                                                                         PUBLISH


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                   FILED
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                  09/22/98
                                    No. 97-3355               THOMAS K. KAHN
                                                                   CLERK
                     D. C. Docket No. 93-1055-CIV-ORL-22


TERRY MELVIN SIMS,

                                                                   Petitioner-Appellee,
                                                                   Cross-Appellant,

                                       versus

HARRY K. SINGLETARY, JR.,
Secretary, Florida Department
of Corrections,

                                                              Respondent-Appellant,
                                                              Cross-Appellant.




                   Appeals from the United States District Court
                        for the Middle District of Florida

                                (September 22, 1998)


Before DUBINA, CARNES and HULL, Circuit Judges.


DUBINA, Circuit Judge:
       The State of Florida (“the State”) appeals the district court’s judgment granting in

part Terry Melvin Sims’s (“Sims”) petition for federal habeas corpus relief as to his death

sentence. Sims cross-appeals the district court’s judgment denying his claims challenging

the validity of his conviction. After reviewing the entire record in this case, and having

the benefit of oral argument and the parties’s briefs, we affirm the district court’s

judgment denying habeas relief as to Sims’s guilt stage issues, but we reverse the district

court’s judgment granting habeas relief as to Sims’s sentencing stage issues.

                                    I. BACKGROUND

       A. FACTS

       The facts are recited verbatim from the Florida Supreme Court’s opinion on direct

review of Sims’s conviction and sentence.

       Terry Melvin Sims was convicted for the first-degree murder of George
       Pfeil, an off-duty deputy sheriff who entered a pharmacy while it was being
       robbed by Sims and three other men. Two of these other participants,
       Curtis Baldree and B.B. Halsell, were the state’s chief witnesses. They
       testified that Sims and Baldree armed themselves with pistols and entered
       the pharmacy, while Halsell and the fourth participant, Gene Robinson,
       waited in a car a short distance away. Baldree said that he went to the back
       of the store to rob the pharmacist while Sims stayed at the front of the store
       watching the door. Sims ordered the customers and employees to the back
       of the store and into the bathroom. While Pfeil came into the store he and
       Sims exchanged gunfire. Pfeil was shot twice and Sims was wounded in
       the hip. Sims and Baldree escaped the scene and later joined their
       accomplices. The four men then departed the area.

       This account of the robbery and the shooting was confirmed by pharmacist
       Robert Duncan, Duncan’s wife and daughter both of whom worked at the
       store, and two customers who identified appellant. One of the customers,
       William Guggenheim, testified that he tried to leave the store when he saw
       a man pointing a gun at the pharmacist. He was stopped by Sims who took

                                              2
       his wallet. Guggenheim said he then saw Sims shoot a man who was
       entering through the front door.

       The main theory of defense was mistaken identity. The defense attempted
       to discredit Baldree and Halsell on the basis of their bad character, drug
       addiction, criminal records, and the plea arrangements between them and
       the state. The defense attacked the identification testimony of one of the
       customers as the product of a suggestive photographic line-up and
       questioned the testimony of Guggenheim on the basis of his earlier failure
       to choose appellant from a photographic line-up. The defense then
       presented evidence of appellant’s resemblance to another individual said to
       be a frequent criminal associate of Baldree and Halsell.

       The jury returned verdicts of guilty of first-degree murder and robbery. At
       the sentencing phase, the state presented a certified copy of a 1971 Orange
       County conviction for assault with intent to rob. The defense presented
       witnesses who testified to appellant’s good character and difficult
       background circumstances. The jury recommended death. Finding several
       aggravating circumstances and no mitigating circumstances, the trial judge
       adopted this recommendation.

Sims v. State, 444 So.2d 922, 923-24 (Fla. 1983).

       B. PROCEDURAL HISTORY

       Sims’s conviction and sentence were affirmed on direct appeal. Sims v. State, 444

So.2d 922 (Fla. 1983). Sims raised numerous issues on direct appeal: (1) whether he was

denied his Sixth Amendment right to cross-examine a witness when the trial court

curtailed defense counsel’s cross-examination of Baldree; (2) whether the trial court erred

in denying his motion for mistrial when a witness mentioned using Sims’s “mug shot” in

a photographic display; (3) whether the trial court erred in excluding from evidence

documents corroborative of a defense witness’s testimony; (4) whether the prosecutor

made several improper comments during his closing argument; (5) whether the trial court


                                             3
erred by not granting his request for an evidentiary hearing on whether the exclusion of

potential jurors unalterably opposed to the death penalty results in a jury predisposed

toward conviction; (6) whether Sims was improperly prevented from further questioning a

juror in a post-trial hearing about whether the jurors had considered Sims’s failure to

testify in reaching their verdict; (7) whether the trial court erred in allowing the jury to

return verdicts on multiple and inconsistent counts; and (8) whether the trial court

properly imposed a sentence of death. The Florida Supreme Court found no merit to

issues one, two, three, five, six, and seven. 444 So.2d at 923-24. The court found issue

four to be procedurally barred because counsel failed to object at trial to the prosecutor’s

alleged improper comments. Therefore, the issue was not preserved for appeal. See State

v. Cumbie, 380 So.2d 1031, 1033 (Fla. 1980).

       With respect to the sentencing issues, the Florida Supreme Court determined that

two aggravating circumstances were improperly “double-counted” and that the

aggravating factor that the murder was heinous, atrocious, or cruel was improper, but

harmless. 444 So.2d at 926. Despite these errors, and in light of no mitigating

circumstances, the court found that the death sentence was nonetheless appropriate. The

court found three aggravating circumstances valid: that the capital felony was committed

in the course of a robbery, that it was committed for the purpose of avoiding arrest, and

that Sims had previously been convicted of life-threatening crimes. Id. Thus, “[w]here

there are some aggravating and no mitigating circumstances, death is presumed to be the

appropriate punishment.” Id.

                                               4
       Sims filed a petition for habeas relief in the state court and later voluntarily

dismissed that petition. Sims then filed a motion to vacate the judgment and sentence and

a motion for collateral relief pursuant to Florida Rule of Criminal Procedure 3.850. The

trial court addressed both motions in its order. R.Vol. 12, Tab 7. Sims challenged his

conviction and sentence raising numerous issues: (1) whether his attorneys provided

ineffective counsel at the guilt stage proceedings because they failed (a) to explain why

further cross-examination of witness Baldree was necessary, (b) to challenge the alleged

misidentification of Sims by witness Sue Kovec due to her hypnosis, (c) to object to

improper closing argument by the prosecutor, and (d) to object to and request a hearing

on the necessity of numerous security measures employed at trial; (2) whether the

prosecutor knowingly used perjured testimony regarding the full extent of the bargain

Halsell received from the State for his testimony; (3) whether Sims’s attorneys were

ineffective at the penalty phase because their guilt stage errors affected their performance

at sentencing and because they failed to object to the prosecutor’s attempts to develop

sympathy for the victim; (4) whether the death sentence is unconstitutional because no

court found that Sims had the specific intent to cause the victim’s death; (5) whether the

death penalty is imposed in an arbitrary and discriminatory manner; (6) whether the death

sentence is unreliable because the court told the jury that the sentencing decision was not

their sole responsibility; (7) whether Sims’s attorneys were ineffective for failing to attack

the photo line-up the witnesses saw; (8) whether Sims’s attorneys were ineffective for

failing to adequately investigate and present additional evidence supporting the defense

                                               5
theory that Terry Wayne Gayle, not Sims, was the fourth participant in the robbery; (9)

whether the State withheld exculpatory evidence (receipt of lock pullers bearing Gayle’s

signature); (10) whether there was Hitchcock1 error; (11) whether Sims was prevented

from showing evidence of sentencing disparity between himself and his co-participants;

(12) whether the prosecutor improperly used victim impact evidence; (13) whether

counsel failed to investigate, develop, and present additional evidence of mitigation; (14)

whether there was a failure to investigate the prior violent felonies and present available

evidence to mitigate or exclude them; and (15) whether the trial court erred in failing to

adequately inform the jury of the impact of its recommendation. After conducting an

evidentiary hearing on Sims’s motions for post-conviction relief, the trial court denied

relief. The Florida Supreme Court affirmed the trial court’s judgment. Sims v. State, 602

So.2d 1253 (Fla. 1992).

