LeCroy v. Secretary, Florida Department of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 29, 2005
No. 04-13799 THOMAS K. KAHN
________________________ CLERK

D.C. Docket No. 00-08179-CV-1-DLG

CLEO DOUGLAS LECROY,

Petitioner-Appellant,

versus

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

__________________________

Appeal from the United States District Court for the
Southern District of Florida
_________________________
(August 29, 2005)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

HULL, Circuit Judge:

In 1986, the defendant, Cleo Douglas LeCroy, was convicted of two counts

of first degree murder and two counts of robbery with a firearm and sentenced to
death for one of the murders.1 After exhausting his state-court remedies, the

defendant filed a § 2254 petition challenging his convictions and death sentence.

The district court denied the defendant’s § 2254 petition, but granted a certificate

of appealability on several issues. After oral argument in this appeal, the Florida

Supreme Court vacated the defendant’s death sentence based on Roper v.

Simmons, 125 S. Ct. 1183 (2005), because he was 17-years-old at the time of his

offenses.2 See Roper 125 S. Ct. at 1200 (concluding that “[t]he Eighth and

Fourteenth Amendments forbid imposition of the death penalty on offenders who

were under the age of 18 when their crimes were committed”). Accordingly, we

need only address the defendant’s guilt-phase issues. After review, we dismiss as

moot the defendant’s § 2254 petition to the extent it challenges his now vacated

death sentence, but affirm the defendant’s convictions.

I. Background

Because the state courts denied certain guilt-phase claims based on the

overwhelming evidence against the defendant, we first review the trial evidence in

great detail regarding the murders of John and Gail Hardeman. That evidence

1
For the sake of simplicity, we refer to Cleo LeCroy as “the defendant” and his brother,
Jon LeCroy, by his full name.
2
The State of Florida joined the defendant’s motion, filed in state court, to vacate his
sentence based on Roper.

2
includes the defendant’s confessions to the police and his ex-girlfriend, as well as

physical and circumstantial evidence corroborating the defendant’s confessions.

A. The Crime

On January 3, 1981, while in the Miami area, the defendant informed his ex-

girlfriend, Carol Hundley, that he had been in the Brown’s Farm Area and had

used a man’s .30-06 rifle without the man’s knowledge. The Brown’s Farm Area

is a hunting area that is 21 square miles of densely wooded, rugged terrain in Palm

Beach County, Florida. The defendant told Hundley that he and his family were

going back up to the Brown’s Farm Area and made arrangements to meet her there

the next day.

The next day, on January 4, 1981, the defendant encountered William Steve

Martin in the Brown’s Farm Area and asked if he had seen the Hardemans. Martin

informed the defendant where he had last seen the Hardemans. At the time, the

defendant was carrying a shotgun and a .22 caliber pistol in a side holster.

Approximately ten minutes later, Martin saw the defendant exchanging

pleasantries with the Hardemans. Approximately 45 minutes after that, Martin

heard a shotgun blast, followed by a series of small-caliber shots. Although it was

not unusual to hear such gunfire during hunting season, the defendant had just

3
killed John and Gail Hardeman. The defendant had also stolen the Hardemans’

.30-06 rifle and .38 handgun.

When the defendant went back to his family’s campsite, he immediately

spoke with Hundley, who had driven up to the area to meet him. The defendant

informed Hundley that a man had shot at him and that he shot the man in the head

with his shotgun. The defendant told Hundley that the man had shot at him

because he was using the man’s rifle. The defendant also told Hundley that he had

taken the man’s wallet and showed her the $30 he had taken. After telling

Hundley that he had thrown away his jacket that had a bullet hole in it from where

the man had allegedly shot at him, the defendant burned his pants.3

The defendant and Carol Hundley then drove to where he had hidden the

Hardemans’ .30-06 rifle and .38 handgun and put them in the back of the truck.

On the way back to Miami, Florida, the defendant also told Hundley that a woman

had come running out of the bushes and that he had shot her three times with his

.22 pistol, once in the head, neck, and chest. At that time, the defendant said

something about there not being any witnesses.

3
The defendant also informed his brother, Jon LeCroy, that he had shot a man and where
he had shot the man. Jon LeCroy became very upset and stormed off.

4
 After returning to Miami, the defendant gave the .38 handgun to Jon

LeCroy. The defendant planned on selling John Hardeman’s .30-06 rifle.

On January 5, 1981, John Hardeman did not show up for work. This caused

his parents to become concerned, and they contacted the authorities. Also on

January 5, the defendant sold John Hardeman’s .30-06 rifle to William Ellett for

$100.4

On approximately January 6, 1981, the defendant told Carol Hundley that he

was going to shoot sand through the barrel of his .22 pistol to damage the barrel

and prevent a ballistics match. The defendant also told Hundley that he wanted to

go back to the area to cut the bullets out the bodies so they could not be traced.

B. The Search

On January 7, 1981, the authorities initiated an intensive search for the

Hardemans. Although the authorities were able to locate the Hardemans’ campsite

and vehicle, they were unable to find any sign of the Hardemans. Therefore, the

authorities placed alerts in the local media seeking any information regarding the

Hardemans.

4
About three or four weeks prior to early January 1981, the defendant had spoken to
William Ellett about Ellett’s purchasing a rifle from him.

5
 On January 9, 1981, Joyce LeCroy, the mother of the defendant and Jon

LeCroy, informed a radio station that her family had seen the Hardemans while

hunting. The LeCroys, including the defendant and Jon, volunteered to help with

the search and arrived in the hunting area on January 9, 1981.

On the drive to the Brown’s Farm Area, the defendant and Jon LeCroy rode

with Hundley and Richard Freshour (a friend of the LeCroys). During the drive,

the defendant and Jon LeCroy carried knives, and the defendant stated that he

hoped his brother, Jon LeCroy, could cut the bullets out before the authorities

found the bodies. Freshour also heard the defendant state that he shot the man

because the man shot at him first.

Jon LeCroy informed the authorities that he had last seen the Hardemans at

8:00 a.m. on January 4, 1981, in the Brown’s Farm Area. The defendant informed

the authorities that he had last seen the Hardemens at 11:00 a.m. on January 4,

1981, in the Brown’s Farm Area.5

Still on January 9, 1981, the defendant assisted the authorities in searching

an area that had been previously searched several times. During the search, the

defendant discovered a backpack and boat-cushions belonging to the Hardemans.

5
During the defendant’s state court trial, several witnesses were prepared to testify that
Jon LeCroy had stated that he had seen the Hardemans alive after 11:00 a.m. The state trial court
excluded such testimony on hearsay grounds.

6
According to the authorities, the defendant could not have found the backpack and

boat-cushions without prior knowledge of their whereabouts because they were

covered with bushes behind a hilly area.

The LeCroys went home on January 9, 1981. When the authorities called

Tom LeCroy (the defendant’s and Jon LeCroy’s father) to see if they would be

returning the next day to assist with the search, Tom LeCroy stated that he would

have to call back. A short while later, Tom LeCroy called the authorities and

stated that he and his sons would return to the area to search for the Hardemans,

but that he wanted to continue the search without any police officers coming with

the family.

On January 10, 1981, the LeCroys again assisted the authorities in the

search for the Hardemans. Both the defendant and Jon LeCroy professed to be

great trackers who could find the Hardemans if they were given enough time.

The defendant began searching for the Hardemans with State Wild Life

Officer Steve Chance. During the search, the defendant professed to see tracks of

the Hardemans but Officer Chance did not see anything. The defendant further

claimed that Gail Hardeman was in “thick brush” and that officers would not find

the Hardeman woman with the man. The defendant claimed to get all this

information from “signs” he was reading in the woods. While supposedly tracking

7
the Hardemans, the defendant informed Officer Chance that the Hardemans would

not be found alive and that the woman would be away from the man.

While the defendant began his search with Officer Chance, he spent most of

January 10, 1981, searching for the Hardemans with Elsie Bevan, a 60-year-old

volunteer reserve Wild Life Officer with the Florida Game and Fresh Water Fish

Commission.

The defendant came up to Bevan on January 10, 1981, and told her that he

could “track” her to the “bodies.” Bevan said this was strange because, at the

time, people were not assuming that the Hardemans were dead. The defendant

stated that he would help Bevan if she went into the woods alone with him. After

obtaining permission from her supervisors, Bevan accompanied the defendant into

the woods.

The two started their search where the defendant had found the backpack

and cushions the day before. When they got to the area, there were other officers

present. The defendant then asked Bevan if she would take a 10-minute walk with

him. Again, she agreed. During all this time, the defendant claimed to be a great

tracker.

During his search with Bevan, the defendant stated that he saw signs that

two Cubans and a “nigger” had dragged Gail Hardeman. The defendant also said

8
that he saw signs that John Hardeman was dead and that Gail Hardeman was

running and screaming.

When Bevan told the defendant that she was a mother and worried about the

Hardemans, the defendant asked her “why worry?” they are dead. Shortly

thereafter, Bevan asked why they were searching so rugged an area. The

defendant informed her: “If you put a gun to her head, she’d have to go

anywhere.” Bevan then asked the defendant how someone could force two

people, who were armed, to go anywhere. The defendant responded: “If you put a

gun to her head, John would have to put his down.” The defendant also told

Bevan that John Hardeman had a gun and that Gail Hardeman had a .38 handgun

in her pocket.

Although Bevan never saw any signs of the Hardemans, the defendant

professed to see signs of where Gail Hardeman was raped and knocked out. The

defendant also claimed to see signs that after Gail Hardeman had been knocked

down, she got up running and screaming, and trying to get back to see if her

husband was dead. When Bevan asked if he had heard Gail screaming, the

defendant replied “no, I was a mile from there.”

The defendant also told Bevan that he was smarter than the police officers.

The defendant further stated that the police thought that he was dumb, “but they

9
are dumb because they are looking for blood. . . . They won’t find any blood.”

When Bevan asked why, the defendant responded that “if you strangle somebody

there is no blood.” The defendant also claimed that he saw signs that the bodies

had been covered.

When Bevan asked him to take her to the bodies, the defendant said several

times that he could not take her to the bodies yet because “they would think that I

did it.” The defendant said that his brother would take them to the bodies the next

day.

When Bevan asked him why someone would bring the Hardemans way out

here to kill them, the defendant said, “Well, because, you know, if they get the

bodies, the police can identify what they were shot with, what kind of gun.”

No discoveries were made on January 10, 1981.

After the authorities called off the search for the night, Mr. and Mrs. LeCroy

(the defendant’s and Jon LeCroy’s parents) informed the authorities that they

would not be coming back to the area to search for the Hardemans. However, the

authorities offered to pick-up the defendant and Jon LeCroy so that they could

assist in the search.

