                                                                              PUBLISH

                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                            ________________________

                                   No. 96-3725
                           ________________________
                        D. C. Docket No. 94-165-Civ-Oc-10

SONNY BOY OATS,
                                                                    Petitioner-Appellant,

                                       versus

HARRY K. SINGLETARY, JR.,
Secretary, Florida Department of Corrections,
                                                               Respondent-Appellee.

                            ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                          _________________________
                                  (May 19, 1998)


Before ANDERSON, DUBINA and CARNES, Circuit Judges.

ANDERSON, Circuit Judge:
         Appellant Sonny Boy Oats (“Oats”), a prisoner awaiting execution on Florida’s

death row, appeals from the district court’s denial of his petition for a writ of habeas

corpus. For the reasons stated below, we affirm the district court’s decision to deny the

writ.1

                       I. FACTS AND PROCEDURAL HISTORY

         On December 20, 1979, Jeanette Dyer, the cashier at a convenience store near

Ocala, Florida, was killed during a robbery of the store. The cause of her death was a

single bullet fired from approximately one foot away that penetrated her right eye and

her brain. On December 24, 1979, a police officer observed an automobile with two

suspicious looking occupants in the vicinity of another convenience store in Ocala. As

the officer approached the car, it sped away at a high rate of speed. The officer gave

chase. The fleeing car soon crashed and the occupants dispersed. Shortly thereafter,

Donnie Williams was arrested as a suspect in the high-speed chase, transported to the

Marion County Jail, and gave a statement to the police implicating the appellant Sonny

Boy Oats in the murder of Jeanette Dyer. Subsequently, Oats was arrested as a suspect



         1
      Oats’ petition for writ of habeas corpus was
filed before April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), and thus the AEDPA standard of review
provisions are not applicable. See Lindh v. Murphy, –
U.S. –, 117 S. Ct. 2059, 2068 (1997); see also Neelley
v. Nagle, 138 F.3d 917, 921 (11th Cir. 1998); Hardwick
v. Singletary, 122 F.3d 935, 936 (11th Cir. 1997),
vacated in part on reconsideration, 126 F.3d 1312 (11th
Cir. 1997).
                                            2
in the high-speed chase and given Miranda warnings. During the interview that

followed, Oats admitted his involvement in the chase and stated he had thrown his

firearm away during the chase. The firearm was later discovered on the roadside near

the location described by Oats.

      In his interview with the police, Oats also admitted his involvement in an ABC

liquor store robbery and shooting that had occurred on December 19, 1979,2 one day

prior to the robbery and murder of Jeanette Dyer. On December 28, 1979,3 during a

tape recorded interview, Oats again confessed to the ABC liquor store robbery and

shooting, and also admitted robbing and killing Jeanette Dyer on December 20.

Ballistics tests conducted on the gun recovered from the roadside established that it

was the same weapon used in both the ABC liquor store and Jeanette Dyer shootings.

      Oats was indicted on two counts for robbery and first degree murder, arising out

of the killing of Jeanette Dyer on December 20, 1979. Oats was also charged

separately in another case for the robbery and attempted murder at the ABC liquor

store that occurred on December 19, 1979. During February and March of 1980, Oats

was examined, at the request of trial counsel, by three separate psychiatrists, Drs.



      2
      In the ABC liquor store robbery, Oats robbed the
store’s clerk, Eric Slusser, and then shot Slusser in
the head.
      3
      This second interview occurred four days after
Oats’ first interview because Oats escaped from police
custody during a visit to his mother’s house and was
not recaptured for three days.
                                            3
Frank Carrera, Rafael Gonzalez, and Fausto Natal, all of whom reported to the court

and to Oats’ counsel that Oats was sane at the time of the offenses and competent to

stand trial.4

       In early June 1980, Oats was tried in a separate proceeding for the ABC liquor

store robbery and shooting and was convicted of robbery with a firearm and attempted

murder in the first degree.5 On June 14, 1980, Oats escaped from the Marion County

Jail. He was recaptured approximately six months later in Texas, and was returned to

Florida for trial in the instant capital case.6

       On February 6, 1981, the jury in the instant case found Oats guilty of first

degree murder and robbery with a firearm. After hearing the evidence relevant to

sentencing, the same jury rendered an advisory sentence of death. On February 10, the

trial judge followed the jury’s recommendation and imposed the death sentence for the

murder charge and ninety-nine years imprisonment for the robbery charge.




       4
      Additional facts regarding these psychiatric
evaluations and the evaluations of other doctors will
be discussed later in this opinion.
       5
      The ABC liquor store case was noncapital and thus
proceeded at a faster pace than the instant case.
       6
      While on escape from prison, Oats robbed a liquor
store in New York and stabbed the clerk numerous times
in the head, neck, and back.
                                                  4
      In Oats’ direct appeal of his conviction and sentence,7 the Florida Supreme

Court affirmed Oats’ conviction, but remanded for resentencing and a reweighing of

the aggravating circumstances by the trial judge because the trial judge erred in his

original determination of three of the aggravating circumstances. Oats v. State, 446

So. 2d 90, 95 (Fla. 1984). On April 26, 1984, following the remand from the Florida

Supreme Court, the state trial court conducted another sentencing hearing. At the

resentencing hearing, Oats’ attorney objected to the resentencing and made a motion

seeking the appointment of experts to determine Oats’ sanity and competence. The

trial judge denied this motion based on the judge’s observations of Oats’ demeanor at

that time and during prior proceedings. The trial judge then reweighed the valid

aggravating circumstances against the single mitigating circumstance and reimposed




      7
      While Oats’ appeal of his conviction and sentence
in the instant case was pending before the Florida
Supreme Court, Florida’s Fifth District Court of Appeal
reversed Oats’ convictions in the ABC liquor store case
because the trial court had failed to instruct the jury
concerning the applicable ranges of punishment as
required by a Florida rule of criminal procedure. Oats
v. State, 407 So. 2d 1004 (Fla. Dist. Ct. App. 1981).
On February 9, 1982, after a re-trial, Oats was
convicted of robbery and attempted second degree
murder. That conviction was affirmed in Oats v. State,
434 So. 2d 905 (Fla. Dist. Ct. App. 1983), prior to the
Florida Supreme Court’s resolution of Oats’ direct
appeal in the instant capital case.
                                            5
the death penalty, which was affirmed by the Florida Supreme Court.8 See Oats v.

