Owen v. Secretary for the Department of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 18, 2009
No. 07-14727 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 03-81152-CV-DLG

DUANE E. OWEN,

Petitioner-Appellant,

versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,

Respondents-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 18, 2009)

Before DUBINA, HULL and MARCUS, Circuit Judges.
HULL, Circuit Judge:

In this capital case, Duane E. Owen appeals the district court’s denial of his

28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his convictions

for the murder and sexual battery of Georgianna Worden and his death sentence on

the murder conviction. The certificate of appealability (“COA”) encompasses

fourteen claims that fall into four categories: (1) five ineffective-trial-counsel

claims that the state collateral court found procedurally barred because Owen

refused to proceed at his evidentiary hearing; (2) one ineffective-appellate-counsel

claim that the state collateral court found procedurally barred because it was

insufficiently pled and proven; (3) three other ineffective counsel claims that the

state collateral court found procedurally barred because they were raised and

litigated on state direct appeal; and (4) five claims that the district court denied on

the merits.1 After review and oral argument, we conclude the district court

properly found the first category of claims procedurally barred from federal habeas

review but erred in concluding the next two categories of claims were procedurally

barred from federal habeas review. Nonetheless, we conclude that all of Owen’s

1
Owen was granted a COA on one more claim – that some of the penalty-phase jury
instructions were unconstitutional – but Owen did not brief that claim in this appeal and thus
abandoned it. See Mize v. Hall, 532 F.3d 1184, 1189 n.3 (11th Cir. 2008) (stating that claim for
which § 2254 petitioner was granted COA in district court but which he did not brief on appeal
to this Court was abandoned).

2
claims not procedurally barred lack merit. Thus, we affirm the denial of Owen’s §

2254 petition.

I. BACKGROUND

Before we review the lengthy procedural history, we note a few background

facts. Owen received two separate death sentences, following separate trials, for

murdering two people: Georgianna Worden and Karen Slattery. Owen confessed

to both murders. This petition concerns only the Worden murder. But we detail

the Slattery proceedings because they form the basis for a number of Owen’s

arguments. We outline a global picture of the two parallel proceedings to provide

context for our subsequent discussion.

A. The Crimes

The Worden murder is the subject of this appeal. On the night of May 28,

1984, Georgianna Worden was asleep at her home in Boca Raton, Florida. Owen

v. State, 596 So. 2d 985, 986 (Fla. 1992) (“Owen/Worden I”). Owen broke into

the house, grabbed a knife and a hammer from the kitchen, and went to Worden’s

bedroom. Id. at 990. As Worden lay sleeping, Owen struck her on the head with

the hammer. Id. She awoke screaming and struggling, and Owen struck her four

more times on the head and face. Id. Worden’s “neck was constricted with

sufficient force to break the bones therein,” and “[s]he was sexually assaulted and

3
the walls of her vagina were torn by a foreign object, such as the hammer handle.”

Id. at 990. The evidence suggested Worden lived “for a period of from several

minutes to an hour” after the first blow. Id. The evidence also showed that before

he attacked Worden, Owen “selected the victim, removed his own outer garments

to prevent them from being soiled by blood, placed socks on his hands, broke into

the home, [and] closed and blocked the door” to the room in which Worden’s

school-age children were sleeping. Id. Worden’s children found her body the next

morning. Id. at 986.

Two months earlier, Owen had murdered Slattery in similar fashion. On the

evening of March 24, 1984, fourteen-year-old Karen Slattery was babysitting for a

married couple in Delray Beach, Florida. Owen v. State, 560 So. 2d 207, 209 (Fla.

1990) (“Owen/Slattery I”). Around 10:00 p.m., Owen entered the house by cutting

the screen to the bedroom window. Id. He confronted Slattery, stabbed her

eighteen times, dragged her to the bedroom, and sexually assaulted her. Id.; Owen

v. State, 862 So. 2d 687, 700 (Fla. 2003) (“Owen/Slattery III”). The couple for

whom Slattery was babysitting found her body when they returned home shortly

after midnight. Owen/Slattery I, 560 So. 2d at 209.

B. The Two Confessions

On May 29, 1984, the day Worden’s body was found, Boca Raton police

4
arrested Owen on unrelated burglary charges and outstanding warrants.

Owen/Worden I, 596 So. 2d at 986-87; Owen/Slattery I, 560 So. 2d at 209. Over

the next few weeks, police questioned Owen about a number of crimes.

Owen/Worden I, 596 So. 2d at 986-87; Owen/Slattery I, 560 So. 2d at 209. On

June 21, 1984, Owen confessed to the Worden murder. The Florida Supreme

Court summarized Owen’s interrogation and confession as follows:

During these interrogations, Owen . . . specifically stated that he did
not want a lawyer present but he asked that a certain officer ([Lt.
Mark] Woods) from Delray Beach who knew him from previous
encounters be present for the interrogation. After confessing to
numerous burglaries, sexual batteries, and other lesser crimes, he
refused to talk further to the police about the [Worden] murder and
terminated the interrogation. On June 18, he reinitiated contact with
the police and renewed his spate of confessions. He also corrected
and amplified earlier confessions. On June 21, the Delray Beach
police obtained an inked impression of Owen’s footprints and the
Boca Raton police informed him that, based on fingerprints taken
from the [Worden] crime scene and other evidence, they were
charging him with first-degree murder. After the Boca Raton police
presented their evidence to Owen, he confessed to the [Worden]
burglary, sexual battery, and murder. His account of this crime was
remarkably similar to his earlier confessions to three crimes where he
removed his clothes, committed a burglary, and either choked or
bludgeoned sleeping victims into unconsciousness before committing
sexual battery.

Owen/Slattery I, 560 So. 2d at 209-210. After the Worden confession, the

interrogation continued and Owen confessed later that day to the Slattery murder.

5
Id. at 210.2 In both the Worden and Slattery cases, Owen was indicted for first-

degree murder, sexual battery, and burglary of a dwelling with intent to commit

sexual battery inside.

C. Motion to Suppress and Slattery Trial

In late 1984, Owen’s public defender moved jointly in the Worden and

Slattery cases to suppress all of Owen’s statements to the police. In February

1985, the trial court appointed the law firm of Kohl, Springer, Springer, Mighdoll,

Salnick, and Krischer to represent Owen in the Worden, Slattery, and nine other

cases. Owen later amended his motion to suppress several times.

The trial court denied Owen’s suppression motion. The trial court found that

the police properly arrested Owen; that Owen was properly informed of his

Miranda rights; that Owen was aware of the potential penalties for the crimes of

which he was suspected; that Owen initiated much of the discussion with police;

that police did not physically or psychologically coerce Owen into confessing; and

that Owen’s confessions were freely and voluntarily made.

2
The Florida Supreme Court recounted the Slattery confession:
Immediately after the above confession to the [Worden] murder, the Delray Beach
police interrogated Owen relative to the [Slattery] crime. He first denied any
knowledge of this crime, but confessed after the police confronted him with the
bloody footprint from the crime scene and the inked impression of his foot taken
earlier that day. The details were again remarkably similar to those of the earlier
confessions.
Owen/Slattery I, 560 So. 2d at 210.

6
 After Owen confessed to murdering Worden, the police questioning about

Slattery continued and created legal issues apart from the Worden murder. When

questioned about certain details of the Slattery murder, Owen twice said he would

“rather not talk about it.” The questioning continued as to other details of the

crime and, after a break, Owen ultimately confessed to murdering Slattery.3 The

trial court found Owen never invoked his Miranda right to silence.

After the 1985 evidentiary hearing on the suppression motion, the law firm

representing Owen dissolved and his many cases were divided among the lawyers

formerly in the firm. Owen was tried in the Slattery case first, and Barry Krischer

and Michael Salnick represented Owen. The State introduced Owen’s confession

and other corroborating evidence, including the bloody footprint. Owen was

convicted on all charges. The jury recommended, and the trial judge imposed, a

3
During the Slattery questioning, Officer Lincoln asked Owen to satisfy himself that the
police had enough evidence to convict him, and then to confess, as Owen had done with the
Worden murder. Lincoln began asking Owen about details of the Slattery crime. He asked
Owen, “Were you looking at that particular house or just going through the neighborhood?”
Owen said, “I’d rather not talk about it.” Lincoln responded, “Why? You don’t have to tell me
about the details if you don’t want to[,] if you don’t feel comfortable about that.” The officers
moved to questions about other details of the Slattery crime and Owen’s whereabouts that
evening. Owen continued talking. After Owen answered more questions, the officers began
talking about a bicycle spotted near the murder scene that night, and asked Owen if he had a
bicycle and where he put it. Owen responded, “I don’t want to talk about it.” Lincoln stated, “I
won’t make you tell me something you’re not comfortable in talking about, Duane. But I do
want to know some of the things that shouldn’t hurt you that much to talk about.” Lincoln
switched to another line of inquiry, and the questioning continued. After a break, questioning
resumed, and Owen confessed to murdering Slattery.

7
death sentence for murdering Slattery.

D. Worden Trial and Sentencing

Subsequently, in 1986, Owen was tried in the Worden case. Craig Boudreau

and Donald Kohl represented Owen. The evidence included Owen’s confession,

his fingerprint on a library book in Worden’s home, and other corroborating

evidence. The jury convicted Owen on all charges. Again the jury recommended,

and the trial judge imposed, a death sentence.

