source: Caselaw Access Project

author: PER CURIAM.

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text:
    Leonardo FRANQUI, Appellant, v. STATE of Florida, Appellee. Leonardo Franqui, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC04-2380, SC06-36.
    Supreme Court of Florida.
    May 3, 2007.
    Rehearing Denied Sept. 10, 2007.

      Mary Catherine Bonner, Fort Lauder-dale, FL, for Appellant/Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee/Respondent.
   PER CURIAM.

Franqui appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the circuit court’s order denying postconviction relief and deny Franqui’s habeas petition.

FACTS AND PROCEDURAL HISTORY

The facts of this crime are set forth in our opinion from Franqui’s direct appeal after resentencing, Franqui v. State, 804 So.2d 1185 (Fla.2001) (Franqui II). For the purposes of these proceedings, we note that Franqui was convicted of first-degree murder of a law enforcement officer, armed robbery, aggravated assault, two counts of grand theft, and two counts of burglary following the robbery of Kislak National Bank in North Miami. Id. at 1189-90. Franqui was sentenced to death by the trial court after a jury recommended a death sentence by a vote of nine to three. Id. at 1190. Franqui’s convictions were affirmed on his first direct appeal but his case was remanded for resen-tencing. See Franqui v. State, 699 So.2d 1332, 1333 (Fla.1997) (Franqui I). After a new penalty phase, Franqui was again sentenced to death after a jury recommendation for death by a vote of ten to two. Franqui II, 804 So.2d at 1190. In sentencing Franqui to death, the judge found three aggravating circumstances, no statutory mitigating circumstances, and four nonstatutory mitigating circumstances. Id. at 1191. In his second direct appeal to this Court, Franqui raised six claims for relief. Id. This Court rejected all six claims and affirmed Franqui’s death sentence. Id. at 1199.

Franqui filed a rule 3.851 petition for postconviction relief on April 7, 2003, raising eighteen claims for relief. The trial court granted an evidentiary hearing on four claims: whether the waiver of his right to testify was voluntary, whether counsel was ineffective for failing to prosecute a motion to suppress his confession, whether counsel was ineffective for failing to present relevant witnesses at a hearing on Franqui’s motion to suppress, and whether counsel was ineffective for failing to litigate the involuntary nature of his confession to the sentencing jury. The trial court ultimately denied postconviction relief on all claims. Franqui now appeals that decision to this court, raising eight claims of trial court error. He has also filed a petition for writ of habeas corpus in this Court.

Franqui was also sentenced to death for the first-degree murder of Raul Lopez during the robbery of a check-cashing business in Hialeah (the “Hialeah murder”). Franqui v. State, 699 So.2d 1312, 1315 (Fla.1997). On direct appeal, this Court found error regarding the admission of evidence but found that error to be harmless and affirmed Franqui’s convictions and sentences, including his death sentence. Id. Franqui subsequently filed a 3.851 motion for postconviction relief in that case. That motion was also denied by the trial court and review by this Court is pending in a separate appeal.

POSTCONVICTION CLAIMS

1. Ineffective Assistance of Trial Counsel

Franqui alleges that his trial counsel, Eric Cohen, was ineffective for failing to litigate the motion to suppress Franqui’s confession, failing to present mental health mitigation and evidence of coercion at Franqui’s resentencing, and for conduct during voir dire regarding two potential jurors.

Based upon the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted).

Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

There is a strong presumption that trial counsel’s performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” We have also explained that where this Court has previously rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to advance the same claim in the trial court. Melendez v. State, 612 So.2d 1366, 1369 (Fla.1992).

A. Failure to Litigate the Motion to Suppress Franqui’s Confession

Franqui raised a number of claims in the trial court involving an assertion that trial counsel did not properly litigate a motion to suppress Franqui’s confession. Prior to the guilt phase in the instant trial, defense counsel agreed to the trial court’s use of the transcripts from a hearing on a similar suppression motion filed in the Hialeah murder case. Upon review, we find no fault with the lower court’s conclusion that trial counsel’s decision to stipulate to the use of the transcripts from the Hialeah case hearing was reasonable.

After being detained and questioned, Franqui gaye two separate statements to the police on the same day regarding both the instant crime and the Hialeah murder, and trial counsel ultimately moved to suppress both confessions, in each case. However, the evidentiary hearing on the motion to suppress the Hialeah statement occurred a little more than one year prior to the hearing on the instant motion to suppress. The record of the hearing in the Hialeah case indicates that the focus of that hearing was on both the circumstances of the instant crime and statement as well as the Hialeah crime and confession. The testimony from all of the witnesses presented at that hearing, Franqui included, focused on both statements: the officers detailed when Franqui was read his rights during the day and in relation to which crime, and defense counsel Cohen questioned each of them in great detail, including asking them to specify at which points Franqui supposedly agreed to keep talking without counsel present. Thus, the underlying circumstances relating to the issues Franqui is now claiming were not fully explored in the instant hearing were in fact comprehensively explored during the previous hearing in the Hialeah case in front of the same judge and with the same parties. As defense counsel Cohen explained to the court in agreeing to the stipulation for use of the transcripts, any testimony and cross-examination of Officers Crawford, Rivers and Smith was likely to be “identical.” Under these circumstances, defense counsel could have reasonably concluded that requiring these officers to be called again was unnecessary and potentially counterproductive. Given the comprehensive nature of the first hearing in the Hialeah case on a statement taken the exact same day arising out of the same interrogation and involving all of the same parties, being heard in front of the same judge, we find no error in the postconviction court’s conclusion that Cohen acted reasonably in stipulating to the use of the prior testimony of Rivers, Crawford and Smith at the hearing on the instant motion to suppress.

Franqui asserts further, however, that despite the comprehensive nature of the prior hearing, trial counsel was ineffective at the instant suppression hearing for failing to present evidence of Franqui’s mental illness and expert testimony on coerciveness. First, Franqui argues that trial counsel should have presented evidence of his supposed mental illness at the suppression hearing to demonstrate that Franqui was not capable of making a valid waiver of his rights when making his confession. He asserts that defense counsel should have presented a letter from Dr. Jethro Toomer to trial counsel Cohen, which Cohen received during the period between the trial court’s denial of the motion to suppress in the Hialeah case and the hearing on the motion to suppress in the instant case. This letter makes a number of findings based on two meetings between Dr. Toomer and Franqui, including observations of personality disorganization, overall mental confusion and spotty memory. The letter stated that Franqui suffers from extreme mental and emotional disturbance and severe impairment of cognitive functioning, and concluded by characterizing Franqui as an individual “whose behavior is characterized by a pervasive pattern of instability” with resulting behavior that is “impulsive, irrational, maladaptive and self-destructive.”

