Breedlove v. Moore (74 F. Supp. 2d 1226, 1999)

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

GOLD, District Judge.

This case is before the court on McAr-thur Breedlove’s Petition for Writ of Ha-beas Corpus filed pursuant to 28 U.S.C. section 2254. Breedlove was convicted in the Circuit Court for Dade County of first-degree murder, burglary, grand theft and petit theft, and sentenced to death. In the petition for writ of habeas corpus, Breed-love raises thirteen claims of error. The court has analyzed each claim utilizing the procedure set forth in Neelley v. Nagle, 138 F.3d 917 (11th Cir.1998).

I. PROCEDURAL HISTORY

The charges in this case arose from the burglary of a Miami residence during the early morning hours of November 6, 1978, and the murder of one of the occupants of the house, Frank Budnick The jury acquitted McArthur Breedlove of the attempted murder of the second occupant of the house, Carol Meoni, but it convicted him of first-degree felony murder and the underlying felony of burglary, and recommended a death sentence. Following the jury’s recommendation, the trial judge sentenced Mr. Breedlove to death based on three aggravating factors: (1) prior convictions for violence; (2) the homicide was committed during a robbery; and (3) the homicide was especially heinous or cruel. The Florida Supreme Court affirmed the conviction and sentence on appeal. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982)(Breedlove I). On November 30, 1982, Breedlove filed his first Rule 3.850 motion for post-conviction relief which raised two issues: (1) the denial of defendant’s right to be present during a critical stage of the trial; and (2) the state’s alleged suppression of exculpatory impeachment evidence. The trial court found that the first issue had been withdrawn in 1989, and the second issue was not persuasive because the state did not have knowledge of the officers’ misconduct or, even if it did, the evidence was inadmissible and immaterial. The Supreme Court of Florida affirmed the trial court’s ruling. Breed-love v. State, 580 So.2d 605 (F\&.1991)(Breedlove II).

On December 18, 1991, Breedlove filed a second Rule 3.850 motion for post-conviction relief. When the trial court denied that motion, Breedlove again appealed to the Florida Supreme Court. Additionally, he filed a petition for writ of habeas corpus with the Florida Supreme Court and asked for a stay of execution. The Florida Supreme Court issued an opinion on the appeal from the denial of the second motion for post conviction relief and the habeas petition. Breedlove v. Singletary, 595 So.2d 8 (Fla.1992)(Breedlove III). It found that claims 1,2,4 and 6 were procedurally barred, and rejected claims 5 and 7 for guilt-phase ineffective assistance of counsel. The Supreme Court of Florida did, however, remand the case to the trial court on a finding that Breedlove’s allegations of ineffective assistance in the penalty phase were sufficient to require an evidentiary hearing. The Supreme Court also stayed Breedlove’s pending execution.

After conducting a two-day evidentiary hearing in Dade County Circuit Court, the trial court issued an order denying relief on the penalty phase ineffective assistance of counsel claims. Breedlove appealed that decision. While that appeal was pending, the Breedlove filed a third motion for post-conviction relief based on the then recently-decided opinion of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). Breedlove argued' that under Espinosa, the jury instruction on “heinous, atrocious, and cruel” given at his trial was unconstitutionally vague. The trial judge agreed that under Espino-sa, the jury instructions were unconstitutional. It therefore vacated Breedlove’s death sentence and granted the defendant a new sentencing hearing. The state appealed. On appeal, the Supreme Court of Florida reversed and reinstated the death sentence, finding the jury instruction error harmless. State v. Breedlove, 655 So.2d 74, 77 (Fla.1995)(Breedlove IV). The Florida Supreme Court then considered Breedlove’s pending appeal from the denial of relief following the evidentiary hearing on his trial counsel’s ineffectiveness at the penalty phase of his trial. The court affirmed the trial court’s denial of relief. Breedlove v. State, 692 So.2d 874 (Fla.1997)(Breedlove V). Rehearing was denied on April 28,1997.

II. INITIAL CONSIDERATIONS

Breedlove’s petition for habeas corpus raises thirteen claims. Prior to addressing these claims, however, the court must determine several preliminary matters including petitioner’s assertion that the case is not governed by the AEDPA, the state’s argument that the petition is untimely, the appropriate standard of review under the AEDPA, and the circumstances under which an evidentiary hearing is required under the AEDPA.

A. Whether the AEDPA applies to Breedlove’s Petition.

Breedlove argues that the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) should not apply to this proceeding because the crimes for which he was convicted were committed prior to the enactment date of the AEDPA. The court is not persuaded by this argument. Petitions for writ of habeas corpus filed after the effective date of the AEDPA are governed by the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997)(new provisions of chapter 153 apply to habeas petitions filed after the effective date of the Act). It is irrelevant that the crimes were committed before the law was enacted. See Neelley v. Nagle, 138 F.3d 917, 921-22 (11th Cir.1998)(rejecting petitioner’s claim that AEDPA is unconstitutional ex-post facto law and holding that AEDPA constitutionally may be applied to habeas cases filed after AEDPA’s effective date). Breedlove’s petition for federal writ of habeas corpus was filed on April 28, 1998. The AEDPA was signed into law on April 24, 1996. Accordingly, Breedlove’s habeas petition was filed after the effective date of the AEDPA and therefore is governed by the new standards for federal habeas corpus as amended by the AEDPA.

B. Timeliness of the Petition.

Among the new provisions imposed by the AEDPA is subsection (d) to 28 U.S.C. § 2244 which provides a one-year limitations period for filing habeas petitions. Subsection (d)(1)(A) states that the limitation period shall run from date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review. The time during which a properly filed application for post-conviction review is pending is not counted toward any limitations period. 28 U.S.C. § 2244(d)(2).

Breedlove’s conviction and sentence became final on November 29, 1982. He first round of post conviction claims were denied by Florida Supreme Court on June 25, 1991. Five months and 23 days passed before Breedlove filed his second round of post conviction and habeas claims. The Florida Supreme Court denied relief on April 28, 1997. On April 28, 1998, Breed-love filed this petition. The state argues that the petition is untimely. According to the state, Breedlove should have subtracted from the one-year period the five months and 23 day period of time for which no post-conviction relief was pending. If that period is subtracted out, the petition was due on during the first week of November 1997.