The trial judge found four aggravating circumstances: (1) Owen was

previously convicted of a violent felony;4 (2) Owen committed the Worden murder

during a burglary/sexual battery; (3) the murder was especially heinous, atrocious,

or cruel; and (4) the murder was cold, calculated, and premeditated. The trial judge

considered these mitigating factors: (1) Owen’s mother died when he was very

young and his father committed suicide a year later; (2) Owen and his brother were

shuffled from one foster home to another until his brother ran away, abandoning

him; (3) Owen was physically and sexually abused in the foster homes; (4) Owen’s

mind “snapped” during the Worden murder; and (5) Owen enlisted twice in the

Army and aspired to become a policeman.

4
In addition to the Slattery crimes, Owen was convicted of the attempted first-degree
murder of Marilee Manley and the armed burglary of her home.

8
E. Slattery Direct Appeal and Retrial

Before discussing the Worden direct appeal, we review the earlier Slattery

direct appeal. Owen argued, inter alia, that his Slattery confession was

inadmissible because he displayed an unwillingness to talk to police. The Florida

Supreme Court reversed, noting that Owen (after confessing to the Worden murder

but before confessing to the Slattery murder) twice expressed his unwillingness to

talk, though it was unclear whether Owen was referring to the questioning in

general or just particular details about the Slattery murder. Owen/Slattery I, 560

So. 2d at 210-211. The Florida Supreme Court concluded that Owen invoked his

Miranda rights and the officers should have terminated further questioning about

Slattery. Id. at 211. However, after this ruling, the United States Supreme Court, in

Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350 (1994), held that police need

not stop questioning a suspect when the suspect makes an ambiguous or equivocal

statement about wanting an attorney. See id. at 461, 114 S. Ct. at 2356.

The Florida Supreme Court then reconsidered Owen’s Slattery confession.

It concluded that, “contrary to our belief at the time, federal law did not require us

to rule Owen’s confession inadmissible.” State v. Owen, 696 So. 2d 715, 718

(Fla. 1997) (“Owen/Slattery II”). Davis’s principles about equivocal statements

(there, requesting an attorney) applied equally to a suspect’s invocation of the right

9
to remain silent. See id. at 717-18. The Florida Supreme Court determined that

Florida law, the same as federal law, requires an unequivocal statement of a

suspect’s desire that questioning terminate. Id. at 719. Owen’s statements were

equivocal. Id. at 720 & n.8. Thus, this time the Florida Supreme Court found no

Miranda violation, but having already vacated the Slattery convictions, ordered

Owen to be retried. Id. at 720.

Upon retrial in 1999, Owen was again convicted of the Slattery crimes. The

jury recommended, and the trial court imposed, another death sentence. On direct

appeal, the Florida Supreme Court affirmed. Owen/Slattery III, 862 So. 2d at 704.

F. Worden Direct Appeal

In January 1992, the Florida Supreme Court affirmed Owen’s Worden

convictions and sentence. Owen/Worden I, 596 So. 2d at 987-90. The Florida

Supreme Court concluded that: (1) Owen was lawfully arrested; (2) the trial court

properly denied Owen’s motion to suppress his Worden confession; (3) the trial

court properly denied Owen’s motion for judgment of acquittal on the sexual

battery charge because (a) “[w]hether the victim was alive or dead at the time of

sexual union . . . is an issue of fact to be determined by the jury” and (b) substantial

competent evidence supported the jury’s finding; (4) the trial court did not err in

finding that the burglary/sexual battery was an aggravating factor because the jury

10
was entitled to find that Worden was alive during the sexual contact; and (5)

Owen’s argument that the police violated his due process rights by not videotaping

every interview was “totally without merit.” Id. at 987.

The Florida Supreme Court specifically rejected Owen’s psychological-

coercion argument, stating that it “has already been rejected by this Court” in

Owen’s direct appeal in the Slattery case. Id. That appeal concluded the

videotapes showed Owen initiated the interrogation sessions, police repeatedly

advised Owen of his rights to counsel and to remain silent, police did not coerce

Owen, and Owen’s confession was voluntary. Owen/Slattery I, 560 So. 2d at 210.

As to Owen’s Miranda claim, the Florida Supreme Court determined that Owen

“was routinely informed of his rights and voluntarily waived them.”

Owen/Worden I, 596 So. 2d at 987. It noted that Owen’s equivocal statements

regarding not wanting to talk were made after Owen confessed to murdering

Worden and therefore were irrelevant. Id. at 987 n.3.

The Florida Supreme Court also concluded that police did not violate

Owen’s Sixth Amendment right to counsel by interrogating him about the Worden

murder without the lawyer appointed for Owen’s unrelated burglary and warrant

charges. It noted that the right to counsel “is offense-specific: attachment and

invocation of the right on one charge imposes no restrictions on police inquiry

11
concerning other charges against the same defendant.” Id. at 989 (citing McNeil v.

Wisconsin, 501 U.S. 171, 111 S. Ct. 2204 (1991)). Owen’s right to counsel had

attached only as to his initial burglary and outstanding warrant charges – not as to

the Worden murder. The interrogation occurred before Owen’s first appearance on

the Worden charges, and therefore he had no right to counsel then. Id.

G. Worden State 3.850 Collateral Proceedings

Owen filed a Florida Rule of Criminal Procedure 3.850 motion in the state

trial court (the “3.850 court”).5 On November 5, 1997, the 3.850 court held a

hearing, pursuant to Huff v. State, 622 So. 2d 982 (Fla. 1993), to determine which

issues required an evidentiary hearing. At the Huff hearing, the State conceded

that these issues required an evidentiary hearing: (1) whether Owen’s trial counsel

in the Worden case (Boudreau and Kohl) provided ineffective assistance (a) in the

use of mental health experts, (b) in failing to investigate a viable defense, (c) in

failing to investigate and present mitigation evidence, and (d) in failing to raise

5
Florida Rule of Criminal Procedure 3.850 provides, in pertinent part:
The following grounds may be claims for relief from judgment or release from
custody by a person who has been tried and found guilty or has entered a plea of
guilty or nolo contendere before a court established by the laws of Florida:
(1) The judgment was entered or sentence was imposed in violation of the
Constitution or laws of the United States or the State of Florida.
Fla. R. Crim. P. 3.850(a)(1).

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certain issues during trial;6 and (2) whether Krischer (who handled the first Slattery

trial) and Kohl failed to disclose various conflicts of interest. The 3.850 court left

open the opportunity for Owen to present evidence regarding certain additional

claims once Owen’s collateral counsel reviewed the State’s Slattery file.

On December 5, 1997, three days before the 3.850 evidentiary hearing,

Carey Haughwout (Owen’s counsel in the upcoming Slattery retrial) moved to stay

the Worden 3.850 proceedings or, alternatively, to prohibit disclosure of privileged

information. Because the members of one law firm initially were jointly appointed

in 1985 to represent Owen in both the Slattery and Worden cases, Owen claimed

the attorney-client privilege as to the pending Slattery retrial (1) was still in effect,

and (2) extended to the attorneys who represented him in the Worden trial. Owen

argued that litigating the Worden 3.850 motion would force a compelled waiver of

the attorney-client privilege in the Slattery case.

The State opposed a stay but requested that the 3.850 court restrict the

amount of disclosure to protect Owen’s attorney-client privilege. The State

assured the 3.850 court that its questioning of the Worden witnesses would not

involve any matters in the Slattery case. In fact, Boudreau and Kohl represented

Owen in the Worden trial, but separate counsel, Krischer and Salnick, represented

6
See infra note 11.

13
Owen in the first Slattery trial.

The 3.850 court denied Owen’s motion to stay but granted his alternative

request to prohibit disclosures of privileged information. The 3.850 court

prohibited disclosures relating to any of Owen’s non-Worden cases. And it

advised that any questions about confidential matters would be addressed as they

developed. The 3.850 court permitted Haughwout to sit with Owen’s Worden

collateral counsel Pamela Izakowitz7 during the evidentiary hearing to advise on

any potential disclosures.8 Nevertheless, before calling any witnesses, Izakowitz

stated that Owen would not go forward with the Worden evidentiary hearing

except for the limited purpose of showing that the attorney-client privilege in the

Slattery case had not been waived.

The only witness Owen called was Krischer. In his testimony, Krischer

acknowledged that although his former firm was appointed to represent Owen on

all his criminal cases, Krischer had no responsibilities in trying the Worden case.

7
Izakowitz is an attorney with the Office of the Florida Capital Collateral Regional
Counsel.
8
The 3.850 court heard argument on the motion to stay on the morning of the evidentiary
hearing. The parties dispute whether Owen was asking for a stay until after the Slattery retrial
and direct appeal (Owen’s argument) or until after the retrial, direct appeal, and all collateral
proceedings were concluded in the Slattery case (the State’s argument). Because it does not
matter to the result here, we will assume Owen was asking for a stay of the Worden case until
after the Slattery retrial and direct appeal were concluded.

14
Krischer never discussed the Worden case or the details of the Worden murder

with Owen. However, Krischer was one of the attorneys who litigated the

suppression motion that applied to all of Owen’s cases. Because of the pending

Slattery retrial, Krischer refused to answer any questions relating to the

suppression motion, mental health reports, or Owen’s competence.

After Krischer was excused, Owen refused to put on any more witnesses.

