Case: 13-12421     Date Filed: 11/19/2014   Page: 1 of 34


                                                                         [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-12421
                          ________________________

                      D.C. Docket No. 4:12-cv-10066-WPD


MICHAEL ANTHONY TANZI,

                                                               Petitioner-Appellant,

                                      versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                             Respondent-Appellee.

                         __________________________

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

                               (November 19, 2014)

Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:

      Michael Anthony Tanzi pleaded guilty to murdering Janet Acosta and was

sentenced to death based on a unanimous jury recommendation. See Tanzi v.

State, 

, 111 (Fla. 2007) (Tanzi I) (per curiam). After his conviction
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and sentence were affirmed by the Florida Supreme Court on direct appeal, 

and that Court affirmed the denial of state postconviction relief, see Tanzi v.

State, 

(Fla. 2012) (Tanzi II) (per curiam), Mr. Tanzi timely filed a

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

the District Court’s denial of his § 2254 habeas petition.

        Mr. Tanzi was granted a certificate of appealability for these two issues: (1)

“[w]hether Tanzi is entitled to federal habeas relief on his claim that he was denied

effective assistance of counsel during the penalty phase of his capital trial”; and (2)

“whether the late revelation that Tanzi might have a genetic abnormality

constituted a Brady 1 violation.” (footnote added). Both claims were adjudicated

on the merits by the Florida Supreme Court. See Tanzi 

–91, 94.

Because of this, our review of the resulting state court decision is limited by the

Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132,

110 Stat. 1214 (1996). See Cave v. Sec’y for Dep’t of Corr., 

, 742–43

(11th Cir. 2011). After careful review of the record, and with the benefit of oral

argument, we affirm the District Court’s denial of habeas relief.

                                   I.       BACKGROUND

                                  A.       Facts of the Crime




1
    Brady v. Maryland, 

, 

(1963).
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      The Florida Supreme Court’s direct appeal opinion described the brutal facts

underlying Mr. Tanzi’s offense as follows:

             During her lunch hour on April 25, 2000, Janet Acosta was
      reading a book while seated inside her maroon van parked at the
      Japanese Gardens in Miami. At that time, Tanzi was stranded in
      Miami without a means of returning to Key West, where he had been
      residing for the previous months. Tanzi saw Acosta sitting in her
      vehicle with her window rolled down and approached her, asking for a
      cigarette and the time. When Acosta was distracted, Tanzi punched
      her in the face until he gained entry to the van. He then threatened her
      with a razor blade and drove away with Acosta in the van. Tanzi held
      Acosta by the wrist until he reached Homestead.

             Upon reaching Homestead, Tanzi stopped at a gas station,
      where he bound Acosta with rope that was in her van and gagged her
      with a towel. Tanzi further threatened Acosta, telling her that if she
      kicked or made noise he would cut her from ear to ear. Tanzi took
      Acosta’s fifty-three dollars in cash. He then bought some cigarettes
      and a soda and attempted to use Acosta’s bank card, which he had
      obtained after rifling through her belongings. While still in
      Homestead, Tanzi also forced Acosta to perform oral sex, threatening
      to kill her with his razor if she injured him. However, he stopped her
      from continuing because Acosta’s teeth were loose as a result of the
      earlier beating.

            Tanzi then continued to drive with Acosta bound and gagged in
      the rear of the van until he reached Tavernier in the Florida Keys,
      where he stopped at approximately 5:15 p.m. to withdraw money from
      Acosta’s bank account. He again threatened Acosta with the razor in
      order to obtain Acosta’s personal identification number. Tanzi
      thereafter stopped at a hardware store to purchase duct tape and razor
      blades.

            Tanzi continued his journey until approximately 6:30 p.m.
      when he reached Sugarloaf Key. He decided that he needed to get rid
      of Acosta as she was getting in the way. He also knew he would get
      caught quickly if he released her alive. Tanzi proceeded to Blimp
      Road, an isolated area in Cudjoe Key. Tanzi told Acosta that he was
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      going to kill her and then crosslaced a piece of rope and began to
      strangle her. He temporarily stopped to place duct tape over her
      mouth, nose, and eyes in an attempt to stifle the noise. Tanzi then
      continued to strangle Acosta until she died. Tanzi disposed of
      Acosta’s body in a wooded, secluded area where he thought she
      would go unnoticed.

Tanzi 

–11.

      Mr. Tanzi was apprehended on April 27, 2000, after police saw him

returning to Ms. Acosta’s van, which the police had located and put under

surveillance. 

Mr. Tanzi had receipts in his pockets for ATM purchases

and withdrawals he had made with Ms. Acosta’s ATM card. 

his Miranda rights, Mr. Tanzi “confessed that he had assaulted, abducted, robbed,

sexually battered, and killed Janet Acosta.” 

Plea

      Although Mr. Tanzi initially pleaded not guilty, he entered a guilty plea

shortly before trial to first-degree murder, carjacking, kidnapping, and armed

robbery. 

then proceeded to a penalty phase before a jury. 

Phase

      Penalty phase jury selection commenced on February 3, 2003, and the jury

was selected and sworn on February 6, 2003. On February 7, 2003—three days

before the evidentiary presentation of the penalty phase—the prosecutor sent Mr.

Tanzi’s trial counsel a memorandum that stated:



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      In a telephone conversation with Robin Ragsdale, of the Florida
      Department of Law Enforcement, on 2-07-03, she indicated to me that
      while conducting DNA analysis on the . . . case she noticed an
      increased presence of Y chromosomes in the defendant’s cells. She
      did not confirm that the defendant was an XYY genotype, but
      suspected it was a possibility. In an abundance of caution I offer this
      information to you for whatever value it may have. A copy of this
      letter will be filed with the court.