At the evidentiary hearing below, Cohen testified that he did not utilize this information at the suppression hearing because Dr. Toomer had been retained solely for use at the penalty phase and also because, throughout their relationship, Cohen did not observe any signs of mental impairment in Franqui that would cause him to conclude that Franqui was incompetent during his police questioning.

We find no error in the trial court’s conclusion that counsel’s actions were reasonable and did not constitute ineffectiveness under Strickland. First, assuming Cohen believed his client, Franqui’s testimony from the Hialeah suppression hearing indicates that he understood his rights, that he wished to invoke them, and that he only gave the statements he did due to police misconduct, including blatant abuse and coercion. In other words, Franqui’s testimony at the suppression hearing asserted no waiver was given and raised no issues of mental competency. Rather, his testimony at the suppression hearing directly contradicted that of the police, affirmatively asserting that he understood his rights and invoked them, but that his invocation was ignored and that he was abused and coerced by the police into giving a confession. Franqui does not suggest how this prior testimony could have been utilized during the instant suppression hearing had Cohen adopted a new strategy claiming that Franqui was incompetent.

In addition, as noted above, Cohen testified at the postconviction evidentiary hearing that he had observed no mental problems with Franqui. He also stated that Dr. Toomer had been called as a witness during the penalty phase in the Hialeah trial six months prior to the suppression hearing in the instant case; the same trial judge found substantial problems with Toomer’s credibility. In fact, in the Hialeah sentencing order, issued some six months prior to the suppression hearing, the trial court expressly rejected Dr. Toomer’s credibility and his opinions. The trial court questioned Dr. Toomer’s “leap” from a diagnosis of borderline personality disorder to the conclusion that Franqui was acting under the influence of “extreme mental or emotional disturbance.” The trial court concluded that “every piece of evidence presented in this trial, penalty phase and sentencing hearings, with the exception of Dr. Toomer’s testimony, definitely establishes that Mr. Franqui is not mentally retarded.”

Considering all of these circumstances, we find no error in the postconviction court’s conclusion that deficient performance by defense counsel has not been established given Strickland’s presumption that trial counsel’s performance was not ineffective. See Strickland, 466 U.S. at 689; 104 S.Ct. 2052 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”). There is competent, substantial evidence in the record to support these rulings by the postconviction court.

Franqui next argues that trial counsel was ineffective for failing to present expert testimony at the suppression hearing regarding the effect of police coercion during interrogations. Franqui’s witness at the postconviction evidentiary hearing below, Dr. Meisner, testified as an expert in police interrogations and confessions, expressing the opinion that coercion could have played a role in Franqui’s confession. However, this witness also explained that there was only one expert who routinely gave testimony in this field in the early 1990s; -furthermore, there was no showing that such an expert was known to or readily available to defense counsel at the time of Franqui’s trial. In addition, trial counsel is granted great latitude in decisions regarding the use of expert witnesses. Thus, we find no error in the lower court’s conclusion that deficient performance has not been established pursuant to a Strickland,analysis for failing to call an expert on interrogation tactics at the suppression hearing, given that the use of experts in this area of the law was relatively new and unexplored at the time of Franqui’s trial.

B. Resentencing

Franqui claims that trial counsel was ineffective for failing to relitigate the suppression of his confession during his resentencing (penalty phase) trial. We find no error in the trial court’s rejection of the argument that trial counsel was ineffective for failing to present this issue to the resentencing jury. Since such evidence would presumably have been used to cast doubt upon the admissibility or veracity of Franqui’s confession to establish his guilt, it would not have been relevant to sentencing issues or admissible in the sentencing phase. See Way v. State, 760 So.2d 903, 916 (Fla.2000) (“[T]his Court has previously rejected the argument that evidence that would serve only to create a lingering doubt of the defendant’s guilt is admissible as a nonstatutory mitigating circumstance.”) (citing Preston v. State, 607 So.2d 404, 411 (Fla.1992); King v. State, 514 So.2d 354, 358 (Fla.1987)). Franqui has made no showing in this appeal of the relevancy of such evidence for purposes of sentencing.

Franqui also alleges that trial counsel was ineffective for failing to present Dr. Toomer’s letter to the resentencing court. However, this claim was not raised in the trial court, nor was there any type of similar claim in which Franqui alleged error for failing to present the Toomer letter to the resentencing jury or judge as a means of establishing mental health mitigation. Accordingly, this claim is procedurally barred as an argument raised for the first time on appeal to this Court. See Griffin v. State, 866 So.2d 1, 11 n. 5 (Fla.2003) (finding that postconviction claim raised for the first time on appeal was procedurally barred).

In addition, the record from Fran-qui’s resentencing indicates that, regardless of any procedural bar, he is entitled to no relief. First, trial counsel Cohen testified at the evidentiary hearing that, while the primary reason he had Dr. Toomer evaluate Franqui was in preparation for the penalty phase, Cohen and Franqui jointly agreed to not present the letter at resentencing. The resentencing record reflects a specific discussion about Dr. Toomer’s letter report:

THE COURT: All right. I’ll allow you to make arguments later. Any other evidence or testimony on the behalf of Mr. Franqui?
MR. COHEN: No, your Honor.
THE COURT: All right. You had indicated the last time you were considering presenting the former testimony of one of the doctors, you and Mr. Franqui have agreed not to present that?
MR. COHEN: Unfortunately, Judge, the situation is that we have not been able to find a report. But based on our conversations previously, I don’t think that there’s anything in that report that we would be submitting to the Court.
THE COURT: I just want to make sure there’s not a claim later that not finding the report in some way—
MR. COHEN: No.
THE COURT: — prevented you from making an effective presentation or prevents me from making an appropriate sentence. Does the State have a copy of the report?
MR. COHEN: We don’t have the report present now but obviously we reviewed the report previously and the doctor did testify at the sentencing hearing of what we refer to as the Hialeah case. So we’re well aware of contents and the findings of the doctor. And it’s our decision not to present that evidence to the jury and I don’t see any reason why that decision would change in presenting any evidence to the Court.
THE COURT: All right. Have you spoken to Mr. Franqui with about [sic] that?
MR. COHEN: We mentioned it briefly the other day. I don’t think he has any different feelings about that.
THE COURT: Mr. Franqui, do you agree with Mr. Cohen’s decision not to have me consider the testimony or the report of that doctor?
MR. FRANQUI: Yes, your honor.
THE COURT: Is there anything Mr. Franqui would like to say?
MR. COHEN: I don’t believe so, Your Honor.
MR. FRANQUI: No, your Honor.

Thus, the record reflects that Cohen and Franqui made a joint, strategic decision not to present this evidence at resentenc-ing. We find no error in the trial court’s conclusion that Franqui is not entitled to relief on this claim. See Occhicone, 768 So.2d at 1048.

