[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 05-12502 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ July 14, 2006
THOMAS K. KAHN
D. C. Docket No. 01-02136-CV-T-27TGW CLERK
DOMINICK OCCHICONE,
Petitioner-Appellant,
versus
JAMES CROSBY, SECRETARY,
Florida Department of Corrections,
CHARLIE CRIST,
Attorney General of the State of Florida
Respondents-Appellees.
________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(July 14, 2006)
Before ANDERSON, DUBINA and CARNES, Circuit Judges.
ANDERSON, Circuit Judge:
Dominick Occhicone appeals the district court’s denial of his petition for a
writ of habeas corpus pursuant to 28 U.S.C. §2254, claiming that the Florida
Supreme Court failed to recognize that his right to a fair trial was abridged by the
prosecution’s failure to correct testimony known to be perjured. We find no such
error and affirm the district court’s denial of the petition.
I. BACKGROUND
On July 11, 1986, Dominick Occhicone killed Martha and Raymond Artzner,
the parents of his ex-girlfriend, Anita Gerrety. For each death, he was convicted of
murder in the first degree. On October 27, 1987 he was sentenced to death for one
conviction and life imprisonment for the other.
After exhausting both his direct appeals and his state collateral appeals,
Occhicone filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 in
the United States District Court for the Middle District of Florida on November 13,
2001. The court denied Occhicone’s petition on March 31, 2005. On November 8,
2005, it granted a certificate of appealability on the issue of Giglio1 error.
1
Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104
(1972).
2
Occhicone timely filed an appeal and this case is now properly before us.
II. ISSUE
The issue in this case involves an alleged violation of Giglio focusing on the
testimony of Baker, a cellmate with Occhicone after the murders of the Artzners.
Baker had been paroled from an original grand theft conviction. While on parole,
he committed another grand theft (herein referred to as the “recent grand theft”),
was arrested, and shared a jail cell with Occhicone. Occhicone made an
incriminating statement to Baker, about which Baker testified both in a deposition
and at Occhicone’s trial. The Giglio issue involved the agreement between the
prosecution and Baker for Baker to testify against Occhicone in exchange for the
prosecution’s recommendation that he receive probation on the recent grand theft
charge. In the state collateral proceedings, the state circuit judge found that
Baker’s testimony at Occhicone’s trial that he did not have a deal with the
prosecution with respect to his sentence on the recent grand theft charge was
untruthful. In so concluding, the state circuit judge found that the public record in
Baker’s recent grand theft case indicated that he did in fact receive probation as a
result of his agreement with the State to testify in defendant’s trial. Thus, the issue
in the state collateral proceeding, as well as the issue in the instant appeal, boiled
down to whether the State’s failure to correct this untruthful testimony was material
3
under Giglio.
However, before addressing the Giglio materiality issue, we must determine
the scope of our review. Thus, we address first whether the State courts applied the
correct standard of materiality, and our inquiry leads us to conduct a de novo
review. Then we discuss the precise standard of materiality. Finally, we apply the
standard.
III. DISCUSSION
A. Was the Florida Supreme Court’s Denial of Occhicone’s State Habeas
Petition Contrary to Clearly Established Law?
In examining a federal district court’s denial of a § 2254 habeas petition, we
review questions of law de novo and findings of fact for clear error. LeCroy v.
Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1259 (11th Cir. 2005). When examining
a state supreme court’s denial of a state habeas petition, we ask whether the
decision was either “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States”
or “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).
Occhicone contends that the Florida Supreme Court’s decision denying his
state habeas petition was contrary to clearly established federal law. His state
4
petition maintained that he was denied a fair trial because government witness Phil
Baker submitted material testimony that the prosecution knew to be perjured but
did not correct. According to Occhicone, the Florida Supreme Court used the
wrong standard in assessing the merit of his claim. He claims that it used the
United States Supreme Court’s general materiality standard for government
suppression of exculpatory evidence, rather than the more defendant-friendly
standard which applies specifically when the government fails to correct perjured
testimony.
Under the first standard, the defendant must establish materiality by proving
that there was “a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Kyles v.
Whitney, 514 U.S. 419, 433-34, 115 S.Ct. 1555,1565, 131 L.Ed.2d 490 (1995).
This is commonly known as the Brady standard, after Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194 (1963), in which the Supreme Court held that prosecutors have
an affirmative duty to disclose exculpatory evidence. Under the second standard,
the Giglio standard, the defendant need only show a “reasonable likelihood it
affected the judgment of the jury.” Giglio v. United States, 405 U.S. 150, 154, 92
S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).
