Case: 12-12404   Date Filed: 12/29/2014   Page: 1 of 58


                                                                          [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 12-12404
                            ________________________

                        D.C. Docket No. 1:06-cv-20182-PAS


ALBERT HOLLAND, JR.,

                                                    Petitioner - Appellant
                                                    Cross Appellee,

versus

STATE OF FLORIDA,

                                                    Respondent - Appellee
                                                    Cross Appellant.

                            ________________________

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

                                 (December 29, 2014)

Before ED CARNES, Chief Judge, and MARCUS and WILLIAM PRYOR,
Circuit Judges.

MARCUS, Circuit Judge:

         A Florida court convicted Albert Holland of murder and sentenced him to
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death for the fatal shooting of police officer Scott Winters. The district court

issued a writ of habeas corpus on the ground that Holland’s right to represent

himself was violated. To obtain a writ under 28 U.S.C. § 2254(d)(1) (2012),

Holland must show that the Florida Supreme Court’s denial of his claim was

contrary to or an unreasonable application of clearly established Supreme Court

law. He does not. Consistent with Faretta v. California, 

(1975), the

Florida Supreme Court reasonably determined that, because of his serious mental

disabilities, Holland did not knowingly and voluntarily waive his right to counsel.

Accordingly, we reverse the district court’s grant of habeas relief.

      Holland appeals three other claims the district court rejected. We too find

they lack merit. Holland argues that the Florida Supreme Court unreasonably

applied harmless error analysis to the admission of both an inaudible videotape and

a mental health expert’s opinion about whether a firearm had been hidden. We

conclude that both errors were harmless because they did not have a “substantial

and injurious effect or influence” on the jury’s verdict. Brecht v. Abrahamson, 

, 637 (1993) (quotation omitted). As the record amply reveals, the

interrogating officer testified to the contents of the videotape and an investigating

officer made similar comments about the gun’s location. Holland also claims that

he received ineffective assistance because his trial counsel failed to object to a

number of improper statements made by the prosecution during closing arguments.



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The district court found federal relief was procedurally barred because Holland did

not exhaust this claim in state court. While we conclude that exhaustion does not

bar Holland’s claim, we affirm because the Florida Supreme Court’s

determinations that counsel performed adequately and that Holland suffered no

prejudice were reasonable. See Strickland v. Washington, 

(1984).

Finally, Holland says that his custodial confession should have been suppressed

because he talked to police after he asked for a lawyer. In denying relief because

Holland initiated the conversation with the detective, the Florida Supreme Court

did not unreasonably apply Edwards v. Arizona, 

(1981).

      Accordingly, we remand to the district court with instructions to reinstate

Holland’s conviction and sentence.

                                         I.

                                        A.

      The facts relevant for this appeal begin with the observation that Holland

suffered a serious brain injury in October 1979, when another inmate in a federal

prison knocked him unconscious. The beating left Holland with a slowly resolving

concussion, facial fractures, and three weeks of post-traumatic amnesia. In the

early 1980s, Holland was arrested and charged with robbery in Washington, D.C.

Holland’s attorney described him as “clearly a homeless individual, and

disheveled, and incoherent, and not able to interact with me in any way, shape, or



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meaningful form, at all.” “In the early meetings, . . . he would have nothing to say,

but would rock in a chair with his hands folded. I remember, distinctly, that he

would drool.” The United States prosecutor agreed with defense counsel that

Holland was not legally culpable because he had been insane. The court found

Holland was not guilty of the robbery by reason of insanity, based on testimony

from a doctor that Holland suffered from a mental defect or disease that interfered

totally with his ability to appreciate the wrongfulness of his conduct or conform his

behavior to the requirements of law. He was placed in Saint Elizabeth’s Hospital,

and he saw at least six doctors during his time there. At Saint Elizabeth’s, doctors

first diagnosed him with “schizophrenia, undifferentiated type, and Organic

Amnestic Syndrome,” which indicates a significant memory impairment. A

second evaluation discontinued the Organic Amnestic Syndrome diagnosis but did

not alter the schizophrenia diagnosis. Still, some of Holland’s doctors suggested

that he suffered less from schizophrenia and more from “organic psychosis” tied to

his brain injury. At Saint Elizabeth’s, Holland was treated with Thorazine, an

antipsychotic, and Cogentin to deal with side effects. Holland escaped from Saint

Elizabeth’s, and thereafter was charged with a new robbery. With the agreement

of an attorney for the United States, a different judge found Holland not guilty by

reason of insanity a second time and again sent him to Saint Elizabeth’s. He

absconded from the hospital yet again in May 1986.



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      Four years later, after smoking a rock of crack cocaine, Holland attacked and

brutally beat Thelma Johnson in Pompano Beach, Florida, on July 29, 1990.

Holland ran off when a witness intervened, leaving the victim semi-conscious and

with severe head injuries. Police searched for the assailant and K-9 patrol officer

Scott Winters of the Pompano Beach Police Department found Holland. Witnesses

saw the two struggling. Holland grabbed Winters’s gun and fatally shot him in the

groin and lower stomach. See Holland v. State (Holland II), 

,

1068 (Fla. 2000) (per curiam).

      Holland was first tried, convicted, and sentenced to death in 1991. During

that trial, Holland’s disruptive behavior led to his removal from the courtroom. On

direct appeal, the Florida Supreme Court reversed his conviction because

admission of testimony about a psychiatric examination of Holland violated his

right to counsel and his right against self-incrimination. See Holland v. State

(Holland I), 

(1994) (per curiam).

      On remand, the trial court appointed Kenneth Delegal to represent Holland

in the second trial. After about a year, this representation terminated when Delegal

was confined to a mental health facility. Delegal eventually was arrested on drug

and domestic violence charges and died of a drug overdose during Holland’s

retrial. The trial court then appointed James Lewis, who shared office space with

Delegal, to assume representation of Holland because Lewis had some familiarity



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with the case. Evan Baron, appointed alongside Delegal to serve as penalty phase

counsel, continued to represent Holland as well.

      Before the second trial began, at a September 15, 1995, hearing, Lewis told

the court Holland had refused to see or speak to him. Holland expressed severe

suspicion of Lewis, his lawyer: “it’s like he’s sneaking around like a little mouse.”

Holland in turn informed the court that he believed Lewis and jail authorities had

taped a visit between Holland and his father through a sprinkler head. Indeed,

Holland thought Lewis was using his father to convince him to keep Lewis as his

attorney. Holland did not believe that his father’s trip was cut short by an

approaching hurricane, and “if [Lewis] will lie about something, little petty like

that, he’s going to do some other things on the bigger issue.” Holland told the

court that, when he tried to call his father, “the lady wouldn’t let me call . . .

because everybody works together.”

      Holland’s paranoid suspicions went deeper. Holland also told the trial court,

“They’re trying to get something on me. . . . Seems like I’m always being taped.”

“I got microphones in my cell, too. But if I’m going to try to find them, I got to

tear the light off the wall.” Holland worried about surveillance because “I talk to

invisible people . . . [b]ut it may be dealing with my case.” When assured by the

court that he was not being taped in his cell or during visits with his father or

attorney, Holland responded, “betrayal will lurk.” He continued, “everybody at the



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bar where all the lawyers drink at know about my case. Everybody knows

everything. My strategy, anything that’s going to be going on.”

      Also before the second trial began, Holland’s counsel, Lewis, filed a motion

alleging Holland was incompetent to stand trial. At a hearing conducted on

October 9, 1995, Lewis explained that Holland had indicated he was having

suicidal tendencies and had asked to see a psychiatrist or “possibly be prescribed

some type of psychotropic medication.” The trial court authorized three mental

health experts to examine Holland for competence to stand trial and directed that a

psychiatrist evaluate Holland to determine whether he needed psychotropic

medication.

      On December 14, 1995, the trial court followed up with a hearing to

determine Holland’s competency to stand trial. Two mental health experts who

interviewed Holland testified that he was competent, while a third said he met the

criteria for competency but believed the ultimate conclusion was for the finder of

fact. One psychologist specializing in clinical neuropsychology, Dr. Lee Bukstel,

told the trial court about Holland’s treatment for schizophrenia at Saint Elizabeth’s

Hospital. Bukstel also said that a jail psychiatrist had recently diagnosed Holland

with an unspecified psychotic disorder and anti-social personality disorder. That

psychiatrist prescribed Haldol, an anti-psychotic, though Bukstel said Holland had

refused to take it. Another mental health expert testified at the competency hearing



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that Haldol calms patients with emotional problems, but that people often act out

when they stop taking medication. According to Bukstel, Holland appeared

psychologically stable, though he noted that Holland’s statements to the court

about secret tape-recording showed unrealistic suspicions and paranoia. Bukstel

explained that Holland complained of “pain and tension” in his head and “burning

in [his] mind.” Holland reported depression, anxiety, nervousness, crying,

agitation, decreased initiative, social avoidance of people, and increased

dependency on others, as well as difficulties with concentration, decisionmaking,

and memory. Bukstel concluded that Holland’s symptoms were consistent with

one or more mental disorders. Still, Bukstel joined the other mental health experts

in opining that Holland’s mental problems did not prevent him from meeting

Florida’s statutory criteria for competence to stand trial: Holland’s psychological

disorders did not keep him from understanding the legal proceedings and possible

penalties, from communicating with his attorney, from testifying relevantly, or

from manifesting appropriate courtroom behavior.

