Raleigh v. Secretary, Florida Department of Corrections

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-14198

________________________

D.C. Docket No. 6:07-cv-00037-JA-KRS

BOBBY A. RALEIGH,

Petitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents - Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(June 30, 2016)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

MARCUS, Circuit Judge:

In this capital case, Bobby Allen Raleigh pled guilty to two counts of first-

degree murder for the 1994 killings of Donald Cox and Timothy Eberlin. A

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unanimous jury in Volusia County, Florida, recommended that he be sentenced to

death for each homicide, and in 1996 the state circuit court sentenced him to die.

The Florida Supreme Court affirmed his death sentences on direct appeal and then

on collateral review. Thereafter, the United States District Court for the Middle

District of Florida denied Raleigh’s petition for a writ of habeas corpus, which

included claims that: (1) the state violated Raleigh’s due process rights by

knowingly presenting false evidence at his sentencing proceeding; (2) the state

violated the Due Process Clause and the Eighth Amendment by presenting

differing theories about Raleigh’s culpability at his sentencing proceeding and at

his co-defendant’s trial; (3) trial counsel provided unconstitutionally ineffective

assistance by opening the door to the admission of Raleigh’s co-defendant’s tape-

recorded confession; and (4) trial counsel provided ineffective assistance by

inadequately preparing a mental health expert who testified in mitigation at

Raleigh’s penalty phase trial. After thorough review, we affirm the judgment of

the district court and deny the petition.

I.

A. Crime and Sentence

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The essential facts are these.1 In the early morning hours of June 5, 1994,

while at the Club Europe in DeLand, Florida, Domingo Figueroa, Raleigh’s cousin,

told Raleigh that someone had slapped Raleigh’s mother.2 Thereafter, Raleigh and

Domingo Figueroa confronted Douglas Cox and his brother. While the four men

were talking in the parking lot outside Club Europe, Raleigh’s mother ran out of

the bar and began screaming at Mr. Cox. Raleigh took his mother to the car and

returned to confront Cox. After apologizing for his mother’s behavior and shaking

hands with Cox, Raleigh went to his home to retrieve some firearms. Raleigh and

Figueroa then drove to Cox’s trailer.

Raleigh went to the door of the trailer with a gun in his hand. Ronald Baker

answered the door and told Raleigh that Cox was asleep. Raleigh and Figueroa

left, drove down a nearby dirt road, parked, and later returned to Cox’s trailer, both

carrying firearms. Raleigh walked to the end of the trailer and shot Cox in the

head three times at close range, killing him. Then, Figueroa and Raleigh shot Tim

Eberlin, Cox’s roommate, until their guns jammed, whereupon Raleigh beat Mr.

Eberlin in the head with the barrel of his gun until Eberlin stopped screaming.

Afterwards, Raleigh and Figueroa drove to Raleigh’s home where they burned the

1

We take these facts from the Florida Supreme Court’s opinions on direct appeal and in

Raleigh’s post-conviction proceeding. See Raleigh v. State, 705 So. 2d 1324, 1326-27 (Fla.

1997) (per curiam) (“Raleigh I”); Raleigh v. State, 932 So. 2d 1054, 1056-59 (Fla. 2006) (per

curiam) (“Raleigh II”).

2

Figueroa is Raleigh’s first cousin by marriage. Raleigh’s mother, Janice Figueroa,

married Figueroa’s uncle, Jose Figueroa.

3

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clothes they were wearing during the murders, dumped their remaining bullets into

a neighbor’s yard, and hid their guns in a secret compartment in Raleigh’s car. The

police went to Raleigh’s house that night and he agreed to talk to them. Raleigh

initially denied his involvement in the murders. But after being told that Figueroa

had implicated him, he admitted in a taped statement that he had killed both Cox

and Eberlin.

The state charged Raleigh with two counts of first-degree murder, one count

of burglary, and one count of shooting into a building. On June 6, 1995, pursuant

to a plea agreement, Raleigh pled guilty to two counts of first-degree murder, and

the state agreed to nolle prosequi the counts of burglary and shooting into a

building.

The state elected to seek the death penalty, and Raleigh’s penalty-phase trial

was conducted in the circuit court for Volusia County, Florida, from August 8 to

15, 1995. Neither the state nor the defense called Figueroa to testify. However,

during cross-examination of a state witness, police investigator Lawrence Horzepa,

the jury learned of a taped statement that Figueroa had given to Investigator

Horzepa on the day of the murders. Initially, through a series of leading questions

during cross-examination, Raleigh’s counsel asked Horzepa to confirm specific

portions of Figueroa’s statement. Among other things, defense counsel asked

Horzepa whether Figueroa had told him that Figueroa’s “Aunt Janice” (Raleigh’s

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mother) had been called a bad name by Cox, and whether Figueroa admitted to

owning the safe that contained the guns. On redirect examination, the state

introduced Figueroa’s entire statement by playing the tape for the jury. Defense

counsel did not object. In the tape, Figueroa admitted that he shot Eberlin at

Raleigh’s direction. Figueroa claimed that he was not sure if his shot hit Eberlin

and that, before he fired the shot, Raleigh had already shot Eberlin once.

Raleigh testified on his own behalf at the penalty phase. He described his

participation in the double homicide this way:

I walked into the living room where Douglas [Cox] was laying on the

sofa. I called out his name. I called out “Douglas.” And when I

turned around, I noticed that Domingo had followed me into the

trailer, and he had his gun. He had a piece of cloth around his hand,

and had his gun on top of it. And he nodded his -- he just nodded his

head like -- and at that point I thought this is what he wanted -- wants

me to do. I pulled out the gun, and I shot Douglas.

....

I started running out the back door. I thought that Domingo had

already shot Timothy [Eberlin]. He was up on the bed screaming.

And I went to run out the door, and I seen the flash from Domingo’s

gun. I noticed he was firing through the door. I stopped at the door.

All of a sudden he starts yelling, my gun’s jammed. My gun’s

jammed. Shoot him. Shoot him. I started firing at Timothy. Once

my gun jammed up. I don’t know if it jammed up or ran out of shells.

I don’t know what happened to it. I yelled, my gun’s jammed, too.

And he started yelling, get him, get him. And I don’t know what to

do. So I started hitting him with the gun.

....

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I thought I had only hit [Eberlin] at most four times. 3

Raleigh called nine other witnesses to testify in support of his mitigation

case: Dr. James Upson, a psychologist who examined Raleigh prior to trial; Dr.

Myrna Garcia, a psychiatrist who met with Raleigh after he had attempted suicide;

his mother; his younger brother; his aunt; his girlfriend; a childhood friend; a man

who met Raleigh while he was in jail; and a retired minister who also met with

Raleigh when he was in jail.

Dr. Upson testified that he met with Raleigh for approximately eleven-and-

a-half hours, interviewed Raleigh’s mother for approximately one hour, reviewed

Raleigh’s school and medical records, and conducted twenty tests. Dr. Upson

found Raleigh to be of normal intelligence with an IQ of ninety-eight. He testified

that Raleigh was a follower who was easily manipulated by others and that Raleigh

portrayed some allegiance to Figueroa. Dr. Upson opined that Raleigh fit the

criteria for antisocial personality disorder, although he did not clinically diagnose

Raleigh with a personality disorder. He added that Raleigh’s neuropsychological

functions may have been impaired by the consumption of alcohol at the time of the

murders, but there was no significant impairment. Ultimately, Dr. Upson

concluded that he could not find any statutory mitigators to apply in Raleigh’s case

except Raleigh’s age at the time of the murders (nineteen).

3

This quotation is taken from the trial transcripts, not the Florida Supreme Court’s

decisions.

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At the conclusion of the penalty phase, the jury unanimously recommended

that Raleigh be sentenced to death on each first-degree murder count. After the

penalty phase but before Raleigh was sentenced, the state proceeded separately to

trial against Figueroa. Based on the evidence presented by the state at Figueroa’s

trial, Raleigh learned that Figueroa had made another statement about his

involvement in the crime. According to Figueroa’s uncle, the day following the

murder, Figueroa told his uncle that he had killed one victim and Raleigh had

killed the other. The state introduced this statement at Figueroa’s trial and, during

its closing argument, contended that it demonstrated Figueroa had formed the

intent to kill Eberlin, regardless of whether Figueroa was the one who actually

killed him. The state maintained that Figueroa’s admission to his uncle, coupled

with forensic evidence that two of the three shots that hit Eberlin may have been

fired from Figueroa’s gun, demonstrated that Figueroa had downplayed his role in

the murders when he gave his statement to Investigator Horzepa.

