Mills v. Singletary , 161 F.3d 1273 ( 1998 )

United States Court of Appeals,
Eleventh Circuit.
No. 96-3506.
Gregory MILLS, Petitioner-Appellant,
v.
Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-
Appellee.
Dec. 1, 1998.
Appeal from the United States District Court for the Middle District of Florida. (No. 92-1184-Civ-
Orl-9), Patricia C. Fawsett, Judge.
Before HATCHETT, Chief Judge, and EDMONDSON and BLACK, Circuit Judges.
PER CURIAM:
In this capital case, appellant Gregory Mills challenges the district court's denial of his
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.
I. BACKGROUND
The Florida Supreme Court described the circumstances surrounding the murder of James
Wright and Mills's trial as follows:
The evidence at the trial showed that Gregory Mills and his accomplice Vincent Ashley
broke into the home of James and Margaret Wright in Sanford between two and three o'clock
in the morning, intending to find something to steal. When James Wright woke up and left
his bedroom to investigate, Mills shot him with a shotgun. Margaret Wright awakened in
time to see one of the intruders run across her front yard to a bicycle lying under a tree. Mr.
Wright died from loss of blood caused by multiple shotgun pellet wounds.
Ashley, seen riding his bicycle a few blocks from the Wright home, was stopped and
detained by an officer on his way to the crime scene. Another officer saw a bicycle at the
entrance to a nearby hospital emergency room, found Mills inside, and arrested him. At
police headquarters officers questioned both men and conducted gunshot residue tests on
them. Then they were released.
At trial Mills' roommate [Sylvester Davis] testified that he and his girlfriend [Viola May
Stafford] hid some shotgun shells that Mills had given them, that Mills had been carrying
a firearm when he left the house the night of the murder, and that Mills had said he had shot
someone. He also stated that Mills told him that a city worker had found a shotgun later
shown to have fired an expended shell found near the victim's home.
After the murder, Ashley was arrested on some unrelated charges. He then learned that Mills
had told his roommate and his girlfriend about the murder and that they in turn had told the
police, so he decided to tell the police about the incident. Ashley testified that Mills entered
the house (through a window) first, that he, Ashley, then handed the shotgun to him, and that
he then entered the house himself. Ashley saw the man in the house had awakened and was
getting up, so he exited the house and ran to his bicycle. Then he heard the shot and ran
back to the house, where he saw Mills. They both departed the scene on their bicycles,
taking separate routes. Ashley was granted immunity from prosecution for these crimes and
also for several unrelated charges pending against him at the time he decided to confess and
cooperate.
Mills testified in his defense. He said that he arrived home from work on May 24 at around
9:30 p.m. Then he went out, first to one bar, then another, playing pool and socializing. He
went home afterwards but could not sleep, he said, because of a toothache and a headache,
so he went to the hospital emergency room. There police officers took him into custody.
Mills v. State, 476 So.2d 172, 174-75 (Fla.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1241, 89
L.Ed.2d 349 (1986).1
II. PROCEDURAL HISTORY
The State of Florida charged Mills through an indictment dated June 29, 1979, with four
counts relating to the May 25, 1979 shooting of Wright: (1) first degree felony murder (Count I);
(2) burglary (Count II); (3) aggravated battery (Count III); and (4) possessing a firearm despite a
prior felony conviction (Count IV). On August 16, 1979, a jury trial commenced. After the trial
judge denied Mills's motion for judgment of acquittal, the jury returned verdicts of guilty on the
1
Under 28 U.S.C. § 2254(d), a federal court reviewing a state petitioner's petition for writ of
habeas corpus must give a presumption of correctness to the state courts' factual determinations
(when certain prerequisites are met). See Bolender v. Singletary, 16 F.3d 1547, 1552 n. 1 (11th
Cir.), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994); Cumbie v. Singletary,
991 F.2d 715, 723 (11th Cir.), cert. denied, 510 U.S. 1031, 114 S.Ct. 650, 126 L.Ed.2d 608(1993). This presumption is applicable equally to state appellate court findings of fact. See
Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Bolender, 16 F.3d at1552 n. 1.
charges of first degree felony murder, burglary and aggravated battery.2 At the penalty phase of the
proceedings on the first degree murder conviction, the jury recommended that Mills receive a life
sentence. On April 18, 1980, the trial judge overrode the jury's recommendation after finding that
the aggravating factors surrounding Mills's crime outweighed the absence of statutory mitigating
factors pursuant to Florida Statute § 921.141, and sentenced Mills to death.3
On direct appeal to the Florida Supreme Court, Mills raised the following issues: (1)
whether sufficient evidence supported his felony murder conviction; (2) whether he received
ineffective assistance of counsel because of a conflict of interest in the public defender's office; (3)
whether the trial court violated his confrontation rights in abridging cross-examination of Ashley;
(4) whether the trial court erred in admitting gunshot residue tests; (5) whether his conviction for
aggravated battery was improper; (6) whether his convictions for both felony murder and burglary
were improper; and (7) whether the trial judge's override of the jury's recommendation was
improper. See Mills, 476 So.2d at 175, 179.
2
Florida later filed a nolle prosequi as to Count IV.
3
The trial court found that the following statutory aggravating factors supported Mills's death
sentence: (1) under sentence of imprisonment when he committed the murder; (2) previously
convicted of a felony involving the use or threat of violence; (3) knowingly creating a great risk
of death to many persons; (4) murder committed while Mills was engaged in the commission of
or an attempt to commit or flight after committing the robberies; (5) pecuniary gain; (6)
heinous, atrocious or cruel. The trial court additionally found that the following statutory
mitigating factors were not present: (1) no significant history of prior criminal activity; (2)
murder committed while Mills was under the influence of extreme mental or emotional
disturbance; (3) the victims were participants or consented to Mills's acts or conduct; (4) Mills
was an accomplice in the murder that another committed, or Mills's participation in the murder
was minor; (5) Mills acted under extreme duress or under the substantial domination of another;
(6) Mills's capacity to appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law was substantially impaired; (7) Mills's age at the time of the crime. See
Fla. Stat. § 921.141 (1979). The trial court also sentenced Mills to ten years of imprisonment on
Count II (burglary) and five years of imprisonment on Count III (aggravated battery), with the
sentences running concurrently.
