text:
    William Thomas ZEIGLER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC05-1333.
    Supreme Court of Florida.
    June 28, 2007.
    Rehearing Denied Oct. 2, 2007.

      John Houston Pope of Epstein, Becker, and Green, P.C., New York, NY, Dennis H. Tracey, III and Laurence L. Robin-Hunter of Hogan and Hartson, LLP, New York, NY, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Kenneth S. Nunnelley, Senior Assistant Attorney General, Dayto-na Beach, FL, for Appellee.
   PER CURIAM.

William Thomas Zeigler, Jr., appeals an order denying his successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the trial court’s denial of Zeigler’s postcon-vietion motion.

I. PROCEDURAL & FACTUAL BACKGROUND

“In 1976, Zeigler was convicted of the first-degree murders of Eunice Zeigler, his wife, and Charlie Mays, a friend, and the second-degree murders of his in-laws, Perry and Virginia Edwards.” Zeigler v. State, 654 So.2d 1162, 1163 (Fla.1995). In Zeigler’s 1995 postconviction appeal, this Court explained the procedural history of Zeigler’s numerous state proceedings as follows:

The trial judge overrode the jury’s recommendation of life imprisonment and imposed two death sentences. [This Court] in Zeigler v. State, 402 So.2d 365 (Fla.1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982), ... affirmed Zeigler’s convictions and sentences of death.
Zeigler subsequently pursued post-conviction relief. See Zeigler v. State, 452 So.2d 537 (Fla.1984) (remanded for an evidentiary hearing on claim of judicial bias); Zeigler v. State, 473 So.2d 203 (Fla.1985) (affirmed trial court’s denial of judicial bias claim); State v. Zeigler, 494 So.2d 957 (Fla.1986) (reversed trial court’s order which had granted an evi-dentiary hearing on claim that the trial judge did not consider nonstatutory mitigating circumstances). Zeigler then petitioned this Court for habeas corpus relief. We ordered resentencing, holding that the trial judge did not realize that the nonstatutory mitigating evidence was pertinent. Zeigler v. Dugger, 524 So.2d 419 (Fla.1988).
Resentencing occurred in August of 1989. The trial court (presided over by a different judge because the original trial judge was unavailable) again overrode the jury’s recommendation of life and imposed two death sentences. We affirmed the sentences on appeal. Zeigler v. State, 580 So.2d 127 (Fla.1991), cert. denied, 502 U.S. 946, 112 S.Ct. 390, 116 L.Ed.2d 340 (1991). Thereafter, we affirmed the denial of a postconviction motion which had been pending during resentencing. Zeigler v. State, 632 So.2d 48 (Fla.1993), cert. denied, 513 U.S. 830, 115 S.Ct. 104, 130 L.Ed.2d 52 (1994). This motion only addressed issues arising out of the conviction phase.
Zeigler then filed [another] postcon-viction motion seeking to vacate the death sentences imposed on resentenc-ing. ...
At the hearing on the 3.850 motion, Zeigler also filed a motion for release of evidence and appointment of an expert, which requested that the bloodstain evidence introduced at his trial be re-examined utilizing modern DNA testing procedures.

Id. In 1995, we affirmed the trial court’s denial of Zeigler’s postconviction motion as well as the trial court’s decision that Zeig-ler’s DNA claim was procedurally barred. Id. at 1164-65.

However, in 2001, the trial court granted Zeigler’s motion for release of evidence for DNA testing. Zeigler’s motion had stated a desire to test the evidence for clemency proceeding purposes. In 2003, after the testing was completed, Zeigler filed a motion to authorize (nunc pro tunc) DNA testing and the instant motion to vacate convictions based upon newly available evidence. In April 2005, after holding a two-day evidentiary hearing, the trial court denied Zeigler’s motion, concluding that “even if the alleged newly discovered evidence resulting from the DNA testing had been admitted at trial, there is no reasonable probability that Defendant would have been acquitted.”

Although this Court has set forth the facts of this case in prior opinions, we restate the following facts from the direct appeal that are relevant to our evaluation of Zeigler’s newly discovered evidence claim:'

On Christmas Eve, December 24, 1975, Eunice Zeigler, wife of defendant (hereinafter referred to as wife), and Perry and Virginia Edwards, parents-in-law of defendant (hereinafter referred to as Perry and Virginia), were shot to death in the W.T. Zeigler Furniture Store in Winter Garden, Florida. In addition, Charles Mays, Jr., (hereinafter referred to as Mays), was beaten and shot to death at the same location. Times of death were all estimated by the medical examiner as within one hour of 8:00 P.M. The defendant was also shot through the abdomen.
The state’s theory of the case may i be summarized as follows:
Edward Williams had known defendant and his family for a number of years. Williams testified that in June 1975 defendant inquired of him about obtaining a “hot gun.” Williams then went to Frank Smith’s home and arranged for Smith to purchase two RG revolvers. The revolvers were delivered to defendant. Also, during the latter part of- 1975 defendant purchased a large amount of insurance on the life of his wife. Thus was shown the means and the motive.
Mays and his wife came to defendant’s furniture store during the morning of December 24 and Mays agreed to meet defendant around 7:30 P.M. The store was closed around 6:25 P.M.
Mays left his home around 6:30 P.M. He went to an Oakland beer joint and saw a friend, Felton Thomas, who accompanied Mays to the Zeigler Furniture Store.
The theory of the state’s case is that defendant had two appointments on Christmas Eve, one with Mays and one with Edward Williams. Prior to these appointments he took his wife to the store and in some manner arranged for his parents-in-law to go there. He killed his wife, Eunice, quickly, and for her, unexpectedly, since she was found with her hand in a coat pocket, shot from behind.
Because of the location of her body, Virginia was probably trying to hide among the furniture. Perry probably surprised defendant with his strength and stamina as they struggled for some time. After defendant subdued Perry and rendered him harmless, defendant shot him. Considering the fact that a bullet penetrated Virginia’s hand, the state said it was likely she was huddled in a protective position when she was executed.
Defendant then left the store, returning to meet with Mays who had arrived there at about 7:30. He was probably surprised to see the presence of another man, Felton Thomas, with Mays. He took Thomas and Mays to an orange grove to try the guns. The state says that the purpose of the trip was to get the two to handle and fire the weapons in the bag. From the grove he returned to the store, but was unsuccessful in getting Mays or Thomas to provide evidence of a break-in. He did, however, get Thomas to cut off the lights in the store. The three returned to defendant’s home. Defendant got out, went to the garage, came back and took a box of some kind to Mays and told him to reload the gun. They returned to the store. Defendant could not persuade Thomas to enter the store, so Thomas lived. When Thomas disappeared, the defendant returned to his home and picked up Edward Williams. Defendant had killed Mays.
Defendant was successful in getting Williams partially inside the back hallway. Defendant put a gun to Williams’ chest and pulled the trigger three times, but the gun did not fire. Williams said, “For God’s sake, Tommy, don’t kill me,” and ran outside, refusing to return to the store. The state says that the empty gun was as much a surprise to defendant as it was to Williams. The state says that in all probability defendant thought he was holding the gun that Mays had shot in the orange grove and which defendant told Mays to reload.
When he was unable to get Williams into the store, the defendant became desperate and conceived the idea that he would appear uninvolved if he happened to be one of the victims. Accordingly, he shot himself and then called Judge Vandeventer’s residence where he knew the police officers would be.
The defendant denies that he had any contact with Smith or purchased any guns from him. He says that the increase in the amount of the insurance policy [on his wife’s life] was pursuant to advice on an estate plan. Defendant says that his wife, Perry, and Virginia were killed during the course of a robbery; that Mays was involved in the robbery but was killed by his confederates; that he was shot by the burglars and left to die. The jury obviously did not believe the testimony of the defendant. To have believed his story, the jury would necessarily have had to disbelieve the testimony of Smith, Thomas, and Williams and would have had to have found no significance in the other substantial evidence.