On February 16, 1996, the trial court sentenced Raleigh to death for each

murder upon finding that the state had proven five statutory aggravators: (1)

Raleigh had committed a prior violent felony (applied to the murders of both Cox

and Eberlin); (2) the murders were committed while Raleigh was engaged in a

burglary (also applied to the murders of both Cox and Eberlin); (3) the murder of

Cox was cold, calculated, and premeditated; (4) the murder of Eberlin was

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committed to avoid arrest or effect escape; and (5) the murder of Eberlin was

especially heinous, atrocious, or cruel. The court also concluded that the

aggravators outweighed the one statutory mitigating factor that it found -- that

Raleigh was nineteen at the time of the crime -- and the fifteen nonstatutory

mitigators that Raleigh had proven -- that he (1) was intoxicated; (2) was

remorseful; (3) pled guilty; (4) offered to testify against codefendant Figueroa; (5)

could probably adjust well to prison life; (6) was a good son and friend to his

mother; (7) was a good brother; (8) was a good father figure to his ex-girlfriend’s

daughter; (9) was born into a dysfunctional family; (10) did not know who had

fathered him; (11) had attempted suicide; (12) had low self-esteem; (13) suffered

from an adjustment disorder and was antisocial; (14) used poor judgment and

engaged in impulsive behavior; and (15) was a follower.

On direct appeal, the Florida Supreme Court affirmed his convictions and

death sentences. Raleigh I, 705 So. 2d at 1331. Raleigh filed a petition for writ of

certiorari with the United States Supreme Court, which was denied on October 5,

1998. See Raleigh v. Florida, 525 U.S. 841 (1998).

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B. State Post-Conviction Proceedings

Raleigh began his post-conviction attack under Florida Rule of Criminal

Procedure 3.851, raising fourteen claims for relief.4 The state trial court conducted

an evidentiary hearing concerning seven of those claims, including three that are

germane to this appeal: that trial counsel was ineffective for failing to object to the

admission of Figueroa’s taped statement; that the State knowingly presented false

evidence; and that trial counsel was ineffective for failing to adequately investigate

and present mitigation evidence.

At the evidentiary hearing, Raleigh offered the testimony of a second mental

health expert, Dr. Ernest Bordini, a clinical psychologist. Dr. Bordini identified

the following deficiencies in Dr. Upson’s evaluation of Raleigh and in his

testimony at the penalty phase:

4

Raleigh claimed: (1) his trial attorneys were ineffective for failing to object to the

admission of Figueroa’s taped statement; (2) the state knowingly presented false evidence in

violation of his constitutional rights; (3) he was denied an adequate mental-health expert, in

violation of Ake v. Oklahoma, 470 U.S. 68 (1985); (4) trial counsel were ineffective for failing

to adequately investigate and present additional mitigating evidence at the penalty phase; (5) trial

counsel were ineffective for failing to discover and remove prejudiced jurors; (6) trial counsel

were ineffective for recommending that Raleigh plead guilty to the murder charges; (7) trial

counsel were ineffective for failing to object to burglary as an aggravating factor; (8) trial

counsel failed to adequately investigate Raleigh’s case before recommending that he plead guilty

to the murder charges; (9) trial counsel were ineffective for recommending that Raleigh plead

guilty based on their prediction about the trial judge’s likely sentence; (10) trial counsel were

ineffective for failing to object because the trial court did not instruct the jury that Raleigh had

no significant prior criminal history; (11) trial counsel were ineffective for advising Raleigh that

the judge would impose life if he pled guilty; (12) the state rules preventing Raleigh’s post-

conviction counsel from interviewing jurors violated his constitutional rights; (13) Florida’s

capital sentencing statute was unconstitutional facially and as applied because it failed to prevent

the arbitrary and capricious imposition of the death penalty; and (14) Raleigh was insane and,

therefore, could not be executed.

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Dr. Upson (1) was unaware of critical family history and witness

statements, yet [Dr. Bordini] admitted that Defendant simply refused

to discuss his sexual abuse at the time of the penalty phase

proceeding; (2) failed to adequately understand Defendant's behavior

before the murders; (3) did not have enough information about

domination to adequately testify to it; (4) erred by failing to work with

a diagnosis; (5) administered and scored the MMPI test wrong

(Dr. Bordini could not replicate the results); (6) failed to administer a

formal memory test; and (7) he failed to fully explore the effects of

alcohol on Defendant's judgment and motor function on the night of

the murders.

Raleigh II, 932 So. 2d at 1061 n. 10 (quoting trial court). Dr. Bordini diagnosed

Raleigh as suffering from a nondescript neuropsychological dysfunction. He

determined that three statutory mitigating factors applied: Raleigh was under the

influence of an extreme mental or emotional disturbance at the time of the murder;

he was nineteen at the time of the crime; and he was acting under the domination

and control of Figueroa.

Raleigh’s trial counsel -- attorneys Michael Teal and James Clayton --

testified at the evidentiary hearing regarding how they prepared Dr. Upson to

testify and their decision to open the door to the admission of Domingo Figueroa’s

taped statement. Two state prosecutors also testified at the evidentiary hearing.

On March 24, 2003, the trial court denied Raleigh’s post-conviction motion.

The Florida Supreme Court affirmed the denial in a written opinion, denying on

the merits each of the four claims at issue in this appeal. Raleigh II, 932 So. 2d at

1067. First, Raleigh had argued, the state violated Giglio v. United States, 405

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U.S. 150 (1972), by knowingly presenting false evidence when it played

Figueroa’s taped statement. The Florida Supreme Court found as fact that

“Raleigh ha[d] not established that Figueroa’s statement to Investigator Horzepa

was false, much less that the State knew it was false.” Raleigh II, 932 So. 2d at

1065. Second, Raleigh had claimed that the state violated his due process rights, as

identified by the Supreme Court in Bradshaw v. Stumpf, 545 U.S. 175 (2005), by

presenting inconsistent “theories” of the case at his penalty-phase trial and at

Figueroa’s trial. After surveying the arguments made by the state in each of the

two cases, the Florida Supreme Court denied this claim, explaining:

[T]he State did not take an inconsistent position as the prosecution did

in Stumpf. In Figueroa’s trial, the State never contradicted the

position it took at Raleigh’s trial regarding Raleigh’s culpability. It

did not change course by seeking to prove that Figueroa, not Raleigh,

was the principal actor in Eberlin’s death. Therefore, the due process

concerns raised in Stumpf do not apply.

Raleigh II, 932 So. 2d at 1067.

Third, Raleigh had argued that his trial counsel provided ineffective

assistance by opening the door to the introduction of Figueroa’s taped statement.

The Florida Supreme Court rejected this claim too, concluding that “[t]he record

establishes that defense counsel made an informed and reasoned, strategic decision

to introduce Figueroa’s taped statement after considering the alternatives,”

specifically, the risk that Figueroa would be called to testify live if the taped

statement were not admitted. Id. at 1064-65. Finally, Raleigh had said that his

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trial counsel were unconstitutionally ineffective for failing to adequately prepare

Dr. Upson to testify in Raleigh’s defense. In particular, he claimed counsel were

ineffective for failing to inform the doctor about the facts of the crime. The

Florida Supreme Court denied this claim, concluding that, even assuming

counsel’s performance was deficient, Raleigh had failed to establish prejudice

because he had not demonstrated that “Dr. Upson’s testimony would have been

more favorable or materially more credible if Dr. Upson had been provided with

the[] facts [about the crimes].” Id. at 1063.

C. Federal Habeas Corpus Proceedings

On November 13, 2006, Raleigh commenced federal habeas corpus

proceedings, pursuant to 28 U.S.C. § 2254, in the United States District Court for

the Middle District of Florida. In his amended habeas petition, he raised nine

claims for relief. In a September 19, 2013 unpublished order, the district court

rejected all of Raleigh’s claims, only four of which are relevant for our purposes

(conveniently labeled Claims One, Two, Three, and Four in Raleigh’s amended

petition).

As for Claim One -- the Giglio claim -- the district court concluded that the

Florida Supreme Court had reasonably found as a fact that the state had not

knowingly presented false evidence when it played Figueroa’s tape-recorded

statement for the jury. As for the second claim -- the Stumpf inconsistent-theories

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argument -- the district court concluded that the Florida Supreme Court had not

unreasonably applied clearly established federal law in denying the claim. It also

determined that the state court’s factual finding that the state had not taken

inconsistent positions in the two cases was reasonable, since the state consistently

argued in both cases that both Raleigh and Figueroa were involved in the death of

Eberlin.

