United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 96-3506.

                              Gregory MILLS, Petitioner-Appellant,

                                                 v.

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

                                           Dec. 1, 1998.

Appeal from the United States District Court for the Middle District of Florida. (No. 92-1184-Civ-
Orl-9), Patricia C. Fawsett, Judge.

Before HATCHETT, Chief Judge, and EDMONDSON and BLACK, Circuit Judges.

       PER CURIAM:

       In this capital case, appellant Gregory Mills challenges the district court's denial of his

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.

                                        I. BACKGROUND

        The Florida Supreme Court described the circumstances surrounding the murder of James

Wright and Mills's trial as follows:

       The evidence at the trial showed that Gregory Mills and his accomplice Vincent Ashley
       broke into the home of James and Margaret Wright in Sanford between two and three o'clock
       in the morning, intending to find something to steal. When James Wright woke up and left
       his bedroom to investigate, Mills shot him with a shotgun. Margaret Wright awakened in
       time to see one of the intruders run across her front yard to a bicycle lying under a tree. Mr.
       Wright died from loss of blood caused by multiple shotgun pellet wounds.

       Ashley, seen riding his bicycle a few blocks from the Wright home, was stopped and
       detained by an officer on his way to the crime scene. Another officer saw a bicycle at the
       entrance to a nearby hospital emergency room, found Mills inside, and arrested him. At
       police headquarters officers questioned both men and conducted gunshot residue tests on
       them. Then they were released.

       At trial Mills' roommate [Sylvester Davis] testified that he and his girlfriend [Viola May
       Stafford] hid some shotgun shells that Mills had given them, that Mills had been carrying
       a firearm when he left the house the night of the murder, and that Mills had said he had shot
       someone. He also stated that Mills told him that a city worker had found a shotgun later
       shown to have fired an expended shell found near the victim's home.

       After the murder, Ashley was arrested on some unrelated charges. He then learned that Mills
       had told his roommate and his girlfriend about the murder and that they in turn had told the
       police, so he decided to tell the police about the incident. Ashley testified that Mills entered
       the house (through a window) first, that he, Ashley, then handed the shotgun to him, and that
       he then entered the house himself. Ashley saw the man in the house had awakened and was
       getting up, so he exited the house and ran to his bicycle. Then he heard the shot and ran
       back to the house, where he saw Mills. They both departed the scene on their bicycles,
       taking separate routes. Ashley was granted immunity from prosecution for these crimes and
       also for several unrelated charges pending against him at the time he decided to confess and
       cooperate.

       Mills testified in his defense. He said that he arrived home from work on May 24 at around
       9:30 p.m. Then he went out, first to one bar, then another, playing pool and socializing. He
       went home afterwards but could not sleep, he said, because of a toothache and a headache,
       so he went to the hospital emergency room. There police officers took him into custody.

Mills v. State, 

, 174-75 (Fla.1985), cert. denied, 

, 

, 

(1986).1

                                  II. PROCEDURAL HISTORY

       The State of Florida charged Mills through an indictment dated June 29, 1979, with four

counts relating to the May 25, 1979 shooting of Wright: (1) first degree felony murder (Count I);

(2) burglary (Count II); (3) aggravated battery (Count III); and (4) possessing a firearm despite a

prior felony conviction (Count IV). On August 16, 1979, a jury trial commenced. After the trial

judge denied Mills's motion for judgment of acquittal, the jury returned verdicts of guilty on the


   1
    Under 28 U.S.C. § 2254(d), a federal court reviewing a state petitioner's petition for writ of
habeas corpus must give a presumption of correctness to the state courts' factual determinations
(when certain prerequisites are met). See Bolender v. Singletary, 

, 1552 n. 1 (11th
Cir.), cert. denied, 

, 

, 

(1994); Cumbie v. Singletary,

, 723 (11th Cir.), cert. denied, 

, 

, 

(1993). This presumption is applicable equally to state appellate court findings of fact. See
Sumner v. Mata, 

, 547, 

, 

(1981); 

n. 1.
charges of first degree felony murder, burglary and aggravated battery.2 At the penalty phase of the

proceedings on the first degree murder conviction, the jury recommended that Mills receive a life

sentence. On April 18, 1980, the trial judge overrode the jury's recommendation after finding that

the aggravating factors surrounding Mills's crime outweighed the absence of statutory mitigating

factors pursuant to Florida Statute § 921.141, and sentenced Mills to death.3

       On direct appeal to the Florida Supreme Court, Mills raised the following issues: (1)

whether sufficient evidence supported his felony murder conviction; (2) whether he received

ineffective assistance of counsel because of a conflict of interest in the public defender's office; (3)

whether the trial court violated his confrontation rights in abridging cross-examination of Ashley;

(4) whether the trial court erred in admitting gunshot residue tests; (5) whether his conviction for

aggravated battery was improper; (6) whether his convictions for both felony murder and burglary

were improper; and (7) whether the trial judge's override of the jury's recommendation was

improper. See 

, 179.



   2
    Florida later filed a nolle prosequi as to Count IV.
   3
    The trial court found that the following statutory aggravating factors supported Mills's death
sentence: (1) under sentence of imprisonment when he committed the murder; (2) previously
convicted of a felony involving the use or threat of violence; (3) knowingly creating a great risk
of death to many persons; (4) murder committed while Mills was engaged in the commission of
or an attempt to commit or flight after committing the robberies; (5) pecuniary gain; (6)
heinous, atrocious or cruel. The trial court additionally found that the following statutory
mitigating factors were not present: (1) no significant history of prior criminal activity; (2)
murder committed while Mills was under the influence of extreme mental or emotional
disturbance; (3) the victims were participants or consented to Mills's acts or conduct; (4) Mills
was an accomplice in the murder that another committed, or Mills's participation in the murder
was minor; (5) Mills acted under extreme duress or under the substantial domination of another;
(6) Mills's capacity to appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law was substantially impaired; (7) Mills's age at the time of the crime. See
Fla. Stat. § 921.141 (1979). The trial court also sentenced Mills to ten years of imprisonment on
Count II (burglary) and five years of imprisonment on Count III (aggravated battery), with the
sentences running concurrently.
       The Florida Supreme Court affirmed Mills's convictions and sentences for felony murder and

burglary, but vacated the sentence and conviction for aggravated battery. See 

, 177. The Florida Supreme Court held that Mills's contentions concerning ineffective assistance

and gunshot residue tests were meritless, and that the trial court did not abridge Mills's right to

confront the witnesses against him. See 

-77.