This colloquy ensued:

Ms. Izakowitz: In light of the Court’s ruling, and in light of Mr.
Krischer’s testimony today, and in light of the fact
that Mr. Owen feels that his rights are being
chipped away as the witness–each witness who is
going to come up will probably say the same thing,
I don’t feel that I could go forward anymore.
I am not abandoning any claims. I am not waiving
any claims. I do not feel that it is in Mr. Owen’s
best interest to go forward.
The Court: If you are telling me you are not planning to call
any additional witnesses, I am prepared to enter an
order denying Mr. Owen’s 3.850 motion,
Counselor; you realize that?
Ms. Izakowitz: I understand that, Your Honor, I have to do–
The Court: You discussed that with him?
Ms. Izakowitz: I have to preserve Mr. Owen’s rights. And I think,
in light of this Court’s rulings today, in light of
Mr. Krischer and how he testified, yes, I
understand that, Your Honor.
The Court: You have discussed this with Mr. Owen?
Ms. Izakowitz: Yes.
The Court: Mr. Owen, you understand what she is telling me?
The Defendant: Yes; we had discussions.

15
 The Court: You understand what she is telling me; she is
planning not to pursue further your 3.850 motion
at this time. If it is not pursued, it is my intention
to enter an order [denying] that 3.850. That will be
the end of it. And if the Florida Supreme Court
upholds that, that’s the end of the case, 84-4000,
insofar as any appellate rights. You understand
that?
The Defendant: I am not an expert in the law but I have to rely
upon what counsel stated. . . . I understand what
the Court has just said. I don’t understand the
procedure.

The 3.850 court then denied Owen’s Rule 3.850 motion, noting Owen had called

only one witness and had “announc[ed] his intention not to proceed further with

the motion.”

The Florida Supreme Court affirmed the denial of Owen’s Rule 3.850

motion and the denial of his stay motion. See Owen v. State, 773 So. 2d 510

(2000) (“Owen/Worden II”). Because Owen had filed ineffectiveness claims

against his Worden counsel (Boudreau and Kohl), it concluded Owen waived his

attorney-client privilege in the Worden case. Id. at 514. It also determined that

Krischer knew nothing about the Worden trial, that Owen made no effort to proffer

any substantive evidence even though the 3.850 court agreed to bar privileged

information, and that Owen did not make a good faith effort to proceed with the

Worden 3.850 hearing and thereby waived his Worden 3.850 claims:

16
 Although [Owen] . . . invoked the privilege in the Slattery case, he
still was obligated to proceed in good faith in the present case to the
extent that the privilege permitted. He did not do so. In fact, at the
hearing below, he made no effort to introduce substantive evidence
concerning the Worden trial. Instead, he called as his only witness
Barry Krischer, i.e., his former trial counsel in the Slattery case.
Krischer knew virtually nothing about the Worden trial and his
testimony was guaranteed to implicate the privilege, which expressly
applied only to the Slattery case. Further, although the court below
agreed to bar disclosure of privileged information, Owen made no
effort to proffer any substantive evidence that would have been
excluded by the privilege. In short, Owen made no showing of
prejudice. We find no abuse of discretion in the manner in which the
court conducted the hearing.

Id. at 514-15. The Florida Supreme Court found that Owen waived his ineffective-

assistance and conflict-of-interest claims because they “require[d] [factual]

development at an evidentiary hearing, which Owen–by his actions below–opted to

forego.” Id. at 515. It determined that all of Owen’s remaining 3.850 claims were

procedurally barred under state law. Id.

H. Worden Successive 3.850 Motion and State Habeas Petition

Subsequently, Owen filed a pro se successive Rule 3.850 motion that the

3.850 court summarily denied. Owen appealed to the Florida Supreme Court and

also petitioned it for a writ of habeas corpus. See Owen v. Crosby, 854 So. 2d 182,

187 (Fla. 2003) (“Owen/Worden III”).

The Florida Supreme Court affirmed the denial of Owen’s successive 3.850

17
motion and denied his state habeas petition. Id. at 187-88. It determined that

Owen’s appellate counsel was not ineffective for failing to challenge on direct

appeal the admission of Officer McCoy’s statement that if Owen were found not

guilty, “the hurting will start all over again.” Id. at 191. The Florida Supreme

Court noted that “appellate counsel could have reasonably concluded that this issue

had no merit. In light of the record, Owen’s appellate counsel could not have

effectively and convincingly argued against the admissibility of the [McCoy]

testimony.” Id. at 192. It reasoned that McCoy’s comment was similar to Owen’s

statements admitted into evidence, and, when taken in context, did not appear to

imply “guilt or future dangerousness.” Id. Thus, Owen did not prove deficient

performance or prejudice. Id.

The Florida Supreme Court rejected Owen’s habeas claim that his appellate

counsel should have argued the trial judge was biased and should have recused. Id.

Trial counsel’s failure to raise a claim of judicial bias procedurally barred it, and,

in any event, the claim lacked merit. Id.

The Florida Supreme Court also rejected Owen’s argument that his appellate

counsel was ineffective for “failing to cite other authority on the issue of the

voluntariness of his confession” and on whether the evidence demonstrated sexual

battery. Id. at 193 n.15. The Florida Supreme Court stated that it had already

18
addressed the voluntariness and sexual battery/live victim issues on direct appeal

and would “not revisit [them] in the guise of ineffective assistance of appellate

counsel.” Id.

Owen’s habeas petition also argued that the Florida Supreme Court erred by

not appointing conflict-free counsel for his direct appeal. The Florida Supreme

Court rejected this claim as insufficiently pled because Owen failed to identify

specific record evidence showing that the alleged conflict of interest compromised

his interests. Id. at 194.

I. Owen’s § 2254 Petition

After the state collateral proceedings, Owen filed a 28 U.S.C. § 2254 petition

challenging his convictions and death sentence in the Worden case. The district

court denied Owen’s claims as either procedurally barred or lacking merit.

II. STANDARD OF REVIEW

When examining a district court’s denial of a § 2254 petition, we review the

district court’s factual findings for clear error and its legal determinations de novo.

Payne v. Allen, 539 F.3d 1297, 1312 (11th Cir. 2008); McNair v. Campbell, 416

F.3d 1291, 1297 (11th Cir. 2005). Mixed questions of law and fact also merit de

novo review. Payne, 539 F.3d at 1312. Furthermore, “[w]e review de novo

whether a particular claim is procedurally defaulted.” Id.

19
 Owen’s § 2254 petition and appeal are governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.

1214, which greatly circumscribes federal court review of state court decisions.

Id.; Crowe v. Hall, 490 F.3d 840, 844 (11th Cir. 2007), cert. denied, 128 S. Ct.

2053 (2008). AEDPA “establishes a general framework of substantial deference

for reviewing every issue that the state courts have decided.” Crowe, 490 F.3d at

844 (quotation marks and citation omitted). In that regard, a federal court shall not

grant a writ of habeas corpus on behalf of a state prisoner

with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(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). A state prisoner who petitions for a writ of habeas corpus

pursuant to § 2254 must have “exhausted the remedies available in the courts of the

State” unless “there is an absence of available State corrective process” or

“circumstances exist that render such process ineffective to protect [his] rights.”

Id. § 2254(b)(1). A state court’s factual determinations “shall be presumed to be

correct,” and the petitioner has the burden of rebutting this presumption by clear

20
and convincing evidence. Id. § 2254(e)(1).

A state court decision is “contrary to” clearly established federal law when it

arrives at an opposite result from the Supreme Court on a question of law, or when

it arrives at a different result from the Supreme Court on “materially

indistinguishable” facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S. Ct.

1495, 1519-20 (2000). A state court decision unreasonably applies clearly

established federal law when it unreasonably applies the law of the Supreme Court

to the facts of a case. Id. at 408-09, 120 S. Ct. at 1520. “Clearly established

Federal law” means the holdings, not the dicta, of the United States Supreme Court

as of the time of the relevant state court decision. Porter v. Att’y Gen., 552 F.3d

1260, 1267 (11th Cir. 2008).

III. DISCUSSION

This appeal involves fourteen claims, which we earlier divided into four

categories. Because nine of the claims were held procedurally barred, we first

review the procedural-default principles in federal habeas review.

A. Procedural Bar – General Principles

A § 2254 petitioner “who fails to raise his federal claims properly in state

court is procedurally barred from pursuing the same claim[s] in federal court . . . .”

Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999). Such a procedural bar can

21
occur when “the state court correctly applies a procedural default principle of state

law to arrive at the conclusion that the petitioner’s federal claims are barred” in

state court.9 Id. The state law ground must be “independent of the federal question

and adequate to support the judgment.” Jennings v. McDonough, 490 F.3d 1230,

1247-48 (11th Cir. 2007), cert. denied, 128 S. Ct. 1762 (2008). To be “adequate,”

the state rule must be “firmly established and regularly followed.” Payne, 539 F.3d

at 1313 (quotation marks omitted). If “the last state court rendering a judgment in

the case clearly and expressly states” that its judgment denying the petitioner’s

federal claim rests on a state-law procedural bar, then the federal courts must

respect the state court’s decision, and the claim is barred from consideration on

federal habeas review. Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 771 (11th

Cir. 2003) (quotation marks and citations omitted); see Siebert v. Allen, 455 F.3d

1269, 1271 (11th Cir. 2006). When the last state court rendering judgment does

not explain its reasoning, we look through to the last reasoned opinion by a state

court on the claim to determine whether the claim is procedurally barred. Ylst v.

Nunnemaker, 501 U.S. 797, 803-05, 111 S. Ct. 2590, 2594-96 (1991).

9
A procedural default can also arise when “the petitioner fails to raise the [federal] claim
in state court and it is clear from state law that any future attempts at exhaustion would be
futile.” Zeigler v. Crosby, 345 F.3d 1300, 1304 (11th Cir. 2003) (quotation marks and citation
omitted). But that is not the type of procedural bar involved here.

