19810610
80-269
400 So. 2d 516
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Mills v. Singletary, 161 F.3d 1273 (11th Cir. 12/01/1998)

[1] U.S. Court of Appeals, Eleventh Circuit 
[2] No. 96-3506 
[3] 161 F.3d 1273, 1998.C11.42056 <http://www.versuslaw.com>
<http://www.versuslaw.com> 
[4] December 01, 1998 
[5] GREGORY MILLS, PETITIONER-APPELLANT, v. HARRY K. SINGLETARY, JR.,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE.  
[6] D.C. Docket No. 92-1184-CIV-ORL-19 
[7] Before Hatchett, Chief Judge, and Edmondson and Black, Circuit
Judges. 
[8] The opinion of the court was delivered by: Per Curiam 
[9] PUBLISH 
[10] Appeal from the United States District Court for the Middle District
of Florida 
[11] In this capital case, appellant Gregory Mills challenges the
district court's denial of his petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. We affirm. 
[12] I. BACKGROUND 
[13] The Florida Supreme Court described the circumstances surrounding
the murder of James Wright and Mills's trial as follows: 
[14] "The evidence at the trial showed that Gregory Mills and his
accomplice Vincent Ashley broke into the home of James and Margaret Wright
in Sanford between two and three o'clock in the morning, intending to find
something to steal. When James Wright woke up and left his bedroom to
investigate, Mills shot him with a shotgun. Margaret Wright awakened in time
to see one of the intruders run across her front yard to a bicycle lying
under a tree. Mr. Wright died from loss of blood caused by multiple shotgun
pellet wounds. 
[15] Ashley, seen riding his bicycle a few blocks from the Wright home,
was stopped and detained by an officer on his way to the crime scene.
Another officer saw a bicycle at the entrance to a nearby hospital emergency
room, found Mills inside, and arrested him. At police headquarters officers
questioned both men and conducted gunshot residue tests on them. Then they
were released. 
[16] At trial Mills' roommate [Sylvester Davis] testified that he and his
girlfriend [Viola May Stafford] hid some shotgun shells that Mills had given
them, that Mills had been carrying a firearm when he left the house the
night of the murder, and that Mills had said he had shot someone. He also
stated that Mills told him that a city worker had found a shotgun later
shown to have fired an expended shell found near the victim's home. 
[17] After the murder, Ashley was arrested on some unrelated charges. He
then learned that Mills had told his roommate and his girlfriend about the
murder and that they in turn had told the police, so he decided to tell the
police about the incident. Ashley testified that Mills entered the house
(through a window) first, that he, Ashley, then handed the shotgun to him,
and that he then entered the house himself. Ashley saw the man in the house
had awakened and was getting up, so he exited the house and ran to his
bicycle. Then he heard the shot and ran back to the house, where he saw
Mills. They both departed the scene on their bicycles, taking separate
routes. Ashley was granted immunity from prosecution for these crimes and
also for several unrelated charges pending against him at the time he
decided to confess and cooperate. 
[18] Mills testified in his defense. He said that he arrived home from
work on May 24 at around 9:30 p.m. Then he went out, first to one bar, then
another, playing pool and socializing. He went home afterwards but could not
sleep, he said, because of a toothache and a headache, so he went to the
hospital emergency room. There police officers took him into custody."

[19] Mills v. State, 476 So. 2d 172, 174-75 (Fla. 1985), cert. denied,
475 U.S. 1031 (1986). *fn1 
[20] II. PROCEDURAL HISTORY 
[21] The State of Florida charged Mills through an indictment dated June
29, 1979, with four counts relating to the May 25, 1979 shooting of Wright:
(1) first degree felony murder (Count I); (2) burglary (Count II); (3)
aggravated battery (Count III); and (4) possessing a firearm despite a prior
felony conviction (Count IV). On August 16, 1979, a jury trial commenced.
After the trial Judge denied Mills's motion for judgment of acquittal, the
jury returned verdicts of guilty on the charges of first degree felony
murder, burglary and aggravated battery. *fn2 At the penalty phase of the
proceedings on the first degree murder conviction, the jury recommended that
Mills receive a life sentence. On April 18, 1980, the trial Judge overrode
the jury's recommendation after finding that the aggravating factors
surrounding Mills's crime outweighed the absence of statutory mitigating
factors pursuant to Florida Statute § 921.141, and sentenced Mills to death.
*fn3 
[22] On direct appeal to the Florida Supreme Court, Mills raised the
following issues: (1) whether sufficient evidence supported his felony
murder conviction; (2) whether he received ineffective assistance of counsel
because of a conflict of interest in the public defender's office; (3)
whether the trial court violated his confrontation rights in abridging
cross-examination of Ashley; (4) whether the trial court erred in admitting
gunshot residue tests; (5) whether his conviction for aggravated battery was
improper; (6) whether his convictions for both felony murder and burglary
were improper; and (7) whether the trial Judge's override of the jury's
recommendation was improper. See Mills, 476 So. 2d at 175, 179. 
[23] The Florida Supreme Court affirmed Mills's convictions and sentences
for felony murder and burglary, but vacated the sentence and conviction for
aggravated battery. See Mills, 476 So. 2d at 175, 177. The Florida Supreme
Court held that Mills's contentions concerning ineffective assistance and
gunshot residue tests were meritless, and that the trial court did not
abridge Mills's right to confront the witnesses against him. See Mills, 476
So. 2d at 175-77. 
[24] The Florida Supreme Court then analyzed the trial Judge's override
of the jury's recommendation at Mills's sentencing. It found that the trial
Judge had found the existence of no mitigating factors and the following six
aggravating factors pursuant to Florida Statute § 921.141: (1) under
sentence of imprisonment; (2) previous conviction of violent felony; (3)
great risk of death to many persons; (4) felony murder; (5) pecuniary gain;
and (6) heinous, atrocious or cruel. The Florida Supreme Court held that the
following aggravating factors were improper: (1) great risk of death to many
persons; (2) pecuniary gain; and (3) heinous, atrocious or cruel. It
affirmed the remainder of the aggravating factors, as well as the trial
court's finding that no mitigating factors existed. See Mills, 476 So. 2d at
177-79. The Florida Supreme Court affirmed the trial Judge's imposition of
the death sentence, holding that the override complied with Tedder v. State,
322 So. 2d 908 (Fla. 1975). *fn4 The United States Supreme Court denied
Mills's petition for writ of certiorari. Mills v. Florida, 475 U.S. 1031
(1986). 
[25] The Governor of Florida signed Mills's death warrant, and Mills
thereafter moved for post-conviction relief pursuant to Florida Rule of
Criminal Procedure 3.850. The trial court denied all requested relief. Mills
appealed the trial court's denial to the Florida Supreme Court, petitioned
for a writ of habeas corpus and requested a stay of execution. The Florida
Supreme Court denied Mills's petition for habeas corpus, but reversed the
trial court's summary denial of his 3.850 motion and directed the trial
court to hold an evidentiary hearing on Mills's 3.850 claim of ineffective
assistance relating to his lawyer's failure to develop and present evidence
that would tend to establish statutory or non-statutory mental mitigating
circumstances. See Mills v. Dugger, 559 So. 2d 578, 579 (Fla. 1990). *fn5