      After hearing testimony from the mental health experts, the trial court found

Holland competent to stand trial based on the statutory standards. Still, the trial

court noted that it had “heard Mr. Holland raise some concerns that gave the Court

some question as to his mental status.” The court also observed that Holland’s

behavior during his first trial led to his removal, though Holland had not acted out



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so far during retrial proceedings.

      At another pretrial hearing (on March 22, 1996) Holland again complained

at length about his attorneys and asked to “go through this procedure of self-

representation.” The trial court said it would conduct a Faretta inquiry, whereupon

it asked Holland about his educational experience -- “a GED” -- and his legal

training. Holland replied, “Well, from what I’ve seen in the evidence, Ray Charles

could come in here and represent himself and Stevie Wonder, so I don’t need too

much legal training to do all that.” The trial court questioned Holland about his

ability to select a jury, make legal objections, and examine witnesses. Holland

exhibited little familiarity with the process and said he had no training. Holland

offered that he wouldn’t violate any rules but admitted he did not know the rules he

could violate. At this point, the trial court stopped the inquiry and ruled that

“Holland does not have any specific legal training, is not familiar with the rules of

evidence, nor trial procedures, is not familiar with how a trial is conducted, even

though he’s sat through them in the past.” In a written order, the court denied the

defendant’s motion to represent himself, finding that Holland was incapable of

doing so.

      At still another pretrial hearing (conducted on August 2, 1996) on a defense

motion to authorize an MRI of Holland to scan for brain damage, Holland again

asked the trial court either to remove his attorneys or to allow him to represent



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himself. The Court conducted still another Faretta inquiry, discussing with

Holland his education, training, and knowledge of legal rules and procedures.

Holland repeatedly interrupted the trial court as it ruled that Holland was “not able

to adequately appropriately represent himself . . . [n]or to comply with the Court’s

order, nor with applicable rules of evidence, rules of criminal procedure, as well as

case law.”

      On August 26, 1996, Holland’s counsel moved to withdraw on the ground

that Holland thought he would be better off handling the case on his own. This

time, at considerable length, the trial court explained its past refusal to allow

Holland to represent himself. The court recounted that “Holland has suffered an

injury to the head and was hospitalized at Saint Elizabeth’s in Washington D.C.

while he was incarcerated approximately . . . ten, twelve years ago.” Holland

“obtained a GED since he’s been incarcerated.” He “obviously sat through his

prior first degree murder trial, but that is not exactly correct, because due to Mr.

Holland’s behavior Mr. Holland was removed from that courtroom and watched

that proceeding on closed-circuit television.” Therefore, Holland had “previously

demonstrated . . . his inability to follow the Court’s orders and decorum required to

be in a courtroom.” Holland also failed to demonstrate the legal knowledge and

skills required to present his own case. Finally, Holland’s lawyer had filed a notice

of intent to rely on the defense of insanity, which “touches upon his mental



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condition and ability to understand the nature as well as the complexity of this

case.” With this background, the trial court stated that it would conduct a dual

Nelson 1 and Faretta inquiry to determine whether Holland’s counsel should be

discharged and whether Holland could represent himself.

       Reading from notes, Holland began by asking the court “how much time am

I going to have, because you always rush me, because I feel you’re biased against

me and you never give me enough time to talk.” Holland said the judge was

working in collusion with his attorneys and the prosecution. “[E]verything [that]

has been going on with you, Your Honor, and my attorneys shows there is

impropriety. There is some monkey business going on here. Underhandedness.”

“[A]ny reasonable person can tell that I’m not going to get a fair trial. If they

knew all of the facts, everything that you’re doing. It’s all a money thing and all a

convicting thing. You made up your mind. You want to be the only judge to send

somebody to the electric chair with [the prosecutor].” Holland complained about

one of his attorneys, Baron, stating that “[i]t’s just a sham because he’s supposed

to be giving me effective assistance of counsel when he’s trying to help the

prosecution.” He accused his lawyer Lewis of “trying to provoke me, looking real

1
 Under Florida law, when a defendant seeks to discharge court-appointed counsel before trial on
account of ineffectiveness, “the trial judge should make a sufficient inquiry of the defendant and
his appointed counsel to determine whether or not there is reasonable cause to believe that the
court appointed counsel is not rendering effective assistance to the defendant.” Nelson v. State,

, 258-59 (Fla. Dist. Ct. App. 1973).




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crazy at me, trying to get me to respond to him.” He said that, because of their

previous connection to Delegal, he knew Lewis and Baron were smoking crack.

“All they did was make a good hustle. . . . They made a little extra in the pocket

helping a friend cover up and helping the prosecution at the same time, and

everybody is happy.” At one point, Holland asked the judge, “Are you

listening . . . or are you drinking coffee?” Holland’s soliloquy focused almost

exclusively on his suspicions about his attorneys and the court, not on a desire to

represent himself or an explanation of why he knowingly and voluntarily sought to

give up the right to counsel.

      Wrapping up, Holland referred to the outline of notes he had read, saying “I

used to hide them . . . I know they look at them, shake them. . . . I know they have

bugs. . . . I used to carry these to work out, check out, I have all of my papers in my

pocket.” When asked about his first trial, Holland said that officials had not turned

on the monitor to allow him to watch the closed-circuit feed after he was removed

from the courtroom -- “[i]t was a bunch of show.” The trial court concluded that

Lewis and Baron were qualified and able to represent Holland effectively. The

court refused to allow Holland to represent himself, citing “his lack of formal legal

training, lack of understanding of both the criminal law as well as procedures, his

alleged defense or defense actually, of insanity and the complexity of this case,”

with “approximately 180 witnesses listed.” Holland’s response: “All of you



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working together. . . . Bald-faced liars.”

      On September 18, 1996, on the eve of retrial, Holland still again complained

about his attorneys and sought to represent himself. The court replied, “these are

issues the Court previously addressed, previously ruled on. There is nothing new.”

Holland responded that “I wasn’t found competent then, I was found competent

now, and I’m literate and I’m understanding and I would like to voluntarily do my

own defense.” The court responded that it had “found you competent several

months ago and entered it’s [sic] order. . . . Motion to represent yourself is denied.”

      Holland asked yet again to represent himself before voir dire of the jury on

the first day of retrial. Again the court refused, referencing its earlier rulings. Not

dissuaded in any way, Holland made the same request on October 1, 1996, during

jury selection, with the same results, and again on October 3 and October 8. The

court said, “Mr. Holland, even my patience at some point ends. . . . I’m tired,

candidly, Mr. Holland, every time we come in the door, hearing the exact same

speech from you. I’ve heard it. It’s on the record. Your motions are denied and

that’s it.” When the defendant pressed on, the court said, “Mr. Holland, you do not

have the first idea, candidly, of how to properly represent yourself and that’s it.”

Holland responded that “I can do better than what they are doing. . . . He who

represents themselves has a fool for a client, and I’m that fool. I want to represent

myself.” The court was unmoved: “[t]he stakes are too great for you to represent



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yourself.” Before Holland testified in the guilt phase, the court found that Holland

knowingly and voluntarily waived his right against self-incrimination. The court

also recognized that he had waived any argument that he could not be found guilty

of lesser included offenses.

       The jury convicted Holland of first-degree murder, armed robbery,

attempted sexual battery, and attempted first-degree murder. Before the penalty

phase began, Holland once more asked for his attorneys to be replaced. When this

request was denied, Holland refused to speak with counsel or the court, choosing

instead to read a book during all court proceedings outside the presence of the jury.

Holland did not testify in the penalty phase or at the Spencer hearing.2

       The jury recommended the death penalty by a vote of eight to four. The trial

court found three statutory aggravating circumstances: Holland was previously

convicted of a felony involving the use or threat of violence to a person, Fla. Stat.

§ 921.141(5)(b) (2010); the capital felony was committed while Holland 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 the crime was

committed for the purpose of avoiding or preventing a lawful arrest or effecting an
2
 Under Florida law, a Spencer hearing gives the defendant, his counsel, and the State the
opportunity to be heard and to present additional evidence to the sentencing judge after the jury
has offered its recommendation. See Spencer v. State, 

, 690-91 (Fla. 1993) (per
curiam).



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escape from custody, 

which merged with the fact that the

victim of the capital felony was a law enforcement officer engaged in the

performance of his legal duties, 

The trial court found no

statutory mitigating circumstances. It did, however, find two nonstatutory

mitigators, each of which received little weight: a history of drug and alcohol

abuse and a history of mental illness.

      In its sentencing memorandum, the court recognized Holland’s history of

mental illness, but gave it little weight as a mitigating factor because he “correctly

argued caselaw and factual issues to the Court. . . . The defendant’s active

participation during his trial and volitional decision at times not to respond to the

Court outside the presence of the jury, clearly establish his ability to participate,

manipulate and engineer his actions.” After weighing the evidence in aggravation

and mitigation, the trial court sentenced Holland to death.

                                           B.