As for Claim Three, the district court concluded that any claim that counsel

was ineffective for failing to call Figueroa’s uncle to testify was procedurally

defaulted because Raleigh had not raised it in state court. And as for opening the

door to admission of Figueroa’s tape-recorded statement, the district court agreed

with the Florida Supreme Court that counsel had made a reasonable strategic

decision. Finally, as for Raleigh’s fourth claim -- that trial counsel had been

ineffective for failing to adequately prepare Dr. Upson -- the district court agreed

with the Florida Supreme Court that Raleigh had not been prejudiced by any act or

omission of counsel.

The district court granted a COA on Claims One, Two, and Three, and we

expanded the COA to include the ineffective assistance of counsel claim that was

presented in Claim Four.5 Raleigh presses each of these claims on appeal.

5

As part of Claim Four, Raleigh also argued that he was denied an adequate mental

health evaluation in violation of his due process rights as established in Ake v. Oklahoma, 470

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II.

“In reviewing the district court’s denial of a 28 U.S.C. § 2254 petition, we

‘review questions of law and mixed questions of law and fact de novo, and

findings of fact for clear error.’” Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th

Cir. 2008) (per curiam) (quoting Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir.

2000)). We may only review claims encompassed by the COA. Jordan v. Sec’y,

Dep’t of Corr., 485 F.3d 1351, 1356 (11th Cir. 2007). Because Raleigh filed his

federal habeas petition after 24 April 1996, this case is governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Ward v. Hall,

592 F.3d 1144, 1155 (11th Cir. 2010).

Under the provisions of AEDPA, if a state court has adjudicated the merits

of a claim, we cannot grant habeas relief unless the state court’s decision “was

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

law, as determined by the Supreme Court of the United States,” 28 U.S.C. §

2254(d)(1), or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,” id. § 2254(d)(2). “[C]learly

established federal law” under § 2254(d)(1) refers to the “holdings, as opposed to

the dicta, of th[e Supreme] Court’s decisions as of the time of the relevant state-

U.S. 68 (1985). As we explain below, however, Raleigh was never granted a COA on the Ake

claim and, therefore, it is not before us today.

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court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). “Under §

2254(d)(1)’s ‘contrary to’ clause, we grant relief only ‘if the state court arrives at a

conclusion opposite to that reached by [the Supreme] Court on a question of law or

if the state court decides a case differently than [the Supreme Court] has on a set of

materially indistinguishable facts.’” Jones v. GDCP Warden, 753 F.3d 1171, 1182

(11th Cir. 2014) (alteration in original) (quoting Williams, 529 U.S. at 413).

“Under § 2254(d)(1)’s ‘unreasonable application’ clause, we grant relief only ‘if

the state court identifies the correct governing legal principle from [the Supreme]

Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case.’” Id. (alteration in original) (quoting Williams, 529 U.S. at 413).

Under § 2254(d)(2), we may grant relief only if, in light of the evidence presented

in the state court proceedings, no reasonable jurist would agree with the factual

determinations upon which the state court decision is based. Brumfield v. Cain,

576 U.S. __, 135 S. Ct. 2269, 2277 (2015).

III.

A. Claim One: Giglio Claim

As we’ve noted, at Raleigh’s penalty phase, the state played a tape-recorded

statement by Figueroa, in which Figueroa initially said that Raleigh had killed both

victims but subsequently admitted to having fired the first shot at Eberlin. Later,

at Figueroa’s trial, the state argued that Figueroa may have killed Eberlin, and it

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presented the corroborating testimony of Figueroa’s uncle (Raleigh’s stepfather),

who claimed that Figueroa had confessed to having killed one of the victims. In

closing argument at Figueroa’s trial, the state argued that Figueroa “told his uncle

the truth” when he admitted to killing one of the victims. Raleigh asserts that, by

presenting Figueroa’s taped statement at his penalty phase, the state knowingly

presented false evidence in violation of Giglio and his right to due process. The

Florida Supreme Court denied this claim on the merits, Raleigh II, 932 So. 2d at

1065, and, therefore, we review its decision through the deferential lens of

§ 2254(d).

It is by now almost axiomatic that, “[i]n order to prevail on a Giglio claim, a

petitioner must establish [1] that the prosecutor knowingly used perjured

testimony, or failed to correct what he subsequently learned was false testimony,

and [2] that the falsehood was material.” Ventura v. Att’y Gen., Fla., 419 F.3d

1269, 1277 (11th Cir. 2005) (quoting Tompkins v. Moore, 193 F.3d 1327, 1339

(11th Cir. 1999)). A falsehood is material if there is “any reasonable likelihood”

that it could have affected the result. Id. at 1278 (quotation omitted). As to the

materiality prong, “the proper inquiry . . . is whether the Florida Supreme Court’s

treatment of [Raleigh’s] Giglio claim was contrary to or an unreasonable

application of the ‘any reasonable likelihood’ standard.” Id. at 1279.

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Raleigh challenges the determination of the Florida Supreme Court. He

appears to suggest that the Florida Supreme Court made an unreasonable factual

finding when it found that Figueroa’s taped statement was not false. And more

basically, he argues that the Florida Supreme Court applied the wrong legal

standard by requiring him to show that the state knowingly presented false

evidence.

To the extent Raleigh offers that the Florida Supreme Court unreasonably

found as a fact that the state did not knowingly present false evidence by playing

the portion of Figueroa’s taped statement that accused Raleigh of killing both

victims, we are unpersuaded. See 28 U.S.C. § 2254(d)(2). In order to obtain

relief, Raleigh must show that no reasonable jurist would agree with the Florida

Supreme Court’s factual determination. See Brumfield, 576 U.S. __, 135 S. Ct. at

2277. There are four pieces of evidence relating to who killed Eberlin: First,

Raleigh testified that both he and Figueroa shot at Eberlin, and then when their

guns jammed, Raleigh beat Eberlin with his gun. Second, the medical examiner

who performed an autopsy on Eberlin testified that Eberlin died of three gunshot

wounds, but he had also been beaten while he was still alive. In particular, the

medical examiner testified that Eberlin had been “beaten over the head quite

viciously [at least fifteen times] and had injuries to the head that, in and of

themselves, certainly could [have been] fatal.” Third, in his taped statement to

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Investigator Horzepa, Figueroa said that Raleigh killed both of the victims while

Figueroa was outside of Cox’s trailer. But later in the tape Figueroa contradicted

himself and admitted to shooting at Eberlin. And fourth, at Figueroa’s trial,

Figueroa’s uncle testified that Figueroa told him that he had “killed one” of the

victims.

The first three pieces of evidence support a finding that Raleigh killed

Eberlin. And the fourth -- Figueroa’s statement to his uncle -- is in no way

incompatible with the thesis that Raleigh actually killed, or was heavily involved in

killing, Eberlin, and that he intended to do so. In short, this record does not

conclusively establish who caused Eberlin’s death, but it does substantially support

the conclusion that Raleigh was responsible for both deaths. Indeed, the medical

examiner testified that Eberlin was shot multiple times and viciously beaten by

Raleigh “in a very short period of time . . . while [he] was still alive.” On this

record, reasonable jurists could disagree over whether Raleigh actually killed

Eberlin by shooting him and beating him over the head, or whether Figueroa killed

him when he shot at him at point-blank range. The Florida Supreme Court’s

factual finding was not “unreasonable” under § 2254(d)(2). See Brumfield, 576

U.S. __, 135 S. Ct. at 2277.

To the extent Raleigh claims that the Florida Supreme Court applied an

incorrect legal standard, we remain unpersuaded. In cases involving the alleged

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presentation of false evidence, the Supreme Court has held that it is the “deliberate

deception of a court and jurors by the presentation of known false evidence” that is

“incompatible with rudimentary demands of justice.” Giglio, 405 U.S. at 153

(quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)). Indeed, all of the cases

on which Raleigh relies involved the deliberate presentation of false evidence. See

Miller v. Pate, 386 U.S. 1, 6 (1967) (“The prosecution deliberately misrepresented

the truth.”); Napue v. Illinois, 360 U.S. 264, 265 (1959) (explaining that the

question presented “is whether on these facts the failure of the prosecutor to correct

the testimony of the witness which he knew to be false denied petitioner due

process of law in violation of the Fourteenth Amendment” (emphasis added));

Alcorta v. Texas, 355 U.S. 28, 31 (1957) (involving the prosecutor’s solicitation of

knowingly false testimony from a witness). 6 The Florida Supreme Court’s

determination that Raleigh had to show that the state knowingly presented false

evidence was fully consonant with Supreme Court precedent.7

6

Raleigh also cites Gray v. Netherland, 518 U.S. 152, 165 (1996), where the Supreme

Court indicated in dictum that there could be a due process problem if “the prosecutor

deliberately misled [the defendant]” about what evidence the state intended to present at trial, but

not if the prosecutor “just . . . changed his mind over the course of the trial.” However, Gray --

which was decided on procedural default grounds -- had nothing to do with the truth or falsity of

the evidence presented and, like the other cases cited, reaffirmed that the petitioner must show

that the prosecutor deliberately misrepresented the truth to establish a due process violation.

