[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 14, 2005
No. 04-12795 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 99-03215-CV-PAS
ANGEL NIEVES DIAZ,
Petitioner-Appellant,
versus
SECRETARY FOR THE
DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 14, 2005)
Before EDMONDSON, Chief Judge, MARCUS and PRYOR, Circuit Judges.
PRYOR, Circuit Judge:
The key issue in this habeas corpus appeal is whether counsel for Angel
Nieves Diaz, a Florida prisoner sentenced to death, was ineffective for not arguing,
in his direct appeal, that Diaz was absent from several pretrial hearings and other
discussions among the trial court and counsel. Because the minor proceedings
from which Diaz was absent were outside the presence of the jury, no objection
was made, and Diaz was not prejudiced by his absences, we conclude that the
district court correctly found that this argument had no chance of success in Diaz’s
direct appeal. We also conclude that Diaz’s other arguments are meritless. We,
therefore, affirm the denial of Diaz’s habeas petition.
I. BACKGROUND
Angel Nieves Diaz was one of three men who robbed the Velvet Swing
Lounge in Miami, Florida, in late December 1979. Diaz v. State, 513 So. 2d 1045,
1046-47 (Fla. 1987) (Diaz I). Diaz and his cohorts murdered Joseph Nagy, the bar
manager, in the course of their robbery. Id. No one witnessed Nagy’s murder
because “[t]he majority of the patrons and employees had been forcibly confined to
a restroom” and those that had not been moved into the restroom hid underneath
the bar, for fear that they too would be killed. Id. Diaz and his co-defendant,
Angel “Sammy” Toro, were tried in a Miami court almost six years to the day after
they committed their crimes.
2
Diaz was represented by counsel until the moment before opening
arguments began. Diaz then decided to conduct his own defense, against the
advice of both his lawyer and the trial judge. The trial judge was “amazed,”
however, by Diaz’s ability to represent himself and specifically praised Diaz’s
ninety-minute cross-examination of a witness for the State. Diaz was nevertheless
“convicted of first-degree murder, four counts of kidnapping, two counts of armed
robbery, one count of attempted robbery, and one count of possessing a firearm
during the commission of a felony.” Id. “The trial court sentenced Diaz to a total
of 834 years of imprisonment and imposed the jury’s recommended sentence of
death” for the murder of Joseph Nagy. Id. Diaz’s co-defendant in the crime,
“Sammy” Toro, was sentenced to life imprisonment, despite some evidence that
Toro, not Diaz, was the shooter. Id. at 1049. A jailhouse informant testified at
Diaz’s trial, however, that Diaz admitted that he shot Joseph Nagy. Id. at 1048.
Diaz’s death sentence was “based on five aggravating circumstances and no
mitigating circumstances,” but the Florida Supreme Court struck one of the
aggravating circumstances on direct appeal. See Diaz v. Dugger, 719 So. 2d 865,
866 & n.1 (Fla. 1998) (Diaz II). The four remaining aggravating circumstances
were “Diaz was under sentence of imprisonment, had previously been convicted of
another capital felony, ... committed the murder during a kidnapping, and
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committed the murder for pecuniary gain.” Id. at 866 n.1. In the direct appeal,
then-Justice Barkett concurred with a compelling summary of why Diaz’s death
sentence was proper:
... I cannot fault the result based on the record in this case, which
could have convinced a judge and jury beyond a reasonable doubt that
Diaz was the more culpable of the two perpetrators. Moreover, the
defendant’s prior record in this instance includes an armed robbery,
two escapes, the assault and battering of correctional officers, and a
conviction for murdering the director of a drug rehabilitation center by
stabbing him nineteen times while he slept. On this record, there is
sufficient evidence and sufficient aggravating factors to support the
conviction and sentence.
Id. at 1049-50 (Barkett, J., specially concurring). Diaz exhausted his direct appeal
when the Supreme Court of the United States denied his petition for a writ of
certiorari. Diaz v. Florida, 484 U.S. 1079, 108 S. Ct. 1061 (1988). Diaz then
began to attack his sentence collaterally.
Diaz next filed a motion in the sentencing court, under Florida Rule of
Criminal Procedure 3.850, to overturn his death sentence. The trial court held an
evidentiary hearing on one of the claims Diaz presented: ineffective assistance of
counsel during the penalty phase of his trial. The trial court later denied relief on
that claim. Diaz appealed that denial to the Florida Supreme Court, which also
denied relief. Diaz II, 719 So. 2d at 865. The Florida court also denied Diaz’s
separate petition for a writ of habeas corpus. Id. The Supreme Court denied his
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petition for certiorari. Diaz v. Dugger, 526 U.S. 1100, 119 S. Ct. 1580 (1999).