On January 11, 1981, the authorities picked up the defendant and Jon

LeCroy so that they could assist in the search for the Hardemans. Once the

10
defendant and Jon LeCroy arrived at the Brown’s Farm Area, the defendant asked

Jon LeCroy “what are we going to do?” Jon LeCroy then drew a circle on the

ground. Jon LeCroy that said, “Here is where we are now,” and drew a line

through the circle. Jon LeCroy continued: “We are going back there and when we

pass this tree with this construction tape on it, I want you (the defendant) to get off

because I am going to take Elsie [Bevan] straight back into the Brown’s Farm

because I have a gut feeling I am going to take her right to the bodies.”

When the defendant and Jon LeCroy separated, the defendant began

searching with Officer Chance. The defendant informed Officer Chance that they

should be searching for something white because Gail Hardeman was wearing

thermal underwear and that they should also be searching for a diamond ring

because Gail was wearing a diamond ring.

About 20 minutes after the defendant and Jon LeCroy separated, Jon

LeCroy found John Hardeman’s body. When the call came in that John Hardeman

had been found, the defendant kept saying that “I know she [Gail Hardeman] is

around here. She has got to be alive.” However, a short while later, the

authorities found Gail Hardeman’s body.

John Hardeman died from a single shotgun slug to the head. His wallet and

a .30-06 hunting rifle were missing. Gail Hardeman’s body was found

11
approximately 400 feet away. A .38 revolver belonging to her was missing, her

trousers were unzipped, and her brassiere was partially undone. However, there

were no signs of a struggle, the body had not been moved, and all of Mrs.

Hardeman’s jewelry was present. She died from three .22 caliber, close-range

gunshots to the chest, head, and neck.

After the discovery of the bodies, the authorities questioned the defendant

and Jon LeCroy. The LeCroy family volunteered to travel to the police station for

further questioning. After the LeCroys arrived at the police station, the defendant

received and waived his rights and gave two inculpatory statements to the police.

C. The Defendant’s Confessions

After the state trial court originally suppressed the defendant’s confessions

and other evidence, the state appealed. The Florida Supreme Court reversed and

ordered that the defendant’s following confessions and other evidence were

admissible. See State v. LeCroy, 461 So.2d 88, 90-93 (Fla. 1984).6

On January 11, 1981, after being advised of his Miranda rights, the

defendant gave the following taped confession at the police station to detectives

Welty and Copeland.

6
The United States Supreme Court denied the defendant’s petition for certiorari. LeCroy
v. Florida, 473 U.S. 907, 105 S. Ct. 3532 (1985).

12
Defendant: I was pretty-well lost. I saw a pig and I shot him with a
slug and it went ricocheting around.

Welty: You shot a pig?

Defendant: At a pig.

Welty: Okay

Defendant: Hit a tree, broke the tree in half and went into a head.7 I
heard it bouncing around.

Welty: Let me kind of – I am going to keep interrupting you.
Okay?

Defendant: Okay.

Welty: You shot a pig with a slug. What kind of gun were you
carrying?

Defendant: .12-gauge, single shot.

Welty: What brand? Do you know was it Smith and Wesson,
Ithaca?

Defendant: I don’t know.

Welty: You don’t know the name? You are an (inaudible)
hunter.

Defendant: It ain’t my gun. It was a Smith and Wesson.

Welty: Whose is it?

Defendant: My brother’s.

7
A head is a hunting area in the Brown’s Farm Area.

13
Welty: Were you carrying any other weapons?

Defendant: Yes, I carried a 8mm and a .22.

Welty: You were carrying three guns?

Defendant: No, no, no.

Welty: I just want to know the guns you were carrying.

Defendant: 8mm.

Welty: When, Sunday?

Defendant: Yes, shotgun and a .22.

Welty: What kind of .22.

Defendant: I have no idea.

Welty: Pistol?

Defendant: Yes, pistol.

Welty: Whose pistol?

Defendant: Mine.

Welty: Where is it at now?

Defendant: Home.

Welty: It is at home? Okay. You was hunting. You shot at a
pig. Apparently you missed and the bullet was
ricocheting around?

14
Defendant: In the – inside of a head it went –

Welty: How long have you been hunting?

Defendant: Roughly 10 years.

Welty: A slug doesn’t ricochet around a head of trees.

Defendant: Well, it was [sic] sounded like the bullet, the slug.

Welty: Okay. What happened then?

Defendant: When I walked into the head and I saw a man there that I
(inaudible) described as John.

Welty: Do you think it was John?

Defendant: Well, I saw his jacket there afterwards.

Welty: Same jacket John had on?

Defendant: Same jacket.

Welty: How was the man lying?

Defendant: On his back.

Welty: Face up? You could have saw his face?

Defendant: I couldn’t get close enough. It was down like this.

Welty: Like on his face covering it?

Defendant: That or it could have fell.

Welty: Did you check to see if he was bleeding?

15
Defendant: No.

Welty: Sleeping?

Defendant: No, I didn’t.

Welty: Did you see any blood?

Defendant: No.

Welty: How close did you get to him?

Defendant: Roughly anywhere between 10 and 20 yards.

Welty: Okay.

Defendant: Could have been even five.

Welty: Did you panic?

Defendant: Yes, I did, very much.

Welty: What went through your mind?

Defendant: Well, well at that time nothing, really because it was – I
just completely blacked out.

Welty: Okay. What happened then?

Defendant: You know (inaudible) I turned around and shot three
times with a .22 and that is when I saw his jacket and it
was outside the head, got my head together and started
in.

Welty: When you heard twigs break, you shot at a jacket?

16
Defendant: About that time I well (inaudible). I saw something
brown and I shot but I had my eyes on –

Welty: How may time did you shoot?

Defendant: Three times.

Welty: How may times did you hit the jacket?

Defendant: I have no idea.

Welty: Did the jacket, was there – apparently there was someone
in the jacket. I mean, jackets don’t just walk around,
right?

Defendant: It could have been anybody because that is the jacket he
had on that morning.

Welty: Hey, wait a minute. If you hear twigs break, you turn
around and you hear – and you see a jacket and you fire
quick, was it Gail?

Defendant: I can’t tell you.

Welty: Was it Gail?

Defendant: I can’t really tell you that. It had to have been his jacket
on. It had to have been.

Welty: Well, you just saw Gail not more than 20, 30 minutes
and you knew what kind of jacket she had on. Was it
Gail?

Defendant: She had a green one on and he had a brown one and that
is the one I shot I shot towards, the brown jacket.

17
Welty: And what color jacket did John have on when he was
laying on the ground dead?

Defendant: He didn’t have one on. He had a checkered shirt on.

Welty: No jacket?

Defendant: No, he took the jacket off like maybe she got cold and he
gave it to her to put –

Welty: You saw her face?

Defendant: No. I saw the brown jacket.

Welty: Come on, level with me.

Defendant: All I am telling you my eyes (inaudible) shot [sic] and
they closed.

Welty: Did you know it was Gail?

Defendant: I am almost positive it was.

Welty: Not almost positive.

Defendant: Yes.

Welty: When –

Defendant: Yes, it was.

Welty: You are positive.

Defendant: Yes.

Welty: Okay. Did she fall down? Did she scream?

18
 Defendant: No.

Welty: Did you see blood?

Defendant: No, no words were said, no words at all, no yell, no
nothing.

Welty: What did you shoot for, make sure there is no witnesses?

Defendant: Yes, sir.

Welty: Okay.

Defendant: Because I was running scared.

...

After repeatedly denying that he had approached the bodies, taken the

Hardemans’ guns, or hidden the backpack and cushions, the defendant altered his

story during his first taped confession.

Defendant: I just remembered everything. She drawed on me and
shot at me and that is what made me shoot that way.
That is what made me shoot that way.

Welty: This is not a make-up story.

Defendant: I swear on my life it is. It ain’t no make-up story. That
is what happened.

Welty: You shot John. You knew it was John from the clothing
and hat and over his head about 20 yards from him you
heard –

Defendant: Well, I heard –

19
Welty: Wait a minute. You heard the bushes crack. Now, what
happened. Now you can talk.

Defendant: I turned around and I remember just like her having a
gun in her hand. I ain’t too sure if she shot because I
wasn’t really looking that close. I heard a shot, that had
to come from her. That is when I shot.

Welty: No, no, Dougie. Come on, get – if someone shoots at
me, I am going to know it, hey, they shooting at me, you
know. Did she shoot at you? I don’t want no maybes.

Defendant: Yes, because it went right next to my neck.

Welty: Which side of your neck?

Defendant: My left side of my neck.

Welty: How may times did she fire?

Defendant: One time. That was why I pulled out my pistol.

Welty: How may time did you shoot?

Defendant: Three times.

Welty: Did she holler at you?

Defendant: She didn’t say a word, no. None of us said one word.
Maybe she was shocked at what she saw, the accident. It
was an accident and that is – she just didn’t talk. That is
the way I was, too.

Welty: When she fell on the ground, you saw her fall, right?

Defendant: Right.

20
 ...

Defendant: . . . I saw blood squirt, go out of her when I hit her more
or less in the neck.

Welty: Oh, in the neck? Okay.

...

Welty: Okay. And are you sure that your guns are at your
house?

Defendant: My own.

Welty: Yes.

Defendant: Or theirs?

Welty: Yours?

Defendant: At my house, out, up, cleaned, just like I always do.

Welty: All right. You didn’t damage your .22 or anything like
that? You know some people, if they want to hide a
murder, they will knock the barrel out to kind of change
the groves in it but you didn’t do anything like that?

Defendant: I didn’t even think of doing nothing like that.

...

Investigators then returned to the defendant’s statement that Gail Hardeman

had shot at him.

Welty: Did you see her with a gun in her hand? Be honest.

21
Defendant: Not positively, no.

Welty: All right. Before you said her hands were in her pockets.
Then you said she had a gun in her hand, you knew she
had a gun. That was discussed because she is supposed
to have been a pretty good shot with her hands in her
pocket, son. Be honest with me, please.

Defendant: Well, I am positive that there was a bullet fired from that
direction.

Welty: Her hands were in her pockets.

Defendant: She could have just had it right there by her pocket, shot
through the pocket or anything because there was a
bullet fired from that direction.

Welty: It could have been another hunter?

Defendant: It could have been anyone.

Welty: But her hands were in her pockets. If she fired – I’m
going to stand up and show you, put my hands in my
pockets. I have no guns or anything on, no guns in my
pocket, I promise you. Do you think she could have
fired from her pocket, you are saying but her hands were
in her pockets?

Defendant: In her jacket pockets.

Welty: In her jacket pockets? Her hands were in her jacket
pockets?

Defendant: Well, in here, yes, from this pocket. That is where the
jacket –

22
Welty: I am going to give you a minute to think. You think
back and let it go through your mind.

...

