ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

PATRICIA A. SEITZ, District Judge.

THIS CAUSE came before the Court on Petitioner, Albert Holland's ("Mr. Holland") Amended Petition for Writ of Habeas Corpus by a Person in State Custody, filed on April 4, 2011. [D.E. 117]. Mr. Holland is currently on death row at the Union Correctional Institution in Raiford, Florida following a conviction in 1996 for first degree murder.1 The State and Mr. Holland have filed a response, and reply, respectively. In total, Mr. Holland asserts eight claims with multiple subclaims.

In this habeas corpus proceeding, brought pursuant to 28 U.S.C. § 2254, Mr. Holland seeks to overturn the death sentence imposed on him for his role in the first degree murder of Pompano Beach police officer Scott Winters. Mr. Holland asserts eight separate and distinct constitutional violations: (1) his right to self-representation was violated; (2) the trial court committed error by admitting testimony from expert witnesses who relied on a report which had been ruled inadmissible by the Florida Supreme Court on direct appeal from Mr. Holland's first trial; (3) the Florida Supreme Court erroneously concluded that the admission of an inaudible videotape and improper opinion testimony was harmless error; (4) the trial court erred by denying Mr. Holland's motion to suppress; (5) the trial court erred in denying the motion for judgment of acquittal based on a lack of evidence of premeditation; (6) he was denied effective assistance of appellate counsel when counsel failed to challenge the trial court's exclusion of reference to internal affairs records and failed to raise denial of additional peremptory challenges; (7) he was denied effective assistance of trial counsel when counsel made an unreasonable concession of guilt during closing argument and failed to object to certain testimony and statements made by the prosecutor during closing argument; and (8) the trial court failed to consider non-statutory mitigation.

The Court has considered the written submissions, the entire record of Mr. Holland's state court proceedings, and applicable law. For the reasons that follow, the Petition for Writ of Habeas Corpus is GRANTED, in part, and DENIED, in part. The Court grants Mr. Holland habeas relief as to Claim One because the Florida Supreme Court made legal and factual determinations which involved an unreasonable application of clearly established federal law when it concluded that Mr. Holland's Sixth Amendment right to self-representation was not violated. However, Mr. Holland's remaining claims for habeas relief are denied because the Florida Supreme Court made legal and factual determinations which involved a reasonable application of clearly established federal law or a reasonable determination of the facts in light of the evidence presented.

I. FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background in this section is quoted from the opinion of the Florida Supreme Court:

Holland v. State, 773 So.2d 1065, 1068 (Fla.2000). At the re-trial, Mr. Holland was again convicted of first-degree murder. The jury recommended by an eight-to-four vote that Mr. Holland be sentenced to death. The trial court found the following aggravating circumstances: (1) the defendant was previously convicted of a felony involving the use or threat of violence to a person; (2) the capital felony was committed while the defendant was engaged in the commission of, or in an attempt to commit, or flight after committing or attempting to commit the crime of robbery or an attempt to commit the crime of sexual battery or both; and (3)(a) the crime was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, merged with (3)(b) the victim of the capital felony was a law enforcement officer engaged in the performance of his legal duties. The court did not find that any statutory mitigating circumstances were established, but did find the existence of two nonstatutory mitigating circumstances: (1) history of drug and alcohol abuse (little weight) and (2) history of mental illness (little weight). The trial court concluded that the aggravators outweighed the mitigators and sentenced Mr. Holland to death. Id. at 1068. On direct appeal, Mr. Holland raised twenty-two claims.2 The Florida Supreme Court found Mr. Holland's claims without merit and affirmed his conviction and sentence of death. Id. Subsequently, Mr. Holland filed a Rule 3.851 motion for postconviction relief. The trial court conducted a limited evidentiary hearing on two claims pursuant to Huff v. State3 and then issued an order denying Mr. Holland relief on all claims. Mr. Holland appealed to the Florida Supreme Court. Holland v. State, 916 So.2d 750 (Fla.2005).4 Mr. Holland also petitioned for state habeas relief. Id. Mr. Holland raised four claims of ineffective assistance of appellate counsel. The Florida Supreme Court affirmed the trial court's order denying Mr. Holland's motion for postconviction relief and denied his petition for writ of habeas corpus. Id. at 762.

On January 19, 2006, Mr. Holland, acting pro se filed a petition pursuant to 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody with the Court. (See [D.E. 1]). This Court dismissed the petition as barred by the statute of limitations. ([D.E. 46]). The Eleventh Circuit Court of Appeals affirmed. Holland v. Florida, 539 F.3d 1334 (11th Cir.2008). Mr. Holland petitioned for a writ of certiorari to the United States Supreme Court which was granted and, after oral argument, reversed the Eleventh Circuit. Holland v. Florida, ___ U.S. ___, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010).

On remand, the Court permitted Mr. Holland to amend his petition. ([D.E. 112]). On April 4, 2011, the instant petition was filed. ([D.E. 117]). On July 13, 2011, the State filed its response. (See [D.E. 120]). On October 3, 2011, Mr. Holland filed his reply. (See [D.E. 120]). This matter is now ripe.

II. STANDARD OF REVIEW

Mr. Holland's habeas corpus petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214 (1996) (codified at various provisions in Title 28 of the U.S.Code), which significantly changed the standards of review that federal courts apply in habeas corpus proceedings. Under the AEDPA, if a claim was adjudicated on the merits in state court, habeas corpus relief can only be granted if the state court's adjudication results in one of two outcomes. It must have either "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(1) and (2). Mr. Holland's habeas petition is granted pursuant to § 2254(d)(1).

Pursuant to § 2254(d)(1), a state court decision is "contrary to" Supreme Court precedent if it "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [an] [opposite] result." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to the "unreasonable application" prong of § 2254(d)(1), which applies when a state court identifies the correct legal principle but purportedly applies it incorrectly to the facts before it, a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. 1495. See also Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Significantly, an "objectively unreasonable application of federal law is different from an incorrect application of federal law." Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). In order to make this determination under § 2254(d)(1), "a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the United State Supreme] Court." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).

III. CLAIMS ANALYSIS

In the instant petition, Mr. Holland asserts eight claims for federal habeas relief. Mr. Holland argues that his rights to self-representation and to remain silent were both violated. He contends that the Florida Supreme Court conducted a flawed harmless error analysis on direct appeal. Mr. Holland also asserts that there was insufficient evidence to support a finding of premeditation. He maintains that he received ineffective assistance of counsel at both trial and on direct appeal. Finally, Mr. Holland asserts that the trial court failed to consider non-statutory mitigation. Because Mr. Holland's first claim is the sole claim warranting habeas relief, it is the principle focus of this opinion. Mr. Holland has not met the deferential standard required for habeas relief on his remaining claims.

I. SELF-REPRESENTATION

To begin, Mr. Holland's first claim for habeas relief is that the "trial court erred in denying the Petitioner his constitutional right to self-representation after he unequivocally requested to represent himself on several occasions." ([D.E. 117] at 8). On at least ten separate occasions before trial, during trial, and in advance of the penalty phase, Mr. Holland requested to represent himself. The trial judge determined that Mr. Holland could not represent himself because he did "not have any specific legal training" and was not "familiar with the rules of evidence, nor trial procedures, [and] is not familiar with how trial is conducted." ([D.E. 125-14] at 58). This erroneous application of law resulted in Mr. Holland putting forth a defense of insanity which is not the defense that Mr. Holland wanted. In his first trial, the defense was insanity. Evidently, this defense was unsuccessful as it resulted in a guilty verdict. At his re-trial, Mr. Holland made clear that if he were to represent himself, his intention would be to challenge the State's evidence or lack thereof When he was denied the right to represent himself, defense counsel proceeded again with an insanity defense. This result violated the fundamental rights guaranteed to Mr. Holland by the Sixth Amendment to the United States Constitution. See Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense."). This right was well understood and clearly established law at the time of Mr. Holland's direct appeal to the Florida Supreme Court.

The United States Supreme Court expressly recognized the right to self representation in 1975. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Supreme Court held that the Sixth and Fourteenth Amendments include a "constitutional right to proceed without counsel when" a criminal defendant "voluntarily and intelligently elects to do so." 422 U.S. at 807, 95 S.Ct. 2525. The Faretta Court found that right existed based on:

Indiana v. Edwards, 554 U.S. 164, 170, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). Given this backdrop, the Court finds that the Florida Supreme Court made an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States when it determined that Mr. Holland's claim of error had no merit. § 2254(d)(1).

A. Facts and Procedural History

The factual underpinning's of this claim are unusual and highly unlikely to be repeated in the future. The facts reflect a series of events which occurred as the result of not any one singular error or misunderstanding and which resulted in a confluence of events that ultimately caused the confusion between technical legal competence to represent oneself and the competence required to make a knowing and voluntary waiver of that right. These facts are essential to Mr. Holland's claim. As such, they bear repeating.5

Appointment of Counsel

On August 12, 1991, Mr. Holland was convicted and sentenced to death. The trial judge was the Honorable M. Daniel Futch. At trial, Mr. Holland was represented by court appointed counsel, Peter Giacoma, Esq. and Young Tindall, Esq. On direct appeal, the Florida Supreme Court reversed Mr. Holland's conviction and sentence and remanded the case for a new trial. Holland v. State, 636 So.2d 1289 (Fla.1994).

On remand, Mr. Holland's case was assigned to a different judge, the Honorable Charles M. Greene. The trial court held a hearing to appoint counsel. Judge Greene knew of the partnership between Mr. Giacoma and Judge Futch and found that in order to avoid "any appearance of impropriety or any interest, whatsoever" the trial court would appoint new counsel. ( [D.E. 125-3] at 61).

i. Kenneth Delegal, Esq.

On August 24, 1994, the trial court held another hearing wherein Judge Greene appointed Kenneth Delegal, Esq. ([D.E. 125-3] at 76). After the court announced the appointment of Mr. Delegal, the State announced that Mr. Holland should be informed that Mr. Delegal's brother had been an assistant state attorney for many years before going into private practice as a criminal defense attorney. (Id. at 78). Mr. Delegal stated for the record that he was not associated with his brother but his brother did rent office space from him at one time. Mr. Holland voiced some concerns about Mr. Delegal's representation of him and asked the court for some time to think about it. Mr. Holland asked the court "if I say it makes me uncomfortable, you know, then what other choices do I have?" (Id. at 83). The court did not respond to Mr. Holland's question and announced that Mr. Delegal was appointed. (Id. at 84).

After the appointment of Mr. Delegal, Mr. Holland's case largely proceeded without issue for almost a year. From time to time, Mr. Holland voiced concerns about not wanting to waive his speedy trial right but he felt he "did not have a choice" because he had been appointed counsel over his objection. Mr. Holland also requested copies of the trial transcripts, depositions taken in the case, and police reports to be accessed at the Broward County Jail during the preparation of his trial. Mr. Holland wanted to assist in his own defense. Judge Greene agreed and entered an order requiring the Broward County Jail to "allow the defendant to review transcripts of his first trial and to store these transcripts in the jail as BSO deems appropriate." ([D.E. 125-78). Mr. Delegal was to have these documents copied and delivered to Mr. Holland. For reasons explained below, these documents were never produced to Mr. Holland by Mr. Delegal.

In general, Mr. Holland remained cooperative and was not overtly disruptive in court. On July 26, 1995, the court held a status conference where it was announced that Mr. Delegal will no longer be able to represent Mr. Holland due to Mr. Delegal's being confined to a mental health facility pursuant to the Baker Act.6 As of that date, Mr. Delegal had requested to be placed on inactive status with the Florida Supreme Court and The Florida Bar. Appearing before the court was James Lewis, Esq. who shared office space with Mr. Delegal and was aware of the situation regarding Mr. Delegal's incapacity. Mr. Lewis offered to appear as counsel for Mr. Holland during the re-trial. Mr. Holland said he would like to think about it because he may want someone else appointed. ( [D.E. 125-9] at 20). Nonetheless, the trial court appointed Mr. Lewis. Mr. Holland also voiced concerns about his current access to the jail law library (or lack thereof) and the fact that Mr. Delegal allowed an expert witness to interview him without videotaping the session. (Id. at 24). Mr. Holland suggested that perhaps the failure to videotape the session was due to Mr. Delegal being under the influence.

ii. James Lewis, Esq. and Evan Baron, Esq.

