source: Caselaw Access Project

author: PER CURIAM. CANTERO, J., ANSTEAD, C.J.,

license: Public Domain

text:
    Robert Beeler POWER, Appellant, v. STATE of Florida, Appellee. Robert Beeler Power, Petitioner, v. James V. Crosby, Jr., etc., Respondents.
    Nos. SC02-874, SC03-28.
    Supreme Court of Florida.
    May 6, 2004.
    Rehearing Denied as to SC02-874 July 8, 2004.

      Pamela H. Izakowitz, Capital Collateral Regional Counsel — South, Tampa, FL; and Rachel L. Day, Assistant CCRC, Fort Lauderdale, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, FL, for Appel-lee/Respondent.
   PER CURIAM.

Robert Beeler Power, Jr., an inmate under the sentence of death, appeals an order of the circuit court denying a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.851 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons discussed below, we affirm the trial court’s denial of post-conviction relief, and we deny Power’s petition for writ of habeas corpus.

FACTUAL BACKGROUND

Robert Beeler Power was convicted of first-degree murder for the 1992 murder of twelve-year-old Angelí Bare. At the conclusion of the guilt phase proceedings, there was a five-month delay prior to the beginning of the penalty phase, following which the jury unanimously issued a recommendation of death. Upon a finding of four aggravating factors and no mitigating factors, the trial court accepted the jury’s recommendation and sentenced Power to death. On direct appeal, this Court affirmed Power’s conviction and sentence, although we did overturn the trial court’s finding that the murder was cold, calculated ’and premeditated (CCP). See Power, 605 So.2d at 864.

In November 1998, Power filed a motion to vacate judgment of conviction and sentence, in which he raised thirty-eight claims. A Huff hearing was held pursuant to Power’s motion, and the trial court directed an evidentiary hearing on several of Power’s claims. Twenty-five witnesses testified at the evidentiary hearing, following which the trial court denied Power’s motion for post-conviction relief in its entirety. Power now appeals the denial of post-conviction relief to this Court, and also petitions this Court for a writ of habe-as corpus.

CLAIMS SUMMARILY DENIED

In this appeal, Power challenges the trial court’s summary denial of several claims which he argues warranted an evidentiary hearing. This Court has explained that “a defendant is entitled to an evidentiary hearing on a post-conviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000). We address each of Power’s claims in turn.

Constitutional Errors

The trial court summarily denied Power’s claims that trial counsel was ineffective for failing to object to what he contends were constitutional errors. Power asserts the following: (1) the instruction given to the jury on the HAC aggravator was unconstitutional; (2) the burden of proof was improperly shifted to Power during the penalty phase; and (3) the finding of the prior violent felony aggravator and offense committed during the commission of an enumerated felony aggravator rendered him automatically eligible for the death penalty. We conclude that the trial court properly denied this claim, as each of the individual assertions fail for being procedurally barred or for being without legal merit. See Freeman v. State, 761 So.2d 1055 (Fla.2000); Blanco v. State, 706 So.2d 7, 11 (Fla.1997); Johnson v. State, 660 So.2d 637, 647-48 (Fla.1995).

Nonstatutory Aggravating Circumstances

Power also contends that the trial court erroneously denied his claim that trial counsel was ineffective for failing to object to a prosecutorial comment which he claims amounted to the establishment of nonstatutory aggravating circumstances. This claim stems from the prosecutor’s statement made during argument of the HAC aggravator: “Angeli didn’t survive to tell us what happened, but when we listened to the stories of Ms. Wallace, when we listened to the testimony of the Warden children, we realized that he takes pleasure in inflicting pain.” The trial court found that this claim was procedurally barred because Power appealed the sufficiency of the HAC aggravator on direct appeal; the trial court also found that trial counsel was not ineffective under the circumstances where he also kept evidence and testimony of Power’s prior crimes, including victim impact evidence, away from the jury; successfully argued a motion challenging the constitutionality of section 921.143, Florida Statutes; and challenged the HAC instruction at the charge conference, even objecting again after the instruction was given. We agree with the trial court’s conclusion that this claim fails on its face in setting out a valid claim of counsel’s ineffectiveness considering the content of the entire statement at issue.

Improper Prosecutorial Comments

Power also contends that during the guilt and penalty phases, trial counsel rendered ineffective assistance when he failed to object to other comments made by the prosecution. We have no problem with the trial court’s summary denial of this claim. The trial court first found that this claim was procedurally barred where it was raised and rejected on direct appeal. See Power, 605 So.2d at 861 (‘We reject Power’s next contention that the prosecutor improperly commented on Power’s failure to testify in violation of his constitutional right against self-incrimination. The error, if any, under the circumstances of this case, was harmless.”).

We also agree with the trial court’s conclusion on the merits that trial counsel was not deficient with respect to this claim, inasmuch as trial counsel did object to certain statements, and even moved for a mistrial, albeit unsuccessfully, on the grounds of other improper prosecutorial comments.

Flight Instruction

Next, Power contends that trial counsel was ineffective for allowing an improper instruction on flight. We agree with the trial court’s summary denial of this claim as procedurally barred. This issue was addressed on direct appeal where this Court held that the use of the flight instruction constituted harmless error. See Power, 605 So.2d at 861. In addition, as the trial court pointed out in its order denying post-conviction relief, counsel actually objected to the instruction several times.

Juror Intervieius

Power also argues that the trial court erred in refusing to authorize him to interview jurors to discover possible juror prejudices, and that rule 4 — 3.5(d)(4) of the Rules Regulating the Florida Bar violates the state and federal Constitutions and his right of access to the courts under article I, section 21 of the Florida Constitution. First, “juror interviews are not permissible unless the moving party has made sworn allegations that, if true, would require the court to order a new trial because the alleged error was so fundamental and prejudicial as to vitiate the entire proceedings.” Johnson v. State, 804 So.2d 1218, 1224 (Fla.2001) (citing Baptist Hosp. of Miami, Inc. v. Maler, 579 So.2d 97, 100 (Fla.1991)). Power’s allegations do not satisfy this standard. Further, this claim is procedurally barred because it could have been raised on direct appeal.

We also reject Power’s constitutional challenges to rule 4-3.5(d)(4). This Court has previously rejected similar constitutional challenges to this rule. See Johnson v. State, 804 So.2d 1218, 1224 (Fla.2001) (rejecting contention that rule 4-3.5(d)(4) conflicts with defendant’s constitutional rights to a fair trial and effective assistance of counsel); Rose v. State, 774 So.2d 629, 637 n. 12 (Fla.2000) (holding that the claim “attacking the constitutionality of the Florida Bar Rule of Professional Conduct governing interviews of jurors [was] procedurally barred because Rose could have raised this issue on direct appeal”). As a result, the trial court properly summarily denied this claim.

Statutory and Nonstatutory Mitigation

Power argues that the trial court erroneously failed to find statutory and nonstatutory mitigation on his behalf. However, a claim that a trial court erred by failing to consider mitigating evidence must be presented on direct appeal. See Rivera v. State, 111 So.2d 477, 480 (Fla.1998); Cherry v. State, 659 So.2d 1069, 1071 (Fla.1995). Post-conviction proceedings are no substitute for appeals.

Scrivener’s Errors

Power also argues that numerous scrivener’s errors and unrecorded sidebars violated his right to effective appellate review. We reject this claim as procedurally barred because Power actually raised this claim on direct appeal and it was rejected. On direct appeal, this Court said: “Lastly, we reject as meritless Power’s claims that (1) he was denied effective assistance of counsel and a full appellate review due to inaccuracies in the trial transcript....” Power, 605 So.2d at 864.

Death Penalty Challenges

Lastly, Power contends that Florida’s death penalty unconstitutionally permits cruel and unusual punishment, and that he is insane to be executed. This Court has previously rejected similar claims regarding the constitutionality of Florida’s death penalty. See Provenzano v. State, 761 So.2d 1097, 1099 (Fla.2000) (holding execution by lethal injection does not constitute cruel punishment or unusual punishment or both); Provenzano v. Moore, 744 So.2d 413, 416 (Fla.1999) (holding execution by electrocution in Florida’s electric chair does not constitute cruel or unusual punishment). Furthermore, we reject as premature Power’s claim that he is insane to be executed. As he acknowledges, this claim is not yet ripe and therefore, merits no relief from this Court.

EVIDENTIARY HEARING

As to those claims considered at Power’s evidentiary hearing, he challenges the denial of claims relating to: (1) Power being shackled at trial; (2) the sentencing order in Power’s case; and (3) trial counsel’s investigation and preparation and Power’s waiver of mitigating evidence.

The framework for analyzing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052. Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review based on the Strickland test. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). Therefore, this Court must engage in an independent review of the trial court’s legal conclusions, while giving deference to the trial court’s factual findings.

Shackling

Power argues that he was improperly shackled during his trial and that, combined with the security presence in the courtroom, the shackling caused extreme prejudice, which warrants a new trial. Power asserts that trial counsel’s failure to object to his being shackled constituted ineffective assistance of counsel.

