                                  Linroy BOTTOSON, Petitioner-Appellant,
                                                        v.

        Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent-Appellee.

                                                  No. 98-2886.

                                        United States Court of Appeals,

                                                Eleventh Circuit.
                                                 Nov. 29, 2000.

Appeal from the United States District Court for the Middle District of Florida.(No. 97-00457-CV-ORL-
19A), Patricia C. Fawsett, Judge.

Before ANDERSON, Chief Judge, and TJOFLAT and COX, Circuit Judges.

        ANDERSON, Chief Judge:
         Linroy Bottoson was convicted of murder in the state courts of Florida and received a death sentence.

The district court denied Bottoson's petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254. We
granted a certificate of appealability to review: (1) whether Bottoson's right to a reliable sentencing hearing

was violated by the trial judge's instruction that the jury could consider only statutory mitigating evidence,

the Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), issue; and (2) whether

Bottoson was denied the constitutional right to effective assistance of counsel at the penalty phase of his trial.1
We now affirm.
                                              I. BACKGROUND

        On Friday October 26, 1979, the Eatonville, Florida, post office was robbed, and money orders were
taken. Catherine Alexander, the postmistress of Eatonville, was last seen leaving the post office on that day

at around noon led by a tall African-American man. As she left, she whispered to bystanders to call the police
and to tell them that the man was stealing. Later that day, Bottoson's wife attempted to cash one of the



    1
     We granted a certificate of appealability both on whether Bottoson was denied effective assistance of
counsel in the sentencing phase of the trial and on whether Bottoson's trial counsel was prevented from
providing effective assistance of counsel because of conditions created by statute or state law, including a
statutory fee cap. However, we will consider these two issues together as part of Bottoson's claim for
ineffective assistance of counsel at the penalty phase of his trial.

                In his brief on appeal, Bottoson asserts a constitutional challenge to the application of
        AEDPA to his case. However, in his application to this court for a certification of appealability,
        he did not seek leave to present this issue, and thus this court did not grant a certificate of
        appealability with respect to it. Under these circumstances, we do not address this issue. Murray
        v. United States, 145 F.3d 1249 (11th Cir.1998).
missing money orders, and Bottoson and his wife came under suspicion. Postal inspectors entered Bottoson's

home on Monday October 29 and arrested him and his wife. Upon searching Bottoson's home the next day,
postal inspectors found the missing money orders and Mrs. Alexander's shoes. Mrs. Alexander's body was

found on the side of a dirt road on the same night that the Bottosons were arrested. The victim had been

stabbed fourteen times in the back and once in the abdomen. The medical examiner testified that she died

from crushing injuries to the chest and abdomen which were consistent with having been run over by an
automobile. The undercarriage of Bottoson's car, a brown Chevelle, contained hair samples and clothing

impressions linked to the victim's hair and clothing. Expert evidence indicated that clothing fibers similar
to those in the victim's clothes and a tip of the victim's fingernail were found in the trunk of Bottoson's car.

        At trial, witnesses could not identify Bottoson as the man seen leaving the post office with the victim

but identified from a photograph a car, a red LTD automobile, that was rented to Bottoson at the time as the
car in which the victim was taken away. A postal inspector identified the money orders found in Bottoson's
home and traced them to the machine at the Eatonville post office. In addition, there was evidence that

Bottoson deposited some of the stolen money orders in his bank account. Evidence was also presented that
hair samples and clothing impressions found on Bottoson's car, a brown Chevelle, were consistent with

having come from the victim's body. Expert evidence indicated that clothing fibers similar to those in the
victim's clothes and a tip of the victim's fingernail were found inside Bottoson's car.
        Bottoson's former wife, who was married to him at the time of the murder, testified that Bottoson was

away from home around noon on Friday, October 26 and that he gave her a postal money order upon
returning home. She testified that on the following Monday, she did not see him from 1:30 p.m. until 10:00

p.m. and that he had the brown Chevelle at the time. A jailhouse informant testified that Bottoson confessed
to the murder and indicated that the best witness is a dead witness. He also testified that Bottoson said that

"the old bitch had a lot of fight in her." Bottoson also gave a written confession to a minister in an effort to

obtain leniency. In the confession, Bottoson wrote that "demon spirits" had "got on me."
        Bottoson testified at trial. He testified that on October 26, he loaned the rental car to a man named

Ernest and that Ernest returned with the money orders. He further testified that he loaned the brown Chevelle

to Ernest on October 29, and that, when Ernest returned, he admitted killing the victim. Ernest then drove

Bottoson to the site of the murder and Bottoson got out of the car to look at the body. Bottoson denied
making any confessions. A jury found Bottoson guilty of first-degree murder.

