FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT August 21, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 01-15865

________________________ D. C. Docket No. 98-08225-C V-FAM

JERRY LEON HALIBURTON, Petitioner-Appel lant,

versus SECRETARY FOR THE DEPARTMENT OF CORREC TIONS, Ja mes Crosb y, Secreta ry, Respondent-Appellee.

________________________ Appeal from the United States District Court for the Southern District of Florida

_________________________ (August 21, 2003)

Before TJOFL

AT, MARCUS

and WILSON, Circuit Judges. WILSON, Circuit Judge:1 Haliburton also was convicted of burglary of the victim’s residence

. 2 Haliburton also ra

ises other claims i

n his petition for ha

beas relief. Af

ter thoroughly reviewing his petition and after the benefit of oral argument, however, we f ind that the following eleven claims are without merit and do not warrant further discussion: 1) he received ineffective assistance of co

unsel at the guilt

phase; 2) he rec

eived ineffect

ive assistance of

counsel, becaus

e trial counsel waived his speedy trial rights; 3) he received inef fective assistance of counsel at the penalty phase, because counsel did not object to the jury instructions; 4) he received ineffective assistance of appellate counsel; 5) the trial court erred by pre venting him from presenting evidence of mitig

ating factors;

6) the trial court

erred by r

efusing to allow

defense counse

l to comment about an uncalled witness; 7) the trial court erred by failing to dec lare a mistrial based upon statements about his first trial; 8) the trial court erred in allowing the State to use gory photographs; 9) the trial court erred in refusing to include certain testimony when it reread testimony re

quested by th

e jury durin

g its deliberatio

ns; 10) the trial co

urt erred in ref

using to use a special verdic

t form; and 11) the

cumulative effe

ct of prosecutor

ial misconduct ren

dered his trial fundamentally unfair. The following six claims that were raised and rejec ted in the district court on the merits or as having been procedurally bar red have been abandoned on appeal as independent bases for habeas relief: 1) Florida’s capital punishment law is unconstitutional; 2) judicial electrocution constitutes cruel and unusual punishment; 3) the burden at the sentencing phase was impermi

ssibly shifte

d to the defendan

t; 4) the trial cour

t erred in allowin

g the jury t

o 2 Jerry Leon Haliburton was convicted of first degree murder and sentenced to death. 1 After the completion of his direct appeal and state habeas court proceedings, Haliburton filed, pursuant to 28 U.S.C. § 2254, a petition for habeas corpus relief in the

district court chal

lenging the first degr

ee murder con

viction and death sentence.The district court denied the petition,

but granted a certi

ficate of appealability

(COA) as to all issues. Haliburton c ontends that 1) the Sta

te withheld evidence in violation of Brady v. Maryland , 373 U.S. 83 (196 3); 2) he did not receive a fu

ll and fair evidenti

ary hearing on his Brady

claim regar

ding Freddie Haliburto

n’s March 15, 1982

statement; and

3) he received ineffective assistance of counse

l at the penalty phase of his trial. 2 For the reasons set forthconsider whether the homicide was especially heinous, atrocious, or cr uel; 5) the death sentence was unconstitutional, because the jury heard improper agg ravating factors; and 6) the jury instructions during the penalty phase of the trial were unconstitutionally vague with respect to the aggravating factors. Although Haliburton no longer ra ises claims three through six as independent bases for relief, he continues to argue that his counsel’s failure to raise them on direct appeal constituted ineffective assistance of appellate counsel. We, however, already rejected that c

laim. 3 below, we find th

at Haliburton is not e

ntitled to relief f

rom his convictio

n or his sentence, and, th

erefore, we a

ffirm the dist

rict court’s deni

al of his petition. BACKGROUND In the early morning of August 9, 1981, Donald Bohannon’s home was burglarized, and h

e was attacked w

ith a knife as he slep

t. “Bohannon die

d as a result of thirty-one st ab wounds over his n eck, chest, arms, and scrotum.” Haliburton v. State, 561 So. 2d 248, 249 (Fla. 1990) (per curiam). His body was found in his bed later t

hat afternoon by

his estranged girlf

riend, Teresa K

ast. “The perpetrator had gained entry to [Bohannon’s] apartment by re moving glass panes from a jalousie door. Fingerp rint evidence led th e police to” Haliburt on. Haliburton v. State, 476 So. 2d 192, 193 (F la. 1985), vacated , 475 U.S. 1078 (1986). On August 13, 1981, the police took Haliburton to the station house, advised him of his

rights, and questione

d him for sever

al hours. During the interrogation, Ha

liburton gave a reco

rded statement

wherein he “a

dmit[ted]3 In September and November of 1981 the State twice failed to indict Haliburton for

Bohannon’s murder.

4 For ease of reference, we will refer to Freddie ’s statement at the State Attorney’s Office as his March 15, 19 82 statement. Fre ddie gave that s

tatement in the pre

sence of Assistan

t State Attorney Paul O. Moyle, Sergea nt David Houser, and a court reporter. The parties, however, have been unable

to locate a trans

cript of the Marc

h 15, 1982 statemen

t.

