                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 96-3725.

                             Sonny Boy OATS, Petitioner-Appellant,

                                                  v.

   Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-
Appellee.

                                           May 19, 1998.

Appeal from the United States District Court for the Middle District of Florida. (No. 94-165-Civ-Oc-
10), William T. Hodges, Judge.

Before ANDERSON, DUBINA and CARNES, Circuit Judges.

       ANDERSON, Circuit Judge:

        Appellant Sonny Boy Oats ("Oats"), a prisoner awaiting execution on Florida's death row,

appeals from the district court's denial of his petition for a writ of habeas corpus. For the reasons

stated below, we affirm the district court's decision to deny the writ.1

                           I. FACTS AND PROCEDURAL HISTORY

       On December 20, 1979, Jeanette Dyer, the cashier at a convenience store near Ocala, Florida,

was killed during a robbery of the store. The cause of her death was a single bullet fired from

approximately one foot away that penetrated her right eye and her brain. On December 24, 1979,

a police officer observed an automobile with two suspicious looking occupants in the vicinity of



   1
    Oats' petition for writ of habeas corpus was filed before April 24, 1996, the effective date of
the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and thus the AEDPA
standard of review provisions are not applicable. See Lindh v. Murphy, --- U.S. ----, ----, 117
S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997); see also Neelley v. Nagle, 138 F.3d 917, 921 (11th
Cir.1998); Hardwick v. Singletary, 122 F.3d 935, 936 (11th Cir.1997), vacated in part on
reconsideration, 126 F.3d 1312 (11th Cir.1997).
another convenience store in Ocala. As the officer approached the car, it sped away at a high rate

of speed. The officer gave chase. The fleeing car soon crashed and the occupants dispersed.

Shortly thereafter, Donnie Williams was arrested as a suspect in the high-speed chase, transported

to the Marion County Jail, and gave a statement to the police implicating the appellant Sonny Boy

Oats in the murder of Jeanette Dyer. Subsequently, Oats was arrested as a suspect in the high-speed

chase and given Miranda warnings. During the interview that followed, Oats admitted his

involvement in the chase and stated he had thrown his firearm away during the chase. The firearm

was later discovered on the roadside near the location described by Oats.

       In his interview with the police, Oats also admitted his involvement in an ABC liquor store

robbery and shooting that had occurred on December 19, 1979,2 one day prior to the robbery and

murder of Jeanette Dyer. On December 28, 1979,3 during a tape recorded interview, Oats again

confessed to the ABC liquor store robbery and shooting, and also admitted robbing and killing

Jeanette Dyer on December 20. Ballistics tests conducted on the gun recovered from the roadside

established that it was the same weapon used in both the ABC liquor store and Jeanette Dyer

shootings.

       Oats was indicted on two counts for robbery and first degree murder, arising out of the

killing of Jeanette Dyer on December 20, 1979. Oats was also charged separately in another case

for the robbery and attempted murder at the ABC liquor store that occurred on December 19, 1979.

During February and March of 1980, Oats was examined, at the request of trial counsel, by three


   2
    In the ABC liquor store robbery, Oats robbed the store's clerk, Eric Slusser, and then shot
Slusser in the head.
   3
   This second interview occurred four days after Oats' first interview because Oats escaped
from police custody during a visit to his mother's house and was not recaptured for three days.

                                                2
separate psychiatrists, Drs. Frank Carrera, Rafael Gonzalez, and Fausto Natal, all of whom reported

to the court and to Oats' counsel that Oats was sane at the time of the offenses and competent to

stand trial.4

        In early June 1980, Oats was tried in a separate proceeding for the ABC liquor store robbery

and shooting and was convicted of robbery with a firearm and attempted murder in the first degree.5

On June 14, 1980, Oats escaped from the Marion County Jail. He was recaptured approximately six

months later in Texas, and was returned to Florida for trial in the instant capital case.6

        On February 6, 1981, the jury in the instant case found Oats guilty of first degree murder and

robbery with a firearm. After hearing the evidence relevant to sentencing, the same jury rendered

an advisory sentence of death. On February 10, the trial judge followed the jury's recommendation

and imposed the death sentence for the murder charge and ninety-nine years imprisonment for the

robbery charge.




   4
    Additional facts regarding these psychiatric evaluations and the evaluations of other doctors
will be discussed later in this opinion.
   5
    The ABC liquor store case was noncapital and thus proceeded at a faster pace than the
instant case.
   6
   While on escape from prison, Oats robbed a liquor store in New York and stabbed the clerk
numerous times in the head, neck, and back.

                                                  3
       In Oats' direct appeal of his conviction and sentence,7 the Florida Supreme Court affirmed

Oats' conviction, but remanded for resentencing and a reweighing of the aggravating circumstances

by the trial judge because the trial judge erred in his original determination of three of the

aggravating circumstances. Oats v. State, 446 So.2d 90, 95 (Fla.1984). On April 26, 1984,

following the remand from the Florida Supreme Court, the state trial court conducted another

sentencing hearing. At the resentencing hearing, Oats' attorney objected to the resentencing and

made a motion seeking the appointment of experts to determine Oats' sanity and competence. The

trial judge denied this motion based on the judge's observations of Oats' demeanor at that time and

during prior proceedings. The trial judge then reweighed the valid aggravating circumstances

against the single mitigating circumstance and reimposed the death penalty, which was affirmed by

the Florida Supreme Court.8 See Oats v. State, 472 So.2d 1143 (Fla.1985), cert. denied, 474 U.S.

865, 106 S.Ct. 188, 88 L.Ed.2d 157 (1985).

