FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JAN 30 2001 THOMAS K. KAHN CLERK PUBLISH

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 99-4342 D. C. Docket No. 94-14125-CIV-WDF

JIM ERIC CHANDLER, Petitioner-Appellant,

versus MICHAEL W. MOORE, Secretary, Florida Department of Corrections, Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida (January 30, 2001)
Before BIRCH, DUBINA and COX, Circuit Judges. DUBINA, Circuit Judge:2 Petitioner, Jim Eric Chandler (“Chandler ”), appeals the district court’s order denying his petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. After reviewing the entire record in th is case and having the benefit of oral argument and the parties’ briefs, we affirm the judgment of the district court. I. BACKGROUND A. Facts An Indian River County, Florida, grand jury returned an eight-count indictment charging Chandler with two counts of first degree murder, two counts of robbery with a deadly weapon, three count s of trafficking in stolen property, and one count of aggravated assault. Th ese charges arose from the robbery of an elderly couple and their death by bludgeoning. A jury recommended a death sentence, and the trial court followed the jury’s recommendation. Chandler reported to the authorities th at he found the bodies of Harold and Rachel Steinberger in a wooded area behind th eir residence. When he reported the crime, Chandler told the o fficers that Mr. Steinberger had invited Chandler into his home and asked Chandler to mow his grass. Chandler indicated to the officers that he was in the Steinberger’s neighborhood checking on his ex-girlfriend’s house at the time Mr. Steinberger asked him to perform yard work. The day after he reported the crime, Chandler called O fficer Redstone and inquired whether the3 police were going to arrest him. OfficerRedstone responded negatively, but asked Chandler to accompany him to the victims’ house and point out any missing items. Chandler acquiesced to Officer Redstone’s request. During the “walk-through,” officers asked Chandler why anyone would go in the woods to be killed, and Chandler rep lied that they [the victims] were ordered out of the house. Chandler mentioned th at the victims had been stabbed, although the authorities had not yet released that information. When the officers queried whether the victims might have resisted , Chandler speculated that the victims would not have resisted if the murdererplaced a knife to the wife’s throat. Chandler further stated that the vic tims were probably killed for the $150,000 they made upon the sale of their house; however, Chandler knew that the victims had only $10,000 in their bank account. Chandler would have known this information from an examination of the victims’ bank account record. Finally, Chandler stated that if he were the officers, he would arrest Chandler. After Chandler’s arrest, he again spoke to Officer Redstone and told him a story of two hit men who were the likely murderers. He posited that the victims were connected to the murder of a man named Gill, and their murders were a retaliation for their involvement with Gill’ s murder. An investigation revealed, however, that Chandler attended school with a man named Gill who committed4 suicide. The investigation further show ed that the victims had no connection with Gill’s suicide. During the interview, Chandler also stated that he thought the murder weapon was discarded in a body of water, and the officers would never find it. The evidence at trial indicated that Mr . Steinberger’s hands were tied behind his back with a dog leash. An autopsy re vealed that the victims had been killed by blows to the head administered by a blunt object, possibly a baseball bat. The autopsy also indicated that both victims had been stabbed numerous times in the back. Chandler’s ex-girlfriend testifie d at the trial that Chandler had been checking on her house weeks prior to the Steinberger’s murders. Additionally, the evidence showed that numerous personal items were missing from the victims’ house. Witnesses testified that Chandl er sold these items to them, telling prospective buyers that he needed money to bail his brother out of jail. Chandler’s brother and mother testified, however, th at the brother had never been in jail. B. Procedural History A jury convicted Chandler of two counts of first degree murder and recommended the death penalty. The trial court followed the jury’s recommendation and imposed a death senten ce. On appeal, the Florida Supreme Court affirmed Chandler’s convictions, butremanded for re-sentencing because the1 The district court granted Chandler a Certificate of Appealability (“COA”), but failed to enumerate the issues for our review. 28 U.S.C. § 2253(2) & (3) (“A certifi cate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. The certificate of appealabilit y under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).”). Since the district court did not enumerate the issues for our review, we grant the COA only as to the specific issues Chandler presents to us in his appellate brief. 