      Holland appealed his conviction and sentence to the Florida Supreme Court,

which affirmed. Holland II, 

. As for Holland’s Faretta claim, the

Florida Supreme Court identified Faretta and the principles relevant to the right of

self-representation and concluded that the trial court had not erred when it denied

Holland’s requests to represent himself:

      In issue one, Holland claims that the trial court erred in denying him
      the opportunity to represent himself. The trial court conducted Faretta

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inquiries on at least two separate occasions to determine whether
Holland was competent to represent himself. At the conclusion of the
inquiries, the trial court denied Holland’s request for self-
representation.

As Holland points out, “a person need not be schooled in the law in
order to competently elect to represent himself.” Crystal v. State, 

, 153 (Fla. 1st DCA 1993). See also Fla. R. Crim. P.
3.111(d) (“(3) Regardless of the defendant’s legal skills or the
complexity of the case, the court shall not deny a defendant’s
unequivocal request to represent him or herself, if the court makes a
determination of record that the defendant has made a knowing and
intelligent waiver of the right to counsel.”). However, in Johnston v.
State, 

, 868 (Fla.1986), this Court stated that “[i]n
determining whether a defendant has knowingly and intelligently
waived his right to counsel, a trial court should inquire into, among
other things: defendant’s age, mental status, and lack of knowledge
and experience in criminal proceedings.” In Johnston, this Court
concluded that “[t]he trial judge made the proper inquiry . . . and
correctly concluded that the desired waiver of counsel was neither
knowing nor intelligent, in part, because of Johnston’s mental
condition.” 

See also Visage v. State, 

, 1101 (Fla. 1st DCA 1995).

A trial court’s decision as to self-representation is reviewable for
abuse of discretion. See 

We conclude that the trial court
did not abuse its discretion in denying Holland the right to represent
himself. The record contains numerous instances of Holland’s
unstable mental condition, particularly his previous hospitalization at
St. Elizabeth’s. Additionally, the trial court was aware of the potential
that Holland was going to rely on the insanity defense. Moreover, it is
clear from Holland’s responses to the trial court’s inquiries that
Holland lacked sufficient knowledge of criminal proceedings[.]

...

Finally, [the detailed explanation of the trial court on August 26,
1996,] best describes the trial court’s reasons for denying Holland’s
requests to represent himself[.]



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      ...

      Based on this [explanation], it is clear that the trial court properly
      applied the Johnston factors in denying Holland the right to represent
      himself. Hence, we find no merit to Holland’s first claim of error.

(footnote omitted). The Florida Supreme Court also ruled that the

trial court committed harmless error when it admitted an inaudible videotape and

opinion testimony from a psychologist about whether Holland hid the murder

weapon, 

1075-76, and it ruled that statements admitted at trial were

not taken in violation of Holland’s right to counsel, 

The Supreme

Court denied a petition for a writ of certiorari. Holland v. Florida, 

(2001) (mem.).

      Holland unsuccessfully filed a Rule 3.851 motion for postconviction relief in

state trial court. Holland appealed to the Florida Supreme Court and also filed a

state habeas petition in that court. The Florida Supreme Court denied all relief,

concluding in relevant part that Holland failed to establish ineffective assistance of

counsel. Holland v. State (Holland III), 

, 758-59 (2005) (per

curiam). Again, the Supreme Court declined to hear the case. Holland v. Florida,

(2006) (mem.).

      Holland then filed a pro se federal habeas petition in January 2006 in the

United States District Court for the Southern District of Florida. The district court

dismissed the petition as barred by the statute of limitations and the Eleventh



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Circuit affirmed. Holland v. Florida, 

(11th Cir. 2008). The

Supreme Court reversed, concluding that the § 2254 one-year statute of limitations

was subject to equitable tolling. Holland v. Florida, 

, 634-35 (2010).

      On remand, Holland, now counseled, filed an amended federal habeas

petition that contained eight claims. The district court granted a writ of habeas

corpus on his Faretta claim pursuant to 28 U.S.C. § 2254, finding that the Florida

Supreme Court’s decision was contrary to Faretta because it reached a different

result on materially indistinguishable facts and failed to apply clearly established

federal law. The district court concluded that “Indiana [v. Edwards, 

(2008)] was not clearly established federal law at the time of Mr. Holland’s direct

appeal” and, therefore, was “not applicable” to the resolution of Holland’s claim.

Holland v. Tucker, 

, 1259 n.21 (S.D. Fla. 2012). The district

court also observed that its analysis would be unchanged if it applied Indiana v.

Edwards because, unlike the defendant in Indiana v. Edwards, Holland did not

“suffer from ‘severe mental illness to the point where [he was] not competent to

conduct trial proceedings by [himself].’” 

v. 

). The district court denied relief on all of Holland’s other claims, but

granted a Certificate of Appealability on one of the unsuccessful claims: that the

Florida Supreme Court improperly applied harmless error analysis to admitted

testimony from Dr. Daniel Martell. This Court expanded the COA to include two



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more claims: that the trial court erred in refusing to suppress Holland’s custodial

statement; and that guilt-phase trial counsel rendered ineffective assistance by

failing to object to the prosecutor’s closing argument.

                                          II.

      We review de novo the district court’s disposition of Holland’s federal

habeas petition. Peterka v. McNeil, 

, 1200 (11th Cir. 2008).

Plainly, AEDPA applies to Holland’s claims. Under AEDPA, if a petitioner’s

habeas claim “was adjudicated on the merits in State court proceedings,” a federal

court may not grant habeas relief unless the state decision (1) “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or (2) “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). Holland does not assert that the

Florida Supreme Court’s decision was based on an unreasonable determination of

facts. “Under § 2254(d)(1)’s ‘contrary to’ clause, we grant relief only ‘if the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

question of law or if the state court decides a case differently than [the Supreme

Court] has on a set of materially indistinguishable facts.’” Jones v. GDCP

Warden, 

, 1182 (11th Cir. 2014) (alterations in original) (quoting

Williams v. Taylor, 

, 413 (2000)). For § 2254(d)(1), clearly



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established federal law includes only the holdings of Supreme Court decisions --

not Supreme Court dicta and not the opinions of this Court. White v. Woodall, 

, 1702 & n.2 (2014). “Under § 2254(d)(1)’s ‘unreasonable application’

clause, we grant relief only ‘if the state court identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.’” 

(alteration in

original) (quoting Williams v. 

).

      The Supreme Court has interpreted § 2254(d) as requiring that “a state

prisoner 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 v. Richter, 

, 786-87 (2011). “[A]n

‘unreasonable application of’ [Supreme Court] holdings must be “‘objectively

unreasonable,’” not merely wrong; even ‘clear error’ will not suffice.” 

(quoting Lockyer v. Andrade, 

, 75-76 (2003)). Put

differently, Holland must establish that no fairminded jurist would have reached

the Florida court’s conclusion. See 

; Holsey v.

Warden, Ga. Diagnostic Prison, 

, 1257 (11th Cir. 2012). And

Holland must do so based only on the “record that was before the state court that

adjudicated the claim on the merits.” Cullen v. Pinholster, 

, 1398



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(2011). “If this standard is difficult to meet, that is because it was meant to be.”

.

                                          III.

      We turn first to the state’s cross-appeal challenging the grant of habeas relief

on Holland’s Faretta claim. In Faretta, the Supreme Court held that the Sixth

Amendment guarantees a defendant the right of self-representation in a criminal

. Because of the dangers of proceeding pro se, however, the

Court imposed a substantial check: “the accused must ‘knowingly and

intelligently’ forgo” the traditional benefits associated with the right to counsel.

“Although a defendant need not himself have the skill and experience

of a lawyer in order competently and intelligently to choose self-representation,”

the Court explained, “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.’” 

v. United

States ex rel. McCann, 

, 279 (1942)). The Supreme Court held that

the defendant had knowingly and voluntarily waived his right to counsel when the

record showed he “was literate, competent, and understanding, and that he was

voluntarily exercising his informed free will.” 

need not have

“mastered the intricacies of the hearsay rule and the California code provisions that

govern challenges of potential jurors on voir dire” because “his technical legal



                                          21
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knowledge, as such, was not relevant to an assessment of his knowing exercise of

the right to defend himself.” 

      After thorough review of the entire record, we are satisfied that the Florida

Supreme Court’s Faretta determination was the final merits adjudication of

Holland’s Faretta claim; that the Florida Supreme Court’s decision was neither

contrary to nor an unreasonable application of Faretta and its progeny; that

Florida’s high court properly considered Holland’s mental condition in making the

Faretta calculus; and finally that, in light of the Supreme Court’s holding in

Indiana v. Edwards, 

, Holland is not being held in violation of the

Constitution.

      We begin by observing that the Florida Supreme Court cited to and applied

controlling Supreme Court law as explicated in Faretta. The Florida Supreme

Court cited to both Faretta and state law similar to Faretta in rejecting Holland’s

self-representation claim. The court observed that “a person need not be schooled

in the law in order to competently elect to represent himself,” quoting a Florida

case premised on the holding in Faretta. Holland 

(quoting

Crystal v. State, 

, 153 (Fla. Dist. Ct. App. 1993)). It also cited to a

Florida rule of criminal procedure: “Regardless of the defendant’s legal skills or

the complexity of the case, the court shall not deny a defendant’s unequivocal

request to represent him or herself, if the court makes a determination of record



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that the defendant has made a knowing and intelligent waiver of the right to

counsel.” 

