Appellant Sonny Boy Oats ("Oats"), a prisoner awaiting execution on Florida's death row, appeals from the district court's denial of his petition for a writ of habeas corpus. For the reasons stated below, we affirm the district court's decision to deny the writ.¹

On December 20, 1979, Jeanette Dyer, the cashier at a convenience store near Ocala, Florida, was killed during a robbery of the store. The cause of her death was a single bullet fired from approximately one foot away that penetrated her right eye and her brain.

On December 24, 1979, a police officer observed an automobile with two suspicious looking occupants in the vicinity of another convenience store in Ocala. As the officer approached the car, it sped away at a high rate of speed. The officer gave chase. The fleeing car soon crashed and the occupants dispersed. Shortly thereafter, Donnie Williams was arrested as a suspect in the high-speed chase, transported to the Marion County Jail, and gave a statement to the police implicating the appellant Sonny Boy Oats in the murder of Jeanette Dyer. Subsequently, Oats was arrested as a suspect in the high-speed chase and given Miranda warnings. During the interview that followed, Oats admitted his involvement in the chase and stated he had thrown his firearm away during the chase. The firearm was later discovered on the roadside near the location described by Oats.

In his interview with the police, Oats also admitted his involvement in an ABC liquor store robbery and shooting that had occurred on December 19, 1979,² one day prior to the robbery and murder of Jeanette Dyer. On December 28, 1979,³ during a tape recorded interview, Oats again confessed to the ABC liquor store robbery and shooting, and also admitted robbing and killing Jeanette Dyer on December 20. Ballistics tests conducted on the gun recovered from the roadside established that it was the same weapon used in both the ABC liquor store and Jeanette Dyer shootings.

Oats was indicted on two counts of robbery and first degree murder, arising out of the killing of Jeanette Dyer on December 20, 1979. Oats was also charged separately in another case for the robbery and attempted murder at the ABC liquor store that occurred on December 19, 1979. During February and March of 1980, Oats was examined, at the request of trial counsel, by three separate psychiatrists, Drs. Frank Carrera, Rafael Gonzalez, and Fausto Natal, all of whom reported to the court and to Oats' counsel that Oats was sane at the time of the offenses and competent to stand trial.⁴

In early June 1980, Oats was tried in a separate proceeding for the ABC liquor store robbery and shooting and was convicted of robbery with a firearm and attempted murder in the first degree.⁵ On June 14, 1980, Oats escaped from the Marion County Jail. He was recaptured approximately six months later in Texas, and was returned to Florida for trial in the instant capital case.⁶

On February 6, 1981, the jury in the instant case found Oats guilty of first degree murder and robbery with a firearm. After hearing the evidence relevant to sentencing, the same jury rendered an advisory sentence of death. On February 10, the trial judge followed the jury's recommendation and imposed the death sentence for the murder charge and ninety-nine years imprisonment for the robbery charge.

In Oats' direct appeal of his conviction and sentence,⁷ the Florida Supreme Court affirmed Oats' conviction, but remanded for resentencing and a reweighing of the aggravating circumstances by the trial judge because the trial judge erred in his original determination of three of the aggravating circumstances. Oats v. State, 446 So.2d 90, 95 (Fla.1984). On April 26, 1984, following the remand from the Florida Supreme Court, the state trial court conducted another sentencing hearing. At the resentencing hearing, Oats' attorney objected to the resentencing and made a motion seeking the appointment of experts to determine Oats' sanity and competence. The trial judge denied this motion based on the judge's observations of Oats' demeanor at that time and during prior proceedings. The trial judge then reweighed the valid aggravating circumstances against the single mitigating circumstance and reimposed the death penalty, which was affirmed by the Florida Supreme Court.⁸ See Oats v. State, 472 So.2d 1143 (Fla.1985), cert. denied, 474 U.S. 865, 106 S.Ct. 188, 88 L.Ed.2d 157 (1985).