5 In early March of 1982 Williams filed a charg e of sexual battery against Haliburton after he allegedly

held a knife to her

throat and attemp

ted to rape her. A

pparently, after Freddie learned about the

charge, he an

d Williams told police a

bout Haliburton’s a

lleged confessions to each of them. Later that year , Williams dropped the charge against Haliburton.

4 breaking in and seeing the body,” but “did not admit to committing the m urder.” Id. Nevertheless, h

e was arrested a

nd charged with fir

st degree murd

er and burgla ry. The gra nd jury, h owever, return ed an in dictmen t only fo r burgl ary. 3 Thereafter, on December 17, 1981, Haliburto n’s counsel waive

d his right to a speedy trial to secure more ti me to prepare

for the burglary

trial. On March 12th or 15th of 1982, Haliburton’ s brother, Freddie , and Sharon Williams, Freddie’s girlf

riend, recorded s

tatements at th

e police station and a

t the State Attorney’s Office 4 indicating that on separate occasions Haliburton admitted to each of them that he committed the m urder. 5 Armed with this additional evidence, the stat

e attorney sec

ured a grand jury

indictment on the

murder charg

e on March 24, 1982. Subsequently, in September of 1983, Haliburton was convicted of burgl ary and first degree murder and se ntenced to death. Nels on E.6 Although the record is unclear as to who represented Haliburton throughout the original

prosecution, it appears that he originally was represented by Mitchell Beers. Bailey assumed the role of Haliburton’s counsel, however, before the first trial. Then, Charles Musgrove handled the successful appeal, and Bailey and Musgrove handled the second trial, with Bailey functioning as lead counsel. Bailey is now a judge on the Fifteenth Judicial Circuit of Florida.

7 The Florida Supreme Court also rejected Haliburton’s claim that his waiver of a speedy trial applied only to the burglary c harge. See Haliburton , 476 So. 2d at 193.

5 Bailey repre sented Haliburton a t trial. 6 On dir ect ap peal, the Fl orida Supre me Court reversed his c

onvictions and rem

anded the case for a new trial, because it found that Haliburto

n’s stateme

nt to the police withou

t his attorney pr

esent, but after his attorney

arrived at the police station and request ed to see him, s

hould have been suppressed

. 7 The State sought ce

rtiorari review

from the Unit

ed States Suprem

e Court, and, on March 24, 1986, the Supreme Court vacated the judgment and rem anded the case to the Florida Supreme Court for reconsideration in light of Moran v. Burbine , 475 U.S. 412 (1986). See Florida v. Haliburton , 475 U.S. 1078 (1 986) (per curiam) . In Moran , the Supreme Court declined to fi

nd a violation of the United States Const

itution where the pol

ice failed to infor

m the defendant

that his attorney was a

ttempting to conta

ct him before h

e waived his Fifth A

mendment rights. 475 U.S.at 423–24. The Supr eme Court note

d in Moran , however, that its decision did not “d

isable[] the Sta

tes from adopti

ng different requir

ements for the conduct of its employees and officials as a matter of state law. ” Id. at 428. Thus,8 The aggrava ting factors we

re as follows: [t]he capital felon

y was committ

ed by a per

son under sentenc

e of imprisonment; the defendant was twice previously convicted of violent felonies; the capital felony was

committed while en

gaged in a bur

glary; an d the capital felo

ny was a homicide and was committed in a cold, calculated, and premeditated manner, without any pretense of moral or legal justification. Haliburton , 561 So. 2d at 249 n.1. 6 on remand, the

Florida Suprem

e Court mainta

ined its position that the

failure to suppress Haliburton’ s statement viol ated the due process

provision of the Flori

da Constitution, and, on

ce again, rever

sed Haliburton’s convictions and rem anded the case for a new trial. See Haliburton v. St ate , 514 So. 2d 1088, 1090 (Fla. 1987) (per curiam). Haliburton’s second trial began on January 25, 1988, and Bailey was appointed as defense counsel again. The jury convicted Haliburton of burglary and first degree murder and voted nine to three in favor of the death p enalty. See Haliburton , 561 So. 2d at 249. Af ter considering the e

vidence, the tria

l judge found four aggravati

ng factors, 8 no statutory m itigating factors,

and insufficient nonstatutory mitigatin g circumstances to outwei gh the aggravating factors. Therefore, the court imposed the death sentence. The Florida Supreme Court affirmed the conviction and sentence on direct appeal. Id. at 252. Thereaf ter, Haliburton’ s execution was sche duled for March of9 The trial co urt also de nied Halib urton’s mo tion for a re hearing.