Zeigler v. State, 402 So.2d 365, 367-68 (Fla.1981).

II. ISSUES RAISED ON APPEAL

Zeigler argues that the trial court erred in denying his postconviction motion by applying an incorrect standard and by ignoring portions of the record. More specifically, Zeigler asserts that the DNA test results corroborate Zeigler’s theory that Mays and two others committed the murders because the testing indicated the presence of Perry Edwards’ blood on Mays’ clothing. Zeigler also asserts that the DNA test results rebut the State’s theory that Zeigler struggled with Perry Edwards since the testing identified the presence of Mays’ blood on Zeigler’s shirts, but not the presence of Perry Edwards’ blood. However, for the reasons explained below, we affirm the trial court’s order.

This Court has described “the standard that must be satisfied in order for a conviction to be set aside based on newly discovered evidence”[:]

First, the “asserted facts ‘must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.’ ” [Jones v. State, 591 So.2d 911,] 916 [ (Fla.1991) ] (quoting Hallman v. State, 371 So.2d 482, 485 (Fla.1979)). Second, “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Jones, 591 So.2d at 915. In determining whether the evidence compels a new trial under Jones, the trial court must “consider all newly discovered evidence which would be admissible,” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Id. at 916. This determination includes
whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether this evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence.

Rutherford v. State, 926 So.2d 1100, 1107-08 (Fla.2006) (quoting Jones, 709 So.2d at 521).

In reviewing a trial court’s denial of a newly discovered evidence claim after an evidentiary hearing, this Court respects a trial court’s findings of fact as long as the findings are supported by competent, substantial evidence in the record. Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997). The same is true regarding “the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.” Id. (quoting Demps v. State, 462 So.2d 1074, 1075 (Fla.1984)). However, as with rulings on other postconviction claims, this Court reviews the trial court’s application of the law to the facts de novo. Gore v. State, 846 So.2d 461, 468 (Fla.2003).

We find that the trial court applied the proper standard for the second prong of the newly discovered evidence test, the only prong contested in this case. Applying the proper legal standard, the trial court listed the following findings in its thorough order denying relief:

Defendant admitted that he was at the crime scene, and there is no dispute that his blood, as well as the blood of the four victims, was present at the scene. Although the DNA testing identified, in some cases, whose blood was on the clothing of both Defendant and Mays, it did not conclusively eliminate Defendant as the perpetrator of the crimes.
The bodies of both Mays and Perry were found at the back of the furniture store within a few feet of each other. While the blood found on Mays’ shoes and the stains on his pants leg and cuff areas revealed a genetic profile consistent with Perry, these findings are consistent with Mays standing next to Perry, or being in close proximity to his body, after Perry was killed. These findings do not show, as Defendant asserts, that Mays was the perpetrator, rather than a victim of the crimes. Instead, if Mays were involved in a struggle with Defendant while in close proximity with Perry’s bloodied body, it would not be surprising that Perry’s blood ended up on Mays’ shoes and pants during the altercation.
Testimony given at both the trial and evidentiary hearing indicated that the stains on the back of Defendant’s red shirt were not transferred from the floor, as Defendant claims, but instead were consistent with a beating wherein the instrument used in the beating caused the blood to initially spray upward, then fall back onto the shirt. Even though all the stains on the shirt were not tested, testimony was adduced that if the spatters on the Defendant’s shirt came from Mays, Defendant was the one who beat Mays to death. No findings were introduced which contradicted this testimony.
Patterns made by smeared blood were present on Mays’ sweatshirt and on top of those patterns were stains from force consistent with a beating. The blood patterns had dried for fifteen to thirty minutes before the spatter landed on top of them. Testimony at the evidentiary hearing indicated that while the bloodstains could have been transferred from Mays’ sweatshirt to Defendant’s shirt, merely crawling over the shirt, as Defendant claims he did, would not be sufficient; instead, Defendant would have to lie across Mays’ torso in order to achieve those particular stains.
Finally, the fact that only Mays’ blood was found on the left arm of Defendant’s t-shirt does not exonerate Defendant or even tend to exonerate Defendant. As Weiss stated at the evidentiary hearing, it was possible to miss blood on the shirt, due to deterioration and improper storage. It was also possible to have a mixed stain, from multiple contributors, in the same area. Thus, the presence of Mays’ blood, and the absence of Perry’s, on Defendant’s t-shirt does not conclusively show that Defendant did not hold Perry in a headlock and beat him.

The trial court’s findings of fact are supported by competent, substantial evidence in the record, particularly the evi-dentiary hearing testimony of the blood stain expert and the DNA testing analyst as well as the 1976 trial testimony of Zeig-ler and the original blood stain expert. In fact, the bloodstain expert who testified during the evidentiary hearing after examining the evidence presented at the 1976 trial indicated that all of the blood spatter evidence on Zeigler’s clothing would be explained if Zeigler was the perpetrator. Moreover, in 1995 this Court came to the same conclusion as the trial court while assuming that the DNA evidence would prove more favorable to Zeigler than it actually did. This Court stated “that even if the DNA results comported with the scenario most favorable to Zeigler, he still would not have been able to show that the evidence would have probably produced an acquittal.” Zeigler v. State, 654 So.2d at 1164. We explained that “[t]he State’s case was not entirely circumstantial, and in order to accept Zeigler’s theory of the case, the jury would have had to disbelieve at least three witnesses who testified at the trial.” Id. Given the above, we affirm the trial court’s order denying relief.

III. CONCLUSION

For the reasons expressed above, we affirm the trial court’s order denying Zeig-ler’s postconviction motion.

It is so ordered.

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

      . Zeigler also claims that the trial court (1) erroneously limited the scope of the evidentia-ry hearing to the DNA test results; and (2) erroneously denied Zeigler's request to conduct further DNA testing. However, we find that these claims are without merit. First, the claims that the trial court excluded from consideration at the evidentiary hearing are procedurally barred. See Jones v. State, 709 So.2d 512, 522 n. 7 (Fla.1998). Second, Zeig-ler abandoned the DNA testing motion when he filed a notice of appeal before the trial court ruled on the testing motion. See In re Forfeiture of $104,591 in U.S. Currency, 589 So.2d 283, 285 (Fla.1991).