State, 472 So. 2d 1143 (Fla. 1985), cert. denied, 474 U.S. 865, 106 S. Ct. 188 (1985).

       On October 7, 1987, Oats filed a motion for post-conviction relief in the state

trial court pursuant to Fla. R. Crim. P. 3.850, and in May 1989, filed an original

petition for a writ of habeas corpus in the Florida Supreme Court. Following the

signing of a death warrant by the Governor in 1989, the state trial court granted a stay

of execution and subsequently conducted an evidentiary hearing on Oats’ Rule 3.850

motion. This Rule 3.850 hearing lasted eleven days over a period from February 19 to

June 5, 1990, and primarily concerned whether Oats’ trial counsel were

constitutionally deficient in their representation of Oats. The state trial court denied

Oats’ Rule 3.850 petition in November 1990. The Florida Supreme Court affirmed the

trial court’s denial of Oats’ Rule 3.850 motion and denied Oats’ original state habeas

corpus petition in Oats v. Dugger, 638 So. 2d 20 (Fla. 1994), cert. denied, 513 U.S.

1087, 115 S. Ct. 744 (1995). Oats then filed the instant federal habeas action pursuant

to 28 U.S.C. § 2254. The district court denied Oats’ petition without holding an

evidentiary hearing.

                                    II. DISCUSSION

       8
      The trial judge weighed the mitigating
circumstance of age against the aggravating
circumstances of (1) Oats’ prior violent felony
conviction, (2) murder during the commission of a
robbery, (3) the murder was committed to avoid lawful
arrest, and (4) the murder was cold, calculated, and
premeditated.
                                             6
A. The Ineffective Assistance of Counsel Claims

       The law regarding collateral review of ineffective assistance of counsel claims

under the Sixth Amendment is well settled. In order to obtain habeas corpus relief with

respect to a conviction or a death sentence based on ineffective assistance of counsel,

the defendant must show both (1) that the identified acts or omissions of counsel were

deficient, or outside the range of professionally competent assistance, and (2) that

counsel’s deficient performance prejudiced the defense such that, but for counsel’s

unprofessional errors, there is a reasonable probability that the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). See also Bolender v. Singletary, 16 F.3d 1547, 1556 (11th Cir.

1994). When applying Strickland, we are free to dispose of ineffectiveness claims on

either of its two grounds. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

Furthermore, we note that under the rules and presumptions set down in Strickland and

its progeny, “‘the cases in which habeas petitioners can properly prevail on the ground

of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46

F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386

(11th Cir. 1994)).

       Oats alleges that he was deprived of his Sixth Amendment right to the effective

assistance of counsel in a variety of ways throughout his defense of the criminal

proceeding in state court. The primary focus of Oats’ ineffective assistance of counsel

claims is his assertion that, at all material times in this case, he was mentally retarded

                                             7
with organic brain damage, complicated by both physical and psychological abuse as a

child and by his own abuse of alcohol and other substances. Oats claims that his

attorneys failed to adequately and fully present evidence of his mental deficiencies at

numerous proceedings in the state trial court.

      The record reveals that, during the pendency of the case in state court, a

minimum of eight different mental health experts testified and/or issued reports

concerning Oats’ mental capacity. In February and March, 1980, during the pretrial

stages of the ABC liquor store case and the instant capital case, Oats was examined

separately by three different court-appointed psychiatrists, Drs. Frank Carrera, Rafael

Gonzalez, and Fausto Natal. The examinations by these court-appointed psychiatrists

were performed prior to the ABC liquor store case at the request of Oats’ trial counsel.9




      9
       Like the state court that denied Oats’ request
for post-conviction relief under Rule 3.850, we
conclude that the fact that the psychiatrists’
evaluations of Oats were performed in connection with
the companion ABC liquor store case does not limit the
relevance of those evaluations in regard to the instant
case. Drs. Carrera, Gonzalez, and Natal examined Oats
between February 17 and March 25, 1980, and the trial
in the instant case was conducted in February 1981.
However, if Oats had not escaped from custody in June
1980, he presumably would have been tried as his
counsel requested in July 1980. No evidence has been
presented to suggest any change in Oats’ competency
from March 1980 to February 1981. Moreover, one of
Oats’ attorneys at trial in the instant case was also
Oats’ attorney in the ABC trial.
                                            8
All three psychiatrists reported then that Oats was mentally competent at the time of

the offenses and was mentally competent to stand trial.10

      The remaining experts became involved in the case during the 1990 post-

conviction Rule 3.850 hearings before the state trial court. At this time, defense

experts Drs. Robert Phillips and Joyce Carbonell testified, and Dr. Harry Krop issued a

report concluding that Oats was mentally retarded with organic brain damage.11 They

      10
      Dr. Carrera evaluated Oats on February 19, 1980,
apparently in regard to both the ABC liquor store case
and the instant capital case. Dr. Carrera concluded
that (1) Oats was of low average to borderline
intelligence, (2) Oats was competent to assist in his
defense and stand trial, and (3) at the time of the
alleged crimes Oats was legally sane.
    Dr. Natal evaluated Oats on March 18, 1980, in
regard to the ABC liquor store case. Dr. Natal
concluded that (1) Oats’ intellectual level seemed to
be in the “dull, normal range,” (2) Oats “is competent
to stand trial and knows the nature and consequences of
the legal situation he is involved in and can work with
counsel in preparing a rational defense,” (3) with
respect to Oats’ state of mind at the time of the
alleged crime, he “was not suffering from a defect of
reason resulting from a disease of the mind” and knew
the nature and quality of the act was wrong, and (4)
Oats understood the Miranda warnings and was
psychologically able to waive his rights.
    Dr. Gonzalez evaluated Oats in late March 1980, in
regard to the ABC liquor store case and concluded that
Oats “is not at present time psychotic and that he can
be of assistance to his attorney in the process of
preparation of his defense.”
      11
      Dr. Phillips testified that he believed that
Oats’ brain damage was the result of a longstanding
history of alcohol and drug abuse, inhalation of liquid
paper, and multiple open and/or closed head injuries
during childhood.
                                            9
also opined that Oats was incompetent to stand trial in 1980,12 incompetent at

resentencing in 1984, and incapable of knowingly waiving his Miranda rights at the

time of his confessions. However, the conclusions reached by the defense experts were

challenged by Drs. Charles Mutter and Leonard Haber, who testified on behalf of the