       Sims next filed a state petition for writ of habeas corpus in the Florida Supreme

Court.2 The Florida Supreme Court denied relief, finding all claims procedurally barred


       1
        Hitchcock v. Dugger, 481 U.S. 393 (1987) (a death sentence may be
unconstitutional if the trial judge instructs the advisory jury not to consider, and the trial
judge himself refuses to consider, evidence of non-statutory mitigating circumstances).
       2
         Sims’s state habeas petition contained the following claims: (1) whether Sims
was denied a complete appellate review of his conviction and sentence in his direct
appeal; (2) whether the penalty phase jury was permitted to weigh invalid or
impermissibly vague aggravating factors; (3) whether the Florida Supreme Court applied
an automatic affirmance of his sentence; (4) whether the trial court erred in repeatedly
chastising defense counsel in the jury’s presence; (5) whether Sims was denied his right
to be present during portions of his trial; (6) whether the trial court erred in failing to
instruct the jury to return a special verdict indicating whether it was convicting Sims of

                                               6
except for the ineffective assistance of appellate counsel claim, which the court denied on

the merits. Sims v. Singletary, 622 So.2d 980, 981 (Fla. 1993).

       Sims then filed a petition for writ of habeas corpus relief under 28 U.S.C. § 2254

in the federal district court. The district court issued an order denying Sims’s petition for

habeas relief as to his conviction, but granting it as to his death sentence. For the reasons

that follow, we affirm the district court’s judgment denying habeas relief on Sims’s guilt

stage claims but reverse the judgment insofar as it grants habeas relief on Sims’s penalty

stage claims.

                               II. STANDARD OF REVIEW

       The district court’s grant or denial of habeas corpus relief is reviewed de novo.

Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir. 1998). “A district court’s factual findings

in a habeas corpus proceeding are reviewed for clear error.” Id. An ineffective assistance

of counsel claim is a mixed question of law and fact which we review de novo. Dobbs v.

Turpin, 142 F.3d 1383, 1386 (11th Cir. 1998).

                                         III. ISSUES

       1. Whether Sims’s attorneys were ineffective for the following reasons:

                a. failure to challenge the “suggestive identification procedures;”

                b. failure to object to the use of hypnotically-induced testimony;



felony murder or premeditated murder; (7) whether Sims was denied his right to a reliable
and nonarbitrary sentencing determination; and (8) whether Sims’s appellate counsel was
ineffective.

                                               7
                 c. failure to object to the use of shackles on the defendant;

                 d. failure to adequately confront and cross-examine Baldree;

                 e. failure to object to improper prosecutorial comment; and

                 f. counsel’s commission of numerous omissions and errors that undermined

                 confidence in the verdict.

       2. Whether Sims’s constitutional rights were violated when unreliable

hypnotically enhanced testimony was used against him.

       3. Whether the trial court unconstitutionally curtailed defense counsel’s cross-

examination of witness Curtis Baldree.

       4. Whether the prosecution failed to reveal the actual terms of the plea agreement

extended to James “B.B.” Halsell in exchange for his testimony.3

       5. Whether the prosecution withheld exculpatory documentary and testimonial

evidence.

       6. Whether there was prosecutorial misconduct during closing argument at the

penalty stage.

       7. Whether the trial court erred when it denied Sims’s request for an evidentiary

hearing to determine the “prosecution-proneness” of the jury empaneled in his case.

       8. Whether Sims was denied a fair trial because the trial court denied a motion for

mistrial based on a witness’s reference to Sims’s “mug shot” during trial.


       3
        The district court framed this argument in terms of a violation of Giglio v.
United States, 405 U.S. 150 (1972).

                                                8
       9. Whether Sims’s federal rights were violated when the trial court ended post-

trial inquiry of a juror and denied Sims’s motion for a new trial.

       10. Whether the trial court erred in permitting the jury to return general verdicts on

allegedly multiple and inconsistent counts of first degree murder.

       11. Whether Sims received ineffective assistance of appellate counsel on direct

appeal.

       12. Whether Sims was denied the right to present a defense and have a fair trial

because of the trial court’s exclusion of three documents.

       13. Whether errors during the guilt phase require vacating Sims’s death sentence.

       14. Whether there was constitutional error with regard to Sims’s sentencing due to

a Hitchcock violation.

                                    IV. DISCUSSION

       A. Guilt Stage Issues

       1. Ineffective Assistance of Counsel at the Guilt-Stage

       The law regarding ineffective assistance of counsel claims is well settled and well

documented. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set

forth a two-part test for analyzing ineffective assistance of counsel claims. According to

Strickland,

       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s

                                              9
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

Strickland, 466 U.S. at 687. “When applying Strickland, we are free to dispose of

ineffectiveness claims on either of its two grounds.” Oats v. Singletary, 141 F.3d 1018,

1023 (11th Cir. 1998).

       The various claims of ineffective assistance of counsel asserted by Sims are as

follows:

       (a) Sims claims that his attorneys provided ineffective counsel by failing to

challenge the suggestive identification procedures at trial. Sims complains that a

photographic line-up and media coverage interfered with the in-court identification of

him by witnesses Sue Kovec (“Kovec”), William Guggenheim (“Guggenheim”), and

Colleen Duncan (“Colleen”). The record discloses that Sims’s counsel filed a pre-trial

motion to suppress the suggestive identification procedures. R. Vol. 5, p. 958, 968; Vol.

7, pp. 1165-1211; Vol. 14, pp. 220, 300.4 The trial court conducted an evidentiary

hearing and denied the motion. R. Vol. 5, p. 972. There is nothing in the record to

suggest that the photographic line-up was suggestive. Detective Ralph Salerno

(“Salerno”) testified that he showed the photographic line-up to the witnesses. R. Vol. 7,

p. 1174; Vol. 14, p. 645. Robert Duncan (“Duncan”), the pharmacist, was unable to

identify anyone; Guggenheim identified Baldree; and Kovec identified Baldree and Sims.


       4
        The record of Sims’s trial and post-conviction hearing will be designated as “R.
Vol. ___.” The record on appeal, consisting of the district court’s order, will be
designated as “ROA, Vol. ___.”

                                              10
Salerno showed the line-up to these witnesses because they had all indicated that they

would be able to identify the perpetrators again. The fact that Kovec was the only

witness to identify Sims indicates that the photographic line-up was not suggestive.

Additionally, defense counsel cross-examined all of the witnesses regarding their in-court

identification of Sims. Accordingly, their failure to object at trial to the alleged

suggestiveness of the photographic line-up cannot be deemed legally deficient.

