologist, who testified that the victim’s vagina showed signs of recent sexual intercourse, and testified that a victim of manual strangulation would remain conscious for the first one or two minutes and that death would take approximately five minutes. The state also recalled the serologist, who testified, over defense objection, that she had found numerous sperm cells in the vaginal washings of the victim; she admitted on cross-examination and re-cross examination that she could not identify any relationship between the sperm cells and the defendant. presented six witnesses, including himself, in mitigation. The other witnesses, all relatives, essentially suggested that he was innocent and that his prior violent acts were not indicative of his character. Smith testified that he went to trial because he was innocent. In its initial closing argument, the state concentrated on rebutting Smith’s mitigating evidence, but also projected slides showing the victim and alleged that Smith “sexually abused” Roberts. Defense counsel in turn stressed that Smith had been consistent in maintaining his innocence and appealed to the Christian mercy of the jurors. In explaining his own conduct and his client’s wish to stand trial, he admitted that the circumstantial evidence was “overwhelming.” In its second closing argument, the prosecution dwelled on the circumstances of the crime, repeatedly alleging that Smith had killed, robbed, kidnapped, and raped Roberts. The jury found three aggravating circumstances: that the murder was committed while Smith was engaged in the commission of robbery, that the murder was committed for pecuniary gain, and that the murder was especially heinous, atrocious, or cruel, and found beyond reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances. Miss.Code Ann. § 99-19-101 (1972 & Supp.1989). C. Post-trial Proceedings Smith filed a motion for a new trial claiming some fifteen grounds for relief, and upon that motion’s denial filed his automatic appeal to the Mississippi Supreme Court, which then affirmed his conviction and sentence in August 1982. Smith filed a petition for rehearing, and although the Mississippi Supreme Court modified its pri- or opinion it affirmed the conviction and sentence. Smith v. State, 419 So.2d 563 (Miss.1982). Represented by new counsel, Smith filed an unsuccessful petition for writ of certiorari with the United States Supreme Court, arguing ineffectiveness of trial counsel and unlawful seizure of evidence. Smith v. Mississippi, 460 U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983). Smith’s subsequent petition for writ of error coram nobis was denied by the Mississippi Supreme Court, almost solely on the bases of procedural bars, and Smith’s petition for rehearing was denied shortly thereafter. Smith v. State, 434 So.2d 212 (1983). Smith filed a petition for writ of habeas corpus in this court, which entered a stay of execution and a stay of proceedings in the district court until state court remedies were exhausted. Smith then filed a second application in the Mississippi Supreme Court on the basis that the two eyewitnesses had perjured themselves at trial. The application was successful, and the court ordered an evidentiary hearing in circuit court on the issue. In re Smith, 457 So.2d 911 (Miss.1984). After holding the hearing the circuit court denied relief, and on appeal the Mississippi Supreme Court affirmed and denied a petition for rehearing. Smith v. State, 492 So.2d 260 (Miss.1986). While the second state post-conviction petition was pending Smith filed a third motion in state court, seeking collateral relief under Miss.Code Ann. § 99-39-1 et seq. (1972 & Supp.1989) on the grounds that the prosecutor had unconstitutionally excluded blacks from the jury and that the prosecution had failed to disclose certain evidence. The Mississippi Supreme Court denied the motion and denied rehearing. Smith v. State, 500 So.2d 973 (Miss.1986). After entertaining an amended petition and memorandum and response, the federal district court below denied habeas corpus relief to Smith, later denying as well a motion to alter or amend the judgment. Smith v. Thigpen, 689 F.Supp. 644 (S.D.Miss.1988). It is this judgment which is presently on appeal. The nature of the evidence against Smith and his grounds for seeking relief from the conviction and sentence are more fully described below. To summarize, Smith ar-gués that the eyewitness testimony was perjured, that the state failed to disclose important impeachment evidence, that the state’s use of an allegation of rape at the sentencing phase denied Smith due process, that Smith was denied effective assistance of counsel at trial, that Mississippi’s use of the “especially heinous” aggravating circumstance was unconstitutional, that the state’s use of peremptory challenges to exclude blacks from the jury was unconstitutional, and that the district court erred in applying Mississippi's rules of procedural default and in denying Smith an evidentia-ry hearing. Each is considered in turn. II. A. Perjury Smith argues primarily that Thomas and Wells lied at trial when they made an in-court identification of Smith as the perpetrator: subsequent, secretly taped conversations and formal interviews with the two witnesses, as well as their affidavits, substantially contradict their trial testimony. Smith has steadfastly objected in post-trial proceedings to the in-court identification by Thomas and Wells. After the Mississippi Supreme Court rejected similar contentions in Smith’s original appeal and first petition for writ of error coram nobis, Smith filed a second petition with affidavits from Thomas and Wells explaining that they had lied in their pre-trial and in-court identifications of Smith. The Mississippi Supreme Court granted Smith’s petition, affording him a hearing