Federal habeas petition denied for a Florida death penalty defendant who claimed Constitutional violations of at his trial and sentencing.

Consalvo v. Secretary for Dept. of Corrections is a federal habeas case arising from a death sentence imposed by a Florida state court for burglary and first-degree murder convictions. After the Florida Supreme Court affirmed Consalvo’s conviction and sentence and denied post conviction relief, Consalvo petitioned the federal district court for habeas corpus relief that was denied. This appeal ensued.

The defendant was convicted of armed burglary and murder of his neighbor, who prior to her death, had been pursuing charges against Consalvo for the theft of money from her car. The victim was stabbed following a break in and video recordings showed Consalvo using her ATM card and driving a car similar to the victim’s. According to an inmate who testified at trial, Consalvo made self incriminating statements while in jail. Consalvo claimed in his post conviction motion in the state court that the witnesses recanted their testimony. Consalvo also argued the state attorney violated Brady by withholding exculpatory evidence. He claimed the state did not disclose the identity of the informant in the jail and that the state attorneys purposely placed the informant with Consalvo and supplied him with information about the case to recruit him to act as the state’s agent. Consalvo also claimed the jailhouse witness received favorable treatment and leniency in exchange for his testimony. The state rebutted by presenting testimony from the assistant state attorneys involved in the case who denied ever having met the witness and who denied giving any promises of leniency in exchange for his testimony. The state court found the witness’s recantation testimony was incredible. Instead the state court credited the testimony of state attorneys who refuted the testimony of the recanting witnesses.

The petitioner also claimed his sentencing judge erred in relying on the deposition testimony of a witness that was not presented in open court at the guilt or the penalty phase, relying on Gardner v. Florida, 97 S.Ct. 1197 (1977), where the Supreme Court found a defendant was denied due process of law when a capital sentence was imposed partly on the basis of confidential information in a pre-sentence report which had not been disclosed to the defendant.

In his appeal from the habeas petition the defendant raised two issues: (1) whether the state supreme court unreasonable applied federal law in affirming the trial court’s rejection of Consalvo’s Brady argument; and (2) whether the state supreme court unreasonably applied clearly established federal law in rejecting Consalvo’s claim that reference to evidence during sentencing that was not presented in open court violated his constitutional rights as recognized by Gardner.

The Brady and Giglio claims turned on the credibility of the witnesses at the post-convictions hearing recantations or the rebuttal testimony of the assistant state attorneys. The credibility of the witnesses is the province and function of the state courts and not the federal courts on a habeas review. The state courts did not believe the recantations nor did the state courts find any Brady or Giglio evidence withheld so the challenge was rejected.

As for the Gardner challenge, the 11th Circuit upheld the state supreme court’s finding that the information cited by the sentencing court came from deposition testimony that was available to all parties and reviewed the and any reference was harmless error.