On that same day, the state advised Mr. Tanzi’s counsel that it intended to impeach

one of his defense experts, Dr. William Vicary, with disciplinary records. 

of penalty phase evidence and argument started on

February 10 and ended on February 19, 2003. Mr. Tanzi presented a substantial

case for mitigation during the penalty phase, including a psychiatrist, a

psychologist, a forensic social worker, and a counselor from a homeless shelter,

who told the jury about Mr. Tanzi’s long history of mental health problems,

treatment, and diagnoses. See Tanzi 

. For example, forensic

social worker Linda Stanford testified that Mr. Tanzi, beginning at age eight, was

sexually abused for five years by an older boy and explained that Mr. Tanzi acted

out sexually following the abuse. 

a psychiatrist, testified that

Tanzi suffered from bipolar disorder, substance abuse, paraphilia, and antisocial

personality disorder.” 

Raphael, a psychologist, testified that Tanzi

suffered from polysubstance dependence, PTSD, exhibitionism, sexual sadism,

voyeurism, ADHD, a learning disability, bereavement, and antisocial personality

disorder. Dr. Raphael also stated that his firm suspected one of (and could not rule
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out) schizophrenia, schizoaffective disorder, or psychotic disorder.” 

Additionally, the defense presented Mr. Tanzi’s mother, Phyllis Whalen, who told

the jury about Mr. Tanzi’s childhood difficulties, mental health problems and

treatment, and child abuse. 

      On February 19, 2003, the jury retired to deliberate at 2:20 p.m. and returned

with a unanimous recommendation of death less than three hours later. The trial

court followed the jury’s recommendation and sentenced Mr. Tanzi to death,

finding that the “aggravating circumstances greatly outweigh the relatively

insignificant mitigators established in the record.” The trial court issued a lengthy

sentencing order detailing its findings regarding aggravating and mitigating

circumstances, which the Florida Supreme Court later summarized as follows:

      [T]he trial court found the following aggravators: (1) that the murder
      was committed by a person previously convicted of a felony and
      under sentence of imprisonment or on felony probation; (2) that the
      murder was committed during the commission of a kidnapping; (3)
      that the murder was committed during the commission of two sexual
      batteries; (4) that the crime was committed for the purpose of
      avoiding arrest; (5) that the murder was committed for pecuniary gain;
      (6) that the murder was especially heinous, atrocious, or cruel (HAC);
      and (7) that the murder was committed in a cold, calculated, and
      premeditated (CCP) manner. The court gave each aggravator “great
      weight” except the HAC aggravator, which the court gave “utmost
      weight.” The court found the following mitigators: (1) that Tanzi
      suffered from “axis two” personality disorders; (2) that he was
      institutionalized as a youth; (3) that his behavior benefited from
      psychotropic drugs; (4) that he lost his father at an early age; (5) that
      he was sexually abused as a child; (6) that he twice attempted to join
      the military; (7) that he cooperated with law enforcement; (8) that he
      assisted inmates by writing letters and that he enjoys reading; (9) that
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       his family has a loving relationship for him; and (10) that he had a
       history of substance abuse.

Tanzi 

–12 n.1. 2

                                     D.    Direct Appeal

       A unanimous Florida Supreme Court affirmed Mr. Tanzi’s convictions and

death sentence on direct appeal. 

Among other things, the Florida

Supreme Court considered Mr. Tanzi’s argument that the trial court erred when it

allowed the prosecution to impeach “Dr. Vicary regarding a 1998 suspension of his

California medical license due to his involvement in the case of Eric Menendez as

both a treating physician and a forensic scientist.” 

Dr. Vicary had

“rewritten his notes and deleted passages that were damaging to the defense” at the

direction of Mr. Menendez’s defense attorney. 

Supreme Court

found “this line of impeachment could properly relate to the witness’s bias.” 

The U.S. Supreme Court denied Mr. Tanzi’s petition for writ of certiorari.

Tanzi v. Florida, 

, 

(2008).

                                    E.     Postconviction




2
    The Florida Supreme Court agreed with Mr. Tanzi that the trial court had impermissibly
doubled the “in the course of a felony” aggravator by finding that Mr. Tanzi had committed the
murder during the course of a kidnapping and sexual battery as two separate aggravators. Tanzi

–18. But the court concluded the error was harmless beyond a reasonable
doubt. 

(“[I]t is clear beyond a reasonable doubt that even without a second murder in
the course of a felony aggravator, the trial court would have found that the aggravating factors
present in this case substantially outweighed the mitigating evidence.”).
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      Mr. Tanzi filed a motion for postconviction relief pursuant to Florida Rule of

Criminal Procedure 3.851. The state trial court summarily denied several claims,

including Mr. Tanzi’s Brady claim, Tanzi 

, but granted him an

evidentiary hearing on his penalty phase ineffective assistance of counsel claim, 

      After the evidentiary hearing, the state trial court issued a written opinion

denying Mr. Tanzi relief on the merits. Then, in a detailed opinion, the Florida

Supreme Court considered and rejected Mr. Tanzi’s penalty ineffective assistance

of counsel and Brady claims on the merits. See 

We will elaborate

on the state trial court’s factfinding and Florida Supreme Court’s reasons

supporting its decision below.

      Mr. Tanzi timely filed a federal petition for writ of habeas corpus raising a

number of claims, which the District Court denied in a comprehensive written

order. As set out above, Mr. Tanzi was granted a COA to appeal two of the claims

rejected by the District Court.

                        II.       STANDARDS OF REVIEW

      “When examining a district court’s denial of a § 2254 habeas petition, we

review questions of law and mixed questions of law and fact de novo, and findings

of fact for clear error.” Grossman v. McDonough, 

, 1335 (11th Cir.

2006).