        At the sentencing hearing, the state presented an FBI agent who testified that Bottoson was convicted
of bank robbery in 1971. Bottoson's counsel presented the testimony of a minister, the minister's wife, and

Bottoson's mother, who described Bottoson as kind, honest, respectable, caring, and unselfishly devoted to
his church.

          The jury recommended that Bottoson be sentenced to death, and the trial judge imposed a death

sentence. The Florida Supreme Court affirmed the conviction and death sentence. See Bottoson v. State, 443

So.2d 962, 966 (Fla.1983), cert. denied, Bottoson v. Florida, 469 U.S. 873, 105 S.Ct. 223, 83 L.Ed.2d 153

(1984).

          In 1991, a postconviction hearing was held pursuant to Florida Rule of Criminal Procedure 3.850.
The bulk of that hearing focused on Bottoson's claim that his lawyer was ineffective during the penalty phase

of the trial. The court denied relief, and the Florida Supreme Court affirmed. See Bottoson v. State, 674

So.2d 621, 625 (Fla.1996).
          Bottoson then applied for a federal writ of habeas corpus on April 22, 1997. The District Court for

the Middle District of Florida, Orlando Division, denied relief on June 2, 1998. We subsequently granted
a Certificate of Appealability.
                                         II. STANDARD OF REVIEW

          Because Bottoson filed his petition in April 1997, almost one year after the effective date of the
Antiterrorism and Effective Death Penalty Act (AEDPA), this case is governed by 28 U.S.C. § 2254 as
amended by the AEDPA. Section 2254 provides:
(d)       An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment
          of a State court shall not be granted with respect to any claim that was adjudicated on the merits in
          State court proceedings unless the adjudication of the claim—
(1)       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; or
(2)       resulted in a decision that was based on an unreasonable determination of the facts in light of the
          evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1). A factual finding by a state court is presumed to be correct, and a petitioner must

rebut the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e).

          A state-court decision is contrary to the Supreme Court's clearly established precedent (1) if the state

court applies a rule that contradicts the governing law as set forth in Supreme Court case law, or (2) if the

state court confronts a set of facts that are materially indistinguishable from those in a decision of the

Supreme Court and nevertheless arrives at a result different from Supreme Court precedent. See Williams
v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000).

         A state court decision involves an unreasonable application of Supreme Court precedent "if the state

court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to

the facts of the particular state prisoner's case." Williams, 120 S.Ct. at 1520. In addition, a state court

decision involves an unreasonable application of Supreme Court precedent "if the state court either

unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not

apply or unreasonably refuses to extend that principle to a new context where it should apply." Id.

                                              III. DISCUSSION

A.      Hitchcock Claim

         Bottoson argues that the jury instructions at his sentencing hearing violated Hitchcock v. Dugger,

481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). In Hitchcock, the Supreme Court held that instructions

to an advisory jury and a sentencing judge not to consider nonstatutory mitigating factors rendered the

resulting death sentence invalid. See id. at 398-99, 107 S.Ct. at 1824-25. The sentencing judge in that case

refused to consider nonstatutory mitigating evidence, and there was no showing that the error was harmless.

See id. at 398-99, 107 S.Ct. at 1824. In this case, the sentencing judge instructed the jury as follows:

        The mitigating circumstances which you may consider, if established by the evidence, are these: A,
        that the Defendant has no significant history of prior criminal activity. B, that the crime for which
        the Defendant is to be sentenced was committed while the Defendant was under the influence of
        extreme mental or emotional disturbance. C, that the victim was a participant in the Defendant's
        conduct or consented to the act. D, that the [Defendant] was an accomplice in the offense for which
        he is to be sentenced but the offense was committed by another person and the Defendant's
        participation was relatively minor. E, that the Defendant acted under extreme duress or under the
        substantial domination of another person. F, the capacity of the Defendant to appreciate the
        criminality of his conduct or to conform his conduct to the requirements of law was substantially
        impaired. G, the age of the Defendant at the time of the crime.
Both the 3.850 hearing court and the Florida Supreme Court held that any such error in this case was

harmless. See Bottoson v. State, 674 So.2d at 622-23. We cannot say that that determination was contrary

to or involved an unreasonable application of Supreme Court law, or resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented.

        The sentencing court in this case allowed the presentation of non-statutory mitigating evidence and
did not expressly tell the jury that it could not consider such evidence. In his closing remarks, the prosecutor

told the jury "under the law, you all can bring in anything you want to by way of mitigation." The prosecutor

then summarized the non-statutory mitigating evidence presented and expressly told the jury that it could
consider the evidence. The non-statutory mitigating evidence that was presented consisted of testimony that
Bottoson was a devout church member, counseled members of the congregation, was overheard counseling
another prisoner, and was a good son. The Florida Supreme Court weighed the nonstatutory mitigating

evidence presented and found the error harmless beyond a reasonable doubt. The Florida Supreme Court's

decision was not contrary to Hitchcock, and its conclusion was reasonable and supported by the record. We

thus deny relief as to this claim.