On October 7, 1987, Oats filed a motion for post-conviction relief in the state trial court pursuant to Fla. R. Crim. P. 3.850, and in May 1989, filed an original petition for a writ of habeas corpus in the Florida Supreme Court. Following the signing of a death warrant by the Governor in 1989, the state trial court granted a stay of execution and subsequently conducted an evidentiary hearing on Oats' Rule 3.850 motion. This Rule 3.850 hearing lasted eleven days over a period from February 19 to June 5, 1990, and primarily concerned whether Oats' trial counsel were constitutionally deficient in their representation of Oats. The state trial court denied Oats' Rule 3.850 petition in November 1990. The Florida Supreme Court affirmed the trial court's denial of Oats' Rule 3.850 motion and denied Oats' original state habeas corpus petition in Oats v. Dugger, 638 So.2d 20 (Fla.1994), cert. denied, 513 U.S. 1087, 115 S.Ct. 744, 130 L.Ed.2d 645 (1995). Oats then filed the instant federal habeas action pursuant to 28 U.S.C. § 2254. The district court denied Oats' petition without holding an evidentiary hearing.

A. The Ineffective Assistance of Counsel Claims

The law regarding collateral review of ineffective assistance of counsel claims under the Sixth Amendment is well settled. In order to obtain habeas corpus relief with respect to a conviction or a death sentence based on ineffective assistance of counsel, the defendant must show both (1) that the identified acts or omissions of counsel were deficient, or outside the range of professionally competent assistance, and (2) that counsel's deficient performance prejudiced the defense such that, but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See also Bolender v. Singletary, 16 F.3d 1547, 1556 (11th Cir.1994). When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. Furthermore, we note that under the rules and presumptions set down in Strickland and its progeny, " 'the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.' " Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir.1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.1994)).

Oats alleges that he was deprived of his Sixth Amendment right to the effective assistance of counsel in a variety of ways throughout his defense of the criminal proceeding in state court. The primary focus of Oats' ineffective assistance of counsel claims is his assertion that, at all material times in this case, he was mentally retarded with organic brain damage, complicated by both physical and psychological abuse as a child and by his own abuse of alcohol and other substances. Oats claims that his attorneys failed to adequately and fully present evidence of his mental deficiencies at numerous proceedings in the state trial court.

The record reveals that, during the pendency of the case in state court, a minimum of eight different mental health experts testified and/or issued reports concerning Oats' mental capacity. In February and March, 1980, during the pretrial stages of the ABC liquor store case and the instant capital case, Oats was examined separately by three different court-appointed psychiatrists, Drs. Frank Carrera, Rafael Gonzalez, and Fausto Natal. The examinations by these court-appointed psychiatrists were performed prior to the ABC liquor store case at the request of Oats' trial counsel.⁹ All three psychiatrists reported then that Oats was mentally competent at the time of the offenses and was mentally competent to stand trial.¹⁰

The remaining experts became involved in the case during the 1990 post-conviction Rule 3.850 hearings before the state trial court. At this time, defense experts Drs. Robert Phillips and Joyce Carbonell testified, and Dr. Harry Krop issued a report concluding that Oats was mentally retarded with organic brain damage.¹¹ They also opined that Oats was incompetent to stand trial in 1980,¹² incompetent at resentencing in 1984, and incapable of knowingly waiving his Miranda rights at the time of his confessions. However, the conclusions reached by the defense experts were challenged by Drs. Charles Mutter and Leonard Haber, who testified on behalf of the State at the Rule 3.850 hearings. Drs. Mutter and Haber contradicted the defense experts concerning the degree of Oats' brain damage and the level of his intelligence,¹³ and both concluded that Oats was competent to stand trial in 1980, competent at resentencing in 1984, and capable of making a knowing and intelligent waiver of his Miranda rights.