Diaz filed a successive habeas petition in the Florida Supreme Court, but that
petition was denied as well.
Between his first state collateral attack and his successive state habeas
petition, Diaz filed a petition for a writ of habeas corpus in the Southern District of
Florida under 28 U.S.C. section 2254. Diaz amended that petition after his
successive habeas petition was denied by the Florida Supreme Court. The district
court denied Diaz’s habeas petition. Diaz sought and was granted a certificate of
appealability from the district court on all of the issues presented in his habeas
petition. This appeal followed.
II. STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs this appeal and limits our review of the decisions of the state courts:
A federal court may not grant a petition for a writ of habeas corpus to
a state prisoner on any claim that has been adjudicated on the merits in
state court unless the adjudication (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established federal law, or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence
presented in state court.
Clark v. Crosby, 335 F.3d 1303, 1307-08 (11th Cir. 2003) (citations omitted). A
general framework of substantial deference governs our review of every issue that
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the state courts have decided:
[A] state-court decision can be “contrary to” this Court’s clearly
established precedent in two ways. First, a state-court decision is
contrary to this Court’s precedent if the state court arrives at a
conclusion opposite to that reached by this Court on a question of law.
Second, a state-court decision is also contrary to this Court’s
precedent if the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to ours.
...
[A] state-court decision can involve an “unreasonable
application” of this Court’s clearly established precedent in two ways.
First, a state-court decision involves an unreasonable application of
this Court’s precedent if the state court identifies the correct
governing legal rule from this Court’s cases but unreasonably applies
it to the facts of the particular state prisoner’s case. Second, a
state-court decision also involves an unreasonable application of this
Court’s precedent if the state court either unreasonably extends a legal
principle from our precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new
context where it should apply.
Williams v. Taylor, 529 U.S. 362, 405-07, 120 S. Ct. 1495, 1519-20 (2000). We
will not, therefore, grant Diaz’s habeas petition unless the determination of the
Florida Supreme Court was either contrary to, or an unreasonable application of,
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), which
governs Diaz’s claim of ineffective assistance of appellate counsel.
III. DISCUSSION
We first address Diaz’s argument of ineffective assistance of appellate
counsel regarding Diaz’s absence from critical stages of his trial. We then discuss
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Diaz’s other ineffective assistance of counsel arguments. Finally, we address the
four other issues Diaz has raised.
A. Diaz’s Ineffective Assistance of Appellate Counsel Claim Regarding
Diaz’s Absence from Critical Stages of His Trial
The Supreme Court has held that “a defendant is guaranteed the right to be
present at any stage of the criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure.” Kentucky v. Stincer,
482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987). Diaz has identified eleven
allegedly critical trial court proceedings from which he was either absent or during
which he alleges that there was no interpreter. Diaz contends that each of these
absences, both individually and cumulatively, should have been raised by his
appellate counsel and that the failure of counsel to raise them constitutes
prejudicial ineffective assistance of counsel under Strickland. For ease of
discussion, we consider the pretrial absences first because Diaz was still
represented by counsel at that time. We then review the absences that Diaz
identified as occurring when he served as his own lawyer with the aid of standby
counsel.
1. Pretrial Absences
Diaz was represented by Peter Ferrero before his trial, and Ferrero was
followed by Robert Lamons, who represented Diaz during some pretrial matters
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and even served as standby counsel after Diaz decided to represent himself.
Although Diaz was represented by counsel at every pretrial proceeding he has
identified, his exclusion from those proceedings could have violated Stincer if
Diaz’s presence would have contributed to the fairness of the pretrial proceedings,
but, under Strickland, Diaz must prove more. To win relief in this habeas appeal,
Diaz’s appellate counsel not only must have been ineffective, Diaz must have
suffered prejudice to the level required by Strickland. Under that standard, Diaz’s
arguments fail.
