Robert Consalvo v. Secretary, Department of Corrections , 664 F.3d 842 ( 2011 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
_____________________________ ELEVENTH CIRCUIT
December 12, 2011
JOHN LEY
No. 10-10533 CLERK
_____________________________
D. C. Docket No. 0:06-cv-61179-UU
ROBERT CONSALVO,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS, Walter A. McNeil
ATTORNEY GENERAL,
Charlie Crist,
Respondents-Appellees.
_________________________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________________________
(December 12, 2011)
Before DUBINA, Chief Judge, TJOFLAT, and EDMONDSON, Circuit Judges.
PER CURIAM:
Petitioner was convicted in Florida state court of armed burglary and first-
degree murder. A sentence of death was imposed. The Florida Supreme Court
affirmed Petitioner’s conviction and sentence and later denied post-conviction
relief. Petitioner then filed this petition in federal court seeking a writ of habeas
corpus. The District Court denied habeas relief but granted a certificate of
appealability on two issues, and this appeal commenced.
BACKGROUND
Petitioner was convicted in Florida state court for armed burglary and the
murder of his neighbor, who before her death had been pursuing charges against
Petitioner for the theft of $140 from her car. The Victim was stabbed to death in
her home, which showed signs of a break-in. After the Victim was last seen alive
and before her body discovered, video recordings showed Petitioner using her
ATM card and driving a car similar to hers. Petitioner was also found with
checkbooks belonging to the Victim.
While in jail, Petitioner made various inculpatory statements to fellow
inmates Mark DaCosta (“DaCosta”) and William Palmer (“Palmer”). DaCosta and
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Palmer later testified against Petitioner at the Grand Jury hearing resulting in
Petitioner’s indictment; Palmer also testified at trial.
Following Petitioner’s conviction for armed burglary and first-degree
murder, the trial judge -- consistent with the jury’s earlier recommendation --
imposed a capital sentence. On direct appeal, the Florida Supreme Court affirmed
both Petitioner’s convictions and death sentence. Consalvo v. State, 697 So. 2d
805 (Fla. 1996) (“Consalvo I”).
Petitioner next challenged his convictions and death sentence by filing a
motion for post-conviction relief in state trial court. The state trial court held an
evidentiary hearing and considered Petitioner’s many claims for relief, including
recent recantations of testimony by several witnesses. The state trial court
determined that the witnesses’ recantation testimony was incredible. Instead, the
state trial court credited the testimony of the state attorneys, who refuted the
testimony of the recanting witnesses. The state trial court entered a final order
denying Petitioner’s amended motion for post-conviction relief. And the Florida
Supreme Court affirmed the state trial court’s denial of the post-conviction
motion. Consalvo v. State, 937 So. 2d 555 (Fla. 2006) (“Consalvo II”).
Petitioner next turned to the federal courts for post-conviction relief, filing
this habeas petition and raising many claims for relief. The District Court denied
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Petitioner’s habeas petition and later denied Petitioner’s motion to amend or alter
its judgment. But the District Court granted a certificate of appealability on two
issues: (1) Whether the state supreme court unreasonably applied federal law in
affirming the trial court’s rejection of Petitioner’s constitutional claims under
Brady v. Maryland, 83 S. Ct. 1194 (1963) and Giglio v. United States, 92 S. Ct.
763 (1972); and (2) Whether the state supreme court unreasonably applied clearly
established federal law in rejecting Petitioner’s claim that reference to evidence
during sentencing that was not presented in open court was harmful and violated
his constitutional rights as promulgated by the Supreme Court in Gardner v.
Florida, 97 S. Ct. 1197 (1977).
STANDARD OF REVIEW
Petitioner’s habeas petition is subject to the provisions of the Antiterrorism
and Effective Death Penalty Act of 1996, Pub L. 104-132, 110 Stat. 1214 (1996)
(codified in scattered sections of Title 28 of the U.S. Code) (“the AEDPA”). To
obtain habeas relief under the AEDPA, Petitioner must demonstrate that the state
court’s post-conviction ruling was (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
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Court of the United States;” or (2) “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), (2). The AEDPA imposes an “exacting standard.” Maharaj v. Sec’y,
Dep’t of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005).