State at the Rule 3.850 hearings. Drs. Mutter and Haber contradicted the defense

experts concerning the degree of Oats’ brain damage and the level of his intelligence,13

      12
      Unlike Drs. Phillips and Carbonell, Dr. Krop did
not specifically conclude that Oats was incompetent to
stand trial and unable to understand and waive his
Miranda rights in 1980. However, he concluded that it
was likely that Oats would have had great difficulty in
assisting his counsel at the time of his trial. Dr.
Krop and Dr. Carbonell reported that Oats scored
approximately 57 and 61 on IQ tests, placing him in the
mildly mentally retarded range of functioning, and that
he was at a beginning third grade level in terms of
basic academic skills. These conclusions are
inconsistent with Department of Corrections records
indicating that Oats scored a 93 on an IQ test in 1976,
and Dr. Carrera’s testimony that Oats’ scores on basic
academic skills tests put him at a seventh-grade level
in terms of classroom information. Furthermore, Dr.
Charles Mutter testified that, in his opinion, Oats’
ability to process material and his knowledge of
language indicated that Oats “was smarter than he was
showing on the tests.”
      13
      Dr. Mutter first challenged the defense experts’
assumption that Oats’ brain damage was partly the
result of sniffing liquid paper. Dr. Mutter testified
that this assumption was flawed because the inhalation
of the solvents in liquid paper may cause severe liver
damage and gastrointestinal problems, but there is no
medical evidence that the solvents produce brain
damage. Dr. Mutter also testified that Dr. Krop’s
conclusion that Oats suffered from diffuse brain damage
was contradicted to some degree by Dr. Krop’s
                                           10
and both concluded that Oats was competent to stand trial in 1980, competent at

resentencing in 1984, and capable of making a knowing and intelligent waiver of his

Miranda rights.

      1. Oats’ Competency to Stand Trial

      Oats contends that his trial counsel were ineffective in failing to adequately

argue that he was incompetent to stand trial and in failing to provide to the court-

appointed psychiatrists, Drs. Carrera, Gonzalez, and Natal, information concerning his

background and mental health history which potentially could have altered the

psychiatrists’ opinions concerning his competency to stand trial.14 The second prong of


conclusion that Oats was orientated to time, place, and
person. Based on his evaluation of Oats, Dr. Mutter
concluded that Oats suffered from a “minimal organic
disturbance” in expressing himself in terms of words
and certain types of vocabulary, but that Oats
understood the questions asked in the evaluation, his
answers were responsive and appropriate, and Oats’
psychomotor activity and other body language were in
context with an individual who does not show “any kind
of frank organic impairment.” Finally, Drs. Mutter and
Haber concluded that Oats’ IQ scores, as reported by
defense experts, did not reflect Oats’ actual mental
functioning and that Oats demonstrated an ability to
use certain language and appreciate the nuances of the
doctors’ questions that were “far beyond the ability of
an individual with a full scale IQ of 57.”
      14
      Oats also contends that his trial counsel were
incompetent by failing to inform the court-appointed
psychiatrists of trial counsel’s concerns regarding
Oats’ competency to stand trial and ability to
participate in his defense. In light of the new
information provided by Oats’ collateral counsel
(including in particular a new IQ test which would
                                            11
the Strickland test requires Oats to show that if his trial counsel had performed as he

argues they should have, there is a reasonable probability that the trial judge would

have determined that Oats was incompetent to stand trial. We conclude that Oats fails

this prejudice prong of Strickland. After the eleven day Rule 3.850 hearings in which

Oats was able to fully introduce the evidence concerning his family background, his

mental health history, and the opinions of defense mental health experts, the state court

judge found “no reasonable doubt about [Oats’] competency.”15 The state court’s

finding that Oats was competent to stand trial is a factual finding entitled to a

presumption of correctness, and thus will not be overturned on federal habeas review

unless the state court’s finding is not fairly supported by the record. See Demosthenes

v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223, 2225 (1990) (concluding that state court’s

finding that defendant was competent to waive his right to pursue further post-

conviction review of his claims was entitled to a presumption of correctness on federal



place Oats in the category of borderline mentally
retarded), Drs. Carrera and Gonzalez gave testimony at
the Rule 3.850 hearing that backtracked to some degree
from their previous testimony that Oats was competent
to stand trial.
       15
      The state court specifically found that Oats
“knew the charges against him and possible penalties;
that he testified rationally and relevantly at the
suppression hearing; that he was able to follow and
understand the testimony of witnesses at trial; and
that he understood his subpoena power to call witnesses
and the roles of the judge, jury, prosecutor and
defense counsel.” Order Denying Rule 3.850 Relief, at
4 (November 21, 1990).
                                            12
habeas corpus review); Maggio v. Fulford, 462 U.S. 111, 117, 103 S. Ct. 2261, 2264

(1983) (concluding that state court’s finding of competency to stand trial was “fairly

supported by the record”); United States v. Hogan, 986 F.2d 1364, 1372 (11th Cir.

1993) (concluding that state court’s finding of competency to stand trial is a finding of

fact reviewed under a clearly erroneous standard).

      We conclude that the state court’s finding is fairly supported by the record.

