                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                            No. 11-12244              JUNE 25, 2012
                                      ________________________         JOHN LEY
                                                                        CLERK
                            D.C. Docket No. 4:08-cv-00175-SPM-WCS



RIK SARGENT,

llllllllllllllllllllllllllllllllllllllll                         Petitioner-Appellant,

                                               versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

llllllllllllllllllllllllllllllllllllllll                         Respondent-Appellee.

                                     ________________________

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

                                           (June 25, 2012)

Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

         Rik Sargent, a former Florida state prisoner currently on probation, appeals
the district court’s denial of his petition for habeas relief, brought pursuant to 28

U.S.C. § 2254. In his petition, Sargent alleged that the state prosecutor failed to

correct the false testimony of one of the state’s witnesses, a crime-lab toxicologist,

during his criminal trial, in violation of Brady v. Maryland, 373 U.S. 83 (1963),

and Giglio v. United States, 405 U.S. 105 (1972). The district court concluded

that there was no Giglio error because there was no perjured testimony, and that

the knowledge of a state crime-lab analyst could not be imputed to the prosecutor

to hold her responsible for the alleged false testimony. After denying relief, the

district court granted a certificate of appealability (COA) on the Giglio issue.

After review of the record, and with the benefit of oral argument, we affirm.

      I. Background

      Sargent was charged with sexual battery on a victim who was physically

helpless to resist. Fla. Stat. Ann. § 794.011(4)(a). “Physically helpless” is defined

under Florida law as “unconscious, asleep, or for any other reason physically

unable to communicate” lack of consent. Id. § 794.011(1)(e).

      At trial, the victim testified that she had taken Ambien, was asleep, and was

physically helpless during the attack. She explained she informed Sargent that she

had taken medication to help her fall asleep and that, when Sargent asked, she

confirmed that the medication made her forget things. She testified that she fell

                                           2
asleep after taking Ambien but awoke when she felt penetration. She asked

Sargent what he was doing and “then . . . fell unconscious again.” Sargent did not

testify.

         The state called the victim’s doctor, Albert Menduni, who testified that he

prescribed the victim a variety of medications, including Ambien. Menduni

explained that Ambien was a hypnotic that typically initiated sleep within five to

ten minutes. He further testified that once a person takes Ambien, she will sleep

very well for the first four hours and will be very difficult to awaken. The

prosecutor showed Menduni a Florida Department of Law Enforcement (FDLE)

lab report that listed the drugs found in the victim’s urine. The prosecutor asked if

the lab had screened the urine sample for Ambien. Menduni stated, “I know of no

drug screen for Ambien. They did not screen for Ambien. The technology they

[the FDLE] use did not screen for Ambien.” On cross-examination, defense

counsel asked: “[I]f someone takes Ambien, you, right here today, do not know a

way to prove whether they took it or not.” Menduni responded, “I don’t know of

an assay. That doesn’t mean there isn’t an assay. I really wasn’t asked to research

that.”

         Ted Houston, a defense witness expert in pharmacology, testified that,

based on the FDLE report, there had been no test for Ambien. Houston stated that

                                            3
he was unaware of any screening test available for Ambien, but that it would “fall

out” on the lab report as an “unidentifiable substance.” Houston confirmed there

was no unidentifiable substance listed on the FDLE report. On cross-examination,

the state asked Houston, “so as far as you know, based on that report, they didn’t

test for Ambien at FDLE?” Houston agreed. Houston reiterated that he was

unaware of any test to identify Ambien.

      In closing argument, Sargent’s counsel challenged the victim’s credibility.

In rebuttal, the prosecutor stated:

      Menduni told you that the screen they ran would not find Ambien.
      There is nothing that says that if Ambien was in her system, the
      screen they ran at FDLE would show that. And Dr. Menduni and
      even Mr. Houston agreed there is no test to determine whether
      Ambien is in your system . . . . There is no test.