22
 There are, however, two ways in which a federal habeas petitioner can

overcome a procedural bar. A procedural bar precludes federal review unless the

petitioner demonstrates either (1) an adequate cause for and actual prejudice

arising from the default, or (2) “that a miscarriage of justice, caused by a

substantial denial of constitutional rights, will occur” if the petitioner’s federal

claims are not considered. Lynd v. Terry, 470 F.3d 1308, 1313-14 (11th Cir.

2006).10 For purposes of the “cause and prejudice” method of overcoming a

procedural bar, a petitioner shows sufficient cause if he can demonstrate “that

some ‘objective factor external to the defense impeded counsel’s efforts to comply

with the State’s procedural rule.’” Siebert, 455 F.3d at 1272 (quoting Murray v.

Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639 (1986)). External impediments

sufficient to constitute cause “include evidence that could not reasonably have

been discovered in time to comply with the rule; interference by state officials that

made compliance impossible; and ineffective assistance of counsel at a stage where

the petitioner had a right to counsel.” Mize, 532 F.3d at 1190. As to the prejudice

requirement, the petitioner must show “that there is at least a reasonable

probability that the result of the proceeding would have been different had the

10
Owen does not claim he is actually innocent of the Worden murder. The fundamental
miscarriage of justice exception does not apply.

23
constitutional violation not occurred.” Id. (quotation marks and citation omitted).

With these principles in mind, we turn to Owen’s procedurally barred

claims.

B. First Category of Procedurally Barred Claims: Waiver of Evidentiary
Hearing

Owen’s first category of procedurally barred claims alleges ineffective

assistance of trial counsel (1) in Krischer and Kohl having conflicts of interest; (2)

in failing to provide Owen’s mental health experts with information needed for a

proper determination of Owen’s competence to stand trial; (3) in failing to develop

mental health evidence for an insanity defense during the guilt/innocence phase;

(4) in failing to develop mental heath evidence for use as mitigation during the

penalty phase; and (5) for not raising certain errors during trial that were ultimately

raised in Owen’s motion for new trial.11 Because the Florida Supreme Court

affirmed the denial of these five ineffective-trial-counsel claims on the same

procedural-bar ground – Owen’s refusal to proceed in good faith at the 3.850

evidentiary hearing – we refer to them collectively as the “3.850 evidentiary

11
Owen’s new trial motion alleged that (1) the police testified at the suppression hearing
that Owen was arrested on May 30 when he in fact was arrested on May 29, (2) a photo used to
identify Owen was taken after he was arrested rather than before, (3) not all of Owen’s
confessions were videotaped, (4) he was questioned without the presence of counsel, (5) Owen
suffered a head injury in 1982, and (6) the police testified that Owen had been dishonorably
discharged from the United States army when he in fact had been honorably discharged. Owen
contends his trial counsel were ineffective for not challenging these errors during trial.

24
hearing claims.”

The Florida Supreme Court concluded that the 3.850 court acted within its

discretion in denying the 3.850 evidentiary hearing claims because Owen did not

make a good faith effort to proceed at the 3.850 evidentiary hearing and thereby

waived them. Owen/Worden II, 773 So. 2d at 514-15. The state courts’ ruling –

that Owen waived the 3.850 evidentiary hearing claims – constitutes an

independent and adequate state law ground for denial that procedurally bars the

claims from federal habeas review. See Stewart v. Smith, 536 U.S. 856, 858-60,

122 S. Ct. 2578, 2580-81 (2002); Gary v. Hall, 558 F.3d 1229, 1250-53 (11th Cir.

2009).

Owen argues that his procedural default should be excused because he has

shown cause and prejudice. Owen contends he was forced to choose between

maintaining his attorney-client privilege in the upcoming Slattery retrial or

proceeding with his Worden 3.850 evidentiary hearing claims, and this forced

choice deprived him of a fair opportunity to raise his Worden claims in the 3.850

court.12

12
Owen analogizes his situation to that in Simmons v. United States, 390 U.S. 377, 394,
88 S. Ct. 967, 976 (1968), in which the Supreme Court held that “when a defendant testifies in
support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not
thereafter be admitted against him at trial on the issue of guilt unless he makes no objection”
because it is “intolerable that one constitutional right should have to be surrendered in order to
assert another.”

25
 The flaw in Owen’s position is that he never showed a forced choice or an

unavoidable conflict between his right to competent counsel in the Worden case

and his attorney-client privilege in the Slattery case.13 For numerous reasons, the

record fully supports the 3.850 court’s and the Florida Supreme Court’s findings

that Owen failed to proceed in good faith at the 3.850 evidentiary hearing and

thereby waived his 3.850 evidentiary hearing claims.

First, the 3.850 court granted Owen’s motion to prohibit disclosure of any

information that was privileged with respect to any case other than Worden.

Despite having obtained this sought-for relief, Owen refrained from calling the

very witnesses who could have presented information on his Worden claims. Four

of the five 3.850 evidentiary hearing claims alleged ineffective assistance of

counsel during the Worden trial, but Owen never called either of the two trial

attorneys in that case – Boudreau and Kohl.

In fact, Owen could have put on at least some substantive evidence to

support his claims that did not impinge on his attorney-client privilege in the

Slattery case. At a minimum, Owen could have presented testimony as to what

13
For this reason, we express no opinion as to whether, in a properly proven case, a direct,
inescapable conflict between maintaining an ineffective assistance of counsel claim in post-
conviction proceedings and maintaining attorney-client privilege for an upcoming retrial in a
related case will excuse the procedural default arising from waiver of the ineffective assistance
claim.

26
Boudreau and Kohl did in investigating and preparing for trial, and why they did

what they did. For example, Owen could have readily established what medical,

school, and other personal history records they obtained in investigating and

presenting Owen’s defense. Owen also could have called Kohl to show whether

Kohl performed the underlying actions that created the undisclosed conflict of

interest Owen alleged. And the scant record created at the 3.850 hearing suggests

that Owen may have been able to introduce much more. The record shows that the

members of Owen’s attorneys’ former firm compartmentalized the responsibility

for Owen’s respective cases.14 Given that compartmentalization, the firm’s

eventual dissolution, and Krischer’s testimony that (1) he recalled no conversations

with Boudreau or Kohl about Owen’s cases, and (2) the Slattery and Worden cases

“were handled separate and apart from” each other, Owen has not shown Boudreau

and Kohl would not have been able to testify about virtually all the facts

underlying Owen’s 3.850 claims at the evidentiary hearing without implicating the

14
Although Krischer actually used the term “decompartmentalize,” it is clear from
context that he meant the opposite. For instance, Krischer stated, “[The firm] did
decompartmentalize those cases. My responsibility, along with Mr. Salnick, was solely the
homicide involving Karen Slattery.” Krischer went on to testify that he discussed information
about the Slattery case only with Salnick. The members of the firm working on different cases
for Owen did not discuss strategy with each other, and their only discussions with each other
regarding how the cases would be handled was “[i]n terms of responsibilities for work.” Finally,
Krischer testifed, “[W]e really did decompartmentalize this effort and the Worden case was
handled separate and apart from the Karen Slattery case.”

27
attorney-client privilege in the Slattery case.15 Moreover, Krischer admitted that he

knew virtually nothing about the Worden case except what he learned from

newspapers, and that he took pains in dealing with Owen not to discuss Worden.16

In short, Owen refused to call the witnesses who had knowledge needed to prove

his 3.850 evidentiary hearing claims even after testimony established a significant

likelihood that their testimony would not implicate his attorney-client privilege in

the Slattery case.

Second, Owen neglected to elicit non-privileged information in support of

his ineffective assistance claims from the one witness he did call. Although

Krischer had no knowledge of the Worden case, one of Owen’s Worden

15
Owen argues that he could not prove his ineffective assistance claims concerning the
development of mental health evidence because his Worden post-conviction counsel and his
Slattery re-trial counsel employed the same mental health experts and exchanged work product
and privileged information. Even assuming such sharing of resources could constitute a
sufficient impediment “external to the defense” to represent cause to excuse a procedural default,
see Siebert, 455 F.3d at 1272, a dubious proposition given that Owen’s conviction in the Slattery
case was reversed seven years before Owen filed his Third Amended Rule 3.850 motion, Owen
has not demonstrated the requisite prejudice because he has not shown a reasonable probability
the result of the proceeding would have been different.
16
Krischer testified that in preparing for the suppression hearing, he was “pretty careful in
telling [Owen] we don’t want to hear about [Worden]; we just want to talk about Karen
Slattery.” Krischer stated further that “[t]here was no consulting with Mr. Owen with regard to
anything he did on the Worden case.”
On cross-examination by the State about mental health reports on Owen, Krischer
declined to answer, claiming that the sole extent of his responsibility related to the Slattery case.
Krischer reiterated, “I had nothing to do with the defense of Mr. Owen with regard to the
Worden case.”