Oats contends that his trial counsel were ineffective in failing to adequately argue that he was incompetent to stand trial and in failing to provide to the court-appointed psychiatrists, Drs. Carrera, Gonzalez, and Natal, information concerning his background and mental health history which potentially could have altered the psychiatrists' opinions concerning his competency to stand trial.¹⁴ The second prong of the Strickland test requires Oats to show that if his trial counsel had performed as he argues they should have, there is a reasonable probability that the trial judge would have determined that Oats was incompetent to stand trial. We conclude that Oats fails this prejudice prong of Strickland. After the eleven day Rule 3.850 hearings in which Oats was able to fully introduce the evidence concerning his family background, his mental health history, and the opinions of defense mental health experts, the state court judge found "no reasonable doubt about [Oats'] competency."¹⁵

The state court's finding that Oats was competent to stand trial is a factual finding entitled to a presumption of correctness, and thus will not be overturned on federal habeas review unless the state court's finding is not fairly supported by the record. See Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990) (concluding that state court's finding that defendant was competent to waive his right to pursue further post-conviction review of his claims was entitled to a presumption of correctness on federal habeas corpus review); Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983) (concluding that state court's finding of competency to stand trial was "fairly supported by the record"); United States v. Hogan, 986 F.2d 1364, 1372 (11th Cir.1993) (concluding that state court's finding of competency to stand trial is a finding of fact reviewed under a clearly erroneous standard).

We conclude that the state court's finding is fairly supported by the record. Although defense experts testified and/or issued reports opining that Oats' alleged mild mental retardation, organic brain damage, and history of substance abuse rendered him incompetent to stand trial, this evidence was contradicted by (1) the conclusions of the State's mental health experts, (2) Oats' own coherent testimony at his trial and at the pretrial suppression hearing,¹⁶ (3) Oats' confession to the police in which he was able to accurately describe details regarding the two offenses,¹⁷ and (4) the circumstances surrounding Oats' two escapes from police custody.¹⁸ See Daugherty v. Dugger, 839 F.2d 1426, 1432 (11th Cir.1988) (concluding that defendant failed prejudice prong of Strickland because expert testimony regarding defendant's alleged domination by another would have been subject to rebuttal by defendant's prior contradictory statements).

In denying Oats' Rule 3.850 motion for post-conviction relief, the state court found that "the ultimate conclusions of the [defense] experts are positively refuted by the record, including the Defendant's conduct prior to, during, and subsequent to the criminal episodes and throughout the judicial proceedings." Order Denying Rule 3.850 Relief, at 5 (November 21, 1990). The state court's finding that Oats was competent to stand trial is amply supported by the evidence. Thus, we conclude that Oats fails to satisfy the prejudice requirement of Strickland, and we reject this aspect of his ineffective assistance of counsel claim.¹⁹

2. Oats' Capacity to Validly Waive His Miranda Rights

Oats also contends that his trial counsel were ineffective in failing to argue that his confessions should be suppressed because he lacked the capacity to waive his Miranda rights. Oats' trial counsel filed a motion to suppress Oats' confessions to the ABC liquor store robbery-attempted murder and Jeanette Dyer robbery-murder based on the contention that his confessions were involuntary because of wrongful inducements made to him during his interrogation by the examining officers. Oats' trial counsel vigorously argued this wrongful inducement theory at the suppression hearing, but it was ultimately rejected by the state trial court. Oats contends that, rather than or in addition to arguing this "wrongful inducement" theory, his trial counsel should have found mental health experts to testify that he did not have the mental capacity to understand and knowingly waive his Miranda rights.²⁰ We reject this aspect of Oats' ineffective assistance of counsel argument because Oats is unable to demonstrate that if expert testimony had been offered at the suppression hearing, the trial judge probably would have found that Oats' Miranda waiver was ineffective.