On September 25, 1995, Mr. Holland addressed the court after he had refused to meet with counsel at the jail. Mr. Holland had written the trial court several letters requesting five things. First, he wanted the judge to recuse himself. Mr. Holland argued that he only consented to Judge Greene retaining jurisdiction over the case when the judge left the criminal division to preside in family court because Mr. Delegal advised this was best. However, now that Mr. Delegal was no longer on the case and his judgment was in serious doubt, Mr. Holland wanted to change positions. ([D.E. 125-9] at 85). Second, Mr. Holland also advised the court that he had not received copies of depositions as previously ordered by the trial court and was concerned that he would not get a fair trial based on Mr. Delegal's actions or lack thereof. Third, Mr. Holland asked for Mr. Lewis to be replaced. ([D.E. 125-10] at 25). Fourth, Mr. Holland also asked for Mr. Baron (penalty phase counsel) to be replaced since he was appointed along with Mr. Delegal. The trial court denied these requests but did require Mr. Lewis to provide Mr. Holland with the documents, trial transcripts and deposition transcripts that Mr. Delegal had been ordered to provide. In addition, Mr. Holland also argued to the trial court that an error may have been made in the indictment because according to his legal research attempted felony murder is not a crime in Florida.7 (Id.).

Competency

On October 9, 1995, after Mr. Lewis reported some competency concerns about Mr. Holland, the trial court appointed three independent mental health professionals to examine Mr. Holland to make a determination if he was competent to stand trial. Drs. Lee Bukstel, Trudy Block-Garfield and Patsy Ceros-Livingston each evaluated Mr. Holland. On December 14, 1995, a competency hearing was held. Each witness submitted an expert report on their findings and those reports were admitted into evidence at the competency hearing.8 The record is unclear as to when but Mr. Holland had been prescribed Haldol9 at the time of the interviews. On some occasions, he had refused to take it. ([D.E. 125-11] at 53). On other occasions, it appears that he did take it. ([D.E. 125-11] at 110). Regardless, all three doctors found Mr. Holland competent (Dr. Ceros-Livingston did not determine that Mr. Holland was competent because she believes that finding to be for the "trier of fact" but she did find that Mr. Holland met all the criteria for competency (i.e.: he could assist counsel, knew the nature of the charges, possible sentence, so on) to stand trial. ([D.E. 125-11] at 33-161). All three experts concluded that Mr. Holland would be able to conduct himself appropriately in court. All three experts said Mr. Holland cooperated, had behaved appropriately and understood the legal proceedings. Indeed, Dr. Bukstel testified that "I would say that as far as his awareness of the legal aspects of his case, more generally and specifically that he probably gave, among the individuals that I interviewed, he probably gave among the more sophisticated answers that I have received from people. In other words, he's very astute and has a very clear and intellectual understanding of the legal process as it relates to his involvement in it." (Id. at 60). Further, all three experts said that his prior hospitalization and probable brain injury from a beating in jail many years ago did not affect his competency. After argument, the trial court found:

(Id. at 143).

Thereafter, from December 14, 1995, to March 22, 1996, the record reflects that only three hearings were held. The record shows that Mr. Holland was present but did not speak or make any statements during these hearings. There is nothing in the record to suggest that Mr. Holland disrupted the proceedings. It was not until March 22, 1996, that Mr. Holland first raised the idea of self-representation.

On March 22, 1996, court began with the argument of several defense motions. ([D.E. 125-14] at 35). Among other things, Mr. Lewis advised the court that Mr. Holland refused to see him at the jail and that Mr. Holland would like to address the court. Mr. Holland first argued that Mr. Lewis was incompetent. He notified the court that he had still not seen depositions which had been court ordered when Mr. Delegal was Mr. Holland's counsel. Mr. Holland also requested crime scene and autopsy photos (Mr. Holland believed these items were vital to his defense because of where the bullet wounds were and the fact that the deputy was wearing a bullet proof vest.). ([D.E. 125-14] at 50). Mr. Holland's primary complaint was that he had not been given the documents that he had requested multiple times, including crime scene photos, autopsy photos, and trial transcripts. Mr. Holland advised the trial court that his and Mr. Lewis' "client/lawyer relationship has deteriorated." (Id. at 45). Mr. Lewis advised the trial court that Mr. Holland did, in fact, want copies of the autopsy photos but he would not give them to Mr. Holland because he "didn't think it proper or necessary." (Id. at 46). Also, Mr. Lewis had not provided Mr. Holland with all the transcripts but did provide him with the ones he thought "necessary and important for him to have." (Id.). The trial court stated that "[t]he Court candidly has heard Mr. Holland in a very coherent and organized manner express his thoughts —." (Id. at 48). Mr. Holland interjected and continued to request new counsel until he finally asked "[o]ne last thing, and if I am allowed to represent myself will I be entitled to those things and present those things, and have those things in my possession?" (Id. at 53).

At that point, the court addressed Mr. Holland:

(Id. at 54) (emphasis added). The court was about to conclude the hearing when Mr. Holland inquired as follows:

Id. at 55-58. (emphasis added). Thereafter, the court issued a written order which stated "[d]efendant's motion to represent himself is denied after court having conducted a Farretta [sic] hearing, finding that the Defendant is incapable to represent himself." ([D.E. 125-78] at 88) (emphasis added).

The case proceeded with Mr. Holland being represented by Mr. Lewis and Mr. Baron. From time to time, Mr. Holland voiced complaints regarding his counsel and access to documents.10 However, on August 2, 1996, defense counsel filed a motion for Mr. Holland to be given an MRI. During the hearing, Mr. Holland again requests that his attorneys be removed and that he be given new attorneys.11 The court summarily denied the request. The court granted the motion for a MRI. Then, Mr. Holland again raised the issue of the deposition transcripts. He had received some but not all. He also advised that he did not have a complete witness list and he requested one from counsel. Mr. Holland then continued to voice his concerns to the trial court at which point the court interrupted and said:

([D.E. 125-15] at 99-108.) (emphasis added).

On August 26, 1996, defense counsel moved to withdraw. A hearing was held. Defense counsel advised the trial court that Mr. Holland believes "that he would be better off handling this on his own based on the representation that he has had in the past from Mr. Giacoma, Mr. Tindall, Mr. Delegal, myself and Mr. Lewis. His belief is he can do a better job." ( [D.E. 125-16] at 8). Before Mr. Holland made any statements, the trial court made a record of prior Faretta inquiries to Mr. Holland. In that regard, the court made the following findings of fact on the record:

([D.E. 125-16] at 13). The trial court then allowed Mr. Holland to speak at great length regarding why he wanted to discharge his counsel and represent himself.13 The trial judge then questioned Mr. Holland's attorneys regarding their qualifications, how long they had been members of The Florida Bar, and, at Mr. Holland's initiation, the race and ethnicity of their former clients. (Id. at 69-102). Specifically, the trial judge inquired as to the preparation needed for the penalty phase of a capital trial. The trial court then determined that Mr. Holland's attorneys were "prepared to effectively represent him at trial." (Id. at 102). The trial court then chronicled Mr. Holland's complaints with his current and prior attorneys and also put into the record that while he was not present at Mr. Holland's original trial that the court "did have the opportunity to review the trial transcript — it is clear from the testimony presented that Mr. Holland conducted himself in such a manner that it was necessary for him to be removed from the courtroom during trial." (Id. at 103). As to Mr. Holland's current request to represent himself,

(Id. at 105-06) (emphasis added). The trial court's written order read as follows: "CT denies Mr. Holland to represent himself. M/Withdraw denied. Nelson Inquiry Held and Continued Faretta Hearing Conducted." ([D.E. 125-79] at 71).

Afterwards, Mr. Holland's case proceeded and he attended hearings with minimal or no comment. However, this changed on September 18, 1996, on the eve of trial. Initially, Mr. Holland asked the court to discharge his attorneys and he also requested a suit to wear for his trial. ([D.E. 125-17] at 112). The court denied his request as to counsel but granted his request for a suit. (See id.). Mr. Holland then advised the court that he cooperated with all the State's expert witnesses and did the MRI examination. Mr. Holland then again requested to represent himself.

([D.E. 125-17] at 115). After hearing, the trial court entered an order that defendant's "renewed motion to represent himself denied." ([D.E. 125-81] at 45). In advance of trial, Mr. Holland had made several timely requests to represent himself. All of his requests were denied. On September 24, 1996, jury selection in Mr. Holland's re-trial began. The entire trial from jury selection to the court's imposition of the death sentence spanned a five month period.14

Re-Trial

On the first day of the re-trial, but before the voir dire of the jury, Mr. Holland again requested to represent himself.

([D.E. 125-18] at 8-11) (emphasis added).

On October 1, 1996, during jury selection, Mr. Holland again requested that his attorneys be discharged and that he be allowed to represent himself. (See [D.E. 125-25] at 39). In desperation, Mr. Holland advised the trial court that it could "get rid of them now, you don't even have to give me time to prepare. I'll try to represent myself from right now. You let me do it, I'll do it right now." (Id. at 41). The court rejected this offer finding that "[y]ou're not, candidly, prepared or capable of representing yourself. You have two fine lawyers doing it for you, and that's the rule of the Court." (Id., at 41-42). Mr. Holland continued to object to being represented by Mr. Lewis and Mr. Baron. Mr. Holland also argued that even though his request to represent himself was denied, he would still like to participate in the jury selection process, as long as cooperating with his counsel would not negatively impact his appellate rights. (Id., at 44). The trial court continued to deny his requests. The trial court then asked the attorneys if there was anything further. The Assistant State Attorney made the following statement15:

([D.E. 125-25] at 53) (emphasis added). Thereafter, the court issued a written order which denied Mr. Holland's requests to discharge his counsel and also found that "[t]his court has previously conducted a Faretta inquiry and has found that the Defendant is incompetent to represent himself." ([D.E. 125-81] at 78).

The following day, October 2, 1996, Mr. Holland advised the court that he was not satisfied with how his attorneys were handling jury selection. Mr. Holland had a specific question regarding his race as an African-American and the victim being a white police offer that he wanted presented to the jury. ([D.E. 125-27] at 8). Mr. Lewis advised the court that he had made a strategic decision to not ask that question. (Id. at 11-12). The court took a recess and allowed Mr. Holland to discuss this issue with counsel. After the break, Mr. Lewis advised the court:

([D.E. 125-27] at 15-16). Thereafter, Mr. Holland's race-based question was asked to the venire panel.

On October 3, 1996, the day after the jury had been selected, Mr. Holland again requested to have his attorneys discharged and be able to represent himself.

([D.E. 125-30] at 87-88). The trial court did not address Mr. Holland's request and recessed the hearing.

The issue of self-representation presented itself again on the next day of trial. During a hearing on the State's motions in limine, Mr. Holland again raised his attorney's incompetence and his desire to represent himself. (See [D.E. 125-31] at 15-24). Again, the Court did not address Mr. Holland's request. (Id.)

On October 8, 1996, the court held a hearing on the defense's motion in limine. Before the hearing began, Mr. Holland addressed the court:

([D.E. 125-31] at 82-85) (emphasis added).

Mr. Holland's defense presented his case the following day. Over his continued objection, Mr. Holland was represented by Mr. Lewis and Mr. Baron during the remainder of his re-trial.