28
evidentiary hearing claims involved Krischer instead of Owen’s trial counsel in the

Worden case. Owen claimed that Krischer, who handled the suppression motion,

had an undisclosed conflict in the Worden case based on Krischer’s service as a

former prosecutor, during which he nolle prossed a prior burglary case against

Owen. It is difficult to imagine how that created a conflict of interest. But, in any

event, when Owen had Krischer on the stand, he never asked Krischer a single

question about the facts underlying Krischer’s alleged conflict of interest (the State

did so on cross-examination).17

Third, in a colloquy with the 3.850 court during the evidentiary hearing,

Owen’s collateral counsel admitted she did not intend to make any attempt to put

on substantive evidence:

THE COURT: Are you planning to pursue [the Krischer conflict of
interest] issue . . . ?
...
MS. IZAKOWITZ: I believe I can’t pursue anything based on Mr.
Krischer’s statement of the attorney/client privilege.
...
THE COURT: . . . I am prepared to issue an order dismissing your
3.850 if you are telling me you can’t proceed. . . . If you are not ready
to proceed in regard to this – that’s why you called Mr. Krischer as a

17
Krischer testified that he did at some time disclose to Owen the fact that Krischer had
worked in the state attorney’s office and had nolle prossed a burglary case against Owen in 1982.
Krischer testified that Owen never asked him to get off the Worden case because of the conflict,
and that at the time he nolle prossed the case, Krischer had no knowledge of Owen on a personal
level and did not know of any mental health problems that Owen may have had. If anything,
Krischer’s testimony showed Owen’s undisclosed-conflict claim had no merit.

29
 witness.
MS. IZAKOWITZ: I called Mr. Krischer as a witness so that he will
put it on the record so that I am not precluded from coming back
down the road saying that he is – and presenting a full and fair hearing
for Mr. Owen because he is not getting a full and fair trial now. . . . It
was my intent to put the trial attorneys on, ask them about the
privilege. If they are not waiving the privilege then I see that I cannot
go forward because I cannot prove my case.

This statement of intent was consistent with Owen’s collateral counsel’s actions at

the 3.850 evidentiary hearing in basically asking Krischer only about his

willingness to reveal privileged information. It is also consistent with Owen’s

collateral counsel’s representation that any other 3.850 witnesses she would call

would testify similarly. As the Florida Supreme Court stressed, Owen called

Krischer, who served as trial counsel in the Slattery case, and whose testimony

therefore “was guaranteed to implicate the privilege.” Owen/Worden II, 773 So.

2d at 514.

In sum, Owen refused to avail himself of the opportunity to present at least

some evidence at the Worden 3.850 evidentiary hearing. Instead, he took the

position, even after obtaining an order from the 3.850 court protecting privileged

information, that the mere existence of the attorney-client privilege in the Slattery

case absolved him of any need to try and prove anything at the Worden 3.850

hearing. Owen did not present any evidence about the Worden case or show how

30
the Slattery privilege prevented him from presenting any evidence. The state

courts’ finding of waiver is supported by evidence and constitutes an independent

and adequate state procedural ground that precludes federal review.18 We are left

with nothing but speculation and conjecture as to whether cause and prejudice

exist.19 That is not enough to excuse Owen’s procedural default.

Thus, Owen’s 3.850 evidentiary hearing claims are barred from federal

habeas review, and we need go no further. We note, however, that even if these

claims were not procedurally barred, they would fail on the merits for lack of

evidence. Owen did not present evidence on the claims in state court. Having

failed to do so, Owen is not entitled to present evidence in federal court either.

Under § 2254(e)(2), if a habeas applicant “has failed to develop the factual basis of

18
The record belies Owen’s argument that Owen’s waiver of his 3.850 claims was invalid
because he did not fully understand the consequences of his decision not to proceed at the
evidentiary hearing. The 3.850 court directly addressed Owen at the hearing and informed him
that if he did not proceed with the hearing, the court would deny Owen’s 3.850 motion and that
if the denial was upheld on appeal, “that’s the end of the case, 84-4000 [the Worden case],
insofar as any appellate rights.” Owen answered that he did not understand the legal procedure,
but stated, “I understand what the Court has just said.” On this basis, the Florida Supreme Court
found that “collateral counsel and Owen jointly made the strategic decision to end the
evidentiary hearing.” Owen/Worden II, 773 So. 2d at 515. This finding is reasonable and amply
supported by the record.
19
Indeed, Owen was re-tried for Slattery’s murder in 1999, was convicted, and had his
conviction affirmed by the Florida Supreme Court on direct appeal in 2003. The United States
Supreme Court denied Owen’s certiorari petition in 2004. Yet, despite the passage of five years
since Owen’s direct appeal from the Slattery retrial concluded, he still has not come forward
with any specific evidence in support of his Worden claims that the attorney-client privilege in
the Slattery case prevented him from presenting at the 3.850 evidentiary hearing.

31
a claim in State court proceedings, the [federal] court shall not hold an evidentiary

hearing on the claim” except in two limited circumstances not present here. 28

U.S.C. § 2254(e)(2). None of Owen’s 3.850 evidentiary hearing claims rely on “a

new rule of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.” Id. § 2254(e)(2)(A)(i). Nor do

they rely on “a factual predicate that could not have been previously discovered

through the exercise of due diligence.” Id. § 2254(e)(2)(A)(ii). Therefore, Owen

is not entitled to an evidentiary hearing on those claims in federal court.

C. Second Category of Procedurally Barred Claims: Insufficiently Pled
and Proven Conflict-of-Interest Claim

Owen’s second category of claims that the district court denied as

procedurally barred alleges his Worden appellate counsel (Boudreau) was

ineffective because Boudreau had a conflict of interest as he (1) represented Owen

both at trial and on direct appeal, and (2) represented Owen on appeal after Owen

filed a bar complaint against him. In denying Owen’s state habeas petition, the

Florida Supreme Court denied relief on this ineffective-appellate-counsel claim as

insufficiently pled because Owen did not identify any specific evidence in the

record to support it. Owen/Worden III, 854 So. 2d at 193-94.20

20
The Florida Supreme Court stated:
As his final claim, Owen argues that this Court erred by not appointing conflict-free

32
 The State claims that the Florida Supreme Court’s rejection of Owen’s

conflict-of-interest claim is a state procedural-bar ruling, as the district court held

here, and thus this claim is barred from federal habeas review. We disagree and

explain why.

To demonstrate a Sixth Amendment violation based on an attorney conflict

of interest, the Supreme Court requires that a defendant “establish that an actual

conflict of interest adversely affected his lawyer’s performance.” Cuyler v.

Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719 (1980). “[T]he possibility of

conflict is insufficient to impugn a criminal conviction.” Id. This Court has stated

that a conflict-of-interest claimant cannot prevail unless he “can point to specific

instances in the record to suggest an actual conflict or impairment of [his]

counsel for his direct appeal. To establish a claim premised on an alleged conflict
of interest:
[T]he defendant must “establish that an actual conflict of interest
adversely affected his lawyer’s performance.” A lawyer suffers from
an actual conflict of interest when he or she “actively represent[s]
conflicting interests.” To demonstrate an actual conflict, the
defendant must identify specific evidence in the record that suggests
that his or her interests were compromised. A possible, speculative
or merely hypothetical conflict is “insufficient to impugn a criminal
conviction.”
Hunter v. State, 817 So. 2d 786, 791-92 (Fla. 2002) (citations omitted). Here, as the
State points out, Owen fails to identify specific evidence in the record which shows
that his interests were compromised. Owen only states “conflict existed because
appellate counsel could not raise his own ineffectiveness and could not raise the fact
that Owen had filed a bar complaint”; thus, Owen’s claim is insufficiently pled and
relief is therefore denied.
Owen/Worden III, 854 So. 2d at 193-94.

33
interests.” Smith v. White, 815 F.2d 1401, 1404 (11th Cir. 1987).21

The Florida Supreme Court’s virtually identical insistence upon specific

record evidence showing that appellate counsel’s interests were actively

compromised constitutes a ruling on the merits of Owen’s claim. Thus, Owen’s

conflict-of-interest claim is not procedurally barred from federal habeas review.

And as the Florida Supreme Court held, Owen’s claim lacks evidence that his

counsel actually represented conflicting interests. See Owen/Worden III, 854 So.

2d at 193-94. Thus, the Florida Supreme Court’s denial of Owen’s appellate-

counsel conflict-of-interest claim was reasonable and consistent with established

federal law.22 See Smith, 815 F.2d at 1404.

21
The Smith Court stated:
This circuit has adopted a test to distinguish actual from potential conflict:
We will not find an actual conflict of interest unless appellants can
point to specific instances in the record to suggest an actual conflict
or impairment of their interests. Appellants must make a factual
showing of inconsistent interests and must demonstrate that the
attorney made a choice between possible alternative courses of
action, such as eliciting (or failing to elicit) evidence helpful to one
client but harmful to the other. If he did not make such a choice, the
conflict remained hypothetical.
Id. (brackets and ellipsis omitted).
22
We reject Owen’s argument that the Florida Supreme Court’s decision contravenes
Holloway v. Arkansas, 435 U.S. 475, 484, 98 S. Ct. 1173, 1178-79 (1978) (finding Sixth
Amendment violation where single attorney representing three criminal co-defendants informed
the trial court of a “probable risk of a conflict of interest” after each of the defendants decided to
testify and court failed either to appoint separate counsel or to investigate the alleged risk of
conflict). Holloway involved the specific problem, not present here, of an attorney conflict of
interest arising from an ongoing multiple-defendant representation. Furthermore, to the extent
Holloway’s attorney’s motion for appointment of separate counsel lacked factual specificity, the

34
D. Third Category of Procedurally Barred Claims: Already Raised and
Rejected on Direct Appeal

In the 3.850 and state habeas proceedings, the Florida Supreme Court also

denied Owen’s three other ineffective-counsel claims: (1) that trial counsel was

ineffective in litigating Owen’s suppression motion; (2) that appellate counsel was

ineffective in appealing the voluntariness of Owen’s confession; and (3) that

appellate counsel was ineffective for not appealing the denial of Owen’s requested

jury charge that sexual battery requires a live victim. The Florida Supreme Court

determined that Owen’s ineffective-trial-counsel claim as to the suppression

motion was procedurally barred because “this claim was raised and rejected on

direct appeal.” Owen/Worden II, 773 So. 2d at 510. As to the other two claims,

the Florida Supreme Court stated, “This Court addressed the voluntariness issue on

direct appeal and will not revisit that claim in this habeas petition. We also

addressed on direct appeal the sexual battery/live victim issue and will not revisit it

in the guise of ineffective assistance of appellate counsel.” Owen/Worden III, 854

So. 2d at 193 n.15. Thus, the Florida Supreme Court determined that all three

reason was self-evident. As the Supreme Court noted, because of the multiple-defendant
representation, the attorney risked violating his duty of confidentiality to his clients by outlining
his conflict in more detail. Id. at 485, 98 S. Ct. at 1179. Neither factor is present here. Owen’s
claim presents a single-defendant representation with no hint of any risk arising from the
furnishing of details as to the alleged conflicts of interest and resulting prejudice. The Florida
Supreme Court’s rejection of Owen’s appellate-counsel conflict-of-interest claim is not
inconsistent with Holloway.