The Florida Supreme Court affirmed Mills's convictions and sentences for felony murder and
burglary, but vacated the sentence and conviction for aggravated battery. See Mills, 476 So.2d at
175, 177. The Florida Supreme Court held that Mills's contentions concerning ineffective assistance
and gunshot residue tests were meritless, and that the trial court did not abridge Mills's right to
confront the witnesses against him. See Mills, 476 So.2d at 175-77.
The Florida Supreme Court then analyzed the trial judge's override of the jury's
recommendation at Mills's sentencing. It found that the trial judge had found the existence of no
mitigating factors and the following six aggravating factors pursuant to Florida Statute § 921.141:(1)
under sentence of imprisonment; (2) previous conviction of violent felony; (3) great risk of death
to many persons; (4) felony murder; (5) pecuniary gain; and (6) heinous, atrocious or cruel. The
Florida Supreme Court held that the following aggravating factors were improper: (1) great risk of
death to many persons; (2) pecuniary gain; and (3) heinous, atrocious or cruel. It affirmed the
remainder of the aggravating factors, as well as the trial court's finding that no mitigating factors
existed. See Mills, 476 So.2d at 177-79. The Florida Supreme Court affirmed the trial judge's
imposition of the death sentence, holding that the override complied with Tedder v. State, 322 So.2d
908 (Fla.1975).4 The United States Supreme Court denied Mills's petition for writ of certiorari.
Mills v. Florida, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986).
4
Specifically, the Florida Supreme Court held that
the facts suggesting a sentence of death are so clear and convincing that virtually
no reasonable person could differ. There are three valid statutory aggravating
circumstances, and the trial judge has found that there are no valid mitigating
circumstances. The purported mitigating circumstances claimed by Mills, but not
found by the trial judge, are not sufficient to outweigh the aggravating
circumstances nor do they establish a reasonable basis for the jury's
recommendation.
Mills, 476 So.2d at 179 (construing Tedder, 322 So.2d at 910).
The Governor of Florida signed Mills's death warrant, and Mills thereafter moved for
post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied
all requested relief. Mills appealed the trial court's denial to the Florida Supreme Court, petitioned
for a writ of habeas corpus and requested a stay of execution. The Florida Supreme Court denied
Mills's petition for habeas corpus, but reversed the trial court's summary denial of his 3.850 motion
and directed the trial court to hold an evidentiary hearing on Mills's 3.850 claim of ineffective
assistance relating to his lawyer's failure to develop and present evidence that would tend to
establish statutory or nonstatutory mental mitigating circumstances. See Mills v. Dugger, 559 So.2d
578, 579 (Fla.1990).5
The trial court held an evidentiary hearing pursuant to the Florida Supreme Court's remand.
Mills called numerous witnesses at the evidentiary hearing, including: his trial attorneys, one of
whom testified that "with the benefit of hindsight" she would have looked at mental health evidence;
two psychologists who testified that Mills had some brain damage and satisfied the criteria for two
statutory mental mitigators; and his sister and one of his brothers, who recounted Mills's difficult
upbringing. The trial court held that Mills failed to show that his lawyer's performance was deficient
under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
5
Mills included seven claims in his petition for writ of habeas corpus: (1) the Florida
Supreme Court decided wrongly on appeal the issue of Mills not being allowed to impeach his
codefendant; (2) the trial judge's override of the jury's recommendation was improper; (3)
appellate counsel was ineffective because Mills should have been resentenced pursuant to
Elledge v. State, 346 So.2d 998 (Fla.1977); (4) the trial court erred in finding an automatic
aggravating factor (felony murder); (5) the trial court erred in allowing gunshot residue test
evidence; (6) the trial court impermissibly shifted to Mills the burden of proving life to be the
proper penalty; and (7) consideration of victim impact evidence violated Booth v. Maryland,
482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). The Florida Supreme Court held that
"Mills raised most of these issues on direct appeal or in his 3.850 motion; others should have
been raised, if at all, on appeal.... Claims 1, 2, and 4 through 7 are ... procedurally barred."
Mills, 559 So.2d at 579 (citations omitted). The Florida Supreme Court also held that Mills's
lawyer did not render ineffective assistance on appeal. See Mills, 559 So.2d at 579.
The Florida Supreme Court affirmed, holding that Mills's lawyer's admission that "with the
benefit of hindsight" he would have investigated mental health evidence "illustrates the Supreme
Court's concern [in ineffective assistance claims] "that every effort be made to eliminate the
distorting effects of hindsight.' " Mills v. State, 603 So.2d 482, 485 (Fla.1992) (quoting Strickland,
466 U.S. at 689, 104 S.Ct. 2052). The Florida Supreme Court found that Mills also failed to satisfy
the prejudice prong of Strickland, holding that "Mills has not demonstrated a reasonable probability
that the currently tendered evidence would have produced a reversal of the judge's override of the
jury's recommendation." Mills, 603 So.2d at 486.
Mills then filed a petition for extraordinary relief and for writ of habeas corpus with the
Florida Supreme Court. He raised two issues in the petition: (1) the Florida Supreme Court
performed an inadequate harmless error analysis in affirming the death sentence; and (2) the
felony-murder aggravator is an unconstitutional automatic aggravating circumstance in felony
murders. The Florida Supreme Court found both issues to be procedurally barred. Mills v.
Singletary, 606 So.2d 622, 623 (Fla.1992).
After exhausting state remedies, Mills filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 in the United States District Court for the Middle District of Florida. He claimed
that: (1) he received ineffective assistance of counsel at the penalty and sentencing phase; (2) the
trial court and the Florida Supreme Court failed to evaluate adequately mitigation evidence in
contravention of Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991); (3) the
Florida Supreme Court erred in upholding the jury override despite its invalidating three aggravating
factors; (4) his sentence rested upon an unconstitutional automatic aggravating factor (felony
murder); (5) the jury override resulted in an arbitrary, capricious and unreliably-imposed death
sentence; (6) the trial court violated his confrontation rights when it precluded certain impeachment
and cross-examination of witness Ashley; (7) he received ineffective assistance of counsel because
of a conflict of interest in the public defender's office; (8) the trial judge erroneously considered
nonstatutory aggravating factors in overriding the jury's recommendation of a life sentence, and his
lawyer rendered ineffective assistance in failing to object; (9) the trial judge erred in failing to find
mitigating factors; (10) the trial court erred in admitting testimony and evidence of gunshot residue
tests; (11) he received ineffective assistance of counsel at the guilt phase of his trial; (12) the trial
court erred in admitting as rebuttal evidence results from the gunshot residue test; (13) the
government engaged in prosecutorial misconduct at the sentencing hearing; and (14) the failure to
transcribe the bench conferences resulted in trial error and ineffective assistance of counsel. The
district court found that all of Mills's claims were either meritless or procedurally barred, and
therefore denied Mills's section 2254 petition in a 51-page order. See Mills v. Singletary, No. 92-
1184-CIV-ORL-19 (M.D.Fla. Aug. 19, 1996).