       (b) Sims argues that his lawyers provided ineffective counsel by failing to object

to the use of hypnotically-enhanced testimony. Specifically, Sims claims that counsel

should have (1) thoroughly cross-examined the witnesses at trial regarding their hypnosis

sessions and (2) argued that the testimony of the hypnotically refreshed witnesses should

have been excluded under state law in effect at the time this case was tried in 1978. Both

arguments center around the testimony of Duncan, Guggenheim, and Kovec, who were

subjected to hypnosis a few days after the crime. The hypnotist, Bruce Drazen

(“Drazen”), had been conducting hypnotic sessions for the police department for several

years, although he had no formal educational training in hypnosis. R. Vol. 13, pp. 34-36.

Drazen had not read the statements of the witnesses and had no knowledge of what the

suspects looked like. Id. at 48. The main thrust of his hypnosis sessions was to develop

better details of the perpetrators. Id. at 50. Either during or immediately after the

hypnosis sessions, the witnesses talked to a police artist who attempted to draw pictures

reflecting the characteristics of the alleged perpetrators. Id. at 59.



                                              11
       The record indicates that Sims’s counsel did file a pre-trial motion to strike the

introduction of the hypnotically refreshed testimony, but apparently did not follow up on

that motion. During the trial, counsel did not cross-examine the witnesses about their

hypnosis sessions. At Sims’s Rule 3.850 hearing, one of Sims’s lawyers, Bill Heffernan

(“Heffernan”), stated that he did not research the question of whether hypnotically

refreshed testimony was admissible. Sims’s other lawyer, Mark Rabinowitz

(“Rabinowitz”), testified that he did conduct research on the subject and concluded that

the testimony was admissible.      In its ruling on Sims’s Rule 3.850 motion, the trial

court noted that the use of hypnotically refreshed testimony was permitted at the time of

Sims’s trial, although it was later discredited in Bundy v. State, 471 So.2d 9 (Fla. 1985),

and determined to be inadmissible. Thus, counsel could not be held ineffective for failing

to object to testimony that was admissible at the time of Sims’s trial. Additionally,

Sims’s counsel determined that the witnesses’s credibility could be attacked by other

means. The trial court found that “[t]his decision falls within the wide range of

professionally competent assistance that counsel must make in every trial. Furthermore,

counsel is not required to anticipate changes in the law resulting from subsequent court

decisions.” R. Vol. 12, Tab 7, p. 5.

       On appeal, the Florida Supreme Court affirmed the trial court’s ruling, noting that

in 1978, “it was evident that forensic hypnosis was often employed.” 602 So.2d at 1256.

The court further found that even if counsel had been ineffective, Sims was not

prejudiced within the meaning of Strickland. First, Drazen did not know what the

                                             12
perpetrators looked like, so his questions could not have been suggestive. Second, the

State presented the testimony of Sims’s two accomplices who identified Sims as the

triggerman so that the hypnotically refreshed testimony was not the only evidence on this

point. Moreover, even if the Bundy analysis had been available at the time of Sims’s

trial, much of the hypnotized witnesses’s testimony would still have been admissible. 602

So.2d at 1256. See Stringer v. Black, 503 U.S. 232, 235 (1992)(federal courts will not

challenge a state court’s determination of state law).

       Under the circumstances of the case, we cannot find that counsel’s performance

fell outside the range of reasonably competent assistance. Counsel’s testimony at the

Rule 3.850 hearing supports a reasonable interpretation that there was a strategic decision

on counsel’s part not to attempt to mount an attack on the unreliability of hypnotically

refreshed testimony. R. Vol. 13, pp. 147-57; Vol. 14, pp. 303-08. Sims’s attorneys felt

confident that they could attack the reliability of the witnesses’s identification on cross-

examination. Accordingly, under our precedents dealing with tactical choice by counsel,

we conclude there was no deficient performance. See e.g. Davis v. Singletary, 119 F.3d

1471, 1477 (11th Cir. 1997)(attorney’s failure to attempt to impeach a witness on grounds

that the witness had been hypnotized was reasonable, tactical decision because bringing

to the jury’s attention the fact that a prosecution witness had been hypnotized would have

run the risk of bolstering that witness’s testimony in the eyes of the jury), cert. denied,

118 S.Ct. 1848 (1998); Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir.

1994)(counsel made a strategic decision to keep from the jury the fact of the hypnosis).

                                              13
See also Thompson v. Nagle, 118 F.3d 1442, 1452 (11th Cir. 1997)(defense counsel’s

decision to present a mental health defense based on the testimony of the defendant’s

father and one mental health expert was strategic choice since this strategy would prevent

the admission of damaging testimony at trial), cert. denied, 118 S.Ct. 1071 (1998);

Lambrix v. Singletary, 72 F.3d 1500, 1504-05 (11th Cir. 1996)(counsel’s decision not to

present a wealth of evidence of chemical dependency was a tactical choice since counsel

determined that such evidence would be detrimental rather than beneficial in the

sentencing phase), aff’d, 520 U.S. 518 (1997); Mills v. Singletary, 63 F.3d 999, 1024-26

(11th Cir. 1995)(counsel’s decision to curtail further investigation into co-defendant’s

psychiatric treatment comported with trial strategy and counsel’s decision not to present

additional mitigating evidence was reasonable), cert. denied, 517 U.S. 1214 (1996). In

sum, we agree with the state courts that this strategic decision was not one of those

relatively rare strategic decisions that is outside the wide range of reasonable professional

assistance.5

       Sims also argues that his counsel should have been aware of two recent decisions

of the Florida District Court of Appeals, Third District, which held that hypnotically


       5
          The district court determined that counsel did not perform reasonably in
addressing the use of hypnotically enhanced testimony; however, the court concluded that
Sims could show no prejudice from counsel’s deficient performance. Thus, under
Strickland, Sims’s claim of ineffectiveness did not merit relief. As noted infra, however,
the district court found that counsel’s inadequate performance in failing to address the use
of hypnotically enhanced testimony, along with other factors, precluded a finding of
harmlessness on the Hitchcock claim and warranted habeas relief as to the sentence of
death.

                                             14
refreshed testimony was inadmissible. See Rodriguez v. State, 327 So.2d 903, 904 (Fla.

3rd Dist.Ct.App. 1976); Shockey v. State, 338 So.2d 33, 37 (Fla. 3rd Dist.Ct.App. 1976).

He contends that the trial court and counsel were bound by these opinions although the

trial court was not in the third district court of appeals. Even if the trial court were bound

by these decisions, they are distinguishable. In Rodriguez, the court addressed the sole

question of whether the trial court erred by prohibiting the admission of statements made

by the defendant under hypnosis. This is materially different from the hypnotically

refreshed testimony of witnesses used in Sims’s case. The Rodriguez court found no

abuse by the trial court in disallowing the hypnotically induced statements of the

defendant, but noted that it “remains unconvinced of the reliability of statements procured

by way of hypnosis.” 327 So.2d at 904. This is not a definitive statement regarding the

admissibility of hypnotically refreshed testimony such that counsel would have known

that hypnotically refreshed testimony was not admissible in this case. Additionally, in

Shockey, the defendant filed a motion for new trial relying upon evidence from his

accomplice’s hypnotic session which tended to corroborate the defendant’s version of the

crime. The court found that the trial court properly denied the motion because the

hypnotically induced testimony was not admissible. 338 So.2d at 37. Again, the Shockey

decision is not a definitive statement regarding the use of hypnotically refreshed

testimony such that Sims’s counsel should have known it was admissible in his case.