On October 24, 1996, outside the presence of the jury, Mr. Lewis advised the court that the defendant was not going to testify and the defense was planning to rest the following day. (See [D.E. 125-45]). However, the next morning, Mr. Holland advised the court that he had "done some thinking" and he would like to testify in his own defense after all. ([D.E. 125-46] at 116-17). After a significant amount of indecision, Mr. Holland ultimately decided to testify. Mr. Holland indicated that he must do so because the trial court "forced upon me, these no good attorneys." ([D.E. 125-48] at 19). The trial court advised Mr. Holland multiple times regarding his rights to either testify or not testify. (Id.). The trial court asked questions in order to determine if Mr. Holland was making a knowing and voluntary waiver of his rights. (Id.). Then, the trial court found that his waiver was knowing and voluntary. On October 28, 1996, Mr. Holland took the stand in his own defense. (See [D.E. 125-48]). Mr. Holland testified to questions posed to him by his counsel on direct examination rather than testify in the narrative. (Id.). Mr. Holland's testimony spanned a period of days. (Id.).

Thereafter, the trial court allowed Mr. Holland to actively participate in the charge conference and jury instructions. (See [D.E. 125-59]). At one point during a disagreement between Mr. Holland and his counsel regarding a lesser included offense in the jury instructions, the court allowed Mr. Holland to make a waiver.

THE COURT: Well the Court finds the waiver to be knowingly and intelligently. ([D.E. 125-62] at 33) (emphasis added). On November 6, 1996, the jury found Mr. Holland guilty of first-degree murder, robbery, attempt to commit sexual battery upon a person twelve years of age or older with great force, and attempted first degree murder with a weapon. ([D.E. 125-64] at 132-33).

Following the verdict and in advance of the penalty phase, Mr. Holland again requested that his attorneys be discharged. (See [D.E. 125-64] at 138). His request was denied. (Id.) After his final request was denied, Mr. Holland no longer spoke with his counsel or the trial court; rather he sat and read a book (the court presumed it was the Bible) during all court proceedings outside the presence of the jury. ([D.E. 125-64] at 14). When the jury was present, Mr. Holland was attentive. Mr. Holland did not testify at the penalty phase. ([D.E. 125-69] at 21). On November 15, 1996, the jury recommended by a vote of eight to four that Mr. Holland be sentenced to death. ([D.E. 125-70] at 99-100). Mr. Holland continued to remain silent and did not converse with his counsel or the court for the remainder of all penalty proceedings. The court found that "Mr. Holland's lack of desire to participate in a Spencer16 hearing is freely and voluntarily done by Mr. Holland." ([D.E. 125-71] at 15) (emphasis added).

After the trial court conducted the Spencer hearing, the judge adopted the jury's majority recommendation and sentenced Mr. Holland to death. In the sentencing order, the trial court found that "[p]rior to his convictions on November 6, 1996, Albert Holland, Jr. frequently addressed the Court, participated in tactical decisions with counsel and testified before the jury at great length." ([D.E. 125-83] at 71). Further, in mitigation, the court gave "little weight" to the fact that Mr. Holland suffered from a long standing history of mental illness. ([D.E. 125-84] at 18). In fact, the trial court specifically found:

(Id. at 18-19) (emphasis added).

Additionally, the defense asked the court to consider Mr. Holland's "two prior adjudications of insanity, in the Superior Court of the District of Columbia" as a non-statutory mitigator. ([D.E. 125-84] at 19). Although the judge took into consideration Mr. Holland's insanity defense during the Faretta hearings, when asked to consider his prior adjudications of insanity in mitigation, the trial court denied this request.

([D.E. 125-84] at 19-20).

On February 7, 1997, Mr. Holland was sentenced to death by electrocution.17 (Id. at 125-84). For the reasons that follow, the Court finds that Mr. Holland's Sixth Amendment right to self-representation was violated and the Florida Supreme Court's decision resulted in an unreasonable determination of clearly established federal law.

B. Application of AEDPA standards18

As a threshold matter, the standard of deference the Court must give to the opinion of the Florida Supreme Court is high. In Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), the United States Supreme Court again articulated the well-known standard of deference that federal habeas courts must apply to the determinations of state courts in a federal habeas proceeding.19

The Court does not take this mandate lightly. Pursuant to the AEDPA, the Court may only issue a writ of habeas corpus when "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme] Court precedents." Id. Although, this standard is purposefully difficult to meet, the Florida Supreme Court's decision on Mr. Holland's claim that he was denied his right to self-representation is such a decision. Based on the record, the Court finds there is no possibility that fairminded jurists could disagree that the Florida Supreme Court's decision conflicts with United States Supreme Court precedent which was well-understood and comprehended in existing federal law at the time of Mr. Holland's direct appeal.

C. The State Court Decision

The Court must examine the Florida Supreme Court's resolution of this claim to determine if that decision was contrary to, or an unreasonable application of clearly established federal law at the time Mr. Holland's claim was denied.20 The Florida Supreme Court denied Mr. Holland's claim on October 5, 2000 (rehearing denied December 20, 2000).21 The opinion reads as follows:

Holland, 773 So.2d at 1069. (footnotes omitted). Based on clearly established federal law at the time, this determination was unreasonable because the holdings of the Supreme Court regarding self-representation at the time of Mr. Holland's direct appeal were that a defendant choosing self-representation must be permitted to do so when competent and when the waiver is knowing and voluntary. An inquiry focused solely on the defendant's legal skills was not relevant to whether or not he was competent to waive his right of self-representation. If Mr. Holland was competent to stand trial, he was likewise competent to waive counsel. "[W]e reject the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky22 standard." Godinez, 509 U.S. at 398, 113 S.Ct. 2680. On December 14, 1995, the trial court found that Mr. Holland was competent to stand trial. This was the relevant finding.23

D. Clearly Established Federal Law and its Application to Mr. Holland's Claim

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) is the foundational self-representation case. Faretta expressly recognized the existence of a constitutional right to conduct one's own defense. Id. Before Mr. Faretta's trial, the judge expressly inquired about Mr. Faretta's technical legal knowledge. The judge did so, presumably, because in 1975 the right to self-representation was not clearly established federal law.24 However, the right to self-representation was clearly established law in 2000 when Mr. Holland's direct appeal was denied. Yet, the questions posed to Mr. Faretta that the United States Supreme Court rejected as the wrong inquiries were quite similar to those questions the trial court posed during Mr. Holland's numerous "Faretta" inquiries.25 ([D.E. 125-14] at 55-58). For comparison purposes, the critical colloquy at issue in Faretta was as follows:

Faretta, 422 U.S. at 814, n. 3, 95 S.Ct. 2525.

After consideration of Mr. Faretta's answers above, and observation of his demeanor, the judge ruled that Mr. Faretta had not made an intelligent and knowing waiver of his right to the assistance of counsel, and also ruled that Mr. Faretta had no constitutional right to conduct his own defense. Id. Ultimately, the United States Supreme Court rejected this ruling and determined that "[t]he right of self-representation finds support in the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged." Id. at 818, 95 S.Ct. 2525. Moreover, the United States Supreme Court recognized that this right is implied in the Sixth Amendment because "the right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails." Id.

In Mr. Holland's case, Faretta could not be more applicable because it recognized that "the language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant-not an organ of the State interposed between an unwilling defendant and his right to defend himself personally." Id. at 820, 95 S.Ct. 2525. This is so because "to thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment." Id. On more than one occasion, Mr. Holland told the judge that he wanted to represent himself because he believed that he could mount a defense based on a lack of evidence.26 Instead, his counsel put forth an insanity defense.27 An insanity defense admits guilt but removes culpability based a disease or mental defect.28 These two defense are diametrically opposed. Therefore, in a very real sense, Mr. Holland's defense at trial was not his defense at all. This violates the Sixth Amendment because "[u]nless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense." Id. at 821, 95 S.Ct. 2525.

Further, during his multiple requests to represent himself, the trial court never asked whether or not Mr. Holland knew that he had a right to counsel and, if so, was he knowingly and willingly giving up that right. Not once. Moreover, the trial court did not ask the right questions about competency. The trial judge substituted technical legal competency for the competency required to make a knowing and voluntary waiver. This cannot be reconciled with Faretta.29 The undisputed facts show that on December 14, 1995, three court appointed mental experts found Mr. Holland to be competent to stand trial. ([D.E. 125-11] at 33-161). The trial court concurred; finding that Mr. Holland's "thought process [wa]s intact" and "he is able to function properly and appropriately." (Id. at 143). After the 1995 competency finding, the record does not indicate any specific event or comment that would have caused the trial court to change its opinion of Mr. Holland's competency. The record clearly shows that the trial court allowed Mr. Holland to make waivers of other constitutionally protected rights and determined that Mr. Holland was doing so knowingly and voluntarily. (See [D.E. 125-62] at 33, [D.E. 125-48] at 19 & [D.E. 125-71] at 15). These facts are not in dispute.

On March 22, 1996, six months before the re-trial began, Mr. Holland first indicated that he would like to represent himself. The trial court conducted what it believed to be a Faretta inquiry and then denied Mr. Holland's request because he did not "have the requisite legal ability to represent" himself, did not have "any specific legal training, is not familiar with how a trial is conducted, even though he's sat through them in the past" and was "incapable to represent himself." ([D.E. 125-14] at 54 & [D.E. 125-78] at 88).

On August 2, 1996, Mr. Holland again requested to represent himself. The trial court denied Mr. Holland's request because he "is not able to adequately appropriately represent himself" and that Mr. Holland was "in need of counsel" at both the guilt and penalty phase. (See [D.E. 125-15] at 99-108).

On August 26, 1996, the trial court was again apprised of Mr. Holland's desire to represent himself. This time, the trial court made a formal statement on the record. For the third time, the trial court denied Mr. Holland's request. However, on this day, the trial court cited not only Mr. Holland's inability to "make objections those objections which are necessary to present his own case" but the trial court included the facts that Mr. Holland had suffered a head injury more than a decade before, his demonstrated inability to follow the Court's orders at his prior trial, and the fact that he was relying on the defense of insanity. (See [D.E. 125-16] at 13) (emphasis added). Further, the trial court also denied his request based on the "complexity of this case." The record shows Mr. Holland made seven additional requests to represent himself during the remainder of the guilt and penalty phases. All of his requests were denied on essentially the same bases.

The trial court clearly erred because having specific legal training or legal ability has never been the standard by which a determination should be made before criminal defendants can represent themselves under clearly established federal law dating back to, at least, 1975.30 To the extent there was confusion about the Faretta rule regarding self-representation, Godinez v. Moran made it clear:

Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). Similar to Faretta, Godinez was also clearly established federal law at the time of Mr. Holland's direct appeal. In Godinez, the United States Supreme Court determined that finding a defendant is competent to stand trial, however, is not all that is necessary before he may be permitted to plead guilty or waive his right to counsel. In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary. Parke v. Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (guilty plea); Faretta, supra, 422 U.S., at 835, 95 S.Ct. 2525 (waiver of counsel). See id. at 400, 113 S.Ct. 2680. "In this sense there is a `heightened' standard for pleading guilty and for waiving the right to counsel, but it is not a heightened standard of competence. FN12"

FN12. The focus of a competency inquiry is the defendant's mental capacity; the question is whether he has the ability to understand the proceedings. See Drope v. Missouri, supra, 420 U.S. [162], at 171, 95 S.Ct. [896], at 903 [43 L.Ed.2d 103 (1975)] (defendant is incompetent if he "lacks the capacity to understand the nature and object of the proceedings against him") (emphasis added). The purpose of the "knowing and voluntary" inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced. See Faretta v. California, supra, 422 U.S., at 835, 95 S.Ct., at 2541 (defendant waiving counsel must be "made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open'") (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)); Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) (defendant pleading guilty must have "a full understanding of what the plea connotes and of its consequence").

