FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT February 18, 2004 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-13371

________________________ D. C. Docket No. 86-00685-C IV-ORL-19-DAB KENNETH DARCELL QUINCE, Petitioner-Appel lant,

versus JAMES CR OSBY, Sec retary, Florida Departm

ent of Corrections, CHARLIE CRIST, Attorney General of the State of Florida, Respondents-Appell ees.

________________________ Appeal from the United States District Court for the Middle Dist

rict of Florida

_________________________ (February 18, 20 04)

Before TJOFL

AT, ANDER

SON and MARCU S, Circuit Judges.1 In the interim , appellant had so

ught relief in f

ederal district c

ourt. However, t

hose proceedings w

ere administrati

vely closed

on October 26, 199

0, pending furth

er exhaustion of his state remedies. Quince v. Dugger, No. 86-685-CIV-ORL (M.D. Fla. Oct. 26, 1990). 2 ANDERSON, Circuit Judge: I. BACKGROUND In the early 198 0's, Kenneth Qui nce, a.k.a. R

asikh Abdul-Hakim (“appellant”

), pled guilty to

first-degree fe

lony murder

and burglary following the sexual battery and strangulation death of an 82-year old woman in her home, whereupon appellan

t was sentenced to de

ath by the trial court. His convict ion and sentence were affirmed on direc t appeal. Quince v. State , 414 So.2d 185 (Fla. 1982). Subsequent ly, there was extensive coll ateral litigation i n state court. See Quince v. State , 732 So.2d 1059 (Fla. 1 999), Quince v. State , 592 So.2d 669 (Fla. 1992), Quince v. State , 477 So.2d 535 (Fla. 1985). 1 As noted, see note 1, supra , appellant had fil ed a petition for habe

as corpus relief before f

ully exhausting his state court rem edies. After e

xhausting those remedies, a

ppellant returned to

federal court, a

mending his origina

l petition and presenting the newl

y exhausted clai

ms. In an opinio

n entered on May

10, 2002, the distr ict court e ntered fin al judgment, h aving rejec ted all of a ppellant ’s numerous claims. A Certificate o f Appealability has been issued with r

espect to three cla

ims:2 This case has been litigated on the assumption by all of the parties and the district court

that the pre-AED

PA law applies. Fo

r this reason, and

also because the

case can be re

adily resolved in the Sta

te’s favor under

pre-AEDPA law, w

e decline to addr

ess whether pre

-AEDPA law or the AEDPA should have applied. 3 (1) whether or not the failure of Judge Johnson to recuse himself deprived Quince of any constitutio

nal right, or other

wise is relevant to

this appeal; (2) wh

ether or not Quince was denied effective a ssistanc e of counse l because h is trial co unsel’s status as special deputy sheriff created a conflict of interest; and (3) whether there was a violation of Hitchcock v. Dugger , 481 U.S. 393, 107 S. Ct. 1821 (1987), because the sentenc

ing judge did not conside r nonstatutory m

itigating circumstances. Quince v. Moore , No. 02-13371 (11th Cir. Aug. 23, 20 02); Quince v. Moore , No. 02-13371 (11th Cir. Jan. 24, 2003). The facts relevant to each claim will be developed in the discussion t hereof. II. DISCUSSION 2 A. Recusal Of Judge F rom Collatera

l Proceedings The first issue app ellant raises is wh ether the failure

of Judge Johnson, the presiding judge at a

ppellant’s heari

ng on his Rule 3.850 hea ring, to recuse him

self deprived appellant of

any constitutiona

l right relevant to th

is appeal. Judge Johnson was a former collea gue of Howard Pearl in the public defender’s offi ce. At the time Pearl was representing appellant, Judge Johnson was serving as4

appellate coordinator for the public defender’s office. Judge Johnson indicated that he may have had some administrative role w ith processing appellant’s appeal – i.e. Judge Johnson indicated that as appellate coordinator for the office, he had responsibility fo

r checking the tim

ing of appellate fil

ings. Specifical

ly, appellant argues that Judge Johns on’s failure to r ecuse himself

constituted a due process violation entitling appe

llant to habeas reli

ef. We rej ect this argume nt. The first basis for

rejecting appell

ant’s argume

nt is that the claim

is not cognizable. Judge Johnson acted merely as the state judge in a collateral proceeding, the pr