       As the Florida Supreme Court noted on appeal of Sims’s denial of post-conviction

relief, the use of forensic hypnosis was admissible at the time of Sims’s trial. “It was not

                                              15
until seven years later that this Court held that hypnotically obtained testimony was

inadmissible.” 602 So.2d at 1256 (citing Bundy v. State, 471 So.2d 9 (Fla. 1985)). If the

Rodriguez and Shockey decisions had been binding on the trial court, the Florida

Supreme Court would have indicated that in its opinion, but it did not. We will not

challenge a state court’s determination of state law. See Stringer v. Black, 503 U.S. 232,

235 (1992)(“It would be a strange rule of federalism that ignores the view of the highest

court of a State as to the meaning of its own law.”); Parker v. Dugger, 498 U.S. 308, 327

(1991)(White, J., dissenting)(“It is axiomatic that . . . the views of the State’s highest

court with respect to state law are binding on the federal courts.”)(citations and quotation

omitted); Cargill v. Turpin, 120 F.3d 1366, 1381 (11th Cir 1997)(“We are not at liberty to

challenge this state court determination of state law.”), cert. denied, 118 S.Ct. 1529

(1998).

       Accordingly, we are not persuaded that Sims’s attorneys were ineffective by

failing to object to the use of hypnotically refreshed testimony since the law at the time of

Sims’s trial supported the admissibility of such testimony. Assuming arguendo that

Sims’s attorneys were ineffective based on this failure to object, Sims has shown no

prejudice within the meaning of Strickland. As previously noted, Drazen did not know

what the killer looked like when he conducted the hypnosis sessions, so his questions

were not suggestive. Further, assuming that none of the hypnotized witnesses testified,

the State presented the testimony of Sims’s accomplices who identified Sims as the

triggerman. Sims cannot demonstrate that a reasonable possibility exists that the result of

                                              16
the proceedings would have been different. He is entitled to no relief on this claim of

ineffectiveness.

       (c) Sims claims that his attorneys were ineffective due to their failure to object

when Sims was brought into court wearing shackles or to object to the extra security

measures in place during his trial. At Sims’s Rule 3.850 hearing Heffernan testified that

he did object to the shackles and that the trial court ordered them removed. R. Vol. 13, p.

146. One of the prosecutors testified that Sims was shackled at the start of trial, but he

thought Sims was brought in and seated before the jury entered the courtroom. R. Vol.

14, pp. 268-70. Rabinowitz stated that Sims came into the courtroom in shackles and Bill

[Heffernan] objected, but the trial court denied the motion. Rabinowitz further stated that

“[w]e were placed in a position that if we stood up, – started asking the jury, we would be

responsible for poisoning the venire.” R. Vol. 14, p. 312.

       The record belies Sims’s claim that counsel failed to object to the use of shackles.

It was clear that counsel did object and then made a strategic decision not to call attention

to the shackles. There is no merit to this claim.

       Sims also argues that counsel should have objected to the extra security measures

in place during his trial. At the post-conviction hearing, Heffernan commented that

security was very tight, but he made no mention of how this affected his representation of

Sims. R. Vol. 13, p. 144. In light of Sims’s failure to show how this prejudiced his right

to a fair trial, he is entitled to no relief on this claim.



                                                 17
       (d) Sims argues that counsel failed to confront adequately and cross-examine one

of the State’s key witnesses, Curtis Baldree. The substantive component of this claim

was presented on direct appeal and decided adversely to Sims. 444 So. 2d at 924. Sims

did not raise this specific claim as one of ineffective assistance of counsel in his post-

conviction proceeding. Therefore, the claim is procedurally defaulted for our purpose,

and the district court erred in considering the claim on the merits. See Footman v.

Singletary, 978 F.2d 1207, 1211 (11th Cir. 1992).6

       (e) Sims argues that his lawyers were ineffective for failing to object to improper

prosecutorial comment and argument and improper judicial instruction. During the

course of the trial, the trial judge corrected Sims’s counsel twice during voir dire,

admonished counsel several times during opening argument, and advised counsel to

“move on” during cross-examination of two witnesses. These admonitions by the trial

court were done to correct misstatements of counsel. When Sims’s counsel objected, the

court similarly corrected the prosecutor. R. Vol. 1, p. 93. Sims also claims that the trial

court improperly instructed defense counsel to discuss only the evidence. Three of the

four rulings by the trial court were in response to appropriate objections by the

prosecutor. R. Vol. 2, pp. 240, 241, 245. A review of the record demonstrates that none

of the trial court’s comments conveyed its opinion about the evidence or either party’s

case. There was no impropriety in the trial court’s rulings or comments.


       6
         The State argued in its response to Sims’s federal habeas petition that this
particular claim was procedurally barred. ROA, Vol. 2, Tab 17, pp. 23-24.

                                              18
       Sims contends that the trial court continually interrupted counsel’s examination of

witnesses and denigrated defense counsel’s questioning of two key state witnesses.

Having reviewed the record, we see no indication that these admonitions directly or

indirectly influenced the jury. The trial court had complete control of the case and his

courtroom. The court treated all parties equitably in ensuring that Sims received a fair

trial. Counsel’s decision not to challenge the trial court’s comments cannot be deemed

deficient.

       Sims claims he received ineffective counsel because his lawyers failed to object to

improper prosecutorial comments and argument. The prosecutor’s comments of which

Sims complains here consist of vouching for the credibility of witnesses, referring to

evidence not in the record, and attesting to the guilt of the defendant. Sims’s counsel did

not object during the closing argument to these comments. Heffernan stated at the post-

conviction hearing that he overlooked the objection at closing, but also commented that

“it doesn’t make a difference what a lawyer says at closing. . . . [the] court goes to great

lengths to instruct [the] jury that what counsel says in closing is not evidence.” R. Vol.

13, p. 189.

       We conclude that counsel’s actions were not deficient; however, assuming

arguendo that counsel’s failure to object to the prosecutor’s comments constituted

ineffective assistance, Sims has shown no prejudice as a result of this inaction. Five

eyewitnesses, including two accomplices, identified Sims during the trial as the



                                              19
participant in the murder/robbery. Considering this eyewitness testimony, the

prosecutor’s comments did not prejudice Sims’s trial.

       (f) Sims argues that his lawyers committed numerous errors and omissions during

trial which undermined confidence in the verdict. After reading the record and

determining that all of Sims’s claims of ineffectiveness are without merit, we conclude

that this claim too must fail. A defendant is entitled to a fair trial, not a flawless one.

Rose v. Clark, 478 U.S. 570, 579 (1986). Our review of the record convinces us that

Sims received extremely effective counsel. His attorneys vigorously cross-examined the

State’s witnesses and argued for the exclusion of vital evidence. Moreover, we note that

the trial court complemented defense counsel on their performance. R. Vol. 4, p. 768.

Based on the totality of the circumstances, Sims’s counsels’ performance did not

undermine confidence in the verdict.

       2. The use of hypnotically enhanced testimony

       Sims claims that his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were

violated during trial when the State used unreliable hypnotically enhanced testimony.

The district court addressed this claim on the merits and denied relief. A merits

determination is not necessary, however, because the claim is barred by the non-

retroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989) (bars retroactive application

in a 28 U.S.C. § 2254 proceeding of any rule of law which had not been announced at the

time the petitioner’s conviction became final). See Spaziano v. Singletary, 36 F.3d at

1043, (applying three steps of Teague: first step is to determine when the defendant’s

                                              20
conviction and sentence became final; second step is determining whether the rule the

habeas petitioner seeks or upon which he relies is a new one; third step is determining

whether either of the two exceptions -- rules that place conduct beyond the reach of

criminal law or new watershed rules of criminal procedure which implicate the

fundamental fairness and accuracy of the criminal proceeding -- is applicable) (citations

omitted). The conviction and sentence in this case became final for Teague purposes on

June 11, 1984, (when the United States Supreme Court denied certiorari) while the

conviction and sentence in Spaziano became final on July 2, 1984. Spaziano controls the

disposition of this claim because we determined in that case that the Teague bar applied

to the use of hypnotically enhanced testimony.7 Accordingly, the same rationale applies

in Sims’s case and he is entitled to no relief on this claim.