“It is well established that the decision to restrain a criminal defendant in the presence of the jury is subject to very close judicial scrutiny.” Sireci v. Moore, 825 So.2d 882, 887 (Fla.2002). In this case however, we defer to the trial court’s finding that Power was not shackled during trial. There was testimony at the eviden-tiary hearing from witnesses that Power was not shackled. These witnesses included the head bailiff and the court reporter, who were present throughout the trial and were in a position to observe if Power was indeed shackled. As a result, the trial court, as a fact-finder, was entitled to conclude that Power was not shackled. Therefore, trial counsel could not have been ineffective for failing to object to an event which the trial court has concluded did not occur.

Sentencing Order

Power also contends that the State played an improper role in drafting his sentencing order by participating in an ex parte communication with the trial judge. However, we find that competent, substantial evidence supports the trial court’s conclusion that no such impropriety occurred.

A number of witnesses, including state attorneys and court staff who took part in the trial, testified that no ex parte contact was had with the trial judge, and the trial court determined that the evidence presented at the evidentiary hearing refuted Power’s assertions. Further, trial counsel cannot be deemed ineffective for failing to raise an issue that, as illustrated in the evidentiary hearing testimony, is clearly unsupported by the record. The trial court was “in a superior position ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses.’ ” Stephens v. State, 748 So.2d at 1034 (quoting Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976)). Accordingly, we affirm the trial court’s rejection of this claim.

Mitigating Evidence

Finally, we consider Power’s claim regarding the treatment of mitigation evidence. The substance of this claim falls into two categories: (1) adequacy of trial counsel’s penalty phase preparation and investigation, and (2) adequacy of Power’s waiver of mitigation.

Preparation and investigation

Power alleges that trial counsel was ineffective for failing to utilize a wealth of mitigating evidence, including aspects of his personal and family life which could have been presented via expert psychiatric evidence and the testimony of family members. With respect to testimony from family members, it is well settled that evidence of family background and personal history may be considered in mitigation. See Stevens v. State, 552 So.2d 1082, 1086 (Fla.1989).

At the evidentiary hearing, Power presented six family witnesses, all of whom stated that they were not contacted by the defense, and would have testified on Power’s behalf if asked to do so. The record also reflects, however, that due to prior experience representing Power, trial counsel was aware of Power’s difficult background.

At the evidentiary hearing, Power presented substantial mitigation evidence, based on various records, the testimony of family members, and the testimony of mental health experts. At issue is whether trial counsel’s alleged failure to fully develop and present this evidence, under the facts of this case, was reasonable. In this case, the guilt phase ended on June 3, 1990, and as early as July 12, 1990, trial counsel and Power participated in an in camera hearing with the trial court during which Power clearly stated that he was against the presentation of mitigation evidence revolving around his personal life. Additionally, trial counsel and Power participated in a second in camera hearing before the court on October 11, 1990, just a few weeks prior to the penalty phase. At that time, trial counsel renewed his concerns with Power’s decision and those concerns were echoed by the court. However, Power stated on the record that against the advice of counsel, he did not wish to present this aspect of mitigation. At the penalty phase, trial counsel stated again, on the record, that Power would not allow him to present certain testimony in mitigation. It is noteworthy that Power did not waive the presentation of all mitigation evidence, but only that evidence which related to his personal background and family life, and evidence that he believed would suggest that he was conceding guilt for Bare’s murder.

“In evaluating the competence of counsel, we must examine the actual performance of counsel in preparation for and during the penalty phase proceedings, as well as the reasons advanced therefor.” Rose v. State, 675 So.2d 567, 572 (Fla.1996). In Rose, trial counsel’s deficient performance deprived Rose of a reliable penalty phase proceeding where counsel was “unfamiliar with the concept of aggravating and mitigating factors,” and failed to obtain records relevant to Rose’s mental problems. Id. at 572.

In Power’s case, nothing in the record questions trial counsel’s competence in terms of understanding the principles of aggravating and mitigating factors. Indeed, the fact that trial counsel sought an in camera hearing only weeks into the penalty phase preparation due to his concern about the direction that the development of mitigation was taking suggests that trial counsel clearly understood the dangers inherent in not presenting potentially effective mitigation. Trial counsel was aware of potentially helpful mitigation, and did obtain and review relevant records. In fact, the record reflects that trial counsel spent in excess of two hundred hours preparing for the penalty phase. Additionally, substantially distinguishing Power’s case, nowhere in Rose is there any recorded documentation of the defendant’s waiver of mitigation.

In Rutheiford v. State, 727 So.2d 216 (Fla.1998), this Court affirmed the trial court’s denial of post-conviction relief where Rutherford claimed that counsel failed to properly investigate and present mitigating evidence. Like Power, Rutherford also interfered with trial counsel’s conduct by placing limitations on what could and could not be presented during the penalty phase. This Court found Rutherford’s uncooperativeness a critical factor:

We find no error in the trial court’s determination that Rutherford’s lack of cooperation was a hindrance to presenting additional mitigation evidence regarding his military background. Trial counsel testified to himself having a military background and being otherwise familiar with how to effectively use military decorations in mitigation, but that “Rutherford did not want me to use any military background or record, and would not discuss Vietnam service or his Marine Corps service in general” until he unexpectedly did so on the stand during the penalty phase. Trial counsel similarly testified that Rutherford discouraged his parents from talking to or cooperating with trial counsel. As found by the trial court, Rutherford’s uncoop-erativeness at trial belies his present claim that his trial counsel was deficient for not investigating and presenting mitigation regarding his harsh childhood and military history.

Id. at 225. These factors are extremely similar to this case, in which Power refused to allow trial counsel to present evidence pertaining to his personal background and family life, and like Rutherford, even encouraged his mother not to testify. Power admitted his interference with trial counsel’s investigation at the October 11, 1990, in camera hearing, at which the following exchange occurred:

Trial counsel: To be frank, I have talked to all of them. In fact, Mr. Power’s mother talked to me at length, before this case came up, in the previous case. So that’s why I was keenly interested in the information. And I can understand why he feels the way he feels. And I think it is a matter of judgment and a matter of, of, of tactics, to some extent. I think it would be helpful. And I’ve said that all along and he knows that. But he knows what— why I think it would be helpful and we have gone over it at length and I’ve talked to his mother at length. She won’t talk to me anymore about it and, and to my investigator. But the one time he contacted her, she said she will deny ever having told me what she told me. And that’s her privilege at this point.
The Defendant: That was at my request because I informed her that I didn’t want to present them as witnesses and asked her not to speak any further about things regarding my case or my past.

As in Rutherford, where there is proof that counsel spent substantial effort on the case and was familiar with the mitigation, but also evidence that Power himself interfered with trial counsel’s ability to obtain and present mitigating evidence, this Court will not overrule a trial court’s conclusion that counsel’s performance was not deficient.

Adequacy of Power’s waiver

It is well settled that a defendant’s waiver of mitigation must be knowingly, intelligently, and voluntarily made. See State v. Lewis, 838 So.2d 1102, 1112 (Fla.2002). Power asserts that trial counsel’s failure to evaluate Power for competency to waive mitigation constituted ineffective assistance of counsel. He contends that an evaluation either prior to trial or during the penalty preparation phase would have produced sufficient concerns that Power was incompetent to make a knowing and intelligent waiver of mitigation. The question is, however, whether a reasonable attorney, at the time, would have proceeded in such a manner. “[T]he proper standard for attorney performance is that of reasonably effective assistance.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

In this case, trial counsel testified that he got along with Power, that Power actively participated in his defense, that he appeared alert and oriented, and therefore counsel had no reason to detect any competency issues. Counsel testified at the evidentiary hearing that he was convinced that Power’s insistence on avoiding the mitigation evidence in question was the product of Power’s own beliefs and stubbornness, not the product of any mental health problems. Additionally, there is no indication that the trial court itself doubted Power’s competency to waive mitigation; rather, the record reflects the contrary. Therefore, where the circumstances indicate a reasonable attorney would not have surmised a need for a competency determination in this case, we conclude that trial counsel’s failure to have Power examined for competency did not constitute deficient performance.

The facts in Power’s case are distinguishable from the facts in this Court’s recent decision in State v. Lewis, 838 So.2d 1102 (Fla.2002), in which this Court held, despite an alleged waiver from the defendant, that trial counsel’s performance was deficient due to his failure to attempt to discover mitigation in Lewis’s records or from Lewis’s family members. See Lewis, 838 So.2d at 1109. As in the instant ease, Lewis instructed counsel not to present mitigating evidence. However, in Lewis, Lewis’s attorney delayed commencing the penalty phase investigation, expended little effort to obtain witnesses or review relevant records, and spent less than eighteen hours total in preparation for the penalty phase. Id. As a result, trial counsel’s failure to research potential mitigation resulted in a determination that Lewis’s ability to make an informed waiver was substantially impacted. Id. Lewis is distinguishable from this case, where Power’s trial counsel was aware of potential mitigation, discussed the presentation of evidence with Power, and continued to conduct an investigation into Power’s background even though Power said that he did not want such information presented. As a result, trial counsel’s performance provided Power with the ability to make an informed waiver of mitigation evidence. Power’s argument that his waiver was inadequate is undermined by the detailed nature of the discussions on the record at the in camera hearings, which reflect an aware and involved defendant.

In sum, the record supports the trial court’s conclusion that counsel conducted a reasonable investigation under the circumstances, and was perfectly poised to proceed with a thorough presentation of mitigating evidence including Power’s background, if Power had allowed him to do so. It appears the omission from the penalty phase of the wealth of mitigation presented at the evidentiary hearing was the result of compliance with a competent client’s demands — not ineffectiveness on trial counsel’s part.