C. Voir Dire

Franqui next asserts error in defense counsel’s actions during jury selection. His argument, however, is unclear: first, Franqui takes issue with the lower court’s dispensation of this claim as a Batson-Neil issue; Franqui argues that since both he and juror Diaz were both Hispanic males, there was no need for trial counsel to articulate a race-neutral reason as a basis for a preemptory strike of Diaz when the State objected. He asserts that the issue for this Court to decide is whether a race-neutral reason must be given by a defendant when he wishes to strike a juror of his own race, gender and ethnicity. In addition, Franqui appears to assert an ineffective assistance of counsel claim for not objecting to the trial court’s failure to strike juror Andani. In the postcon-viction court Franqui asserted that counsel’s delay in presenting neutral reasons beyond his bare dislike of Diaz resulted in the seating of a juror whose ability to be fair was subject to question. Regarding Andani, Franqui argued that counsel failed to preserve trial court error in disallowing a defense strike since, when the State challenged the strike, defense counsel declined to be heard.

We find no error in the trial court’s denial of relief on this claim since Franqui has shown neither deficient performance nor prejudice. First, as the court below noted, we addressed the seating of these two jurors in Franqui I. Regarding Diaz, we held that “the trial court did not abuse its discretion in striking Franqui’s peremptory challenge.” Franqui I, 699 So.2d at 1335. This Court further ruled: “We also reject Franqui’s contention that the trial court erred in refusing to permit him to challenge prospective juror Andani.” Id. at 1335 n. 6. We conclude that Franqui should not be permitted to relitigate these claims under the guise of ineffective assistance of counsel when the same issues were resolved against him on appeal. Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (“It is also not appropriate to use a different argument to relitigate the same issue.”) (citing Medina v. State, 573 So.2d 293, 295 (Fla.1990)). In addition, Franqui has made no showing of any prejudice that could have resulted from defense counsel’s alleged deficiencies on these jury issues.

2. Judicial Assignment

Franqui’s next argument asserts that he was denied due process of law when the same trial judge presided over his two death cases. The trial court dismissed this claim without an evidentiary hearing. As explained in the order denying relief,

The facts are not in dispute. [Franqui] was charged in four separate cases (including two separate first-degree murder cases), all of which were pending at the same time. By administrative order, the first case was assigned (randomly) to a felony trial division. So long as that case remained open and pending (i.e., not resolved by plea, trial, or dismissal), all subsequently-filed cases involving that same defendant were assigned to the same trial division. As a result of this administrative procedure, all of [Franqui’s] cases were assigned to a single judge. [Franqui] argues this procedure is inherently unfair.

The lower court concluded that this claim was procedurally barred since, under prevailing Florida law, Franqui should have raised this claim prior to trial. In addition, the trial court held that a judge is not subject to disqualification in a case simply because that judge has made adverse rulings against the defendant in the past or because the judge has previously heard some of the facts of the case.

Franqui did not allege ineffective assistance of counsel for failure to insist upon a different judge in the instant case; rather, Franqui claimed that his due process rights were violated by reason of the administrative procedures invoked in this case. The lower court correctly concluded that this claim is procedurally barred because it was not properly asserted before trial. Further, Wild v. Dozier, 672 So.2d 16 (Fla.1996), establishes that this Court has exclusive jurisdiction to review administrative orders making judicial assignments. Id. at 17 (“[W]e conclude that this Court has exclusive jurisdiction to review judicial assignments.”).

Franqui also claims that his due process rights were violated because the same judge sentenced him to death in both of Franqui’s murder cases. This argument, however, is refuted by the record. While the same judge did initially sentence Fran-qui to death in the Hialeah case and the instant case, ultimately Franqui’s death sentence for this crime was reversed by this Court. See Franqui I, 699 So.2d at 1333. A different trial judge subsequently presided over Franqui’s resentencing and issued the death sentence that was later affirmed on direct appeal. See Franqui II, 804 So.2d at 1189. Thus, the same judge did not issue the two death sentences now pending.

3. State’s Subpoena of Eric Cohen

Franqui claims it was improper for the State to invoke the use of an investigatory subpoena to compel defense counsel to appear for questioning in the prosecutor’s office prior to the postconviction evidentiary hearing. Section 27.04, Florida Statutes (2006), provides as follows:

The state attorney shall have summoned all witnesses required on behalf of the state; and he or she is allowed the process of his or her court to summon witnesses from throughout the state to appear before the state attorney in or out of term time at such convenient places in the state attorney’s judicial circuit and at such convenient times as may be designated in the summons, to testify before him or her as to any violation of the law upon which they may be interrogated, and he or she is empowered to administer oaths to all witnesses summoned to testify by the process of his or her court or who may voluntarily appear before the state attorney to testify as to any violation or violations of the law.

While we may agree with Franqui that this statute, giving prosecutors the powers necessary to investigate crimes, should not be used as a discovery tool to compel defense counsel to testify ex parte in postconviction proceedings, we find no error in the trial judge’s treatment of the issue as asserted in this case. We conclude that the record conclusively demonstrates that no harm resulted from the State’s pretrial questioning of defense counsel or the failure of the State to notify postconviction counsel of this questioning. In other words, while it may appear that the State abused its authority under the statute, Franqui has not demonstrated that the State was provided information that it was not otherwise entitled to in defending Franqui’s assertions of ineffectiveness of counsel.

4. Improper Prosecutorial Conduct

Franqui next takes issue with the trial court’s denial of relief on his claim of fundamental error in the prosecutor’s improper remark in the State’s closing: “If the aggravation is always stronger, always more powerful in your hearts and minds, the Judge is going to tell you it’s your obligation that you should vote to recommend for death.” As the trial court correctly noted, this Court did address several improper comments made at Fran-qui’s trial on the direct appeal after resen-tencing and found no reversible error. Further, even though it was not specifically challenged on direct appeal, we addressed the comment at issue in this claim:

At oral argument, Franqui’s appellate counsel also argued that the State misstated the law during closing argument in commenting, “[I]f the aggravation is always stronger, always more powerful in your hearts and in your minds, the Judge is going to tell you it’s your obligation that you should vote to recommend for the death penalty.” No objection was made to this comment at trial, nor was this issue raised in Franqui’s brief. Nevertheless, we take this opportunity to caution prosecutors to avoid using language instructing the jury that it has a duty or obligation to recommend death. See Urbin v. State, 714 So.2d at 411, 421 (Fla.1998); Garron [v. State], 528 So.2d [358,] 359 [ (Fla.1988) ].

Franqui II, 804 So.2d at 1194 n. 8.

