[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
No. 05-16638 ELEVENTH CIRCUIT
March 6, 2007
_____________________________
THOMAS K. KAHN
D. C. Docket Nos. 03-21717 CV-CMA CLERK
03-20688-CV
BURLEY GILLIAM,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS,
Respondent-Appellee.
___________________________
Appeal from the United States District Court
for the Southern District of Florida
____________________________
(March 6, 2007)
Before EDMONDSON, Chief Judge, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Petitioner Burley Gilliam (“Gilliam”) appeals the district court’s denial of
his 28 U.S.C. § 2254 petition challenging his conviction and death sentence.
Gilliam argues that he suffered prejudice in violation of Brady v. Maryland, 83
S.Ct. 1194 (1963), and Strickland v. Washington, 466 U.S. 668 (1984). We affirm
the district court’s denial of the petition.
I. BACKGROUND
In 1985, Gilliam was convicted of the first-degree murder and sexual battery
of Joyce Marlowe (“Marlowe”) and sentenced to death. The Florida Supreme
Court reversed the convictions and sentences on direct appeal and ordered a
retrial. At the retrial, the evidence established that Marlowe was last seen alive on
8 June 1982, in the company of Gilliam, whom she met at the Orange Tree Lounge
where she worked as a dancer. The bar’s manager testified that Marlowe left the
Orange Tree that evening with Gilliam, who had offered to take her to a nearby
restaurant for a meal. The evidence also showed these things:
[On the evening of 8 June, Sandy] Burroughs, fishing on a
lake, heard a woman screaming. When he arrived on shore, he found
a truck (later identified as the one Gilliam was driving) stuck in the
sand, and its driver acting “very very nervous,” but otherwise sober
and normal. The next day Burroughs noticed that the lake area was
roped off, and was told by police that a woman had been raped and
murdered.
[Gilliam] gave several accounts of his activities on the day of
the murder to Detective Merrit, and in so doing stated that he and the
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victim were swimming in the lake and he ducked her under too long;
he attempted resuscitation, but was unsuccessful.
Gilliam v. State, 582 So. 2d 610, 611 (Fla. 1991). The physical evidence and
medical expert testimony, however, showed that Marlowe had been brutally raped
and ultimately strangled to death.
At trial, Gilliam contended that he committed the crimes during an epileptic
seizure. In support of this claim, he presented the testimony of several family
members, who related their observations of his condition and testified about his
abusive childhood. Gilliam also presented the testimony of a mental health expert,
who opined that Gilliam could have committed the crimes during an “epileptic
furor.” Gilliam also testified and claimed that he had no memory of arriving at the
lake or of the events that occurred thereafter.
During Gilliam’s direct examination, defense counsel elicited testimony
about a 1969 rape conviction, which Gilliam characterized as statutory rape for
consensual sex with his minor girlfriend. On cross-examination, the State
challenged Gilliam’s characterization of the earlier rape, asking questions such as
“[Y]ou weren’t dating [the victim], were you?” and “[I]sn’t it true that you
dragged her into a field, you choked her unconscious . . . ?” Gilliam denied that
the prior rape had been violent. In rebuttal, the State called as a witness one of the
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investigating police officers of the prior rape, who testified that he had observed
bruising on victim’s neck and around her eye. The jury ultimately found Gilliam
guilty, rejecting his insanity defense.
The penalty phase commenced after a weekend recess. Gilliam presented
no additional evidence, and the jury recommended death. Then, at the sentencing
hearing -- before the judge only -- Gilliam presented several additional witnesses,
including a psychologist, a pathologist, and several family members. The judge
sentenced Gilliam to death for the murder, finding three aggravating
circumstances: (1) prior violent felony, (2) during the course of a sexual battery,
and (3) heinous, atrocious, and cruel. The court found that these factors
outweighed two nonstatutory mitigating circumstances: (1) Gilliam’s abusive
childhood, and (2) Gilliam’s family’s support and plea for his life.