       The Florida Supreme Court then analyzed the trial judge's override of the jury's

recommendation at Mills's sentencing. It found that the trial judge had found the existence of no

mitigating factors and the following six aggravating factors pursuant to Florida Statute § 921.141:(1)

under sentence of imprisonment; (2) previous conviction of violent felony; (3) great risk of death

to many persons; (4) felony murder; (5) pecuniary gain; and (6) heinous, atrocious or cruel. The

Florida Supreme Court held that the following aggravating factors were improper: (1) great risk of

death to many persons; (2) pecuniary gain; and (3) heinous, atrocious or cruel. It affirmed the

remainder of the aggravating factors, as well as the trial court's finding that no mitigating factors

existed. See 

. The Florida Supreme Court affirmed the trial judge's

imposition of the death sentence, holding that the override complied with Tedder v. State, 

(Fla.1975).4 The United States Supreme Court denied Mills's petition for writ of certiorari.

Mills v. Florida, 

, 

, 

(1986).


   4
    Specifically, the Florida Supreme Court held that

               the facts suggesting a sentence of death are so clear and convincing that virtually
               no reasonable person could differ. There are three valid statutory aggravating
               circumstances, and the trial judge has found that there are no valid mitigating
               circumstances. The purported mitigating circumstances claimed by Mills, but not
               found by the trial judge, are not sufficient to outweigh the aggravating
               circumstances nor do they establish a reasonable basis for the jury's
               recommendation.

       

(construing 

).
       The Governor of Florida signed Mills's death warrant, and Mills thereafter moved for

post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied

all requested relief. Mills appealed the trial court's denial to the Florida Supreme Court, petitioned

for a writ of habeas corpus and requested a stay of execution. The Florida Supreme Court denied

Mills's petition for habeas corpus, but reversed the trial court's summary denial of his 3.850 motion

and directed the trial court to hold an evidentiary hearing on Mills's 3.850 claim of ineffective

assistance relating to his lawyer's failure to develop and present evidence that would tend to

establish statutory or nonstatutory mental mitigating circumstances. See Mills v. Dugger, 

, 579 (Fla.1990).5

       The trial court held an evidentiary hearing pursuant to the Florida Supreme Court's remand.

Mills called numerous witnesses at the evidentiary hearing, including: his trial attorneys, one of

whom testified that "with the benefit of hindsight" she would have looked at mental health evidence;

two psychologists who testified that Mills had some brain damage and satisfied the criteria for two

statutory mental mitigators; and his sister and one of his brothers, who recounted Mills's difficult

upbringing. The trial court held that Mills failed to show that his lawyer's performance was deficient

under Strickland v. Washington, 

, 

, 

(1984).


   5
    Mills included seven claims in his petition for writ of habeas corpus: (1) the Florida
Supreme Court decided wrongly on appeal the issue of Mills not being allowed to impeach his
codefendant; (2) the trial judge's override of the jury's recommendation was improper; (3)
appellate counsel was ineffective because Mills should have been resentenced pursuant to
Elledge v. State, 

(Fla.1977); (4) the trial court erred in finding an automatic
aggravating factor (felony murder); (5) the trial court erred in allowing gunshot residue test
evidence; (6) the trial court impermissibly shifted to Mills the burden of proving life to be the
proper penalty; and (7) consideration of victim impact evidence violated Booth v. Maryland,

, 

, 

(1987). The Florida Supreme Court held that
"Mills raised most of these issues on direct appeal or in his 3.850 motion; others should have
been raised, if at all, on appeal.... Claims 1, 2, and 4 through 7 are ... procedurally barred."

(citations omitted). The Florida Supreme Court also held that Mills's
lawyer did not render ineffective assistance on appeal. See 

.
       The Florida Supreme Court affirmed, holding that Mills's lawyer's admission that "with the

benefit of hindsight" he would have investigated mental health evidence "illustrates the Supreme

Court's concern [in ineffective assistance claims] "that every effort be made to eliminate the

distorting effects of hindsight.' " Mills v. State, 

, 485 (Fla.1992) (quoting 

, 

). The Florida Supreme Court found that Mills also failed to satisfy

the prejudice prong of Strickland, holding that "Mills has not demonstrated a reasonable probability

that the currently tendered evidence would have produced a reversal of the judge's override of the

jury's recommendation." 

.

       Mills then filed a petition for extraordinary relief and for writ of habeas corpus with the

Florida Supreme Court. He raised two issues in the petition: (1) the Florida Supreme Court

performed an inadequate harmless error analysis in affirming the death sentence; and (2) the

felony-murder aggravator is an unconstitutional automatic aggravating circumstance in felony

murders. The Florida Supreme Court found both issues to be procedurally barred. Mills v.

Singletary, 

, 623 (Fla.1992).