The trial judge denied Oats' motion to suppress after (1) hearing the testimony of the interrogating officers concerning their observations of Oats at the time of his confessions,²¹ (2) listening to a recording of Oats' statements during one of the police interviews, and (3) personally observing Oats during his testimony at the suppression hearing.²² In light of this evidence actually introduced at the suppression hearing, and in light of the evidence adduced in the 1990 Rule 3.850 hearing and the state court's findings in that regard, we cannot conclude that the trial judge probably would have ruled differently on Oats' motion to suppress if Oats' trial counsel had presented expert testimony concerning Oats' ability to knowingly waive his Miranda rights.²³ Therefore, Oats fails the prejudice prong of Strickland.²⁴

Oats contends that his trial counsel were ineffective in failing to adequately prepare for the penalty phase of trial. Specifically, Oats argues that his trial counsel (1) failed to ask Dr. Carrera, the only mental expert who testified during the penalty phase, to address the existence of statutory and non-statutory mitigating circumstances, (2) failed to call any other mental experts to testify as to his alleged mental retardation and incompetence, or to testify as to the existence of mitigating circumstances, and (3) failed to call numerous relatives who could have testified regarding his abusive childhood and supported a finding of mitigating circumstances.²⁵

Oats contends that if his trial counsel had adequately prepared for the penalty phase, he would have been able to prove the statutory mitigating circumstances of extreme mental or emotional disturbance, lack of capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of the law, and substantial domination by others.²⁶

We reject this aspect of Oats' ineffective assistance of counsel argument because he is unable to satisfy the prejudice prong of Strickland. First, a great deal of evidence regarding potential mitigating circumstances was introduced during the penalty phase, and apparently rejected by the jury and the judge. The record reveals that Dr. Carrera testified at length about the mistreatment that Oats suffered at the hands of his aunt during his abusive childhood, the emotional and impulse disorders that Oats developed as a result of his upbringing, and Oats' history of alcohol and substance abuse.

Dr. Carrera also testified regarding his conclusion that Oats was functioning at either the "very low average range or possibly the upper part of the borderline range of intelligence" and at a seventh-grade level in terms of classroom information. Furthermore, four relatives testified at the penalty phase regarding Oats' mistreatment as a child, the head injury he suffered during childhood as a result of his aunt's mistreatment, and his frequent headaches and strange behavior. Following this testimony, trial counsel argued in closing summation that Oats should not receive the death penalty because he functioned at a "borderline level," that the mitigating circumstance of age applied, that Oats was under an extreme mental or emotional disturbance at the time of the offense, and that Oats was unable to appreciate the criminality of his conduct.

With regard to Oats' contention that his trial counsel should have called other experts, such as Drs. Phillips and Carbonell, to testify as to his mental retardation and brain damage and the existence of mitigating circumstances, we note that the state court, after the eleven day Rule 3.850 hearing, rejected this argument based on its finding that

the factual bases upon which these experts posit their opinion are not believable and are not supported by such objective evidence as to suggest a reasonable possibility that the jury's recommendation and therefore the sentence would have been different. Moreover, the ultimate conclusions of the experts are positively refuted by the record, including the Defendant's conduct prior to, during, and subsequent to the criminal episodes and throughout the judicial proceedings.

Order Denying 3.850 Relief, at 5 (November 21, 1990). These state court findings of fact are entitled to deference, see Strickland, 466 U.S. at 698, 104 S.Ct. at 2070 (stating that state court findings of fact made in the course of deciding an ineffective assistance of counsel claim are subject to the deference requirement of § 2254(d)). Our review of the record of the Rule 3.850 proceeding persuades us that these factual findings are fairly supported by the record. The state court's finding of fact discrediting the factual bases of the defense mental health experts has support in the record and undermines the opinions of these experts. Moreover, if Oats had sought to call Drs. Carbonell and Phillips to testify regarding his mental functioning and brain damage, the State could have called Drs. Mutter and Haber to contradict these conclusions.²⁷

Also, the potential testimony of the defense mental health experts regarding the existence of mitigating circumstances could have been rebutted by the State. Drs. Mutter and Haber concluded that Oats was not under the influence of an extreme mental or emotional disturbance at the time of the offense, and had the capacity to conform his conduct to the requirements of the law. Drs. Mutter and Haber also testified that Oats' conduct during the offense and its aftermath, his detailed confession, his conduct during his two escapes, and his conduct during the litigation proceedings were inconsistent with the picture of Oats painted by the defense experts.

