EDMONDSON, Circuit Judge:
Defendant-petitioner Hugo Tejada (Tejada) appeals the district court's denial of his petition for the writ of habeas corpus in a case arising from his convictions in the Florida courts of premeditated murder and burglary. We affirm the denial of Tejada's habeas corpus petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Tejada was indicted for the premeditated murder of Dennis Alexander and for the burglary of Alexander's dwelling. At trial the Florida prosecutor (the State) — through the testimony of Alexander's wife, Karen Alexander; Tejada's girlfriend, Gail Megginnson; Tejada's roommate, Ramon Ortiz; Tejada's friend, Mary Ann Jones; the Hollywood, Florida, Police; and others — presented the following events surrounding the killing of Alexander and the burglary.
In June 1980, Tejada and Ortiz moved to Hollywood, where they became roommates. Shortly thereafter, on June 16, 1980, Tejada picked up a prostitute who turned out to be Megginnson. Alexander was Megginnson's pimp. Tejada saw Megginnson regularly after this initial encounter and fell in love with her.
Megginnson testified that Tejada disliked pimps, despised Alexander and thought that Alexander would be better off dead.
Ortiz testified that, three times during the summer of 1980, Tejada asked Ortiz to help him kill someone and told Ortiz that he wanted to kill this person for money. Tejada revealed to Ortiz that he planned to tie up the victim's body and throw it into the ocean. Ortiz further testified that Tejada owned a pair of dumbbells, a toy gun and a real gun — a small .25 caliber weapon.
Jones testified that, during that summer, Tejada asked her for money and, later, for a gun and a silencer. She provided Tejada with only a pellet gun, but he later told her that a friend named Rhonda would help him get a silencer.
According to Tejada's taped statement, he met Rhonda in August 1980. On September 8, he told Rhonda that he wanted to beat up Alexander. Rhonda agreed to help him and introduced him to Frank.
On the night of September 9, Tejada and Frank went to Alexander's house, which they entered without permission. Tejada claimed that, when Alexander appeared to be reaching for a rifle, Tejada fled with Alexander chasing him and with Frank chasing Alexander. At that point, Tejada claimed, Frank shot Alexander in the head and then stabbed him. The duo then wrapped the body in a blanket and put it in Tejada's car. They then returned to the house and waited for Alexander's wife.
Alexander's wife testified that, upon arriving home in the early morning hours of September 10, Tejada and Frank attacked her. Tejada held a gun to her head and Frank, with an unidentified object, demanded her money. Tejada told her that he had just shot Alexander and attempted to force her to open the Alexander's safe. Tejada also told her that Alexander would no longer "pimp on" Megginnson because Tejada had shot him. Alexander's wife, after suggesting to Tejada and Frank that they could flee to New York, later escaped from the duo by making a scene at the airport. Following the successful escape of Alexander's wife, Tejada fled the airport by car.
Megginnson testified that Tejada visited her later that day and stated that, "It's over. Dennis is dead." He told her that he had shot Alexander in the head and that Frank had stabbed him. He said later that the body was in the car, but Megginnson declined to look at it, noticing a terrible smell coming from the trunk. He also told her that the jewelry stolen from the Alexanders had been taken to a pawnshop and melted down and that the proceeds from this pawnshop sale were split between him and Frank. He received no proceeds from the safe because he was not present when Frank opened it.
Tejada claimed in his sworn statement that, later that day, he and Frank disposed of the body. The duo dragged the body under a bridge; Frank tied up the body with rope and dumbbells and together they threw it into the water. On September 11, Hollywood police found the body under a bridge in Hollywood.
Tejada and Megginnson drove to New York City one week later; he drove in his car and she drove in Alexander's car. The couple were arrested on September 28 in Tejada's New York apartment. They were then questioned in New York by New York and Hollywood police. Tejada and Megginnson gave statements.
Tejada was charged, tried and convicted for the premeditated murder of Alexander and for burglary of Alexander's residence; he received concurrent life sentences. Tejada appealed his convictions to Florida's Fourth District Court of Appeal, which affirmed his convictions and sentences in a per curiam opinion in 1984. Tejada moved for post-conviction relief in the trial court during the following year. In a brief order, the trial court denied his motion. Tejada
In late 1988, Tejada filed a petition for a writ of habeas corpus in the federal district court. That court referred the writ to a magistrate judge, who recommended denying Tejada's petition. After overruling Tejada's objection to the magistrate's recommendations, the district court adopted the recommendations and denied relief. This appeal ensued.
A. Claims Not Addressed by the District Court
Tejada contends that the district court erred by failing to address issues that were properly before it: that the prosecutor knowingly used and exploited false testimony; that there existed a material discovery violation; and that defense counsel was ineffective because he failed to impeach a key prosecution witness with earlier inconsistent testimony.
