[PUBLISH]

                    IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT                      FILED
                                ________________________           U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                        No. 10-14944                     June 27, 2012
                                                                          JOHN LEY
                                  ________________________
                                                                            CLERK

                             D.C. Docket No. 0:05-cv-61534-JEM

DENNIS SOCHOR,

llllllllllllllllllllllllllllllllllllllllPetitioner - Appellant,

versus

SECRETARY DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

llllllllllllllllllllllllllllllllllllllllRespondents - Appellees.

                                  ________________________

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

                                           (June 27, 2012)

Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:
      The main issue in this appeal concerns whether the Supreme Court of Florida

unreasonably applied clearly established federal law when it explicitly refused to

consider relevant mental health evidence in its collateral review of a sentence of

death. Dennis Sochor, a serial rapist sentenced to death after he confessed to the

murder and kidnapping of an eighteen-year-old woman, argues that the ruling of the

Supreme Court of Florida that the failure of his trial counsel to present mitigating

mental health evidence during the penalty phase of his trial did not prejudice him

was an unreasonable application of Strickland v. Washington, 

, 104 S.

Ct. 2052 (1984). Florida responds that the Supreme Court of Florida reasonably

applied Strickland and, if not, Sochor, alternatively, cannot establish that he was

prejudiced by his lawyer’s deficient performance. Although Porter v. McCollum

(Porter II), --- U.S. ----, 

 (2009), makes clear that the Supreme Court

of Florida unreasonably applied Strickland, our de novo review of the record

establishes that there is no reasonable probability that the trial court would have

imposed a sentence other than death had Sochor’s trial counsel not been deficient.

Sochor also makes two other arguments: (1) that Florida violated his right to due

process under Brady v. Maryland, 

, 

 (1963), when it

allegedly failed to disclose that his brother had received immunity in exchange for

his testimony against Sochor; and (2) that Florida violated his right to due process

                                           2
under Giglio v. United States, 

, 

 (1972), when it allegedly

failed to disclose that it had granted his brother immunity and had instructed his

brother to testify untruthfully that he had not kissed the victim on the night of the

murder. But Sochor fails to offer clear and convincing evidence that the contrary

findings of the Supreme Court of Florida are unreasonable. We affirm the denial of

Sochor’s petition for a writ of habeas corpus.

                                 I. BACKGROUND

      Dennis Sochor wanted to have sex, and when eighteen-year old Patty Gifford

refused him, Sochor choked her to death with his bare hands. Sochor dumped

Patty’s body by the side of a road and drove home to his apartment. At trial, the

jury heard these facts from the tape-recorded confessions of Patty’s murderer,

Dennis Sochor.

      Sochor lived in Fort Lauderdale, Florida, in 1981. Sochor’s brother, Gary,

traveled from Michigan to Fort Lauderdale on the day after Christmas to visit him.

At 6 p.m. on New Year’s Eve, the brothers drove a truck from Sochor’s apartment to

a lounge called the Banana Boat.

      Patty and her boyfriend also lived in Fort Lauderdale in 1981. Patty’s

boyfriend had to work on New Year’s Eve so Patty and her friend, Delta Harville,

decided to celebrate together. Their friend, Patricia Boreman, tended bar at the

                                           3
Banana Boat. They drove Delta’s car to the lounge at 9 p.m.

      Patty and Delta sat at a tiki bar behind the Banana Boat. As they sat there,

Boreman served Delta a few drinks. Sochor and his brother approached Patty and

Delta and tried to talk with them. Sochor sat at the bar and talked with the women

for a few hours. Someone took a photograph of Sochor sitting next to the women.

      Delta had too much to drink. Patty, Sochor, and Gary took Delta to the

parking lot and put her in her car. Patty then returned to the Banana Boat to pay her

bar tab. When Patty came back to the parking lot, she determined that Delta was

unable to drive. Sochor and his brother asked Patty if she wanted to accompany

them in the truck to find something to eat while Delta slept in her car. Tragically,

Patty accepted their invitation.

      Sochor and Gary did not take Patty anywhere to eat. In a tape-recorded

confession to the police that the prosecution played for the jury, Sochor stated that

he and Patty had an argument. Sochor asked Patty if she wanted to have sex, and

Patty said no. When Sochor grabbed Patty by the hair, she fought for her life. Patty

screamed and scratched Sochor’s face. Sochor “got angry and began choking her.”

When Patty stopped breathing, Sochor knew that he had “probably just murdered

her.” After Sochor murdered Patty, he drove the truck down a dirt road “and placed

her body in the weeds.”

                                           4
      Gary testified against his brother. Gary stated that, after they left the Banana

Boat, the truck came to a stop and Sochor stepped out of it. Gary stated that he

heard “Patty . . . hollaring [sic] for help, asking what was going on.” Gary testified

that he “got out of the passenger’s side, ran around the vehicle, and [saw that

Sochor] had [Patty] on the ground, had [Patty’s] hands pinned down.” Gary threw a

rock at Sochor and “hollared [sic] at [Sochor] to leave her alone,” but Sochor “told

[him] to get back in the truck.” Gary did as he was told because he was scared of

his brother. Gary testified that he never saw Patty again.

      A local television station produced a news report about Patty’s disappearance.

As Sochor watched the report, the photograph of Sochor sitting with Patty at the tiki

bar behind the Banana Boat appeared on the television screen. When Sochor saw

the photograph, he “estimate[d] that [he] had, in fact, committed another rape and

was terrified of the fact, so [he] decided to leave town.”

      Sochor fled Fort Lauderdale in the truck. He drove to Tampa, Florida, where

he dumped the truck, and then traveled by bus to New Orleans, Louisiana. He

eventually moved to Atlanta, Georgia. Police officers later arrested Sochor in

Georgia.

      When officers from Fort Lauderdale interviewed Sochor in Atlanta about

Patty’s disappearance, Sochor confessed, but stated that his memory of that New

                                           5
Year’s Eve was foggy. The officers recorded the confession by audio tape. The

officers transported Sochor to Fort Lauderdale and drove him to the Banana Boat.

Again, Sochor made a tape-recorded confession, but this time he provided more

details about the murder. The officers tried to locate Patty’s body, but Sochor did

not remember its exact location. Sochor made one more recorded confession. At

trial, the jury heard all three confessions.

      Sochor’s roommate in Atlanta, Paul Jones, testified at trial. Jones stated that

Sochor once “told [Jones] of a time that he had choked someone, and how [Sochor

had] disposed of the body . . . [o]ut in the countryside, a drainage pipe.” Jones

testified that Sochor told him that “[i]f he had to, he would do it again.” Sochor told

Jones that the murder “didn’t bother him at all” and that “women were more or less

a sexual tool, nothing more.”