Cumulative Errors

In the last of Power’s rule 3.851 claims, he contends that the cumulative effect of the errors raised in his motion for post-conviction relief forms a basis for relief in this case. In light of the failure of each of Power’s individual claims, Power’s cumulative error claim fails as well. See Bryan v. State, 748 So.2d 1003, 1008 (Fla.1999) (concluding that the defendant’s cumulative effect claim was properly denied relief where individual allegations of error were found to be without merit). We affirm the trial court’s denial of post-conviction relief.

WRIT OF HABEAS CORPUS

Power’s petition for writ of habeas corpus raises three claims: (1) appellate counsel rendered ineffective assistance; (2) this Court conducted an inadequate proportionality review and harmless error analysis; and (3) Florida’s capital sentencing statute violates the Sixth and Fourteenth Amendments under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

Ineffectiveness of Appellate Counsel

Power claims that appellate counsel was ineffective for failing to raise improper prosecutorial comments on direct appeal, failing to challenge the introduction of evidence of Power’s prior violent felony convictions during the penalty phase, and failing to raise a cumulative error claim on direct appeal.

Claims of ineffective assistance of appellate counsel are appropriately raised in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with the Strickland standard, in order to grant ha-beas relief based on ineffectiveness of counsel, this Court must determine:

[WJhether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986); see also Freeman, 761 So.2d at 1069; Thompson v. State, 759 So.2d 650, 660 (Fla.2000). “The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069; see also Knight v. State, 394 So.2d 997, 1001 (Fla.1981).

Prosecutor’s comments

Power asserts that appellate counsel was ineffective for failing to raise on direct appeal improper comments made by the prosecutor during the guilt and penalty phase closing arguments. However, this Court has held that “appellate counsel cannot be ineffective for failing to raise claims which were not preserved due to trial counsel’s failure to object.” Johnson v. Singletary, 695 So.2d 263, 266 (Fla.1997). A timely objection allows the trial court an opportunity to give a curative instruction or admonish counsel for making an improper argument. See Nixon v. State, 572 So.2d 1336, 1341 (Fla.1990). As noted by the State, Power has failed to demonstrate that these alleged errors were preserved by objections in the record.

Where errors are not preserved, in order for Power to obtain relief, he must demonstrate that the prosecutor’s comments rose to the level of fundamental error. Fundamental error is the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. See Card v. State, 803 So.2d 613, 622 (Fla.2001); see also McDonald v. State, 743 So.2d 501, 505 (Fla.1999) (quoting Urbin v. State, 714 So.2d 411, 418 (Fla.1998)); Chandler v. State, 702 So.2d 186, 191 n. 5 (Fla.1997). In determining whether fundamental error has occurred, the totality of the circumstances approach applies. See Card, 803 So.2d at 622.

Having reviewed each closing argument in its entirety, we conclude that the prosecutor’s remarks do not constitute fundamental error so as to have deprived Power of a fair trial.

We conclude that a sufficient showing has not been made that appellate counsel was ineffective for failing to challenge the prosecutor’s comments, and, therefore, this claim is denied.

Prior felony convictions

We conclude that Power’s claim that the trial court improperly allowed penalty phase testimony regarding Power’s prior violent felony convictions is also without merit. At the penalty phase, four individuals testified as victims as to Power’s prior violent felony convictions.

This Court has held that “[djetails of prior violent felony convictions involving the use or threat of violence to the victim are admissible in the penalty phase of a capital trial.” Lockhart v. State, 655 So.2d 69, 72 (Fla.1995). “Such testimony helps determine whether ‘the ultimate penalty is called for in his or her particular case. Propensity to commit violent crimes surely must be a valid consideration for the judge and jury.’ ” Id. (quoting Elledge v. State, 346 So.2d 998, 1001 (Fla.1977)). We find no abuse of discretion has been demonstrated in the trial court’s decision to allow this testimony. To the extent that this testimony helped the jury consider Power’s propensity to commit crimes, particularly violent crimes, the challenged testimonies were properly admitted. Therefore, because the claims fail on the merits, appellate counsel’s performance did not fall measurably outside the range of professionally acceptable performance, and we therefore deny relief on this claim. Cumulative error

As noted by the State, Power has not articulated his cumulative error claim in a manner upon which this Court can grant him relief. Power simply refers to the “sheer number and types of errors involved in his trial.” As this Court has previously stated: “The purpose of an appellate brief is to present arguments in support of the points on appeal.” Duest v. Dugger, 555 So.2d 849, 852 (Fla.1990).

Furthermore, neither the individual claims raised in Power’s petition for writ of habeas corpus nor those in his motion for post-conviction relief constitute a basis for relief. Therefore, cumulatively, these claims fail as well. See Porter v. Crosby, 840 So.2d 981 (Fla.2003) (concluding that habeas corpus petitioner’s cumulative effect claim was properly denied relief where individual allegations of error were found to be without merit). Thus, this claim is denied.

Proportionality Revieiv/Harmless Error Analysis

Power also contends that this Court conducted a flawed harmless error analysis on direct appeal due to the absence of substantial, compelling mitigation from the Court’s consideration. We reject this claim. This Court has said:

We have described the “proportionality review” conducted by this Court in every death case as follows:
Because death is a unique punishment, it is necessary in each case to engage in a thoughtful, deliberate proportionality review to consider the totality of circumstances in a case, and to compare it with other capital cases. It is not a comparison between the number of aggravating and mitigating circumstances.

Tillman v. State, 591 So.2d 167, 169 (Fla. 1991) (quoting Porter v. State, 564 So.2d 1060, 1064 (Fla.1990)) (alterations in original).

On direct appeal, this Court conducted a proportionality analysis. See Power, 605 So.2d at 864. The fact that this Court struck the CCP aggravator in this case establishes more than a cursory review by this Court. Power now asserts that this Court’s review was inadequate due to the absence of Power’s personal-life-related mitigation from this Court’s consideration on direct appeal. However, a defendant cannot succeed in restricting the use of mitigation evidence at trial and then complain about this Court’s lack of consideration of such evidence on direct appeal.

Ring Claim

In Power’s third and final habeas claim, Power contends that Florida’s capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Appren di v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have rejected this claim in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and numerous other cases, and likewise, we deny Power’s claim. We note that one of the aggravators found by the trial court was that the murder was committed while Power was engaged in the commission of sexual battery, burglary, and kidnapping. This aggravator was charged by indictment and found unanimously by the jury. See Banks v. State, 842 So.2d 788, 793 (Fla.2003) (noting that habeas relief under Apprendi and Ring was not available where the trial court found as an aggravating factor that the murder was committed during the course of a felony).

Further, we note that Power was previously convicted of several violent felonies including: armed burglary, sexual battery, kidnapping, aggravated assault, aggravated battery, and robbery with a deadly weapon. Under Apprendi and Ring, the finding of the prior violent felony aggravator need not be found by the jury. See Bottoson, 833 So.2d at 723 (Pariente, J., concurring in result only) (explaining that “[i]n extending Apprendi to capital sentencing, the Court in Ring did not eliminate the ‘prior conviction’ exception”). We therefore deny Power’s Ring claim and his petition for habeas relief in its entirety.

CONCLUSION

For the reasons discussed above, we affirm the lower court’s denial of Power’s motion for post-conviction relief and we also deny his petition for writ of habeas corpus.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concurring.

CANTERO, J., concurs specially with an opinion, in which WELLS and BELL, JJ., concur.

ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

CANTERO, J.,

concurring.

I concur in the majority opinion. Moreover, regarding Power’s claim that Florida’s capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), I also would hold, for the reasons stated in my specially concurring opinion in Windom v. State, Nos. SC01-2706 & SC02-2142, 886 So.2d 915, 2004 WL 1057640 (Fla. May 6, 2004), that Ring does not apply retroactively.

WELLS and BELL, JJ., concur.

ANSTEAD, C.J.,

concurring in part and dissenting in part.

I agree with the majority opinion in all respects, except for its discussion of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . The facts in this case are set forth in detail in Power's direct appeal, Power v. State, 605 So.2d 856 (Fla.1992).

      . The trial court found the following aggravating factors: (1) the defendant was previously convicted of a felony involving the use or threat of violence; (2) the homicide was committed while the defendant was engaged in the commission of the crimes of sexual battery, burglary, and kidnapping; (3) the homicide was especially heinous, atrocious, or cruel (HAC); and (4) the homicide was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP).

        . Huff v. State, 622 So.2d 982 (Fla.1993).

      . Rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar provides:
      A lawyer shall not: ...
      (4) after dismissal of the jury in a case with which the lawyer is connected, initiate communication with or cause another to initiate communication with any juror regarding the trial except to determine whether the verdict may be subject to legal challenge; provided, a lawyer may not interview jurors for this purpose unless the lawyer has reason to believe that grounds for such challenge may exist; and provided further, before conducting any such interview the lawyer must file in the cause a notice of intention to interview setting forth the name of the juror or jurors to be interviewed. A copy of the notice must be delivered to the trial judge and opposing counsel a reasonable time before such interview. The provisions of this rule do not prohibit a lawyer from communicating with members of the venire or jurors in the course of official proceedings or as authorized by court rule or written order of the court.