In light of the foregoing, in light of the fact that the substance of Oats' mental deficiencies and abusive childhood were presented to the jury, and in light of the four strong aggravating circumstances found by the sentencing judge on remand,²⁸ we conclude that there is no reasonable probability that the jury would have returned a life sentence. Thus, Oats has failed to satisfy the prejudice prong of Strickland. See Daugherty v. Dugger, 839 F.2d 1426, 1432 (11th Cir.1988) (concluding that "given the severity of the aggravating circumstances in this case, we cannot conclude that the absence of psychiatric testimony in the sentencing phase creates a reasonable probability that the jury would have recommended life").²⁹

As previously noted, the Florida Supreme Court affirmed Oats' conviction but found error in the sentence and remanded to the state trial court for resentencing. Oats v. State, 446 So.2d 90, 95-96 (Fla.1984). When the case returned to the trial court in 1984, Oats' trial counsel filed a series of motions including a motion seeking the appointment of three mental health experts pursuant to Florida Rule of Criminal Procedure 3.740 (1984) entitled "Procedure When Insanity Is Alleged as Cause for Not Pronouncing Sentence." Rule 3.740 at that time³⁰ provided that "if the court has reasonable ground to believe that the defendant is insane, it shall ... immediately fix a time for a hearing ... [and] may appoint not exceeding three disinterested qualified experts to examine the defendant and testify at the hearing as to his mental condition." The trial court conducted a hearing on the motion for the purpose of determining whether experts should be appointed and whether a further hearing should be scheduled in accordance with Rule 3.740.

During that hearing, Oats' counsel recounted at length the history of the case and Oats' deprived background, represented to the court their belief that Oats lacked the mental capacity to proceed with a sentencing hearing, and invited the trial judge to personally question Oats concerning his understanding of the resentencing proceedings. Oats then testified and was examined by his counsel and cross-examined by the prosecution about his understanding of the impending resentencing hearing. At the conclusion of Oats' testimony, the trial judge denied the motion and proceeded with the resentencing hearing based on the judge's finding that there were no reasonable grounds to believe that Oats was insane and unable to proceed in the resentencing.

Oats appealed the trial court's refusal to appoint a panel of experts to determine his sanity at resentencing and the Florida Supreme Court affirmed. Oats v. State, 472 So.2d 1143, 1144 (Fla.1985). The court concluded that the trial judge did not abuse his discretion in denying Oats' Rule 3.740 motion and concluded that the clear language of Rule 3.740 required the sentencing court to find reasonable grounds for believing that a defendant is insane as a precondition to the appointment of experts and the scheduling of a further hearing. Id.

In discussing Rule 3.740, the court contrasted the language of Rule 3.740 with the language of Rule 3.210 (Competency to Stand Trial) and Rule 3.216 (Insanity at the Time of the Offense) as they then existed,³¹ and emphasized that the appointment of experts under those rules, which applied to earlier stages of criminal proceedings, was automatically triggered by the mere filing of a motion by defense counsel, whereas Rule 3.740, specifically applicable to sentencing, required a prior judicial determination of reasonable grounds. The court concluded, therefore, that under Rule 3.740, unlike the other rules, an assertion of incompetency by defense counsel was not sufficient, standing alone, to mandate appointment of mental health experts and a hearing on competency. Id.

In this appeal, Oats contends that he received ineffective assistance of trial counsel because his trial counsel filed the resentencing motion under the "wrong rule." Oats argues that if his trial counsel had sought a competency evaluation under Florida Rules 3.210 or 3.216, the appointment of experts at resentencing would have been mandatory. We reject this argument as without merit because Oats' trial counsel filed the motion under the right rule as the rules existed at that time.³² Under the clear language of the rules, Rule 3.740 applied to claims of insanity and/or incompetence at sentencing, while Rules 3.210 and 3.216 applied to earlier stages of criminal proceedings.³³

Oats also claims that his procedural due process rights were violated under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), because the judge at his resentencing failed to conduct a sua sponte competency hearing despite information raising a bona fide doubt as to his competency.³⁴ We reject this argument as without merit. As noted above, Oats' counsel made a motion objecting to resentencing on the grounds that Oats was insane and asked the judge to inquire of Oats whether he understood the nature of the resentencing proceedings, and as a result, Oats testified at the hearing.