(quoting Fla. R. Crim. P. 3.111(d)(3) (1998)). The court

explained that, in determining whether a waiver is knowing and voluntary, a trial

court should inquire into the “defendant’s age, mental status, and lack of

knowledge and experience in criminal proceedings.” 

v.

State, 

, 868 (Fla. 1986)). It specifically referenced a Florida case

holding that “the desired waiver of counsel was neither knowing nor intelligent, in

part, because of [the defendant’s] mental condition.” 

, 497

So. 2d at 868).

      The Florida Supreme Court concluded that the trial court did not abuse its

discretion in refusing to allow Holland to represent himself. According to the

court, “[t]he record contains numerous instances of Holland’s unstable mental

condition, particularly his previous hospitalization at St. Elizabeth’s.” 

court was aware of the potential that Holland was going to rely on the insanity

defense.” 

is clear from Holland’s responses to the trial court’s

inquiries that Holland lacked sufficient knowledge of criminal proceedings.” 

Supreme Court also quoted from the trial court’s March 22, 1996,

Faretta inquiry, in which Holland admitted he had little legal knowledge and no

training, and from the trial court’s August 26 explanation of its reasons for denying

Holland’s requests to represent himself, which mentioned his head injury, his



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hospitalization at Saint Elizabeth’s, his removal from the courtroom during his

previous trial, and his reliance on the insanity defense. 

. The Florida

Supreme Court concluded that the trial court did not abuse its discretion in denying

Holland’s attempts at self-representation, because “it is clear that the trial court

properly applied the Johnston factors in denying Holland the right to represent

himself.” 

      Though the Florida Supreme Court examined the Faretta question through

the lens of abuse-of-discretion review, we remain satisfied that the federal

constitutional claim “was adjudicated on the merits” for purposes of § 2254(d).

Johnson v. Williams, 

, 1096 (2013); see 

-

85. The Florida Supreme Court described the trial court’s questioning of the

defendant as Faretta inquiries and cited that Supreme Court precedent. Holland 

& n.2, 1070. Moreover, the state precedents applied by the

Florida Supreme Court expressly referenced Faretta in requiring a knowing and

intelligent waiver. See 

; 

.

Like in Johnson v. Williams, Holland “treated [his] state and federal claims as

interchangeable, and it is hardly surprising that the state courts did so as 

. Ultimately, “the fact that the [state and federal] claims are so

similar makes it unlikely that the [Florida Supreme Court] decided one while

overlooking the other.” 

see Childers v. Floyd, 

, 1335



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(11th Cir. 2013) (en banc).

      In addition, we review the Florida Supreme Court’s decision, rather than the

decision of the trial court. As a rule, we review “the highest state court decision

reaching the merits of a habeas petitioner’s claim.” Hittson v. GDCP Warden, 

, 1231 (11th Cir. 2014). In Hittson, we held that the Georgia Supreme

Court’s denial of a certificate of probable cause for an appeal constituted an

adjudication of the petitioner’s claims on the merits because the court reviewed the

record and concluded that his claims lacked arguable merit. 

Similarly, the Florida Supreme Court’s rejection of Holland’s Faretta claim based

on the substantial body of evidence reflecting his mental condition plainly

constituted an adjudication of that claim on the merits. Moreover, we have also

held that “when a state appellate court applies plain-error review and in the course

of doing so, reaches the merits of a federal claim . . . that decision is an

adjudication ‘on the merits.’” Lee v. Comm’r, Ala. Dep’t of Corr., 

,

1210 (11th Cir. 2013). Although the Florida Supreme Court’s use of an abuse-of-

discretion standard “might have made it more difficult for [Holland] to succeed on

direct appeal,” the Florida Supreme Court’s decision remains the relevant

adjudication for the purposes of our review. Id.; see also Renico v. Lett, 

, 772-73 (2010) (applying AEDPA deference to a state supreme court decision

using an abuse-of-discretion standard); Troy v. Sec’y, Fla. Dep’t of Corr., 

             Case: 12-12404     Date Filed: 12/29/2014    Page: 26 of 58


1305, 1311-12 (11th Cir. 2014) (same). Even now Holland does not dispute that

the Florida Supreme Court’s decision was the last state court adjudication of his

federal Faretta claim on the merits, and it is that decision that we must afford

deference under AEDPA.

      Nor was it contrary to clearly established Supreme Court law for the Florida

Supreme Court to apply an abuse-of-discretion standard in reviewing Holland’s

Faretta claim. The Supreme Court has never held that state appellate courts must

review a defendant’s Faretta claim de novo, rather than under an abuse-of-

discretion standard, even if we would normally apply de novo review to such

claims on direct appeal. See 

& n.2 (stating that only

Supreme Court holdings, and not dicta or holdings of lower courts, constitute

clearly established law). Furthermore, the Supreme Court has held that a state

appellate court’s use of an abuse-of-discretion standard to review the denial of a

defendant’s post-waiver request for counsel is not contrary to clearly established

law. Marshall v. Rodgers, 

, 1450 (2013). Under § 2254(d)(1),

then, Holland must demonstrate that the Florida Supreme Court’s denial of his self-

representation claim was contrary to or an unreasonable application of Faretta. He

cannot.

      Reading the Florida Supreme Court’s decision as a whole, we conclude that

it was not contrary to clearly established Supreme Court law because “neither the



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reasoning nor the result of the state-court decision contradicts” Faretta or its

progeny. Early v. Packer, 

, 8 (2002) (per curiam). The Florida Supreme

Court took Holland’s mental condition into account as part of the knowing and

voluntary waiver analysis. Supreme Court precedent did not (and still does not)

forbid this practice. See, e.g., Fitzpatrick v. Wainwright, 

, 1065

(11th Cir. 1986) (“[T]he Supreme Court has not precisely defined the extent of the

Faretta inquiry . . . .”). To the contrary, the Supreme Court had instructed that

“mental capacity” is relevant to determining whether a waiver of the right-to-

counsel during police interrogation is knowing and voluntary. Moore v. Michigan,

, 164-65 (1957); see Johnson v. Zerbst, 

, 464 (1938)

(“The determination of whether there has been an intelligent waiver of right to

counsel must depend, in each case, upon the particular facts and circumstances

surrounding that case, including the background, experience, and conduct of the

accused.”). Faretta itself noted that the defendant was “literate, competent, and

understanding” and “voluntarily exercising his informed free 

(emphasis added). And in Godinez v. Moran, 

(1993), the Court

explained that “[a] finding that a defendant is competent to stand trial . . . is not all

that is necessary before he may be permitted to . . . waive his right to counsel”

because “a trial court must satisfy itself that the waiver of his constitutional rights

is knowing and voluntary.” 

In other words, the Court emphasized,



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“when a defendant seeks to waive his right to counsel, a determination that he is

competent to stand trial is not enough; the waiver must also be intelligent and

voluntary before it can be accepted.” 

       This conclusion is confirmed by the Supreme Court itself in Indiana v.

Edwards, which held that a state may deny a defendant the right to represent

himself when he is not mentally competent to conduct a trial himself, even if he is

competent to stand 

. Indiana v. Edwards provides an

authoritative statement from the Supreme Court about what its earlier cases did and

did not clearly establish. Indiana v. Edwards concluded that the Court’s prior cases

had not clearly established whether “the Constitution permits a State to limit [a]

defendant’s self-representation right . . . on the ground that the defendant lacks the

mental capacity to conduct his trial defense unless represented.” 

The

Court observed that nothing in Faretta or Godinez provided a definitive answer to

that question, 

although those cases did “point[] slightly” in favor of

the Court’s ultimate holding, 

Accordingly, whether a state could limit a

defendant’s self-representation right because of concerns about his mental

condition was an open question at the time the Florida Supreme Court decided

Holland’s direct appeal. We can hardly fault the Florida Supreme Court for being

prescient and reaching the very same answer reached by the Supreme Court eight

years later.



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      However, the district court found that the Florida Supreme Court’s decision

was contrary to Faretta because the facts were materially indistinguishable. Not

so. Voluminous record evidence calling Holland’s mental health into serious

question makes the facts in this case substantially and meaningfully different from

Faretta, where the Court made no mention of any concerns about the defendant’s

psychological condition or his mental disabilities. Cf. 

(facts not materially indistinguishable from precedent); Putman v. Head, 

, 1242 (11th Cir. 2001) (same).

      Nor, as we see it, did the Florida Supreme Court unreasonably apply Faretta

when it determined that, considering his mental condition, Holland failed to

knowingly and voluntarily waive his right to counsel. As we have recounted, the

trial court and the Florida Supreme Court knew Holland was diagnosed with and

treated for schizophrenia for a number of years at a psychiatric hospital in

Washington, D.C., in the decade before the murder of Officer Winters. Indeed, he

was housed at the hospital because a judge had found him not guilty of a robbery

charge on account of insanity. Doctors treating Holland were not sure whether his

symptoms were also tied to organic psychosis from a severe brain injury he

suffered during earlier imprisonment. After fleeing from the hospital, he was

forced to return after being found insane by another judge on another robbery

charge. When he absconded a second time he moved to Florida, where he killed



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Officer Winters. During his first trial for that murder he pled insanity. In fact, at

the time Holland asked to represent himself his lawyer had filed notice of his intent

to again raise an insanity defense.

