            Case: 12-14248   Date Filed: 12/05/2013   Page: 1 of 53


                                                                      [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                              No. 12-14248
                        ________________________

                  D.C. Docket No. 3:01-cv-01399-HES-JRK



ERNEST CHARLES DOWNS,

                                                           Petitioner-Appellant,

                                  versus



SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                        Respondents-Appellees.

                        ________________________

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

                             (December 5, 2013)

Before HULL, MARCUS and WILSON, Circuit Judges.

HULL, Circuit Judge:
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      Ernest Downs, a Florida death row inmate, appeals the district court’s denial

of his 28 U.S.C. § 2254 habeas corpus petition. This appeal involves only the guilt

phase of Downs’s trial. Downs argues that his convictions for first degree murder

and conspiracy to commit first degree murder were obtained in violation of the

Constitution because (1) the State withheld exculpatory evidence prior to his trial,

(2) his trial counsel labored under a conflict of interest due to a contingency fee

agreement, and (3) his trial counsel rendered ineffective assistance by failing to

call certain witnesses during the guilt phase. After review and oral argument, we

conclude that Downs has not shown that the Florida state courts’ decisions are

contrary to or an unreasonable application of clearly established federal law. We

thus affirm the district court’s denial of Downs’s § 2254 petition.

                               I. DOWNS’S TRIAL

      On August 4, 1977, a Florida grand jury indicted Ernest Downs on two

counts: (1) first-degree murder of Forrest J. (“Jerry”) Harris, Jr., and (2) conspiracy

to commit first degree murder of Harris. The State charged that John Barfield

hired Downs to kill Harris for $5,000, and that Downs recruited Larry Johnson to

help with the murder. Downs retained attorney Richard Brown to represent him.

       Downs proceeded to a jury trial on the murder and conspiracy charges. The

guilt and innocence phase of this trial lasted from Wednesday, December 14




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through Friday, December16, 1977. In this murder-for-hire case, Downs’s co-

conspirator Johnson was the State’s main witness.

A.    Johnson’s Trial Testimony

      Johnson testified that, in April 1977, he met with Downs, Barfield, and a

man named Gerry Sapp to discuss killing Harris. On the day of the murder, April

23, 1977, Downs told Johnson that Harris was expecting a call from someone

named Joe Green to discuss transporting some contraband. That afternoon,

Johnson and Downs drove in Downs’s pickup truck to the Baymeadows area in

Jacksonville, Florida, where the killing was supposed to occur. They went to a

phone booth to call Harris for the purpose of luring him out. At that point, Johnson

told Downs to “forget killing” Harris, but Downs insisted that Johnson make the

call. Johnson complied and called Harris, identifying himself as Joseph Green. A

woman answered the phone and said that Harris would be back shortly.

       Downs and Johnson then drove by Harris’s apartment, and when they saw

Harris arrive, they went back to the phone booth. Johnson testified that he again

expressed his unwillingness to proceed with the murder, but Downs became

“edgy” and insisted that Johnson call Harris. Johnson once more called Harris, and

this time Harris answered the phone. Johnson identified himself as Joe Green and

told Harris that he wanted to meet him at a nearby lounge to “talk some business.”

      Johnson testified that, after the call, he told Downs that he was not going to


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proceed with the murder, and, if Downs wanted to kill Harris, he (Downs) would

have to do it alone. Downs became “really angry” and insisted that Johnson get in

the truck with him. Johnson complied and got in the truck because he feared that

Downs might shoot him, but again told Downs that he was not going to kill Harris.

Downs “got really mad at that point, jerked the truck in gear,” and instead of going

to the lounge, drove down to the end of a nearby dirt road. Downs then told

Johnson to get out of the truck, threw him a .45 caliber machine gun, told him to

stay put, and drove off.

      Johnson testified that, when left alone, he hid the machine gun under “some

boards” because he had no intention of using it. Then he waited. After some time,

Downs came back in the truck with Harris. Harris stepped out of the truck, walked

up to Johnson, and introduced himself. Johnson, who was “kind of numb at this

point,” introduced himself as Johnson, not Joe Green. Harris stepped back and

looked at Johnson “kind of funny.” As Johnson began to explain that he used an

alias, Downs took out a .25 caliber pistol and fired four shots at Harris.

      Johnson described the shooting as follows:

      [Downs] brought up the .25 automatic and fired at him. . . . [After the
      first shot, Downs] kind of jumped up in the air and come down
      backwards a few feet and almost stumbled and fell down. He righted
      himself and fired three more times still stumbling backwards.
      [Downs] fell into the side of the truck . . . and fired three more times
      at him, and then he stumbled backwards and went completely around
      behind the truck out of my sight.


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Harris staggered back and fell down in front of Johnson. Downs then “came out

from behind the truck and ran around front and leaped over Jerry Harris, and

Harris’s head was off the ground.” Downs “stuck the gun up to the right side of

[Harris’s] head and fired again point-blank,” at which point “Harris laid down.”

         Johnson testified that he and Downs dragged Harris’s body into the woods

behind the dirt road. They removed car keys, identification, and some cash from

Harris’s pockets. Downs took the identification, Johnson pocketed the money, and

they threw away the car keys. Downs then fired one more bullet into Harris’s

chest.

         Downs and Johnson drove away from the scene, but returned to pick up the

the machine gun and to drag Harris’s body further into the woods. Afterwards, on

the way home, Johnson threw the .25 pistol off a bridge into a river.

         Johnson testified that the day after the murder, he and Downs visited

Barfield. Downs showed Harris’s driver’s license to Barfield, told Barfield that the

job was completed, and demanded payment. Barfield assured Johnson and Downs

that he would have their money within several days. Barfield eventually gave cash

to Downs in payment for the killing, and Downs gave Johnson a Corvette.

         Having received payment, Johnson and Downs traveled to the Florida Keys,

Mexico, Texas, and Alabama for several weeks. Johnson testified that he did not



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inform the authorities about the murder at this time because he “was afraid that

[Downs] may get revenge on me or my family or something,” and “was afraid of

being arrested for the murder myself.”

      Downs stayed in Alabama, but Johnson returned to Jacksonville in late July

of 1977, more than three months after the Harris murder. Johnson talked about the

murder to Downs’s sister, Darlene Perry, who was also Johnson’s girlfriend.

Johnson also talked to Downs’s grandfather. Johnson then contacted Detective Jim

Spaulding, told him about the murder, and led law enforcement to Harris’s body.

In exchange, Johnson obtained full immunity from prosecution.

      On cross-examination, Johnson admitted that his immunity would be

revoked if he testified that he had killed Harris. His immunity would also be

revoked if he did not tell the truth.

B.    Sapp’s Trial Testimony

      Another witness, Gerry Sapp, described how Barfield hired Downs to kill

Harris. Sapp testified that, when he was riding with Barfield to Downs’s house,

Barfield told Sapp that he (Barfield) was going to ask Downs to kill Harris.

Barfield told Sapp that he “didn’t know Larry Johnson too good,” did not trust

Johnson, and would not ask Johnson to kill Harris.

      When Sapp and Barfield arrived at Downs’s house, Downs and Johnson

were inside the garage working on a truck. Barfield called Downs outside, and


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they walked behind the house and talked for a few minutes. When Barfield and

Downs returned, Downs told Johnson that he was going to kill a man for $5,000.

Downs also said that he wanted to be paid immediately after the murder, “with no

questions asked.” When Barfield asked how he would know that Harris was killed,

Downs said that he would bring back proof of the killing, like a driver’s license.

C.    Detective Spaulding’s Trial Testimony

      Detective Spaulding testified that he met Johnson in August 1977, and

Johnson directed him to Harris’s body. Spaulding eventually arrested Downs in

Alabama. In a post-arrest interview, Downs told Spaulding that he (Downs) “had

contacted the Mobile, Alabama F.B.I. office and asked them to contact the

Jacksonville F.B.I. office in reference to the Jerry Harris case.” Before Downs

made this statement, Spaulding did not tell Downs why he (Spaulding) was in

Alabama, did not tell Downs that Harris’s body was found, and did not even

mention Harris’s name.

      In another post-arrest interview, Downs told Spaulding that he would tell

Spaulding “all [he] needed to know about the case” when they came back to

Jacksonville. Spaulding asked Downs if he was going to confess to Harris’s

murder, and Downs replied: “More than likely.” However, on cross-examination,

Spaulding admitted that Downs also denied murdering Harris on multiple

occasions during his post-arrest interviews.