We also agree with the postconviction court that this claim is procedurally barred since it could have been raised as fundamental error on direct appeal. Further, Franqui has not established that the comment constitutes the fundamental error necessary to overcome the lack of preservation by trial counsel. See Robinson v. State, 520 So.2d 1, 7 (Fla.1988) (“Our cases also have long recognized that improper remarks to the jury may in some instances be so prejudicial that neither rebuke nor retraction will destroy their influence, and a new trial should be granted despite the absence of an objection below....”). In fact, it is apparent from our discussion that we considered this comment on direct appeal and did not conclude that it constituted fundamental error. We also note that Franqui has not demonstrated that the jury was not properly instructed by the trial court on this same issue. For all of these reasons, we conclude relief on this claim was properly denied.

5. Florida’s Death Penalty is Unconstitutional

Franqui next asserts that Florida’s death penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). However, both this court and the United States Supreme Court have held that Ring does not apply retroactively. See Johnson v. State, 904 So.2d 400 (Fla.2005); Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). Franqui’s death sentence became final after the Court rejected his direct appeal following resentencing in 2001; therefore, Franqui cannot rely on Ring to find his death sentence unconstitutional. See Washington v. State, 907 So.2d 512, 514 (Fla.) (finding defendant not entitled to relief under Ring because Ring is not applied retroactively), cert. denied, 546 U.S. 1064, 126 S.Ct. 802, 163 L.Ed.2d 632 (2005).

PETITION FOR WRIT OF HABEAS CORPUS

1. Ineffective Assistance of Appellate Counsel

Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of counsel, this Court must determine

first, whether 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 v. State, 761 So.2d 1055, 1069 (Fla.2000); Thompson v. State, 759 So.2d 650, 660 (Fla.2000). In raising such a claim, “[t]he 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 Knight v. State, 394 So.2d 997, 1001 (Fla.1981); see also Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). “If a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Id. (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)).

A. Failure to Challenge Franqui’s Confession

Franqui claims that appellate counsel was ineffective for failing to challenge the circumstances of Franqui’s confession on direct appeal. This issue is somewhat related to Franqui’s postconviction claim challenging trial counsel’s effectiveness in seeking suppression of Fran-qui’s confession. After a lengthy hearing on Franqui’s motion to suppress, the trial judge concluded that Franqui’s confession was not coerced and that his waiver of rights was both free and voluntary. Importantly, Franqui has not demonstrated in his habeas petition that, in all probability, appellate counsel would have been successful in overturning the trial court’s findings and rulings on direct appeal. While Franqui testified at the suppression hearing that he was coerced and that his confession was essentially beaten out of him, this testimony was not found credible by the trial judge, who instead credited the officers’ testimony that Franqui voluntarily waived his rights and that he was not mistreated in any way. Although the suppression hearing revealed that Franqui was questioned over a lengthy period, the record also demonstrates that he was given refreshment, allowed to take a break to speak with his wife, was repeatedly informed of his rights on multiple occasions, and, according to the State’s witnesses, appeared alert the entire time.

Based on the totality of the circumstances in the instant case, and the existence of competent, substantial evidence to support the trial court’s rulings, we cannot conclude that appellate counsel was ineffective for failing to challenge the denial of the motion to suppress on appeal. See Chavez v. State, 832 So.2d 730, 748-49 (Fla.2002) (finding that continual police custody of more than fifty-four hours was not dispositive of whether or not to suppress a confession since the defendant in that case was provided with frequent breaks, refreshment, and time away from the police facility, and furthermore that the defendant consistently agreed to waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)); Walker v. State, 707 So.2d 300, 310-11 (Fla.1997) (upholding voluntariness of confession where the defendant was questioned for six hours during the morning and early part of day, was provided with drinks and allowed to use the bathroom when he wished, was never threatened with capital punishment, and was never promised anything other than that the officer would inform the prosecutor that the defendant had cooperated).

Further, as the State correctly notes in response to Franqui’s alternative argument, Franqui did not argue during trial that his confession should have been suppressed because of the state of his mental health; accordingly, any claim based on his mental health during interrogation was not preserved for review. Perez v. State, 919 So.2d 347, 359 (Fla.2005) (holding that, for an issue to be preserved for appeal, the specific legal argument or ground to be argued on appeal must have been presented to the lower court), cert. denied, — U.S.-, 126 S.Ct. 2359, 165 L.Ed.2d 285 (2006). In turn, since the issue was not preserved, appellate counsel cannot be deemed ineffective for failing to raise it. Groover v. Singletary, 656 So.2d 424, 425 (Fla.1995).

B. Prosecutorial Misconduct

Although not specified in his brief, Franqui claims ineffective assistance of appellate counsel for failing to challenge alleged improper prosecutorial comments made at trial. Given that the particular comments are not argued with any specificity and there is no attempt to demonstrate that any alleged errors were preserved for appeal, we find any such claim to be insufficiently pled and we deny relief. See Patton v. State, 878 So.2d 368, 380 (Fla.2004) (holding that conclusory allegations are insufficient to properly state a claim). We also note that a similar issue was raised by counsel on appeal and we found similar comments to be harmless in view of the overall circumstances of the case, including the trial court’s instructions to the jury. See Franqui II, 804 So.2d at 1192-94.

C. Record of Confessions

Franqui raised a claim in his original 3.851 motion to the court below, alleging that the circumstances surrounding his confession, including the officers’ election not to make an audio or visual recording of any portion of the interrogation, make the defendant’s statement unreliable, illegal and inadmissible. However, the trial court denied relief, finding the claim to be procedurally barred while also noting that that there is no constitutional or other legal requirement that police agencies record or preserve an oral confession. In his habeas petition, Franqui now argues that appellate counsel was ineffective for not raising the same claim on direct appeal. The record reflects that while Franqui did move to suppress his confession, he did not argue that it should be suppressed because it was not recorded. As the State correctly notes, in order to preserve an issue regarding suppression, Franqui must have raised to the trial court the same argument he raises on appeal. See Perez, 919 So.2d at 349. We agree that since the issue was not preserved, appellate counsel cannot be deemed ineffective for failing to raise it. See Groover, 656 So.2d at 425.

D. Testimony of Assistant State Attorney DiGregory

Franqui argues that appellate counsel was ineffective when he failed to raise on direct appeal the trial court’s decision to prevent defense counsel Cohen from calling Assistant State Attorney Kevin DiGregory as a witness. Without providing any legal basis for a claim of error or details regarding the failed attempt to call DiGregory as a witness in the guilt-phase trial, Franqui argues that DiGrego-ry should have been asked a number of questions that Franqui now posits for the first time in this proceeding. Given the lack of specificity and legal basis regarding this claim, as well as the hypothetical nature of the questions posed, we find this claim to be insufficiently pled and deny relief. See Patton, 878 So.2d at 380.

E. Mitigation

Franqui claims that appellate counsel failed to sufficiently challenge the resen-tencing court’s rejection of the fact that Franqui did not fire the fatal bullet as nonstatutory mitigation. This claim, however, is refuted by the record, which reflects that appellate counsel did raise this argument in Franqui’s direct appeal after resentencing, and the argument was expressly rejected by this Court. See Franqui II, 804 So.2d at 1197 (“Under the particular facts in this case, we find that the trial court did not err in considering, but ultimately rejecting, the fact that Franqui did not fire the fatal bullet as a mitigating circumstance.”).