      An inmate that Sochor met when he was incarcerated in the Broward County

jail in 1987 named Michael Hickey testified at trial. Hickey stated that Sochor

approached him and asked whether he “knew different methods of discrediting a

witness.” Hickey testified that “at the end of the conversation, [Hickey] was telling

[Sochor] how to discredit his brother, then [Sochor] said to [Hickey], ‘Yeah, in case

your [sic] wondering, I killed a fucking, slut, bitch[.]”

      Dr. Arnold Zager, a psychiatrist, interviewed Sochor and testified for the

                                               6
defense at trial. Dr. Zager testified that Sochor had a “long-standing problem of

drug and alcohol abuse,” and he suspected that Sochor suffered from “anti-social

personality disorder.” Dr. Zager stated that Sochor was “a much more aggressive,

potentially very violent, individual under the influence of intoxicants.” Dr. Zager

testified that Sochor told him that he had an alcoholic blackout on the night of the

murder, and Dr. Zager believed that alcohol affected Sochor that night: “[I]t was my

impression that this gentleman, if indeed he committed the crime, and was stopped

in the act, and when asked is it wrong or is it against the law to commit such a

crime, that individual might say certainly it is, but in a sense, disregard it.”

Although Dr. Zager did not believe Sochor met the requirements for involuntary

commitment under Florida law, Dr. Zager believed that Sochor was “extremely

dangerous to the public.”

      Dr. Patsy Ceros-Livingston, a clinical psychologist, also interviewed Sochor

and testified for the defense at trial. She testified that Sochor reported a long-term

history of drug and alcohol abuse, starting at a very young age. She stated that

Sochor told her that the Army recommended that he get psychiatric care when it

discharged him. She also stated that Sochor told her that he had attempted to

commit suicide by drowning. Dr. Ceros-Livingston testified that she administered

two psychological tests to Sochor. The test results suggested that Sochor suffered

                                            7
from alcohol and drug abuse, that Sochor might have a quick temper, that he might

engage in impulsive and destructive behavior, and that Sochor was attempting to

“make [himself] look psychopathological.” Dr. Ceros-Livingston stated that Sochor

may have been “malingering.”

      Dr. Ricardo Castillo, a psychiatrist, testified for the state of Florida at trial.

Dr. Castillo testified that Sochor was being medicated with lithium, which Dr.

Castillo described as a medicine used mostly to treat manic depressive illness. Dr.

Castillo described manic depression as a condition that affected mood and behavior,

but he testified that he did not believe that Sochor suffered from that condition. Dr.

Castillo stated that he did not believe that Sochor blacked out the night of the

murder. He stated that Sochor had a “a type of selective amnesia” and an antisocial

personality disorder.

      After the jury convicted Sochor of kidnapping and first-degree murder, the

prosecution presented damaging evidence during the penalty phase that Sochor was

a serial rapist. Captain Mark Schlein of the Broward County sheriff’s department

testified that Sochor confessed to raping two women on different occasions before

he murdered Patty. Captain Schlein testified that one of the rapes occurred in

August 1979 near Pontiac, Michigan. Captain Schlein stated that Sochor had “met a

young lady at a bar, and engaged her in conversation, [and] asked if she would be

                                            8
nice enough to drive him home.” The victim agreed. Sochor began to “embrace

and kiss” the victim but “[s]he resisted.” Sochor “choked [the victim] to

unconsciousness.” When the victim woke, Sochor was raping her. The victim “was

nude” and “had deficated [sic] in the car and on herself.” After Sochor raped the

victim in the car, he took her to his house. Sochor “allowed [the victim] to take a

shower” before he “raped [her] two more times” and “forced [her] to commit an oral

sex act.” Detective Vicki Russo testified that one night in 1980 Sochor snuck up

behind a nineteen-year old “very petite” girl in a parking lot in Fort Lauderdale and

choked her. Sochor “forced [the victim] in the car, and . . . threatened to cut her,

stab her.” Sochor told the victim that if she resisted “[h]e would kill her. He would

stab her, choke her.” Sochor drove the car into a “warehouse area, up to a camper

shell that goes on the back of a truck.” Sochor forced the victim into the camper

shell and “ripped her clothes off.” Detective Russo testified that Sochor “sexually

assaulted [the victim] vaginally, anally, orally, and then kept repeating this.”

Sochor “became very angry with [the victim] that he hadn’t climaxed and threatened

that he would cut her breasts.” As he violated the victim, Sochor “told her that [her

breasts] were too small, and he bit her very, very hard on the breast repeatedly, and

also on the vaginal area.” The victim told Detective Russo that when Sochor bit her

“it wasn’t so much out of sexual lust, it was out of violence. [Sochor] was trying to

                                           9
hurt [the victim] because he was angry that he was not able to climax with her.”

Sochor was arrested for sexual battery and kidnapping, and he pled guilty to sexual

battery. Sochor’s ex-wife also testified for the prosecution that Sochor had

“assaulted” her “at the least, thirty times [one] year.” Sochor’s ex-wife testified that

“[i]f [Sochor] wanted sex, he got it because he would get violent, if he didn’t get it.”

      The prosecution also presented evidence about the cruelty of Sochor’s crime.

The prosecution called Dr. Ronald Wright, the chief medical examiner of Broward

County. Dr. Wright testified that choking is a slow and painful way to die.

      In support of mitigation, Sochor’s lawyer called several witnesses to testify

about Sochor’s troubled childhood and difficulties in adulthood. Sochor’s brother,

Gary, testified that his “whole childhood was memories of nothing but getting beat”

by his parents, and that Sochor “took a lot of . . . beatings” that were intended for

Gary. Gary testified that he “remember[ed] my mother, when [his] dad would get

home, yelling at my dad to spank us for this or for that, and he would start in with

the belt, I mean a big belt, and just beat, beat, beat.” Sochor’s sister, Cathy Cooper,

testified that Sochor “had a pretty rough life” and that all of their parents’

“frustrations and everything got taken out on” Sochor. Cooper stated that their

father “used to be a boxer,” “knew how to hit,” and had a “very quick and violent

temper.” Cooper testified that [t]here were times where literally you’d have to pull

                                           10
[her father] off of” Sochor. Sochor’s father “constantly hit [Sochor] with his fist.

He’d hit him in the face, in the arms, and . . . would just be in a rage, anyplace he

could hit him.” Cooper testified that Sochor “constantly had his lips split open,

black eyes, bruises all over his body.” Cooper stated that she “remember[ed] very

clearly that [her] dad had [Sochor] down on the floor and was strattled over the top

of him and just, you know, like plummeting with his fist.” Sochor’s father “got

ahold of [Sochor’s] hair, and he kept banging his head against the wall.” Sochor

“just sort of slid to the floor, and then dad just started kicking him.”