Occhicone maintains that the Florida Supreme Court applied Brady when it
5
should have used Giglio. In this case, the Florida Supreme Court’s discussion of
the Giglio issue is cursory. Occhicone v. State, 768 So.2d 1037, 1042-43 (Fla.
2000). It does not cite Giglio but states only that there was no “reasonable
probability that the false testimony affected the jury’s judgment,” language that
combines elements of Brady and Giglio. Occhicone, 768 So.2d at 1042. The state
lower court did cite Giglio but used the term, “reasonable probability,” in its
evaluation. State v. Occhicone, No. 86-1355CFAWS, 4-5 (Fla. Cir. Ct. 1996).
A few months after denying Occhicone’s state habeas petition, the Florida
Supreme Court stated that “[t]he standard for determining whether false testimony
is ‘material’ under Giglio is the same as the standard for determining whether the
State withheld ‘material’ evidence in violation of Brady.” Rose v. State, 774 So.2d
629, 635 (Fla. 2000), overruled by Guzman v. State, 868 So.2d 498, 505-08 (Fla.
2003) (stating that its previous decisions had “improperly merge[d]” the two
standards and that Giglio was more defense-friendly than Brady). Thus, Occhicone
contends that Rose’s interpretation of Giglio was implicitly present in his case as
well.
Because it is clear that Baker’s testimony is not material even under our de
novo review pursuant to the Giglio standard, we will assume arguendo that the
Florida Supreme Court applied the wrong standard and then proceed to conduct a
6
de novo review under the proper Giglio standard.
B. The Giglio Standard of Materiality
Pursuant to Giglio, false testimony is material “if ‘the false testimony could
... in any reasonable likelihood have affected the judgment of the jury.’” 405 U.S.
150, 154, 92 S.Ct. 763, 766 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 79
S.Ct. 1173 (1959)). Our cases have indicated that the standard is analogous to the
“harmless beyond reasonable doubt” standard of Chapman v. California, 386 U.S.
18, 87 S.Ct. 824 (1967). Carr v. Schofield, 364 F.3d 1246, 1255 (11th Cir. 2004);
United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995); United States v.
Rivera-Pedin, 861 F.2d 1522, 1529 n.13 (11th Cir. 1988). In other words, if there is
a reasonable doubt about the effect of the false testimony on the jury verdict, then it
may be that there is a reasonable likelihood that the false testimony could have
affected the verdict.2
We note that Ventura raises the question of whether the Chapman gloss on
Giglio is appropriate for habeas cases in light of Brecht v. Abrahamson, 507 U.S.
619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993),which held that for federal collateral
review, the proper harmlessness standard is whether the error had “a substantial
2
Stated another way, this may be merely an elaboration of the meaning of the
Giglio standard – whether there is “any reasonable likelihood [that the false testimony could]
have affected the judgment of the jury.” Giglio, 405 U.S. at 154, 92 S.Ct. at 766.
7
and injurious effect or influence in determining the jury’s verdict.” 419 F.3d at
1279n.4. Because the choice of standards is ultimately irrelevant to the outcome of
this case, we will not decide this issue but will assume arguendo that the Chapman
gloss is appropriate.
Occhicone argues that the “beyond a reasonable doubt” gloss on the standard
that this Circuit has derived from Chapman also indicates that the burden of proof
with respect to materiality is on the State, and not on him. We doubt that this is the
case. Until a habeas petitioner has proved materiality, no Giglio error, and thus no
constitutional violation, has been established. We also note that none of the cases
upon which Occhicone relies supports his argument that the prosecution bears the
burden of proving materiality in the habeas corpus context. Neither Carr nor
Alzate, nor Rivera-Pedin address the burden of proof issue; the latter two cases
involve a direct appeal, and therefore could not have addressed the burden of proof
in a habeas context. Moreover, the habeas petitioner traditionally bears the burden
of demonstrating constitutional error. Romine v. Head, 253 F.3d 1349, 1357 (11th
Cir. 2001). By treating the challenged sentence or conviction as valid until proven
otherwise, such an arrangement best serves the principles of comity, finality and
federalism that undergird federal habeas corpus review.
However, it is unnecessary in this case to decide the burden of proof issue
8
raised by Occhicone. The Supreme Court has observed, with respect to
harmlessness inquiries, that consideration of burdens of proof will rarely suffice to
determine a case’s result: it is “conceptually clearer for the judge to ask directly,
‘do I, the judge, think that the error substantially influenced the jury’s decision?’
than for the judge to try to put the same question in terms of proof burdens.”