5 trial court erroneously excused two prospective jurors. Chandler v. State , 442 So.2d 171 (Fla. 1983). Chandler’s second jury also recommended a death sentence, which the trial court imposed. The Florida Supreme Court affirmed. Chandler v. State , 534 So.2d 701 (Fla. 1988), cert. denied , 490 U.S. 1075 (1989). Chandler then filed a Rule 3.850 motion for post-conviction relief raising thirteen issues. Chandler also filed a state habeas petition raising eleven issues. The trial court denied all relief without conducting an evidentiary hearing. The Florida Supreme Court upheld the trial court’s rulings. Chandler v. Dugger , 634 So.2d 1066 (Fla. 1994). Chandler then filed a petition for habeas relief pursuant to 28 U.S.C. § 2254, which the district court de nied. Chandler then perfected this appeal. II. ISSUES 1 1. Whether the trial court’s comments at the capital trial deprived Chandler of the presumption of innocence and relieved the State of its burden of proof in violation of the Due Process Clause of the Fourteenth Amendment.6 2. Whether the prosecuting attorney s’ comments at the trial deprived Chandler of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. 3. Whether the State knowingly presen ted false or misleading evidence and failed to disclose exculpatory evid ence at Chandler’s re-sentencing. 4. Whether the prosecuting attorn eys’ comments at Chandler’s resentencing hearing deprived him of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. 5. Whether Chandler’s Sixth, Eighth, and Fourteenth Amendment rights were violated when the trial court denied his challenges for cause under Morgan v. Illinois , 504 U.S. 719, 729, 112 S.Ct. 2222 (1992), and whether his counsel was ineffective for failing to raise the issue on direct appeal. 6. Whether the State violated Chandler’s right of confrontation when it presented hearsay evidence at Ch andler’s re-sentencing hearing. 7. Whether Chandler’s death sentence violates Sochor v. Florida , 504 U.S. 527, 112 S.Ct. 2114 (1992). III. STANDARD OF REVIEW “We review the district court’s grant or denial of habeas corpus relief de

novo .” Wright v. Hopper , 169 F.3d 695, 701(11th Cir.), cert. denied , 120 S.Ct. 336 (1999).7 IV. DISCUSSION A. Trial court’s comments Chandler argues that the trial court’s co mments at his trial indicated a bias in favor of the State, thus relieving the State of its burden of proof and violating his Due Process rights. Chandler proffers tw o instances of alleged prejudicial court comments. The first comment occurred during voir dire when defense counsel asked a prospective juror if she thought Ch andler was in trouble. The trial court stated, “[i]t’s obvious he’s in trouble.” [R. Vol. 5, Exh. A, p.821]. The second comment occurred when the trial court questioned the prospective jurors about pretrial publicity. After the prospective ju ror stated that she might have an opinion about Chandler’s guilt or innocence, the tria l court asked, “is that opinion such that it cannot be changed by the evidence and testimony that comes out and takes place during this trial?” [R. Vol. 4, Exh. A, p. 34]. The second comment is not properly before this court for review. Chandler raised this issue for the first time in his Rule 3.850 state post-conviction motion. The issue was included in Chandler’s cumu lative errors issue. On appeal, the Florida Supreme Court found that issue ba rred because it could have been raised on direct appeal. Chandler , 634 So.2d at 1068. Since the last state court to consider the issue determined that it was procedurally barred, the issue is barred8 from federal review. Harris v. Reed , 489 U.S. 255, 263 109 S.Ct. 1038 (1989). Since the Florida Supreme Court found the i ssue to be procedurally barred, we are precluded from addressing the merits unless Chandler can demonstrate “cause and prejudice” for his procedural default or that he is “actually innocent.” Johnson v. Singletary , 938 F.2d 1166, 1174-75 (11th Cir. 1991). Chandler has not demonstrated that either exception applies to his case. The first comment is properly before this court for review. Chandler raised this issue on direct appeal, and the Florida Supreme Court found no reversible error. [R. Vol. 10, Exh. E]; Chandler , 442 So.2d at 172, n.1. We agree that this comment, when viewed in its entirety and in the proper context, did not undermine Chandler’s presumption of innocence. The comment at issue arose in the following context: Mrs. Watson: Well, I distinctly remember when I read it, when it first happened, that I had sympathy for the mother. Mr. Maslanik: For the mother? Mrs. Watson: For the mother, for the people, for the ones, you know – Mr. Maslanik: When you say you had sympathy for the mother, who were you talking about? Mrs. Watson: Well, I was thinking of his mother. I guess, because I had lost a son, you know, and by him getting in trouble like that, I had compassion for her.9 Mr. Maslanik: So when you read th e articles or whatever you read or heard, you felt that he was in trouble? Mrs. Watson: Yes, I felt he was in trouble.