      Sochor’s parents testified during the penalty phase that Sochor suffered

hardship during childhood and that they beat him. Sochor’s father, Charles Sochor,

testified that he and his wife, Rose, had ten children, and because Sochor was the

oldest boy, he “always put more responsibilities on [Sochor] than he should have

had [sic].” Charles Sochor testified that he had worked in an automobile plant at

night and at a lumber mill during the day. Once Charles returned home from work

and Sochor’s mother, Rose, told Charles that “she had lost her temper and beat

[Sochor], then banged his head against the wall.” Sometimes when Charles returned

from work and was “informed of the things the boys had done, [he] would lose [his]

temper and beat them, [Sochor] always getting the worst of it.” Charles stated that

when Sochor was four-years old, Sochor fell as he ran with a tin horn in his mouth.

                                           11
Charles testified that the tin horn went through the roof of Sochor’s mouth and

“open[ed] a hole that you could see right into his head.” Charles stated that Sochor

was different after he was released from the Army. He testified that Sochor “was

violent, especially when alcohol was involved. He was completely out of control.”

Charles testified that he and Rose realized that Sochor “needed mental help,” and

that they tried “to get [Sochor] institutionalized.” Charles stated that, after they

convinced a judge to commit Sochor to a mental hospital, Sochor was released after

“less than a week.” Sochor was angry that his parents had him committed. Charles

testified that he spoke to Sochor one time after the commitment. He talked with

Sochor on the telephone and Sochor told him that he had attempted to commit

suicide.

      Sochor’s mother, Rose, testified that Sochor had a “difficult childhood” and

that she was an “abusive mother.” Rose stated that Sochor had “a lot of hostility

and problems” as he got older and things became worse after Sochor was discharged

from the Army, especially when he drank alcohol. Rose Sochor also testified that

she and her husband, Charles, once attempted to have Sochor treated for mental

illness, but they were told by medical professionals that, although Sochor “definitely

needed psychiatric help, [he] was not severe enough” to be hospitalized indefinitely.




                                           12
      Sochor’s lawyer introduced the reports of the three mental health experts who

had evaluated Sochor and had testified during the guilt phase: Dr. Zager, Dr. Ceros-

Livingston, and Dr. Castillo. Sochor’s lawyer had not provided any background

materials to these experts. Their evaluations were based entirely on information

gathered from their interviews with Sochor. Sochor’s lawyer did not instruct his

experts to conduct their evaluations for the purpose of producing evidence of

mitigating circumstances. They conducted their evaluations to determine Sochor’s

competency to stand trial and his sanity at the time of the crime. All of the experts

testified that Sochor was competent to stand trial and was sane when he kidnapped

and murdered Patty Gifford.

      After the jury recommended a sentence of death by a vote of 10 to 2, the trial

court found four statutory aggravating circumstances and sentenced Sochor to

death. The trial court found that Sochor was previously convicted of a felony

involving the use or threat of violence for his conviction involving the sexual

assault he committed in Fort Lauderdale in 1980. The trial court found that the

killing of Patty was committed while Sochor was engaged in the commission of the

felony of kidnapping because there was “sufficient evidence to prove the victim was

taken from the Banana Boat and, at some point, held against her will.” The trial

court found that the killing was especially heinous, atrocious, or cruel because Patty

                                          13
was forcibly removed from the truck, begged for her life, suffered a slow and

painful death by asphyxiation, and clearly suffered fear and emotional distress

before she died. The trial court also found that killing was committed in a cold,

calculated, and premeditated manner without any pretense of moral or legal

justification. The court found no statutory or nonstatutory mitigating circumstances,

but it gave some weight to Sochor’s troubled childhood.

      On direct appeal, the Supreme Court of Florida ruled that there was

insufficient evidence to establish the “cold, calculated, and premeditated”

aggravating circumstance, but the court affirmed the convictions and sentence of

death. Sochor v. State (Sochor I), 

 (Fla. 1991). The Supreme Court

of the United States granted certiorari, vacated the sentence, and remanded to the

Supreme Court of Florida to reconsider the error about the unproved aggravating

circumstance. Sochor v. Florida (Sochor II), 

, 

 (1992).

On remand, the Supreme Court of Florida ruled that the trial court committed

harmless error when it weighed the unproved aggravating circumstance. Sochor v.

State (Sochor III), 

 (Fla. 1993). The Supreme Court of Florida

affirmed Sochor’s sentence of death.

      Sochor filed, under Florida Rule of Criminal Procedure 3.850, a motion in a

Florida court in which he asserted three claims relevant to this appeal. First, Sochor

                                          14
argued that his trial lawyer had rendered ineffective assistance during the penalty

phase by failing to adequately investigate and present relevant mitigation evidence.

Second, Sochor maintained that the prosecution violated his right to due process,

see Brady v. Maryland, 

, 

 (1963), when it allegedly failed

to disclose that Gary had received immunity in exchange for his testimony. Third,

Sochor asserted that the state violated his right to due process, see Giglio v. United

States, 

, 

 (1972), when it allegedly failed to disclose that it

had granted Gary immunity and had instructed him to testify untruthfully that he had

not kissed Patty on the night of the murder.

       The trial court held an evidentiary hearing. Sochor presented lay witness

testimony and expert witness testimony in support of his claims of ineffective

assistance of counsel, and the state offered its own expert testimony. To support his

Brady and Giglio claims, Sochor offered the testimony of his brother, Gary, and the

state presented the testimony of Kelly Hancock, the assistant district attorney who

prosecuted the case.

      Sochor presented testimony regarding the physical abuse and injuries he

suffered as a child. Sochor’s brother, Blaine Sochor, and sister, Kathy Cooper, both

testified that their father had brutally beaten Sochor when he was a child. Kathy

Cooper testified that their father usually beat one of the children when he came home

                                          15
from work and that Sochor was his favorite target. Kathy Cooper also testified that

her father sexually abused her when she was a child. The father, Charles Sochor,

testified that he beat Sochor when he was a child, and this testimony was

corroborated by Sochor’s mother and others.

      Sochor also presented testimony that he endured poverty as a child, suffered

head trauma as a young man, and frequently abused alcohol and drugs. Earl

Mitchell, one of Sochor’s high school friends, testified that Sochor once got into a

fight with a much larger man. The man picked Sochor up, threw him to the ground,

and slammed his head into the pavement. Mitchell also testified that he and Sochor

“dropped acid” over one hundred and fifty times in 1971. Marvin Droste, one of

Sochor’s childhood friends, testified that Sochor’s childhood home was “disheveled”

and “unkempt.” He also testified that Sochor’s family was poor. Sochor’s brother,

Blaine, testified that he and his siblings would sometimes be so hungry as children

that they would hunt for food. Blaine also testified that he suffered from boils on his

legs as a child and he attributed this condition to malnutrition.

