                                                                    [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                  FILED
                                                        U.S. COURT OF APPEALS
                         ________________________         ELEVENTH CIRCUIT
                                                               10/29/99
                                                            THOMAS K. KAHN
                                No. 98-3367                     CLERK
                         ________________________

                         D. C. Docket No. 89-CV-1638


WAYNE TOMPKINS,

                                                       Petitioner-Appellant,

                                     versus

MICHAEL W. MOORE, Secretary,
Florida Department of Corrections,

                                                       Respondent-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________
                              (October 29, 1999)


Before COX, CARNES and HULL, Circuit Judges.

CARNES, Circuit Judge:
      Wayne Tompkins was convicted and sentenced to death for the sexual

battery and murder of Lisa DeCarr, age fifteen, who was the daughter of

Tompkins’ girlfriend. The facts concerning the crime and the evidence against

Tompkins are set out in the Florida Supreme Court’s decision affirming on direct

appeal his conviction and death sentence. See Tompkins v. State, 502 So.2d 415

(Fla. 1986). After conducting an evidentiary hearing, the Florida trial court denied

Tompkins’ motion for post-conviction relief under Florida Rule of Criminal

Procedure 3.850. The Florida Supreme Court affirmed that denial, and it also

denied Tompkins’ state habeas petition in the same opinion. See Tompkins v.

Dugger, 549 So.2d 1370 (Fla. 1989).

      After exhausting his state remedies, Tompkins filed a petition for federal

habeas corpus relief pursuant to 28 U.S.C. § 2254. The United States District

Court for the Middle District of Florida denied that petition in a thorough,

unpublished opinion. See Tompkins v. Singletary, No. 89-1638-CIV-T-21B (M.D.

Fla. April 17, 1998). This is Tompkins’ appeal from that denial.

                  THE CERTIFICATE OF PROBABLE CAUSE

      After the district court denied his habeas petition, Tompkins filed an

application for a certificate permitting him to appeal. Because the federal habeas

petition had been filed before the April 24, 1996 effective date of the Anti-


                                          2
terrorism and Effective Death Penalty Act (“AEDPA”), a certificate of probable

cause under pre-AEDPA law, instead of a certificate of appealability under post-

AEDPA law, see 28 U.S.C. § 2253(c), was the proper procedural route for

permission to appeal. See Hardwick v. Singletary, 122 F.3d 935 (11th Cir.),

modified on rehearing, 126 F.3d 1312 (11th Cir. 1997). The district court

recognized as much, and it also recognized that in issuing a certificate of probable

cause – unlike a certificate of appealability – it need not specify the issues for

which the necessary showing to permit the appeal had been made. Nonetheless,

the court decided “in view of Petitioner’s numerous claims, [to] specify the issues

so certified.” The court issued a certificate of probable cause only as to two claims

in their entirety and parts of two other claims. The remaining 25 or so other claims

Tompkins had raised in the district court were left out of the certificate of probable

cause.

         Tompkins wants us to review the district court’s denial of relief as to far

more claims than the certificate of probable cause specifies; indeed, he wants

review of most of the many claims he raised in his habeas petition. The problem is

that Tompkins did not even attempt to broaden the certificate of probable cause to

cover all those other claims. He could have filed an application in this Court to do




                                             3
that, but he did not. The reason, Tompkins explains, is that he did not think it was

necessary to do so in view of this Court’s Hardwick decision.

      In the Hardwick case, the district court had mistakenly believed the habeas

case before it was governed by AEDPA, including the requirement that a

certificate of appealability specify the issues as to which an appeal is being

permitted. So, the district court issued a certificate of appealability specifying some

but not all of the issues the petitioner wanted to appeal. This Court determined that

the case was actually governed by pre-AEDPA law, see Hardwick, 122 F.3d at

936, which included provision for issuance of a certificate of probable cause to

appeal that need not – and almost never did – specify the issues as to which an

appeal was permitted; certificates of probable cause to appeal were almost always

issued as to cases considered as a whole. What we decided to do in that particular

instance was to construe the order granting a certificate of appealability as to some

but not all issues as a certificate of probable cause as to all the issues and let the

whole appeal go forward on that basis. See Hardwick 126 F.3d at 1313. Tompkins

says Hardwick controls the present situation.

      We do not think so. This is not a case, like Hardwick, where the district

court judge was laboring under the mistaken belief that he was required to grant a

certificate specifying issues worthy of appeal and was unaware he could grant a


                                            4
general certificate covering the whole case without making an issue-by-issue

determination. Judge Nimmons, who presided over this case in the district court,

made it clear in his order granting a certificate of probable cause to appeal that he

knew exactly what was going on. He said in that order that this was a pre-AEDPA

case governed by the certificate of probable cause to appeal rules, and that under

those rules he was not required to specify which issues were worthy of being

reviewed on appeal. Fully aware that he was not required to specify issues in the

certificate of probable cause to appeal, Judge Nimmons nonetheless chose to do so

in order to assist this Court and the parties in shaping up the appeal.

      It is certainly unusual for a certificate of probable cause to appeal to specify

and limit the issues as to which the appeal is being permitted. Indeed, that is one

of the differences between the old certificate of probable cause to appeal and the

new certificate of appealability provision in AEDPA: the new provision requires

specification of issues, see 28 U.S.C. § 2255(c)(3). But unusual does not equate

with impermissible. On at least two occasions, we have permitted district courts to

specify issues covered by certificates of probable cause to appeal, and we have

honored the resulting limitation on the scope of the appeal. See Clisby v. Alabama,

52 F.3d 905, 906 (11th Cir. 1995); Clark v. Dugger, 901 F.2d 908, 910 (11th Cir.

1990). Tompkins points out that both of those decisions involved appeals from the


                                           5
denial of relief in second petition cases, but nothing in either the Clisby or the

Clark opinion hints at such a distinction, nor is there any persuasive reason for

distinguishing first from second petition cases insofar as certificates of probable

cause to appeal are concerned.