7

We agree with the district court that Raleigh’s Giglio claim also fails because he has not

established prejudice. Each of the state trial court’s findings that Raleigh has challenged -- that

the murder was “cold, calculated, and premeditated”; that Raleigh was the “principal perpetrator

in these killings”; that Raleigh was not “under the influence of an extreme mental or emotional

disturbance”; and that Figueroa did not “substantially dominate” Raleigh during the crimes --

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B. Claim Two: Inconsistent-Theories Claim

Raleigh also suggests that the state violated his Eighth Amendment rights by

arguing at the penalty phase of his case that he was the principal perpetrator of the

killings and then arguing at Figueroa’s trial that Figueroa was the principal

perpetrator and that Raleigh was no more than a “drunken boob.” In particular,

Raleigh seizes on the state’s closing argument in Figueroa’s trial, where the state

argued that Figueroa “told his uncle the truth” when he admitted to killing one of

the victims. He claims that allowing his death sentence to rest on a later-

contradicted theory of the case violates clearly established law dating back to

Furman v. Georgia, 408 U.S. 238 (1972). The Florida Supreme Court analyzed

this claim under the Supreme Court’s due process precedents and rejected it on the

merits because it found that “the State argued consistently in both trials that

Raleigh was a principal actor in the death of Eberlin.” Raleigh II, 932 So.2d at

1066.

On appeal, Raleigh launches two lines of attack: first, he contends that the

state high court made an unreasonable determination of the facts, under 28 U.S.C.

§ 2254(d)(2), when it determined that the state had not presented inconsistent

theories; second, he says, the Florida Supreme Court misconstrued this claim as

were strongly supported by all the evidence, including Raleigh’s motive for the killings and,

perhaps most notably, his own admission of his involvement in the murders of Cox and Eberlin.

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arising under the Due Process Clause, instead of the Supreme Court’s Eighth

Amendment precedents. Again, we are unpersuaded.

As we have explained already, there is nothing unreasonable about the

Florida Supreme Court’s finding that the state presented essentially the same

version of events in the two cases. In Raleigh’s trial, the state conceded in opening

statement that Figueroa fired the first shot at Eberlin, but said that Raleigh shot

Cox and then shot and beat Eberlin. This account was corroborated by Raleigh’s

testimony. During opening statement at Figueroa’s trial, the state relayed the same

version of events. While the state claimed in its closing argument that Figueroa

“told his uncle the truth” when he admitted to killing one of the victims, it is not

clear what this statement meant. Considering the context in which it was made --

during a discussion of Figueroa’s mental state during the murders -- the Florida

Supreme Court reasonably interpreted the state’s argument as expressing only “that

Figueroa’s statement to his uncle demonstrated that he had formed the intent to kill

Eberlin.” Raleigh II, 932 So. 2d at 1066.

Raleigh also claims that the prosecutor’s characterization of him as a

“drunken boob” during closing argument in Figueroa’s trial conflicted with the

state’s portrayal of him as the cold, calculating leader of the murders at his own

trial. However, the “drunken boob” comment was made only in passing and,

indeed, contradicts most of what the state said in its closing argument at Figueroa’s

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trial. For example, the prosecutor said that Figueroa was a “screaming coward”

who, when his gun jammed, called for help, and Raleigh then “c[ame] running into

the room and sho[t] until his gun [wa]s spent.” By seizing on the “drunken boob”

comment, Raleigh mischaracterizes the state’s argument in Figueroa’s case. At

Raleigh’s trial, the state argued that Figueroa, too, was heavily involved in the

murder of Eberlin. After all, Figueroa helped Raleigh obtain the weapons;

Figueroa drove him to and from Cox’s trailer; and Figueroa fired the first shot at

Eberlin. And, indeed, nothing said during Figueroa’s trial undercut the state’s

concession in its opening statement that Raleigh killed Cox alone, and then shot at

and beat Eberlin. The Florida Supreme Court reasonably concluded that the state

did not present contradictory theories in the two cases.

Second, and perhaps even more basic, Raleigh’s inconsistent-theories claim

has no foundation in clearly established federal law. Raleigh insists that the

Florida Supreme Court misunderstood his claim as having arisen under the Due

Process Clause of the Fourteenth Amendment, rather than from the Supreme

Court’s Eighth Amendment precedent establishing the need for heightened

reliability in capital cases. On appeal, Raleigh unambiguously disavows any

reliance on the Due Process Clause. And, indeed, as the district court recognized,

any claim under the Due Process Clause would be expressly foreclosed by

Eleventh Circuit precedent. In Fotopoulos v. Secretary, Department of

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Corrections, 516 F.3d 1229, 1235 (11th Cir. 2008), a panel of this Court held that

the Supreme Court’s most relevant due process precedent -- Berger v. United

States, 295 U.S. 78 (1935) -- did not hold that the state may not rely on

inconsistent theories in seeking the death penalty against co-defendants in separate

trials. Recognizing that his due process claim is a nonstarter, Raleigh insists that

he is relying only on the Supreme Court’s Eighth Amendment jurisprudence.

Raleigh has recast this claim under the Eighth Amendment, but that does not

change its fate. The Supreme Court has never held that a state violates due process

or the Eighth Amendment when it presents contradictory theories at separate

capital trials.

Nevertheless, Raleigh relies principally on Bradshaw v. Stumpf, 545 U.S.

175 (2005), which was decided seven years after his death sentence became final,

to support his Eighth Amendment claim. In that case, Stumpf and Wesley robbed

and murdered a woman. See id. at 178-79. Stumpf pled guilty, and the state

pursued and obtained a death sentence for him by persuading the state sentencing

panel that he “was the principal offender” in the murder. See id. at 178-80

(quotation omitted). Subsequently, Wesley admitted to a jailhouse informant that

he had fired the fatal shots. Id. at 180. The state then presented that admission to a

jury in seeking a death sentence for Wesley, arguing that he had been the principal

offender in the murder. Id. at 180. Stumpf sought federal habeas relief, and the

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Sixth Circuit vacated his conviction and sentence based on its determination that

“prosecutorial inconsistencies between the Stumpf and Wesley cases required

voiding of Stumpf’s guilty plea.” Id. at 186-87. The Supreme Court reversed the

Sixth Circuit’s grant of habeas relief as to Stumpf’s conviction because the precise

identity of the triggerman was immaterial to Stumpf’s conviction for aggravated

murder under state law. Id. at 187. However, the Court remanded the case for the

Sixth Circuit independently to consider whether Stump was entitled to relief

regarding his death sentence because it was “not clear whether the Court of

Appeals would have concluded that Stumpf was entitled to resentencing had the

court not also considered the conviction invalid.” Id.

Raleigh relies essentially on Justice Souter’s concurring opinion, where he

explained his view of the claim that the Court had remanded:

As I see it, Stumpf’s argument is simply that a death sentence may not

be allowed to stand when it was imposed in response to a factual

claim that the State necessarily contradicted in subsequently arguing

for a death sentence in the case of a codefendant. Stumpf’s position

was anticipated by Justice STEVENS’s observation 10 years ago that

“serious questions are raised when the sovereign itself takes

inconsistent positions in two separate criminal proceedings against

two of its citizens,” and that “[t]he heightened need for reliability in

capital cases only underscores the gravity of those questions ... .”

Jacobs v. Scott, 513 U.S. 1067, 1070 (1995) (citations and internal

quotation marks omitted). Justice STEVENS’s statement in turn

echoed the more general one expressed by Justice Sutherland in

Berger v. United States, 295 U.S. 78, 88 (1935), that the State’s

interest in winning some point in a given case is transcended by its

interest “that justice shall be done.” Ultimately, Stumpf’s argument

appears to be that sustaining a death sentence in circumstances like

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those here results in a sentencing system that invites the death penalty

“to be wantonly . . . and freakishly . . . imposed.” Lewis v. Jeffers,

497 U.S. 764, 774 (1990).

Stumpf, 545 U.S. at 189-90 (Souter, J., concurring). Notably, however, Justice

Thomas also concurred in Stumpf, observing that “[t]his Court has never hinted,

much less held, that the Due Process Clause prevents a State from prosecuting

defendants based on inconsistent theories.” Id. at 190 (Thomas, J., concurring).