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      AEDPA governs our review of Mr. Tanzi’s federal habeas petition because

it was filed after April 24, 1996. Guzman v. Sec’y, Dep’t of Corr., 

,

1345 (11th Cir. 2011). Under AEDPA, in order to receive habeas relief for a

constitutional claim that was adjudicated on the merits in state court (as Mr.

Tanzi’s claims were), Mr. Tanzi must demonstrate the state court’s resolution of

those claims:

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or

      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.

28 U.S.C. § 2254(d). “This is a difficult to meet and highly deferential standard

for evaluating state-court rulings, which demands that state-court decisions be

given the benefit of the doubt.” Cullen v. Pinholster, ___ U.S. ___, ___, 

, 1398 (2011) (quotation marks and internal citations omitted). For the

purposes of § 2241(d)(1), we are mindful that “an unreasonable application of

federal law is different from an incorrect application of federal law.” Williams v.

Taylor, 

, 410, 

, 1522 (2000). As a result, “[a] state

court’s determination that a claim lacks merit precludes federal habeas relief so

long as fairminded jurists could disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 

, ___, 

, 786 (2011)


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(quotation marks omitted).

      In addition, we must presume the state court’s factual findings to be correct

unless the petitioner rebuts that presumption by clear and convincing evidence. 28

U.S.C. § 2254(e)(1). AEDPA’s “statutory presumption of correctness applies only

to findings of fact made by the state court, not to mixed determinations of law and

fact.” Parker v. Head, 

, 836 (11th Cir. 2001). When considering a

determination of a mixed question of law and fact, such as a claim of ineffective

assistance of counsel, the statutory presumption of correctness applies to only the

underlying factual determinations. Cooper v. Sec’y, Dep’t of Corr., 

, 1352–53 (11th Cir. 2011); see also Strickland v. Washington, 

,

698, 

, 2070 (1984) (“[B]oth the performance and prejudice

components of the ineffectiveness inquiry are mixed questions of law and fact.”).

If the petitioner can rebut that presumption, we are “not bound to defer to

unreasonably-found facts or to the legal conclusions that flow from them.”

(internal quotation marks omitted).

                                III.   DISCUSSION

                  A.     Ineffective Assistance of Counsel Claim

      Strickland’s two-pronged deficient performance and prejudice standard

provides the clearly established federal law that applies to Mr. Tanzi’s ineffective

assistance of counsel claim. 

, 104 S. Ct. at 2064. “Under


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Strickland, we first determine whether counsel’s representation fell below an

objective standard of reasonableness. Then we ask whether there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Padilla v. Kentucky, 

, 366,

, 1482 (2010) (quotation marks omitted). To evaluate the

probability of a different sentence in a capital case, we must consider “the totality

of the available mitigation evidence—both that adduced at trial, and the evidence

adduced in the habeas proceeding—and reweigh it against the evidence in

aggravation.” Porter v. McCollum, 

, 41, 

, 453–54,

(2009) (alterations and quotation marks omitted).

      A few points about Strickland’s performance prong bear special emphasis,

especially based on the record in Mr. Tanzi’s case. Although the Sixth

Amendment “right to counsel is the right to the effective assistance of counsel,”

McMann v. Richardson, 

, 771 n.14, 

, 1449 n.14 (1970),

“[j]udicial scrutiny of counsel’s performance must be highly deferential,”

, 104 S. Ct. at 2065. Strickland requires us to “indulge

a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” 

is on the habeas petitioner to

“identify the acts or omissions of counsel that are alleged not to have been the

result of reasonable professional judgment.” 

104 S. Ct. at 2066. In


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addition, because Mr. Tanzi’s ineffective assistance of counsel claim was

adjudicated on the merits in state court, our review of Strickland’s performance

prong is doubly deferential. Burt v. Titlow, ___ U.S. ___, ___, 

, 13

(2013).

      Mr. Tanzi broadly asserts that he was denied effective assistance of counsel

at his penalty phase. He focuses on four errors or omissions of trial counsel, all of

which were expressly considered by the Florida Supreme Court in its opinion

affirming the denial of postconviction relief: “(1) fail[ure] to present consistent

mental health testimony; (2) fail[ure] to investigate and present Tanzi’s XYY

abnormality; (3) present[ation] [of] Dr. Vicary’s testimony; and (4) fail[ure] to

present additional mitigation witnesses.” Tanzi 

. Mr. Tanzi

argues the Florida Supreme Court unreasonably applied Stickland and its progeny

in denying his ineffective assistance of counsel claim.

      Because the Florida Supreme Court adjudicated the merits of Mr. Tanzi’s

ineffective assistance of counsel claim in a reasoned opinion, we apply a two-step

analysis for the purposes of § 2254(d). See 

. First, we

“determine what arguments or theories support . . . the state court’s decision;”

second, we “ask whether it is possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision of th[e]

[Supreme] Court.” Id.; see also Wetzel v. Lambert, ___ U.S. ___, ___, 

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1195, 1198 (2012) (same); Sochor v. Sec’y Dep’t of Corr., 

, 1027

(11th Cir. 2012) (applying Richter’s two-step analysis to determine whether the

state court unreasonably applied federal law). Our careful review of the Florida

Supreme Court’s opinion and the state-court record leads us to conclude that Mr.

Tanzi has not shown, as AEDPA requires, the state court’s ruling on his ineffective

assistance of counsel claim “was so lacking in justification that there was an error .

. . beyond any possibility for fairminded disagreement.” 

–87.

      The Florida Supreme Court correctly identified Strickland as the governing

standard. Tanzi 

; see also 

standard from

, 130 S. Ct. at 453–54). It then explained its reasons for

rejecting each of Mr. Tanzi’s four arguments. We consider each in turn, in the

same order considered by the Florida Supreme Court.