Defendant: Yes, her hands were in her pockets.

Welty: Without a shadow of a doubt?

Defendant: Without a shadow of a doubt.

Welty: You killed her so she wouldn’t be a witness?

Defendant: Unless she fired from her pockets. I know there was a
shot fired from that direction, only one.

Welty: What did you shoot her for, so she couldn’t tell –

Defendant: What?

Welty: You killed that woman so she couldn’t –

Defendant: Well, for that reason and plus I thought she was the one
that shot at me.

Welty: No, I am not going to buy that.

Copeland: You just killed her because you didn’t want her to talk?

Defendant: Okay, I did.

Welty: Is that the truth? You just shook your head in disgust or
whatever.

Defendant: There was a shot fired. There was a shot fired from that
way. There was a shot from that direction.

23
 Welty: A shot fired. Did she fire that shot? You don’t know,
right?

Defendant: No, I don’t know.

Welty: Her hands were in her pockets?

Defendant: As far as I know she could have shot through her pocket
but otherwise she didn’t do it.

Welty: But you didn’t – you didn’t want her alive, did you?

Defendant: No, at the time, no, I was scared. I didn’t know what to
do.

Welty: You didn’t want no witnesses, nobody to put the finger
on Dougie being the one that killed those two people or
the first person and the second?

Defendant: No, no.

After giving this first statement, the defendant almost immediately asked to

speak to a second officer to correct his story. The defendant again received and

waived his Miranda rights. Detective Richard Browning then recorded the

defendant’s second confession.

Browning: If you would, at this time, I would like you to tell me
what happened?

Defendant: All right. I was tracking a hog into the head. I was
following just the tracks. I didn’t see him. I went in the
head and the hog, where he was laid down got up and
took off. By the time I fired at him I hit John, some guy
in the head named John. I don’t know the last name. I

24
 went over there and I looked at it and it scared me and I
picked up the hat and laid it on top of him. It made me
sick from what I saw. So, I picked up the gun and got
ready to head out. I picked them back up and took them,
took them with me.

Browning: You took what with you?

Defendant: The guns.

Browning: What type of guns?

Defendant: .30-06 rifle and a .38 special. I was going out of the
head scared. I was almost out when his wife came up,
approached me and asked me what I was doing with his
gun. I made no comments and she started yelling. Her
hands went straight up in the air. She started really
yelling loud. My head was killing me and she really
started yelling loud and that is when I turned and shot
her.

Browning: What did you shoot her with?

Defendant: A .22 pistol.

Browning: Pistol? How many times did you shoot her?

Defendant: Three times.

...

Browning: What did you do with the two guns when you went to
camp?

Defendant: I put them in the bushes at that time until the chance I
got and I went and got them and put them in the truck.

25
...

Browning: Can you explain to me how Gail Hardeman’s pants were
found undone?

Defendant: Well, I felt for a heartbeat right from under the
bellybutton. I felt in with my finger tips to see if I could
feel the heartbeat and I couldn’t feel nothing and I felt on
the upper rib cage and I didn’t feel no beat. Maybe
because I was so nervous my hands were shaking.

Browning: Let me ask you this: Can you explain to me how, if she
was so upset and she was waving her hands around, how
is it that when the body was found and her hands were in
her pockets?

Defendant: I stuck them in there.

Browning: Why did you do that?

Defendant: Well, I was scared.

Browning: Well, for what reason did you think to do that?

Defendant: Make it look like an accident.

...

Browning: Can you explain to me how it was the day you were
helping us with the search that you got off the halftrack
and went directly to John and Gail’s knapsack and the
cushions and the personal belongings that was hidden in
the burn area where you first talked to them that day?

Defendant: That had to have been a coincidence because I just went
right where they were.

26
 Browning: You had no part in putting them there?

Defendant: No part in putting them there.

...

Browning: Okay. And you say that the shooting of the male was an
accident but then the shooting of the female was an
intentional thing?

Defendant: Yeah.

Browning: Okay.

Defendant: Because my head started really busting open and I lost
control.

The defendant and Jon LeCroy then directed officers to William Ellett’s

home. At Ellett’s residence, the authorities recovered John Hardeman’s .30-06

rifle. While some officers went to the LeCroy’s residence to recover the

defendant’s shotgun and .22 caliber pistol, other officers went to Rosie Harris’s

home to recover Gail Hardeman’s .38 handgun.8

While officers were en route to the LeCroy residence, the defendant

apologized to Deputy Welty for lying and stated that he got a nail and ran it

through the barrel of his .22 pistol to prevent a ballistics match.9

8
Rosie Harris was a friend of Jon LeCroy’s.
9
In addition to his confessions to law enforcement and his ex-girlfriend, the defendant
also confessed to Roger Clayton Slora, a Florida State prisoner who was incarcerated with the
defendant. Slora testified that the defendant stated that when he shot John Hardeman, he was

27
 II. The Trial

The defendant and Jon LeCroy were indicted together, but tried separately,

for the first-degree murders and armed robberies of John and Gail Hardeman.10 At

the defendant’s trial, the jury heard all the evidence outlined above during the

government’s case-in-chief, including the defendant’s confessions to law

enforcement, his ex-girlfriend, and Roger Slora. Defense counsel cross-examined

all but one of the government’s witnesses. After the state rested, defense counsel

elected not to present evidence. Rather, the defense elected to hold the

government to its burden of proof. Under Florida law, this allowed defense

counsel to have the final closing argument. See Fla. R. Crim. P. 3.250.

During its closing argument, defense counsel focused on the difference

between felony murder and third-degree murder. This was important because a

conviction for felony murder would make the defendant eligible for the death

looking into John Hardeman’s eyes and that he got a rush from shooting Hardeman in the head.
Slora also testified regarding sexual contact between the defendant and Gail Hardeman. The
state also used witness Slora in its prosecution of Jon LeCroy. According to Slora, Jon LeCroy
told the defendant that “I killed for you.” According to the government at Jon LeCroy’s trial,
this meant that Jon LeCroy killed John Hardeman.
10
The defendant and Jon LeCroy were indicted on February 4, 1981, for two counts of
first-degree murder and two counts of robbery with a firearm. The defendant was tried in
February 1986, and the jury returned a guilty verdict on all counts on February 28, 1986. The
defendant’s penalty phase was conducted on March 10, 1986.
Jon LeCroy’s trial began in April 1986, and Jon LeCroy was acquitted of all charges on
April 18, 1986. On October 1, 1986, the state trial judge sentenced the defendant to death for the
murder of Gail Hardeman.

28
penalty, but a conviction for third-degree murder would not. Defense counsel

noted that there were two means by which felony murder could be proven with

respect to John Hardeman; namely, that the defendant killed John Hardeman with

the intent to steal his .30-06 rifle or that the defendant killed John Hardeman with

premeditation. The defense then argued that the evidence did not show either of

these means beyond a reasonable doubt.

According to defense counsel, the evidence showed, at best, that the

defendant had taken the .30-06 rifle and .38 pistol after he had killed the

Hardemans, not because of any premeditated plan to sell the rifle, but as the result

of a desperate 17-year-old who was not thinking straight. Therefore, counsel

argued, the jury should find that the defendant committed a theft, rather than a

robbery, and find him guilty of third-degree murder. The defense emphasized that

nothing was taken from the Hardeman’s campsite and that none of John and Gail

Hardeman’s jewelry was taken.

As for Gail Hardeman, defense counsel conceded that there was some

evidence of premeditation; namely, the defendant’s statements that he killed Gail

Hardeman to get rid of any witnesses. However, defense counsel argued that the

defendant said many different things and that it was more likely that Gail

29
Hardeman was killed out of fear and over-reaction rather than an plan to eliminate

witnesses.

The defense went through all the evidence, emphasizing those pieces of

evidence that could lead a jury to find a reasonable doubt on the felony-murder

charge and attempting to explain away evidence that supported a felony-murder

conviction.

After only 2½ hours of deliberations, the jury convicted the defendant of

felony murder of John Hardeman, premeditated murder of Gail Hardeman, and

two counts of armed robbery.

After the defendant was found guilty of murdering the Hardemans, he fired

his court-appointed attorney, and retained private counsel for the penalty phase.

Following the sentencing proceedings, the jury recommended life, by an 8-4 vote,

for the murder of John Hardeman and death, by a 7-5 vote, for the murder of Gail

Hardeman. The state court sentenced the defendant to death by execution for the

murder of Gail Hardeman, life-imprisonment for the murder of John Hardeman,

and thirty years’ imprisonment for each of the robbery convictions.

III. State Direct Appeal

In his state direct appeal, the defendant raised several issues regarding his

death sentence, including a claim that the imposition of the death penalty on

30
someone who was less than 18-years-old at the time he committed the crime

violates the United States Constitution. Because the Florida Supreme Court has

vacated the defendant’s death sentence, we do not outline the sentencing issues the

defendant raised on direct appeal and at various stages of the proceedings.

Instead, we focus on the conviction issues the defendant raised.

In his state direct appeal, the defendant asserted five issues relating to his

convictions; namely, that: (1) the second confession given to the police, to correct

inaccuracies in his first statement, was inadmissable; (2) the robbery charges were

inadequate to properly advise the defendant of the charges against him; (3) Jon

LeCroy’s inculpatory statements regarding the last time he saw the Hardemans

alive should have been admitted during the trial; (4) separate sentences for both

robbery and felony murder based on robbery were inappropriate; and (5) the

mandatory minimum sentences on the two separate robbery convictions were

improper.

With regard to the defendant’s second confession, the Florida Supreme

Court declined to revisit its earlier, pre-trial ruling in 1985 that the statement was

admissible. LeCroy v. State, 533 So.2d 750, 753 (Fla. 1988). The Florida

Supreme Court also concluded that “having now received and reviewed the full

record of the trial, it is clear beyond a reasonable doubt that admission of this

31
second statement, even if error, did not impact on the jury verdict.” Id. (citing

State v. DiGuilio, 491 So.2d 1129 (Fla. 1986)).

The Florida Supreme Court also declined to revisit the state trial court’s

conclusion that the robbery charges were “sufficient to apprise [the defendant] of

the nature of the crimes charged and did not mislead or embarrass [the defendant]

in the preparation of a defense.” Id. at 754.