The purported Eighth Amendment rule that Raleigh tries to draw from

Justice Souter’s concurrence in Stumpf is not clearly established law for AEDPA

purposes, either now or at the time Raleigh’s conviction became final in 1998. In

the first instance, the distinction Raleigh attempts to draw between a due process

challenge to a conviction and an Eighth Amendment challenge to his sentence is

misguided. Justice Souter viewed the claim that the Court remanded in Stumpf as

a due process claim, not as an Eighth Amendment claim. See Stumpf, 545 U.S. at

188 (Souter, J. concurring) (“I understand Stumpf to claim that it violates the basic

due process standard, barring fundamentally unfair procedure, to allow his death

sentence to stand in the aftermath of three positions taken by the State . . . .”). In

fact, none of the opinions in Stumpf even mentioned the Eighth Amendment, and

the question remanded by the majority was whether the prosecutor’s conduct

“amounted to a due process violation.” Id. at 187-88 (majority op.). The long and

short of it is that neither Stumpf nor its rationale provides Raleigh with a way

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around Justice Thomas’s observation that the Supreme Court “has never hinted,

much less held, that the Due Process Clause prevents a State from prosecuting

defendants based on inconsistent theories.” Id. at 190 (Thomas, J., concurring).

Moreover, the principal support cited by Justice Souter in his concurrence is

an earlier dissent by Justice Stevens from a denial of a stay of execution, where

Justice Stevens called for the Court to hold that states cannot take inconsistent

positions in criminal trials or capital sentencing. See Stumpf, 545 U.S. at 189

(Souter, J., concurring) (citing Jacobs, 513 U.S. at 1070 (Stevens, J., dissenting)).

This, too, was an implicit recognition that Stumpf’s claim is not clearly established

law. The other support cited by Justice Souter -- Berger, 295 U.S. at 88 -- plainly

is a due process case on which Raleigh expressly disavows reliance and, in any

event, which we have held does not preclude the state from using inconsistent

theories in separate capital proceedings. See Fotopoulos, 516 F.3d at 1235. Justice

Souter’s concurrence in Stumpf cannot and does not show that it is clearly

established as a matter of Eighth Amendment law (or, for that matter, due process)

that the state may not take inconsistent positions.8

8

Raleigh also relies on Johnson v. Mississippi, 486 U.S. 578 (1988), where the Supreme

Court held that, where a death sentence rests in part on a prior conviction that has subsequently

been vacated, the state must reconsider whether death would have been imposed had the

sentencer not considered the prior conviction. Id. at 584-85. To find, based on the Court’s

holding in Johnson, that the rule advanced by Raleigh was “clearly established” would enable

courts to “transform even the most imaginative extension of existing case law into ‘clearly

established Federal law, as determined by the Supreme Court.’” Nevada v. Jackson, 569 U.S.

__, 133 S. Ct. 1990, 1994 (2013) (quoting 28 U.S.C. § 2254(d)(1)).

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In short, there was nothing unreasonable about the Florida Supreme Court’s

rejection of Raleigh’s inconsistent-theories claim.

C. Claim Three: Ineffective Assistance of Counsel Relating to Figueroa’s

Taped Statement

1.

In order to establish a claim for ineffective assistance of counsel under the

Sixth Amendment, Raleigh must show that (1) his counsel’s performance was

deficient and “fell below an objective standard of reasonableness,” and (2) the

deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.

668, 687-88 (1984). For the deficient performance prong of Strickland, we must

determine “whether, in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.” Id.

at 690. “Judicial scrutiny of counsel’s performance must be highly deferential,”

and “a court must indulge a strong presumption that counsel’s conduct falls within

a wide range of reasonable professional assistance.” Id. at 689; see also Chandler

v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc) (explaining that

the “petitioner must establish that no competent counsel would have taken the

action that his counsel did take”). “Under Strickland, a defendant is prejudiced by

his counsel’s deficient performance if ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

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different.’” Porter v. McCollum, 558 U.S. 30, 40 (2009) (quoting Strickland, 466

U.S. at 694). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694.

Moreover, under AEDPA, “[t]he question ‘is not whether a federal court

believes the state court’s determination under the Strickland standard ‘was

incorrect but whether that determination’ was unreasonable -- a substantially

higher threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting

Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Indeed, the Supreme Court has

explained that “because the Strickland standard is a general standard, a state court

has even more latitude to reasonably determine that a defendant has not satisfied

that standard.” Id. The Supreme Court has further explained that “[t]he standard

created by Strickland and § 2254(d) are both highly deferential, and when the two

apply in tandem, review is doubly so.” Harrington v. Richter, 562 U.S. 86, 105

(2011) (quotations and citations omitted).

2.

Raleigh first claims that his trial counsel’s decision to open the door to the

admission of Figueroa’s taped statement constituted ineffective assistance of

counsel. The Florida Supreme Court rejected this claim on the merits, concluding

that counsel made a reasonable strategic decision to allow the statement into

evidence. Raleigh II, 932 So. 2d at 1064-65. Raleigh offers four reasons why he

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believes trial counsel unreasonably invited the admission of the recorded

statement. None is sufficient to overcome the doubly deferential review owed to

the Florida Supreme Court’s decision. See Harrington, 562 U.S. at 105.

At the outset, Raleigh argues that trial counsel could not have reasonably

believed that Figueroa’s taped statement provided any benefit to Raleigh’s case.

This argument -- which forms the lynchpin of Raleigh’s ineffective assistance

claim -- is unconvincing. Viewing Figueroa’s statement as a whole and in the

context of Raleigh’s theory of the case as presented at the penalty phase, trial

counsel sensibly could have concluded that the taped statement would help spare

Raleigh’s life. First, the questions that opened the door to the admission of

Figueroa’s taped statement were important to Raleigh’s theory of the case.

Raleigh’s counsel asked Investigator Horzepa about how Figueroa had described

the initial confrontation between Raleigh and Cox -- which started when Raleigh’s

mother “had been called a bad name” by Cox. Raleigh II, 932 So. 2d at 1057.

This fact supported Raleigh’s claim that he had not planned the murders ahead of

time. Raleigh’s counsel also asked Investigator Horzepa to confirm that Figueroa

admitted to owning the safe that contained the guns that were used during the

murders. Id. This admission supported Raleigh’s theory that Figueroa was in

control and spurred Raleigh to commit the murders. In fact, Figueroa’s statement,

as a whole, portrayed the murders as an out-of-control effort to scare Cox, which

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thoroughly undercut the state’s theory that Raleigh orchestrated the murders in

order to take over Cox’s drug territory. In the statement, Figueroa said that

Raleigh had told him he shot Cox because he feared that Cox had a weapon.

Moreover, Figueroa insisted the only reason for the murders was that Raleigh

“wanted to go over and scare [Cox]” because of “the insults that were thrown at

[Raleigh’s] mom.” Because Figueroa’s taped statement was largely consistent

with the arguments trial counsel presented at the penalty phase and it undercut the

state’s depiction of the murders, the Florida Supreme Court reasonably deferred to

counsel’s broad discretion to invite its admission.

Even setting aside that counsel had a reasonable basis to want the jury to

hear the taped statement, Raleigh’s claim still would fail. The question counsel

faced was not just whether admission of the recorded statement affirmatively

benefitted Raleigh, but also whether allowing the jury to hear the taped statement

was preferable to running the risk that the state might call Figueroa. Since

Figueroa’s live testimony could not be controlled, counsel had reason to fear what

Figueroa might actually say if he was called to testify. Nevertheless, Raleigh

points out that there were pending death penalty charges against Figueroa at the

time of Raleigh’s trial, making it unreasonable to think that Figueroa would

actually testify in Raleigh’s case. However, this argument is not fully supported by

the record. Raleigh’s attorneys testified at the state court evidentiary hearing that

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the state had repeatedly made clear to them that Figueroa might testify against

Raleigh, and that they feared the state would reach a plea agreement with Figueroa

and call him to testify. In light of what counsel knew, the Florida Supreme Court

reasonably determined that counsel’s performance did not fall “outside the wide

range of professionally competent assistance.” Strickland, 466 U.S. at 690.