[26] The trial court held an evidentiary hearing pursuant to the Florida
Supreme Court's remand. Mills called numerous witnesses at the evidentiary
hearing, including: his trial attorneys, one of whom testified that "with
the benefit of hindsight" she would have looked at mental health evidence;
two psychologists who testified that Mills had some brain damage and
satisfied the criteria for two statutory mental mitigators; and his sister
and one of his brothers, who recounted Mills's difficult upbringing. The
trial court held that Mills failed to show that his lawyer's performance was
deficient under Strickland v. Washington, 466 U.S. 668 (1984). 
[27] The Florida Supreme Court affirmed, holding that Mills's lawyer's
admission that "with the benefit of hindsight" he would have investigated
mental health evidence "illustrates the Supreme Court's concern [in
ineffective assistance claims] `that every effort be made to eliminate the
distorting effects of hindsight.'" Mills v. State, 603 So. 2d 482, 485 (Fla.
1992) (quoting Strickland, 466 U.S. at 689). The Florida Supreme Court found
that Mills also failed to satisfy the prejudice prong of Strickland, holding
that "Mills has not demonstrated a reasonable probability that the currently
tendered evidence would have produced a reversal of the Judge's override of
the jury's recommendation." Mills, 603 So. 2d at 486. 
[28] Mills then filed a petition for extraordinary relief and for writ of
habeas corpus with the Florida Supreme Court. He raised two issues in the
petition: (1) the Florida Supreme Court performed an inadequate harmless
error analysis in affirming the death sentence; and (2) the felony-murder
aggravator is an unconstitutional automatic aggravating circumstance in
felony murders. The Florida Supreme Court found both issues to be
procedurally barred. Mills v. Singletary, 606 So. 2d 622, 623 (Fla. 1992).