10 In the appeal o f the denial of his Rul e 3.850 mot ion, Halib urton rais ed the foll owing nine claims: (1) whether the successor judge properly r uled on [his] motion for rehearing; (2) whether the state withheld exculpatory evidence and whether counsel’ s performance was deficient during the guilt phase; (3) whether counsel’ s performance was deficient at the penalty phase; (4) whether the jury instructions and aggravating circumstances were unconstitutionally vague and overbroad; (5) whether the state complied with [his] chapter 119 requests; (6) whether counsel was ineffective in advising [him] to waive speedy trial rights on the burglary charge; (7) w

hether counsel w

as ineffective

regarding pr

osecutorial misco

nduct; (8) whether the jury instructions improperly shifted the burden to [him]; and (9) whether [he] was denied due process when the governor signed his death warrant before the two-year time limit for filing a motion for post-conviction relief expired. Haliburton , 691 So. 2d at 468–69. Claims four and eight were procedurally barred, a nd, as Haliburton’s stay

was granted in M

arch of 1992, he c

onceded that cla

im nine was moot. 7 1992, but in Februar

y of 1992 he filed a motion to vacat e his conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850 and a motion for a stay of execution. See Haliburton v. Si ngletary , 691 So. 2d 466, 468 ( Fla. 1997) (per curiam) . A stay was granted on March 12,

1992 to allow the tria

l court to consider his postconviction motion to vacate. Subsequently, the trial court denied some of the cla

ims in his Rule 3. 850 motion and sche duled an evidentiary

hearing for the others. A

fter conducting the h

earing, the trial

court denied the re

maining claims, 9 and, thereafter

, Haliburton appea

led the denial of his R

ule 3.850 motion 1011 In his petition for state habeas corpus relief, Haliburton asserted the following five

claims: (1) whether appellate counsel’s ineffectiveness precluded reliable adver sarial testing; (2) whe

ther appellate c

ounsel was ineff

ective for faili

ng to raise a cla

im that the sentencing court precluded him from presenting mitigating witnesses; (3) whether appella

te counsel faile

d to argue that th

e evidence was i

nsufficient to prove guilt; (4) whether counsel was ineffective for not raising on appeal the court’s refusal to permit counsel to argue that the grand jury would not indict [him] solely on physical evidence; and (5) whether inadequa te limiting instructions on aggravating factors violated [his] right to a reliable capital sentence. Haliburton , 691 So. 2d at 472.

12 The case originally was assigned to Judge Daniel T.K . Hurley, and, thus, he issued the preliminary

order on August

27, 1999. Subsequen

tly, Judge Hu

rley recu sed himself, and th

e case was assigned to Judge Federico A. Moreno. 8 and filed a petition for state habeas corpus relief. 11 On January 9, 1997, the Florida Suprem

e Court affirm

ed the trial court’ s order denying his Rule 3.850 motion and denied his petition for state h abeas corpus relief. Subsequently, Haliburton filed the instant petition for a writ of habeas corpus in the Southern District of Florida. In its preliminary order, 12 the district court denied eightee

n of the twenty c

laims raised in

Haliburton’s pet

ition and ordered an evidenti

ary hearing to d

ecide whether (1 ) Freddie’s Ma rch 15, 1982 statement constituted a basis for a Brady violation and for a finding that trial counsel’s performance wa s ineffecti ve at the gu ilt phase ; and (2) tr ial couns el’s decision not to present a mental health expert as mitigating evidence constituted13 Initially, the court granted a COA as to the two issues a ddressed in the federal evidentiary hearing. Haliburton, however, filed a motion for c larification as to whether the COA addressed the other issues previously decided by Judge Hurley. The court granted the motion and issued a COA “on all issues including those previously decided by Judge Hurley.” Haliburton , __ F. Supp. 2d at __.

14 Haliburton filed his petition for habeas corpus relief on April 10, 1998, well after the enactment of the AEDPA. Thus, our review is governed by the A EDPA. See Lindh v. Murphy , 9 ineffective assista nce of counsel at the penalty phase. Haliburton v. Sec’ y for the Dep’t of Corr. , 160 F. Supp. 2d 1382 , 1384, 1387, 1390 (S .D. Fla. 2001). On September 10, 2001, after conducting an evidentiary hearing, the district court denied Haliburton ’s petition for habeas corpus relief in its entirety, id. at 1392, and granted a COA as to all iss ues, see Haliburton v. Se c’y for the Dep’t of Corr. , S.D. Fla. 2001, __ F. Supp. 2d __ (No. 98-08225-CV-FAM, Oct. 23, 2001). 13 This appeal followed. STANDARD OF REVIEW “When reviewing the district court’s denial of a habeas petition, we review questions of law and m

ixed questions of law

and fact de novo , and findings of fact for clear error.” Nyland v. Moore , 216 F.3d 1264, 1266 (11th Cir. 2000) (per curiam). Mo

reover, as we a

re reviewing a fi

nal state habeas j udgment, “ our review is greatly

circumscribe

d and is highly defe

rential to the state

courts” pursuant to § 2254 of the A ntiterrorism a

nd Effective De

ath Penalty Ac

t of 1996 (AEDPA). Crawford v. Head , 311 F.3d 1288, 1295 (11th Cir. 2002). 14521 U.S. 320, 322, 326–27 (1997) (providing that the AEDPA applies to federal habeas petitions

filed after April 24, 1996). 10 The standards appli

cable to our review

under the AEDPA

are well settled

. First, § 2254(e)( 1) provides for a high ly deferentia

l standard of review for factual determinat ions made by a state court: [A] determination o f a factual issue m ade by a State court shall be presumed to be correct. The app licant shall have the