Id. at 400-01, 113 S.Ct. 2680. Thus, the correct standard was not whether Mr. Holland was competent to represent himself because of his legal ability or training but rather was he competent to waive his Sixth Amendment right to counsel and was that waiver knowing and voluntary having been made aware of the dangers and disadvantages of self-representation, so that the record would establish that Mr. Holland knew what he was doing and his choice was made with eyes open. See id. The record does not reveal the answer to those questions because no one ever advised Mr. Holland of this right nor did anyone conduct an inquiry to determine if his desire to represent himself was a knowing and voluntary waiver of such a right. Because the trial court focused on the wrong legal standard, these essential questions were not asked. In keeping with Godinez, Mr. Holland was indeed competent; whether his waiver was knowing and voluntary is unknown because the question was never asked. Yet, it is not enough that the trial court failed to conduct a proper Faretta inquiry or denied Mr. Holland his right to self-representation based on an incorrect standard. See Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (a federal habeas court is not to substitute its views for those of state courts under AEDPA because "`an unreasonable application is different from an incorrect one.'"). The question before the Court is whether the Florida Supreme Court's determination of Mr. Holland's direct appeal resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. The Court must conclude that it did.

E. The State Court Decision and § 2254

To begin, the Florida Supreme Court did not analyze Mr. Holland's claim using clearly established federal law. Instead, the court analyzed Mr. Holland's claim pursuant to state law, in particular, Johnston v. State, 497 So.2d 863 (Fla. 1986).31 However, this does not change the analysis.

Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). Here, the Court has compared the record in Mr. Holland's case with the facts in Faretta and does not find them materially distinguishable. See § 2254(d)(1). Yet, the Florida Supreme Court arrived at a contrary result. Having carefully reviewed the record, the Court concludes there is no possibility fairminded jurists could disagree that the Florida Supreme Court's decision in Holland directly conflicts with Faretta and its progeny and was unreasonable rather than simply incorrect.

During the course of Mr. Holland's proceedings, the trial judge made certain factual findings on the record.32 Specifically, after having denied Mr. Holland's first two self-representation requests, the trial court then found that Mr. Holland suffered a head injury approximately ten to twelve years previously had also demonstrated before Judge Futch in his prior trial of this case, his inability to follow the Court's orders and decorum required to be in a courtroom. ([D.E. 125-16] at 13). The trial court also found that Mr. Holland had not demonstrated his ability to make objections which were necessary to present his own case and that Mr. Holland was relying on the defense of insanity. (Id.).

It is true that Mr. Holland did suffer a head injury over a decade ago, he was removed from the courtroom during his first trial, he is not experienced in the proper way to make objections in a court of law and he was relying on the defense of insanity.33 However, the trial judge found that these four factors determined Mr. Holland's ability to represent himself; the judge did not address these factors as whether or not they reflected a knowing and voluntary waiver of his right to represent himself. Moreover, during Mr. Holland's 1995 competency hearing, all three court-appointed expert witnesses testified that while Mr. Holland did suffer a serious head trauma over a decade ago, this injury did not effect his current competency.34 ( [D.E. 125-11] at 33-161). It also appears that Mr. Holland was removed from his original trial for being disruptive. However, nothing in the record before the Court indicates that Mr. Holland was being disruptive at his re-trial.35 In fact, the trial judge stated on the record on more than one occasion that Mr. Holland was able to function properly and appropriately and that he expressed his thoughts in a very coherent and organized manner.36 ([D.E. 125-11] at 33 & [D.E. 125-14 at 48]). Further, while Mr. Holland's counsel was relying on the insanity defense, an insanity defense is retrospective as to the defendant's sanity at the time the crime was committed not at the time the defendant asserts the defense in a court of law. See Hall v. State, 568 So.2d 882 (Fla.1990). The final fact found by the trial court was that Mr. Holland was not experienced in the proper way to make objections in a court of law. As noted above, this fact alone was never enough to deny a criminal defendant the right to represent himself and conduct his own defense. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. ("Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'") (citing Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).

Nonetheless, the State urges the Court to deny Mr. Holland's claim because there are certain instances in which self-representation can be denied and that Mr. Holland's case is one of these exceptions. The State argues that "[a] defendant's right to represent himself will be overridden in certain situations, such as where he cannot knowingly and intelligently waive his right to counsel or where he has demonstrated an inability or unwillingness to abide by the rules of procedure and courtroom decorum." ([D.E. 120] at 36). Assuming for our purposes that the State is correct, the record does not establish that either one of these situations occurred in Mr. Holland's case. The State categorizes Mr. Holland's repeated requests to represent himself as "tirades" and argues that the "trial court had seen Holland's behavior and tirades in its own courtroom and had assessed Holland's ability to participate in the legal process." ([D.E. 120] at 42-43). The State further argues that "[t]he trial court is in the best position to assess a defendant's behavior and to determine whether a waiver of his right to counsel is knowing and intelligent and whether he can abide by the rules and protocols of a trial."37 ( [D.E. 120] at 43).

It is true that a trial court is in the best position to assess a defendant's behavior. Here, the trial court assessed that Mr. Holland "voiced his concerns and issues in a most eloquent manner" and was able to "function properly and appropriately." ( [D.E. 125]at 143). More importantly, the court also found that Mr. Holland expressed his thoughts in a "very coherent and organized manner" on the same day that Mr. Holland was first denied self-representation. ([D.E. 125-14] at 48). During that same hearing, the trial court reiterated its previous finding that "Mr. Holland is competent." (Id. at 54). Later, during the re-trial, the trial court instructed defense counsel to ask the venire panel a question at Mr. Holland's request, despite the fact that counsel felt it was "so prejudicial to the case" that he did not want to ask the jurors. ([D.E. 125-27] at 15). The trial court sided with Mr. Holland because "it's a discretionary call. And different attorneys may have different strategies or beliefs as to what is prejudicial or not to their client." ([D.E. 125-27] at 16). Further, the trial court also found Mr. Holland was making a knowing and voluntary waiver of his rights when he initially decided not to testify.38 ([D.E. 125-48]). The trial court also found that Mr. Holland made a knowing and intelligent waiver of his rights during the charge conference in reference to lesser included offenses in the jury instructions. ([D.E. 125-62] at 3). In the sentencing order, the trial court also found that Mr. Holland had "participated in tactical decisions with counsel." ([D.E. 125-84] at 19). The trial court gave Mr. Holland's mental health mitigating factor little weight because of the "defendant's active participation during his trial and volitional decision at times not respond to the Court outside the presence of the jury, clearly establish his ability to participate, manipulate and engineer his actions." (Id.). Moreover, the trial court wholly rejected Mr. Holland's prior adjudications of insanity as mitigation because "that standard for insanity in [the District of Columbia] is a much lesser, more lenient standard than that which is used under the law of the State of Florida." ([D.E. 125-84] at 19). Thus, accepting the State's argument that the trial court is in the best position to assess a defendant's behavior and make competency determinations, the record shows that the trial court found Mr. Holland competent to make knowing and intelligent decisions regarding other constitutional rights except his right to self-representation. Further, the trial court rejected the same factors it utilized to deny Mr. Holland's request for self-representation when Mr. Holland later sought to use them in mitigation of his death sentence.39

The relevant question regarding Mr. Holland's right to self-representation was whether or not he knew that he had the right to counsel under the Sixth Amendment and was he competent to knowingly and intelligently waive that right. The failure to inquire is crucial because the record before the Court does not show that the trial court's findings were either relevant to that question or, even applying the wrong standard, supportive of the denial of the right. Likewise, the Florida Supreme Court failed to apply clearly established federal law on direct appeal. This violated Mr. Holland's right to represent himself under both Faretta and Godinez. These facts, in combination with the unequivocal statements made by the trial judge, confirms what was already clear: the trial judge applied the wrong standard and denied Mr. Holland his right to selfrepresentation based on his lack of formal legal training and knowledge of the applicable rules of evidence or procedure. See Faretta, 422 U.S. at 835, 95 S.Ct. 2525.

The Court understands a trial judge's inclination that a person facing the criminal justice system's ultimate punishment should be represented by qualified counsel. It is desirable, perhaps, admirable for a judge to want to save someone from himself. Indeed, the trial court found that "[t]he stakes are too great" for Mr. Holland to represent himself. However, the law was clear that while a defendant "may conduct his own defense ultimately to his own detriment, his choice must be honored" Id. at 834, 95 S.Ct. 2525. Here, the Court does not decide whether Mr. Holland was capable of providing himself with the representation of a skilled lawyer. Rather, the Court determines that no decision of the United States Supreme Court clearly established that the Constitution required Mr. Holland to do so before he may represent himself. "Thus, while `[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts,' ibid., a criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation." Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)) (emphasis in original). Therefore, habeas relief is granted as to Claim One.

II. RIGHT TO REMAIN SILENT

Mr. Holland's second claim for habeas relief is that the trial court erred in admitting testimony from mental health experts, Dr. Kaprowski (regarding Mr. Holland's insanity defense) and Dr. Block-Garfield (regarding Mr. Holland's competency to stand trial). Both of these mental health experts reviewed an expert report drafted by another physician, Dr. Abbey Strauss, even though the Florida Supreme Court had previously ruled Dr. Strauss' report inadmissible. ([D.E. 117] at 37). Mr. Holland further argues that the trial court also erred when it denied Mr. Holland's motion to recuse the State Attorney's office. (Id.). The State responds that the Florida Supreme Court properly denied Mr. Holland's claim and that his claim as to Dr. Kaprowski40 is procedurally barred. ([D.E. 120] at 47). Mr. Holland replies that the State "has made a blatantly false assertion to this Court" when it represented that the Florida Supreme Court found Mr. Holland's claim as to Dr. Kaprowski to be abandoned or procedurally barred. ( [D.E. 130] at 17). This claim's origins stem from Mr. Holland's initial trial in 1991.

A. Relevant Facts

The Florida Supreme Court found that the relevant facts from Mr. Holland's initial trial were:

Holland v. State, 636 So.2d 1289, 1291 (Fla.1994). Because the Florida Supreme Court held that Dr. Strauss' testimony was inadmissible at his first trial, the State offered different mental health experts to testify at Mr. Holland's re-trial. However, the State's new experts were provided with a copy of Dr. Strauss' inadmissible report. This undisputed fact forms the basis of Mr. Holland's current claim of trial error when, after suppression hearings held on April 25 and 28, 1995, the judge denied Mr. Holland's motion to disqualify experts and to recuse the Broward County State Attorney's Office. ([D.E. 125-6, 125-7 & 125-8]). Below is a summary of all the testimony given at the suppression hearings held in April of 1995. However, only two doctors, Dr. Kaprowski and Dr. Block-Garfield, ultimately testified on behalf of the State during Mr. Holland's second trial in 1996.

At the April 1995 hearings to suppress the expert testimony, Dr. Trudy Block-Garfield, Dr. William Love, Dr. James Jordan, Dr. Abbey Strauss, and Dale Nelson (the State Attorney's investigator) testified. Dr. Block-Garfield testified that she did not recall either speaking to or reading Dr. Strauss' report regarding Mr. Holland. ([D.E. 125-6] at 84). Dr. Love testified that he recalled reading Dr. Strauss' report and deposition transcript. (Id. at 93). Dr. Jordan testified that he did receive a copy of Dr. Strauss' report and gave it "consideration" but he relied on his personal contact with Mr. Holland when reaching his ultimate expert opinion. ( [D.E. 125-7] at 12). The trial court ultimately denied Mr. Holland's motion.41

On direct appeal, Mr. Holland claimed error. The Florida Supreme Court affirmed the denial stating:

Holland v. State, 773 So.2d 1065, 1071-72 (Fla.2000).