Third, Raleigh argues, if the state planned to call Figueroa to testify at his

penalty-phase hearing, it would have been required to notify Raleigh’s counsel that

Figueroa was a potential witness and was planning to waive his Fifth Amendment

rights, which it did not do. Therefore, he maintains, counsel could not reasonably

have believed that Figueroa would be called to testify. But the Florida Supreme

Court could reasonably have concluded otherwise because -- as far as we can tell --

no provision of Florida law would have prevented the state from either reaching a

deal with Figueroa during Raleigh’s trial and then calling him to testify, or calling

Figueroa to testify as a rebuttal witness.9 Finally, Raleigh says, there was no

agreement between trial counsel and the state that they would not call Figueroa to

testify if the taped statement was admitted, so it was objectively unreasonable to

invite introduction of the taped statement in order to keep Figueroa off the stand.

However, the Florida Supreme Court reasonably concluded otherwise. Trial

9

Indeed, the only case that Raleigh has cited suggests that the state can add to its witness

list at any time, as long as the defendant is given an opportunity to question the witness before he

testifies. See Richardson v. State, 246 So. 2d 771, 775-76 (Fla. 1971) (allowing state to notify

defendant on the day before trial that his co-defendant had reached a plea agreement and would

be testifying against him).

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counsel knew that the state was intent on presenting Figueroa’s version of events to

the jury. In fact, nothing in the record contradicts defense counsel Teal’s

impression, as revealed in his post-conviction testimony, that “Domingo Figueroa,

the co-defendant[,] was waiting in the wings to testify against Bobby. And that

was made known to us by the State.”

At bottom, Raleigh asks us to second guess trial counsel’s decision to invite

the admission of Figueroa’s taped statement into evidence -- which arguably

helped Raleigh rebut the state’s theory of the case -- in exchange for reducing the

risk that the state would call Figueroa to testify live. “Which witnesses, if any, to

call, and when to call them, is the epitome of a strategic decision, and it is one that

we will seldom, if ever, second guess.” Waters v. Thomas, 46 F.3d 1506, 1512

(11th Cir. 1995) (en banc). The evidence in the record does not show that “no

competent counsel would have taken the action that [Raleigh’s] counsel did take,”

Chandler, 218 F.3d at 1315, let alone that the Florida Supreme Court acted

unreasonably when it deferred to counsel’s choice. Accordingly, we must defer to

the state high court’s decision.

3.

In his federal habeas petition, Raleigh argued for the first time that his trial

counsel were ineffective for failing to call Figueroa’s uncle to testify at Raleigh’s

penalty phase. AEDPA requires that a petitioner exhaust all state remedies before

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seeking relief on a federal claim. See 28 U.S.C. § 2254(b)(1)(A). Exhaustion

requires a state petitioner to “fairly present federal claims to the state courts in

order to give the State the opportunity to pass upon and correct alleged violations

of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995)

(quotations omitted, alteration adopted). Exhaustion is a “serious and meaningful”

requirement. Keeney v. Tamanyo-Reyes, 504 U.S. 1, 10 (1992) (subsequent

history omitted). The petitioner must have presented the claim in a manner that

affords “the State a full and fair opportunity to address and resolve the claim on the

merits.” Id. A claim is procedurally defaulted for purposes of federal habeas

review “if the petitioner failed to exhaust state remedies and the court to which the

petitioner would be required to present [the claim] in order to meet the exhaustion

requirement would now find the claim[] procedurally barred.” Coleman v.

Thompson, 501 U.S. 722, 735 n. 1 (1991) (subsequent history omitted).

Raleigh concedes that he failed to exhaust his claim that trial counsel were

ineffective for failing to call Figueroa’s uncle to testify by not raising it in state

court. The Florida state courts would not now consider this claim because Raleigh

did not raise it in his initial post-conviction attack. See Fla. R. Crim. P.

3.851(e)(2). This portion of Raleigh’s ineffective assistance claim is, therefore,

procedurally defaulted, see Coleman, 501 U.S. at 735 n. 1, and “federal habeas

review of the claim[] is barred unless [Raleigh] can demonstrate cause for the

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default and actual prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claim[] will result in a fundamental

miscarriage of justice.” Id. at 750. He can do neither.

“[A]n attorney’s errors during an appeal on direct review may provide cause

to excuse a procedural default; for if the attorney appointed by the State to pursue

the direct appeal is ineffective, the prisoner has been denied fair process and the

opportunity to comply with the State’s procedures and obtain an adjudication on

the merits of his claims.” Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309, 1317

(2012). “[C]ounsel’s failure to raise a particular claim on appeal is to be

scrutinized under the cause and prejudice standard when that failure is treated as a

procedural default by the state courts. Attorney error short of ineffective assistance

of counsel does not does not constitute cause for a procedural default even when

that default occurs on appeal rather than at trial.” Murray v. Carrier, 477 U.S. 478,

492 (1986). The Strickland standard for ineffective assistance of counsel governs

claims of ineffective assistance of appellate counsel. See Smith v. Robbins, 528

U.S. 259, 285 (2000). While defendants do not have a constitutional right to the

effective assistance of counsel on collateral review, ineffective assistance of

counsel in an “initial-review collateral proceeding” can constitute cause and

prejudice to excuse a procedural default if the collateral proceeding was the first

opportunity the defendant had to raise the procedurally defaulted claim. See

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Martinez, 132 S. Ct. at 1318. In order to establish prejudice to excuse a default,

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

result of the proceeding would have been different” absent the constitutional

violation. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). The

Supreme Court has “expressly rejected [the] contention that a showing of actual

prejudice ‘should permit relief even in the absence of cause.’” Murray, 477 U.S.

at 494 (quoting Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982)).

In an attempt to excuse his procedural default, Raleigh contends that his

state collateral counsel was constitutionally ineffective for failing to raise the claim

based on trial counsel’s failure to call Figueroa’s uncle as a witness and that this

ineffectiveness excuses his default. Florida courts generally prohibit defendants

from raising ineffective assistance of counsel claims on direct appeal. See Lambert

v. State, 811 So. 2d 805, 807 (Fla. Dist. Ct. App. 2002). Thus, Raleigh’s Rule

3.851 proceeding constituted an initial-review collateral proceeding, and

ineffective assistance by his collateral counsel could potentially provide cause to

excuse his procedural default. See Martinez, 132 S. Ct. at 1318. However, as we

see it, collateral counsel could reasonably have chosen not to raise this claim. The

ineffectiveness claim relating to Figueroa’s uncle’s testimony directly contradicts

Raleigh’s Giglio claim, since it is premised on the fact that trial counsel knew

about Figueroa’s uncle’s testimony during Raleigh’s trial. The Giglio claim, in

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contrast, is grounded in Raleigh’s assertion that he only learned of the uncle’s

testimony when the government presented it during Figueroa’s trial. Raleigh’s

collateral counsel was not unreasonable for failing to present contradictory claims

in the same petition. And given the substantial deference that courts must pay to

trial counsels’ strategic decisions, collateral counsel reasonably could have

believed that the Giglio claim gave Raleigh the best chance to win.

Moreover, Raleigh was not prejudiced by his collateral counsel’s failure to

raise this claim because it was clearly without merit. For the reasons we’ve

discussed already, the result of Raleigh’s sentencing proceeding would not have

been affected by Figueroa’s uncle’s testimony that Figueroa had admitted to killing

one of the victims. Because Raleigh’s underlying ineffective assistance claim was

unmeritorious, he was not prejudiced by collateral counsel’s failure to raise it. See

Smith, 528 U.S. at 285-86. And because collateral counsel’s failure to raise this

ineffectiveness claim was not itself ineffective assistance of counsel, Raleigh has

shown neither cause nor prejudice to excuse his procedural default. See Murray,

477 U.S. at 488.

In the absence of cause and prejudice, Raleigh’s procedurally defaulted

claim may be reached on federal habeas review only if failure to address the claim

would result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750

(quotations omitted). In the capital sentencing context, this requires him to prove

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that, but for the alleged constitutional error, “no reasonable juror would have found

him eligible for the death penalty under [Florida] law.” Sawyer v. Whitley, 505

U.S. 333, 350 (1992) (emphasis added). Raleigh has not argued, let alone proven

that the failure to excuse his procedural default would result in a fundamental

miscarriage of justice. Because Raleigh has not excused the procedural default of

this ineffective assistance claim, it cannot provide a basis for federal habeas relief.