B.       Strickland Claim

         In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme

Court established a two-prong test that a habeas petitioner must satisfy to maintain an ineffective assistance
of counsel claim:

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

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. It is well established that a habeas petitioner must demonstrate

both deficient performance and prejudice, and that a failure with respect to either prong constitutes a failure

to demonstrate ineffective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369-

70, 88 L.Ed.2d 203 (1985). Both the 3.850 court and the Florida Supreme Court focused primarily on the
prejudice prong, and we do likewise.

         To satisfy the prejudice prong of the Strickland test, the "defendant must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."

Id. at 694, 104 S.Ct. at 2068.

         The claim of ineffective assistance of counsel that Bottoson presents in this appeal is that his trial
counsel, Schaeffer, failed to investigate his background and to discover and present mental health evidence

at the penalty phase of Bottoson's trial.2 As noted above, the AEDPA applies in this case. Therefore, findings
of fact by the state court are presumed to be correct, and Bottoson must rebut the presumption of correctness

by clear and convincing evidence. See 28 U.S.C. § 2254(e). Furthermore, because this claim was adjudicated

on the merits in the state court, we cannot grant the writ of habeas corpus unless the state court's adjudication


     2
     Bottoson also argues that his counsel was ineffective generally for failure to adequately prepare for
the penalty phase, and that the statutory fee cap in existence at the time of the trial prevented his attorney
from rendering effective assistance. However, in light of our holding that Bottoson has failed to satisfy
the prejudice prong, we find no merit to these claims.
of the claim "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; ... or resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C.

§ 2254(d). The standard for effective assistance of counsel, as enunciated in Strickland v. Washington is

"clearly established" Supreme Court law. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1511-12, 146

L.Ed.2d 389 (2000). The state court in the instant case applied the correct "reasonable probability" standard
with respect to the prejudice prong, and the facts of the instant case are not materially indistinguishable from

a decision of the Supreme Court concluding that the "reasonable probability" standard had been satisfied;

thus, the state court adjudication in this case is not "contrary to" Strickland. See Williams v. Taylor, 120 S.Ct.

at 1519-20. Accordingly, the issue in the instant case is whether the state court adjudication of this claim

involved an unreasonable application of Strickland. In light of the fact that the state court here has correctly

identified the governing legal rule, i.e., Strickland 's "reasonable probability" standard, the issue before this

court is whether the state court adjudication involved an unreasonable application of that standard. Williams

v. Taylor, 120 S.Ct. at 1522.

        Thus, we begin our analysis with the state court adjudication of this claim and application of

Strickland's prejudice prong. The 3.850 court held evidentiary hearings in April and November of 1991,

consisting of a total of about 10 days. With the record of the proceedings at trial before him, and having
personally heard all of the evidence presented during the 1991 proceeding, the 3.850 judge concluded as

follows with respect to Strickland's prejudice prong:

        In any event, this court has extensively reviewed this claim in light of the entire record, and finds that
        even if counsel's performance may have been deficient in some respects, any failure was not
        prejudicial pursuant to Strickland, 466 U.S. at 668, 104 S.Ct. 2052. The mitigating evidence now
        presented would not outweigh or overcome the aggravating circumstances of this murder.
        Defendant's background, childhood experiences (defendant was 41 years old at the time of trial) and
        religious eccentricities do not compare to the aggravating factors that (1) Mr. Bottoson had been
        previously convicted of a felony, (2) the murder occurred during the commission of a felony, (3) the
        murder was committed to avoid arrest, and (4) the murder was especially heinous because of the
        kidnaping, long confinement and mode of killing of the 74-year old victim.
Order Denying Motion for Post-Conviction Relief, February 5, 1993, at 14.

        On appeal from the order of the 3.850 court, the Florida Supreme Court addressed the merits of this

claim and said the following with respect to Strickland's prejudice prong:

        The record of the post-conviction hearing reflects that Bottoson told Schaeffer that he had been
        treated for depression in Ohio and in connection with his prior robbery conviction in California....

        The post-conviction record further shows that Sheaffer had no personal reservations concerning
        Bottoson's mental health, but in order to be certain he had him examined by two psychiatrists.
        Although these were competency examinations, the psychiatrists' reports necessarily discussed all
        aspects of Bottoson's mental health. After reviewing these reports and talking with one of the
        psychiatrists, Dr. Kirkland, Sheaffer concluded that the presentation of mental health testimony
        would not be helpful to Bottoson....

