Peter Ventura v. Attorney General, State of Florid

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

August 9, 2005

THOMAS K. KAHN

No. 04-14564 CLERK

________________________

D. C. Docket No. 02-01159-CV-ORL-19KRS

PETER VENTURA,

Petitioner-Appellant,

versus

ATTORNEY GENERAL, STATE OF FLORIDA,

SECRETARY, DEPARTMENT OF CORRECTIONS,

Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(August 9, 2005)

Before EDMONDSON, Chief Judge, MARCUS and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

In this capital case, Peter Ventura has petitioned for federal habeas corpus

relief on the ground that the state prosecutor’s knowing failure to correct a key

government witness’s false testimony that he received no consideration in

exchange for his testimony violated Ventura’s due process rights, as established in

Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). The

Supreme Court of Florida denied post-conviction relief, reasoning that Giglio’s

materiality element was unsatisfied, since there was no reasonable likelihood that

the false testimony could have affected the judgment of the jury.

After careful review of the record, we are convinced that the Florida court’s

disposition of Ventura’s Giglio claim was neither contrary to nor an unreasonable

application of clearly established federal law, and therefore we affirm the district

court’s denial of Ventura’s petition.

I.

Peter Ventura was convicted by a Florida jury of the 1981 murder of Robert

Clemente and sentenced to death. Clemente’s body was discovered on April 15,

1981, in a rural area of Volusia County off state route 44. The body was found in a

truck bearing the logo of Clemente’s employer, Crow’s Bluff Marina. Clemente

had been shot four times, beaten, and possibly stabbed.

Clemente’s former employer, Jerry Wright, had taken out a “key man”

insurance policy on Clemente’s life, without Clemente’s knowledge, when

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Clemente worked at Wright’s tire store. Wright then hired Jack McDonald to

murder Clemente in exchange for half of the insurance proceeds. McDonald, in

turn, hired the petitioner, Ventura, to commit the murder.

On June 25, 1981, Ventura was arrested in Chicago and McDonald was

arrested in Florida. Both were indicted for first-degree murder on June 30, 1981.

Ventura was released on bond in Chicago while awaiting extradition, and failed to

appear at his extradition hearing on August 18, 1981. He remained a fugitive until

June 11, 1986, when he was apprehended in Austin, Texas. In the meantime, the

state determined that it could not successfully prosecute McDonald without

Ventura’s cooperation. McDonald had remained incarcerated without trial until

the expiration of Florida’s speedy-trial deadline, which requires the state to

commence trial within six months of indictment. Thereafter, by operation of

Florida’s law, McDonald became immune from prosecution for Clemente’s

murder.1

After being released unconditionally by Florida, however, McDonald was

indicted by a federal grand jury sitting in the Northern District of Illinois in 1983

on charges arising out of his involvement in a Chicago bank fraud scheme. He

pled guilty and was sentenced to three consecutive five-year terms of

1

Jerry Wright was tried and convicted of the first-degree murder of Robert Clemente in

February, 1990, and sentenced to life imprisonment.

3

imprisonment. After sentencing, McDonald was released on bond, and

subsequently failed to report for his incarceration. He remained a fugitive until he

was apprehended in Georgia some four years later on September 23, 1987.

On January 11, 1988, Ventura was brought to trial for Robert Clemente’s

murder in the Circuit Court for the Seventh Judicial Circuit in Volusia County.

McDonald, by then back in federal custody, testified against Ventura. Among

other things, the state prosecutor, Stark, asked McDonald on direct examination,

“Any promises been made to you concerning your testimony here?” to which

McDonald replied, “None whatsoever.”

Then, on redirect, Stark asked McDonald, “And what is your motivation for

testifying here today?” McDonald explained: “Well, I’m nearing sixty years of

age. This is probably, undoubtedly, the most horrendous thing I have ever been

involved in, and I think it is about time we cleared the air and it might give Mr. and

Mrs. Clemente a little peace of mind knowing exactly what happened.”

Ventura’s counsel, Cass, followed up on this on recross-examination, in this

exchange with McDonald:

Q. You have just said that your motive for testifying is simply to

clear the air, and bring the truth out; is that correct?

A. That’s correct.

Q. And for no other reason?

4

A. None.

Q. And because you’re in a position where it doesn’t really cost

you anything to say it?

A. That’s correct.

A jury convicted Ventura of Clemente’s murder and then recommended the

death penalty. The trial judge adopted the jury’s recommendation and sentenced

Ventura to die on January 21, 1988. The Supreme Court of Florida affirmed both

Ventura’s conviction and the death sentence on direct review. Ventura v. State,

560 So. 2d 217 (Fla. 1990).

Thereafter, it came to light that McDonald had, in fact, been testifying

pursuant to a deal with the prosecution. A series of letters document this

arrangement. First, on December 19, 1986 -- while McDonald was still a fugitive -

- Stark wrote the U.S. Attorney’s Office in Chicago (the office that prosecuted the

bank-fraud case against McDonald) explaining the Clemente case and asking for

assistance in securing McDonald’s testimony. Stark’s letter stated, in part:

While I understand the obvious reluctance of the sentencing court to

show lienience [sic] upon Mr. McDonald especially in light of the fact

that he took advantage of the court’s prior lieniency [sic] by failing to

report to prison after having been given time to get his affairs in order,

I feel that the interests of justice could be better served by having Mr.

McDonald on lengthy probation with a short jail term if necessary,

available to testify at the trial of Peter Ventura and possibly Jerry

Wright (in the event he is indicted).

5

I would appreciate any consideration your office could give in the

effort to locate Jack McDonald, or coax him out of hiding.

On March 6, 1987, the U.S. Attorney replied to Stark, explaining that it was

too late to modify McDonald’s sentence in the bank fraud case, but that if

McDonald testified against Ventura, “his cooperation and truthful testimony in that

case can be made known to the Federal Parole Board at his first parole hearing.”

The letter further stated: “Should Mr. McDonald surrender to federal authorities

and also appear as a witness at Mr. Ventura’s trial, this office will consider the

nature of Mr. McDonald’s cooperation and truthful testimony in evaluating

whether to pursue further prosecution of Mr. McDonald on bond jumping

charges.” No promise was made, however, at that time concerning the prosecution

of McDonald on federal bond-jumping charges.

Several months later, on September 3, 1987, McDonald wrote a letter to one

of the investigative agents, Detective Hudson of the Volusia County Sheriff’s

Office, stating:

If anyone is interested in my testimony at this point in time it will

have to be a two for one trade. In other words I will cooperate fully

provided I am released by court order from all federal charges

including the IRS. . . . If you can get a court order to this effect out in

front I will promptly turn myself in and cooperate fully. . . . Should it

be decided that the U.S. Gov’t and the State of Florida can handle this

I will give you whatever time is necessary to clear this up. But again,

I can only do it as a free man. If by some fluke I am apprehended

without any deal being made I will rot in hell before I would give any

6

testimony on anything. This is a promise.

Soon thereafter, on September 23, McDonald was taken into federal custody.

Two days later, Stark again wrote the U.S. Attorney’s Office, in an effort to secure

a deal for McDonald on possible federal bond-jumping charges in exchange for his

testimony at the Ventura trial. This letter stated, in pertinent part:

Pursuant to our telephone conversation of today’s date, I would like to

formally request that you consider dismissing the bond jumping

charges against Jack McDonald. . . . On September 24th, David

Hudson, the lead investigator on the Ventura case[,] interviewed Mr.

McDonald and was assured of McDonald’s cooperation with us in the

prosecution of Peter Ventura and others involved in the murder of one

Robert Clemente. Needless to say, Mr. McDonald is a crucial witness

in both cases. The case of the State of Florida vs. Peter Ventura is

presently scheduled for trial in Circuit Court, Volusia County on

October 12, 1987. Mr. McDonald’s cooperation is essential.

The U.S. Attorney then agreed not to prosecute McDonald for bond

jumping.2 An October 5, 1987 letter from the U.S. Attorney to Stark stated:

2

In 1983, when McDonald jumped bond, bond jumping carried a penalty of a fine of up

to $5000, and/or up to five years’ incarceration. The statute in effect at that time, 18 U.S.C. §

3150 (which was enacted in 1966 and repealed in 1984), stated:

Whoever, having been released pursuant to this chapter, willfully fails to appear

before any court or judicial officer as required, shall, subject to the provisions of

the Federal Rules of Criminal Procedure, incur a forfeiture of any security which

was given or pledged for his release, and, in addition, shall (1) if he was released

in connection with a charge of felony, or while awaiting sentence of pending

appeal or certiorari after conviction of any offense, be fined not more than $5,000

or imprisoned not more than five years, or both, or (2) if he was released in

connection with a charge of misdemeanor, be fined not more than the maximum

provided for such misdemeanor or imprisoned for not more than one year, or

both, or (3) if he was released for appearance as a material witness, shall be fined

not more than $1,000 or imprisoned for not more than one year, or both.