       On October 7, 1987, Oats filed a motion for post-conviction relief in the state trial court

pursuant to Fla. R.Crim. P. 3.850, and in May 1989, filed an original petition for a writ of habeas

corpus in the Florida Supreme Court. Following the signing of a death warrant by the Governor in


   7
    While Oats' appeal of his conviction and sentence in the instant case was pending before the
Florida Supreme Court, Florida's Fifth District Court of Appeal reversed Oats' convictions in the
ABC liquor store case because the trial court had failed to instruct the jury concerning the
applicable ranges of punishment as required by a Florida rule of criminal procedure. Oats v.
State, 407 So.2d 1004 (Fla.Dist.Ct.App.1981). On February 9, 1982, after a re-trial, Oats was
convicted of robbery and attempted second degree murder. That conviction was affirmed in
Oats v. State, 434 So.2d 905 (Fla.Dist.Ct.App.1983), prior to the Florida Supreme Court's
resolution of Oats' direct appeal in the instant capital case.
   8
    The trial judge weighed the mitigating circumstance of age against the aggravating
circumstances of (1) Oats' prior violent felony conviction, (2) murder during the commission of a
robbery, (3) the murder was committed to avoid lawful arrest, and (4) the murder was cold,
calculated, and premeditated.

                                                4
1989, the state trial court granted a stay of execution and subsequently conducted an evidentiary

hearing on Oats' Rule 3.850 motion. This Rule 3.850 hearing lasted eleven days over a period from

February 19 to June 5, 1990, and primarily concerned whether Oats' trial counsel were

constitutionally deficient in their representation of Oats. The state trial court denied Oats' Rule 3.850

petition in November 1990. The Florida Supreme Court affirmed the trial court's denial of Oats'

Rule 3.850 motion and denied Oats' original state habeas corpus petition in Oats v. Dugger, 638

So.2d 20 (Fla.1994), cert. denied, 513 U.S. 1087, 115 S.Ct. 744, 130 L.Ed.2d 645 (1995). Oats then

filed the instant federal habeas action pursuant to 28 U.S.C. § 2254. The district court denied Oats'

petition without holding an evidentiary hearing.

                                           II. DISCUSSION

A. The Ineffective Assistance of Counsel Claims

        The law regarding collateral review of ineffective assistance of counsel claims under the

Sixth Amendment is well settled. In order to obtain habeas corpus relief with respect to a conviction

or a death sentence based on ineffective assistance of counsel, the defendant must show both (1) that

the identified acts or omissions of counsel were deficient, or outside the range of professionally

competent assistance, and (2) that counsel's deficient performance prejudiced the defense such that,

but for counsel's unprofessional errors, there is a reasonable probability that the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 2064, 80 L.Ed.2d 674 (1984). See also Bolender v. Singletary, 16 F.3d 1547, 1556 (11th

Cir.1994). When applying Strickland, we are free to dispose of ineffectiveness claims on either of

its two grounds. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. Furthermore, we note that

under the rules and presumptions set down in Strickland and its progeny, " "the cases in which


                                                   5
habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few

and far between'." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir.1995) (en banc) (quoting Rogers

v. Zant, 13 F.3d 384, 386 (11th Cir.1994)).

       Oats alleges that he was deprived of his Sixth Amendment right to the effective assistance

of counsel in a variety of ways throughout his defense of the criminal proceeding in state court. The

primary focus of Oats' ineffective assistance of counsel claims is his assertion that, at all material

times in this case, he was mentally retarded with organic brain damage, complicated by both

physical and psychological abuse as a child and by his own abuse of alcohol and other substances.

Oats claims that his attorneys failed to adequately and fully present evidence of his mental

deficiencies at numerous proceedings in the state trial court.

        The record reveals that, during the pendency of the case in state court, a minimum of eight

different mental health experts testified and/or issued reports concerning Oats' mental capacity. In

February and March, 1980, during the pretrial stages of the ABC liquor store case and the instant

capital case, Oats was examined separately by three different court-appointed psychiatrists, Drs.

Frank Carrera, Rafael Gonzalez, and Fausto Natal. The examinations by these court-appointed

psychiatrists were performed prior to the ABC liquor store case at the request of Oats' trial counsel.9




   9
    Like the state court that denied Oats' request for post-conviction relief under Rule 3.850, we
conclude that the fact that the psychiatrists' evaluations of Oats were performed in connection
with the companion ABC liquor store case does not limit the relevance of those evaluations in
regard to the instant case. Drs. Carrera, Gonzalez, and Natal examined Oats between February
17 and March 25, 1980, and the trial in the instant case was conducted in February 1981.
However, if Oats had not escaped from custody in June 1980, he presumably would have been
tried as his counsel requested in July 1980. No evidence has been presented to suggest any
change in Oats' competency from March 1980 to February 1981. Moreover, one of Oats'
attorneys at trial in the instant case was also Oats' attorney in the ABC trial.

                                                  6
All three psychiatrists reported then that Oats was mentally competent at the time of the offenses

and was mentally competent to stand trial.10

        The remaining experts became involved in the case during the 1990 post-conviction Rule

3.850 hearings before the state trial court. At this time, defense experts Drs. Robert Phillips and

Joyce Carbonell testified, and Dr. Harry Krop issued a report concluding that Oats was mentally

retarded with organic brain damage.11 They also opined that Oats was incompetent to stand trial in

1980,12 incompetent at resentencing in 1984, and incapable of knowingly waiving his Miranda rights

   10
     Dr. Carrera evaluated Oats on February 19, 1980, apparently in regard to both the ABC
liquor store case and the instant capital case. Dr. Carrera concluded that (1) Oats was of low
average to borderline intelligence, (2) Oats was competent to assist in his defense and stand trial,
and (3) at the time of the alleged crimes Oats was legally sane.