in state trial court on the allegation of perjury; in so doing, the court observed that “[tjhese witnesses’ identification of Smith at trial formed an integral part of our opinion affirming his conviction.” See In re Smith, 457 So.2d at 911. The lower court denied a new trial, and the Mississippi Supreme Court affirmed, concluding that although Thomas and Wells had perjured themselves, and the prosecution may have negligently used perjured testimony, the other evidence of guilt allowed no reasonable probability that the outcome was affected by the testimony. Smith v. State, 492 So.2d at 264. On habe-as review, the federal district court below disagreed both with the Mississippi Supreme Court’s determination that perjury had occurred and with the intimation that anything less than knowing use by the prosecution might afford relief. As to the former, the court agreed with the state trial court that the recanting statements of Thomas and Wells were more suspect than their trial testimony, and that the contrary conclusion by the Mississippi Supreme Court was not fairly supported by the record. Smith v. Thigpen, 689 F.Supp. 644, 656-57 (S.D.Miss.1988) (citing 28 U.S.C. § 2254(d)(8)). From that conclusion, the district court reasoned that the prosecution could not be held to have known that the identifications were perjured. Id. at 657. As a result, this case presents the rather unusual circumstance of the petitioner arguing for federal deference to state court fact-finding, cf. Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); Buxton v. Lynaugh, 879 F.2d 140, 142-47 (5th Cir.1989), while the state would support the district court’s re-reading of the record. As the district court recognized, there are situations when it is appropriate for a federal court to substitute its judgment on factual issues for that of the state court, even on habeas corpus review. However, that is unnecessary here: because we conclude that Smith needs to demonstrate knowing use of perjured testimony to secure relief, and does not do so, we need not reach the issue of whether the Mississippi Supreme Court was incorrect in concluding that Wells and Thomas had committed perjury. Smith does not appear to suggest that the penury itself creates grounds for a new trial, but rather argues that the prosecution’s behavior with regard to the perjury amounted to a constitutional violation. In this context, as the district court noted, resolving the allegations of penury is unnecessary if the prosecution did not know of the perjury. The Fifth Circuit has long abided by the standard requiring that for use of perjured testimony to constitute constitutional error, the prosecution must have knowingly used the testimony to obtain a conviction. See Mooney v. Holohan, 294 U.S. 103, 110, 112, 55 S.Ct. 340, 341-42, 79 L.Ed. 791 (1935) (per curiam); Hawkins v. Lynaugh, 844 F.2d 1132, 1141 (5th Cir.), cert. denied, 488 U.S. 900, 109 S.Ct. 247, 102 L.Ed.2d 236 (1988); Braxton v. Estelle, 641 F.2d 392, 395 (5th Cir. Unit A 1981); Skipper v. Wainwright, 598 F.2d 425, 427 (5th Cir.) (per curiam), cert. denied, 444 U.S. 974, 100 S.Ct. 469, 62 L.Ed.2d 389 (1979). Smith’s argument for an extension of the negligence standard of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), is not sufficiently convincing to override this practice. As the district court explained, Smith’s use of Giglio v. United States, 405 U.S. 150, 152-54, 92 S.Ct. 763, 765-66, 31 L.Ed.2d 104 (1972), to support the negligence standard is inap-posite; Giglio concerned the particular circumstances of the nondisclosure of a promise of nonprosecution made in exchange for witness testimony. Agurs afterward reported that the rule of Brady may “arguably” apply in the situation in which “undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury,” but was clear in reporting the subsequently settled rule that knowing use of perjured testimony was fundamentally unfair. 427 U.S. at 103-04, 96 S.Ct. at 2397-98. The discussion in Agurs relied on by Smith more precisely refers to the materiality of nondisclosed evidence, a subject considered below in connection with his Brady claim. Reviewed under the Mooney standard, and assuming without deciding that the in-court identification constituted perjury, Smith does not establish that the prosecution knew. Cf. Braxton, 641 F.2d at 395. For the very reasons detailed by the district court toward the contention that the testimony was not perjury, 689 F.Supp. at 652-57, the prosecutors could reasonably have concluded that the inconsistency of Wells and Thomas related to a reluctance to testify. Both evidenced a detailed observation of the abduction in their initial contact with the police, although they indicated on that occasion and others preceding trial that they could not identify the culprit. Thomas, however, contended at trial that he had in fact recognized Smith at the police lineup, and had so informed the prosecution on the first day of trial. Thomas coherently explained his vacillations: he had refrained from identifying Smith to the prosecution because of pressure he felt from relatives, and likewise had told Smith’s sisters and defense counsel’s son that he could not identify the perpetrator, but had to tell the truth when he was forced to testify under subpoena. Wells, the eyewitness whose testimony proved less damaging to Smith, simply testified that he had identified Smith at his first opportunity to do so, in the photographic lineup. The credibility of these explanations is cast into severest doubt by their after-trial recantations, but the prosecution cannot be charged with knowledge of their latent positions. We cannot conclude that what appears to have been the Mississippi Supreme Court’s conclusion that the prosecution did not knowingly use perjured testimony, Smith v. State, 492 So.2d