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D.    Post-Trial Proceedings

      When the State rested, the trial court asked attorney Brown if he was ready

to proceed with Downs’s defense. Brown responded: “Yes, Your Honor. Yes.

Just a moment, Your Honor.” At this point, the trial transcript reflects a “[b]rief

pause.” After the pause, Brown announced that the defense rested, and no more

witnesses were presented.

      The jury convicted Downs on both counts: (1) first degree murder and (2)

conspiracy to commit first degree murder. On December 20, 1977, an advisory

sentencing hearing (the “penalty phase” of the trial) was held before a jury, after

which a “majority” of the jurors recommended a death sentence.1

      At the final sentencing hearing, held on January 27, 1978, the state trial

court adopted the jury’s recommendation and sentenced Downs to death on the

first-degree-murder charge. The trial court also imposed a 30-year sentence on the

conspiracy charge.

      On direct appeal, the Florida Supreme Court affirmed Downs’s convictions

and sentences. Downs v. State, 386 So. 2d 788 (Fla. 1980). The U.S. Supreme

Court denied certiorari. Downs v. Florida, 449 U.S. 976, 101 S. Ct. 387 (1980).




      1
          The State later noted that the jury’s recommendation of death was unanimous.


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           II. DOWNS’S REQUEST FOR POST-CONVICTION RELIEF

A.     Downs’s Initial Rule 3.850 Motion

       In June 1982, Downs filed his first Rule 3.850 motion for post-conviction

relief in state court, raising numerous claims, three of which are pertinent to this

appeal. 2

       First, Downs argued that his contingency fee agreement with counsel Brown

created a conflict of interest that deprived Downs of effective assistance of trial

counsel. In his retainer agreement with Brown, Downs agreed to pay Brown a

minimum fee of $5,000, and then $50 per hour. Additionally, Downs agreed to

pay a $10,000 “bonus fee” if he was “acquitted of all felony charges arising from

the death of Jerry Harris.” Downs contended that the prospect of a $10,000 bonus

may have prevented Brown from presenting crucial evidence for the defense.

Specifically, Brown had told Downs that putting on witnesses would mean losing

the conspiracy count. However, Downs actually might have benefited from

testifying and admitting to a limited participation in the conspiracy, thereby

possibly avoiding a murder conviction.

       Second, Downs alleged that Brown rendered ineffective assistance at the

guilt/innocence phase by failing to call three defense witnesses: (1) Downs


       2
        Downs filed a second Rule 3.850 motion after his resentencing, but only his first 3.850
motion is relevant to this appeal.


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himself, who would have testified that he did not kill Harris; (2) Sharon Darlene

Perry, Downs’s sister and Johnson’s lover, who would have testified that Johnson

told her that he (Johnson) killed Harris; and (3) Downs’s grandmother, Bobbie Jo

Michael, who would have testified that Downs was at her house on the evening of

April 23, 1977, when Harris was shot.

      Third, in a supplement to his Rule 3.850 motion, Downs alleged that the

State withheld material exculpatory evidence prior to trial, in violation of Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). The alleged exculpatory evidence

consisted of, in pertinent part, Barfield’s recorded statements to a cellmate, Harry

Murray, wherein Barfield told Murray that Johnson had told Barfield that he

(Johnson) was actually the one who killed Harris.

       An evidentiary hearing was held on Downs’s 3.850 motion in October

1982 and January 1983. At this hearing, the 3.850 court heard testimony from a

number of witnesses, including Downs himself, his trial counsel Brown, detective

Spaulding, and Barfield’s cellmate Murray.

B.    Downs’s 3.850 Testimony

      Downs testified about how he and his counsel Brown entered into the

contingency fee agreement. Downs stated:

      I told Mr. Brown that I didn’t have no money. And he said, well, he
      felt that he could have me acquitted of the first degree murder and
      would I be willing to work and pay him $10,000 as a bonus for doing


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      that? And he said that the following day I would be taken before
      Judge [Dorothy] Pate, he would have me declared indigent, and that it
      was a formality.

      When Downs arrived in court, Judge Pate asked Brown how he could

represent Downs, given Downs’s indigent status. Brown told the judge that “it was

all a matter of contract and that it had been taken care of, that he knew that

[Downs] did not have any money, but he looked to get paid at a later date.”

      Downs also testified about his discussions with Brown about whether to

testify and what witnesses to present. Specifically, Downs told Brown that he

wanted to testify. And Brown never told Downs, prior to the last day of trial, that

he (Brown) would not call Downs to testify. Nor did Brown explain to Downs

why he would not call Downs to testify.

      Towards the end of November 1977, Downs informed Brown that he

(Downs) would testify that he was at his grandmother Michael’s house on the day

of the crime. Brown, however, advised Downs “not to say anything about that”

because Brown wanted to “spring” the alibi defense on the State at trial.

      Furthermore, Brown did not tell Downs prior to trial that the defense would

rest without presenting witnesses, and Brown informed Downs of this decision

only after the State finished its case-in-chief. Downs testified that, when the State

rested,




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      Mr. Brown stood up, and then he come there and he put his hand on
      my shoulder and leaned down and he says, I can tell by looking at the
      jury that they know that you didn't kill Harris. He said, now, my
      concern at this point is the conspiracy charge. He said, If you want to
      take the stand, you are going to have to admit conspiracy. He said,
      And that carries up to a life sentence. He said So I'm advising you to
      forget about the murder charge, and let’s focus on this conspiracy
      charge, and let’s shoot for the best thing we can get out of it. He said,
      Because all the other co-defendants have gotten off light. So, he said,
      I see no reason for you to say anything at this point.

Brown also told Downs not to “worry about” having other witnesses testify for the

defense.

      [Brown] said . . . we want to focus on this conspiracy thing. And . . .
      if I don’t call no other witnesses, . . . then I’ll have opening and
      closing arguments. And [Brown] informed me at that time to just let
      the defense rest.

Downs testified that he “knew nothing about this [tactic] right up until the last

moment.”

      Downs further testified regarding the events surrounding Harris’s murder.

Downs asserted that he did not kill Harris and was not present during the shooting.

Downs admitted, however, that Barfield approached him about the murder on April

18, 1977, when Barfield and some other men came to Downs’s house. Barfield

walked with Downs behind the house and told him that he (Barfield) “wanted an

individual killed for $5,000, and . . . would [Downs] approach Johnson to do it?”

Barfield explained that “he didn’t know [Johnson] that well right then,” but “knew




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that [Johnson] and [Downs] were real tight.” Downs assured Barfield that he

“would take care of it.”

      Downs testified how he had been friends with Johnson for a long time, and

how Johnson had oftentimes exerted a bad influence on him, leading him to

commit crimes. During the time period leading up to Harris’s murder, Downs

employed Johnson in a construction business Downs owned.

      Downs talked to Johnson about Barfield’s proposition, and Johnson agreed

to kill Harris. Downs testified that, on the afternoon of the murder, April 23, 1977,

“it became increasingly apparent that Johnson was going to go through with this

and it was no longer a game anymore.” At that time, Downs told Johnson to

“forget it,” but Johnson said he wanted the $5,000.

      At approximately 7:00 p.m. that evening, Downs again told Johnson to

abandon the plan, but Johnson refused. Downs then told Johnson that “if he did it

he was on his own.” Johnson responded that he had already practiced shooting the

gun and “[f]igured out how he was going to do it.”

      Downs then left Johnson and went to Michael’s (Downs’s grandmother’s)

house, arriving there around 7:30 p.m. At approximately 10:30 p.m., Johnson

came to Michael’s house in a black pickup truck, and told Downs that “he had

done it.” Downs noticed that “the rifle” (the .45 machine gun) was missing from

the truck, and asked Johnson where the rifle was. Johnson responded that he “got


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nervous with that rifle, and . . . drove down to the end of the road and put it under a

pile of wood.” Downs became scared that the police would find the rifle when

they found Harris’s body, and so Downs went with Johnson to the place of the

murder to retrieve the rifle. Afterwards, on the way home, Johnson threw the .25

caliber murder weapon off a bridge. When Downs and Johnson returned to

Downs’s house, they also disposed of Johnson’s clothing by throwing it in a creek.

       Downs testified that his attorney Brown did not want to know Downs’s

version of the facts concerning Harris’s murder “because of the conspiracy

charge.” Brown only wanted to know what happened to the murder weapon.3

C.     Attorney Brown’s 3.850 Testimony

       Brown testified that the contingency fee agreement had no effect on his

representation. Brown received only about $40 of attorney’s fees from Downs.