      . Zeigler originally argued "that DNA testing may rebut the Stale's hypothesis that the type 'A' bloodstains found on Zeigler's clothing originated from a struggle with Mays or [Perry] Edwards.” Zeigler 654 So.2d at 1163-64. However, the DNA testing of portions of Zeig-ler's shirts revealed genetic markers consistent with Mays. Thus, the DNA results did not rebut a struggle with Mays.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Chadwick WILLACY, Appellant, v. STATE of Florida, Appellee. Chadwick Willacy, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC05-189, SC05-2021.
    Supreme Court of Florida.
    June 28, 2007.
    Rehearing Denied Oct. 10, 2007.

      ■ Brian M. Onek of Balgo, Onek and Mawn, P.A., Melbourne, FL, and Elizabeth Siano Harris of Stadler and Harris, P.A., Titusville, FL, for Appellant/Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.
   PER CURIAM.

Chadwick Willacy appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 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 stated below, we affirm the circuit court’s order denying Willacy’s rule 3.850 motion and deny his writ petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 5, 1990, Marlys Sather returned home unexpectedly to find Willa-cy, her next-door neighbor, burglarizing her house. Willacy bludgeoned Sather and bound her ankles with wire and duct tape. He choked and strangled her with a cord with a force so intense that a portion of her skull was dislodged. Willacy then obtained Sather’s ATM pin number, her ATM card, and the keys to her car; drove to her bank; and withdrew money out of her account. Willacy hid Sather’s car around the block while he made trips to and from the house. He placed stolen items on Sather’s porch for later retrieval, took a significant amount of property from Sather’s house to his house, and then drove the car to Lynbrook Plaza where he left it and jogged back to Sather’s home. Upon his return, Willacy disabled the smoke detectors, doused Sather with gasoline he had taken from the garage, placed a fan from the guest room at her feet to provide more oxygen for the fire, and struck several matches as he set her on fire.

When Sather failed to return to work after lunch, her employer notified the Sather family of her absence. Sather’s son-in-law went to her home and found a shotgun and several electronic items lying on the back porch. Inside fhe home, he found Sather’s body. Medical testimony established that her death was caused by inhalation of smoke from her burning body.

Law enforcement officers conducted an investigation into Sather’s murder, uncovering a large amount of evidence linking Willacy to the murder. Willacy’s fingerprints were found on the fan at Sather’s feet, the gas can, and a tape rewinder at Sather’s house. Witnesses reported seeing a man matching Willacy’s description near Sather’s house and driving Sather’s car on the day of the murder. Further, Willacy’s girlfriend, Marisa Walcott, telephoned law enforcement officers after discovering a woman’s check register in Willacy’s wastebasket. Law enforcement officers recognized the check register as belonging to Sather and subsequently arrested Willacy. While executing a search warrant on Willacy’s home, law enforcement agents uncovered some of Sather’s property, as well as several articles of clothing containing blood consistent with Sather’s blood type.

Willacy was charged by indictment with first-degree premeditated murder, burglary, robbery, and arson. Judge Theron Yawn presided over the trial. On October 17, 1991, the jury convicted Willacy on all four counts. Following the penalty phase, the jury recommended death by a vote of nine to three, and Judge Yawn sentenced Willacy to death.

Willacy appealed to this Court but subsequently moved for temporary relinquishment of jurisdiction in order for the trial court to hold an evidentiary hearing on his motion for a new trial. In his motion for a new trial, Willacy claimed that juror Clark, the foreman of Willacy’s trial in 1991, was under prosecution for grand theft. Jurisdiction was relinquished and on October 12, 1992, Judge Yawn conducted a hearing on Willacy’s motion. Among the witnesses at the hearing, the court heard testimony from Willacy’s trial counsel, the prosecutors in his case, and juror Clark. The prosecutors testified that they became aware of Clark’s status during Willacy’s trial and immediately informed Willacy’s trial counsel. Willacy’s trial counsel denied receiving this information during trial. Following the hearing, Judge Yawn issued an order denying Willacy’s motion for a new trial, finding that the State informed Willacy’s trial counsel of Clark’s status during trial.

During oral argument on direct appeal, the parties thoroughly debated the issue of juror Clark’s eligibility. Willacy’s counsel asserted that Clark was under prosecution and, therefore, statutorily ineligible to serve as a juror until he entered into a pretrial intervention (PTI) agreement. According to Willacy’s counsel, because Clark did not sign a PTI contract until after Willacy’s trial, Clark was disqualified. The State countered that Clark was eligible to serve because he was approved for PTI prior to Willacy’s trial. Alternatively, the State argued that because Willacy’s trial counsel failed to object to Clark during trial, the matter was waived. This Court affirmed the convictions but vacated the death sentence and remanded the case for a new penalty phase based on Willacy’s claim that the trial court did not give defense counsel an opportunity to rehabilitate a juror who said she was opposed to the death penalty. Willacy I, 640 So.2d at 1082. As to the controversy regarding juror Clark, this Court held:

Since Clark was not under prosecution, Willacy’s motion for a new trial was properly denied. Moreover, during the trial the State informed Willacy’s counsel of Clark’s status and his counsel voiced no objection. By failing to make a timely objection, Willacy waived the claim he now seeks to assert. We affirm the trial court’s decision.

Willacy I, 640 So.2d at 1083.

At resentencing, Willacy was represented by new counsel and Judge Yawn again presided. The State presented evidence of the crime and testimony of Sather’s son and two daughters. Willacy presented the testimony of relatives and friends. The court followed the jury’s eleven-to-one recommendation and sentenced Willacy to death, finding five aggravating factors, no statutory mitigating factors, and thirty-one nonstatutory mitigating factors of little weight. On direct appeal after resentenc-ing, Willacy raised eleven issues. This Court denied each of those claims and affirmed Willacy’s death sentence. Willacy II, 696 So.2d at 694.

On May 11, 1998, Willacy filed a motion to vacate judgment of conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850 with special request for leave to amend. On March 18, 2002, Wil-lacy filed an amended motion for posteon-viction relief in which he raised thirty-one issues. Seventeen of Willacy’s claims were summarily denied by order on September 24, 2003. An evidentiary hearing was granted on Willacy’s remaining fourteen claims. The evidentiary hearing was held on December 3 through 5 and 19, 2003, and February 16, 2004. On November 23, 2004, the trial court issued an order denying the remaining fourteen claims. Willa-cy timely filed this appeal.

II. 3.850 MOTION FOR POSTCONVICTION RELIEF

Willacy appeals the denial of his motion for postconviction relief, raising seven issues: (1) the trial court erred in denying an evidentiary hearing on claims 4, 6, and 15 of his motion for postconviction relief; (2) counsel was ineffective for failing'to assert the independent act defense; (3) counsel was ineffective for failing to move to recuse the trial judge at the resentenc-ing proceeding; (4) counsel was ineffective for failing to investigate and present evidence of statutory and nonstatutory mitigating factors; (5) counsel was ineffective for failing to inquire regarding juror Clark’s status; (6) the trial court erred in failing to retroactively apply this Court’s decision in Lowrey v. State, 705 So.2d 1367 (Fla.1998); and (7) the trial court erred in denying Willacy’s motion for postconviction DNA testing.