35
collateral claims were barred by Florida law, which prohibits claims that were

rejected on the merits on direct appeal from being re-litigated on collateral review

in the form of ineffective assistance of counsel. See Franqui v. State, 965 So. 2d

22, 33 (Fla. 2007), cert. denied, 128 S. Ct. 2443 (2008); Harvey v. Dugger, 656 So.

2d 1253, 1256 (Fla. 1995).

Based on the state court’s ruling, the district court held these claims were

procedurally barred from federal habeas review. But that is wrong too. The

United States Supreme Court recently has made clear that when a state court denies

collateral review on the ground that the claim was already decided on direct appeal,

that state ruling does not bar federal review:

When a state court declines to review the merits of a
petitioner’s claim on the ground that it has done so already, it creates
no bar to federal habeas review. . . . When a state court refuses to
readjudicate a claim on the ground that it has been previously
determined, the court’s decision does not indicate that the claim has
been procedurally defaulted. To the contrary, it provides strong
evidence that the claim has already been given full consideration by
the state courts and thus is ripe for federal adjudication.
A claim is procedurally barred when it has not been fairly
presented to the state courts for their initial consideration – not when
the claim has been presented more than once.

Cone v. Bell, 556 U.S. –, – S. Ct. –, 2009 WL 1118709, at *10-11 (Apr. 28, 2009)

(citation omitted); accord LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237,

1260 (11th Cir. 2005) (discussing claim held procedurally barred on state collateral

36
review because “it either was or could have been raised on direct appeal,” and

stating that if 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” (quotation marks and

brackets omitted)); Smith v. Dugger, 840 F.2d 787, 791 (11th Cir. 1988) (same).23

In sum, Owen’s claims of ineffective trial and appellate counsel as to his

confession, and ineffective appellate counsel as to the sexual-battery jury charge,

are not barred from federal habeas review. Moreover, as shown below, the

underlying substantive claims on those issues lack merit.24 Thus, any deficiencies

of counsel in failing to raise or adequately pursue them cannot constitute

ineffective assistance of counsel.25 See Shere v. Sec’y, Fla. Dep’t of Corr., 537

23
We have recently muddied the waters in this area. See Wellons v. Hall, 554 F.3d 923,
936 & n.6 (11th Cir. 2009) (concluding that claim raised and rejected on merits on direct appeal,
then re-raised in state habeas and rejected there on res judicata grounds, was procedurally barred
from federal habeas review). Wellons’s conclusion as to procedural bar conflicts with our earlier
precedent in LeCroy and Smith, though, and does not bind us. See United States v. Ohayon, 483
F.3d 1281, 1289 (11th Cir. 2007) (“When a decision of this Court conflicts with an earlier
decision that has not been overturned en banc, we are bound by the earlier decision.”). In any
event, the Supreme Court’s pronouncement in Cone overrules that part of the Wellons decision.
24
As to sexual battery, Owen’s counsel did not appeal the trial court’s refusal to charge
the jury that it had to find beyond a reasonable doubt that Worden was alive at the time of sexual
penetration (that failure forms the basis for Owen’s ineffective assistance claim), but Owen’s
appellate counsel did make the related argument that the sexual battery conviction should be
reversed because the evidence did not show Worden was alive. We consider the interrelation of
the two arguments below when we discuss Owen’s substantive sexual-battery claim.
25
We review Owen’s ineffective assistance of counsel claims under the two-prong test in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To show ineffective assistance

37
F.3d 1304, 1311 (11th Cir. 2008) (agreeing that “appellate counsel is not

ineffective for failing to raise a meritless issue on appeal”); Ladd v. Jones, 864

F.2d 108, 110 (11th Cir. 1989) (“[S]ince these claims were meritless, it was clearly

not ineffective for counsel not to pursue them.”).

E. Five Claims Considered on the Merits

1. Denial of Motion to Suppress

Owen claims the trial court violated his Fourth, Fifth, Sixth, Eighth, and

Fourteenth Amendment rights by denying his motion to suppress his confession.

Owen argues the court should have suppressed his confession because (1) the

police detained and later arrested him without reasonable suspicion; (2) the police

interrogation was psychologically coercive; (3) Owen invoked his right to remain

silent; and (4) the State failed to provide him with counsel during the interrogation.

On direct appeal, the Florida Supreme Court rejected the first three

arguments as follows:

Owen’s next claim, that police lacked sufficient grounds for stopping
and arresting him, is without merit. He was stopped and arrested
based on outstanding warrants and photographic identifications made
by two burglary victims. Owen’s assertion that his statements to
police were obtained through psychological coercion has already been

under Strickland, Owen must show (1) “that counsel’s representation fell below an objective
standard of reasonableness”; and (2) “that the deficient performance prejudiced the defense.” Id.
at 687-88, 104 S. Ct. at 2064.

38
 rejected by this Court.[26 ] His claim that his confession was obtained
in violation of the rules established in Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), is without merit. He was
routinely informed of his rights and voluntarily waived them.

Owen/Worden I, 596 So. 2d at 987 (citations omitted). As to Owen’s right-to-

counsel argument, the Florida Supreme Court pointed out that Owen had received

counsel the day after his arrest only on his burglary charges, not for the Worden

case. Id. The Florida Supreme Court then noted that the right to counsel attaches

when “judicial criminal proceedings” commence, and “is offense-specific.” Id. at

987-89. Thus, the Florida Supreme Court reasoned that the attachment of Owen’s

right to counsel on the burglary charge and warrants did not invalidate his

questioning on the unrelated Worden and Slattery murders:

In the present case, although Owen’s right to counsel had attached and
been invoked on the initial burglary charge and outstanding warrants
by the time of his first appearance on those offenses, this fact is

26
Here, the Florida Supreme Court cited its discussion of the psychological coercion issue
in Owen/Slattery I, where it stated:
Owen’s more serious argument is that he was psychologically coerced into
confessing by extended interrogation sessions, feigned empathy, flattery, and lengthy
discourse by the police. These interrogations sessions were videotaped and we have,
as [had] the trial judge, the benefit of actually viewing and hearing them. It is clear
from these tapes that the sessions were initiated by Owen, who was repeatedly
advised of his rights to counsel and to remain silent. Moreover, he acknowledged
on the tapes that he was completely familiar with his Miranda rights and knew them
as well as the police officers. It is also clear that the sessions, which encompassed
six days, were not individually lengthy and that Owen was given refreshments, food,
and breaks during the sessions. The tapes show that the confession was entirely
voluntary under the fifth amendment and that no improper coercion was employed.
Owen/Slattery I, 560 So. 2d at 210.

39
 unrelated to his rights concerning the Worden murder. His rights on
the murder charge attached when he attended first appearance on that
offense. Because the questioning session during which he confessed
took place prior to this first appearance, Owen had no Sixth
Amendment right to counsel at that time. Thus, no Sixth Amendment
right was violated.

Id.

Owen has not shown that the Florida Supreme Court’s adjudication of his

suppression claims “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 Untied States,” or that it “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).

With respect to reasonable suspicion, the evidence amply supports the state

court’s findings that Owen was identified in a photographic lineup by two burglary

victims and was stopped and arrested based on those identifications and multiple

outstanding warrants for failure to appear.27 Moreover, the Florida Supreme

27
At the suppression hearing, Sergeant John Brady of the Boca Raton Police Department
testified that on May 29, 1984, two individuals independently picked Owen out of photographic
lineups as the man who burglarized, or attempted to burglarize, their homes. Once Owen was
identified in the photographic lineups, Boca Raton police officers began looking for Owen.
Brady also testified that there were outstanding failure-to-appear warrants for Owen’s arrest.
Kathleen Petracco, the officer who arrested Owen, testified that on the morning of May
30, 1984, Officer McCoy gave her Owen’s picture and physical description and told her Owen
was being sought on outstanding warrants and as a suspect in two burglaries. Petracco went to
look for Owen, and that afternoon she spotted a man who fit Owen’s description walking beside

40
Court’s conclusion that Owen was detained on reasonable suspicion and arrested

based on probable cause is consistent with clearly established federal law. See,

e.g., Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 186, 124 S. Ct. 2451,

2458 (2004); Maryland v. Pringle, 540 U.S. 366, 370-72, 124 S. Ct. 795, 799-801

(2003).