However, the possibility of a $10,000 bonus did not affect his representation of

Downs in any way or at any time, and Brown did not consider the possible bonus

in making strategic decisions during the trial.

       3
         Downs testified that he told Brown he wanted to take a polygraph test, and even
borrowed $100 from his (Downs’s) mother for the purpose. Brown took the money, but kept
putting off the test until finally telling Downs that it “wasn’t necessary.”
        Brown’s 3.850 testimony mostly agreed with Downs’s on this point. Brown testified that
Downs wanted to take a polygraph test, and Brown obtained $100 from Downs’s mother for the
test. However, Brown never used that $100 for the polygraph exam, but instead used the money
to cover other costs of the case. As a result, Brown was reprimanded by the Florida Bar
Association.




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      Brown did hope to receive the $10,000 bonus when he first began

representing Downs, but subsequently “all hope of receiving that $10,000 and even

the minimum fee of $5,000 . . . pretty much faded.” Brown realized within the first

30 days or so of representing Downs that it “would take a miracle” to obtain an

acquittal on all felony charges. The “bonus” was out of Brown’s mind at the time

he began to try the case.

      With regard to his ultimate decision not to present defense witnesses, Brown

testified that he first began seriously considering the question the night before the

last day of trial. Asked whether he thought about the issue prior to trial, Brown

responded: “It’s possible that I thought a little bit about it, but it didn’t really come

seriously into my consideration until that Thursday evening.” When Brown began

the trial on Wednesday, he was still planning to call witnesses, including Perry

(Downs’s sister) and Michael (Downs’s grandmother). Brown explained: “We had

a plan in advance of trial and it involved putting on witnesses. But the course of

the trial reshapes that plan. And it did in this particular case.” Brown testified that

he could not make a fully informed decision about what evidence to present until

immediately before the State rested. In fact, until the State rested, Brown did not

tell his defense witnesses that they were not needed.

      Brown testified that he probably did not talk to Downs about his decision not

to present witnesses until the morning of the last day of the three-day trial. Brown


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testified that he talked to Downs about this decision both after the State rested and

earlier that day. When Brown raised the issue before the State rested, Downs

“didn’t demand” that Brown present a defense. After the State rested, Downs also

did not protest, or object to, Brown’s decision not to present witnesses.

      Brown denied that he told Downs, after the State rested, that the jury knew

Downs did not kill Harris. Brown also denied telling Downs that presenting

defense witnesses would mean losing on the conspiracy count.

      Brown testified in detail as to why he did not call Downs as a witness.

Brown stated that “[i]t became evident very early in the preparation for this case

that Mr. Downs could not take the witness stand . . . [o]n the guilt phase at least.”

Brown believed that Downs was present during Harris’s murder. If Downs

testified that he was present but Johnson fired the shot that killed Harris, it would

have placed Downs at the scene assisting Johnson. This would have made Downs

guilty of first degree murder too. Brown explained how Downs being at the scene

but Johnson being the shooter was not a defense to the first degree murder charge:

      if [Downs] told the truth, even if he testified that Johnson fired the
      shot that killed Mr. Harris, it would have placed him at the scene of
      the crime in a position of assisting. And [Downs] would be as guilty
      of first degree murder. And he would be convicting himself.

             It was not a defense that he wasn’t the one that fired the shot. It
      wasn’t a defense to the first degree murder charge. It might be
      mitigation, but it wasn’t a defense to the first degree murder charge
      that he wasn’t actually the person who fired the shot.


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      If, on the other hand, Downs was going to deny his presence at the murder

scene, Brown would not call Downs to testify “knowing that he was going to

perjure himself on the witness stand.”

      Thus, before trial, Brown advised Downs against testifying, telling him

“[t]hat he couldn’t get on the stand and incriminate himself, that he couldn’t get on

the stand and commit perjury; [and] that if he attempted to tell a false story on the

witness stand the jury would more than likely see through it.” Brown testified that

he had discussed with Downs “numerous times” the possibility of Downs testifying

in his own defense.

      Brown further explained why he concluded that Downs was present during

Harris’s shooting. Prior to trial, Brown went over the results of Harris’s autopsy

report with Downs, and Downs himself pointed out two errors in the report: (1) the

report did not mention a chest wound on Harris, and (2) the report incorrectly

described the caliber of the weapon used to kill Harris—.22 versus .25.

      Additionally, Downs told Brown that the murder weapon was thrown off a

bridge, and explained how he and Johnson disposed of the clothes that either

Downs or Johnson wore on the night of the homicide. Downs also told Brown that

he “wished that he had returned to the scene of the murder and moved the body.”

Consequently, based on his discussions with Downs, Brown concluded that Downs



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was present at the murder scene and was involved in the conspiracy to murder

Harris. And Downs never told Brown that he had withdrawn from the conspiracy.

Given that Downs was at the murder scene, Brown intentionally never asked

Downs whether he (Downs) was the one who actually shot Harris.

       Brown testified, however, that Downs “always accused Johnson of killing

Mr. Harris.” Moreover, Downs never told Brown that he was present when Harris

was shot, and Brown “never pursued that point.” Brown also acknowledged that

Downs did not tell him what he (Downs) would say on the witness stand.

       Another possible reason for Brown’s decision not to call Downs as a witness

was Downs’s prior convictions. Although Brown “may have mentioned” to

Downs that he (Downs) could be impeached by his prior criminal convictions,

Brown “was less concerned with that than [he] was with the fact and circumstances

of the homicide and [Downs’s] presence at the scene of the homicide, and his

participation in it.”

       Brown testified that he had advised Downs several times not to take

the stand. Brown recalled: “Sometimes [Downs] would argue about it and

other times he would seem to go along with it. And in the final analysis, he

didn’t argue about it and he didn’t protest. He acquiesced in my decision not

to put him on the witness stand.”




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      Brown also testified about his reasons for not calling Perry and Michael as

witnesses. Brown did not call Perry, who is Downs’s sister, because he felt that

she was not credible. Brown stated that “if you ask her the same question three

times, you would get three different versions of what she had hear[d] or seen or so

forth.” Moreover, the fact that Perry was Downs’s sister undermined her

credibility. Brown further explained that, if the State asked Perry the right

questions, her testimony would have placed Downs at the murder scene. After

Brown talked to Downs about Perry’s value as a witness, Downs “never insisted

that [Brown] put her on the stand,” although he might have “urged” Brown to do

so.

       As to Michael, Downs’s grandmother, Brown believed her testimony to be

of minimal value because she was not at the scene of the homicide and did not

know how it occurred. Although Michael “knew something about Johnson” and

could have testified to his bad character, Brown weighed that type of testimony

“versus losing the right to open and close, [and] there was no contest as far as [he]

was concerned.” Brown explained that the right to open and close the argument

“became more and more important to [the] defense because of the testimony and

evidence that was left to it and the quality of that testimony and evidence.”

      Furthermore, Brown feared that Downs’s grandmother Michael would

perjure herself if she testified that Downs was with her on the night of the murder.


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Michael never mentioned this alibi when Brown first talked to her, and she could

not answer or substantiate any of the details regarding the alibi. Specifically,

Brown stated:

      I have talked to Bobbie Jo Michael on several occasions prior to this
      alibi issue being raised. There had been no mention from Bobbie Jo
      Michael that Mr. Downs was at home at the time of the homicide.
      Then one day when I was talking with Mr. Downs in the jail, he told
      me, call Bobbie Jo Michael. She knows that I was home at her home
      that night of the homicide. And so I did. I followed it up and called
      Bobbie Jo Michael. At that point she reiterated the fact that yes, she
      believed that he was home the night of the homicide. But I didn’t stop
      there. I pursued questioning her further as to how she knew this
      particular date, what time he was home and other details.

             She couldn’t answer and substantiate any of the details. And
      that was a factor combined with the other evidence that I had
      investigated and foundout [sic] that caused me not to file any alibi
      defense because I concluded that there was no alibi defense.


      Before trial, Michael testified at a deposition, but did not mention the alibi

defense. Brown admitted that he told Michael not to reveal the alibi defense

during her deposition. Brown testified: “I told her not to reveal the alibi defense

[unless] the question specifically necessitated it, unless it specifically required it.”

      Brown testified that he discussed with Downs whether or not to call Michael

as a witness, and Downs did not demand that she be called.