A. Trial Court’s Denial of Evidentiary Hearing

Willacy first claims that the trial court erred in denying an evidentiary hearing on claims 4, 6, and 15 of his motion for postconviction relief. “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.” Finney v. State, 831 So.2d 651, 656 (Fla.2002) (quoting Peede v. State, 748 So.2d 253, 257 (Fla.1999)). Because a court’s decision as to whether to grant an evidentiary hearing on a rule 3.850 motion filed in a capital case is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. See State v. Coney, 845 So.2d 120, 137 (Fla.2003) (holding that “pure questions of law” that are discernible from the record “are subject to de novo review”).

The trial judge denied Willacy an evidentiary hearing on claim 4, in which Willacy asserted that trial counsel, Kurt and Susan Erlenbach, were ineffective for failing to request the appointment of independent counsel at the hearing on his motion for a new trial. The judge did so because he found that “no conflict of interest existed requiring the appointment of an independent counsel at the evidentiary hearing.” Order Denying in Part Defendant’s Amended Motion for Postconviction Relief, Granting an Evidentiary Hearing on Specified Claims, and Scheduling an Evidentiary Hearing (hereinafter Order Denying Postconviction Relief) at 7 (Sept. 24, 2003). We agree.

Willacy essentially argues that, because the Erlenbachs were necessary witnesses at the post-trial hearing on his motion for new trial, they were required by Rule of Professional Conduct 4-3.7, Rules Regulating the Florida Bar, to seek the appointment of independent counsel. He claims that their failure to do so created a conflict of interest. With some exceptions, rule 4-3.7 provides that “[a] lawyer shall not act as an advocate at a 'trial in which the lawyer is likely to be a necessary witness on behalf of the client.” (Emphasis supplied.) However, this rule does not mandate the withdrawal of counsel who must testify in a post-trial hearing such as occurred here. See Columbo v. Puig, 745 So.2d 1106, 1107 (Fla.3d DCA 1999). The hearing on Willacy’s motion for new trial was a very limited, post-trial evidentiary hearing regarding juror Clark’s status and whether information about juror Clark was exchanged between opposing counsel. The Erlenbachs’ testimony was brief and entirely favorable to the defendant. As the trial court stated:

Kurt Erlenbach testified that no one told him that Juror Clark was pending prosecution. Similarly, Susan Erlen-bach testified that she never had a conversation with [the prosecution] regarding this issue. The Erlenbachs’ testimony was favorable to the defense and all testimony at the hearing was under oath. The facts would not have changed so how the outcome would have changed with the use of independent counsel at the motion for new trial hearing who may have used a different strategy is inconceivable and pure speculation at best.

Order Denying Postconviction Relief, at 7-8 (Sept. 24, 2003) (record references omitted). We agree with the trial court that, under these circumstances, rule 4-3.7 does not mandate the appointment of independent counsel.

Outside of this purported violation of rule 4-3.7, Willacy fails to allege any conflict of interest which would necessitate withdrawal of defense counsel and appointment of independent counsel. As the United States Supreme Court has held:

[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.

Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (citation omitted) (citing Holloway v. Arkansas, 435 U.S. 475, 487-91, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Glasser v. United States, 315 U.S. 60, 72-75, 62 S.Ct. 457, 86 L.Ed. 680 (1942)). Because Willacy’s counsel was not required under rule 3-4.7 to seek the appointment of independent ■counsel and there is no other allegation that the Erlenbachs were actively representing conflicting interests, Willacy has not established the predicate for his claim of ineffective assistance. The trial court’s denial of this claim without an evidentiary hearing is affirmed.

Next, the record conclusively refutes Willacy’s claim that the trial court improperly denied an evidentiary hearing on claim 6, that counsel was ineffective for failing to object to juror Clark’s ineligibility to serve. As we have previously held, counsel is not ineffective for failing to make a futile objection. See Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). Here, the trial court had already conducted an evidentiary hearing with regard to the juror Clark issue when it was deciding Willacy’s motion for a new trial. Judge Yawn found that the Erlenbachs were informed of Clark’s status at some point during the trial, but failed to object. Therefore, Judge Yawn determined that Willacy waived objection on this matter. On direct appeal, the parties thoroughly explained to this Court the sequence of events leading up to Clark’s entry into the pretrial intervention (PTI) program and his service on Willacy’s jury. We held on the merits that Clark was eligible to serve. Thus, even if the Erlenbachs had sought to have Clark disqualified, their objection ultimately would have failed. Therefore, because this claim is conclusively refuted by the record, we affirm the trial court’s denial of an evidentiary hearing.

Finally, the trial court denied Wil-lacy an evidentiary hearing on claim 15, in which Willacy argued that trial counsel was ineffective for failing to object to the trial court’s failure to swear the jury prior to voir dire. Florida criminal procedure does not mandate that a judge swear the jury after the venire has already been sworn by the jury clerk. See Lott v. State, 826 So.2d 457, 458 (Fla. 1st DCA 2002), review denied, 845 So.2d 891 (Fla.2003). Therefore, Willacy’s ineffective assistance of counsel claim is legally insufficient. No evidentiary hearing was required.

B. Ineffective Assistance of Trial Counsel

Willacy raises three claims of ineffective assistance of counsel, including the failure to (1) assert the independent act defense; (2) move to recuse the trial judge at the resentencing proceeding; and (3) investigate and present evidence of statutory and nonstatutory mitigating factors. Each claim fails under 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 under Strickland:

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.

Dufour v. State, 905 So.2d 42, 51 (Fla.2005) (quoting Maxwell, 490 So.2d at 932). 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.

Claims that could have been brought on direct appeal are procedurally barred in postconviction proceedings. Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995). “Postconviction proceedings cannot be used as a second appeal.” Swafford v. Dugger, 569 So.2d 1264, 1267 (Fla.1990); (see also Medina v. State, 573 So.2d 293, 295 (Fla.1990) (“[I]t is inappropriate to use a different argument to relitigate the same issue.” (citing Quince v. State, 477 So.2d 535 (Fla.1985)))). “Allegations of ineffective assistance cannot be used to circumvent the rule that posteonvietion proceedings cannot serve as a second appeal.” Medina, 573 So.2d at 295 (citing Blanco v. Wainwright, 507 So.2d 1377 (Fla.1987); Sireci v. State, 469 So.2d 119 (Fla.1985)).

(1) Counsel’s Failure to Assert the Independent Act Defense

First, Willacy alleges that trial counsel was ineffective for failing to assert the independent act defense. In his statement to law enforcement officers following his arrest, Willacy admitted his involvement in the robbery, but claimed that two other men, Lonzo Love and Carlton Chance, committed the murder. Before trial, Mr. Erlenbach succeeded in moving the court to suppress Willacy’s robbery confession. Erlenbach chose to suppress the confession because Love and Chance had alibis and there was no other evidence linking them to the crime. At the hearing on Willacy’s motion for postconviction relief, Erlenbach testified that he pursued a trial strategy of eliminating evidence and creating reasonable doubt. The postcon-viction trial court denied relief, finding that Erlenbach’s evidence-elimination technique was a sound trial strategy under the circumstances of the case and that Willacy failed to show prejudice. The court stated that there was no competent evidence presented by the defense at the evidentiary hearing or in the record that anyone other than Willacy participated in the crimes.