        Dr. Kirkland, who also testified at the post-conviction hearing, said that Bottoson had told him of the
        psychiatric treatments he had received in Ohio and California. He was aware that Bottoson had
        experienced religious hallucinations, but observed that psychiatrists are loathe to say that this would
        indicate that a person is abnormal or mentally ill. Dr. Kirkland was then shown a card reflecting
        Bottoson's medical diagnosis in Ohio, obtained by the Capital Collateral Representative's investigator
        from another hospital to which Bottoson's records had been transferred. The card referred to a 1962
        diagnosis of acute schizophrenic episode with the words "discharge improved." Dr. Kirkland
        testified that in 1962 this referred to a person who had had a short psychotic episode from which he
        had recovered. He said that had he been provided with that document he would not have changed
        his original evaluation. Dr. Kirkland said that the information on the card together with the medical
        reports which the Capital Collateral Representative was able to obtain from California would have
        led him to conclude that Bottoson was a latent schizophrenic. He explained that this was a term used
        to describe a schizophrenic who had gotten better.

                 ...
        Yet, even with the benefit of both the Ohio and California records, Dr. Kirkland did not indicate that
        he would have testified that any statutory mental mitigators were present. While the Capital
        Collateral Representative's psychiatrist, Dr. Phillips, who examined Bottoson eleven years after the
        murder, testified that both of the statutory mental mitigators were present at the time of the crime,
        the trial judge was entitled to discount his opinion....
        The evidence presented below was conflicting. However, there was competent, substantial evidence
        to support the judge's findings and conclusions. Even if we assume some deficient performance on
        the part of Sheaffer, we cannot say that the evidence raises a reasonable probability that the result
        would have been different if Sheaffer had introduced mental health testimony or called witnesses to
        describe this forty-one-year old man's troubled childhood.

Bottoson v. State, 674 So.2d 621, 624-25 (Fla.1996). As indicated above, the issue before this court is

whether the adjudication of the claim in state court resulted in a decision that involved an unreasonable

application of the Strickland prejudice prong.

         The appropriate analysis of the prejudice prong of Strickland requires an evaluation of "the totality

of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas

proceeding—in reweighing it against the evidence in aggravation." Williams v. Taylor, 120 S.Ct. at 1515.

In Williams, the Court held that the state court adjudication involved an unreasonable application of

Strickland's prejudice prong in part because the state court failed to evaluate the totality of the evidence.

Williams, 120 S.Ct. at 1515, 1525. The Florida Supreme Court in the instant case determined that the 3.850

court discounted Dr. Phillips's opinion, and that it was appropriate to do so under the circumstances. When

there is conflicting testimony by expert witnesses, as here, discounting the testimony of one expert constitutes
a credibility determination, a finding of fact. A finding of fact made by a state court is presumed to be
correct, and a habeas petitioner has the burden of rebutting the presumption of correctness by clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1). As a preliminary matter, we examine the state court's

discount of Dr. Phillips's opinion pursuant to 28 U.S.C. § 2254(e)(1).
         First, we note that the Florida Supreme Court found that the 3.850 judge had discounted Dr. Phillips's

opinion, notwithstanding the fact that the 3.850 judge did not do so explicitly. We conclude that the Florida

Supreme Court reasonably inferred that the 3.850 judge had discounted Dr. Phillips's opinion. The 3.850
judge personally presided over the 10-day hearing, the bulk of which focused on this claim and counsel's

effort to demonstrate mental health mitigating circumstances. Dr. Phillips's testimony was clearly the most

significant evidence presented by Bottoson. Dr. Phillips opined that Bottoson suffered most of his life from
a mental disease known as a schizo-affective disorder, that Bottoson was experiencing an acute or active

phase thereof at the time of the offense, and that Bottoson was at the time of the offense under the influence

of extreme mental or emotional disturbance, and that at the time of the offense Bottoson's capacity to
appreciate the criminality of his conduct and conform his conduct to the requirements of the law was
substantially impaired. In other words, Dr. Phillips testified that two statutory mitigating factors were present.

Notwithstanding the obvious significance of Dr. Phillips's opinion, the 3.850 judge, in weighing the
mitigating evidence presented during the 1991 proceedings, mentioned only defendant's background, his
childhood experiences, and his religious eccentricities. In light of the fact that Dr. Phillips's testimony was
in conflict with the testimony of Dr. Kirkland, and in light of the fact that the 3.850 judge explicitly stated
that he had considered "the entire record," the only reasonable inference is that the 3.850 judge did in fact

discount the testimony of Dr. Phillips, as the Florida Supreme Court found that he did. We conclude that the
finding of the Florida Supreme Court to this effect is amply supported by reasonable inferences from the

opinion of the 3.850 court.