Diaz complains about several absences that occurred while he was
represented by counsel, but each time his trial counsel failed to object. When the
trial court appointed the expert requested by the defense, there was no objection
lodged regarding Diaz’s absence. When the trial court held a hearing at which the
defense requested that the death penalty be ruled out, Diaz’s counsel explicitly
waived Diaz’s right to be present. When Diaz’s attorney sought the address of a
witness that might testify against Diaz, Diaz’s attorney did so without stating that
he would prefer Diaz to be present. During a hearing regarding a witness against
Toro, Diaz’s counsel never objected to the fact that Diaz was not present. Contrary
to Diaz’s assertion, when the trial court held a hearing regarding the security
measures that it would impose, Diaz’s attorney did not object to Diaz’s absence.
8
Under Florida law, an error that passed without objection cannot be raised
on appeal; appellate counsel, therefore, is not ineffective for failure to raise a
meritless argument. See, e.g., Card v. State, 497 So. 2d 1169, 1174, 1177 (Fla.
1986). Each of Diaz’s pretrial absences came and went without objection from his
attorney, and the record shows that Diaz and the court interpreter were present at
some of the proceedings from which Diaz claims he was absent. Diaz also has not
explained how his presence at these proceedings would have contributed to their
fairness. The district court, therefore, correctly determined that Diaz’s appellate
counsel did not violate Strickland by not raising these issues on appeal.
2. Absences Occurring After Diaz Decided to Represent Himself
The first absences Diaz contends should have been raised by his appellate
counsel are Diaz’s absence from the presentation of an oral competency report and
finding of the trial court that Diaz was competent. During the time that Diaz was
absent, the trial court received oral reports that Diaz was “very competent.” Diaz,
however, neither objected to this absence, nor suffered prejudice as a result of his
absence. When asked by the prosecution to make a formal finding on the record
that Diaz was competent, the trial judge stated that she would not make a finding
until Diaz was present, but that she was giving the prosecution and Diaz’s standby
counsel an initial competency report for informative purposes only. After Diaz
9
was brought into the courtroom, the trial court stated, outside the presence of the
jury, that she was “amazed at the ability of Mr. Diaz to represent himself
considering his statements concerning his educational background; ... Mr. Diaz
very competently cross-examined several witnesses, one for more than an hour and
a half, and appears very competent to handle his own defense.” After his standby
counsel carefully explained the ramifications of the competency reports, Diaz
made a reasoned decision to stipulate to the accuracy of those reports. Diaz did not
object to the fact that the trial court accepted those oral reports outside his
presence, and there is no evidence that his presence would have served any purpose
at that proceeding in the light of the full colloquy that later took place when he was
present. His appellate counsel, therefore, was not ineffective for failure to raise
this issue on direct appeal.
The second absence that Diaz contends should have been raised on appeal is
his absence from a discussion regarding Hector Torres, a criminal who stated that
he had information regarding the jailhouse informant that identified Diaz as the
actual shooter in the murder of Joseph Nagy. The record shows that Diaz was
absent from the courtroom only because he was not yet ready to return from the
recess that Diaz had requested. During Diaz’s absence, the trial court discussed
with the prosecution and Diaz’s standby counsel the appointment of new counsel
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to represent Torres regarding his request for a plea deal with the State. The
prosecution stated that Torres likely possessed only inculpatory information and, if
so, there would be no plea agreement with Torres. The prosecution also stated
that, if Torres had any exculpatory information that came to light during his
request for a plea agreement, Torres would be made available for Diaz to examine
all exculpatory information. During this portion of the trial, Diaz’s presence would
have been useless because, at that time, the trial court did not suspect that Torres
held any information that would have been beneficial to Diaz. “[T]he benefit” of
Diaz’s presence would have been “but a shadow.” Snyder v. Massachusetts, 291
U.S. 97, 106-07, 54 S. Ct. 330, 332 (1934), overruled on other grounds Malloy v.
Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492 (1964).
When the trial court later questioned Torres’s court-appointed attorney
regarding the information that Torres possessed, Diaz’s presence would not have
provided any value. The attorney assigned to Torres told the court that “based on
[his] interview with Mr. Torres, he has nothing that would put the State under any
obligation to disclose any information under ... Brady v. Maryland. Nor does he
have any information that would in any way be considered exculpatory for the
defense.” The trial judge confirmed that she would not allow a plea by Torres in
exchange for inculpatory information regarding the murder of Joseph Nagy. When
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Diaz’s standby counsel raised the issue whether Torres had “information about any
witness, specifically, Ralph Gajus[, the jailhouse informant who testified that Diaz
was the shooter,] or others that would tend to be favorable to” Diaz, the attorney
representing Torres testified that there was “absolutely no exculpatory evidence.”