      Sochor also presented lay witness testimony that he had positive character

traits. Numerous siblings and friends of Sochor testified that he was protective and

loving. Sochor’s father testified that Sochor once convinced him not to commit

suicide.

                                           16
      Two mental health experts testified for Sochor at the evidentiary hearing.

Neither expert had testified at trial. Dr. Richard Greer, a psychiatrist, testified that

he evaluated Sochor in April 1999. Dr. Greer diagnosed Sochor with manic

depression and determined that he had a history of drug and alcohol abuse. Dr.

Greer based his diagnosis of manic depression on his evaluation of Sochor, Sochor’s

medical and prison records, and the fact that Sochor had been prescribed Lithium in

the past. Dr. Greer stated that Sochor’s “religiosity,” which Dr. Greer observed both

in records near the time of trial and in his interview with Sochor, was a “classic”

symptom of manic depression.

      Dr. Greer testified that Sochor’s capacity to conform his conduct to the

requirements of the law was substantially impaired at the time of the offense and that

the combination of Sochor’s manic depression and his alcohol consumption at the

time of the offense created a “synergistic effect,” greater than the individual

components. Dr. Greer also testified that Sochor was under extreme mental and

emotional disturbance at the time of the crime. Dr. Greer stated that the “synergistic

effect” of Sochor’s alcohol consumption on his manic depression was enhanced on

the night of the murder because he had abstained from alcohol for a long period of

time before that night. Dr. Greer stated that even a small amount of alcohol would

have had a significant effect on Sochor’s mental illness.

                                            17
      Dr. Karen Froming, a neuropsychologist who examined Mr. Sochor in 1996,

also testified for Sochor. Dr. Froming testified that she reviewed background

materials, interviewed Sochor’s family members, and conducted a battery of

psychological tests on Sochor. Dr. Froming diagnosed Sochor with organic brain

damage and manic depression. Dr. Froming testified that the injuries that Sochor

suffered as a child and a young man could have caused an injury to Sochor’s brain

and that Sochor’s extensive alcohol consumption increased his risk of organic brain

damage. Dr. Froming testified that the combination of Sochor’s mental disorders

coupled with his consumption of alcohol would have caused Sochor to have “no self

control whatsoever” on the night of the murder.

      Dr. Froming testified that Sochor suffered from extreme mental and emotional

disturbance when he murdered Patty. She also stated that Sochor’s ability to

conform his conduct according to the law was substantially impaired at the time of

the murder. Dr. Froming testified that, because Sochor had abstained from alcohol

before the night of the murder, a small number of alcoholic drinks could have caused

him to become acutely intoxicated and black out: “[H]is impulse control would have

been substantially reduced, as I said before to the point of nonexistence. So it would

have been instantaneous action that would of [sic] occurred with the possibility of

thinking only after it happened.”

                                          18
      Dr. Ceros-Livingston, the psychologist who evaluated Sochor and testified for

the defense during the guilt phase of the trial, testified for the state at the evidentiary

hearing. Dr. Ceros-Livingston testified that she had reviewed the background

materials that Sochor’s postconviction counsel had provided to Dr. Greer and Dr.

Froming. Dr. Ceros-Livingston testified that the background materials did not affect

her original diagnosis. She stated that the background materials did not establish

that Sochor suffered from manic depression or organic brain damage, and that

Sochor’s ability to sit still and concentrate during the eight-hour examination that Dr.

Froming conducted was inconsistent with manic depression. She also disputed the

significance of notations in the prison records that Sochor had been prescribed

lithium. Dr. Ceros-Livingston testified that the background materials did not contain

symptoms of manic depression. Dr. Ceros-Livingston testified that the background

materials did not establish that Sochor was in a manic phase at the time of the

murder.

      Sochor also presented evidence in support of his claims that the state violated

his right to due process. Gary testified at the evidentiary hearing that the police

officer who escorted him into the courtroom during the trial told him that he had

been given immunity. Kelly Hancock, the prosecutor at Sochor’s trial, testified that

he never offered Gary immunity and that police officers in Florida do not have the

                                            19
power to grant witnesses immunity. Gary also testified at the evidentiary hearing

that Hancock told him not to mention in his testimony that he kissed and fondled

Patty on the night of the murder. Hancock, on the other hand, testified that Gary

Sochor never told him that he had kissed and fondled Patty on the night of the

murder.

      The trial court denied Sochor’s claims. With respect to the Sochor’s claim of

ineffective assistance, the trial court concluded that the additional background

evidence that Sochor produced during the evidentiary hearing was either cumulative

of the background evidence presented during the penalty phase or irrelevant. With

respect to Sochor’s Brady and Giglio claims, the trial court found that Gary’s

testimony that he was granted immunity and that the state instructed him to lie about

kissing Patty was not credible. The Supreme Court of Florida affirmed in 2004.

Sochor v. State (Sochor IV), 

 (2004).

      The Supreme Court of Florida ruled that Sochor’s lawyer rendered deficient

performance when he failed to investigate mental health evidence, but the court also

ruled that Sochor did not suffer prejudice as a result of the deficient performance.

The Supreme Court of Florida acknowledged that the trial court did not consider the

testimony of Dr. Greer and Dr. Froming when the trial court ruled that Sochor’s

lawyer did not render ineffective assistance, and the court stated that this approach

                                          20
was consistent with Florida law, id. at 783–84. Quoting extensively from its

decision in Porter v. State (Porter I), 

, 923 (2001), overruled by Porter

II, --- U.S. ----, 

 (2009), the Supreme Court of Florida explained that

“[a]t the conclusion of the postconviction evidentiary hearing in this case, the trial

court had before it two conflicting expert opinions over the existence of mitigation. .

. . Based upon [the] case law [of the court], it was then for the trial court to resolve

the conflict by the weight the trial court afforded one expert’s opinion as compared

to the other.” Sochor IV, 883 So. 2d at 783 (citation and internal quotation marks

omitted). Approving the analysis that the trial court employed, the Supreme Court

of Florida stated that the trial court “resolved the conflict by determining that the

greatest weight was to be afforded to the State’s expert. We accept this finding by

the trial court because it was based upon competent substantial evidence.” Id.