      Moreover, as we’ve noted, at a hearing on Holland’s competency to stand

trial for murder, the trial court heard that a jail psychiatrist recently had diagnosed

Holland with an unspecified psychotic disorder and with anti-social personality

disorder. The doctor prescribed Haldol, an antipsychotic, which Holland said he

was not taking. The court heard that failure to take antipsychotic medication could

cause Holland’s condition to deteriorate. Holland also complained to one mental

health expert about “burning” in his mind that affected his thoughts and actions.

Though Holland had not been disruptive during pretrial hearings, his unstable

behavior had forced his removal from the initial trial. And, indeed, the trial court

saw Holland’s apparent paranoia firsthand. Time and again he complained to the

court that he was being taped by his own attorney and others. Holland worried

they had installed listening devices in his cell to eavesdrop on his conversations

with invisible people. He was convinced that attorneys on both sides were

colluding with the judge to sentence him to death.

      This record evidence suggests that Holland’s troubled mental condition kept

him from fully grasping “the dangers and disadvantages of self-representation.”

. In other words, a court could reasonably determine -- as



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the Florida Supreme Court did -- that he did not make a choice to waive his right to

counsel “with eyes open.” 

Far from containing mere

relics of a past history of mental illness, the substantial record sheds light on

Holland’s condition at the time he attempted to waive the right to counsel.

Holland’s mental disorder diagnoses were consistent with his persistent troubled

behavior. And while pleading insanity standing alone does not disqualify a

defendant from representing himself, a reasonable court could look to Holland’s

previous insanity adjudications, alongside his intention to plead insanity for a

crime that occurred a decade later, as strong signals of an ongoing mental

condition directly affecting his current ability to waive the right to counsel

knowingly and voluntarily.

      The district court erred in placing disproportionate emphasis on the trial

court’s determination that Holland was competent to stand trial. The Florida

Supreme Court did not base its denial of Holland’s Faretta claim on a finding of

incompetence. Instead, it concluded that Holland was not deprived of the right to

self-representation because, considering his mental condition, Holland did not

make a knowing and voluntary waiver of the right to counsel. Holland may have

been able to appreciate the basic structure of the trial process, but a reasonable

court still could conclude that, considering his schizophrenia or organic brain

condition, Holland did not fully appreciate the significance of taking on the



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daunting task of self-representation. See 

; cf. Indiana v.

(“One might not be insane in the sense of being

incapable of standing trial and yet lack the capacity to stand trial without benefit of

counsel.” (alteration omitted) (quoting Massey v. Moore, 

, 108

(1954))). Similarly, the fact that the trial court found Holland knowingly and

intelligently waived other rights -- including the right against self-incrimination --

does not show he also knowingly and intelligently waived the right to counsel. A

defendant may understand the act of testifying at trial but not grasp the significance

of self-representation. A reasonable court could conclude Holland knowingly and

voluntarily waived one but not the other.

      Nevertheless, Holland places great emphasis on the fact that the trial court

did not discuss Holland’s mental condition when it refused to allow him to

represent himself on March 22 and August 2, 1996. Holland argues that the refusal

of the right to self-representation on these dates amounted to separate and discrete

Faretta violations, and that the trial court’s failure to discuss his mental condition

in its earlier rulings revealed that his psychological state was used as a post hoc

justification. We remain unpersuaded. Holland does not identify any clearly

established Supreme Court rule that prohibited the Florida Supreme Court from

conducting a consolidated waiver analysis that examined the entire record,

including the trial court’s August 26 discussion of Holland’s mental state along



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with the number of other occasions on which he requested to represent himself.

       Nor, reading the Florida Supreme Court’s opinion as a whole (as we must),

do we believe the court impermissibly relied on Holland’s lack of “technical legal

knowledge, as such,” 

, in rejecting his Faretta claim. We

do not read state court opinions as if we were “grading papers,” and must apply

AEDPA deference absent a “conspicuous misapplication of Supreme Court

precedent.” Parker v. Sec’y for Dep’t of Corr., 

, 785-86 (11th Cir.

2003) (quotation omitted). A careful reading of the Florida Supreme Court’s

decision reveals that Holland’s mental condition was the primary basis for its

ruling. As we have recounted, the Florida Supreme Court began its analysis by

agreeing that a defendant need not possess any legal skills to choose self-

representation, and cited to a Florida case and a Florida rule of criminal procedure

making that essential point. The court then cited to still another of its cases,

, holding that a defendant could not knowingly and

intelligently waive his right to counsel given his mental condition -- a phrase which

the Florida Supreme Court notably emphasized.3 The court observed that the



3
 Holland places weight on the fact that the Florida Supreme Court cited Johnston, a case which
preceded an amendment to Florida’s rules of criminal procedure. The amendment clarified that
courts cannot consider a defendant’s ability to prepare an effective defense in deciding whether a
defendant may waive his right to counsel. See McKenzie v. State, 

, 280-82 (Fla.
2010) (per curiam). The Florida Supreme Court has continued to cite Johnston and related cases
for the proposition that a defendant’s mental condition may be relevant to whether the defendant



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record “contain[ed] numerous instances of Holland’s unstable mental condition,

particularly his previous hospitalization at St. Elizabeth’s” and his intent to rely on

the insanity defense. Holland 

. The Florida Supreme Court

concluded by quoting at length a passage from the trial court’s August 26 colloquy

which “best describe[d]” that court’s reasoning, and which relied substantially on

Holland’s mental condition. 

       Though the Florida Supreme Court also concluded that Holland lacked

“sufficient knowledge of criminal proceedings,” 

we do not read this to

mean that the court required Holland to show any technical legal knowledge in

order to represent himself. Instead, we take this to mean that Holland could not

fully appreciate “the dangers and disadvantages of self-representation.” 

; see 

. In some ways, the Florida

Supreme Court’s analysis resembles Johnson v. Zerbst, where the Supreme Court

long ago instructed that the waiver inquiry turns “upon the particular facts and

circumstances surrounding [the] case, including the background, experience, and

conduct of the 

. Reading the Florida Supreme Court’s

opinion as a whole, including its observation at the outset that the defendant’s legal

skills are irrelevant to the Faretta inquiry, we construe its comments about



has knowingly and voluntarily waived his right to counsel. See, e.g., Alston v. State, 

, 57 (Fla. 2004) (per curiam).



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Holland’s lack of legal knowledge as going to its conclusion that Holland could not

comprehend the daunting task of self-representation, and, therefore, could not

“knowingly and intelligently” waive his right to counsel “with eyes open.” 

(quotation omitted).

      Indeed, the Florida Supreme Court has said time and again that it does not

consider the defendant’s technical legal knowledge in making the Faretta

determination. See, e.g., Weaver v. State, 

, 193 (Fla. 2004) (per

curiam) (“The focus of a Faretta hearing under rule 3.111 is whether a defendant is

competent to waive the right to counsel, not whether he is competent to provide an

adequate defense.”); Bell v. State, 

, 677 (Fla. 1997) (per curiam)

(“Technical legal knowledge is not the criterion for assessing the knowing exercise

of a defendant’s right to defend himself.”); Hill v. State, 

, 905 (per

curiam) (Fla. 1996) (“We emphasize that a defendant does not need to possess the

technical legal knowledge of an attorney before being permitted to proceed pro

se.”). And when the Florida Supreme Court has evaluated the defendant’s legal

experience, it has done so for the purpose of ascertaining whether he appreciates

the palpable dangers surrounding self-representation. See, e.g., Potts v. State, 

, 760 (Fla. 1998) (“Competent substantial evidence supports the

conclusion that Potts had a general understanding of his rights and that his decision

to proceed without counsel was made with eyes open.”); Rogers v. Singletary, 698



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               Case: 12-12404      Date Filed: 12/29/2014       Page: 36 of 

, 1181 (Fla. 1996) (“We find that the Faretta standards were met in the

instant case because the record establishes that Rogers knew what he was doing

and his choice was made with eyes open.”).

       In sum, we cannot say that it was contrary to clearly established law for the

Florida Supreme Court to uphold the trial court’s determination that Holland’s

serious psychological issues kept him from making a knowing and voluntary

waiver. Nor can we say that there was any clearly established law preventing the

Florida Supreme Court from considering his mental condition in its Faretta

calculus. 4

       We also cannot agree with the district court that Indiana v. Edwards has no

application to Holland’s claim. The Supreme Court’s decision in Indiana v.

Edwards provides an alternative basis for the denial of Holland’s habeas petition.