Although the district court must make findings of fact and conclusions of law in a nonjury action, Parnell v. Wainright, 464 F.2d 735, 736 n. 1 (5th Cir.1972) (citations omitted); Fed.R.Civ.P. 52(a), with the failure to do so usually resulting in a vacated judgment or a case remanded for appropriate findings, Armstrong v. Collier, 536 F.2d 72, 77 (5th Cir.1976) (declining to remand habeas claim not addressed by district court); see also Gulf Towing Co. v. Steam Tanker, Amoco New York, 648 F.2d 242, 245 (5th Cir. Unit B June 15, 1981),
Gulf Towing Co., 648 F.2d at 245; Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1549 (11th Cir.1987). Because the record on appeal in the instant case provides a complete understanding of the issues, we now address Tejada's claims for habeas relief that the district court failed to discuss.
1. Prosecutor's Knowing Use of False Testimony
Tejada claims that he is entitled to habeas relief because the prosecutor knowingly used and exploited false testimony — a so-called Giglio violation. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). He contends that the prosecutor elicited testimony from Ortiz at trial that Tejada owned a .25 caliber pistol — the caliber of the unrecovered murder weapon — and that the prosecutor exploited this testimony in his closing argument to the jury. Tejada states that the prosecutor knew that Ortiz had given the Hollywood police a sworn statement that Tejada
The State contends that this claim is unexhausted because it was never raised in the state post-conviction collateral relief proceeding pursuant to Florida Rule of Criminal Procedure 3.850.
For purposes of this discussion, we assume that Tejada has exhausted his claim. We must determine, therefore, whether Tejada has procedurally defaulted his claim so that we would be barred from considering the merits of that claim, absent of course a showing of cause for and prejudice from the procedural default. See Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
We conclude that Tejada has procedurally defaulted his claim. A petitioner in Florida is not entitled to collateral relief "based upon grounds which could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence." Fla.R.Crim.P. 3.850; cf. Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 96, 112 L.Ed.2d 68 (1990). That the defendant knew of Ortiz's earlier inconsistent sworn statements and could have objected when the prosecutor elicited Ortiz's testimony is sufficient to determine that Tejada procedurally defaulted this claim by failing to raise the issue at trial. We decline, however, to remand this claim to the district court to determine whether Tejada can make a Wainright v. Sykes showing of "cause" and "prejudice" because, based on our review of the record, we see no prejudice to Tejada from this alleged Giglio violation.
Although the State has a duty not to present or use false testimony in criminal trials, Brown v. Wainright, 785 F.2d 1457, 1464 (11th Cir.1986) (citing Giglio), "[n]ot every use of false evidence entitles a defendant to the writ [of habeas corpus]." Id. at 1465. We recognize that false evidence includes "the introduction of specific misleading evidence important to the prosecution's case in chief." Troedel v. Wainright, 667 F.Supp. 1456, 1458 (S.D.Fla.1986), aff'd, 828 F.2d 670 (11th Cir.1987) (adopting explicitly district court order). Before Tejada would be entitled to relief, however, he "must prove that the false evidence was `material' in obtaining his conviction." Brown, 785 F.2d at 1465. We are unconvinced that Ortiz's testimony about the caliber of Tejada's gun was material in obtaining his conviction.
False testimony becomes material when "there is `any reasonable likelihood that [it] could have affected the jury.'" Id. at 1465-66 (citing United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3382, 87 L.Ed.2d 481 (1985)). The standard of review applicable to the knowing use of false testimony is the harmless-error standard. See Bagley, 473 U.S. at 680 n. 9, 105 S.Ct. at 3382 n. 9. In the light of the other evidence presented at trial — particularly, Megginnson's and Alexander's wife's testimony that Tejada told them he had shot Alexander — Ortiz's testimony concerning the exact caliber of the gun seems to be immaterial. No reasonable likelihood exists that Ortiz's testimony could have affected the jury's verdict.
2. Material Discovery Violation
Tejada contends that the prosecution's material discovery violation — its failure to disclose that Gail Megginnson was arrested the day before the start of trial — warrants habeas relief. The government argues, and the state trial court agreed, that these claims are procedurally defaulted because Tejada failed to raise the issue on direct review.
Id. at 262, 109 S.Ct. at 1043. After oral argument in the instant case, the Supreme Court in Ylst v. Nunnemaker, ___ U.S. ___, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), held that "where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground." Nunnemaker, ___ U.S. at ___, 111 S.Ct. at 2591-92.