A state court’s decision is “contrary to” federal law if the “state court arrives
at a conclusion opposite to that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than [the Supreme] Court has on
a set of materially indistinguishable facts.” Williams v. Taylor, 120 S. Ct. 1495,
1523 (2000). A state court’s decision is based on an “unreasonable application” of
federal law if “the state court identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.” Id. Findings of fact by a state court are presumed
correct, and a petitioner for habeas corpus must rebut the presumption by clear and
convincing evidence. See Hunter v. Sec’y, Dep’t of Corr., 395 F.3d 1196, 1200
(11th Cir. 2005).
We review de novo the District Court’s decision about whether the state
court’s ruling was contrary to federal law, involved an unreasonable application of
federal law, or was based on an unreasonable determination of the facts. Smith v.
Sec’y, Dep’t of Corr., 572 F.3d 1327, 1332 (11th Cir. 2009).
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DISCUSSION
A. Petitioner’s Brady and Giglio Claims
Petitioner argues that he is entitled to habeas relief because the state
withheld material exculpatory evidence and knowingly presented false or
misleading evidence to the jury at his trial. Brady requires the state to disclose
material exculpatory evidence in its possession. 83 S. Ct. at 1196-97. The duty to
disclose required by Brady includes the disclosure of evidence that may be used
for impeachment purposes and evidence that may be used to attack the
“thoroughness and even the good faith of the investigation[.]” Kyles v. Whitley,
115 S. Ct. 1555, 1571 (1995). Giglio is closely related and dictates that the
presentation of known false evidence violates due process and is “incompatible
with rudimentary demands of justice.” 92 S. Ct. at 766 (internal quotation marks
omitted).
To summarize, Petitioner claims the state did not meet its Brady obligations
in failing to disclose these things: the identity of Informant DaCosta; that
prosecutors met with and supplied information to DaCosta; that prosecutors
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recruited DaCosta to act as the state’s agent; that prosecutors purposefully had
DaCosta placed in Petitioner’s pod at a jail; that DaCosta spoke to Informant
Palmer about Petitioner’s case at the state’s behest and provided Palmer with
information received from the state; and that Palmer made false statements to
detectives, in grand jury testimony, and at trial.
In a similar way, Petitioner claims that, in contravention of Giglio, the state
violated his due process rights by failing to correct the false testimony of DaCosta
and Palmer and by using the false testimony to the state’s benefit. Petitioner
asserts that both DaCosta and Palmer received favorable treatment and leniency
from prosecutors in exchange for their cooperation in Petitioner’s case. Petitioner
points to DaCosta and Palmer’s later recantations of their testimony inculpating
Petitioner -- and the allegedly inconsistent testimony of Assistant State’s Attorney
(“ASA”) Ken Farnsworth -- at the state court post-conviction evidentiary hearing.
Florida points to the state court post-conviction evidentiary hearing testimony of
ASA Brian Cavanagh and others, who countered the recantations of DaCosta and
Palmer.
Petitioner’s Brady and Giglio claims turn upon credibility: the dispositive
determination is whether to credit the state post-conviction hearing recantations of
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DaCosta and Palmer or the contradictory testimony of the assistant state’s attorney
(among others) at the same hearing.
Determining the credibility of witnesses is the province and function of the
state courts, not a federal court engaging in habeas review. Federal habeas courts
have “no license to redetermine credibility of witnesses whose demeanor has been
observed by the state trial court, but not by them.” Marshall v. Lonberger, 103 S.
Ct. 843, 851 (1983). We consider questions about the credibility and demeanor of
a witness to be questions of fact. See Freund v. Butterworth, 165 F.3d 839, 862
(11th Cir. 1999) (en banc). And the AEDPA affords a presumption of correctness
to a factual determination made by a state court; the habeas petitioner has the
burden of overcoming the presumption of correctness by clear and convincing
evidence. 28 U.S.C. § 2254(e).
