                                                                  [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                    _____________________________         ELEVENTH CIRCUIT
                                                            December 12, 2011
                                                               JOHN LEY
                             No. 10-10533                       CLERK
                    _____________________________

                    D. C. Docket No. 0:06-cv-61179-UU


ROBERT CONSALVO,
                                                         Petitioner-Appellant,

     versus

SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS, Walter A. McNeil
ATTORNEY GENERAL,
Charlie Crist,
                                                     Respondents-Appellees.

              _________________________________________

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

                           (December 12, 2011)

Before DUBINA, Chief Judge, TJOFLAT, and EDMONDSON, Circuit Judges.



PER CURIAM:
      Petitioner was convicted in Florida state court of armed burglary and first-

degree murder. A sentence of death was imposed. The Florida Supreme Court

affirmed Petitioner’s conviction and sentence and later denied post-conviction

relief. Petitioner then filed this petition in federal court seeking a writ of habeas

corpus. The District Court denied habeas relief but granted a certificate of

appealability on two issues, and this appeal commenced.



                                    BACKGROUND



      Petitioner was convicted in Florida state court for armed burglary and the

murder of his neighbor, who before her death had been pursuing charges against

Petitioner for the theft of $140 from her car. The Victim was stabbed to death in

her home, which showed signs of a break-in. After the Victim was last seen alive

and before her body discovered, video recordings showed Petitioner using her

ATM card and driving a car similar to hers. Petitioner was also found with

checkbooks belonging to the Victim.

      While in jail, Petitioner made various inculpatory statements to fellow

inmates Mark DaCosta (“DaCosta”) and William Palmer (“Palmer”). DaCosta and




                                           2
Palmer later testified against Petitioner at the Grand Jury hearing resulting in

Petitioner’s indictment; Palmer also testified at trial.

      Following Petitioner’s conviction for armed burglary and first-degree

murder, the trial judge -- consistent with the jury’s earlier recommendation --

imposed a capital sentence. On direct appeal, the Florida Supreme Court affirmed

both Petitioner’s convictions and death sentence. Consalvo v. State, 697 So. 2d

805 (Fla. 1996) (“Consalvo I”).

      Petitioner next challenged his convictions and death sentence by filing a

motion for post-conviction relief in state trial court. The state trial court held an

evidentiary hearing and considered Petitioner’s many claims for relief, including

recent recantations of testimony by several witnesses. The state trial court

determined that the witnesses’ recantation testimony was incredible. Instead, the

state trial court credited the testimony of the state attorneys, who refuted the

testimony of the recanting witnesses. The state trial court entered a final order

denying Petitioner’s amended motion for post-conviction relief. And the Florida

Supreme Court affirmed the state trial court’s denial of the post-conviction

motion. Consalvo v. State, 937 So. 2d 555 (Fla. 2006) (“Consalvo II”).

      Petitioner next turned to the federal courts for post-conviction relief, filing

this habeas petition and raising many claims for relief. The District Court denied

                                           3
Petitioner’s habeas petition and later denied Petitioner’s motion to amend or alter

its judgment. But the District Court granted a certificate of appealability on two

issues: (1) Whether the state supreme court unreasonably applied federal law in

affirming the trial court’s rejection of Petitioner’s constitutional claims under

Brady v. Maryland, 83 S. Ct. 1194 (1963) and Giglio v. United States, 92 S. Ct.

763 (1972); and (2) Whether the state supreme court unreasonably applied clearly

established federal law in rejecting Petitioner’s claim that reference to evidence

during sentencing that was not presented in open court was harmful and violated

his constitutional rights as promulgated by the Supreme Court in Gardner v.

Florida, 97 S. Ct. 1197 (1977).



                               STANDARD OF REVIEW



      Petitioner’s habeas petition is subject to the provisions of the Antiterrorism

and Effective Death Penalty Act of 1996, Pub L. 104-132, 110 Stat. 1214 (1996)

(codified in scattered sections of Title 28 of the U.S. Code) (“the AEDPA”). To

obtain habeas relief under the AEDPA, Petitioner must demonstrate that the state

court’s post-conviction ruling was (1) “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

                                          4
Court of the United States;” or (2) “based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d)(1), (2). The AEDPA imposes an “exacting standard.” Maharaj v. Sec’y,

Dep’t of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005).