      But what about the more recent Hardwick case and that panel’s decision to

treat a mistaken certificate of appealability on fewer than all of the issues as a

certificate of probable cause to appeal all the issues? There are two possibilities.

One is that Hardwick is distinguishable from Clisby and Clark, and in turn from

the present case, on the basis that Hardwick involved mistaken district court action,

not action taken with eyes wide open. The second possibility is that Hardwick is

not distinguishable from Clisby and Clark on that basis (or any other we can think

of), which means that we are duty bound to follow the decisions in the earlier two

cases instead of the more recent one in Hardwick. See United States v. Steele, 147

F.3d 1316, 1318 (11th Cir. 1998)(en banc)(“[I]t is the firmly established rule of this

Circuit that each succeeding panel is bound by the holding of the first panel to

address an issue of law, unless and until that holding is overruled en banc, or by

the Supreme Court.”) (quoting United States v. Hogan, 986 F.2d 1364, 1369 (11th

Cir. 1993)); United States v. Dailey, 24 F.3d 1323, 1327 (11th Cir. 1994)(“When

there is no method for reconciling an intracircuit conflict of authority, the earliest


                                           6
panel opinion resolving the issue in question binds this circuit until the court

resolves the issue en banc.”)(internal quotation marks and citation omitted). Either

way, the Hardwick decision cannot rescue Tompkins from his predicament. The

district court issued him a limited certificate of probable cause to appeal, and he

failed to apply to this Court to have it broadened.

        We would be fully justified in limiting our review to those issues specified

in the certificate issued by the district court. The only reason we are not limiting

our review in that manner is the Hardwick decision did engender some confusion,

and we cannot say Tompkins’ reliance upon it was entirely unjustified. So, we will

review the issues argued in Tompkins’ brief in the same fashion and to the same

extent as if the district court had not limited the certificate of probable cause to

appeal. We will review all of them.1


        1
          To say that we will review all of the issues Tompkins has raised in his brief is not to say that
we will write to each one. All of them were discussed at some length by the district court, except
Tompkins’ contention that the district court should have ordered the grand jury proceedings
transcribed, and we find no abuse of discretion in its declining to do so. The issues we do not write
more about merit no further discussion here beyond the statement that we agree with the district
court that the claims to which those issues are connected do not provide a basis for federal habeas
relief in this case.

        The issues on which we affirm the district court without further elaboration are those
involving the following claims: denial of right to present defense and confront witnesses; Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), violation; ineffective assistance of appellate counsel;
Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199 (1964), violation; unreliable in-court
identification; misinformed jury and judge; improper influences on the jury; improper argument and
instruction error at the sentencing stage; and failure of the district court to order the grand jury
proceedings transcribed.

                                                    7
      But let this opinion serve as clear notice to any other habeas petitioners who

have been granted limited certificates of probable cause to appeal. The limitations

contained in those certificates will be honored to the same extent that the

limitations in certificates of appealability issued in AEDPA-covered cases are. It is

not enough simply to file a brief addressing all of the issues for which review is

sought. See Murray v. United States, 145 F.3d 1249, 1250 - 51(11th Cir. 1998).

Issues not covered in the certificate will not be considered. See id. The only way a

habeas petitioner may raise on appeal issues outside those specified by the district

court in the certificate is by having the court of appeals expand the certificate to

include those issues. See generally Hunter v. United States, 101 F.3d 1565, 1575

(11th Cir. 1996)(en banc)(“Under the plain language of the rule, an applicant for the

writ gets two bites at the appeal certificate apple: one before the district judge, and

if that one is unsuccessful, he gets a second one before a circuit judge.”). An

application to expand the certificate must be filed promptly, well before the

opening brief is due. Arguments in a brief addressing issues not covered in the

certificate, including any expansion granted by the court of appeals, will not be

considered as a timely application for expansion of the certificate; those issues

simply will not be reviewed. In other words, the same rules that apply to




                                           8
certificates of appealability will henceforth be applied to certificates of probable

cause to appeal that are limited to specified issues.2

                  THE DENIAL OF AN EVIDENTIARY HEARING

       Tompkins received an evidentiary hearing in state court on his Rule 3.850

petition, which raised much the same issues as he raised in his later federal habeas

petition. The district court denied Tompkins an evidentiary hearing so he could

present additional evidence in federal court, because he failed to show cause and

prejudice for not presenting that evidence in the state court proceeding, a showing

required under Keeney v. Tomayo-Reyes, 504 U.S. 1 (1992), 112 S.Ct. 1715

(1992). Such a showing should not have been required of him, Tompkins argues,

because in his view Keeney’s cause and prejudice test is not applicable where the

state court held an evidentiary hearing. That view is incorrect.

       Keeney itself involved a case in which an evidentiary hearing was denied in

federal court after one had been held in state court. See id. at 4, 112 S.Ct. at 1716

(“After a hearing, the state court dismissed respondent’s petition ...”) Thus, the

very decision announcing that the cause and prejudice test is applicable where the

       2
         We realize that as time goes on issues concerning certificates of probable cause to appeal
will fade away, because there will be fewer and fewer appeals in which the habeas petition was filed
before AEDPA’s April 24, 1996 effective date. But there are now, and there will be arising on
appeal in the near future, some more certificate of probable cause cases. We speak on the subject
today for the benefit of the attorneys in those remaining cases, whatever their diminishing numbers
may be.