O’Neal v. McAnich, 513 U.S. 432, 436-37, 115 S.Ct. 992, 995 (1995). The Court
suggested that, when a judge is evaluating the effect on a jury verdict, the burden of
proof is implicated only when the conscientious judge is in grave doubt about the
effect on the verdict. Thus, even assuming arguendo that Occhicone did not have
the burden of proof with respect to materiality, we must leave his sentence and
conviction intact because, for the reasons below, we have no grave doubt about
their propriety.
C. Application of the Standard
At trial, Occhicone relied on a defense of voluntary intoxication to claim that
he did not have the requisite intent and thus that he was not guilty of capital
murder. Baker was one of several prosecution witnesses whose testimony was
relevant to intent and premeditation. Baker, an ex-convict who had been arrested
recently on grand theft charges, shared a jail cell with Occhicone after the murder
of the Artzners. Occhicone told Baker that he should have killed the Artzners
9
earlier, and that he only regretted not also killing their daughter and his ex-
girlfriend, Anita Gerrety. Baker reported Occhicone’s statement to the jury but
denied that he was testifying in exchange for the prosecution’s agreement to
recommend leniency with respect to his sentence on the recent grand theft charges.
The State circuit court found that, contrary to Baker’s testimony, there was a deal
that in return for his agreement to testify, prosecutors would recommend that he
receive probation on the recent grand theft charge. State v. Occhicone, No. 86-
1355CFAWS, 4 (Fla. Cir. Ct. 1996).
Thus, the State circuit court implicitly found that Occhicone had satisfied the
first hurdle in establishing a Giglio violation – i.e., that the State failed to correct
Baker’s untruthful testimony. Occhicone asserts that he has also established the
second prong, materiality, because the jury would have had reason to discount
Baker’s credibility, had the State corrected Baker’s untruthful testimony. For
several reasons, we reject Occhicone’s argument. Our de novo review persuades us
that there is no reasonable likelihood that the State’s failure in this regard could
have affected the verdict. To evaluate the significance of the challenged testimony
on the verdict, we first examine its context – i.e., the jury’s understanding of the
entirety of the prosecution’s arrangements with Baker – and then evaluate same in
light of the totality of the evidence.
10
As noted earlier, Baker had been convicted of an original grand theft charge,
had served his time, and been paroled. While on parole, he committed another
grand theft (herein referred to as the “recent grand theft”), was arrested therefor,
and was incarcerated in the same jail and in the same cell with Occhicone. During
this shared jail time, Occhicone made the incriminating statement to Baker. Baker
at this point had two impending criminal justice events, both of which carried the
potential for additional jail time: (1) his potential conviction and sentence on the
recent grand theft charge, and (2) the potential revocation of his parole by the
parole board on his original grand theft conviction.
With respect to the first of these, Baker testified at trial that he and the State
did not have any deal worked out regarding Baker’s case in exchange for his
testimony against defendant. It is this testimony with respect to Baker’s sentence
on the recent grand theft charge that the State circuit court found was untrue,
concluding that Baker received a sentence of probation on this recent grand theft
charge because of his agreement with the State to testify in Occhicone’s trial. By
the time of Occhicone’s trial, Baker had already been sentenced to probation on
this recent charge, and this fact was known to the jury.
With respect to the second criminal justice event that Baker was facing – the
potential revocation of his parole on the original grand theft charge – Baker also
11
had an arrangement with the prosecution that in exchange for his testimony against
Occhicone, he was to get a favorable recommendation from the State as to his
parole. However, as discussed below, this arrangement with the State was
presented to and known by the jury.
At his deposition, Baker testified with respect to his arrangement with the
State concerning the potential revocation of his parole relating to the original grand
theft charge. He testified that he was expecting the prosecutors to give him a
favorable recommendation before the parole board. In Baker’s testimony at the
actual trial, he also testified that it was his understanding that, in exchange for his
testimony here today, he was going to get a favorable recommendation from the
State as to his parole. This admission – i.e., in exchange for his testimony, he was
to receive a favorable recommendation as to his parole – put the jury on notice of
the incentive Baker might have to provide untruthful testimony. We also note that
the parole board hearing had not yet occurred at the time of Baker’s testimony at
Occhicone’s trial. Thus, the significance of the arrangement with the State – i.e.,
its tendency to induce Baker to bend his testimony in favor of the State – is
enhanced as compared to the significance of Baker’s arrangement with respect to
his sentence on the recent grand jury charge, because the latter sentence had
already been imposed, and Baker had already received probation thereon, all of
12
which was known to the jury.