7

Pursuant to your request, my office will not pursue bond-

jumping charges against Jack McDonald as long as he cooperates

fully with your office in the upcoming murder case referred to in your

letter of September 25, 1987. Should Mr. McDonald fail to testify

truthfully in that case or in some other way fail to cooperate with your

office, we will then be free to pursue bond-jumping charges.

Moreover, this agreement does not affect Mr. McDonald’s

obligation to serve the federal sentence which has been imposed for

his prior criminal conduct in this district.

Immediately after Ventura’s trial, on January 20, 1988, Stark wrote another

letter to the U.S. Attorney’s Office explaining that “[w]hile there were no promises

made to Mr. McDonald in return for his testimony,” he “fe[lt] a compelling

obligation to advise [the U.S. Attorney’s Office] and the Court in Chicago of the

assistance provided by Mr. McDonald to the State of Florida in the prosecution of

those persons involved in the homicide of Robert G. Clemente.” Among other

things, Stark said:

While I realize that Jack McDonald is equally responsible for

the death of Robert Clemente, along with his two co-defendants, I also

recognize the fact that he did not have to provide information to the

State of Florida detailing each player’s participation in the overall

scheme to commit murder. He has testified in Mr. Ventura’s trial and

I anticipate calling him in Mr. Wright’s trial. He has previously stated

in deposition and at trial that his motive for giving his testimony has

been to clear the air and set the record straight so that the family of the

victim can have some peace of mind. He has also stated that “this is

Section 3150 did not require the trial judge to run the bond-jumping sentence consecutively to

the sentence for the underlying charges. However, under the current version of the statute, 18

U.S.C. § 3146, the sentences must run consecutively. Id. § 3146(b)(2).

8

the most horrendous crime he has ever been involved with.”

I believe I understand Mr. McDonald’s motivation to testify and

I further believe that his testimony has been extremely valuable in the

prosecution of his co-defendants. Whatever consideration can be

given him at any future hearings in his two Federal cases in return for

this assistance would, in my opinion, be in the interest of justice.

Corporal David Hudson of the Volusia County Sheriff’s Office

and I would appreciate the courtesy of a telephone call regarding the

scheduling of any future hearings to be held for Mr. McDonald so that

we can make arrangements to be heard by the Court considering Mr.

McDonald’s cooperation in Florida.

Finally, Stark wrote the U.S. Attorney’s Office again on October 31, 1988,

explaining that McDonald was cooperating in the case against Jerry Wright, and

that “[a]ny considerations [sic] that the Federal Courts could show Mr. McDonald

for his efforts in this regard for his cooperation to date and in the future would be

appreciated.” No record evidence indicates that the prosecutor at any time

communicated McDonald’s cooperation either to the federal district court in

Chicago or to the United States Parole Commission. McDonald was not indicted

for federal bond jumping.

On March 2, 1992, Ventura filed his first motion for postconviction relief in

the state trial court pursuant to Florida Rule of Criminal Procedure 3.850. Ventura

claimed that he was unable to file a proper postconviction motion because several

agencies had not satisfied his public records requests, and he listed the claims he

9

intended to raise once the requests were fulfilled. The trial court dismissed all of

Ventura’s claims, but the Supreme Court of Florida reversed the dismissal as

premature, directing the trial court to permit Ventura to amend his postconviction

motion after the public records issues were resolved. Ventura v. State, 673 So. 2d

479 (Fla. 1996).

On August 19, 1996, Ventura filed an amended postconviction motion in the

state trial court, this time raising fifteen claims, including a Giglio claim alleging,

based on the series of letters described above, that prosecutor Stark knowingly

offered false testimony that McDonald had received no consideration in exchange

for his trial testimony.

The trial court summarily dismissed ten of Ventura’s claims and, on June 1,

1998, held an evidentiary hearing on the remaining claims, including the Giglio

issue. At this hearing, Ventura’s counsel introduced the above-described letters,

and attorneys Stark and Cass both testified. Stark offered no explanation for

allowing the false testimony, claiming to have little recollection of the relevant

events. He could not definitively state whether the letters were disclosed to

Ventura. He said that his office maintained an “open-file policy,” which made

their entire file available to the defense, but could not recall whether the letters in

question were part of the file.

10

Defense counsel Cass testified that he did not recall ever being told about a

deal for McDonald in exchange for his testimony, that he was unaware of any

communications between the state attorney and the U.S. Attorney’s Office, and

that he remembered the frustration of not being able to impeach McDonald based

on his motive for testifying.

Following the hearing, the trial court denied Ventura’s remaining claims,

including his Giglio claim, with little explanation. Order, July 28, 1998. The trial

court apparently interpreted the Giglio claim as an ineffective assistance of counsel

claim, rejecting it on the ground that Ventura failed to demonstrate a reasonable

probability of a different result had counsel performed adequately. Id. at 1-2. In

reaching this conclusion, the trial court lumped the Giglio claim together with

several others, finding that “the other issues are not worthy of any specific

discussion.” Id. at 5.

The Supreme Court of Florida, by vote of 4-3, affirmed the denial of

postconviction relief. Ventura v. State, 794 So. 2d 553 (Fla. 2001). As to

Ventura’s Giglio claim, the supreme court found that the state had indeed secured a

deal for McDonald in exchange for his testimony, and that the prosecutor

knowingly presented false testimony to the contrary, but that the testimony was not

material. Because McDonald had been significantly impeached at trial, and

11

because McDonald’s testimony was extensively corroborated by other pieces of

compelling evidence, the Florida Supreme Court reasoned, evidence of the deal

was not “material” under Giglio. Id. at 562-65. The United States Supreme Court

subsequently denied cert. Ventura v. Florida, 535 U.S. 1098 (2002).

Ventura then petitioned for a writ of habeas corpus in the United States

District Court for the Middle District of Florida. After careful review, the district

court denied the petition. Order, Ventura v. Moore, No. 6:02-cv-1159-Orl-19KRS

(M.D. Fla. July 30, 2004). The district court expressed “grave doubts” about

whether the state supreme court had applied the correct materiality standard in

evaluating Ventura’s Giglio claim, since the state court had asked whether there

was “a reasonable probability that the false evidence may have affected the

judgment of the jury,” id. at 18 (quoting Ventura, 794 So. 2d at 563), rather than

whether “the false testimony could . . . in any reasonable likelihood have affected

the judgment of the jury,” id. (quoting Giglio, 405 U.S. at 154). Nevertheless,

although the state court had “misstated the Giglio rule,” the district court found

that “the decision itself” was neither contrary to nor an unreasonable application of

clearly established federal law. Id. at 20. Applying Giglio’s “any reasonable

likelihood” standard, the district court agreed with the state supreme court’s

conclusion that the substantial impeachment of McDonald at trial, as well as the

12

extensive corroboration of his testimony, established that “presentation of the

correct facts could not have altered the outcome of the trial,” and thus that the false

testimony was immaterial. Id. at 21.

On October 28, 2004, the district court granted a certificate of appealability

only as to Ventura’s Giglio claim. That claim is the only one now before us.

II.

Giglio error is a species of Brady error that occurs when “the undisclosed

evidence demonstrates that the prosecution’s case included perjured testimony and

that the prosecution knew, or should have known, of the perjury.” United States v.

Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). “If false

testimony surfaces during a trial and the government has knowledge of it, . . . the

government has a duty to step forward and disclose.” Brown v. Wainwright, 785

F.2d 1457, 1464 (11th Cir. 1986). “In order to prevail on a Giglio claim, a

petitioner must establish that the prosecutor knowingly used perjured testimony, or

failed to correct what he subsequently learned was false testimony, and that the

falsehood was material.” Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir.

1999).