                                                 9
federal petitioner had failed to develop material facts in a state court proceeding is

itself authority for the proposition that the test applies when there has been an

evidentiary hearing in state court. The Keeney rule has been applied many times in

this context. See, e.g., Williams v. Turpin, 87 F.3d 1204, 1208 (11th Cir. 1996);

Mills v. Singletary, 63 F.3d 999, 1022 (11th Cir. 1995); Mathis v. Zant, 975 F.2d

1493, 1497 (11th Cir. 1992). The district court properly applied the Keeney rule

with its cause and prejudice test, and the court did not err in concluding that

Tompkins had failed to proffer adequate evidence of cause and prejudice ( or

actual innocence, which is an exception to the cause and prejudice requirement).

           THE GUILT STAGE INEFFECTIVE ASSISTANCE CLAIM

      Tompkins contends that the performance of his trial counsel, Daniel

Hernandez, was ineffective at the guilt stage. To prevail on that contention

Tompkins must persuade us both that counsel’s performance at the guilt stage was

“outside the wide range of professionally competent assistance,” Strickland v.

Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066 (1984), and also that there

is a “reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2052. A

“reasonable probability” is one “sufficient to undermine confidence in the




                                          10
outcome,” id., which here is the jury’s verdict convicting Tompkins of the capital

offense. We are not persuaded that either requirement has been met.

      Tompkins’ guilt stage ineffective assistance arguments are best viewed

against a background of the evidence the state presented against him. That

evidence is well summarized in the Florida Supreme Court’s opinion affirming his

conviction and sentence on direct appeal, and for the convenience of the reader we

set forth that summary here:

           The victim, Lisa DeCarr, aged 15, disappeared from her home in
      Tampa on March 24, 1983. In June 1984, the victim's skeletal remains
      were found in a shallow grave under the house along with her pink
      bathrobe and jewelry. Based upon a ligature (apparently the sash of
      her bathrobe) that was found tied tightly around her neck bones, the
      medical examiner determined that Lisa had been strangled to death. In
      September 1984, Wayne Tompkins, the victim's mother's boyfriend,
      was charged with the murder.

             At trial, the state's three key witnesses testified as follows.
      Barbara DeCarr, the victim's mother, testified that she left the house
      on the morning of March 24, 1983, at approximately 9 a.m., leaving
      Lisa alone in the house. Lisa was dressed in her pink bathrobe.
      Barbara met Wayne Tompkins at his mother's house a few blocks
      away. Some time that morning, she sent Tompkins back to her house
      to get some newspapers for packing. When Tompkins returned, he
      told Barbara that Lisa was watching television in her robe. Tompkins
      then left his mother's house again, and Barbara did not see or speak to
      him again until approximately 3 o'clock that afternoon. At that time,
      Tompkins told Barbara that Lisa had run away. He said the last time
      he saw Lisa, she was going to the store and was wearing jeans and a
      blouse. Barbara returned to the Osborne Street house where she found
      Lisa's pocketbook and robe missing but not the clothes described by
      Tompkins. Barbara then called the police.

                                        11
               The state's next witness, Kathy Stevens, a close friend of the
       victim, testified that she had gone to Lisa DeCarr's house at
       approximately 9 a.m. on the morning of March 24, 1983. After
       hearing a loud crash, Stevens opened the front door and saw Lisa on
       the couch struggling and hitting Tompkins who was on top of her
       attempting to remove her clothing. Lisa asked her to call the police. At
       that point, Stevens left the house but did not call the police. When
       Stevens returned later to retrieve her purse, Tompkins answered the
       door and told her that Lisa had left with her mother. Stevens also
       testified that Tompkins had made sexual advances towards Lisa on
       two prior occasions.

              Kenneth Turco, the final key state's witness, testified that
       Tompkins confided details of the murder to him while they were
       cellmates in June 1985. Turco testified that Tompkins told him that
       Lisa was on the sofa when he returned to the house to get some
       newspapers for packing. When Tompkins tried to force himself on
       her, Lisa kicked him in the groin. Tompkins then strangled her and
       buried her under the house along with her pocketbook and some
       clothing (jeans and a top) to make it appear as if she had run away.

Tompkins v. State, 502 So.2d at 417 - 18.

       The thrust of Tompkins’ guilt stage ineffective assistance attack centers

around his argument that trial counsel did not do enough to show that Lisa DeCarr

was alive after the morning of March 24, 1983, the morning Tompkins was seen

struggling with her on the couch in the house they shared with Lisa’s mother, who

was Tompkins’ girlfriend. If she was alive after that morning, Tompkins argues,

someone else must have killed her, and besides, the State would have failed to

prove he had killed her before 5:00 p.m. that day, a requirement it undertook in the

bill of particulars.

                                         12
      The main thing trial counsel could and should have done to show that Lisa

DeCarr was alive after the morning in question, Tompkins says, is present

evidence that a young woman named Wendy Chancey had seen her alive later in

the day, had seen her getting into a vehicle, and had seen her wearing clothes

similar in appearance to those Tompkins told the police Lisa had been wearing

when she left the house unharmed that morning. Before trial, counsel learned from

a police report that Chancey had told the police those things during an interview,

and he considered using her as a witness. He decided not to do so because he

believed she would not have made a good witness.