                     1.    Inconsistent Mental Health Theories

      With respect to Mr. Tanzi’s first argument—“that trial counsel was

ineffective for presenting the testimony of mental health experts who did not

collaborate and, therefore, diagnosed Tanzi with varying mental disorders,” Tanzi

, the Florida Supreme Court held that Mr. Tanzi failed to prove

deficiency and prejudice. 

In support of its no-deficiency ruling, the

court explained:


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       At the [state] evidentiary hearing, trial counsel testified that his
       strategy was to “compartmentalize” his mental health experts to avoid
       any charge of collusion and any lessening of the experts’ credibility.
       And “strategic decisions do not constitute ineffective assistance of
       counsel if alternative courses have been considered and rejected and
       counsel’s decision was reasonable under the norms of professional
       conduct.” Occhicone v. State, 

, 1048 (Fla. 2000).

Tanzi 

–91. Nothing about this conclusion is inconsistent with

Supreme Court precedent or otherwise objectively unreasonable. It is supported by

the record and Strickland itself. Here, trial counsel testified at the postconviction

hearing that he had been to a number of death penalty training seminars. Further,

trial counsel stated “it was prevailing wisdom from some of the seminars [he] had

been to to compartmentalize your experts so that there wouldn’t be any charges of

collusion or anything like that.” What is more, trial counsel testified that he knew

his experts’ testimony “wasn’t going to be absolutely consistent,” but he was

“trying to minimize” the inconsistencies. The Florida Supreme Court’s conclusion

that trial counsel made a reasonable strategic decision to compartmentalize Mr.

Tanzi’s experts is well within the bounds of reasonableness under AEDPA. See

Strickland, 466 U.S. at 

(“[S]trategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable . . . .”).

       Further, this is not a case where trial counsel presented completely

contradictory testimony from two different mental health professionals. Mr.


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Tanzi’s assertion that the findings of Dr. Vicary and Dr. Rapheal were

“diametrically opposed to one another” is simply not borne out by the record. Dr.

Vicary diagnosed Mr. Tanzi with bipolar disorder, substance abuse, sexual

disorder, and antisocial personality disorder. Dr. Raphael diagnosed Mr. Tanzi

with several different disorders, including substance abuse disorder, sexual

disorders and antisocial personality disorder. It is true Dr. Raphael did not

diagnose bipolar disorder, but he testified at the penalty phase that he suspected

Mr. Tanzi suffered from some form of psychotic disorder and was unable to rule

out bipolar disorder. Indeed, during the postconviction evidentiary hearing, Dr.

Raphael confirmed that psychological testing supported his suspicion that Mr.

Tanzi might have some bipolar elements in his background, even if he was not able

to make a formal diagnosis of bipolar disorder. While Dr. Vicary and Dr. Raphael

were not in full agreement about Mr. Tanzi’s precise diagnosis, Mr. Tanzi

concedes they both agreed that Mr. Tanzi “met the requirements of both statutory

mental health mitigators, and that there was substantial non-statutory mitigation.”

These facts bolster our conclusion that Mr. Tanzi has neither overcome the “strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance” under 

, 104 S. Ct. at 2065, nor

the deference owed the Florida Supreme Court’s decision under § 2254(d)(1).




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      The Florida Supreme Court also found that Mr. Tanzi did not show prejudice

as to this sub issue. See Tanzi 

(concluding “the non-identical

diagnoses of Dr. Vicary and Dr. Raphael are not sufficient to undermine our

confidence in the outcome”). The court was not required to make a finding on

prejudice here. See 

, 104 S. Ct. at 2069 (“[T]here is no

reason for a court deciding an ineffective assistance claim to . . . address both

components of the inquiry if the defendant makes an insufficient showing on

one.”). For the same reason, in light of the reasonableness of the Florida Supreme

Court’s no-deficiency determination, it is not necessary for us to express any

opinion about prejudice. In contrast, the Florida Supreme Court only addressed

prejudice for the next issue, so we must as well.

                                2.    XYY Genotype

      Finding an absence of prejudice only, the Florida Supreme Court rejected

Mr. Tanzi’s claim that trial counsel “was ineffective during the penalty phase for

failing to investigate and present evidence of Tanzi’s XYY genotype.” Tanzi 

. To understand the nature of this claim, it is helpful to keep in mind

that Mr. Tanzi developed this claim at the state postconviction hearing, mainly

through the testimony of Dr. Karl Muench, a medical geneticist. After the

evidentiary hearing, the state postconviction court made several findings of fact

about what XYY genotype is and its significance to Mr. Tanzi’s case.


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      To begin, the state postconviction court found that Mr. Tanzi “possesses a

chromosomal make-up of 47 chromosomes of which three are joined together as

XYY, the so-called sex chromosomes.” The state trial court also found that “[t]he

State Attorney’s Office sent a memorandum to the defense attorneys, dated

February 7, 2003, stating that [Mr. Tanzi] may possess the XYY chromosomal

pattern.” Trial counsel “did not explore the possible consequences of possessing

the XYY chromosomal pattern, as the memorandum appears to have been merely

filed.” Further, the state postconviction court found the following:

      40.    Men with XYY chromosomes tend to be above average in
             height, with larger than average teeth and head circumference.
             Men with XYY chromosomes tend to possess a lower I.Q. than
             those not possessing the extra chromosome. Men with the
             XYY chromosomes tend to have diminished socialization
             skills, increased problems with inner social skills, learning
             disabilities, and exhibit impulsive behavior. Boys with XYY
             chromosomes tend to have learning problems in school, delayed
             emotional maturity, and delayed language development.

      41.    Early intervention, such as therapy, and care by a nurturing
             adult or adults can ameliorate some of the negative
             consequences of possessing the XYY chromosomal pattern.