Although defense experts testified and/or issued reports opining that Oats’ alleged mild

mental retardation, organic brain damage, and history of substance abuse rendered him

incompetent to stand trial, this evidence was contradicted by (1) the conclusions of the

State’s mental health experts, (2) Oats’ own coherent testimony at his trial and at the

pretrial suppression hearing,16 (3) Oats’ confession to the police in which he was able

to accurately describe details regarding the two offenses,17 and (4) the circumstances

      16
      We note that during the cross-examination of his
mother during the penalty phase of trial, Oats appeared
to be alert and listening attentively to the testimony.
Oats’ mother testified that the co-defendant in the ABC
case told her that he had shot the liquor store clerk,
dropped the gun because he was wearing gloves, and then
Oats picked up the gun. After the state attorney
stated to Oats’ mother that Oats’ fingerprints were
found on the gun, Oats interrupted and stated “[s]he
just told you he had gloves on, didn’t she?” Later,
during his own testimony during the guilt phase of the
trial, Oats apologized to the judge for this earlier
interruption.
      17
      We note that after giving his confession to the
police, Oats was able to direct the police to the
overpass where he had thrown his gun during the high-
speed car chase with the police.
                                           13
surrounding Oats’ two escapes from police custody.18 See Daugherty v. Dugger, 839

F.2d 1426, 1432 (11th Cir. 1988) (concluding that defendant failed prejudice prong of

Strickland because expert testimony regarding defendant’s alleged domination by

another would have been subject to rebuttal by defendant’s prior contradictory

statements). In denying Oats’ Rule 3.850 motion for post-conviction relief, the state

court found that “the ultimate conclusions of the [defense] experts are positively

refuted by the record, including the Defendant’s conduct prior to, during, and

subsequent to the criminal episodes and throughout the judicial proceedings.” Order

Denying Rule 3.850 Relief, at 5 (November 21, 1990). The state court’s finding that

Oats was competent to stand trial is amply supported by the evidence. Thus, we

conclude that Oats fails to satisfy the prejudice requirement of Strickland, and we

reject this aspect of his ineffective assistance of counsel claim.19

       18
      Oats’ first escape occurred on December 24, 1979,
while he was in custody for police interrogation.
After confessing to the ABC liquor store crime, Oats
told police officers that because his mother was very
ill, he wished to see her and tell her in person that
he had been arrested. The officers complied with Oats’
request and let Oats visit his mother. During this
visit, Oats escaped out the back door of her house and
remained free for three days. Oats’ second escape
occurred on June 14, 1980, prior to his trial in the
instant case. While a guard was distracted, Oats and
other inmates climbed over a wall at Marion County
Jail. Oats was recaptured approximately six months
later after traveling to New York and Texas.
       19
      Based on the foregoing, we also reject Oats’
substantive claim that he was incompetent to stand
trial in 1980. We conclude that the state court’s
                                             14
       2. Oats’ Capacity to Validly Waive His Miranda Rights

       Oats also contends that his trial counsel were ineffective in failing to argue that

his confessions should be suppressed because he lacked the capacity to waive his

Miranda rights. Oats’ trial counsel filed a motion to suppress Oats’ confessions to the

ABC liquor store robbery-attempted murder and Jeanette Dyer robbery-murder based

on the contention that his confessions were involuntary because of wrongful

inducements made to him during his interrogation by the examining officers. Oats’

trial counsel vigorously argued this wrongful inducement theory at the suppression

hearing, but it was ultimately rejected by the state trial court. Oats contends that,

rather than or in addition to arguing this “wrongful inducement” theory, his trial

counsel should have found mental health experts to testify that he did not have the




finding, after the eleven day Rule 3.850 hearings, that
Oats was competent at the time of his trial is fairly
supported by the record, and thus is entitled to a
presumption of correctness on federal habeas review.
See Baal, 495 U.S. at 735, 110 S. Ct. at 2225 (1990);
Maggio, 462 U.S. at 117, 103 S. Ct. at 2264 (1983);
Hogan, 986 F.2d at 1372. Finally, to the extent that
Oats argues that his procedural due process rights were
violated under Pate v. Robinson, 383 U.S. 375, 86 S.
Ct. 836 (1966), because the trial judge failed to hold
a hearing regarding Oats’ competency prior to trial, we
reject the argument as without merit. The three court-
appointed psychiatrists had found Oats competent to
stand trial, there was little or no evidence before the
trial court raising a bona fide doubt as to Oats’
competency, and thus the trial court did not have a sua
sponte duty to hold a pre-trial competency hearing
under Pate.
                                            15
mental capacity to understand and knowingly waive his Miranda rights.20 We reject

this aspect of Oats’ ineffective assistance of counsel argument because Oats is unable

to demonstrate that if expert testimony had been offered at the suppression hearing, the

trial judge probably would have found that Oats’ Miranda waiver was ineffective. The

trial judge denied Oats’ motion to suppress after (1) hearing the testimony of the

interrogating officers concerning their observations of Oats at the time of his

confessions,21 (2) listening to a recording of Oats’ statements during one of the police

interviews, and (3) personally observing Oats during his testimony at the suppression

hearing.22 In light of this evidence actually introduced at the suppression hearing, and

in light of the evidence adduced in the 1990 Rule 3.850 hearing and the state court’s

findings in that regard, we cannot conclude that the trial judge probably would have

ruled differently on Oats’ motion to suppress if Oats’ trial counsel had presented expert


      20
      Oats bases this argument on the testimony of Drs.
Phillips and Carbonell at the 3.850 hearing that Oats
was incapable of knowingly waiving his Miranda rights
at the time of his confession. State experts Drs.
Mutter and Haber reached the opposite conclusion that
Oats was capable of knowingly waiving his Miranda
rights.
      21
       The officers testified that at the time of his
confessions, Oats was alert and did not appear to be
under the influence of alcohol or drugs, accurately
described the details of the ABC liquor store robbery
and shooting, and filled out and signed a written
waiver of Miranda rights form.
      22
      During his suppression hearing testimony, Oats
never claimed he did not understand his Miranda rights.
                                           16
testimony concerning Oats’ ability to knowingly waive his Miranda rights.23