Next, the Florida Supreme Court addressed Jon LeCroy’s allegedly

inculpatory statements as to when he last saw the Hardemans alive. According to

the Florida Supreme Court, the exclusion of this evidence was not error, and, even

if erroneous, any error was harmless. Id. Specifically, the Florida Supreme Court

stated that the defendant

now argues that the trial court erred in refusing to admit hearsay
evidence that Jon told others that he had seen dead bodies before and
was the last to see the victims alive which, appellant urges, is a
statement against interest within the meaning of [a Florida hearsay
exception]. Concerning the statement that Jon saw the victims last, this
is based on the testimony of a witness that Jon said he saw the victims
at 11 a.m. the day of the murder and the testimony of another witness
that Cleo told him he last saw the victims at approximately 10:30 a.m.
Thus, appellant reasons, Jon made an admission against interest by
saying he saw the victims after Cleo. We do not agree that a hearsay
statement by Jon that he saw the victims at 11 a.m. is an admission
against interest. Another witness testified he saw Cleo with the victims
around 10 a.m. and Cleo admitted in his statement to the police that he
had conversed with the victims that morning, for approximately twenty
minutes, that they had separated, and that the killings occurred later after

32
 a period of hunting. As to Jon saying that he had seen dead bodies
before, the statement is meaningless without further development and
could only have been developed by calling Jon as a witness. The state
points out that had this been done, the state would have been able to
elicit Jon’s statement to the police that he had seen the victims bodies
shortly after Cleo killed them. This would have been consistent with
Cleo’s statements to the police that he told Jon of the killings, and the
approximate location of the bodies, shortly after the crimes. We see no
error. Moreover, as the state argues, even if it was error, the error was
clearly harmless. Evidence showing that Jon had also been indicted and
had some role in either the crimes or in attempting to conceal the crimes
was given to the jury. We do not see how this ambiguous hearsay could
have affected the verdict.

Id. (internal citation and footnotes omitted).

As for the defendant’s argument regarding his robbery convictions, the

Florida Supreme Court noted that it had already concluded that “sentences on both

felony murder and the underlying felony [robbery] were appropriate.” Id.

Furthermore, the Florida Supreme Court stated that the “uncontradicted evidence

here was that [the defendant] first killed and robbed John Hardeman and, after an

indeterminate lapse of time, killed and robbed Gail Hardeman when she arrived on

the scene.” Id. Consequently, the Florida Supreme Court rejected the defendant’s

assertion that he was improperly sentenced for two separate robbery convictions.

Id.

Finally, the Florida Supreme Court affirmed the imposition of the death

penalty for the murder of Gail Hardeman. Id. at 757-58. The United States

33
Supreme Court denied the defendant’s petition for certiorari. LeCroy v. Florida,

492 U.S. 925, 109 S. Ct. 3262 (1989).

IV. State Post-Conviction

A. Defendant’s 3.850 Motion

In 1990, the defendant filed a motion for post-conviction relief pursuant to

Florida Rule of Criminal Procedure 3.850.11 In 1996, the defendant filed a second

amended 3.850 motion for post-conviction relief. In his 171-page motion, the

defendant raised the following claims regarding his convictions: (1) the lack of

funding prohibited defense counsel from fully investigating and preparing his

post-conviction motion, in violation of the Constitution; (2) the state withheld

certain “files and records” pertaining to the defendant’s case, namely taped

statements by numerous witnesses; (3) the state committed Brady and Giglio

violations; (4) ineffective assistance of appellate counsel, both in the appeal from

the motion to suppress as well as in his state direct appeal, namely that the record

on appeal was incomplete in both instances; (5) the trial court’s statement that he

would have to “lock up” the jurors if they did not reach a verdict by the end of the

11
On April 29, 1992, the state filed a motion for the disclosure of defense counsel’s files.
In 1994, the Florida Supreme Court concluded that the defendant waived his attorney-client
privilege when he filed a motion for post-conviction relief claiming ineffective assistance of
counsel. LeCroy v. State, 641 So.2d 853, 854 (Fla. 1994).

34
day violated the defendant’s constitutional rights (hereinafter referred to as the

“lock-up statement”);12 (6) ineffective assistance of trial counsel for: (a) failing to

pursue a defense centered around Jon LeCroy as the murderer; (b) failing to

pursue a defense centered around self-defense; (c) failing to litigate the issue

concerning the districting procedure in Palm Beach County; (d) improperly

waiving jury instructions regarding affirmative defenses; and (e) not pursuing

Brady and Giglio violations and failing to obtain various documents that could

have been used at trial;13 (7) the trial court’s exclusion of Jon LeCroy’s allegedly

inculpatory statements violated the Constitution; (8) the state engaged in various

instances of prosecutorial misconduct;14 (9) the state’s introduction of shocking

12
The defendant takes the state trial court’s lock-up statement out of context. The state
trial court actually stated that: “I am required to lock you up in a hotel, not lock you up but keep
you sequestered in a hotel where you can’t separate . . . .” The state court was merely informing
the jury of the how events were going to transpire during deliberations, and this statement did not
constitute error.
13
See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 1196-97 (1963) (stating the
government is obligated to produce evidence that is materially favorable to the defendant, either
as substantive or impeachment evidence); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763,
766 (1972) (concluding that the “deliberate deception of a court and jurors by the presentation of
known false evidence is incompatible with due process”).
14
The defendant’s prosecutorial misconduct claim consisted of the following allegations:
(1) the state separately prosecuted both the defendant and Jon LeCroy for the murders of John
and Gail Hardeman under the theory that each was the triggerman at their respective trials; (2)
the prosecution engaged in witness tampering; (3) the prosecution referred to evidence not in the
record during closing argument and was so animated that he was twice admonished by the trial
court; (4) the prosecution attempted to elicit testimony, such as that Gail Hardeman was dragged,
tied-up, strangled, and sexually molested, when there was no basis for such testimony; (5) the
prosecution provided its witnesses with scripts of expected testimony; (6) the prosecution

35
and gruesome photographs violated the Constitution and trial counsel was

ineffective for failing to object to them; (10) the defendant’s constitutional rights

were violated by Florida’s Rules of Professional Conduct that prevent lawyers, or

their associates, from speaking with jurors after a trial; (11) the trial court

erroneously instructed the jury regarding expert testimony; and (12) the

cumulative procedural and substantive errors during the defendant’s trial violated

the Constitution.

B. The State 3.850 Court’s Decision

The defendant’s 3.850 motion was originally scheduled for an evidentiary

hearing.15 However, after the case was transferred, the new judge summarily

determined that an evidentiary hearing was unnecessary.

Although the State 3.850 Court did not hold an evidentiary hearing on the

defendant’s amended 3.850 motion, it did issue a 20-page opinion addressing each

of the defendant’s claims. With respect to the defendant’s claim that a lack of

funding prohibited his attorney from fully investigating and preparing his post-

misstated the role of mitigating evidence; and (7) the prosecution engaged in unprofessional
conduct outside the courtroom to the point that he refused to further cooperate with the defense
even in the “slightest” way.
15
The State 3.850 Court did conduct a hearing pursuant to Huff v. State, 622 So.2d 982
(Fla. 1993). A Huff hearing is used to determined whether an evidentiary hearing is necessary as
to any claims.

36
conviction 3.850 motion, the State 3.850 Court concluded that the claim was

“legally insufficient as a matter of law.” The State 3.850 Court also concluded

that the defendant “waived” his claim that the state withheld certain “files and

records” pertaining to his case, namely taped statements by numerous witnesses.

However, the State 3.850 Court gave no basis for concluding that the defendant

had waived the claim.

With respect to the defendant’s claim that the state committed Brady and

Giglio violations, the State 3.850 Court concluded that the evidence was

overwhelming and that the defendant had not established a reasonable probability

that the outcome would have been different if the state had disclosed the evidence

in issue. Specifically, the State 3.850 Court concluded that

[t]he evidence in this case was overwhelming. The Defendant not only
confessed to killing the Hardemans to the police, but he confessed to
Carol Hundley and Roger Slora. A plethora of physical and
circumstantial evidence corroborated those confessions and further
established the Defendant’s guilt. Based on the wealth of evidence
against him, there is no reasonable probability that his conviction or
sentence of death would have been different had the State disclosed or
defense counsel discovered the evidence alleged by the Defendant in
this claim. Therefore, this claim is denied.

The State 3.850 Court also concluded that several claims were procedurally

barred because they “either were or could have been raised on direct appeal,”

37
including the defendant’s claims that (1) the record on appeal was incomplete,16

and (2) the trial court’s lock-up statement violated the Constitution.

With respect to the defendant’s claims that trial counsel was ineffective in

numerous respects during the guilt phase of the trial, the State 3.850 Court

concluded that the defendant had not shown a reasonable probability that

counsel’s performance would have affected the outcome of the trial. Specifically,

the State 3.850 Court stated that

singularly or cumulatively, the allegations of deficient conduct that are
sufficiently pled, even if taken as true, would not have, within a
reasonable probability, affected the outcome of this case. As noted
previously, the quality and quantity of evidence presented by the State
simply would not have been undermined even if defense counsel had
presented the evidence that Defendant claims he should have presented.
Therefore, this claim is denied.

With regard to the defendant’s claim that the trial court’s evidentiary ruling

(excluding Jon LeCroy’s inculpatory statements as to when he last saw the

Hardemans) violated the Constitution, the State 3.850 Court determined that the

claim was “procedurally barred as it was raised and rejected on direct appeal.”

As for the defendant’s claims of prosecutorial misconduct, the State 3.850

Court addressed each claim individually. With regard to the state pursuing a

16
The State 3.850 Court also concluded that “Defendant has failed to show any errors that
occurred during those proceedings that were omitted from the records on appeal.”

38
theory at the defendant’s trial that the defendant was the triggerman and a theory

at Jon LeCroy’s subsequent trial that Jon LeCroy was the triggerman, the State

3.850 Court noted

that trial counsel challenged the State’s inconsistent theories in his
motion for new trial. At the hearing on the motion, this Court found that
the State had initially overstated Jon’s involvement in Jon’s trial and had
then retreated to an aider and abettor theory. This Court also found the
evidence of the Defendant’s guilt overwhelming and denied the motion.
The Defendant could have, but did not, challenge this Court’s denial of
his motion for new trial, and the State’s inconsistent theories, on direct
appeal. Thus, this claim is procedurally barred. It is also without merit.

The State 3.850 Court also concluded that the majority of the defendant’s

claims regarding the state having presented misleading evidence and improper

argument, in violation of Giglio, were procedurally barred because they could

have been raised on direct appeal. However, the State 3.850 Court did address

two of the defendant’s Giglio claims on the merits.

With regard to the state’s efforts at having Roger Slora, the prisoner who

testified at both the defendant’s and Jon LeCroy’s trials, transferred to other

facilities in exchange for favorable testimony, the State 3.850 Court determined

that the defendant made nothing other than conclusory allegations. With regard to

the state providing scripts to its witnesses, the State 3.850 Court concluded that

[w]hile it would hardly be improper for the prosecutor to draft a list of
questions he intends to ask a witness, and the responses he intends to

39
 elicit for his own use at trial, it is improper to influence a witness to
answer falsely. The Defendant has made no allegation, however, much
less a showing, that any of the witnesses gave false testimony. Thus, he
has failed to establish even a prima facie case under Giglio.