At the state post-conviction evidentiary hearing, the state court credited the
testimony of the state’s witnesses. The state court credited ASA Cavanagh’s
testimony that he never met with DaCosta in jail and never promised DaCosta
leniency in exchange for his testimony. Nor did the state court find ASA
Farnsworth’s testimony to be inconsistent with that of ASA Cavanagh, as
Petitioner suggested it was. The state court in addition found incredible the
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testimony of DaCosta and Palmer, who recanted their earlier testimony
incriminating Petitioner.1 The state court thus denied relief.
The Florida Supreme Court considered the issue and affirmed the first state
court’s denial of post-conviction relief. The Florida Supreme Court reasoned that
“competent, substantial evidence” supported the lower state court’s
determinations. Consalvo II, 937 So. 2d at 562. According to the Florida
Supreme Court, “there existed no exculpatory evidence . . . that the State should
have turned over to the defense . . . .” Id. at 563. As such, the Florida Supreme
Court denied the Petitioner’s Brady claim. And because the Florida Supreme
Court affirmed the state trial court’s determination that ASA Cavanagh’s post-
conviction hearing testimony was credible and not inconsistent with ASA
Farnsworth’s testimony, it likewise concluded that no Giglio error existed because
“the trial court did not err in concluding that no misleading testimony in fact
existed.” Id. Therefore, according to the Florida Supreme Court, no misleading or
false testimony had been presented at trial. It also noted that Petitioner’s
conviction was supported by other credible evidence.2
1
The state court noted that Palmer’s testimony at the post-conviction evidentiary hearing was
“bizarre and totally unworthy of belief”-- Palmer reportedly smoked marijuana and drank three beers
during the lunch break of the evidentiary hearing.
2
The other credible evidence included Petitioner’s using the Victim’s ATM cards and having her
checkbook in his possession; the Victim changing her locks and suspecting Petitioner of taking her
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Per section 2254, the District Court examined this issue and found and
concluded that “the record does not reveal that the [District Court’s] deference to
the state supreme court’s affirmance of the trial court’s decision would be
misplaced.” D. Ct. Order at 11. The District Court thus determined that the
Petitioner had failed to overcome the presumption of correctness afforded to the
state trial court’s finding of fact, and the District Court denied Petitioner’s Brady
and Giglio claims.
In affirming the state trial court’s denial of Petitioner’s Brady and Giglio
claims, the Florida Supreme Court did not contravene clearly established federal
law, unreasonably apply clearly established federal law, or reach an unreasonable
determination of the facts.
Petitioner’s Brady claim hangs on the existence of exculpatory evidence,
and Petitioner’s Giglio claim hangs on the existence of false or misleading
evidence offered at trial. Because the state courts found that DaCosta and
Palmer’s recantation testimony was incredible (instead crediting the contradictory
testimony presented by the state), no exculpatory evidence was shown by
keys and money; Petitioner’s mother’s testimony; Petitioner telling a detective that Petitioner would
not be blamed for the stabbing, before the detective was aware that the Victim had been stabbed; and
the bloody towel found in Petitioner’s dresser which DNA testing showed to contain the blood of
the Victim.
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Petitioner to have been withheld; and no false or misleading testimony was shown
to have been presented at trial. Petitioner has not carried his AEDPA-imposed
burden of establishing that the state court’s factual determination was
unreasonable, and therefore Petitioner has also not established that Brady and
Giglio were contravened or unreasonably applied by the Florida Supreme Court.
We affirm the District Court’s decision to deny relief on these claims.
B. Petitioner’s Gardner Claim
Petitioner contends that the sentencing state court, in its sentencing order,
erred in relying on deposition testimony that was not presented in open court
either at the guilt or the penalty phase. Petitioner also contends that this error was
not -- and cannot be -- harmless.
Gardner establishes that a “petitioner [is] denied due process of law when
the death sentence [is] imposed, at least in part, on the basis of information which
he had no opportunity to deny or explain.” 97 S. Ct. at 1207. In Gardner, the
Supreme Court concluded that a criminal defendant was denied due process of law
when a capital sentence was imposed partly on the basis of confidential
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information in a pre-sentence report which had not been disclosed to the
defendant.
In contrast to the facts in Gardner, the information the sentencing court cited
in this case came from deposition testimony, which was available to all parties.