In order to prevail on his claim, Mr. Holland must first establish that the state court identified the correct legal principle but applied it incorrectly to the facts before it. Once this is done, a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. See also Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Significantly, an "objectively unreasonable application of federal law is different from an incorrect application of federal law." Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). An "unreasonable application" can also occur if a state court "unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case taw to a new context." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001).

B. Inadmissible Testimony

Mr. Holland asserts that because the Florida Supreme Court had "already ruled that Dr. Strauss's interviews were performed in violation of the Constitution, and that those interviews provided the basis for the expert's findings" then if different expert witnesses reviewed that report at a later time before Mr. Holland's re-trial, his constitutional rights were violated. (See [D.E. 117] at 38-39). Mr. Holland concedes that "[w]hile the rule of Kastigar has most commonly been applied to immunity situations, it is equally applicable to situations involving statements taken in violation of the Fifth or Sixth Amendments." ([D.E. 117] at 39) (citations omitted). Moreover, Mr. Holland argues that "[b]ecause the Florida Supreme Court's decision was contrary to and/or an unreasonable application of the spirit and rule of Kastigar" habeas relief is warranted. ([D.E. 117] at 40) (emphasis added). Accordingly, Mr. Holland argues that the Court should grant habeas relief because the Florida Supreme Court unreasonably declined to extend Kastigar to apply to Mr. Holland's claim. The Court must reject Mr. Holland's argument.42

First, Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), held that the government may compel witnesses to testify at trial or before a grand jury, on pain of contempt, so long as the witness is not the target of the criminal case in which he testifies. Kastigar, 406 U.S. at 441, 92 S.Ct. 1653. Kastigar further held that incriminating testimony could be compelled so long as the statements (or evidence derived from them) cannot be used against the speaker in a criminal case. Id. at 458, 92 S.Ct. 1653. This is not the factual scenario before the Court. Second, Mr. Holland does not cite another opinion from the United States Supreme Court which stands for the proposition that he asserts here. As such, the Court cannot find that the Florida Supreme Court's decision was an unreasonable application of clearly established federal law.

Even if the Court believed the Florida Supreme Court's determination to be an incorrect one, under AEDPA deference, that alone is not enough to grant habeas relief. The Court must find that "there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [United States Supreme Court] precedents." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 783, 178 L.Ed.2d 624 (2011). In other words, as a condition for obtaining habeas corpus from a federal court, Mr. Holland must show that the state court's ruling on the claim being presented here was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. See id. Mr. Holland does not argue that there was existing clearly established federal law that the Florida Supreme Court misunderstood or miscomprehended, instead he argues that the Florida Supreme Court's decision was an unreasonable application "of the spirit and rule of Kastigar." ([D.E. 117] at 39) (emphasis added). The Court cannot grant habeas relief on novelty alone. See Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733, 743, 178 L.Ed.2d 649 (2011). Habeas relief is denied.43

C. Recusal of the State Attorney's Office

Mr. Holland also asserts that because the State Attorney's Office had been "exposed to the testimony that had been previously ruled inadmissible as violative of the Petitioner's constitutional rights" the State Attorney and his staff should be recused. Mr. Holland also argues that the Florida Supreme Court "erroneously evaluated this clam under state law standards for recusal rather than the constitutional analysis presented and warranted." ( [D.E. 117] at 40).

Mr. Holland made this claim on direct appeal. The Florida Supreme Court rejected it because "Holland has failed to demonstrate actual prejudice that would require disqualification. See Farina v. State, 679 So.2d 1151, 1157 (Fla.1996), receded from on other grounds, Franqui v. State, 699 So.2d 1312, 1320 (Fla.1997)." Holland, 773 So.2d at 1072. Here, Mr. Holland asserts that because the state court evaluated this claim pursuant to state law, the Court owes Florida Supreme Court's decision no AEDPA deference. The State responds that "[s]ince the FSC denied this claim on independent state grounds which supports the denial of habeas corpus relief" that the Court must deny relief. The Court disagrees with both parties' positions.

The United States Supreme Court has interpreted an "adjudication on the merits" broadly enough to encompass summary adjudications or decisions using the language of state law. As the Eleventh Circuit has noted:

See Childers v. Floyd, 642 F.3d 953, 968-69 (11th Cir.2011) (footnote omitted).

Mr. Holland argues that the Florida Supreme Court evaluated this claim under state law standards for recusal rather than under the constitutional due process standard. That may be so. However, nothing in the Florida Supreme Court's rejection of Mr. Holland's claim indicates that the denial rested solely on a state procedural rule. Therefore, it is presumed that the state court has rendered an adjudication on the merits because Mr. Holland's claim here is the same claim rejected by the state court. The Florida Supreme Court clearly did not apply a procedural bar. As such, the Court presumes that the state court rendered an "adjudication on the merits." See Childers, 642 F.3d at 969. Accordingly, Mr. Holland's request for a de novo review is rejected.

On the opposite end of the spectrum, the State argues that the Florida Supreme Court "denied this claim on independent state grounds" and therefore, must be denied here also. In support, the State cites Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) and Mills v. Singletary, 161 F.3d 1273, 1287 (11th Cir.1998). ([D.E. 120] at 51). Neither of these cases support the State's position. Both Harris and Mills stand for the proposition that 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 the bar provides an adequate and independent state ground denying relief. Mr. Holland's claim was not procedurally barred. Rather, the Florida Supreme Court found that Mr. Holland failed to show actual prejudice. Accepting the State's position here as true, any time a state court denied a claim citing only state law, a federal habeas court would be precluded from review because the decision was denied on an independent state ground. This is simply not so. Indeed, as illustrated above, absent any indication or state-law procedural principles to the contrary, it is presumed the state court decision was an adjudication on the merits as interpreted by the AEDPA.

Presented with an adjudication on the merits of Mr. Holland's claim, the Court may grant Mr. Holland's petition for a writ of habeas corpus only if the Florida Supreme Court's ruling was "contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). In support of this claim, Mr. Holland's again cites Kastigar.44 Similar to his claim regarding the expert witness testimony, the Court does not find Kastigar applicable here. More importantly, Mr. Holland's claim fails because the United States Supreme Court has never clearly established that evidence obtained by the State which is later determined to be inadmissible at trial (because the defendant's right to remain silent and right to counsel were violated) prompts the recusal of the entire State Attorney's Office. The United States Supreme Court has held on numerous occasions that it is not "an unreasonable application of clearly established Federal law" for a state court to decline to apply a specific legal rule that has not been squarely established by the Court. See Wright v. Van Patten, 552 U.S. 120, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (per curiam); Schriro v. Landrigan, 550 U.S. 465, 478, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007); Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). As such, the Florida Supreme Court's rejection of Mr. Holland's claim did not "involve [an] unreasonable application o[f] clearly established Federal law, § 2254(d)(1)." Berghuis v. Smith, ___ U.S. ___, 130 S.Ct. 1382, 1395, 176 L.Ed.2d 249 (2010). Again, habeas relief is denied.

III. HARMLESS ERROR ANALYSIS

At the re-trial, Mr. Holland objected to the admission of an inaudible videotape and certain improper opinion testimony. The trial court overruled the objections. On direct appeal, the Florida Supreme Court determined this was error but that it was harmless error. See Holland, 773 So.2d at 1072.

Mr. Holland's third claim for habeas relief is that the Florida Supreme Court's harmless error determination "violate[d] Supreme Court precedent and thus warrants habeas relief." ([D.E. 117] at 45). The State responds that the Florida Supreme Court "cited the correct standard and found any error harmless. This is neither contrary to nor an unreasonable application of Supreme Court precedence [sic]." ([D.E. 120] at 55). Mr. Holland replies that the State "appears to have misunderstood Mr. Holland's claim." ( [D.E. 130] at 19). Mr. Holland disagrees with the State's interpretation of his claim; it is not that "the Florida Supreme Court cannot engage in a harmless error analysis as to these two particular pieces of evidence and testimony. Rather, a harmless error analysis must itself comport with constitutional standards." (Id. at 19). Mr. Holland argues that the Florida Supreme Court erred in determining that although the trial court erred when it allowed the admission of an inaudible videotape and improper opinion testimony that error was harmless.

A. Inaudible Videotape

This claim has a long history. It began on July 1, 1991, during Mr. Holland's first trial. Defense counsel moved to suppress a video-taped interview of Mr. Holland taken by the City of Pompano Beach police. ([D.E. 125-1] at 13). Shortly after his arrest, the Pompano Beach police department video recorded two separate interviews with Mr. Holland. The first recording was audible; however, the second recording was inaudible. Nonetheless, the trial court denied the suppression motion. The inaudible videotape was admitted and the police officer "recreated the conversation that he had with [Mr. Holland]" while on the stand. ([D.E. 125-6] at 25). At Mr. Holland's re-trial, the defense again requested that the court disallow the admission of the inaudible videotape. The trial judge conducted a hearing outside the presence of the jury wherein Sergeant Kevin Butler testified that there was a problem with the audio on the second videotape because the camcorder was in the monitor room and not in the interrogation room during the second interview. ([D.E. 125-36] at 14). After hearing argument, the trial court denied the defense's motion and allowed the admission of the videotape because "[t]he court finds there is no wrong doing" and "finds there is nothing prejudicial by it's entry, that, in any way, effects the jury having the opportunity to view, too." ([D.E. 125-36] at 21).45 Mr. Holland first raised this claim on direct appeal. The Florida Supreme Court denied relief.

Holland v. State, 773 So.2d 1065, 1072-73 (Fla.2000). Although the Florida Supreme Court did not cite any clearly established federal law when denying Mr. Holland's claim, it appears from the text of the opinion that the court applied the "harmless beyond a reasonable doubt" standard, commonly known as the Chapman standard. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Mr. Holland does not disagree that this is the appropriate standard. Rather, he argues that the Florida Supreme Court's analysis "failed to consider" the importance of the relation of the videotape to the State's case against him. (See [D.E. 117] at 48). In support of that argument, Mr. Holland cites to portions of the State's closing argument wherein the prosecutor "urged the jury to consider the videotape when assessing the credibility of key evidence in this case, that is, the credibility of Butler versus that of the Petitioner." ([D.E. 117] at 50). Mr. Holland asserts that the Florida Supreme Court "looked at the evidence in a static way" and that important issues were "overlooked" by the court. (Id. at 47). Accordingly, Mr. Holland argues that "[b]ecause the Florida Supreme Court's decision was an unreasonable application of Supreme Court decisions, habeas relief is warranted." ([D.E. 117] at 50). Mr. Holland's argument is purely speculative.46

The issue raised by Mr. Holland now is the Florida Supreme Court's application of the Chapman standard. "To prevail on an argument involving an unreasonable application of federal law, a petitioner `must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Id. at 786-87. Based on the state court record, the Court cannot say that the Florida Supreme Court's determination that the error in admitting the tape was harmless beyond a reasonable doubt because it did not affect the jury's verdict was "so lacking in justification" that fairminded jurists could not disagree.

Mr. Holland also urges the Court to consider not only the permissible evidence but also the effect of the inadmissable evidence on the outcome of the case because "[t]he inaudible portions of the tape could have led to all sorts of surmise and speculation on part of the jury." ([D.E. 117] at 47). The Court has done so and based on the record finds that the Florida Supreme Court's conclusion that the error was harmless was not an unreasonable application of federal law. See Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) ("We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.").

The Florida Supreme Court did not determine that the trial court's admission of the videotape was not without error. Indeed, the court specifically found it was error, but it found that error was harmless beyond a reasonable doubt because it did not affect the jury's verdict. The record supports that conclusion. At the re-trial multiple witnesses testified regarding both Mr. Holland's guilt47 and his mental status as it related to his legal culpability.48 The Court does not find it unreasonable for the Florida Supreme Court to have determined beyond a reasonable doubt that the admission of the videotape did not affect the jury's verdict.