But, even if this claim had not been procedurally defaulted, we would still

find it without merit. Nothing in the record shows that counsel knew of Figueroa’s

uncle’s statement in time to present it at Raleigh’s trial. In fact, Raleigh’s Giglio

claim is premised on the fact that the government never told trial counsel about

Figueroa’s uncle’s statement. See Routly v. Singletary, 33 F.3d 1279, 1286 (11th

Cir. 1994) (“There is no violation of due process resulting from prosecutorial non-

disclosure of false testimony if defense counsel is aware of it and fails to object”).

In his opening brief on appeal, Raleigh faults the district court and Florida

Supreme Court precisely for failing to make any “factual finding as to whether

Figueroa’s statement to his uncle had been disclosed to the defense or whether

Raleigh’s counsel had been deliberately deceived.” And in his reply brief on

appeal, he distinguishes Routly, arguing that his counsel did not learn about

Figueroa’s uncle’s testimony at least until after Figueroa’s trial. Counsel cannot be

deemed ineffective for failing to present what they did not have.

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D. Claim Four: Counsel’s Failure to Prepare Dr. Upson

1.

During the penalty phase, Raleigh presented the testimony of psychologist

Dr. James Upson in support of his mitigation case. On cross-examination, the state

questioned Dr. Upson extensively regarding his knowledge of certain details about

Raleigh’s crimes. He admitted that he had not been provided certain information

about Raleigh’s behavior prior to the murders, that he knew “very little” about the

murders, and that the additional information “might” have made a difference in his

testimony. Raleigh argues that Dr. Upson’s credibility was destroyed when his

lack of knowledge about the crimes was exposed, and that trial counsel were

unconstitutionally ineffective for failing to better prepare him to testify. The

Florida Supreme Court denied this claim on the merits, finding that, even assuming

a deficiency in performance, Raleigh had “failed to establish prejudice” because

he had not “established that Dr. Upson’s testimony would have been more

favorable or materially more credible if Dr. Upson had been provided with

[additional] facts.” Raleigh II, 932 So. 2d at 1063.

In a capital sentencing proceeding, defense counsel has “an obligation to

conduct a thorough investigation of the defendant’s background.” Porter, 558 U.S.

at 39 (quotation omitted). However, “the mere fact a defendant can find, years

after the fact, a mental health expert who will testify favorably for him does not

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demonstrate that trial counsel was ineffective for failing to produce that expert at

trial.” Davis v. Singletary, 119 F.3d 1471, 1475 (11th Cir. 1997). To establish

prejudice from a failure to adequately investigate or present mitigating evidence in

the capital sentencing context, a petitioner “must show that but for his counsel’s

deficiency, there is a reasonable probability he would have received a different

sentence.” Porter, 558 U.S. at 41. “To assess that probability, we consider ‘the

totality of the available mitigation evidence -- both that adduced at trial, and the

evidence adduced in the habeas proceeding’ -- and ‘reweig[h] it against the

evidence in aggravation.’” Id. (quoting Williams, 529 U.S. at 397–398).

Raleigh first argues that the Florida Supreme Court applied the wrong legal

standard and, therefore, its decision was “contrary to” clearly established federal

law. He contends that the prejudice standard employed by the Florida Supreme

Court imposed an additional burden on him, and that the court was required to find

prejudice “if adequate investigation would have provided corroborating support for

a mental health expert’s conclusions that were attacked as insufficiently

supported.” But Raleigh’s argument misapprehends the standard applied by the

Florida Supreme Court, which held that Raleigh had failed to show that, had

counsel provided Dr. Upson with the additional information, his testimony would

have been “more favorable or materially more credible.” Raleigh II, 932 So. 2d at

1063 (emphasis added). His criticism of this standard is that it ignores the fact that

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a defendant is prejudiced when a failure to investigate rendered the expert’s

conclusions “insufficiently supported.” But by asking whether the testimony

would have been “materially more credible,” the court performed the exact inquiry

that Raleigh argues federal law requires. If, as the Florida Supreme Court

concluded, Dr. Upson’s testimony was not materially affected by counsel’s failure

to adequately prepare him, it naturally follows that there was no “reasonable

probability he would have received a different sentence.” Porter, 558 U.S. at 41.

Thus, its prejudice inquiry was not contrary to Strickland and is progeny.

Raleigh argues in the alternative that the Florida Supreme Court’s prejudice

analysis was an “unreasonable application” of Strickland. He identifies six ways in

which counsel allegedly failed to adequately prepare Dr. Upson to testify at

Raleigh’s penalty-phase hearing. Even assuming that these failures occurred and

that each of them was objectively unreasonable, the Florida Supreme Court

reasonably determined that Raleigh had not sustained any prejudice.

First, Raleigh argues that counsel should have discussed the statement of

Ronald Baker with Dr. Upson to help prepare him to testify. At Raleigh’s trial,

Baker testified that he was at Cox’s house the first time that Raleigh came by to

see Cox on the night of the murders. He said that Raleigh came to the house

waving a gun and was “[r]eal nervous like, couldn’t stand still, real cocky”;

Raleigh was talking about a drug deal and threatened to shoot other people who

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were waiting outside; and Raleigh then jumped the fence surrounding the yard and

left the area. Baker further testified that he smelled alcohol on Raleigh’s breath

and that Raleigh appeared “kind of nervous and wired out,” but “he wasn’t “falling

down drunk” and had no trouble walking or speaking. The prosecutor cross-

examined Dr. Upson about certain aspects of Baker’s testimony, and Dr. Upson

conceded that he did not know that Raleigh had made threats to Baker and others

before the murders. Dr. Upson said that information “might” have made a

difference in his opinion, but that he would have to review it first. Raleigh seizes

on this exchange to argue that, had Dr. Upson been aware of Baker’s testimony,

Dr. Upson’s testimony would have been more credible in the eyes of the jury.

If counsel had discussed Baker’s statement with Dr. Upson prior to trial, Dr.

Upson would have known that, prior to the murders: Raleigh had been drinking but

was not “falling down drunk”; he was nervous and couldn’t stand still; he

threatened to kill other people; and he was talking about a drug deal. But Dr.

Upson was well aware that Raleigh had been drinking, since he testified that “the

record indicate[d] [Raleigh] had been drinking quite heavily.” Raleigh has not

explained how the other information conveyed in Baker’s testimony -- that Raleigh

threatened to kill other people, was nervous, and was talking about a drug deal --

would have made Dr. Upson’s testimony materially more credible or favorable or

otherwise would have advanced his defense. This information could not have

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improved the substance of Dr. Upson’s testimony because it uniformly supported

the prosecutor’s theory that the murder was premeditated and was committed in

order to eliminate a rival drug dealer. Moreover, in spite of extensive cross-

examination on this issue, Dr. Upson only said that the information contained in

Baker’s testimony “might” have affected his opinion. There is nothing in the

record to suggest that Dr. Upson’s testimony would have been materially more

favorable had he known what Baker witnessed.

Raleigh also faults counsel for failing to discuss the statement of Patricia

Pendarvis with Dr. Upson. But Pendarvis, Baker’s fiancé, testified to essentially

the same facts as Baker. She said that she had witnessed Raleigh’s interaction with

Baker while she was sitting in a car in Cox’s driveway. Raleigh told her that he

was supposed to make a “deal” with Cox and that “everything was all about

making money.” She testified that he smelled like alcohol but that he wasn’t

falling down or confused and was able to hop over the gate without difficulty.

Third, Raleigh argues that his counsel unreasonably failed to discuss with

Dr. Upson the statement of Andy Bennett, who was Raleigh’s girlfriend at the time

of the murders and had been with him at Club Europe prior to the murders.

However, Bennett did not testify at trial, her statement is not anywhere in the

record, and Raleigh does not explain what information she would have relayed to

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Dr. Upson. Raleigh has failed to provide any reason to think that this alleged

omission by counsel affected Dr. Upson’s testimony.