With respect to psychological coercion and the right to remain silent, Owen

has failed to show that the Florida Supreme Court’s findings – that his confession

was freely and voluntarily given – were unreasonable or contrary to federal law.

The record demonstrates that Owen was repeatedly informed of his rights and

repeatedly waived them, that the interrogating officers told him they could make

no binding promises, and that Owen himself initiated discussions with the officers

on certain occasions.28 In fact, the record suggests that Owen saw the questioning

as a game between the officers and himself, in which Owen would tease the

a city street. Petracco radioed for McCoy to come, then stopped the man, asked him for his
name and identification, and compared him to the picture. Petracco said the man she stopped
“looked identical” to the man in the picture. Petracco and McCoy arrested the man, who was
Owen (though he gave the officers false identification and a fake name), and took him into
custody based on (1) the similarity between his appearance and the photograph of Owen, and (2)
his statement that he used to live on Coventry Street, where McCoy knew Owen used to live.
28
We reject Owen’s argument that his counsel was ineffective for not citing Blackburn v.
Alabama, 361 U.S. 199, 80 S. Ct. 274 (1960). In Blackburn, the Supreme Court concluded that a
robbery suspect’s confession was involuntary, under the totality of the circumstances, where,
among other things, the medical evidence “indisputably establishe[d] the strongest possibility
that [the suspect] was insane and incompetent at the time he allegedly confessed.” Id. at 206-08,
80 S. Ct. at 279-81. Blackburn is clearly distinguishable.

41
officers with a few details, but withhold his confession until the police

demonstrated they could prove each charge against him.29

Finally, the Florida Supreme Court’s determination that Owen’s right to

counsel did not attach in the Worden case until after he confessed is consistent

with, and a reasonable application of, federal law. See McNeil v. Wisconsin, 501

U.S. 171, 175, 111 S. Ct. 2204, 2207 (1991) (stating that the Sixth Amendment

right to counsel is “offense-specific” and does not attach for a particular offense

“until a prosecution is commenced, that is, at or after the initiation of adversary

judicial criminal proceedings – whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment” (quotation marks omitted)).

Owen admits that no charges had been filed against him regarding Worden’s

murder at the time he was questioned about, and confessed to, killing Worden.

Nevertheless, Owen contends that his right to counsel had attached with respect to

the Worden case because the day after his arrest (three weeks before his June 21

29
For instance, on several occasions Owen recited poems to the interrogating officers that
either suggested his complicity in the murders or set forth the rules of the “game” he had
established with the officers. During his questioning on June 18, 1984, Owen stated, “Roses are
red, Pigs are blue, Start counting victims, There will be quite a few.” On June 21, 1984, when
the officers referred to this poem and asked Owen how many “victims [were] out there,” Owen
recited another poem, “Roses are red, yellow, white and pink; to play my game, you have to
think.” Later that day, after Owen confessed to the Worden murder, he was asked, “Is that what
it took to get you to tell them about it is to have them prove that you were had?” Owen replied,
“Once I see it on paper, you know.”

42
confession), Owen appeared in court to answer for the unrelated burglary charges

and warrants on which he was arrested and the court set a $100,000 bond on the

representation of an FBI agent that Owen was a suspect in the Worden and Slattery

murder cases.

Owen’s contention is groundless. In McNeil, the Supreme Court noted that

the purpose of the Sixth Amendment right to counsel “is to protect the unaided

layman at critical confrontations with his expert adversary, the government, after

the adverse positions of government and defendant have solidified with respect to a

particular alleged crime.” Id. at 177-78, 111 S. Ct. at 2208-09 (quotation marks

omitted). The Florida Supreme Court reasonably applied this federal precedent in

concluding that Owen’s right to counsel had not attached with respect to the

Worden murder simply because Owen had a right to counsel in his unrelated

burglary cases and was a suspect in the Worden and Slattery murders.

2. Sufficiency of Evidence to Support Sexual Battery Conviction

Owen claims there was no substantial evidence to support his sexual battery

conviction because the evidence uniformly demonstrated that Worden was not

alive at the time of sexual penetration. See Jones v. State, 569 So. 2d 1234, 1237

(Fla. 1990) (“[A] victim of sexual battery must have been alive at the time of the

assault to support the elements of this crime.”). The Florida Supreme Court

43
disagreed, stating that “[w]hether the victim was alive or dead at the time of sexual

union . . . is an issue of fact to be determined by the jury,” and finding that

“[c]ompetent substantial evidence supports [the jury’s] finding [that Worden was

alive].” Owen/Worden I, 596 So. 2d at 987.

Owen has not demonstrated an entitlement to relief on this claim either. The

“critical inquiry” for § 2254 challenges to the sufficiency of the evidence

supporting a state conviction “is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979). Owen has not shown that

the Florida Supreme Court’s analysis was contrary to, or an unreasonable

application of, Jackson.

At trial, the jury heard testimony from Palm Beach County Medical

Examiner Dr. James Benz, who autopsied Worden’s body. Semen was found in

Worden’s vagina, indicating sexual intercourse occurred. Dr. Benz testified that

Worden suffered injuries to three parts of her body: (1) she received five blows to

her head from a blunt object, such as a hammer; (2) she suffered compression

injuries to her neck consistent with being strangled by someone’s glove- or sock-

covered hands; and (3) her vagina had two several-inch-long lacerations consistent

44
with penetration by a blunt object such as the handle of a hammer.

According to Dr. Benz, the physical evidence suggested Worden received

the head injuries first. Although the blows to the head caused Worden’s death, Dr.

Benz stated that they were not immediately fatal, as Worden lived long enough

afterward to breathe blood into her lungs and to suffer heart failure.30 Dr. Benz

refused to testify that Worden was dead when she received the vaginal injuries, and

stated that (1) a small amount of hemorrhaging was present at the site of the

vaginal lacerations, and (2) bleeding could not occur after death.

Moreover, in Owen’s videotaped confession, which was played for the jury,

Owen said that he went to Worden’s house to rape her, and he did. Although his

original plan was to awaken Worden and gain her silence by telling her other men

were holding her children hostage, he opted instead to beat her unconscious with

the hammer before he raped her.31 Owen did not say when he inflicted the injuries

30
Dr. Benz testified:
Q All right, sir, now, as a result of your autopsy, would you indicate, Doctor,
whether the evidence reflected that Georgianna Worden was alive during all
of the five distinct blows?
A Yes. This person did not die immediately. That was readily evident by the
fact that there was a time lapse where she went into heart failure. She had
accumulated fluid in the lungs. She ha[d] aspirated blood into her lungs,
which shows that she was alive for a while after these blows were inflicted.

31
Owen stated:
I just figured I’d just go up there and rape her, you know, and I went over by her so
I figured, hell, once she gets up, you know, I was going to say, just tap her on the

45
to Worden’s neck and vagina.

From the above testimony, a rational jury could have concluded beyond a

reasonable doubt that Owen was guilty of sexual battery under Florida law. The

Florida Supreme Court’s conclusion that competent substantial evidence supported

a determination that Worden was alive at the time of the sexual penetration was

reasonable and consistent with established federal law.

Furthermore, Owen’s related claim of ineffective counsel for failure to

appeal the trial court’s denial of Owen’s requested sexual battery charge fails on

the merits. Owen argues he was prejudiced because the trial court did not

expressly charge the jury that it was required to find beyond a reasonable doubt

that Worden was alive at the time of sexual penetration. The trial court charged the

jury:

[B]efore you can find the Defendant guilty of sexual battery, the State
must prove the following four elements beyond a reasonable doubt:
One, Georgian[n]a Worden was over the age of eleven years; Two,
Duane Owen, with his sexual organ or with a blunt instrument, or
both, penetrated the vagina of Georgian[n]a Worden; Three, Duane
Owen, in the process, used or threatened to use, a deadly weapon, or
used actual, physical force likely to cause serious personal injury;

shoulder, and say, there’s other guys in the other room that got your daughter, or
something; that way she wouldn’t scream.
Instead, I figured, well, hell, maybe I’ll just hit her once, and then that way she’ll get
knocked out. So I did.
Worden screamed and tried to rise after Owen hit her the first time, so he hit her several more
times to knock her unconscious.

46
 Four, the act was done without the consent of Georgian[n]a Worden.
A weapon is a deadly weapon if it is used or threatened to be used in a
way likely to produce death or great bodily harm.

The charge, as a whole, contemplates Worden was alive, in that it requires the State

to prove Worden was over eleven years old and did not give consent, two factors

that have little meaning except where the victim is a living human being.

In any event, Owen has not shown the jury’s decision likely would have

been different with the requested charge. See Porter v. Att’y Gen., 552 F.3d 1260,

1269 (11th Cir. 2008) (“In assessing prejudice, the reviewing court . . . [asks] if the

defendant has met the burden of showing that the decision reached would

reasonably likely have been different absent the errors.”). Substantial competent

evidence supports the sexual battery conviction. Further, the sexual battery

conviction was not needed to support any of the aggravating factors found to exist

in the penalty phase.32 Owen has not carried his burden to establish prejudice from

32
The state trial judge found four statutory aggravating factors: (1) Owen was previously
convicted of another capital felony or violent felony; (2) Owen murdered Worden while
committing or attempting to commit a burglary or sexual battery; (3) the murder was especially
heinous, atrocious, or cruel; and (4) the murder was committed in a cold, calculated, and
premeditated manner. The Worden sexual battery was irrelevant to the first factor. As to the
second factor, the state trial judge acknowledged Owen’s argument that Worden was dead at the
time of sexual penetration, and stated that although there was sufficient evidence that Worden
was alive, Owen’s conduct would still constitute attempt and thereby establish the factor. We
note that the burglary, which Owen does not challenge, establishes the second factor as well. As
to the other two aggravating factors, even if Worden had died before Owen managed to
accomplish the sexual battery, this fact would not negate the cruel and heinous nature or cold
and calculated manner of Owen’s crime.