      A state court’s decision is “contrary to” federal law if the “state court arrives

at a conclusion opposite to that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than [the Supreme] Court has on

a set of materially indistinguishable facts.” Williams v. Taylor, 120 S. Ct. 1495,

1523 (2000). A state court’s decision is based on an “unreasonable application” of

federal law if “the state court identifies the correct governing legal principle from

[the Supreme] Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.” Id. Findings of fact by a state court are presumed

correct, and a petitioner for habeas corpus must rebut the presumption by clear and

convincing evidence. See Hunter v. Sec’y, Dep’t of Corr., 395 F.3d 1196, 1200

(11th Cir. 2005).

      We review de novo the District Court’s decision about whether the state

court’s ruling was contrary to federal law, involved an unreasonable application of

federal law, or was based on an unreasonable determination of the facts. Smith v.

Sec’y, Dep’t of Corr., 572 F.3d 1327, 1332 (11th Cir. 2009).

                                          5
                                    DISCUSSION



                     A. Petitioner’s Brady and Giglio Claims



      Petitioner argues that he is entitled to habeas relief because the state

withheld material exculpatory evidence and knowingly presented false or

misleading evidence to the jury at his trial. Brady requires the state to disclose

material exculpatory evidence in its possession. 83 S. Ct. at 1196-97. The duty to

disclose required by Brady includes the disclosure of evidence that may be used

for impeachment purposes and evidence that may be used to attack the

“thoroughness and even the good faith of the investigation[.]” Kyles v. Whitley,

115 S. Ct. 1555, 1571 (1995). Giglio is closely related and dictates that the

presentation of known false evidence violates due process and is “incompatible

with rudimentary demands of justice.” 92 S. Ct. at 766 (internal quotation marks

omitted).

      To summarize, Petitioner claims the state did not meet its Brady obligations

in failing to disclose these things: the identity of Informant DaCosta; that

prosecutors met with and supplied information to DaCosta; that prosecutors

                                          6
recruited DaCosta to act as the state’s agent; that prosecutors purposefully had

DaCosta placed in Petitioner’s pod at a jail; that DaCosta spoke to Informant

Palmer about Petitioner’s case at the state’s behest and provided Palmer with

information received from the state; and that Palmer made false statements to

detectives, in grand jury testimony, and at trial.

      In a similar way, Petitioner claims that, in contravention of Giglio, the state

violated his due process rights by failing to correct the false testimony of DaCosta

and Palmer and by using the false testimony to the state’s benefit. Petitioner

asserts that both DaCosta and Palmer received favorable treatment and leniency

from prosecutors in exchange for their cooperation in Petitioner’s case. Petitioner

points to DaCosta and Palmer’s later recantations of their testimony inculpating

Petitioner -- and the allegedly inconsistent testimony of Assistant State’s Attorney

(“ASA”) Ken Farnsworth -- at the state court post-conviction evidentiary hearing.

Florida points to the state court post-conviction evidentiary hearing testimony of

ASA Brian Cavanagh and others, who countered the recantations of DaCosta and

Palmer.

      Petitioner’s Brady and Giglio claims turn upon credibility: the dispositive

determination is whether to credit the state post-conviction hearing recantations of




                                           7
DaCosta and Palmer or the contradictory testimony of the assistant state’s attorney

(among others) at the same hearing.

      Determining the credibility of witnesses is the province and function of the

state courts, not a federal court engaging in habeas review. Federal habeas courts

have “no license to redetermine credibility of witnesses whose demeanor has been

observed by the state trial court, but not by them.” Marshall v. Lonberger, 103 S.

Ct. 843, 851 (1983). We consider questions about the credibility and demeanor of

a witness to be questions of fact. See Freund v. Butterworth, 165 F.3d 839, 862

(11th Cir. 1999) (en banc). And the AEDPA affords a presumption of correctness

to a factual determination made by a state court; the habeas petitioner has the

burden of overcoming the presumption of correctness by clear and convincing

evidence. 28 U.S.C. § 2254(e).