D.    Detective Spaulding’s 3.850 Testimony




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      Detective Spaulding testified regarding his conversations with Murray,

Barfield’s cellmate. The first conversations with Murray that Spalding mentioned

in his 3.850 testimony occurred at the jail in October of 1977. In Spaulding’s

October 1977 conversations with Murray, Spaulding learned that “Barfield had

told [Murray] all about the murder,” but Murray “didn’t go into detail” with

Spaulding about what Barfield “said happened on the night” of the Harris murder.

      Spaulding informed prosecutor Dennis Guidi of his October 1977

conversations with Murray and discussed the possibility of wiring Murray. Murray

agreed to be wired as early as October 1977, but Guidi advised Spaulding not to

wire Murray at that time. Although Spaulding had several other conversations

with Murray in October and November 1977, Murray was not wired until

December 1977. Even then, the first recordings of Murray’s conversations with

cellmate Barfield were unintelligible, and Spaulding destroyed or taped over those

recordings.

      Murray’s first intelligible recording of a conversation with Barfield, spread

over two or three tapes, was made on January 9, 1978, several weeks after the guilt

phase of Downs’s trial had concluded on December 16, 1977. While listening to

the tape recording of the January 9, 1978 conversation between Murray and

Barfield, Detective Spaulding took notes. According to Spaulding’s notes,

Barfield told Murray that Johnson told Barfield that he (Johnson) had shot Harris.


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       Specifically, Barfield told Murray: “Harris jumped back and said, What the

hell is going on? And then Johnson shot him.” Barfield further stated (as heard on

the tape, according to Spaulding’s notes): “Johnson, fuck him. He’s lying on

everybody. Don’t worry about Johnson. Just like Lacy [Barfield’s lawyer] always

says, If they all offer me immunity, I’ll say Nixon killed him. Who does he give a

fuck killed him.”

       Spaulding was asked at the 3.850 hearing whether he could recall

specifically when “Mr. Murray related to [him] that Mr. Barfield was saying that

Johnson was the one who shot Mr. Harris.” Spaulding responded: “The only time

that that came up was in the tape on January the 9th.” Spaulding did not recall

Murray telling him this information at “[a]ny time prior to” January 9, 1978.

E.     Murray’s 3.850 Testimony

       Murray testified that he met Barfield in a Florida prison around September

1977. Murray talked with Barfield about Harris’s murder daily from September

1977 to January 1978. During one of their conversations, Barfield told Murray that

Johnson was the triggerman. 4




       4
        In October 1977, Barfield also asked Murray to kill Downs. Barfield additionally told
Murray that he planned to help an inmate escape and take hostage a busload of children to secure
Barfield’s release.


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      Murray testified that he told Detective Spaulding about this conversation

with Barfield as early as October 1977, and also told Barfield’s prosecutor,

Gardner, about the conversation. Murray told Spaulding exactly what Barfield told

him. Spaulding responded that he would “talk to the Prosecutors about it,”

including Guidi. In October and November of 1977, Spaulding assured Murray

“[n]umerous times” that he had spoken to the prosecutors and related to them

“exactly” what Murray told him. As a result, a decision was made to place a wire

on Murray to record a conversation with Barfield.

      Murray testified that Barfield told him how he knew that Johnson actually

killed Harris. According to Barfield, when Johnson came back from the murder

scene, Johnson told Barfield that he (Johnson) was by himself and that “Downs

was supposedly been left down at some lounge off of Baymeadows Road, and

Johnson done the actual killing.” Asked whether Barfield said that Downs was

with Johnson at the time of the killing, Murray responded:

      Well, the way [Barfield] stated to me, that they had met Harris at the
      lounge, I believe it was at Jax Liquors there, and Johnson went with
      the guy by himself because he didn’t want to go off with two people.
      [Johnson] was a little leery of [Harris] at the time . . . Harris was
      flying drugs in and out, and he went off with Johnson, and Johnson
      was supposed to have done the actual killing of him.

      Murray admitted, however, that he had testified previously during a

suppression hearing that Barfield told him: (1) that both Downs and Johnson were



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at the scene of the crime; (2) that Johnson fired the first three shots at Harris; and

(3) that Downs shot Harris again after Harris died.

      Contrary to Spaulding’s testimony, Murray testified that he told Spaulding

before Downs’s trial that Barfield said that Johnson said that he killed Harris.

F.    The 3.850 Court’s Decision

      The 3.850 court issued a 7-page decision denying all of Downs’s claims. As

to Downs’s claim that law enforcement withheld Brady materials, the 3.850 court

made a fact finding that “[t]he only time that law enforcement heard that Barfield

was saying that Johnson was the triggerman was January 9, 1978. This was after

[Downs’s] trial.” The 3.850 court further concluded that “what a co-defendant

(Barfield) said to a third person (Murray) would not be competent evidence as to

[Downs].” Thus, “Murray’s testimony of what a co-defendant told him would be

inadmissible” in Downs’s trial.

      The 3.850 court also pointed to inconsistencies between Murray’s and

Barfield’s statements. While Murray testified at the 3.850 hearing that “Barfield

said that Johnson told him that he (Johnson) killed the victim,” Barfield at his own

trial “testified that he did not know who actually killed the victim.” Also at

Barfield’s trial, Murray testified merely that “Johnson was ‘supposed’ to be the

person who killed Harris.” Finally, the 3.850 court found that Downs “was aware

of Murray and his testimony prior to sentencing and during a co-defendant’s trial.”


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      As to Downs’s claim that his lawyer’s contingency fee agreement prejudiced

his defense, the 3.850 court found that: (1) it was previously unaware of the

contingency fee agreement until the 3.850 hearing; (2) this matter was known,

however, at the time of direct appeal; and (3) the 3.850 court was presented with

no evidence that the contingency fee arrangement affected trial counsel’s

representation.

      As to Downs’s claim that his lawyer Brown was ineffective for not calling

defense witnesses, the 3.850 court found that Brown “was aware of and explored

all possible—and probable—defenses with [Downs] prior to and during trial.” The

3.850 court further found that Brown “participated in over thirty (30) depositions

or sworn statements of witnesses, filed discovery and other pre-trial Motions,

obtained costs for employment of a private investigator and employed such an

investigator to explore possible defenses, reviewed depositions taken by other

attorneys of co-defendants, conducted legal research and talked with other

attorneys representing co-defendants.”

      As for the possible alibi witnesses, the 3.850 court observed that both

proposed witnesses, Michael and Perry, initially denied knowing where Downs

was at the time of the murder, and that neither they nor Downs himself mentioned

an alibi “until shortly before trial.” The 3.850 court further found that Brown’s

decision to not put Downs on the stand or present a “withdrawal” defense was a


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strategic decision because the “withdrawal” defense “appear[ed] tenuous and

legally insufficient.” Thus, the 3.850 court found that “[a]fter a review of all the

evidence, the claims that counsel was ineffective because he did not offer proof of

an alibi or other defense are not supported by the evidence.”

G.      Florida Supreme Court Affirms the Denial of Downs’s 3.850 Motion

        The Florida Supreme Court affirmed the 3.850 court’s denial of Downs’s

3.850 motion. Downs v. State, 453 So. 2d 1102 (Fla. 1984). The Court affirmed

the denial of Downs’s Brady claim without an explanation, simply stating that

there was “no merit” to this claim and that the 3.850 court “ruled correctly.” Id. at

1104.

        Regarding the contingency fee claim, the Florida Supreme Court concluded

that: (1) “[a]lthough such a contingent fee contract is improper and unethical in a

criminal case,5 it does not alone establish denial of effective assistance of counsel;”

(2) “[s]uch unprofessional conduct is one factor to be considered by the trial court

under the totality of the circumstances in determining whether a defendant has

been deprived of effective assistance of counsel;” (3) a “[d]efendant must prove




        5
         The Rules Regulating the Florida Bar are consistent with the Florida Supreme Court’s
conclusion. See Fla. Rules of Prof’l Conduct R. 4-1.5(f)(3)(B) (stating that “[a] lawyer shall not
enter into an arrangement for, charge, or collect . . . a contingent fee for representing a defendant
in a criminal case.”).


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that this agreement affected trial counsel’s representation”; and (4) the “trial court

properly concluded that there was no such showing in this case.” Id. at 1109.

       As to Brown’s alleged ineffectiveness in failing to call witnesses, the Florida

Supreme Court concluded that the 3.850 court’s factual findings in this regard were

supported by the record. Id. at 1106. Applying Strickland, 6 the Florida Supreme

Court determined that Downs failed to show that Brown’s decision not to call

witnesses fell “outside the range of professionally competent assistance.” Id. at

1109. Moreover, even if counsel acted unreasonably, Downs suffered no prejudice

as a result. Id.