       After exhausting state remedies, Mills filed a petition for writ of habeas corpus pursuant to

28 U.S.C. § 2254 in the United States District Court for the Middle District of Florida. He claimed

that: (1) he received ineffective assistance of counsel at the penalty and sentencing phase; (2) the

trial court and the Florida Supreme Court failed to evaluate adequately mitigation evidence in

contravention of Parker v. Dugger, 

, 

, 

(1991); (3) the

Florida Supreme Court erred in upholding the jury override despite its invalidating three aggravating

factors; (4) his sentence rested upon an unconstitutional automatic aggravating factor (felony

murder); (5) the jury override resulted in an arbitrary, capricious and unreliably-imposed death

sentence; (6) the trial court violated his confrontation rights when it precluded certain impeachment
and cross-examination of witness Ashley; (7) he received ineffective assistance of counsel because

of a conflict of interest in the public defender's office; (8) the trial judge erroneously considered

nonstatutory aggravating factors in overriding the jury's recommendation of a life sentence, and his

lawyer rendered ineffective assistance in failing to object; (9) the trial judge erred in failing to find

mitigating factors; (10) the trial court erred in admitting testimony and evidence of gunshot residue

tests; (11) he received ineffective assistance of counsel at the guilt phase of his trial; (12) the trial

court erred in admitting as rebuttal evidence results from the gunshot residue test; (13) the

government engaged in prosecutorial misconduct at the sentencing hearing; and (14) the failure to

transcribe the bench conferences resulted in trial error and ineffective assistance of counsel. The

district court found that all of Mills's claims were either meritless or procedurally barred, and

therefore denied Mills's section 2254 petition in a 51-page order. See Mills v. Singletary, No. 92-

1184-CIV-ORL-19 (M.D.Fla. Aug. 19, 1996).

                                             III. ISSUES

        Mills raises the following issues in this appeal: (1) whether the trial judge's override of the

jury's recommendation of a life sentence, and the Florida Supreme Court's affirmance, resulted in

an arbitrary and discriminatory sentence of death; (2) whether the Florida Supreme Court violated

Parker v. Dugger in failing to review adequately the record for mitigating factors; (3) whether the

Florida Supreme Court conducted an inadequate harmless error analysis; (4) whether Mills received

ineffective assistance of counsel at the guilt phase, jury penalty phase and judge sentencing phase;

(5) whether the felony murder aggravating factor is unconstitutional; (6) whether Mills's lawyers

had an actual conflict of interest that adversely affected their representation; (7) whether the trial

court violated his confrontation rights; (8) whether the introduction of nonstatutory aggravating

factors rendered his trial fundamentally unfair; (9) whether the trial court failed to consider
mitigating evidence in violation of Eddings v. Oklahoma, 

, 114-115, 

, 

(1982); (10) whether the introduction of unreliable scientific evidence rendered Mills's

trial unfair; (11) whether the prosecutors engaged in misconduct during the penalty phase of Mills's

trial.

         Because we find that Mills is not entitled to relief on the merits of some of his claims and

has procedurally defaulted the others, we affirm the district court's denial of his petition for writ of

habeas corpus. Specifically, we hold in accord with the district court that Mills has procedurally

defaulted on the following claims: whether the introduction of nonstatutory aggravating factors

rendered his trial fundamentally unfair; whether the prosecutors engaged in misconduct during the

penalty phase of Mills's trial; and whether Mills's lawyer rendered ineffective assistance of counsel

at the guilt phase. We address Mills's remaining issues in turn.6

                                          IV. DISCUSSION

A. Jury Override

         Mills first challenges the trial court's override of the jury's recommendation of life

imprisonment and the Florida Supreme Court's subsequent affirmance. The trial court found that

six statutory aggravating factors, as well as the absence of statutory mitigating factors, supported

a death sentence. The Florida Supreme Court held that three of the aggravating factors—great risk

of death to many persons, pecuniary gain and heinous, atrocious or cruel—were erroneous and that

the trial court's finding that no mitigating circumstances existed was correct in affirming Mills's

death sentence. See 

.


    6
    Mills filed his petition for writ of habeas corpus on December 23, 1992, before the effective
date (April 24, 1996) 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,

, ----, 

, 2068, 

(1997); Neelley v. Nagle, 

, 921 (11th Cir.1998).
        In Florida, a jury's recommendation of a life sentence is entitled to "great weight," but a trial

judge may overturn such a recommendation when "the facts suggesting a sentence of death [are] so

clear and convincing that virtually no reasonable person could differ." 

.7

Our review of a jury override "is not to second-guess the deference accorded the jury's

recommendation in a particular case, but to ensure that the result of the process is not arbitrary or

discriminatory." Spaziano v. Florida, 

, 465, 

, 

(1984).

Thus, our role is not to second guess the Florida courts on questions of state law, but to determine

whether the application of the override scheme in Mills's case resulted in an imposition of the death

penalty in an arbitrary or discriminatory manner.8


   7
    This court, and the Supreme Court, have analogized the "great weight" given to a jury's
recommendation as having the "effect of placing a thumb on one side of the trial judge's
sentencing scale—either on the death side or the life side." Glock v. Singletary, 

,
892 (11th Cir.1995) (en banc) (Tjoflat, J., dissenting), cert. denied, --- U.S. ----, 

,

(1996); see 

, 

.
   8
    The Supreme Court in Spaziano discussed Florida's override scheme and found it to be
constitutional. This court has further discussed Florida's override scheme and its safeguards that
render it unlikely that Florida courts will impose the death penalty in an arbitrary or
discriminatory manner:

               First, several Florida procedural rules, of both statutory and case law origin,
               constrain trial judges from imposing the death penalty in an arbitrary or
               discriminatory manner. Among these significant safeguards is § 921.141(3) of
               the Florida Statutes, which requires trial judges to independently review the
               evidence and make detailed written findings regarding aggravating and mitigating
               circumstances before imposing the death penalty. Another significant safeguard
               is the Tedder standard. Second, the meaningful appellate review by the Florida
               Supreme Court in every capital case further reduces the likelihood that the death
               penalty will be imposed in an arbitrary or discriminatory manner. That court is
               required by law to review every death sentence to ensure that it has not been
               imposed arbitrarily or capriciously. The [Spaziano] Court noted that there has
               been no evidence that the Florida Supreme Court has failed to execute its
               responsibility faithfully, or hesitated to reverse a trial judge who has derogated
               the jury's role by failing to comply with the mandates of Tedder. Thus, not only
               are Florida trial judges provided with procedural rules to aid them in performing
               their duty in a constitutional manner, the likelihood that they will succeed in
        Mills contends that Florida's override scheme resulted in an arbitrary and discriminatory

death sentence because: Florida arbitrarily affirmed an override when Florida courts have sentenced

similarly-situated capital defendants (convicted of felony murder) to life; the timing of appellate

review, and the use of the law of the case doctrine, resulted in an arbitrary imposition of a death

sentence because Florida courts might not sustain the jury override today; the facts of the case were

not extraordinary for a capital case; the number and type of aggravating factors that the Florida