oceeding on appellant ’s Rule 3.850 m otion. In Spradley v. Dugger , we held that whe re a petitioner’ s claim goes to is sues unrelated to the cause of petitioner ’s detention, that clai m does not state a basis fo r habeas relief. 825 F.2d 1566, 1568 (11t h Cir. 1987) (involvin

g claims as to e

rrors at a hearing

on the petitioner’s 3 .850 motion); see also Nichols v. Scott , 69 F.3d 1255, 1275 ( 5th Cir. 1995) (“An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in

respect to his convic

tion, as it is an atta

ck on a proceeding collateral to the detention and not the detention itself.”) (internal quotes omitted); Franzen v. Brinkman , 877 F.2d 26, 26 (9t h Cir. 1989) (agreeing with the ma jority view and holding that “

a petition alleging er

rors in the state post

-conviction review process is not addressable throu gh habeas corpus pr oceedings”).3 We note this argument is distinguishable from directly seeking habeas re lief based on Judge Johnson’s failure to recuse himself; it only affects the presumption to which findings of fact are entitled on habeas review, thus only indirectly affecting this Court’s analysis of appellant’s othe

r habeas claims. 5 Therefore, while habeas relief is available to address defects in a criminal defendant’s convi

ction and sentence,

an alleged defect

in a collateral pr

oceeding does not state a bas is for habeas relief. See Spradley , 825 F.2d at 1568. T he district court was

correct in rely

ing on Spradley

and declining to grant habeas relief based on Judge

Johnson’s refusal to recuse himse lf from the Ru

le 3.850 hearing. We affirm the district co urt as to appellant ’s first argument. We note that petitioner might have argued that there was a deficiency which rendered the state

court proceedings not

full and fair. Su

ch a deficiency

might deprive the state of

the presumption o f correctness wi th respect to the fin

dings of Judge Johnson. 3 Thompson v. Ke ohane , 516 U.S. 99, 1 08-09, 116 S. Ct. 4 57, 463- 64 (1995); Hardwick v. Cr osby , 320 F.3d 1127, 1158 ( 11th Cir. 2003). However, appellant’s brief makes no such a rgument. More

over, there is no m

erit to the claim here. As discuss ed above, J udge John son was a fo rmer colleagu e of appell ant’s trial counsel, How

ard Pearl, at th

e public defender’ s office, and m ay have had a non-substantive, administrative role in processing appellant’s appeal. The district6

court found that Judge J

ohnson was the appella

te coordinator for the office, whos e responsibilities included checking the timeliness of appellate filings. The district court also found there was no evidence that Judge Johnson had personal involvement or kno

wledge of appellan

t’s case, defe

nse, or appeal. A

lso, the Florida Suprem

e Court’s opinion in Quince v. State , 732 So.2d 1059, 1062 (Fla. 1999), indicates that the facts alleged by appellant do not support a claim of bias that would require r

ecusal by Judge Jo

hnson. We do not believe s

uch a technical invol

vement, at m

ost facilitating the proper filing of appe

llant’s appeal,

would be sufficient

to undermine the presumption of correctness. W e believe that the de

cision in Brownlee v. Haley , 306 F.3d 1043, 1063-64 ( 11th Cir. 2002), supports our conclusion in this regard. In Brownlee , we addressed th e petitioner’s c

laim of a Sixth Amendme nt violation where the pe titioner ’s defense at torney had p reviousl y worked for th e prosecut or’s office that had pros ecuted the petitione r for a differen

t, earlier crim

e. We held as a matter of law “that no conflict of interest existed.” Id. at 1063-64. In Brownlee , we were influen

ced by the fact

that the defense at

torney only s erved as a deputy district attorney

with supervisory

responsibility f

or the attorney

s handling prosecutions, that t

he defense attorne

y was positive he

had no contact with th

e petitioner during the

earlier case,

and that the actual p

rosecuting attorney

in the7

earlier case ave

rred that the then de

puty district att

orney had no involve

ment in the

case. Id. at 1063. Neither t he attorney in Brownlee , nor Judge Johnson in the present case, had

any involvem

ent in the actual tri

als or other substanti

ve handling involved in the re spective cases. Despit e the distinction that may be drawn between a judge and an attorney in regards to a conflict of interest, we think that Brownlee , by way o f analogy, prov ides support for our conclusion that, beca use Judge Johnson had no involvement in appellant’s case other than in an indirect supervisory and t

