Trepal v. Secretary, Florida Department of Corrections (684 F.3d 1088, 2012)

HULL, Circuit Judge:

Florida death row inmate George James Trepal appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. After review and oral argument, we affirm.

I. BACKGROUND

A. Overview

In 1991, a Florida jury convicted Trepal, a sophisticated chemist and Mensa member, of murdering his neighbor Peggy Carr and attempting to murder six other members of Carr’s family. Trepal poisoned the victims by adding the toxic element thallium to bottles of Coca-Cola in the Carrs’ home.

Trepal’s trial lasted a month, with more than 70 witnesses together providing overwhelming evidence of Trepal’s guilt. For example, several independent witnesses chronicled Trepal’s long-running conflicts with and animosity toward the Carr family. Evidence established Trepal’s extensive knowledge of chemistry, as well as his possession of chemistry laboratory equipment, a number of toxic chemicals, and a homemade journal on poisons and poison detection in human organs. Finally, multiple experts uniformly testified that (1) the victims were poisoned by thallium, (2) thallium was found in both the empty and unopened Coca-Cola bottles in the victims’ home, and (3) thallium was found in a brown bottle in Trepaks garage. Thallium is a heavy metallic element that is both rare and toxic to humans. When dissolved, it is odorless and tasteless. A lethal dose of thallium is approximately 14 milligrams per kilogram of body weight, which for an average person is around 1 gram of thallium.

Trepaks case would be long over but for the fact that in 1997, six years after Trepaks trial, the Office of the Inspector General of the United States Department of Justice (“OIG”) issued a report (the “OIG Report”) that was critical of certain work performed by Roger Martz, a Special Agent in the Chemistry-Toxicology Unit of the FBI Laboratory, who testified against Trepal. After other witnesses had established independently that thallium was found in Trepaks garage and was put in Coca-Cola bottles to poison the victims, Agent Martz went further and tried to identify the particular chemical form of thallium that was found in Trepaks garage and in three unopened Coca-Cola bottles in the victims’ home.

Trepal filed a state postconviction motion alleging that certain parts of Martz’s trial testimony were false and thus Trepal was entitled to a new trial under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The state court denied Trepaks motion, finding that although some of Martz’s trial testimony was false, it did not prejudice Trepal enough to warrant a new trial, given the strength of the unchallenged portions of Martz’s testimony, other experts’ unchallenged testimony, and all the other trial evidence of Trepaks guilt. The Florida Supreme Court affirmed.

Trepal filed his § 2254 petition, which the district court denied. A certificate of appealability (“COA”) was granted on Trepaks Giglio claim. As explained later, this case presents many thorny issues about Trepaks Giglio claim, such as the appropriate level of deference due the Florida Supreme Court’s denial of the claim, whether Martz’s testimony was false, whether Martz’s testimony can be imputed to the state prosecutor, and whether any false testimony was material under Giglio. Although we identify and discuss the issues to some extent, we ultimately need not decide them because even assuming arguendo that Trepal has shown a Giglio error, Trepal has not suffered the requisite actual prejudice and thus any Giglio error was harmless. To show why Trepal was not prejudiced, we outline in depth the evidence presented at trial and in state postconviction proceedings.

B. The Poisonings

Trepal and his wife, Dr. Diana Carr, lived in Alturas, Florida, on property adjoining the home of victim Peggy Carr and her husband Parearlyn “Pye” Carr. The two homes — Pye Carr’s and Trepaks— were located amid orange groves and were very isolated. The next nearest neighbors were about a quarter-mile away.

In June 1988, Pye Carr received an anonymous letter stating,