burden of rebutting the presum

ption of correctnes s by clear and convincing evidence. Second, § 2254(d) al

lows federal habe

as relief for a c

laim adjudicated on the m

erits in state court

only where tha

t adjudication in state court (1) r

esulted in a decision t

hat was contrary

to, or involved an unreasonable application of, clearly established Federal law, as determ

ined by the Supre

me Court of the

United States; or (2) resulted in a decisi

on that was based on a

n unreasonable determination o f the facts in light of the evidence prese

nted in the State court proceeding. Id. (alteration in orig inal) (citation omitted ) (internal quotati on marks omitted). Furthermore , we previously have stated that [a] state court decision is ‘contrary to’ clearly established federal law if either (1) the s

tate court applied a

rule that contradic

ts the governing law set forth by Supreme Court case law, or (2) when faced with materia

lly indistinguishabl

e facts, the stat

e court arrived at

a result different from that reached in a Supreme Court cas e. Putman v. Head

, 268 F.3d 1223, 124 1 (11th Cir. 2001), cert. denied , __ U.S. __, 123 S. Ct. 278 (2002). Additionally, “[a] state court’ s decision [is] an ‘unreasonable ap

plication’ of fe

deral law if it ide

ntifies the correc

t legal rule from Supreme Court

case law, but app

lies that rule in an un

reasonable ma

nner to the11

facts of petitioner’s case.” Breedlove v. M oore , 279 F.3d 952, 961 (11th Cir. 2002), cert. denied , __ U.S. __, 123 S. Ct. 1278 (2003). Furthermore, a state court decision that “unreasonably extends, or declines to extend, a governing legal principle (as esta

blished by Suprem

e Court case law)

to a new context” a

lso constitutes an un reasonable applicat ion of federal law. Id. DISCUSSION I. Brady Claims Haliburton contends t

hat he is entitled to r

elief from hi s conviction, because the state withheld exculpatory evidence in violation of Brady

. In Brady , the Supreme

Court placed an af

firmative duty

on the prosecution to reveal any “

evidence [that] is material e ither to guilt or to punis

hment, irrespective of the g ood faith or bad fait h of the prosecutio n.” 373 U.S. at 87. This duty covers “[i]mpeachm ent evidence . . . as well as exculpatory evidence.” United States v. Bagley , 473 U.S. 667, 676 (1985). Brady does not, however, require that the pr

osecution “deliv

er [its] entire

file to defense cou

nsel, but only [that it] disclose” material evidence. Id. at 675 (footnote om itted). Evidence

is material under Brady “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. at 682.15 The trial court found that this testimony was relevant to determine whether Haliburton

was confessing to the instant murder. 12 A. Fingerprint T

est Results In early Marc

h of 1982 William

s filed a charge of

sexual battery

against Haliburton. She a

lleged that Halibur

ton held a knife to her

throat and attem

pted to rape her, but, la

ter that same year, she dro pped the charge. A

t Haliburton’s se

cond trial in 1988, however, Williams testified that Haliburton held a knife to her throat during the a

ttack in 19 82 and said,

“You don ’t think I ’d do nothi ng to you,

huh?” and “I do you just like I did that man, I kill you .. . .” She also testified that during the same c

onversation, he told her that a “knif e was the best thing ne

xt to a gun,” because it would be difficult to prove that he was responsible if he hurt someone with a knife. 15 As testing at the time of the charge did not reveal Haliburton’s fingerprints on the knife allegedly used in the attack, he contends that he could have used the f

ingerprint test res

ults to impeach W

illiams’s te stimony that he held a knife t

o her throat. He,

however, contends

he was not able to do so, because the State withheld the fingerprint test results in violation of Brady

. The state court re

jected Haliburt

on’s Brady

claim as to this issue. Haliburton , 691 So. 2d at 470. The court found that the fingerprint tes

t results were for a sep arate charg e that was no lle pross ed six years b efore Halib urton’s16 “Under Florida law, a prisoner who behaves well and diligently performs assigned work can reduce his term of incarceration by ea rning gain time.” Raske v. Martinez , 876 F.2d 1496, 1496 (11th Cir. 1989) (internal quotation marks omitted).

17 Broome is now a judge on the Fifteenth Judicial Circuit of Florida. 13 second trial. Id. Moreover, the State Attorney’s Office where the char ge was filed had an open files po licy. Id. Thus, the state court concluded that H aliburton could have requested the file on the attack under that policy and presumably discovered the fingerprint tes t results. Id. As the state court’ s reasonable deter mination of the facts, see 28 U.S.C. § 2254( d)(2), leads us to t

he conclusion that Ha

liburton could have disco vered the f

ingerprin t test resu lts with du e diligen ce, the stat e court’s determination that the State did not violate Brady was an objective

ly reasonable adjudication of feder al law, s ee id. § 2254(d)(1). Accordingly, Ha liburton is not entit led to relie f base d upo n thi s clai m.