echnical role in the

handling of appellate

filings in the public defender’s off

ice, appellant w

ould not be able to show a deficiency i n the collateral proceedin gs that would render the proceedings no t full and fair. Id. at 1063-64. See also Spreitzer v. Peters , 114 F.3d 1435, 1451 ( 7th Cir. 1997) (“As for Anfinson, we

defer to the Illinoi s Supreme Cour t’s reasoning that

she would not be disqualified fr

om representi

ng Spreitzer m

erely because

another mem

ber of her office had at one time been a state’s attorney on the other side.”); Huff v. Standard Life In

s. Co. , 683 F.2d 1363, 1369 ( 11th Cir. 1982) (noting that the fact that the judge was a former law partner of the firm representing one of the parties in the action did not cr

eate a risk of im

partiality that

would jeopardize

the image of the judicial system). In conclusion, even if appellant had pu t forward such an argument, we8

would conclude on thes e facts that the col lateral proceedi

ngs in this case wer

e not rendered u nfair. There fore the pre sumption o f correctne ss of Judg e Johnson ’s findings is not und ermined. We affir m the distric t court’s ru ling that appellant ’s claim concer

ning Judge Johnson is not cogn izable on federal

habeas review an

d note that Judge Johnson’ s findings in the state collateral proceeding are entitled t o a presumption of correctn ess. See Hardwick , 320 F.3d at 1158. B. Ineffective Assistance Claim Appellant was also

granted a certifi

cate of appealabil

ity on the issue of whether appellant received ineffective assistance of counsel because his trial counsel’s status as a special deputy sheriff al legedly created a conflict of interest. At the time of appellant’s conviction and sentencing, appellant’s trial counsel, an attorney from

the public defender ’s office, m aintained the status o f special deputy sheriff from

the Marion County

Sheriff’s De

partment, a c

ounty adjacent

to the county in which a

ppellant was tried.

Appellant argues t

hat this status crea

ted a conflict of interest that entitles appellant to relief. The State argues that trial counsel’s status a

s special deputy s

heriff was m

erely an honora

ry title, wa

s only maintained for the purposes of carrying a concealed weapon, resulted in no law enforcement duties for trial cou nsel, and did not other

wise create a conflict of interest or advers ely affect a ppellant’s repre sentation.4 In arguing that Strickland , and not Cuyler , should apply, the State relies upon Beets v. Scott , 65 F.3d 1258 (5th

Cir. 1995) (en banc), and dicta in Mickens v. Taylor , 535 U.S. 162, 122 S. Ct. 1237 (2002). In Beets , the Fifth Circuit noted that many courts of appeal have applied Cuyler “unblinkingly” to “all kinds of alleged attorney ethical conflicts.” 65 F.3d at 1266. The Fifth Circuit held

that Strickland , and not Cuyler , applied to claimed conflicts between an attorney’s personal interests and his client’s interests. Id. at 1271-72. The Sup reme Court in Mickens noted the Beetsdecision, stated t hat Cuyler

itself involved only multiple concurrent representation – i.e., the active representation of conflicting interests – and sugg ested that the high probability of prejudice arising from multiple concurrent re presentation and the difficulty of proving prejudice warranted the Cuyler exc ept ion to t he o rdi nary Strickland rule regarding prejudice. The Supreme Court expressly left open the issue of whether or not the Cuyler standard should be applied in cases involving successive representation or other conflicts of interest. 9 The parties conte st whether the stan dard in Strickland v. W

ashington , 466 U.S. 668, 104 S.Ct. 1052 (1984), or that in Cuyler v. Sullivan , 446 U.S. 335, 100 S. Ct. 1708 (1980), should apply in the present case. 4 However, we n eed not resolve this issue in th

e instant case beca

use the case is rea

dily decided in the State’s favor under eith er standard.

1. The Cuyler

standard Under Cuyler , a petitioner in habeas proceedings who did not raise an objection at trial must show that his trial attorney labored under “an actual conflict of interest advers ely affect[ing] his lawy er’s perform

ance.” 446 U.S . at 350, 100 S. Ct. at 1719. O

nly when “a

defendant shows tha

t his counsel actively represented confl

icting interests” doe s he establish an act ual conflict under th

e Sixth Amendment. Id. A mere hypothetical conflict will not suffice to establish a violation under10

Cuyler

. See Smith v. Whi te , 815 F.2d 1401, 1404 ( 11th Cir. 1987). In Freund v. Butterworth , we explained:

An “actual conflict” of interest occurs when a lawyer has “inconsistent interests.” Smith , 815 F.2d at 1405. In order to prove that an “actual conflict” hindered petitioner’s law

yer’s perf ormance, pe

titioner “m

ust make a factual showing of

inconsistent interes

ts” or point to “specific instances in the record” to suggest an actual impairment of his or her interes ts. Smith , 815 F.2d at 1404; Oliver v. Wai

nwright , 782 F.2d 1521, 1524- 25 (11th Cir.) (em

phasis and internal quo

tation marks omitted), cert. denied , 479 U.S. 914, 107 S. Ct. 313, 93 L. Ed. 2d 287 (1986). Freund , 165 F.3d 839, 859 (1 1th Cir.), cert. denied , 528 U.S. 817, 120 S. Ct. 57 (1999). As noted above, Judge

Johnson’s findings of fact are entitle d to a presumption of correctness in this c ase. The state t rial court mad

e the following relevant findings of

fact following its N

ovember 8, 1996 hearing: Mr. Pearl never was and never has been a law enforcement o fficer with the Marion County Sheri ff’s Department.Mr. Pearl was in essence granted a concealed weapons pe rmit from the Mar ion Count y’s Sheriff’s Department as many other individuals were at that time. Co

unter to the defense

counsel’s assert

ions, the Court determines from the facts presented that Mr. Pearl had no ma

nifest or actual au

thority to act as

a fully constituted Deputy

sheriff for the M

arion County Sheriff’s De

partment beca

use at no time did

he indicate to anyone that he possessed anything o ther than a “gun11 toter’s perm

it” as a result of hi s special deputy s tatus. After acknowle

dging these findings by

the state trial cour

t, the district cour

t made the following findings :

[T]he uncontroverted testimony was that Mr. Pearl obtained and mai

ntained his special de

puty status solely in order to be able to

carry a fir

earm while t

raveling throughout the state. He had no law enfo rcement dutie s, no arrest powers, and no uniform; he received no law enforcement training, no compensation, and no internal memoranda from the Sheriff’ s Office. The title was merely honorary. Once state law changed to permit Mr. Pearl to obtain a state license to carry a concealed firearm, he resigned his spe cial deputy position

. We believe that this situation does not rise to the level of an actual conflict as requir ed by Cuyler

. Moreover, there

is simply no causal relation betw een any of the a

ctions by Pearl in representing appellant and the fact that Pearl held the status of a special deputy in Marion County for the purpose of carryin g a gun. “To pr

ove adverse effect, a defe

ndant needs to dem

onstrate: (a) that

the defense attorne

y could have pursued a plausible alternative strategy, (b) that this alternative strategy was reasonable, and (

c) that the alterna

tive strategy w

as not followed beca

use it conflicted with the attorney’s external loyalties.” Reynolds v. Chapman , 253 F.3d 1337, 1343 (11th

Cir. 2001) (citing Freund , 165 F.3d at 860).12

Appellant argues in

his brief that Pea

rl was afraid tha

t he would lose his status as a special d

eputy if he zea

lously defended a

ppellant. Howeve

r, appellant cannot point to an y specific instances of co nduct to support this claim. See Freund , 165 F.3d at 859. Appellant claims that advising appellant to enter a guilty plea shows Pearl’s s tatus influenced h is representation o f appellant. However, we a

gree with the distr

ict court that Pear

l’s explanation – th

at he felt the evidence was over

whelming again

st appellant and that b

y avoiding a jur

y trial, the trial judge m

ight have shown m

ercy and grant

ed appellant a life

sentence – was a reasonabl e one. Appel lant has n ot shown t he decisio n was influ enced by Pearl ’s status as a special d

eputy sheriff.Appellant also cla imed that Pear

l did not depose a law enforcem

ent witness or m

ove to suppress the wi

tness’ testim

ony because of his status as a special deputy sheriff. As pointed out by the district court, contrary to appellant’s contention, Pearl did in fact take the deposition of the law enforcement witness. Further, after deposing the witness, Pearl discussed appellant’s confession with appellant, who acknowledged that his rights had been read to him, th

at he understood those r

ights, that he had not b een abused or mistreated by

police, that his sta

tement had been

voluntary, and t

hat the stateme

nt was in appellant’s han dwriting and sign ed by appellant. Appellan t has not shown that Pearl’s decision not to file a motion to suppress was based on anything other13

than Pearl’s co

nclusion that, given th

e information p

rovided to him by

appellant and the deposition of the

law enforcem

ent witness, a m

otion to suppress would have been futile. We agree with the district court that appellant has not shown that Pearl made a decisio

n not to pursue another reasonable approac h in the case based on any conflicting loyalties