The origins of the Giglio doctrine lie in the Supreme Court’s decision in

Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), which

13

held that a prosecutor’s failure to correct false testimony by the principal state

witness that he had received no promise of consideration in return for his testimony

violated the defendant’s Fourteenth Amendment due process rights and required a

reversal of the judgment of conviction. The Court explained that “it is established

that a conviction obtained through use of false evidence, known to be such by

representatives of the State, must fall under the Fourteenth Amendment.” Id. at

269 (citing Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791

(1935)). “The same result obtains when the State, although not soliciting false

evidence, allows it to go uncorrected when it appears.” Id. This principle, the

Court observed, “does not cease to apply merely because the false testimony goes

only to the credibility of the witness,” since “[t]he jury’s estimate of the

truthfulness and reliability of a given witness may well be determinative of guilt or

innocence, and it is upon such subtle factors as the possible interest of the witness

in testifying falsely that a defendant’s life or liberty may depend.” Id. Reversal

was required because “the false testimony used by the State in securing the

conviction may have had an effect on the outcome of the trial.” Id. at 272.

Subsequently, in Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L.

Ed. 2d 104 (1972), the Supreme Court held that the government’s failure to correct

false testimony that its key witness (the defendant’s coconspirator) had received no

14

promise of nonprosecution in exchange for his testimony, as well as the

prosecutor’s false statement to this effect in closing argument, required that the

defendant be granted a new trial. The Court explained that “deliberate deception of

a court and jurors by the presentation of known false evidence is incompatible with

rudimentary demands of justice.” Id. at 153 (citation and internal quotation marks

omitted).

The Giglio Court made clear, however, that such errors do not require

automatic reversal, and articulated a “materiality” standard to guide the

determination of whether a new trial is warranted:

We do not . . . automatically require a new trial whenever a combing

of the prosecutors’ files after the trial has disclosed evidence possibly

useful to the defense but not likely to have changed the verdict. A

finding of materiality of the evidence is required under Brady. A new

trial is required if “the false testimony could . . . in any reasonable

likelihood have affected the judgment of the jury.”

Id. (citations and internal quotation marks omitted) (quoting Napue, 360 U.S. at

271). Because “the Government’s case depended almost entirely on [the falsely

testifying witness’s] testimony,” the Court reasoned, his “credibility as a witness

was therefore an important issue in the case, and evidence of any understanding or

agreement as to a future prosecution would be relevant to his credibility and the

jury was entitled to know of it.” Id. at 154-55. Accordingly, the Court reversed

the judgment of conviction.

15

Since its decisions in Napue and Giglio, the Supreme Court “has

consistently held that a conviction obtained by the knowing use of perjured

testimony is fundamentally unfair, and must be set aside if there is any reasonable

likelihood that the false testimony could have affected the judgment of the jury.”

United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 342

(1976) (footnote omitted) (emphasis added); see also Kyles v. Whitley, 514 U.S.

419, 433 & n.7, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995); United States v.

Bagley, 473 U.S. 667, 677, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); accord

Brown, 785 F.2d at 1465-66.3

The “any reasonable likelihood” standard differs from the materiality

standard applicable to other types of Brady violations because of the nature of the

error. As the Supreme Court has explained, “the Court has applied a strict standard

of materiality [to Giglio violations], not just because they involve prosecutorial

misconduct, but more importantly because they involve a corruption of the truth-

seeking function of the trial process.” Agurs, 427 U.S. at 104; accord United

3

Giglio error does not fall within the category of constitutional error that the Supreme

Court has characterized as “structural,” requiring automatic reversal of a tainted conviction. A

structural error is a “defect affecting the framework within which the trial proceeds, rather than

simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct.

1246, 113 L. Ed. 2d 302 (1991). The Supreme Court has found structural error “only in a very

limited class of cases,” including those involving complete denial of counsel, a biased trial

judge, racial discrimination in selection of a grand jury, denial of self-representation, denial of a

public trial, and a defective reasonable doubt instruction. Neder v. United States, 527 U.S. 1, 8,

119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (citation and internal quotation marks omitted).

16

States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995).

As we have explained, Ventura’s Giglio claim arises out of his post-trial

discovery that the state prosecutor had worked out a deal with the U.S. Attorney’s

Office to immunize McDonald from prosecution on federal bond-jumping charges

in exchange for his testimony at Ventura’s trial, and that McDonald’s testimony

that he had received no promises in exchange for his testimony was therefore false.

The State does not contest the Florida Supreme Court’s factual determination that

this deal indeed existed, and that McDonald’s testimony to the contrary was false.

See Ventura, 794 So. 2d at 562. The only issue the parties have briefed and the

only one now before us is whether the error was “material.”

III.

We review the district court’s denial of Ventura’s habeas petition de novo.

Harrell v. Butterworth, 251 F.3d 926, 930 (11th Cir. 2001). However, under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), which governs

Ventura’s petition, we may grant the writ only if we find that the Florida Supreme

Court’s resolution of Ventura’s Giglio claim “resulted in a decision that was

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

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

2254(d)(1).

17

A.

The phrase “clearly established Federal law,” as used in § 2254(d)(1),

encompasses only the holdings of the United States Supreme Court. Williams v.

Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). Section

2254(d)(1) expressly “restricts the source of clearly established law to [the

Supreme] Court’s jurisprudence.” Id. As we have previously explained, “§

2254(d)(1) provides a measuring stick for federal habeas courts reviewing state

court decisions. That measuring stick is ‘clearly established Federal law.’ Clearly

established federal law is not the case law of the lower federal courts, including

this Court. Instead, in the habeas context, clearly established federal law ‘refers to

the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the

time of the relevant state court decision.’” Putman v. Head, 268 F.3d 1223, 1241

(11th Cir. 2001) (alteration in original) (quoting Williams, 529 U.S. at 362).

As far as Giglio materiality is concerned, the clearly established law of the

Supreme Court is simply that reversal of a conviction is required when “there is

any reasonable likelihood that the false testimony could have affected the judgment

of the jury.” The Supreme Court has repeated this standard numerous times, but

has not elaborated further on its meaning; indeed, no Supreme Court case since

Giglio itself has squarely addressed a Giglio claim. Accordingly, the proper

18

inquiry for our Court is whether the Florida Supreme Court’s treatment of

Ventura’s Giglio claim was contrary to or an unreasonable application of the “any

reasonable likelihood” standard.4

4

Our Court has held, on several occasions, that Giglio’s “any reasonable likelihood”

standard is equivalent to the harmless error inquiry of Chapman v. California, 386 U.S. 18, 87 S.

Ct. 824, 828, 17 L. Ed. 2d 705 (1967), which provides that a conviction must be reversed if

constitutional trial error occurs, unless the beneficiary of the error establishes that the error was

“harmless beyond a reasonable doubt.” Id. at 24. We have stated at least twice in cases before us

on direct review, see Alzate, 47 F.3d at 1110; United States v. Rivera Pedin, 861 F.2d 1522,

1529 n.13 (11th Cir. 1988), and at least once in a case before us on habeas review, see Carr v.

Schofield, 364 F.3d 1246, 1255 (11th Cir. 2004), that the harmless-error inquiries required by

Giglio and by Chapman are indistinguishable.

Although this is the law of our Circuit, it is not clearly established federal law as

determined by the Supreme Court, since no majority has ever held that the Giglio standard is

equivalent to the Chapman standard, and since the Supreme Court’s decision in Brecht v.

Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), casts substantial doubt

on whether Chapman is ever the appropriate standard for harmless-error analysis conducted on

collateral review.

In concluding that the two standards are equivalent, we have drawn on Justice

Blackmun’s opinion in United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481

(1985), which observed that Giglio’s “any reasonable likelihood” standard “may as easily be

stated as a materiality standard under which the fact that testimony is perjured is considered

material unless failure to disclose it would be harmless beyond a reasonable doubt.” Id. at 678-

80. Thus, Justice Blackmun concluded, “the standard of review applicable to the knowing use of

perjured testimony is equivalent to the Chapman harmless-error standard.” Id. at 680 n.9.

Although Justice Blackmun clearly equated the Giglio and Chapman standards, this portion of

his opinion was joined only by Justice O’Connor and, consequently, does not constitute a

holding of the Court.

The Chapman Court itself suggested some similarity between the standards, stating:

“There is little, if any, difference between our statement in Fahy v. State of Connecticut about

‘whether there is a reasonable possibility that the evidence complained of might have contributed

to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a

reasonable doubt that the error complained of did not contribute to the verdict obtained.”

Chapman, 386 U.S. at 24 (quoting Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d

171 (1963)).