      At the state court evidentiary hearing, Tompkins tried unsuccessfully to

show that Wendy Chancey would have been a useful witness for the defense. The

evidence at that hearing showed that when Chancey was located and interviewed

twice by collateral counsel’s investigator, that she had no recollection at all of

having seen Lisa on the day in question, and that she could not even identify a

photograph of Lisa. The investigator who interviewed her included in his report

this observation and recommendation:

             This writer believes that Wendy Chancey is a troubled child
      who has been through many traumatic experiences, some of which
      may involve narcotics. It could well be that Wendy Chancey’s past
      and possibly some unknown medical condition affects her ability of
      recall. Further attempts to interview this female are not recommended
      by this investigator.

                                          13
There is no evidence in the record that at the time of the trial Wendy Chancey

remembered anything about the events on the day in question, or that she even

remembered Lisa DeCarr.

      Tompkins faults trial counsel for not calling Wendy Chancey, anyway. He

says she could have identified the statements referred to in the police reports as

ones she had made, and she could have said that those statements were accurate

when made even though she has no recollection of the events they describe. The

argument is that testimony from Chancey – if she gave it – would have been

enough to get those statements into evidence as prior recollections recorded. No, it

would not have been enough, even assuming Chancey could have testified to the

accuracy of the statements she could no longer recall. As the district court

explained, under Florida law a prior recollection recorded is admissible only if the

recorded statement is one that was recorded by the witness herself. See Fla. Stat.

§90.893(5) (“A memorandum or record ... shown to have been made by the

witness...”); Heindreth v. State, 483 So.2d 768, 769 (Fla. 1st DCA 1986)(police

report’s synopsis of a witness’ statements to an officer not admissible as prior

recollection recorded).

      Tompkins has not shown that there is any basis for the admission of that part

of the police report containing the statements Wendy Chancey supposedly made


                                         14
but can no longer recall. Of course, we will not hold an attorney ineffective for

failing to offer inadmissible evidence.3 We also note, as did the district court, that

if trial counsel had called Wendy Chancey or any other witness to testify at the

guilt stage, under Florida law he would have forfeited his right to both open and

close the arguments before the jury.

               THE PENALTY STAGE INEFFECTIVENESS CLAIM

       At the penalty stage, in addition to relying upon the evidence that had been

presented during the guilt stage, the State also proved that Tompkins had been

convicted of two separate, knife-point abductions and rapes of convenience store

clerks. Both of those other crimes occurred after Tompkins sexually assaulted and

murdered Lisa DeCarr on March 24, 1983, but before her body was found in June

of 1984. The first of those two rapes occurred on April 7, 1984, and the second on

May 30, 1984. Tompkins pled guilty to armed robbery, kidnaping, and sexual

battery in connection with the first rape, and he pled no contest to kidnaping and

sexual battery in connection with the second rape. The prosecutor accurately

argued to the jury that Tompkins had been convicted of five violent felonies prior

to his conviction for the capital offense in the present case, saying, “That is his

       3
        Tompkins makes essentially the same argument about several other pieces of evidence he
contends trial counsel should have gotten in at the guilt stage. As to each and all of that evidence,
it was either not admissible under any valid theory, or there is no reasonable probability of a
different result had it been admitted, or both.

                                                15
violent past right there: two rapes, two kidnapings, and an armed robbery, five

previous violent felony convictions.” The prosecutor also argued that “these

crimes he committed in Pasco County when he was raping these two other women

on April 7, 1984, and May 30, 1984, Lisa DeCarr still had not been found. She

was still buried under that house when this man unleashed his violence on these

two other women in Pasco County.” The crime was especially heinous, atrocious

and cruel, the prosecutor urged, because as the fifteen-year-old victim resisted

Tompkins’ sexual advances and struggled against him, Tompkins strangled her to

death with the sash of her bathrobe. He emphasized to the jury that Lisa DeCarr

did not die instantly but instead had her life strangled out of her and must have

realized before losing consciousness that she was going to die.

      At the beginning of the penalty phase, trial counsel had informed the court

that Tompkins had just decided that no mitigating circumstance evidence should be

presented, because he did not want to spend the rest of his life in prison. Counsel

did not want to forego presenting mitigating circumstances and asked the court for

a recess so he would have an opportunity to talk his client into changing his mind.

The trial court directed counsel to ignore his client’s instructions and to present

mitigating circumstance evidence.




                                          16
      Counsel called as mitigation witnesses Tompkins’ two older sisters, and also

a brother-in-law who had known him for fifteen years. The sisters testified that

Tompkins was shy, had never displayed any violent behavior, had never hurt

anyone, did not use obscene language, and had always worked and supported

himself up until the time of his arrest. The brother-in-law testified he had known

Tompkins for fifteen years, and that Tompkins had worked for him for four years

in a roofing and construction business. He described Tompkins as a good

employee who was always on time, good to follow orders, and eager to learn. He

had not had any complaints from any customers about Tompkins, who never got

into any arguments or fights with anyone.

      In his closing argument, defense counsel pointed out that Tompkins had

admitted his guilt for the two other crimes for which he had been convicted, and

that no one had been seriously injured or killed in them. He also argued

Tompkins’ age as a statutory mitigating circumstance, and he discussed the non-

statutory mitigating circumstances about which the defense witnesses had testified.

He urged the jury to spare Tompkins’ life.

      The jury returned an advisory verdict unanimously recommending the death

sentence. The trial court found three statutory aggravating circumstances: 1)

previous convictions for felonies involving the use or threat of violence to the


                                         17
person; 2) the murder was committed while the defendant was engaged in an

attempt to commit sexual battery; and, 3) the murder was especially heinous,

atrocious, or cruel. The court found one statutory mitigating circumstance: the

defendant’s age (twenty-six years old) at the time of the crime.4 The trial court

sentenced Tompkins to death.