However, even if the Court were to disagree with the conclusion of the state court, this alone would not be enough to grant habeas relief because the Court would have to find "that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 131 S.Ct. at 786-87. The Court does not. Moreover, even if the Court were to conduct a plenary review of this claim, the appropriate standard for a federal habeas court to apply to harmless error claims on collateral review is the "actual prejudice standard" of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See Fry v. Pliler, 551 U.S. 112, 127, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007); see also Vining v. Sec'y, Dep't of Corr., 610 F.3d 568, 571 (11th Cir.2010). This standard requires the Court to determine "whether [an] error `had substantial and injurious effect or influence in determining the jury's verdict.'" Id. at 571. The Court does not find that it does. Habeas relief is denied as to this sub-claim.

B. Improper Opinion Testimony

Mr. Holland also asserts that the Florida Supreme Court erred when it determined that it was harmless error for the State's psychologist, Dr. Daniel Martell, to "express his opinion as to whether a gun had been hidden." ([D.E. 117] at 50). Mr. Holland raised this claim on direct appeal.49 The Florida Supreme Court also rejected the claim. It analyzed as follows:

Holland, 773 So.2d at 1075-76.

The Court has reviewed the entire record, including Dr. Martell's testimony, and finds that the Florida Supreme Court's conclusion that the error was harmless is not an unreasonable application of federal law.50 While the Court concurs that the admission of Dr. Martell's opinion testimony was clear error, the Court also recognizes that the United States Supreme Court has previously determined that "that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction." Chapman, 386 U.S. at 22, 87 S.Ct. 824. The Florida Supreme Court determined that Mr. Holland's case was such a case. The Court, applying the deference required by the AEDPA to the decisions of the Florida Supreme Court, does not find that this determination was "objectively unreasonable." See Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

As to the single claim of error regarding Dr. Martell's opinion testimony, the Court finds that the Florida Supreme Court's determination was not an unreasonable application of clearly established federal law. Further, even if the Court conducted a plenary review of this claim, the result would be the same because while the Court finds error in the admission of the testimony, the Court does not find it resulted in actual prejudice. See Vining, 610 F.3d at 571. Officer McDonald, who was the person who actually found Officer Winters' gun after the shooting, testified at trial. ([D.E. 125-41] at 76-77). During his testimony, the State introduced into evidence the crime scene photos of the gun in the location about which Officer McDonald testified. (Id. at 77-80). Officer McDonald further testified, without objection, that he believed the gun was placed rather than dropped in the location it was found. (Id. at 83). At best, Dr. Martell's testimony repeated the testimony and photographic evidence properly before the jury. Therefore, Mr. Holland has not shown actual prejudice. Habeas relief as to this sub-claim is also denied.

IV. INADMISSIBLE STATEMENTS

Mr. Holland's fourth claim for habeas relief is that his statements made to police were "involuntary and taken after he invoked his right to counsel." ([D.E. 117] at 52). During his initial trial, Mr. Holland moved to suppress certain statements made to law enforcement after his arrest. The trial court held an evidentiary hearing.

At the hearing, Officer Wesolowski testified that when he first came into contact with Mr. Holland, Mr. Holland identified himself as "Antonio Rivera." ( [D.E. 125-1] at 15). At the time of his arrest, Mr. Holland spoke Spanish to the police officers. Therefore, the Pompano Beach police had one of its Spanish speaking officers, Officer Juan Cabrera, translate Miranda51 warnings to Mr. Holland. At that time, Mr. Holland invoked his right to counsel and the interview ceased. (Id. at 17-18). Mr. Holland was transported to the jail. (Id. at 20). One week after his arrest and subsequent to the appointment of counsel, Officer Wesolowski went to the jail to obtain "background" information from Mr. Holland. At that time, Mr. Holland showed him his public defender's business card and the interview again ceased. (Id. at 28-29).

Next, Detective Kevin Butler testified. Detective Butler saw Mr. Holland in the booking area but did not speak to him until Mr. Holland had been transferred to the Pompano jail. (Id. at 32). Upon arrival at the jail, Detective Butler found Officer Cabrera outside of Mr. Holland's cell. Officer Cabrera's stated purpose was to "keep contact with him, eye contact with him in case he would say something, and basically, just — you know, Juan is bilingual, and at this point, Antonio, the name he had been given, he only spoke Spanish. So — ." (Id. at 33). Detective Butler spoke with Mr. Holland in an effort to obtain his correct identification. After speaking with him, Mr. Holland provided Detective Butler with his true identity. (Id. at 35). As Mr. Holland had invoked his right to counsel, Detective Butler testified that he gave Mr. Holland his business card and then left.

At 2:30 a.m., Mr. Holland was again brought to booking to be photographed and fingerprinted under his true identity. (Id. at 36). At some point during this booking, Mr. Holland indicated that he wanted to speak with Detective Butler. Detective Butler took Mr. Holland into an interview room and again advised him of his Miranda rights. Detective Butler read from a Miranda waiver form and Mr. Holland responded regarding each of his constitutional rights. The detective recorded Mr. Holland's responses on an affidavit and Mr. Holland signed the document indicating that he was making a knowing waiver. (Id. at 43), Mr. Holland then made inculpatory statements to the police.

Mr. Holland first argued this claim on direct appeal. The Florida Supreme Court denied the claim because it found no error.

Holland, 773 So.2d at 1073-75. Mr. Holland argues that this determination was "contrary to and/or an unreasonable application of Supreme Court law" and "habeas corpus relief is warranted." ([D.E. 117] at 52).

When making its determination, the Florida Supreme Court relied on state law. However, so long as neither the reasoning nor the result of the state-court decision contradicts clearly established federal law, habeas relief should be denied. Mr. Holland's direct appeal was denied on October 5, 2000 (rehearing denied December 20, 2000).52 At the time, clearly established federal law was such that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (emphasis added). This is not in dispute. The precise question at issue here is when Detective Butler presented his card to Mr. Holland and said, "if you want to talk to me, you can call me" does that constitute a police-initiated custodial interrogation which would run afoul of Edwards. The Florida Supreme Court did not analyze this question but rather concluded that because Mr. Holland later initiated a conversation with the detective and then waived his Miranda rights, his subsequent exculpatory statements were admissible. The Court agrees.

It is undisputed that Mr. Holland made an invocation of his Miranda rights when he was initially arrested. The police detectives investigating the case were aware of Mr. Holland's invocation of his rights. Nonetheless, after Mr. Holland revealed his true identity to the investigating detective, he was given the detective's business card and was advised that if Mr. Holland wanted to speak with the detective to contact him. Mr. Holland later indicated that he wanted to speak the detective and made inculpatory statements. Mr. Holland argues that the actions of the police officers "were designed to undermine" his invocation of counsel. (See [D.E. 117] at 55). Even if that were true, there is no clearly established federal law which would determine that when Detective Butler provided Mr. Holland with his business card and told Mr. Holland to contact him if he wanted to talk, it constituted a police-initiated interrogation.

The United States Supreme Court first addressed the meaning of "interrogation" under Miranda v. Arizona in 1980. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The Supreme Court concluded that "the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." Id. at 301, 100 S.Ct. 1682. Even if the Court were to decide that Detective Butler was engaging in subtle compulsion when he handed Mr. Holland his business card, the Court would also have to find that Mr. Holland's "incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response." Id. at 303, 100 S.Ct. 1682. The record does not indicate that Detective Butler had any reason to believe that giving Mr. Holland his card would elicit the inculpatory statements Mr. Holland subsequently made. While the detective may have been hopeful that such a response would occur, there is a difference between hopeful thinking and being reasonably likely. Id. at 303, 100 S.Ct. 1682. This is particularly true because Mr. Holland had previously invoked his right to remain silent and his right to counsel on several prior occasions. Thereafter, Mr. Holland requested to speak with the detective. "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Miranda v. Arizona, 384 U.S. at 439, 86 S.Ct. 1602. Accordingly, the Florida Supreme Court's disposition of this claim was not an unreasonable application of clearly established federal law and habeas relief must be denied.

V. INSUFFICIENT EVIDENCE OF PREMEDITATION

In his fifth claim for habeas relief, Mr. Holland asserts that "insufficient evidence exits to support premeditation." ( [D.E. 117] at 59). Premeditation is the essential element which distinguishes first-degree murder from second-degree murder. After the close of the State's case, Mr. Holland made motions for a judgment of acquittal. ([D.E. 125-41] at 99). Counsel argued that the State had not put forth a "scintilla of evidence" as to the issue of premeditation. (Id.). The State countered that the testimony of Abraham Bell established premeditation because he witnessed Mr. Holland "yank [the gun] from the holster and he fired right into [Officer Winter's] body." ([D.E. 125-41] at 101). The Court denied the motion having found that the State had presented evidence of a prima facie case. (Id. at 103). At the close of the defense case, Mr. Holland renewed the previous motion for judgment of acquittal. (See [D.E. 125-51] at 53). The motion was again denied. Following the State's rebuttal, the defense again renewed the motion for judgment of acquittal. ([D.E. 125-59] at 24). The motion was again denied. Mr. Holland asserted this claim on direct appeal of his conviction and sentence. The Florida Supreme Court rejected the argument finding that:

Holland, 773 So.2d at 1074-75. The Court has reviewed the record. This is an accurate summary of the testimony.

In Jackson v. Virginia, the Supreme Court held that a state prisoner's claim that the evidence in support of his conviction was insufficient to have led a rational trier of fact to find him guilty beyond a reasonable doubt constitutes a federal constitutional claim that is cognizable in a federal habeas proceeding. 443 U.S. 307, 321, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (internal citations omitted). The Florida Supreme Court reviewed the testimony presented at Mr. Holland's re-trial and determined that, based on the evidence, the trial court did not err in denying the motion. The Court must presume a state court's factual findings are correct, and the petitioner can rebut them only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). For Mr. Holland to be granted habeas relief, "[n]ot only must the factual determination have been unreasonable, but the state court's factual findings must be shown unreasonable by clear and convincing evidence." Callahan v. Campbell, 427 F.3d 897, 926 (11th Cir.2005). The burden is on Mr. Holland to establish that the factual findings are unreasonable. See 28 U.S.C. § 2254(e)(1). Mr. Holland has not done so.

McKinzie v. Sec'y, Dep't of Corr., 265 Fed. Appx. 858, 859 (11th Cir.2008). In Florida, premeditation is more than a mere intent to kill; it is a fully formed conscious purpose to kill. This purpose to kill may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act. Sireci v. State, 399 So.2d 964, 967 (Fla.1981) (overruled on other grounds). Whether or not the evidence shows a premeditated design to commit a murder is a question of fact for the jury which may be established by circumstantial evidence. Preston v. State, 444 So.2d 939, 944 (Fla.1984) (overruled on other grounds).

While there may have been conflicting testimony regarding the struggle for Officer Winter's weapon, the State's witnesses testified to facts inconsistent with Mr. Holland's hypothesis of events. This was enough for the denial of the motion for judgment of acquittal. The State need not `"rebut conclusively every possible variation' of events, but need only `introduce competent evidence which is inconsistent with the defendant's theory of defense.'" Washington v. State, 737 So.2d 1208, 1215 (Fla. 1st DCA 1999) (quoting State v. Law, 559 So.2d 187, 189 (Fla. 1989)). The Court accords great deference to a state court's interpretation of State law. Hunt v. Tucker, 93 F.3d 735, 737 (11th Cir.1996) (federal courts entertaining petitions for writs of habeas corpus must follow the state court's interpretation of a state law absent a constitutional violation). Because the State introduced competent evidence which is inconsistent with Mr. Holland's theory of defense, and Mr. Holland has not shown that the Florida Supreme Court erroneously applied clearly established federal law or unreasonably interpreted the facts, habeas relief is denied.