The only individuals with whom Torres sought to converse were prosecutors, and
the trial court flatly refused Torres’s overtures for a plea agreement in return for
information that would tie Diaz to the murder of Joseph Nagy. It is clear,
therefore, that Diaz’s appellate counsel was not ineffective for failure to raise the
issue of Diaz’s absence at the proceedings regarding Hector Torres.
The next absence that Diaz contends his appellate counsel should have
pursued was Diaz’s absence during a conversation between the trial court and the
prosecution regarding the schedule for closing arguments. During that colloquy,
the prosecution requested an hour for its closing argument and stated that Diaz
should receive at least the same amount of time as the prosecution, but the court
reserved its decision and later revisited this issue. When the trial court raised the
issue with both the prosecution and Diaz, the prosecution then requested 45
minutes for closing and Diaz asked for only one or two minutes. Any flaw in
Diaz’s earlier absence was cured by that later colloquy. Diaz’s appellate counsel
was not ineffective for failure to raise this issue.
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Finally, we note that the trial court asked Diaz to acknowledge specifically
that he was present at all times that testimony was heard and the jury was in the
courtroom:
THE COURT: Mr. Diaz, will you concede your presence at all times
when the jury was in this courtroom?
...
THE DEFENDANT: What is it again?
THE COURT: That you were present at all times when the jury was
present; when any testimony or any action was taken that you were
present with the jury.
THE DEFENDANT: With the jury, yes.
Diaz’s appellate counsel cannot now be faulted for failing to argue that Diaz’s
other minor absences, to which no objection was made, violated his constitutional
rights.
B. Diaz’s Other Ineffective Assistance of Appellate Counsel Claims
Diaz contends that the district court applied the incorrect standard of review
to his arguments about ineffective assistance of appellate counsel. Diaz argues that
if there was a chance that an untaken appeal would have prevailed on any issue,
then the district court must determine whether the failure to raise that issue on
appeal was prejudicial under Strickland. Diaz is wrong.
In Lockyer v. Andrade, the Supreme Court said that “AEDPA does not
require a federal habeas court to adopt any one methodology in deciding the only
question that matters under § 2254(d)(1)–whether a state court decision is contrary
13
to, or involved an unreasonable application of, clearly established federal law.”
538 U.S. 63, 71, 123 S. Ct. 1166, 1172 (2003). The record shows that the district
court carefully determined whether the appellate counsel was deficient to the level
required by Strickland. The district court, therefore, did not err.
Diaz’s other arguments regarding alleged ineffective assistance of appellate
counsel also fail. First, Diaz argues that, under Drope v. Missouri, 420 U.S. 162,
95 S. Ct. 896 (1975), and Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836 (1966), the
trial court was required to suspend proceedings until Diaz’s competency was
determined, even though the court did not doubt his competency. Diaz’s argument
fails for at least two reasons. First, there was no objection lodged at trial. Neither
Diaz nor his standby counsel objected to the fact that the competency hearing was
held at the end of the first day of trial. Appellate counsel would not have prevailed
on this argument, and nonmeritorious claims that are not raised on appeal do not
constitute ineffective assistance of counsel. See, e.g., United States v. Nyhuis, 211
F.3d 1340, 1346 (11th Cir. 2000). Second, even Drope, the case on which Diaz
principally relies, embraces the idea that a competency hearing may be “defer[red]
until the end of trial.” 420 U.S. at 182, 95 S. Ct. at 909. The denial of this claim in
state court, therefore, was not contrary to, or an unreasonable application of,
Strickland.
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Diaz next argues that his appellate counsel was ineffective because counsel
did not raise an argument regarding the failure of the trial court to allow Diaz to
call several witnesses in his defense. This argument fails because the trial court
had a right to exclude certain witnesses as long as the exclusion of those witnesses
did not compromise Diaz’s ability to present his defense. Taylor v. Illinois, 484
U.S. 400, 414-15, 108 S. Ct. 646, 656 (1988). The record shows that Diaz wanted
to suspend the trial to find nonessential witnesses. His appellate counsel was not
ineffective for failing to raise this issue.
Diaz contends that his appellate counsel was ineffective for his failure to
argue that the trial court did not independently weigh aggravating and mitigating
factors, in violation of Patterson v. State, 513 So. 2d 1257 (Fla. 1987). This
argument is not supported by the record. The trial court made specific oral
findings of the aggravating and mitigating factors. In Patterson, by contrast, the
trial court stated, without elaboration, that the aggravating factors outweighed the
mitigating factors. Id. at 1262-63. Diaz’s appellate counsel, therefore, was not
ineffective for failing to raise this argument on direct appeal.