In 1991, the Florida Supreme Court affirmed the convictions and death
sentence on direct appeal. Gilliam did not petition the United States Supreme
Court for certiorari review, but filed motions for state post-conviction relief in
1993 and 1995. Gilliam claimed, among other things, that (1) the State, in
violation of Brady, suppressed evidence that the victim was a prostitute; (2) to the
extent that defense counsel was aware of such evidence, he was ineffective under
Strickland during the guilt phase for failing to introduce that evidence; (3) defense
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counsel was ineffective for opening the door to evidence about the nature of his
prior conviction; and (4) defense counsel was ineffective during the penalty phase
for failing to present mitigating evidence to the jury, failing to investigate and
present additional competent evidence about his mental health, and failing to make
an effective closing argument. The state post-conviction court denied Gilliam’s
claims.
In 2002, the Florida Supreme Court affirmed the denial of post-conviction
relief and denied Gilliam’s petition for writ of habeas corpus. Gilliam then filed
this petition in the Southern District of Florida in 2003, raising the same
ineffective assistance and Brady claims. The district court denied the petition,
concluding that the state supreme court’s decision was not contrary to or an
unreasonable application of Brady or Strickland. Gilliam now appeals the district
court’s order.
II. STANDARD OF REVIEW
Our review of Gilliam’s habeas petition is limited by the Anti-terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Thus, we may only grant relief
if the state court adjudication
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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted
in a decision that 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 Supreme Court has clarified that the phrase “ ‘clearly
established Federal law . . . .’ refers to the holdings of [the Supreme Court’s]
decisions as of the time of the relevant state-court decisions.” Williams v. Taylor,
529 U.S. 362, 412 (2000).
To be “contrary to” clearly established federal law, the state court must
either (1) apply a rule “that contradicts the governing rule set forth by Supreme
Court case law,” or (2) reach a different result from the Supreme Court “when
faced with materially indistinguishable facts.” Putnam v. Head, 268 F.3d 1223,
1241 (11th Cir. 2003). And, for a writ to issue because the state court made an
“unreasonable determination of the facts,” the petitioner must rebut “the
presumption of correctness [of a state court’s factual findings] by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). Within these limits, we review the
district court’s findings of fact for clear error and questions of law and mixed
questions of law and fact de novo. Maharaj v. Sec’y for Dep’t of Corr., 432 F.3d
1292, 1308 (11th Cir. 2006), cert. denied, 127 S.Ct. 348 (2006).
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III. DISCUSSION
A. Gilliam’s Brady Claim
Gilliam contends that the State, in violation of Brady, suppressed a police
report indicating that Marlowe had a history of prostitution. The district court
determined that Gilliam failed to show that the Florida Supreme Court
unreasonably applied the Brady standard in rejecting this claim. We agree.
In Brady, the Supreme Court wrote that “the suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87. But,
evidence is only material “if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). The state
supreme court could reasonably determine that the police report fails to meet this
standard for three reasons. First, the inadmissibility of the report1 supports the
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As the district court noted, we cannot review the state supreme court’s determination that the
report was inadmissible under Florida evidentiary law “unless it amounts to an egregious,
unsupportable application of state law designed to frustrate [the petitioner’s] Brady claim.”
Breedlove v. Moore, 279 F.3d 952, 964 (11th Cir. 2002). Gilliam has made no such contention here.
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state court’s conclusion that the report is not material. See Wood v. Bartholomew,
516 U.S. 1, 5-6 (1995) (noting that inadmissible polygraph test was not “evidence”
and therefore was not material); Breedlove, 279 F.3d at 964 (upholding FSC’s
denial of Brady claim based on inadmissibility of allegedly suppressed evidence
and noting that “[i]nadmissible evidence could only rarely meet [Brady’s
materiality] standard–indeed no Supreme Court case . . . has found inadmissible
evidence was material for Brady purposes”).
Second, the state court reasonably concluded that evidence of the victim’s
history of prostitution was not important to Gilliam’s insanity defense. Although
the evidence may suggest – as Gilliam argues – that Marlowe accompanied
Gilliam voluntarily on the night of the murder, it does not show that Gilliam
lacked the requisite mental state to commit the crimes for which he was convicted.