Therefore, Oats fails the prejudice prong of Strickland.24


      23
      For the foregoing reasons, we also reject Oats’
substantive claim that the state trial court erred in
denying his motion to suppress his confessions because
he lacked the mental capacity to intelligently and
voluntarily waive his Miranda rights.
    Oats also argues that his confessions should have
been suppressed because they were induced by promises
of leniency and/or family visitation, and were
therefore legally involuntary. This claim of improper
inducement primarily is based on an investigating
officer’s statement to Oats that:
    We as police officers can’t promise you
    anything other than we will . . . like I told
    you before, we’ll talk to everybody in the
    system about getting help for you, and we’ll
    talk to the State Attorney’s Office about your
    bond; I’ll promise you that.
The state trial court, after considering all of the
evidence at the suppression hearing, including Oats’
own testimony confirming that the interrogating
officers stated that they could not promise him
anything, found that Oats’ confessions were voluntary
and not the product of improper promises or
inducements. The Florida Supreme Court also concluded
that Oats’ confessions were free and voluntary. Oats
v. State, 446 So. 2d 90, 93 (Fla. 1984). After
reviewing the record, we conclude that Oats’ statements
to the police were voluntary. The interrogating
officers did not promise leniency and made no
statements that would render Oats’ confessions
involuntary. See Williams v. Johnson, 845 F.2d 906,
909 (11th Cir. 1988). Therefore, we conclude that the
state trial court properly denied Oats’ motion to
suppress.
      24
      Oats also contends that his trial counsel were
deficient in failing to pursue a defense of voluntary
intoxication. We reject this argument. There were
significant inconsistencies in Oats’ statements about
                                           17
    3. The Penalty Phase of Trial




his consumption of alcohol and/or use of drugs on the
days of the crimes. Oats reported to Dr. Carrera that
he had drunk one beer and used no drugs on December 19
and 20, 1979, yet also stated to Dr. Carrera and others
that he consumed a fifth of alcohol, two six packs of
beer, and other drugs each day in the days leading up
to the crimes. Oats stated that drinking this amount
of alcohol “would get him high, but not drunk,” yet he
also reported to Dr. Carrera that drinking half a pint
of liquor would cause him to become “dizzy, see stars
and almost faint.” In denying his motion for
collateral relief under Rule 3.850, the state court
found that Oats “presented no credible evidence of
intoxication at the time of his murder.” We agree.
Oats’ self-serving and inconsistent statements are not
sufficient evidence warranting a jury instruction on
voluntary intoxication under Florida law, see
Bertolotti v. State, 534 So. 2d 386, 387 (Fla. 1988),
and thus Oats’ trial counsel were not deficient in
failing to raise an affirmative defense that was
unreasonable under the circumstances or for failing to
request a jury instruction that was not warranted by
the evidence.
    Oats also contends that his trial counsel rendered
ineffective assistance by not properly challenging the
prejudicial effect of his shackling during trial. This
specific claim is procedurally barred because it was
raised for the first time in Oats’ appeal from the
state trial court’s denial of his request for Rule
3.850 relief. Oats is unable to establish cause for
not raising the issue in a timely manner, and is unable
to establish actual prejudice from the alleged error.
See Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S. Ct.
2497, 2508-2509 (1977). The record shows that Oats’
trial counsel did object to his appearing in court in a
shackled condition, and thus prior to trial a procedure
was arranged to prevent the jury from seeing Oats’
shackles.
                                    18
       Oats contends that his trial counsel were ineffective in failing to adequately

prepare for the penalty phase of trial. Specifically, Oats argues that his trial counsel (1)

failed to ask Dr. Carrera, the only mental expert who testified during the penalty phase,

to address the existence of statutory and non-statutory mitigating circumstances, (2)

failed to call any other mental experts to testify as to his alleged mental retardation and

incompetence, or to testify as to the existence of mitigating circumstances, and (3)

failed to call numerous relatives who could have testified regarding his abusive

childhood and supported a finding of mitigating circumstances.25 Oats contends that if

his trial counsel had adequately prepared for the penalty phase, he would have been

able to prove the statutory mitigating circumstances of extreme mental or emotional

disturbance, lack of capacity to appreciate the criminality of his conduct and conform

his conduct to the requirements of the law, and substantial domination by others.26

       25
      Oats’ trial counsel called four of Oats’
relatives to testify during the penalty phase:
Vernittia Mae Gant, his sister; Edith Marie Johnson,
his aunt; Freddie Oats, his brother; and Willie Mae
Oats, his mother. Oats alleges that his trial counsel
were deficient in preparing these witnesses for the
penalty phase.
       26
      Oats relies on the testimony of Drs. Carbonell
and Phillips at the Rule 3.850 proceeding that these
mitigating circumstances were present at the time of
the offense. He also emphasizes Drs. Carrera, Gonzalez,
and Natal’s post hoc suggestions that if Oats’ trial
counsel had asked them to consider mitigating
circumstances, they probably would have found that Oats
was suffering from an extreme mental disturbance, was
unable to conform his conduct to the requirements of
the law at the time of the offense, and was under the
                                            19
       We reject this aspect of Oats’ ineffective assistance of counsel argument

because he is unable to satisfy the prejudice prong of Strickland. First, a great deal of

evidence regarding potential mitigating circumstances was introduced during the

penalty phase, and apparently rejected by jury and the judge. The record reveals that

Dr. Carrera testified at length about the mistreatment that Oats suffered at the hands of

his aunt during his abusive childhood, the emotional and impulse disorders that Oats

developed as a result of his upbringing, and Oats’ history of alcohol and substance

abuse. Dr. Carrera also testified regarding his conclusion that Oats was functioning at

either the “very low average range or possibly the upper part of the borderline range of

intelligence” and at a seventh-grade level in terms of classroom information.