       3. Defense counsel’s cross-examination of Baldree




       7
         The State also contends that this claim is procedurally barred because it could
have been, but was not raised, on direct appeal. In Sims’s Rule 3.850 petition, he claimed
that he was entitled to reversal based upon Florida Supreme Court’s decision in Bundy v.
State, 471 So.2d 9 (Fla. 1985). Bundy was not decided on federal constitutional grounds
and the Florida Supreme Court’s denial of relief on Sims’s claim was predicated solely on
Florida law. Thus, Sims’s claim is procedurally defaulted. See Coleman v. Thompson,
501 U.S. 722 (1991). Although the Supreme Court has admonished us that when the
State argues that a claim is both Teague barred and procedurally barred, we ordinarily
should decide the procedural bar issue, see Lambrix v. Singletary, 520 U.S. 518, ___, 117
S.Ct. 517, 523 (1997), we decline to do so in this case because the application of Teague
is substantially clearer. Davis v. Singletary, 119 F.3d 1471, 1477-78 (11th Cir.
1998)(deciding that Teague, instead of procedural bar, was more clearly applicable to bar
retroactive application of Espinosa v. Florida, 505 U.S. 1079 (1992)).

                                              21
       This issue was addressed by the Florida Supreme Court on direct appeal and

decided adversely to Sims. 444 So.2d at 924. The record indicates that the trial court

abruptly halted defense counsel’s cross-examination of Baldree when he began to

question Baldree about the individual whom Sims was said to resemble. Defense counsel

conducted extensive cross-examination of Baldree, and the State’s objection and the

court’s ruling came only after the defense went into matters beyond the scope of

Baldree’s direct examination. Defense counsel could have made a proffer to show the

relevance of the information they were seeking to bring before the jury, but they did not.8

Accordingly, we find no Sixth Amendment violation.

       4. False evidence claim

       Sims contends that the prosecution failed to reveal the actual terms of the plea

agreement extended to Halsell for his testimony. According to Sims, during trial, the

prosecutor falsely argued that Halsell’s plea agreement included a ten year capped

sentence which he had begun to serve at the time of trial. However, Halsell had not yet

been sentenced at the time of trial and when he was actually sentenced, he received only a


       8
           Sims relies on the statement by the Florida Supreme Court that defense counsel
could have made a proffer to show the relevance of the information they were seeking to
introduce to support his claim of ineffective assistance of counsel for failing to make a
proffer and explain why the information was vital. Sims argued in his Rule 3.850 petition
that trial counsel would have brought out the relationship between Robinson (another
participant in the crime who was waiting in the “getaway” car) and Gayle (Sims’s look-a-
like) as opposed to Baldree and Gayle. In his federal habeas petition, Sims relies upon
the Baldree-Gayle connection. This claim, as discussed infra, is procedurally barred
because it was not presented to the state courts. See Wainwright v. Sykes, 433 U.S. 72
(1977); Footman v. Singletary, 978 F.2d at 1211.

                                            22
two year term of imprisonment. The Florida Supreme Court found this issue without

merit, see Sims v. State, 602 So.2d at 1257; so did the district court. We agree with its

findings.

       At trial, the prosecution asked Halsell if he was under a ten year sentence for

armed robbery and he replied that he was. R. Vol. 2, p. 299. The prosecution later asked

if part of their deal was to cap his sentence at ten years and Halsell responded yes. R.

Vol. 2, p. 300. At the Rule 3.850 hearing, both defense counsel testified that they

understood that Halsell’s sentence would consist of a ten year cap. R. Vol. 13 & 14, p.

162-63, 278-79, 284-85, 315. Having read the record in its entirety, we see no deliberate

deception by the prosecution. Accordingly, Sims’s claim lacks merit.

       5. Brady claim

       Sims argues that the State violated Brady v. Maryland, 373 U.S. 83 (1963), when it

withheld exculpatory evidence he alleges would have linked Gayle to the crime. The

alleged exculpatory evidence was a receipt for the purchase of “lock pullers”9 and a claim

that the seller of the lock pullers had identified a photograph of Gayle as the buyer. Sims

argues that this exculpatory evidence prejudiced him because it links Gayle to Robinson

and shows that Gayle and Robinson together purchased the lock pullers that were used in

the instant robbery. Sims contends this evidence would have supported his theory of

defense that Gayle was the fourth participant in the crime, not Sims.


       9
         Lock pullers are used by individuals to steal cars. The lock puller provides
access to the ignition of a car and enables the thief to start the car without a key.

                                             23
       In order to establish a violation of Brady, Sims must demonstrate the following:

       (1) that the Government possessed evidence favorable to the defendant
       (including impeachment evidence); (2) that the defendant does not possess
       the evidence nor could he obtain it himself with any reasonable diligence;
       (3) that the prosecution suppressed the favorable evidence; and (4) that had
       the evidence been disclosed to the defense, a reasonable probability exists
       that the outcome of the proceedings would have been different.

United States v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989)(citations omitted). For

Brady purposes, evidence is material “only if there is a reasonable probability that, had

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

different.” United States v. Stewart, 820 F.2d 370, 374 (11th Cir. 1987)(quotations &

citation omitted). “The question is not whether the defendant would more likely than not

have received a different verdict with the evidence, but whether in its absence he received

a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v.

Whitley, 514 U.S. 419, 434 (1995).

       Sims abandoned the photograph component of this claim on appeal of the denial of

his motion for post-conviction relief. Therefore, this portion of the argument is

procedurally barred for federal habeas purposes. Lindsey v. Smith, 820 F.2d 1137, 1143

(11th Cir. 1987). The receipt portion of this argument lacks merit. The evidence was not

“material” in the Brady sense. The receipt was undated and unsigned and could not have

connected Gayle to Robinson. This evidence in no way demonstrates that Gayle was at

the robbery/murder scene and, therefore, it was immaterial. In light of the evidence




                                              24
establishing Sims as the triggerman, the exclusion of this document did not affect the

outcome of Sims’s trial.

       6. Prosecutorial misconduct during closing argument at the penalty stage

       Sims alleges that the prosecutor made several egregious statements during closing

argument that denied him a fair trial. Specifically, the prosecutor vouched for the

credibility of witnesses, expressed his personal belief in Sims’s guilt, made personal

attacks on defense counsel, and referred to evidence not presented at trial. This claim was

raised on direct appeal, and the Florida Supreme Court found the issue procedurally

barred because it was not preserved for appellate review. 444 So.2d at 924. We conclude

the district court correctly determined that the claim was procedurally barred for federal

habeas purposes.

       A federal court must dismiss those claims that are procedurally barred under state

law. Harris v. Reed, 489 U.S. 255 (1989). Since the Florida Supreme Court found this

claim to be procedurally barred, we are precluded from addressing the merits of this claim

unless Sims can show “cause and prejudice” for his procedural default or that he is

“actually innocent.” Johnson v. Singletary, 938 F.2d 1166, 1174-75 (11th Cir. 1991).

Sims has not demonstrated that either exception applies to his case. Accordingly, the

claim is procedurally barred.

       7. Evidentiary hearing on the prosecution-proneness of the jury

       The district court determined that this issue lacks merit. We agree. In Lockhart v.

McCree, 476 U.S. 162 (1986), the Supreme Court held that a defendant was not entitled

                                             25
to have on the jury individuals who are unalterably opposed to the death penalty.