III. ISSUES
Mills raises the following issues in this appeal: (1) whether the trial judge's override of the
jury's recommendation of a life sentence, and the Florida Supreme Court's affirmance, resulted in
an arbitrary and discriminatory sentence of death; (2) whether the Florida Supreme Court violated
Parker v. Dugger in failing to review adequately the record for mitigating factors; (3) whether the
Florida Supreme Court conducted an inadequate harmless error analysis; (4) whether Mills received
ineffective assistance of counsel at the guilt phase, jury penalty phase and judge sentencing phase;
(5) whether the felony murder aggravating factor is unconstitutional; (6) whether Mills's lawyers
had an actual conflict of interest that adversely affected their representation; (7) whether the trial
court violated his confrontation rights; (8) whether the introduction of nonstatutory aggravating
factors rendered his trial fundamentally unfair; (9) whether the trial court failed to consider
mitigating evidence in violation of Eddings v. Oklahoma, 455 U.S. 104, 114-115, 102 S.Ct. 869, 71
L.Ed.2d 1 (1982); (10) whether the introduction of unreliable scientific evidence rendered Mills's
trial unfair; (11) whether the prosecutors engaged in misconduct during the penalty phase of Mills's
trial.
Because we find that Mills is not entitled to relief on the merits of some of his claims and
has procedurally defaulted the others, we affirm the district court's denial of his petition for writ of
habeas corpus. Specifically, we hold in accord with the district court that Mills has procedurally
defaulted on the following claims: whether the introduction of nonstatutory aggravating factors
rendered his trial fundamentally unfair; whether the prosecutors engaged in misconduct during the
penalty phase of Mills's trial; and whether Mills's lawyer rendered ineffective assistance of counsel
at the guilt phase. We address Mills's remaining issues in turn.6
IV. DISCUSSION
A. Jury Override
Mills first challenges the trial court's override of the jury's recommendation of life
imprisonment and the Florida Supreme Court's subsequent affirmance. The trial court found that
six statutory aggravating factors, as well as the absence of statutory mitigating factors, supported
a death sentence. The Florida Supreme Court held that three of the aggravating factors—great risk
of death to many persons, pecuniary gain and heinous, atrocious or cruel—were erroneous and that
the trial court's finding that no mitigating circumstances existed was correct in affirming Mills's
death sentence. See Mills, 476 So.2d at 178-79.
6
Mills filed his petition for writ of habeas corpus on December 23, 1992, before the effective
date (April 24, 1996) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
and thus the AEDPA standard of review provisions are not applicable. See Lindh v. Murphy,
521 U.S. 320, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997); Neelley v. Nagle, 138 F.3d
917, 921 (11th Cir.1998).
In Florida, a jury's recommendation of a life sentence is entitled to "great weight," but a trial
judge may overturn such a recommendation when "the facts suggesting a sentence of death [are] so
clear and convincing that virtually no reasonable person could differ." Tedder, 322 So.2d at 910.7
Our review of a jury override "is not to second-guess the deference accorded the jury's
recommendation in a particular case, but to ensure that the result of the process is not arbitrary or
discriminatory." Spaziano v. Florida, 468 U.S. 447, 465, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984).
Thus, our role is not to second guess the Florida courts on questions of state law, but to determine
whether the application of the override scheme in Mills's case resulted in an imposition of the death
penalty in an arbitrary or discriminatory manner.8
7
This court, and the Supreme Court, have analogized the "great weight" given to a jury's
recommendation as having the "effect of placing a thumb on one side of the trial judge's
sentencing scale—either on the death side or the life side." Glock v. Singletary, 65 F.3d 878,
892 (11th Cir.1995) (en banc) (Tjoflat, J., dissenting), cert. denied, --- U.S. ----, 117 S.Ct. 225,
136 L.Ed.2d 157 (1996); see Stringer, 503 U.S. at 232, 112 S.Ct. 1130.
8
The Supreme Court in Spaziano discussed Florida's override scheme and found it to be
constitutional. This court has further discussed Florida's override scheme and its safeguards that
render it unlikely that Florida courts will impose the death penalty in an arbitrary or
discriminatory manner:
First, several Florida procedural rules, of both statutory and case law origin,
constrain trial judges from imposing the death penalty in an arbitrary or
discriminatory manner. Among these significant safeguards is § 921.141(3) of
the Florida Statutes, which requires trial judges to independently review the
evidence and make detailed written findings regarding aggravating and mitigating
circumstances before imposing the death penalty. Another significant safeguard
is the Tedder standard. Second, the meaningful appellate review by the Florida
Supreme Court in every capital case further reduces the likelihood that the death
penalty will be imposed in an arbitrary or discriminatory manner. That court is
required by law to review every death sentence to ensure that it has not been
imposed arbitrarily or capriciously. The [Spaziano] Court noted that there has
been no evidence that the Florida Supreme Court has failed to execute its
responsibility faithfully, or hesitated to reverse a trial judge who has derogated
the jury's role by failing to comply with the mandates of Tedder. Thus, not only
are Florida trial judges provided with procedural rules to aid them in performing
their duty in a constitutional manner, the likelihood that they will succeed in
Mills contends that Florida's override scheme resulted in an arbitrary and discriminatory
death sentence because: Florida arbitrarily affirmed an override when Florida courts have sentenced
similarly-situated capital defendants (convicted of felony murder) to life; the timing of appellate
review, and the use of the law of the case doctrine, resulted in an arbitrary imposition of a death
sentence because Florida courts might not sustain the jury override today; the facts of the case were
not extraordinary for a capital case; the number and type of aggravating factors that the Florida
Supreme Court struck were not considered effectively; Florida ignored codefendant Ashley's total
immunity; and Florida ignored mitigation in the record. As an initial matter, we agree with the
district court that several of Mills's contentions concerning "factual or temporal
similarities"—initially, that similarly-situated capital defendants have received life sentences and
that the facts of Mills's crime were not extraordinary for a capital case—are actually requests for a
proportionality review. We have instructed district courts to refuse such requests when deciding
habeas corpus petitions. See Lindsey v. Smith, 820 F.2d 1137, 1154 (11th Cir.1987), cert. denied,
489 U.S. 1059, 109 S.Ct. 1327, 103 L.Ed.2d 595 (1989); Tucker v. Zant, 724 F.2d 882, 895 (11th
Cir.1984); Moore v. Balkcom, 716 F.2d 1511, 1518 (11th Cir.1983), cert. denied, 465 U.S. 1084,
104 S.Ct. 1456, 79 L.Ed.2d 773 (1984).9
ignoring these rules or incorrectly following them is reduced significantly by
meaningful appellate review.