      Toxicologist Lisa Zeller’s FDLE lab report was admitted into evidence by

stipulation. The report confirmed that the FDLE had tested the victim’s urine and

blood for sedative-hypnotics. Although Zeller’s report listed the presence of a

variety of substances, Ambien was not one of them. Neither party spoke with

Zeller before the trial.

      After trial, defense counsel spoke with Zeller and learned that the police had

told Zeller the victim took Ambien and that Zeller tested for Ambien. Sargent

then moved for a new trial, arguing that the state withheld Brady material by

                                          4
failing to reveal that the victim’s urine could have been tested for Ambien, it was

tested, and no Ambien was identified. Sargent explained that Zeller admitted she

tested the urine for Ambien, but that Ambien was not listed on the report because

it either was not detected or it was present in a level too low to be detected.

Sargent argued that the FDLE analyst’s knowledge was imputed to the state and

the state had a duty to disclose this possibly exculpatory evidence. Moreover, the

state had a duty to correct inaccurate or false testimony, such as Menduni’s, that

there was no test for Ambien. Therefore, Sargent argued, although the state knew

that the FDLE test could, but did not, detect Ambien, the “state elicited evidence

to the contrary,” in violation of Giglio. Sargent claimed that the outcome of his

trial could have been different had this evidence been disclosed.

      The state court conducted a hearing at which Zeller testified. The court

confirmed that Zeller’s report had been admitted into evidence by stipulation. The

court then denied the motion for a new trial, noting that Sargent could have

presented direct evidence that the victim had not taken any Ambien and that he

chose not to testify. Sargent’s direct appeal of his conviction was summarily

affirmed. Sargent then filed the instant § 2254 petition in the district court, raising




                                           5
the Brady/Giglio violation and an ineffective-assistance-of-counsel claim.1

          A magistrate judge conducted an evidentiary hearing, at which Zeller

testified that she had screened the victim’s urine using a gas-chromatograph-

mass-spectrometer (GC-MS) which, at the time, was the only test available that

would have identified Ambien. She confirmed that if someone testified there was

no test for Ambien, “that would be incorrect.” She further stated that the police

told her the victim had taken Ambien, she tested for Ambien, and she did not find

any in the urine sample.2 But she qualified her answer by explaining that Ambien,

which is a sedative-hypnotic, has a short half-life, and the amount of time that had

passed since the victim had taken the Ambien could have made the test

inconclusive. She testified that she submitted her report to the police department,

which would have forwarded it to the state attorney.

          Menduni testified that he was unaware of what testing the FDLE conducted

and was not referring to the GC-MS test when he stated at trial that there was no

test to screen for Ambien. He stated that, had he been asked if Ambien could be

detected by any test available, he would have said yes, but that had not been the

          1
         Sargent did not cite Giglio in either his state post-trial motion or his § 2254 petition.
But he argued that the prosecutor had a duty to correct false testimony and failed to do so. Thus,
we conclude Sargent sufficiently set forth a Giglio claim.
          2
              Zeller also confirmed that no Ambien was detected in the blood sample taken from the
victim.

                                                   6
question posed to him. Houston testified that, at the time of the trial, he believed

there was a test for Ambien, although he testified otherwise. He stated that,

despite the short half-life of Ambien, he still would expect it to show up in a urine

sample taken 13 to 14 hours later. He admitted that his testimony might have been

“misguided.”

       The magistrate judge considered that it was possible that the state court had

rejected Sargent’s Brady/Giglio claim because he had stipulated to the admission

of Zeller’s report, which would not implicate federal law for purposes of the

§ 2254 review. Thus, the magistrate judge found that the state court had not

considered the claim and its decision was not entitled to deference. The magistrate

judge further found that the state court’s ruling “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal

law.” Conducting a de novo review, the magistrate judge found that Menduni’s

testimony was false, the prosecutor knew or should have known it was false, and

the statement was material.3 Accordingly, the magistrate judge recommended

granting Sargent’s petition for habeas relief.

       After considering the state’s objections to the magistrate judge’s



       3
          The magistrate judge further found that, even if the deferential standard of review
applied, the analysis was the same.