Accordingly, the trial court did not err when it denied Sims’s motion for an evidentiary

hearing to determine the “prosecution proneness” of the empaneled jury.

       8. Denial of motion for mistrial

       Sims asserts that he was denied a fair trial because the trial court denied his motion

for mistrial based on a witness’s reference to Sims’s “mug shots.” The Florida Supreme

Court rejected this argument on direct appeal. 444 So. 2d at 924. The court found that

“[s]ince these words were used by a defense witness and did not specifically refer to a

prior conviction, we find that this vague reference to other possible criminal activity was

not so prejudicial as to require a new trial.” Id. The district court also denied Sims relief

on this claim.

       During the prosecutor’s cross-examination of defense witness Detective Salerno,

the witness mentioned that he had a “mug book” before he compiled the photographic

line-up. R. Vol. 4, p. 650. Defense counsel objected to this “mug book” reference and

the trial court overruled the objection. The witness later referred to a “mug shot” of Sims.

Id. at 651. Defense counsel objected and moved for a mistrial. The trial court overruled

the objection and admonished the witness not to use “that phrase again.” Id. at 652.

       In habeas corpus proceedings, federal courts generally do not review a state court’s

admission of evidence. McCoy v. Newsome, 953 F.2d 1252, 1265 (11th Cir. 1992). We

will not grant federal habeas corpus relief based on an evidentiary ruling unless the ruling

affects the fundamental fairness of the trial. Id. Accord Baxter v. Thomas, 45 F.3d 1501,

                                             26
1509 (11th Cir.)(evidentiary ruling claims reviewed only to determine whether the error

“was of such magnitude as to deny fundamental fairness”), cert. denied, ___U.S ___, 116

S.Ct. 385 (1995). Sims cannot demonstrate that the trial court’s admission of this

evidence adversely affected his trial. Additionally, such trial court errors are subject to

the harmless error analysis and will not be the basis of federal habeas relief unless the

error “had substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)(quotation omitted). In light of the

identification testimony showing Sims as the triggerman, the brief reference to the “mug

shots” did not have a substantial and injurious effect or influence on the jury verdict.

       9. Post-trial inquiry of juror

       Sims claims that his federal rights were violated when the trial court ended post-

trial inquiry of a juror and denied Sims’s motion for a new trial. Defense counsel

requested to interview the jurors following their verdict, and during the examination, one

juror testified that the jury talked freely about the fact that Sims did not take the stand and

testify in his own behalf. At this point, the trial court halted the interview.

       Sims raised this issue on direct appeal, and the Florida Supreme Court concluded

that the jury had been properly instructed not to consider Sims’s failure to testify and that

the trial court had not erred in refusing to delve further into the matter. 444 So.2d at 924-

25. “The general rule in Florida is that a juror’s testimony is relevant only if it concerns

matters which do not essentially inhere in the verdict itself.” 444 So.2d at 925 (citing

Florida cases). The Florida Supreme Court commented that a juror’s “consideration of a

                                              27
defendant’s failure to testify is not the same as considering evidence outside the record,

but is rather an example of its misunderstanding or not following the instructions of the

court.” Id. The district court agreed, and so do we.

       Although Sims contends that his Fifth, Sixth, Eighth, and Fourteenth Amendment

rights were violated, he offers nothing to support his allegations. In light of this failure

and the identification testimony showing Sims as the triggerman, Sims is entitled to no

relief on this claim. Moreover, the trial court instructed the jury that Sims had no

obligation to testify and that the State had to prove Sims’s guilt beyond a reasonable

doubt. See R. Vol. 4, p. 744. We must assume that the jury followed the instructions of

the trial court. United States v. Chandler, 996 F.2d 1073, 1088 (11th Cir. 1993)(“The jury

is presumed to follow the instructions they are given.”), cert. denied, 512 U.S. 1227

(1994).

       10. General verdicts on allegedly multiple and inconsistent counts

       Sims argues that the trial court erred in permitting the jury to return general

verdicts on allegedly multiple and inconsistent counts of first degree murder. Sims states

that the crime of murder was charged in alternative counts and that the trial court erred in

denying his motion to require the State to select and pursue only one of the two counts.

The Florida Supreme Court rejected this contention on direct appeal. 444 So.2d at 925.

The district court correctly denied this claim on the basis of Schad v. Arizona, 501 U.S.

624, 644-45 (1991), in which the Supreme Court rejected a petitioner’s contention that a

general guilty verdict that fails to differentiate between premeditated and felony murder is

                                              28
constitutionally inadequate. The jury did not need to agree on the precise theory of first

degree murder, only the offense itself. The jury’s verdict was not fundamentally flawed.

       11. Ineffective assistance of appellate counsel

       Sims claims that his appellate counsel was ineffective for failing to raise numerous

issues on appeal: (1) that the trial court committed fundamental error by repeatedly

chastising defense counsel in the jury’s presence; (2) that Sims was denied the right to be

present at his trial; (3) that the failure to require a special verdict violated Sims’s right to a

unanimous jury verdict; and (4) that requiring Sims to prove that death was not the

appropriate punishment violated his right to a reliable and non-arbitrary sentencing

determination. In addition, Sims claims his appellate counsel was ineffective for failing

(a) to ensure a complete record or file a supplemental brief, (b) to argue denial of Sims’s

right to be present at all stages of his trial, (c) to challenge the denial of the motion for

change of venue, and (d) to challenge the denial of the motion to suppress identification

testimony. Sims raised numerous claims of ineffective assistance of appellate counsel in

his state habeas motion. R. Vol. 27, Tab 1. Issues one, three, and four were not raised in

that petition. The remaining grounds were addressed and rejected by the Florida Supreme

Court. Sims v. Singletary, 622 So.2d 980 (Fla. 1993).

       A federal court must dismiss those claims or portions of claims that either (1) have

been explicitly ruled procedurally barred by the highest state court considering the claims,

Harris v. Reed, 489 U.S. 255, 261-62 (1989), or (2) are not exhausted but would clearly

be barred if returned to state court. Id. at 269-70 (O’Connor, J., concurring); Coleman v.

                                               29
Thompson, 501 U.S. 722, 735 n.1 (1991). This procedural bar applies to claims of

ineffective assistance of counsel in habeas cases. Footman v. Singletary, 978 F.2d at

1211. Thus, claims one, three, and four are procedurally barred because they were not

presented in the state courts and would be barred if they were now presented there.10

Sims cannot establish “cause and prejudice” or “actual innocence” to excuse his

procedural default. Johnson v. Singletary, 938 F.2d 1166, 1174-75 (11th Cir. 1991).

Accordingly, these claims are procedurally defaulted.

       As noted earlier, claims two and (a) through (d) were asserted by Sims in his state

habeas petition, see R. Vol. 27, Tab 1, pp. 73-83, and were rejected by the Florida

Supreme Court. 622 So.2d at 981 (“We find no other valid basis for a claim of

ineffectiveness here.”). Our review of the record demonstrates that none of the claims of

ineffective assistance of appellate counsel merit relief.11

       12. Denial of right to present a defense and have a fair trial

       Sims asserts that he was denied the right to present a defense and have a fair trial

based on the trial court’s exclusion of three documents. This claim was not, but could

have been, raised on direct appeal or in Sims’s state post-conviction motion. The failure



       10
          See Doyle v. Singletary, 655 So.2d 1120, 1121 (Fla. 1995)(ineffective
assistance of appellate counsel claims not raised in first habeas petition are procedurally
barred from being raised in a subsequent habeas petition).
       11
          The district court discussed the merits of Sims’s claims of ineffective assistance
of appellate counsel and found no merit. We defer to the district court’s findings on this
claim. ROA, Vol. 3, Tab 33, pp. 35-40.