         Second, we inquire whether the finding of fact discounting Dr. Phillips' opinion is entitled to the

statutory presumption of correctness. As noted, Dr. Phillips's opinion was in conflict with that of Dr.
Kirkland. Dr. Kirkland had evaluated Bottoson before trial, and had opined that Bottoson was competent to

stand trial. Dr. Kirkland also testified at the 1991 evidentiary hearing. He expressly disagreed with the

findings of Dr. Phillips. In his testimony, Dr. Kirkland agreed with Dr. Phillips only insofar as Dr. Kirkland
also thought that it was likely that Bottoson suffered from the mental illness of schizophrenia. However, it

is clear from Dr. Kirkland' testimony that he believes that Bottoson's schizophrenia is of the latent type, that

is, in remission most of the time. It is also implicit in Dr. Kirkland's testimony that the mental illness of
schizophrenia would play a motivating role in a person's commission of a crime only if the schizophrenia

were in an acute or active phase. Dr. Kirkland explains in some detail the appropriate way one would go
about retroactively determining whether or not a person's schizophrenia was in an acute or active phase at the

time of a crime. Dr. Kirkland's road map for such determinations would include the following: examination

of the details of the crime and the actions of the accused with a view to whether they evidenced logical

thought processes, on the one hand, or fragmented, psychotic thought processes, on the other hand;
examination of the statements of witnesses who would have observed the accused during the time frame of

the crime to determine whether the person was experiencing hallucinations or other indications of psychotic
behavior; and examination of the evidence to assess whether actions were motivated by normal motivations

or psychotic motivations. In our discussion below, we have followed Dr. Kirkland's road map, and concluded

that the evidence in the instant record strongly suggests that Bottoson was not in fact experiencing an acute
or active phase of his schizophrenia during the time frame of the crime and thus that Bottoson's latent mental
illness would likely play a much less significant role in Bottoson's actions. Because the appropriate analysis

laid out by Dr. Kirkland points strongly to a conclusion contrary to the opinion of Dr. Phillips, and because
Dr. Kirkland expressly disagreed with Dr. Phillips's findings, we conclude that there is support in the instant

record for the finding of fact of the state court discounting Dr. Phillips's opinions. Accordingly, we conclude
that Bottoson has failed to rebut the presumption of correctness by clear and convincing evidence. Therefore,
the failure of the state court to consider Dr. Phillips's opinions as part of the totality of the evidence does not

constitute an unreasonable application of Strickland's prejudice prong. Furthermore, in our own consideration

of the totality of the evidence, we also will discount Dr. Phillips's opinions.
            We turn now to an examination of the totality of the evidence to determine whether the adjudication

of this claim in the state court resulted in a decision that involved an unreasonable application of Strickland's

prejudice prong. As noted, in considering the totality of the evidence, we discount the opinions of Dr.

Phillips.
        We turn first to the evidence of aggravation in this case. The sentencing judge found that Bottoson

had previously been convicted of a crime involving a threat of violence (the 1971 California bank robbery),

that the instant crime was committed during the commission of a felony (both the robbery of the post office
and the kidnaping), that the crime was committed for the purpose of avoiding arrest, and that the crime was

especially heinous, atrocious or cruel. The facts of the instant crime are egregious, and fall comfortably
within the meaning of the Florida aggravating circumstance "especially heinous, atrocious or cruel." The

evidence reveals a murder committed to eliminate the only witness who could surely identify Bottoson. The
murder was accomplished by repeatedly stabbing the victim with a knife, more than 14 times. Then, with

the victim still alive, the murder was completed by running over the victim with an automobile, resulting in

crushing injuries to the chest and abdomen, from which the victim finally died. The victim had been

kidnapped and kept captive for three days. In closing argument, the prosecutor asked the jury to infer that
the victim was kept during this time in the trunk of Bottoson's car. It is certain that the victim spent some

time in the trunk of that car. Clothing fibers and the right little fingernail, both linked to the victim, were
found in the trunk. There was testimony that the trunk reeked of the smell of urine.

        We now summarize the mitigating evidence which is to be weighed against the foregoing aggravating

circumstances. At the penalty phase of the 1981 trial, counsel for Bottoson presented four witnesses, a
minister and the minister's wife, a correctional officer, and Bottoson's mother. The minister and his wife
explained Bottoson's dedication to the church and its members, as well as his nonviolent nature. The minister

testified that Bottoson was the assistant pastor of his church, that the minister handled the service on the
second and fourth Sundays of the month, and that Bottoson carried the service on the first and third Sundays.