      At the state post-conviction evidentiary hearing, the state court credited the

testimony of the state’s witnesses. The state court credited ASA Cavanagh’s

testimony that he never met with DaCosta in jail and never promised DaCosta

leniency in exchange for his testimony. Nor did the state court find ASA

Farnsworth’s testimony to be inconsistent with that of ASA Cavanagh, as

Petitioner suggested it was. The state court in addition found incredible the




                                          8
testimony of DaCosta and Palmer, who recanted their earlier testimony

incriminating Petitioner.1 The state court thus denied relief.

          The Florida Supreme Court considered the issue and affirmed the first state

court’s denial of post-conviction relief. The Florida Supreme Court reasoned that

“competent, substantial evidence” supported the lower state court’s

determinations. Consalvo II, 937 So. 2d at 562. According to the Florida

Supreme Court, “there existed no exculpatory evidence . . . that the State should

have turned over to the defense . . . .” Id. at 563. As such, the Florida Supreme

Court denied the Petitioner’s Brady claim. And because the Florida Supreme

Court affirmed the state trial court’s determination that ASA Cavanagh’s post-

conviction hearing testimony was credible and not inconsistent with ASA

Farnsworth’s testimony, it likewise concluded that no Giglio error existed because

“the trial court did not err in concluding that no misleading testimony in fact

existed.” Id. Therefore, according to the Florida Supreme Court, no misleading or

false testimony had been presented at trial. It also noted that Petitioner’s

conviction was supported by other credible evidence.2

      1
    The state court noted that Palmer’s testimony at the post-conviction evidentiary hearing was
“bizarre and totally unworthy of belief”-- Palmer reportedly smoked marijuana and drank three beers
during the lunch break of the evidentiary hearing.
  2
   The other credible evidence included Petitioner’s using the Victim’s ATM cards and having her
checkbook in his possession; the Victim changing her locks and suspecting Petitioner of taking her

                                                9
       Per section 2254, the District Court examined this issue and found and

concluded that “the record does not reveal that the [District Court’s] deference to

the state supreme court’s affirmance of the trial court’s decision would be

misplaced.” D. Ct. Order at 11. The District Court thus determined that the

Petitioner had failed to overcome the presumption of correctness afforded to the

state trial court’s finding of fact, and the District Court denied Petitioner’s Brady

and Giglio claims.

       In affirming the state trial court’s denial of Petitioner’s Brady and Giglio

claims, the Florida Supreme Court did not contravene clearly established federal

law, unreasonably apply clearly established federal law, or reach an unreasonable

determination of the facts.

       Petitioner’s Brady claim hangs on the existence of exculpatory evidence,

and Petitioner’s Giglio claim hangs on the existence of false or misleading

evidence offered at trial. Because the state courts found that DaCosta and

Palmer’s recantation testimony was incredible (instead crediting the contradictory

testimony presented by the state), no exculpatory evidence was shown by




keys and money; Petitioner’s mother’s testimony; Petitioner telling a detective that Petitioner would
not be blamed for the stabbing, before the detective was aware that the Victim had been stabbed; and
the bloody towel found in Petitioner’s dresser which DNA testing showed to contain the blood of
the Victim.

                                                 10
Petitioner to have been withheld; and no false or misleading testimony was shown

to have been presented at trial. Petitioner has not carried his AEDPA-imposed

burden of establishing that the state court’s factual determination was

unreasonable, and therefore Petitioner has also not established that Brady and

Giglio were contravened or unreasonably applied by the Florida Supreme Court.

We affirm the District Court’s decision to deny relief on these claims.



                           B. Petitioner’s Gardner Claim



      Petitioner contends that the sentencing state court, in its sentencing order,

erred in relying on deposition testimony that was not presented in open court

either at the guilt or the penalty phase. Petitioner also contends that this error was

not -- and cannot be -- harmless.

      Gardner establishes that a “petitioner [is] denied due process of law when

the death sentence [is] imposed, at least in part, on the basis of information which

he had no opportunity to deny or explain.” 97 S. Ct. at 1207. In Gardner, the

Supreme Court concluded that a criminal defendant was denied due process of law

when a capital sentence was imposed partly on the basis of confidential




                                          11
information in a pre-sentence report which had not been disclosed to the

defendant.

      In contrast to the facts in Gardner, the information the sentencing court cited

in this case came from deposition testimony, which was available to all parties.