Supreme Court struck were not considered effectively; Florida ignored codefendant Ashley's total

immunity; and Florida ignored mitigation in the record. As an initial matter, we agree with the

district court that several of Mills's contentions concerning "factual or temporal

similarities"—initially, that similarly-situated capital defendants have received life sentences and

that the facts of Mills's crime were not extraordinary for a capital case—are actually requests for a

proportionality review. We have instructed district courts to refuse such requests when deciding

habeas corpus petitions. See Lindsey v. Smith, 

, 1154 (11th Cir.1987), cert. denied,

, 

, 

(1989); Tucker v. Zant, 

, 895 (11th

Cir.1984); Moore v. Balkcom, 

, 1518 (11th Cir.1983), cert. denied, 

,

, 

(1984).9



               ignoring these rules or incorrectly following them is reduced significantly by
               meaningful appellate review.

       Parker v. Dugger, 

, 1474 (11th Cir.1989) (citations omitted), rev'd on
       other grounds, 

, 

, 

(1991).
   9
    As the district court correctly noted, we held in Moore that:

               [a] federal habeas court should not undertake a review of the state supreme court's
               proportionality review and, in effect, "get out the record" to see if the state court's
               findings of fact, their conclusion based on a review of similar cases, was
               supported by the "evidence" in the similar cases. To do so would thrust the
               federal judiciary into the substantive policy making area of the state. It is the
        Mills next argues that the application of the "law of the case" doctrine, and the inconsistent

application of the Tedder standard in Florida courts at the time of his review, resulted in the arbitrary

imposition of his death sentence. Mills identifies the Florida Supreme Court's proclamation in

Cochran v. State that "since 1985, the Court has determined that Tedder means precisely what it

says, that the judge must concur with the jury's life recommendation unless "the facts suggesting a

sentence of death [are] so clear and convincing that virtually no reasonable person could differ.' "

, 933 (Fla.1989) (quoting 

). The Florida Supreme Court

ruled on Mills's override claim in 1985. Mills contends that the timing of his direct appeal and the

subsequent application of the law of the case doctrine resulted in an arbitrary death sentence, and

that his sentence would have been different if the Florida Supreme Court had reviewed his claim

after 1985.10

        Again, however, Mills is actually requesting a proportionality review, which the district court




                state's responsibility to determine the procedure to be used, if any, in sentencing a
                criminal to death.

        

.
   10
    Cochran notes Justice Shaw's commentary in his special concurrence to Grossman v. State,
in which he stated:

                During 1984-1985, we affirmed on direct appeal trial judge overrides in eleven of
                fifteen cases, seventy-three percent. By contrast, during 1986 and 1987, we have
                affirmed overrides in only two of eleven cases, less than twenty percent. This
                current reversal rate of over eighty percent is a strong indicator to judges that they
                should place less reliance on their independent weighing of aggravation and
                mitigation....

        

(quoting Grossman v. State, 

, 851 (Fla.1988)
        (Shaw, J., specially concurring), cert. denied, 

, 

, 

(1989)).
correctly refused to entertain.11 To compare Mills's situation with other Florida capital defendants

whose override issues were decided after 1985 would be in contravention of our role as a federal

court. See, e.g., Antone v. Strickland, 

, 1538 (11th Cir.) ("[i]t is not the role of the

federal courts in Section 2254 proceedings to retry the circumstances contributing to the state's

imposition of the death penalty."), cert. denied, 

, 

, 

(1983). Additionally, the Spaziano Court in 1984 remarked that,

        there is no evidence that the Florida Supreme Court has failed in its responsibility to perform
        meaningful appellate review of each death sentence, either in cases in which both the jury
        and the trial court have concluded that death is the appropriate penalty or in cases when the
        jury has recommended life and the trial court has overriden the jury's recommendation and
        sentenced the defendant to death.

, 

(citing Barclay v. Florida, 

, 971-72, 

, 

(1983) (Stevens, J., concurring)).

        Turning to Mills's other contentions on the override claim, he argues that the trial court and

the Florida Supreme Court ignored arbitrarily Ashley's grant of total immunity. In Florida, the

disparate treatment of a codefendant can constitute a nonstatutory mitigating circumstance when the

defendants are equally culpable. See 

n. 27; Pentecost v. State, 

, 863 (Fla.1989) ("[t]he disparate treatment of equally culpable accomplices can serve as

a valid basis for a jury's recommending life imprisonment."). The record does not show, however,

that Ashley was "equally culpable" in the murder of James Wright. See White v. Dugger, 

, 141 (Fla.) ("[i]t is permissible to impose different sentences on capital co-defendants where

their various degrees of participation and culpability are different from one another."), cert. denied,


   11
     Mills attributes much significance to the district court's pronouncement in a previous order
that application of the law of the case doctrine to his case indicates "a certain level of
arbitrariness." Although the district court's order denying Mills's petition conceded that Mills's
argument was "logically attractive," the court correctly held that Mills's argument on this issue
was actually a request for proportionality review.


, 

, 

(1988). We agree with the district court that Mills's

argument on this point is unpersuasive.