Furthermore, four relatives testified at the penalty phase regarding Oats’ mistreatment

as a child, the head injury he suffered during childhood as a result of his aunt’s

mistreatment, and his frequent headaches and strange behavior. Following this

testimony, trial counsel argued in closing summation that Oats should not receive the

death penalty because he functioned at a “borderline level,” that the mitigating

circumstance of age applied, that Oats was under an extreme mental or emotional




substantial domination of others. This testimony was
contradicted by Drs. Mutter and Haber, who after
interviewing and evaluating Oats, concluded that he was
not under an extreme emotional or mental disturbance at
the time of crime, and that he had the capacity to
conform his conduct to the requirements of law and
capacity to appreciate the criminality of his conduct.
                                            20
disturbance at the time of offense, and that Oats was unable to appreciate the

criminality of his conduct.

       With regard to Oats’ contention that his trial counsel should have called other

experts, such as Drs. Phillips and Carbonell, to testify as to his mental retardation and

brain damage and the existence of mitigating circumstances, we note that the state

court, after the eleven day Rule 3.850 hearing, rejected this argument based on its

finding that

       the factual bases upon which these experts posit their opinion are not
       believable and are not supported by such objective evidence as to suggest
       a reasonable possibility that the jury’s recommendation and therefore the
       sentence would have been different. Moreover, the ultimate conclusions
       of the experts are positively refuted by the record, including the
       Defendant’s conduct prior to, during, and subsequent to the criminal
       episodes and throughout the judicial proceedings.

Order Denying 3.850 Relief, at 5 (November 21, 1990). These state court findings of

fact are entitled to deference, see Strickland, 466 U.S. at 698, 104 S. Ct. at 2070

(stating that state court findings of fact made in the course of deciding an ineffective

assistance of counsel claim are subject to the deference requirement of § 2254(d)). Our

review of the record of the Rule 3.850 proceeding persuades us that these factual

findings are fairly supported by the record. The state court’s finding of fact

discrediting the factual bases of the defense mental health experts has support in the

record and undermines the opinions of these experts. Moreover, if Oats had sought to

call Drs. Carbonell and Phillips to testify regarding his mental functioning and brain

damage, the State could have called Drs. Mutter and Haber to contradict these

                                            21
conclusions.27 Also, the potential testimony of the defense mental health experts

regarding the existence of mitigating circumstances could have been rebutted by the

State. Drs. Mutter and Haber concluded that Oats was not under the influence of an

extreme mental or emotional disturbance at the time of the offense, and had the

capacity to conform his conduct to the requirements of the law. Drs. Mutter and Haber

also testified that Oats’ conduct–during the offense and its aftermath, his detailed

confession, his conduct during his two escapes, and his conduct during the litigation

proceedings–was inconsistent with the picture of Oats painted by the defense experts.

In light of the foregoing, in light of the fact that the substance of Oats’ mental

deficiencies and abusive childhood were presented to the jury, and in light of the four

strong aggravating circumstances found by the sentencing judge on remand,28 we

conclude that there is no reasonable probability that the jury would have returned a life

sentence. Thus, Oats has failed to satisfy the prejudice prong of Strickland. See

Daugherty v. Dugger, 839 F.2d 1426, 1432 (11th Cir. 1988) (concluding that “given

the severity of the aggravating circumstances in this case, we cannot conclude that the

absence of psychiatric testimony in the sentencing phase creates a reasonable

probability that the jury would have recommended life”).29


       27
            See supra note 13.
       28
            See supra note 8.
       29
      Oats’ brief on appeal also includes a separate
claim entitled “The Ake v. Oklahoma Claim.” See Ake v.
Oklahoma, 470 U.S. 68, 105 S. Ct. 1087 (1985).
                                            22
       4. Oats’ Competency at Resentencing

       As previously noted, the Florida Supreme Court affirmed Oats’ conviction but

found error in the sentence and remanded to the state trial court for resentencing. Oats

v. State, 446 So. 2d 90, 95-96 (Fla. 1984). When the case returned to the trial court in

1984, Oats’ trial counsel filed a series of motions including a motion seeking the

appointment of three mental health experts pursuant to Florida Rule of Criminal

Procedure 3.740 (1984) entitled “Procedure When Insanity Is Alleged as Cause for Not

Pronouncing Sentence.” Rule 3.740 at that time30 provided that “if the court has

reasonable ground to believe that the defendant is insane, it shall . . . immediately fix a

time for a hearing . . . [and] may appoint not exceeding three disinterested qualified

experts to examine the defendant and testify at the hearing as to his mental condition.”

The trial court conducted a hearing on the motion for the purpose of determining




However, the thrust of Oats’ argument is merely a
restatement of his claim that counsel was ineffective
in failing to ensure that he received a comprehensive
and competent mental health evaluation, a claim which
we reject in the text. To the extent Oats has
attempted to articulate a different, but related claim,
his attempt is too vague and imprecise; we decline to
address any such claim.
       30
      The Florida Rules of Criminal Procedure have
since been completely revised. Rule 3.740 was repealed
in 1988 at the same time that Rule 3.210 et seq.
(Competency to Stand Trial) was amended to apply to all
stages of a criminal proceeding. See In re Amendments
to Florida Rules of Criminal Procedure, 536 So. 2d 992,
994-996 (Fla. 1988).
                                            23
whether experts should be appointed and whether a further hearing should be

scheduled in accordance with Rule 3.740. During that hearing, Oats’ counsel

recounted at length the history of the case and Oats’ deprived background, represented

to the court his belief that Oats lacked the mental capacity to proceed with a sentencing

hearing, and invited the trial judge to personally question Oats concerning his

understanding of the resentencing proceedings. Oats then testified and was examined

by his counsel and cross-examined by the prosecution about his understanding of the

impending resentencing hearing. At the conclusion of Oats’ testimony, the trial judge

denied the motion and proceeded with the resentencing hearing based on the judge’s

finding that there were no reasonable grounds to believe that Oats was insane and

unable to proceed in the resentencing.