       Tompkins contends that trial counsel was ineffective at the penalty phase

because he failed to present additional mitigating circumstance evidence. The state

trial court conducted an evidentiary hearing on this claim, and although concluding

that counsel’s performance had been deficient, the court nonetheless rejected the

claim because Tompkins had failed to establish prejudice, as required under the

Strickland decision. On appeal, the Florida Supreme Court agreed with both

aspects of the trial court’s ruling. It found that counsel had been deficient because

he failed to present some available mitigating circumstance evidence, but it also

concluded that “this evidence would not have affected the penalty in light of the

crime and the nature of the aggravating circumstances.” See 549 So.2d at 1373.

After conducting a de novo review, the district court agreed that Tompkins had

failed to establish prejudice but found it unnecessary to determine whether or not



       4
        The district court observed that “the finding of mitigation because of his age would seem
extraordinarily generous.”

                                              18
trial counsel’s performance had been outside the wide range of reasonable

professional assistance. We follow the same path as the district court.

      Under the prejudice prong of Strickland, “[i]t is not enough for the defendant

to show that the error had some conceivable effect on the outcome of the

proceeding.” 466 U.S. at 693, 104 S.Ct. at 2067. Instead, “the question is whether

there is a reasonable probability that, absent the errors, the sentencer ... would have

concluded that the balance of aggravating and mitigating circumstances did not

warrant death.” Id. at 695, 104 S.Ct. at 2069. A “reasonable probability” of a

different result here, as in regard to the guilt stage, is one sufficient to undermine

our confidence in the outcome. See id. at 694, 104 S.Ct. at 2052. That means

Tompkins must convince us that if the additional mitigating circumstance evidence

in question had been presented, “there is a reasonable probability that the balance

of aggravating and mitigating circumstances would have been different.” Horsley

v. Alabama, 45 F.3d 1486, 1493 (11th Cir. 1995); accord Weeks v. Jones, 26 F.3d

1030, 1042 (11th Cir. 1994) (“[T]he petitioner must show ... there is a reasonable

probability that the sentencer would have weighed the balance of aggravating and

mitigating factors to find that the circumstances did not warrant the death

penalty.”) (quoting Bush v. Singletary, 988 F.2d 1082, 1090 (11th Cir. 1993) (per

curiam)). In order to decide this issue we look at the mitigating circumstance


                                           19
evidence that was not presented, along with that which was, and consider the

totality of it against the aggravating circumstances that were found.

       We have already set out the mitigating circumstance evidence that trial

counsel did present at the penalty stage, so we turn now to the additional evidence

which Tompkins contends should have been presented. It is primarily of three

categories. The first category concerns physical abuse Tompkins suffered as a

child. He was not abused by his parents, but by a man in the foster family with

which Tompkins lived for several years until he was sixteen years old.5 Tompkins

told a number of family members and friends that he was treated unfairly by his

foster father and was whipped and beaten by him.6

       Evidence of physical abuse while a youth is admissible at sentencing, but

Tompkins was twenty-six years old when he committed this capital offense. We

have previously held that at least where there are significant aggravating

circumstances and the petitioner was not young at the time of the capital offense,

       5
       According to an affidavit from Tompkins’ brother-in-law, Tompkins lived in the foster
home from age 9 to age 16. Dr. Fleming’s report said he lived there from age 7 to 16.

        Although Tompkins’ mother was far from an ideal parent, there is no suggestion she or his
father ever physically abused him. Tompkins had good feelings towards both of them, and the only
physical abuse he reportedly suffered was at the hands of Mr. Calhoun, the foster father.
       6
         There is no evidence in the record that Tompkins ever said that Mr. Calhoun, the foster
father, or anyone else, had actually sexually abused him. Two people did say Tompkins told them
that Calhoun had unsuccessfully attempted to do so, and another person said that Tompkins had told
her his foster brother had attempted to do so, also. See also n.10, infra.

                                               20
“evidence of a deprived and abusive childhood is entitled to little, if any,

mitigating weight.” Francis v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990)

(petitioner was thirty-one years old at the time of the capital offense); accord, Mills

v. Singletary, 63 F.3d 999, 1025 (11th Cir. 1995) (“We note that evidence of Mills’

childhood environment likely would have carried little weight in light of the fact

that Mills was twenty-six when he committed the crime.”). Bolender v. Singletary,

16 F.3d 1547, 1561 (11th Cir. 1994) (same holding where petitioner was twenty-

seven years old at the time of the capital offense).

      The second category of mitigating circumstance evidence Tompkins

contends his counsel should have presented is evidence of substance abuse. The

evidence that Tompkins had a substance abuse problem is thin, consisting almost

entirely of his own statements to Dr. Patricia Fleming, the psychologist who

testified as his expert witness on mental state issues in the Rule 3.850 proceeding.

Despite a professed awareness that, in her words, “anybody that is facing

execution has every motivation to lie,” Dr. Fleming believed Tompkins when he

told her that he had taken drugs in the past and had ended up drinking beer and

hard liquor in large quantities. Indeed, she wrote in her report that Tompkins

began drinking at age seventeen and his alcohol consumption had increased until at

the time of his arrest he was drinking one-half gallon of whiskey and one-half case


                                          21
of beer every day, which resulted in black outs, memory loss, and related

problems.