[29] After exhausting state remedies, Mills filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District
Court for the Middle District of Florida. He claimed that: (1) he received
ineffective assistance of counsel at the penalty and sentencing phase; (2)
the trial court and the Florida Supreme Court failed to evaluate adequately
mitigation evidence in contravention of Parker v. Dugger, 489 U.S. 308
(1991); (3) the Florida Supreme Court erred in upholding the jury override
despite its invalidating three aggravating factors; (4) his sentence rested
upon an unconstitutional automatic aggravating factor (felony murder); (5)
the jury override resulted in an arbitrary, capricious and
unreliably-imposed death sentence; (6) the trial court violated his
confrontation rights when it precluded certain impeachment and
cross-examination of witness Ashley; (7) he received ineffective assistance
of counsel because of a conflict of interest in the public defender's
office; (8) the trial Judge erroneously considered non-statutory aggravating
factors in overriding the jury's recommendation of a life sentence, and his
lawyer rendered ineffective assistance in failing to object; (9) the trial
Judge erred in failing to find mitigating factors; (10) the trial court
erred in admitting testimony and evidence of gunshot residue tests; (11) he
received ineffective assistance of counsel at the guilt phase of his trial;
(12) the trial court erred in admitting as rebuttal evidence results from
the gunshot residue test; (13) the government engaged in prosecutorial
misconduct at the sentencing hearing; and (14) the failure to transcribe the
bench conferences resulted in trial error and ineffective assistance of
counsel. The district court found that all of Mills's claims were either
meritless or procedurally barred, and therefore denied Mills's section 2254
petition in a 51-page order. See Mills v. Singletary, No. 92-1184-CIV-ORL-19
(M.D. Fla. Aug. 19, 1996). 
[30] III. ISSUES 
[31] Mills raises the following issues in this appeal: (1) whether the
trial Judge's override of the jury's recommendation of a life sentence, and
the Florida Supreme Court's affirmance, resulted in an arbitrary and
discriminatory sentence of death; (2) whether the Florida Supreme Court
violated Parker v. Dugger in failing to review adequately the record for
mitigating factors; (3) whether the Florida Supreme Court conducted an
inadequate harmless error analysis; (4) whether Mills received ineffective
assistance of counsel at the guilt phase, jury penalty phase and Judge
sentencing phase; (5) whether the felony murder aggravating factor is
unconstitutional; (6) whether Mills's lawyers had an actual conflict of
interest that adversely affected their representation; (7) whether the trial
court violated his confrontation rights; (8) whether the introduction of
non-statutory aggravating factors rendered his trial fundamentally unfair;
(9) whether the trial court failed to consider mitigating evidence in
violation of Eddings v. Oklahoma, 455 U.S. 104, 114-115 (1982); (10) whether
the introduction of unreliable scientific evidence rendered Mills's trial
unfair; (11) whether the prosecutors engaged in misconduct during the
penalty phase of Mills's trial. 
[32] Because we find that Mills is not entitled to relief on the merits
of some of his claims and has procedurally defaulted the others, we affirm
the district court's denial of his petition for writ of habeas corpus.
Specifically, we hold in accord with the district court that Mills has
procedurally defaulted on the following claims: whether the introduction of
non-statutory aggravating factors rendered his trial fundamentally unfair;
whether the prosecutors engaged in misconduct during the penalty phase of
Mills's trial; and whether Mills's lawyer rendered ineffective assistance of
counsel at the guilt phase. We address Mills's remaining issues in turn.
*fn6 
[33] IV. DISCUSSION 
[34] A. Jury Override 
[35] Mills first challenges the trial court's override of the jury's
recommendation of life imprisonment and the Florida Supreme Court's
subsequent affirmance. The trial court found that six statutory aggravating
factors, as well as the absence of statutory mitigating factors, supported a
death sentence. The Florida Supreme Court held that three of the aggravating
factors -- great risk of death to many persons, pecuniary gain and heinous,
atrocious or cruel -- were erroneous and that the trial court's finding that
no mitigating circumstances existed was correct in affirming Mills's death
sentence. See Mills, 476 So. 2d at 178-79. 
[36] In Florida, a jury's recommendation of a life sentence is entitled
to "great weight," but a trial Judge may overturn such a recommendation when
"the facts suggesting a sentence of death [are] so clear and convincing that
virtually no reasonable person could differ." Tedder, 322 So. 2d at 910.
*fn7 Our review of a jury override "is not to second-guess the deference
accorded the jury's recommendation in a particular case, but to ensure that
the result of the process is not arbitrary or discriminatory." Spaziano v.
Florida, 468 U.S. 447, 465 (1984). Thus, our role is not to second guess the
Florida courts on questions of state law, but to determine whether the
application of the override scheme in Mills's case resulted in an imposition
of the death penalty in an arbitrary or discriminatory manner. *fn8 
[37] Mills contends that Florida's override scheme resulted in an
arbitrary and discriminatory death sentence because: Florida arbitrarily
affirmed an override when Florida courts have sentenced similarly-situated
capital defendants (convicted of felony murder) to life; the timing of
appellate review, and the use of the law of the case doctrine, resulted in
an arbitrary imposition of a death sentence because Florida courts might not
sustain the jury override today; the facts of the case were not
extraordinary for a capital case; the number and type of aggravating factors
that the Florida Supreme Court struck were not considered effectively;
Florida ignored co-defendant Ashley's total immunity; and Florida ignored
mitigation in the record. As an initial matter, we agree with the district
court that several of Mills's contentions concerning "factual or temporal
similarities"-- initially, that similarly-situated capital defendants have
received life sentences and that the facts of Mills's crime were not
extraordinary for a capital case -- are actually requests for a
proportionality review. We have instructed district courts to refuse such
requests when deciding habeas corpus petitions. See Lindsey v. Smith, 820
F.2d 1137, 1154 (11th Cir. 1987), cert. denied, 489 U.S. 1059 (1989); Tucker
v. Zant, 724 F.2d 882, 895 (11th Cir. 1984); Moore v. Balkcom, 716 F.2d
1511, 1518 (11th Cir. 1983), cert. denied, 465 U.S. 1084 (1984). *fn9 
[38] Mills next argues that the application of the "law of the case"
doctrine, and the inconsistent application of the Tedder standard in Florida
courts at the time of his review, resulted in the arbitrary imposition of
his death sentence. Mills identifies the Florida Supreme Court's
proclamation in Cochran v. State that "since 1985, the Court has determined
that Tedder means precisely what it says, that the Judge must concur with
the jury's life recommendation unless `the facts suggesting a sentence of
death [are] so clear and convincing that virtually no reasonable person
could differ.'" 547 So. 2d 928, 933 (Fla. 1989) (quoting Tedder, 322 So. 2d
at 910). The Florida Supreme Court ruled on Mills's override claim in 1985.
Mills contends that the timing of his direct appeal and the subsequent
application of the law of the case doctrine resulted in an arbitrary death
sentence, and that his sentence would have been different if the Florida
Supreme Court had reviewed his claim after 1985. *fn10 
[39] Again, however, Mills is actually requesting a proportionality
review, which the district court correctly refused to entertain. *fn11 To
compare Mills's situation with other Florida capital defendants whose
override issues were decided after 1985 would be in contravention of our
role as a federal court. See, e.g., Antone v. Strickland, 706 F.2d 1534,
1538 (11th Cir.) ("[i]t is not the role of the federal courts in Section
2254 proceedings to retry the circumstances contributing to the state's
imposition of the death penalty."), cert. denied, 464 U.S. 1003 (1983).
Additionally, the Spaziano Court in 1984 remarked that, 
[40] there is no evidence that the Florida Supreme Court has failed in
its responsibility to perform meaningful appellate review of each death
sentence, either in cases in which both the jury and the trial court have
concluded that death is the appropriate penalty or in cases when the jury
has recommended life and the trial court has overriden the jury's
recommendation and sentenced the defendant to death. 
[41] Spaziano, 468 U.S. at 466 (citing Barclay v. Florida, 463 U.S. 939,
971-72 (1983) (Stevens, J., Concurring)). 
[42] Turning to Mills's other contentions on the override claim, he
argues that the trial court and the Florida Supreme Court ignored
arbitrarily Ashley's grant of total immunity. In Florida, the disparate
treatment of a co-defendant can constitute a non-statutory mitigating
circumstance when the defendants are equally culpable. See Bolender, 16 F.3d
at 1565-66 n.27; Pentecost v. State, 545 So. 2d 861, 863 (Fla. 1989) ("[t]he
disparate treatment of equally culpable accomplices can serve as a valid
basis for a jury's recommending life imprisonment."). The record does not
show, however, that Ashley was "equally culpable" in the murder of James
Wright. See White v. Dugger, 523 So. 2d 140, 141 (Fla.) ("[i]t is
permissible to impose different sentences on capital co-defendants where
their various degrees of participation and culpability are different from
one another."), cert. denied, 488 U.S. 871 (1988). We agree with the
district court that Mills's argument on this point is unpersuasive. 
[43] Mills also contends that the trial court and the Florida Supreme
Court ignored mitigation evidence in the record. We find no merit in this
argument for several reasons. First, it is well-settled that in override
cases, "the mere presence of mitigating evidence does not automatically
provide a reasonable basis for the jury's recommendation." Francis v.
Dugger, 908 F.2d 696, 704 (11th Cir. 1990), cert. denied, 500 U.S. 910
(1991); see Lusk v. Dugger, 890 F.2d 332, 342 (11th Cir. 1989) ("[t]he state
courts concluded that there were no reasonable bases for the jury's
recommendation despite the fact that both the jury as advisor and the Judge
as sentencer were made aware of mitigating factors . . . . [W]e do not find
that the result of the application of Tedder was arbitrary or irrational."),
cert. denied, 497 U.S. 1032 (1990). Second, the Florida Supreme Court on
direct review held that Mills's purported mitigating circumstances neither
outweighed the aggravating circumstances nor established a reasonable basis
for the jury's recommendation. See Mills, 476 So. 2d at 178-79. Finally,
Justice McDonald, in his Concurring and Dissenting opinion, discussed the
purported non-statutory mitigation evidence that Mills presented. See Mills,
476 So. 2d at 180 (McDonald, J., Concurring in part and Dissenting in part).
The Florida Supreme Court was well aware of any potential non-statutory
mitigating evidence. 
[44] The Florida Supreme Court's opinion on direct review reveals that
the Florida courts did not impose Mills's death sentence in an arbitrary and
discriminatory manner. The court reviewed Mills's sentencing and invalidated
three of the aggravating factors that the trial court had found. The court
also agreed with the trial court's finding that no mitigating factors
existed and held that "the facts suggesting a sentence of death are so clear
and convincing that virtually no reasonable person could differ." Mills, 476
So. 2d at 179. The Florida Supreme Court complied with the mandate of
Tedder, and, as the district court held, Mills's case is similar to Francis
v. Dugger. See Francis, 908 F.2d at 704 (holding that override was not
arbitrary and discriminatory where jury's recommendation of life
imprisonment may have been the product of defense counsel's highly
impassioned closing argument, where defendant had a prior criminal history
and where no valid statutory mitigating factors and three statutory
aggravating factors existed). 
[45] B. Parker v. Dugger claim 
[46] Mills contends that the Florida courts failed to consider and
evaluate the record for mitigation evidence that would have precluded the
trial court's override of the jury recommendation, in contravention of
Parker v. Dugger, 498 U.S. 308 (1991). Mills also argues that the Florida
Supreme Court failed to conduct an independent review of non-statutory
mitigating factors presented at sentencing. We review the district court's
factual finding that the Florida courts considered and evaluated the record
for mitigation evidence under the clearly erroneous standard. Spaziano v.
Singletary, 36 F.3d 1028, 1032 (11th Cir. 1994), cert. denied, 513 U.S. 1115
(1995). 
[47] After a review of the record, we find no clear error in the district
court's finding that the trial court weighed and considered evidence of
mitigation and aggravation, including non-statutory mitigation. The trial
court's sentencing order concluded, "[i]t is the finding of this Court after
weighing the aggravating and mitigating circumstances that there are
sufficient aggravating circumstances as specified in 921.141 and
insufficient mitigating circumstances therein that a sentence of death is
justified." *fn12 Also, as the district court found, the trial court's order
denying Mills's motion for post-conviction relief noted that Mills had
presented substantial mitigating evidence at the sentencing phase, including
Mills's disadvantaged upbringing. 
[48] Additionally, we agree with the district court's finding that the
Florida Supreme Court evaluated adequately mitigation evidence in the
record, based on our Discussion of the override claim. The Florida Supreme
Court -- on direct review and again on review of Mills's post-conviction
3.850 motion -- discussed mitigating circumstances in the record. See Mills,
603 So. 2d at 483-84 (post-conviction 3.850 motion); Mills, 476 So. 2d at
178-79 (direct review). Justice McDonald's Concurring and Dissenting opinion
on direct review also shows that the Florida Supreme Court considered
non-statutory mitigating factors. See Mills, 476 So. 2d at 180 (McDonald,
J., Concurring in part and Dissenting in part). The district court's finding
that the Florida Supreme Court considered mitigation evidence adequately and
within the dictates of Parker v. Dugger is thus not clearly erroneous. *fn13