VI. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

In his sixth claim for relief, Mr. Holland asserts that his "appellate counsel rendered prejudicially deficient performance in violation of the Sixth Amendment." ( [D.E. 117] at 63). Mr. Holland argues two areas of deficiency. First, Mr. Holland argues that his appellate counsel failed to challenge the trial court's exclusion of reference to Internal Affairs records. ([D.E. 117] at 66). Second, Mr. Holland contends that his appellate counsel failed to raise the trial court's improper denial of additional peremptory challenges. ([D.E. 117] at 74). Mr. Holland first argued these claims in his state petition for writ of habeas corpus. As to the first alleged deficiency, the Florida Supreme Court denied relief as follows:

Holland, 916 So.2d at 760 (footnotes omitted).

In order for Mr. Holland to prevail on his claims, he "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 131 S.Ct. at 787. Mr. Holland has not done so.

The Strickland Standard53

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth the two-prong test that a convicted defendant must meet to demonstrate that his or her counsel rendered ineffective assistance. First, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Second, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The Court defines a "reasonable probability" as one "sufficient to undermine confidence in the outcome." Id. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. 2052. With this two prong test in place and the AEDPA deference applied to decisions of state courts by federal habeas courts, the Court reviews Mr. Holland's ineffective assistance of counsel claims.

i. Failure to challenge the trial court's exclusion of references to Internal Affairs records.

In advance of the re-trial, the State of Florida filed a motion in limine to exclude any reference to the internal affairs records of Officer Winters. ([D.E. 125-17] at 27). Defense counsel argued that the records were admissible because "a potential defense in this case [is] that the actions that occurred out there were as a result of excessive force used by the officer." ([D.E. 125-17] at 28). The trial court granted the motion finding that even if the internal affairs records showed that Officer Winters previously used force, "it is not probative of any conduct of Officer Winters in this particular instance." (Id.), At trial, Mr. Holland was precluded from admitting the internal affairs records of Officer Winters. On direct appeal of his conviction and sentence, appellate counsel did not argue that the trial court committed error when it granted the State's motion. Now, Mr. Holland contends that his appellate counsel was ineffective when he failed to raise this error on direct appeal.

At the heart of this claim is an issue of state law. § 90.404(1) FLA. STAT. (2004). Whether or not Officer Winter's internal affairs records were admissible evidence at trial is best interpreted by the highest state court. Interpretation of Florida law by Florida courts is binding on a federal court deciding a petition for writ of habeas corpus. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (reaffirming principle that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, must be followed by federal courts). If Mr. Holland does not show that his appellate counsel should have raised this claim because it was a meritorious claim under Florida law, he cannot prevail. He must show that counsel's performance was deficient as required under the first prong of Strickland because his appellate counsel cannot be deemed ineffective for failing to raise a non-meritorious claim. See Jones v. Campbell, 436 F.3d 1285, 1304 (11th Cir.2006) (finding it fortiori that appellate counsel was not ineffective for failing to raise an issue on appeal when the trial counsel's inactions were not deemed ineffective assistance of counsel for initially failing to object).

Here, the Florida Supreme Court reviewed the claim pursuant to state law and determined that "before a defendant may introduce evidence of the victim's character, he must first show that there was an `overt act by the [victim] at or about the time of the [incident] that reasonably indicated a need for [self-defense].'" Holland, 916 So.2d at 760. Mr. Holland did not meet that threshold. Therefore, the State's motion was properly granted. Id. Mr. Holland urges that the Florida Supreme Court's interpretation of the facts was unreasonable because the "actual facts" establish that Officer Winters "threaten[ed] to put the dog on Albert Holland, put[] his nightstick in his back despite initial compliance, put[] him in a headlock, t[ook] him to the ground, beat[] him in the back repeatedly with a nightstick and engaging in the final struggle, in which both men had their hands on the gun as it left the holster, comprised overt acts by the victim that may have reasonably prompted Holland to act in what he believed to be self-defense to avoid being injured or killed by a dog, a nightstick and a firearm." ([D.E. 117] at 72).

Presuming factual determinations made by state courts are correct, Mr. Holland has not met his burden of rebutting the presumption of correctness by clear and convincing evidence. Moreover, the Florida Supreme Court reached an alternate basis for the denial of this claim. "Regardless, even if Holland were able to show an overt act by Officer Winters, the police records would still be inadmissible. The internal affairs records only show prior, specific acts. Because there is no indication Holland was aware of these prior acts at the time of the homicide, these records were inadmissible." Holland, 916 So.2d at 761. In support of this determination, the court cited Florida law which recognized "that when character evidence is offered to prove the reasonableness of the defendant's apprehension, prior knowledge of the specific acts of violence is necessary." Id. As this was the law in Florida at the time of Mr. Holland's direct appeal, it was not deficient performance for Mr. Holland's appellate counsel to not raise this claim, as it would have been without merit. Habeas relief as to this sub-claim is denied.54

ii. Improper denial of a cause challenge and additional peremptory challenges.

Mr. Holland also argues that his appellate counsel was ineffective for failing to raise an improper denial of a cause challenge and additional peremptory challenges by the trial court.55 As to the cause challenge, Mr. Holland contends that the trial court erroneously refused to remove for cause a racially biased juror, Keith Mulford. ([D.E. 117] at 74). Mr. Holland first raised this claim in his state petition for writ of habeas corpus. The Florida Supreme Court denied his petition as to this claim as follows:

Holland, 916 So.2d at 762. Here, Mr. Holland's claim suffers from many infirmities.

First, this claim is so attenuated that it is difficult to follow. Asserting that he has a constitutional right to an impartial jury, Mr. Holland devotes a great deal of argument to how Mr. Mulford was racially biased and should not have been on his jury. However, Mr. Mulford did not actually serve a juror in Mr. Holland's case.56 It appears that Mr. Holland's real argument is that because the trial court refused to excuse Mr. Mulford for cause until after Mr. Holland had "expended all of his peremptory challenges, until after he was refused additional peremptories and until after the original alternates had already been selected" caused the trial judge to improperly deny the peremptory challenges needed by Mr. Holland to "ensure he was tried by a jury of his peers." ( [D.E. 117] at 81). Mr. Holland argues that because only one juror was African-American that his jury was not made up of his peers. (See id.)

Second, Mr. Holland has failed to cite any clearly established federal law in support of his specific claim.57 Rather, Mr. Holland argues that the Florida Supreme Court's decision is contrary to the actual facts and record in his case. (Id.). This is simply not so. The only juror to which Mr. Holland now argues was selected and seated in error did not actually serve on the jury. Therefore, when the Florida Supreme Court determined that Mr. Holland was "unable to point to any objectionable juror who served," that is true. Holland, 916 So.2d at 762 (emphasis added).

In truth, Mr. Holland's argument is not really that an objectionable juror served but rather that because an objectionable juror was selected and seated and because Mr. Holland did not have any additional peremptory challenges, this resulted in his jury only having one African-American juror, which resulted in him not being tried by a jury of his peers. Even if this were true, it is not unconstitutional. See Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) ("It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.").

To make the argument even further removed, Mr. Holland's actual claim for a writ of habeas corpus is that his appellate counsel was ineffective for failing to raise the above referenced claim on direct appeal. As the underlying claim lacks merit, appellate counsel cannot be deficient for failing to raise it. See Owen v. Sec'y for Dep't of Corr., 568 F.3d 894, 915 (11th Cir.2009). Further, Mr. Holland has far from alleged, let alone established how his appellate counsel's failure to argue this claim on direct appeal prejudiced him. This is fatal to his claim. See Ferrell v. Hall, 640 F.3d 1199, 1236 (11th Cir.2011) (citing Black v. United States, 373 F.3d 1140, 1142 (11th Cir.2004); see also Clark v. Crosby, 335 F.3d 1303, 1312 n. 9 (11th Cir.2003)) The prejudice prong of the Strickland test is whether there was a reasonable probability that had appellate counsel not been deficient, the appellate court would have granted the petitioner a new trial. As such, habeas relief is denied.

VII. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Mr. Holland's seventh claim for habeas relief is that his Sixth Amendment right to counsel was violated when his court appointed counsel provided deficient performance which prejudiced him. (See [D.E. 117] at 82). Mr. Holland asserts three specific areas of deficiency with multiple sub-claims. Id. First, Mr. Holland argues that his counsel was ineffective for making an unreasonable concession of guilt during closing arguments. (Id. at 82). Second, Mr. Holland contends that his counsel failed to object to police testimony that the firearm used to murder Officer Winters had been intentionally hidden. (Id. at 85). Finally, Mr. Holland argues that his counsel failed to object during closing argument when the prosecutor "repeatedly misstated the evidence, argued matters not in evidence, improperly shifted the burden of proof, improperly vouched for the credibility of State witnesses, expressed personal belief in the Petitioner's guilt, attacked and ridiculed the defense, engaged in inflammatory argument, accused the defense of denigrating witnesses, and commented on petitioner's post-arrest silence." (Id. at 87-88). Mr. Holland first raised these and other postconviction claims in his Rule 3.851 motion. On January 6, 2003, the trial court held a Huff hearing.58 ([D.E. 125-106] at 102). At that hearing, counsel for Mr. Holland advised the trial court that only two of Mr. Holland's postconviction claims "require[d] an evidentiary hearing." However, before the trial court ruled, the hearing was continued because counsel for Mr. Holland had failed to comply with Rule 3.851(a) & (e). Id. at 113. After the trial court granted Mr. Holland leave to comply with the rule, the Huff hearing reconvened and the court granted Mr. Holland's request for an evidentiary hearing. On April 10, 2003, the trial court held an evidentiary hearing on Mr. Holland's claim that his trial counsel was ineffective for conceding his guilt to attempted first degree murder.59 ([D.E. 125-107] at 13). The trial court did not conduct an evidentiary hearing on Mr. Holland's remaining claims for postconviction relief. Ultimately, the trial court denied this claim and all of Mr. Holland's remaining claims for postconviction relief. Mr. Holland appealed to the Florida Supreme Court which denied him relief. The Court reviews the decision of the Florida Supreme Court with the highest deference circumscribed by the AEDPA.

A. Concession of Guilt

During closing arguments, counsel for Mr. Holland made the following argument:

([D.E. 125-60] at 65-66). This statement is what Mr. Holland argues was the ineffective assistance of counsel. At the evidentiary hearing, trial counsel, James Lewis testified about his closing argument wherein he conceded to the jury that Mr. Holland attempted to kill Thelma Johnson. ([D.E. 125-107] at 101). Mr. Lewis testified that he did not consult with Mr. Holland about the closing argument because by the time trial began, Mr. Holland had refused to see or speak to Mr. Lewis. ([D.E. 125-107] at 99). Mr. Lewis testified that he did not view his closing statement as a concession of guilt because the defense was insanity and if you were insane at the time of the crime you are legally not guilty. (See [D.E. 125-107] at 110). Mr. Lewis believed that this admission "brought some credibility as to the insanity defense." (Id.). Mr. Lewis felt he had no other choice based on Mr. Holland's direct testimony when he took the stand in his own defense during the re-trial. (Id. at 113). The Florida Supreme Court denied this claim as follows:

Holland, 916 So.2d at 755-56 (footnote omitted).

In order for the jury to convict Mr. Holland of the attempted first degree murder of Ms. Johnston, it would have to find that Mr. Holland acted "with a premeditated design to effect the death of Thelma Smith Johnson." ([D.E. 125-63] at 21). In Florida, a premeditated design to kill meant "that there was a conscious decision to kill. The decision must be present in mind at the time the act was committed." (Id. at 21). The trial court also instructed the jury on eleven lesser included offenses relating to the assault on Thelma Johnson. (Id.). Nonetheless, counsel for Mr. Holland clearly stated on the record that if the jury rejected Mr. Holland's insanity defense then Mr. Holland was guilty of attempted first degree murder. This concession of guilt sabotaged any hope that the jury would consider convicting Mr. Holland of any of the lesser included offenses. On this record, the performance of Mr. Holland's counsel was arguably deficient.