        Mills also contends that the trial court and the Florida Supreme Court ignored mitigation

evidence in the record. We find no merit in this argument for several reasons. First, it is well-settled

that in override cases, "the mere presence of mitigating evidence does not automatically provide a

reasonable basis for the jury's recommendation." Francis v. Dugger, 

, 704 (11th

Cir.1990), cert. denied, 

, 

, 

(1991); see Lusk v. Dugger,

, 342 (11th Cir.1989) ("[t]he state courts concluded that there were no reasonable bases

for the jury's recommendation despite the fact that both the jury as advisor and the judge as

sentencer were made aware of mitigating factors.... [W]e do not find that the result of the

application of Tedder was arbitrary or irrational."), cert. denied, 

, 

, 

(1990). Second, the Florida Supreme Court on direct review held that Mills's purported

mitigating circumstances neither outweighed the aggravating circumstances nor established a

reasonable basis for the jury's recommendation. See 

. Finally, Justice

McDonald, in his concurring and dissenting opinion, discussed the purported nonstatutory mitigation

evidence that Mills presented. See 

(McDonald, J., concurring in part and

dissenting in part). The Florida Supreme Court was well aware of any potential nonstatutory

mitigating evidence.

       The Florida Supreme Court's opinion on direct review reveals that the Florida courts did not

impose Mills's death sentence in an arbitrary and discriminatory manner. The court reviewed Mills's

sentencing and invalidated three of the aggravating factors that the trial court had found. The court

also agreed with the trial court's finding that no mitigating factors existed and held that "the facts

suggesting a sentence of death are so clear and convincing that virtually no reasonable person could
differ." 

. The Florida Supreme Court complied with the mandate of Tedder,

and, as the district court held, Mills's case is similar to Francis v. Dugger. See 

(holding that override was not arbitrary and discriminatory where jury's recommendation of

life imprisonment may have been the product of defense counsel's highly impassioned closing

argument, where defendant had a prior criminal history and where no valid statutory mitigating

factors and three statutory aggravating factors existed).

B. Parker v. Dugger claim

         Mills contends that the Florida courts failed to consider and evaluate the record for

mitigation evidence that would have precluded the trial court's override of the jury recommendation,

in contravention of Parker v. Dugger, 

, 

, 

(1991). Mills

also argues that the Florida Supreme Court failed to conduct an independent review of nonstatutory

mitigating factors presented at sentencing. We review the district court's factual finding that the

Florida courts considered and evaluated the record for mitigation evidence under the clearly

erroneous standard. Spaziano v. Singletary, 

, 1032 (11th Cir.1994), cert. denied, 

, 

, 

(1995).

        After a review of the record, we find no clear error in the district court's finding that the trial

court weighed and considered evidence of mitigation and aggravation, including nonstatutory

mitigation. The trial court's sentencing order concluded, "[i]t is the finding of this Court after

weighing the aggravating and mitigating circumstances that there are sufficient aggravating

circumstances as specified in 921.141 and insufficient mitigating circumstances therein that a

sentence of death is justified."12 Also, as the district court found, the trial court's order denying


   12
     At the time of Mills's sentencing, Florida Statute § 921.141(3) required that the trial judge
set forth explicit findings as to only the statutory aggravating and mitigating circumstances. See
Mason v. State, 

, 379-80 (Fla.1983), cert. denied, 

, 

,
Mills's motion for post-conviction relief noted that Mills had presented substantial mitigating

evidence at the sentencing phase, including Mills's disadvantaged upbringing.

        Additionally, we agree with the district court's finding that the Florida Supreme Court

evaluated adequately mitigation evidence in the record, based on our discussion of the override

claim. The Florida Supreme Court—on direct review and again on review of Mills's post-conviction

3.850 motion—discussed mitigating circumstances in the record. See 

(post-conviction 3.850 motion); 

(direct review). Justice McDonald's

concurring and dissenting opinion on direct review also shows that the Florida Supreme Court

considered nonstatutory mitigating factors. See 

(McDonald, J., concurring

in part and dissenting in part). The district court's finding that the Florida Supreme Court considered

mitigation evidence adequately and within the dictates of Parker v. Dugger is thus not clearly

erroneous.13

C. The Florida Supreme Court's Harmless Error Analysis

        Mills contends that the Florida Supreme Court, after invalidating three of the trial court's

aggravating factors, conducted an inadequate harmless error analysis in contravention of the

Supreme Court's opinions in Sochor v. Florida, 

, 

, 

(1992) and Stringer v. Black, 

, 

, 

(1992). Mills raised

this issue previously in a petition for writ of habeas corpus in the Florida courts. The Florida

(1984). Florida has since changed the statute and now requires a trial court to
evaluate expressly in its sentencing order each nonstatutory mitigating circumstance that a
defendant proposes. See Campbell v. State, 

, 419-20 (1990).
   13
     Mills raises as a separate issue that the trial court's failure to find mitigating circumstances,
and the Florida Supreme Court's subsequent affirmance (despite noting that mitigation was in the
record), violated Eddings v. Oklahoma, 

, 114-15, 

, 

(1982) and Lockett v. Ohio, 

, 

, 

(1978). Consistent
with our analysis above, we reject this argument as well.
Supreme Court denied Mills's petition, holding that "Sochor is not a change in the law that will save

Mills's first claim [of inadequate harmless error analysis] from a procedural bar, and that claim is

barred from consideration." 

.

         This court recognizes that "[f]ederal review of a petitioner's claim is barred by the

procedural default doctrine if the last state court to review the claim states clearly and expressly that

its judgment rests on a procedural bar ... and that bar provides an adequate and independent state

ground for denying relief." Johnson v. Singletary, 

, 1173 (11th Cir.1991) (en banc)

(citing Harris v. Reed, 

, 262-63, 

, 

(1989)), cert. denied,

, 

, 

(1992). We conclude that Mills has procedurally

defaulted this claim. The Florida Supreme Court "clearly and expressly" stated that its judgment

rested on a procedural bar, and the bar provides an adequate and independent state ground for

denying relief. We note that Mills has not attempted to except himself from this bar to review

through showing cause for and prejudice from the procedural default. See Wainwright v. Sykes, 

, 90-91, 

, 

(1977); 

.14

D. Ineffective Assistance of Counsel (Penalty Phase and Sentencing)

        Mills contends that his penalty phase lawyer, Joan Bickerstaff, and his sentencing lawyer,