This statement does not, however, suffice to render it “clearly established” that the

19

Chapman and Giglio standards are indistinguishable. For one thing, this statement in Chapman

was dictum. Moreover, Fahy involved a different kind of constitutional error -- admission of

unconstitutionally obtained evidence -- and the Fahy standard, while very similar to the Giglio

standard, is not identical. (Fahy asks “whether there is a reasonable possibility that the evidence

complained of might have contributed to the conviction”; Giglio asks whether “there is any

reasonable likelihood that the false testimony could have affected the judgment of the jury.”)

Indeed, when Giglio was decided nine years after Fahy, the Court made no mention of Fahy.

Because the Supreme Court has never definitively stated that Giglio’s “any reasonable

likelihood” inquiry is the same as the Chapman “harmless beyond a reasonable doubt” inquiry,

the only clearly established law governing Giglio materiality analysis is that Giglio error requires

reversal when there is any reasonable likelihood that the false testimony could have affected the

judgment of the jury. As the Supreme Court recently emphasized, “[a] federal court may not

overrule a state court . . . when the precedent from this Court is, at best, ambiguous.” Mitchell v.

Esparza, 540 U.S. 12, 17, 124 S. Ct. 7, 157 L. Ed. 2d 263 (2003). Accordingly, the “any

reasonable likelihood” formulation is the only one the Florida court was obligated to apply in

resolving Ventura’s Giglio claim.

Moreover, even if Chapman is seen as establishing the proper materiality standard for a

Giglio claim on direct review, Brecht casts substantial doubt on whether this standard has any

application on habeas review. Brecht held that Chapman’s “harmless beyond a reasonable

doubt” standard is not the proper harmless-error inquiry on collateral review; rather, habeas

courts must apply the test laid out in Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239,

90 L. Ed. 1557 (1946), which asks whether the error “had substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637 (quoting Kotteakos, 328

U.S. at 776). The Court explained that “an error that may justify reversal on direct appeal will

not necessarily support a collateral attack on a final judgment,” id. at 634 (citations and internal

quotation marks omitted), citing “the State’s interest in the finality of convictions that have

survived direct review within the state court system,” “comity and federalism” concerns, and the

integrity of the trial process as reasons for distinguishing between direct and collateral review.

See id. at 633-36. In addition, “[s]tate courts are fully qualified to identify constitutional error

and evaluate its prejudicial effect on the trial process under Chapman, and state courts often

occupy a superior vantage point from which to evaluate the effect of trial error.” Id. at 636.

Thus, “it scarcely seems logical to require federal habeas courts to engage in the identical

approach to harmless-error review that Chapman requires state courts to engage in on direct

review.” Id.

As several of our sister Circuits have observed, Brecht continues to apply on habeas

review even after AEDPA when a state court either fails to conduct any harmless error review

because it unreasonably concludes that no constitutional error has occurred, or conducts

harmless error review applying the wrong standard (i.e. when the state court’s decision is

contrary to or an unreasonable application of clearly established federal law). See, e.g., Aleman

v. Sternes, 320 F.3d 687 (7th Cir. 2003); Herrera v. Lemaster, 301 F.3d 1192 (10th Cir. 2002)

20

B.

The “contrary to” and “unreasonable application” clauses of § 2254(d)(1)

are separate bases for reviewing a state court decision. Williams, 529 U.S. at

412-13; see also Putman, 268 F.3d at 1241. “Under the ‘contrary to’ clause, a

federal habeas court may grant the writ 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 this Court has on a set of materially

indistinguishable facts.” Williams, 529 U.S. at 412-13; see also Bell v. Cone, 125

S. Ct. 847, 851, 160 L. Ed. 2d 881 (2005) (“A state court’s decision is ‘contrary to

. . . clearly established Federal law’ if the state court applies a rule that contradicts

the governing law set forth in our cases, or if the state court confronts facts that are

materially indistinguishable from a relevant Supreme Court precedent and arrives

at a result opposite to ours.” (citation and internal quotation marks omitted)).

Thus, there are two possible bases for concluding that the Florida Supreme

Court’s resolution of Ventura’s Giglio claim was contrary to clearly established

(en banc). Thus, even when a state court improperly fails to use the Chapman standard in

conducting harmless error review, a federal habeas court reviews the constitutional error only

under the more lenient Kotteakos standard. Cf. Penry v. Johnson, 532 U.S. 782, 795, 121 S. Ct.

1910, 150 L. Ed. 2d 9 (2001) (“Even if our precedent were to establish squarely that the

prosecution[] . . . violated Penry’s Fifth Amendment privilege against self-incrimination, that

error would justify overturning Penry’s sentence [on federal habeas review] only if Penry could

establish that the error “had substantial and injurious effect or influence in determining the jury’s

verdict.” (quoting Brecht, 507 U.S. at 637)). Chapman, therefore, has little application to a case

before us on collateral review.

21

federal law: either (1) it reached a conclusion of law that contradicts one reached

by the Supreme Court; or (2) it reached a result opposite one reached by the

Supreme Court on a set of materially indistinguishable facts.

The second possibility is more easily dismissed. Whether a Giglio violation

is material is a highly fact-dependent inquiry, and we can find no Supreme Court

case whose facts may fairly be characterized as “materially indistinguishable” from

those of Ventura’s case. Whether the false testimony offered in a particular case

could in any reasonable likelihood have affected the judgment of the jury must be

analyzed in light of a number of highly context-specific factual considerations,

including the importance of the testimony of the falsely testifying witness to the

government’s case, the nature and significance of the falsehood, and, notably, to

what extent the witness’s testimony is substantially corroborated by other

evidence.

The context-specific nature of this inquiry is evident from the Supreme

Court’s analysis in Giglio and Napue -- the only two cases in which the Supreme

Court has squarely addressed a Giglio claim -- as well as from our own analysis in

Giglio cases. In Giglio, the Supreme Court found reversal of the defendant’s

conviction required because “the Government’s case depended almost entirely on

[the falsely testifying witness’s] testimony; without it there could have been no

22

indictment and no evidence to carry the case to the jury.” Giglio, 405 U.S. at 154.

In Napue, the Court again based its conclusion that reversal was required on its

“own evaluation of the record” before it. Napue, 360 U.S. at 272. Likewise, all of

our cases reversing convictions on the basis of Giglio error -- even those involving

false testimony that a witness did not cut a deal in exchange for his testimony --

have conducted careful analyses of the trial record to render a case-specific

conclusion as to whether the violation might have made a difference. See, e.g.,

United States v. Rivera Pedin, 861 F.2d 1522 (11th Cir. 1988); Haber v.

Wainwright, 756 F.2d 1520 (11th Cir. 1985); DeMarco v. United States, 928 F.2d

1074 (11th Cir. 1991); United States v. Sanfilippo, 564 F.2d 176 (5th Cir. 1977).

Neither the Supreme Court nor our Court has ever adopted a per se rule that

the government’s failure to correct a witness’s false testimony that he did not

receive any consideration in exchange for his testimony requires reversal of the

conviction. We can find no case on all fours with Ventura’s, and therefore cannot

conclude that the Florida Supreme Court’s treatment of Ventura’s Giglio claim was

“contrary to” clearly established federal law in the sense of reaching an opposite

result on materially indistinguishable facts.

The second inquiry -- whether the state court reached a conclusion of law

that contradicts one reached by the Supreme Court -- requires a careful analysis of

23

the Florida Supreme Court’s decision. In analyzing Ventura’s Giglio claim, the

Florida court began its analysis by correctly noting: “To establish a violation of

Giglio Ventura must show: ‘(1) that the testimony was false; (2) that the prosecutor

knew the testimony was false; and (3) that the statement was material.’” Ventura,

794 So. 2d at 562 (quoting Robinson v. State, 707 So. 2d 688, 693 (Fla. 1998)).

The court also accurately explained “that ‘[t]he thrust of Giglio and its progeny has

been to ensure that the jury know the facts that might motivate a witness in giving

testimony, and the prosecutor not fraudulently conceal such facts from the jury.”

Id. (quoting Robinson, 707 So. 2d at 693).

However, the Florida Supreme Court’s phrasing of Giglio’s materiality

standard deviates from the formulation favored by the United States Supreme

Court. As the Florida court explained it: “Under Giglio, a statement is material if

‘there is a reasonable probability that the false evidence may have affected the

judgment of the jury.’” Id. (quoting Routly v. State, 590 So. 2d 397, 400 (Fla.

1991)). Routly cites Giglio and Napue, but nevertheless formulates the standard in

this altered manner. The Florida Supreme Court’s formulation differs from

Giglio’s in three respects: it uses “a” instead of “any”; “probability” instead of

“likelihood”; and “may” instead of “could.”