      42.    Though unaware of the XYY chromosomal pattern, and the
             possible benefits a nurturing adult can afford, both of the
             Defendant’s parents provided a nurturing environment.

      43.    Men and boys with XYY chromosomes do not automatically
             become antisocial, or tend to engage in criminal activity.

      44.    Initial psychological studies (conducted in the 1960’s) finding a
             direct causation between the XYY chromosomal pattern and


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             violent and/or anti-social behavior have been completely
             discredited.

      45.    The XYY chromosomal pattern is not a syndrome as generally
             understood by psychiatrists and psychologists.

      46.    A causative connection between the XYY chromosomal pattern
             and violent behavior was not demonstrated by the Defendant.

      47.    XYY is not the ‘violence gene.’

      48.    The Defendant’s history of anti-social behavior was extensively
             explored prior to trial, and presented to the jury.

All of these findings of fact are entitled to a presumption of correctness because

Mr. Tanzi has not rebutted them by clear and convincing evidence. See 28 U.S.C.

§ 2254(e)(1).

      In light of the state trial court’s fact findings, the Florida Supreme Court

held that “there is not a reasonable probability that investigating and presenting

evidence of Tanzi’s XYY genetic abnormality would have led to a different

result.” Tanzi 

. The court explained: “[t]he mitigating evidence

adduced at the evidentiary hearing combined with the mitigating evidence

presented at the penalty phase would not outweigh the evidence in aggravation as

this case included six aggravating circumstances given great and utmost weight.”

the Florida Supreme Court emphasized three aspects of Dr.

Muench’s postconviction-hearing testimony. First, “Dr. Muench testified that

having an extra Y chromosome does not cause criminal or antisocial behavior.” 

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Second, “[w]hile the XYY abnormality is statistically associated with

developmental problems, Dr. Muench agreed with a study concluding that as a

general condition XYY boys develop normally during childhood.” 

Muench also explained that when he advised parents in cases where their child was

going to be born XYY, he advised them ‘that more than likely their child would be

normal.’” 

Supreme Court also noted that one of Mr. Tanzi’s

testifying penalty phase experts, Dr. Raphael, “testified during the evidentiary

hearing that the knowledge that Tanzi had an extra Y chromosome would not have

changed any of the opinions he expressed during the penalty phase.” 

the Florida Supreme Court’s findings of fact and its reasoning for

concluding that Mr. Tanzi has not shown Strickland prejudice find ample support

in the record and in law. Its decision is not objectively unreasonable for several

reasons. First, this was not a close case. The jury unanimously recommended a

sentence of death, despite the presentation of substantial mitigating evidence by

trial counsel. Although Mr. Tanzi’s jury did not hear about his XYY abnormality,

trial counsel did confront the jury with the “kind of troubled history [the Supreme

Court] ha[s] declared relevant to assessing a defendant’s moral culpability.”

Wiggins v. Smith, 

, 535, 

, 2542 (2003).

      For example, Mr. Tanzi’s jury was told about his long history of mental

health problems, treatment, and diagnosis from a variety of mental health


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professionals, including a psychiatrist, a psychologist, a forensic social worker, and

a counselor from a homeless shelter, as well as his mother. See Tanzi 

–88. Specifically, the jury heard evidence that Mr. Tanzi was the victim of

sexual abuse when he was between the ages of eight and thirteen years old,

followed by an explanation that this sexual abuse caused him to act out sexually.

see also 

–35, 123 S. Ct. at 2542 (noting the

significance of, inter alia, trial counsel’s failure to introduce evidence of the

defendant’s “sexual molestation” to support a finding of prejudice). The jury also

learned that Mr. Tanzi was physically abused by his father. Tanzi 

. Unlike Porter v. McCollum, this is not a case where “[t]he judge and jury at

[Mr. Tanzi’s] original sentencing heard almost nothing that would humanize [Mr.

Tanzi] or allow them to accurately gauge his moral culpability.” 

, 130 S. Ct. at 454. In fact the opposite is true. Even after having heard a

substantial case for mitigation, the sentencing court ultimately imposed a death

sentence, finding the “aggravating circumstances greatly outweigh the relatively

insignificant mitigators.”

      Second, “this is not a case where the weight of the aggravating

circumstances or the evidence supporting them was weak.” See Rutherford v.

Crosby, 

, 1316 (11th Cir. 2004). As noted, the Florida Supreme

Court found six valid aggravating circumstances, including the heinous, atrocious


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and cruel (HAC) and cold, calculated, and premeditated (CCP) aggravating factors,

see Tanzi 

—two of the weightiest aggravators in Florida’s

capital sentencing scheme, see Larkins v. State, 

, 95 (Fla. 1999).

      Third, and relatedly, we agree with Justice Pariente’s conclusion that

“[n]one of the testimony put forth at the evidentiary hearing casts any doubt

whatsoever on the existence or strength of these aggravators.” Tanzi 

(Pariente, J., concurring in the result).

      Finally, Strickland gives us another reason to find the Florida Supreme

Court’s decision objectively reasonable. In Strickland, the Supreme Court told us

that “a verdict or conclusion only weakly supported by the record is more likely to

have been affected by errors than one with overwhelming record 

, 104 S. Ct. at 2069. In this regard, we are mindful of Justice Pariente’s

description of Mr. Tanzi’s crime: “this murder is unquestionably one of the most

aggravated murders—not just as compared to all other murders, but as compared to

all death penalty cases.” Tanzi 

. Given the totality of

circumstances in this case, we cannot say the Florida Supreme Court’s ruling on

this claim “was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded

disagreement.” 

–87.