               Dr. Natal evaluated Oats on March 18, 1980, in regard to the ABC liquor store
        case. Dr. Natal concluded that (1) Oats' intellectual level seemed to be in the "dull,
        normal range," (2) Oats "is competent to stand trial and knows the nature and
        consequences of the legal situation he is involved in and can work with counsel in
        preparing a rational defense," (3) with respect to Oats' state of mind at the time of the
        alleged crime, he "was not suffering from a defect of reason resulting from a disease of
        the mind" and knew the nature and quality of the act was wrong, and (4) Oats understood
        the Miranda warnings and was psychologically able to waive his rights.

                Dr. Gonzalez evaluated Oats in late March 1980, in regard to the ABC liquor
        store case and concluded that Oats "is not at present time psychotic and that he can be of
        assistance to his attorney in the process of preparation of his defense."
   11
    Dr. Phillips testified that he believed that Oats' brain damage was the result of a
longstanding history of alcohol and drug abuse, inhalation of liquid paper, and multiple open
and/or closed head injuries during childhood.
   12
     Unlike Drs. Phillips and Carbonell, Dr. Krop did not specifically conclude that Oats was
incompetent to stand trial and unable to understand and waive his Miranda rights in 1980.
However, he concluded that it was likely that Oats would have had great difficulty in assisting
his counsel at the time of his trial. Dr. Krop and Dr. Carbonell reported that Oats scored
approximately 57 and 61 on IQ tests, placing him in the mildly mentally retarded range of
functioning, and that he was at a beginning third grade level in terms of basic academic skills.
These conclusions are inconsistent with Department of Corrections records indicating that Oats
scored a 93 on an IQ test in 1976, and Dr. Carrera's testimony that Oats' scores on basic

                                                 7
at the time of his confessions. However, the conclusions reached by the defense experts were

challenged by Drs. Charles Mutter and Leonard Haber, who testified on behalf of the State at the

Rule 3.850 hearings. Drs. Mutter and Haber contradicted the defense experts concerning the degree

of Oats' brain damage and the level of his intelligence,13 and both concluded that Oats was

competent to stand trial in 1980, competent at resentencing in 1984, and capable of making a

knowing and intelligent waiver of his Miranda rights.

1. Oats' Competency to Stand Trial

        Oats contends that his trial counsel were ineffective in failing to adequately argue that he

was incompetent to stand trial and in failing to provide to the court-appointed psychiatrists, Drs.

Carrera, Gonzalez, and Natal, information concerning his background and mental health history

which potentially could have altered the psychiatrists' opinions concerning his competency to stand




academic skills tests put him at a seventh-grade level in terms of classroom information.
Furthermore, Dr. Charles Mutter testified that, in his opinion, Oats' ability to process material
and his knowledge of language indicated that Oats "was smarter than he was showing on the
tests."
   13
     Dr. Mutter first challenged the defense experts' assumption that Oats' brain damage was
partly the result of sniffing liquid paper. Dr. Mutter testified that this assumption was flawed
because the inhalation of the solvents in liquid paper may cause severe liver damage and
gastrointestinal problems, but there is no medical evidence that the solvents produce brain
damage. Dr. Mutter also testified that Dr. Krop's conclusion that Oats suffered from diffuse
brain damage was contradicted to some degree by Dr. Krop's conclusion that Oats was orientated
to time, place, and person. Based on his evaluation of Oats, Dr. Mutter concluded that Oats
suffered from a "minimal organic disturbance" in expressing himself in terms of words and
certain types of vocabulary, but that Oats understood the questions asked in the evaluation, his
answers were responsive and appropriate, and Oats' psychomotor activity and other body
language were in context with an individual who does not show "any kind of frank organic
impairment." Finally, Drs. Mutter and Haber concluded that Oats' IQ scores, as reported by
defense experts, did not reflect Oats' actual mental functioning and that Oats demonstrated an
ability to use certain language and appreciate the nuances of the doctors' questions that were "far
beyond the ability of an individual with a full scale IQ of 57."

                                                 8
trial.14 The second prong of the Strickland test requires Oats to show that if his trial counsel had

performed as he argues they should have, there is a reasonable probability that the trial judge would

have determined that Oats was incompetent to stand trial. We conclude that Oats fails this prejudice

prong of Strickland. After the eleven day Rule 3.850 hearings in which Oats was able to fully

introduce the evidence concerning his family background, his mental health history, and the opinions

of defense mental health experts, the state court judge found "no reasonable doubt about [Oats']

competency."15 The state court's finding that Oats was competent to stand trial is a factual finding

entitled to a presumption of correctness, and thus will not be overturned on federal habeas review

unless the state court's finding is not fairly supported by the record. See Demosthenes v. Baal, 495

U.S. 731, 735, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990) (concluding that state court's finding

that defendant was competent to waive his right to pursue further post-conviction review of his

claims was entitled to a presumption of correctness on federal habeas corpus review); Maggio v.

Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983) (concluding that state

court's finding of competency to stand trial was "fairly supported by the record"); United States v.




   14
     Oats also contends that his trial counsel were incompetent by failing to inform the
court-appointed psychiatrists of trial counsel's concerns regarding Oats' competency to stand trial
and ability to participate in his defense. In light of the new information provided by Oats'
collateral counsel (including in particular a new IQ test which would place Oats in the category
of borderline mentally retarded), Drs. Carrera and Gonzalez gave testimony at the Rule 3.850
hearing that backtracked to some degree from their previous testimony that Oats was competent
to stand trial.
   15
     The state court specifically found that Oats "knew the charges against him and possible
penalties; that he testified rationally and relevantly at the suppression hearing; that he was able
to follow and understand the testimony of witnesses at trial; and that he understood his subpoena
power to call witnesses and the roles of the judge, jury, prosecutor and defense counsel." Order
Denying Rule 3.850 Relief, at 4 (November 21, 1990).

                                                 9
Hogan, 986 F.2d 1364, 1372 (11th Cir.1993) (concluding that state court's finding of competency

to stand trial is a finding of fact reviewed under a clearly erroneous standard).