In response to the state’s assertion, Breedlove argues, persuasively, that Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209 (11th Cir.1998), negates the state’s claim that the 5 month 23 day period of inactivity in 1991 should be subtracted from the one-year period of time. Wilcox clearly states that the one-year limitations period established by 28 U.S.C. § 2244(d), “[d]oes not begin to run against any state prisoner prior to the statute’s date of enactment.” Id. at 1211(quoting Goodman v. United States, 151 F.3d 1335 (11th Cir.1998)). Consequently, because the AEDPA was not enacted until April 24, 1996, the period of inactivity in 1991 should not be counted in the one-year grace period established by subsection (d). See also Gendron v. United States, 154 F.3d 672 (7th Cir.1998)(where state prisoner had properly filed postconviction petition when AEDPA was enacted, the limitations period was tolled until state supreme court denied leave to appeal; district court erred in counting an 18 month period from 1993 to 1994 between conclusion of direct appeal and filing of post-conviction proceedings). Accordingly, Breedlove’s petition, filed one year after the Florida Supreme Court’s final denial of relief, is timely.

C. Standard of Habeas Review Under § 2254(d) as Amended by the AEDPA.

Under the AEDPA, the federal courts may not grant a writ of habeas corpus on behalf of a person in state custody with respect to any claim adjudicated on the merits by the state court unless the state adjudication:

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

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

28 U.S.C. § 2254(d)(1) and (2). Addressing the meaning of these new standards in Neelley v. Nagle, 138 F.3d 917 (11th Cir.1998), the Eleventh Circuit established a three-step process for district courts to follow in evaluating a habeas petition. Step one requires the district court to “survey the legal landscape” at the time the state court adjudicated the petitioner’s claim to determine the “clearly established” Supreme Court authority that applied to the case. Id. at 923. The law is “clearly established” if United States Supreme Court precedent would compel a particular result in the case. Id.

In step two, the district court must decide whether the state court adjudication was contrary to clearly established Supreme Court case law or involved an unreasonable application of clearly established law. Id. at 923. Two examples of “contrary to” are set forth in Neelley. A state court decision is contrary to clearly established Supreme Court case law (1) when state court faces a set of facts essentially the same as those faced by Supreme Court but nonetheless reaches a different legal conclusion; and (2) when a state court fails to apply correct legal principle as set forth in Supreme Court case law. A federal court reviewing a § 2254 petition independently determines what the clearly established federal law as determined by the Supreme Court is, and may grant ha-beas relief if the state court has decided the law incorrectly. Id. at 924.

If the state court applied the proper law, in step three, the federal district court must decide whether the state court unreasonably applied clear Supreme Court precedent to the particular facts of the case. Id. “Unreasonable application” refers to mixed questions of law and fact. Where the dispute lies not in the meaning of the Constitution, but to its application to a particular set of facts, section 2254(d) restricts the grant of collateral relief. Id. citing Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir.1996). In determining whether the state court applied the proper law, the district court gives great deference to the state court’s determination and does not review the issue de novo. The district court can grant the writ “only if a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists.” Neelley, 138 F.3d at 924. Thus, this court must evaluate each of Breedlove’s claims under the Neelley analysis if the claim was addressed by the state court on the merits.

D. Evidentiary Hearing Under the AEDPA.

Before the enactment of the AEDPA, the disposition of a federal habeas petitioner’s request for an evidentiary hearing was controlled by Rule 8(a) of the Rules Governing § 2254 Cases, and by the Supreme Court’s decision in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), as modified by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992).

Rule 8(a) provides that “[i]f the petition is not dismissed at a previous stage in the proceeding,” the district court “shall determine whether an evidentiary hearing is required.” Townsend defined the circumstances in which a federal evidentiary hearing was mandatory, while emphasizing that federal courts retain discretion in many cases to grant or deny a hearing. Townsend, 372 U.S. at 312-13, 83 S.Ct. at 756. The Townsend Court held that a federal court is empowered to grant an evidentiary hearing if “an applicant for a writ of habeas corpus allege[d] facts which, if proved, would entitle him to relief.” Townsend, 372 U.S. at 312, 83 S.Ct. at 756; Beaver v. Thompson, 93 F.3d 1186, 1190 (4th Cir.1996); Poyner v. Murray, 964 F.2d 1404, 1414 (4th Cir.1992). If it was also shown that “the habeas applicant did not receive a full and fair evidentiary hearing in a state court,” Townsend, 372 U.S. at 312, 83 S.Ct. at 756, a federal evidentiary hearing was mandatory.

The AEDPA provision which governs evidentiary hearings in federal habeas corpus cases is 28 U.S.C. section 2254(e)(2). In contrast to Townsend and Keeney which limited the federal court’s discretion to deny an evidentiary hearing, the AEDPA imposes an express limitation on a federal court’s power to grant an evidentiary hearing. Cardwell v. Greene, 152 F.3d 331, 338 (4th Cir.1998); see also McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir.1998) (“Consistent with the AED-PA’s goal of streamlining the habeas process, § 2254(e)(2) specifies the situations where evidentiary hearings are allowed, not where they are required.”). Under the AEDPA, if the petitioner failed to develop the factual basis of a claim in state court, the federal court must deny him an evidentiary hearing unless the petitioner meets one of the two narrow exceptions set forth in section 2254(e)(2)(A) and (B). See Breará v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 1355, 140 L.Ed.2d 529 (1998). On the other hand, if the petitioner has not “failed to develop” the facts in state court, the federal court is not precluded from granting the petitioner an evidentiary hearing. Cardwell, 152 F.3d at 337. The circuits which have addressed the “failure to develop” language, have agreed that section 2254(e)(2) does not mean that a hearing is precluded if a habeas petitioner requested, but was denied, and evidentiary hearing by the state courts. See, e.g. McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir.1998) (holding that “a petitioner cannot be said to have ‘failed to develop’ a factual basis for his claim unless the undeveloped record is a result of his own decision or omission”); Burris v. Parke, 116 F.3d 256, 258-59 (7th Cir.1997)(“To be attributable to -a ‘failure’ under federal law the deficiency in the record must reflect something the petitioner did or omitted”).