Thomas Greene, rendered ineffective assistance because: (1) both failed to investigate mitigating

evidence and to prepare for their respective proceedings; and (2) both failed to have a mental health

evaluation of Mills performed, and failed to argue mental health issues as mitigating evidence. A

habeas corpus petitioner's ineffective assistance of counsel claim is a mixed question of law and fact,


   14
     We also note that Mills does not qualify for two additional exceptions to procedural default:
(1) if the alleged constitutional violation resulted in the conviction of an innocent defendant; see

; or (2) if the state procedural bar has been inconsistently or
irregularly applied; see Johnson v. Mississippi, 

, 587-88, 

, 

(1988).
subject to de novo review. Dobbs v. Turpin, 

, 1386 (11th Cir.1998). To obtain relief

on this claim, Mills must show that (1) his lawyers' performance was deficient and "fell below an

objective standard of reasonableness," and (2) this deficient performance prejudiced him so that "a

reasonable probability [exists] that, but for counsel's unprofessional errors, the result of the

proceedings would have been different." Strickland v. Washington, 

, 687-88, 694, 

, 

(1984).

       The Florida Supreme Court, upon review of the trial court's denial of Mills's motion for

post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, made the following

findings concerning Mills's ineffective assistance of counsel contentions:

       Mills' employer, his grandfather, and his oldest sister testified at the penalty phase. The
       grandfather and sister spoke of Mills' father being shot and killed when Mills was a child,
       of his mother's working as a field hand with the sister being responsible for taking care of
       her younger siblings, and of his poverty-ridden childhood. Bickerstaff made an impassioned
       argument to the jury that Mills' life should be spared. She emphasized the disparate
       treatment received by Mills and his codefendant who testified against Mills and argued that
       Mills' crime was not the type that deserved the death penalty, that Mills had been raised in
       a ghetto, and that he was capable of being redeemed. After hearing her argument, the jury
       recommended that Mills be sentenced to life imprisonment.

       Mills and his sister both testified before the judge in April 1980 [at his sentencing]. Greene
       argued that the judge should follow the jury's recommendation because the aggravators
       should not be applied to Mills. He also argued that the statutory mitigators of impaired
       capacity to conform one's conduct and age had been established. The prosecutor, however,
       pointed out that the jury knew nothing of Mills' juvenile criminal record or that Mills had
       been convicted both of burglary for stealing the shotgun used to kill this victim and of armed
       robbery where he used that same shotgun and abducted a store clerk. After hearing both
       sides, the court overrode the jury's recommendation and sentenced Mills to death.

. The Florida Supreme Court found that Greene, who had also served as

Mills's lead attorney during the guilt phase, testified at the 3.850 hearing that: (1) "because he had

no responsibility for the penalty phase ... he did nothing to develop mitigating evidence"; (2)

"[a]lthough he represented Mills at the actual sentencing several months after the jury made its

recommendation, he only looked through the file before appearing before the judge"; and (3) "[o]n
cross-examination he admitted that nothing about Mills suggested a mental health examination was

needed." 

. The Florida Supreme Court also found that Bickerstaff testified

at the 3.850 hearing that "the public defender's office hired her on Saturday, August 18, 1979 to

conduct the penalty phase on the following Monday[,]" and that " "with the benefit of hindsight'

mental health evidence should have been looked at." 

.15 Both the trial court

and the Florida Supreme Court held that Mills failed to demonstrate that his lawyers had rendered

ineffective assistance. 

.

        In determining whether a lawyer's performance was deficient under Strickland, we must

inquire "whether counsel's assistance was reasonable considering all the circumstances." 

, 

. We determine the reasonableness of Mills's lawyers' performance

"through a deferential review of all the circumstances from the perspective of counsel at the time

of the alleged errors." Baldwin v. Johnson, 

, 1311 (11th Cir.1998). As the district

court noted, Mills's family members testified as to his "poverty-ridden childhood and difficult

upbringing." Both lawyers made impassioned arguments to spare Mills's life. We hold that the

district court did not err in holding that Mills's lawyers prepared adequately for their respective roles

in Mills's proceedings, that they presented mitigating circumstances at the penalty phase and

sentencing and that they therefore did not render deficient performance under Strickland.

        Mills also contends that his lawyers' failure to pursue mental health issues as mitigating



   15
    According to Strickland, "[a]lthough state court findings of fact made in the course of
deciding an ineffectiveness claim are subject to the deference of § 2254(d), and although district
court findings are subject to the clearly erroneous standard of Federal Rule of Civil Procedure
52(a), both the performance and prejudice components of the ineffectiveness inquiry are mixed
questions of law and fact." 

, 

; see also Oats v.
Singletary, 

, 1028 (11th Cir.1998) (remarking that state court findings of fact in a
3.850 hearing on ineffective assistance of counsel are subject to the deference of section
2254(d)).
evidence demonstrated ineffective assistance. Both lawyers testified at the 3.850 hearing that

nothing suggested that any mental heath examination was needed or that Mills indicated that they

should offer any mental health issues as mitigating evidence. Bickerstaff also testified that "with

the benefit of hindsight" she would have examined mental health evidence. As Strickland warns,

however, "[a] fair assessment of attorney performance requires that every effort be made to eliminate

the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct,

and to evaluate the conduct from counsel's perspective at the time." 

, 

. Mills's lawyers presented witnesses who testified as to mitigating circumstances at the

penalty phase and sentencing, and "[a] defendant's mental condition is not necessarily at issue in

every criminal proceeding...." Ake v. Oklahoma, 

, 82, 

, 

(1985). We agree with the district court that Mills's lawyers' actions fell within Strickland's wide

range of reasonable professional assistance.