[49] C. The Florida Supreme Court's Harmless Error Analysis 
[50] Mills contends that the Florida Supreme Court, after invalidating
three of the trial court's aggravating factors, conducted an inadequate
harmless error analysis in contravention of the Supreme Court's opinions in
Sochor v. Florida, 504 U.S. 527 (1992) and Stringer v. Black, 503 U.S. 222
(1992). Mills raised this issue previously in a petition for writ of habeas
corpus in the Florida courts. The Florida Supreme Court denied Mills's
petition, holding that "Sochor is not a change in the law that will save
Mills's first claim [of inadequate harmless error analysis] from a
procedural bar, and that claim is barred from consideration." Mills, 606 So.
2d at 623. 
[51] This court recognizes that "[f]ederal review of a petitioner's claim
is barred by the procedural default doctrine if the last state court to
review the claim states clearly and expressly that its judgment rests on a
procedural bar . . . and that bar provides an adequate and independent state
ground for denying relief." Johnson v. Singletary, 938 F.2d 1166, 1173 (11th
Cir. 1991) (en banc) (citing Harris v. Reed, 489 U.S. 255, 262-63 (1989)),
cert. denied, 506 U.S. 930 (1992). We conclude that Mills has procedurally
defaulted this claim. The Florida Supreme Court "clearly and expressly"
stated that its judgment rested on a procedural bar, and the bar provides an
adequate and independent state ground for denying relief. We note that Mills
has not attempted to except himself from this bar to review through showing
cause for and prejudice from the procedural default. See Wainwright v.
Sykes, 433 U.S. 72, 90-91 (1977); Johnson, 938 F.2d at 1174-75. *fn14 
[52] D. Ineffective Assistance of Counsel (Penalty Phase and Sentencing)