The congregation appreciated Bottoson and approved of his handling of the services. He testified that
Bottoson devoted himself unselfishly to the church. He also testified that Bottoson had never exhibited any
violent tendencies; rather, he was kind at all times. Finally, the minister expressed his serious doubts that

Bottoson committed this crime. Bottoson's mother testified that Bottoson had never hurt anybody, and had
never threatened anybody. She testified that he went into the ministry at 13 to 14 years old, and was ordained

at 14 or 15. She testified that he had six children, and begged for mercy. Counsel for Bottoson also called
a correctional officer from the jail that housed both Bottoson and Pertrell Kuniara (a fellow inmate who had

testified that Bottoson had confessed to him, which Bottoson disputed in his own trial testimony). The officer

testified that he had overheard that very morning Kuniara telling a minister that the prosecutor came to see
him yesterday and that he, Kuniara, was going to be released from jail. This of course tended to impeach

Kuniara's testimony that Bottoson had confessed, and tended to support counsel's effort at sentencing to

persuade the jury that there was a lingering doubt about Bottoson's guilt.

        At the penalty phase of the 1981 trial, counsel for Bottoson brought out, on cross-examination of the
FBI officer who had investigated the 1971 California bank robbery, the fact that the California judge at

sentencing had recommended psychiatric evaluations for Bottoson. All of the other mental health mitigating
evidence was adduced at the 1991 evidentiary hearing in the 3.850 court, and can be summarized as follows.

In 1962, Bottoson attempted to commit suicide, and was hospitalized for approximately two weeks, was
diagnosed as having had an acute episode of schizophrenia, and was discharged as improved. The hospital

records with respect to this incident were destroyed by fire, and the only evidence in the record is a card

revealing the foregoing, which was uncovered from another Cleveland institution by the diligent efforts of

Collateral Counsel. Bottoson's brother testified at the 1991 hearing that Bottoson's attempted suicide was
triggered by Bottoson's concern about, and inability to deal with, the situation he was then facing with respect

to his very severely retarded young son. In 1971, Bottoson was evaluated by a psychiatrist in California, Dr.
Verin, after having been arrested for bank robbery in Fresno, California. Dr. Verin's report indicated that

Bottoson heard a voice telling him to rob the bank. Dr. Verin's conclusion was "paranoid schizophrenia,

latent type," and he recommended further psychological attention.
        The foregoing is the only evidence in the instant record of Bottoson's having experienced an acute
or active psychotic episode. Indeed, the 1962 Cleveland, Ohio, incident may be the only one. The diagnosis

in the 1971 California incident was schizophrenia, latent type, although there was evidence at that time that

Bottoson was hearing voices telling him to rob the bank. There is no clear evidence in the record on appeal

that Bottoson experienced any other acute or active psychotic episode.
        However, there is considerable evidence that several laymen (i.e., not medical experts) over the years
have labeled Bottoson's behavior as strange or bizarre. The gist of this evidence is that Bottoson was, from

a very young age, unusually preoccupied with religion. Even as a pre-teen, he would accompany his mother
as they preached on street corners, Bottoson carrying along his little soap box as he preached. Bottoson was

ordained as a minister in the Church of God in Christ at the age of perhaps 15. In his later teens, he
continually worked (though apparently without compensation) as an assistant to several ministers, and
preached sermons from time to time. One member of a congregation, who testified at the 1991 hearing,

remembered two occasions when Bottoson preached; she thought his preaching was incoherent. Several

others related bizarre incidents which led them to believe that Bottoson needed psychiatric care. For example,

Reverend Robinson testified at the 1991 hearing that Bottoson assisted in his church after he was ordained,
and would preach whenever Reverend Robinson would let him. He related that one day when no one was

in the church, Reverend Robinson found him lying down on the altar, praying and stomping and beating the

floor and telling the Lord of his need and asking the Lord to come bless him. Reverend Robinson indicated
that he called Bottoson by name, whereupon Bottoson stopped, got up, and was calm. Reverend Robinson
thought that the incident was strange, but did not question Bottoson's mental health. From an early age,
Bottoson apparently believed that God had given him the gift of healing, although such beliefs were not

uncommon in the Church of God in Christ. This kind of belief was known at the time of trial to the trial

judge,3 Bottoson's attorney, and Dr. Kirkland who examined Bottoson with respect to competency to stand

trial.
            Dr. Kirkland referred to these beliefs and to Bottoson's religious hallucinations both in a 1981 report

to the trial judge and in his testimony at the 1991 evidentiary hearing. In his 1981 evaluation of Bottoson,

Dr. Kirkland learned that Bottoson felt he had special powers of healing and that he might be able to raise

people from the dead. Dr. Kirkland testified in 1991 that his evaluation of Bottoson in 1981 revealed that
Bottoson was dressed appropriately, his actions were appropriate (neither too busy nor lethargic), he was

oriented to his surroundings, his emotional tone or affect was appropriate (not depressed or euphoric), his
thought processes were appropriate and logical. Dr. Kirkland testified that the issue of hallucinations that
have a connection to religion are somewhat difficult for the psychiatrist. He testified that psychiatrists are

loathe to say that such religious practices, if supported by others, are psychotic, even if they have that
appearance.
            With the evidence of Bottoson's 1962 hospitalization and Dr. Verin's 1971 diagnosis of latent

schizophrenia in hand, Dr. Kirkland testified that he would likely consider Bottoson to be a person suffering
from the mental disease of schizophrenia, though in remission.4 It is clear from Dr. Kirkland's testimony that
such a person would sometimes suffer from symptoms of the disease, and sometimes not. That is, such a

person would have acute or active stages of the disease, and times of remission.