      Oats appealed the trial court’s refusal to appoint a panel of experts to determine

his sanity at resentencing and the Florida Supreme Court affirmed. Oats v. State, 472

So. 2d 1143, 1144 (Fla. 1985). The court concluded that the trial judge did not abuse

his discretion in denying Oats’ Rule 3.740 motion and concluded that the clear

language of Rule 3.740 required the sentencing court to find reasonable grounds for

believing that a defendant is insane as a precondition to the appointment of experts and

the scheduling of a further hearing. Id. In discussing Rule 3.740, the court contrasted

the language of Rule 3.740 with the language of Rule 3.210 (Competency to Stand




                                           24
Trial) and Rule 3.216 (Insanity at the Time of the Offense) as they then existed,31 and

emphasized that the appointment of experts under those rules, which applied to earlier

stages of criminal proceedings, was automatically triggered by the mere filing of a

motion by defense counsel, whereas Rule 3.740, specifically applicable to sentencing,

required a prior judicial determination of reasonable grounds. The court concluded,

therefore, that under Rule 3.740, unlike the other rules, an assertion of incompetency

by defense counsel was not sufficient, standing alone, to mandate appointment of

mental health experts and a hearing on competency. Id.

       In this appeal, Oats contends that he received ineffective assistance of trial

counsel because his trial counsel filed the resentencing motion under the “wrong rule.”

Oats argues that if his trial counsel had sought a competency evaluation under Florida

Rules 3.210 or 3.216, the appointment of experts at resentencing would have been

mandatory. We reject this argument as without merit because Oats’ trial counsel filed

the motion under the right rule as the rules existed at that time.32 Under the clear

language of the rules, Rule 3.740 applied to claims of insanity and/or incompetence at


       31
            See supra note 30.
       32
      Oats contends that the Florida Supreme Court
“clearly noted” trial counsel’s error in filing the
motion under Rule 3.740. Oats is mistaken. The
Court’s reference to Rules 3.210 and 3.216 was not made
to suggest that Oats’ trial counsel should have invoked
them instead of Rule 3.740; rather, the reference to
those rules was made as part of the Court’s explanation
of its interpretation of Rule 3.740. Oats v. State,
472 So. 2d at 1144.
                                            25
sentencing, while Rules 3.210 and 3.216 applied to earlier stages of criminal

proceedings.33

      Oats also claims that his procedural due process rights were violated under Pate

v. Robinson, 383 U.S. 375, 86 S. Ct. 836 (1966), because the judge at his resentencing

failed to conduct a sua sponte competency hearing despite information raising a bona

fide doubt as to his competency.34 We reject this argument as without merit. As noted

above, Oats’ counsel made a motion objecting to resentencing on the grounds that Oats

was insane and asked the judge to inquire of Oats whether he understood the nature of

the resentencing proceedings, and as a result, Oats testified at the hearing. Having


      33
      Oats also contends that his trial counsel
rendered ineffective assistance of counsel at
resentencing by failing to present “available and
compelling” evidence of mitigating circumstances. We
conclude that Oats is unable to satisfy the prejudice
prong of Strickland for the same reasons that we
rejected Oats’ claim relating to his original
sentencing. See supra Section II.A.3.
      34
      Oats contends that his mental state deteriorated
between the 1981 sentencing and the resentencing in
1984. In rejecting Oats’ Rule 3.850 claim for post-
conviction relief, the state trial court found that “no
new evidence was presented in the 3.850 hearing to cast
any doubt on the Defendant’s competency [in April
1984].” Order Denying Rule 3.850 Relief, at 4
(November 21, 1990). This factual finding is entitled
to a presumption of correctness, see Baal, 495 U.S. at
735, 110 S. Ct. at 2225 (1990); Maggio, 462 U.S. at
117, 103 S. Ct. at 2264 (1983); Hogan, 986 F.2d at
1372, and we conclude that the finding is fairly
supported by the record. Based on this reasoning, we
also reject Oats’ substantive claim that he was
incompetent at the resentencing in 1984.
                                           26
observed Oats’ demeanor at both the resentencing hearing and during the prior

litigation of the case, and having reviewed the prior reports of court-appointed mental

health experts, the judge found that there was no reasonable basis to believe that Oats

was insane and unable to proceed in the resentencing. After reviewing the record, we

conclude that there was no evidence before the trial judge at resentencing that would

raise a bona fide doubt as to Oats’ competency, and thus the court did not have a sua

sponte duty to hold a competency hearing under Pate.

      B. Whether Oats Was Entitled to a New Advisory Jury at Resentencing

      In Oats v. State, 446 So. 2d 90, 95-96 (Fla. 1984), the Florida Supreme Court

affirmed Oats’ conviction, but set aside his death sentence and remanded for “entry of

a new sentencing order” because the trial court erred in its determination of three of the

aggravating circumstances.35 Following remand, Oats’ counsel moved for the court to

      35
      In sentencing Oats to death, the trial judge
found that the State had proven beyond a reasonable
doubt six statutorily enumerated aggravating
circumstances and only one mitigating circumstance.
Oats, 446 So. 2d at 95. The Florida Supreme Court
concluded that the trial judge erred by (1) finding
that the “heinous, atrocious, or cruel” aggravating
circumstance was applicable, (2) “doubling up” on the
aggravating circumstances of “commission of a crime
during a robbery” and murder “for pecuniary gain,” and
(3) considering Oats’ prior conviction in the ABC
liquor store case as an aggravating factor because that
conviction was later reversed. Id. However, in regard
to the ABC liquor store conviction, the Florida Supreme
Court noted that Oats had subsequently been convicted
on retrial in that case, and thus on remand for
resentencing, there would be no need to resubmit the
evidence to a jury for resentencing. Id.
                                           27
impanel a new jury for resentencing. The court denied the motion, and the Florida

Supreme Court affirmed this denial based on its conclusion in the original appeal that

“‘[b]ecause a new jury would be considering essentially the same evidence as was

presented to the original jury, we find no reason to resubmit the evidence to a jury.’”