Even if the district court finds that the petitioner diligently sought to develop the factual basis of a claim for habeas relief, but was denied the opportunity to do so by the state court, the inquiry does not stop there. The petitioner must still persuade the district court that the proffered evidence would affect the resolution of the claim. See Bolender v. Singletary, 16 F.3d 1547, 1572 at n. 9 (11th Cir.1994); Cardwell, 152 F.3d at 338. “[A] petitioner need not receive an evidentiary hearing if it would not develop material facts relevant to the constitutionality of his conviction.” McDonald, 139 F.3d at 1060 (quoting Young v. Herring, 938 F.2d 543, 560 n. 12 (5th Cir.1991)).

Breedlove argues that if the petitioner satisfies the above-stated conditions, the district court looks to the standards set forth in the pre-AEDPA case of Townsend to determine whether an evidentiary hearing is required. This is because the AED-PA did not supersede the Townsend factors; it merely established a presumption that the state court judgment is correct and therefore entitled to deference, “unless the applicant establishes one of a number of specific reasons to disregard it.” Blanco v. Singletary, 943 F.2d 1477, 1505 (11th Cir.1991). But even under Townsend, the holding of an evidentiary hearing is within the discretion of the district judge if none of the mandatory factors are met. Blanco, 943 F.2d at 1505; see also Rule 8 of the Rules Governing § 2254 Cases.

III. PETITIONER’S CLAIMS

Claim I: The Brady Violation Claim.

Breedlove’s first claim is that his constitutional rights were violated because the state withheld impeachment information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The information allegedly withheld from the defense concerned two investigating detectives to whom Breedlove gave a transcribed confession, and who later testified at Breedlove’s trial. Unbeknownst to Breedlove, Ojeda and Zatrepalek were drug users and dealers at the time they arrested Breedlove and took his confession. Breedlove argues that if he had been permitted to cross-examine these officers about their drug use and drug dealing, the jury may not have convicted him. The state responds that there was no Brady violation because the prosecution did not know about the officers’ criminal activity. No evidentiary hearing was conducted in the state court on this claim, although Breedlove requested a hearing before the circuit judge and the Florida Supreme Court. Breedlove first raised the Brady violation claim in his first post-conviction motion, filed in 1982, and deeid-ed against him by the Florida Supreme Court in 1991.

Neelley Analysis. Under the first part of the Neelley analysis, this court must survey the legal landscape at the time of the state court’s adjudication of petitioner’s claim to determine the “clearly established” Supreme Court authority that applied to the case. Neelley, 138 F.3d at 924. Here it is undisputed that the controlling Supreme Court law on this issue is Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)(“sup-pression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution”), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). As the Neelley court wrote:

Under Brady, the government may not lawfully convict a defendant if the government has suppressed material exculpatory evidence when the defense requested it. Bagley holds that evidence is material if there is a reasonable probability — that is, a probability sufficient to undermine confidence in the outcome — that the result of the proceeding would have been different had the defense had the evidence.

Id. Giglio and Bagley clarified that the Brady suppression rule extends not only to information directly exculpating the defendant, but also to impeachment evidence which could be used by a criminal defendant at trial." Giglio, 405 U.S. at 153, 92 S.Ct at 766; Bagley, 473 U.S. at 675, 105 S.Ct. at 3380.

Next, this court “must determine whether the state court adjudication was contrary to the clearly established Supreme Court case law, either because the state court failed to apply the proper Supreme Court precedent, or because the state court reached a different conclusion on substantially similar facts.” Neelley, 138 F.3d at 924. Because the facts of Brady and Bagley and Giglio are different from the facts of Breedlove’s case, the proper inquiry in this case is whether the state court failed to apply the correct legal principles to decide the case. Neelley, 138 F.3d at 923-24. The Florida Supreme Court evaluated Breedlove’s claim under a Brady analysis, see Breedlove v. State, 580 So.2d 605, 607 (1991), therefore, the Florida court applied the proper Supreme Court precedent.

The next step is to determine whether the state court unreasonably applied Brady and its progeny. A state court’s decision must stand unless it is so clearly incorrect that it would not be debatable among reasonable jurists. Neelley, 138 F.3d at 924. The Florida Supreme Court found no Brady violation, noting that “in the absence of actual suppression of evidence favorable to the accused.. .the state does not violate due process in denying discovery,” Breedlove v. State, 580 So.2d 605, 607 (Fla.1991). In Breedlove’s case there was no suppression of information because at the time of Breedlove’s trial, the prosecution lacked actual or constructive knowledge of the detectives’ criminal activities. Internal review files showed that “[t]he detectives’ personal knowledge of their criminal activities [ ] was not readily available to the prosecution.” Id. at 606-607. And the detectives were not required to disclose this information to the prosecutors because they had a right not to incriminate themselves. Id. at 607. Thus, the prosecution cannot be held to have constructive knowledge of the criminal activities.

Moreover, the Florida court held that even if the court were to assume that the prosecution had knowledge of the detectives’ activities but failed to disclose them, there would be no Brady violation because the information allegedly suppressed, was not material. Id. To constitute a Brady violation, the suppressed evidence must be material. Id. citing 373 U.S. at 87, 83 S.Ct. at 1196-97. “[Ejvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. quoting Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. In Breedlove’s trial, there was no reasonable probability that evidence of the detectives’ criminal activities would have changed the outcome because the evidence of the officers’ activities would not have been admissible. As such, the evidence was not “material.” Id. citing Delap v. State, 505 So.2d 1321 (Fla.1987). Where a state witness is merely under investigation, the witness cannot be cross-examined about the investigation if it is remote in time or, as in Breedlove’s case, totally unrelated to the underlying case so as to be irrelevant to demonstrating the witnesses’ bias, motive for testifying, or prejudice. Id. at 609. Because the detectives’ criminal activities were collateral to any issues in Breedlove’s trial, questions about the activities would not have been permissible and therefore, there is no reasonable probability that the outcome of the trial would have been different. Id. at 609. Consequently, the Florida Supreme Court found that Breedlove also failed to satisfy Brady’s materiality requirement.