      In deciding this issue, the Supreme Court of Florida explicitly recognized that

it “faced . . . a situation like the one [it was] faced with in” Porter I. Sochor IV, 

. In Porter I, a jury in Florida convicted Porter of two counts of first

degree murder after he killed his ex-girlfriend and her boyfriend. Porter II, --- U.S.

at ----, 130 S. Ct. at 448. The jury at Porter’s trial recommended a sentence of death

for both murders, but the trial court imposed a sentence of death for only the murder

of the ex-girlfriend. Id. at 449. Porter filed a petition for postconviction relief in

                                            21
state court on the ground that his penalty-phase counsel had failed to investigate and

present mitigating evidence. Id. The trial court conducted an evidentiary hearing,

and Porter presented extensive mitigating evidence, all of which was apparently

unknown to his penalty-phase counsel. Id. Relevant to this appeal, Porter presented

an expert in neuropsychology who had examined Porter and administered

psychological tests to him. Id. at 451. Porter’s neuropsychologist testified that

Porter suffered from brain damage that could manifest in impulsive, violent

behavior. Id. Porter’s neuropsychologist testified that, at the time of the murders,

Porter was substantially impaired in his ability to conform his conduct to the law and

suffered from an extreme mental or emotional disturbance, two statutory mitigating

circumstances. Id. Porter’s neuropsychologist also testified that Porter had

substantial difficulties with reading, writing, and memory, and that these cognitive

defects were present when he was evaluated for competency to stand trial. Although

the experts that the state presented reached different conclusions regarding the

statutory mitigators, each expert testified that he could not diagnose Porter or rule

out a brain abnormality. Id. The trial court ruled that Porter had not been prejudiced

by the failure to introduce any of the mental health mitigation evidence. Id. The

trial court found that Porter had failed to establish any statutory mitigating

circumstances, and that the nonstatutory mitigating evidence would not have made a

                                           22
difference in the outcome of the case. The Supreme Court of Florida affirmed. Id.

It accepted the finding of the trial court that Porter could not have established any

statutory mitigating circumstances, based on the fact that the trial court had accepted

the conclusions that the experts for the state offered regarding the existence of such

circumstances. The Supreme Court of Florida stated that Porter’s expert testified

that Porter “suffered from a mental condition that substantially impaired his ability to

comply with the law,” Porter I, So. 2d at 923, and the same thing occurred at

Sochor’s evidentiary hearing, Sochor IV, 883 So. 2d at 783 n. 19. The Supreme

Court of Florida stated that “[t]he State’s expert disagreed [with the conclusions of

Porter’s expert] and testified that ‘this mitigation was not present,’” and “[w]e noted

that the [trial] court ‘reject[ed] [the] testimony [of Porter’s expert], and rather

accepted the testimony of the [expert of the state] (who specifically disagreed with

[Porter’s expert]), on this issue.” Id. (some alterations in original). Relying on

Porter I, the Supreme Court of Florida in Sochor IV deferred to the decision of the

trial court not to credit the testimony of Dr. Greer and Dr. Froming because their

testimony was controverted by Dr. Ceros-Livinston, the expert for the state. Sochor

IV, 883 So. 2d at 783–84. Leaving no doubt that it failed to consider the testimony

of Dr. Greer and Dr. Froming when assessing whether Sochor suffered prejudice, the

Supreme Court of Florida stated that, “[a]s in Porter [I] . . . we find that the circuit

                                            23
court’s decision to credit the testimony of the State’s mental health expert over the

testimony of Sochor’s new experts is supported by competent, substantial evidence.”

Id.

      Five years after the Supreme Court of Florida decided Sochor IV, the Supreme

Court of the United States repudiated its approach. Porter II, --- U.S. at ----, 130 S.

Ct. at 454. Before the Supreme Court decided Porter II, Sochor filed a petition for a

writ of habeas corpus in the district court, and the district court denied the petition.

Sochor v. Sec’y, Fla. Dept. of Corr. (Sochor V)., 05-61534-CIV-MARTINEZ (S.D.

Fla. Sept. 23, 2009).



                            II. STANDARD OF REVIEW

      The Antiterrorism and Effective Death Penalty Act of 1996 governs Sochor’s

petition and our review of the decision of the Supreme Court of Florida. 28 U.S.C. §

2254(d). We will not disturb the decision of the state court unless the decision “was

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

law, as determined by the Supreme Court of the United States,” or “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). “The Supreme Court of the United States

has held that § 2254(d)(1) imposes a ‘highly deferential standard for evaluating

                                            24
state-court rulings,’ a standard ‘which demands that state-court decisions be given

the benefit of the doubt.’” Rutherford v. Crosby, 

, 1306–07 (11th Cir.

2004) (quoting Woodford v. Visciotti, 

, 24, 

, 360 (2002)).

“A state court decision involves an unreasonable application of federal law when it

identifies the correct legal rule from Supreme Court case law but unreasonably

applies that rule to the facts of the petitioner’s case,” Spencer v. Sec’y, Dep’t of

Corr., 

, 1178 (11th Cir. 2010) (internal quotation marks omitted), or

when it “unreasonably extends, or unreasonably declines to extend, a legal principle

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

,

1241 (11th Cir. 2001).

      To determine whether the state court unreasonably applied clearly established

federal law in adjudicating Sochor’s habeas petition, this Court must conduct the

two-step analysis that the Supreme Court set forth in Harrington v. Richter, --- U.S. -

---, 

 (2011). First, this Court “must determine what arguments or

theories supported or, [if none were stated], could have supported the state court’s

decision.” Johnson v. Sec., Dept. of Corr., 

, 910 (11th Cir. 2011)

(quoting Harrington, --- U.S. ----, 131 S. Ct. at 786.) (alteration in original) (internal

quotation marks omitted). Second, this Court “must ask whether it is possible

fairminded jurists could disagree that those arguments or theories are inconsistent

                                            25
with the holding in a prior decision of [the Supreme] Court.” Id. (alteration in

original) (internal quotation marks omitted). In other words, we may issue a writ of

habeas corpus only “where there is no possibility fairminded jurists could disagree

that the state court’s decision conflicts with . . . precedents” of the Supreme Court of

the United States. Harrington, --- U.S. ----, 131 S. Ct. at 786.

       “The question whether a state court errs in determining the facts is a different

question from whether it errs in applying the law.” Rice v. Collins, 

,

342, 

, 976 (2006). “Our review of findings of fact by the state court is

even more deferential than under a clearly erroneous standard of review.” Stephens

v. Hall, 

, 1201 (11th Cir. 2005). We presume findings of fact to be

correct, and Sochor bears the burden of rebutting that presumption by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

                                  III. DISCUSSION

      We divide our discussion into two parts. First, we address Sochor’s claim that

he was prejudiced by his lawyer’s deficient investigation and presentation of

mitigating evidence during the penalty phase of his trial. Second, we discuss

Sochor’s claim that the Supreme Court of Florida made unreasonable findings of fact

when it denied his Brady and Giglio claims.




                                           26
   A. Although the Supreme Court of Florida Unreasonably Applied Strickland,
                      Sochor Cannot Establish Prejudice.