        We conclude that the state court's finding is fairly supported by the record. Although

defense experts testified and/or issued reports opining that Oats' alleged mild mental retardation,

organic brain damage, and history of substance abuse rendered him incompetent to stand trial, this

evidence was contradicted by (1) the conclusions of the State's mental health experts, (2) Oats' own

coherent testimony at his trial and at the pretrial suppression hearing,16 (3) Oats' confession to the

police in which he was able to accurately describe details regarding the two offenses,17 and (4) the

circumstances surrounding Oats' two escapes from police custody.18 See Daugherty v. Dugger, 839

F.2d 1426, 1432 (11th Cir.1988) (concluding that defendant failed prejudice prong of Strickland

because expert testimony regarding defendant's alleged domination by another would have been

subject to rebuttal by defendant's prior contradictory statements). In denying Oats' Rule 3.850



   16
      We note that during the cross-examination of his mother during the penalty phase of trial,
Oats appeared to be alert and listening attentively to the testimony. Oats' mother testified that
the co-defendant in the ABC case told her that he had shot the liquor store clerk, dropped the gun
because he was wearing gloves, and then Oats picked up the gun. After the state attorney stated
to Oats' mother that Oats' fingerprints were found on the gun, Oats interrupted and stated "[s]he
just told you he had gloves on, didn't she?" Later, during his own testimony during the guilt
phase of the trial, Oats apologized to the judge for this earlier interruption.
   17
     We note that after giving his confession to the police, Oats was able to direct the police to
the overpass where he had thrown his gun during the high-speed car chase with the police.
   18
     Oats' first escape occurred on December 24, 1979, while he was in custody for police
interrogation. After confessing to the ABC liquor store crime, Oats told police officers that
because his mother was very ill, he wished to see her and tell her in person that he had been
arrested. The officers complied with Oats' request and let Oats visit his mother. During this
visit, Oats escaped out the back door of her house and remained free for three days. Oats' second
escape occurred on June 14, 1980, prior to his trial in the instant case. While a guard was
distracted, Oats and other inmates climbed over a wall at Marion County Jail. Oats was
recaptured approximately six months later after traveling to New York and Texas.

                                                 10
motion for post-conviction relief, the state court found that "the ultimate conclusions of the [defense]

experts are positively refuted by the record, including the Defendant's conduct prior to, during, and

subsequent to the criminal episodes and throughout the judicial proceedings." Order Denying Rule

3.850 Relief, at 5 (November 21, 1990). The state court's finding that Oats was competent to stand

trial is amply supported by the evidence. Thus, we conclude that Oats fails to satisfy the prejudice

requirement of Strickland, and we reject this aspect of his ineffective assistance of counsel claim.19

2. Oats' Capacity to Validly Waive His Miranda Rights

         Oats also contends that his trial counsel were ineffective in failing to argue that his

confessions should be suppressed because he lacked the capacity to waive his Miranda rights. Oats'

trial counsel filed a motion to suppress Oats' confessions to the ABC liquor store robbery-attempted

murder and Jeanette Dyer robbery-murder based on the contention that his confessions were

involuntary because of wrongful inducements made to him during his interrogation by the examining

officers. Oats' trial counsel vigorously argued this wrongful inducement theory at the suppression

hearing, but it was ultimately rejected by the state trial court. Oats contends that, rather than or in

addition to arguing this "wrongful inducement" theory, his trial counsel should have found mental



   19
      Based on the foregoing, we also reject Oats' substantive claim that he was incompetent to
stand trial in 1980. We conclude that the state court's finding, after the eleven day Rule 3.850
hearings, that Oats was competent at the time of his trial is fairly supported by the record, and
thus is entitled to a presumption of correctness on federal habeas review. See Baal, 495 U.S. at
735, 110 S.Ct. at 2225 (1990); Maggio, 462 U.S. at 117, 103 S.Ct. at 2264 (1983); Hogan, 986
F.2d at 1372. Finally, to the extent that Oats argues that his procedural due process rights were
violated under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), because the
trial judge failed to hold a hearing regarding Oats' competency prior to trial, we reject the
argument as without merit. The three court-appointed psychiatrists had found Oats competent to
stand trial, there was little or no evidence before the trial court raising a bona fide doubt as to
Oats' competency, and thus the trial court did not have a sua sponte duty to hold a pre-trial
competency hearing under Pate.

                                                  11
health experts to testify that he did not have the mental capacity to understand and knowingly waive

his Miranda rights.20 We reject this aspect of Oats' ineffective assistance of counsel argument

because Oats is unable to demonstrate that if expert testimony had been offered at the suppression

hearing, the trial judge probably would have found that Oats' Miranda waiver was ineffective. The

trial judge denied Oats' motion to suppress after (1) hearing the testimony of the interrogating

officers concerning their observations of Oats at the time of his confessions,21 (2) listening to a

recording of Oats' statements during one of the police interviews, and (3) personally observing Oats

during his testimony at the suppression hearing.22 In light of this evidence actually introduced at the

suppression hearing, and in light of the evidence adduced in the 1990 Rule 3.850 hearing and the

state court's findings in that regard, we cannot conclude that the trial judge probably would have

ruled differently on Oats' motion to suppress if Oats' trial counsel had presented expert testimony




   20
    Oats bases this argument on the testimony of Drs. Phillips and Carbonell at the 3.850
hearing that Oats was incapable of knowingly waiving his Miranda rights at the time of his
confession. State experts Drs. Mutter and Haber reached the opposite conclusion that Oats was
capable of knowingly waiving his Miranda rights.
   21
     The officers testified that at the time of his confessions, Oats was alert and did not appear to
be under the influence of alcohol or drugs, accurately described the details of the ABC liquor
store robbery and shooting, and filled out and signed a written waiver of Miranda rights form.
   22
    During his suppression hearing testimony, Oats never claimed he did not understand his
Miranda rights.