      . Power did allow the penalty phase testimony of Dr. Michael Radelet, who testified that as a result of Power's prior convictions, he faced ten consecutive life sentences plus 200 years, all of which would be served in a secure Florida facility. Radelet stated that based on an analysis of Florida law, it was certain that Power would not be released from prison. As a result, Radelet testified that Power bore no threat of future dangerousness. Radelet also discussed the cost of execution versus the cost of life imprisonment, and opined that life imprisonment is a substantially cheaper alternative.

      . We also reject Power's contention that the U.S. Supreme Court's recent decision in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), dictates a determination that trial counsel was ineffective in Power's case. That case did not involve circumstances where the defendant interfered with trial counsel’s investigation and presentation of mitigating evidence.


author: PER CURIAM. ANSTEAD, C.J., CANTERO, J.,

text:
    Darius Mark KIMBROUGH, Appellant, v. STATE of Florida, Appellee. Darius Mark Kimbrough, Petitioner, v. James V. Crosby, Jr., Respondent.
    Nos. SC02-1158, SC03-228.
    Supreme Court of Florida.
    June 24, 2004.
    Rehearing Denied as to SC02-1158 Aug. 31, 2004.

      Robert T. Strain, Assistant CCRC and Carol C. Rodriguez, Assistant CCRC, Capital Collateral Regional Counsel — Middle Region, Tampa, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Scott A. Browne, Assistant Attorney General, Tampa, FL, for Appellee/Respon-dent.
   PER CURIAM.

Darius Mark Kimbrough appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We affirm the circuit court’s order denying Kimbrough’s rule 3.850 motion, and we deny Kimbrough’s petition for a writ of habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

Kimbrough was convicted of first-degree murder on July 1, 1994, and was sentenced to death on December 9,1994. His conviction and sentence were affirmed by this Court on direct appeal. The relevant facts as taken from the opinion on direct appeal are:

Kimbrough was convicted of first-degree murder, burglary of a dwelling with a battery therein, and sexual battery with great force and was sentenced to death consistent with a jury recommendation of eleven to one. The victim, Denise Collins, was found nude and semi-conscious in her bathroom by paramedics; she was covered with blood. The sliding glass door to her second floor apartment was partially open, and there were some ladder impressions under the balcony. Collins was rushed to the hospital, where she died soon thereafter.
The officers took semen evidence from the bedsheets, took blood evidence from the victim, and found pubic hairs in the bed and in a towel. The samples were sealed in a bag and sent to the Florida Department of Law Enforcement lab for analysis.
A resident of the apartment complex — Lee—told officers that he had twice seen a man in the vicinity of the apartment and had seen a ladder on the apartment’s balcony. Officers were unsuccessful in searching for the man, but later Lee identified Kimbrough from a picture lineup. A workman in the complex — Stone—identified Kimbrough as a man who had watched him putting away a ladder in the complex around the time of the murder.
The DNA evidence showed that the semen taken from the bedsheets was compatible with Kimbrough’s, and some of the pubic hairs matched his. There were, however, additional pubic hairs from another unidentified black man and a Caucasian male. The DNA evidence indicated that the blood samples taken from the bed matched Kimbrough’s.
The medical examiner testified at trial that the victim had a fractured jaw and fracturing around her left temple. The cause of death was hemorrhaging and head injury in the brain area resulting from blunt injury to the face. There was also evidence of vaginal injury, including tears and swelling consistent with penetration. There were bruises on her arms.
The defense’s theory suggested that the victim’s ex-boyfriend — Gary Bood-hoo — had committed the crime since he was with the victim shortly before, had used a ladder before at her apartment, had a key, and had beaten her previously. The evidence of prior beating was excluded.
In the sentencing order, the judge listed three aggravators: prior violent felony, committed during the course of a felony, and heinous, atrocious, or cruel (HAC). To support the prior violent felony aggravator, the judge cited Kim-brough’s prior convictions for both burglary of a dwelling with battery therein and sexual battery. The court found that the murder here was committed during sexual battery or attempt to commit sexual battery, citing DNA evidence and bruising, as well as evidence that the victim and defendant did not know each other. HAC was supported by the size of the victim, the three blows to her head causing fracture by blunt force, evidence of a struggle (the room was in disarray), and the amount of blood found around the room.
The judge considered age as a statutory mitigator (Kimbrough was nineteen), but rejected it because there was no evidence establishing that he was immature or impaired. The court considered the following nonstatutory mitigation: Kimbrough had an unstable childhood, maternal deprivation, an alcoholic father, a dysfunctional family, and a talent for singing. The court found that the mitigation did not temper the aggrava-tors.

Kimbrough v. State, 700 So.2d 634, 635-36 (Fla.1997).

Kimbrough filed a rule 3.850 motion on July 30, 1998, and an amended motion on March 10, 2000, raising twenty claims. The court held a Huff hearing on September 22, 2000. At the hearing, Kimbrough dropped three of his claims, and the court granted an evidentiary hearing on three other claims.

On April 26, 2002, after an evidentiary hearing, the court issued a detailed twenty-seven-page order denying Kimbrough 3.850 relief on all of his claims. This appeal followed.

Kimbrough appeals the denial of relief on claim nineteen and the denial of an evidentiary hearing on claims two, four, six, seven, and eighteen. Kimbrough also petitions this Court for a writ of habeas corpus.

I. AKE CLAIM

Kimbrough alleges that his trial counsel was ineffective and deprived him of the expert mental health assistance required by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). He alleges that defense counsel was ineffective for failing to call mental health experts, for failing to provide mental health experts with sufficient background information, and for failing to present statutory and nonstatutory mitigating evidence.

The State argues that the two experienced defense attorneys in this case provided extensive background evidence to the jury and hired two well-qualified experts to examine Kimbrough prior to the penalty phase. The State argues that trial counsel made a reasonable strategic decision not to present expert testimony during the penalty phase. Testimony from the evidentiary hearing on this claim is summarized below.

Testimony of Defense Counsel

Kimbrough was represented at trial by two attorneys, Patricia Cashman and Kelly Sims. Both Sims and Cashman are very experienced in capital cases. Cash-man testified that Dr. Eric Mings, a forensic criminal psychologist, was retained to conduct a psychological evaluation of Kimbrough and was originally listed as a defense witness. On February 11, 1994, prior to trial, Cashman filed a notice striking Mings from the witness list. Mings was removed from the list quickly so that the State could not depose him. Although she could not recall all of the reasons she had for striking Mings from the witness list, she stated that one of the reasons she struck Mings was because of the things Mings said about Kimbrough being a “psychopathic deviant” and the fact that she thought such testimony would hurt him in front of the jury. Cashman testified that the decision not to call Mings was a joint decision, made by her and Sims, and stated that before making such a decision she would have asked Mings whether he thought he could be helpful as a witness.

At the hearing, Cashman reviewed a note she wrote while preparing for the Kimbrough trial. The note reflected that Kimbrough denied having any problems, had relatives in Tennessee, was raised by his stepfather, and had no history of abuse. The “worst thing that happened to him” was that his cousin was killed at the age of sixteen. Kimbrough won talent show trophies for singing and had an intelligence quotient (IQ) of seventy-six, which was in the fifth percentile on the Wechsler Adult Intelligence Scale test (WAIS). He had an MMPI (Minnesota Multiphasic Personality Inventory) which was valid, but defensive. The note also stated that there was a spike on “scale four, psychopathic deviant endorsing items consistent with family discord, other scales normal.” She did not recall what exactly Mings told her about the psychopathic deviate scale.

Cashman had defended a number of cases prosecuted by Jeff Ashton, the prosecutor in this case, and was familiar with him and his trial tactics. She stated that Ashton liked to use a spike on scale four of the MMPI “[t]o make my client look really dangerous and make the jury scared of him and want to kill him.”

In addition to Mings, Cashman retained Dr. Robert Berland, a forensic psychologist, to conduct a pretrial evaluation of Kimbrough. Cashman apparently retained Berland in an attempt to find an expert who might be more favorable to Kim-brough for mental health mitigation purposes. Although Berland thought there were mental health issues which could have been presented at the penalty phase, he thought they would be difficult to present to the jury. Cashman chose not to put Berland on the stand because she thought he would testify that Kimbrough had “hidden craziness.” She was concerned that the prosecution would portray Kimbrough as faking mental illness and noted that Berland’s intelligence testing, which gave Kimbrough an IQ of ninety-four, placed him in the normal range of intelligence. Cashman was aware that the cutoff for mental retardation was seventy and that seventy-six reflected a low IQ.

Cashman testified that she always ensured the mental health experts she retained had adequate background information on her clients. She recalled that Kimbrough’s family members were not particularly cooperative in this case.

Kelly Sims, Cashman’s cocounsel, was certain that he had telephone conversations with Mings prior to the time Cash-man wrote the note that was found in Kimbrough’s file. Sims stated that his practice at the time was not to write notes that could prove harmful to his client because he thought they could fall into the wrong hands. Although he said Cashman was better at taking notes than he was, “she was specifically never going to put anything down that may hurt her client.” Sims explained any absence of notes from Cashman is evidence “that something bad happened because she is a prolific note-taker.” He did not recall any specific reasons for striking Mings from the witness list but said, “[I] know we must have talked about it and I was in agreement with it.” Sims further stated that if he had thought striking Mings was a mistake, he would have relisted him.