The State 3.850 Court also addressed the defendant’s claims that the state

improperly argued to the jury and judge regarding the role sympathy and mercy

should play. The State 3.850 Court concluded that these claims were procedurally

barred because they either were or could have been raised on direct appeal. The

State 3.850 Court also concluded that the defendant “may not use a claim of

ineffective assistance of counsel to circumvent [procedural] bar. Regardless, the

Defendant has failed to show either deficient performance or prejudice . . . .”

With regard to the defendant’s claim that he was convicted and sentenced

because of a personal vendetta by the prosecutor against defense counsel, the State

3.850 Court concluded that the defendant “did not, and cannot, show within a

reasonable probability that any dislike between the prosecutor and defense

counsel, or the actions of the prosecutor as a result thereof, affected the outcome

of his trial. Thus, this claim is denied.”

The State 3.850 Court also concluded that the defendant’s claim regarding

introduction of shocking and gruesome photographs was procedurally barred

because it could have been raised on direct appeal. As for the defendant’s claim

40
that defense counsel was ineffective for failing to object to the photographs or

pursue the issue during his direct appeal, the State 3.850 Court concluded that the

defendant “failed to plead such an allegation with specificity” and that the

defendant had “failed to show prejudice.”

The State 3.850 Court also addressed the defendant’s challenge to the

Florida Rules of Professional Conduct. According to the defendant, the rules

prevented defense counsel from questioning the jury after the verdict, and,

therefore, violated his constitutional rights. The State 3.850 Court rejected the

defendant’s argument, concluding that

[t]he Rules are promulgated by the Florida Supreme Court to regulate
members of the Florida Bar. The Defendant is not a member of the bar.
Therefore, the Defendant does not have standing to challenge the
applicability of a rule that does not govern him directly. Moreover, the
law allows juror interviews under certain circumstances. The
Defendant’s inability to meet the requirements of this rule does not
render his attorney exempt from the rules of professional conduct, nor
does it render his conviction and sentence constitutionally infirm.

Finally, the State 3.850 Court concluded that the following claims were

“procedurally barred as they either were or could have been raised on direct

appeal”: (1) the trial court erroneously instructed the jury regarding expert

testimony; and (2) the cumulative procedural and substantive errors during the

defendant’s trial violated the Constitution. The State 3.850 Court also concluded

41
that “[t]o the extent Defendant claims that trial counsel rendered ineffective

assistance for failure to ‘fully litigate’ these issues at trial, he may not circumvent

the bar with such a claim in order to seek a second appeal.”

C. Florida Supreme Court

The Florida Supreme Court affirmed the State 3.850 Court’s denial of the

defendant’s 3.850 motion. In the appeal from the denial of his 3.850 motion, the

defendant raised the following issues related to his convictions: (1) failure to

attach portions of the record to the order denying relief; (2) failure to grant an

evidentiary hearing concerning Brady and Giglio violations, misleading evidence,

and ineffective assistance of trial counsel; (3) failure to hold an evidentiary

hearing concerning trial counsel’s alleged ineffectiveness in the guilt phase; (4)

failure to allow defense counsel to poll the jury; (5) the record on appeal contained

omissions and misnumbered pages; (6) the exclusion of testimony concerning Jon

LeCroy’s role in the crimes; (7) the state engaged in various instances of

prosecutorial misconduct; (8) the state improperly admitted gruesome and

shocking photographs; (9) the jury was given the wrong standard for judging

expert testimony; and (10) procedural and substantive trial errors during the

defendant’s trial violated the Constitution. LeCroy v. Dugger, 727 So.2d 236, 237

n.3 (Fla. 1998).

42
 The Florida Supreme Court concluded that the defendant was not entitled to

an evidentiary hearing on any of his claims in the 3.850 proceedings and that the

State 3.850 Court applied the correct standards with respect to the defendant’s

claims relating to Brady and Giglio. Id. at 238-40. The Florida Supreme Court

also concluded that the State 3.850 Court applied the correct standards and did not

err regarding the defendant’s claims that trial counsel was ineffective for failing to

obtain the Brady materials or to object to the prosecution’s alleged use of

misleading evidence. Id. at 239-40.

With respect to the defendant’s claim that his trial counsel was ineffective

during the guilt phase, the Florida Supreme Court again concluded that “[t]he trial

court properly applied the law. We find no error.” Id. at 241. The Florida

Supreme Court further decided that the defendant’s claim that defense counsel was

unable to poll the jury was “without merit.” Id. at 241 n.12. With regard to the

remainder of the defendant’s 3.850 issues, the Florida Supreme Court summarily

determined that they were “procedurally barred.” Id. at 241 n.11.

D. State Habeas Petition

At the same time he appealed the denial of his 3.850 motion to the Florida

Supreme Court, the defendant filed a state petition for a writ of habeas corpus with

the Florida Supreme Court. In his state habeas petition, the defendant raised the

43
following issues regarding his convictions: (1) ineffective assistance of appellate

counsel for failing to raise a challenge to (a) the districting plan for selecting

jurors, (b) the trial court’s lock-up statement, and (c) misleading jury instructions;

and (2) the trial court improperly excluded testimony concerning Jon LeCroy’s

admissions as to the time he last saw the Hardemans. LeCroy, 727 S.2d at 238

n.4.

As for the defendant’s state habeas petition, the Florida Supreme Court, in

the same opinion affirming the denial of the defendant’s 3.850 motion, concluded

that the issue of the improper districting plan for jurors had not been raised at trial

and that the ineffective-assistance-of-appellate-counsel issue was foreclosed by

Nelms v. State, 596 So.2d 441 (Fla. 1992). LeCroy, 727 So.2d at 241.17 The

Florida Supreme Court also determined that there was no merit to the defendant’s

claim that appellate counsel was ineffective for failing to challenge the state trial

court’s lock-up statement. Id. at 241-42. Finally, the Florida Supreme Court

summarily concluded that the defendant’s remaining issues were without merit.

Id. at 242 n.13. Thus, for a second time, the Florida Supreme Court affirmed the

defendant’s convictions and sentences.

17
In Nelms, the Florida Supreme Court concluded that defense counsel was not ineffective
for failing to anticipate a subsequent change in the Florida law regarding a Palm Beach County
administrative order affecting the selection of jurors. Nelms, 596 So.2d at 442.

44
 V. Section 2254 Petition

On March 1, 2000, the defendant timely filed a federal habeas petition

pursuant to 28 U.S.C. § 2254. Again, given the defendant’s death sentence is now

vacated, we discuss only those issues that relate to his convictions.

In a May 6, 2002 order, the district court noted that the state courts had

properly concluded that certain claims by the defendant were procedurally barred

under Florida law, the state’s procedural bar rested on independent and adequate

state procedural grounds, and that the defendant had failed to show cause and

prejudice for his procedural default. Thus, in that order, the district court

dismissed the following guilt-phase claims as procedurally barred: (1) the trial

court’s lock-up statement violated the Constitution; (2) the districting procedure in

Palm Beach County was unconstitutional; (3) the state’s introduction of shocking

and gruesome photographs violated the Constitution; and (4) the state engaged in

several instances of prosecutorial misconduct.

As to the remaining four guilt-phase claims, the district court, in its May 6,

2002 order, determined that the defendant had timely requested, but had been

denied, an evidentiary hearing on his 3.850 motion in state court. The district

court further noted that the State 3.850 Court signed, without change, the state’s

proposed order denying the defendant an evidentiary hearing and denying his

45
3.850 motion. The district court further found that the defendant was diligent in

his efforts to develop the factual basis for his claims and obtain an evidentiary

hearing in state court. The district court ultimately concluded that three of the

defendant’s four guilt-phase claims warranted an evidentiary hearing.18

In May 2003, the district court held an evidentiary hearing on the following

three guilt-phase claims: (1) ineffective assistance of appellate counsel on direct

appeal; (2) ineffective assistance of trial counsel; and (3) the state’s violations of

the constitutional requirements in Brady and Giglio.19

As for the defendant’s guilt-phase claims, the testimony of two individuals

during the evidentiary hearing is particularly relevant.20 First, Richard A. Barlow,

18
The district court further determined that the fourth claim – that the state trial court
improperly excluded hearsay evidence regarding Jon LeCroy’s guilt – did not warrant an
evidentiary hearing because there were no factual issues regarding that claim. This evidence was
Jon LeCroy’s allegedly inculpatory statements as to when he last saw the Hardemans alive. As
noted earlier, the Florida Supreme Court concluded that the exclusion of this hearsay evidence
was not error, and even if erroneous, any error was harmless. LeCroy, 533 So.2d at 754.
19
Over twenty witnesses testified at the defendant’s evidentiary hearing, including family
members, friends, mental health professionals, the defendant’s school teachers, and others. The
majority of the witnesses and testimony concerned mitigation evidence in the penalty phase.
20
At the evidentiary hearing, Jon LeCroy initially testified, but then asserted his Fifth
Amendment rights. Specifically, during cross-examination, the government asked Jon LeCroy:
“You didn’t shoot John Hardeman?” Jon LeCroy responded that a man was pointing a gun at his
little brother so he shot him. The government accused Jon LeCroy of perjury and a lawyer was
appointed for Jon LeCroy. At this point, all questioning of Jon LeCroy ceased.
However, the government wished to question Jon LeCroy again. Therefore, Jon LeCroy
was called again at the conclusion of the evidentiary hearing. At this time, Jon LeCroy asserted
his Fifth Amendment rights to all questions related to the murder of John Hardeman. The district
court struck Jon LeCroy’s earlier statement from the record and did not consider it when denying

46
the Assistant State’s Attorney who prosecuted the defendant, testified at the

evidentiary hearing. When Barlow was asked about the “scripts” he prepared for

the witnesses in the defendant’s trial, he responded that when “preparing the

witness to testify in jail, I actually write out every question I intend to ask a

witness, as well as describe in there the notes, the page of the deposition, the

police report or whatever it is that I got the answer they had previously given, and

I do that for almost every single witness in a major case.” Barlow further stated

that he gave these typed “scripts” to the witnesses and then “go[es] over with them

those questions to confirm their answers are, in fact, based on what they have said

in depositions, police statement, accurate. . . . I confirm with them whether that is

still accurate, if there is any change in that, and that’s how I actually prepare for

that witness to testify.”