However, the Court need not conclusively resolve this question because, as determined below, Mr. Holland has failed to satisfy Strickland's prejudice prong. See Hall v. Head, 310 F.3d 683, 699 (11th Cir.2002) ("[A]lthough there is evidence in the record to support the district court's finding of deficient performance, we need not and do not `reach the performance prong of the ineffective assistance test [because we are] convinced that the prejudice prong cannot be satisfied.'"). To show prejudice, Mr. Evans would need to establish that his counsel's conduct rendered his trial "fundamentally unfair" or that "there is a reasonable probability that, but for counsel's unprofessional errors that the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052, Specifically, Mr. Holland argues that that because the trial court used the attempted murder conviction as an aggravating circumstance that he was prejudiced. (See [D.E. 117] at 85). This argument is unpersuasive. At sentencing, the trial court found that the State established three aggravating factors beyond a reasonable doubt and only two non-statutory mitigating circumstances to which the trial court gave "little weight." Therefore, the Court does not find that even if counsel had not conceded Mr. Holland's guilt to attempted first degree murder in his closing argument,60 that there is a reasonable probability that the result of the proceedings would have been different. Habeas relief is denied.

B. Failure to Object to Police Testimony.

Mr. Holland also asserts that his counsel was ineffective for failing to object to the opinion testimony of a police officer that Mr. Holland had hidden rather than dropped the gun used to kill Officer Winters. (See [D.E. 117] at 85). The Florida Supreme Court denied this claim stating:

Holland, 916 So.2d at 758.

The Court has reviewed the testimony of Officer McDonald. (See [D.E. 125-41] at 74-96). Officer McDonald was a police officer with the City of Pompano Beach. He was part of a group of fifty to a hundred people who were conducting a search for Officer Scott Winter's service weapon. (Id. at 75). Officer McDonald testified that he located Officer Winter's gun during that search. In describing the location of the gun when he found it and in response to the direct question from the prosecutor, Officer McDonald testified that the gun "didn't appear it was dropped. It actually was like a little cave, a crevice that you had to bend down and look and had to reach in to touch the gun." (Id. at 76-77). It is this statement that Mr. Holland argues should have been objected to by his counsel.

However, Mr. Holland neglects to mention in his habeas petition that while his trial counsel did not object, he did extensively cross-examine Officer McDonald on this very issue. (Id. at 83-84). In fact, the officer's opinion regarding the location of the gun was the subject of defense counsel's entire cross-examination. As this claim is of ineffective assistance of trial counsel, Mr. Holland must show that his counsel's performance was deficient and this resulted in prejudice. To prevail on a claim of ineffective assistance, a petitioner must demonstrate both that his attorney's efforts fell below constitutional standards, and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Mr. Holland has shown neither.

Here, the Florida Supreme Court determined that counsel's performance was not deficient because Officer McDonald's testimony fell "within the permissible range of lay observation and ordinary police experience." Holland, 916 So.2d at 758. Therefore, counsel cannot "be deemed deficient for failing to object to this testimony." Id. This was not an unreasonable application of clearly established federal law. Moreover, Mr. Holland has not argued otherwise. (See [D.E. 117] at 85-87). Mr. Holland argues a "reasonable probability of a different outcome" without establishing a deficiency or citing any established federal law in support of his arguments. Without having met the threshold requirements established by the AEDPA, habeas relief cannot be granted.

C. Failure to Object to Prosecutorial Closing Argument.

Mr. Holland's final sub-claim is that his counsel was ineffective for failing to object during the prosecution's closing argument. ([D.E. 117] at 87). He argues six specific objectionable areas.61 Mr. Holland contends that the prosecutor misstated the evidence, made a statement regarding his personal belief in Mr. Holland's guilt, improperly shifted the burden, improperly attacked Mr. Holland and discredited the defense, improperly vouched for the credibility of the State's witnesses and made comments on Mr. Holland's post-arrest silence. (Id.). The trial court summarily denied this claim and adopted and incorporated the State's response. On appeal to the Florida Supreme Court, Mr. Holland did not argue the merits of the individual sub-claims but rather argued that the trial court erred in summarily denying all his claims because "they are facially sufficient and not conclusively refuted by the record." ([D.E. 125-109] at 3). The Florida Supreme Court found this argument without merit.

Holland, 916 So.2d at 758-59 (footnote omitted).

The Court has reviewed the pleadings filed with the Florida Supreme Court and finds that Mr. Holland's claim is barred from federal habeas review.62 When Mr. Holland argued this claim to the Florida Supreme Court, he did not argue it as the denial of any federally protected constitutional right. (See [D.E. 125-109] at 3-8). Rather, Mr. Holland argued that because the trial court "failed to attach record portions showing conclusively that Holland is entitled to no relief ..., this Court should reverse summary denial of these claims and remand for further proceedings." (Id. at 8). This is a state procedural issue regarding the summary denial of postconviction claims by the trial court not a substantive constitutional claim. See FLA. R.CRIM. P. 3.850(d) & 3.851(f)(5)(D). Mr. Holland did not present his claim on the merits to the Florida Supreme Court; rather, he argued that his claims were either facially valid or not conclusively refuted by the record such that they should not have been summarily dismissed by the trial court. The Florida Supreme Court disagreed. Accordingly, Mr. Holland's current claim for federal habeas relief was not addressed on its merit in state court. Therefore, it is unexhausted and procedurally barred from further review. Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); see also Order at 10-12. "When a petitioner fails to properly raise his federal claims in state court, he deprives the State of `an opportunity to address those claims in the first instance' and frustrates the State's ability to honor his constitutional rights." Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 1780, 173 L.Ed.2d 701 (2009) (internal citations omitted). Habeas relief cannot be granted.

VIII. NON-STATUTORY MITIGATION

Mr. Holland's final claim for habeas relief is that "the trial court failed to consider certain non-statutory mitigating circumstances that were supported by the evidence." ([D.E. 117] at 95). Mr. Holland asserts that the trial court failed to consider five non-statutory mitigating circumstances that are apparent from the face of the record. Mr. Holland argues that this violates the Eighth Amendment to the United States Constitution. When Mr. Holland argued this claim to the Florida Supreme Court, the supreme court found that "[b]ecause Holland failed to identify the mitigators in question, the trial court did not err in failing to specifically address them. Further, a review of the sentencing order reveals that most, if not all, of these proposed mitigators were considered by the trial court." Holland, 773 So.2d at 1077. The Court presumes these factual determinations made by the state court are correct; and, Mr. Holland must rebut that presumption by clear and convincing evidence. See Hunter v. Sec'y, Dept. of Corr., 395 F.3d 1196, 1200 (11th Cir.2005). Based on the record reviewed by the Court, including but not limited to, the transcripts from the Spencer hearing, the Sentencing Memorandum filed by both parties and the trial court's Sentencing Order, Mr. Holland has not done so. (See [D.E. 125-82] at 103-06, [125-83] at 4-28, [D.E. 125-83] at 69-73 & [D.E. 125-84] at 1-22).

As an initial matter, it is true that "that the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). In the Defendant's Sentencing Memorandum, Mr. Holland argued to the trial court that he had established "several non-statutory mitigating circumstances." ([D.E. 125-82] at 103). Mr. Holland supplied the trial court with a precise list of the four non-statutory mitigating factors for the trial court to consider. They were as follows: 1) a history of drug and alcohol abuse; 2) a long standing history of mental illness; 3) organic brain damage due to severe beating received while in prison; and 4) two previous adjudication's [sic] of insanity, in the Superior Court of the District of Columbia. ([D.E. 125-82] at 103).

The five non-statutory mitigating circumstances that Mr. Holland's now argues were not considered by the trial court are: 1) the homicide occurred with little or no premeditation; 2) Mr. Holland's drug use at the time of the offense; 3) the traumatic effect of Mr. Holland having been nearly beaten to death; 4) Mr. Holland's positive childhood activities and loving family relationships prior to drug addiction; and 5) Mr. Holland may have been suffering from a mental and emotional disturbance less than the "extreme" level required for such disturbance to warrant a finding of the statutory mental health mitigating factor. (See [D.E. 117] at 95). The five mitigating factors argued here are not the same four mitigating factors which were clearly delineated for the trial court in the Defendant's Sentencing Memorandum. Rather, Mr. Holland only made veiled references to four63 of the mitigating factors argued here within the argument section of his memorandum. See id. at 104-06. Therefore, the trial court drafted its Sentencing order using the specific non-statutory mitigating circumstances as listed by Mr. Holland in his Sentencing Memorandum and not those mitigating circumstances argued here. (See [D.E. 125-84] at 17-21).

This is not to say that the trial court failed to consider the non-statutory mitigating factors that Mr. Holland now asserts were ignored by the trial court. To the contrary, the trial court considered those factors and they were either rejected or given little weight.

As to Mr. Holland's argument that he had used drugs at the time of the offense, the trial court rejected this argument citing testimony from Dr. Martell who stated that, in his opinion, Mr. Holland was "sober by the time Officer Scott Winters was shot." (Id. at 18). The trial court found that "[a]s a result, based upon the evidence presented, this non-statutory mitigating circumstance had little or no role in the murder of officer Scott Winters." (Id.).

The trial court also analyzed the testimony regarding alleged brain damage suffered by Mr. Holland due to a severe beating64 and found that the defendant's own witnesses "testified that there was no residual organic brain damage." (Id. at 19). Therefore, the trial court concluded that this mitigating circumstance "was not established by a preponderance of the evidence." (Id.).

The trial court also considered "the fact that Petitioner may have been suffering from a mental or emotional disturbance less than the extreme level required" to warrant a finding of the statutory mitigating mental health factor and found that Mr. Holland "established the existence" of mental illness. ([D.E. 125-84] at 19). However, the court gave that circumstance "little weight." ([D.E. 125-84] at 19).

Finally, as to Mr. Holland's assertion that prior to his drug addiction he engaged in positive childhood activities and loving family relationships, the trial court did summarize the testimony from Albert Holland Sr. regarding his son's conduct and activities before his behavior dramatically changed in the eleventh grade. ([D.E. 125-84] at 6). While the court did not specifically include this testimony as a mitigating circumstance in its sentencing order, perhaps because Mr. Holland did not specifically allege this as a mitigating circumstance which the court should consider, the record shows that the trial court did summarize the testimony regarding this circumstance in the section of the Sentencing Order designated for non-statutory mitigating circumstances such that the trial court did consider it. (See id. at 6).

Finally, as Mr. Holland did not assert that he was entitled to consideration for nonstatutory mitigation because the homicide "occurred with little or no premeditation," the trial court cannot be found to have failed to consider it when it had not been presented to the court in the first instance.65 Spaziano v. Singletary, 36 F.3d 1028, 1032 (11th Cir.1994), cert. denied, 513 U.S. 1115, 115 S.Ct. 911, 130 L.Ed.2d 793 (1995) ("it is almost entirely dependent upon the answer to a question of fact: did the sentencing judge consider any and all nonstatutory mitigating circumstance evidence that was presented to him?") (emphasis added). Accordingly, habeas relief is denied.

IV. CONCLUSION

For the foregoing reasons, it is

ORDERED AND ADJUDGED that Mr. Holland's Amended Petition for Writ of Habeas Corpus [D.E. 117] is GRANTED, in part, as to Claim One and the remaining claims are DENIED. It is the Order of this Court that Albert Holland, should receive a new trial before an untainted jury within ninety (90) days of the date of this Order, unless Respondent files a timely appeal and obtains a stay of this Order. The Clerk of the Court is instructed to CLOSE the case.

This case is CLOSED and all pending motions are DENIED as MOOT.