Having observed Oats' demeanor at both the resentencing hearing and during the prior litigation of the case, and having reviewed the prior reports of court-appointed mental health experts, the judge found that there was no reasonable basis to believe that Oats was insane and unable to proceed in the resentencing. After reviewing the record, we conclude that there was no evidence before the trial judge at resentencing that would raise a bona fide doubt as to Oats' competency, and thus the court did not have a sua sponte duty to hold a competency hearing under Pate.

B. Whether Oats Was Entitled to a New Advisory Jury at Resentencing

In Oats v. State, 446 So.2d 90, 95-96 (Fla.1984), the Florida Supreme Court affirmed Oats' conviction, but set aside his death sentence and remanded for "entry of a new sentencing order" because the trial court erred in its determination of three of the aggravating circumstances.³⁵ Following remand, Oats' counsel moved for the court to impanel a new jury for resentencing. The court denied the motion, and the Florida Supreme Court affirmed this denial based on its conclusion in the original appeal that " '[b]ecause a new jury would be considering essentially the same evidence as was presented to the original jury, we find no reason to resubmit the evidence to a jury.' " Oats v. State, 472 So.2d 1143, 1145 (Fla.1985) (quoting Oats v. State, 446 So.2d 90, 95 (Fla.1984)).

Oats claims that he was entitled to have a new penalty phase jury impaneled upon remand for reweighing of the aggravating and mitigating circumstances. We reject this argument because the errors that occurred at the original sentencing proceeding did not affect the jury's recommendation. See Funchess v. Wainwright, 772 F.2d 683, 692-93 (11th Cir.1985) (concluding a new advisory jury was not required on remand because the initial proceeding was free from serious error); Proffitt v. Wainwright, 756 F.2d 1500, 1503 (11th Cir.1985) (same). First, we emphasize that there was no error found in either the trial court's evidentiary rulings or in its definitional instructions to the jury regarding aggravating and mitigating circumstances. See Menendez v. State, 368 So.2d 1278, 1282 (Fla.1979) (concluding that it was not essential for a new jury to be convened on remand for resentencing because the defendant had not demonstrated any error in the instructions given to the jury or the evidence it considered in making its recommendation).³⁶

Oats contends that "erroneous information" about the ABC liquor store crimes was presented to the original jury because the jury heard evidence that Oats was convicted of attempted first degree murder and robbery in the ABC liquor store case, but the convictions were subsequently reversed and Oats was convicted of attempted second degree murder and robbery after a retrial.³⁷ We disagree. Second degree attempted murder and robbery are prior violent felony convictions and thus supported the aggravating circumstance that Oats was previously convicted of a "felony involving the use or threat of violence to the person." See Fla. Stat. § 921.141(5)(b). Furthermore, the same underlying facts presented to the jury regarding the ABC liquor store case supported both Oats' original conviction and his conviction after retrial in that case.³⁸ Therefore, we agree with the Florida Supreme Court that a new jury would be considering essentially the same evidence as was presented to the original jury. We reject Oats' argument that a new advisory jury should have been impaneled for resentencing.

30

For the foregoing reasons, we affirm the district court's order denying Oats' petition for a writ of habeas corpus.

31

AFFIRMED.³⁹

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1

Oats' petition for writ of habeas corpus was filed before April 24, 1996, the effective date 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, --- U.S. ----, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997); see also Neelley v. Nagle, 138 F.3d 917, 921 (11th Cir.1998); Hardwick v. Singletary, 122 F.3d 935, 936 (11th Cir.1997), vacated in part on reconsideration, 126 F.3d 1312 (11th Cir.1997)