CONCLUSION

For the reasons stated, we affirm the circuit court’s denial of postconviction relief and deny Franqui’s petition for a writ of habeas corpus.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      . The trial court found the following aggrava-tors: prior conviction for a capital or violent felony (great weight); the murder was committed during the course of a robbery and for pecuniary gain (merged) (great weight); and the murder was committed to avoid arrest and hinder law enforcement and the victim was a law enforcement officer (merged) (great weight). Franqui II, 804 So.2d at 1191 n. 2.

      . The trial court considered but rejected the age mitigators, and found no other statutory mitigators. Id. at 1191 n. 3.

      . The trial court found the following four nonstatutory mitigating circumstances: Fran-qui's relationship with his children (little weight); his cooperation with authorities (little weight); that his codefendants only received life sentences (little weight); and his self-improvement and faith while in custody (some weight). Id. at 1191 n. 4.

      . Franqui raised the following postconviction claims to the trial court; (1) the procedure for the assignment of trial judges in Dade County criminal cases is inherently unfair, particularly in Franqui's case; (2) the circumstances surrounding Franqui's waiver of his right to testify show that the waiver was involuntary and unknowing; (3) the circumstances surrounding his confession make Franqui’s statement unreliable, illegal and inadmissible; (4) the trial court denied Franqui the right to obtain evidence from a material, relevant witness; (5) Fran-qui was denied due process when the second sentencing court allowed his statement to be admitted into evidence but failed to permit the defense to present evidence on the confession issues; and (6) trial counsel was ineffective for [a] making no effort to litigate the suppression of Franqui's statement despite ample and compelling evidence for suppression; [b] failing to pursue Fran-qui's right to obtain evidence from a material, relevant witness; [c] failing to present witnesses; [d] resentencing counsel failed to litigate Franqui’s filed suppression motion apparently because both he and the judge mistakenly believed that the confession issue had already been litigated and lost in the Florida Supreme Court; [e] resentencing counsel failed to challenge the voluntariness of Franqui’s confession to the jury; [f] re-sentencing counsel failed to challenge the constitutionality of Florida's death penalty scheme; [g] failing to file a motion to dismiss the charges against Franqui based on patent deficiencies in the indictment; [h] failing to present neutral reasons for exercising a peremptoiy challenge against panel member Diaz, resulting in that juror being seated; [i] failing to preserve patent trial court error in preventing a defense strike against prospective juror Andani; [j] failing to litigate Franqui’s request for individual voir dire and motion to sequester; [k] failing to preserve patent trial court error in allowing the State to peremptorily challenge prospective juror Pascual; [1] failing to object to the prosecutor’s misstatement of the law in closing; and [m] appellate counsel’s failure to raise the issue of prosecutorial misconduct.

      . Inasmuch as Franqui claims that original trial counsel did not take any action at the suppression hearing in the instant case, this claim is clearly refuted by the record; accordingly, this claim will be treated as if Franqui asserts that the assistance trial counsel did provide was ineffective.

      . In addition, Cohen did assert a claim at the suppression hearing relating to Detective Na-boot overhearing a conversation between Franqui and his wife in which he told her that he shot at the officer but his was not the fatal bullet. Cohen would not stipulate to any testimony in this regard and instead deposed Naboot and was granted a separate suppression hearing on the issues raised.

      . Records from the Hialeah case indicate that defense counsel called Dr. Toomer during the penalty phase, when he testified as an expert in forensic psychology. This was in November of 1993, well before the suppression hearing in the instant case, which occurred in May of 1994. In addition to meeting with Franqui three times, Dr. Toomer testified that he reviewed various records extensively, met with members of Franqui’s family, and gathered information about his background. Dr. Toomer’s testimony basically reflects what was contained in his letter to Cohen, expounding upon it to illustrate that Franqui has suffered these problems since childhood. Dr. Toomer then discussed the "Revised Beta Exam,” which indicated that Franqui’s IQ was "less than 60.” Dr. Toomer explained that this particular test relied on nonverbal intelligence, that it was a standard IQ test, and that he scored the test, a task he is trained to do. Franqui's score indicated that he is in the "retarded range.” Dr. Toomer concluded his testimony by stating that the "extreme emotional disturbance” mitigator applied to Franqui, and also that his chronological age did not reflect his mental age.
      On cross-examination, Dr. Toomer confirmed that he had testified for defendants between fifteen and twenty times in previous trials. The State spent a lot of time going through statements Dr. Toomer made in previous trials and diagnoses he had given, as well as the fact that he had no other version of the facts in the instant case other than what Franqui had told him and that he had not read any police reports about the incident. The State also pointed out inconsistencies between Franqui’s own testimony and the conclusions reached and testified to by Dr. Toomer, including the fact that the hospital records from Franqui’s accident as a teenager do not indicate that he lost consciousness. The State asked Dr. Toomer about the results of Franqui’s Wechsler Test, which indicted he had a full-scale IQ score of 83.

      . We have already discussed the fact that the trial court had both considered and rejected Dr. Toomer's opinion testimony as presented at sentencing in the Hialeah murder.

      . When Cohen challenged this particular juror, the State objected, but Cohen failed to respond and juror Andani was seated.

      . See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); State v. Neil, 457 So.2d 481 (Fla.1984).

      . Inasmuch as Franqui claims that trial counsel was ineffective for failing to pursue joinder of the instant case with the Hialeah case, we conclude this claim is insufficiently pled. Franqui's entire argument in this appeal is one sentence contained in a footnote:
      "Whether a motion to consolidate should have been filed is an issue, which speaks to whether the defense counsel was ineffective in not so filing." See Appellant's Initial Brief at 58 n. 29.


text:
    James M. DAILEY, Appellant, v. STATE of Florida, Appellee. James Milton Dailey, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC05-1512, SC06-576.
    Supreme Court of Florida.
    May 31, 2007.
    Rehearing Denied Sept. 10, 2007.

      Bill Jennings, Capital Collateral Regional Counsel — Middle Region, and David R. Gemmer and Robert T. Strain, Assistant CCRC, Tampa, FL, for AppellanVPetitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

James Milton Dailey was convicted of first-degree murder and sentenced to death for the 1985 killing of fourteen-year-old Shelley Boggio. He now appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habe-as corpus. We have jurisdiction. See. art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the trial court’s order and deny Dailey’s petition for a writ of habeas corpus.