B. Fred die Ha libu rton’ s Gain Time In June of 1982 Freddie

was convicted of bur

glary and senten

ced to twelve years in state prison. During his sentence, he was transferred to the Palm Beac h County Jail to tes

tify in both of Ha

liburton’s trials a

nd to be deposed regar

ding Haliburton’s ca

se. While Fre

ddie was in the county

jail, however

, he could not accrue gain tim

e for his burglary

conviction. 16 Thus, Virginia Gay Broome, 17 who was the prosecutor

at the time, a

greed to write a l

etter to the Depar

tment of18 On cross-examination of Freddie, Bailey inquired about the prosecution contac ting the DOC on Freddie’ s behalf as follow s:

14 Corrections (DOC) requesting that F reddie not be penaliz

ed by losing his gain time while he was in the coun ty jail. Haliburton , 691 So. 2d at 470. Haliburton, however, ch aracterizes Broome’s lett er to the DOC a s a deal to i nduce Fred die’s testimony a

nd thus contends that the State failed to disclose the deal fully in violation of Brady

. Both Fredd ie and Broo me denied tha t there was a deal to ind uce Freddi e’s testimony,

but they both ackno

wledged that Broom

e wrote to the DOC about Freddie’s lost gain ti me. Id. For example, at Freddie’s de

position on January

15, 1988, Broome st

ated in the presence

of Bailey that

she told Freddie she “would write and try to keep [him] from losing g ain time while” he was in the co unty jail. Thus, Baile y knew that Bro ome wrote the l etter to th e DOC before Ha liburton ’s second trial began

. See United States v. Meros , 866 F.2d 1304, 1309 (11th Cir. 1989) (per curiam) (declining to find a Brady violation where defense counsel knew that a witnes s might have been involved in plea negotia tions before the witness took the stand) . Furthermor e, on cross-exam

ination at the second t

rial, Freddie testified

that the prosecutor agreed to contact th e DOC on his behalf

, but not in exchan ge for h is test imony. 18[Bailey:] Has anybod y in the Prose

cutor’s Office

while you’v

e been here to testify at this trial – answer this question yes or no – has any body agreed to make

any kind of r

equest, recomme

ndation, any

thing else to the Department

of Corrections wh

ere you’r e being held in cus tod y? [Freddie:] Yes. [Bailey:] As a result of you being here testify ing today; yes or no? [Freddie:] No. [Bailey:] Oka y. 19 To the extent that Haliburton challenges the merits of the Bradyclaim regarding Freddie’s March 15, 1982 statement in addition to the procedural aspects of the evidentiary hearing, we affirm the district court’s denial of the Bradyclaim. 15 As the State notifi

ed the defense about

the letter to the DOC and Freddie testified about the letter at trial, the state court found “no failure on the state’s part to disclose relevant evidence.” Haliburton , 691 So. 2d at 470. We conclude that the Florida Supreme Court’s decision that the State disclosed all relevant evidence concerning the deal involving Freddie’ s gain time was a reasonable application of clearly established fede ral law, see 28 U.S.C. § 2254( d)(1), and was ba

sed upon a reasonable determinatio n of the facts, see id. § 2254(d)(2). II. Federal E

videntiary Hearing Haliburton contends t

hat although he rece

ived an evidentiary

hearing on his Brady claim regar

ding Freddie’s Ma

rch 15, 1982 statem

ent, it was not a f

ull and fair hearing beca

use he was not perm

itted to call Bailey

, his trial counsel,

to testif y. 19 Thus, he contends that he is entitled to a remand for further evidentiary proceedings on this issu

e. Despite Hal

iburton’s effort

s to frame our review in20 Moyle was th e chief homicide

prosecutor in Palm

Beach County

at that time. Moy

le is now a judge on the Fifteenth Judicial Circuit of Florida.

21 Sergeant Houser testified that Freddie’s March 15, 1982 statement indicated that Haliburton confe

ssed “that he had

gone into the Bo

hanan [sic] apartme

nt and stabbed Don

ald Bohanan [sic].” Similarly, Moyle testified that Freddie’s Mar ch 15, 1982 statement “indicat[ed] 16 terms of whether the federal evidentiary hearing was full and fair, there is no such recognized claim

for relief, and

we instead are tr

eating his claim

as one that the district court abuse

d its discretion by

conducting the heari

ng in the way tha

t it did. The district court ordered an evidentiary hearing to determine whether a transcript of Fre

ddie’s March 15,

1982 statement e

xisted, and, if so,

whether the State committed a Brady

violation by fail

ing to disclose the tra

nscript. Contrar

y to the State’s position before the state courts, however, it conceded at the federal hearing that Freddi

e made a state

ment at the Sta

te Attorney’ s Office in the presence of Sergeant David Houser, Assistant State Attorney Paul O. Moy le, 20 and a court reporter.The State also co nceded that there w

as a transcript of the statement, w

hich it turned over to t

he defense, that could not be located at p resent. As a result, the court received testimony at the hearing from H ouser, Moyle, Richard Barkin, and Freddie to determine the content of the statement. Houser and Moyle, who

were both present for Freddie’s M arch 15, 1982 statem

ent, testified that they recalled Freddie giving a formal statement that was transcribed and that the statement identified Haliburton as Bohannon’s murderer. 21 Moylethat [Haliburton], his brother, had confessed to this murder.”