Diaz next contends erroneously that his appellate counsel was ineffective for
his failure to argue that Diaz had an absolute right to represent himself during the
penalty phase of his trial under Faretta v. California, which states that “[t]he Sixth
15
Amendment ... grants to the accused personally the right to make his defense.” 422
U.S. 806, 819, 95 S. Ct. 2525, 2533 (1975). Faretta allows “the trial judge [to]
terminate self-representation by a defendant who deliberately engages in serious
and obstructionist misconduct.” Id. at 834 n.46, 95 S. Ct. at 2541 n.46. Diaz
sought to frustrate the completion of his trial by repeatedly changing his mind
regarding self-representation at the guilt phase of the trial. Faretta allowed the trial
judge to remedy Diaz’s misconduct.
Diaz offered a written motion for a mistrial that alleged that the trial judge
did not “remain impartial as a judge should” and “allow[ed Diaz] to incriminate
[him]self by defending [his] own case without the necessary intellect to do so.”
The court denied Diaz’s motion and found as follows that Diaz tried to frustrate the
completion of his trial:
[Mr. Diaz,] you have used your intellect to delay this trial, to attempt
to stop it, and ... you have represented yourself very well; ... the Court
finds that you have not limited intellect but a great deal of intellect. ...
I took the precaution of having you examined by a psychiatrist and a
psychologist, and their oral statements to this Court in open court
were that you were very competent to stand trial, and there is nothing
that you have done that changes this Court’s opinion that you are very
competent and very intelligent.
...
I would like to state as well that the Court has allowed and has
ordered the attorney that you fired, Mr. Lamons, to stay with you at all
times during the trial. ... [Y]ou, obvious to everyone in this courtroom,
have taken advantage of Mr. Lamons’ legal ability. You have
conferred with him at all times during the trial, and at every material
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stage of the trial the Court has asked the jury to leave the courtroom
so you can confer with Mr. Lamons. You have had every opportunity
that could be afforded someone who desires to represent himself and
even more so.
It is clear from the trial transcript that Diaz was given great leeway in the
course of mounting his own defense and that Diaz abused his right to self-
representation to delay his trial. The trial court properly decided that Diaz should
be represented by counsel to conduct the sentencing phase. Diaz’s appellate
counsel was not ineffective for failing to raise this issue on appeal.
Diaz’s next argument is that his appellate counsel was ineffective for failure
to provide Diaz a complete record of the trial proceedings, in violation of Griffin v.
Illinois, 351 U.S. 12, 15-16, 76 S. Ct. 585, 589-90 (1956). This argument fails.
Diaz did not prove that any prejudice resulted from the failure to have certain
portions of the trial proceedings transcribed. Strickland, 466 U.S. at 697, 104 S.
Ct. at 2069.
Diaz argues that his appellate counsel was ineffective for failure to assert
that the trial court interfered impermissibly with the attorney-client relationship
between Lamons and Diaz by placing a court security officer in the room with Diaz
and Lamons while they discussed a plea offer. Diaz’s argument fails because the
record shows that Diaz’s counsel agreed to allow the security officer in the room
where the meeting took place if the security officer stayed across the room and did
17
not listen to the conversation. Diaz’s counsel, therefore, was not ineffective for
failing to raise this issue on direct appeal.
C. Diaz’s Other Claims for Habeas Relief
Diaz contends that shackling him during trial, employing extra security
guards in the courtroom (both uniformed and plainclothes), and ordering that all
potential jurors be searched as they entered the courtroom prevented him from
receiving a fair trial. Diaz asserts that he is entitled to relief under Holbrook v.
Flynn, where the Supreme Court held that four uniformed security officers sitting
on the first row of spectators’ seats behind five criminal defendants did not deprive
those defendants of a fair trial. 475 U.S. 560, 571, 106 S. Ct. 1340, 1347 (1986).
Diaz also relies on a decision of this circuit that the use of a “stun belt” as a method
of courtroom security violated the defendant’s rights to a fair trial and to
participate in his defense when the trial court did not make any factual findings to
determine whether the stun belt was necessary. United States v. Durham, 287 F.3d
1297, 1309 (11th Cir. 2002).