                                   3.     Dr. Vicary


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      The Florida Supreme Court rejected Mr. Tanzi’s claim that “trial counsel

was ineffective for presenting the testimony of Dr. Vicary as a mental health expert

and for failing to provide Dr. Vicary with a videotape of Tanzi’s confession.”

Tanzi 

. The Florida Supreme Court held that Mr. Tanzi did not

establish deficient performance or prejudice with respect to trial counsel’s

presentation of Dr. Vicary as a mental health expert. 

Although the

Florida Supreme Court did not separately address if trial counsel was deficient for

failing to provide Dr. Vicary with a videotape of Mr. Tanzi’s confession, the court

held that Mr. Tanzi failed to show prejudice as to this issue. 

the Florida Supreme Court found that trial counsel’s presentation

of Dr. Vicary’s testimony was a “reasonable strategic decision” despite the fact

that he “was subject to impeachment based upon [his] misconduct in altering his

notes during the Menendez brothers’ trial in California.” 

emphasized that “Dr. Vicary was the only defense mental health expert that had

diagnosed Tanzi with bipolar disorder, a serious mental health disorder that could

serve as mitigating evidence.” 

The Florida Supreme Court also noted

that trial counsel attempted to “minimize the damage to Dr. Vicary’s credibility by

first filing a motion in limine to exclude this evidence and then by addressing the

misconduct issue during direct examination.” 

13-12421      Date Filed: 11/19/2014     Page: 23 of 34


       In hindsight, there may be room to debate whether trial counsel’s

presentation of Dr. Vicary was a wise decision given his impeachment and the

sentencing court’s rejection of Dr. Vicary’s bipolar diagnosis. See Tanzi II, 

at 498 (Pariente, J., concurring in result) (questioning defense counsel’s

decision to call Dr. Vicary as an expert in this case, but concluding any error was

not prejudicial). But there is no room for fairminded jurists to debate the

reasonableness of the Florida Supreme Court’s decision. Strickland recognized

that “[i]t is all too tempting . . . and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable.” 466 U.S. at 

.

When assessing attorney performance, Strickland “requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” 

Supreme Court did just that.

Its conclusion that defense counsel made a “reasonable strategic decision” to

present Dr. Vicary, despite defense counsel’s awareness of the impeachment issue,

was based on an evaluation of trial counsel’s performance from trial counsel’s

perspective at the time of trial. The reasonableness of the state court’s conclusion

is strongly supported by the fact that Dr. Vicary was the only expert who

diagnosed Mr. Tanzi with bipolar disorder. 

A diagnosis of bipolar


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disorder has been recognized by the Florida Supreme Court as a powerful

mitigating circumstance in other cases. See, e.g., State v. Pearce, 

,

1102 (Fla. 2008) (granting capital defendant a new penalty phase where trial

counsel was found ineffective based, in part, on failure to investigate and present

evidence of bipolar disorder); Orme v. State, 

, 735–36 (Fla. 2005)

(granting a new penalty phase where defense counsel failed “to investigate and

present the fact of [defendant’s] diagnosis of bipolar disorder”). For all of these

reasons, the Florida Supreme Court’s decision that trial counsel was not deficient

in his presentation of Dr. Vicary as a mental health expert was well within the

bounds of reasonableness under AEDPA.

      The Florida Supreme Court also concluded, “[g]iven the aggravation and

mitigation evidence in this case, there is not a reasonable probability that the result

would have been different absent Dr. Vicary’s testimony.” Tanzi II, 

at

492. The court emphasized that “Dr. Vicary’s testimony was particularly helpful

in establishing mitigation due to his diagnosis of bipolar disorder and his

description of the difficulties facing bipolar children.” 

Florida

Supreme Court explained, “[w]hile Dr. Vicary’s credibility may have been

lessened by the disclosure of his misconduct in the Menendez case as well as Dr.

Vicary’s admission that, although he had read a transcript, he had not viewed

Tanzi’s videotaped confession, the overall presentation of Dr. Vicary’s testimony


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does not undermine confidence in the outcome.” 

totality of

the mitigation evidence (both adduced at trial and in the state postconviction

proceeding) against the substantial evidence in aggravation, see 

, 130 S. Ct. at 453–54, we cannot say the Florida Supreme Court’s decision on

this issue is an unreasonable application of Strickland. See 

(“The pivotal question is whether the state court’s application of the Strickland

standard was unreasonable.”).

                       4.     Additional Mitigating Witnesses

      Mr. Tanzi contends trial counsel was ineffective for failing to present

additional mitigating witnesses and for presenting incomplete testimony from his

mother, Phyllis Whalen. Specifically, Mr. Tanzi argues trial counsel should have

presented testimony from his “abuser, two former neighbors, an additional mental

health expert, and a former camp counselor.” Tanzi II, 

at 492. Mr.

Tanzi says these witnesses were available to testify about “valuable mitigation in

its own right,” and would have been “supportive of the fact that Tanzi suffers from

. . . XYY syndrome.”

      For example, Mr. Tanzi argues trial counsel should have presented the

testimony of Shawn Martin (five years older than Mr. Tanzi), who sexually abused

Mr. Tanzi when Mr. Tanzi was in elementary school. We know now what Mr.

Martin might have said at trial, to the extent that he testified at the postconviction


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hearing on Mr. Tanzi’s case. Mr. Martin testified that Mr. Tanzi’s father was

physically abusive to Mr. Tanzi. Mr. Martin also admitted that he himself engaged

in sexual encounters with Mr. Tanzi “four or five” times. However, Mr. Martin

minimized his sexual involvement with Mr. Tanzi, characterizing it as “just kids

fooling around kind of thing.” Mr. Martin also testified that he and Mr. Tanzi saw

the defendant’s mother having sex with her boyfriend several times and that Mr.

Tanzi had access to pornographic magazines.