The last distinction is immaterial, since “may” and “could” are both words

24

used to express “possibility.” Oxford English Dictionary (2d ed. 1989). Indeed,

“can” -- the present tense of “could” -- is “sometimes used interchangeably with

may.” Merriam-Webster’s Collegiate Dictionary (10th ed. 1994); accord Oxford

English Dictionary (2d ed. 1989) (listing “may” as a synonym of “can”). Nor do

we see a significant difference between “a” and “any.” “Any” is simply an

“indeterminate derivative” of “a” or “an,” “in which the idea of unity . . . is

subordinated to that of indifference as to the particular one or ones that may be

selected.” Oxford English Dictionary (2d ed. 1989). For purposes of articulating

the Giglio standard, this distinction is of no consequence.

The key issue is the Florida court’s use of the term “probability” instead of

“likelihood.” After careful review, we conclude that because the court proceeded

to describe the Giglio standard accurately, and because AEDPA plainly requires us

to give state courts the benefit of the doubt on habeas review, the Florida court’s

single use of the phrase “a reasonable probability” does not render its decision

contrary to clearly established Supreme Court law. Insofar as the district court

suggested that the Florida Supreme Court erroneously conflated Giglio’s standard

with Brady’s, we disagree, since the Florida court understood the critical difference

between the two and correctly applied the more lenient Giglio standard.

The Florida Supreme Court explicitly acknowledged the essential difference

25

between the Giglio standard that applied to Ventura’s claim and the “reasonable

probability” standard that governs more general Brady claims -- namely, that

Giglio sets the materiality bar lower than Brady. The Florida Supreme Court

observed the distinction this way:

In denying Ventura’s claim, the trial court incorrectly relied on the

materiality standard appropriate to Brady claims. See United States v.

Alzate, 47 F.3d 1103, 1109-10 (11th Cir. 1995) (“Where there has

been a suppression of favorable evidence in violation of Brady v.

Maryland, the nondisclosed evidence is material: ‘if there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.’ . . . A

different and more defense-friendly standard of materiality applies

where the prosecutor knowingly used perjured testimony, or failed to

correct what he subsequently learned was false testimony.”) (citations

omitted).

Ventura, 794 So. 2d at 563.

Indeed, the Alzate case on which the Florida court relied recites the Giglio

standard in exactly the terms the United States Supreme Court has repeatedly used:

[T]he falsehood is deemed to be material “if there is any reasonable

likelihood that the false testimony could have affected the judgment of

the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392,

2397, 49 L. Ed. 2d 342 (1976) (emphasis added); accord Giglio v.

United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104

(1972); Napue v. Illinois, 360 U.S. 264, 271, 79 S. Ct. 1173, 1178, 3

L. Ed. 2d 1217 (1959).

Alzate, 47 F.3d at 1110.5

5

The Florida Supreme Court also suggested that in determining whether the Giglio

standard is satisfied, “courts must focus on whether the favorable evidence could reasonably be

26

The Florida Supreme Court concluded that “based on this record of ample

impeachment and corroboration, we hold the evidence of the deal immaterial under

Giglio.” Ventura, 794 So. 2d at 565. In reaching this result, the court cited two

cases -- its own decisions in Routly v. State, 590 So. 2d 397 (Fla. 1991), and White

v. State, 729 So. 2d 909 (Fla. 1999) -- that recited the standard in terms of a

“reasonable probability,” but also another case -- United States v. Petrillo, 821 F.2d

85 (2d Cir. 1987) -- that used the well-established “any reasonable likelihood”

formulation. Petrillo explained: “Where the government uses perjured testimony

in obtaining a conviction, and knew or should have known of the perjury, the

defendant’s due process right to a fair trial is violated ‘if there is any reasonable

likelihood that the false testimony could have affected the judgment of the jury.’”

Id. at 87 (quoting Agurs, 427 U.S. at 103).

Against this backdrop, we cannot say that the state court’s imprecision in

explaining the Giglio standard for materiality means that it “arrive[d] at a

taken to put the whole case in such a different light as to undermine confidence in the verdict.”

Ventura, 794 So. 2d at 563 (quoting White v. State, 729 So. 2d 909, 913 (Fla. 1999)). Although

no Supreme Court case explains the Giglio standard in these terms, it bears noting that our Court

has, on at least one occasion, explained the Giglio standard using nearly identical terms. In

United States v. Dickerson, 248 F.3d 1036, 1041 (11th Cir. 2001), a panel of this Court stated:

“The materiality element [of Giglio] is satisfied if the false testimony ‘could reasonably be taken

to put the whole case in such a different light as to undermine confidence in the verdict.’” Id. at

1041 (quoting Strickler v. Greene, 527 U.S. 263, 290 (1999)) (internal quotation marks omitted);

see also Carr v. Schofield, 364 F.3d 1246, 1255 (11th Cir. 2004) (explaining the standard as

whether “the defendant failed to receive ‘a trial resulting in a verdict worthy of confidence’”

(quoting Kyles, 514 U.S. at 434).

27

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

Williams, 529 U.S. at 412, or -- as this part of the “contrary to” standard has

alternatively been stated -- that it “applie[d] a rule that contradicts the governing

law set forth in [Supreme Court] cases,” Bell, 125 S. Ct. at 851.

To be sure, a “reasonable probability” standard differs from a “reasonable

likelihood” standard. See, e.g., Alzate, 47 F.3d at 1110 n.7 (noting that “the

district court applied the ‘reasonable probability of a different result’ standard,”

which “is substantially more difficult for a defendant to meet than the ‘could have

affected’ standard we apply”); Stephens v. Hall, 407 F.3d 1195, 1206 (11th Cir.

2005) (“This reasonable likelihood standard imposes a ‘considerably less onerous’

burden on [the petitioner] than the Brady standard.”).

However, the fact that the state court failed to track precisely the language

used by the Supreme Court does not mean that it applied the wrong standard here.

Indeed, the fact that the state court explicitly recognized the critical difference

between the Giglio and Brady standards strongly suggests that it did indeed apply

the more lenient Giglio standard. The Florida Supreme Court criticized the state

trial court for improperly applying Brady’s standard rather than Giglio’s, and cited

our Alzate case for the proposition that the Giglio standard is more defense

friendly than the Brady standard.

28

Moreover, neither the U.S. Supreme Court nor this Court has ever attempted

to articulate precisely what the difference is between the Brady standard and the

Giglio standard, and we doubt whether the distinction between a “reasonable

probability” and a “reasonable likelihood” is readily susceptible of quantification.

It has always sufficed for our purposes to observe that one standard is appreciably

more stringent than the other. Alzate, for example, called the Brady standard

“substantially more difficult for a defendant to meet than the ‘could have affected’

standard we apply.” Alzate, 47 F.3d at 1110 n.7. Our opinion in Stephens v. Hall

called Giglio’s standard “considerably less onerous” than Brady’s. Stephens, 407

F.3d at 1206 (quoting Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993)).

And the Florida Supreme Court plainly captured the essence of this inexact

distinction when it observed that the trial court’s reliance “on the materiality

standard appropriate to Brady claims” was “incorrect[],” and cited Alzate for the

proposition that a “different and more defense-friendly standard of materiality

applies” to Giglio claims. Ventura, 794 So. 2d at 563.

We add that the phrase “contrary to,” as the Supreme Court explained in

Williams v. Taylor, means “diametrically different,” “opposite in character or

nature,” or “mutually opposed.” 529 U.S. at 405. The Court offered the following

example of what would constitute a decision “contrary to” governing law:

29

Take, for example, our decision in Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If a state court were to

reject a prisoner’s claim of ineffective assistance of counsel on the

grounds that the prisoner had not established by a preponderance of

the evidence that the result of his criminal proceeding would have

been different, that decision would be “diametrically different,”

“opposite in character or nature,” and “mutually opposed” to our

clearly established precedent because we held in Strickland that the

prisoner need only demonstrate a “reasonable probability that . . . the

result of the proceeding would have been different.” Id., at 694, 104

S. Ct. 2052.

Id. at 405-06. In contrast, a state court decision that is merely “contrary to the

federal court’s conception of how Strickland ought to be applied in that particular

case . . . is not ‘mutually opposed’ to Strickland itself.” Id. at 406.