. See Reynolds , 253 F.3d at 1343 . Therefore, under the Cuyler standard, appella

nt’s claim f

ails. 2. The Strickland

standard Under Strickland , appellant mu st satisfy a tw

o part test: (1) appe

llant must show that counsel’ s performanc e was deficient, falling “below

an objective standard of reasona

bleness”; and (2) ap

pellant must show

that counsel’s def

icient performance

prejudiced appel

lant’s defense,

in that there is a re

asonable probabil ity that the outcome woul d have been different b ut for coun sel’s unprofessional err

ors. 466 U.S. a

t 687-88, 104 S. Ct.at 2064. In addressi ng appellant’s claim we must rem ember that there is a strong presumption that counsel provided rea

sonable assistance,

and that petitioner be

ars the burden of overcoming the p

resumption that t

he challenged actio

n might be conside

red sound trial strategy. Id. at 689, 104 S. Ct. at 2065. Courts m ust avoid using “‘hindsight ’” and must end eavor to “eva luate the r easonabl eness of co unsel’s14

performance ‘from counsel’s perspective at the tim e.’” Chandler v. United States , 218 F.3d 1305, 1316 (11t h Cir. 2000) (quoting Strickland , 466 U.S. at 689, 104 S. Ct. at 2065), cert. denied , 531 U.S. 1204, 121 S. Ct. 1217 (2001). As discussed above, Pearl’ s advice that appella nt enter a guilty

plea and Pearl’ s decision not to make a mot

ion to suppress the conf

ession were both re

asonable in light of the facts of the case. Appellant cannot satisfy the first prong of the Strickland analysis by showing trial counsel’s perfor mance was deficient. Moreove r, for reasons already discussed, appellant cannot establish the prejudice prong of Strickland

. Because appellant ’s claim fa ils under both Cuyler

and Strickland , we affirm the di stric t cour t’s de nial o f appe llant ’s con flict of int erest claim. C. Failure To Conside r Nonstatutory Mitigation Appellant’s fina

l claim is that t

he sentencing judge

violated Hitchcock v. Dugger , 481 U.S. 393, 107 S. Ct. 1821 (1987) , by failing to consider numerous nonstatutory mitigating factors. At sentencing, appellant waived the right to a jury recommended sentence. After hearing evidence at sentencing, the trial court found the existen ce of three aggravatin g circumstances under Fla. St at. § 921.141(5), that the murder was committed in the course of a ra pe, that the murder

was comm

itted for pecuniar

y gain, and that

the murder wa

s especially he

inous, atrocious, or crue

l. The trial cour

t also considered evi

dence in mitiga

tion of15

appellant’s sente

nce. The sentenc

ing court found only

one mitigating f

actor existed – an impa

irment with r

espect to the capac

ity of appellant

to appreciate the criminality

of his conduct or to con

form his conduct

to the requirem

ents of the law. In finding thi s mitigating fac tor, however, t

he trial court noted that the evidence was conf

licting, and that it w

as giving the defendan

t the benefit of the doubt. The trial court stated “that it does not feel this factor should be accorded much weight. It is not a strong and clear mitigating factor.” State v. Quince , No. 80-48-CC (Fla. 7t

h Cir. Ct. Oct.21, 1980) (Sentenc ing Order). In coming to its decision regarding a

ppellant’s capac

ity the sentenci

ng court indicated tha

t it considered appellant’s low intelligence, drug and alcohol use, and the appearance of appellant in court

as it related to appe

llant’s ment

al limitations.In regard to the other two mitigating factors raised by defendant at sentencing the sentencing court found that neither appellant’s age nor his criminal history would serve as mitigating factors. The sentencing court then determined the aggravating factors outweighed the one m

itigating factor and

sentenced appellant

to death. “In capital cases, the ‘sentencer’ m ay not refuse to consider, or be precluded from considering, any relevant mitigating evidence.” Baldwin v. Johnson , 152 F.3d 1304, 1321 (11th