I. FACTS

Shelley Boggio’s nude body was found floating in the water near Indian Rocks Beach in Pinellas County, Florida. She had been stabbed repeatedly, strangled, and drowned. On the day of the murder, Shelley, her twin sister Stacey, and Stephanie Forsythe had been hitchhiking along a road near St. Petersburg, Florida. They were picked up by Dailey, Jack Pear-cy, and Dwayne “Oza” Shaw. The three men drove the girls to a local bar. Stacey and Stephanie returned home shortly thereafter, but Shelley remained with the group and returned to Jack Pearcy’s house. Dailey was living in Pearcy’s home, where he had his own bedroom. Pearcy and his girlfriend, Gayle Bailey, shared a second bedroom. Shaw, a friend of Pearcy’s from Kansas, was temporarily staying at Pearcy’s house while he resolved marital issues. He slept on a couch in the living room.

Shaw testified that on the night of the murder he drove with Pearcy and Boggio to a public telephone booth, where he was dropped off. Pearcy and Boggio then drove off alone. After speaking on the phone for several minutes, Shaw returned to the house on foot and fell asleep on the couch. Shaw testified that when he woke up later that night, he saw Pearcy and Dailey, but not Boggio, entering the house together. Shaw noticed that Dailey’s pants were wet.

The State presented testimony from the lead detective in the case, John Halladay, and three informants who were inmates at the same facility where Dailey was held while awaiting trial. One of the inmates, Paul Skalnik, testified that Dailey had struck a deal with Pearcy, who had also been charged with Boggio’s murder. Skalnik testified that he relayed messages between Dailey and Pearcy. According to Skalnik, Dailey promised that if Pearcy did not testify at Dailey’s trial, Dailey would attempt to exonerate Pearcy once he was acquitted.

Based on the testimony of Shaw, Skal-nik, and several other witnesses, Dailey was found guilty of first-degree murder and was sentenced to death. On appeal, this Court affirmed the conviction but struck two aggravating circumstances and remanded the case for resentencing after concluding the trial court had failed to weigh mitigating circumstances. Dailey v. State, 594 So.2d 254 (Fla.1991). At resen-tencing, Dailey was again sentenced to death. This Court affirmed. Dailey v. State, 659 So.2d 246 (Fla.1995). Dailey then filed in the trial court a rule 3.850 motion for postconviction relief, raising fifteen claims. After conducting a hearing pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), the trial court granted an evi-dentiary hearing on claims 1-8 and 15. After the hearing, the trial court denied all claims. Dailey now appeals the trial court’s denial of relief. He also petitions for writ of habeas corpus.

II. ANALYSIS

Dailey raises four issues on appeal and two issues in his petition for writ of habeas corpus. We address each of these in turn.

A. Postconviction Claims

In his appeal from the trial court’s denial of postconvietion relief, Dailey raises four issues. For the reasons explained below, we affirm the trial court’s denial of these claims.

1. Ineffective Assistance of Counsel and Prosecutorial Misconduct

Dailey first claims that trial counsel was ineffective during closing argument for failing to object to three alleged instances of prosecutorial misconduct. These were: (1) a statement by the prosecutor concerning Dailey’s constitutional presumption of innocence; (2) improper vouching for the credibility of witness Paul Skalnik; and (3) an alleged “blatant misstatement of fact regarding when [Dwayne] Shaw went to use the phone” on the night of the murder.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-part test governing ineffective assistance of counsel claims. First, a defendant must demonstrate that counsel’s performance was deficient. Id. at 687, 104 S.Ct. 2052. An attorney’s performance is deficient when it falls below an objective standard of reasonableness under prevailing professional norms. Burns v. State, 944 So.2d 234, 239 (Fla.2006). Second, a defendant must show that he was prejudiced by the deficiency. Id. “Prejudice is demonstrated when ‘there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). There is a strong presumption that counsel’s performance was not deficient. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Regarding the prosecutor’s statements concerning Dailey’s presumption of innocence, we agree with the trial court that when read in context, the comments appear to be a statement by the prosecutor of her belief that the State satisfied its burden of proof. Therefore, counsel’s failure to object was not deficient. We also find that the prosecutor’s alleged improper vouching for Skalnik was a fair comment in response to defense counsel’s attack on Skalnik’s credibility during closing argument. Defense counsel referred to Skalnik as a “professional thief’ and a poor police officer. The State was entitled to rebut these comments. Accordingly, Dailey has failed to demonstrate that counsel’s failure to object constitutes deficient performance. With regard to the prosecutor’s alleged “blatant misstatement of fact” concerning Shaw’s testimony, this claim was never raised in Dailey’s postcon-viction motion. Therefore, it is not cognizable on appeal. See Gordon v. State, 863 So.2d 1215, 1219 (Fla.2003) (holding that a claim is proeedurally barred where it “was not raised in [the defendant’s] motion for postconviction relief’).

Dailey also argues that the cumulative effect of seven instances of prosecuto-rial misconduct undermined the validity of the trial to the extent that a guilty verdict could not have been reached without the assistance of these errors. Because these claims of prosecutorial misconduct are all premised on facts in the record, they could have and should have been raised on direct appeal. The claims are therefore proee-durally barred. See Spencer v. State, 842 So.2d 52, 60-61 (Fla.2003) (holding that claims alleging prosecutorial misconduct, which were based on facts in the record, could have and should have been raised on direct appeal and were thus not cognizable in postconviction proceedings).

2. Giglio /Newly Discovered Evidence Claim Concerning Paul Skalnik’s Testimony

In his second issue on appeal, Dai-ley claims that six documents written and signed by Paul Skalnik either: (a) establish that the State knowingly presented false testimony, in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); or (b) constitute newly discovered evidence that Skalnik testified falsely at Dailey’s trial. The six documents offered by Dailey include various motions and letters written by Skalnik at least a year after Dailey’s conviction. In these documents, Skalnik alleges that the State promised him favorable treatment in return for testifying against Dailey and several defendants in other trials. We discuss the Giglio and newly discovered evidence claims in turn.

To establish a valid claim under Giglio, a defendant must show that (1) some testimony at trial was false, (2) the prosecutor knew that the testimony was false, and (3) the testimony was material. Suggs v. State, 923 So.2d 419, 426 (Fla. 2005). “This Court applies a mixed standard of review to Giglio claims, ‘defer[ring] to the factual findings made by the trial court to the extent they are supported by competent, substantial evidence, but reviewing] de novo the application of those facts to the law.’ ” Id. (alterations in original) (quoting Sochor v. State, 883 So.2d 766 (Fla.2004)). The documents presented at the evidentiary hearing fail the first and second prongs of Giglio. Skal-nik’s allegations, made a full year after Dailey’s conviction, do not prove that he testified falsely at trial. His unsubstantiated accusations also fail to establish , that the prosecutor knowingly presented false testimony. At the evidentiary hearing, Skalnik disavowed the accusations contained in the six documents and unequivocally stated that they were false. The prosecutor in Dailey’s case also testified that she believed Skalnik’s testimony to be truthful at the time of trial. Based on this testimony and the fact that the documents in question were unsubstantiated' allegations written a full year after Dailey’s trial, we affirm the denial of Dailey’s Giglio claim.