A misstatement of a standard whose substance a court applies correctly falls

within the latter category. When a court recognizes the substantive difference

between two competing standards but conflates their language, the resulting

decision is not “diametrically different” from clearly established precedent. A

habeas court’s focus is properly on the substance rather than the form of the state

court’s decision. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 16, 124 S. Ct. 7, 157

L. Ed. 2d 263 (2003) (“A state court’s decision is not ‘contrary to . . . clearly

established Federal law’ simply because the court did not cite our opinions. We

have held that a state court need not even be aware of our precedents, ‘so long as

neither the reasoning nor the result of the state-court decision contradicts them.’”

30

(citation omitted) (quoting Early v. Packer, 537 U.S. 3, 7-8, 123 S. Ct. 362, 154 L.

Ed. 2d 263 (2002))); Bell, 125 S. Ct. at 853.

Finally, the Supreme Court has explained that Ҥ 2254(d) requires that

state-court decisions be given the benefit of the doubt. Readiness to attribute error

is inconsistent with the presumption that state courts know and follow the law.”

Holland v. Jackson, 124 S. Ct. 2736, 2739, 159 L. Ed. 2d 683 (2004) (alteration,

citations, and internal quotation marks omitted). Thus, the Court has several times

reversed grants of federal habeas relief on the ground that the state court’s

incorrect articulation of the Strickland standard -- which requires a defendant

claiming ineffective assistance of counsel to demonstrate “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different,” Strickland, 466 U.S. at 694 (emphasis added) -- was

“contrary to” clearly established Supreme Court precedent. See, e.g., Woodford v.

Visciotti, 537 U.S. 19, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002); Holland v.

Jackson, 124 S.Ct. 2736, 2738-39, 159 L. Ed. 2d 683 (2004).6

6

In Woodford, the Court observed that the state court’s “occasional shorthand reference

to that standard by use of the term ‘probable’ without the modifier may perhaps be imprecise,

but if so it can no more be considered a repudiation of the standard than can this Court’s own

occasional indulgence in the same imprecision.” Id. at 23-24 (citing Mickens v. Taylor, 535

U.S. 126, 166, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002) (using the phrase “probable effect upon

the outcome”), and Williams, 529 U.S. at 393 (using the phrase “probably affected the

outcome”)).

This imprecision, the Court held, did not warrant the conclusion that the state court’s

31

These decisions stand in contrast to Williams v. Taylor, where the Court

found that the state supreme court’s application of an incorrect Strickland standard

was “contrary to” clearly established law, since the state court’s decision “turned

on” its erroneous conception of the relevant standard. The Supreme Court

explained: “While [the state court] may also have conducted an ‘outcome

determinative’ analysis of its own, it is evident to us that the court’s decision

turned on its erroneous view that a ‘mere’ difference in outcome is not sufficient to

establish constitutionally ineffective assistance of counsel.” Williams, 529 U.S. at

397 (emphasis added) (citation omitted).

These cases suggest that a misstatement of the law may be insufficient to

find a state court decision contrary to clearly established law; rather, the state

decision was contrary to clearly established law, and indeed the Court criticized the federal

appeals court for not giving the benefit of the doubt to the state court:

The Court of Appeals made no effort to reconcile the state court’s use of the term

“probable” with its use, elsewhere, of Strickland’s term “reasonably probable,”

nor did it even acknowledge, much less discuss, the California Supreme Court’s

proper framing of the question as whether the evidence “undermines confidence”

in the outcome of the sentencing proceeding. This readiness to attribute error is

inconsistent with the presumption that state courts know and follow the law. It is

also incompatible with § 2254(d)’s “highly deferential standard for evaluating

state-court rulings,” Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S. Ct. 2059,

138 L. Ed. 2d 481 (1997), which demands that state-court decisions be given the

benefit of the doubt.

Id. at 24.

32

court’s decision must have resulted from its application of an incorrect standard.7

In this case, the Florida Supreme Court understood the law and applied it correctly.

The Florida court’s decision is undeniably entitled to deference and is not contrary

to clearly established Supreme Court precedent. The only remaining question is

whether the state court decision was an “unreasonable application” of such

precedent.

C.

Under § 2254(d)’s “unreasonable application” clause, “a federal habeas

court may grant the writ 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.” Williams, 529 U.S. at 412-13.

However, “a federal habeas court may not issue the writ simply because that court

7

This conclusion is consistent with the numerous cases in our Court concluding that

federal courts are required to defer to state court decisions even when they offer no explanation

or reasoning as to how they reached their result. As we have explained: “The plain language of

§ 2254(d)(1) requires only that the federal claim have been ‘adjudicated on the merits in State

court proceedings’ and have ‘resulted in a decision’ that is neither contrary to nor involves an

unreasonable application of Supreme Court precedent. That is all the text of the provision

requires.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). “The statutory language

focuses on the result, not on the reasoning that led to the result, and nothing in that language

requires the state court adjudication that has resulted in a decision to be accompanied by an

opinion that explains the state court’s rationale. Accordingly, all that is required is a rejection of

the claim on the merits, not an explanation.” Id. at 1255 (citations omitted). Accord Herring v.

Sec’y, Dep’t of Corrs., 397 F.3d 1338, 1347 (11th Cir. 2005) (“To be entitled to deferential

review under 28 U.S.C. § 2254, it is not necessary for the state court to explain its decision.

Even a summary, unexplicated rejection of a federal claim qualifies as an adjudication entitled to

deference under § 2254(d).”); Parker v. Sec’y, Dep’t of Corrs., 331 F.3d 764, 775-76 (11th Cir.

2003); Isaacs v. Head, 300 F.3d 1232, 1259-60 (11th Cir. 2002).

33

concludes in its independent judgment that the state-court decision applied [the

governing legal principle] incorrectly. Rather, it is the habeas applicant’s burden

to show that the state court applied [that principle] to the facts of his case in an

objectively unreasonable manner. An unreasonable application of federal law is

different from an incorrect application of federal law.” Woodford, 537 U.S. at 24-

25 (citations and internal quotation marks omitted).

Put differently, the reviewing court may not “substitute[] its own judgment

for that of the state court.” Id. at 25; see also, e.g., Mitchell, 540 U.S. at 18 (“We

may not grant respondent’s habeas petition, however, if the state court simply erred

in concluding that the State’s errors were harmless; rather, habeas relief is

appropriate only if the [state court] applied harmless-error review in an

‘objectively unreasonable’ manner.”); Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.

Ct. 1166, 155 L. Ed. 2d 144 (2003) (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear error) with

unreasonableness.”).

In this case, the Florida Supreme Court identified the correct governing legal

principle and did not apply it unreasonably. Its conclusion that there was no

reasonable likelihood that the false testimony presented at Ventura’s trial could

have affected the judgment of the jury was not “objectively unreasonable” in light

34

of the extensive and powerful corroborating evidence introduced and the

substantial impeachment of McDonald at trial.8

As for corroboration, the state’s evidence linking Ventura to Clemente’s

murder consisted of McDonald’s testimony; the testimony of three other witnesses:

Joseph Pike, Reginald Barrett, and Timothy Arview; and documentary evidence

including motel receipts and a record of a wire transfer placing Ventura -- then a

resident of Chicago -- in the vicinity of the murder at the time Clemente was killed.

McDonald testified at length about the details of Clemente’s murder. He

explained that Wright was having financial problems and recruited him to kill

Clemente in exchange for half of the proceeds of a key man life insurance policy

Wright held on Clemente. McDonald then brought in Ventura to commit the

murder in exchange for half of McDonald’s share of the proceeds. McDonald said

that he met with Ventura in Atlanta in April 1981, a few days before the murder, to

work out the details. They planned that Ventura would travel to Daytona Beach,

where McDonald would meet him. McDonald supplied Ventura with some money

8

Ventura makes a great deal of the fact that prosecutor Stark, in the state-court hearing on

Ventura’s 3.850 motion, referred to McDonald numerous times as the state’s “star witness.”

Indeed, the State concededly felt that it could not proceed with the prosecution of either

McDonald or Ventura without the other. Nevertheless, the State’s case against Ventura was

compelling even in light of McDonald’s false testimony, since the numerous sources of powerful

corroboration make it implausible that the jury would have wholly discarded McDonald’s

testimony had they known that he was testifying pursuant to a deal. We cannot substitute one

participant’s conclusory characterization of a witness’s testimony for a thorough review of all of

the evidence presented at trial.

35

for expenses, and later wired him an additional $100 in DeLand, Florida, when

Ventura ran out of funds.