Sims testified that he thought Berland was retained as a second opinion to try to develop some mental health issues. He did not recall whether retaining Berland was his idea or Cashman’s. Sims testified that there was nothing in the public defender file that would tell him why Berland was not used but stated that the decision would have been made based on what Ber-land was going to testify to at trial.

With regard to waiving potential mental health mitigation, Sims testified that while others may have had input on the decision, ultimately it was his choice and his decision. He did not remember discussing with Kimbrough the decision not to present mental health mitigation. Sims testified that he did not want any record discussion of the issue and said, “I just did not want to bury any hope for Mark Kim-brough later down the line. And I think that’s what Ashton was trying to do. And that’s not my job to help clean up the State’s case.” Sims stated: “I know that in my relationship with Mr. Kimbrough I had laid out everything that we did and talked about the pros and cons of it and thought I would make some coherent cohesive argument about why we had to do A, B, or C and spent hours talking about it.” But, Sims thought he did not have a very good level of communication with Kim-brough. When asked about the theme of any mitigation defense, Sims stated:

I recall that the theme was thread bare, that the main theme was that it didn’t seem Mark had all that high of an IQ with respect to just dealing with figuring out problems in his life.
It seemed like he had a lot of people that loved him and a lot of family that embraced him and that kind of can be contra to finding good mitigation going because people were kind of, I mean, his family wanted him and wanted to help him and I guess there was a little bit of, back when he was a teen, I can recall that some of the family members saying we wanted him to live with us and they said, no, we want him to live with us.
I know he was a skilled singer.
He had gifts to share in that field.
But as far as being able to show physical abuse or sexual abuse and some kind of brain injury or organic brain dysfunction, I don’t recall us having any of that.

Sims thought that a low IQ was a potential mitigator but noted that there are plenty of inmates on death row who have been found to have IQs similar to Kim-brough’s. Moreover, Sims stated that part of his argument during the guilt phase was that Kimbrough would have been really dumb to rape and murder a girl in his own apartment complex, to let another person see him with a ladder, and to then watch the next morning while all of the crime scene investigators and detectives were there. Sims worried that if they presented the low IQ evidence, it might have led the jury to think, “Well, he might be a dope, so he would do something that would [make it] easy to catch him.”

Testimony of Prosecutor

The State called Jeffrey Ashton, the prosecutor at Kimbrough’s trial. Ashton was familiar with Cashman and Sims. Ash-ton testified that an elevation on scale four, psychopathic deviate, was the one he hoped for on an MMPI. He stated: “It is the one which, just by its name, is most appealing to a prosecutor. Because, when you can argue to a jury that this man has a high psychopathic deviant [sic] scale, just those words alone are a wonderful argument for a jury.” The words alone have a negative connotation. Ashton further stated:

[M]y experience generally is that when you ask for a definition of what does psychopathic mean, the definition you get is one of someone, you know, who lacks a well-developed conscience, you know, does not feel remorse, guilt, things of that general way. So it’s something that it’s hard to spin that as positive or sympathetic in my experience.

Ashton stated that if he had known a scale four would come up, he would have used experts to characterize Kimbrough as dangerous. He would have gone into the characteristics of psychopathy, would have quoted some of the “less favorable descriptions of psychopaths,” and would have equated psychopathy to antisocial personality disorder. He also stated he would have questioned expert witnesses about their knowledge of Kimbrough’s prior criminal acts, both charged and uncharged, and would have asked about previous known acts of violence.

As to a potential “remorse” mitigator, Ashton testified that “[expressions of remorse, when you’re in jail, after you’ve been caught and convicted, you know, are risk for argument of the insincerity of the supposed remorse.” He further noted that the remorse argument opens the door to testimony as to the actions or conduct of the defendant that are inconsistent with remorse. Questions of character and the like generally open the door to questions about the full range of the defendant’s possible misconduct. In this case, it might have opened the door for evidence that Kimbrough had previously been involved in a gang fight.

Testimony of Defense Investigator

The State called Barbara Pizarroz, the defense investigator. In the course of investigating Kimbrough’s case, Pizarroz spoke with some twenty-two witnesses, obtained school and medical records, and spoke with Dr. Berland in an attempt to find some supporting data for brain damage. She met with Kimbrough’s family members, friends, teachers, and coaches. Pizarroz traveled to Memphis as part of her investigation. She also met with Kim-brough on a number of occasions. She testified that for the most part he had a family who loved him.

Pizarroz testified:

For the most part, and I just don’t want to get personal, but for the most part he has a family who just absolutely loves him. They spoke well of him, very caring. They were, you know, all totally devastated by this incident. And for the most part, you know, he had a family that absolutely loved him. But he was kind of shuffled from family member to family member, you know, when he was young.
As far as his parents are concerned, that was a situation where Mark ... learned as a young boy that he was fathered by someone other than who he believed to be his father. And then he became involved with another gentleman who was with his mom for, I don’t know, six or eight years who took on a father figure.

Prior to Kimbrough’s trial, Pizarroz had worked on a number of cases with Ber-land, obtaining information that Berland needed to make his evaluation. In general, she was familiar with what information a mental health expert would need in a first-degree murder case. By the time she investigated the Kimbrough case, she had worked dozens and dozens of cases where the mental health aspect of a case was important. Pizarroz was also familiar with Mings and had supplied information to him for past evaluations.

Testimony of Mental Health Experts

Mings testified that a spike on scale four, psychopathic deviate, is not a formal DSM diagnosis. He could not recall diagnosing Kimbrough with antisocial personality disorder, but it was possible that he discussed antisocial personality with Cashman as a possible diagnosis for Kim-brough. He stated that scale four of the MMPI measures traits which are found in persons with antisocial personality disorder but noted that such traits can also be found in normal people. Mings spent about eight hours with Kimbrough in testing and then another seven hours or so scoring the tests, reviewing background materials, and talking to attorneys. He requested an additional five hours for background material, and while he had no clear recollection, his impression was that he did not get much from Kimbrough and wanted to talk to other people to find out more details.

Dr. Bill Mosman, a forensic psychologist and practicing attorney from the Miami, Florida, area, testified regarding potential statutory and nonstatutory mitigators which were not introduced at trial. Mos-man reviewed various materials provided by Berland, reviewed the work of Dr. Sidney Merin, the State’s mental health expert, reviewed the sentencing transcript, reviewed school records, and had conversations with Berland. Mosman did not personally examine Kimbrough prior to testifying and did not administer any tests to Kimbrough. He reviewed the defense investigator’s file and recognized that Pi-zarroz “did voluminous amounts of work.” From his review of the materials, Mosman thought that “from a statutory point of view, there were 5 statutory mitigators that were available and well reasonably could have been argued. From a hyper technical point of view there were three, but two of those are disjunctive.” As to the potential statutory mitigators, Mosman stated:

They are a felony was committed while under the influence of extreme mental disturbance, felony committed while under the influence of extreme emotional disturbance, and mental is different than emotionally, capacity to appreciate the criminality of his conduct was substantially impaired, capacity to conform his conduct to the requirements of law was substantially impaired.
Age of the defendant at the time of the crime clearly, clearly, multiple severe impairments in that area, these are the statutory ones.

Mosman testified that his review of the record and applicable case law revealed some thirty nonstatutory mitigators that could have been argued to the jury. Mos-man stated:

The 30 are clearly a potential, an ability to be rehabilitated. There is a lack of family life that’s separate. And background. Those are not the same ones. To collapse them is a complete misunderstanding of what the mental health process and the development of the child is all about.
There was history of neglect, disadvantage or deprived childhood, clearly educational deficits, emotional impairments, and results of any emotional disturbance. Those are separate and separately found in forensic materials and training in cases, emotional disturbance, even if not extreme.
There is extreme mental or emotional disturbance which is separate again, mental impairments, both cognitively and intellectually in the record. It’s right in the data base.
Medical problems or history of injuries that is in the records, utilization, drugs or alcohol, previous contributions to the community or society. That was, is, and existed in the records. Psychological difficulties.
There is another one that’s recognized and it’s a tongue twister. It’s called ia-trogenises from the systems and it’s spelled “iatrogenises.” Forensically, that’s described as systems aware of problems and fail to deal with it. And we’ll get into what that means later.
Remorse, positive confinement record, excuse me, and because I am testifying today and all of those record we would add another one, a good prison record. There is another one, behavior during trial. Those are disjunctive, not the same thing at all. Non anti-social personality, cannot be diagnosed, and that has to be a non-statutory mitigator in these types of situations. Can function in a structured environment. That’s a separate one. Crime, itself, was out of character to the preincident situation Another one, he lost his cousin several years ago. Any impact that had on him. Failure to maintain relationship with family members that is in the records and it has been separately to be found mental health related non-statutory miti-gators.
Mild brain abnormality. I will say that again. Mild brain abnormality. M.Y.D. mental, grew up without a father is separate from the background issue and lack of family life, educational difficulties, positive traits and I can’t even read my handwriting here. Yes. I can.
Mental and emotional handicaps, so those in a summary and while I understand some sound similar, they are actually different but the last one or two perhaps from a real technical mental health perspective, they are separate they enter play out on what was going on here so I think that if you count them up, that would be 30 non-statutory and 5 statutory from a mental health perspective.