      Sochor argues that his trial counsel rendered ineffective assistance during the

penalty phase by failing to investigate and present mitigating evidence and that the

contrary ruling of the Supreme Court of Florida constitutes an unreasonable

application of clearly established federal law. To obtain relief, Sochor must prove

both that trial counsel’s “performance was deficient, and that the deficiency

prejudiced the defense.” Wiggins v. Smith, 

, 521, 

,

2535 (2003). Because the parties do not dispute that Sochor’s trial counsel

performed deficiently when he failed to investigate and present mental-health

evidence during the penalty phase, we express no opinion about that issue. Our

concern is whether Sochor suffered prejudice.

      A determination of prejudice “requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial.” Strickland, 466 U.S. at 687, 104

S. Ct. at 2064. We must ask whether “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694, 104 S. Ct. at 2068. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. In the context of a

challenge to a sentence of death, the question is whether “there is a reasonable



                                           27
probability that [the judge and jury] would have returned with a different sentence.”

Wiggins, 539 U.S. at 536, 123 S. Ct. at 2543. “To assess that probability, we

consider the totality of the available mitigation evidence–both that adduced at trial,

and the evidence adduced in the habeas proceeding–and reweig[h] it against the

evidence in aggravation.” Porter II, --- U.S. at ----, 130 S. Ct. at 453–54 (alteration

in original) (citation and internal quotation marks omitted). “The likelihood of a

different result must be substantial, not just conceivable.” Harrington, 131 S. Ct. at

792.

       Sochor argues that the Supreme Court of Florida unreasonably applied the

prejudice element of Strickland when the court “essentially boiled the issue down to

the lower court believing either . . . [Dr. Greer and Dr. Froming] or the trial

psychologist, Dr. Ceros-Livingston.” Sochor argues that the prejudice analysis of

the Supreme Court of Florida is unreasonable because the court employed reasoning

that the Supreme Court of the United States repudiated in Porter II. We agree.

       As measured against the decision of the Supreme Court of the United States in

Porter II, the Supreme Court of Florida unreasonably applied Strickland to decide the

issue of prejudice in Sochor IV when it failed to consider or discounted entirely the

mental health evidence that Sochor had presented in the postconviction evidentiary

hearing. In Porter II, the Supreme Court of the United States ruled that the Supreme

                                           28
Court of Florida had unreasonably applied clearly established federal law in Porter I

when it “either did not consider or unreasonably discounted the [mental health]

mitigation evidence [that Porter] adduced in the postconviction hearing.” --- U.S. at

----, 130 S. Ct. at 454. The Supreme Court of the United States ruled that it was

unreasonable for the Supreme Court of Florida to “discount entirely” the impact that

the testimony of Porter’s neuropsychologist might have had on the sentencing judge

and jury based on the fact that the experts offered by the state disagreed with the

conclusions of Porter’s expert. Id. at 455. As the Supreme Court of the United

States explained, “[w]hile the state’s experts identified perceived problems with the

tests that [Porter’s neuropsychologist] used and the conclusions he drew from them,

it was not reasonable to discount entirely the effect that this testimony might have

had on the jury or the sentencing judge.” Id. The Supreme Court of the United

States also ruled that it was unreasonable for the Supreme Court of Florida to fail to

give “any consideration for the purpose of nonstatutory mitigation to [the testimony

of Porter’s neuropsychologist] because “[u]nder Florida law, mental health evidence

that does not rise to the level of establishing a statutory mitigating circumstance may

nonetheless be considered by the sentencing judge and jury as mitigating.” Id.

(citing Hoskins v. State, 

, 17–18 (Fla. 2007)). As the Supreme Court of

the United States explained, “the Constitution requires that ‘the sentencer in capital

                                           29
cases must be permitted to consider any relevant mitigating factor.’” Id. (quoting

Eddings v. Oklahoma, 

, 112, 

, 875 (1982)).

      The expert testimony of Dr. Greer and Dr. Froming that Sochor introduced at

the evidentiary hearing was relevant mitigating evidence. The circuit court qualified

both Dr. Greer and Dr. Froming as experts and admitted their testimony that

additional mental health evidence was available at the time of Sochor’s 1986 trial.

For example, Dr. Greer testified that in his medical opinion, “manic depressive

illness” was “present [in Sochor] at the time of the murder.” Dr. Greer explained that

manic depressive illness is a “chronic,” lifelong disorder. Dr. Greer based this

opinion on his “own diagnos[is],” and he stated that the description of Sochor in

prison records that he reviewed “support[ed] [his] diagnos[is].” Dr. Froming

testified that the injuries that Sochor suffered as a child and a young man could have

caused an injury to Sochor’s brain and that Sochor’s extensive alcohol consumption

increased his risk of organic brain damage.

      After the Supreme Court of Florida ruled that Sochor’s lawyer rendered

deficient performance by failing to present relevant mental health mitigation

evidence, it was required to weigh the additional mitigating mental health evidence

that could have been presented at the trial and the mitigating evidence that was

presented at trial against the aggravating evidence to decide whether Sochor suffered

                                          30
prejudice. Williams v. Taylor, 

, 397–98, 

, 1515 (2000).

Although Dr. Ceros-Livingston “identified perceived problems with the . . .

conclusions,” Porter II, --- U.S. at ----, 130 S. Ct. at 455, of Dr. Greer and Dr.

Froming, the Supreme Court of Florida could not reasonably rely on the alleged

problems identified by Dr. Ceros-Livingston to “discount entirely the effect that” the

testimony of Dr. Greer and Dr. Froming “might have had on the jury or the

sentencing judge,” id. Instead of refusing to consider or entirely discounting the

mitigating evidence that could have been presented at the trial, the Supreme Court of

Florida should have determined what impact, if any, that mitigating evidence and the

mitigating evidence that was presented at sentencing would have had on the trial

court when weighed against the aggravating evidence. The Supreme Court of

Florida unreasonably applied clearly established federal law when it “either did not

consider or unreasonably discounted” the relevant mental health evidence that

Sochor produced in the evidentiary hearing.

      But our inquiry does not end here. “[I]f a state habeas court denies relief

where we would have done so if we were conducting de novo review, federal relief

is due to be denied regardless of the reasoning the state court used to reach that

result.” Jefferson v. Fountain, 

, 1295 n. 5 (11th Cir. 2004). We must

independently decide whether the failure of Sochor’s lawyer to investigate and

                                            31
present additional mitigating evidence at the sentencing proceeding prejudiced

Sochor.

      “[T]his is not a case where the weight of the aggravating circumstances or the

evidence supporting them was weak.” Suggs v. McNeil, 

, 1232 (11th

Cir. 2010) (internal quotation marks omitted). After the jury recommended a

sentence of death, the trial court found that the prosecution proved numerous valid

statutory aggravating circumstances beyond a reasonable doubt, and the aggravating

evidence carried great weight. Based on the evidence that Sochor choked Patty to

death with his bare hands and that strangulation is a slow and painful death, the trial

court found that the murder was especially heinous, atrocious, and cruel. The

Supreme Court of Florida has stated that the heinous, atrocious, and cruel aggravator

“is among the weightiest . . . in the statutory scheme.” Rigterink v. State, 

, 900 (Fla. 2011). Likewise, “the prior violent felony aggravator is considered

one of the weightiest aggravators.” Silvia v. State, 

, 974 (Fla. 2011).