. . . . Mr. Maslanik: Do you feel that in any way he’s in trouble? Mr. Stone: Well, You Honor, I’m going to object to that. I don’t think that’s a proper question. The Court: I’ll sustain the objection. It’s obvious he’s in trouble. Mr. Maslanik: Your Honor, I would object to that. I don’t think he’s in any kind of trouble. He’s been charged and the evidence may not be sufficient and he may not be guilty – The Court: That’s very true. But if getting charged, if that’s not being in trouble, I think that’s – Mr. Maslanik: . . . I would also ask The Court to please refrain from making remarks about the fact he’s in trouble. That gives the jurors some indication that The Court has a feeling he is in trouble or in some way there is a problem with him being here. He starts out with the presumption of innocence – The Court: This is true. But anytime a jury panel laughs when you ask that question – it was obvious to everybody in this courtroom that any person charged with a crime this serious is in trouble. There is no two ways about it. It’s just an improper question so I’ll sustain the objection. [R. Vol. 5, Exh. A, ¶. 819-822.]. We find nothing untoward in the trial court’s comment. This one comment, standing alone, did not deprive Chandler of his presumption of innocence,10 especially in light of the court’s severa l explanations regarding the concepts of presumption of innocence and the State’s burden of proof. Moreover, the court properly instructed the jury regarding Chandler’s presumption of innocence, the State’s burden of proof, and the fact that anything the court or the attorneys say is not evidence. Accordingly, we hold the comment was not erroneous and did not deprive Chandler of his Due Process rights. See e.g., United States v. Cortez , 757 F.2d 1204, 1208 (11th Cir. 1985) (rejecting pe titioner’s claim that judge’s remarks were improper as the comments were direct responses to questions and the jury was properly instructed not to consid er the judge’s comments as evidence). B. Prosecutor’s comments and actions at trial Chandler argues that the prosecutor us ed a series of improper comments that rendered his trial fundamentally unfair. Chandler objected to some of these comments and did not object to other comments he challenges. He claims that the prosecutor attempted to inflame the jury’s passions, maligned the defense, misstated the law, misreprese nted the facts, and commented on Chandler’s right to remain silent. Additionally, he cont ends that the prosecutor engaged in unprofessional theatrics when he used th e alleged murder weapon, a baseball bat, to repeatedly smash a briefcase on the defense table.11 Chandler first raised this issue in his Rule 3.850 post-conviction motion, along with a claim of ineffective assistan ce of counsel for failing to object to some of the allegedly inflammatory comments. On appeal of the denial of his Rule 3.850, Chandler argued that his counsel were ineffective for failing to object to the prosecutor’s improper comments. The Fl orida Supreme Court found that Chandler could not meet the standard set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052 (1984), to establish his claim of ineffective assistance of counsel. The Florida Supreme Court found that if th e substantive claims had been raised on direct appeal, the court would have found no reversible error. Chandler , 634 So.2d at 1069. In his state habeas petition, Chandler also raised the claim of ineffective assistance of counsel for failing to object to the prosecutor’s comments and actions. Chandler also argued that his appellate counsel was ineffective for failing to challenge these comments on appeal. The Florida Supreme Court addressed the claim as one of ineffective assistance of appellate counsel and found that if appellate counsel had raised the issues on appeal, the court would have found them to be without merit. Id. at 1068. The court also noted that the substantive claims should have been raised on direct app eal and to overcome the procedural bar Chandler included allegations of in effective assistance of counsel. Id. at 1067.12 Since the Florida Supreme Court found the substantive claims procedurally barred, we will not consider them in lightof Chandler’s failure to demonstrate cause and prejudice to excuse the proce dural default. We will only consider Chandler’s claim of ineffective assistan ce of counsel for failing to object to the allegedly improper comments. In order to establish a claim of ineffective assistance of counsel, Chandler must show that counsels’ performance was deficient and that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Chandler’s first challenge concerns the prosecutor’s comment to a prospective juror that “if the case didn’t hold water, you would never get to hear it and make a deliberation.” [R. Vol. 