            We note, but discount pursuant to the state court finding, that Dr. Phillips drew a causal and temporal
connection between Bottoson's mental disease and his actions in committing the instant crimes, assuming that

Bottoson was suffering from an acute or active phase of schizophrenia at the time. Other than Dr. Phillips's
bald conclusion to this effect, there is only very weak evidence in the record on appeal that Bottoson was in

fact experiencing an acute or active episode of schizophrenia at the time. We summarize the evidence which



     3
         Bottoson wrote several letters to the trial judge to this effect.
     4
     We note that Dr. Verin's diagnosis of schizophrenia, latent type, is consistent with Dr. Kirkland's
opinion. Moreover, the medical records with respect to the California incident indicate that Bottoson was
considered mentally competent at the time, was presently functioning in an acceptable manner, and was
not sufficiently ill to be hospitalized.
might tend to point in the direction of acute schizophrenia as follows. There is the fact that the instant
egregious crime of violence is inconsistent with Bottoson's usually nonviolent demeanor. There is also the

fact that Bottoson was at the time overdrawn at the bank in the amount of about $6,000, and the inference

therefrom of some stress.5 There is also Bottoson's written "confession" delivered to the prosecutor through

the ministers, in which he asserted "demon spirits" had "got on me" at the time. However, that "confession"
was made approximately a year after the crime, and was an obvious attempt to seek leniency (i.e., a 14-year

term to run concurrently with his federal sentence). Finally, there are the letters written by Bottoson around

the time of the trial indicating his belief that the Lord had given him special powers (e.g., healing and even

raising the dead). The significance of this evidence has to be weighed, keeping in mind that Bottoson had
apparently held such beliefs at least since his late teens (and thus are probably consistent with latent stages

of his mental illness), and that Dr. Kirkland testified that psychiatrists are loathe to label such religious
practices as psychotic, if they are supported by others (and there is evidence here that such beliefs are held
by others in Bottoson's church).

        On the other hand, there is considerable evidence that Bottoson was not suffering from an acute
episode of schizophrenia at the time. There is evidence that Bottoson planned to rob the Eatonville Post
Office several days in advance. On Friday, October 26, 1979, Bottoson left his office at about 10:30 a.m.,

drove the 25 miles to Eatonville, robbed the Post Office which he had "cased" several days before, and
kidnaped the Postmistress victim in the instant case. From the time of the kidnapping on Friday, until

Bottoson's arrest at 10:50 p.m. Monday evening, October 29, the state's witnesses trace Bottoson's actions,
accounting for the greatest portion of the intervening time, but leaving several gaps unaccounted for,

including the period of time during which the medical examiner testified that death probably occurred,

namely between 7:00 p.m. and 11:00 p.m. on that Monday, October 29, 1979. The jury obviously inferred
from the state's evidence that Bottoson's actions were careful and premeditated, that he successfully hid the



    5
      Apparently Dr. Phillips's belief that Bottoson was experiencing stress is the primary basis for Dr.
Phillips's belief that Bottoson was experiencing an acute or active episode of schizophrenia. Other than
the fact that Bottoson was overdrawn at the bank, we find very little other evidence in the record that
Bottoson was laboring under any unusual stress at the time. According to his then wife's testimony, his
behavior at the time was completely normal. She had no understanding that they were in financial
trouble. Bottoson and his wife had just recently bought a house and moved in. Bottoson had just recently
started a business of his own. He was active at the time as assistant pastor of Reverend Johnson's church.
Although Dr. Phillips indicated there were marital difficulties at the time, there is no such suggestion in
the then wife's testimony. Rather, she testified that she divorced Bottoson about a year after the crime,
and that the divorce was triggered by the crime.
live kidnapping victim for three days, while Bottoson himself made appearances before numerous witnesses

(his wife, her friend, Ms. Sheard, the church congregation, persons he saw on the twenty-four hour plus visit
and wedding in Macon, and an employee at his office), all the while acting as if nothing had happened. None

of the numerous people who saw Bottoson during the crucial four days testified that he was having

hallucinations or gave any other indication that he was experiencing an acute episode of schizophrenia. There

was no such testimony at trial or at the 1991 evidentiary hearing. To the contrary, Bottoson's former wife,
who was with him for most of the time during the crucial three to four days, testified repeatedly that there was

nothing about his behavior that was out of the ordinary, nothing to suggest that he was carrying around some
great weight. Moreover, the accounts given by defendant of the events of the those crucial days, including

the account given in his trial testimony, were delivered in a logical, articulate manner. The version of the

events given by Bottoson in his trial testimony very carefully account for the evidence which Bottoson knew
the state had (e.g., that the murder weapon, the brown Chevelle, belonged to him and he was found in
possession of the money orders, that the victim's shoes and the knife which was probably used to stab the

victim were found on the porch of his house). In other words, Bottoson's trial testimony was reasonably
viewed as a careful and calculated attempt to create an alibi.