        We additionally agree with the district court that even if Mills's lawyers' performance was

deficient, Mills cannot demonstrate that the alleged failure to present mitigating evidence prejudiced

him at the penalty phase because the jury recommended a life sentence. See Routly v. Singletary,

, 1297 (11th Cir.1994) ("[petitioner] cannot show that any failure to present mitigating

evidence to the jury prejudiced him to any degree whatsoever in the jury's consideration of penalty

because the jury recommended a sentence of life imprisonment anyway."), cert. denied, 

, 

, 

(1995). Mills has also failed to demonstrate prejudice at

sentencing under Strickland and its progeny. Mills's trial judge considered evidence at the 3.850

hearing concerning his ineffective assistance claim. The Florida Supreme Court found that

       the trial court had information on Mills' serious criminal activity committed in the two
       months between his release from prison and the killing for which he received a death
       sentence that the jury knew nothing about. Given the psychologists' testimony [at the 3.850
       hearing] that Mills' mental problems boiled down to being impulsive, it is purely speculative
       that the currently tendered evidence would have carried sufficient weight to abrogate the
       judge's override of the jury 

. The trial court also considered evidence of Mills's childhood through testimony

of his family members and the presentence investigation report. We hold that the district court

correctly concluded that the failure of Mills's lawyers to present mental health evidence as mitigating

evidence and their failure to seek mitigating evidence did not prejudice him. See 

(holding that the petitioner could not show prejudice because the essence of the mitigation

evidence that he argued was before the judge through the presentence investigation report and his

mental health expert's testimony, and the judge referred to it specifically in the sentencing order;

further, the same judge and the Florida Supreme Court held that the mitigation evidence would not

have changed the result).

E. Felony Murder Aggravating Factor

        Mills contends that his death penalty conviction was erroneously predicated upon "the

unreliable automatic finding" of the felony murder aggravating factor for the felony murder that

formed the basis of his conviction. The Florida Supreme Court previously addressed this contention,

rejecting the substance of it on direct appeal and holding that it was procedurally barred in two

separate habeas corpus petitions. See 

(second habeas corpus petition);

(first habeas corpus petition); 

(direct review). We

hold that Mills has procedurally defaulted this claim. See 

. In any event,

this circuit has considered this argument previously and found it to be meritless. See Johnson v.

Dugger, 

, 1368-70 (11th Cir.), cert. denied, 

, 

, 

(1991); Bertolotti v. Dugger, 

, 1527-28 (11th Cir.1989), cert. denied, 

, 

, 

(1990).

F. Conflict of Interest/Confrontation Clause Claim
       The public defender's office represented both Mills and codefendant Vincent Ashley before

Florida charged Mills with felony murder. Upon learning of the potential conflict of interest in

representing both, the public defender's office withdrew from representation of Ashley, and the trial

court appointed him private counsel. While the dual representation existed, however, Ashley spoke

to a public defender investigator. At trial, Florida granted codefendant Ashley complete immunity

from prosecution in exchange for his testimony concerning Mills's murder of James Wright. During

cross-examination of Ashley, Mills's lawyer (Greene, an assistant public defender) inquired about

statements Ashley made to the public defender investigator in an attempt to impeach Ashley with

prior inconsistent statements. Florida objected, and Ashley invoked the attorney-client privilege in

refusing to answer Greene's questions concerning the statements. Mills contends that: (1) the public

defender's prior representation of Ashley resulted in ineffective assistance of counsel at trial because

of a conflict of interest; and (2) the court's curtailment of his cross-examination of Ashley violated

his confrontation rights under the Sixth Amendment.

        Mills's conflict of interest claim is subject to de novo review. "[W]e defer to the district

court's findings of fact unless we determine that the findings are clearly erroneous. We apply our

own judgment, however, as to whether the conduct in question constitutes ... an actual conflict of

interest warranting relief." Buenoano v. Singletary, 

, 1083 (11th Cir.) (citations

omitted), cert. denied, --- U.S. ----, 

, 

(1996). "In order to establish

a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate

that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan,

, 348, 

, 

(1980). Mills must show that an actual conflict

exists; "[a] possible, speculative or merely hypothetical conflict does not suffice." Lightbourne v.

Dugger, 

, 1023 (11th Cir.1987), cert. denied, 

, 

, 

(1988); see also Burden v. Zant, 

, 1305 (11th Cir.1994). In Smith v.

White, this circuit adopted a test to distinguish actual from potential conflict:

        We will not find actual conflict [of interest] unless appellants can point to specific instances
        in the record to suggest an actual conflict or impairment of their interests.... Appellants must
        make a factual showing of inconsistent interests and must demonstrate that the attorney made
        a choice between possible alternative courses of action, such as eliciting (or failing to elicit)
        evidence helpful to one client but harmful to the other. If he did not make such a choice, the
        conflict remained hypothetical.

Smith v. White, 

, 1404-05 (11th Cir.) (quoting Barham v. United States, 

, 1532 (11th Cir.), cert. denied, 

, 

, 

(1984)), cert.

denied, 

, 

, 

(1987).

        The district court found that no actual conflict existed because

        [a]n alleged conflict of interest on the assistant public defender's part did not impede or
        prevent [testimony concerning Ashley's statements to Scarpello] from being elicited during
        Ashley's cross-examination; the statements were made during the course of an
        attorney-client relationship, and Mr. Ashley had the right to invoke the privilege's protection.

We agree with the district court. The public defender's alleged loyalties did not force him to forego

cross-examination of Ashley; instead, Greene cross-examined Ashley extensively and attempted

to elicit the statements that caused Ashley to invoke the attorney-client privilege. Mills does not

point to anything in the record that demonstrates that Greene made a choice to refrain from

cross-examining Ashley in a manner harmful to Mills, or that Greene had inconsistent interests. "In

order to warrant habeas corpus relief, the petitioner has to show not only an actual conflict of interest

but also that the conflict adversely affected his lawyer's representation." Stevenson v. Newsome, 

, 1562 (11th Cir.1985), cert. denied, 

, 

, 

(1986). Based on the foregoing analysis, we agree with the district court that Mills has not shown

adverse effect.