Parker v. Dugger, 876 F.2d 1470, 1474 (11th Cir.1989) (citations omitted), rev'd on
other grounds, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991).
9
As the district court correctly noted, we held in Moore that:
[a] federal habeas court should not undertake a review of the state supreme court's
proportionality review and, in effect, "get out the record" to see if the state court's
findings of fact, their conclusion based on a review of similar cases, was
supported by the "evidence" in the similar cases. To do so would thrust the
federal judiciary into the substantive policy making area of the state. It is the
Mills next argues that the application of the "law of the case" doctrine, and the inconsistent
application of the Tedder standard in Florida courts at the time of his review, resulted in the arbitrary
imposition of his death sentence. Mills identifies the Florida Supreme Court's proclamation in
Cochran v. State that "since 1985, the Court has determined that Tedder means precisely what it
says, that the judge must concur with the jury's life recommendation unless "the facts suggesting a
sentence of death [are] so clear and convincing that virtually no reasonable person could differ.' "
547 So.2d 928, 933 (Fla.1989) (quoting Tedder, 322 So.2d at 910). The Florida Supreme Court
ruled on Mills's override claim in 1985. Mills contends that the timing of his direct appeal and the
subsequent application of the law of the case doctrine resulted in an arbitrary death sentence, and
that his sentence would have been different if the Florida Supreme Court had reviewed his claim
after 1985.10
Again, however, Mills is actually requesting a proportionality review, which the district court
state's responsibility to determine the procedure to be used, if any, in sentencing a
criminal to death.
Moore, 716 F.2d at 1518.
10
Cochran notes Justice Shaw's commentary in his special concurrence to Grossman v. State,
in which he stated:
During 1984-1985, we affirmed on direct appeal trial judge overrides in eleven of
fifteen cases, seventy-three percent. By contrast, during 1986 and 1987, we have
affirmed overrides in only two of eleven cases, less than twenty percent. This
current reversal rate of over eighty percent is a strong indicator to judges that they
should place less reliance on their independent weighing of aggravation and
mitigation....
Cochran, 547 So.2d at 933 (quoting Grossman v. State, 525 So.2d 833, 851 (Fla.1988)
(Shaw, J., specially concurring), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103
L.Ed.2d 822 (1989)).
correctly refused to entertain.11 To compare Mills's situation with other Florida capital defendants
whose override issues were decided after 1985 would be in contravention of our role as a federal
court. See, e.g., Antone v. Strickland, 706 F.2d 1534, 1538 (11th Cir.) ("[i]t is not the role of the
federal courts in Section 2254 proceedings to retry the circumstances contributing to the state's
imposition of the death penalty."), cert. denied, 464 U.S. 1003, 104 S.Ct. 511, 78 L.Ed.2d 699(1983). Additionally, the Spaziano Court in 1984 remarked that,
there is no evidence that the Florida Supreme Court has failed in its responsibility to perform
meaningful appellate review of each death sentence, either in cases in which both the jury
and the trial court have concluded that death is the appropriate penalty or in cases when the
jury has recommended life and the trial court has overriden the jury's recommendation and
sentenced the defendant to death.
Spaziano, 468 U.S. at 466, 104 S.Ct. 3154 (citing Barclay v. Florida, 463 U.S. 939, 971-72, 103
S.Ct. 3418, 77 L.Ed.2d 1134 (1983) (Stevens, J., concurring)).
Turning to Mills's other contentions on the override claim, he argues that the trial court and
the Florida Supreme Court ignored arbitrarily Ashley's grant of total immunity. In Florida, the
disparate treatment of a codefendant can constitute a nonstatutory mitigating circumstance when the
defendants are equally culpable. See Bolender, 16 F.3d at 1565-66 n. 27; Pentecost v. State, 545
So.2d 861, 863 (Fla.1989) ("[t]he disparate treatment of equally culpable accomplices can serve as
a valid basis for a jury's recommending life imprisonment."). The record does not show, however,
that Ashley was "equally culpable" in the murder of James Wright. See White v. Dugger, 523 So.2d
140, 141 (Fla.) ("[i]t is permissible to impose different sentences on capital co-defendants where
their various degrees of participation and culpability are different from one another."), cert. denied,
11
Mills attributes much significance to the district court's pronouncement in a previous order
that application of the law of the case doctrine to his case indicates "a certain level of
arbitrariness." Although the district court's order denying Mills's petition conceded that Mills's
argument was "logically attractive," the court correctly held that Mills's argument on this issue
was actually a request for proportionality review.
488 U.S. 871, 109 S.Ct. 184, 102 L.Ed.2d 153 (1988). We agree with the district court that Mills's
argument on this point is unpersuasive.
Mills also contends that the trial court and the Florida Supreme Court ignored mitigation
evidence in the record. We find no merit in this argument for several reasons. First, it is well-settled
that in override cases, "the mere presence of mitigating evidence does not automatically provide a
reasonable basis for the jury's recommendation." Francis v. Dugger, 908 F.2d 696, 704 (11th
Cir.1990), cert. denied, 500 U.S. 910, 111 S.Ct. 1696, 114 L.Ed.2d 90 (1991); see Lusk v. Dugger,
890 F.2d 332, 342 (11th Cir.1989) ("[t]he state courts concluded that there were no reasonable bases
for the jury's recommendation despite the fact that both the jury as advisor and the judge as
sentencer were made aware of mitigating factors.... [W]e do not find that the result of the
application of Tedder was arbitrary or irrational."), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111
L.Ed.2d 805 (1990). Second, the Florida Supreme Court on direct review held that Mills's purported
mitigating circumstances neither outweighed the aggravating circumstances nor established a
reasonable basis for the jury's recommendation. See Mills, 476 So.2d at 178-79. Finally, Justice
McDonald, in his concurring and dissenting opinion, discussed the purported nonstatutory mitigation
evidence that Mills presented. See Mills, 476 So.2d at 180 (McDonald, J., concurring in part and
dissenting in part). The Florida Supreme Court was well aware of any potential nonstatutory
mitigating evidence.