Diaz’s reliance on Durham is misplaced. Florida courts are not required to
apply Durham because “[c]learly established federal law is not the case law of the
lower federal courts, including this Court. Instead, in the habeas context, clearly
established federal law ‘refers to the holdings, as opposed to the dicta, of [the
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Supreme Court’s] decisions as of the time of the relevant state court decision.’”
Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (citing Williams v. Taylor,
529 U.S. at 412, 120 S. Ct. at 1523).
Diaz’s reliance on Holbrook is also misplaced. Diaz’s violent history of
successful escapes and continued plotting of escape attempts warranted the security
measures that the trial court imposed. Diaz had a long history of violence and
criminal escapes while incarcerated. Setting aside the murder for which he was on
trial, Diaz had committed “an armed robbery, two escapes, the assault and battering
of correctional officers, and a conviction for murdering the director of a drug
rehabilitation center by stabbing him nineteen times while he slept.” Diaz II, 513
So. 2d at 1049-50 (Barkett, J., specially concurring). That violent history was not
lost on the trial court when it determined to employ extra security measures at
Diaz’s trial.
The Florida courts did not unreasonably apply, or decide contrary to, clearly
established federal law when they held that shackles were necessary because Diaz
presented a grave security risk and had a history of violent escape attempts. Just
before his trial, Diaz was involved in a plot to smuggle a machine gun into the
courthouse via a court security guard. Shackling Diaz furthered an “essential state
policy” of lessening the very real threat that Diaz would make a violent escape
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attempt. Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1691, 1693 (1976).
The Florida courts did not unreasonably apply, or decide contrary to, clearly
established federal law when they held that the extra courtroom security personnel
did not deprive Diaz of his right to a fair trial. The Florida Supreme Court held
that the number of uniformed officers at Diaz’s trial was not unreasonably high,
which complies with Flynn. 475 U.S. at 568-69, 106 S. Ct. at 1345-46. The use of
plainclothes officers, preferred by the Flynn Court, similarly did not prejudice
Diaz. Id. at 572, 106 S. Ct. at 1347.
The Florida Supreme Court reasonably determined that the trial court
properly considered expert testimony regarding security measures, provided an
adequate hearing regarding the implementation of those security measures, and
was not required to provide a curative jury instruction regarding Diaz’s shackles or
poll the jury based on any potential prejudice that they might feel because of his
shackles. Trial judges have “sufficient discretion” to consider expert testimony
regarding what security measures are necessary in a given trial. Illinois v. Allen,
397 U.S. 337, 343, 90 S. Ct. 1057, 1061 (1970).
Diaz argues that the State withheld material exculpatory evidence and
presented false testimony, and Diaz contends that his defense counsel failed to
investigate the withholding of exculpatory evidence. These arguments are
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unexhausted, and “if [a] petitioner simply never raised a claim in state court, and it
is obvious that the unexhausted claim would now be procedurally barred due to a
state-law procedural default, the federal court may foreclose the petitioner’s filing
in state court.” Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999). Each of
these arguments, therefore, fails.
Diaz contends that the Florida Supreme Court erred when it decided that the
trial court improperly assessed an aggravating factor to Diaz when the trial court
determined Diaz endangered many people, but did not reverse Diaz’s death
sentence because the trial court committed harmless error in that finding. This
argument fails because the Florida Supreme Court conducted a reasonable analysis
of harmless error. See Diaz I, 513 So. 2d at 1049.
Diaz’s argument that Lamons did not provide effective assistance of counsel
during the penalty phase of his trial, because he did not conduct a sufficient
investigation into Diaz’s background, also fails. Diaz argues that Lamons was
ineffective because Lamons allegedly did not investigate or argue that Diaz had
mental health problems, did not investigate Diaz’s abusive family background, and
did not sufficiently argue that the effects of his mental health, when combined with
his family background, constituted mitigating evidence against imposing the death
penalty on Diaz. The record shows that Lamons investigated Diaz’s background
21
and tried to contact his family members; Lamons made a conscious decision not to
bring Diaz’s family to testify for fear that his relationship with Diaz would
deteriorate and adversely impact Diaz’s sentence because Diaz demanded that
Lamons not contact his family; Lamons adequately investigated Diaz’s mental
health and declined to present some of the evidence that he found; and the district
court was correct in its analysis that even if Lamons’s performance was deficient,
there was no resulting prejudice to Diaz.
IV. CONCLUSION
Each of the arguments Diaz raised in his habeas petition is meritless. The
denial of Diaz’s petition is, therefore,
AFFIRMED.
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