[53] Mills contends that his penalty phase lawyer, Joan Bickerstaff, and
his sentencing lawyer, Thomas Greene, rendered ineffective assistance
because: (1) both failed to investigate mitigating evidence and to prepare
for their respective proceedings; and (2) both failed to have a mental
health evaluation of Mills performed, and failed to argue mental health
issues as mitigating evidence. A habeas corpus petitioner's ineffective
assistance of counsel claim is a mixed question of law and fact, subject to
de novo review. Dobbs v. Turpin, 142 F.3d 1383, 1386 (11th Cir. 1998). To
obtain relief on this claim, Mills must show that (1) his lawyers'
performance was deficient and "fell below an objective standard of
reasonableness," and (2) this deficient performance prejudiced him so that
"a reasonable probability [exists] that, but for counsel's unprofessional
errors, the result of the proceedings would have been different." Strickland
v. Washington, 466 U.S. 668, 687-88, 694 (1984). 
[54] The Florida Supreme Court, upon review of the trial court's denial
of Mills's motion for post-conviction relief pursuant to Florida Rule of
Criminal Procedure 3.850, made the following findings concerning Mills's
ineffective assistance of counsel contentions: 
[55] "Mills' employer, his grandfather, and his oldest sister testified
at the penalty phase. The grandfather and sister spoke of Mills' father
being shot and killed when Mills was a child, of his mother's working as a
field hand with the sister being responsible for taking care of her younger
siblings, and of his poverty-ridden childhood. Bickerstaff made an
impassioned argument to the jury that Mills' life should be spared. She
emphasized the disparate treatment received by Mills and his co-defendant
who testified against Mills and argued that Mills' crime was not the type
that deserved the death penalty, that Mills had been raised in a ghetto, and
that he was capable of being redeemed. After hearing her argument, the jury
recommended that Mills be sentenced to life imprisonment. 
[56] Mills and his sister both testified before the Judge in April 1980
[at his sentencing]. Greene argued that the Judge should follow the jury's
recommendation because the aggravators should not be applied to Mills. He
also argued that the statutory mitigators of impaired capacity to conform
one's conduct and age had been established. The prosecutor, however, pointed
out that the jury knew nothing of Mills' juvenile criminal record or that
Mills had been convicted both of burglary for stealing the shotgun used to
kill this victim and of armed robbery where he used that same shotgun and
abducted a store clerk. After hearing both sides, the court overrode the
jury's recommendation and sentenced Mills to death." 
[57] Mills, 603 So. 2d at 483-84. The Florida Supreme Court found that
Greene, who had also served as Mills's lead attorney during the guilt phase,
testified at the 3.850 hearing that: (1) "because he had no responsibility
for the penalty phase . . . he did nothing to develop mitigating evidence";
(2) "[a]lthough he represented Mills at the actual sentencing several months
after the jury made its recommendation, he only looked through the file
before appearing before the Judge"; and (3) "[o]n cross-examination he
admitted that nothing about Mills suggested a mental health examination was
needed." Mills, 603 So. 2d at 484. The Florida Supreme Court also found that
Bickerstaff testified at the 3.850 hearing that "the public defender's
office hired her on Saturday, August 18, 1979 to conduct the penalty phase
on the following Monday[,]" and that "`with the benefit of hindsight' mental
health evidence should have been looked at." Mills, 603 So. 2d at 484. *fn15
Both the trial court and the Florida Supreme Court held that Mills failed to
demonstrate that his lawyers had rendered ineffective assistance. Mills, 603
So. 2d at 486. 
[58] In determining whether a lawyer's performance was deficient under
Strickland, we must inquire "whether counsel's assistance was reasonable
considering all the circumstances." Strickland, 466 U.S. at 688. We
determine the reasonableness of Mills's lawyers' performance "through a
deferential review of all the circumstances from the perspective of counsel
at the time of the alleged errors." Baldwin v. Johnson, 152 F.3d 1304, 1311
(11th Cir. 1998). As the district court noted, Mills's family members
testified as to his "poverty-ridden childhood and difficult upbringing."
Both lawyers made impassioned arguments to spare Mills's life. We hold that
the district court did not err in holding that Mills's lawyers prepared
adequately for their respective roles in Mills's proceedings, that they
presented mitigating circumstances at the penalty phase and sentencing and
that they therefore did not render deficient performance under Strickland.

[59] Mills also contends that his lawyers' failure to pursue mental
health issues as mitigating evidence demonstrated ineffective assistance.
Both lawyers testified at the 3.850 hearing that nothing suggested that any
mental heath examination was needed or that Mills indicated that they should
offer any mental health issues as mitigating evidence. Bickerstaff also
testified that "with the benefit of hindsight" she would have examined
mental health evidence. As Strickland warns, however, "[a] fair assessment
of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from counsel's
perspective at the time." Strickland, 466 U.S. at 689. Mills's lawyers
presented witnesses who testified as to mitigating circumstances at the
penalty phase and sentencing, and "[a] defendant's mental condition is not
necessarily at issue in every criminal proceeding. . . ." Ake v. Oklahoma,
470 U.S. 68, 82 (1985). We agree with the district court that Mills's
lawyers' actions fell within Strickland's wide range of reasonable
professional assistance. 
[60] We additionally agree with the district court that even if Mills's
lawyers' performance was deficient, Mills cannot demonstrate that the
alleged failure to present mitigating evidence prejudiced him at the penalty
phase because the jury recommended a life sentence. See Routly v.
Singletary, 33 F.3d 1279, 1297 (11th Cir. 1994) ("[petitioner] cannot show
that any failure to present mitigating evidence to the jury prejudiced him
to any degree whatsoever in the jury's consideration of penalty because the
jury recommended a sentence of life imprisonment anyway."), cert. denied,
115 S. Ct. 2627 (1995). Mills has also failed to demonstrate prejudice at
sentencing under Strickland and its progeny. Mills's trial Judge considered
evidence at the 3.850 hearing concerning his ineffective assistance claim.
The Florida Supreme Court found that: 
[61] "the trial court had information on Mills' serious criminal activity
committed in the two months between his release from prison and the killing
for which he received a death sentence that the jury knew nothing about.
Given the psychologists' testimony [at the 3.850 hearing] that Mills' mental
problems boiled down to being impulsive, it is purely speculative that the
currently tendered evidence would have carried sufficient weight to abrogate
the Judge's override of the jury recommendation." 
[62] 603 So. 2d at 486. The trial court also considered evidence of
Mills's childhood through testimony of his family members and the
presentence investigation report. We hold that the district court correctly
concluded that the failure of Mills's lawyers to present mental health
evidence as mitigating evidence and their failure to seek mitigating
evidence did not prejudice him. See Routly, 33 F.3d at 1297 (holding that
the petitioner could not show prejudice because the essence of the
mitigation evidence that he argued was before the Judge through the
presentence investigation report and his mental health expert's testimony,
and the Judge referred to it specifically in the sentencing order; further,
the same Judge and the Florida Supreme Court held that the mitigation
evidence would not have changed the result). 
[63] E. Felony Murder Aggravating Factor 
[64] Mills contends that his death penalty conviction was erroneously
predicated upon "the unreliable automatic finding" of the felony murder
aggravating factor for the felony murder that formed the basis of his
conviction. The Florida Supreme Court previously addressed this contention,
rejecting the substance of it on direct appeal and holding that it was
procedurally barred in two separate habeas corpus petitions. See Mills, 606
So. 2d at 623 (second habeas corpus petition); Mills, 559 So. 2d at 579
(first habeas corpus petition); Mills, 476 So. 2d at 178 (direct review). We
hold that Mills has procedurally defaulted this claim. See Johnson, 938 F.2d
at 1173. In any event, this circuit has considered this argument previously
and found it to be meritless. See Johnson v. Dugger, 932 F.2d 1360, 1368-70
(11th Cir.), cert. denied, 502 U.S. 961 (1991); Bertolotti v. Dugger, 883
F.2d 1503, 1527-28 (11th Cir. 1989), cert. denied, 497 U.S. 1032 (1990).