                                              30
to raise this claim to the state courts is a procedural default that bars federal habeas

review of the claim. Wainwright v. Sykes, 433 U.S. 72 (1977). Further, Sims’s failure to

raise this claim in his Rule 3.850 motion is a procedural default for habeas purposes.

Bolender v. Singletary, 16 F.3d 1547, 1569 n. 29 (11th Cir. 1994). Accordingly, this

claim is procedurally barred.

       In conclusion, we affirm the district court’s denial of federal habeas relief on the

guilt stage issues raised by Sims. We now turn to the sentencing stage issues, upon which

the district court granted Sims relief.

       B. Penalty Stage Issues

       1. Whether errors during the guilt phase require vacating the death sentence

       Sims claims that numerous errors occurred during the guilt phase which require

vacating his death sentence. These alleged errors were ineffectiveness of counsel,

unnecessary use of shackles and excessive security measures, unreliable identification

testimony, and the prosecutor’s knowing use of perjured testimony. The Florida Supreme

Court rejected Sims’s contention on appeal from the denial of Sims’s motion for post-

conviction relief, 602 So.2d at 1253, 1258; however, the district court determined that

these alleged errors cumulatively resulted in prejudice to Sims during the sentencing

phase. The district court’s holding is erroneous.

       The district court’s reliance on the ineffective assistance of counsel at the guilt

stage claim is based upon the hypnosis issue which is foreclosed by binding precedent,

see Spaziano, and it is inconsistent with the district court’s holding that counsel was not

                                              31
ineffective at the guilt phase because the prejudice component had not been established.

ROA, Vol. 3, Tab 33, pp. 11-17. The district court’s holding as to the

shackling/excessive security measures claim is incorrect because this “claim” was never

pled by Sims. Sims raised this claim in the context of an ineffective assistance of counsel

claim, and the district court properly denied relief. Id. at pp. 8-9. Thus, the substantive

shackling claim is procedurally barred because it was never presented to the state courts,

see Wainwright v. Sykes, 433 U.S. 72 (1977), and the district court’s reliance on it to

grant sentencing stage relief is erroneous.

       The district court also relied on the unreliable hypnotically induced identification

testimony as cumulative error which prejudiced Sims. As stated previously, this claim is

barred by the non-retroactivity doctrine of Teague. Accordingly, the district court’s

reliance on this claim is misplaced.

       The final cumulative error component was the district court’s finding that the State

knowingly used perjured testimony when the prosecutor argued that Halsell’s plea

agreement included a ten year sentence which he had begun to serve at the time of the

trial knowing that Halsell had not yet been sentenced. This finding is inconsistent with

the district court’s finding that there was no Giglio violation. ROA, Vol. 3, Tab 33, p. 19.

Accordingly, the district court erred in finding cumulative guilt stage error which

prejudiced Sims during the penalty phase.

       2. Whether the Hitchcock error requires vacating the death sentence



                                              32
       Sims also alleges that there was constitutional error with regard to his sentencing

because the jury, trial judge, and the reviewing court were limited in their consideration

of mitigating evidence.12 Sims contends that a violation of Hitchcock v. Dugger, 481 U.S.

393 (1987), occurred which entitles him to penalty phase relief. The Florida Supreme

Court found Hitchcock error, but concluded that it was harmless. 602 So.2d at 1257. The

district court reached a contrary conclusion. ROA, Vol. 3, Tab 33, p. 44. We disagree

with the district court’s conclusion because it committed several legal errors in

determining that the Hitchcock error was not harmless beyond a reasonable doubt.

       As the Florida Supreme Court noted, the jury instruction was “not a model of

clarity.” 602 So.2d at 1257. In its instruction, the trial court listed the aggravating factors

which the jury could consider, see R. Vol. 5, p. 43-45, then mentioned the mitigating

circumstances. The pertinent portion of the instruction read: “The mitigating

circumstances which you may consider if established by the evidence among others are

these: . . .” Id. at 45. The trial court then listed the statutory mitigating factors for the

jury to consider. The trial court’s only reference to non-statutory mitigating factors was

the phrase “among others.” Defense counsel did present non-statutory mitigating

evidence at the sentencing hearing via testimony from a young woman with whom Sims

had lived, the woman’s mother and daughter, and a fellow inmate at the jail who testified




       12
          These specific claims were listed in Sims’s federal habeas petition as issues XI,
XII, XIII, and XV. See ROA, Vol. 2, Tab 20, pp. 106-162.

                                               33
to Sims’s attempt to counsel another inmate away from a life of crime. Id. at pp. 8-12,

13-20, 21-23, & 24-27.

       We conclude that the trial court’s instructions did not limit the jury’s consideration

of non-statutory mitigating circumstances and therefore did not constitute a Hitchcock

error. See Buchanan v. Angelone, ___ U.S. ___, ___, 118 S.Ct. 757, 761

(1998)(reiterating the principle that a “sentencer may not be precluded from considering,

and may not refuse to consider, any constitutionally relevant mitigating evidence.”).

Sims’s sentencer was not precluded from considering all relevant mitigating evidence.

The trial court instructed the jury to consider certain mitigating factors, among others.

This instruction did not preclude the jury from considering all the mitigating evidence

presented by defense counsel but, instead, instructed them to consider all the evidence

that was presented. Accordingly, there was no Hitchcock error in this case.

       Assuming arguendo that there was a Hitchcock error, the error was harmless

beyond a reasonable doubt. We employ the Brecht v. Abrahamson, 507 U.S. 619 (1993),

harmless error analysis to the Hitchcock error. See Williams v. Singletary, 114 F.3d 177,

180 (11th Cir. 1997)(“Brecht applies only at the second step of the inquiry in determining

if an already established error is harmless.”), cert. denied, 118 S.Ct. 712 (1998).

       In Booker v. Singletary, 90 F.3d 440, 442 (11th Cir. 1996), we stated:

       In Brecht, the Court held that Chapman’s [v. California, 386 U.S. 18
       (1967)] standard of “harmless beyond a reasonable doubt” was inapplicable
       to habeas corpus review. In place of Chapman, the Court substituted the
       standard established by Kotteakos v. United States, 328 U.S. 750, 66 S.Ct.
       1239, 90 L.Ed. 1557 (1946), for resolving the harmless error issue on the

                                             34
       direct review of a criminal conviction. The Kotteakos standard asks
       whether the error “had substantial and injurious effect or influence in
       determining the jury’s verdict.” By substituting Kotteakos’ standard for
       Chapman’s, the Court in Brecht made it easier for a state to show that a
       constitutional violation did not prejudice an habeas petitioner’s case.

90 F.3d at 442 (11th Cir. 1996)(citations omitted). We have held that Hitchcock errors are

“trial type” errors governed by Brecht. See e.g., Horsley v. State of Ala., 45 F.3d 1486,

1492 (11th Cir. 1995); Boldender v. Singletary, 16 F.3d 1547 (11th Cir. 1994).

       The Florida Supreme Court found that there was other non-statutory mitigating

evidence that could have been presented to the jury for their consideration, but it was not

overwhelming in light of the aggravating factors. 602 So.2d at 1257. The district court

disagreed and found that there was no evidentiary support for the allegedly “valid”

aggravating factors. The district court found that the only evidence relating to the first

factor (that Sims had previously been convicted of a violent felony) was a stipulation read

by the prosecutor which informed the jury that Sims had previously been convicted of

assault with attempt to commit robbery. The district court cites no authority for the

proposition that a stipulation is not adequate evidence. The district court found that the

second aggravating factor (that the capital felony was committed while the defendant was

engaged in the commission of the robbery) was established, but this factor alone cannot

be sufficient to support a death sentence. As to the third factor, the district court found no

evidence in the record from which the jury could find beyond a reasonable doubt that the

capital felony was committed for the purpose of avoiding or preventing a lawful arrest.