The Florida Supreme Court's opinion on direct review reveals that the Florida courts did not
impose Mills's death sentence in an arbitrary and discriminatory manner. The court reviewed Mills's
sentencing and invalidated three of the aggravating factors that the trial court had found. The court
also agreed with the trial court's finding that no mitigating factors existed and held that "the facts
suggesting a sentence of death are so clear and convincing that virtually no reasonable person could
differ." Mills, 476 So.2d at 179. The Florida Supreme Court complied with the mandate of Tedder,
and, as the district court held, Mills's case is similar to Francis v. Dugger. See Francis, 908 F.2d
at 704 (holding that override was not arbitrary and discriminatory where jury's recommendation of
life imprisonment may have been the product of defense counsel's highly impassioned closing
argument, where defendant had a prior criminal history and where no valid statutory mitigating
factors and three statutory aggravating factors existed).
B. Parker v. Dugger claim
Mills contends that the Florida courts failed to consider and evaluate the record for
mitigation evidence that would have precluded the trial court's override of the jury recommendation,
in contravention of Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). Mills
also argues that the Florida Supreme Court failed to conduct an independent review of nonstatutory
mitigating factors presented at sentencing. We review the district court's factual finding that the
Florida courts considered and evaluated the record for mitigation evidence under the clearly
erroneous standard. Spaziano v. Singletary, 36 F.3d 1028, 1032 (11th Cir.1994), cert. denied, 513
U.S. 1115, 115 S.Ct. 911, 130 L.Ed.2d 793 (1995).
After a review of the record, we find no clear error in the district court's finding that the trial
court weighed and considered evidence of mitigation and aggravation, including nonstatutory
mitigation. The trial court's sentencing order concluded, "[i]t is the finding of this Court after
weighing the aggravating and mitigating circumstances that there are sufficient aggravating
circumstances as specified in 921.141 and insufficient mitigating circumstances therein that a
sentence of death is justified."12 Also, as the district court found, the trial court's order denying
12
At the time of Mills's sentencing, Florida Statute § 921.141(3) required that the trial judge
set forth explicit findings as to only the statutory aggravating and mitigating circumstances. See
Mason v. State, 438 So.2d 374, 379-80 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330,
Mills's motion for post-conviction relief noted that Mills had presented substantial mitigating
evidence at the sentencing phase, including Mills's disadvantaged upbringing.
Additionally, we agree with the district court's finding that the Florida Supreme Court
evaluated adequately mitigation evidence in the record, based on our discussion of the override
claim. The Florida Supreme Court—on direct review and again on review of Mills's post-conviction
3.850 motion—discussed mitigating circumstances in the record. See Mills, 603 So.2d at 483-84
(post-conviction 3.850 motion); Mills, 476 So.2d at 178-79 (direct review). Justice McDonald's
concurring and dissenting opinion on direct review also shows that the Florida Supreme Court
considered nonstatutory mitigating factors. See Mills, 476 So.2d at 180 (McDonald, J., concurring
in part and dissenting in part). The district court's finding that the Florida Supreme Court considered
mitigation evidence adequately and within the dictates of Parker v. Dugger is thus not clearly
erroneous.13
C. The Florida Supreme Court's Harmless Error Analysis
Mills contends that the Florida Supreme Court, after invalidating three of the trial court's
aggravating factors, conducted an inadequate harmless error analysis in contravention of the
Supreme Court's opinions in Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326(1992) and Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). Mills raised
this issue previously in a petition for writ of habeas corpus in the Florida courts. The Florida
79 L.Ed.2d 725 (1984). Florida has since changed the statute and now requires a trial court to
evaluate expressly in its sentencing order each nonstatutory mitigating circumstance that a
defendant proposes. See Campbell v. State, 571 So.2d 415, 419-20 (1990).
13
Mills raises as a separate issue that the trial court's failure to find mitigating circumstances,
and the Florida Supreme Court's subsequent affirmance (despite noting that mitigation was in the
record), violated Eddings v. Oklahoma, 455 U.S. 104, 114-15, 102 S.Ct. 869, 71 L.Ed.2d 1(1982) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Consistent
with our analysis above, we reject this argument as well.
Supreme Court denied Mills's petition, holding that "Sochor is not a change in the law that will save
Mills's first claim [of inadequate harmless error analysis] from a procedural bar, and that claim is
barred from consideration." Mills, 606 So.2d at 623.
This court recognizes that "[f]ederal review of a petitioner's claim is barred by the
procedural default doctrine if the last state court to review the claim states clearly and expressly that
its judgment rests on a procedural bar ... and that bar provides an adequate and independent state
ground for denying relief." Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir.1991) (en banc)
(citing Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)), cert. denied,
506 U.S. 930, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992). We conclude that Mills has procedurally
defaulted this claim. The Florida Supreme Court "clearly and expressly" stated that its judgment
rested on a procedural bar, and the bar provides an adequate and independent state ground for
denying relief. We note that Mills has not attempted to except himself from this bar to review
through showing cause for and prejudice from the procedural default. See Wainwright v. Sykes, 433
U.S. 72, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Johnson, 938 F.2d at 1174-75.14
D. Ineffective Assistance of Counsel (Penalty Phase and Sentencing)
Mills contends that his penalty phase lawyer, Joan Bickerstaff, and his sentencing lawyer,
Thomas Greene, rendered ineffective assistance because: (1) both failed to investigate mitigating
evidence and to prepare for their respective proceedings; and (2) both failed to have a mental health
evaluation of Mills performed, and failed to argue mental health issues as mitigating evidence. A
habeas corpus petitioner's ineffective assistance of counsel claim is a mixed question of law and fact,
14
We also note that Mills does not qualify for two additional exceptions to procedural default:
(1) if the alleged constitutional violation resulted in the conviction of an innocent defendant; see
Johnson, 938 F.2d at 1174; or (2) if the state procedural bar has been inconsistently or
irregularly applied; see Johnson v. Mississippi, 486 U.S. 578, 587-88, 108 S.Ct. 1981, 100
L.Ed.2d 575 (1988).