      With respect to Ms. Whalen, Mr. Tanzi emphasizes that trial counsel’s

presentation of her penalty phase testimony “lacked significant detail and served

only to minimize the mitigation that was otherwise presented.” For example, Mr.

Tanzi argues that Ms. Whalen’s postconviction-hearing testimony “gave a more

compelling and detailed history of Tanzi’s placements in mental health facilities.”

      The Florida Supreme Court rejected Mr. Tanzi’s argument that trial counsel

was ineffective for not presenting additional witnesses because Mr. Tanzi had

failed to show either deficient performance or prejudice under Strickland. Tanzi II,

at 492–93. To support its conclusion that trial counsel was not deficient,

the Florida Supreme Court recounted the extensive and lengthy mitigation

investigation undertaken by the defense team prior to trial:

      The trial record reflects that trial counsel sought and was granted the
      appointment of multiple mental health experts to assist with the
      defense. Further, during the evidentiary hearing, trial counsel
      explained that he sought out lay witnesses, school records, medical
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      records, and psychological records. Trial counsel also explained that
      he and an investigator traveled to Massachusetts to uncover
      information regarding Tanzi’s background and possible mitigation
      evidence. And during the penalty phase, trial counsel presented the
      testimony of two mental health experts to support the proposed
      mitigator that Tanzi’s ability to appreciate the criminality of his
      conduct and to conform it to the requirements of the law was
      impaired. The mental health experts, a social worker, and a homeless
      shelter counselor testified during the penalty phase about Tanzi’s
      history of mental problems and his stays in and diagnoses at various
      institutions. The witnesses also addressed the sexual abuse Tanzi
      suffered as a young child. Further, in an effort to humanize Tanzi,
      trial counsel presented the testimony of Tanzi’s mother along with
      photographs of Tanzi growing up. Thus, Tanzi has failed to
      demonstrate that trial counsel’s decision to not present all possible
      witnesses was deficient. See 

, 

(“[C]ounsel has a duty to make reasonable investigations or to
      make a reasonable decision that makes particular investigations
      unnecessary.”); see also Everett v. State, 

, 474 (Fla.
      2010) (“This Court has also consistently held that a trial counsel’s
      decision to not call certain witnesses to testify at trial can be
      reasonable trial strategy.”).

Tanzi II, 

at 492–93 (alteration in original). The Florida Supreme Court’s

decision finding no deficient performance is not inconsistent with Strickland or

otherwise objectively unreasonable.

      This is not a case where trial counsel failed to conduct a thorough

investigation of the defendant’s background; failed to discover physical abuse,

sexual abuse, or significant mental health history; failed to seek and obtain

relevant background records (such as school, social service, or mental health

records); or failed to consult with appropriate mental health professionals and

conduct appropriate mental health testing. On this record, it was reasonable for the
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Florida Supreme Court to follow Strickland and “indulge a strong presumption”

that counsel’s decision to not present all possible witnesses “might be considered

sound trial strategy.” See 466 U.S. at 

(quotation marks

omitted); id. at 

(“[S]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable.”).

      Trial counsel did a thorough and comprehensive background investigation

that resulted in the presentation of substantial mitigation during the penalty phase.

For example, the defense used investigators to collect large numbers of

background records about Mr. Tanzi. Defense attorneys travelled to New York

and Massachusetts (places where Mr. Tanzi used to live) to interview witnesses

and collect records about Mr. Tanzi’s background, including Mr. Tanzi’s “many

attempts to treat his mental illness.” Importantly, the defense obtained the expert

opinions of numerous psychiatrists and psychologists who performed dozens of

tests on Mr. Tanzi.

      While trial counsel did not call all possible witnesses to testify, there were

good reasons not to call some of these witnesses. One defense psychiatrist who

found Mr. Tanzi to be psychotic was not called by trial counsel as a witness

because his diagnosis would have disclosed to the jury the worst kind of

evidence—that Mr. Tanzi had committed a second homicide. Further, trial counsel


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did not call Hampton Perkins to testify—one of Mr. Tanzi’s former neighbors from

Massachusetts who could have provided mitigation—because of Mr. Perkins’s

advanced age and resistance to travel. Trial counsel’s decision not to call a

reluctant witness or one that might be more harmful than helpful might reasonably

be considered sound trial strategy. See 

, 104 S. Ct. at

2066. In any event, “counsel is not required to present all mitigation evidence,

even if the additional mitigation evidence would not have been incompatible with

counsel’s strategy. Counsel must be permitted to weed out some arguments to

stress others and advocate effectively.” Haliburton v. Sec’y for Dep’t of Corr., 

, 1243–44 (11th Cir. 2003) (quotation marks and citations omitted). The

Florida Supreme Court’s decision that Mr. Tanzi failed to show his trial counsel

was deficient in not presenting additional mitigating witnesses was not an

unreasonable application of Strickland. See 

(“A state

court must be granted a deference and latitude [under AEDPA] that are not in

operation when the case involves review under the Strickland standard itself.”).

      Further, the Florida Supreme Court decided that Mr. Tanzi failed to show

prejudice resulting from trial counsel’s failure to present additional mitigating

witnesses. Tanzi II, 

at 493. There was no prejudice, the court

explained, because presentation of the “witnesses who testified during the

postconviction hearing ‘would barely have altered the sentencing profile presented


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to the sentencing judge.’” 