. Under the plain language of 28 U.S.C. § 2254(a), we may only

grant the writ if the petitioner “is in custody in violation of the Constitution or laws

or treaties of the United States.” See also 28 U.S.C. § 2241(c)(3) (2012) (“The

writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in

violation of the Constitution.”). Furthermore, the purpose of the great writ is to

provide a remedy for actual violations of constitutional rights, rather than to allow
4
 We also note that the state court’s reference to Holland’s improper behavior is a relevant
consideration. Faretta itself said that “the trial judge may terminate self-representation by a
defendant who deliberately engages in serious and obstructionist misconduct.” 

n.46.



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petitioners to stake claims based on precedent that has since been narrowed or

overruled. See, e.g., 

(describing the purpose of habeas

corpus as “affording relief only to those grievously wronged”).

      Relief is therefore only available to a petitioner whose constitutional claim

has not been rendered nugatory by subsequent Supreme Court precedent, as a

number of our sister circuits have concluded. See, e.g., Desai v. Booker, 

, 427 (6th Cir. 2008) (holding that a habeas petitioner may not “obtain relief on

the basis of a state court’s allegedly unreasonable application of a Supreme Court

precedent . . . that no longer is good law”); Delgadillo v. Woodford, 

,

927-28 (9th Cir. 2008) (“[T]he purpose of the Teague [v. Lane, 

(1989)] non-retroactivity rule is to protect state interests.”); Moore v. Anderson,

, 285 (7th Cir. 2000) (“[T]he principle of non-retroactivity favors only

the state . . . .”); Flamer v. State of Del., 

, 725 n.15 (3d Cir. 1995)

(explaining that a case could be applied retroactively because it “did not work a

change in the law favoring criminal defendants”). As we have held in the context

of ineffective assistance of counsel claims, Holland “must show not only that he

could have successfully challenged” the trial court’s rejection of his request to

represent himself in 2000, “but also that the basis of that challenge would be

recognized as valid under current law.” Allen v. Sec’y, Fla. Dep’t of Corr., 

, 753-54 (11th Cir. 2010); see Lockhart v. Fretwell, 

, 372



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(1993).

      The current law includes Indiana v. Edwards, where the Supreme Court

unambiguously held that courts may consider a defendant’s mental condition in

evaluating whether he should be permitted to proceed to trial without 

. The Supreme Court discussed at length the risk that allowing a

mentally ill defendant to represent himself could lead to an unfair and humiliating

spectacle of a trial, and concluded that a state may insist that a defendant who

“suffer[s] from severe mental illness” be represented by counsel. 

Indiana v. Edwards also instructs us that the trial judge “will often prove best able

to make more fine-tuned mental capacity decisions.” 

      The simple fact is that, in the light of Indiana v. Edwards, Holland is not

being held in violation of the Constitution. The facts of Indiana v. Edwards bear

similarity to those here: like Holland, Edwards had been diagnosed with

schizophrenia and previously committed to a mental institution, and the Indiana

trial court therefore determined that he was incompetent to represent himself. 

Although the district court mentioned that Holland was unlike the

defendant in Indiana v. Edwards, the record belies this conclusion. The Florida

Supreme Court stressed the importance of Holland’s mental condition in its

analysis and specifically mentioned that “[t]he record contain[ed] numerous

instances of Holland’s unstable mental condition.” Holland 

-



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70. In the face of the substantial body of evidence demonstrating Holland’s

serious mental disabilities before both the Florida Supreme Court and the trial

court, we do not see how Holland is currently being held in violation of the

Constitution. To put it another way, we cannot fault the Florida Supreme Court for

refusing to risk the very sort of trial the Supreme Court feared in Indiana v.

Edwards. And we have little doubt that if the trial court had allowed Holland to

represent himself, and the jury had convicted him, the claim today would be that he

was in no condition to waive his right to counsel in a capital case. We conclude,

therefore, that Holland’s claim is unavailing, whether we measure the Florida

Supreme Court’s decision against Faretta or examine it under Indiana v. Edwards,

and thus reverse the district court’s grant of habeas relief on Holland’s Faretta

claim.

                                            IV.

         Holland appeals the district court’s denial of habeas relief on three other

claims. We affirm as to each.

                                            A.

         First, Holland says that the Florida Supreme Court unreasonably applied

clearly established Supreme Court law when it concluded that the admission of an

inaudible video and improper expert testimony had been harmless errors. A state

court can find a federal constitutional error harmless only by concluding “it was



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harmless beyond a reasonable doubt.” Chapman v. California, 

, 24

(1967). Holland does not dispute that the Florida Supreme Court properly

identified the Chapman rule. Instead, he argues that the Florida Supreme Court

unreasonably determined that the State showed harmlessness beyond a reasonable

doubt when it rejected two of his constitutional claims.

      However, on federal habeas review, a federal constitutional error is harmless

unless there is “actual prejudice,” meaning that the error had a “substantial and

injurious effect or influence” on the jury’s verdict. 

(quotation omitted). Harmlessness under the Brecht standard is a question of law

that we review de novo. Vining v. Sec’y, Dep’t of Corr., 

, 571 (11th

Cir. 2010) (per curiam); Prevatte v. French, 

, 1305 (11th Cir. 2008).

“[I]n § 2254 proceedings a court must assess the prejudicial impact of

constitutional error in a state-court criminal trial under the ‘substantial and

injurious effect’ standard set forth in Brecht, whether or not the state appellate

court recognized the error and reviewed it for harmlessness under the ‘harmless

beyond a reasonable doubt’ standard set forth in Chapman.” Fry v. Pliler, 

, 121-22 (2007). Because of the “[s]tates’ interest in finality,” the states’

“sovereignty over criminal matters,” and the limitation of habeas relief to those

“grievously wronged,” the Supreme Court set out in Brecht a standard that is more

favorable to and “less onerous” on the state, and thus less favorable to the



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defendant, than the usual harmless beyond a reasonable doubt standard. 

; accord 

. The Supreme Court explained in

Brecht that “collateral review is different from direct review,” and, therefore, that

“an error that may justify reversal on direct appeal will not necessarily support a

collateral attack on a final 

(quotation omitted).

Thus, we, as a federal habeas court, “may deny habeas relief based solely on a

determination that the constitutional error [was] harmless under the Brecht

standard.” Mansfield v. Sec’y, Dep’t of Corr., 

, 1308 (11th Cir.

2012).

                                          1.

      During the guilt phase, the State showed the jury a videotape of Holland’s

interrogation. The jury could hear most of the questions asked by the interrogating

detective, but the tape’s poor audio quality prevented jurors from hearing most if

not all of Holland’s answers. The Florida Supreme Court on direct appeal agreed

that the tape should not have been admitted because it “allowed the jury to

speculate what the defendant’s answers were to these questions, a result which was

prejudicial to the defendant.” Holland 

. But the Florida

Supreme Court “conclude[d] beyond a reasonable doubt that the error in admitting

the tape did not affect the jury verdict” because “the interrogating detective

properly testified regarding what Holland said to him during the interrogation.” 

12-12404     Date Filed: 12/29/2014   Page: 42 of 58


at 1073.

      Though Holland concedes that the detective fully testified to what Holland

said on the videotape, he argues that the inaudible tape could have led the jury to

speculate about how Holland delivered his responses. This is far too slender a reed

for Holland to show the Florida Supreme Court’s harmlessness determination was

unreasonable. In his testimony, Detective Butler guided jurors through the tape,

reporting Holland’s responses answer-by-answer. Later, Holland himself

explained the inaudible statements to jurors. Holland offers no reason to think that

the jury speculated about how he delivered the words when he and the officer

testified to his statements. And he points to nothing that suggests any such

speculation affected the outcome.

      Holland also complains that the prosecutor emphasized the importance of

the videotape during closing arguments when he told jurors to review the video

carefully and to look for Holland’s demeanor. But the interrogation itself and

Holland’s statements to detectives were not unfairly prejudicial. Again, the only

potential prejudice Holland alleges came from the threat that jurors might speculate

about the content of his inaudible responses. Because the officer’s fulsome

testimony defused that risk, discussion of the video in closing argument was not

prejudicial. Thus, we cannot say that it was unreasonable for the Florida Supreme

Court to determine that admission of the videotape alongside the trial testimony



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was harmless beyond a reasonable doubt, let alone that the admission of this

evidence amounted to “actual prejudice” -- that is, that the error had a “substantial

and injurious effect or influence” on the jury’s verdict. 

(quotation omitted).

                                          2.

      Police found Officer Winters’s weapon between rocks in a field near the

murder scene. Holland 

. Psychologist Dr. Daniel Martell, a

prosecution expert witness called during the guilt phase to rebut Holland’s insanity

defense, opined based on a photograph of the location where the firearm was found

that the gun had been hidden by Holland, not randomly dropped. 

Supreme Court on direct appeal found that “Dr. Martell was not qualified as an

expert in crime scene evidence” and that the trial court “should not have allowed

Dr. Martell to give his opinion as to whether the gun was placed or randomly

dropped.” 

Florida Supreme Court concluded that the error

was harmless because another witness, Deputy McDonald, testified without

objection that he believed the gun was placed between rocks, not dropped. 