To succeed on a claim of newly discovered evidence, a defendant must meet two requirements: first, the evidence must not have been known by the party or counsel at the time of trial, and the defendant or defense counsel seemingly could not have known of it by the use of due diligence; second, the newly discovered evidence must be of such a type that it would probably produce an acquittal on retrial. Melton v. State, 949 So.2d 994, 1011 (Fla.2006). For the reasons discussed above in relation to the Giglio claim, we also find that Dailey has failed to establish that Skalnik’s letters and motions would probably produce an acquittal on retrial. Therefore, the trial court’s denial of Dailey’s newly discovered evidence claim was proper.

3. Newly Discovered Evidence from Jack Pearcy and Oza Shaw

In his third issue, Dailey raises two claims. First, he argues that a 1993 sworn statement by Jack Pearcy constitutes newly discovered evidence. The trial court ruled that Pearcy’s statement was uncorroborated hearsay which failed to qualify as a statement against interest. The trial court did not admit the statement into evidence. The criteria for evaluating whether a hearsay statement is against a declarant’s interest were set forth ■ in Lightbourne v. State, 644 So.2d 54 (Fla.1994):

[A statement is against the declarant’s interest if] at the time of its making, [it] was so far contrary to the defendant’s pecuniary or proprietary interest or tended to subject him to liability or to render invalid a claim by.him against another so that a person in the defendant’s position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

Id. at 57 (quoting § 90.804(2)(c), Fla. Stat. (1991)). As the trial court noted, at no point in the statement does Pearcy admit to the murder of Shelley Boggio or the commission of any other crime. Pearcy has had numerous opportunities to testify on Dailey’s behalf, and has repeatedly declined to do so. We affirm the trial court’s evidentiary ruling.

Dailey also asserts that during the evidentiary hearing, Shaw recanted his trial testimony and provided a new sequence of events that would likely lead to an acquittal on retrial. Specifically, Shaw stated that he now recalls witnessing Pearcy enter the house by himself — not with Dai-ley — late on the night of the murder. According to Shaw’s most recent version of events, Pearcy' entered the house alone, walked into Dailey’s bedroom, woke him, and then the pair left the house together. This differs from Shaw’s original trial testimony, when he stated that he saw Pearcy and Dailey • entering the house together when he first woke up. The trial court found that Shaw’s latest version of events was unreliable and that his evidentiary hearing testimony would be unlikely to produce an acquittal on retrial. ■

A trial court’s decision on a claim of recantation evidence will not be overturned on appeal absent an abuse of discretion. See Consalvo v. State, 937 So.2d 555, 562 (Fla.2006) (“[A]bsent an abuse of discretion, a trial court’s decision on a motion based solely on newly discovered evidence [including a witness’s newly recanted' testimony] will not be overturned on appeal.”); cert. denied, — U.S. —, 127 S.Ct. 1821, 167 L.Ed.2d 330 (2007). Because recantation testimony “entails a determination as to the credibility of the witness, this Court ‘will not substitute its judgment for that of the trial court on issues of credibility’ so long as the decision is supported by competent, substantial evidence.” Marquard v. State, 850 So.2d 417, 424 (Fla.2002) (quoting Johnson v. State, 769 So.2d 990, 1000 (Fla.2000)); see also Robinson v. State, 865 So.2d 1259, 1262 (Fla.2004) (“The trial court has made a fact-based determination that the recantation is not credible. In light of conflicting evidence, we must give deference to that determination.”). Furthermore, “[o]nly when it appears that, on a new trial, the witness’s testimony will change to such an extent as to render probable a different verdict will a new trial be granted.” Marquard, 850 So.2d at 424 (quoting Armstrong v. State, 642 So.2d 730, 735 (Fla.1994)).

We find that the trial court did not abuse its discretion in ruling that Shaw’s testimony at the evidentiary hearing was unreliable. Nearly twenty years had passed between the night of the murder and Shaw’s appearance at the evidentiary hearing. We agree that Shaw’s . recollection of events at the time of trial is more likely to be accurate. Furthermore, even accepting Shaw’s most recent version of events, the statements are not such that they would probably produce an acquittal on retrial. There remains evidence that Dailey and Pearcy returned to the house together later that night, -that Dailey was not wearing his shirt, that his pants were wet, and that the victim was found in the water. There is also testimony from three inmates that Dailey confessed to the killing. The trial court’s denial of this claim was proper.

4. Ineffective Assistance of Counsel Claims

In his final issue, Dailey raises four additional ineffective assistance of counsel claims. These include: (a) the failure to use phone records to impeach Gayle Bailey; (b) the failure to cross-examine Skal-nik about the circumstances surrounding criminal charges pending at the time of the evidentiary hearing; (c) the failure to use newspaper articles to impeach Skalnik’s testimony; and (d) the failure to call Dai-ley to testify.

Dailey’s claim regarding the use of phone records to impeach Gayle Bailey is procedurally barred because Dai-ley waived this claim at the evidentiary hearing. See Reaves v. State, 826 So.2d 932, 942 (Fla.2002) (“[WJhere a defendant fails to pursue a claim ... at the trial court, he waives such claim and cannot raise it on appeal with this Court.”). Dai-ley’s claim concerning counsel’s failure to cross-examine Skalnik about his pending criminal charges is also barred. Dailey did not argue this claim in his brief. The claim is only mentioned in the heading of issue IV. When claims are listed in the headings of briefs but no argument is provided, those claims will be barred as insufficiently argued. See Lawrence v. State, 831 So.2d 121, 133 (Fla.2002).

We affirm the denial of Dailey’s claim concerning the failure of counsel to impeach Skalnik through the use of newspaper articles. At the evidentiary hearing, counsel explained his decision not to use the articles for impeachment. Counsel stated his belief that admitting newspaper articles into evidence often instills a sense of legitimacy with the jury about the factual accounts they contain. Counsel sought to avoid this problem by excluding the articles at trial. This was a reasonable tactical decision and Dailey has failed to demonstrate that counsel’s performance was deficient.

Lastly, we reject the claim that counsel was ineffective for failing to call Dailey to testify. At the evidentiary hearing, counsel explained that Dailey’s story about how his pants became wet was likely to be rejected by the jury and would damage his credibility. This was a reasonable tactical decision and we find no deficiency in counsel’s performance.