Third, the record shows that defense counsel did have a copy of the autopsy report
– which indicated that an investigation had shown the victim to be a prostitute –
and that he attempted, although unsuccessfully, to introduce this fact into evidence
during the trial. That defense counsel’s possession of further evidence of
Marlowe’s prostitution would have affected the outcome of the trial seems
unlikely. The Florida Supreme Court’s rejection of Gilliam’s Brady claim was
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therefore reasonable, and Gilliam is not entitled to federal habeas relief on this
ground.
B. Gilliam’s Ineffective Assistance Claims
Gilliam also raises several claims of ineffective assistance of counsel during
both the guilt and penalty phases of his trial. To satisfy the Strickland standard for
ineffective assistance, a criminal defendant must demonstrate that (1) “counsel’s
representation fell below an objective standard of reasonableness,” and (2) “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Chandler v. United States, 218
F.3d 1305, 1312-13 (11th Cir. 2000) (en banc) (citations and internal quotation
marks omitted).
In satisfying the deficiency element, the defendant must show that his
counsel’s performance was objectively unreasonable -- “that no competent counsel
would have taken the action that his counsel did take.” Id. at 1315. In deciding
whether the defendant has met this burden, courts must “‘indulge [the] strong
presumption’ that counsel's performance was reasonable” Id. at 1314 (quoting
Strickland, 466 U.S. at 689-90). To meet the requisite burden for the prejudice
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element, the defendant must show that “there is a reasonable probability that,
absent the errors, the factfinder would have had a reasonable doubt respecting
guilt . . . [or] would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466 U.S. at 695. We conclude
that Gilliam has failed to show that the Florida Supreme Court’s rejection of his
ineffective assistance claims was contrary to or an unreasonable application of
Strickland.
1. Guilt Phase Claims
Gilliam’s section 2254 petition raises two claims of ineffective assistance
during the guilt phase of his trial. First, Gilliam argues that, to the extent that the
allegedly suppressed police report was available to defense counsel, defense
counsel was ineffective for failing to investigate adequately the victim’s history.
This argument is without merit. As we have said, defense counsel was aware of
evidence indicating that Marlowe was a prostitute and offered evidence of that fact
at trial. In addition, the lack of the additional evidence was not prejudicial.
Second, Gilliam argues that his defense counsel rendered ineffective
assistance by “opening the door” to evidence of his prior rape conviction. The
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state supreme court rejected this claim, concluding that Gilliam failed to show
both substandard performance and prejudice. The district court concluded that
defense counsel’s performance was deficient but upheld the state court’s ruling
based on the lack of prejudice. We question whether the district court correctly
determined that the Florida Supreme Court’s deficient-performance conclusion
was unreasonable. And, although we review not district court opinions, but their
decisions, we are troubled that the district court’s deficiency conclusion seems to
rely in large part on the decision in Rompilla v. Beard, 545 U.S. 374 (2005), a case
decided years after the Florida Supreme Court rendered its pertinent decision.
But, we need not resolve the controversy on the deficiency element because
the Florida Supreme Court – as the district court observed -- reasonably concluded
that Gilliam failed to establish prejudice under Strickland. Gilliam presented an
insanity defense at his trial. The record shows that this defense was sufficiently
compromised by other evidence. The State discredited Gilliam’s expert’s
testimony by calling into question his expert’s expertise and knowledge of the
field of epilepsy and by introducing contradictory expert testimony. The State also
elicited testimony from other witnesses, such as Burroughs, that contradicted
Gilliam’s representations of his condition on the evening of the murder. And,
Gilliam’s defense was further undermined by his initial statements to the police,
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which were inconsistent with his defense at trial. Thus, the state supreme court
reasonably determined that Gilliam failed to show a sufficient probability that the
result of his trial would have been different absent evidence of his prior rape
conviction.
2. Penalty Phase Claims
Gilliam raises three claims of ineffective assistance during the penalty phase
of his trial. First, Gilliam contends that his defense counsel was ineffective for
failing to present mitigating evidence to the jury during the sentencing phase and
for choosing to present such evidence only to the judge. The Florida Supreme
Court determined that defense counsel’s decision did not constitute deficient
performance and that Gilliam had failed to show prejudice. We see no
ureasonable error in this determination.