McDonald testified that he met Ventura outside the Days Inn on April 15,

1981, and they drove to Barnett Bank in DeLand. Ventura had called Clemente,

who was a boat salesman at Crow’s Bluff Marina, and, posing as a potential

customer, arranged to meet him at the bank. Clemente arrived in a black pick-up

truck and left with Ventura. McDonald followed along at a distance in his own

car. McDonald and Ventura had planned that Ventura would ask Clemente to pull

off the road at a prearranged spot along state route 44 so that Ventura could relieve

himself, and Ventura would then shoot Clemente. Clemente’s truck pulled off the

road at the designated spot, and McDonald waited nearby. About ten minutes later,

Ventura returned to McDonald’s car. McDonald dropped Ventura off at a

restaurant and proceeded to Daytona Beach to see Wright about getting $2000 for

Ventura, who wanted money to travel. According to McDonald, Ventura planned

to go to California to see his daughter.

McDonald collected $2000 and met Ventura at the Atlanta airport to give

him part of it. At that meeting, McDonald said, he informed Ventura that it would

take thirty to sixty days to collect the insurance proceeds. McDonald returned to

Daytona Beach around June 20 when he learned that Wright was about to be paid

36

by the insurance company, and was arrested for the murder upon his arrival.

Interlocking physical and testimonial evidence introduced at trial

corroborated most of the critical aspects of McDonald’s account of the murder.

First, McDonald’s testimony that Jerry Wright had taken out a key man insurance

policy on Clemente and that the purpose of this murder-for-hire was to collect the

proceeds is corroborated on numerous levels. A representative of Midwestern

National Life in Cleveland, Ohio confirmed that Jerry Wright held a key man life

insurance policy on Robert Clemente issued by Midwestern National Life on July

2, 1980, and that he filed a claim on the policy shortly after the murder, on April

25, 1981. Police searching Ventura’s residence in Maywood, Illinois after his

arrest found a piece of paper inside Ventura’s “Weekly Minder” with the name

“Midwestern Life” written on it. The record evidence affords no innocent

explanation for this physical evidence linking Ventura to the insurance company

that issued the policy for which Clemente was killed.

Moreover, Reginald Barrett, a neighbor and acquaintance of Ventura’s,

testified that in February 1981 -- approximately two months prior to the murder --

the petitioner, Ventura, asked him to contact Midwestern Life Insurance in Ohio

“to inquire about a certain insurance called ‘keyman insurance.’” Specifically,

Ventura wanted to know how long it would take to pay a claim, and, notably, “if an

37

employee . . . was insured under a keyman policy, but was to leave the place of

employment, would this insurance policy still cover him after he had left.”

(Clemente had left Wright’s employ and worked for Crow’s Bluff Marina at the

time of his death.) Barrett never placed the call, but a representative of

Midwestern National Life confirmed at trial that the fact Clemente no longer

worked for Wright at the time of his death did not affect Wright’s ability to make a

claim under the policy. Again, the record evidence offers no benign explanation

for why Ventura would ask his friend Barrett, some two months before the murder,

to inquire of the insurance company whether it would honor a key man insurance

policy after the employee had left his place of employment.

Joseph Pike, still another acquaintance and one-time business partner of

Ventura, provided further independent corroboration of McDonald’s account of the

murder. Pike testified that on May 6, 1981 -- shortly after the murder -- Ventura

told Pike about a plan that Ventura, McDonald, and another acquaintance of

McDonald’s had devised to murder a man and collect a key man insurance policy

on his life. When Pike directly asked what Ventura’s role was, Ventura explained

that he “handled the extermination.”

McDonald’s testimony that he met with Ventura in Atlanta in April 1981,

and arranged to meet him shortly thereafter in Daytona Beach, was also

38

corroborated by documentary and testimonial evidence. Among other things,

Barrett testified that in late February or early March of 1981, Ventura asked him

for a gun, which he said he needed for “Jack in Atlanta.” (Barrett in fact provided

Ventura with a gun, but not the one used to kill Clemente.) Then, during the first

week of April, just before the murder, Ventura told Barrett that he needed some

money “to go to Atlanta to meet with Jack.” Barrett helped Ventura to get a job

that paid him $250, and the next day Ventura told Barrett “that he was on his way

to Atlanta” because, “Jack wanted him to come down and burn someone,” which

Barrett took to mean “to murder someone.”

Subsequently, around April 10 or 11, Ventura left a message asking Barrett

to call him back. When Barrett returned the call, he learned that the phone number

Ventura had left was for a motel in Daytona or DeLand, Florida. At that time,

Ventura asked Barrett to take some money to Ventura’s son, explaining that he was

still doing business and would call when he was finished.

Motel records introduced at trial further corroborated McDonald’s testimony

that Ventura traveled to the Atlanta area in early April and then continued on to the

Daytona area, where he was staying when Clemente was murdered on April 15.

Indeed, motel records place Ventura in the Atlanta area from April 5-7 and 9-10,

and then in Volusia County from April 10-18. Records from Motel 1 in Chamblee,

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Georgia -- just outside Atlanta -- showed that Ventura had checked in April 5,

departing April 7, and that he checked in again April 9, departing April 10.

Another motel registration card established that Ventura had registered at the

Boulevard Motel in DeLand the nights of April 10, 11, and 12, 1981. Records

from a Days Inn in the Daytona area established that Ventura had stayed there the

nights of April 13 and 14, checking out April 15, 1981. More records from Motel

1 in Chamblee showed that Ventura checked back into that motel on April 16,

departing April 18. On this record, we can find no benign explanation for why

Ventura, a resident of the Chicago area, had been in Atlanta or Volusia County

during this period.

The records from the Days Inn, where Ventura stayed from April 13-15, also

corroborate McDonald’s testimony that he picked up Ventura in front of the Days

Inn on April 15, the day of Clemente’s murder. In addition, Corporal David

Hudson of the Volusia County Sheriff’s Department testified that he checked out a

phone number from which Reginald Barrett had received a call around 9:00 a.m.

on April 15, and traced the number to a pay phone outside the same Days Inn.

The records indicating that Ventura stayed at the Boulevard Motel the nights

of April 10-12 interlock with Barrett’s testimony that he reached a motel in

Daytona or DeLand when he dialed the return number Ventura had left when he

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called Barrett around April 10 or 11. Corporal Hudson further verified that his

investigation revealed that Barrett had placed a return call to Ventura at the

Boulevard Motel, although he could not remember the precise date of the call.

Additional documentary evidence corroborated McDonald’s testimony that

he wired $100 to Ventura in DeLand, Florida, when Ventura ran out of expense

money. Western Union records introduced at trial showed that on April 13, Peter

Ventura picked up a $100 money order, which had been sent on April 12 by Jack

McDonald, at an office located in DeLand’s Greyhound bus station.

In addition, McDonald’s account of the details of the Clemente murder was

entirely consistent with the forensic evidence presented at trial and with the

testimony of several of Clemente’s co-workers. Several law enforcement officers

dispatched to the crime scene reported that Clemente’s body was recovered in a

secluded area off state route 44; that it was found in a black pick-up truck bearing

the Crow’s Bluff Marina insignia; and that Clemente had been shot to death.

Denise Jorgenson, the owner of Crow’s Bluff Marina, confirmed that Clemente

had told her on the day of his murder that he was meeting a client at Barnett Bank,

an occurrence Jorgenson considered unusual since clients typically came to the

marina. Charles W. Coccia, a mechanic at the marina, testified that he lent

Clemente his company truck to go meet a client on the day of Clemente’s murder.

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Coccia identified the truck in which Clemente’s body was found as the one he had

given Clemente.

The delay McDonald recounted in collecting the insurance proceeds after the

murder was also corroborated by the testimony of both Pike and Barrett. Pike

testified that when Ventura told him about the murder in early May, “there were

indications that there were delays in collecting,” and Ventura “was expecting to

collect it within a few weeks.” Barrett testified that in early May, upon Ventura’s

return from a trip to California, Ventura mentioned “that he would be getting his

payment in about thirty days,” when “Mr. McDonald was to receive some funds

from an insurance proceed in Florida.” Then, in late May, Ventura told Barrett that

“Jack should be coming to Chicago within just a few days to make a payment” for

the job Ventura had done. Ventura explained that “there was some delay” in

receiving the money that “Jack . . . was going to collect . . . from someone who had

an insurance policy.” A representative of the insurance company, Midwestern

National Life, confirmed that the key man insurance claim had been filed on April

25, 1981, and that payment had been issued initially on June 19, 1981, but that

payment on the check had been stopped and that the claim had not been paid until

September 14, 1981.