         Mills also contends that the trial court's allowing Ashley to invoke the attorney-client
privilege, and the resulting curtailment of his cross-examination of Ashley, violated his

confrontation rights under the Sixth Amendment. We review whether the trial court erred in limiting

cross-examination for a clear abuse of discretion. See United States v. Tokars, 

, 1531

(11th Cir.1996), cert. denied, --- U.S. ----, 

, --- L.Ed.2d ---- (1997). The court's

discretion in limiting the scope of cross-examination, however, is limited to the requirements of the

Sixth Amendment's guarantee of the right of confrontation. See 

.

        "The Confrontation Clause guarantees criminal defendants an opportunity to impeach

through cross-examination the testimony of witnesses for the prosecution." United States v.

Baptista-Rodriguez, 

, 1370 (11th Cir.1994). This right, however, is "not without

limitation; [a defendant] is entitled only to an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to whatever extent, the defense might

wish." United States v. Frost, 

, 1525 (11th Cir.1995) (quotations and citations

omitted). "A defendant's confrontation rights are satisfied when the cross-examination permitted

exposes the jury to facts sufficient to evaluate the credibility of the witnesses and enables defense

counsel to establish a record from which he can properly argue why the witness is less than reliable."

. Once a defendant has engaged in sufficient cross-examination

to satisfy the Confrontation Clause, further questioning is within the trial court's discretion. United

States v. Diaz, 

, 1539 (11th Cir.1994), cert. denied, 

, 

, 

(1995).

       We hold that the trial court neither violated Mills's rights under the Confrontation Clause of

the Sixth Amendment nor abused its discretion in limiting cross-examination of Ashley. During

cross-examination of Ashley, Mills's lawyer induced Ashley to admit that: (1) he changed his story

of the events surrounding the murder, thereby implicating Mills, after Florida offered him a deal and
deciding that "there was a chance of me getting out and starting a new life"; and (2) the deal that

Florida offered Ashley gave him complete immunity from prosecution on the burglary and murder

charges in exchange for his testimony against Mills. We hold that this cross-examination exposed

Ashley's prior inconsistent statements and bargain with Florida to the extent that the jury could judge

his credibility and Mills could argue effectively that Ashley's testimony was not credible.16 Mills's

lawyer engaged in sufficient cross-examination, and the trial judge neither abused his discretion nor

violated the Confrontation Clause in limiting the cross-examination to that which the attorney-client

privilege did not protect. See, e.g., United States v. Perez-Tosta, 

, 1563 (11th Cir.1994)

(holding that despite district court's restriction on cross-examination of government witness

concerning the sentencing benefits he would earn through testifying for the government, it did not

violate defendant's confrontation rights because of defense counsel's effective impeachment of the

government witnesses' credibility and sentence reduction); United States v. Taylor, 

, 340

(11th Cir.1994) (concluding that the trial court did not violate that defendant's confrontation rights

when his lawyer had ample opportunity to raise doubts during cross-examination concerning a

government witness's plea agreement); United States v. Orr, 

, 1540 (11th Cir.1987)

(holding that defendant had ample opportunity to cross-examine government witness, including the



   16
        The Florida Supreme Court on direct review of Mills's claim found that:

                  Here the disallowed impeachment was an attempt to bring out a prior inconsistent
                  statement Ashley made to his former counsel's investigator. However, Mills'
                  counsel was able to confront Ashley with several prior inconsistent statements he
                  made to police officers. Defense counsel also cross-examined Ashley about the
                  bargain he made with the authorities whereby Ashley gained immunity not only
                  for the crimes Mills now stands convicted of but also other, unrelated crimes. We
                  therefore hold that the court did not abridge Mills' right to confront the witnesses
                  against him.

          

.
terms of a plea agreement, and that further impeachment was "speculative and minimal, at best").

G. Scientific Evidence

        Mills contends that the trial court erred in admitting expert testimony and evidence on

gunshot residue tests during Florida's rebuttal after ruling that the tests were inadmissible during

Florida's case-in-chief. Federal courts generally do not review a state court's admission of evidence

in habeas corpus proceedings. See McCoy v. Newsome, 

, 1265 (11th Cir.), cert.

denied, 

, 

, 

(1992). We will not grant federal habeas

corpus relief based on an evidentiary ruling unless the ruling affects the fundamental fairness of the

trial. See Baxter v. Thomas, 

, 1509 (11th Cir.) (stating that we "inquire only to

determine whether the error was of such magnitude as to deny fundamental fairness to the criminal

trial.") (citations omitted), cert. denied, 

, 

, 

(1995);

. "A denial of fundamental fairness occurs whenever the improper

evidence "is material in the sense of a crucial, critical, highly significant factor.' " Snowden v.

Singletary, 

, 737 (11th Cir.1998) (quoting Osborne v. Wainwright, 

, 1238

(11th Cir.1983)), cert. denied, --- U.S. ----, 

, --- L.Ed.2d ---- (1998).

        We agree with the district court that the admission on rebuttal of the gunshot residue tests

was not erroneous and did not affect the fundamental fairness of the trial. On direct review, the

Florida Supreme Court held that "[t]he test has attained sufficient standing among scientists to be

accepted as reliable evidence in the courts.... A majority of American jurisdictions has held the

results of such tests to be admissible evidence in criminal proceedings." 

.

Additionally, the trial court did not err in admitting the test results and expert testimony as rebuttal

evidence. During his direct examination, Mills denied breaking into James Wright's house on May

25, 1979, denied shooting anyone and on cross-examination, denied firing the particular shotgun (or
any gun) on May 24 or May 25, 1979. Thus, the impeachment with the otherwise suppressed

gunshot residue tests was proper because Mills's testimony "reasonably suggested" it. See United

States v. Havens, 

, 627-28, 

, 

(1980) ("[A] defendant's

statements made in response to proper cross-examination reasonably suggested by the defendant's

direct examination are subject to otherwise proper impeachment by the government, albeit by

evidence ... that is inadmissible on the government's direct case ... as substantive evidence of guilt.").

                                          V. CONCLUSION

        Based on the foregoing, we conclude that the district court did not err in denying Mills's

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

        AFFIRMED.