Oats v. State, 472 So. 2d 1143, 1145 (Fla. 1985) (quoting Oats v. State, 446 So. 2d 90,

95 (Fla. 1984)).

       Oats claims that he was entitled to have a new penalty phase jury impaneled

upon remand for reweighing of the aggravating and mitigating circumstances. We

reject this argument because the errors that occurred at the original sentencing

proceeding did not affect the jury’s recommendation. See Funchess v. Wainwright,

772 F.2d 683, 692-93 (11th Cir. 1985) (concluding a new advisory jury was not

required on remand because the initial proceeding was free from serious error); Proffitt

v. Wainwright, 756 F.2d 1500, 1503 (11th Cir. 1985) (same). First, we emphasize that

there was no error found in either the trial court’s evidentiary rulings or in its

definitional instructions to the jury regarding aggravating and mitigating

circumstances. See Menendez v. State, 368 So. 2d 1278, 1282 (Fla. 1979) (concluding

that it was not essential for a new jury to be convened on remand for resentencing

because the defendant had not demonstrated any error in the instructions given to the

jury or the evidence it considered in making its recommendation).36 Oats contends that


       36
      In Menendez v. State, 368 So. 2d at 1282, the
Florida Supreme Court vacated the defendant’s death
                                             28
“erroneous information” about the ABC liquor store crimes was presented to the

original jury because the jury heard evidence that Oats was convicted of attempted first

degree murder and robbery in the ABC liquor store case, but the convictions were

subsequently reversed and Oats was convicted of attempted second degree murder and

robbery after a retrial.37 We disagree. Second degree attempted murder and robbery

are prior violent felony convictions and thus supported the aggravating circumstance

that Oats was previously convicted of a “felony involving the use or threat of violence

to the person.” See Fla. Stat. § 921.141(5)(b). Furthermore, the same underlying facts

presented to the jury regarding the ABC liquor store case supported both Oats’ original

conviction and his conviction after retrial in that case.38 Therefore, we agree with the


sentence because the trial judge improperly considered
six aggravating circumstances, and remanded to the
trial judge for consideration of the one properly found
aggravating circumstance and one mitigating
circumstance.
      37
           See supra note 7.
      38
      To the extent that Oats argues that a new jury
should have been impaneled because the Florida Supreme
Court held that the evidence did not support the trial
judge’s finding of a heinous aggravator and did not
support the finding of both a robbery and pecuniary
gain aggravator, Oats v. State, 446 So. 2d at 95, we
conclude that this argument is without merit. The jury
of course did not know that the trial judge would later
find the heinous factor or make the doubling-up error.
Rather, Oats’ argument would be that the jury should
never have been given an instruction that included the
heinous factor or both the robbery and pecuniary gain
factors. Oats’ trial counsel argued both of these
precise points to the jury during the penalty phase of
                                           29
Florida Supreme Court that a new jury would be considering essentially the same

evidence as was presented to the original jury. We reject Oats’ argument that a new

advisory jury should have been impaneled for resentencing.

                                   III. CONCLUSION

       For the foregoing reasons, we affirm the district court’s order denying Oats’

petition for a writ of habeas corpus.

              AFFIRMED.39


trial, and we decline to presume that the jury based
its death sentence recommendation on those aggravating
circumstances that were not supported by the evidence.
See Sochor v. Florida, 504 U.S. 527, 538, 112 S. Ct.
2114, 2122 (1992) (concluding that a jury is “likely to
disregard an option unsupported by evidence,” and thus
Court would not presume that jury’s sentence
recommendation rested on an aggravating circumstance
that was not supported in the evidence).
       39
      Oats’ other claims on appeal are either
procedurally barred or are without merit and warrant no
discussion. Oats contends that: (1) the jury
instructions on the “heinous, atrocious, and cruel” and
“cold, calculated, and premeditated” aggravating
circumstances were constitutionally inadequate and a
narrowing construction of these aggravators should have
been applied during the “sentencing calculus;” (2)
certain instructions and prosecutorial arguments
diluted the jury’s sense of responsibility for
sentencing in violation of Caldwell v. Mississippi, 472
U.S. 320, 105 S. Ct. 2633 (1985); (3) the jury was
erroneously instructed that a majority vote was
required to recommend life imprisonment; (4) the trial
court’s sentencing and resentencing orders failed to
detail specific factual findings in support of each
aggravating and mitigating factor related to imposition
of the death penalty; (5) the execution of a person
                                           30
with Oats’ mental deficiencies violates the Eighth and
Fourteenth Amendments; (6) Florida’s capital sentencing
scheme violates the Eighth and Fourteenth Amendments;
and (7) the state trial judge was biased. These claims
are procedurally barred. Any allegations of
ineffective assistance of counsel (trial or appellate)
in failing to raise these claims are without merit. In
addition, the contention numbered (1) above is also
Teague-barred. Teague v. Lane, 489 U.S. 288, 109 S.
Ct. 1060 (1989); see Glock v. Singletary, 65 F.3d 878,
890 (11th Cir. 1995) (en banc).
    In addition, the following claims are without merit
and warrant no discussion: (1) the argument that Oats
was denied his right to a fair and impartial jury in
violation of Irvin v. Dowd, 366 U.S. 717, 81 S. Ct.
1639 (1961), because of the trial court’s failure to
change venue and/or sequester the jury; (2) the
argument that the introduction of evidence relating to
the ABC store robbery/shooting rendered Oats’ trial
fundamentally unfair; and (3) the allegation of
prosecutorial misconduct. To the extent that Oats has
made other arguments not mentioned specifically in this
opinion, these claims are also rejected without need
for discussion.
    Finally, we need not decide whether the Florida
Board of Executive Clemency is required, under Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), to reveal
the information in Oats’ “clemency investigation file”
because Oats has not made a showing that any
information in this file is either exculpatory or was
unavailable to him.
                           31
32