466 U.S. at 700, 

). The Florida Supreme Court gave several examples of how the

postconviction evidence was “largely cumulative” to the evidence presented to the

jury. See, e.g., 

even acknowledged on cross-examination

during the evidentiary hearing that there was nothing that she could add that was

not provided to the defense originally.”). It then held, “because the additional

evidence presented during the postconviction hearing was largely cumulative of

the evidence presented during the penalty phase, Tanzi has not established a

reasonable probability of a different result had trial counsel presented this

additional evidence during the penalty phase.” 

compared the mitigation evidence presented at the state

postconviction hearing to that presented during the penalty phase. In doing so, we

are mindful that “the United States Supreme Court, this Court, and other circuit

courts of appeals generally hold that evidence presented in postconviction

proceedings is ‘cumulative’ or ‘largely cumulative’ to or ‘duplicative’ of that

presented at trial when it tells a more detailed version of the same story told at trial

or provides more or better examples or amplifies the themes presented to the jury.”

See Holsey v. Warden, 

, 1260–61 (11th Cir. 2012) (collecting

cases). Although the evidence presented during the postconviction hearing is not

identical to the evidence presented during the penalty phase—e.g., the jury never


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heard about Mr. Tanzi’s XYY genetic abnormality—the evidence is substantially

the same in all relevant respects (albeit more detailed). To the extent the additional

evidence related to Mr. Tanzi’s genetic abnormality may not be considered largely

cumulative, we have previously explained why the absence of that evidence was

not prejudicial. For all of these reasons, we cannot say the Florida Supreme

Court’s conclusion that the additional evidence was “largely cumulative” was

objectively unreasonable. Given that, it follows that the Florida Supreme Court’s

decision finding no prejudice is well within the reasonable bounds of Strickland.

See, e.g., 

(finding no reasonable probability of a

different sentence where the additional evidence presented in state habeas

proceeding largely duplicated the mitigation evidence at trial); Wong v.

Belmontes, 

, 22, 

, 387–88 (2009) (finding no reasonable

probability of a different sentence, in part, where portion of postconviction

evidence “was merely cumulative of the humanizing evidence” that defendant

presented at trial); Rose v. McNeil, 

, 1243 (11th Cir. 2011) (“[A]

petitioner cannot satisfy the prejudice prong of the Strickland test with evidence

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

                                 B.    Brady Claim

      Mr. Tanzi argues that the State of Florida violated Brady because it failed to

timely disclose that he might have an XYY genetic abnormality. As we have


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noted, three days prior to the penalty phase the prosecutor disclosed to Mr. Tanzi’s

defense counsel that the state’s DNA analyst “suspected it was a possibility” that

Mr. Tanzi has an XYY genotype. Mr. Tanzi contends the state’s “eleventh-hour”

disclosure prejudiced him because his trial counsel did not have sufficient time to

investigate, develop, and present evidence about Mr. Tanzi’s XYY genetic

abnormality.

      The clearly established federal law relevant to Mr. Tanzi’s Brady claim was

firmly established long before Mr. Tanzi’s trial and postconviction proceedings. In

1963, the Supreme Court held that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith

of the prosecution.” 

, 83 S. Ct. at 1196–97. Thirteen years

after Brady, the Supreme Court clarified that “a defendant need not request

favorable evidence from the State to be entitled to it.” Smith v. Sec’y Dep’t. Corr.,

, 1333 (11th Cir. 2009) (citing United States v. Agurs, 

,

103–07, 

, 2397–99 (1976)).

      The Supreme Court has identified “three components of a true Brady

violation: [1] [t]he evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; [2] that evidence must have

been suppressed by the State, either willfully or inadvertently; and [3] prejudice


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must have ensued.” Strickler v. Greene, 

, 281–82, 

,

1948 (1999).

       The Florida Supreme Court rejected Mr. Tanzi’s Brady claim on the

suppression prong because the State disclosed the possibility that Mr. Tanzi may

have the XYY genotype three days before the penalty phase. Tanzi 

. We need not decide whether AEDPA deference applies to the Florida

Supreme Court’s decision because, even if we were to do our review de novo, it is

abundantly clear that Mr. Tanzi’s Brady claim must be denied because he cannot

show prejudice.3 “[F]avorable evidence is material, and constitutional error results

from its suppression by the government, if there is a ‘reasonable probability’ that,

had the evidence been disclosed to the defense, the result of the proceeding would

have been different.” Kyles v. Whitley, 

, 434, 

, 1565

(1995) (quotation marks omitted). This is the same prejudice standard from

Strickland.4 Even under de novo review, a standard more favorable to Mr. Tanzi,

3
  “Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review
when it is unclear whether AEDPA deference applies because a habeas petitioner will not be
entitled to a writ of habeas corpus if his or her claim is rejected on de novo review, see §
2254(a).” Berghuis v. Thompkins, 

, 390, 

, 2265 (2010). We have
never decided whether we must conduct deferential review of Brady prejudice where, as here, (1)
no state court has addressed the question of prejudice on the merits, and (2) every relevant state
court has expressly rejected the petitioner’s Brady claim under another of Brady’s three
components. Because it is unclear whether AEDPA deference applies under these
circumstances, we follow the Thompkins Court’s instructions and conduct de novo review of the
prejudice element of Mr. Tanzi’s Brady claim.
4
  Kyles concerned the suppression of evidence under Brady, not an ineffective assistance of
counsel claim. However, the test for showing “prejudice” under Strickland and “materiality”
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he has failed to demonstrate a reasonable probability that the result of his

proceeding would have been different had the jury heard about his XYY

abnormality.

                                    IV.     CONCLUSION

          For all of these reasons, we affirm the District Court’s denial of habeas

relief.




under Brady are basically the same. See 

, 104 S. Ct. at 2068 (“The
defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”); 

test for
prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the
defense by the prosecution.”); United State v. Bagley, 

, 682, 

, 3383
(1985) (“We find the Strickland formulation of the Agurs test for materiality sufficiently flexible
to cover . . . cases of prosecutorial failure to disclose evidence favorable to the accused: The
evidence is material only if there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.”).
                                                34