22 Haliburton wanted to present Bailey’s testimony as to the Brady claim and the ineffective assistance of counsel claim. As Bailey testified at the sta te evidentiary hearing on the ineffective assistance of counsel claim and no new information was presented in the federal evidentiary hearing, the court declined to hear his testimony on that issue again.

23 Section 2246 provides that in habeas corpus actions, “evidence may be taken or ally or by deposition, or, in the discretion of the judge, by a ffidavit.” 28 U.S.C. § 2246. 17 also testified that a

fter the grand ju

ry returned an

indictment, he

turned the file over to Barkin, the prosecutor. Barkin testified that he generally recalled that Freddie’s Marc

h 15, 1982 statem

ent indicated that H

aliburton confessed t

hat he committed

the murder. Additionally, a lthough Freddie testi

fied that he ma

de the statement, he invoked his Fifth Amendment right against self-incrim ination when asked about the con tents of his statement. When Haliburton r

ested his case, he

reserved the right

to call Bailey

to testify as to the

contents of Freddie ’s March 15, 1982 s tatement

22 even though both parties agreed

that he would not be able to recall the spe cifics of the statement. As Bailey could not recall the specifics of the stateme nt, the court was uncertain as to what his testimony would add to the disposition of the Brady claim. Therefore, pur

suant to 28 U.S.C.

§ 2246, 23 the court ordered Bailey to testify through interrogator

ies and affidavits.Specifically , the court allowe

d each party to submit fi fteen inte rrogatori es to Baile y regarding h is knowled ge of Fredd ie’s24 When the court prop osed this procedu

re, defense co

unsel did not object

. 25 Bailey an

swered the inter

rogatories as f

ollows: Q4. At the time of Jerry Haliburton’s first trial were you a ware of Freddie’s March 12th statem

ent? A. When you say “March 12th statement” I assume you are referring to the statement given by Freddie Haliburton to Assistant State Attorney Paul Moyle inside the prosecutor’s office with a court reporter pre sent. Yes, I was aware of tha

t statement prior to

the first trial. Q5. What was your understanding/knowledge rega rding the contents of that statement? A. My understa

nding/knowledg

e of it was that he r

epeated what he

had told the police earlie

r, concerning

his brother Jerry

’s confession to hi

m. My understanding was that he repeated the same details of when and where the confession occu

rred and of the c

ontents of the conf

ession. It was

my understanding t

hat his statement to

Paul Moyle wa

s fully consi

stent with 18 March 15, 1982 statement and ordered that Bailey answer the interrogatories under oath in an affidavit.

Thereafter,

the court perm

itted each party

to submit five re

ply interrogatories an

d scheduled oral arg

ument to determ

ine whether Baile

y’s live testimony would be needed aft er reviewing the answers to the interrogato ries. After both parties agreed to the procedure, 24 Haliburton submitted three questions, the State

submitted eleve

n questions, and neithe

r party subm

itted reply questions. As antic

ipated, Bailey ’s answers to the interrogatories ind

icated that he did not recall the specifics of Freddie’s March 15, 1982 statement, but that he was aware of the stat

ement before

the first trial and

had a general recollection that the contents of the state

ment were inc

ulpatory, as w

ere all of Freddi

e’s stateme

nts in the case. 25his later testimony to the grand jury. I also understood it was consistent with what he later

testified to at both

the first and sec

ond trials. Q6. Did you understand the statement to have been either inculpatory or exculpatory of your client Jerry Haliburton? A. Extremely and emphatically inculpatory

. 19 Nevertheless, H

aliburton mainta

ined at oral argum

ent that he needed to present Bailey ’s live testim ony to test the disc

repancy in his a

nswers to the interrogatories – th

at is, the fact tha

t Bailey could not

recall the specif

ics of Freddie’s March 15, 1982 statement, but he generally could recall that it was inculpatory. B ased upon Bailey ’s answers, w hich were provided

under oath, and the testimony

of the other witnes ses, however, t he court found a suff

icient evidentiary bas

is to rule upon Halibur

ton’s Brady

claim without B ailey’s live testimony. Haliburton , 160 F. Supp. 2d at 1388. As Bailey did not testify live, Haliburton contends that he did not receive a full and fair evide

ntiary hearing.