4, Exh. A, p. 377]. The prosecutor’s comment was in response to a prospective juror’s stat ement that “I read pretty elaborately. There are quite a few cases where they don’ t hold water if it’s just circumstantial evidence.” [Id. ]. Chandler claims that his counsel were ineffective for failing to object to this comment. This comment was not improper in light of the context in which it was uttered. The prosecutor was explaining the concept of circumstantial evidence and responding to a comment by a pr ospective juror. Since it was not an erroneous comment, Chandler’s counsel ca nnot be deemed ineffective for failing to object to it.13 The next comment with which Chandl er takes issue also occurred during jury selection. The prosecutor stated that“the two defense lawyers here have said that he’s entitled to a presumption of innocence and they asked you can you presume or believe he is innocent.” [R. Vol. 4, Exh. A, p. 510]. In light of the trial court’s numerous instructions that Chandler is entitled to a presumption of innocence, there is no error in this co mment. Accordingly, Chandler’s counsel were not ineffective for failing to object to the comment. Another comment Chandler challenges also occurred during jury selection when the prosecutor stated to the entire jury panel, “[t] he defendant doesn’t have to say anything, he doesn’t have to prove anything. The exceptions, or one of the exceptions, is where the defense of alibi is raised.” [R. Vol. 5, Exh. A, p. 945]. The prosecutor made this comment after his explanation regarding the State’s burden of proof and during his explanation regarding the alibi defense. There was nothing improper in the statement and Chandler’s attorneys cannot be deemed ineffective for failing to object to the comment. Chandler challenges another comment wh ich occurred during jury selection. The prosecutor stated that “[n]one of us know what evidence is going to come in at this point. We all know what we want to get in, but nobody knows what evidence you’re going to see, observe or hear.” [R. Vol. 5, Exh. A, p. 1158]. Chandler fails14 to acknowledge the remainder of the pr osecutor’s comment which explained that the evidence the jury could consider was evidence from the witness stand or exhibits. The prosecutor asked if the ju ry would “weigh all the evidence and base [their] verdict on the conclusion that [they] have from weighing it all?” [Id. ]. The prosecutor’s comment and accompanying explanation were not erroneous. Therefore, Chandler’s counsel were not ineffective for failing to object to the

comment. Chandler challenges the prosecutor’s comments during closing argument. The first comment referred to a witness w ho the prosecutor stated was “the biggest liar in Indian River County” and the Stat e did not call her as a witness because it could not “rely on her credibility.” [R. Vol. 8, Exh. A, p. 3604-05]. Chandler also claims that the prosecutor referred to Ch andler’s mother as a liar and erroneously commented on the number of stab wounds each victim received as representing the number of years Chandler had spent injail. [R. Vol. 8, Exh. A, p. 3599-3600; 3622]. The prosecutor’s comment on the cr edibility of the witness was an accurate statement because the witness told four different stories regarding Chandler’s whereabouts during a crucial time. Contrary to Chandler’s assertion, the prosecutor stated he was not going to call Chandler’s mother a liar. The prosecutor asked the jury to view dubiously her testimony in light of the obvious bias of the15 mother/child relationship. As to the number of stab wounds, the prosecutor was correctly commenting on the evidence. His reference to Chandler’s years in prison was not inflammatory because the jury heard testimony that Chandler previously had been in jail. Accordingly, we conclude none of the comments rose to the level of fundamental error. Donnelly v. DeChristoforo , 416 U.S. 637, 642, 94 S.Ct. 1868 (1974); Cargill v. Turpin , 120 F.3d 1366, 1379 (11th Cir. 1997). Therefore, Chandler’s counsel cannot be deemed in effective for failing to object to these comments, and Chandler is not entitled to relief on this claim. C. Conspiracy charge evidence Chandler argues that the State’s use of a “bogus” conspiracy to escape from prison charge denied him due process. He further contends that the State did not disclose this exculpatory evidence; the State knowingly presented false or misleading evidence that prevented him from presenting mitigating evidence; and the State “convinced” another inmate charge d in the conspiracy not to testify about Chandler’s innocence. Chandler states that at his re-sentencing hearing, he planned to call 12 correctional officers who would testify that Chandler had adapted well to prison life and could remain in prison the rest of his life without