B. Petition for Writ of Habeas Corpus

In his petition for writ of habe-as corpus, Dailey raises two issues premised on the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). First, Dai-ley argues that Florida’s murder statute is unconstitutional under Ring because it permits the State to indict a defendant for first-degree murder without specifying whether it intends to prosecute a theory of premeditated or felony murder. Dailey asserts that appellate counsel was deficient for failing to present this argument on appeal. This claim is meritless. “It is well established that an indictment which charges premeditated murder permits the State to prosecute under both the premeditated and felony murder theories.” Parker v. State, 904 So.2d 370, 382-83 (Fla. 2005). Defense counsel cannot be deficient for failing to raise a meritless claim. Davis v. State, 928 So.2d 1089, 1135 (Fla.2005) (“[A]ppellate counsel was not ineffective for failing to raise this meritless issue on appeal,” cert. dismissed, 547 U.S. 1053, 126 S.Ct. 1649, 164 L.Ed.2d 357, and cert. denied, — U.S. —, 127 S.Ct. 206, 166 L.Ed.2d 166 (2006)). Furthermore, Dai-ley’s conviction became final before the Supreme Court’s decision in Ring. We have held that Ring does not apply retroactively, see Johnson v. State, 904 So.2d 400, 405 (Fla.2005), and counsel cannot be deemed ineffective for failing to anticipate a change in law. See Mansfield v. State, 911 So.2d 1160, 1179 (Fla.2005) (“[T]he Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ] and Ring decisions were released after our decision on Mansfield’s direct appeal, and appellate counsel is not required to anticipate changes in the law. Thus, this claim would not have had any merit on direct appeal.” (citation omitted)). For these reasons, we deny Dailey’s first habeas claim.

Dailey next argues that Florida’s death sentencing statute is unconstitutional under Ring. In his petition, Dailey candidly admits that “the weight of the case law clearly is against” this argument. Dailey states that the arguments “are made to preserve the issues.” As noted above, we have already held that Ring is not retroactive. See Johnson, 904 So.2d at 405. Because Dailey’s conviction became final before the decision in Ring, Dailey’s claim is meritless.

CONCLUSION:

For the reasons above, we affirm the trial court’s denial of Dailey’s postconviction claims. We also deny Dailey’s petition for writ of habeas corpus.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, CANTERO, and BELL, JJ., concur.

QUINCE, J., recused.

      . Pearcy was also convicted for Boggio’s murder and sentenced to life in prison.

      . Dailey raised thirteen trial court errors: (1) admitting evidence that the appellant exercised his right to an extradition hearing and permitting the prosecutor to comment on that evidence during opening argument; (2) allowing the State to introduce a book-in photograph of Dailey that was not provided to defense counsel during discovery; (3) admitting evidence based on out-of-court statements by the codefendant who did not testify at trial; (4) admitting a knife sheath into evidence; (5) permitting the State to elicit hearsay evidence of prior consistent statements; (6) restricting defense counsel’s cross-examination of Paul Skalnik about the nature of his past and pending charges; (7) instructing the jury over defense objection that the defendant need not have been present when the crime was committed to be guilty of first-degree murder; (8) failing to grant a mistrial when the prosecutor made two comments on the defendant’s failure to testify during closing argument; (9) qualifying the lead detective in the case as an expert in homicide investigation and sexual battery; (10) finding three aggravating factors that were not supported by the evidence; (11) admitting a copy of Dailey’s 1979 conviction for aggravated battery; (12) failing to consider statutory and nonstatutory mitigation; (13) basing its sentence partly on off-the-record information from the codefendant’s trial.

      . On appeal from resentencing, Dailey claimed the trial court erred in addressing the following issues: (1) in denying Dailey’s motion for a new penalty phase; (2) in failing to find and weigh mitigating circumstances; and (3) in denying his motion to disqualify the judge.

      . The fifteen claims were: (1) trial counsel was prejudicially ineffective for: (a) failing to object to prosecutorial misconduct, (b) failing to adequately cross-examine and impeach several witnesses, (c) failing to utilize testimony, (d) failing to move for change of venue, (e) waiving a speedy trial, (f) failing to have Dai-ley testify, (g) failing to properly object to prejudicial evidence, (h) failing to adequately argue a motion for judgment of acquittal, (i) failing to investigate witnesses, (j) being unfamiliar with the case, and (k) failing to hire and utilize an investigator; (2) trial counsel was ineffective for failing to adequately investigate and prepare mitigating evidence and to adequately challenge the State's case; (3) counsel failed to adequately prepare a competent mental health expert to evaluate Dailey and as a result he was deprived of his right to adequate mental health assistance; (4) the State withheld evidence which was material and exculpatory; (5) newly discovered evidence entitles Dailey to a new trial; (6) prose-cutorial misconduct rendered the outcome of Dailey's trial unreliable; (7) the State either knowingly presented false testimony or failed to correct material false testimony; (8) Dai-ley’s death sentence was disproportionate to that of his co-defendant, Jack Pearcy, who received life in prison; (9) the trial court committed fundamental error by instructing the jury regarding the aggravating factor of heinous, atrocious, or cruel, and the jury instruction was unconstitutionally vague; (10) Florida's capital sentencing statute is unconstitutional on its face, and to the extent this issue was not properly litigated on appeal, Dailey received ineffective assistance of counsel; (11) Dailey's penalty phase counsel was ineffective for failing to object to the penalty phase jury instructions which were incorrect under Florida law; (12) Dailey's counsel was ineffective for failing to object to comments, questions, and instructions that unconstitutionally and inaccurately diluted the jury's sense of responsibility towards sentencing; (13) the rules prohibiting Dailey’s lawyers from interviewing jurors to determine if constitutional error was present violates the Equal Protection principles, the First, Sixth, Eighth, and Fourteenth Amendments, and the corresponding provisions of the Florida constitution; (14) execution by electrocution is cruel and unusual punishment; and (15) Dai-ley’s trial was fraught with procedural and substantive errors, which in combination deprived him of a fair trial.

      . The seven alleged errors are: (1) the prosecutor improperly commented on Dailey's right to remain silent by eliciting testimony that Dailey was fighting extradition; (2) the prosecutor improperly admitted a knife sheath which was not linked to the homicide; (3) the State improperly elicited testimony from Detective Halladay as to the reasons the inmates came forward to testify in the case; (4) the prosecutor made impermissible comments on Dailey's right to remain silent; (5) the prosecutor commented upon and misstated the presumption of innocence afforded to Dailey by the constitution; (6) the prosecuting attorney improperly vouched for the credibility of several witnesses; and (7) the prosecutor knowingly presented false argument concerning when Dwayne Shaw used the phone on May 5, 1985.

      . The six documents are: (1) a motion to dismiss for prosecutorial misconduct, filed on August 7, 1988; (2) a motion to recuse the State Attorney’s Office from prosecuting the defendant, filed on August 7, 1988; (3) a prose motion for discharge, filed on November 26, 1988; (4) a request for a judge to disqualify herself, filed on December 18, 1988; (5) a letter addressed to Judge Luten, dated August 20, 1988; and (6) a letter to Governor Martinez, dated August 15, 1988.