Breedlove has not shown that the Florida court “unreasonably” applied Supreme Court precedent as discussed in Neelley v. Nagle. To the contrary, far from being “not debatable,” the state court’s decision is consistent with the Eleventh Circuit’s decision in Delap v. Dugger, 890 F.2d 285, 298 (11th Cir.1989) in which similar evidence of unrelated illegal activity by a police officer witness was found to be not material under the standards set forth in Bagley.

Our examination of the circumstances convinces us that the evidence concerning Brumley’s involvement in drug smuggling activities was not material under the Bagley test. Delap argues that exposure of Brumley’s illegal activities to the jury would have cast substantial doubt on his credibility. First of all, as the district court noted, it is highly questionable whether the evidence would have been admissible under Florida law. Brumley had not been charged nor convicted of any crime during De-lap’s first or second trials. Brumley was not indicted until late 1981, well after Delap’s October 1978 second trial. Therefore, his illegal activities would not be admissible as a prior criminal conviction under Fla.Stat. § 90.610. See Rolle v. State, 386 So.2d 3 (1980) (general rule is that witness may not be interrogated as to prior arrests or pending charges, but only as to prior convictions). Nor is it likely that the evidence would be admissible under Fla.Stat. § 90.608 as evidence of bias in this case, where no criminal proceeding or even an investigation had begun.

890 F.2d at 299. Delap supports a finding by this court that the state court decision was a good faith and reasonable application of the United States Supreme Court precedent.

Moreover, Breedlove has not shown that this court should conduct an evidentiary hearing on this claim. The Supreme Court of Florida declined to grant Breed-love an evidentiary hearing, agreeing with the trial judge that an evidentiary hearing on the Brady issue was not required because even if the facts alleged by Breed-love were assumed to be true, they did not form the basis for relief. 580 So.2d at 606. Similarly, federal courts, both prior to and after the enactment of the AEDPA, uniformly have held that, “no evidentiary hearing is necessary where the proffered evidence would not affect the resolution of the claim.” See e.g., Bolender v. Singletary, 16 F.3d 1547, 1555 at n. 9 (11th Cir.1994)(citing Stephens v. Kemp, 846 F.2d 642 (11th Cir.1988)) (no evidentiary hearing necessary on ineffective assistance claim where evidence petitioner sought to introduce would not affect resolution of issue), In this case, because an evidentiary hearing would not aid in the resolution of the Brady violation claim, Breedlove is not entitled to a federal evidentiary hearing.

Claim II: Guilt-Phase Ineffective Assistance of Counsel.

Petitioner’s second claim is that he received ineffective assistance of counsel at the guilt phase of trial. Specifically, Breedlove contends that counsel’s representation was deficient because he failed to investigate the following three matters: a) an alibi defense through the statements of Breedlove’s brother, Elijah Gibson; b) Breedlove’s claim that his confession was coerced; and c) an intoxication defense. The guilt-phase ineffective assistance of counsel claims were first raised during the second 1991 post-conviction proceedings and were repeated in the petition for writ of habeas corpus. The state courts found that Breedlove had not met the substandard performance and prejudice test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and denied the claim without an evidentiary hearing, after considering the affidavits provided by the petitioner, in light of the record of the trial proceedings. Breedlove v. Singletary, 595 So.2d 8, 11 (Fla.1992)(Breedlove III).

A. Brother’s Statement. First, Breedlove claims that his trial attorney failed to investigate alibi evidence which indicated that Breedlove was home at 2:30 a.m., the approximate time of the offense.

The alibi evidence provided by Elijah Gibson concerning the time Breedlove was home is conflicting. Portions of a police report made by Detective McElveen reflect the substance of a conversation between McElveen and Gibson, who stated that Breedlove returned home at approximately 2:30 a.m., stayed for approximately an hour, left again, and returned home between 4:00 and 4:30 a.m. The police report also states that both Breedlove’s mother and brother observed bloodstains on Breedlove’s pants and that Gibson described jewelry, later established to have been taken from the victim’s residence, in Breedlove’s possession. (McElveen Report).

Although this police report was not provided to defense counsel, a sworn statement given by Gibson was provided to defense counsel prior to trial. In that sworn statement, Gibson states that he was awakened by Breedlove around 2:30 p.m., that Breedlove stayed for half and hour, left, and returned between 3:30 and 4 a.m. (November 10, 1978 Sworn Statement of Gibson).

Defense counsel also deposed Gibson prior to trial. At this pretrial deposition, Gibson stated that Breedlove woke him up at approximately 12:30 to 1 a.m., stayed about half an hour, left, and returned home at approximately 3:00 to 3:30 a.m. During the deposition, Gibson also testified that on the night of the offense, Breedlove showed him jewelry resembling the jewelry taken from the victim. (Gibson dep. at 11-13).

Another set of times was provided by Gibson in an interview he had with Detective Zatrepalek. At the Zatrepalek interview, Elijah Gibson told the detective that Breedlove returned home at approximately 3:00 a.m. (Zatrepalek depo. p. 112). Additionally, in 1991, Gibson submitted an affidavit for the defense which stated that on the night of the murder, he played pool with Breedlove until 7-8 p.m. and that Breedlove returned home around 2 a.m., drank and used drugs, and then left again for about a half hour to get more beer. Gibson also stated that he himself was very high on drugs at that time. (Gibson’s 1991 affidavit, petition pp. 70-71).