at 267, was not fairly supported by the record. Sumner v. Mata, 449 U.S. at 551-52, 101 S.Ct. at 771. B. Continued Use of Perjured Testimony Smith also argues that given present knowledge of perjury, his conviction cannot be left undisturbed. Smith relies on Sanders v. Sullivan, 863 F.2d 218 (2d Cir.1988), which found that a state violates due process if it allows a conviction to stand after an eyewitness credibly recants material testimony. To be material, according to Sanders, perjured testimony “must be of an extraordinary nature[,] ... leavpng] the court with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.” Id. at 226. At its core, Sanders disputes the necessity of demonstrating prosecutorial involvement in or knowledge of the perjured testimony. Id. at 224-25. As Sanders itself notes, its pronouncement differs from the rule adhered to in the Fifth Circuit. See id. at 222 n. 2 (citing United States v. Jones, 614 F.2d 80, 82 (5th Cir.), cert. denied, 446 U.S. 945, 100 S.Ct. 2174, 64 L.Ed.2d 801 (1980)). Given the understanding of United States v. Agurs expressed above, this court’s rule appears more consistent with the view taken by the Supreme Court, and Smith does not present an argument for its change. C. Failure to Disclose Exculpatory Material Smith makes the related claim that the State withheld police investigative files critical to assessing the credibility of Thomas and Wells, in particular to assessing the credibility of the identification by Thomas and Wells. According to Smith’s amended habeas petition, the withheld files contained: (1) written statements by Thomas and Wells stating that they could not identify Roberts’ assailant; (2) a lineup report showing that Thomas was unable to pick Smith out of a lineup shortly after the incident; (3) the reports of the investigating officers demonstrating that Thomas and Wells were not able to describe either the Roberts’ assailant [sic] or his car with any detail when they first spoke to the police and the District Attorney’s officer; and (4) the notes of the police radio communication calls, indicating the very limited informations given by Thomas and Wells to the investigation police officer, Sgt. Oatis, in the Tote-Sum store parking lot just twenty minutes after the incident that occurred there. Such information was obviously critical to Petitioner’s case: not only for purposes of impeaching the testimony of Thomas, Wells and the State’s other witnesses at trial, but also for purposes of impeaching Sgt. Oatis’ testimony at the suppression hearing. [Record citations omitted]. Most striking are the sworn statements from Thomas and Wells and their summary by a police detective: taken the day after and three days after the crime, respectively, they fail to provide any more information about the perpetrator than that he was a black male. In Wells’ sworn statement, he summarized his identification in response to questioning: Q: Would you know this man if you saw him again. A: I don’t think I would I did not get a good look at him. Q: Do you think that you would recognize the car if you saw it again. A: I don’t think I could I did not get a good look at it either. The Mississippi Supreme Court appears to have assumed that the information was not in fact provided to Smith or his trial counsel by the prosecution, but instead first surfaced at the second coram nobis hearing. 500 So.2d at 979; see also 492 So.2d at 264. Focusing particularly on the witness statements from Thomas and Wells, however, the court concluded that the information they contained was not favorable to Smith and in any event was not such as to undermine confidence in the outcome of the trial. 500 So.2d at 979. On habeas review the district court below substantially agreed, rejecting Smith’s claim for three reasons: first, the state substantially complied with Smith’s request; second, Smith substantially knew the testimony of Thomas and Wells, effectively answering his own request; and third, the police record contained no evidence “favorable” to Smith, and thus under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), need not have been disclosed, at least not before the witnesses testified. 689 F.Supp. at 658. Successful establishment of a Brady claim requires three findings: (1) that evidence was suppressed; (2) that this evidence was favorable to the accused; and (3) that the evidence was material either to guilt or punishment. Brogdon v. Blackburn, 790 F.2d 1164, 1167 (5th Cir.1986) (per curiam), cert. denied, 481 U.S. 1042, 107 S.Ct. 1985, 95 L.Ed.2d 824 (1987). 1. Suppression or Nondisclosure of the Evidence Smith moved for discovery of any Brady material in a discovery request filed May 28,1981, and the district court ordered compliance through in camera inspection in an order dated June 19,1981. Under United States v. Agurs, 427 U.S. at 106-07, 96 S.Ct. at 2399, Smith’s claim is not mooted by a failure to request information with greater specificity; United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383-84, 87 L.Ed.2d 481 (1985), in collapsing Brady’s distinction between the categories of requests, presumably reinforces this notion. The state conceded at the coram nobis hearing that it would have possessed and inspected the police files, and has not contended at any point in this extended litigation that the reports were received by Smith or his counsel, instead focusing on whether the information was otherwise made known to them. The district court essentially agreed, suggesting the defense functionally received the evidence, since “Smith knew that Thomas and Wells had not identified him to the police, and Smith obtained statements from Thomas and Wells stating they could not identify him.” 689 F.Supp. at 658. This analysis goes at most to the issue of materiality. Smith at no point in the trial evidenced knowledge that neither Thomas nor Wells had been able to describe the assailant in statements to the police made shortly after the victim’s death, and knowledge of other sources of impeachment does not deprive him as a threshold matter of the right to additional, discrete bases for impeachment residing in material possessed by the prosecution. Moreover, Smith argues that the nondisclosure impaired his ability to impeach Oatis’ testimony at the suppression hearing, an application for which the timing of the disclosure was critical. 