      Holland argues that the Florida Supreme Court unreasonably applied

Chapman because Holland’s mental state was sharply contested and improper

opinion testimony from a psychologist could have influenced the jury on the issues



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of sanity or the degree of the offense. But Dr. Martell’s improper opinion simply

repeated the testimony of the officer who found the gun. The officer said he

believed the gun was placed between the rocks where it was found rather than

dropped. Holland 

-76. The officer illustrated his account

with crime scene photos that allowed the jury to decide for itself whether the gun

had been hidden. While it is theoretically possible that the mental health expert’s

opinion about the gun spoke to Holland’s psychological condition, a court could

reasonably conclude that it had at most a slight and attenuated impact. As a result,

we are compelled to conclude not only that it was not objectively unreasonable for

the Florida Supreme Court to conclude that the admission of this opinion testimony

was harmless beyond a reasonable doubt, 

, but also that the

error did not have a “substantial and injurious effect or influence” on the jury’s

verdict, 

(quotation omitted).

                                           B.

      Holland also argues that the Florida Supreme Court unreasonably applied

Strickland when it rejected his claim that trial counsel was ineffective for failing to

object to comments by the prosecutor during guilt-phase closing arguments. The

state postconviction court summarily denied Holland’s claim. Instead of appealing

the merits of the state habeas trial court’s rejection of his ineffectiveness claim,

Holland invoked Florida Rule of Criminal Procedure 3.850 in challenging that



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court’s failure to attach to its summary denial portions of the record refuting the

allegations. Nevertheless, the Florida Supreme Court went to the merits and

refused relief on the ground that Holland established neither deficient performance

nor prejudice. Holland 

.

      The district court held that Holland failed to exhaust his claim in state court

because his state appeal did not pursue the merits of his claim. We disagree. For a

number of reasons, exhaustion is not a bar to Holland’s claim. Foremost, the

exhaustion requirement is satisfied if a claim is “fairly presented” to the state court

that had “an opportunity to apply controlling legal principles to the facts bearing

upon [it].” Picard v. Connor, 

, 275, 277 (1971) (quotation omitted).

The Florida Supreme Court had “an opportunity to address [Holland’s] claims in

the first instance” when it rejected the merits of his Strickland claim. Cone v. Bell,

, 465 (2009) (quotation omitted). The district court’s exhaustion

decision also is in tension with our precedent recognizing that a petitioner

exhausted state remedies by filing a similar 3.850 appeal. See Henry v. Dep’t of

Corr., 

, 1368 (11th Cir. 1999) (“Henry’s state-court appeal, which

requested only the evidentiary hearing denied by the trial judge, was . . .

appropriately modest. It asked for the most he could reasonably have expected

from the appeals court . . . . Exhaustion should not be construed to mandate

more.”). Moreover, the State agrees that Holland exhausted his claim and has now



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expressly waived the exhaustion requirement through counsel. See 28 U.S.C.

§ 2254(b)(3); Holladay v. Allen, 

, 1348 n.1 (11th Cir. 2009).

Exhaustion presents no obstacle to Holland’s habeas petition.

      Nevertheless, we affirm the district court’s denial of relief on the alternative

ground that Holland cannot satisfy § 2254(d). See, e.g., Powers v. United States,

, 1123 (11th Cir. 1993) (affirming dismissal of an action “for

reasons other than those used by the district court”). In the interest of judicial

economy, we decline to remand the issue to the district court because we can reach

a decision on the record before us. See Perkins v. Matthews, 

, 386-87

(1971).

      Strickland requires that Holland establish “both that his counsel provided

deficient assistance and that there was prejudice as a result.” 

. “To establish deficient performance, a person challenging a conviction must

show that ‘counsel’s representation fell below an objective standard of

reasonableness.’” 

466 U.S. at 688). Prejudice requires

showing “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” 

.

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” 

of a different result must be substantial, not just

conceivable.” 

. “The standards created by Strickland and



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§ 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review

is ‘doubly’ so.” 

(citations omitted).

      In his amended federal habeas petition and his appellate brief, Holland

alleged that his counsel was ineffective for failing to object to six prosecution

statements made during closing arguments. As we have recognized, “[a]n

objectively reasonable trial lawyer could” believe that “cases must be won at trial,

not on appeal, and prefer[] not to make objections during closing argument unless

the objection is a strong one.” Zakrzewski v. McDonough, 

, 1259-

60 (11th Cir. 2006). It was not unreasonable for the Florida Supreme Court to find

no performance violations and no resulting prejudice.

                                           1.

      During the State’s closing argument, the prosecutor said that Officer Winters

had radioed, “I’ve been shot. He’s got my gun. Running west.” In fact, Winters

stated, “He’s westbound. I’ve been shot.” Holland argues that the misstatement

was more favorable to the State’s theory that Holland robbed Winters of the

weapon.

      Immediately after misquoting Winters, the prosecutor told jurors to examine

the evidence themselves: “Listen to [the video tape], it’s fifty seconds. . . . Just by

listening to the tape you can hear Officer Winters is obviously in a struggle.”

Three eyewitnesses had already testified that Holland did indeed take Winters’s



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gun and shoot him with it. And the judge specifically instructed jurors that the

attorneys’ arguments were not evidence and that jurors had to rely on their memory

of the evidence. The Florida Supreme Court reasonably determined that the failure

to object was not deficient performance and caused Holland no prejudice.

                                              2.

       During his closing argument, Holland’s trial counsel asserted that the only

reason Holland was charged with a robbery was to create a predicate offense for

first-degree murder. The State responded, “[t]he reason the robbery is in the

indictment is because the robbery occurred; he took the gun away by force,

violence, and assault.” Holland claims that his trial counsel was ineffective for

failing to challenge this response as improperly professing the prosecutor’s

personal belief in Holland’s guilt.

       In context, the prosecutor’s comment amounted to an assertion that the State

had no improper motives for charging the robbery. A court could reasonably find

no performance violation because the remark fell within the “doctrine of fair

reply,” which recognizes that a “prosecutor, as an advocate, is entitled to make a

fair response to the arguments of defense counsel.” United States v. Hiett, 

, 1204 (5th Cir. 1978).5 Holland also fails to show prejudice because a


5
 In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.



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court could reasonably find no effect on the trial’s outcome.

                                          3.

      Holland next claims that trial counsel was ineffective for failing to object

when the State improperly shifted the burden of proof on the insanity defense in its

guilt-phase closing argument that “[t]here has been no person to ever say in this

courtroom or anyone that testified out of this courtroom, who ever said that the

defendant, Albert Holland, didn’t know the difference or the consequences of his

actions, except for Doctor Love.” The Florida Supreme Court did not

unreasonably apply Strickland in rejecting this claim on both performance and

prejudice grounds because the prosecutor’s comment did not purport to establish

who bore the burden of proof. It merely summarized the evidence on Holland’s

mental state.

      Holland also suggests that the prosecutor shifted the burden to the defense to

prove his innocence and vouched for the truthfulness of the police by saying “I’d

like to know what police officer wasn’t objective and what police officer did you

hear that came in to testify that did anything wrong? . . . And where is this big lie?

What is the lie? I still haven’t heard it.” The prosecutor also said, “You haven’t

heard anything other than Pompano [police] or anyone else being fair in the

presentation of this case.” Notably, these comments came in response to defense

arguments that police officers had lied in their testimony and that their



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investigation and methods could not be trusted. Holland comes nowhere close to

meeting our doubly deferential standard for assessing deficient performance. A

court reasonably could conclude that a reasonable attorney would have declined to

object because the comments were a fair reply. Holland also fails to demonstrate

that the Florida Supreme Court acted unreasonably in determining that Holland

suffered no prejudice from counsel’s decision not to object.

                                          4.

      Holland also faults his trial counsel for failing to object to comments from

the prosecutor that referred to Holland as a liar and sociopath and called his

defenses ridiculous. Holland is not entitled to relief. The prosecutor simply

reported that its expert witness, Dr. Martell, had diagnosed Holland with

psychopathy. Earlier in the trial Martell testified about the results of a two-hour

test, the “Psychopathy Check List Revised,” for which Holland received a 34 out

of 40, “a very high score” on the psychopathy scale. According to Dr. Martell,

Holland had exhibited a grandiose sense of himself, pathological lying,

manipulative behavior, a shallow emotional affect, poor behavioral controls, and

failure to accept responsibility for his own actions. The prosecutor also referenced

the fact that Holland ran, hid, and lied after committing the crimes. And it is far

from obvious that the prosecutor’s “ridiculous” comment was an improper attempt

to discredit Holland’s defense. In context, the plainest interpretation of the remark



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suggests the prosecutor was using evidence to question the credibility of Holland’s

account of the crime. 6 Again, a determination that there was neither a performance

violation nor prejudice was not an unreasonable one.

                                                   5.

         Next, Holland argues his trial counsel should have objected when the

prosecutor impermissibly vouched for the credibility of an eyewitness (Abraham

Bell) by saying his testimony “was almost like a videotape. He didn’t see parts of

it like some of the other witnesses, he saw the entirety of the transaction.” The

prosecutor then described the witness’s testimony: “he said from the very get go,

after Albert Holland swung his fists at Officer Winters’ [sic] head, he continually

struggled with him and went for that gun and snatched at it and held it, and even

brought it around to the front of him and pulled it out and just fired into his body.”