According to Barlow, the prosecution’s

theory was that the Hardemans had been out camping and hunting in the
Brown’s farm hunt area along with the LeCroy family, not together but
in separate – it was very popular hunting area in southern Palm Beach
County.
That during the course of the time period that the parties were
there, Jon and Cleo LeCroy came across the Hardemans who had been
actually camped out there in a tent and camping area.

the defendant’s § 2254 petition. On appeal, the defendant has not challenged the district court’s
evidentiary ruling, and thus we do not consider this testimony.

47
 That Jon and Cleo, basically, together made certain
determinations that they would be an easy couple to rob, that, in fact,
Cleo did, in fact, rob them. He shot Mr. Hardeman and shot multiple
times Ms. Hardeman. That he stole a wallet with approximately $30
from Mr. Hardeman and I believe it was, I believe it was a brand new
thirty ought six rifle . . . .
...
Much of the State’s position in this case was derived from the
statements of Cleo LeCroy in his own statements to the police and his
actions to the police in pretending that he was a great tracker that could
go through the woods and see these foot prints where none were existing
and he could come up with these stories to the police. The police were
totally disbelieving of that and believed that he had a great deal of
knowledge about what happened prior to their actually being found.
I believe my theory to the jury was that it was a combination of
felony murder and first degree murder. In Florida we can present both
simultaneously and allow the jury to make the selection. . . .

Thus, the prosecution’s theory was that the defendant and Jon LeCroy planned to

rob the Hardemans, that the defendant shot the Hardemans, and that it was a

combination of felony murder and first-degree murder.

Second, James Eisenberg, a former Assistant State Public Defender who

was appointed to represent the defendant during the state trial, also testified during

the evidentiary hearing. According to Eisenberg, his theory in “phase one,”21 was

that the defendant had “come across Jo[h]n Hardeman and shot him accidently.”

Eisenberg further elaborated that the defendant

21
Eisenberg referred to “phase one” and “phase two” theories. It appears that he was
referring to the guilt and sentencing phases of the trial.

48
 was startled and I guess, I think, Mr. Hardeman had accidentally shot in
Mr. LeCroy’s direction and, therefore, startled Mr. LeCroy, who
instinctively shot back and it was either an accident or self-defense type
action, and that as to Gail Hardeman, that he had been, he was upset and
he had been confronted by her yelling and screaming and the gun went
off, not to intentionally kill her, and either by accident or a lesser degree
of homicide.

Although Eisenburg stated that he had some reason to believe either Jon LeCroy

or the defendant’s father “did it,” he admitted that the defendant consistently told

him “that he was the one who pulled the trigger.”

After conducting the evidentiary hearing, the district court denied the

defendant’s § 2254 petition. As for the guilt-phase claims that were not dismissed

as procedurally barred, the district court concluded that: (1) the defendant failed to

establish that either his trial or appellate counsels’ performances were deficient;

(2) the defendant failed to establish any prejudice from the alleged Brady

violations; and (3) the defendant failed to establish that the government knowingly

used materially false evidence in violation of Giglio.

On September 27, 2004, the district court granted a certificate of

appealability as to all of the defendant’s claims, including those claims the district

court determined were procedurally barred. The defendant timely appealed.

VI. Standard of Review

49
 Because LeCroy filed his federal habeas petition after April 24, 1996, this

case is governed by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), which “establishes a highly deferential standard for reviewing state

court judgments.” Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 768 (11th Cir.

2003); see Haliburton v. Sec’y for Dep’t of Corr., 342 F.3d 1233, 1237-38 (11th

Cir. 2003) (“both the district court’s review and our review is greatly

circumscribed and is highly deferential to the state courts”) (quotation marks and

citation omitted); Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002) (same).

Under AEDPA, a person in custody pursuant to the judgment of a state

court shall not be granted habeas relief unless the state court’s decision was (1)

“contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or (2) . . .

was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d).

Moreover, § 2254(e)(1) provides that “a determination of a factual issue

made by a State court shall be presumed to be correct” unless the petitioner carries

his burden to rebut the presumption of correctness “by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1); see also Robinson v. Moore, 300 F.3d 1320,

1342 (11th Cir. 2002).

50
 In this case, the district court conducted an evidentiary hearing as to some

of the defendant’s claims. Section 2254(e)(2) severely limits the circumstances in

which a district court may properly conduct an evidentiary hearing. 28 U.S.C.

§ 2254(e)(2).22 On appeal, the state has not challenged the district court’s decision

to hold an evidentiary hearing as to some of defendant’s claims.23 Rather, the state

contends that, after conducting an evidentiary hearing, the district court properly

denied the defendant’s § 2254 petition.

22
Section 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless
the applicant shows that –
(A) the claim relies on –
(i) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
23
As discussed earlier, the defendant timely requested an evidentiary hearing in the State
3.850 Court, but that request was denied. The district court found that the defendant was diligent
in his efforts to develop the factual basis of his exhausted claims in state court, but had been
summarily denied an evidentiary hearing. Further, because on appeal the state has not challenged
the district court’s grant of the federal evidentiary hearing, we need not, and do not, decide
whether the district court erred in granting a federal evidentiary hearing in this case. See McNair
v. Campbell, 416 F.3d 1291, 2005 WL 1634046, at *3-4 (11th Cir. July 13, 2005).

51
 Furthermore, when reviewing the district court’s denial of a § 2254 habeas

petition, we review questions of law and mixed questions of law and fact de novo,

and findings of fact for clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th

Cir. 2000); Wright v. Hopper, 169 F.3d 695, 701 (11th Cir. 1999). Finally, “[t]he

district court’s determination of whether the state court decision was reasonable . .

. is subject to de novo review.” Hall v. Head, 310 F.3d 683, 690 (11th Cir. 2002).

VII. Discussion

A. Conviction Issues – Procedural Bar

In his § 2254 petition, the defendant raised the following issues concerning

his convictions which both the state courts and the federal district court

determined were procedurally barred: (1) the trial court’s lock-up statement

violated the Constitution; (2) the districting procedure in Palm Beach County was

unconstitutional; (3) the state’s introduction of shocking and gruesome

photographs violated the Constitution; (4) the state engaged in several instances of

prosecutorial misconduct.

With regard to the defendant’s claim that the trial court’s lock-up statement

violated the Constitution, the State 3.850 Court determined that the claim was

procedurally barred because it either was or could have been raised on direct

appeal. “The difficulty with the procedural default argument is found in the ‘was

52
raised’ or ‘could have been raised’ dichotomy.” Smith v. Dugger, 840 F.2d 787,

791 (11th Cir. 1988) (discussing the state court’s refusal to address the merits of a

claim made in a 3.850 proceeding).

As this Court has concluded, if, in fact, the claim was raised on direct

appeal in state court, it was necessarily ruled upon and might very well be

“foreclosed from state collateral attack, [but] it would be available in the federal

case as an exhausted claim.” Id. If, however, the claim “could have been raised

[on direct appeal], but was not, it would be barred from any state collateral review,

and likewise barred from federal review.” Id. (citing Murray v. Carrier, 477 U.S.

478, 106 S. Ct. 2369 (1986)). Reviewing the state court record, we conclude that

the defendant did not raise the lock-up statement as a claim on direct appeal to the

Florida Supreme Court. Furthermore, the defendant did not appeal the State 3.850

Court’s determination that this claim was procedurally barred to the Florida

Supreme Court.24

24
The defendant did raise a related claim in his state habeas petition before the Florida
Supreme Court; namely that appellate counsel was ineffective for failing to raise the state trial
court’s comments as an issue on appeal. The Florida Supreme Court rejected that issue. LeCroy,
727 So.2d at 241-42.
“In order to be exhausted, a federal claim must be fairly presented to the state courts.”
McNair v. Campbell, 416 F.3d 1291, 2005 WL 1634046, at *6 (11th Cir. July 13, 2005). “It is
not sufficient merely that the federal habeas petitioner has been through the state courts . . . nor is
it sufficient that all the facts necessary to support the claim were before the state courts or that a
somewhat similar state-law claim was made.” Kelly v. Sec’y for Dept. of Corr., 377 F.3d 1317,
1343-44 (11th Cir. 2004) (citations omitted). Rather, federal courts “have required a state

53
 Accordingly, we conclude that the State 3.850 Court’s refusal to consider

the defendant’s assertion that the trial court’s lock-up statement violated the

Constitution as procedurally barred rested on an independent and adequate state

ground that precludes federal habeas consideration of this issue.25 We also

conclude that the defendant failed to properly exhaust this issue when he failed to

raise it, or an issue sufficiently similar, to the Florida Supreme Court on direct

appeal or in his appeal of the State 3.850 Court’s decision. Consequently, this

claim about the trial court’s lock-up statement is procedurally barred, and we do

not consider it. See, e.g., Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S. Ct.

2546, 2557 n.1 (1991) (“[I]f the petitioner failed to exhaust state remedies and the

court to which the petitioner would be required to present his claims in order to

prisoner to present the state courts with the same claim he urges upon the federal courts.” Picard
v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512 (1971). “While we do not require a verbatim
restatement of the claims brought in state court, we do require that a petitioner presented his
claims to the state court such that a reasonable reader would understand each claim’s particular
legal basis and specific factual foundation.” McNair, 416 F.3d at –, 2005 WL 1634046, at *7
(internal quotation marks and citations omitted). We conclude the substantive claim that the trial
court erred by making the lock-up statement is separate and distinct from an ineffective-
assistance-of-counsel claim based on the failure to object to, or appeal, the trial court’s lock-up
statement. Thus, this claim was not fairly presented to the state courts.
25
This Court has already concluded that the procedural requirements of Florida’s Rule
3.850 constitute independent and adequate state grounds under the applicable law. Whiddon v.
Dugger, 894 F.2d 1266, 1267-68 (11th Cir. 1990).

54
meet the exhaustion requirement would now find the claims procedurally barred . .

. there is a procedural default for purpose of federal habeas . . . .”).26

With regard to the defendant’s second claim, that the districting procedure

in Palm Beach County was unconstitutional, the defendant did not raise this issue

on direct appeal or in his state 3.850 motion. Consequently, the district court

properly determined that this claim was unexhausted and procedurally barred, and

we do not consider it.27 See id.

As for the defendant’s claim that the state’s introduction of shocking and

gruesome photographs violated the Constitution, the State 3.850 Court determined

that the claim was procedurally barred because it could have been raised on direct

appeal. Likewise, the Florida Supreme Court also determined that the claim was

26
AEDPA has slightly altered how federal courts may deal with procedurally defaulted
claims. According to § 2254(b)(1)(A), a federal court is precluded from granting habeas relief
unless “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C.
§ 2254(b)(1)(A) (emphasis added). However, “[a]n application for a writ of habeas corpus may
be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.” Id. at § 2254(b)(2) (emphasis added). While we have the
option to deny the claim on the merits, we also may continue to rest our conclusions on the
procedural bar.
27
We do note that in his state habeas petition, the defendant raised an issue of ineffective
assistance of counsel based on appellate counsel’s failure to raise this districting issue in his 1998
direct appeal. However, the Florida Supreme Court concluded that this ineffective-assistance-of-
counsel issue “has already been decided adversely to the defendant.” LeCroy, 727 So.2d at 241
(citing Nelms v. State, 596 So.2d 441 (Fla. 1992)). As in Nelms, the defendant’s 1986 trial and
1988 direct appeal were concluded before the 1989 ruling regarding the Palm Beach districting
plan in Spencer v. State, 545 So.2d 1352 (Fla. 1989), and, thus, appellate counsel was not
ineffective for failing to anticipate the change in the law. Nelms, 596 So.2d at 442.