Sochor’s prior violent felony was the vicious sexual assault that he committed after

he abducted a nineteen-year old girl from the parking lot of a bar and choked her.

That evidence would have been significant at Sochor’s sentencing in the light of the

similarities between the two crimes, and the trial court would have assigned great

weight to this aggravator. The trial court also would likely have assigned great

                                           32
weight to the fact that the murder was committed in the course of a kidnapping.

“Many death penalty cases involve murders that are carefully planned, or

accompanied by torture, rape or kidnapping.” Jackson v. Herring, 

,

1369 (11th Cir. 1995); see also Dobbs v. Turpin, 

, 1390 (11th Cir.

1998). “In these types of cases, this court has found that the aggravating

circumstances of the crime outweigh any prejudice caused when a lawyer fails to

present mitigating evidence.” Dobbs, 142 F.3d at 1390.

      When all the relevant evidence is weighed, the aggravating evidence

outweighs the mitigating evidence. There is not a reasonable probability that the

trial court would have rendered a sentence other than death based on the testimony

that Sochor produced at the evidentiary hearing. See Wiggins, 539 U.S. at 536, 123

S. Ct. at 2543. The deficient performance of Sochor’s counsel did not prejudice him.

       Dr. Greer and Dr. Froming both testified that Sochor’s capacity to conform

his conduct to the requirements of the law was substantially impaired when the

offense occurred and that he then suffered from extreme mental and emotional

disturbance, but at his trial Sochor presented a similar theory that the judge and jury

rejected. Both Dr. Greer and Dr. Froming diagnosed Sochor with manic depression,

and Dr. Froming diagnosed Sochor with organic brain damage. The thrust of the

testimony of both Dr. Greer and Dr. Froming was that Sochor’s mental health

                                           33
problems were exacerbated by the alcohol that he consumed the night he murdered

Patty. Dr. Greer stated that “synergistic effect” of Sochor’s alcohol consumption on

his manic depression was enhanced on the night of the murder because he had

abstained from alcohol for a long period of time before that night. Dr. Froming

testified that because Sochor had abstained from alcohol before the night of the

murder, a small number of alcoholic drinks could have caused him to become acutely

intoxicated and black out such that Sochor’s “impulse control would have been

substantially reduced . . . to the point of nonexistence.” But neither Dr. Greer nor

Dr. Froming testified that Sochor’s manic depression or brain damage drove him to

drink on the night of the murder. We have recognized that a jury can react “hostilely

to an assertion that a person should in some way be excused from the consequences

of his acts because he had voluntarily taken drugs,” Rogers v. Zant, 

, 387

(11th Cir. 1994), and the same goes for alcohol.

      Dr. Zager presented a substantially similar theory to the jury during the trial.

Dr. Zager testified that Sochor suffered from “anti-social personality disorder,” and

that Sochor was “a much more aggressive, potentially very violent, individual under

the influence of intoxicants.” Dr. Zager believed that Sochor acted impulsively and

with impaired judgment while under the influence of alcohol.




                                          34
      The sentencing judge and jury rejected a theory that Sochor did not deserve a

sentence of death because alcohol exacerbated a psychological disorder, and Sochor

fails to explain why the judge and jury would have been any more likely to accept

such a theory when the underlying mental health issue was manic depression instead

of antisocial personality disorder. The difference is negligible.

      Most of the nonstatutory mitigating evidence that Sochor produced in the

evidentiary hearing was cumulative of evidence produced at the guilt and penalty

phases of the trial. Sochor argues that he “presented evidence of the nonstatutory

mitigator of childhood trauma at the postconviction hearing.” Although Sochor

presented evidence during the evidentiary hearing that he suffered severe beatings

and head injuries as a child and young adult, our review of the record establishes that

the sentencing judge and jury heard substantially similar evidence during the penalty

phase. For example, Sochor’s sister testified during the penalty phase that Sochor’s

father, Charles, once “got ahold of [Sochor’s] hair, and he kept banging his head

against the wall.” Charles testified during the penalty phase that when he returned

home from work once, Sochor’s mother, Rose, told Charles that “she had lost her

temper and beat [Sochor], then banged his head against the wall.” Charles also

testified at trial that when Sochor was four-years old, Sochor fell as he ran with a tin

horn in his mouth. Charles testified that the tin horn went through the roof of

                                           35
Sochor’s mouth and “open[ed] a hole that you could see right into his head.” During

the evidentiary hearing, Sochor’s siblings testified that their father had brutally

beaten Sochor when he was a child. One of Sochor’s friends testified during the

evidentiary hearing that Sochor once got into a fight with a much larger man and that

the man picked Sochor up, threw him to the ground, and slammed his head into the

pavement. The jury heard evidence at trial regarding childhood trauma that was

substantially similar to the evidence Sochor presented at the evidentiary hearing.

“Obviously, a petitioner cannot satisfy the prejudice prong of the Strickland test with

evidence that is merely cumulative of evidence already presented at trial.” Rose v.

McNeil, 

, 1243 (11th Cir. 2011).

      Although Sochor argues that he “presented lay witness testimony at the

postconviction evidentiary hearing about his positive character traits that the jury

never heard,” that evidence too was cumulative. Sochor maintains that he presented

evidence in the evidentiary hearing that he “was known for protecting his siblings,

and his friends, and that he was a loving son and brother,” but substantially similar

testimony was presented to the judge and jury by most of Sochor’s family members

who testified during Sochor’s sentencing.

      Sochor argues that he produced at the evidentiary hearing new evidence that

he abused alcohol and drugs, but that evidence posed a danger to Sochor. For

                                           36
example, one of Sochor’s friends testified that he and Sochor “dropped acid” more

than one hundred and fifty times in 1971. There is every reason to believe that this

evidence would have hurt Sochor as much as it would have helped him. “As we

have repeatedly recognized, evidence of drug and alcohol use is often a ‘two-edged

sword,’ that provides an independent basis for moral judgment by the jury.” Suggs,

609 F.3d at 1231 (internal quotation marks and citations omitted). See also Pace v.

McNeil, 

, 1224 (11th Cir. 2009) (“[P]resenting evidence of a

defendant’s drug addiction to a jury is often a ‘two-edged sword’: while providing a

mitigating factor, such details many alienate the jury and offer little reason to lessen

the sentence.”); Grayson v. Thompson, 

, 1227 (11th Cir. 2001)

(“[E]mphasizing [petitioner’s] alcoholic youth and intoxication may also have been

damaging to [petitioner] in the eyes of the jury.”); Tompkins v. Moore, 

, 1338 (11th Cir.1999) (“[A] showing of alcohol and drug abuse is a two-edged

sword which can harm a capital defendant as easily as it can help him at

sentencing.”); Rogers, 13 F.3d at 388 (“Counsel could have reasonably believed that

developing [petitioner’s] drug use as a defense would have . . . been perceived by the

jury as aggravating instead of mitigating.”).