subject to de novo review. Dobbs v. Turpin, 142 F.3d 1383, 1386 (11th Cir.1998). To obtain relief
on this claim, Mills must show that (1) his lawyers' performance was deficient and "fell below an
objective standard of reasonableness," and (2) this deficient performance prejudiced him so that "a
reasonable probability [exists] that, but for counsel's unprofessional errors, the result of the
proceedings would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The Florida Supreme Court, upon review of the trial court's denial of Mills's motion for
post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, made the following
findings concerning Mills's ineffective assistance of counsel contentions:
Mills' employer, his grandfather, and his oldest sister testified at the penalty phase. The
grandfather and sister spoke of Mills' father being shot and killed when Mills was a child,
of his mother's working as a field hand with the sister being responsible for taking care of
her younger siblings, and of his poverty-ridden childhood. Bickerstaff made an impassioned
argument to the jury that Mills' life should be spared. She emphasized the disparate
treatment received by Mills and his codefendant who testified against Mills and argued that
Mills' crime was not the type that deserved the death penalty, that Mills had been raised in
a ghetto, and that he was capable of being redeemed. After hearing her argument, the jury
recommended that Mills be sentenced to life imprisonment.
Mills and his sister both testified before the judge in April 1980 [at his sentencing]. Greene
argued that the judge should follow the jury's recommendation because the aggravators
should not be applied to Mills. He also argued that the statutory mitigators of impaired
capacity to conform one's conduct and age had been established. The prosecutor, however,
pointed out that the jury knew nothing of Mills' juvenile criminal record or that Mills had
been convicted both of burglary for stealing the shotgun used to kill this victim and of armed
robbery where he used that same shotgun and abducted a store clerk. After hearing both
sides, the court overrode the jury's recommendation and sentenced Mills to death.
Mills, 603 So.2d at 483-84. The Florida Supreme Court found that Greene, who had also served as
Mills's lead attorney during the guilt phase, testified at the 3.850 hearing that: (1) "because he had
no responsibility for the penalty phase ... he did nothing to develop mitigating evidence"; (2)
"[a]lthough he represented Mills at the actual sentencing several months after the jury made its
recommendation, he only looked through the file before appearing before the judge"; and (3) "[o]n
cross-examination he admitted that nothing about Mills suggested a mental health examination was
needed." Mills, 603 So.2d at 484. The Florida Supreme Court also found that Bickerstaff testified
at the 3.850 hearing that "the public defender's office hired her on Saturday, August 18, 1979 to
conduct the penalty phase on the following Monday[,]" and that " "with the benefit of hindsight'
mental health evidence should have been looked at." Mills, 603 So.2d at 484.15 Both the trial court
and the Florida Supreme Court held that Mills failed to demonstrate that his lawyers had rendered
ineffective assistance. Mills, 603 So.2d at 486.
In determining whether a lawyer's performance was deficient under Strickland, we must
inquire "whether counsel's assistance was reasonable considering all the circumstances." Strickland,
466 U.S. at 688, 104 S.Ct. 2052. We determine the reasonableness of Mills's lawyers' performance
"through a deferential review of all the circumstances from the perspective of counsel at the time
of the alleged errors." Baldwin v. Johnson, 152 F.3d 1304, 1311 (11th Cir.1998). As the district
court noted, Mills's family members testified as to his "poverty-ridden childhood and difficult
upbringing." Both lawyers made impassioned arguments to spare Mills's life. We hold that the
district court did not err in holding that Mills's lawyers prepared adequately for their respective roles
in Mills's proceedings, that they presented mitigating circumstances at the penalty phase and
sentencing and that they therefore did not render deficient performance under Strickland.
Mills also contends that his lawyers' failure to pursue mental health issues as mitigating
15
According to Strickland, "[a]lthough state court findings of fact made in the course of
deciding an ineffectiveness claim are subject to the deference of § 2254(d), and although district
court findings are subject to the clearly erroneous standard of Federal Rule of Civil Procedure
52(a), both the performance and prejudice components of the ineffectiveness inquiry are mixed
questions of law and fact." Strickland, 466 U.S. at 698, 104 S.Ct. 2052; see also Oats v.
Singletary, 141 F.3d 1018, 1028 (11th Cir.1998) (remarking that state court findings of fact in a
3.850 hearing on ineffective assistance of counsel are subject to the deference of section
2254(d)).
evidence demonstrated ineffective assistance. Both lawyers testified at the 3.850 hearing that
nothing suggested that any mental heath examination was needed or that Mills indicated that they
should offer any mental health issues as mitigating evidence. Bickerstaff also testified that "with
the benefit of hindsight" she would have examined mental health evidence. As Strickland warns,
however, "[a] fair assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct,
and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104
S.Ct. 2052. Mills's lawyers presented witnesses who testified as to mitigating circumstances at the
penalty phase and sentencing, and "[a] defendant's mental condition is not necessarily at issue in
every criminal proceeding...." Ake v. Oklahoma, 470 U.S. 68, 82, 105 S.Ct. 1087, 84 L.Ed.2d 53(1985). We agree with the district court that Mills's lawyers' actions fell within Strickland's wide
range of reasonable professional assistance.
We additionally agree with the district court that even if Mills's lawyers' performance was
deficient, Mills cannot demonstrate that the alleged failure to present mitigating evidence prejudiced
him at the penalty phase because the jury recommended a life sentence. See Routly v. Singletary,
33 F.3d 1279, 1297 (11th Cir.1994) ("[petitioner] cannot show that any failure to present mitigating
evidence to the jury prejudiced him to any degree whatsoever in the jury's consideration of penalty
because the jury recommended a sentence of life imprisonment anyway."), cert. denied, 515 U.S.