causing harm to anyone. To rebut this , the State presented evidence of a16 conspiracy charge, which arose one weekbefore his re-sentencing. Chandler claims that as a result of this “bogus” conspiracy charge, he did not call the correctional officers to testify on his behalf because the conspiracy charge nullified the officers’ testimony. Additionally, Cha ndler contends that the State violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194 (1963), by withholding the conflicting evidence in support of the cons piracy charge. Furthermore, Chandler claims that the State intimidated anothe r inmate charged in the offense not to testify on Chandler’s behalf. Chandler raised this issue in his Rule 3.850 motion, and the trial court found the issue to be procedurally barred becau se it could have been raised on direct appeal. [R. Vol. 15, Exh. CC]. On app eal, the Florida Supreme Court did address the merits of Chandler’s claim and found that the defense knew about the State’s problems with the escape charge. Chandler , 634 So.2d at 1068. The court found meritless Chandler’s claim that the State “convinced” an inmate not to testify on Chandler’s behalf because the record s howed that the inmate’s counsel advised him not to testify since the court had not sentenced him yet. Id. First, the record demonstrates the State did not prevent Chandler from presenting mitigation evidence at his re-sen tencing. Chandler presented mitigating evidence through his mother, siblings, st ep-father, and Dr. Rifkin, a clinical17 psychologist. Dr. Rifkin testified that Chandler had adapted very well to prison life and he could continue to live in a prison setting without being a threat to others. [R. Vol. 12, Exh. M., p. 619-20]. Responding to the question whether Chandler’s involvement in an escape woul d change his opinion, Dr. Rifkin stated that he would need more informati on regarding Chandler’s involvement. [Id. at 643]. He also stated that he understood that there were various opinions regarding Chandler’s involvement. “One person sta ting that he had nothing to do with it and another person stating some partaking inthe meetings and what have you.” [Id. ]. Thus, through Chandler’s expert, the ju ry heard that the State’s case on the conspiracy charge was weak. Moreover, the State did nothing to prevent Chandler from calling the correctional officers as w itnesses. The presentation of rebuttal evidence is not a barrier to the pr esentation of mitigation evidence. In order to establish a Bradyviolation, Chandler must demonstrate that the State possessed evidence favorable to hi m; that Chandler did not possess the evidence nor could he have obtained it hi mself with any reasonable diligence; that the State suppressed the favorable evid ence; and that had the evidence been disclosed to the defense, a reasonable pr obability exists that the outcome of the proceedings would have been different. Wright v. Hopper , 169 F.3d at 701-02. Chandler cannot meet this burden. Firs t, the allegedly withheld evidence is not18 “material” because there is no reasonabl e probability that had the evidence been disclosed to Chandler, the result of th e proceeding would have been different. United States v. Stewart , 820 F.2d 370, 374 (11th Cir. 1987). In other words, the jury voted unanimously for the imposition of the death penalty, and there is no reasonable probability that the jury would have imposed a life sentence in view of the suspect nature of the State’s conspiracy charge. Second, Chandler could have possesse d the evidence through the exercise of reasonable diligence. Since Chandler kne w of the escape charge, and knew of the suspect nature of the charge, Chandler kne w what evidence to present to rebut the charge. Chandler’s own expert commentedon the fact that the evidence to prove the escape charge was contradictory. Fu rthermore, Chandler presents no evidence to support his allegation that the State “intim idated” the inmate not to testify. The record clearly shows that the inmate c onsulted with his attorney and refused to testify because he had not been sentenced ye t. [R. Vol. 12, Exh. M., p. 685-95]. Accordingly, we conclude Chandler is not entitled to relief on this claim. D. Prosecutor’s comments and actions at re-sentencing Chandler highlights many prosecutorial comments which he contends rendered his re-sentencing unf air. Chandler also adds claims of ineffective assistance of counsel for failing to object to the comments and failing to challenge19 these comments on appeal. Only one of the comments is properly preserved forour review because Chandler challenged it on direct appeal following his resentencing. Chandler , 534 So.2d at 703. Chandler’s claim that his counsel was ineffective for failing to object to the prosecutor’s comments is properly before us for review