The trial court’s conclusion is supported by competent, substantial evidence. See Orme v. State, 677 So.2d 258, 262 (Fla.1996); Johnson v. State, 660 So.2d 637, 644 (Fla.1995). In Ray v. State, 755 So.2d 604 (Fla.2000), this Court explained:

The “independent act” doctrine arises when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofelon, “which fall outside of, and are foreign to, the common design of the original collaboration.” Dell v. State, 661 So.2d 1305, 1306 (Fla. 3d DCA 1995) (quoting Ward v. State, 568 So.2d 452 (Fla. 3d DCA 1990)). Under these limited circumstances, a defendant whose cofelon exceeds the scope of the original plan is exonerated from any punishment imposed as a result of the independent act.

Id. at 609. Erlenbach’s choice to forego the independent act defense did not amount to deficient performance. Other than Willacy’s statements to law enforcement officers that Love and Chance were involved in the murder, there was no other evidence supporting the independent act defense. Moreover, Willacy’s statements to law enforcement officers regarding his involvement in the robbery are essentially a confession to felony murder because Wil-lacy admitted his involvement in the burglary. Consequently, the independent act defense would have been extremely risky compared to the evidence-elimination strategy employed by Erlenbach. Also, given all of the evidence linking Willacy to the murder, there is no reasonable probability that the jury would have acquitted Willacy even if his statements had been introduced into evidence. See Caballero v. State, 851 So.2d 655, 661 (Fla.2003) (“[W]e do not second-guess the trial court’s factual findings; instead, we limit our review to ensuring that the trial court applied the correct rule of law and, if so, that there is competent, substantial evidence to support its findings.”). We affirm the trial court’s conclusion that counsel was not ineffective for failing to assert the independent act defense.

' (2) Counsel’s Failure to Move for Recusal of the Trial Judge at Resentencing

Next, Willacy claims trial counsel was ineffective for failing to move to re-cuse the trial judge at the resentencing proceeding. Willacy claims that his resen-tencing counsel, James Kontos, should have moved to recuse Judge Yawn after the new trial hearing because he refused to follow the procedure outlined in Spencer v. State, 615 So.2d 688 (Fla.1993).

This claim is barred because it should have been raised on direct appeal after resentencing. See Medina, 573 So.2d at 295. Moreover, Willacy cannot overcome this procedural bar by raising the issue in the form of an ineffective assistance of counsel claim. See id. Therefore, we affirm the trial court’s denial of this claim.

(3) Counsel’s Failure to Investigate and Present Mitigating Evidence

Willacy next claims that trial counsel was ineffective for failing to investigate and present evidence of statutory and nonstatutory mitigating factors. In particular, Willacy claims that counsel failed to present evidence that (1) Willacy was suffering from Attention Deficit Hyperactivity Disorder (ADHD); (2) Willa-cy was under the influence of extreme mental or emotional disturbance; (3) Willacy was physically abused by his father during childhood and adolescence; and (4) Willacy was in a drug-induced psychosis at the time of the homicide. The postconviction trial court held (1) that Kontos was not ineffective in failing to present testimony of mental illness or ADHD; (2) that Kontos was not ineffective for failing to present evidence of physical abuse by Willacy’s father; and (3) that Willacy presented no evidence that he was under the influence of cocaine at the time of the murder.

“Under Strickland, ‘counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ ” Marshall v. State, 854 So.2d 1235, 1247 (Fla.2003) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052); see also Carroll v. State, 815 So.2d 601, 614 -615 (Fla.2002) (same). This Court has stated:

In evaluating claims that counsel was ineffective for failing to present mitigating evidence, ... [t]he principal concern ... is not whether a case was made for mitigation but whether the “investigation supporting counsel’s decision not to introduce mitigating evidence ... was itself reasonable ” from counsel’s perspective at the time the decision was made.

Holland v. State, 916 So.2d 750, 757 (Fla.2005) (quoting Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)), cert. denied, 547 U.S. 1078, 126 S.Ct. 1790, 164 L.Ed.2d 531 (2006). “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (quoting Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at 521-22, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052).

At resentencing, Willacy’s counsel, James Kontos, sought to portray Willacy as a life worth saving and, therefore, avoided presenting evidence that Willacy was a sociopath. Kontos called a number of witnesses who testified to Willacy’s good deeds. The postconviction trial court found that this was sound strategy, noting that humanizing a defendant is an accepted strategy that falls within the broad range of reasonably competent performance under prevailing professional standards. See Haliburton v. Singletary, 691 So.2d 466, 471 (Fla.1997); Bryan v. Dugger, 641 So.2d 61, 64 (Fla.1994). The post-conviction trial court also stated that any mental mitigation evidence would have opened the door to aggravating facts, such as testimony about Willacy’s threat to kill a teacher, setting a school bulletin board on fire, setting squirrels on fire, and running squirrels over with a lawnmower, and descriptions by a school principal of Willa-cy as incorrigible and needing counseling. The court further stated that the facts of the case show a deliberate, methodical process, not the activities of someone under the influence of an extreme emotional disturbance or cocaine intoxication, who is unable to conform his conduct to the requirements of the law. Also, the court noted that there was overwhelming evidence of Willacy’s guilt of first-degree premeditated murder, and there was substantial, compelling aggravation found by the jury and the trial court. In addition, the postconviction trial court pointed out that, throughout the penalty phase in 1991 and the resentencing in 1995, Willacy and his family members, while under oath, repeatedly denied that Willacy was physical abused as a child.

The postconviction trial court’s findings are supported by competent, substantial evidence. Kontos conducted a reasonable investigation into Willacy’s mental condition and family history and made a reasonable strategic choice to forego presentation of negative mitigation evidence. First, Kontos consulted with psychologist Dr. William Riebsame prior to trial. Dr. Rieb-same told Kontos that, based on preliminary testing, Willacy might be a sociopath or psychopath. As a result, Kontos decided not to employ Dr. Riebsame or allow him to proceed further to see if that diagnosis was accurate. Kontos believed that the jury would not be receptive to a depiction of Willacy as antisocial, sociopathic, or psychopathic. Dr. Riebsame testified at resentencing that Willacy met the diagnosis for ADHD, Antisocial Personality Disorder, and probably cocaine intoxication and cocaine withdrawal. However, Dr. Ri-ebsame stated that Willacy’s ability to appreciate the criminality of his conduct was not impaired, and that Willacy’s ability to conform his conduct to the law was impaired but not substantially. Further, because Willacy and his family concealed his childhood abuse, Kontos was unable to discover it. Thus, the postconviction trial court properly concluded that Kontos’s performance was not deficient based on a failure to further investigate Willacy’s family and mental health background.