[65] F. Conflict of Interest/Confrontation Clause Claim 
[66] The public defender's office represented both Mills and co-defendant
Vincent Ashley before Florida charged Mills with felony murder. Upon
learning of the potential conflict of interest in representing both, the
public defender's office withdrew from representation of Ashley, and the
trial court appointed him private counsel. While the dual representation
existed, however, Ashley spoke to a public defender investigator. At trial,
Florida granted co-defendant Ashley complete immunity from prosecution in
exchange for his testimony concerning Mills's murder of James Wright. During
cross-examination of Ashley, Mills's lawyer (Greene, an assistant public
defender) inquired about statements Ashley made to the public defender
investigator in an attempt to impeach Ashley with prior inconsistent
statements. Florida objected, and Ashley invoked the attorney-client
privilege in refusing to answer Greene's questions concerning the
statements. Mills contends that: (1) the public defender's prior
representation of Ashley resulted in ineffective assistance of counsel at
trial because of a conflict of interest; and (2) the court's curtailment of
his cross-examination of Ashley violated his confrontation rights under the
Sixth Amendment. 
[67] Mills's conflict of interest claim is subject to de novo review.
"[W]e defer to the district court's findings of fact unless we determine
that the findings are clearly erroneous. We apply our own judgment, however,
as to whether the conduct in question constitutes . . . an actual conflict
of interest warranting relief." Buenoano v. Singletary, 74 F.3d 1078, 1083
(11th Cir.) (citations omitted), cert. denied, 117 S. Ct. 520 (1996). "In
order to establish a violation of the Sixth Amendment, a defendant who
raised no objection at trial must demonstrate that an actual conflict of
interest adversely affected his lawyer's performance." Cuyler v. Sullivan,
446 U.S. 335, 348 (1980). Mills must show that an actual conflict exists;
"[a] possible, speculative or merely hypothetical conflict does not
suffice." Lightbourne v. Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987), cert.
denied, 488 U.S. 934 (1988); see also Burden v. Zant, 24 F.3d 1298, 1305
(11th Cir. 1994). In Smith v. White, this circuit adopted a test to
distinguish actual from potential conflict: 
[68] "We will not find actual conflict [of interest] unless appellants
can point to specific instances in the record to suggest an actual conflict
or impairment of their interests. . . . Appellants must make a factual
showing of inconsistent interests and must demonstrate that the attorney
made a choice between possible alternative courses of action, such as
eliciting (or failing to elicit) evidence helpful to one client but harmful
to the other. If he did not make such a choice, the conflict remained
hypothetical." 
[69] Smith v. White, 815 F.2d 1401, 1404-05 (11th Cir.) (quoting Barham
v. United States, 724 F.2d 1529, 1532 (11th Cir.), cert. denied, 467 U.S.
1230 (1984)), cert. denied, 484 U.S. 863 (1987). 
[70] The district court found that no actual conflict existed because
[a]n alleged conflict of interest on the assistant public defender's part
did not impede or prevent [testimony concerning Ashley's statements to
Scarpello] from being elicited during Ashley's cross-examination; the
statements were made during the course of an attorney-client relationship,
and Mr. Ashley had the right to invoke the privilege's protection. 
[71] We agree with the district court. The public defender's alleged
loyalties did not force him to forego cross-examination of Ashley; instead,
Greene cross-examined Ashley extensively and attempted to elicit the
statements that caused Ashley to invoke the attorney-client privilege. Mills
does not point to anything in the record that demonstrates that Greene made
a choice to refrain from cross-examining Ashley in a manner harmful to
Mills, or that Greene had inconsistent interests. "In order to warrant
habeas corpus relief, the petitioner has to show not only an actual conflict
of interest but also that the conflict adversely affected his lawyer's
representation." Stevenson v. Newsome, 774 F.2d 1558, 1562 (11th Cir. 1985),
cert. denied, 475 U.S. 1089 (1986). Based on the foregoing analysis, we
agree with the district court that Mills has not shown adverse effect.

[72] Mills also contends that the trial court's allowing Ashley to invoke
the attorney-client privilege, and the resulting curtailment of his
cross-examination of Ashley, violated his confrontation rights under the
Sixth Amendment. We review whether the trial court erred in limiting
cross-examination for a clear abuse of discretion. See United States v.
Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996), cert. denied, 117 S. Ct. 1328
(1997). The court's discretion in limiting the scope of cross-examination,
however, is limited to the requirements of the Sixth Amendment's guarantee
of the right of confrontation. See Tokars, 95 F.3d at 1531. 
[73] "The Confrontation Clause guarantees criminal defendants an
opportunity to impeach through cross-examination the testimony of witnesses
for the prosecution." United States v. Baptista-Rodriguez, 17 F.3d 1354,
1370 (11th Cir. 1994). This right, however, is "not without limitation; [a
defendant] is entitled only to an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish." United States v. Frost, 61
F.3d 1518, 1525 (11th Cir. 1995) (quotations and citations omitted). "A
defendant's confrontation rights are satisfied when the cross-examination
permitted exposes the jury to facts sufficient to evaluate the credibility
of the witnesses and enables defense counsel to establish a record from
which he can properly argue why the witness is less than reliable."
Baptista-Rodriguez, 17 F.3d at 1371. Once a defendant has engaged in
sufficient cross-examination to satisfy the Confrontation Clause, further
questioning is within the trial court's discretion. United States v. Diaz,
26 F.3d 1533, 1539 (11th Cir. 1994), cert. denied, 115 S. Ct. 1110 (1995).