1166, 115 S.Ct. 2627, 132 L.Ed.2d 867 (1995). Mills has also failed to demonstrate prejudice at
sentencing under Strickland and its progeny. Mills's trial judge considered evidence at the 3.850
hearing concerning his ineffective assistance claim. The Florida Supreme Court found that
the trial court had information on Mills' serious criminal activity committed in the two
months between his release from prison and the killing for which he received a death
sentence that the jury knew nothing about. Given the psychologists' testimony [at the 3.850
hearing] that Mills' mental problems boiled down to being impulsive, it is purely speculative
that the currently tendered evidence would have carried sufficient weight to abrogate the
judge's override of the jury recommendation.
603 So.2d at 486. The trial court also considered evidence of Mills's childhood through testimony
of his family members and the presentence investigation report. We hold that the district court
correctly concluded that the failure of Mills's lawyers to present mental health evidence as mitigating
evidence and their failure to seek mitigating evidence did not prejudice him. See Routly, 33 F.3d
at 1297 (holding that the petitioner could not show prejudice because the essence of the mitigation
evidence that he argued was before the judge through the presentence investigation report and his
mental health expert's testimony, and the judge referred to it specifically in the sentencing order;
further, the same judge and the Florida Supreme Court held that the mitigation evidence would not
have changed the result).
E. Felony Murder Aggravating Factor
Mills contends that his death penalty conviction was erroneously predicated upon "the
unreliable automatic finding" of the felony murder aggravating factor for the felony murder that
formed the basis of his conviction. The Florida Supreme Court previously addressed this contention,
rejecting the substance of it on direct appeal and holding that it was procedurally barred in two
separate habeas corpus petitions. See Mills, 606 So.2d at 623 (second habeas corpus petition);
Mills, 559 So.2d at 579 (first habeas corpus petition); Mills, 476 So.2d at 178 (direct review). We
hold that Mills has procedurally defaulted this claim. See Johnson, 938 F.2d at 1173. In any event,
this circuit has considered this argument previously and found it to be meritless. See Johnson v.
Dugger, 932 F.2d 1360, 1368-70 (11th Cir.), cert. denied, 502 U.S. 961, 112 S.Ct. 427, 116 L.Ed.2d
446 (1991); Bertolotti v. Dugger, 883 F.2d 1503, 1527-28 (11th Cir.1989), cert. denied, 497 U.S.
1032, 110 S.Ct. 3296, 111 L.Ed.2d 804 (1990).
F. Conflict of Interest/Confrontation Clause Claim
The public defender's office represented both Mills and codefendant Vincent Ashley before
Florida charged Mills with felony murder. Upon learning of the potential conflict of interest in
representing both, the public defender's office withdrew from representation of Ashley, and the trial
court appointed him private counsel. While the dual representation existed, however, Ashley spoke
to a public defender investigator. At trial, Florida granted codefendant Ashley complete immunity
from prosecution in exchange for his testimony concerning Mills's murder of James Wright. During
cross-examination of Ashley, Mills's lawyer (Greene, an assistant public defender) inquired about
statements Ashley made to the public defender investigator in an attempt to impeach Ashley with
prior inconsistent statements. Florida objected, and Ashley invoked the attorney-client privilege in
refusing to answer Greene's questions concerning the statements. Mills contends that: (1) the public
defender's prior representation of Ashley resulted in ineffective assistance of counsel at trial because
of a conflict of interest; and (2) the court's curtailment of his cross-examination of Ashley violated
his confrontation rights under the Sixth Amendment.
Mills's conflict of interest claim is subject to de novo review. "[W]e defer to the district
court's findings of fact unless we determine that the findings are clearly erroneous. We apply our
own judgment, however, as to whether the conduct in question constitutes ... an actual conflict of
interest warranting relief." Buenoano v. Singletary, 74 F.3d 1078, 1083 (11th Cir.) (citations
omitted), cert. denied, --- U.S. ----, 117 S.Ct. 520, 136 L.Ed.2d 408 (1996). "In order to establish
a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate
that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan,
446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Mills must show that an actual conflict
exists; "[a] possible, speculative or merely hypothetical conflict does not suffice." Lightbourne v.
Dugger, 829 F.2d 1012, 1023 (11th Cir.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102
L.Ed.2d 346 (1988); see also Burden v. Zant, 24 F.3d 1298, 1305 (11th Cir.1994). In Smith v.
White, this circuit adopted a test to distinguish actual from potential conflict:
We will not find actual conflict [of interest] unless appellants can point to specific instances
in the record to suggest an actual conflict or impairment of their interests.... Appellants must
make a factual showing of inconsistent interests and must demonstrate that the attorney made
a choice between possible alternative courses of action, such as eliciting (or failing to elicit)
evidence helpful to one client but harmful to the other. If he did not make such a choice, the
conflict remained hypothetical.
Smith v. White, 815 F.2d 1401, 1404-05 (11th Cir.) (quoting Barham v. United States, 724 F.2d
1529, 1532 (11th Cir.), cert. denied, 467 U.S. 1230, 104 S.Ct. 2687, 81 L.Ed.2d 882 (1984)), cert.
denied, 484 U.S. 863, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987).
The district court found that no actual conflict existed because
[a]n alleged conflict of interest on the assistant public defender's part did not impede or
prevent [testimony concerning Ashley's statements to Scarpello] from being elicited during
Ashley's cross-examination; the statements were made during the course of an
attorney-client relationship, and Mr. Ashley had the right to invoke the privilege's protection.
We agree with the district court. The public defender's alleged loyalties did not force him to forego
cross-examination of Ashley; instead, Greene cross-examined Ashley extensively and attempted
to elicit the statements that caused Ashley to invoke the attorney-client privilege. Mills does not
point to anything in the record that demonstrates that Greene made a choice to refrain from
cross-examining Ashley in a manner harmful to Mills, or that Greene had inconsistent interests. "In
order to warrant habeas corpus relief, the petitioner has to show not only an actual conflict of interest
but also that the conflict adversely affected his lawyer's representation." Stevenson v. Newsome, 774
F.2d 1558, 1562 (11th Cir.1985), cert. denied, 475 U.S. 1089, 106 S.Ct. 1476, 89 L.Ed.2d 731(1986). Based on the foregoing analysis, we agree with the district court that Mills has not shown
adverse effect.