       Tompkins’ self-serving statements to Dr. Fleming regarding the enormous

quantity of alcohol he consumed each day, and the results of it, were contradicted

by the affidavits and evidentiary hearing testimony on his behalf by nine family

members and close friends, people who had observed him closely at work and at

home over the years.7 Their sworn accounts provide a detailed description of

Tompkins’ personality and behavior, and although there is some reference in those

accounts Tompkins’ drinking, none of them indicate that he had a serious

substance abuse or alcohol problem, or that he acted as though he did. Instead,

with almost monotonous consistency those who knew Tompkins best described

him as an industrious, dependable man, a good worker and provider who earned

enough money as a roofer to buy presents for others and to regularly send his

mother money. They tell how Tompkins was responsible about all of his

obligations, kind, considerate, and caring, and how he was a stable influence on

the children he was around. In short, the affidavit and evidentiary hearing

testimony of nine people close to Tompkins indicate that he was anything but a



       7
         Nine family members and friends signed affidavits on Tompkins’ behalf, and five of those
affiants also testified as witnesses for him at the Rule 3.850 hearing.

                                               22
hopeless alcoholic or drug abuser, and foreclose any realistic possibility that he

suffered from a serious substance abuse problem.

       The opinion of a medical expert that a defendant was intoxicated with

alcohol or drugs at the time of the capital offense is unreliable and of little use as

mitigating circumstances evidence when it is predicated solely upon the

defendant’s own self-serving statements,8 especially when other evidence is

inconsistent with those statements. See Duren v. Hopper, 161 F.3d 655, 662 (11th

Cir. 1998). A psychological defense strategy at sentencing is unlikely to succeed

where it is inconsistent with the defendant’s own behavior and conduct. See

Weeks v. Jones, 26 F.3d at 1042; Bush v. Singletary, 988 F.2d at 1093. Moreover,

even when there is a factual basis for it, a showing of alcohol and drug abuse is a

two-edged sword which can harm a capital defendant as easily as it can help him at

sentencing. See Waldrop v. Jones, 77 F.3d 1308, 1313 (11th Cir. 1996).

       The third category of mitigating circumstance evidence Tompkins says that

counsel should have presented at sentencing is the testimony of Dr. Fleming. She

submitted a report in connection with the Rule 3.850 proceeding and testified at the



       8
        Tompkins did not tell Dr. Fleming, or anyone else, that he was under the influence of drugs
or alcohol at the time he murdered Lisa DeCarr. Instead, he adamantly insisted that he was
completely innocent. Tompkins did tell Dr. Fleming, however, that he had a long standing problem
with alcohol and that “prior to his arrest” – which was eighteen months after the crime – he was
drinking a huge quantity of alcohol each day.

                                               23
evidentiary hearing held during that proceeding. We have already discussed her

factually unsupported conclusion that Tompkins had a serious alcohol or other

substance abuse problem.

       Dr. Fleming also found that Tompkins was “in the borderline of mental

functioning,” which is the terminology psychologists apply to a person who is

below average intelligence but not mentally retarded.9 According to the tests Dr.

Fleming gave Tompkins, he had a verbal IQ of 86, a performance IQ of 75, and a

full scale IQ of 79. The range for even mild mental retardation is an IQ of from

50-55 to approximately 70. See American Psychiatric Ass’n, Diagnostic and

Statistical Manual of Mental Disorders 40 (4th ed. 1994). Tompkins’ scores were

well above that range, but Dr. Fleming says the tests she gave him revealed signs

of brain damage which “suggests that he’s significantly and seriously impaired in

higher levels of brain functioning,” and “[h]e becomes confused easily.” Dr.

Fleming admitted under cross-examination that a CAT scan is a better method for

detecting brain damage than the tests she used, but no CAT scan was given

Tompkins. She also said Tompkins had suffered emotional deprivations because




       9
          Dr. Fleming used the term “borderline of mental functioning,” which she did not
differentiate from “borderline intellectual functioning.” The latter term is generally defined as
describing someone with an IQ from 71 - 84. See American Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 45 (4th ed. 1994).

                                              24
he was separated while growing up from his natural parents, both of whom he

loved very much.

      Dr. Fleming insisted that Tompkins was not violent, but was himself a

victim. She clung to that opinion even though Tompkins admitted to her that he

had raped the two women in Pasco County at knife point. Dr. Fleming refused to

acknowledge that those two crimes were actually violent, even though Tompkins

told her he had held the knife to one victim’s neck. When asked on cross-

examination if she would not agree that a man who had stuck a knife to a woman’s

neck and raped her is a violent individual, Dr. Fleming paused for five seconds,

and then would only say: “that was a violent act, depending on how you define

violence.” Throughout her testimony she adamantly refused to say that a man who

would commit two rapes at knife point was a violent man. Nor would she concede

that Tompkins would be especially dangerous if he was out on the street again.

Asked if Tompkins, who had admitted two rapes and had also been convicted of

sexual battery and murder or a fifteen-year old girl, could be dangerous in the

future, Dr. Fleming said: “He has that capacity, as does everybody in this room.”

Dr. Fleming mischaracterized some of the statements in the affidavits that had been




                                         25
presented on Tompkins’ behalf in a way that made them more supportive of her

opinions about him.10

       Dr. Fleming also indicated in her report that she believed Tompkins was

innocent, stating: “Mr. Tompkins’ emphatic denial of involvement in the death is

convincing.” She claimed to have read the trial record and even stated that the

circumstances of Lisa DeCarr’s disappearance were sufficiently vague that there

was some doubt about whether she was even dead. Dr. Fleming’s opinion that Lisa

DeCarr might not even be dead discredits her, because there was overwhelming

evidence that the skeletal remains found in the shallow grave beneath Lisa’ s house

were those of Lisa. See pages 29 - 36, infra.