                                                  12
concerning Oats' ability to knowingly waive his Miranda rights.23 Therefore, Oats fails the prejudice

prong of Strickland.24


   23
     For the foregoing reasons, we also reject Oats' substantive claim that the state trial court
erred in denying his motion to suppress his confessions because he lacked the mental capacity to
intelligently and voluntarily waive his Miranda rights.

                Oats also argues that his confessions should have been suppressed because they
        were induced by promises of leniency and/or family visitation, and were therefore legally
        involuntary. This claim of improper inducement primarily is based on an investigating
        officer's statement to Oats that:

               We as police officers can't promise you anything other than we will ... like I told
               you before, we'll talk to everybody in the system about getting help for you, and
               we'll talk to the State Attorney's Office about your bond; I'll promise you that.

        The state trial court, after considering all of the evidence at the suppression hearing,
        including Oats' own testimony confirming that the interrogating officers stated that they
        could not promise him anything, found that Oats' confessions were voluntary and not the
        product of improper promises or inducements. The Florida Supreme Court also
        concluded that Oats' confessions were free and voluntary. Oats v. State, 446 So.2d 90, 93
        (Fla.1984). After reviewing the record, we conclude that Oats' statements to the police
        were voluntary. The interrogating officers did not promise leniency and made no
        statements that would render Oats' confessions involuntary. See Williams v. Johnson,
        845 F.2d 906, 909 (11th Cir.1988). Therefore, we conclude that the state trial court
        properly denied Oats' motion to suppress.
   24
     Oats also contends that his trial counsel were deficient in failing to pursue a defense of
voluntary intoxication. We reject this argument. There were significant inconsistencies in Oats'
statements about his consumption of alcohol and/or use of drugs on the days of the crimes. Oats
reported to Dr. Carrera that he had drunk one beer and used no drugs on December 19 and 20,
1979, yet also stated to Dr. Carrera and others that he consumed a fifth of alcohol, two six packs
of beer, and other drugs each day in the days leading up to the crimes. Oats stated that drinking
this amount of alcohol "would get him high, but not drunk," yet he also reported to Dr. Carrera
that drinking half a pint of liquor would cause him to become "dizzy, see stars and almost faint."
In denying his motion for collateral relief under Rule 3.850, the state court found that Oats
"presented no credible evidence of intoxication at the time of his murder." We agree. Oats'
self-serving and inconsistent statements are not sufficient evidence warranting a jury instruction
on voluntary intoxication under Florida law, see Bertolotti v. State, 534 So.2d 386, 387
(Fla.1988), and thus Oats' trial counsel were not deficient in failing to raise an affirmative
defense that was unreasonable under the circumstances or for failing to request a jury instruction
that was not warranted by the evidence.

                                                 13
3. The Penalty Phase of Trial

        Oats contends that his trial counsel were ineffective in failing to adequately prepare for the

penalty phase of trial. Specifically, Oats argues that his trial counsel (1) failed to ask Dr. Carrera,

the only mental expert who testified during the penalty phase, to address the existence of statutory

and non-statutory mitigating circumstances, (2) failed to call any other mental experts to testify as

to his alleged mental retardation and incompetence, or to testify as to the existence of mitigating

circumstances, and (3) failed to call numerous relatives who could have testified regarding his

abusive childhood and supported a finding of mitigating circumstances.25 Oats contends that if his

trial counsel had adequately prepared for the penalty phase, he would have been able to prove the

statutory mitigating circumstances of extreme mental or emotional disturbance, lack of capacity to

appreciate the criminality of his conduct and conform his conduct to the requirements of the law,

and substantial domination by others.26


                Oats also contends that his trial counsel rendered ineffective assistance by not
        properly challenging the prejudicial effect of his shackling during trial. This specific
        claim is procedurally barred because it was raised for the first time in Oats' appeal from
        the state trial court's denial of his request for Rule 3.850 relief. Oats is unable to
        establish cause for not raising the issue in a timely manner, and is unable to establish
        actual prejudice from the alleged error. See Wainwright v. Sykes, 433 U.S. 72, 90-91, 97
        S.Ct. 2497, 2508-2509, 53 L.Ed.2d 594 (1977). The record shows that Oats' trial counsel
        did object to his appearing in court in a shackled condition, and thus prior to trial a
        procedure was arranged to prevent the jury from seeing Oats' shackles.
   25
     Oats' trial counsel called four of Oats' relatives to testify during the penalty phase: Vernittia
Mae Gant, his sister; Edith Marie Johnson, his aunt; Freddie Oats, his brother; and Willie Mae
Oats, his mother. Oats alleges that his trial counsel were deficient in preparing these witnesses
for the penalty phase.
   26
     Oats relies on the testimony of Drs. Carbonell and Phillips at the Rule 3.850 proceeding that
these mitigating circumstances were present at the time of the offense. He also emphasizes Drs.
Carrera, Gonzalez, and Natal's post hoc suggestions that if Oats' trial counsel had asked them to
consider mitigating circumstances, they probably would have found that Oats was suffering from
an extreme mental disturbance, was unable to conform his conduct to the requirements of the law

                                                  14
       We reject this aspect of Oats' ineffective assistance of counsel argument because he is unable

to satisfy the prejudice prong of Strickland. First, a great deal of evidence regarding potential

mitigating circumstances was introduced during the penalty phase, and apparently rejected by jury

and the judge. The record reveals that Dr. Carrera testified at length about the mistreatment that

Oats suffered at the hands of his aunt during his abusive childhood, the emotional and impulse

disorders that Oats developed as a result of his upbringing, and Oats' history of alcohol and

substance abuse. Dr. Carrera also testified regarding his conclusion that Oats was functioning at

either the "very low average range or possibly the upper part of the borderline range of intelligence"

and at a seventh-grade level in terms of classroom information. Furthermore, four relatives testified

at the penalty phase regarding Oats' mistreatment as a child, the head injury he suffered during

childhood as a result of his aunt's mistreatment, and his frequent headaches and strange behavior.