Although the information cited by the sentencing court was available to all parties
in advance of the sentencing, the Florida Supreme Court concluded that the trial
court erred in referring to the deposition testimony. Consalvo I, 697 So. 2d at 818.
But the Florida Supreme Court also concluded that, because “the trial court did not
actually rely on any information that was not otherwise proven during trial,” any
error was “harmless beyond a reasonable doubt and that the error complained of
did not contribute to the sentence of death.” Id.
Petitioner contends that the Florida Supreme Court’s decision is objectively
unreasonable and that the District Court erred in accepting the state high court’s
conclusion. Petitioner additionally contends that no harmless-error standard of
review applies in such a case: that reference to deposition testimony at sentencing
is a per se due process violation and harmful.
But the Supreme Court has never held that harmless error analysis cannot
apply to this kind of error. Instead, Supreme Court precedent instructs reviewing
courts generally to engage in a harmless error analysis. See, e.g., Chapman v.
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California, 87 S. Ct. 824, 827 (1967); Brecht v. Abrahamson, 113 S. Ct. 1710,
1721-22 (1993). We accept that the “harmless error” doctrine can be reasonably
applied to the kind of error at sentencing that Petitioner advances here.
The Florida Supreme Court applied this harmless error analysis to the
sentencing judge’s reference to deposition testimony. Petitioner claims that the
sentencing court erred in referencing the deposition testimony of Officer William
Hopper, who stated that the Victim was “a little scared of Robert [Consalvo].”
Ample trial evidence, however, permits the inference that the Victim was “a little
scared” of Petitioner, even without the sentencing court’s reference to Officer
Hopper’s deposition testimony.
For instance, Detective Thomas Gill testified that the Victim had her locks
changed after a set of her keys disappeared. Another detective, Detective Douglas
Doethlaff, testified that the Victim suspected Consalvo in the theft of her money
and keys. And the Victim’s brother testified that the Victim said she was feeling
“down” because, among other reasons, Consalvo had stolen her money and keys.
Consalvo’s mother, in addition, testified that the Victim had spoken to her about
her missing money and keys. Based on this -- and possibly other -- evidence, the
sentencing judge could have inferred that the Victim was “a little scared” of
Consalvo, even without reference to Officer Hopper’s deposition testimony. We
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accept that the reference to Officer Hopper’s deposition testimony was reasonably
seen by the state courts as a harmless error: the non-trial deposition testimony
referenced facts that were established by other competent evidence at trial.
In addition, Petitioner claims that relief is warranted due to the improper
reliance on Detective Doethlaff’s deposition testimony by the sentencing court.
But a comparison of Detective Doethlaff’s deposition testimony with his trial
testimony reveals that Doethlaff’s trial testimony was consistent with his
deposition testimony. Because the complained-of deposition testimony of
Detective Doethlaff was essentially the same as the testimony provided by
Doethlaff at trial, the error of citing the deposition testimony was reasonably seen
by the state courts as harmless beyond a reasonable doubt.
Petitioner finally argues that the sentencing judge improperly referenced
testimony from Petitioner’s girlfriend or ex-girlfriend, Gail Russell. The
sentencing judge erred in stating that Russell, during the guilt phase of Consalvo’s
trial, testified about Consalvo driving the Victim’s car and possessing the Victim’s
keys: Russell did not testify at the guilt phase of the trial. But other witnesses,
namely motel manager Real Favreau and Detective Gill, did testify at the guilt
phase to facts substantially in accord with the complained-of facts that the
sentencing court erroneously attributed to Russell. Therefore, the state supreme
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court reasonably concluded that the mistaken reference to Russell’s supposed trial
testimony constituted harmless error because the sentencing court did not actually
rely on operative facts that were unevidenced at trial.
Petitioner has not carried his AEDPA-imposed burden of demonstrating that
the Florida Supreme Court’s conclusion that the sentencer’s reference to non-trial
testimony -- the substance of which was proved by other evidence at trial -- was
contrary to or involved an unreasonable application of clearly established Supreme
Court precedent. Therefore, Petitioner is entitled to no habeas relief on this claim.
CONCLUSION
The District Court’s order denying Petitioner’s habeas petition is
AFFIRMED.
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