Breedlove argues his counsel’s failure to investigate the alibi defense deprived him of a fair trial. In response, the state asserts that trial counsel was not deficient in failing to investigate the potential alibi defense presented by Gibson’s statements because, as the Florida courts found, and the record demonstrates, defense counsel had ample evidence on the issue: he deposed Gibson; possessed Gibson’s sworn statement to McElveen; and knew what Gibson told Zatrepalek. See Breedlove III, 595 So.2d at 11. In any event, there was no prejudice because Gibson was not a credible witness with respect to dates and times. Gibson’s statements about time were clearly contradictory. Finally, the state points out that the alibi defense would have contradicted another defense strategy: during closing argument, defense counsel suggested that Gibson was a “suspect” who could have been the person who committed the murder. (T. 1152-54, 1218-91). In sum, the state argues that defense counsel’s representation of Breed-love was not deficient because (a) the record shows that counsel did investigate the alibi and (b) Gibson was not a credible witness with regard to time and, if put on the stand, he could have provided damaging testimony about bloody pants and the stolen jewelry, and (3) defense counsel chose to utilize Gibson as a suspect instead of a reliable witness. For these reasons, the state asserts that the state court’s rejection of the claim for ineffectiveness, based on failure to present at an alibi, was not unreasonable.

B. Evidence of coercion. Second, Breedlove contends that his counsel failed to conduct an adequate investigation of the case because he overlooked evidence important to Breedlove’s claim that he was beaten by police and forced to confess. Before trial, Breedlove moved to suppress evidence of inculpatory statements he made to investigating officers on two occasion, asserting that the confessions were coerced; he claims he was physically abused by detectives during the first interrogation and threatened during the second interrogation. A suppression hearing was held prior to trial where Breedlove testified to the following events:

He was arrested for loitering, prowling, and giving a false name on November 8, 1978 and taken to the county jail. On November 9, he was beaten in the stomach and chest by a police officer and then taken to a safety cell. No other inmates were present in the safety cell where he was held for five days. (Trans. Supp. Hearing, app. 1 at 309-310, 317, 319). On November 21, 1978, he was taken to the department of safety where he was questioned by police officers for a second time. (Trans. Supp. Hearing, app. 1 at 311). On that day, he confessed because he was threatened with another beating. He was not, however, beaten on that day. (Trans. Supp. Hearing, app. 1 at 313-15).

At the suppression hearing, the police officer denied beating Breedlove. The trial court denied the motion to suppress the confession.

In 1991, the defense obtained two affidavits that allegedly supported Breedlove’s claim that he was beaten by police. The first was submitted by Charlie Williams, a neighbor of Breedlove’s stepfather. Williams stated that he saw Breedlove right after he was arrested. Two police officers brought a bruised-faced Breedlove to his step-father’s house in handcuffs and ripped clothes. The second affidavit was from John Lane, a cellmate of Breedlove. According to Lane, right after Breedlove was arrested, he was placed in a large cell with Lane and many other inmates. Breedlove was taken from his cell. When he came back, he was holding his stomach and crying. Lane said Breedlove told him that he had just been beaten by the police and coerced to make a confession. Breed-love argues that this information was available prior to his trial, but defense counsel failed to conduct an adequate investigation and therefore neglected to present this testimony at the suppression hearing and trial.

In response, the state contends that the statements of Williams and Lane are not credible because they are contradicted by the record and Breedlove’s own testimony at the suppression hearing. For example, Lane’s statement that he was in the same cell with Breedlove after the beating is contradicted by Breedlove’s testimony that he went to a safety cell and was held there alone for five days after the beating. Lane’s assertion that Breedlove was beaten into giving a confession is contrary to Breedlove’s testimony at the suppression hearing that he did not give a confession on the day he was beaten. Similarly, Williams’s statement that he saw Breed-love taken to his step-father’s home after his arrest is contradicted by Breedlove’s testimony that he was taken to the county jail after his arrest. Breedlove makes no assertion that he was taken to his stepfather’s house after the beating. And Williams claimed that he saw Breedlove’s beaten face, but Breedlove claimed he was beaten only on the chest and stomach. The state asserts that under Strickland, Breedlove’s counsel cannot be deemed deficient for failing to present witnesses whose testimony was expressly contradicted by Breedlove’s own testimony.

C. Evidence of Intoxication at Time of Crime. Breedlove contends that his counsel was ineffective because he failed to conduct an investigation regarding Breed-love’s intoxication on the night of the homicide even though defense counsel knew that Breedlove told detectives that he had been drinking on the night of the offense and evidence showing that Breedlove had a long history of substance abuse was readily available. Petitioner claims counsel was also ineffective because he failed to present a mental health expert at trial to testify regarding the effects of alcohol and drugs on the ability to form specific intent.

In response to this argument, the state asserts that defense counsel did investigate an intoxication defense. At the time of trial, defense counsel was well-aware of the defendant’s history of alcohol and drug abuse and knew that Breedlove had told police that he had bought a bottle of liquor on the night of the incident, which he drank after the incident. But there was no information available as to how much alcohol or drugs, if any, Breedlove had consumed prior to the murder. Consequently, Breedlove would not have been entitled to a jury instruction on intoxication. See Gardner v. State, 480 So.2d 91, 93 (Fla.1985). Moreover, it is significant that Breedlove consistently denied committing the crime. Consequently, counsel was not deficient in failing to raise an intoxication defense when it would be inconsistent with defendant’s claim that he did not committed the murder. See Combs v. State, 525 So.2d 853 (Fla.1988).

Neelley Analysis. Under the first step of the Neelley analysis, the clearly established case law from the United States Supreme Court on the issue of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Florida courts analyzed Breedlove’s ineffective assistance claim under the standards articulated in Strickland. See Breedlove III, 595 So.2d at 11. The factual circumstances in Strickland are not similar to the instant case. Strickland involved the propriety of defense counsel’s failure to seek out character witnesses and request psychiatric examination or a pre-sentence report at the penalty phase. Thus it can not be said that the Florida courts reached a different conclusion on substantially similar facts under the clearly established law. The issue, therefore, is whether the state court, in contravention of Supreme Court case law, failed to apply the correct legal principles to decided the case. Neelley, 138 F.3d at 923. This court does not find that the Florida Supreme Court unreasonably applied Strickland to the facts of this case. The state court’s conclusions were in accordance with factually and legally similar decisions from the Eleventh Circuit.