2. Exculpatory Nature of Evidence The district court also concluded that the information in the police record was not sufficiently “favorable” to Smith to qualify under Brady, as “Smith could have used the record only as a source of additional prior inconsistent statements to impeach the state’s witnesses.” Id. at 658. Again, this is only an assertion that the material’s revelation would have been immaterial to the outcome, as impeachment material is clearly exculpatory and qualifies as Brady material. United States v. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380; United States v. Irwin, 661 F.2d 1063, 1068 (5th Cir.1981), cert. denied, 456 U.S. 907, 102 S.Ct. 1754, 72 L.Ed.2d 164 (1982); United States v. Anderson, 574 F.2d 1347, 1355 (5th Cir.1978). This is true as well of material that provides an additional, but not exclusive, basis for impeachment. See Monroe v. Blackburn, 607 F.2d 148, 152 (5th Cir.1979), cert. denied, 446 U.S. 957, 100 S.Ct. 2929, 64 L.Ed.2d 816 (1980). The nondisclosed statements of Thomas and Wells were not sheerly redundant, but rather constituted the most contemporary appraisals of their alleged observation of Smith, and combined with their failure to previously identify Smith as the person they observed cast doubt on the credibility of their latent identifications and on the testimony of Oatis. The statements are more than merely cumulative; Thomas and Wells both evidence an inability to describe the assailant, a distinct cognitive exercise from the identification of a suspect as the assailant. Equally important, the statements are less easily explicable than the inconsistencies stressed by Smith’s counsel in his cross-examination of Thomas and Wells, which were excused at trial as the product of various pressures brought to bear on the eyewitnesses. A jury might reasonably doubt the credibility of witnesses who had earlier sworn ignorance before the police as well. 3. Materiality In United States v. Bagley, a majority of the Supreme Court imported the materiality test of Strickland v. Washington for use in all cases involving [Pjrosecutorial failure to disclose evidence favorable to the accused: The 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. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome. 473 U.S. at 682, 105 S.Ct. at 3383 (opinion of Blackmun, J.); id. at 685, 105 S.Ct. at 3385 (opinion of White, J.); see also Pennsylvania v. Ritchie, 480 U.S. 39, 55-59, 107 S.Ct. 989, 1001-02, 94 L.Ed.2d 40 (1987). Smith’s discussion of his Brady claim is unfortunately synchronized with his perjury claim, leading him to identify all aspects of the police record that would cast doubt on the trial testimony of Thomas and Wells. Brady does not extend so far: the doctrine exempts information that the defense could have obtained from other sources by exercising reasonable diligence, see, e.g., United States v. Bi-Co Pavers, Inc., 741 F.2d 730, 736 (5th Cir.1984), and to the extent that Smith’s argument rests on supposed revelations like the difficulties of precise identification in the pre-dawn hours, across a parking lot, and from a moving vehicle, it must fail. The nondisclosed statements made by Thomas and Wells to the police, however, present a much closer issue. As suggested above, the statements and their verification by other elements of the police record are relevant to several stages of trial. (a) Suppression Hearing First, Smith has consistently suggested since their disclosure that he was materially impaired in his ability to impeach Oatis’ testimony at the suppression hearing, which related to the seizure without warrant of items from the defendant’s home and from the car he had borrowed. At that hearing, Oatis described Thomas and Wells’ description of the suspect and his vehicle as follows: Black male subject, medium Afro, medium dark complexion, rather short stature. They went on to describe mostly his vehicle. Q: What description did they give you of the vehicle? A: They stated that it was a red Pinto, approximately a ’70 model. That the vehicle possibly had a decal of some type in the back of the vehicle. * * * * * * A: Vehicle appeared to have — excuse me — appeared to have a — a part of the grill cracked or broken in the front of the vehicle. Also some light color material appeared to on the dashboard of the car. After I asked for a special identification on the vehicle, that’s what they told me. Q: What kind of material would you say it was on the dash of the vehicle? A: I believe they stated it was some type of material resembling carpeting. Q: At the time they told you about the car and the black male, what exactly was the next thing that you did? A: At that time, I immediately radioed for all the units to be on the lookout for such a vehicle. The police records indicate a significantly less detailed description of the suspect and his car, and Thomas and Wells later renounced the additional details as manufactured under pressure from the police. Not having the information garnered from the personal interviews of the putative eyewitnesses, who were under no obligation to cooperate with the defense, and not having benefit of cross-examination and disclosures such as would later occur at trial, Smith was severely handicapped in his ability to impeach Oatis by the