55
procedurally barred. Consequently, we conclude that the state court’s decision

rested on independent and adequate state grounds, and that federal habeas relief is

unavailable to the defendant on this issue.

Finally, the defendant asserts that the state engaged in several instances of

prosecutorial misconduct. Both the State 3.850 Court and Florida Supreme Court

(in the appeal from the denial of 3.850 relief) determined that these claims were

procedurally barred because they could have been raised on direct appeal.28 As

with the defendant’s claim regarding the shocking and gruesome photographs, the

state court’s determination rests on independent and adequate state grounds and

habeas relief is, therefore, unavailable.

B. Conviction Issues – Evidentiary Hearing

As noted earlier, the district court did conduct an evidentiary hearing on the

following three guilt-phase issues: (1) ineffective assistance of appellate counsel

on direct appeal; (2) ineffective assistance of trial counsel; and (3) the state’s

violations of the constitutional requirements of Brady and Giglio. The district

28
The State 3.850 Court considered and rejected two of the defendant’s claims of
prosecutorial misconduct on the merits: (1) allegedly transferring government-witness Slora in
exchange for favorable testimony; and (2) giving the witnesses scripts of their expected
testimony. To the extent these issues are not procedurally barred, we conclude that the state
court’s resolution of these issues is not contrary to, or an unreasonable application of, federal
law.

56
court considered the merits of these three claims and concluded that none of these

claims warranted habeas relief.

In this case, the state courts denied the defendant’s ineffective-assistance-

of-counsel claims based solely on the prejudice prong of Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).29 However, after the

evidentiary hearing, the district court denied the defendant’s ineffective-

assistance-of-counsel claims based solely on the performance prong of Strickland.

The district court also concluded that the defendant failed to establish prejudice

from any Brady violations, and failed to show any Giglio violations. These

different conclusions ordinarily warrant different deference.

As for the district court’s conclusions regarding the performance prong of

Strickland, we engage in de novo review and do not defer to the state court

because it did not rule on the performance prong (thus, there is nothing to defer to

as to that sub-issue). However, as to the prejudice prong and the state court’s

ultimate denial of the defendant’s ineffective-assistance-of-counsel claims, we

may grant habeas relief only if the state court’s resolution of these issues was (1)

“contrary to, or involved an unreasonable application of, clearly established

29
Under Strickland, the defendant must establish both that his counsel’s performance was
deficient and that he was prejudiced by his counsel’s deficient performance. Strickland, 466 U.S.
at 687, 104 S. Ct. at 2064.

57
Federal law as determined by the Supreme Court of the United States; or (2) . . .

was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d).

The fact that the district court held an evidentiary hearing may add a

potential wrinkle to AEDPA’s deference. Some courts have concluded that the

fact that a district court holds an evidentiary hearing in accordance with AEDPA

does not alter the federal standard of review; that is, courts are still required to

apply the deference mandated in § 2254(d). See Matheney v. Anderson, 377 F.3d

740, 747 (7th Cir. 2004) (“[O]ur case law is clear in holding that § 2254(d) is

applicable even though the district court held an evidentiary hearing. The

evidence obtained in such a hearing is quite likely to bear on the reasonableness of

the state courts’ adjudication but we do not see why it should alter the standard of

federal review.” (internal quotation marks, citations, and ellipsis omitted)); Valdez

v. Cockrell, 274 F.3d 941, 946-47, 951-52 (5th Cir. 2001) (“Where a district court

elects, in instances not barred by § 2254(e)(2), to hold an evidentiary hearing, the

hearing may assist the district court in ascertaining whether the state court reached

an unreasonable determination under either § 2254(d)(1) or (d)(2). An evidentiary

hearing is not an exercise in futility just because §§ 2254(d) and (e)(1) require

deference.”). On the other hand, some courts have concluded, at least in certain

58
instances, that AEDPA’s requirement of deference to state court determinations is

not applicable when the federal evidentiary hearing reveals new evidence that was

not considered by the state court. See Monroe v. Angelone, 323 F.3d 286, 297 (4th

Cir. 2003) (“AEDPA’s deference requirement does not apply when a claim made

on federal habeas review is premised on Brady material that has surfaced for the

first time during federal proceedings.”); see also Holland v. Jackson, 124 S. Ct.

2736, 2738 (2004); Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir. 1998).30

We need not decide what effect, if any, the federal evidentiary hearing in

this case has on our standard of review because whether we engage in de novo

review or apply the deference mandated in § 2254(d), we conclude that the district

30
The argument as to why § 2254(d) might not apply in certain instances in which a
federal evidentiary hearing is premised in sound practicality. If the federal evidentiary hearing
uncovers new, relevant evidence that impacts upon a petitioner’s claim(s) and was not before the
state court, it is problematic to ascertain how a federal court would defer to the state court’s
determination. That is, the new, relevant evidence was never before the state court so it never
considered the impact of the evidence when denying relief, and there is arguably nothing to defer
to.
In contrast, the argument that a federal evidentiary hearing does not alter the federal
standard of review is as follows. AEDPA places a highly deferential standard of review in
habeas cases and provides that habeas relief “shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings” unless certain conditions are met. 28
U.S.C. § 2254(d). The words “shall” and “any” are powerful words and render AEDPA
applicable to all claims raised in a habeas petition regardless of whether a federal evidentiary
hearing is held. After all, AEDPA itself dictates under what circumstances a federal evidentiary
hearing can be held. See 28 U.S.C. § 2254(e). A petitioner’s habeas claim, even if subject to a
proper federal evidentiary hearing, is still “any” claim for the purposes of § 2254(d)’s highly
deferential standard of review, and the new evidence in the federal proceeding is considered in
determining whether the state court reached an unreasonable determination. Again, we do not
decide, or imply in any way, which approach is correct.

59
court properly denied habeas relief as to the defendant’s guilt-phase claims. In

addition to determining that none of the defendant’s guilt-phase claims warrants

habeas relief, we also conclude that only two of his claims warrant additional

discussion.

C. Ineffective Assistance of Trial Counsel

The defendant claims that his trial counsel was ineffective because he failed

to introduce evidence that would point to Jon LeCroy’s guilt. We first discuss

Strickland’s performance prong.

1. Performance Prong

As noted by the district court, “it appears that [the defendant’s] trial defense

counsel conducted a thorough investigation and analysis of the case and upon his

professional review, he made reasoned, strategic decisions with respect to the

presentation of evidentiary and legal issues to the trial court.” Further, the district

court concluded that the defendant “is really objecting to . . . the trial strategy

employed by trial defense counsel” and “[t]his Court does not elect to second

guess the trial strategy decisions of competent counsel.” Because the state courts

rested their denial of the defendant’s ineffective-assistance-of-counsel claims on

the prejudice prong of Strickland and we owe no deference to the district court on

60
this issue, we first determine de novo whether trial counsel’s performance was

constitutionally ineffective.

During the evidentiary hearing on the defendant’s § 2254 petition, trial

counsel, Eisenberg, described his theory of defense as being an accident or lesser

degree of homicide.31 Eisenberg described the defendant at the time of the

murders as being

startled and I guess, I think, Mr. Hardeman had accidentally shot in Mr.
LeCroy’s direction and, therefore, startled Mr. LeCroy, who
instinctively shot back and it was either an accident or self-defense type
action, and that as to Gail Hardeman, that he had been, he was upset and
he had been confronted by her yelling and screaming and the gun went
off, not to intentionally kill her, and either by accident or a lesser degree
of homicide.

The defendant was charged with the felony murders of John and Gail Hardeman.

If convicted of either of these crimes, the defendant faced the possibility of the

death penalty. However, if the jury determined that the defendant committed only

third-degree murder (no premeditation or intent to rob before the killings), the

defendant would not be eligible for the death penalty.

Defense counsel was by no means inactive or passive during the defendant’s

trial. Rather, counsel filed dozens of motions, and was initially successful in

31
The Assistant State’s Attorney, Barlow, who prosecuted the case against the defendant,
testified that defense counsel used a different defense theory. Specifically, Barlow stated that,
“the underlying defense was Cleo didn’t do it. Maybe Jon did it . . . .”

61
getting the defendant’s confessions and other evidence suppressed by the state

trial court.32 In addition to filing several pre-trial motions, defense counsel

deposed government witnesses and, at trial, extensively cross-examined all but one

of the government witnesses. Defense counsel throughly tested the government’s

case. While defense counsel did not call witnesses as part of the defendant’s case,

this decision provided defense counsel with the final closing argument. See Fla.

R. Crim. P. 3.250.

The defendant asserts that rather than simply putting the government to its

burden of proving the felony murders, defense counsel should have elicited

evidence of Jon LeCroy’s guilt and concurrent prosecution for the same offenses.33

However, this ignores the fact that the trial evidence already made the jury aware

of: (1) Jon LeCroy’s involvement in the search for the Hardemans; and (2) the fact

that it was Jon LeCroy, not the defendant, who ultimately led the authorities to the

Hardemans’ bodies.

32
The fact that the Florida Supreme Court later reversed the state trial court and
determined that the defendant’s confessions and other evidence was admissible does not render
trial counsel’s performance deficient.
33
The defendant claims that counsel was ineffective in a number of ways, including
failing to do the following: (1) discover and use Jon LeCroy’s polygraph results; (2) present
evidence that Jon LeCroy gave police a rifle different from the one he had used the day of the
murders; (3) present a letter Jon LeCroy wrote his attorney asking him if he would get more time
than his brother if convicted; (4) present evidence that the defendant’s parents favored Jon
LeCroy and changed their initial statement to police; and (5) present evidence of improper police
tactics used to coerce statements from Jon LeCroy and his parents.