                                                 7
recommendation, and supplemental affidavits filed in support of the objections,

the district court denied the petition as to the Giglio violation. Applying the

deferential standard of review, the district court found that there was no perjured

testimony because Menduni had no intent to mislead the jury. The court further

found that the state did not suppress any evidence under Giglio because the

defense had a copy of Zeller’s lab report. Finally, the court found that Zeller’s

knowledge that there actually was a test for Ambien could not be imputed to the

prosecutor because Zeller, a toxicologist, was not part of the prosecutorial team.

      Sargent filed his notice of appeal and application for a COA. The district

court then issued a COA on the Giglio issue.

      II. Discussion

      Our review of the state court decision is limited by the Anti-Terrorism and

Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214

(1996). See 28 U.S.C. § 2254; Williams v. Taylor, 529 U.S. 362, 402-03 (2000).

Under that statute, we cannot grant habeas relief “with respect to any claim that

was adjudicated on the merits in State court proceedings” unless the state court’s

decision “resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law. . . .”

28 U.S.C. § 2254(d).

                                           8
       A. AEDPA Deference

       Before we address the merits of the petition, we must first determine the

appropriate standard of review in this case.

       Under the AEDPA, we must give deference to the state court’s decision

whenever a claim is adjudicated on the merits.4 Loggins v. Thomas, 654 F.3d

1204, 1218 (11th Cir. 2011). For § 2254 purposes, a claim is presumed to be

adjudicated on the merits “unless the state court clearly states that its decision was

based solely on a state procedural rule . . . .” Id. at 1217 (internal quotation marks

omitted); see also Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011). The fact

that the state court does not offer an explanation for its decision does not

disqualify it from being an adjudication on the merits. “Where a state court’s

decision is unaccompanied by an explanation, the habeas petitioner’s burden still

must be met by showing there was no reasonable basis for the state court to deny

relief.” Harrington, 131 S.Ct. at 784. When the last state court rendering

judgment affirms without explanation, we presume that it rests on the reasons

       4
           Under the AEDPA, we give deference to the state court’s factual findings. 28 U.S.C.
§ 2254(e). But “the presumption of correctness applies only to findings of fact made by the state
court;” it does not extend to determinations of law or to mixed determinations of law and fact.
Guzman v. Sec’y Dep’t of Corr., 663 F.3d 1336, 1346 (11th Cir. 2011) (internal quotation marks
omitted). Thus, although the determination whether to impute knowledge to the prosecutor
would not be entitled to deference, we nevertheless defer to the state court’s ultimate conclusion
and determine whether that decision was contrary to, or an unreasonable application of, clearly
established federal law.

                                                9
given in the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 803-05

(1991).

      Here, Sargent raised the Brady/Giglio claim in his motion for a new trial

and on direct appeal. The state court held an evidentiary hearing and denied the

motion for a new trial. The state court noted that Zeller’s report had been admitted

by stipulation and that Sargent could have presented direct evidence that the

victim had not taken Ambien. Because the state court did not clearly indicate that

its decision rested on procedural grounds, we will treat the state court’s decision as

one on the merits entitled to deference.

      Although the state court’s decision may leave this court without explicit

factual findings to which we can defer, “implicit findings of fact are entitled to

deference under § 2254(d) to the same extent as explicit findings of fact.”

Blakenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). “In other words, since

we apply AEDPA deference to summary adjudications, we may uphold the state

court’s decision . . . if our review of the record reveals that a reasonable view of

the facts before the state court supports such a conclusion.” Id.

      B. Merits of the Giglio claim

      When we consider a district court’s denial of a § 2254 habeas petition on

the merits, we review questions of law and mixed questions of law and fact de

                                           10
novo, and we review findings of fact for clear error. Rhode v. Hall, 582 F.3d

1273, 1279 (11th Cir. 2009). As noted, we will grant habeas relief only if the state

court’s decision “resulted in a decision that was contrary to, or involved an

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

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The petitioner

carries the burden to show the state court’s decision was contrary to, or an

unreasonable application, of federal law. Cullen v. Pinholster, 131 S.Ct. 1388,

1398 (2011).