[74] We hold that the trial court neither violated Mills's rights under
the Confrontation Clause of the Sixth Amendment nor abused its discretion in
limiting cross-examination of Ashley. During cross-examination of Ashley,
Mills's lawyer induced Ashley to admit that: (1) he changed his story of the
events surrounding the murder, thereby implicating Mills, after Florida
offered him a deal and deciding that "there was a chance of me getting out
and starting a new life"; and (2) the deal that Florida offered Ashley gave
him complete immunity from prosecution on the burglary and murder charges in
exchange for his testimony against Mills. We hold that this
cross-examination exposed Ashley's prior inconsistent statements and bargain
with Florida to the extent that the jury could Judge his credibility and
Mills could argue effectively that Ashley's testimony was not credible.
*fn16 Mills's lawyer engaged in sufficient cross-examination, and the trial
Judge neither abused his discretion nor violated the Confrontation Clause in
limiting the cross-examination to that which the attorney-client privilege
did not protect. See, e.g., United States v. Perez-Tosta, 36 F.3d 1552, 1563
(11th Cir. 1994) (holding that despite district court's restriction on
cross-examination of government witness concerning the sentencing benefits
he would earn through testifying for the government, it did not violate
defendant's confrontation rights because of defense counsel's effective
impeachment of the government witnesses' credibility and sentence
reduction); United States v. Taylor, 17 F.3d 333, 340 (11th Cir. 1994)
(concluding that the trial court did not violate that defendant's
confrontation rights when his lawyer had ample opportunity to raise doubts
during cross-examination concerning a government witness's plea agreement);
United States v. Orr, 825 F.2d 1537, 1540 (11th Cir. 1987) (holding that
defendant had ample opportunity to cross-examine government witness,
including the terms of a plea agreement, and that further impeachment was
"speculative and minimal, at best"). 
[75] G. Scientific Evidence 
[76] Mills contends that the trial court erred in admitting expert
testimony and evidence on gunshot residue tests during Florida's rebuttal
after ruling that the tests were inadmissible during Florida's
case-in-chief. Federal courts generally do not review a state court's
admission of evidence in habeas corpus proceedings. See McCoy v. Newsome,
953 F.2d 1252, 1265 (11th Cir.), cert. denied, 504 U.S. 944 (1992). We will
not grant federal habeas corpus relief based on an evidentiary ruling unless
the ruling affects the fundamental fairness of the trial. See Baxter v.
Thomas, 45 F.3d 1501, 1509 (11th Cir.) (stating that we "inquire only to
determine whether the error was of such magnitude as to deny fundamental
fairness to the criminal trial.") (citations omitted), cert. denied, 516
U.S. 946 (1995); McCoy, 953 F.2d at 1265. "A denial of fundamental fairness
occurs whenever the improper evidence `is material in the sense of a
crucial, critical, highly significant factor.'" Snowden v. Singletary, 135
F.3d 732, 737 (11th Cir. 1998) (quoting Osborne v. Wainwright, 720 F.2d
1237, 1238 (11th Cir. 1983)), petition for cert. filed, 67 U.S.L.W. 3113
(U.S. Aug. 3, 1998). 
[77] We agree with the district court that the admission on rebuttal of
the gunshot residue tests was not erroneous and did not affect the
fundamental fairness of the trial. On direct review, the Florida Supreme
Court held that "[t]he test has attained sufficient standing among
scientists to be accepted as reliable evidence in the courts. . . . A
majority of American jurisdictions has held the results of such tests to be
admissible evidence in criminal proceedings." Mills, 476 So. 2d at 176.
Additionally, the trial court did not err in admitting the test results and
expert testimony as rebuttal evidence. During his direct examination, Mills
denied breaking into James Wright's house on May 25, 1979, denied shooting
anyone and on cross-examination, denied firing the particular shotgun (or
any gun) on May 24 or May 25, 1979. Thus, the impeachment with the otherwise
suppressed gunshot residue tests was proper because Mills's testimony
"reasonably suggested" it. See United States v. Havens, 446 U.S. 620, 627-28
(1980) ("[A] defendant's statements made in response to proper
cross-examination reasonably suggested by the defendant's direct examination
are subject to otherwise proper impeachment by the government, albeit by
evidence . . . that is inadmissible on the government's direct case . . . as
substantive evidence of guilt."). 
[78] V. CONCLUSION 
[79] Based on the foregoing, we conclude that the district court did not
err in denying Mills's petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. 
[80] AFFIRMED. 

Opinion Footnotes

[81] *fn1 Under 28 U.S.C. § 2254(d), a federal court reviewing a state
petitioner's petition for writ of habeas corpus must give a presumption of
correctness to the state courts' factual determinations (when certain
prerequisites are met). See Bolender v. Singletary, 16 F.3d 1547, 1552 n.1
(11th Cir.), cert. denied, 513 U.S. 1022 (1994); Cumbie v. Singletary, 991
F.2d 715, 723 (11th Cir.), cert. denied, 510 U.S. 1031 (1993). This
presumption is applicable equally to state appellate court findings of fact.
See Sumner v. Mata, 449 U.S. 539, 547 (1981); Bolender, 16 F.3d at 1552 n.1.

[82] *fn2 Florida later filed a nolle prosequi as to Count IV. 
[83] *fn3 The trial court found that the following statutory aggravating
factors supported Mills's death sentence: (1) under sentence of imprisonment
when he committed the murder; (2) previously convicted of a felony involving
the use or threat of violence; (3) knowingly creating a great risk of death
to many persons; (4) murder committed while Mills was engaged in the
commission of or an attempt to commit or flight after committing the
robberies; (5) pecuniary gain; (6) heinous, atrocious or cruel. The trial
court additionally found that the following statutory mitigating factors
were not present: (1) no significant history of prior criminal activity; (2)
murder committed while Mills was under the influence of extreme mental or
emotional disturbance; (3) the victims were participants or consented to
Mills's acts or conduct; (4) Mills was an accomplice in the murder that
another committed, or Mills's participation in the murder was minor; (5)
Mills acted under extreme duress or under the substantial domination of
another; (6) Mills's capacity to appreciate the criminality of his conduct
or to conform his conduct to the requirements of the law was substantially
impaired; (7) Mills's age at the time of the crime. See Fla. Stat. § 921.141
(1979). The trial court also sentenced Mills to ten years of imprisonment on
Count II (burglary) and five years of imprisonment on Count III (aggravated
battery), with the sentences running concurrently. 
[84] *fn4 Specifically, the Florida Supreme Court held that the facts
suggesting a sentence of death are so clear and convincing that virtually no
reasonable person could differ. There are three valid statutory aggravating
circumstances, and the trial Judge has found that there are no valid
mitigating circumstances. The purported mitigating circumstances claimed by
Mills, but not found by the trial Judge, are not sufficient to outweigh the
aggravating circumstances nor do they establish a reasonable basis for the
jury's recommendation. Mills, 476 So. 2d at 179 (construing Tedder, 322 So.
2d at 910). 
[85] *fn5 Mills included seven claims in his petition for writ of habeas
corpus: (1) the Florida Supreme Court decided wrongly on appeal the issue of
Mills not being allowed to impeach his co-defendant; (2) the trial Judge's
override of the jury's recommendation was improper; (3) appellate counsel
was ineffective because Mills should have been resentenced pursuant to
Elledge v. State, 346 So. 2d 998 (Fla. 1977); (4) the trial court erred in
finding an automatic aggravating factor (felony murder); (5) the trial court
erred in allowing gunshot residue test evidence; (6) the trial court
impermissibly shifted to Mills the burden of proving life to be the proper
penalty; and (7) consideration of victim impact evidence violated Booth v.
Maryland, 482 U.S. 496 (1987). The Florida Supreme Court held that "Mills
raised most of these issues on direct appeal or in his 3.850 motion; others
should have been raised, if at all, on appeal . . . . Claims 1, 2, and 4
through 7 are . . . procedurally barred." Mills, 559 So. 2d at 579
(citations omitted). The Florida Supreme Court also held that Mills's lawyer
did not render ineffective assistance on appeal. See Mills, 559 So. 2d at
579. 
[86] *fn6 Mills filed his petition for writ of habeas corpus on December
23, 1992, before the effective date (April 24, 1996) of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), and thus the AEDPA standard
of review provisions are not applicable. See Lindh v. Murphy, 117 S. Ct.
2059, 2068 (1997); Neelley v. Nagle, 138 F.3d 917, 921 (11th Cir. 1998).