62
 As for the additional evidence pointing to Jon LeCroy’s involvement, the

State 3.850 Court concluded that there was no basis for admission of such

evidence. The Florida Supreme Court summarily affirmed. See LeCroy, 727

So.2d at 241. For example, the defendant contends that trial counsel was

ineffective for failing to obtain and introduce evidence of Jon LeCroy’s polygraph

results.34

According to Florida law, polygraph results are inadmissable unless both

parties consent. Sochor v. State, 883 So.2d 766, 787 (Fla. 2004); Davis v. State,

461 So.2d 67, 70 (Fla. 1984). If the state had consented, Jon LeCroy’s polygraph

results could have been admitted. However, it is extremely unlikely the state

would have consented to their admission. Consequently, even assuming defense

counsel had access to Jon LeCroy’s polygraph results, his performance was not

deficient.

34
On January 13, 1981, Jon LeCroy took a polygraph examination at the Palm Beach
County Sheriff’s Office. According to the defendant’s state 3.850 motion, Jon LeCroy showed
deception as to the following questions: (1) Were you there when your bother shot those people?;
(2) Did you shoot the man or the woman?; and (3) “Did you see those bodies the day they were
shot?” On June 10, 1981, Jon LeCroy took a second polygraph with the State Public Defender’s
Office in West Palm Beach. According to the results, Jon LeCroy was being truthful when he
stated that he did not shoot John Hardeman, but was being deceptive when he said he did not
shoot Gail Hardeman.

63
 The defendant also points to a letter from Jon LeCroy to his attorney asking

if it was true that he would get more time than the defendant if convicted.35 Given

the clear inadmissibility of such a letter, defense counsel’s performance at trial

was not deficient for failing to seek its admission.36

The defendant further claims that defense counsel should have elicited

testimony from William Ellett that while Ellett and the defendant were on the

phone together, Ellett heard Jon LeCroy in the background demanding that the

defendant get his (Jon LeCroy’s) money for the rifle. The fact is that defense

counsel attempted to introduce such evidence at trial, but the state trial court

excluded such evidence on hearsay grounds. Therefore, defense counsel already

attempted to introduce the very evidence that the defendant now claims that

defense counsel should have attempted to introduce.

In this case, the defendant had not one, but two taped confessions to the

police and had also confessed to his ex-girlfriend. Against this, and other,

overwhelming evidence, defense counsel attempted a two-prong attack. He

attempted to place as much blame on the hands of Jon LeCroy with admissible

35
The State 3.850 Court mistakenly refers to the letter as a letter from Jon LeCroy to his
father.
36
Even if the attorney-client privilege did not apply, the defendant has not asserted any
potential basis for the admission of such a letter.

64
evidence as possible while still maintaining that the killings were accidental, and

not premeditated or the result of a plan to rob the Hardemans. Given the

overwhelming evidence in this case, we cannot fault defense counsel’s trial

strategy.

2. Prejudice Prong

Even assuming defense counsel’s performance was deficient, the state

courts determined that the defendant failed to establish any prejudice. With

respect to this claim, the State 3.850 Court concluded that the defendant had not

shown a reasonable probability that counsel’s performance would have affected

the outcome of the trial. Specifically, the State 3.850 Court concluded that

singularly or cumulatively, the allegations of deficient conduct that are
sufficiently pled, even if taken as true, would not have, within a
reasonable probability, affected the outcome of this case. As noted
previously, the quality and quantity of evidence presented by the State
simply would not have been undermined even if defense counsel had
presented the evidence that Defendant claims he should have presented.
Therefore, this claim is denied.

With respect to the defendant’s claim that his trial counsel was ineffective during

the guilt phase, the Florida Supreme Court again concluded that the State 3.850

Court “properly applied the law. We find no error.” LeCroy, 727 So.2d at 241.

In this case, the defendant had two taped confessions in which he admitted

killing the Hardemans and stealing their firearms. The defendant’s ex-girlfriend

65
also testified that the defendant admitted to killing the Hardemans. Furthermore,

Ellett testified that the defendant sold him John Hardeman’s rifle, and several

witnesses testified that the defendant made statements directly linking him to the

killings. Additionally, Martin placed the defendant with the Hardemans shortly

before hearing a series of gunshots. Physical and circumstantial evidence

corroborated the defendant’s confessions and further established the defendant’s

guilt. Against this mountain of evidence, any attempt to place all or part of the

responsibility on Jon LeCroy would have been ineffectual.

The jury was already aware that Jon LeCroy was the individual who

discovered the bodies, and that Jon LeCroy was also hunting in the area. As

outlined by Barlow during the federal evidentiary hearing, the state’s theory of the

case was that both the defendant and Jon LeCroy were involved in the Hardemans’

deaths.

The jury returned a guilty verdict against the defendant in under three hours.

A few pieces of additional evidence further linking Jon LeCroy to the murders

would not have affected the outcome of the trial. Consequently, the defendant has

not established the requisite prejudice from defense counsel’s performance.

D. Brady

66
 Lastly, we consider the defendant’s claims that the state’s alleged Brady

violations warrant a new trial. Regarding these claims, the defendant points to the

contentious and deteriorating relationship between his defense counsel and the

state during the guilt phase and contends that the state withheld evidentiary

materials. Specifically, the defendant contends that the state failed to disclose

witness scripts, an interoffice memorandum regarding a jailhouse witness, a

Florida Game and Fresh Water Fish Commission report, his medical files, and

exculpatory evidence related to witness David Swanson. As detailed below, none

of the defendant’s Brady claims warrants habeas relief.

As the State 3.850 Court correctly concluded regarding the non-disclosed

evidentiary materials in issue,

[t]he burden is on the Defendant to make at least a prima facie showing
that individually or cumulatively this “evidence” would have, within a
reasonable probability, changed the outcome of his trial. His
speculation and conjecture about what the letters and notes and opinions
and cryptic references may suggest is not sufficient to warrant an
evidentiary hearing, much less relief. The evidence in this case was
overwhelming. The Defendant not only confessed to killing the
Hardemans to the police, but he confessed to Carol Hundley and Roger
Slora. A plethora of physical and circumstantial evidence corroborated
those confessions and further established the Defendant’s guilt. Based
on the wealth of evidence against him, there is no reasonable probability
that his conviction and sentence of death would have been different had
the State disclosed or defense counsel discovered the evidence alleged
by Defendant in this claim.

67
Further, the Florida State Supreme Court concluded that the State 3.850 Court

correctly applied the law and found no error. LeCroy,727 So.2d at 238-39.

The district court also concluded that the defendant had failed to

demonstrate any Brady violation. Specifically, the district court determined that

the defendant “failed to demonstrate any prejudice because he failed to show that

the errors at trial actually and substantially disadvantaged his defense so that he

was denied fundamental fairness and that there is a reasonable probability that the

jury would have returned a different verdict had the evidence . . . been disclosed.”

In this case, the defendant complains that the following constitutes Brady

violations. First, the prosecutor in this case typed out all questions and answers

(in script form) for its witnesses. The government did not turn over these scripts.

During the federal evidentiary hearing, Barlow stated that he gave these typed

“scripts” to the witnesses and then “go[es] over with them those questions to

confirm their answers are, in fact, based on what they have said in depositions,

police statements, accurate. . . . I confirm with them whether that is still accurate,

if there is any change in that, and that’s how I actually prepare for that witness to

testify.” According to the district court, the defendant “failed to demonstrate that

the ‘scripts’ were anything more than mere common witness preparation by the

State.”

68
 Even assuming arguendo that such evidence constitutes Brady material,

there is no allegation that any of the testimony of the government’s witnesses, with

the exception of Slora (discussed below), was false. Furthermore, even if the

scripts could have been used to impeach certain witnesses, the evidence of the

defendant’s guilt, as the state courts have pointed out, was overwhelming in this

case. We readily determine that nothing in the state-court record or in the federal

evidentiary hearing demonstrates that the defendant suffered any prejudice from

the non-disclosed material. Consequently, the defendant is not entitled to habeas

relief on this ground.

Second, the state did not turn over a State Attorney’s inter-office

memorandum that indicated that Slora, the Florida state prisoner who testified at

the defendant’s trial, read the discovery police reports before testifying.37

However, Slora was extensively cross-examined at trial and his credibility was

challenged in several ways. As the state court determined, the defendant failed to

establish any prejudice from the alleged Brady violation. One more piece of

evidence challenging Slora’s already-suspect credibility would not have changed

37
During the federal evidentiary hearing, the State Attorney who wrote the memorandum
explained that she had no personal knowledge concerning whether Slora read the police reports
before testifying, only that it was her opinion that he might have. We assume, but do not decide,
that Slora read the police reports before testifying.

69
the outcome of the defendant’s trial. Consequently, habeas relief is unavailable to

the defendant on this claim.

Third, the state did not turn over a Florida Game and Fresh Water Fish

Commission memo to the Palm Beach County Sheriff’s Office concerning a

statement Tom LeCroy (the defendant’s father) made that he could find the body

of John Hardeman in 15 minutes.38 This is undoubtedly Brady material, and

although the state should have produced the document, the state court correctly

determined that the defendant failed to establish prejudice. Given the wealth of

evidence against the defendant and the lack of evidence regarding Tom LeCroy’s

guilt, it would have been futile to pursue a defense centered around Tom LeCroy’s

guilt. Thus, the defendant is also not entitled to habeas relief on this claim.

Fourth, the defendant claims that he was unaware that the state had medical

and school files relating to him. The medical files contained information that

stated that when the defendant became excited or agitated, he had fainting spells

and alleged memory loss. The medical and school files indicated that the

defendant had a low IQ and was learning disabled.39

38
The district court determined that this was Brady material, but that it would not have
changed the outcome of the case.
39
The district court determined that this Brady claim had to fail because the defendant
could not show that the medical and school records could not have been discovered by trial
counsel using due diligence.

70
 To establish that he suffered a Brady violation, the defendant must prove

that: (1) the government possessed evidence favorable to him; (2) the defendant

did not possess the evidence and could not have obtained it with reasonable

diligence; (3) the government suppressed the favorable evidence; and (4) the

evidence was material. United States v. Meros, 866 F.2d 1304, 1308 (11th Cir.

1989). In this case, defense counsel obviously could have obtained the

defendant’s own medical and school records by exercising reasonable diligence.

Consequently, there is no Brady violation.

Finally, the defendant claims that the state withheld information regarding

Swanson. Swanson was another Florida inmate that the defendant said gave

information to the authorities because he (Swanson) was threatened by the

authorities. However, Swanson never testified at the defendant’s trial. Therefore,

any information that would have impeached Swanson’s credibility is immaterial.

Thus, we conclude that the defendant did not suffer any prejudice from the non-

disclosure of these materials and is not entitled to habeas relief on his Brady

claims.

VIII. Conclusion

Because the defendant’s death sentence has been vacated, we dismiss as

moot his § 2254 petition to the extent it challenges his death sentence. However,

71
in all other respects, and for the reasons stated above, we affirm the district court’s

denial of the defendant’s § 2254 petition.

DISMISSED IN PART and AFFIRMED IN PART.

72