Mosman also testified that Kimbrough had an extreme emotional disturbance at the time of the crime due to various stressors which were acting on his life.

Mosman stated that Kimbrough’s capacity to conform his conduct to the requirements of the law was substantially impaired. This impairment was based upon the lack of “stability” or “consistency” in Kimbrough’s upbringing. During his upbringing, Kimbrough learned that if he had emotional needs he had to take care of them himself.

In support of the statutory age miti-gator, Mosman explained that “[a]ge has to do with mental age, developmental age, social age, intellectual age, moral age.” Kimbrough rated a ten percentile rating “from all the years of academic functioning.” His school records also reflected annual testing where “76 out of 100 of his same age peers were educationally much more sophisticated and skilled than he.” Mosman calculated that based on an IQ of seventy-six, Kimbrough had the intellectual efficiency of a thirteen-year-old child. Kimbrough’s emotional age, his ability to relate and engage in mature interpersonal relationships, was also low.

On cross-examination, Mosman acknowledged that this was not the first time he had testified in a capital case that a defendant’s mental age does not match his chronological age. He had previously testified that a thirty-eight-year-old man had the mental or developmental age of a fourteen-year-old. Mosman was not aware that this Court upheld the trial court’s rejection of this proposed mitigator because his opinion was contradicted by the other twenty-five witnesses called by the defense during the penalty phase. He agreed that none of the various IQ test scores in this case placed Kimbrough in even the mild mental retardation range.

Mosman noted that Pizarroz found notes from a long-term girlfriend of Kim-brough’s who said that he was well-mannered and stated that Kimbrough was able to maintain relationships with “cousins, aunts, uncles, people that he met.” Relying on this evidence, Mosman testified that a jury could conclude that the Collins rape and murder, followed by one other rape was out of character for Kimbrough. Mos-man referred to a Federal Bureau of Investigation manual describing the various types of rapes and concluded that Kim-brough’s second rape fit the “expressions of relationship fantasies” category. On cross-examination, however, Mosman agreed that his testimony concerning relationship “fantasy rape” was made without having talked to Kimbrough about what he was thinking at the time he committed the rape.

Mosman stated that mild brain abnormality might be found in the frontal lobe and “could have been argued.” He thought the Weschler and MMPI tests could be used to argue brain damage or abnormality even though a PET scan rendered a normal reading. Although Mos-man did not administer any tests to Kim-brough, he thought referrals could have been made to obtain additional testing.

Mosman noted that Kimbrough exhibited no evidence of a conduct disorder prior to the age of fifteen, was not aggressive, was not a disciplinary problem in school, and behaved well with his family. Accordingly, Mosman said that antisocial personality disorder could not be diagnosed in this case.

On cross-examination, Mosman said that he has been called to testify in thirty to thirty-five homicide and capital postconviction cases in Florida since 1990. In each of these cases, Mosman was called by the defense. When asked about the underlying data to support his opinion that the statutory mental mitigators applied at the time of the crime, Mosman asserted that he relied upon Kimbrough’s traditional level of functioning. However, Mosman agreed that he did not talk to Kimbrough’s mother, his other relatives, his friends, or his girlfriend to see if Kimbrough was somehow disordered in his thoughts at the time of the Collins murder. Mosman said that he did not do so because “[t]hey would have, in all probability, no information on that issue at all.”

In rebuttal, the State called Dr. Sidney Merin, a psychologist specializing in clinical psychology and neuropsychology. Me-rin conducted a court-ordered neurological and psychological examination of Kim-brough. He also reviewed background materials relating to Kimbrough and the criminal proceedings against him. Merin interviewed and tested Kimbrough for just over six hours. He administered an IQ test and testified that Kimbrough had a full scale IQ of eighty-one, which is in the low average range. Merin thought that Kimbrough had a learning disability and that his “fund of information” was low. Merin also administered other tests which placed Kimbrough in the lower end of the average range. Merin stated: “I would conclude that he’s probably in the low average range overall.”

Merin testified that tests performed on Kimbrough revealed a statistically significant elevation in the psychopathic deviate scale. As to the significance of this result, Merin stated:

What you’re more likely to say is this represents a significant degree of real rebelliousness in the personality, a significant degree of superficiality, an inclination not to become deeply, emotionally involved with others, although on the surface they can appear very nice. They make a good first impression. And after you talk with them a while, you begin to see what they’re saying doesn’t fit together, doesn’t seem to— it’s not that it doesn’t make sense, but it seems to be selfserving. Also found with people who have conflict with authority, who are manipulative, who are confidence people, who can act impulsively, who can defy the rules, who can be insensitive to the feelings of others, have a lot of difficulty with empathy. These are people who sometimes have a history of being under-achievers. Or, again, they may be impulsive, may have a tendency to blame their family for whatever occurs to them or blame other people for whatever occurs to them, although projection on this scale is not necessarily a prominent feature.

Merin testified that based on the results of all the tests he administered, he did not find that Kimbrough suffered from a serious emotional or mental disorder. However, he did find an Axis II, or behavioral disorder, and a general personality disorder with borderline and antisocial features. Merin also diagnosed a learning disability, which was due to Kimbrough’s personality characteristics and not due to brain damage. As far as brain functioning, Merin said that he did not see any problems.

Merin testified that he would not have found any statutory mitigating circumstances in this case. As a single nonstatu-tory mitigator, Merin might have found a borderline personality disorder which had its underpinnings possibly in Kimbrough’s unstable early childhood. He noted, “that’s a rather mild non-statutory.” Me-rin did not find any evidence that Kim-brough suffered from an extreme mental or emotional disturbance at the time of the crimes and did not find any evidence that Kimbrough’s capacity to appreciate the criminality of his conduct at the time of the crime was substantially impaired.

Merin did not find evidence to support a conclusion that Kimbrough’s developmental or emotional age was less than his chronological age. Merin also did not agree that Kimbrough qualifies for a borderline intellectual functioning diagnosis, stating:

Well, first of all, I don’t agree with your definition of borderline because — I don’t agree with it because he’s got many areas where he’s perfectly average. So I would not in any way- — I would not in any way suggest that he has a borderline, whatever it was, diagnosis that you’re referring to. And you asked which ones? Well, let’s just take a look at it. I referred to them earlier. We can take a look at it again. Average vocabulary, average verbal abstraction scores, average visual reasoning, average nonverbal comprehension skills and several of those are just a smidgin below average. So I would not in any way suggest that he’s got that borderline intellectual deficit. If you’re just gonna use a number — which doesn’t really mean anything, any psychologist will tell you those IQ numbers don’t mean anything, because next week it could change. What you look for are levels and the way it’s distributed.

Trial Court’s Findings

In its order denying Kimbrough’s 3.850 motion, the court devoted eight pages to the resolution of Kimbrough’s Ake claim and set forth its factual findings. The court agreed that Cashman misunderstood the' significance of the psychopathic deviate scale but noted that Sims, who understood the scale, concurred with striking Mings. The court held that the decision not to call Mings and Berland was a reasonable trial tactic.

The court found that Kimbrough failed to establish that additional materials or preparation would have enabled Mings, Berland, or any other doctor to conduct a more thorough mental health evaluation or to provide mitigation testimony sufficient to outweigh any of the potential risks associated with their testimony.

As to the potential mitigation found by Mosman, the court noted that he did not conduct any independent testing and that there were no witnesses at the evidentiary hearing who could have presented direct evidence regarding these potential miti-gators. The court further concluded that many of the mitigators cited by Mosman would have been given little or no weight.

A. APPLICABLE LAW

1. Standard of Review

Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review based on the test espoused in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail, the defendant must first show that counsel’s performance was deficient, which requires a showing “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Second, the defendant must show that the deficient performance prejudiced the defense, which requires a showing “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. Absent both showings, “it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. In reviewing counsel’s performance, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. In determining whether counsel’s performance amounted to ineffective assistance, an appellate court must conduct an independent review of the trial court’s legal conclusions while giving deference to the trial court’s factual findings. Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999).

2. Ineffective Assistance of Counsel

The United States Supreme Court held in Ake that where an indigent defendant demonstrates to the trial judge that his sanity at the time of the offense will be a significant factor at trial, the State must “assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake, 470 U.S. at 83, 105 S.Ct. 1087.

In Ragsdale v. State, 798 So.2d 713 (Fla. 2001), this Court noted that “[a]n attorney has a strict duty to conduct a reasonable investigation of a defendant’s background for possible mitigating evidence.” 798 So.2d at 716 (quoting State v. Riechmann, 777 So.2d 342, 350 (Fla.2000)). The record in Ragsdale established that “counsel essentially rendered no assistance to Rags-dale during the penalty phase of trial.” Ragsdale, 798 So.2d at 716. The Court stated that “[t]he record at the 3.850 evi-dentiary hearing conclusively establishes that counsel failed to investigate and present at the penalty phase an abundance of potential mitigating evidence.” Id. At the evidentiary hearing, Ragsdale presented the live testimony of three siblings and the deposition testimony of two other siblings who testified as to Ragsdale’s extensive history of abuse during his childhood. Id. The court stated:

Dr. Berland [the defense psychologist] concluded that Ragsdale was psychotic at the time of the offense, and thus the statutory mitigating circumstances of extreme mental or emotional disturbance and inability to conform to the requirements of law applied in the instant case. Dr. Berland also identified a list of nonstatutory mitigating factors including organic brain damage, physical and emotional child abuse, history of alcohol and drug abuse, marginal intelligence, depression, and a developmental learning disability.