Following this testimony, trial counsel argued in closing summation that Oats should not receive the

death penalty because he functioned at a "borderline level," that the mitigating circumstance of age

applied, that Oats was under an extreme mental or emotional disturbance at the time of offense, and

that Oats was unable to appreciate the criminality of his conduct.

       With regard to Oats' contention that his trial counsel should have called other experts, such

as Drs. Phillips and Carbonell, to testify as to his mental retardation and brain damage and the

existence of mitigating circumstances, we note that the state court, after the eleven day Rule 3.850

hearing, rejected this argument based on its finding that



at the time of the offense, and was under the substantial domination of others. This testimony
was contradicted by Drs. Mutter and Haber, who after interviewing and evaluating Oats,
concluded that he was not under an extreme emotional or mental disturbance at the time of
crime, and that he had the capacity to conform his conduct to the requirements of law and
capacity to appreciate the criminality of his conduct.

                                                 15
          the factual bases upon which these experts posit their opinion are not believable and are not
          supported by such objective evidence as to suggest a reasonable possibility that the jury's
          recommendation and therefore the sentence would have been different. Moreover, the
          ultimate conclusions of the experts are positively refuted by the record, including the
          Defendant's conduct prior to, during, and subsequent to the criminal episodes and throughout
          the judicial proceedings.

Order Denying 3.850 Relief, at 5 (November 21, 1990). These state court findings of fact are

entitled to deference, see Strickland, 466 U.S. at 698, 104 S.Ct. at 2070 (stating that state court

findings of fact made in the course of deciding an ineffective assistance of counsel claim are subject

to the deference requirement of § 2254(d)). Our review of the record of the Rule 3.850 proceeding

persuades us that these factual findings are fairly supported by the record. The state court's finding

of fact discrediting the factual bases of the defense mental health experts has support in the record

and undermines the opinions of these experts. Moreover, if Oats had sought to call Drs. Carbonell

and Phillips to testify regarding his mental functioning and brain damage, the State could have called

Drs. Mutter and Haber to contradict these conclusions.27 Also, the potential testimony of the defense

mental health experts regarding the existence of mitigating circumstances could have been rebutted

by the State. Drs. Mutter and Haber concluded that Oats was not under the influence of an extreme

mental or emotional disturbance at the time of the offense, and had the capacity to conform his

conduct to the requirements of the law.           Drs. Mutter and Haber also testified that Oats'

conduct-during the offense and its aftermath, his detailed confession, his conduct during his two

escapes, and his conduct during the litigation proceedings-was inconsistent with the picture of Oats

painted by the defense experts. In light of the foregoing, in light of the fact that the substance of

Oats' mental deficiencies and abusive childhood were presented to the jury, and in light of the four



   27
        See supra note 13.

                                                   16
strong aggravating circumstances found by the sentencing judge on remand,28 we conclude that there

is no reasonable probability that the jury would have returned a life sentence. Thus, Oats has failed

to satisfy the prejudice prong of Strickland. See Daugherty v. Dugger, 839 F.2d 1426, 1432 (11th

Cir.1988) (concluding that "given the severity of the aggravating circumstances in this case, we

cannot conclude that the absence of psychiatric testimony in the sentencing phase creates a

reasonable probability that the jury would have recommended life").29

4. Oats' Competency at Resentencing

           As previously noted, the Florida Supreme Court affirmed Oats' conviction but found error

in the sentence and remanded to the state trial court for resentencing. Oats v. State, 446 So.2d 90,

95-96 (Fla.1984). When the case returned to the trial court in 1984, Oats' trial counsel filed a series

of motions including a motion seeking the appointment of three mental health experts pursuant to

Florida Rule of Criminal Procedure 3.740 (1984) entitled "Procedure When Insanity Is Alleged as

Cause for Not Pronouncing Sentence." Rule 3.740 at that time30 provided that "if the court has

reasonable ground to believe that the defendant is insane, it shall ... immediately fix a time for a

hearing ... [and] may appoint not exceeding three disinterested qualified experts to examine the


   28
        See supra note 8.
   29
     Oats' brief on appeal also includes a separate claim entitled "The Ake v. Oklahoma Claim."
See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). However, the thrust
of Oats' argument is merely a restatement of his claim that counsel was ineffective in failing to
ensure that he received a comprehensive and competent mental health evaluation, a claim which
we reject in the text. To the extent Oats has attempted to articulate a different, but related claim,
his attempt is too vague and imprecise; we decline to address any such claim.
   30
    The Florida Rules of Criminal Procedure have since been completely revised. Rule 3.740
was repealed in 1988 at the same time that Rule 3.210 et seq. (Competency to Stand Trial) was
amended to apply to all stages of a criminal proceeding. See In re Amendments to Florida Rules
of Criminal Procedure, 536 So.2d 992, 994-996 (Fla.1988).

                                                  17
defendant and testify at the hearing as to his mental condition." The trial court conducted a hearing

on the motion for the purpose of determining whether experts should be appointed and whether a

further hearing should be scheduled in accordance with Rule 3.740. During that hearing, Oats'

counsel recounted at length the history of the case and Oats' deprived background, represented to

the court his belief that Oats lacked the mental capacity to proceed with a sentencing hearing, and

invited the trial judge to personally question Oats concerning his understanding of the resentencing

proceedings. Oats then testified and was examined by his counsel and cross-examined by the

prosecution about his understanding of the impending resentencing hearing. At the conclusion of

Oats' testimony, the trial judge denied the motion and proceeded with the resentencing hearing based

on the judge's finding that there were no reasonable grounds to believe that Oats was insane and

unable to proceed in the resentencing.