[87] *fn7 This court, and the Supreme Court, have analogized the "great
weight" given to a jury's recommendation as having the "effect of placing a
thumb on one side of the trial Judge's sentencing scale -- either on the
death side or the life side." Glock v. Singletary, 65 F.3d 878, 892 (11th
Cir. 1995) (en banc) (Tjoflat, J., Dissenting), cert. denied, 117 S. Ct. 225
(1996); see Stringer, 503 U.S. at 232. 
[88] *fn8 The Supreme Court in Spaziano discussed Florida's override
scheme and found it to be constitutional. This court has further discussed
Florida's override scheme and its safeguards that render it unlikely that
Florida courts will impose the death penalty in an arbitrary or
discriminatory manner: First, several Florida procedural rules, of both
statutory and case law origin, constrain trial Judges from imposing the
death penalty in an arbitrary or discriminatory manner. Among these
significant safeguards is § 921.141(3) of the Florida Statutes, which
requires trial Judges to independently review the evidence and make detailed
written findings regarding aggravating and mitigating circumstances before
imposing the death penalty. Another significant safeguard is the Tedder
standard. Second, the meaningful appellate review by the Florida Supreme
Court in every capital case further reduces the likelihood that the death
penalty will be imposed in an arbitrary or discriminatory manner. That court
is required by law to review every death sentence to ensure that it has not
been imposed arbitrarily or capriciously. The [Spaziano] Court noted that
there has been no evidence that the Florida Supreme Court has failed to
execute its responsibility faithfully, or hesitated to reverse a trial Judge
who has derogated the jury's role by failing to comply with the mandates of
Tedder. Thus, not only are Florida trial Judges provided with procedural
rules to aid them in performing their duty in a constitutional manner, the
likelihood that they will succeed in ignoring these rules or incorrectly
following them is reduced significantly by meaningful appellate review.
Parker v. Dugger, 876 F.2d 1470, 1474 (11th Cir. 1989) (citations omitted),
rev'd on other grounds, 498 U.S. 308 (1991). 
[89] *fn9 As the district court correctly noted, we held in Moore that:
[a] federal habeas court should not undertake a review of the state supreme
court's proportionality review and, in effect, `get out the record' to see
if the state court's findings of fact, their Conclusion based on a review of
similar cases, was supported by the `evidence' in the similar cases. To do
so would thrust the federal judiciary into the substantive policy making
area of the state. It is the state's responsibility to determine the
procedure to be used, if any, in sentencing a criminal to death. Moore, 716
F.2d at 1518. 
[90] *fn10 Cochran notes Justice Shaw's commentary in his special
concurrence to Grossman v. State, in which he stated: During 1984-1985, we
affirmed on direct appeal trial Judge overrides in eleven of fifteen cases,
seventy-three percent. By contrast, during 1986 and 1987, we have affirmed
overrides in only two of eleven cases, less than twenty percent. This
current reversal rate of over eighty percent is a strong indicator to Judges
that they should place less reliance on their independent weighing of
aggravation and mitigation . . . . Cochran, 547 So. 2d at 933 (quoting
Grossman v. State, 525 So. 2d 833, 851 (Fla. 1988) (Shaw, J., specially
Concurring), cert. denied, 489 U.S. 1071 (1989)). 
[91] *fn11 Mills attributes much significance to the district court's
pronouncement in a previous order that application of the law of the case
doctrine to his case indicates "a certain level of arbitrariness." Although
the district court's order denying Mills's petition conceded that Mills's
argument was "logically attractive," the court correclty held that Mills's
argument on this issue was actually a request for proportionality review.

[92] *fn12 At the time of Mills's sentencing, Florida Statute §
921.141(3) required that the trial Judge set forth explicit findings as to
only the statutory aggravating and mitigating circumstances. See Mason v.
State, 438 So. 2d 374, 379-80 (Fla. 1983), cert. denied, 465 U.S. 1051
(1984). Florida has since changed the statute and now requires a trial court
to evaluate expressly in its sentencing order each non-statutory mitigating
circumstance that a defendant proposes. See Campbell v. State, 571 So. 2d
415, 419-20 (1990). 
[93] *fn13 Mills raises as a separate issue that the trial court's
failure to find mitigating circumstances, and the Florida Supreme Court's
subsequent affirmance (despite noting that mitigation was in the record),
violated Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1982) and Lockett v.
Ohio, 438 U.S. 586 (1978). Consistent with our analysis above, we reject
this argument as well. 
[94] *fn14 We also note that Mills does not qualify for two additional
exceptions to procedural default: (1) if the alleged constitutional
violation resulted in the conviction of an innocent defendant; see Johnson,
938 F.2d at 1174; or (2) if the state procedural bar has been inconsistently
or irregularly applied; see Johnson v. Mississippi, 486 U.S. 578, 587-88
(1988). 
[95] *fn15 According to Strickland, "[a]lthough state court findings of
fact made in the course of deciding an ineffectiveness claim are subject to
the deference of § 2254(d), and although district court findings are subject
to the clearly erroneous standard of Federal Rule of Civil Procedure 52(a),
both the performance and prejudice components of the ineffectiveness inquiry
are mixed questions of law and fact." Strickland, 466 U.S. at 698; see also
Oats v. Singletary, 141 F.3d 1018, 1028 (11th Cir. 1998) (remarking that
state court findings of fact in a 3.850 hearing on ineffective assistance of
counsel are subject to the deference of section 2254(d)). 
[96] *fn16 The Florida Supreme Court on direct review of Mills's claim
found that: "Here the disallowed impeachment was an attempt to bring out a
prior inconsistent statement Ashley made to his former counsel's
investigator. However, Mills' counsel was able to confront Ashley with
several prior inconsistent statements he made to police officers. Defense
counsel also cross-examined Ashley about the bargain he made with the
authorities whereby Ashley gained immunity not only for the crimes Mills now
stands convicted of but also other, unrelated crimes. We therefore hold that
the court did not abridge Mills' right to confront the witnesses against
him." Mills, 476 So. 2d at 176. 
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