Id. at 718. Although the State’s expert witness did not agree that Ragsdale was psychotic and had suffered organic brain damage, he offered no opinion as to the applicability of the statutory mental miti-gators. The State’s witness admitted that Ragsdale had a severe learning disability, that Ragsdale’s IQ score was in the borderline retarded range, that Ragsdale’s brain was impaired, and that Ragsdale had a personality disorder with paranoid features. Id. On this basis, the Court held that “the conclusion is inescapable that there was available evidence from experts which would have supported substantial mitigation but which was not presented during the penalty phase.” Id.

The Court distinguished Ragsdale from Cherry v. State, 781 So.2d 1040 (Fla.2000), and Asay v. State, 769 So.2d 974, 988 (Fla.2000). In Cherry, the Court denied an ineffective assistance of counsel claim because Cherry was uncooperative and precluded his counsel from investigating and presenting evidence in mitigation. In Asay, the Court affirmed the rejection of an ineffectiveness claim where the attorney was informed of the defendant’s abusive background and, after contacting potential witnesses, made a strategic decision to forego the presentation of nonstatutory mitigation to avoid “opening] the door to damaging cross-examination regarding [defendant’s] violent past.” Asay, 769 So.2d at 988. The Court held that “defendant’s attorney was not deficient where after receiving an initial unfavorable report from the examining psychologist the attorney decided to discontinue his investigation for mental mitigation evidence.” Id. at 986; see also Jones v. State, 732 So.2d 313, 320 n. 5 (Fla.1999) (affirming trial court’s finding that counsel had made reasonable tactical decision to forego further investigation of mental health mitigation evidence after receiving initial unfavorable diagnosis); Correll v. Dugger, 558 So.2d 422, 426 (Fla.1990) (a mental health examination is not inadequate simply because a defendant is later able to find experts to testify favorably based on similar evidence).

B. APPLICATION OF LAW

Kimbrough asserted that defense counsel was ineffective for failing to call Mings and Berland, for failing to provide Mings and Berland with sufficient background information, and for failing to present statutory and nonstatutory mitigating evidence. Although this Court conducts an independent review on questions of law, it must give deference to the trial court’s factual findings.

1. Failure to call Dr. Mings or Dr. Berland

The court found that there was insufficient testimony presented at the evi-dentiary hearing to establish either deficient performance or prejudice on the part of defense counsel for failing to call Mings or Berland at trial. The court found that Cashman’s repeated references to the “psychopathic deviant” scale suggest that she did not fully appreciate the significance of the MMPI results and may have thought the evidence was more harmful than it actually was. However, the court noted that Cashman’s cocounsel, Kelly Sims, understood the meaning of the scale and stated that he also would not have presented the evidence.

Cashman stated that there were mental health issues which could have been presented as mitigation but asserted that Ber-land would have found them difficult to present, and Cashman was concerned that the State would portray Kimbrough as someone who was faking mental illness. Sims was also concerned that Mings would testify that Kimbrough had no morals and would do whatever he wanted to do. He agreed that the defense could not risk opening the door to the introduction of a lot of bad information just' to get in a small amount of helpful information.

Testimony at the evidentiary hearing corroborated Cashman’s concern that Ash-ton would have used the MMPI results to portray Kimbrough in a bad light. The court concluded that counsel’s decision not to call Dr. Mings or Dr. Berland as witnesses was a reasonable trial tactic. We agree with the trial court. Cashman and Sims weighed the mitigation evidence Mings and Berland could have presented against the potential risks of having them testify. The strategic decision Cashman and Sims made not to have Mings and Berland testify at trial was a reasonable trial tactic and did not constitute deficient performance. See Griffin v. State, 866 So.2d 1, 9 (Fla.2003) (citing Ferguson v. State, 593 So.2d 508 (Fla.1992), and State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987) (holding that “[strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected”)).

2. Failure to Provide Doctors With Sufficient Background Material

Kimbrough alleged that Mings and Berland were not provided sufficient background material to conduct a thorough mental health evaluation. The court held that the supporting facts required for an ineffective assistance of counsel claim in this respect are glaringly absent. No witnesses at trial could recall exactly what records were provided to, or withheld from, the defense experts. Kimbrough did not establish that additional materials or preparation would have enabled Mings or Berland to conduct a more thorough mental health evaluation. The court held that Kimbrough failed to meet his burden of proof.

We agree with the trial court’s denial of relief on this claim. To establish deficient performance, Kimbrough must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Kimbrough failed to meet his burden of proof in this case.

S. Other Mitigation Evidence

Dr. Mosman asserted at the evi-dentiary hearing that there were numerous statutory and nonstatutory mitigators which should have been presented at trial. The court noted that Mosman did not conduct any independent testing of Kim-brough and that there was no evidence presented to support the existence of the proposed mitigators or to establish the weight they would have carried if presented to the jury during the penalty phase. The court also concluded that many of the mitigators cited by Mosman would have been given little or no weight. On this basis, the court held that Kimbrough failed to meet his burden of proof.

In support of his argument, Kimbrough cites Ragsdale. In Ragsdale, this Court held that counsel was ineffective when counsel presented no mitigation at the penalty phase, and the existence of an abundance of mitigators was undeniably shown at the evidentiary hearing. In this case, the mitigators presented by Mosman were based on speculation and conjecture and were rebutted by the State’s expert witness. Additionally, the mitigators would have been given little or no weight by the court. The facts of this case are more similar to those in Asay where the Court affirmed the rejection of an ineffectiveness claim where defense counsel made a strategic decision to forego the presentation of nonstatutory mitigation to avoid opening the door to damaging cross-examination regarding the defendant’s violent past. Asay, 769 So.2d at 988. The Court held that the “defendant’s attorney was not deficient where after receiving an initial unfavorable report from the examining psychologist the attorney decided to discontinue his investigation for mental mitigation evidence.” Ragsdale, 798 So.2d at 719. It is clear from the evidentiary hearing testimony in this case that mental health mitigation was investigated and counsel made a strategic decision not to present the mitigation. Counsel’s actions in this case were not deficient, and Kim-brough’s claims are without merit.

II. SUMMARY DENIAL OF CLAIMS

Kimbrough argues that the trial court erred when it denied an evidentiary hearing on five of the claims in his rule 3.850 motion. The State argues that the court properly denied the claims without a hearing.

A. APPLICABLE LAW

1. Standard of Review

This Court has repeatedly stated the standard of review for summary denial of a rule 3.850 claim:

To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by the record.

Peede v. State, 748 So.2d 253, 257 (Fla.1999) (citation omitted). A movant is entitled to an evidentiary hearing on a claim of ineffective assistance of counsel if he or she alleges specific “facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.” Gaskin v. State, 737 So.2d 509, 516 (Fla.1999) (quoting Roberts v. State, 568 So.2d 1255, 1259 (Fla.1990)).

B. APPLICATION OF LAW

1. Claim Two

Kimbrough alleged he was denied the effective assistance of counsel when counsel failed to adequately challenge the credentials of Charles Badger, a Florida Department of Law Enforcement (FDLE) employee and expert witness for the State. At trial, the defense declined to voir dire Badger stating, “We’re familiar with Mr. Badger.” Kimbrough argues that without an evidentiary hearing he was unable to inquire as to counsel’s reasons for not conducting voir dire as to Badger’s credentials. The State argued that Kimbrough failed to show how the decision not to voir dire the witness actually prejudiced Kim-brough because he did not allege that Badger was actually unqualified or that any specific damaging facts could have been revealed through further questioning.

The trial court stated that Kimbrough’s allegations were conclusory and that Kim-brough failed to demonstrate what questions counsel should have asked or how those questions would have impeached Badger’s credibility. The court held that Kimbrough failed to demonstrate either deficient performance or prejudice. The record in this case shows that Badger held a bachelor’s degree, had been trained as a forensic serologist, and had been qualified to testify in Florida courts “twelve or thirteen times.” There is no basis in the record for alleging that counsel’s decision not to voir dire Badger constituted deficient performance. Kimbrough has failed to allege specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant. See Gaskin v. State, 737 So.2d 509, 516 (Fla.1999). Summary denial of this claim was pr'oper.

2. Claim Four

Kimbrough alleged that his right to a jury composed of a cross-section of the community was violated by counsel’s ineffectiveness during voir dire when counsel failed to rehabilitate Mattie Barnwell, one of the few African-Americans on the venire panel. Barnwell stated that she would do away with the death penalty and, although she understood it was part of the law in Florida, she would not be able to go along with the law and swear to follow it. Additionally, Kimbrough alleged that counsel failed to correct the state attorney’s inaccurate statement that the juror would have to “take an oath swearing before God to follow the law of Florida,” when in fact jurors may either swear or affirm. Kim-brough asserts that without an evidentiary hearing he was unable to inquire as to counsel’s reasons for not conducting voir dire as to this juror in an effort to rehabilitate her.

The court noted that the standard for determining whether a prospective juror may be excused for cause because of his or her views on the death penalty is whether those views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The court also noted that Kimbrough did not offer in his 3.850 motion any specific questions that could have been asked to rehabilitate the juror, and it was unlikely any attempt to do so would have been successful.