nondisclosure of the witness statements, police reports, and notes from the radio call. Timing is critical to proper Brady disclosure, see United States v. Peters, 732 F.2d 1004, 1008-09 (1st Cir.1984), and objections may be made under Brady to the state’s failure to disclose material evidence prior to a suppression hearing. See, e.g., United States v. Lanford, 838 F.2d 1351, 1355 (5th Cir.1988); United States v. Xheka, 704 F.2d 974, 982 (7th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983). Such claims are not proscribed by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Although we have previously held Brady claims to be foreclosed on habeas review because of Stone, see O’Quinn v. Estelle, 574 F.2d 1208, 1209-10 (5th Cir.1978), cert. denied, 440 U.S. 919, 99 S.Ct. 1239, 59 L.Ed.2d 469 (1979), and the district court here required Smith to establish that the suppression hearing was not “full and fair” within the meaning of Stone, 689 F.Supp. at 659, Smith’s claim is transparently of the variety falling without Stone, since it attempts to measure the breach of a right arising under the Constitution rather than presenting a claim primarily relying on the exclusionary or another judge-made rule. See Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97; cf. Stone, 428 U.S. at 495 n. 37, 96 S.Ct. at 3052-53 n. 37; Kimmelman v. Morrison, 477 U.S. 365, 375-83, 106 S.Ct. 2574, 2583-87, 91 L.Ed.2d 305 (1986). The appropriate assessment for Brady purposes, of course, is whether nondisclosure affected the outcome of the suppression hearing. Notwithstanding the statements provided by Thomas and Wells, and the terse notes made from the police radio communication, the factfinder might have believed Oatis’ contention that the eyewitnesses were initially more forthcoming regarding the description of the suspect and his vehicle. Even if he were disbelieved, the uncontradicted account in the log of police radio communication would have the police alerted at 5:37 a.m. to watch for a “B/M in RED FORD PINTO.” Another police officer, Grice, testified at the suppression hearing that he was told by Oatis upon arriving at the crime scene at approximately 5:40-5:45 a.m. that they were looking for a red Pinto. According to his testimony at the suppression hearing, at around 6:15 or 6:20 a.m., Oatis, still at the Tote-Sum store, observed a black man in a red Pinto approach. The car, the only one on the street at that time, then “suddenly]” and “hastily” executed a U-turn and drove away. Oatis testified without contradiction at the suppression hearing that Smith had executed this turn in a car wash located “a few yards away” from his location, and Smith testified at the same hearing that he had reversed direction upon seeing a number of lights and suspecting that the police cars were assembled to check licenses. While pursuing Smith, Oa-tis testified, he observed Smith place something below him and to the right side of the car, and testified that when stopped Smith could not produce a driver’s license and became belligerent. Oatis then testified that he saw through the window of the Pinto the mate to the shoe he had found in the parking lot, whereupon he arrested and handcuffed Smith. Oatis explained that he did not notice the blood and mud on Smith’s hands until after the arrest. Smith did not deny turning the vehicle around abruptly to avoid the police, but testified that Oatis had only observed him drop a cigarette and that the police must have planted the shoe in his car. We cannot say that a factfinder presented with this account, and thus aided by the nondisclosed evidence and lacking the supposed embellishment by Oatis, would have decided to suppress the evidence and thus disturb also the accumulation of proof against Smith cultivated by the search of his apartment. An officer may conduct an investigative stop of a moving vehicle based upon a reasonable suspicion of criminal activity. See, e.g., United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985) (citing cases). The police possessed information that reasonably attracted their attention to Smith, quite apart from the fact that his was the only car on the neighboring streets at that hour of the morning, and his evasive maneuver confirmed their suspicion. See, e.g., Scruggs v. State, 412 So.2d 732, 734 (Miss.1981); cf. United States v. Hasette, 898 F.2d 994, 995 n. 2 (5th Cir.1990) (per cu-riam) (citing cases regarding vehicular evasion of temporary checkpoints); Boches v. State, 506 So.2d 254, 264 (Miss.1987) (same). Smith does not suggest on appeal that evaluation of the conduct of the post-stop investigation — the sighting of the missing shoe, the arrest of Smith, the questioning of MacDonald, or the search of Smith’s apartment — was otherwise adversely influenced by the nondisclosure. (b) Guilt Phase Smith does not suggest on appeal any complicated trial dynamic resulting from the nondisclosure, except to suggest in passing that his trial counsel’s defense theory was upset by the testimony of Thomas and Wells; rather, he argues simply that the eyewitness testimony was essential to the conviction and sentence of death, and that the absence of the police records made Thomas and Wells seem more credible in their trial testimony. The importance of impeaching witnesses is implicit in the Brady cases regarding impeaching evidence as material. See, e.g., United States v. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380; Agurs, 427 U.S. at 113 n. 21, 96 S.Ct. at 2402 n. 21; Giglio v. United States, 405 U.S. at 153-55, 92 S.Ct. at 765-66; United States v. Irwin, 661 F.2d at 1068 (5th Cir.1981); Hudson v. Blackburn, 601 F.2d 785, 789 n. 6 (5th Cir.1979), cert. denied, 444 U.S. 1086, 100 S.Ct. 1046, .62 L.Ed.2d 772 (1980); United States v. Anderson, 574 F.2d at 1355. It is a commonplace that eyewitness testimony is highly regarded by juries, rather more than its objective appraisal might warrant. See, e.g., Kampshoff v. Smith, 698 F.2d 581, 585-87 (2d Cir.1983); United States v. Beasley, 576 F.2d 626, 633 (5th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979). Accordingly, this court has on a number of occasions observed that the nondisclosure of evidence that could be used to impeach a key witness constitutes a Brady violation warranting a new trial. See, e.g., Lindsey v. King, 769 F.2d at 1042-43; Monroe v. Blackburn, 607 F.2d at 152; Martinez v. Wainwright, 621 F.2d 184, 188 (5th Cir.1980); Jackson v. Wainwright, 390 F.2d 288, 298-99 (5th Cir.1968); Guerrero v. Beto, 384 F.2d 886 (5th Cir.1967) (per curiam). The materiality of Brady material depends almost entirely on the value of the evidence relative to the other evidence mustered by the state. In Lindsey v. King, for example, this court found that the state’s case rested on two eyewitnesses who identified the defendant and one nonidentifying eyewitness. The state did not disclose an earlier statement by one of the identifying eyewitnesses that he did not see the perpetrator’s face. Although the other eyewitness’ testimony was unshaken, the court concluded that the identification by two unshaken witnesses was critical to the trial, particularly in light of the poor circumstances for identification and the defendant’s contention that his companion, who “bore a striking resemblance” to the defendant, had in fact committed the crime. 769 F.2d at 1042-43. In Monroe, this court held that notwithstanding strongly corroborating physical evidence, the prosecutor’s failure to turn over statements made by an eyewitness to the police constituted a Brady violation. Even though the witness admitted on cross-examination that “he did not get a good look at the robber and was not able positively to identify [the defendant] as the robber when he was brought back to the scene,” the court held that the absence of any reference in the police statement to a noise that the witness stated at trial he had heard went “directly to a substantive issue and could be used in urging that the in-court testimony has been ‘improved’ by the erroneous addition of what the prosecution needed to support its theory.” 607 F.2d at 152. In evaluating the case against Smith, we must avoid, as Lindsey cautioned, an “arithmetical approach” to redacting the nondisclosed evidence, 769 F.2d at 1042, and instead attend to “what the convicting jury had before it as opposed to what the new jury will not.” Smith v. State, 492 So.2d at 266. In ordering a coram nobis hearing on the issue of perjury, the Mississippi Supreme Court noted that the “witnesses’ identification of Smith at trial formed an integral part of our opinion affirming his conviction,” In re Smith, 457 So.2d at 911 (Miss.1984), and the district court acknowledged that Thomas and Wells were “valuable witnesses.” 689 F.Supp. at 649. This understood, we cannot conclude that our confidence in the outcome is undermined by the Brady violation. First, the persuasive value of the police records as impeachment material for Thomas and Wells is less than crystalline. Wells, for example, admitted at trial that he had never before the photographic lineup been able to identify Smith as the perpetrator, that he was able to indicate Smith in the courtroom because he was distinctively positioned and clad, and, ultimately, that he could not identify Smith as the perpetrator. Thomas, a convicted armed robber, admitted that he had not identified Smith at the lineup, that he had previously stated that he could not identify the perpetrator, and that he had seen Smith at the suppression hearing. Both men admitted that they had previously lied to avoid identifying Smith, that they had just identified him before trial, and that one way they could identify Smith was simply because of his involvement with the proceedings. Although their impeachment was not as complete as it would be had they possessed the nondis-closed records, see Hudson v. Blackburn, 601 F.2d at 789, it was sufficiently complete to diminish the materiality of the Brady materials. See, e.g., United States v. Xheka, 704 F.2d at 983. The remaining credibility of the eyewitnesses, precariously balanced on their latent realizations and fears of subpoenas, could not be impeached by the materials. Second, and equally important, the circumstantial evidence presented by the state was objectively overwhelming. Smith drove by the scene of the crime in a vehicle like that unequivocally described by at least one eyewitness and attempted to evade the police just forty-five minutes or so after the abduction of the victim. In his car was the matching shoe to one found in the Tote-Sum parking lot. Also in the parking lot was a pair of brass knuckles arguably identical to a pair he admittedly possessed. His hand was stained with human blood. In his apartment, on his bed, was the victim’s sweater and purse, and on the floor were items of his clothing covered with mud and blood. The blood on his pair of khaki pants was almost certainly that of the victim. Hair likely to have been the victim’s was found on the bed. Two one hundred dollar bills arguably belonging to the victim were distributed between his discarded pants and the pair he was wearing when arrested. The victim’s body was partially buried fifty yards behind his apartment building. Her head bore wounds made by a blunt instrument, and her pubic hair contained a pubic hair similar to Smith’s. In response to this case, and the eyewitness testimony, Smith offered an alibi that was simply implausible. Without producing any corroborating physical proof or witnesses, Smith suggested in essence that another had taken uncontested control of his apartment, taken advantage of Smith’s mysterious collapse to don