         Holland’s argument does not meet the doubly deferential standard. A court

reasonably could conclude that a reasonable attorney would have chosen not to

object to this statement because it amounted to no more than fair comment about
6
    The prosecutor argued:

         Listen to that [tape], it’s fifty seconds. And it’s important to listen to that because
         when the defendant took the stand -- and by the way, you have to view and
         consider his testimony, his credibility, just like any other witness -- and he took
         the stand and told you, listen to this tape that when he started that broadcast,
         “1094, Code 3. He’s in custody.” He was still in the patrol car.

         Well, I submit to you that is ridiculous. Just by listening to the tape you can hear
         Officer Winters is obviously in a struggle. And “1094, Code 3” means, lights and
         sirens, I need a back up right now.



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testimony received in evidence. After all, the statement reasonably can be read not

to personally vouch for the witness but to argue that the testimony was particularly

probative because it captured all of the key events of the crime. See, e.g., United

States v. Fuentes, 

, 901 (11th Cir. 1989) (“A review of the contested

language in context reveals that the government’s attorney was properly arguing

the credibility of the witness based on the evidence in the record.”). The

prosecutor suggested that the nature and scope of Bell’s testimony established its

credibility. He did not profess a personal opinion about its truth. Again, the

determination was neither contrary to nor an unreasonable application of

Strickland.

                                         6.

      Finally, Holland claims that his attorneys were ineffective because they did

not object to the State’s comments on Holland’s post-arrest silence. Describing

Holland’s interrogation, the prosecutor said, “when he’s talking to Albert Holland,

Albert Holland doesn’t tell him about the beating of Thelma Johnson. He said he

had sex with a woman a while ago.” “He didn’t say anything about the beating of

Thelma, but he did make up an excuse of the shooting [of] Officer Winters.”

      A reasonable court could recognize that the prosecutor’s argument did not

concern Holland’s constitutionally protected right against self-incrimination. After

all, the prosecutor was commenting on the statement Holland did make to police.



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The prosecutor argued that the story Holland told to police could not be believed

because it was inconsistent with other evidence that showed Holland beat Thelma

Johnson. The prosecutor took Holland to task for what he told police, not for

exercising his right to remain silent. Again, Holland has not established that the

state court determination was contrary to or an unreasonable application of

Supreme Court law.

                                                C.

       Holland also claims that the Florida Supreme Court unreasonably applied

Supreme Court precedent when it found no error in the suppression of his custodial

statements. At the suppression hearing, 7 Officer Wesolowski testified that, when

arrested on July 29, 1990, Holland spoke Spanish to police and identified himself

as “Antonio Rivera.” After a Spanish-speaking officer translated Miranda

warnings to him, Holland invoked his right to counsel and questioning ceased.

       Detective Kevin Butler testified that on July 30, 1990, at 1:00 a.m., he

contacted Holland in his cell at the Pompano Beach jail “to find out his name”

because “[t]he name he had given we believed was false” after it didn’t match up

with any computer checks the police had run. Butler said he went into Holland’s

7
  Holland moved to suppress the statements before his first trial. After a suppression hearing, the
court ruled them admissible. Holland challenged this decision in his initial appeal, but the
Florida Supreme Court did not reach the issue because it ordered a new trial on other grounds.
Before his second trial, the State and Holland agreed to adopt the motions, responses, and
evidence from the first trial on the issue, and Holland renewed objections to the statements when
they were admitted at the second trial.



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cell, identified himself, and “told him it was important . . . for him to tell the truth

and just give us his real name so we know who he is.” Butler explained that “I

can’t talk to you about what happened . . . you’ve already asked for an attorney.”

Butler said he was only there to establish Holland’s “true identity.” The petitioner

stated that his name was Albert Holland. Butler said “okay, fine, I appreciate you

being honest with me.” According to Butler, he gave Holland his card and said “if

you ever want to talk to me, you can call me.” Then he left.

      Detective Butler testified that another officer requested the jail to provide

additional fingerprints and photographs under Holland’s true name and that at 2:30

a.m. Detective Butler went to the booking room to pick up the fingerprints and

photographs. Butler said that, while Holland was being booked, “[h]e looked over

to me and he made eye contact with me, he nodded and he asked, he said, ‘Can I

talk to you?’” Butler replied, “Do you want to talk to me,” to which Holland again

said, “Yes, can I talk to you?” At that point, Butler took Holland to an interview

room in the detective bureau. Butler said the first thing he told Holland was

“Albert, you asked for an attorney and I can’t speak to you.” When Holland

pressed on, Butler reiterated, “[t]he only reason I asked you to come in here was

the fact that you wanted to talk to me. . . . If you still want to talk to me prior to

doing that, I have to read the Miranda rights again.” Butler read Holland his




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Miranda rights from a form; 8 after each individual right, Holland replied “Yea.”

At the end, Holland initialed his recorded responses seven times, signed the form,

and said “I’ll talk to you.” Holland then proceeded to make a series of

incriminating statements.

       The Florida Supreme Court rejected Holland’s claim and found no Miranda

violation because “[t]he record is clear that it was Holland, not Detective Butler,

who initiated the conversation which ultimately resulted in the confession.”

Holland 

. We agree with the district court that Holland does

not satisfy § 2254(d) because this determination was objectively reasonable.

       Under 28 U.S.C. § 2254(e)(1), we presume correct the Florida Supreme

Court’s findings of fact that “[t]he purpose of Detective Butler’s contact with

Holland was to ascertain his real name,” “that it was Holland, not Detective Butler,

who initiated the conversation which ultimately resulted in the confession,” that

“Holland specifically asked Detective Butler, ‘Can I talk to you?’”, that Butler

“informed Holland of his Miranda rights . . . and clarified that Holland was willing
8
 The form asked Holland if he understood: Detective Butler was a police officer; Holland had
the right to remain silent and refuse to answer questions; anything Holland said could and would
be used against him in a court of law; Holland had the right to speak to an attorney before
speaking to the police and to have an attorney present before questioning now or in the future; if
Holland could not afford an attorney one would be appointed for him before any questioning if
he wished; and if Holland decided to answer questions without an attorney present, he still had
the right to stop answering at any time and speak to an attorney. Each time, Holland responded
“Yea.” When the form asked Holland if he had previously requested any law enforcement
officer to allow him to speak to an attorney, Holland again said, “Yea.” Finally, the form asked
Holland whether, “Knowing and understanding your rights as I explained them to you, are you
willing to answer my questions without an attorney present?” Holland replied, “I’ll talk to you.”



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to talk without an attorney present,” and that Holland “sign[ed] the waiver of

Miranda rights form.” 

not attempt to rebut the presumption of

correctness with clear and convincing evidence as required by § 2254(e)(1).

      Instead of challenging the fact finding, Holland argues that the Florida

Supreme Court acted contrary to or unreasonably applied Edwards v. Arizona,

which held 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 

. “[T]he term

‘interrogation’ under Miranda refers not only to express questioning, but also to

any words or actions on the part of the police (other than those normally attendant

to arrest and custody) that the police should know are reasonably likely to elicit an

incriminating response.” Rhode Island v. Innis, 

, 301 (1980).

Nevertheless, “[v]olunteered statements of any kind are not barred by the Fifth

Amendment.” Miranda v. Arizona, 

, 478 (1966).

      Holland attacks the voluntariness of his interrogation statements from a

number of unconvincing angles. He argues that Detective Butler’s actions were

designed to undermine Holland’s right to counsel because establishing that

Holland spoke English was incriminating. Holland highlights Butler’s

admonitions that it was important to tell the truth about his identity. According to



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Holland, Butler intended to undermine his right to counsel by giving him his card

and saying to call him if he wanted to talk. Holland also says that it was “highly

suspicious” that he was brought out to be fingerprinted and photographed a second

time, at 2:30 a.m., when Detective Butler “just happened” to be in the area.

Finally, Holland claims that his statements should have been suppressed as

involuntary because he was afraid of being beaten, was extremely tired, had

vomited, and had ingested alcohol and cocaine.

      The Florida Supreme Court reasonably found no Miranda violation when it

concluded that Holland initiated the 2:30 a.m. dialogue with Detective Butler that

drew out his incriminating statements. Holland’s own testimony at trial shows his

claim lacks merit: he said he had wanted to talk to Butler because he was the only

person that Holland felt gave him “a chance to get out of the precinct,” to “finesse

my way out of there. That’s what that whole thing is, me trying to talk to him, to

hope that he gets me out of there.” A court also could reasonably decide that the

earlier act of handing over a business card was not something Butler should have

known was reasonably likely to elicit an incriminating response, nor did the act

apply undue pressure calculated to convince Holland to waive his rights.

                                         V.

      In sum, the district court erred in ordering habeas relief on Holland’s Faretta

claim because the Florida Supreme Court reasonably concluded that his mental



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condition kept him from making a knowing and voluntary waiver of the right to

counsel. Therefore, we reverse the grant of the writ of habeas corpus and remand

with instructions for the district court to reinstate Holland’s conviction and

sentence. However, we affirm the district court’s denial of a habeas writ on

Holland’s three other appellate claims.

      AFFIRMED in part, REVERSED in part, and REMANDED with

instructions.




                                          58