To obtain relief under Strickland, Breedlove was required to demonstrate two things: (1) that his counsel’s performance was deficient, in that it “fell below an objective standard of reasonableness,” and (2) that he suffered prejudice as a result of that deficient performance. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068 (1984); Hill v. Moore, 175 F.3d 915, 922 (11th Cir.1999). Prejudice is defined as “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. Whether petitioner’s counsel were ineffective is a mixed question of law and fact subject to de novo review. See Hill, 175 F.3d at 921 (11th Cir.1999); Mills v. Singletary, 161 F.3d 1273, 1285 (11th Cir.1998). To be entitled to an evi-dentiary hearing on this matter, petitioner must proffer evidence that, if true, would entitle him to relief. Baldwin v. Johnson, 152 F.3d 1304, 1312 (11th Cir.1998).

The Florida Supreme Court addressed Breedlove’s claim of ineffective assistance of trial counsel in Breedlove III, 595 So.2d at 10 and found that the trial court correctly resolved these claims and that Breedlove was not entitled to an evidentia-ry hearing on the ineffective assistance claims because he did not allege specific facts not conclusively rebutted by the record. Id. at 11. Rejecting the failure to conduct investigation on the alibi argument, the supreme court found that defense counsel had not been deficient in conducting an investigation because the record disclosed that counsel had indeed conducted an investigation; “counsel deposed Breedlove’s brother, the ‘alibi’ witness, had the brother’s sworn statement to a police officer, and knew what the brother had told another officer.” 595 So.2d at 11. The state court’s factual findings are entitled to great deference. § 2254(e)(1); Blanco, 943 F.2d at 1505.

In any event, the record demonstrates that Gibson was not a credible witness with regard to time and, if put on the stand, he could have provided damaging testimony about bloody pants and the stolen jewelry. Instead of using Gibson as a defense witness, it appears that defense counsel chose to portray Gibson as a suspect to the jurors. In light of these circumstances, the state court’s determination of the claim for ineffectiveness, based on failure to present at an alibi, was not unreasonable. See Alexander v. Dugger, 841 F.2d 371, 374-75 (11th Cir.1988) (counsel can not be ineffective for failing to call alibi witness who had testified at a pretrial deposition in a manner inconsistent with defendant’s claim).

The claim that defense counsel was deficient because he failed to investigate Breedlove’s alleged beating by police officers, was also rejected by the Florida courts because it was belied by the record. Breedlove asserts that counsel should have obtained statements from Williams and Lane, such as the ones given in their 1991 affidavits. But Williams’s and Lane’s statements were contradicted by Breed-love’s own testimony at the suppression hearing. Rather than failing to investigate defendant’s claim that his confession had been coerced by a police beating, defense counsel requested and was granted a pretrial hearing on the issue. The Florida Supreme Court noted that at the suppression hearing, defense counsel vigorously and conscientiously prosecuted the motion to suppress, presenting the defendant’s version of events. 595 So.2d at 11. The Florida court’s determination is a good faith application of the standards set forth in Strickland v. Washington: a defense counsel can not be deemed deficient for failing to present witnesses who contradict the defendant’s own testimony. Alexander, 841 F.2d at 374-75.

Finally, this court finds that the state court’s rejection of the ineffective assistance of counsel claim for failing to pursue an intoxication defense was also a reasonable application of Strickland. The Florida Supreme Court stated, “The record also discloses that trial counsel knew of Breed-love’s alcohol and drug use. While the record shows that Breedlove had a history of alcohol and drug abuse, it also shows a lack of available facts from which an intoxication defense could be established.” 595 So.2d at 11. The state court’s conclusion was in accordance with Strickland and Eleventh Circuit precedent. See Hill v. Moore, 175 F.3d 915, 923 (11th Cir.1999)(“defendant was not prejudiced by trial counsel’s alleged deficiency in failing to elicit testimony elaborating on amounts of cocaine defendant used prior to bank robbery given the defendant’s failure to show evidence on which jury could have found that he was so intoxicated that he was unable to form an intent to kill.”). Moreover, defense counsel’s failure to pursue the intoxication defense was not deficient because it was in accordance with the defendant’s own insistence that he did not commit the charged crimes. Trial counsel can not be deemed deficient within the standards of Strickland for failing to present a defense that was inconsistent with the primary defense at trial. See Nelson v. Nagle, 995 F.2d 1549, 1554 (11th Cir.1993) (failure to present evidence of intoxication which contradicted defense of factual innocence was not ineffective); Harich v. Dugger, 844 F.2d 1464, 1470 (11th Cir.1988) (where trial strategy was to maintain factual innocence, counsel’s failure to present intoxication defense was not deficient even absent an evidentiary hearing).

In making its determination on petitioner’s ineffectiveness claim, this court is guided by the well-established principle that a decision not to investigate must be assessed for reasonableness under all circumstances, giving great deference to counsel’s judgment. Williams v. Head, 185 F.3d 1223, 1236 (11th Cir.1999); see Mills v. Singletary, 63 F.3d 999, 1024 (11th Cir.1995) (“The question is whether ... ending an investigation short of exhaustion, was a reasonable tactical decision. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end.”) (quotation and citation omitted); Gates v. Zant, 863 F.2d 1492, 1498 (11th Cir.1989)(“Given the finite resources of time and money that face a defense attorney, it simply is not realistic to expect counsel to investigate substantially all plausible lines of defense.”). In this case, the Florida court found that counsel’s investigation decisions were reasonable. Insofar as the performance prong of an ineffectiveness inquiry is concerned, once the court concludes that declining to investigate further was a reasonable act, it need not look to see what a further investigation would have produced. See Rogers v. Zant, 13 F.3d 384, 388 (11th Cir.1994). “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, 104 S.Ct. at 2065.

Because the petitioner could not satisfy the requirements of Strickland, he cannot demonstrate that the evidence proffered, if true, would entitle him to relief. For this reason, he is not entitled to an evidentiary hearing on this claim. See Hill, 175 F.3d at 923.

Claim III: Admission of Breedlove’s Confession into Evidence.