Although the information cited by the sentencing court was available to all parties

in advance of the sentencing, the Florida Supreme Court concluded that the trial

court erred in referring to the deposition testimony. Consalvo I, 697 So. 2d at 818.

But the Florida Supreme Court also concluded that, because “the trial court did not

actually rely on any information that was not otherwise proven during trial,” any

error was “harmless beyond a reasonable doubt and that the error complained of

did not contribute to the sentence of death.” Id.

      Petitioner contends that the Florida Supreme Court’s decision is objectively

unreasonable and that the District Court erred in accepting the state high court’s

conclusion. Petitioner additionally contends that no harmless-error standard of

review applies in such a case: that reference to deposition testimony at sentencing

is a per se due process violation and harmful.

      But the Supreme Court has never held that harmless error analysis cannot

apply to this kind of error. Instead, Supreme Court precedent instructs reviewing

courts generally to engage in a harmless error analysis. See, e.g., Chapman v.

                                         12
California, 87 S. Ct. 824, 827 (1967); Brecht v. Abrahamson, 113 S. Ct. 1710,

1721-22 (1993). We accept that the “harmless error” doctrine can be reasonably

applied to the kind of error at sentencing that Petitioner advances here.

      The Florida Supreme Court applied this harmless error analysis to the

sentencing judge’s reference to deposition testimony. Petitioner claims that the

sentencing court erred in referencing the deposition testimony of Officer William

Hopper, who stated that the Victim was “a little scared of Robert [Consalvo].”

Ample trial evidence, however, permits the inference that the Victim was “a little

scared” of Petitioner, even without the sentencing court’s reference to Officer

Hopper’s deposition testimony.

      For instance, Detective Thomas Gill testified that the Victim had her locks

changed after a set of her keys disappeared. Another detective, Detective Douglas

Doethlaff, testified that the Victim suspected Consalvo in the theft of her money

and keys. And the Victim’s brother testified that the Victim said she was feeling

“down” because, among other reasons, Consalvo had stolen her money and keys.

Consalvo’s mother, in addition, testified that the Victim had spoken to her about

her missing money and keys. Based on this -- and possibly other -- evidence, the

sentencing judge could have inferred that the Victim was “a little scared” of

Consalvo, even without reference to Officer Hopper’s deposition testimony. We

                                         13
accept that the reference to Officer Hopper’s deposition testimony was reasonably

seen by the state courts as a harmless error: the non-trial deposition testimony

referenced facts that were established by other competent evidence at trial.

      In addition, Petitioner claims that relief is warranted due to the improper

reliance on Detective Doethlaff’s deposition testimony by the sentencing court.

But a comparison of Detective Doethlaff’s deposition testimony with his trial

testimony reveals that Doethlaff’s trial testimony was consistent with his

deposition testimony. Because the complained-of deposition testimony of

Detective Doethlaff was essentially the same as the testimony provided by

Doethlaff at trial, the error of citing the deposition testimony was reasonably seen

by the state courts as harmless beyond a reasonable doubt.

      Petitioner finally argues that the sentencing judge improperly referenced

testimony from Petitioner’s girlfriend or ex-girlfriend, Gail Russell. The

sentencing judge erred in stating that Russell, during the guilt phase of Consalvo’s

trial, testified about Consalvo driving the Victim’s car and possessing the Victim’s

keys: Russell did not testify at the guilt phase of the trial. But other witnesses,

namely motel manager Real Favreau and Detective Gill, did testify at the guilt

phase to facts substantially in accord with the complained-of facts that the

sentencing court erroneously attributed to Russell. Therefore, the state supreme

                                          14
court reasonably concluded that the mistaken reference to Russell’s supposed trial

testimony constituted harmless error because the sentencing court did not actually

rely on operative facts that were unevidenced at trial.

      Petitioner has not carried his AEDPA-imposed burden of demonstrating that

the Florida Supreme Court’s conclusion that the sentencer’s reference to non-trial

testimony -- the substance of which was proved by other evidence at trial -- was

contrary to or involved an unreasonable application of clearly established Supreme

Court precedent. Therefore, Petitioner is entitled to no habeas relief on this claim.



                                    CONCLUSION



      The District Court’s order denying Petitioner’s habeas petition is

AFFIRMED.




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