H.     Subsequent State Post-Conviction Proceedings and Resentencing

       After the denial of his first Rule 3.850 motion , Downs filed a petition for

state habeas corpus relief in the Florida Supreme Court based on a substantial

change in the law caused by Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821

(1987). The Florida Supreme Court granted relief and remanded for resentencing

before a jury. Downs v. Dugger, 514 So. 2d 1069 (Fla. 1987).




       6
        Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Strickland was decided
while Downs’s 3.850 appeal was pending in the Florida Supreme Court, and thus the 3.850 court
had not applied that case. See Downs, 453 So. 2d at 1106.


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      During that resentencing, Downs testified that he did not kill Harris and

Barfield testified that Johnson claimed to have killed Harris. As described by the

Florida Supreme Court,

      Downs’s defense at the resentencing proceeding focused on
      establishing that he was not the triggerman and did not deserve the
      death penalty. Downs testified that Johnson drove him to the dirt road
      and dropped him off. Downs said he had changed his mind about
      participating in the murder, so he left the scene and went to the home
      of his grandmother, Bobbie Jo Michael. When Johnson found Downs
      at Michael’s house later that night, Johnson was carrying Harris’s
      driver’s licence and money he took from the body. The next day, he
      and Johnson visited Barfield who paid Johnson $500 in partial
      payment for the murder.

      Downs offered the testimony of various witnesses to support his
      theory of penalty defense that Johnson—not Downs—was the
      triggerman. Barfield testified that on the day after Harris died,
      Johnson presented Harris’s driver’s licence as proof of the killing, and
      Johnson admitted at that time that he was the one who killed Harris.
      However, Barfield conceded that in his own trial in 1978, he testified
      that he had no knowledge of Harris’s murder. Downs’s sister,
      Darlene Shafer [Perry], also testified that Johnson told her he had
      killed Harris.

Downs v. State, 572 So. 2d 895, 898 (Fla. 1990). As noted, Barfield also conceded

that he had testified earlier that he had no knowledge of Harris’s murder.

      After hearing all the evidence, the jury recommended a sentence of death by

an eight-to-four decision. Id. The trial court followed the jury’s recommendation

and reimposed the death sentence. Id. at 897. The Florida Supreme Court

affirmed the sentence on direct appeal. Id. at 901.



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I.    Federal Habeas Proceedings

      In 2001, Downs filed a 28 U.S.C. § 2254 habeas corpus petition in the

district court. The district court denied the petition as untimely. On appeal, this

Court remanded the § 2254 case back to the district court for an evidentiary

hearing on whether Downs’s untimeliness could be excused due to equitable

tolling. See Downs v. McNeil, 520 F.3d 1311 (11th Cir. 2008). The district court

held an evidentiary hearing and ultimately found that Downs was entitled to

equitable tolling of the one-year limitations period prescribed by 28 U.S.C.

§ 2244(d).

      Downs then filed an amended § 2254 petition, raising a number of claims,

including the three above claims raised in his initial 3.850 motion: (1) that the State

violated Brady by withholding exculpatory evidence, namely, Barfield’s

statements to Murray that Johnson said he killed Harris; (2) that the contingency

fee agreement with Brown violated Downs’s Sixth and Fourteenth Amendment

rights by creating an impermissible conflict of interest; and (3) that Downs

received ineffective assistance of counsel during the guilt/innocence phase of his

trial due to Brown’s decision not to call any defense witnesses.

      The district court denied all of Downs’s § 2254 claims on the merits. The

district court, however, granted Downs a certificate of appealability (“COA”) on

two issues:


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      (1) whether counsel was ineffective for failing to call Darlene Perry
      and Ms. Michael as defense witnesses; and

      (2) whether the State denied Petitioner due process under the Fifth and
      Fourteenth Amendments by withholding exculpatory evidence in
      violation of Brady v. Maryland . . . .

Subsequently, this Court granted Downs’s motion to expand the COA to include

these issues:

      [3] Whether Appellant’s trial counsel had an actual conflict of interest
      by entering into a contingent fee arrangement with Appellant and
      whether Appellant proved that the contingency fee adversely affected
      trial counsel’s representation of Appellant; [and] . . .

      [4] Whether trial counsel rendered ineffective assistance of counsel in
      not calling Appellant as a witness in the guilt phase of the trial.

                           III. STANDARD OF REVIEW

      Downs’s federal habeas petition and appeal are governed by 28 U.S.C.

§ 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Recognizing the foundational principle that “[s]tate courts are

adequate forums for the vindication of federal rights . . . . , AEDPA erects a

formidable barrier to federal habeas relief for prisoners whose claims have been

adjudicated in state court.” Burt v. Titlow, — U.S. —, —, 134 S. Ct. 10, 15-16

(2013). Thus, “[a]s a condition for obtaining habeas corpus from a federal court, a

state prisoner must show that the state court’s ruling . . . was so lacking in

justification that there was an error well understood and comprehended in existing



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law beyond any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. —-, —–, 131 S. Ct. 770, 786-87 (2011). The purpose of AEDPA is “to

ensure that federal habeas relief functions as a guard against extreme malfunctions

in the state criminal justice systems, and not as a means of error correction.”

Greene v. Fisher, 565 U.S. —–,—–, 132 S. Ct. 38, 43 (2011) (internal quotation

marks omitted). With this background, AEDPA permits federal courts to grant

habeas relief in only two circumstances after a state court has denied relief. See

28 U.S.C. § 2254(d).

      First, § 2254(d)(1) permits a federal court to grant habeas relief when the

state court’s decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1)). The phrase “clearly established Federal law”

refers “to the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions

as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S.

362, 412, 120 S. Ct. 1495, 1523 (2000). A circuit court “may, in accordance with

its usual law-of-the-circuit procedures, look to circuit precedent to ascertain

whether it has already held that the particular point in issue is clearly established

by Supreme Court precedent.” Marshall v. Rogers, 569 U.S. —,—, 133 S. Ct.

1446, 1450 (2013). However, circuit precedent may not be used “to refine or

sharpen a general principle of Supreme Court jurisprudence into a specific legal


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rule that [the Supreme Court] has not announced.” Id. Also, a circuit court “may

not canvass circuit decisions to determine whether a particular rule of law is so

widely accepted among the Federal Circuits that it would, if presented to [the

Supreme Court], be accepted as correct.” Id. at —, 133 S. Ct. at 1451.

      The phrase “contrary to” means that the state court decision “contradicts the

United States Supreme Court on a settled question of law or holds differently than

did that Court on a set of materially indistinguishable facts.” Kimbrough v. Sec’y,

DOC, FL, 565 F.3d 796, 799 (11th Cir. 2009). Further, “it is not an unreasonable

application of clearly established Federal law for a state court to decline to apply a

specific legal rule that has not been squarely established by the [Supreme Court].”

Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S. Ct. 1411, 1419 (2009) (internal

quotation marks omitted). “An unreasonable application of federal law is different

from an incorrect application of federal law,” Williams, 529 U.S. at 410, 120 S. Ct.

at 1522; indeed, “even a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable,” Richter, 562 U.S. at —,131 S. Ct. at 787.

As long as “some fairminded jurists could agree with the state court’s decision,

although others might disagree, federal habeas relief must be denied.” Loggins v.

Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011).

      Second, § 2254(d)(2) allows a federal court to grant habeas relief when the

state court decision “was based on an unreasonable determination of the facts in


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

§ 2254(d)(2). As the Supreme Court recently reiterated, “a state-court factual

determination is not unreasonable merely because the federal habeas court would

have reached a different conclusion in the first instance.” Titlow, — U.S. at —–,

134 S. Ct. at 15 (internal quotation marks omitted). “[E]ven if reasonable minds

reviewing the record might disagree about the [fact] finding in question, on habeas

review that does not suffice to supersede the [state] trial court’s determination.”

Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849 (2010) (quoting Rice v.

Collins, 546 U.S. 333, 341-42, 126 S. Ct. 969, 976 (2006)) (alterations omitted).

      In short, the standard of § 2254(d) is “difficult to meet . . . . because it was

meant to be.” Titlow, — U.S. at —, 134 S. Ct. at 16 (internal quotation marks

omitted). This “highly deferential standard” demands that “[t]he petitioner carries

the burden of proof,” Cullen v. Pinholster, 563 U.S. —, ——, 131 S. Ct. 1388,

1398 (2011) (internal quotation marks omitted), and “that state-court decisions be

given the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct.

357, 360 (2002).