In Claim III, Breedlove asserts that the trial court should have excluded a statement he gave to Officer Zatrepalek because the statement was taken after he had invoked his right to remain silent and it was coerced by police threats. He argues that because his right to remain silent was not “scrupulously honored,” it was taken in violation of his Fifth Amendment rights and therefore should have been suppressed. In response, the state asserts that the trial judge did not err in admitting the statement because, after a full evidentiary hearing, it found that Breed-love had not invoked his right to remain silent and the statement was not coerced.

Facts. Breedlove was arrested on November 9, 1978, based on physical evidence taken from his home and statements made by his mother and brother. Prior to his indictment, Breedlove consulted his court-appointed attorney who counseled him not to make any statements in the absence of counsel. On November 21, 1978, however, Breedlove gave a statement to Officer Za-trepalek in which he admitted to breaking into the house, stealing numerous items, taking a butcher knife and stabbing a man who had been asleep in a bedroom, and stealing a bicycle to make his getaway.

Subsequently, Breedlove’s counsel moved to suppress the statement Breed-love gave to Zatrepalek, asserting that it was made as a result of an unlawful interrogation. Counsel argued that Zatrepalek coerced Breedlove into giving the statement after he had asserted his right to remain silent. The trial judge held an evidentiary hearing on the motion to suppress. At the hearing, Breedlove testified that officers Zatrepalek and Ojeda had beaten him on November 9, so he didn’t want to go with the officers on November 21. He said he told the officers who escorted him to the Dade County jail that he did not with to be taken there. A correctional officer. Shultz, testified at the suppression hearing that on the day Breed-love gave his statement to Zatrepalek, Breedlove had said something like “They had better the people I want to talk to” or “I don’t want to talk to certain detectives.” On seeing the officers, Shultz said Breed-love stated, “I am not talking to them,” and the officers said something like “Eventually you will talk to us.” Shultz also said that prisoners could refuse to leave their cells in order to avoid interrogation, but that Breedlove never did so. Officer Za-trepalek also testified at the suppression hearing. He stated that when Breedlove arrived at the police station on November 21, he read him his Miranda rights and Breedlove signed a form indicating that he understood his rights. (R. 224-28). Breedlove then asked to speak with his mother. Detectives brought his mother to the police station where Breedlove spoke with her alone, in an office, for approximately thirty minutes. (R. 229-31). When the mother emerged from the office, she told Zatrepalek that her son wanted to speak with him. (R. 232). Zatrepalek went into the office and Breedlove confessed to the murder. At the conclusion of the suppression hearing, the trial judge found that Breedlove understood his rights on both the 9th and 21st of November and that he had freely and voluntarily waived those rights.

Petitioner’s claim that his Fifth Amendment rights were violated when he was interrogated after having asserted his right to remain silent, was raised on direct appeal. See Breedlove I, 413 So.2d at 5-6. Based on the transcript of the suppression hearing, the Florida Supreme Court wrote that the following events occurred on November 21. “After arriving at the station, Detective Zatrepalek read Breedlove his Miranda rights and Breedlove signed the rights form. Breedlove then asked to speak with his mother and was not questioned during the hour or so before she arrived. He spoke with her in private and then asked her to tell Zatrepalek that he would make a statement. After speaking with the detectives, Breedlove was again read his rights, signed another card, and made a formal statement.” Id. at 5. In affirming the trial court’s ruling, the Florida Supreme Court held as follows:

Breedlove now claims that the statement, “eventually you will talk to us,” was an implied threat constituting coercion and tainting the ensuing statement so that. no proper waiver occurred. From the totality of the circumstances, it does not appear that the statement was coerced. Rather, Breedlove chose not to exercise his right to remain silent or to have counsel present, making the damaging statement after talking with his mother. The judge properly concluded that he freely and voluntarily made the statement.

Breedlove I, 413 So.2d at 6.

Neelley Analysis. The parties are in agreement that the United States Supreme Court cases applicable to this claim are Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Both cases were specifically relied upon by the state courts. See Breedlove I, 413 So.2d at 5-6. Breedlove argues that the Supreme Court of Florida’s application of Miranda and Mosley was unreasonable in light of the facts of Breedlove’s case. In Mosley, the accused was arrested on two robbery charges. After interrogation commenced, the defendant stated “that he did not want to answer questions about the robberies.” Mosley, 423 U.S. at 97, 96 S.Ct. 321. Interrogation then ceased. Id. Several hours later, another officer, who was investigating a murder for which the defendant had not been arrested, sought to interrogate him, and the defendant, after waiving his Miranda rights, confessed to the murder. Id. at 98, 96 S.Ct. 321.

The Supreme Court held that the critical factor in such a situation was whether the “right to cut off questioning” was “scrupulously honored.” Id. at 104, 96 S.Ct. 321. In resolving the claim, the Mosley Court held that since the “police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been the subject of the earlier interrogation,” the “right [of Mosley] to cut off questioning was fully respected in this case.” Id. at 105-06, 96 S.Ct. 321.

In this case, before going to the Dade County jail, Breedlové said something like “They had better be the people I want to talk to” or “I don’t want to talk to certain detectives.” When he saw certain officers, he said, “I am not talking to them.” These statements were ambiguous in that they could reasonably be interpreted to mean that Breedlove was not invoking his right to remain silent, he merely didn’t want to talk to certain officers. In light of the circumstances of this case, including Zatrepalek’s Miranda instructions on arrival at the police station, Breedlove’s signing of a form waiving his Miranda rights, and Breedlove’s intervening conversation with his mother, the Florida courts’ determination — that these statements were not an unequivocal invocation of his right to remain silent or to have counsel present — is not unreasonable or contrary to established law. See Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (“If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him”); Smith v. Illinois, 469 U.S. 91, 100, 105 S.Ct. 490, 495, 83 L.Ed.2d 488 (1984)(“an accused’s request ... may be characterized as ambiguous or equivocal as a result of events preceding the request or of nuances inherent in the request itself.”); United States v. Mikell, 102 F.3d 470, 476 (11th Cir.l996)(“If the statement is ambiguous or equivocal, the police have no duty to clarify the suspect’s intent, and they may proceed with the interrogation.”).