The court, howe

ver, received B ailey’s test imony in the form of interrogato ries pursuant to § 2 246. Section 2246 p rovides, “On application for a w

rit of habeas corpus , evidence ma y be taken orall

y or by deposition, or, in the discretion of the judge, by affidavit. If affidavits are admitted any

party shall have

the right to propound w

ritten interrogator

ies to the affiants, or to file answering affidavits.” 28 U.S.C. § 2246. Additionally, Rule 7 of the Rules Govern

ing Section 2254 Cases

in the United State s District Courts20

gives judges the di scretion to expand the record to “include, with out limitation, . . . answers under oath

, if so directed,

to written interr

ogatories propounded by the judge. Affidavits may be submitted an d considered as a part of the record.” In light o f the fact th at Bailey cou ld not reca ll the spec ifics of Fre ddie’s March 15, 1982 state

ment, we fi

nd that the district court was well wit hin its discretion in taking hi s testimony t hrough interrogatori

es and considering his answers to the interro gatories as a part of th e record. See 28 U.S.C. § 2246. Furthermore , the court provided Haliburton an am

ple opportunity to de

monstrate why Bailey’s live testimony would be needed through reply interrogatories, which Haliburton did not make use of, and oral argument. Therefore, as the court received testim

ony from the

witnesses who had kn

owledge of Freddie ’s March 15, 1982 s tatement , we conc lude th at the d istric t court did no t abuse its dis cretio n by conducting the evidenti

ary hearing in t

he way that it d

id or by rely

ing upon Bailey’s int

errogatories in lie

u of hearing his live t

estimony. As a result, Halib urton is no t enti tled t o reli ef on t his cl aim.

III. Ineffec

tive Assistance of Counsel at the Penal ty Phase Haliburton contends t

hat he is entitled to r

elief from hi s sentence, becau se he received ineff

ective assistance of counsel at the pena lty phase. The

Florida Supreme Court, however, rejected t hat claim. Haliburton , 691 So. 2d at 471.26 The Strickland analysis is applicable at both the guilt and penalty pha ses in a capital case. 466 U.S. at 686–87. 21 Thus, we mus

t determine w

hether the Florida Supreme Court ’s legal conclusio ns were contrary to or an unreaso nable application of clearly established fed eral law. See 28 U.S.C. § 2254(d)(1). It was well settled when the Florida Supreme Court adjudicated Haliburton’s ineffective assistan ce of counsel claim

that Strickland v. Was

hington , 466 U.S. 668 (1984) , is the controlling l egal standard for i

neffective assist

ance of counsel claims. Williams v. Ta ylor , 529 U.S. 362, 406 (2000). To prove that counsel rendered ineffective assistance under Strickland , a defendant m

ust demonstrate tha

t “counsel’s conduct so underm ined the proper func

tioning of the adversarial process that the trial ca nnot be relied on as ha

ving produced a just result.” 466 U.S. at 686. Thu s, Strickland established a two-

pronged standard to determine whether counsel rendered ineffective assistance. 26 Id. at 687. First, the defendant must show that counsel’s performance was deficient. This r

equires showing that counsel made er rors so serious that counsel was not f

unctioning as the counse

l guaranteed the defendant by the

Sixth Amendm

ent. Second, the defendant must show that the defici

ent performa

nce prejudiced th

e defense. This requires showing tha

t counsel’s error

s were so serious a

s to deprive the defendant of a f

air trial, a tri

al whose result is r

eliable. Unless a defendant make s both showings, it ca nnot be said that the co

nviction or death sentence r

esulted from a

breakdown in the adv

ersary proce ss that renders the result unreliable.27 As the Florida Supreme Court cited and applied Strickland and we have not found a Supreme Court cas

e that is based upon

facts that are ma

terially ind

istinguishable f

rom the facts of this case, we c

onclude that the F

lorida Supreme Cou

rt’s decision was

not contrary

to clearly established federal law. See Putman , 268 F.3d at 1242 (concluding that the state habeas court decision was not contrary to clearly established federal law because it cited and applied Strickland

to an ineffectiveness claim).

28 Chandler

summarizes the clearly established federal law governing ineffective assistance of counsel cases at the time of the Florida Supreme Court’s decision. 218 F.3d at 1313–19. Therefore, we cite Chandler for the principles to be used in ineffective assistance of counsel cases. 22 Id. 27 When conducting an i neffectiveness re

view, the court’ s role “is not to gr ade counsel’s performance.” Chandler v. United States , 218 F.3d 1305, 1313 ( 11th Cir. 2000) (en banc). 28 On the contrary , the court’s role in this context is to conduct an objectiv

e inquiry and dete

rmine whethe

r “counsel’ s performance is reasonable[] under prevailing professional norms.” Id. (internal quotation m arks omitted). T

herefore, “ [j]udicial scr

utiny of counsel’ s performance must be highly deferential.” Id. at 1314 (internal quot ation marks om

itted). “Cour

ts must indulge [the] strong presumption that counsel’s performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional judgment.” Id. (alteration in orig inal) (internal quot

ation marks om

itted). This presumption is ev

en stronger when the

court is examin

ing the perform

ance of experienced counse l. Id. at 1316. To overcom e this presumptio

n in favor of competence,

the petitioner bear

s the heavy – but not

insurmountable –

burden of23

persuading the court “that no competent counsel would have taken the action that his counsel did take.” Id. at 1314–15. We note, howeve

r, that “[n] o absolute rules dicta te what is reasona

ble performance

for lawyers ,” because absolut e rules would im

pede “the constitutionally p

rotected independen

ce of counsel and re strict the wide lat itude counsel must have in making tactical decisions.” Id. at 1317 (internal quot ation marks omitted). For example, “counsel need not always investigate before pursuing or not pursuing a line of defense,”

because following a

particular line of defense “is a matter of strategy and is not ineffective unless the petitioner can prove the chosen course, in itself, was unreasonable.” Id. at 1318; see also Strickland