      AEDPA’s substantial deference applies to all issues raised in Down’s § 2254

petition. An additional layer of deference applies to Downs’s claim of ineffective

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984).


                                          33
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      For this Strickland claim, Downs had to show to the state court “that his

counsel provided deficient assistance and that there was prejudice as a result.”

Richter, 562 U.S. at —–, 131 S. Ct. at 787. To establish deficient performance, “a

person challenging a conviction must show that ‘counsel’s representation fell

below an objective standard of reasonableness.’” Id. (quoting Strickland, 466 U.S.

at 688, 104 S. Ct. at 2064). Further, “[a] court considering a claim of ineffective

assistance must apply ‘a strong presumption’ that counsel’s representation was

within the ‘wide range’ of reasonable professional assistance. Id. Thus, “[e]ven

under de novo review, the standard for judging counsel’s representation is a most

deferential one.” Id. at —–, 131 S. Ct. at 788.

      As a result, “[e]stablishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult.” Richter, 562 U.S. at —-

,131 S. Ct. at 788. “Where the highly deferential standards mandated by

Strickland and AEDPA both apply, they combine to produce a doubly deferential

form of review that asks only ‘whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.’” Gissendaner v. Seabolt,

No.12-13569, — F.3d —, —, 2013 WL 6086032, at *10 (11th Cir. Nov. 19, 2013)

(quoting Richter, 562 U.S. at —,131 S. Ct. at 788). “This ‘double deference is

doubly difficult for a petitioner to overcome, and it will be a rare case in which an

ineffective assistance of counsel claim that was denied on the merits in state court


                                          34
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is found to merit relief in a federal habeas proceeding.’” Id. (quoting Evans v.

Sec'y, DOC, FL, 699 F.3d 1249, 1268 (11th Cir. 2012)).

                               IV. BRADY CLAIM

      In Brady v. Maryland, the Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-

97 (1963). The prosecution has a duty to disclose favorable evidence even absent a

request by the defendant. United States v. Augurs, 427 U.S. 97, 107, 96 S. Ct.

2392, 2399 (1976).

      To prove a Brady violation, a defendant must establish three elements: (1)

the evidence at issue is “favorable to the accused, either because it is exculpatory,

or because it is impeaching”; (2) this favorable evidence was “suppressed by the

State, either willfully or inadvertently”; and (3) the defendant suffered prejudice as

a result. Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 745-46 (11th Cir. 2010)

(internal quotation marks omitted). To establish prejudice (also referred to as

materiality), a defendant must demonstrate “‘a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different.’” Id. at 746 (quoting United States v. Bagley, 473 U.S. 667, 682,

105 S. Ct. 3375, 3383 (1985)). “A ‘reasonable probability’ is a probability


                                          35
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sufficient to undermine confidence in the outcome.” Parker v. Allen, 565 F.3d

1258, 1277 (11th Cir. 2009) (internal quotation marks omitted).

A.     The 3.850 Court Reasonably Concluded that the State Was Not Aware
       of Exculpatory Information Before Downs’s Trial.

       The essence of the exculpatory information is Barfield’s statement to his

cellmate Murray that Johnson told Barfield that he (Johnson) killed Harris.

Because the state 3.850 court found that the State was unaware of this evidence

before the guilt phase of the trial, Downs cannot show suppression—the second

Brady element. See id. (“The prosecution does not . . . have an obligation to seek

evidence of which it has no knowledge or which is not in its possession.”); United

States v. Cravero, 545 F.2d 406, 420 (5th Cir. 1977) (“The purpose of Brady is to

assure that the accused will not be denied access to exculpatory evidence known to

the government but unknown to him.” (emphasis added)); 7 see also Dist. Att’y

Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 68, 129 S. Ct. 2308, 2319-

20 (2009) (stating that, according to Brady, “due process requires a prosecutor to

disclose material exculpatory evidence to the defendant before trial,” and “nothing

in our precedents suggest[s] that this disclosure obligation continue[s] after the

defendant was convicted and the case was closed” (emphasis added)).


       7
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981


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      In denying Downs’s Brady claim after an evidentiary hearing, the 3.850

court expressly found that the “only time that law enforcement heard that Barfield

was saying that Johnson was the triggerman was January 9, 1978 . . . after

[Downs’s] trial.” This factual finding is supported by the evidence before the

3.850 court. The first intelligible recording of Barfield’s conversation with Murray

occurred on January 9, 1978, after the guilt phase of Downs’s trial. The record

contains no recordings or notes of any conversations between Murray and Barfield

before January 9, 1978. The only evidence of conversations before January 9,

1978 comes from the testimonies of Spaulding and Murray at the 3.850 hearing.

      At the 3.850 hearing, Detective Spaulding testified that he was not aware of

Johnson’s statement to Barfield (that Johnson killed Harris) until January 9, 1978.

We recognize that Murray testified that he relayed this information to Spaulding

before Downs’s trial. The 3.850 court, however, was free to credit Spaulding’s

testimony over Murray’s. Similarly, although Detective Spaulding stated that

Murray told him in October of 1977 that Barfield “had told [Murray] all about the

murder,” the 3.850 court was free to believe Detective Spaulding’s testimony that

Murray at that time “didn’t go into detail” about who committed the murder. See

Consalvo v. Sec’y for Dep’t of Corrs., 664 F.3d 842, 845 (11th Cir. 2011) (stating

that “questions about the credibility and demeanor of a witness” are “questions of

fact,” and federal courts “have no license to redetermine credibility of witnesses


                                         37
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whose demeanor has been observed by the state trial court, but not by them”

(internal quotation marks omitted)).

         The 3.850 court therefore reasonably found that Spaulding did not learn

about Johnson’s statement to Barfield (that Johnson killed Harris) until January 9,

1978. And because January 9, 1978 was after the guilt phase of Downs’s trial, this

information could not have been suppressed in violation of Brady as to the guilt

phase. See Osborne, 557 U.S. at 68, 129 S. Ct. at 2319-20; Cravero, 545 F.2d at

420. 8

B.       The 3.850 Court Reasonably Concluded that Downs Was Aware of
         Johnson’s Statements

         There is a second reason Downs cannot show suppression. Unlike the State,

Downs himself was aware of Johnson’s statements to Barfield before his

(Downs’s) trial. See Parker, 565 F.3d at 1277 (stating that there is no suppression

of evidence under Brady “if the defendant knew of the [exculpatory] information

or had equal access to obtaining it”); see also Cravero, 545 F.2d at 420 (“The

purpose of Brady is to assure that the accused will not be denied access to




         8
         Although Downs’s first “final” sentencing hearing was on January 27, 1978, after
Barfield’s January 9, 1978 statement, Downs already received a new sentencing hearing in 1989,
where a second jury again recommended a death sentence. In this appeal, Downs’s Brady claim
asserts that Johnson’s statement to Barfield, as told by Murray, would have been useful during
the guilt/innocence phase of Downs’s trial.


                                              38
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exculpatory evidence known to the government but unknown to him.” (emphasis

added)).

      At the 3.850 hearing, Downs testified that he was present when, prior to his

trial, Johnson said to Barfield that he (Johnson) killed Harris. Thus, Downs could

have fully used this information to his advantage at trial. For example, he could

have cross-examined Johnson about his admission to Barfield, or could have called

Barfield to testify about Johnson’s statements (assuming that Barfield’s testimony

would have been admissible). Because Downs himself was aware of the allegedly

exculpatory information before his trial, no Brady violation occurred in this case.

See Parker, 565 F.3d at 1277; Cravero, 545 F.2d at 420.

C.    The 3.850 Court’s Factual Finding Forecloses Downs’s Argument that
      Murray’s Information Could Have Been Used to Impeach Detective
      Spaulding

      Downs contends that it was not just Johnson’s statement to Barfield that was

exculpatory, but also the fact that Barfield relayed Johnson’s admission to Murray,

and Murray relayed the information to Detective Spaulding. Downs argues that

this information could have been used to impeach Spaulding’s testimony at trial

and undermine the State’s credibility. This argument fails.

       As discussed above, the 3.850 court found that Spaulding did not know

about Johnson’s admission until the January 9, 1978 tape recording, a factual

finding supported by evidence. See 28 U.S.C. § 2254(d). Given that Detective


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Spalding did not learn of this information until after Downs’s trial, it could not

have been used to impeach Spalding at Downs’s trial.

D.    The Mere Existence of Murray

      Downs also argues that even though he was present and already knew what

Johnson told Barfield, the State of Florida still violated Brady by not disclosing to

Downs the “existence of Murray, a government informant residing in the same cell

as co-defendant John Barfield.” This argument also fails.