          Oats appealed the trial court's refusal to appoint a panel of experts to determine his sanity

at resentencing and the Florida Supreme Court affirmed. Oats v. State, 472 So.2d 1143, 1144

(Fla.1985). The court concluded that the trial judge did not abuse his discretion in denying Oats'

Rule 3.740 motion and concluded that the clear language of Rule 3.740 required the sentencing court

to find reasonable grounds for believing that a defendant is insane as a precondition to the

appointment of experts and the scheduling of a further hearing. Id. In discussing Rule 3.740, the

court contrasted the language of Rule 3.740 with the language of Rule 3.210 (Competency to Stand

Trial) and Rule 3.216 (Insanity at the Time of the Offense) as they then existed,31 and emphasized

that the appointment of experts under those rules, which applied to earlier stages of criminal

proceedings, was automatically triggered by the mere filing of a motion by defense counsel, whereas


   31
        See supra note 30.

                                                   18
Rule 3.740, specifically applicable to sentencing, required a prior judicial determination of

reasonable grounds. The court concluded, therefore, that under Rule 3.740, unlike the other rules,

an assertion of incompetency by defense counsel was not sufficient, standing alone, to mandate

appointment of mental health experts and a hearing on competency. Id.

        In this appeal, Oats contends that he received ineffective assistance of trial counsel because

his trial counsel filed the resentencing motion under the "wrong rule." Oats argues that if his trial

counsel had sought a competency evaluation under Florida Rules 3.210 or 3.216, the appointment

of experts at resentencing would have been mandatory. We reject this argument as without merit

because Oats' trial counsel filed the motion under the right rule as the rules existed at that time.32

Under the clear language of the rules, Rule 3.740 applied to claims of insanity and/or incompetence

at sentencing, while Rules 3.210 and 3.216 applied to earlier stages of criminal proceedings.33

        Oats also claims that his procedural due process rights were violated under Pate v. Robinson,

383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), because the judge at his resentencing failed to

conduct a sua sponte competency hearing despite information raising a bona fide doubt as to his

competency.34 We reject this argument as without merit. As noted above, Oats' counsel made a

   32
     Oats contends that the Florida Supreme Court "clearly noted" trial counsel's error in filing
the motion under Rule 3.740. Oats is mistaken. The Court's reference to Rules 3.210 and 3.216
was not made to suggest that Oats' trial counsel should have invoked them instead of Rule 3.740;
rather, the reference to those rules was made as part of the Court's explanation of its
interpretation of Rule 3.740. Oats v. State, 472 So.2d at 1144.
   33
     Oats also contends that his trial counsel rendered ineffective assistance of counsel at
resentencing by failing to present "available and compelling" evidence of mitigating
circumstances. We conclude that Oats is unable to satisfy the prejudice prong of Strickland for
the same reasons that we rejected Oats' claim relating to his original sentencing. See supra
Section II.A.3.
   34
    Oats contends that his mental state deteriorated between the 1981 sentencing and the
resentencing in 1984. In rejecting Oats' Rule 3.850 claim for post-conviction relief, the state

                                                 19
motion objecting to resentencing on the grounds that Oats was insane and asked the judge to inquire

of Oats whether he understood the nature of the resentencing proceedings, and as a result, Oats

testified at the hearing. Having observed Oats' demeanor at both the resentencing hearing and

during the prior litigation of the case, and having reviewed the prior reports of court-appointed

mental health experts, the judge found that there was no reasonable basis to believe that Oats was

insane and unable to proceed in the resentencing. After reviewing the record, we conclude that there

was no evidence before the trial judge at resentencing that would raise a bona fide doubt as to Oats'

competency, and thus the court did not have a sua sponte duty to hold a competency hearing under

Pate.

B. Whether Oats Was Entitled to a New Advisory Jury at Resentencing

        In Oats v. State, 446 So.2d 90, 95-96 (Fla.1984), the Florida Supreme Court affirmed Oats'

conviction, but set aside his death sentence and remanded for "entry of a new sentencing order"

because the trial court erred in its determination of three of the aggravating circumstances.35



trial court found that "no new evidence was presented in the 3.850 hearing to cast any doubt on
the Defendant's competency [in April 1984]." Order Denying Rule 3.850 Relief, at 4 (November
21, 1990). This factual finding is entitled to a presumption of correctness, see Baal, 495 U.S. at
735, 110 S.Ct. at 2225 (1990); Maggio, 462 U.S. at 117, 103 S.Ct. at 2264 (1983); Hogan, 986
F.2d at 1372, and we conclude that the finding is fairly supported by the record. Based on this
reasoning, we also reject Oats' substantive claim that he was incompetent at the resentencing in
1984.
   35
     In sentencing Oats to death, the trial judge found that the State had proven beyond a
reasonable doubt six statutorily enumerated aggravating circumstances and only one mitigating
circumstance. Oats, 446 So.2d at 95. The Florida Supreme Court concluded that the trial judge
erred by (1) finding that the "heinous, atrocious, or cruel" aggravating circumstance was
applicable, (2) "doubling up" on the aggravating circumstances of "commission of a crime
during a robbery" and murder "for pecuniary gain," and (3) considering Oats' prior conviction in
the ABC liquor store case as an aggravating factor because that conviction was later reversed.
Id. However, in regard to the ABC liquor store conviction, the Florida Supreme Court noted that
Oats had subsequently been convicted on retrial in that case, and thus on remand for

                                                 20
Following remand, Oats' counsel moved for the court to impanel a new jury for resentencing. The

court denied the motion, and the Florida Supreme Court affirmed this denial based on its conclusion

in the original appeal that " "[b]ecause a new jury would be considering essentially the same

evidence as was presented to the original jury, we find no reason to resubmit the evidence to a jury.'