clothing that Smith had chosen to doff, borrowed the car Smith had previously borrowed, abducted the victim, returned to Smith’s apartment, killed and hidden the victim, removed Smith’s clothing, and departed just as Smith awoke and saw the perpetrator’s shadow. One witness for the state said that Smith had been inside the Tote-Sum store shortly before the crime, contradicting Smith’s claim to have never been there. The jury was entitled to disbelieve the rest of his account. Unlike Lindsey, which produced a tangible person of very similar appearance at the scene of the crime, 769 F.2d at 1042-43, Smith did not make an effective case for mistaken identity; unlike Monroe, circumstantial evidence connected Smith with the crime, the victim’s possessions, and the victim’s body. 607 F.2d at 149, 152. Although the state ought to have disclosed the police records, and although the conduct of the trial may have been affected by their failure to do so, we cannot conclude that there is a reasonable probability that, had the evidence been disclosed to the defense, the result' of the proceeding would have been different. See, e.g., United States v. Weintraub, 871 F.2d 1257, 1262-64 (5th Cir.1989); Chaney v. Brown, 730 F.2d 1334, 1350 & n. 21 (10th Cir.1984). (c) Punishment Phase Smith also argues that the nondisclosure of evidence affected the sentencing phase by contributing to the removal of residual doubt. The trial court rejected Smith’s proffer of an instruction detailing residual doubt as a mitigating circumstance, but its instructions did permit the jury to entertain doubt in that fashion, and Smith’s trial counsel repeatedly stressed the possible innocence of his client in his closing at the sentencing phase. We have previously recognized such reargument of guilt as a sound strategy. Stringer v. Jackson, 862 F.2d 1108, 1116 (5th Cir.1988). Although Smith was not constitutionally entitled to instruct the jury to consider such residual doubt, Franklin v. Lynaugh, 487 U.S. 164, 174-77, 108 S.Ct. 2820, 2327-28, 101 L.Ed.2d 155 (1988), the Supreme Court has subsequently recognized a difference between rules relating to what mitigating evidence the jury may consider and rules relating to instructing the jury how to consider such evidence. Saffle v. Parks, — U.S. —, —, 110 S.Ct. 1257, 1261, 108 L.Ed.2d 415 (1990). Here the claim is still simpler: Smith asks not for a revision of the court’s determination of what evidence he may present to the jury, but only that we assess the materiality of the Brady violation in light of the mitigating case actually presented for him. We agree that nondisclosure of impeachment evidence may be relevant to the punishment phase, see Lindsey v. King, 769 F.2d at 1042, and reject the intimation that this aspect of Smith’s claim may have no constitutional footing. Cf. Jones v. Butler, 864 F.2d 348, 357 (5th Cir.1988) (alternative holding), cert. denied, — U.S. —, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989). For the reasons expressed above, however, we seriously doubt that disclosure of the Brady materials would have affected the jury’s view of Smith’s innocence. Smith presented no more evidence suggesting his innocence, and his witnesses in mitigation were of little assistance; his mother testified that he had been previously involved in two shootings, allegedly in self-defense, and his aunt confirmed that in one of the incidents a child had been shot. The state also presented evidence that the victim had been sexually assaulted, and argued without material contradiction — but for the suggestion that Smith was innocent of wrongdoing — that Smith’s crime had involved robbery, kidnapping, and a brutal slaying. We conclude that the jury's residual doubt would not have been materially affected by compliance with Brady. D. Accusations of Rape at Sentencing Proceeding Smith objects to the prosecution’s presentation of evidence during the sentencing phase that suggested Smith had raped the victim before her death, and to the prosecution’s emphasis on that allegation during argument to the jury regarding the aggravating circumstances surrounding the crime. First, he argues that the use of the rape allegation in support of an aggravating circumstance amounted to (or perhaps was analogous to) being convicted of a crime without being so charged or being sentenced for a crime without being so convicted. Second, Smith argues that alleging commission of a rape while knowingly being unable to offer competent evidence violated “fundamental fairness.” Third, Smith argues that “death sentences must ‘be, and appear to be, based on reason rather than caprice or emotion.’ Gardner v. Florida, 430 U.S. 349, 358 [97 S.Ct. 1197, 1204, 51 L.Ed.2d 393] (1977).” In support of this argument, he contends that the State unfairly surprised defense counsel with the rape testimony and argument at the sentencing phase, as well as unduly interjecting an emotional and volatile allegation into the proceedings without basis in fact. The conduct cited to support Smith’s allegations was not discussed by either the Mississippi Supreme Court or the district court below, warranting brief review here. Although the prosecution initially sought indictment for capital murder during the course of rape, the grand jury returned an indictment for murder during the course of robbery. Nevertheless, during his voir dire of the first panel of potential jurors, the prosecutor began by reporting that “[a]s the Judge has told you briefly, this defendant is charged with having seized a person, taken them against their will, robbed them, raped them and murdered them.” An objection to the rape reference on the grounds that it was not contained in the indictment was sustained, but no cautioning instruction was given. During questioning of a second panel, the prosecutor asked whether