because Chandler raised this claim on appeal of the denial of his Rule 3.850 motion. The Florida Supreme Court found that Chandler did not meet the Strickland standard as to this claim. Chandler , 634 So.2d at 1069. Chandler’s claim of ineffective assistance of appellate counsel is also before us for review because Chandler raised this issue in his state habeas petition. The Florida Supreme Court found that appellate counsel could not be deemed ineffective for failing to argue claims that had not been preserved for appeal. Id. at 1068. As to the claims which were preserved, the court found that appellate counsel was not ineffective for failing to challenge them on appeal because they were meritless. Id. The one substantive prosecutorial co mment which Chandler preserved for our review is the statement, “Your Honor, Mr. Udell asked him if this was, you know, consistent from behind, you know, whatevidence is there that he was hit from behind, I mean, no one knows at this point except Mr. Chandler.” [R. Vol. 11, Exh. M, p. 434-35]. Chandler’s counsel objected and the trial court issued a curative instruction telling the jury to di sregard the statement. On appeal, the20 Florida Supreme Court found the comment to be harmless since Chandler had been convicted of the crimes, and therefore, would know how they were committed. Chandler , 534 So.2d at 703. We agree. A jury found Chandler guilty of the murders, so Chandler’s guilt had been established. Moreover, this sole comment, not repeated at any other stage of the proceeding, cannot be construed as an invitation for the jury to take into consideration Chandler’s silence, especia lly in light of the trial court’s curative instruction. Moreover, the trial court in structed the jury numerous times regarding Chandler’s right to remain silent and the presumption of innocence. Chandler cannot prevail on his claims of ineffective assistance related to this comment. The record shows that Chandl er’s counsel did object to the comment, and appellate counsel raised the issue on appeal. In order to establish a claim of ineff ective assistance of counsel with regard to the comments to which counsel did not object, Chandler must show that his counsel’s performance was deficient, and this deficient performance prejudiced the outcome of his sentencing. Strickland, 466 U.S. at 687. This two-pronged test is also applied to the sentencing phase b ecause the capital sentencing proceeding is similar to a trial in its adversarial fo rmat and counsel’s role is similar. Id. at 686- 87. To succeed on this claim, Chandler must show that “counsel’s conduct so21 undermined the proper functioning of the a dversarial process that the [sentence] cannot be relied on as having produced a just result.” Mincey v. Head , 206 F.3d 1106, 1143 (11th Cir. 2000). Chandler takes issue with the prosecutor’s comment during jury selection, that “we feel, like, if you follow the law and listen to the Judge’s instructions carefully and apply the facts, there’s only one possible recommendation.” [R. Vol. 13, Exh. M, p. 596]. Defense counsel did not object and had no reason to object since the prosecutor’s statement is a correct statement of the law. Johnson v. Lynaugh , 821 F.2d 224, 226 (5th Cir. 1987) (urging jurors to follow the law is permissible argument). Chandler partic ularly takes issue with the prosecutor’s opinion that “there’s only one possible recommendation.” In light of the trial court’s instructions that anything the atto rneys said was not evidence, we hold that there is no error in the prosecutor’s statement. Chandler challenges the prosecutor’s comments regarding contusions the victims suffered. Chandler claims thatthere was no evidence of any contusions and his counsel should have objected to this reference to facts not in evidence. We conclude that the prosecutor’s statemen t is harmless in light of the evidence showing that the victims suffered severe bl ows to the head and the victims’ injuries included lacerations, fractures, and post- mortem stabbing. In light of this22 evidence, an innocuous statement about c ontusions is irrelevant. There was no reason for counsel to object. Chandler al so challenges the prosecutor’s statement that Chandler might be eligible for parole in less than 25 years if the jury recommended a life sentence. This comment, too, was an accurate statement to which counsel had no reason to object. Accordingly, Chandler is not entitled to relief on these claims of ineffective assistance of counsel. E. Challenges for cause and ineffective assistance Chandler argues that at his re-sentenci ng, he had to use four of his allotted peremptory challenges on prospective juro rs who should have been excused for cause. He asserts that the issue was pr eserved at re-sentencing and his appellate counsel was ineffective for