47
his appellate counsel’s failure to raise the sexual-battery-charge issue. Thus, his

claim fails.

3. Brady Violation

Owen claims the State committed a Brady violation by withholding from

defense counsel a copy of the handwritten notes of mental health therapist Linda

Burkholder.33 Owen alleges that in 1983, pursuant to a Michigan court order, he

underwent several months of therapy with Burkholder. During the therapy

sessions, Burkholder made notes on a steno pad. When Owen was arrested in Boca

Raton in May 1984, Owen allegedly told McCoy about the sessions, and McCoy

allegedly told Owen that the FBI had possession of Burkholder’s notes at the time

and that McCoy had made arrangements to get the therapy records from the FBI.

During discovery in the Worden case, the State provided Owen only with the

admission sheets from the Burkholder therapy sessions, not the steno notes.

Owen raised the Brady claim in his pro se Rule 3.850 motion. The 3.850

33
Pursuant to Brady, a State may not suppress evidence “favorable to an accused . . .
where the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948
(1999) (quoting Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97). Evidence is considered “material”
for Brady purposes “if there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.” Id. (quotation marks and
citation omitted). The duty extends to impeachment evidence as well as exculpatory evidence.
Id. To establish a Brady violation, a defendant must show that the government possessed the
information and that the defendant did not possess it and could not, through reasonable
diligence, have obtained it. Davis v. Terry, 465 F.3d 1249, 1254 (11th Cir. 2006).

48
court denied the claim, and the Florida Supreme Court affirmed. Owen/Worden

III, 854 So. 2d at 187-88. Specifically, the Florida Supreme Court found the claim

to be insufficiently pled because Owen did not allege (1) when he obtained the

allegedly withheld information, or (2) that the State possessed the material. Id.

Owen is not entitled to relief on this claim because the Florida Supreme

Court reasonably concluded that Owen failed to establish that the State possessed

Burkholder’s notes. Owen alleged only that the FBI had Burkholder’s notes and

the State did not produce them; he never demonstrated that the State had the notes,

or that the State and the FBI had sufficiently pooled their resources such that the

information in the FBI’s possession could be imputed to the State. See United

States v. Antone, 603 F.2d 566, 569-71 (5th Cir. 1979) (concluding that where

federal and state authorities cooperate sufficiently extensively in investigating and

prosecuting a defendant, the knowledge of one group can be imputed to the other

because the state and federal agents were “in a real sense members of the [same]

prosecutorial team”).34 Indeed, we have unearthed nothing in the record that

suggests either that the FBI had substantial involvement in the Worden case, or that

34
Fifth Circuit decisions issued before October 1, 1981 are binding precedent in this
Court. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

49
the State ever had access to, or knowledge of, Burkholder’s steno notes.35

4. Admission of Prejudicial Statement

Owen’s next claim asserts ineffective appellate counsel for not appealing the

admission of an allegedly prejudicial statement made by Officer McCoy during the

Worden trial. During McCoy’s testimony about Owen’s interrogation, the State

asked McCoy whether Owen ever revealed if he intended to go to trial for the

Worden murder, and McCoy gave an extended narrative response:

Q . . . [D]id there come a point in time when Mr. Owen indicated
his intent as to what he would do in relation to proceeding to
trial?
A Yes. He – after this line of conversation he said to me, “Well, I
am going to go to trial, anyway,” he says, “and fight this,
because I have nothing to lose by going to trial.”
So following this up, I asked him, “What do you think the
verdict will be?”
To which Mr. Owen replied, “Guilty.”
...
I went one step further and I asked him, I says, “Well, suppose
you were found not guilty.” I says, “Who would be the winner then?”
Mr. Owen said, “No one would be the winner.”
And I said, “Then the hurting will start all over again.”
And Mr. Owen was nodding his head in the affirmative.

35
Because the Florida Supreme Court found Owen’s Brady claim was insufficiently pled,
it did not reach the materiality issue. Neither Owen nor the State seem able to articulate
precisely what information the Burkholder notes contain. However, because Owen cannot
demonstrate that the Florida Supreme Court misapplied federal law or made an unreasonable
factual finding as to the State-possession element, we need not discuss whether the Burkholder
notes constitute material evidence or, further, whether they were obtainable by Owen through
reasonable diligence.

50
Worden counsel Boudreau moved to strike McCoy’s statement and for a mistrial.

Boudreau argued that McCoy’s “hurting will start all over again” comment was

prejudicial because it implied “a propensity to commit crimes and kill people.”

The trial court denied the motions.

On direct appeal, Boudreau did not challenge the trial court’s denial of the

motions arising from McCoy’s statement. In his state habeas petition, Owen

alleged that Boudreau’s failure to raise the issue was ineffective assistance of

appellate counsel. Denying the habeas claim, the Florida Supreme Court

concluded that (1) Owen’s appellate counsel “could not have effectively and

convincingly argued against the admissibility of” McCoy’s statement; (2) McCoy’s

statement did not imply guilt or future dangerousness, as Boudreau argued at trial;

and (3) “in fact, McCoy never referred to Owen hurting or continuing to hurt other

people.” Owen/Worden III, 854 So. 2d at 191-92. Thus, Boudreau’s failure to

raise the issue on appeal was not deficient performance. Id. Further, Owen has not

shown prejudice from the failure to raise the claim because the jury heard Owen

make similar statements when it viewed Owen’s videotaped confession.

Owen contends the Florida Supreme Court unreasonably applied the

Strickland test and that its decision rested on factual findings that were

unreasonable in light of the evidence. We disagree. When considered in context

51
with the other discussions that occurred during Owen’s interrogation, McCoy’s

vague statement about “the hurting” starting all over again if Owen were acquitted

could be reasonably interpreted to refer to emotional harm that Owen himself

would suffer unless he confessed and accepted responsibility.36 Thus, we cannot

say that the Florida Supreme Court unreasonably concluded that Owen’s appellate

counsel’s decision not to appeal the admission of McCoy’s statement fell within

the wide range of professionally competent assistance. Moreover, other statements

by Owen in his confession were similar to McCoy’s “hurting” statement. Thus, the

Florida Supreme Court’s conclusion that there was no reasonable likelihood that

Owen’s convictions or sentence would have been different absent the failure to

appeal the admission of McCoy’s statement was also a reasonable application of

federal law.

5. Trial Court Bias

In his final claim, Owen contends his appellate counsel was ineffective for

not appealing the trial judge’s alleged bias. Owen’s judicial bias allegations arise

from a series of questions the trial judge posed at the suppression hearing.

36
For instance, during the interrogation McCoy told Owen, “The confession part helps
Duane because he’s got to get it off him. . . . [I]t’s going to help you, man. I know. . . . I see the
hurt in your eyes. . . . That is why I can tell you, yeah, that’s going to make you feel better.”
McCoy also told Owen, “I can see the hurt, okay. . . . I’m trying to tell you, okay, to help
yourself. To get it out. Get it off. Get rid of it. Get rid of it. Before it eats you up, man,
because it’s doing a hell of a number on you right now.”

52
 Owen’s suppression motion was an omnibus motion covering ten criminal

cases then pending against Owen, including the Worden and Slattery cases. At the

hearing, the trial judge asked the state attorney, with respect to each individual case

covered by the suppression motion, whether “granting the Motion to Suppress

[would] prevent the State from going forward with regard to that case at this time.”

The trial judge stated that whether the State would proceed would “not be a

consideration with regard to the resolution” of the suppression motion.37

Owen’s trial attorneys did not object to the trial judge’s questions. Nor did

his appellate counsel challenge the trial judge’s impartiality based on the questions.

In Owen’s state habeas petition, he claimed his appellate counsel was ineffective

for not raising the issue. The Florida Supreme Court rejected this claim,

concluding that “the trial judge made no statements which would cause Owen to

believe that he would not receive a fair trial,” and the judge’s comments were

insufficient to show Owen was denied his right to an unbiased tribunal.

Owen/Worden III, 854 So. 2d at 192.

The Florida Supreme Court’s finding was reasonable. First, the trial judge

expressly stated that the effect of the motion on the various cases against Owen

37
As to the Worden case, the state attorney responded that granting the motion to
suppress would “[p]robably not” prevent the State from going to trial.

53
would “not be a consideration with regard to the resolution” of the suppression

motion. Second, the questions themselves did not show bias or demonstrate, as

Owen argues, that the trial judge’s consideration of the merits of Owen’s

suppression motion was impacted by the motion’s potential effect on the cases

against Owen.38 The trial judge did not give a reason for the questions; the only

thing he said definitively was that his consideration of the merits of the suppression

motion would not be affected by a concern for his ruling’s effect on the cases’

prosecution. In light of this express statement, and the ambiguous nature of the

questions themselves, we conclude that Owen has failed to show that the Florida

Supreme Court’s finding of no demonstrated bias was unreasonable.

IV. CONCLUSION

For the reasons set forth above, we affirm the district court’s denial of

Owen’s § 2254 petition.

AFFIRMED.

38
The questions could have stemmed, for example, from a desire to have early
information to guide the trial court in scheduling or administration of the ten cases in which the
motion had been filed.

54