" Oats v. State, 472 So.2d 1143, 1145 (Fla.1985) (quoting Oats v. State, 446 So.2d 90, 95

(Fla.1984)).

        Oats claims that he was entitled to have a new penalty phase jury impaneled upon remand

for reweighing of the aggravating and mitigating circumstances. We reject this argument because

the errors that occurred at the original sentencing proceeding did not affect the jury's

recommendation. See Funchess v. Wainwright, 772 F.2d 683, 692-93 (11th Cir.1985) (concluding

a new advisory jury was not required on remand because the initial proceeding was free from serious

error); Proffitt v. Wainwright, 756 F.2d 1500, 1503 (11th Cir.1985) (same). First, we emphasize

that there was no error found in either the trial court's evidentiary rulings or in its definitional

instructions to the jury regarding aggravating and mitigating circumstances. See Menendez v. State,

368 So.2d 1278, 1282 (Fla.1979) (concluding that it was not essential for a new jury to be convened

on remand for resentencing because the defendant had not demonstrated any error in the instructions

given to the jury or the evidence it considered in making its recommendation).36 Oats contends that

"erroneous information" about the ABC liquor store crimes was presented to the original jury




resentencing, there would be no need to resubmit the evidence to a jury for resentencing. Id.
   36
    In Menendez v. State, 368 So.2d at 1282, the Florida Supreme Court vacated the defendant's
death sentence because the trial judge improperly considered six aggravating circumstances, and
remanded to the trial judge for consideration of the one properly found aggravating circumstance
and one mitigating circumstance.

                                                 21
because the jury heard evidence that Oats was convicted of attempted first degree murder and

robbery in the ABC liquor store case, but the convictions were subsequently reversed and Oats was

convicted of attempted second degree murder and robbery after a retrial.37 We disagree. Second

degree attempted murder and robbery are prior violent felony convictions and thus supported the

aggravating circumstance that Oats was previously convicted of a "felony involving the use or threat

of violence to the person." See Fla. Stat. § 921.141(5)(b). Furthermore, the same underlying facts

presented to the jury regarding the ABC liquor store case supported both Oats' original conviction

and his conviction after retrial in that case.38 Therefore, we agree with the Florida Supreme Court

that a new jury would be considering essentially the same evidence as was presented to the original

jury. We reject Oats' argument that a new advisory jury should have been impaneled for

resentencing.

                                       III. CONCLUSION




   37
        See supra note 7.
   38
      To the extent that Oats argues that a new jury should have been impaneled because the
Florida Supreme Court held that the evidence did not support the trial judge's finding of a
heinous aggravator and did not support the finding of both a robbery and pecuniary gain
aggravator, Oats v. State, 446 So.2d at 95, we conclude that this argument is without merit. The
jury of course did not know that the trial judge would later find the heinous factor or make the
doubling-up error. Rather, Oats' argument would be that the jury should never have been given
an instruction that included the heinous factor or both the robbery and pecuniary gain factors.
Oats' trial counsel argued both of these precise points to the jury during the penalty phase of
trial, and we decline to presume that the jury based its death sentence recommendation on those
aggravating circumstances that were not supported by the evidence. See Sochor v. Florida, 504
U.S. 527, 538, 112 S.Ct. 2114, 2122, 119 L.Ed.2d 326 (1992) (concluding that a jury is "likely to
disregard an option unsupported by evidence," and thus Court would not presume that jury's
sentence recommendation rested on an aggravating circumstance that was not supported in the
evidence).

                                                22
        For the foregoing reasons, we affirm the district court's order denying Oats' petition for a writ

of habeas corpus.

        AFFIRMED.39




   39
     Oats' other claims on appeal are either procedurally barred or are without merit and warrant
no discussion. Oats contends that: (1) the jury instructions on the "heinous, atrocious, and
cruel" and "cold, calculated, and premeditated" aggravating circumstances were constitutionally
inadequate and a narrowing construction of these aggravators should have been applied during
the "sentencing calculus;" (2) certain instructions and prosecutorial arguments diluted the jury's
sense of responsibility for sentencing in violation of Caldwell v. Mississippi, 472 U.S. 320, 105
S.Ct. 2633, 86 L.Ed.2d 231 (1985); (3) the jury was erroneously instructed that a majority vote
was required to recommend life imprisonment; (4) the trial court's sentencing and resentencing
orders failed to detail specific factual findings in support of each aggravating and mitigating
factor related to imposition of the death penalty; (5) the execution of a person with Oats' mental
deficiencies violates the Eighth and Fourteenth Amendments; (6) Florida's capital sentencing
scheme violates the Eighth and Fourteenth Amendments; and (7) the state trial judge was
biased. These claims are procedurally barred. Any allegations of ineffective assistance of
counsel (trial or appellate) in failing to raise these claims are without merit. In addition, the
contention numbered (1) above is also Teague barred. Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989); see Glock v. Singletary, 65 F.3d 878, 890 (11th Cir.1995) (en
banc).

                In addition, the following claims are without merit and warrant no discussion: (1)
        the argument that Oats was denied his right to a fair and impartial jury in violation of
        Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), because of the trial
        court's failure to change venue and/or sequester the jury; (2) the argument that the
        introduction of evidence relating to the ABC store robbery/shooting rendered Oats' trial
        fundamentally unfair; and (3) the allegation of prosecutorial misconduct. To the extent
        that Oats has made other arguments not mentioned specifically in this opinion, these
        claims are also rejected without need for discussion.

                Finally, we need not decide whether the Florida Board of Executive Clemency is
        required, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),
        to reveal the information in Oats' "clemency investigation file" because Oats has not
        made a showing that any information in this file is either exculpatory or was unavailable
        to him.

                                                   23