      Although Detective Spaulding indeed knew of Murray’s existence before

Downs’s trial, Downs does not cite to any authority holding that the mere existence

of a person constitutes Brady information. Brady applies only when withheld

information is “favorable to the accused, either because it is exculpatory, or

because it is impeaching.” Allen, 611 F.3d at 745-46 (internal quotation marks

omitted). As the Eighth Circuit has explained, the “mere identity of witnesses is

not exculpatory and is not covered by Brady.” United States v. Boyce, 564 F.3d

911, 918 (8th Cir. 2009).

      Instead, the existence of informants or potential witnesses constitutes Brady

material only when the informant or potential witness would offer or lead to

exculpatory or impeaching information favorable to the defendant. Compare, e.g.,

United States v. Streit, 962 F.2d 894, 900 (9th Cir. 1992) (disclosure of witnesses’

identities was not required “because they were not witnesses to the crime and were


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not involved in the criminal enterprise in any way.”), with Monroe v. Angelone,

323 F.3d 286, 300 (4th Cir. 2003) (identities of witnesses who had observed a

suspicious vehicle speeding away from the murder scene were favorable to the

defendant and thus covered by Brady); Smith v. Sec’y of N.M. Dep’t of Corr., 50

F.3d 801, 829–31 (10th Cir. 1996) (police report containing information about the

true identity of a key witness, who actually may have committed the crime but

testified at trial under a false name, was favorable information under Brady);

United States v. McCullah, 745 F.2d 350, 353 (6th Cir. 1984) (indicating that the

identity of a government witness may have been favorable to the defendant where

the witness’s existence lent some support to the defendant’s story because the

witness corroborated that he met the defendant at a certain time and place); see

also Roviaro v. United States, 353 U.S. 53, 64-65, 77 S. Ct. 623, 630 (1957)

(concluding that the government could not withhold the identity of an undercover

informer where the informer was the sole participant with the defendant in a drug

deal and the informer was “the only witness in a position to amplify or contradict

the testimony of government witnesses.”); cf. Banks v. Dretke, 540 U.S. 668, 691,

124 S. Ct. 1256, 1272 (2004) (Brady applies where government failed to disclose

that a key witness at trial was a paid police informant).

      Here, Downs points only to the existence of Murray as a jailhouse

informant. He does little to explain how the existence of Murray, by itself, was


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favorable to Downs or would have led him to favorable evidence. As discussed

above, Detective Spaulding testified that before Downs’s trial Murray did not go

into detail as to what Barfield said about what happened on the night of the Harris

murder. Before January 9, 1978, Detective Spaulding obtained no information

from Murray that was favorable to Downs. The existence of Murray did not

implicate Brady before Downs’s trial.

       Downs argues that had he known about Murray’s existence before trial,

Murray could have led him to favorable evidence. More specifically, Downs

contends that his counsel could have interviewed Murray before his trial and thus

his counsel would have learned that Barfield told Murray that Johnson had stated

he killed Harris. But Downs did not need Murray for this information; at the time

of his trial, Downs himself was already aware of Johnson’s statement to Barfield

because Downs was there when Johnson allegedly made it.

      Downs also suggests that interviewing Murray before his trial “may have led

to additional evidence regarding other statements by Barfield relating to the Harris

killing.” This Court “cannot speculate as what evidence the defense might have

found if the information had been disclosed,” Williamson v. Moore, 221 F.3d

1177, 1183 (11th Cir. 2000) (internal quotation marks omitted), and Downs’s only

example of such additional evidence is “that Barfield told Murray in October 1977

that he was plotting to kill Mr. Downs.” It is difficult to see how this information


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would have been favorable to Downs’s defense. If anything, this shows that

Barfield knew he had hired Downs and wanted to keep Downs from testifying

against Barfield.

      Downs cannot avoid that neither Murray nor Barfield actually witnessed the

murder. Downs cannot avoid that Murray had no knowledge about the murder

independent of what he heard from Barfield. Downs cannot avoid that he already

knew that Barfield had information about the murder from Johnson; in fact, Downs

was there when Johnson told Barfield about the murder. Under these

circumstances, we cannot say that the mere existence of Murray as a jailhouse

informant constituted Brady material before Downs’s trial. Much less can we say

that the Florida courts’ rejection of Downs’s argument was contrary to clearly

established Supreme Court precedent. See § 2254(d). Indeed, Downs has cited to

no case from any court holding that the existence of a jailhouse informant under

similar facts would implicate Brady.

      In light of the foregoing, we conclude that Downs’s federal habeas petition

falls far short of establishing that the 3.850 court’s ruling on the Brady issue “was

so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Richter, 562 U.S. at —-, 131 S. Ct. at 786-87. Downs’s § 2254

petition therefore cannot overcome AEDPA’s “formidable barrier to federal habeas


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relief for prisoners whose claims have been adjudicated in state court.” Titlow, —

U.S. at —, 134 S. Ct. at 16.

               V. INEFFECTIVE ASSISTANCE OF COUNSEL

      Downs argues that counsel Brown rendered ineffective assistance by failing

to call three defense witnesses: himself (Downs), Perry, and Michael. To prove

ineffective assistance of counsel for failure to call witnesses, a defendant must

show both that (1) counsel performed deficiently, and (2) the deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at

2064. For the reasons stated below, we conclude that the Florida Supreme Court

reasonably found no deficient performance under Strickland, and, therefore, we

need not reach the question of prejudice. See id. at 697, 104 S. Ct. at 2069

(“[T]here is no reason for a court deciding an ineffective assistance claim to . . .

address both components of the inquiry if the defendant makes an insufficient

showing on one.”).

      To establish deficient performance, a defendant must show that his counsel’s

representation “fell below an objective standard of reasonableness” under

“prevailing professional norms.” Id. at 688, 104 S. Ct. at 2064-65. The test for

reasonableness is whether, “in light of all the circumstances,” counsel’s conduct

fell “outside the wide range of professionally competent assistance.” Id. at 690,

104 S. Ct. at 2066. “[A] court deciding an actual ineffectiveness claim must judge


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the reasonableness of counsel’s challenged conduct on the facts of the particular

case, viewed as of the time of counsel’s conduct.” Id.

         “Judicial scrutiny of counsel’s performance must be highly deferential.” Id.

at 689, 104 S. Ct. at 2065. “[S]trategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable

precisely to the extent that reasonable professional judgments support the

limitations on investigation.” Id. at 690-91, 104 S. Ct. at 2066.

A.       Brown’s Decision Not to Call Downs

         At the 3.850 hearing, Brown presented two main reasons for not calling

Downs as a witness. First, Brown believed that Downs was at least present during

the shooting of Harris, and, if Downs told this truth on the witness stand, the jury

would have convicted him of first-degree murder. As Brown explained, “it wasn’t

a defense to the first degree murder charge that [Downs] wasn’t actually the person

who fired the shot.”9 Second, Brown did not want Downs to perjure himself on the

stand by testifying that he was not present at the scene of the shooting. These

reasons for not wanting Downs to testify were reasonable. Certainly, counsel’s

refusal to suborn perjury does not constitute deficient performance. See Scott v.


         9
             Downs does not challenge on appeal Brown’s assessment of Florida law at the time of
trial.


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Dugger, 891 F.2d 800, 803 (11th Cir. 1989) (“[A]ppellant’s lawyer could not have

rendered ineffective assistance by failing or refusing to present a false defense.”).

       Downs argues that Brown’s justification for not having him testify is not

supported by the record because (1) Brown did not tell Downs that he would not be

testifying until the brief pause following the closing of the State’s case-in-chief; (2)

even during this brief pause, Brown did not tell Downs that perjury was the reason

why Downs should not testify; and (3) Brown’s belief that Downs would perjure

himself was entirely unjustified. Downs’s arguments fail.

       First, according to Brown’s testimony at the 3.850 hearing, Brown had

numerous discussions with Downs about the possibility of his testifying.

Moreover, Brown testified that he had explained to Downs why he should not take

the stand. Specifically, Brown told Downs that “he couldn’t get on the stand and

incriminate himself, that he couldn’t get on the stand and commit perjury; [and]

that if he attempted to tell a false story on the witness stand the jury would more

than likely see through it.” Brown testified that Downs eventually “acquiesced in

[Brown’s] decision not to put him on the witness stand.” 10

       Second, Brown’s explanations for why he thought Downs was at the scene

of the murder were reasonable. Brown testified that Downs pointed out


       10
        As discussed above, we must presume that the Florida courts correctly credited
Brown’s testimony over that of Downs. See 28 U.S.C. § 2254(d)(2); Consalvo, 664 F.3d at 845.