       There is no real possibility that a jury would have been swayed toward a life

sentence by anything she said. Dr. Fleming is palpably biased. She accepted

everything Tompkins told her as the gospel, including the fact that the jury had

wrongfully convicted him -- a belief the jury itself was unlikely to embrace. Her

unwillingness to concede that the kidnapings and rapes Tompkins admitted


       10
          For example, Dr. Fleming’s report categorically states: “Jerry Behringer, Wayne’s brother-
in-law, also reported in an affidavit that Wayne had told him of sexual molestation by Mr. Calhoun.”
Mr. Calhoun was the father in the foster family with whom Tompkins had lived for a number of
years. Although Behringer’s affidavit says Tompkins had told him that Mr. Calhoun had beaten
him, it does not say Tompkins told Behringer that Calhoun had sexually assaulted him, only that
Behringer had gotten that impression. None of the affidavits says Tompkins reported that Calhoun
or anyone else had sexually assaulted him, and Tompkins apparently never told Dr. Fleming that,
either.

                                                26
committing at knife point are violent crimes shows the depth of her bias. Dr.

Fleming saw Tompkins, a man who had been convicted of a total of six violent

felonies involving sexual assaults on three different women as a non-violent victim

himself. She described him as a “perpetual victim.” We are confident the jury

would have either totally rejected her testimony and opinions or given them very

little weight.

       We have considered all of the mitigating circumstance evidence Tompkins

says should have been presented at the sentence stage, along with that which

actually was presented.11 But weighing against it are multiple, strong aggravating

circumstances. The weight of those aggravating circumstances overwhelms the

mitigating circumstance evidence that was and could have been presented. We

conclude in this case, as the Supreme Court concluded in the Strickland case, that:

“Given the overwhelming aggravating factors, there is no reasonable probability

that the omitted evidence would have changed the conclusion that the aggravating

circumstances outweighed the mitigating circumstances and, hence, the sentence

imposed.” 466 U.S. at 700, 104 S.Ct. at 2071.


       11
         Among the other mitigating circumstance evidence Tompkins says should have been
offered is the following: while a child he had to have his stomach pumped after he accidentally
drank bleach and gasoline, respectively, on two separate occasions; he choked on a marble once and
turned blue before it was dislodged; when seventeen-years old he was struck by lightening while
using the telephone; and, he fell off of roofs four time during his career as a roofer. Dr. Fleming
considered those events as corroborating her diagnosis of brain damage.

                                               27
                               THE GIGLIO CLAIM

      Tompkins contends that at his trial the State “allowed the presentation of

outright false testimony through the medical examiner about identifying Lisa with

dental records,” in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763

(1972). In order to prevail with a Giglio claim, a petitioner must establish that the

prosecutor “knowingly used perjured testimony, or failed to correct what he

subsequently learned was false testimony,” and that the falsehood was material.

United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995). For Giglio purposes,

“the falsehood is deemed to be material ‘if there is any reasonable likelihood that

the false testimony could have affected the judgment of the jury.’” Id., (quoting

United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397 (1976)(emphasis

added)).

      Tompkins has failed to establish his Giglio claim concerning the medical

examiner’s testimony about whether dental records were used to identify the

skeleton as that of the victim. Putting aside the absence of proof that the

prosecution knew any more than defense counsel about whether dental records

were used to identify the remains, Tompkins has failed to meet the threshold

requirement that he show false testimony was used. The context of the claim is

that after Tompkins was seen on March 24, 1983 struggling with Lisa DeCarr on


                                          28
the sofa in her mother’s house, where Tompkins stayed, no body was found until

June 5, 1984. On that date, after Lisa had been missing for fourteen-and-a-half

months, skeletal remains were found under that same house. Notwithstanding

overwhelming evidence that the skeletal remains were those of Lisa DeCarr, the

premise of Tompkins’ Giglio claim concerning the medical examiner’s testimony

is that but for the false testimony about dental records there could have been a

reasonable doubt that the skeletal remains were those of Lisa DeCarr.

      The dental records testimony that Tompkins characterizes as false was given

by Dr. Diggs, the Associate Medical Examiner for Hillsborough County. Dr.

Diggs, a medical doctor and qualified pathologist, went to the site of the shallow

grave when it was discovered on June 5, 1984, assisted in the removal of the

skeletal remains, and performed the autopsy. He was able to identify the remains

as those of a female in her midteens and Lisa DeCarr had been a fifteen-year old

female.

      Dr. Diggs testified that the top front teeth in the skull had an unusual

formation: one tooth was recessed behind the other front teeth, an anomaly which

is called an occluded or impacted tooth. He described for the jury the clothing

found on the skeleton and the jewelry found with it. Lisa DeCarr’s mother

testified that Lisa had just such an unusual occluded tooth behind her front teeth,


                                         29
and she identified the jewelry found with the skeleton as Lisa’s. The skeleton was

clothed in a pink robe, which a witness testified Lisa had been wearing on the

morning of March 24, 1983, when she was struggling with Tompkins on the couch

of the house underneath which the skeletal remains were later found. Dr. Diggs

testified that the skeletal remains were of someone who had been dead for not less

than six or seven months and not more than two years. Lisa DeCarr had been

missing for between fourteen and fifteen months. Dr. Diggs filled out and signed

a death certificate indicating that the skeletal remains were those of Lisa DeCarr.12

        During cross-examination, the following exchange occurred between

defense counsel and Dr. Diggs:

                      Q. Doctor Diggs, you mentioned that you
                observed the teeth of the deceased.

                        A. Yes.

                      Q. Were you ever provided with any dental
                records to compare, such as the dental records of Lisa
                DeCarr to compare with the teeth that you were actually
                observing?

                      A. We received – we received dental x-rays, yes,
                and this was – these x-rays were – these x-rays were used
                in order to make an identification.



        12
          Dr. Diggs also testified that he found a ligature which had been tightly tied around the neck,
and that in his opinion death had been caused by strangulation and had not been instantaneous.