The foregoing discussion reveals that Baker’s testimony was subject to
impeachment by virtue of two arrangements or deals with the prosecution, and that
the more significant of the two was well known to the jury. Further undermining
the significance of the deal about which the jury was not fully aware are two
additional facts. First, the jury did know that Baker had already received probation
on that charge, the recent grand theft charge. Second, at the time of trial, the
defense was already aware that there probably was a deal with respect to the recent
grand theft charge also. At his deposition, Baker had testified not only that he was
expecting a favorable recommendation before the parole board, but he also testified
that he was expecting a recommendation of probation on his recent grand theft
charge. Had the defense at trial thought this fact would have great significance, or
that Baker had not been fully impeached with respect to his incentive to favor the
prosecution, the defense surely would have cross-examined Baker to emphasize his
prior inconsistent testimony that he was expecting probation on the recent grand
theft charge.3
3
We also note that the testimony about the arrangement with respect to the recent grand
theft charge – the testimony that the state circuit judge found untruthful – was fleeting. Baker
merely answered “no” to a question by the attorney. We also note that the prosecutor did not
mention this untrue fact in his argument to the jury. On the other hand, the defense did
emphasize both the fact that Baker got probation on the recent grand theft charge and also the
fact that he had a deal with the prosecution with respect to his parole on the original grand theft
13
Having examined the context of the untruthful statement which the State
failed to correct (and its significance thereof), we turn our attention to the
significance of same in light of the totality of the evidence. We conclude that there
was very strong evidence of Occhicone’s intent and premeditation. Baker was only
one of five witnesses who had heard Occhicone talk about killing the Artzners. In
the months prior to the shooting, Occhicone spent a considerable portion of each
day at a local bar. The owner and two bartenders, all working separate shifts,
testified that in the weeks immediately preceding the murder, Occhicone told them
he was distraught at the failure of his relationship with Anita Gerrety and wanted to
kill the Artzners.4 In addition, Anita Gerrety testified that “[o]n numerous
occasions, he would say that he would take those that were closest to me, meaning
my parents and children, and blow them away starting with [their] kneecaps and
working his way up and leaving me for the last so I could watch.”
In addition, there is strong evidence of intent and premeditation in the
charge.
4
About seven to ten days before the shooting, Occhicone told Lily Lawson that he “felt
like shooting [Gerrety’s] father and making her watch, and her mother and making her watch,
and shooting her kids and making her watch.”
Two weeks before, he told Cheryl Hoffman that “he wanted to kill [Gerrety’s] parents.
He wanted to torture and kill her children and make her watch, but he didn’t want to kill her, he
just wanted to wound her for life.”
Two to three weeks before, he told William Michael Anderson that he wanted to “blow
[the Artzners] away.”
14
uncontested account of the moments leading up to the murder. In the early
morning, Occhicone arrived at the house where the Artzners, Gerrety and her
children lived. He knocked on Gerrety’s bedroom window, but she refused to talk
to him. An hour later, he returned with a gun. He cut the phone lines to the house,
and then, after being confronted by Mr. Artzner, shot him. He then broke into the
house where he shot Mrs. Artzner as well. His decisions to return to the home
with a lethal weapon, and to cut the phone lines, are strong evidence that the
murders were the result of a premeditated intent.
Occhicone argues that Baker’s testimony was critical to his conviction,
because nearly all of the other witnesses, he argues, heard him when he was
intoxicated, and the only other exception beside Baker is Anita Gerrety, the
victims’ daughter. It is true that Occhicone was drinking when he related his
various threats and intentions to those witnesses. And it is true that Gerrety
presumably had a personal interest in the consequences of her testimony. But even
so, the fact remains that in the weeks leading up to the murder, Occhicone told at
least four different people that he wanted the Artzners dead. The number of
statements, their consistency, their persistence over a significant time, and their
proximity to the date of the murder, combined with the undisputed account of the
Artzners’ murder, provide strong evidence of premeditation and intent to make
15
Baker’s testimony superfluous.
In summary, we conclude that the significance of the untruthful testimony
found by the state court is seriously undermined by the following factors: the fact
that the jury was well aware of the more significant of the two arrangements which
Baker had with the State, in exchange for his testimony against Occhicone, thus
amply informing the jury of Baker’s motive to testify in favor of the State; the fact
that , even with respect to the arrangement of which the jury was not aware, the
jury did know that Occhicone had already received probation with respect to that
charge; and finally, the fact that there was very strong evidence of intent and
premeditation other than that offered by Baker. In light of the totality of the
evidence, our de novo review persuades us that there is no reasonable likelihood
that the state’s failure to correct the untruthful testimony in this case could have
affected the judgment of the jury.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court denying
Occhicone’s petition for writ of habeas corpus is
AFFIRMED.
16