, 466 U.S. at 690

(“[S]tra tegic choices m

ade after thorough i

nvestigation of law and facts relevant to plausible opt ions are virtually unch allengeable.”). Additionally, c

ounsel is not “re

quired to present all

mitigation evide

nce, even if the additional mi

tigation evidence w

ould not have been incom patible with counsel’s strategy.” Chandler , 218 F.3d at 1319. Counsel must be per mitted to weed out some arguments to stre ss others and advo cate effectively. Id. Haliburton contends t

hat Bailey wa

s ineffective, be

cause he did not begin preparation for the

penalty phase unt

il after the guilty

verdict, which r

esulted in his failure to present mitigating evidence about Haliburton’s disadvantaged29 We present this evidence only as support for the fact that Bailey conducted additional preparation for the second penalty phase hearing , not as conclusive proof that his performance was effective. 24 childhood, alcoh ol and substance ab use, sex abuse, and bra in damage. He contends that Bailey

should have introduced this mitigating e vidence through the testimony of

Susan La Fehr H

ession, a ment

al health expert. We reject H

aliburton’s asser

tion that Bailey

did not begin preparing

for the penalty phase until after the guilty verdict in the second trial. As Bailey represented Hali

burton in the first tr

ial, he had mos

t of the background and preparation work for t he penalty phase completed b efore the second trial began. Haliburton , 691 So. 2d at 471. Yet, Bailey testified at the state court evidentiary hearing that during the

guilt phase of the second trial, he sim ultaneously conducted additional f

ollow-up preparat

ion for the penalty

phase. Indeed, a

t the second penalty pha

se, he presented si

x additional witnesse s. 29 Thus, we find that the Florida Supreme Court’s conclusion that the record does not support Haliburton’s cont

ention that Bailey

failed to begin prepa

ration for the penal

ty phase until after th

e guilty verdict

was returned is not

an unreasonable determination of the fact s. See 28 U.S.C. § 2254(d)(2). Furthermore, Bailey was not deficient for declining to present evidence about Haliburton’s disadvantaged childhood, alcohol and substance abuse, sex30 At the state evidentiary hearing, Bailey testified that he chose not to present evidence about Haliburton’s abusive background in part because such evidence “can pa int an appealing picture of how y

our client was ab

used and all those f

actors lead up to h

im doing what [he] did and you may

convince the jury

of that absolutely

; but you may

also convince the

m that, paint a picture of Frankenstein.” 25 abuse, and brain da

mage. As Ba

iley represen

ted Haliburton in the

first and second trials, he was aware of Haliburton’s abusive background through frequent contact with his family

members,

including phone calls,

visits to the fam

ily mem bers’ homes, and conferences at Bai ley’s office. See Haliburton , 691 So. 2d at 471. Additionally, Bailey knew that La Fehr Hession would have testified that there was an indication of

brain damage. Id. Yet, Bailey decided not to presen

t evidence about Hal

iburton’s abusive ba

ckground and the indica

tion of brain damage, beca

use such evidence ca

n often hurt the defe

nse as much or m

ore than it can help. 30 See Crawford , 311 F.3d at 1321 (“ [E]vidence of alcohol or drug abuse . . . often has li

ttle mitigating v

alue and can do as m

uch or more har

m than good in the eyes of the j ury.”). In stead, Bailey ’s strategy i

n the penalty phase was to paint a picture of a m

an worth saving by

emphasizing Ha

liburton’s close f

amily ties and the positive infl uence he had on members of his family and fe llow inmates. See Haliburton , 691 So. 2d at 471. As Bailey thoroughly investigated Haliburton’s background and mental health, we conclu

de that he knew enough

to make an infor

med, strateg

ic decision31 The Florida Supreme Court concluded in the alternative that “[i]n light of the

substantial, compe

lling aggra

vation found by

the trial court, th

ere is no reasona

ble probability that had the mental health expert testified, the outcome would have been different.” Haliburton , 691 So. 2d at 471. Thu

s, even if we wer

e to assume that co

unsel’s perform

ance was defic

ient, we find that the Florida Supreme Court’s alternative conclusion is a reasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). 26 not to present such mitigating evidence and that his strategic decision was reasonable. See Chandler , 218 F.3d at 1319 (pr oviding that “counsel [is not] required to present

all mitigation e

vidence, even if t

he additional mit

igation evidence would not have been incompatible with counsel’s strateg y”). Thus, we conclude that the Florida Supreme Court’s holding that Bailey’s perform ance at the penalty phase

was not ineffecti

ve is a reasonable a

pplication of clear

ly established federal law. See 28 U.S.C. § 2254(d)(1). 31 CONCLUSION For the foregoing reasons, we conclude that Haliburton has not shown that he is entitled to reli

ef from eithe

r his conviction or his d

eath sentence. T

hus, the district court prope

rly denied his habeas petition. AFFIRMED.