Cir. 1998) (citing Hitchcock , 481 U.S. at 394, 107 S. Ct. at 1822). App ellant ass erts that t he sentenc ing court failed to c onsider ap pellant’s16

low IQ, learnin

g disability, te

nth grade education,

poor memor

y, alcohol and dr

ug use, appellant’s confession, and the death of appellant’s father and sister as nonstatutory mitigatin g factors. The Florida Supre

me Court, in it

s review of appell

ant’s Hitchcock challenge, stated, “Nor does the record support appellant’s claim that the trial judge limited his consideration to only statutory mitigating circumstances.” Quince v. State , 414 So.2d 185, 188 ( Fla. 1982). In a s eries of cases, t his Circuit has indicated that suc

h a statement is

a finding of fact: Although whether a Hitchcock error occurred is a legal question, “it is

almost entirel

y dependent upon the answer to a question

of fact: did the sen

tencing judge consider any and

all nonstatutory mitigating circumstance evidence that was presented to him?” Spaziano v. Singletary , 36 F.3d 1028, 1032 ( 11th Cir.1994), cert. denied , 513 U.S. 1115, 115 S. Ct. 911, 130 L. Ed. 2d 793,

(1995). The distr

ict court’s findi

ng, therefore, with regard to this factual question – i.e., what the sentencing judge knew or did – is subject to reversal only if clearly erroneous. See Spaziano , 36 F.3d at 1032 (reviewing the dist

rict court’s fin

dings – based on the state record, doc

umentary e

vidence, or infer

ences from other facts – that the sentencing judge knew he was bound to consider, and did consider, nonstatutory mitigating evidence fo r clear error). Baldwin , 152 F.3d at 1322. O f course, when r eviewing a state court’s finding of fact in a habeas case under pre-AEDPA law, we do not review for c lear error; rather, we presume the correctne ss of the state court finding unless, inter alia , it is17

not fairly supported by the record. 28 U.S.C. § 2254(d)(8) (1994) (am ended 1996). Thus, the F lorida Suprem e Court’s statem

ent that the sentenci

ng judge did not limit his consid eration to only statut ory mitigating circumstances, see Quince , 414 So.2d at 188, is a finding of fact, and it should be upheld, because, as discussed below, our

review reveals t

hat the finding is fai

rly supported by

the record. The record reveals that most, a nd certainly the

most significant

, of the nonstatutory m

itigating factors a

sserted by appel

lant were expres sly mentione d by the sentencing court when the court found the statutory m itigating factor of substantial impa

irment. Appe

llant asserts that th

e sentencing judge d

iscounted the significance of this

evidence because t

he sentencing court t

hought it had to rise to the level of a statutory mitigating factor. However, there is nothing in the record to support such an asser

tion. The sentenci

ng order indicates th

at the sentencing court considered ea

ch instance of m

itigation cited by

defendant at the se

ntencing hearing, and reviewed the PSI in the case – which contains evidence of factors appellant now conten

ds are mitigati

ng, but which appell

ant did not specifica

lly point out to the sentencing court at the time. In fact, the sentencing court announced from the bench that it had consid ered all of the eviden ce in the case. Our review reve

als that the Florida

Supreme Cour

t’s finding that the

sentencing5 Appellant appears to urge us to engage in de novo review of the matter. As discussed

above, such review would be improper in the present case. Even if we did conduct such a review, we note

that the record w

ould also lead us to t

he same conclusio

n as the Florida Su

preme Court. Our careful review of the sentencing transcript and the judge’s orde r persuades us that the sente ncing judge did no t refu se to c onsid er any ev idenc e whic h sugge sted m itiga tion . In particular, it se

ems clear that the

sentencing judg

e did consider ev

idence of any

impairment in Appellant’s capacity to appreciate the criminality of his conduct or conform his conduct to the law, whether or n

ot the suggeste

d impairment was su

bstantial. Thus, the

sentencing judg

e did not improperly

limit his considera

tion of mitigating

circumstances. 18 judge did not limit himself to only statutory mitigating factors wa s fairly supported by the record.Therefore, a s a factual determ

ination, we are p

rohibited from overturning it. 5 We affirm the district court’ s denial of appellant ’s Hitchcock claim. III. CONCLUSION We hold that appell

ant’s claim

based on a state cour

t judge’s failur

e to recuse himself in a collate ral proceeding is no t cognizable under habeas review. Appellant has not shown ineffective assistance of counsel based on his trial counsel’s status as a special deputy sheriff under either the Cuyler or Strickland standard. Finally, appellant has not established a Hitchcock error occurred a

t the sentencing phase of hi s trial. We af firm the distr

ict court on all three of the grounds appealed by

appellant. AFFIRMED.