any of the potential jurors “ever had a sister or a mother or a brother that’s been raped, abducted, murdered or robbed?” Defense counsel objected on the same grounds as before but was overruled. During questioning of the examining pathologist at trial, the prosecutor was cautioned by the judge not to discuss vaginal swabs taken from the victim that afforded an inconclusive comparison to a semen sample taken from Smith. The prosecutor later introduced evidence that found similarity between pubic hair recovered from the pubic hair of the victim and a sample submitted from Smith, and also found similarity between head and pubic hair sample taken from the victim and pubic hair recovered from bed clothing and a sweater found in Smith’s bedroom and head hair recovered from the bed clothing. The testimony regarding the comparison focused chiefly on the racial characteristics of the samples. The evidence was admitted over defense counsel’s objections and motion for mistrial on the grounds that “[t]he prosecution obviously is attempting to inflame this jury by offering proof before this jury of another crime, namely rape, which is not charged in the indictment.” The prosecutor also introduced evidence that the victim’s shirt was on inside out and that her bra was pulled up when her body was recovered from behind Smith’s apartment. Speaking generally to Smith’s allegations, the district court concluded that “the prosecution carefully guarded against any reference to rape at the guilt phase of the trial, repeatedly cautioning its witnesses to avoid any reference to those allegations. The prosecution had to caution them because the evidence of sexual abuse was substantial and apparent to everyone. It is obvious that the motive of this crime was not simply robbery.” 689 F.Supp. at 660. This evidence was later resubmitted to the jury during the sentencing phase. In addition, the prosecution recalled the forensic pathologist who had performed the autopsy, this time to testify that he had found evidence of recent sexual intercourse. The prosecution also recalled the serologist who had testified at the guilt phase regarding the comparison of blood samples, who testified in her second appearance that vaginal swabs taken from the victim revealed numerous sperm. Defense counsel unsuccessfully objected on the grounds that the testimony did not correspond to the indictment and was inflammatory. On cross-examination, the serologist admitted that she was unable to identify the sperm and semen taken from the victim as that of Smith, which the prosecution had previously admitted during a conference out of the presence of the jury during the guilt phase. During their summations to the jury during the sentencing phase, the prosecutors referred twelve times to the allegation that Smith had raped the victim, and the judge overruled defense counsel’s objection following a reference to the serologist’s discussion of the sperm sample taken from the victim. During both closing arguments the prosecution displayed a slide of the victim’s body. Following defense counsel’s unsuccessful objection to the continued display of the slide, the lead prosecutor suggested to the jury the following: Do you know why they didn’t want that on? Do you know why they didn’t want that on? Because they didn’t want you to see her shirt on inside out. They didn’t want you to see that brassiere pulled up around her neck. They didn’t want you to remember that, in addition to killing her, robbing her, kidnapping her, that he raped her. And we don’t know how many times. All we know is that Mrs. Ard [the serologist] said numerous — and she stressed numerous— sperm cells. Although the jury was not charged with the option, available under the Mississippi sentencing statute, of deciding on rape or sexual battery as an aggravating factor, it was charged with determining whether the crime was heinous, and found heinousness as one of three aggravating factors necessitating the death penalty. 1. Procedural Bar On collateral review of this claim, the Mississippi Supreme Court held that it was barred because it was not raised on direct review. Smith v. Mississippi, 434 So.2d 212, 216 (Miss.1983). The district court, although receptive to procedural bars with regard to other claims, 689 F.Supp. at 661-63, did not discuss any procedural impediments to this claim. On appeal to this court, the state appears to infer that the district court’s decision was based on the ruling of Johnson v. Thigpen, 623 F.Supp. 1121, 1127-28 (S.D.Miss.1985), aff'd, 806 F.2d 1243 (5th Cir.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987), and does not dispute the continued vitality of the claim. Br. at 19 n. 1. Smith, in turn, views the state to have conceded the incorrectness of the state court’s decision. Reply Br. at 10. Since counsel objected at trial, since direct appeal was taken prior to the Mississippi Supreme Court’s decision in Wheat v. Thigpen, 431 So.2d 486 (Miss.1983), and since that court plainly relied on the newly restrictive rule it had announced in Edwards v. Thigpen, see Smith, 434 So.2d at 216, Smith has not procedurally defaulted on his claim by failing to appeal the error on direct review in state court. Edwards v. Scraggy, 849 F.2d 204, 209 n. 4 (5th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1328, 103 L.Ed.2d 597 (1989); Wheat v. Thigpen, 793 F.2d 621, 625-26 (5th Cir.1986); Johnson v. Thigpen, 623 F.Supp. at 1127-28; Edwards v. Thigpen, 595 F.Supp. 1271, 1278-79 (S.D. Miss.1984). 2. Merits (a) Conviction For An Unindicted Crime As the district court observed, Smith’s allegation that he was convicted for a crime for which he had not been charged and which had not been proven, in violation of the rule of Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978), is without merit, as it implies the presence of a