We have long recognized that "[a] state court is entitled to express its views on federal constitutional issues without waiving its procedural default rules." Pelmer v. White, 877 F.2d 1518, 1520 (11th Cir.1989) (quoting Hall v. Wainwright, 733 F.2d 766, 777 (11th Cir.1984)); see also Harris, 489 U.S. at 264 n. 10, 109 S.Ct. 1044 n. 10 (state court can reach merits of federal claim in alternative holding). Thus, we must consider whether the state trial court's statement disposing of Tejada's claim meets the test of the "plain statement" rule; if so, we are barred from reviewing the merits of his claim, absent cause and prejudice.
We decline to remand this claim to the district court to determine whether Tejada can establish cause for and prejudice from his procedural default because we have discovered no prejudice. The alleged discovery violation was harmless; therefore, even if Tejada could show cause for his procedural default, he can show no prejudice from the constitutional error because he would not be entitled to relief. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (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 punishment." A Brady violation, thus, occurs where (1) the prosecution suppresses evidence; (2) the evidence is favorable to the defendant; and (3) the evidence is material to the issues at trial. See Stano v. Dugger, 901 F.2d 898, 899 (11th Cir.1990) (en banc). The Supreme Court has stated that
Bagley, 473 U.S. at 682, 105 S.Ct. at 3383; see also Francis v. Dugger, 697 F.Supp. 472, 477 (S.D.Fla.1988) ("[T]here must be a reasonable likelihood that the testimony could have affected the judgment of the jury."), aff'd, 908 F.2d 696 (11th Cir.1990).
Having reviewed the testimony in this case, particularly Megginnson's examination and cross-examination, we conclude that the nondisclosure of the information that Megginnson was arrested on a probation-violation warrant the day before Tejada's trial was to begin is immaterial because there is no reasonable probability that disclosure of the arrest would have changed the result of the proceeding. See Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. The jury was fully acquainted with what the state trial court in the post-conviction relief proceeding described as Megginnson's "somewhat checkered past": Megginnson testified on direct examination and cross-examination that she had pleaded guilty to grand theft (for the theft of Alexander's car) and, further, that she was testifying
B. Denial of Evidentiary Hearing on Ineffective Assistance of Counsel Claims
Tejada contends that his defense counsel rendered ineffective assistance and that the district court should have, at the very least, granted him an evidentiary hearing on his ineffective assistance of counsel claims.
A petitioner is entitled to an evidentiary hearing if he alleges facts which, if true, would warrant habeas relief. Stano v. Dugger, 901 F.2d 898, 899 (11th Cir.1990) (en banc); see also Futch v. Dugger, 874 F.2d 1483, 1485 (11th Cir.1989) (evidentiary hearing warranted if material facts not adequately developed in district court or state habeas proceeding); Agan v. Dugger, 835 F.2d 1337, 1338 (11th Cir.1987). A petitioner is not entitled to an evidentiary hearing, however, "when his claims are merely `conclusory allegations unsupported by specifics' or `contentions that in the face of the record are wholly incredible.'" Stano, 901 F.2d at 899; see also Diaz v. United States, 930 F.2d 832, 834 (11th Cir.1991) (evidentiary hearing need not be conducted "if it can be conclusively determined from the record that the petitioner was not denied effective assistance of counsel"). In addition, when considering whether an evidentiary hearing should be held on habeas claims based on occurrences outside the record, "no hearing is required if the allegations `viewed against the record, either fail to state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.'" Shah v. United States, 878 F.2d 1156, 1158 (9th Cir.1989) (habeas case of federal prisoner) (quoting Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985)).
To be granted an evidentiary hearing on his claims of ineffective assistance of counsel, Tejada needed to make allegations which, if true, would entitle him to relief. He has failed to do so. After considering Tejada's claims and reviewing the state trial court record, the post-conviction relief proceedings and the district court record, we conclude that Tejada received "reasonably effective assistance of counsel." See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In so doing, we adopt with approval the findings of the district court on Tejada's failure to demonstrate that his counsel was ineffective based upon Strickland 's two-pronged test. See Id. at 687, 104 S.Ct. at 2064. We also conclude that, because the evidence against Tejada is overwhelming, Tejada has not demonstrated that the
C. Claims of State Law Violations
Tejada contends that the district court erred in denying him habeas relief based on certain violations of Florida laws or rules that occurred during his trial: (1) denial of a motion to depose a juror; (2) admission of extrinsic offense evidence; (3) admission of a coconspirator's hearsay statement; and (4) deficient jury instructions on conspiracy and judicial comments on the evidence of conspiracy. We disagree.