Also, Willacy has not shown prejudice because presenting this mitigating evidence “would likely have been more harmful than helpful.” Evans v. State, 946 So.2d 1, 13 (Fla.2006); Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (concluding counsel’s limited investigation was reasonable because he interviewed all witnesses brought to his attention, discovering little that was helpful and much that was harmful); Darden v. Wainwriglit, 477 U.S. 168, 186, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (concluding that counsel engaged in extensive preparation and that the decision to present a mitigation case would have resulted in the jury hearing evidence that petitioner had been convicted of violent crimes and spent much of his life in jail); see Griffin v. State, 866 So.2d 1, 9 (Fla.2003) (“Trial counsel is not deficient where he makes a reasonable strategic decision to not present mental mitigation testimony during the penalty phase because it could open the door to other damaging testimony.”). In Reed v. State, 875 So.2d 415 (Fla.2004), we stated:

[Ejven if [defense] counsel had ... investigated further, the testimony that could have been presented was just as likely to have resulted in aggravation against rather than mitigation for [the defendant].
An ineffective assistance claim does not arise from the failure to present mitigation evidence where that evidence presents a double-edged sword.

Id. at 436-37. “Furthermore, this Court has acknowledged in the past that antisocial personality disorder is ‘a trait most jurors tend to look disfavorably upon.’ ” Id. at 437 (quoting Freeman v. State, 852 So.2d 216, 224 (Fla.2003)). Thus, there is no reasonable probability that the outcome of the proceeding would have been different if Kontos had chosen to focus on Willa-cy’s abuse and mental health issues rather than on the positive aspects of Willacy’s life. Accordingly, counsel was not ineffective for failing to present this evidence.

C. Postconviction DNA Testing

Willacy seeks DNA testing on several items pursuant to Florida Rule of Criminal Procedure 3.853, claiming that he will be exonerated, including DNA testing of blood on a napkin and a pair of men’s multicolored shorts found in his house, and DNA testing of a green tank top and man’s white shirt found at the victim’s house. Willacy claims that he will be exonerated because testing will show that the blood on the napkin and the multicolored shorts came from Willacy’s girlfriend and not the victim. Willacy also alleges that the green tank top and white shirt had been worn by the murderer, and that DNA testing would determine the identity of the wearer, thereby excluding Willacy as the perpetrator.

The applicable law is set forth in section 925.11(2), Florida Statutes (2006), and Florida Rule of Criminal Procedure 3.853, as well as Hitchcock v. State, 866 So.2d 23, 27 (Fla.2004). Section 925.11(2) states:

(a) The petition for postsentencing DNA testing must be made under oath by the sentenced defendant and must include the following:
3. A statement that the sentenced defendant is innocent and how the DNA testing requested by the petition will exonerate the defendant of the crime for which the defendant was sentenced or will mitigate the sentence received by the defendant for that crime....

See also Fla. R.Crim. P. 3.853. Further, in Hitchcock, 866 So.2d at 27, this Court stated:

The clear requirement of these provisions is that a movant, in pleading the requirements of rule 3.853, must lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence. In order for the trial court to make the required findings, the movant must demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case.

The postconviction trial court denied Willacy’s 3.853 motion, concluding that Willacy failed to explain with reference to the specific facts about the crime how DNA testing of these items would exonerate him or mitigate his death sentence. We agree with the postconviction trial court. At trial, the State presented a plethora of other evidence upon which the jury could have based its decision in convicting Willacy of Sather’s murder. Willa-cy’s fingerprints were found on the gas can and a fan at the murder scene, and Willacy matched the description of the suspect seen in the neighborhood on the day of the murder. Also, Willacy’s picture was taken by an ATM machine when he used the victim’s credit card, and he matched the description of the man seen driving the victim’s car the day of the murder. Thus, because DNA testing would not eliminate significant and substantial evidence directly linking Willacy to Sather’s murder, it would not give rise to a reasonable probability of acquittal or a lesser sentence. Therefore, we affirm the postconviction trial court’s denial of Willacy’s claim for post-conviction DNA testing.

III. PETITION FOR WRIT OF HABEAS CORPUS

In his petition for writ of habeas corpus, Willacy raises seven issues: (1) appellate counsel was ineffective for failing to raise on direct appeal lack of probable cause to arrest Willacy or to search Willacy’s residence; (2) Willacy was denied his constitutional right to a fair trial by having a juror who was pending prosecution serve as the foreman on his jury; (3) appellate counsel was ineffective for failing to raise on direct appeal the fundamental error resulting from the trial court’s failure to swear prospective jurors; (4) appellate counsel was ineffective for failing to argue that the jury was improperly instructed as to the aggravating circumstance of cold, calculated,'and premeditated (CCP); (5) Willacy was sentenced to death in violation of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (6) death by lethal injection violates article I, section 17 of the Florida Constitution and the Eighth Amendment of the United States Constitution; and (7) Willacy’s Eighth Amendment right against cruel and unusual punishment may be violated as he may be incompetent at the time of execution. Issues (2), (5), (6), and (7) are either without merit or not yet ripe for review and need not be discussed in detail.

A. Counsel’s Failure to Raise Lack of Probable Cause

(1) Lack of Probable Cause to Arrest Wil-lacy

Willacy claims that appellate counsel was ineffective during his direct appeal for failing to raise lack of probable cause to arrest Willacy. The original trial court found that there was probable cause to arrest Willacy, and this finding is supported by the record. Detective George Santiago testified that he went to the victim’s home on September 6,1990. He saw household items on the back porch and noticed a strong odor of gasoline in the house. Willacy lived next door to Sather. Detective Santiago initially questioned Wil-lacy to determine whether Willacy’s house had also been burglarized. However, after walking through his house, Willacy advised that nothing was missing. When Detective Santiago asked for fingerprints to eliminate Willacy, Willacy refused to give them. Although Willacy agreed to go to the police station around 5 p.m., he never appeared. A sixteen-year-old boy reported seeing someone matching Willacy’s description driving Sather’s car around the time of the murder. A neighbor also reported seeing a muscular black male exit the wooded area next to Sather’s home and get into a two-toned, four-door car. Willacy matched these descriptions. Further, Roland Sasscer reported attempting to visit Sather on the day of the murder to discuss purchasing her car, but no one answered the door. The next day, Detective Santiago interviewed Willacy at Willa-cy’s house. During the interview, Willacy stated that he was working on his roof the day of the murder but never saw Sasscer. Later that evening, Detective Santiago received a telephone call from Willacy’s girlfriend, Marisa Walcott, informing him that she discovered a woman’s check ledger in the wastebasket of Willacy’s bathroom. Walcott stated that Willacy was asking her to give him the ledger, but she would not let him have it. Detective Santiago returned to Willacy’s house, and Willacy pointed out the checkbook ledger in the wastebasket. Detective Santiago recognized the handwriting as Sather’s from his earlier investigation. At that point, Detective Santiago arrested Willacy and secured his house. Before trial, defense counsel moved to suppress statements made by Willacy after he was arrested on the ground that law enforcement officers lacked probable cause to arrest Willacy. The trial court granted the motion to suppress based on a Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), violation but held that officers had probable cause to arrest Willacy. Appellate counsel did not raise the issue on direct appeal.