       Under the “contrary to” clause, we consider whether the “state court arrived

at a conclusion opposite to that reached by” the Supreme Court or “decide[d] a

case differently than th[e] Court has on a set of materially indistinguishable

facts.”5 Williams, 529 U.S. at 412-13; see also Consalvo v. Sec’y. Dep’t of Corr.,

664 F.3d 842, 844 (11th Cir. 2011). Under the “unreasonable application” prong,

we consider whether the state court identified the correct legal rule from Supreme

Court case law but unreasonably applied that rule to the facts before it, or whether

“a state court unreasonably extends, or unreasonably declines to extend, a legal

principle from Supreme Court case law to a new context.” Putman v. Head, 268



       5
        Section 2254(d)(1)’s “contrary to” and “unreasonable application” clauses have
independent meaning. Bell v. Cone, 535 U.S. 685, 694 (2002).

                                             11
F.3d 1223, 1241 (11th Cir. 2001). Clearly established federal law refers to

holdings of the Supreme Court as of the time of the state court decision at issue. It

does not extend to dicta or the decisions of lower federal courts. Ventura v. U.S.

Att’y Gen., 419 F.3d 1269, 1278-79 (11th Cir. 2005).

      Sargent argues that Menduni’s testimony was false and misleading and the

prosecutor failed to correct it, leaving the jury with a materially false impression

and resulting in a Giglio error. And he argues that the toxicologist, Lisa Zeller,

was part of the prosecutor’s team, so that her knowledge should be imputed to the

prosecutor under Giglio. He further argues that other courts have extended

Giglio’s rationale to the prosecutor’s statement in closing argument.

      In Mooney v. Holohan, 294 U.S. 103, 112 (1935), the Supreme Court held

that it was impermissible for the prosecution to deceive the court and jury with the

presentation of known false evidence. The Supreme Court later expanded this rule

to include situations in which the prosecution does not solicit the false evidence

but “allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264,

269 (1959). As the Court in Napue explained, “a conviction obtained through use

of false evidence, known to be such by representatives of the State, must fall under

the Fourteenth Amendment.” Id. Thereafter, in Brady, the Court held that “the

suppression by the prosecution of evidence favorable to an accused upon request

                                          12
violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” 373

U.S. at 87.

      “Giglio error, a species of Brady error, occurs when the undisclosed

evidence demonstrates that the prosecution’s case included perjured testimony and

that the prosecution knew, or should have known, of the perjury.” Ford v. Hall,

546 F.3d 1326, 1331 (11th Cir. 2008) (internal citations and quotation marks

omitted). To establish a Giglio claim, a habeas petitioner must prove: (1) the

prosecutor used perjured testimony or failed to correct what he subsequently

learned was false testimony; (2) the prosecutor knew the testimony was false; and

(3) such use was material. Guzman, 663 F.3d at 1348.

      Although Sargent argues that he can satisfy all three elements of a Giglio

claim, his claim fails on the second prong and thus we only need to address

whether the prosecutor knew the testimony given was false. To answer this

question, we must determine whether Zeller’s knowledge that there was a test for

Ambien could be imputed to the state prosecutor because a toxicologist is part of

the prosecution team.

      Sargent contends that, under Napue’s “representatives of the State”




                                         13
language,6 the toxicologist is a member of the prosecution team. Napue, 360 U.S.

at 269. The prosecution team is defined as “the prosecutor or anyone over whom

he has authority,” and includes “both investigative and prosecutorial personnel.”

Moon v. Head, 285 F.3d 1301, 1309 (11th Cir. 2002) (citation omitted). But

“[k]nowledge on the part of persons employed by a different office of the

government does not in all instances warrant the imputation of knowledge to the

prosecutor . . . .” United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998)

(quoted in Moon, 285 F.3d at 1310).