failing to raise this issue on appeal. Chandler did raise this issue in his state habeas petition, and the Florida Supreme Court found the issue to be procedurally barred because Chandler did not raise the issue on direct appeal. Chandler , 634 So.2d at 1067. The court noted that Chandler also asserted an ineffective assistance of appellate counsel claim in order to overcome the procedural bar. The court determined that Chandler’s appellate counsel was not ineffective because if counsel had raisedthe issue, the court would have found it meritless. Id. at 1068.23 We need only consider Chandler’s claim of ineffective assistance of appellate counsel since the Florida Supr eme Court found the substantive claim to be procedurally barred. Harris , 489 U.S. at 263. Chandler is not entitled to relief on his claim of ineffective appellate couns el. As the Florida Supreme Court noted, the issue had no merit. Chandler’s primary focus concerned four jurors who did not sit on his re-sentencing jury. The reco rd indicates that the one juror who did sit, Ms. Dodge, was fit for jury service. Moreover, Chandler’s claim is not one of constitutional infirmity. See e.g., Ross v. Oklahoma , 487 U.S. 81, 108 S.Ct. 2273 (1988) (reaffirming rule that defendant is not constitutionally entitled to peremptory challenges). Chandler’s appellate counsel was not ineffective for failing to raise a nonmeritorious issue. United States v. Nyhuis , 211 F.3d 1340, 1344 (11th Cir. 2000). F. Confrontation Clause Chandler argues that at his re-sente ncing, the State presented hearsay evidence to establish an aggravating circumstance and this violated his Confrontation Clause rights. On appeal, the Florida Supreme Court did not find any merit to this argument. The court noted that the trial court admitted this hearsay evidence pursuant to Fla. Stat. § 921.141(1), which provides that “evidence may be presented as to any matte r that the court deems relevant to the24 nature of the crime and the character of the defendant” and “[a]ny such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any h earsay statements.” The court found the statute constitutional because it does provide a defendant the opportunity to confront the State’s witnesses. Chandler , 534 So.2d at 702. The Sixth Amendment guarantees a de fendant an adequate opportunity to cross-examine adverse witnesses. United States v. Owens , 484 U.S. 554, 108 S.Ct. 838 (1988). Chandler had this opportunity and capitalized on it during trial but chose not to during his re-sentencing phase. At trial, Chandler’s counsel vigorously cross-examined the State’ s witnesses to whom Officer Redstone referred at the re-sentencing when he gave his recitation of the evidence of guilt. The State did not do anything to prevent Chandler from rebutting this hearsay evidence. The fact that Chandler chos e not to rebut any hearsay testimony does not make the admission of such testim ony erroneous. Moreover, having reviewed both the trial and the re-sentencing transc ript, we conclude that Officer Redstone’s synopsis was consistent with the witnesses’ trial testimony. Accordingly, we see no Confrontation Clause violation.25 Moreover, we conclude that there is no Confrontation Clause violation because we agree with the Seventh Circuit that hearsay evidence is admissible at a capital sentencing. Del Vecchio v. Illinois Dep’t of Corrections , 31 F.3d 1363, 1387-88 (7th Cir. 1994). This proposition does contain one caveat: that the state statute protect a defendant’s rights by giving him/her the opportunity to rebut any hearsay information. If the statute grants this protection, then it comports with the Sixth Amendment’s Confrontation Clause. We note, however, that if we determined that hearsay evidence is per seinadmissible in a capital sentencing, we would be announcing a new rule of law. Th erefore, the new rule’s application to this case would be barred by the retroactivity principles of Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060 (1989 ). F. Sochor v. Florida claim Chandler argues that his death sentence violates Sochor , 504 U.S. 527. Chandler did not challenge his death sentence on direct appeal. Chandler , 534 So.2d at 704. Chandler first challenged the Florida Supreme Court’s automatic review of his death sentence in his state habeas petition and on appeal of the denial of his Rule 3.850 motion. The Florida Supreme Court found the issue to be procedurally barred. Chandler , 634 so.2d at 1068-69. Therefore, the issue is procedurally barred from fe deral habeas review. Harris , 489 U.S. 255. In light of26 Chandler’s failure to demonstrate cause and prejudice for the procedural default, we decline to address the claim.27 V. CONCLUSION For the foregoing reasons, we affirm the district court’s judgment denying habeas corpus relief to Chandler. AFFIRMED.