The Florida Supreme Court could determine that it was reasonable for
defense counsel to rest on the mitigating evidence of Gilliam’s abusive childhood
and mental health and drug problems presented during the guilt phase. See Waters
v. Thomas, 46 F.3d 1506, 1512-13 (11th Cir. 1995) (en banc) (concluding that it
was not unreasonable for counsel to rely on mitigating mental health evidence
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presented during guilt phase). That defense counsel has refused to characterize the
decision as strategic is not dispositive; the record shows that he investigated the
facts, prepared mitigating witnesses, assessed the jury and concluded that they
would be unreceptive to additional evidence, and relied on the judge’s role as final
decisionmaker under Florida law. This conduct was not inconsistent with Florida
law, which provides that the “court has an independent obligation to determine
appropriate punishment.” Lambrix v. Singletary, 520 U.S. 518, 525-26 (1997).
The state court’s rejection of this claim was not unreasonable under Strickland.
In any event, Gilliam has not shown that the Florida Supreme Court erred in
determining that he failed to satisfy the prejudice element. The mitigating
evidence defense counsel presented to the judge was significantly discredited by
the State, did not contradict the aggravating factor evidence presented by the State,
or was cumulative to that presented at trial. Thus, the state supreme court could
properly decide that there was no “reasonable probability” that four more members
of the jury would have elected a life sentence if they had been presented with the
mitigating evidence that was later presented to the judge. Cf. Hardwick v. Crosby,
320 F.3d 1127, 1190-91 (11th Cir. 2003) (finding prejudice where only one more
juror vote needed for life sentence); Cave v. Singletary, 971 F.2d 1513, 1519 (11th
Cir. 1992) (same).
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Second, Gilliam contends that defense counsel failed to investigate and
present additional mitigating evidence of Gilliam’s substance abuse and abusive
childhood, as shown by the additional expert testimony submitted in his state post-
conviction proceedings. The Florida Supreme Court rejected this argument,
finding that much of the proffered testimony was cumulative to that presented at
trial. This decision was not contrary to nor an unreasonable application of
Strickland. Testimony of Gilliam’s drug and alcohol abuse and mental health was
adduced at both the guilt and penalty phases of his trial. The state supreme court
could properly conclude that Gilliam failed to show that, based on the evidence
already known, a reasonable attorney must investigate further. See Alderman v.
Terry, 468 F.3d 775, 792 (2006). That other experts may have been more
persuasive does not mean that counsel’s failure to retain those other experts was
unreasonable. See Waters, 46 F.3d at 1514.
Third, Gilliam argues that defense counsel failed to make an effective
closing argument to the jury at the penalty phase. He specifically contends that
defense counsel made only passing mention of the mitigating circumstances, failed
to address the aggravating factors, and invited the jurors to make a decision based
on their personal feelings. The Florida Supreme Court’s rejection of this
contention is reasonable under Strickland. The Supreme Court has stated that it is
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not unreasonable for counsel to focus on a few points in closing or to forego a
closing argument altogether. Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003). And,
contrary to Gilliam’s assertions, we do not agree that defense counsel’s closing
argument exhibited a “total lack of focus on [the defendant’s] individual character
and record.” Hall v. Washington, 106 F.3d 742, 750 (7th Cir. 1997). Defense
counsel referenced the testimony of Gilliam’s mother and siblings and his
childhood, stating that Gilliam was not a “survivor.” He also pointed out that life
imprisonment would protect society and punish Gilliam.
Based on this analysis, we conclude that the state supreme court’s rejection
of Gilliam’s ineffective assistance claims was reasonably consistent with
Strickland. The district court therefore properly denied Gilliam habeas relief on
those claims.
IV. CONCLUSION
For the foregoing reasons, the district court properly denied Gilliam’s 28
U.S.C. § 2254 petition. The district court’s order is therefore affirmed.
AFFIRMED.
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