Barrett also confirmed McDonald’s testimony that Ventura intended to

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travel to California after the murder. Ventura called Barrett around April 19 or 20,

1981, and said that he would be going to California as soon as his job was finished.

Ventura called Barrett again in early May “indicating that he had gotten back from

California,” and Barrett picked him up at the bus station.

A letter Ventura sent to Barrett further corroborates Ventura’s involvement

in the murder with McDonald. Around May 4 or 5, when Barrett returned from a

trip, he had received a letter addressed to him at his office in Maywood, Illinois,

postmarked April 17. The return address read, “P. Ventura, Atlanta, Georgia.”

The letter, which was introduced at trial, stated, “In the event something should

happen to me! Jack McDonald is responsible.” The letter then supplied

McDonald’s phone number. Included in the mailing envelope along with the letter

was an envelope bearing the return address of Motel 1 -- the motel in Chamblee,

Georgia where Ventura was staying on April 17. On that envelope was written,

“Jack lives near here.”

Ventura’s subsequent flight after his indictment for the Clemente murder is

further evidence of his role in the crime. Ventura was released on $50,000 bond

after his indictment in late July, 1981, and failed to appear at a hearing scheduled

for August 18, 1981. In spite of the efforts of state and federal law enforcement to

track him down, Ventura remained a fugitive for five years. He lived under several

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assumed names, including Juan Gadaya and Juan Contras, until he was

apprehended in Austin, Texas in June 1986. As we have noted repeatedly,

“evidence of resistance to arrest and flight is admissible to demonstrate

consciousness of guilt and thereby guilt.” United States v. Wright, 392 F.3d 1269,

1277 (11th Cir. 2004) (quoting United States v. DeParias, 805 F.2d 1447, 1454

(11th Cir. 1986)); see also, e.g., United States v. Frazier, 387 F.3d 1244, 1266 n.20

(11th Cir. 2004) (en banc) (finding that defendant’s flight from police “was strong

evidence of consciousness of guilt”); United States v. Beard, 775 F.2d 1577, 1581

(11th Cir. 1985) (“There is no question that evidence of flight can raise a

permissive inference of consciousness of guilt of the crime charged.”).

Finally, Ventura’s role in the murder was independently corroborated by the

trial testimony of Timothy Arview, a young man who became acquainted with

Ventura while Ventura was living in Austin, Texas as a fugitive. Arview, who did

not know McDonald, Barrett, or Pike, testified at trial that he first met Ventura,

who was using the name Juan Gadaya, in December 1985 or January 1986, and

worked for him for six or seven months doing construction. Around April or May

of 1986, Arview and Ventura were wrestling and “playing around” until Ventura

“got upset and started playing roughly.” Ventura then specifically told Arview that

he had killed a man in Florida five years earlier, and that it was a contract killing.

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Lieutenant Juan Gonzales of the Austin Police Department confirmed that Arview

reported this information -- which matched the date, location, and nature of the

Clemente killing exactly -- to Austin police, which in turn led to Ventura’s rearrest.

In addition to this extensive chain of corroborating evidence, the Florida

Supreme Court took into account the fact that McDonald was substantially

impeached in a variety of ways at trial. First, McDonald was impeached by his

admitted involvement in the Clemente murder. McDonald testified at trial that he

had been indicted for the murder along with Ventura, but that he had escaped

prosecution because of Florida’s speedy trial rule.

Second, McDonald was impeached by evidence of his prior convictions.

McDonald conceded on direct examination that after his release on speedy trial

grounds, he had been indicted by the federal government and had pled guilty, in

1983, to four counts of postal theft. He was sentenced in May or June of 1983 to a

term of imprisonment of fifteen years, then fled before he started serving his

sentence, and was not taken back into custody until September 23, 1987. On cross-

examination, McDonald also acknowledged another prior conviction, for

embezzlement involving bank fraud, in 1964. Finally, McDonald admitted that he

had been involved in the illegal sale of a load of stolen truck tires to Mr. Wright,

although he was apparently never prosecuted for this offense.

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Third -- and perhaps most significantly -- McDonald was extensively

impeached on cross-examination with his own prior inconsistent deposition

testimony. McDonald was deposed at the Sheraton Inn at the Atlanta Airport on

May 4, 1983, by the prosecutor, Stark. At that deposition, McDonald said that he

had not been with Ventura on the day of the murder, in direct contradiction of his

trial testimony. At trial, McDonald admitted that in spite of being sworn to testify

truthfully, he “did not tell the truth” in that deposition. McDonald explained that

his “intention was just to leave some clouds in the issue,” and that perhaps he “did

not want to face the reality of being virtually, you might say, at the scene.”

Defense counsel chipped further at McDonald’s credibility by insinuating that he

had lied in the deposition “because [he was], in fact, at the scene and did commit

the murder,” a suggestion that McDonald emphatically denied.

Finally, the defense attacked McDonald’s motive for testifying by

suggesting that McDonald harbored “some feeling of rancor towards Mr. Ventura

as a result of the Federal bank scam that resulted in [McDonald’s] conviction.”

Again, McDonald flatly denied this. Defense counsel then asked whether

McDonald had agreed to testify because he was angry that Wright never paid him

for his participation in the murder, another suggestion that McDonald strongly

denied.

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We are bound by the state court’s decision unless it was not only erroneous

but “objectively unreasonable.” Woodford, 537 U.S. at 24-25. As the Supreme

Court has admonished, a federal habeas court is not free to “substitute[] its own

judgment for that of the state court.” Id. at 25. We cannot, in this case,

characterize as unreasonable the state court’s determination that the corroboration

and impeachment were so substantial that there was no reasonable likelihood

McDonald’s false testimony could have affected the judgment of the jury.

Virtually every step of McDonald’s testimony as he took the jury through

the planning, execution, and aftermath of Clemente’s murder was corroborated by

documentary and testimonial evidence. The multiple admissions Ventura made

over many years to Barrett, Pike, and Arview, as well as the testimony of

Clemente’s co-workers and of police who responded to the crime scene, mirrored

McDonald’s account of the crime. Motel receipts, Western Union records, and

phone calls placed Ventura -- a Chicago-area resident -- in Atlanta and in Volusia

County at precisely the times McDonald said he was there, including the time of

Clemente’s murder. A conversation between Ventura and Barrett and the note

found in Ventura’s Weekly Minder directly linked Ventura to the insurance

company that issued the key man policy on Clemente’s life. A subsequent note in

which Ventura suggested McDonald might have it in for him, as well as Ventura’s

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flight after his indictment, further indicated Ventura’s involvement in the murder.

In addition, McDonald was extensively impeached by evidence of his own

involvement in the Clemente murder, his prior felony fraud convictions and bond

jumping, and his prior false deposition testimony in the Clemente case, as well as

by the implication that he was motivated to testify by ill will toward Ventura and

Wright.9

The substantial volume of interlocking corroborating and impeachment

evidence soundly supports the Florida Supreme Court’s conclusion that a jury

would not have discounted McDonald’s testimony even if it knew he had been

promised a deal on potential bond-jumping charges in exchange for his testimony,

and thus that there was no reasonable likelihood that McDonald’s false testimony

could have affected the judgment of the jury. We therefore agree with the district

court that the Florida Supreme Court’s disposition of Ventura’s Giglio claim was

not an unreasonable application of clearly established federal law.

9

The effect of these other means of impeachment was not, however, to render evidence of

McDonald’s deal cumulative. See, e.g., United States v. Sanfilippo, 564 F.2d 176, 178 (5th Cir.

1977) (“The fact that the history of a witness shows that he might be dishonest does not render

cumulative evidence that the prosecution promised immunity for testimony. A jury may very

well give great weight to a precise reason to doubt credibility when the witness has been shown

to be the kind of person who might perjure himself.”); accord Brown, 785 F.2d at 1466. Rather,

the other sources of impeachment are simply relevant to the determination of whether there is

any reasonable likelihood that evidence of McDonald’s deal could have affected the judgment of

the jury.

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IV.

The conduct of the prosecutor in this case was inexcusable, and wholly

discordant with his paramount obligation to seek the truth. Nevertheless, the

Florida Supreme Court’s determination that McDonald’s false testimony was not

“material,” as required by Giglio, was neither contrary to nor an unreasonable

application of clearly established federal law. We, therefore, affirm the district

court’s denial of Ventura’s petition for a writ of habeas corpus.

AFFIRMED.

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