The record reflects that reasonable grounds existed at the time Willa-cy was arrested to believe that he had committed the murder. A law enforcement officer has probable cause to arrest if he has reasonable grounds to believe that the person arrested has committed a felony. Shriner v. State, 386 So.2d 525, 528 (Fla.1980). “In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). The trial court’s probable cause determination is correct. “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.” Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000) (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)). Appellate counsel cannot be deemed ineffective for failure to raise a meritless issue. Id. Because this claim lacked merit, appellate counsel was not ineffective for failing to raise it on direct appeal.

(2) Lack of Probable Cause to Search Wil-lacy’s Home

Similarly, appellate counsel was not ineffective for failing to raise lack of probable cause to search Willacy’s home because the trial court’s finding that probable cause existed to sustain the search warrant is supported by the record. A trial court’s duty upon reviewing the magistrate’s decision to issue the search warrant is not to conduct a de novo determination of probable cause but to determine whether substantial - evidence supported the magistrate’s finding that, based on the totality of the circumstances, probable cause existed to issue the warrant. State v. Van Pieterson, 550 So.2d 1162, 1164 (Fla. 1st DCA 1989). A magistrate’s de-' termination should be accorded a presumption of correctness and not disturbed absent a clear demonstration that the issuing magistrate abused his discretion. State v. Price, 564 So.2d 1239, 1241 (Fla. 5th DCA 1990). . The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances before him, there is a fair probability that contraband or evidence of a crime will be found in a.particular place. Id.

Here, the record supports the trial court’s finding that the search warrant was supported by probable cause. The evidence existing at the time the search warrant was issued, especially the finding of Sather’s check register in Willacy’s home and the finding of Willacy’s fingerprints in Sather’s home, created a fair probability that evidence of the murder would be found in Willacy’s home. See Price, 564 So.2d at 1241. Thus, there is no indication that the magistrate committed an abuse of discretion or that the officers acted in bad faith in relying on the search warrant. Because the claim of lack of probable cause to search Willacy’s house was without merit, appellate counsel was not ineffective for failing to raise it. See Rutherford, 774 So.2d at 643.

B. Counsel’s Failure to Argue Improper Instruction on Cold, Calculated, and Premeditated (CCP)

Finally, Willacy claims that appellate counsel was ineffective for failing to argue that the jury was improperly instructed as to the aggravating circumstance of cold, calculated, and premeditated (CCP). Because the record does not indicate that counsel specifically requested a jury instruction distinguishing between “ordinary premeditation” and the premeditation required for the CCP aggravator “cold, calculated and premeditated,” the issue was not preserved for appeal. Therefore, appellate counsel was not ineffective for failing to raise this claim. See Rutherford, 774 So.2d at 643.

V. CONCLUSION

For the reasons expressed above, we affirm the trial court’s denial of Willacy’s motion for postconviction relief and deny Willacy’s petition for writ of habeas corpus.

It is so ordered.

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

      . See Willacy v. State, 640 So.2d 1079 (Fla.1994) (hereinafter Willacy I) and Willacy v. State, 696 So.2d 693 (Fla.1997) (hereinafter Willacy II).

      . Judge Yawn found four aggravating factors: the murder was committed (1) while engaged in the commission of arson; (2) for pecuniary gain; (3) in an especially heinous, atrocious, or cruel manner; and (4) to avoid arrest. The sole statutory mitigating factor was Willa-cy's lack of prior criminal activity, and the two nonstatutory mitigating factors were Wil-lacy's history of nonviolence and his attempts at self-improvement while in jail.

      .The eight issues raised on direct appeal were: (1) the court committed reversible error when it refused the defense an opportunity to rehabilitate a prospective juror; (2) a prospective juror was improperly challenged based on his race; (3) the jury foreman was ineligible to serve; (4) the court improperly found that Willacy’s statements were voluntarily made; (5) the killing was not committed to avoid arrest; (6) the killing was not heinous, atrocious, or cruel; (7) the court improperly weighed the mitigating and aggravating factors; and (8) death is an inappropriate penalty. Willacy I, 640 So.2d at 1081 n. 2.

      . The five aggravating factors were: (1) the murder was committed in the course of a felony; (2) the murder was committed to avoid lawful arrest; (3) the murder was committed for pecuniary gain; (4) the murder was especially heinous, atrocious, or cruel (HAC); and (5) the murder was committed in a cold, calculated, and premeditated manner (CCP).

      . The nonstatutory mitigating factors were that Willacy (l)-(3) exhibited kindness, compassion, and concern for others; (4) enjoyed the love and affection of his family; (5)-(6) enjoyed the respect and admiration of his peers and his family; (7) demonstrated a desire and a willingness to help others; (8)-(9) was a leader and a role model to his peers; (10) maintained strong ties to his family; (11) exhibited appropriate demeanor and behavior during the resentencing hearing; (12) exhibited love for his family; (13)-(14) was a good and loyal friend and a good and obedient son; (15) was unselfish; (16) contributed to the lives of others; (17) showed the proper respect for his elders; (18)-(19) demonstrated honesty and responsibility; (20) was a hard worker; and (21) voluntarily sought help for his drug problem. While in school, Willacy (22) enjoyed the respect and confidence of his teachers and coaches; (23) did not experience any academic or disciplinary problems; (24) was a disciplined and dedicated member of his high school track team; (25) demonstrated a willingness to help his teammates and otherwise be a team player; (26) was the captain of his high school track team and enjoyed numerous honors in connection with his talents as a runner; (27) had no history of previous violent conduct; and (28) had a good upbringing without serious disciplinary problems. Judge Yawn also considered (29)-(30) any other aspect of Willacy's character or background; and (31) any other factor deemed appropriate.

      . The eleven issues Willacy raised on direct appeal after resentencing were: (1) the denial of Willacy’s motion for recusal of the judge; (2) the admission of inflammatoiy evidence; (3) the finding that the murder was heinous, atrocious, or cruel (HAC); (4) the finding that the murder was committed to evade arrest; (5) the finding that the murder was committed for pecuniary gain; (6) the finding that the murder was committed in a cold, calculated, and premeditated manner (CCP); (7) the proportionality of tire death sentence; (8) the admission of victim impact evidence; (9) the refusal to strike jurors for cause; (10) cumulative error; and (11) the constitutionality of the death penalty statute.