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inaccuracies in Harris’s autopsy report, 11 told Brown how Johnson threw the

murder weapon off a bridge, and also told Brown how he (Downs) and Johnson

disposed of the dirty clothing worn during the shooting. Although, in retrospect,

these communications from Downs did not necessarily place him at the scene of

the shooting, and were consistent with Downs’s version of the facts, it was

reasonable for Brown to believe that Downs’s intimate knowledge of how the

crime occurred evidenced his presence at the scene and involvement in the murder.

       Furthermore, the 3.850 court found that “[t]here was no mention of alibi by

[Downs’s] relatives nor [Downs] until shortly before trial,” and Downs does not

challenge this finding. That Downs waited so long to tell Brown that he was at

Michael’s house during the shooting cast serious doubt on this alibi defense, and

further supported Brown’s belief that Downs was, in fact, present at the murder

and would commit perjury by testifying otherwise.

       As the Supreme Court cautioned, “[a] fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.


       11
          Although Downs contradicted Brown’s testimony, the Florida courts were free to
believe Brown over Downs. And even if the autopsy report matter did not alone justify Brown’s
belief that Downs was at the scene of the crime, there were other reasons justifying this belief, as
discussed below.


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at 689, 104 S. Ct. at 2065. Given all the circumstances, we cannot say that

Brown’s decision not to call Downs fell “outside the wide range of professionally

competent assistance.” Id. at 690, 104 S. Ct. at 2066.

B.    Brown’s Decision Not to Call Perry and Michael

      As to his sister Perry, Downs contends that Brown should have called her as

a witness because she would have testified that Johnson, who was her lover at the

time, told her that he (Johnson) killed Harris.

      The 3.850 court found that Brown interviewed Perry in August of 1977.

After interviewing Perry extensively, Brown concluded that if asked the “same

question three times,” Perry would give “three different versions of what she had

heard or seen or so forth.” The 3.850 court also found that during her deposition

on December 5, 1977, Perry “testified that she did not have information where

[Downs] was and that no one told her where he was.” Brown was afraid that Perry

could be “completely impeached” at trial.

      Brown also feared that Perry’s testimony would place Downs at the murder

scene. At one point, Perry told Brown in an interview that Johnson said to Perry

that he (Johnson) and Downs “were at the scene of the homicide. Mr. Downs had

the gun in his hand but froze up. [Johnson] took the gun from Mr. Downs’[sic]

hand and killed Harris.” Indeed, Perry never said in the many versions of her story

that Downs was not at the scene or that Downs “was elsewhere.”


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       As to his grandmother Michael, Downs contends that Brown should have

called her as a witness because she would have told the jury that Downs was at her

house the night of the Harris murder. The 3.850 court found that Brown

interviewed Michael in August of 1977 and that Michael made no mention of this

alibi at that time. The 3.850 court also found that Michael gave a sworn deposition

on December 7, 1977 during which Michael “denied knowing where [Downs] was

at the time of the murder.”

       Michael offered the alibi for the first time shortly before trial. When Brown

questioned her about this, Michael could not answer or substantiate any of the

details regarding the alibi. Although Michael could have testified at trial that

Downs was with her on the night of the murder, Brown reasonably believed that

this alibi was false.

       At the 3.850 hearing, Brown testified that he discussed with Downs the

value of both Perry and Michael as witnesses. Downs did not insist that Brown

call either Perry or Michael. Brown further testified that, by not presenting defense

witnesses, he retained the right to begin and end the closing arguments. Brown

explained that this right “became more and more important” to the defense in light

of the testimony presented by the State. Brown weighed presenting the testimony

of Perry or Michael “versus losing the right to open and close, [and] there was no




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contest as far as [he] was concerned.” Brown’s decision to sacrifice essentially

valueless testimony to preserve opening and closing arguments was reasonable.

      Again, although Brown’s strategy not to call Perry or Michael turned out to

be unsuccessful, and may have been erroneous in hindsight, we cannot say that this

strategy was unreasonable under the then-prevailing professional norms. See

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Much less can we say that the

Florida court applied Strickland unreasonably in determining that Brown’s

performance was not deficient. See 28 U.S.C. § 2254(d).

                         VI. CONTINGENCY FEE CLAIM

      Before getting to the merits of Downs’s contingency-fee claim, we must

determine what standard governs this claim. Downs contends that his claim is

governed by the Supreme Court’s decision in Cuyler v. Sullivan, 446 U.S. 335,

100 S. Ct. 1708 (1980), which held that “a defendant who shows that a conflict of

interest actually affected the adequacy of his representation need not demonstrate

prejudice in order to obtain relief.” Id. at 349-50, 100 S. Ct. at 1719. Downs

argues that the Florida state courts unreasonably applied Sullivan in denying his

contingency-fee claim.

      Sullivan dealt with a conflict of interest in the context of counsel’s

concurrent representation of multiple defendants. See id. at 337-38, 100 S. Ct. at

1712-13. The Supreme Court later explained, in dicta, that Sullivan does not


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expressly apply to counsel’s personal conflicts of interests outside the multiple

representation context. Mickens v. Taylor, 535 U.S. 162, 174-75, 122 S. Ct. 1237,

1245 (2002) (stating that, although Courts of Appeals have applied Sullivan

“unblinkingly to all kinds of alleged attorney ethical conflicts,” including “when

representation of the defendant somehow implicates counsel’s personal or financial

interests,” the “language of Sullivan itself does not clearly establish, or indeed

even support, such expansive application” (internal quotation marks omitted));

Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006) (“[T]he Supreme Court’s

analysis in Mickens of whether its Sullivan rule applies to conflict of interest

situations other than the one involved in the Sullivan case . . . is dicta.”).

      Although the Mickens observation was dicta, this Court has expressly agreed

with Mickens, stating: “there is no Supreme Court decision holding that any kind

of presumed prejudice rule applies outside the multiple representation context. The

Sullivan decision itself did not involve any other context.” Id. at 1327.

      Because it was far from clearly established that Sullivan applied to Downs’s

contingency fee claim, the Florida Supreme Court’s decision denying that claim

could not have been “contrary to, or involved an unreasonable application of,”

Sullivan. See 28 U.S.C. § 2254(d)(1). But even if Sullivan’s principles applied in

the contingency-fee context, Downs’s claim still fails. To show a constitutional

violation under Sullivan, a defendant must demonstrate that (1) his counsel labored


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under an actual conflict of interest, and (2) this conflict “adversely affected”

counsel’s performance. Sullivan, 446 U.S. at 348, 100 S. Ct. at 1718; Reynolds v.

Chapman, 253 F.3d 1337, 1342 (11th Cir. 2001). To show adverse effect, a

defendant need not show that, but for the conflict of interest, the outcome of the

proceeding would have been different. See Reynolds, 253 F.3d at 1347. Rather, a

defendant “merely must demonstrate that his attorney’s conflict of interest had an

effect upon the representation that he received.” Id.

      Assuming, without deciding, that Downs established an actual conflict of

interest, he still failed to show adverse effect. Downs contends that the

contingency fee adversely affected Brown’s representation by causing Brown not

to present any defense witnesses. However, at the 3.850 hearing, Brown testified

that the contingency fee arrangement did not affect his representation of Downs in

any way or at any time, and that he did not consider the possible $10,000 bonus in

making strategic decisions during the trial. Brown stated that, very early in his

representation, he gave up “all hope of receiving that $10,000 and even the

minimum fee of $5,000.” And Brown realized early on that “it would take a

miracle to get Mr. Downs acquitted of all felony charges.”

      Brown’s testimony established that the contingency fee agreement played no

role in guiding his decision to not present any defense witnesses. The state 3.850

court found, and the Florida Supreme Court affirmed, that Downs had failed to


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show that the contingency fee affected Brown’s representation of Downs.

Accordingly, even if Sullivan clearly governed Downs’s claim, the Florida courts

did not unreasonably apply Sullivan in finding that Downs failed to establish an

adverse effect from the contingency fee agreement. See Sullivan, 446 U.S. at 348,

100 S. Ct. at 1718. Thus, we must affirm the district court’s denial of § 2254 relief

with regard to this claim.

                               VII. CONCLUSION

      For all these reasons, we affirm the district court’s denial of Downs’s § 2254

habeas petition.

      AFFIRMED.




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