Questions of state law rarely raise issues of federal constitutional significance, because "[a] state's interpretation of its own laws provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved." Carrizales v. Wainwright, 699 F.2d 1053, 1053-54 (11th Cir.1983) (citations omitted). We review questions of state law in federal habeas proceedings only to determine whether the alleged errors were so critical or important to the outcome of the trial to render "the entire trial fundamentally unfair." Id. at 1054 (defective jury charge raises issue of constitutional dimension "only if it renders the entire trial fundamentally unfair"); see also Futch v. Dugger, 874 F.2d at 1487 (improperly admitted evidence "must be inflammatory or gruesome, and so critical that its introduction denied petitioner a fundamentally fair trial"). "[T]he established standard of fundamental fairness [when reviewing state evidentiary rulings] is that habeas relief will be granted only if the state trial error was `material in the sense of a crucial, critical, highly significant factor.'" Shaw v. Boney, 695 F.2d 528, 530 (11th Cir.1983) (quoting Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.1976)). Based on these standards, we now address Tejada's claims.
1. Denial of Motion to Depose Juror
In the course of post-trial proceedings, the trial court denied Tejada's motion to depose juror Rhonda Pew who was quoted in a newspaper article as stating that, "A couple of us thought we would save his neck. Then it started to look hopeless." Defense counsel argued, in the context of suggesting juror misconduct requiring Pew's deposition, that this quote implied that jurors discussed the case before jury deliberations were properly to begin because Pew did not participate in deliberations.
Construing Tejada's pro se petition liberally, we read Tejada's claim as one of juror misconduct. While this claim implicates federal constitutional concern for an impartial jury, we have stated in more factually compelling circumstances that the trial court "has discretion to determine whether evidence of premature deliberation warrants an evidentiary hearing." See United States v. Cuthel, 903 F.2d 1381, 1382 (11th Cir.1990) (affirming federal district court's denial of post-trial investigation of preliminary deliberation where defendant received note from juror stating "we were pressured into making our decision");
Taking this federal practice as the limit of what is required by federal constitutional concerns for an impartial jury, we conclude that Tejada has stated no claim for habeas relief. He has failed to demonstrate specifically and without speculation that jury impropriety has occurred; more important, he has failed to demonstrate, or even to allege, the presence of extraneous information or outside influence.
2. Admission of Extrinsic Offense Evidence
Tejada says that the district court erred in not finding that his trial was made fundamentally unfair by the state trial court's admission of extrinsic offense that Tejada had once put a pillowcase over Megginnson's head, tied her up and threatened to kill her. Ortiz and Megginnson testified about the event and indicated that Tejada did it because his gun was missing and he thought Megginnson might have taken it.
3. Coconspirator Hearsay Testimony
Tejada argues that his trial was made fundamentally unfair by the admission of coconspirator Frank's hearsay statements to Alexander's wife that he and Tejada had been paid to do the job — implying a contract killing — and that they had shot Alexander between the eyes. Under Florida law, a coconspirator's hearsay statement is admissible if the statement was made "during the course, and in furtherance, of the conspiracy." Fla.Stat. § 90.803(18)(e). Tejada contends that these hearsay statements were improperly admitted because they were not made during the course of the conspiracy: at the time the statements were made, Alexander had already been killed, and the conspiracy to kill him had ended. The conspiracy, however, encompassed two objects: to kill Alexander and to burglarize Alexander's house. Frank made his statements to Alexander's wife after Alexander was shot but before the burglary was consummated. The conspiracy was clearly not complete when the statements were made, and, thus, the statements were properly admitted. Even if the statements were improperly admitted, we are not persuaded that, given all the evidence the state presented against Tejada, the admission of the statements of Tejada's coconspirator rendered the entire trial fundamentally unfair.
4. Deficient Jury Instructions and Court's Comment on Conspiracy Evidence
Tejada also contends that the trial court's allegedly deficient jury instructions on conspiracy and the admission of the coconspirator's statements, as well as the court's comments on the evidence of conspiracy, rendered the trial fundamentally unfair.
We also disagree with Tejada's contention that the court's statement that it believed the State had other independent evidence of the conspiracy rendered the trial fundamentally unfair. The court's statement was anticipatory: it merely explained to the jury that the independent evidence of conspiracy had not yet been introduced and that the coconspirator's hearsay statement had been admitted because the State indicated that it had such independent evidence that it would present later. The court's statement that it would take action if the State failed to present the independent evidence of conspiracy reinforces that message. We also note that the trial court, immediately before dismissing the jury to deliberate, instructed them that nothing it had said in the course of the trial should be considered any intimation as to the verdict they should deliver.
D. The Voluntariness of Tejada's Confession
Tejada argues that his sworn, tape-recorded statement was involuntary and, as such, should have been suppressed by the trial court. The State responds that the statement was voluntary and was properly admitted into evidence. We agree with the State.
The district court's denial of habeas corpus relief is AFFIRMED.
894 F.2d at 1274.
Tejada contends the court improperly expressed its opinion of the evidence in the emphasized text.