The Florida courts also concluded that Breedlove’s confession was given knowingly and voluntarily and that the statement “eventually you will talk to us” did not amount to coercion. This finding was not contrary to established law. In light of the Miranda warnings given after the officer’s remark, and Breedlove’s acknowledgment that he understood and waived his right to remain silent, the remark was insufficient to induce a confession. See Baldwin v. Johnson, 152 F.3d 1304, 1321 (11th Cir.1998)(record demonstrated that defendant made his confessions knowingly and voluntarily, though defendant testified that his statements were coerced through threats and beatings; none of defendant’s witnesses corroborated his story, law enforcement officers read defendant Miranda warnings on five separate occasions before questioning him or obtaining statements from him, defendant signed at least four separate forms waiving his Miranda rights, and officer who took defendant’s statement testified that neither he nor anyone in his presence threatened or physically abused defendant). Moreover in this case, Breedlove himself initiated the conversation with Zatrepalek after talking to his mother. Under the circumstances, the police officers’ remark was insufficient to invalidate Breedlove’s subsequent waiver of his right to remain silent. See Henderson v. Singletary, 968 F.2d 1070, 1073 (11th Cir.1992) (confession properly admitted where defendant “both initiated the dialogue and waived his previously asserted rights to silence and counsel.”).

Petitioner did not request an evidentiary hearing on this claim, stating that the claim “essentially involves a matter of law.” Respondent agrees, adding that petitioner was afforded a full and fair pretrial suppression hearing, accordingly an evi-dentiary hearing is not permissible under § 2254(e)(2).

Claim TV: Hearsay Statements of Petitioner’s Mother and Brother.

In his fourth claim, the petitioner asserts that his right to confront witnesses was violated by the trial court’s erroneous admission of the hearsay statements of his mother, Mary Gibson, and brother, Elijah Gibson. When this claim was first raised on direct appeal, the Florida Supreme Court found that there was no error in admitting the statements because they were not hearsay; they were not admitted to prove the truth of the matter asserted. Rather, they were admitted to show the effect these statements had on Breedlove’s state of mind at the time he gave his confession. Breedlove I, 413 So.2d at 6-7.

Facts. The Gibson were questioned at their home on November 9, 1978, and subsequently gave formal statements at the police department. Among other things, they told police that Breedlove returned home on the night of the murder with a stolen blue bicycle, there was blood on his pants, and he was in possession of a watch with rhinestones around the face. Neither Mary Gibson nor Elijah Gibson testified at trial, but the substance of these statements was introduced through the testimony of police officers.

At trial, when officers Ojeda and Zatre-palek were testifying about the circumstances surrounding Breedlove’s November 21 confession, they described what had been said that day. In describing what was said to Breedlove, both officers alluded to the substance of the informal conversations they had with the Gibsons. For example, Ojeda testified that when he spoke with Breedlove on the 21st, he told Breedlove what his brother had said about the blue bicycle. Defense counsel objected to this testimony on hearsay grounds. (R. 932). The trial judge overruled the objection on a finding that the statement was not being offered for the truth of what was said; rather, it was being offered to show what Breedlove heard during the course of questioning, and the effect this statement had on Breedlove’s state of mind at the time he confessed. Other comments made by the mother and brother came in the same way. The trial judge gave a cautionary instruction, informing the jurors that the statements were not made for the purpose of proving the truth of the matter, but only to show that Breedlove was confronted with the statements by the officers. (R. 934). Prior to cross-examination, the defense said it would go into the Gibson’s statements because they had been received for an impermissible purpose. The trial judge cautioned the defense that it would have to live with what this approach elicited. When Zatrepalek testified, the trial judge issued similar rulings.

In closing argument, defense counsel raised the issue of the Gibson’s comments, wondering why they had not been called to testify, suggesting that the mother or brother had lied when they made these statements because they, not Breedlove, had committed the murder. (R. 1152-54). In rebuttal, the state responded directly to defense counsel’s argument, stating that it had not wanted to compel a mother to testify against her son, or a brother against his brother, in a case in which the state was seeking the death penalty. The state informed the jury that the Gibsons had also given sworn statements. (R. 1185). The prosecutor argued that the Gibsons had told the truth in those statements, if they hadn’t the defense would have brought them in to testify. The state then tied the Gibson’s formal statements to the detectives testimony.

Defense counsel moved for a mistrial, contending that the state had put the truth of the Gibson’s statements in issue. Defense counsel also asked that the jury be instructed to disregard the state’s closing argument or disregard the officers’ testimony about what the Gibsons had said. Referring to its earlier instruction on the issue, the trial court refused to reinstruct. When defense counsel made his final argument, he again referred to the mother and brother’s statements.

[The stolen blue bicycle] could have been ridden by the other four adults in that house, and what about those people? What did they do? They pointed the finger at my client. Sure it is his mother and brother. I do not like mothers and brothers testifying like that against my client. They said, “He did it. He is the one.” Mr. Godwin would have you believe we can call people like that.

(R. 1218 emphasis added).

Breedlove does not seek an evidentiary hearing on this claim, stating that only a matter of law is involved.

Neelley Analysis. In addressing this claim, the Florida Supreme Court relied on United States Supremo Court precedent in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), and Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974), noting the well-established rule that out-of-court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted.

‘The hearsay rule does not prevent a witness from testifying as to what he has heard; it is rather a restriction on the proof of fact through extrajudicial statements.’ Dutton v. Evans, 400 U.S. 74, 88, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970). In Dutton the Court went on to say that “the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ California v. Green, 399 U.S. at 161, 90 S.Ct. at 1936.” 400 U.S. at 89, 91 S.Ct. at 219. On the other hand, “[o]ut-of-eourt statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted.” Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974). Merely because a statement is not admissible for one purpose does not mean it is inadmissible for another purpose. Hunt v. Seaboard Coast Line Railroad Co., 327 So.2d 193 (Fla.1976); Williams v. State, 338 So.2d 251 (Fla. 3d D