                                                  30
            Now, the identification generally is made by
the dentist who is hired by the office as a consultant, but
the x-rays are taken to compare the actual dental makeup
of the mouth, and these comparisons are made to identify
the individual, yes.

      Q. Do you have those x-rays with you?

      A. [Displaying.]

      Q. How did you observe or how did you obtain,
excuse me, these records?

       A. Well, Doctor Powell is the individual who
made these records and, of course, I would have to defer
to him as to how these were – as to how these were made.
All of this was done by him.

      Q. Who is Doctor Powell?

      A. Doctor Powell is the forensic odontologist for
Hillsborough County. He is basically responsible for
making identifications of teeth of individuals whom we –
we would want a positive identification on.

       Q. Am I correct in saying that Doctor Powell was
hired by your office to take these x-rays?

       A. No. He is actually hired by Hillsborough
County. I don’t know the terms of the contract or
anything to that extent, but he is the individual who
normally makes the determination of death and the
identification of an individual who is skeletalized or an
individual who is burned badly and is nonidentifiable.

          There is a particular profession, a subspecialty
of the dental profession in itself in which I have no
expertise.

                            31
                    Q. Doctor Diggs, were you ever provided with
             dental records of Lisa DeCarr prior to your [sic]
             disappearing?

                   A. I was not, no.


The part of that testimony which Tompkins labels false is the answer to the second

question quoted above, the question about whether Dr. Diggs had been provided

with dental records of Lisa DeCarr to compare to the teeth of the skeleton.

      As the district court pointed out, the answer in question is at most

ambiguous, and any ambiguity was cleared up a few questions later. Dr. Diggs

displayed the dental x-rays he was talking about and said they had been made by

Dr. Powell, whom he identified as the county’s forensic odontologist, one whose

job it is to help identify bodies through dental evidence. The last question and

answer quoted above shows that defense counsel understood that Dr. Diggs was

not saying that he had been provided with “any dental records of Lisa DeCarr prior

to your [sic] disappearing.” The reference to “your” is obviously a typographical

error in the manuscript or a slip of the tongue that everyone understood to be a

reference to Lisa DeCarr’s disappearance, not to any disappearance of Dr. Diggs.

Whatever confusion may have been caused by his earlier answer, Dr. Diggs

cleared things up when he conceded that he had not been provided any dental

records of Lisa that had been made before she disappeared.

                                         32
      Furthermore, after Dr. Diggs testified, Barbara DeCarr took the stand and

testified, among other things, that she had tried unsuccessfully to locate pre-

mortem dental records of her daughter, Lisa DeCarr. Neither defense counsel nor

the jury was or could have been misled by Dr. Diggs’ ambiguous testimony about

the dental records. There was no false testimony about the existence of pre-

mortem dental x-rays or records.

      Even if there had been false testimony on the subject, and even if the State

had known it was false, Tompkins’ Giglio claim would still fail on the materiality

element, because he has not shown that the testimony in question could have had

an effect on the verdict. The district court cogently summarized the overwhelming

evidence that the skeletal remains were those of Lisa DeCarr:

             The State introduced Exhibit 10, a photograph of the
             skull that was taken from the grave (R 149), for the
             purpose of showing a dental anomaly of a tooth which
             had grown behind the subject’s two front teeth in the
             same manner as Lisa’s. Using Exhibit 10, Dr. Diggs
             described this unusual dental structure. (R 178)
             Subsequently, Barbara DeCarr testified that her daughter
             had the identical dental anomaly as that described by Dr.
             Diggs. (R 208) In addition, Stevens saw Petitioner,
             immediately prior to the time of the disappearance,
             assaulting Lisa. The body was found in a shallow grave
             beneath the house where she was assaulted and where she
             resided with her mother, her siblings, and Petitioner. Her
             remains were identified in several ways: the unusual
             dental feature; the remains being wrapped in Lisa’s robe;
             and Lisa’s earrings and ring given to her by her boyfriend

                                         33
               being found adjacent to the skeletal remains in a position
               indicating that they had been worn by the victim.
               Coupled with the unsolicited confession Petitioner gave
               to Kenneth Turco, even if the medical examiner had
               given misleading testimony regarding identification of
               Lisa’s body, there is no reasonable likelihood that such
               testimony could have affected the judgment of the jury.

In a footnote to that summary, the district court pointed out that the death

certificate identifying the skeletal remains as Lisa DeCarr came into evidence

without objection.

       We add to the district court’s summary the additional facts that the skeletal

remains were those of a female in her midteens, and there is no other evidence that

any other female in her midteens was missing in the area. Nor has Tompkins

offered any explanation for how anyone else came to be buried – with Lisa’s

jewelry – under the house he shared with her, the same house in which he had

been seen struggling with her as she wore a pink robe, the very same pink robe

found on the skeleton.13 There is simply no doubt that it was Lisa DeCarr whose

skeletal remains were found in that shallow grave. With all due respect to the




       13
          Lisa’s mother was able to identify the pink robe found on the skeleton as Lisa’s, because
of the rose design or imprint it had on the collar.

                                               34
advocacy obligations of Tompkins’ present counsel, their argument in brief that

“there was very little evidence of the identity of the deceased” is preposterous. 14

                                     CONCLUSION

       The district court’s denial of Tompkins’ amended petition for a writ of

habeas corpus is AFFIRMED.




       14
         Tompkins also contends that Giglio errors were committed in connection with witnesses
Stevens and Turco. We agree with the district court that those contentions are palpably without
merit, and we do not believe they need any more discussion than that given them by the district
court.

                                              35