                                             35
As its basis for this finding, the district court stated that there is no evidence in the record

that the victim was a deputy sheriff.

       On the contrary, we find sufficient support in the record for this aggravating factor.

One of Sims’s co-defendants, Halsell, testified that Sims came to the motel room bleeding

and said he killed a cop. R. Vol. 2, pp. 316, 350. Baldree also testified that Sims stated

he killed a cop. R. Vol. 3, p. 437. A bystander testified that she saw a deputy draw a gun.

R. Vol. 3, p. 470. Accordingly, the district court clearly erred in finding no evidentiary

support for the valid aggravating factors.

       The district court found that in light of the other non-statutory mitigating evidence

which could have been presented, if counsel had been effective, the death sentence was

not appropriate considering the lack of evidentiary support of the valid aggravating

factors. We first observe that most of the non-statutory mitigating evidence which

Sims’s asserts was not presented actually was presented. Defense counsel presented the

testimony of a woman with whom Sims had lived and nursed while she was ill, the

woman’s mother and daughter, and a fellow inmate. The only specific information

defense counsel did not present was evidence of Sims’s troubled childhood. Sims argues

that counsel’s failure to present this evidence was ineffective assistance. We disagree.

Defense counsel stated at the Rule 3.850 hearing that Sims specifically told them not to

bother his family members. R. Vol. 13, p. 230. His attorneys explained the necessity of

mitigation to Sims, but he would not provide them any information. Counsel cannot be

deemed deficient for failing to present additional evidence of mitigation of which they

                                               36
were unaware due to Sims’s refusal to assist them in obtaining the information. The

record discloses that defense counsel performed well. Accordingly, the district court

erred in finding that Sims’s attorneys were ineffective in failing to present non-statutory

mitigating evidence at the penalty phase.

       The district court also determined that it was error for the sentencing court not to

consider the evidence of sentencing disparity between Sims and his co-defendants. This

error, according to the district court, also contributed to the substantial and injurious

effect or influence underlying the jury’s sentencing recommendation. The Florida

Supreme Court specifically held that the disparity between Sims’s sentence and the

sentences his co-defendants received is not a mitigating factor. 602 So.2d at 1257. We

reject Sims’s argument that his co-defendant’s lesser sentences constituted a mitigating

factor, since the evidence shows that Sims was the triggerman. See Marek v. Singletary,

62 F.3d 1295, 1302 (11th Cir. 1995). As elicited from counsel at oral argument before this

panel, the jury and the court knew that one of the co-defendants was only going to

receive a two-year sentence and thought the other defendant was receiving a ten-year

sentence. Thus, the court knew most of the sentence disparity facts anyway and this fact

negates Sims’s contention. Accordingly, this alleged mitigating factor was not really

mitigating after all and the district court erred in concluding that it had a substantial and

injurious effect on the jury’s sentencing determination.

       The district court then enumerated several sentencing stage errors which, in the

court’s judgment, preclude a finding that the Hitchcock error was harmless beyond a

                                              37
reasonable doubt. ROA, Tab 33, pp. 48-49.13 The first three reasons14 are a restatement

that there was a Hitchcock error. As we stated previously, there was no Hitchcock error

and even assuming that there was error, it was harmless. Thus, we disagree with the

district court’s determination that numerous guilt stage and penalty stage errors preclude a

finding that the Hitchcock error was harmless.

       First, the district court found that the trial judge and jury would not have sentenced

Sims to death or recommended a death sentence, respectively, if they had properly

weighed the aggravating factor or factors. As stated previously, the aggravating factors

were valid and supported by record evidence. Second, the district court also found that

the jury was not informed of the importance of its recommendation. The district court

cites no authority for this holding. Assuming, however, that this is a cognizable claim

under Caldwell v. Mississippi, 472 U.S. 320 (1985)15, the Teague bar would apply

       13
          The district court also enumerated four guilt stage errors which preclude a
finding that the Hitchcock error was harmless: (1) prosecutorial misconduct; (2) use of
hypnotically enhanced testimony; (3) ineffective assistance of counsel as to the
hypnotically enhanced testimony; and (4) the heightened security could have made the
death penalty vote more likely. As stated previously, none of these claims merits guilt
stage relief and, accordingly, cannot form the basis of sentencing stage relief.
       14
          These enumerated reasons are: (1) the trial judge failed to properly charge the
jury regarding nonstatutory mitigating factors; (2) the trial judge permitted the prosecutor
to make final argument which told the jury that they could only consider the statutory
mitigating factors; and (3) when the jury’s confusion concerning mitigating and
aggravating factors was made known by way of a request for a copy of the Florida statute
which set forth the factors to be considered, the trial judge failed to clear up the confusion
and recharged the jury with the same inadequate charge given previously.
       15
         In Caldwell, the Court held that the Eighth Amendment may be violated when a
prosecutor minimizes the jury’s sense of responsibility in its determination that death is

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because Caldwell announced a new rule of law which does not come within Teague’s

exception for watershed rules fundamental to the integrity of the criminal proceeding.

See Sawyer v. Smith, 497 U.S. 227, 229 (1990).

       Next, the district court found that the prosecutor made improper and prejudicial

arguments relating to the victim which had the result of inviting the jury to consider

impermissible aggravating factors. This claim is based on Booth v. Maryland, 482 U.S.

496 (1987), which was overruled in Payne v. Tennessee, 501 U.S. 808 (1991). The net

result is that victim impact statements and arguments are permissible. Thus, the district

court’s reliance on this claim is misplaced.

       Fourth, the district court found that the jury was not properly advised of the

alternative sentence of life with a mandatory minimum of twenty-five years. We are at a

loss to understand the district court’s reliance on this claim since it was never raised in the

state courts and, thus, is procedurally barred. See Wainwright v. Sykes, 433 U.S. 72

(1977).

       Fifth, the district court found that the trial court improperly considered a 1958

common law robbery conviction in aggravation when no evidentiary basis existed for the

conviction. This ignores the fact that there was another conviction supporting that

aggravating circumstance – a 1971 assault with intent to commit robbery. 602 So.2d at

1258. Accordingly, any error involving the 1958 conviction was harmless. Id.



the appropriate punishment. 472 U.S. at 340.

                                               39
       Sixth, the district court relied on the fact that the prosecutor failed to provide

evidence relating to the sentencing disparities of Sims and the co-defendants. As stated

previously, this is not a mitigating circumstance because Sims was the triggerman.

       Lastly, the district court found that trial counsel was ineffective at sentencing. The

district court concluded that the defense attorneys did not take their responsibilities at the

sentencing stage seriously. We disagree. The record discloses that defense counsel

presented non-statutory mitigating evidence at the sentencing stage. The record also

reveals that defense counsel made an effective argument at the sentencing stage. A

defense attorney has limited resources and must make the best decisions possible

regarding allocating resources based upon his or her knowledge and experience. As the

trial court noted, defense counsel did a commendable job. R. Vol. 4, p. 768.

       For the foregoing reasons, we reverse the district court’s grant of sentencing stage

relief and remand this case with directions that the district court reinstate the death

penalty. We affirm the district court’s denial of habeas relief as to the guilt stage errors.



       AFFIRMED in part, REVERSED in part, and REMANDED.




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