        To assist in our assessment of the extent to which the evidence suggests that Bottoson was
experiencing an acute or active episode of schizophrenia during the time frame of the offense, we follow the
road map laid out in Dr. Kirkland's testimony. First, we examine the details of the crime and the actions of

the accused with a view to whether they evidenced logical thought processes or fragmented, psychotic
thought processes. As indicated above, the details of the crimes and the evidence of Bottoson's actions

suggest, not fragmented or psychotic thought processes, but rather careful and logical planning. Bottoson
planned several days in advance to rob this particular post office, apparently planning to steal money orders.

He implemented the plan calmly. Bottoson successfully hid the kidnapping victim for three days, while he

himself appeared without the kidnapping victim before numerous witnesses and for extended periods of time,
all the while behaving normally and without raising any suspicions. On Saturday afternoon, he exchanged

the red LTD rental car he had used in the robbery and kidnapping for a blue LTD, claiming mechanical

difficulties. Bottoson's actions seem to have been carefully planned and logically directed toward the aim

of hiding the victim and concealing his crimes. Although it was obviously not smart to cash the money orders
(or indeed to commit the crimes themselves), his actions do not appear to be loose or fragmented, as Dr.

Kirkland described psychotic thought processes, but rather appear logical and goal directed.
        Second, we examine the statements of witnesses who would have observed the accused during the

time frame of the crime to determine whether they observed hallucinations or other indications of psychotic
behavior on the part of Bottoson. The eyewitnesses to the robbery and kidnapping testified at trial and

pointed to no strange or bizarre behavior on the part of Bottoson as the robbery and kidnapping unfolded.

Nor was there any such testimony at the 1991 evidentiary hearing. Bottoson and his wife cashed some of the
money orders on Friday afternoon, ate dinner together and watched TV that evening. Bottoson and his wife

spent the next morning, Saturday, October 27, picking up his wife's friend, Mrs. Sheard at the airport.

Bottoson and his wife spent about three hours that Saturday evening at church, and then left with his wife and

Mrs. Sheard around midnight and traveled to Macon, Georgia, for a wedding, returning only early in the
morning hours of Monday, October 29. None of the numerous people who saw Bottoson during this crucial

period of time testified that he was having hallucinations or that he gave any other indication that he was

experiencing an acute episode of schizophrenia. There was no such testimony either at trial or at the 1991
hearing. To the contrary, the evidence is that Bottoson's behavior was normal. Bottoson has failed to adduce

any testimony from persons in position to observe him that he was experiencing an acute or active episode
of schizophrenia during the crucial three to four day period.
        Finally, following Dr. Kirkland's road map, we examine the evidence to assess whether Bottoson's

actions were motivated by normal motivations or psychotic motivations. There is clear evidence of "normal"
motivations, i.e., nonpsychotic motivations. There is evidence that the robbery was motivated by a desire to
obtain money orders to alleviate Bottoson's overdrawn status. There is direct evidence that Bottoson's murder

of the kidnapping victim was motivated by a desire to eliminate the witness who could surely identify him.
        While there is some evidence suggesting the possibility that Bottoson was experiencing an acute or
active episode of schizophrenia,6 stronger evidence suggests that he was not. Under these circumstances, we

cannot conclude that the decision of the state court in this respect was based on an unreasonable determination

of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d)(2).

Thus, accepting the fact that Bottoson was not experiencing an acute or active episode of schizophrenia
during the time frame of the offense, we cannot conclude that the state court was unreasonable in determining

that Bottoson's latent mental illness played an insignificant role with respect to the motivation of Bottoson's



    6
    Probably the strongest evidence is the fact that this egregious and violent crime seems to be
inconsistent with the non-violent, kind demeanor which Bottoson has usually presented.
actions in committing the instant crimes.

        Upon consideration of the entire record, the state court concluded that Bottoson had failed to satisfy

Strickland's prejudice prong, i.e., that Bottoson had failed to show that there is a reasonable probability that,

but for counsel's deficient performance, the result of the sentencing phase would have been different. For the

foregoing reasons, we cannot conclude that the adjudication of this claim in the state court resulted in the

decision that involved an unreasonable application of Strickland's "reasonable probability" standard.

        AFFIRMED.7




    7
     Appellee's motion to strike Appellant's Supplemental Brief is denied.