Mills also contends that the trial court's allowing Ashley to invoke the attorney-client
privilege, and the resulting curtailment of his cross-examination of Ashley, violated his
confrontation rights under the Sixth Amendment. We review whether the trial court erred in limiting
cross-examination for a clear abuse of discretion. See United States v. Tokars, 95 F.3d 1520, 1531
(11th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1328, --- L.Ed.2d ---- (1997). The court's
discretion in limiting the scope of cross-examination, however, is limited to the requirements of the
Sixth Amendment's guarantee of the right of confrontation. See Tokars, 95 F.3d at 1531.
"The Confrontation Clause guarantees criminal defendants an opportunity to impeach
through cross-examination the testimony of witnesses for the prosecution." United States v.
Baptista-Rodriguez, 17 F.3d 1354, 1370 (11th Cir.1994). This right, however, is "not without
limitation; [a defendant] is entitled only to an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the defense might
wish." United States v. Frost, 61 F.3d 1518, 1525 (11th Cir.1995) (quotations and citations
omitted). "A defendant's confrontation rights are satisfied when the cross-examination permitted
exposes the jury to facts sufficient to evaluate the credibility of the witnesses and enables defense
counsel to establish a record from which he can properly argue why the witness is less than reliable."
Baptista-Rodriguez, 17 F.3d at 1371. Once a defendant has engaged in sufficient cross-examination
to satisfy the Confrontation Clause, further questioning is within the trial court's discretion. United
States v. Diaz, 26 F.3d 1533, 1539 (11th Cir.1994), cert. denied, 513 U.S. 1155, 115 S.Ct. 1110, 130
L.Ed.2d 1075 (1995).
We hold that the trial court neither violated Mills's rights under the Confrontation Clause of
the Sixth Amendment nor abused its discretion in limiting cross-examination of Ashley. During
cross-examination of Ashley, Mills's lawyer induced Ashley to admit that: (1) he changed his story
of the events surrounding the murder, thereby implicating Mills, after Florida offered him a deal and
deciding that "there was a chance of me getting out and starting a new life"; and (2) the deal that
Florida offered Ashley gave him complete immunity from prosecution on the burglary and murder
charges in exchange for his testimony against Mills. We hold that this cross-examination exposed
Ashley's prior inconsistent statements and bargain with Florida to the extent that the jury could judge
his credibility and Mills could argue effectively that Ashley's testimony was not credible.16 Mills's
lawyer engaged in sufficient cross-examination, and the trial judge neither abused his discretion nor
violated the Confrontation Clause in limiting the cross-examination to that which the attorney-client
privilege did not protect. See, e.g., United States v. Perez-Tosta, 36 F.3d 1552, 1563 (11th Cir.1994)
(holding that despite district court's restriction on cross-examination of government witness
concerning the sentencing benefits he would earn through testifying for the government, it did not
violate defendant's confrontation rights because of defense counsel's effective impeachment of the
government witnesses' credibility and sentence reduction); United States v. Taylor, 17 F.3d 333, 340
(11th Cir.1994) (concluding that the trial court did not violate that defendant's confrontation rights
when his lawyer had ample opportunity to raise doubts during cross-examination concerning a
government witness's plea agreement); United States v. Orr, 825 F.2d 1537, 1540 (11th Cir.1987)
(holding that defendant had ample opportunity to cross-examine government witness, including the
16
The Florida Supreme Court on direct review of Mills's claim found that:
Here the disallowed impeachment was an attempt to bring out a prior inconsistent
statement Ashley made to his former counsel's investigator. However, Mills'
counsel was able to confront Ashley with several prior inconsistent statements he
made to police officers. Defense counsel also cross-examined Ashley about the
bargain he made with the authorities whereby Ashley gained immunity not only
for the crimes Mills now stands convicted of but also other, unrelated crimes. We
therefore hold that the court did not abridge Mills' right to confront the witnesses
against him.
Mills, 476 So.2d at 176.
terms of a plea agreement, and that further impeachment was "speculative and minimal, at best").
G. Scientific Evidence
Mills contends that the trial court erred in admitting expert testimony and evidence on
gunshot residue tests during Florida's rebuttal after ruling that the tests were inadmissible during
Florida's case-in-chief. Federal courts generally do not review a state court's admission of evidence
in habeas corpus proceedings. See McCoy v. Newsome, 953 F.2d 1252, 1265 (11th Cir.), cert.
denied, 504 U.S. 944, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992). We will not grant federal habeas
corpus relief based on an evidentiary ruling unless the ruling affects the fundamental fairness of the
trial. See Baxter v. Thomas, 45 F.3d 1501, 1509 (11th Cir.) (stating that we "inquire only to
determine whether the error was of such magnitude as to deny fundamental fairness to the criminal
trial.") (citations omitted), cert. denied, 516 U.S. 946, 116 S.Ct. 385, 133 L.Ed.2d 307 (1995);
McCoy, 953 F.2d at 1265. "A denial of fundamental fairness occurs whenever the improper
evidence "is material in the sense of a crucial, critical, highly significant factor.' " Snowden v.
Singletary, 135 F.3d 732, 737 (11th Cir.1998) (quoting Osborne v. Wainwright, 720 F.2d 1237, 1238
(11th Cir.1983)), cert. denied, --- U.S. ----, 119 S.Ct. 405, --- L.Ed.2d ---- (1998).
We agree with the district court that the admission on rebuttal of the gunshot residue tests
was not erroneous and did not affect the fundamental fairness of the trial. On direct review, the
Florida Supreme Court held that "[t]he test has attained sufficient standing among scientists to be
accepted as reliable evidence in the courts.... A majority of American jurisdictions has held the
results of such tests to be admissible evidence in criminal proceedings." Mills, 476 So.2d at 176.
Additionally, the trial court did not err in admitting the test results and expert testimony as rebuttal
evidence. During his direct examination, Mills denied breaking into James Wright's house on May
25, 1979, denied shooting anyone and on cross-examination, denied firing the particular shotgun (or
any gun) on May 24 or May 25, 1979. Thus, the impeachment with the otherwise suppressed
gunshot residue tests was proper because Mills's testimony "reasonably suggested" it. See United
States v. Havens, 446 U.S. 620, 627-28, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980) ("[A] defendant's
statements made in response to proper cross-examination reasonably suggested by the defendant's
direct examination are subject to otherwise proper impeachment by the government, albeit by
evidence ... that is inadmissible on the government's direct case ... as substantive evidence of guilt.").
V. CONCLUSION
Based on the foregoing, we conclude that the district court did not err in denying Mills's
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
AFFIRMED.