       We cannot agree with Sargent that Napue set forth clearly established law in

this case. The “representative of the State” in Napue was a state attorney, who

was undisputably part of the prosecution team. In no case has the Supreme Court

defined “representative of the State” to include a state crime-lab analyst.

Moreover, “a federal court may not overrule a state court . . . when the precedent

from [the Supreme] Court is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S.

12, 17 (2003). “Until the Supreme Court has made a right concrete, it has not

been clearly established.” Bland v. Hardy, 672 F.3d 445, 448 (7th Cir. 2012)


       6
          Sargent also quotes Justice Scalia’s dissent in Cash v. Maxwell, 132 S.Ct. 611, 615
(2012) (Scalia, J. dissenting), for the proposition that case law has clearly established that the
prosecution team involves all representatives of the state. But Justice Scalia’s dissent from the
denial of a writ of certiorari does not constitute Supreme Court case law for purposes of § 2254.
And, although Napue is clearly established federal law, we do not read Napue as broadly.

                                                14
(internal quotation marks omitted) (citing Wright v. Van Patten, 552 U.S. 120,

125–26 (2008), and Carey v. Musladin, 549 U.S. 70, 77 (2006)).

      Additionally, although the Supreme Court has held that a “prosecutor has a

duty to learn of any favorable evidence known to the others acting on the

government’s behalf in the case, including the police,” Kyles v. Whitley, 514 U.S.

419, 437 (1995), the Court expressly declined to apply this ruling to Giglio cases,

id. at 433 n.7, 437-38. And the duty has limits – there is “no constitutional

requirement that the prosecution make a complete and detailed accounting to the

defense of all police investigatory work on a case.” Agurs, 427 U.S. at 109

(quoting Moore v. Illinois, 408 U.S. 786, 795 (1972)). In Sargent’s case, the

defense had a copy of Zeller’s lab report prior to trial and stipulated to the report’s

admission. And his counsel did not speak with the toxicologist prior to trial.

Given the law, and the facts of the case, we cannot say that the state court

unreasonably applied Giglio, or that it unreasonably declined to extend existing

case law to the facts before it. Putman, 268 F.3d at 1241.

      If we were writing on a clean slate, we might be persuaded to conclude that

the state toxicologist is a member of the prosecution team. But this case does not

present us with that option because this is not simply a question of whether the

state court correctly applied clearly established law. See Renico v. Lett, 130 S.Ct.

                                          15
1855, 1862 (2010) (“[A] federal habeas court may not issue the writ simply

because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or

incorrectly.”(internal citations and quotation marks omitted)). The question is not

whether we would conclude that a state crime-lab toxicologist is a member of the

prosecution team. The question is whether the state court’s application of the law

was objectively unreasonable. If, as it did here, the state court properly applied

the relevant federal law, and reasonably determined that the law did not extend to

the facts before it, the AEDPA requires that we give deference to the state court’s

decision. “A state court’s determination that a claim lacks merit precludes federal

habeas relief so long as fairminded jurists could disagree on the correctness of the

state court’s decision.” Harrington, 131 S.Ct. at 785–86 (citation and internal

quotation marks omitted); see also Guzman, 663 F.3d at 1346. Because the

Supreme Court has never addressed whether a toxicologist is a member of the

prosecution’s team, the state court’s decision that Zeller’s knowledge could not be

imputed to the prosecutor in this case was not unreasonable. See, e.g., Smith v.

Massey, 235 F.3d 1259, 1272 (10th Cir. 2000) (denying § 2254 petition in a case

involving false testimony by a crime-lab chemist because there was no clearly

established law addressing what information could be imputed to the prosecutor),

                                         16
overruled on other grounds by Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001).

      Because there is no clearly established law holding that a state laboratory

toxicologist is a member of the prosecution team such that her knowledge can be

imputed to the state prosecutor, we must defer to the state court’s decision. The

district court’s denial of habeas relief is affirmed.

      AFFIRMED.




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