      Sochor argues that the jury “should have heard evidence and considered the

nonstatutory mitigator of poverty,” but this evidence too was fraught with peril.

                                           37
During the evidentiary hearing, Blaine Sochor, one of Sochor’s brothers, testified

that he and his siblings would sometimes be so hungry as children that they would

hunt for food. Blaine also testified that he suffered from boils on his legs as a child

and he attributed this condition to malnutrition. Although Blaine testified that he

suffered poverty and hunger during childhood, he did not become a rapist and

murderer as an adult. When “additional mitigating evidence emphasizing physical

abuse, neglect, and poverty” has the potential to highlight that a petitioner’s sibling

“grew up in the same environment” and “still emerged as a successfully employed,

law-abiding citizen,” that evidence can pose as much harm as good. Boyd v. Allen,

, 1301 (11th Cir. 2010).

       When we “consider the totality of the available mitigation evidence—both

that adduced at trial, and the evidence adduced in the habeas proceeding—and

reweigh it against the evidence in aggravation,” Porter II, --- U.S. at ----, 130 S. Ct.

at 453–54 (quoting Williams, 529 U.S. at 397–98, 120 S. Ct. at 1515), we conclude

that Sochor has not established a reasonable probability that he was prejudiced by his

lawyer’s failure to present at sentencing the evidence Sochor produced at his

postconviction evidentiary hearing. On de novo review, Sochor’s claim of

ineffective assistance fails.

                      B. Sochor’s Brady and Giglio Claims Fail.

                                           38
      With respect to his claims that Florida violated his right to due process by

failing to disclose an offer of immunity to his brother, see Brady v. Maryland, 

, 

 (1963), and eliciting his false testimony, see Giglio v. United

States, 

, 

 (1972), Sochor failed to satisfy his burden of

rebutting, by clear and convincing evidence, the contrary factual determinations of

the Supreme Court of Florida. 28 U.S.C. § 2254(e)(1). That court found that Florida

never offered Sochor’s brother immunity nor elicited his false testimony. We

address each of these claims in turn.

      Sochor argues that the denial of his claim that the state violated his right to

due process under Brady when it allegedly failed to disclose that Gary Sochor

received immunity in exchange for his trial testimony was based on an unreasonable

determination of the facts, but this argument fails. Gary testified at the evidentiary

hearing that the police officer who escorted him into the courtroom told him that he

had been given immunity, but Gary, in response to questioning from Sochor’s

counsel, also testified that he never thought the police viewed him as a suspect.

Kelly Hancock, the prosecutor at Sochor’s trial, testified that he never offered Gary

Sochor immunity and that police officers in Florida do not have the power to grant

witnesses immunity. Relying on the credibility determinations of the trial court, the

Supreme Court of Florida rejected Gary’s version of events and concluded that the

                                           39
state did not offer him immunity in exchange for his testimony. The trial court found

Gary Sochor’s evidentiary testimony to be “unreliable and not credible.” The trial

court found Hancock’s testimony to be “candid, trustworthy, and credible.” The

Supreme Court of Florida ruled that the finding of the trial court “that the State did

not give Gary Sochor immunity in exchange for his testimony is supported by

competent, substantial evidence.”

      Sochor presents no clear and convincing evidence that this factual

determination is unreasonable. Sochor argues that the finding of the Supreme Court

of Florida that the state did not offer Gary immunity is unreasonable because “[n]o

rebuttal from any police officer was presented.” This argument is irrelevant because

Sochor did not present any evidence that the police had the power to immunize

witnesses on behalf of the district attorney, and Hancock testified that “police

officers [did] not have the power to grant witnesses immunity.” Sochor also argues

that “Hancock’s testimony does not rebut [Gary’s testimony], contrary to the . . .

finding” of the Supreme Court of Florida because Hancock admitted on re-cross

examination that “as to immunity I think that what [the police] would do, they might

talk to a witness and say, [we’ll] grant you immunity but we have to go to the State

and get the State to do it. That’s what would generally happen.” But Hancock

testified that the police did not have the power to provide witnesses immunity.

                                           40
Sochor presented no evidence to rebut this testimony. Regardless of whether a

police officer told Gary that he would be granted immunity for his testimony, Gary

could not have been granted immunity because police officers had no authority to do

so.

      Sochor also argues that the denial of his claim that the state violated his right

to due process under Giglio when it allegedly failed to correct Gary’s testimony that

he had not received immunity and allegedly instructed Gary to lie about kissing Patty

was based on an unreasonable determination of the facts, but this argument too lacks

merit. In addition to testifying that a police officer granted him immunity before the

trial, Gary also testified at the evidentiary hearing that Hancock told him not to

mention in his testimony that he kissed and fondled Patty on the night of the murder.

Hancock, on the other hand, testified that Gary never told him that he had kissed and

fondled Patty on the night of the murder. At trial, Gary testified that no one told him

what to say during his testimony, and that Hancock had told him to tell the truth.

Sochor argues that the “Supreme Court of Florida’s deference to the [trial] court’s”

finding that the state did not instruct Gary to lie about kissing Patty “cannot be

reconciled with its conclusion that there is no reasonable probability that the result of

the trial would have different,” but this argument fails. As the Supreme Court of

Florida explained, the only evidence suggesting that Hancock told Gary to lie was

                                           41
Gary’s evidentiary hearing testimony, but that testimony was contradicted by

Hancock’s evidentiary testimony and by Gary’s testimony during the trial. Sochor

fails to offer clear and convincing evidence that the factual finding of the Supreme

Court of Florida is unreasonable. Sochor’s lone argument is that “the fact that Gary

Sochor had kissed [Patty] in the car was in Gary Sochor’s deposition taken by”

Sochor’s trial counsel. “Clear and convincing evidence entails proof that a claim is

‘highly probable,’ a standard requiring more than a preponderance of the evidence

but less than proof beyond a reasonable doubt.” Mansfield v. Sec’y, Dep’t of Corr.,

, 1309 (11th Cir. 2012) (citation omitted). That Gary told Sochor’s

trial counsel that he kissed Patty does not make it highly probable that Hancock

instructed Gary to lie to the jury about a kiss.

                                  IV. CONCLUSION

      The denial of Sochor’s petition for a writ of habeas corpus is AFFIRMED.




                                            42