Next, Raleigh alleges that trial counsel unreasonably failed to discuss with

Dr. Upson Raleigh’s behavior in the week leading up to the murders. Dr. Bordini

identified certain relevant aspects of Raleigh’s behavior in the week leading up to

the murders, specifically that Raleigh had felt “increasingly out of control” and

asked his mother for help, but she told him to help himself. Furthermore, Raleigh

had “almost nightly alcohol blackouts” beginning in April of 1994, two months

before the murders. After reviewing the entire record, we are satisfied that the

Florida Supreme Court could reasonably have concluded that more information

about Raleigh’s drinking would not have materially affected Dr. Upson’s

testimony. Dr. Upson testified about the effects of alcohol on Raleigh on the night

of the murders. When Dr. Upson was asked whether Raleigh killed Eberlin to

eliminate a witness, he answered that his “impression [of] the night of the crime

was that there had been a considerable amount of ingesting of alcohol, and that

other factors may be impacting what happened.” Dr. Upson explained that he was

not suggesting that Raleigh “didn’t know what he was doing,” but that “the record

indicate[d] [Raleigh] had been drinking quite heavily.” He ultimately concluded

that alcohol “may have impacted [Raleigh’s] neuro-psychological function” but

that Raleigh “had his behavior under control as far as making decisions.” The jury

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and the sentencing judge, too, were well aware that Raleigh had been drinking

before the murders. The trial court accepted this fact, but found that it did not

reduce Raleigh’s culpability:

There is no doubt that Raleigh consumed a great deal of alcohol

before the murders. This Court cannot find, however, that his

condition was “extreme”. He acted too purposefully and competently

in getting the guns, going to the trailer, doubling back after

encountering Baker, et al, in executing Cox, physically beating

Eberlin, and in disposing of evidence afterwards. If Raleigh was

under extreme mental or emotional disturbance he would not have

been able to accomplish all this. Also, witnesses said while Raleigh

was under the influence he was coherent, could carry on a

conversation, had no trouble walking, and had no trouble climbing the

fence. Finally, the Defendant himself admitted he has developed quite

a tolerance for alcohol.

Raleigh I, 705 So. 2d at 1330-31 (quoting trial court).

The remaining information about Raleigh’s behavior leading up to the

murders would not have materially improved Dr. Upson’s testimony or affected

the trial court’s findings, either. These facts are similar to Raleigh’s excessive

drinking in the days before the murder in that they tend to suggest that Raleigh was

not in control of his actions prior to or during the murders. But based on Raleigh’s

conduct on the night of the murders -- his two approaches to Cox’s trailer, his

execution of both men, and his subsequent cover-up of the murders -- the Florida

Supreme Court reasonably could have concluded that knowing more about his

alcohol consumption and erratic behavior would not have affected Dr. Upson’s

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testimony, and that more expert testimony about these factors would not have

affected the jury or the sentencing judge.

Fifth, Raleigh faults his trial counsel for failing to discuss statutory

mitigating factors with Dr. Upson, and argues that Dr. Upson did not know enough

about those factors to provide effective testimony. But this argument is squarely

refuted by the record and, in any event, is unmeritorious. The record contains this

colloquy with Dr. Upson:

Q: Are you aware of the statutory mitigating circumstances to be

utilized in a death penalty proceeding?

A: Yes.

Q: Did you find any statutory mitigating mental health circumstances

to apply in this case?

A: No.

Moreover, the Florida Supreme Court reasonably determined that Raleigh was not

prejudiced by any claimed unfamiliarity that Dr. Upson had with the mitigating

factors. Dr. Upson’s testimony in fact helped to establish many mitigating factors.

As the Florida Supreme Court accurately summarized:

Dr. Upson’s testimony helped the defendant establish one statutory

mitigator and at least seven of the fifteen nonstatutory mitigators. The

statutory mitigator was Raleigh’s age -- he was nineteen at the time of

the crime. The nonstatutory mitigators Dr. Upson’s testimony helped

to establish were: [Raleigh] (1) was intoxicated; (2) was remorseful;

(11) attempted suicide; (12) had low self-esteem; (13) suffered from

an adjustment disorder and was antisocial; (14) used poor judgment

and engaged in impulsive behavior; and (15) was a follower.

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Raleigh II, 932 So. 2d at 1062 n. 14.

Sixth and finally, Raleigh argues that counsel unreasonably failed to ask Dr.

Upson to make a clinical diagnosis of Raleigh pursuant to the Diagnostic and

Statistical Manual of Mental Disorders (“DSM IV”). In contrast, Dr. Bordini made

a clinical diagnosis of Raleigh because, he explained, that is the standard practice

in the field of psychiatry. However, the Florida Supreme Court could reasonably

have concluded Dr. Upson’s testimony would not have been materially different

had he made a clinical diagnosis. Indeed, Dr. Upson’s testimony covered all of the

same areas as Dr. Bordini’s clinical diagnosis. As part of his diagnosis, Dr.

Bordini found that Raleigh was suffering from a cognitive disorder, which he

described as “neuropsychological dysfunction . . . directly related to developmental

factors and frequent Freon inhalation.” In contrast, Dr. Upson testified that he

performed “a number of” neuropsychological tests, and “most of them turned out

to be very negative, that is to say there [were] no problems evident.” Therefore,

Dr. Upson simply reached a different diagnosis than Dr. Bordini. Raleigh has

provided us with no reason to think that this conclusion would have been affected

had counsel requested a diagnosis pursuant to the DSM IV.

Dr. Bordini also determined in his diagnosis that Raleigh had a borderline

personality disorder that would have made him impulsive, underassertive, and a

follower. Dr. Upson testified that Raleigh exhibited all of these characteristics,

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although not under the guise of a clinical diagnosis. For example, he stated that

“when complexity hits [Raleigh], when he’s overcome by situational stress, he falls

apart,” and that can lead him to make “bad judgments.” Similarly, Dr. Garcia, the

psychologist who treated Raleigh after his suicide attempt, testified that Raleigh

had “a lack of impulse control and poor judgment.” Dr. Upson also said that

Raleigh was “somewhat insecure,” “feels inferior at times,” “tends to lean and

depend on others,” and has “responded in the past very much in terms of his

perception of the needs and wants of others.” And, he opined, Raleigh is “a

passive dependent person” who “is easily manipulated by others” and is often

unaware that he is being manipulated. Because Dr. Upson’s testimony, as actually

presented during Raleigh’s penalty phase, essentially covered all of the same areas

as Dr. Bordini’s clinical diagnosis, the Florida Supreme Court could reasonably

have determined that Dr. Upson’s testimony would not have been materially

different if he had performed a clinical diagnosis.

2.

Raleigh offers two additional arguments regarding Dr. Upson’s testimony.

First, he asserts that Dr. Upson’s neuropsychological testing was less accurate than

Dr. Bordini’s, and that Dr. Upson should have determined that Raleigh had a

neuropsychological disorder. Second, he says that Dr. Upson’s testimony

concerning the “age” statutory mitigating factor was inadequate. Dr. Upson said

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that Raleigh was 19, and therefore qualified for the factor, whereas Dr. Bordini

went into greater detail about how Raleigh acted much younger than his age.

These arguments all relate to Dr. Upson’s adequacy as a mental health

expert, not to any act or omission by counsel. In his state collateral proceeding,

Raleigh raised a claim arising under Ake v. Oklahoma, 470 U.S. 68 (1985), where

the Supreme Court held that when a defendant has made a preliminary showing

that his sanity at the time of the offense is likely to be a significant factor at trial,

the Constitution requires that a “State provide access to a psychiatrist’s assistance

on [the issue of sanity] if the defendant cannot otherwise afford one.” Id. at 74.

Under Ake, “the State must, at a minimum, assure the defendant access to a

competent psychiatrist who will conduct an appropriate examination and assist in

evaluation, preparation, and presentation of the defense.” Id. at 83.

The Florida Supreme Court denied Raleigh’s Ake claim because it was

procedurally defaulted -- it had not been raised on direct appeal and did not fall

within Florida’s narrow exception to the procedural bar. See Raleigh II, 932 So.

2d at 1060-62. The district court agreed that the claim was procedurally defaulted

and determined that Raleigh had not provided a basis to excuse his procedural

default. Moreover, it found that Raleigh’s Ake claim was unmeritorious because,

“[f]rom Dr. Upson’s testimony, it is clear that [Raleigh] was provided a competent

mental health examination to assist in evaluation, preparation, and presentation of

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his defense.” Raleigh sought a Certificate of Appealability on his Ake claim from

this Court, which was denied. The only question relating to Dr. Upson’s testimony

on which a COA was granted was:

Whether Raleigh was denied the effective assistance of counsel at trial

because counsel failed to adequately prepare Raleigh’s mental health

expert to testify at the penalty phase of trial.

This is the only question that we may consider on appeal. See Jordan, 485 F.3d at

1356.

The long and short of it is, the Florida Supreme Court’s denials of Raleigh’s

claims were neither contrary to nor an unreasonable application of clearly

established federal law, nor were they based on an unreasonable determination of

the facts.

AFFIRMED.

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