Based on the statements made by Barn-well, it is clear that any attempt at rehabilitation would have failed. Counsel’s performance was not deficient and summary denial was proper. See Gaskin v. State, 737 So.2d 509, 516 (Fla.1999); see also Reaves v. State, 826 So.2d 932 (Fla.2002)(affirming summary denial of ineffective assistance claims where no challenge for cause would have been successful for named jurors and where claims that followup questions would have revealed a basis for cause challenges constituted mere conjecture).

3. Claims Six and Eighteen

Kimbrough alleged that counsel was ineffective (1) when, during voir dire, counsel failed to discover a juror’s connection with the FDLE; and (2) when defense counsel failed to move for a mistrial after the State disclosed that the juror, Eddie Julian, had a connection with an FDLE employee. Julian’s fiancé worked in the FDLE crime lab, and Julian had taken courses in DNA. The State argued that these factors do not establish a reasonable probability that the outcome of the trial would have been different if these facts had been brought out on voir dire. At trial, defense counsel filed a motion for new trial and a motion to voir dire Julian. After a detailed hearing conducted August 8, 1994, at which Julian was thoroughly examined, the court denied the motion for new trial.

As the postconviction court stated, “The underlying substance of this claim is clearly Mr. Julian’s potential bias, an issue which could have been raised on direct appeal because it was thoroughly addressed at the conclusion of the trial.” On this basis, the court rejected the claim as procedurally barred, finding that it could have been raised on direct appeal. To the extent Kimbrough seeks review of the substantive issue underlying his ineffective assistance of counsel claim, we agree. See Maharaj v. State, 684 So.2d 726 (Fla.1996) (holding that postconviction relief claims which either were raised or could have been raised on direct appeal were properly denied without an evidentiary hearing); see also Sireci v. State, 469 So.2d 119, 120 (Fla.1985) (“Claims previously raised on direct appeal will not be heard on a motion for post-conviction relief simply because those claims are raised under the guise of ineffective assistance of counsel.”). As to Kimbrough’s claim that counsel was ineffective, Kimbrough has failed to establish prejudice. Thus, summary denial was proper. See Gaskin v. State, 737 So.2d 509, 516 (Fla.1999).

A Claim Seven

Kimbrough alleged that counsel was ineffective when counsel failed to move for a mistrial after the State made three improper closing arguments which implied that Kimbrough should have presented certain evidence but failed to do so. At trial, defense counsel objected to each of the three arguments, and the court sustained each objection. The court admonished the prosecutor after the second comment and objection, stating: “You have a tendency to make it like they’ve got a responsibility here. They don’t and that’s mistrial material. Don’t do it.” The court gave two curative instructions during closing argument to inform the jury that the defense was not required to put on evidence. After the jury was excused to deliberate, the court asked Kimbrough if he wanted to request a mistrial. Kimbrough stated that he had spoken with his counsel and agreed that it would not be a good idea to request a mistrial. Kimbrough asserts that without an evidentiary hearing he was unable to inquire as to counsel’s reasons for not requesting a mistrial.

In Spencer v. State, 645 So.2d 377, 383 (Fla.1994), this Court stated:

In order for the prosecutor’s comments to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.

The court in this case found that the curative instructions were sufficient to correct any misconception in the minds of the jurors, and further found that the comments were simply not prejudicial enough to warrant a mistrial. The court held that counsel’s obligations were fulfilled by raising timely objections, and if a new trial had been granted, there is no reasonable probability that the outcome would have been different. Defense counsel timely objected in this case, and the court gave two curative instructions. Counsel then discussed with Kimbrough whether or not he wanted to request a mistrial, and Kim-brough stated that he did not want to request a mistrial. Kimbrough has failed to allege specific “facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.” Gaskin v. State, 737 So.2d 509, 516 (Fla.1999). Summary denial was proper.

III. HABEAS CORPUS CLAIMS

Kimbrough raises two claims in his petition for habeas corpus. He first argues that Florida’s death sentencing statutes as applied are unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court has previously declined to hold that Florida’s death penalty scheme is unconstitutional on the basis of Apprendi or Ring. See Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002); King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002).

Additionally, one of the aggravators in this case was a prior conviction for “burglary of a dwelling with a battery therein” and sexual battery. The prior violent felony aggravator alone clearly satisfies the mandates of the United States and Florida Constitutions. See Doorbal v. State, 837 So.2d 940 (Fla.), cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003). This claim is without merit.

Kimbrough next argues that his Eighth Amendment right against cruel and unusual punishment will be violated as he may be incompetent at the time of execution. Kimbrough notes that although a claim of incompetency to be executed cannot be asserted until a death warrant has been issued, federal law requires that, in order to preserve a competency to be executed claim, the claim must be raised in the initial petition for habeas corpus.

Under Florida Rules of Criminal Procedure 3.811 and 3.812, the issue of competency for execution cannot be raised until the Governor has issued a death warrant. See, e.g., Cole v. State, 841 So.2d 409, 430 (Fla.2003); Brown v. Moore, 800 So.2d 223, 224 (Fla.2001). Kimbrough asserts that he raises this claim to preserve his ability to pursue a similar claim in the federal system. Kimbrough’s concession that this issue is not yet ripe is accurate. Accordingly, this claim is without merit.

CONCLUSION

For the reasons stated above, we affirm the lower court’s denial of Kimbrough’s rule 3.850 motion and deny Kimbrough’s petition for a writ of habeas corpus.

It is so ordei-ed.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO and BELL, JJ., concur.

ANSTEAD, C.J., concurs specially with an opinion.

CANTERO, J., concurs specially with an opinion, in which WELLS and BELL, JJ., concur.

ANSTEAD, C.J.,

specially concurring.

I concur in the majority opinion in all respects except for its discussion of the decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

CANTERO, J.,

specially concurring.

I concur in the majority opinion. Moreover, regarding Kimbrough’s claim that Florida’s capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), I also would hold, for the reasons stated in my specially concurring opinion in Windom v. State, 886 So.2d 915, 935-52, 2004 WL 1057640 (Fla. May 6, 2004), that Ring does not apply retroactively.

WELLS and BELL, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

      . In this amended motion, Kimbrough alleged that: (1) he was denied the right to fully investigate and prepare his postconviction pleadings because the court required that the motion be filed before the results of DNA testing were concluded; (2) counsel was ineffective for failing to adequately challenge the credentials of state expert witness Charles Badger; (3) counsel was ineffective for failing to request an inquiry as to the general scienti-fie acceptance of the DNA technique employed at trial; (4) Kimbrough’s right to a jury composed of a cross-section of the community was violated by counsel’s failure to rehabilitate venireperson Mattie Barnwell; (5) counsel was ineffective for failing to voir dire juror Louisa Devose regarding her connection to the crime scene; (6) counsel was ineffective for failing to discover during voir dire juror Eddie Julian’s connection with the Florida Department of Law Enforcement; (7) counsel was ineffective for failing to move for a mistrial after the State’s improper closing argument; (8) Florida’s capital sentencing statute is unconstitutional on its face and as applied; (9) Kimbrough was denied his right to a fair and impartial jury by prejudicial pretrial publicity, by the lack of a change of venue, by a failure to sequester the jury, and by events in the courtroom during trial; (10) counsel was ineffective for allowing excessive security measures or shackling at trial to deprive Kimbrough of a fair trial; (11) execution by lethal injection constitutes cruel and unusual punishment; (12) execution by electrocution is cruel or unusual punishment; (13) Kimbrough's trial was fraught with procedural and substantive errors which denied him a fair trial; (14) the jury received inadequate guidance concerning the aggravating circumstances to be considered; (15) the penalty phase jury instructions were incorrect under Florida law, the sentence of death is unconstitutional, and counsel was ineffective for failing to object; (16) Kimbrough’s sentence rests upon an unconstitutionally automatic aggravating circumstance; (17) counsel was ineffective for failing to object when the State overbroadly and vaguely argued aggravating circumstances; (18) counsel was ineffective for failing to move for a mistrial after the State disclosed that one of the jurors had a connection with a Florida Department of Law Enforcement employee; (19) Kimbrough was denied his right to adequate mental health assistance under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); and (20) counsel was ineffective for failing to adequately present available alibi witnesses.

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . Claims one, three, and twenty.

      . Claims five, ten, and nineteen.

      . Although the note referred to “psychopathic deviant,” the note apparently referred to a spike on the “psychopathic deviate scale,” one of the scales in the MMPI. There was some evidence that Cashman confused the name of the scale with an actual diagnosis that Kimbrough was a psychopathic deviant.

      . American Psychiatric Ass'n, Diagnostic and Statistical 'Manual of Mental Disorders (4th ed.2000).

      . Between the time of the Collins murder and the time he was charged with the murder, Kimbrough committed another rape. He pled guilty to the rape charge.

      . The court noted that Kimbrough, through the actions and inactions of collateral counsel, contributed to his inability to meet his burden of proof. The court stated:
      Instead of immediately attempting to obtain statements and records from trial counsel and examining doctors only 5 years after the trial, when recollections would have been fresher and records less likely to be missing, CCRC [Capital Collateral Regional Counsel] engaged in one delay tactic after another. Although CCRC’s dilatory conduct made its job more difficult, CCRC has exhausted every conceivable avenue of relief on Defendant's behalf.