      . Willacy’s claims that were summarily denied included: (3) Willacy was denied a fair trial due to the State's failure to inform the court of juror Clark’s statutory ineligibility; (4)counsel was ineffective for waiving the appointment of independent counsel to litigate the facts and circumstances regarding juror Clark's pending felony charges; (5) counsel was ineffective for failing to fully present to the trial court during the hearing on October 12, 1992, all aspects of the pretrial intervention program and juror Clark’s status as pending prosecution at the time of his jury service; (6) counsel was ineffective for failing to object to juror Clark's ineligibility to serve as a juror; (8) the trial court applied an incorrect standard of review or law in denying Willacy's motion for a new trial; (9) Willacy was denied a fair trial due to juror misconduct; (11) counsel was ineffective for failing to timely move to disqualify Judge Yawn from presiding over the second penalty phase proceeding; (12) the trial court erred by failing to follow the procedure outlined in Spencer v. State, 615 So.2d 688 (Fla.1993), in resentencing Willacy in 1995; (14) jurors were not sworn prior to voir dire in the original trial as required by Florida Rule of Criminal Procedure 3.300(a); (15) counsel was ineffective for failure to object to the trial court's failure to swear the jury prior to voir dire in the original trial; (16) the trial court erred in concluding that there was probable cause for Willacy’s arrest and search of his home; (20) the trial court erred in failing to properly instruct the jury during the 1995 penalty phase proceeding on the distinction between regular premeditation and the higher standard of cold, calculated, and premeditated murder; (26) the indictment violated the Sixth Amendment and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because it failed to include aggravating circumstances; (27) Florida's death penalty statute is unconstitutional under the Sixth Amendment and Apprendi because the jury was not instructed that they must unanimously find beyond a reasonable doubt any aggravating circumstance; (28) the trial court's failure to instruct the jury that they must unanimously find that the aggravating circumstances outweigh the mitigating circumstances in order to recommend a death sentence violated the Sixth Amendment and Apprendi; (29) the trial court's failure to require a unanimous binding jury verdict as to the death penalty was unconstitutional under Apprendi; (30) lethal injection and Florida's procedures implementing lethal injection constitute cruel or unusual punishment in violation of the Eighth Amendment and article I, section 17 of the Florida Constitution.

      . These claims all pertained to the ineffectiveness of trial counsel: (1) failure to raise an independent act defense; (2) failure to investigate potentially exculpatory evidence; (7) failure to inquire of juror Clark during voir dire regarding his eligibility to serve; (10) failure to prepare fully and adequately for trial by retaining a fingerprint or crime scene expert; (13) failure to seek to disqualify the trial judge based on the trial court's use of a sentencing order which had been prepared prior to the Spencer hearing; (17) failure to object to evidence introduced at trial; (18) failure to request a jury instruction on felony murder and the law of principals; (19) failure to request an Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), jury instruction; (21) failure to present evidence of a statutory mitigating circumstance pursuant to section 921.141(6)(f), Florida Statutes (Supp. 1990); (22) failure to present statutory mitigating circumstances pursuant to section 921.141(6)(b), Florida Statutes (Supp.1990); (23) failure to present statutory mitigating circumstances pursuant to section 921.141(6)(h), Florida Statutes (Supp.1990); (24) failure to present mental health testimony to rebut the State’s claim that the murder was committed in a cold, calculated, and premeditated manner; (25) waiver of the presen-tencing investigation report; and (31) cumulative error.

      . In addition to the ineffectiveness claims discussed below, Willacy argues that trial counsel was ineffective for failing to inquire into juror Clark’s status during voir dire and that this Court's holding in Lowrey v. State, 705 So.2d 1367 (Fla.1998), should be applied retroactively to this case. As stated above, because this Court determined on direct appeal that Clark was not under prosecution during Willacy's trial, these claims have no merit, are procedurally barred, and require no further discussion.

      .Law enforcement agents uncovered a large amount of evidence linking Willacy to the murder: (1) Willacy was Sather's next-door neighbor and she knew him; (2) Willacy’s fingerprints were found on a fan motor placed at the victim's feet to fan the flames; (3) Willacy’s fingerprint was also found on a gas can left in the kitchen that was apparently used to pour gas on the victim before using matches to set her on fire; (4) another one of Willacy's fingerprints was found on a tape rewinder found on the back porch where Wil-lacy left stolen items to be retrieved later; (5) law enforcement agents found blood consistent with the victim's on a paper towel, a tennis shoe, and a pair of shorts taken as a result of the search of Willacy's home; (ó) some of Sather's property was found hidden in Willacy's home in a gym bag underneath his bed; (7) law enforcement agents found Sather's check registry, jewelry, and coins in Willacy’s house; (8) Willacy was seen alone driving Sather’s car; (9) Willacy was seen alone in photographs taken at an ATM while he used Sather's ATM card. ■

      . Specifically, Judge Yawn entered a previously prepared sentencing order immediately following the hearing rather than taking a recess after the defense evidence was complete. The postconviction trial court stated that Willacy showed no prejudice under the Strickland standard. The trial court reasoned that even if Kontos had moved to recuse Judge Yawn, the motion would have been denied because there were no grounds requiring recusal. Therefore, the postconviction trial court ruled that Kontos was not ineffective for failing to make a futile request.

      . See § 921.141(6)(f), Fla. Stat. (2004).

      . See § 921.141(6)(b), Fla. Stat. (2004).

      . Because this Court determined on direct appeal that juror Clark was eligible to serve on Willacy’s jury, issue (2) is without merit. Issue (3) is essentially the same as claim 15 of Willacy's motion for postconviction relief and was already disposed of above. Willacy’s Ring claim fails because Ring does not apply retroactively. See Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); Johnson v. State, 904 So.2d 400 (Fla.2005). Also without merit is Willacy's claim challenging Florida's procedure of execution by lethal injection. See Sims v. State, 754 So.2d 657, 668 (Fla.2000). Finally, Willacy’s claim that he may be incompetent at the time of execution is not yet ripe for review. See Robinson v. State, 913 So.2d 514, 524 n. 9 (Fla.2005).


text:
    Merrit Alonzo SIMS, Appellant, v. STATE of Florida, Appellee.
    No. SC04-1879.
    Supreme Court of Florida.
    July 12, 2007.
    Rehearing Denied Oct. 11, 2007.

      P. Benjamin Duke of Covington and Burling, LLP,' New York, New York, and Benjamin S. Waxman of Robbins, Tunkey, Ross, Amsel, Raben, Waxman, and Ei-glarsh, P.A., Miami, Florida, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, Florida, Sandra S. Jaggard and Margarita I. Cimadevilla, Assistant Attorneys General, Miami, Florida, for Appel-lee.
   PER CURIAM.

Merrit Alonzo Sims appeals the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we reverse the trial court’s denial of relief and remand the ease for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following facts were set forth by this Court in its Sims opinion on direct appeal:

Charles Stafford, a Miami Springs police officer, followed Sims as he drove onto state road 112 on June 11, 1991. Premised upon his belief that Sims was driving a stolen ear, Officer Stafford, in full uniform and driving a clearly marked police car, signaled to Sims to pull over on the exit ramp. It was subsequently discovered that Sims had borrowed the car from his cousin, Sam Mustipher, but when Sims failed to return the car as promised, Mustipher reported it stolen.
As Officer Stafford was handcuffing him, Sims struck the officer in the head with his police radio, robbed him of his police pistol, and shot him twice. Sims admitted shooting Officer Stafford, who subsequently died from his wounds, but asserted from the outset that he had done so in self-defense after Officer Stafford had choked him, used racial epithets, and repeatedly threatened to kill him. After the shooting, Sims drove to a park and threw the gun into a river. He spent the night in his car, changed his clothes in the morning, and found a friend to cut the handcuff off his arm. Four days later, Sims arrived by bus in California searching for his former girlfriend and their two children. He testified that he intended to surrender to police the next day, but panicked and tried to escape when the police arrived. Sims confessed to the crime and waived extradition.

Sims v. State, 681 So.2d 1112, 1113 (Fla.1996).

At trial, the State introduced the testimony of Detective Scott Silva, a police officer who worked in the Narcotics K-9 Unit at the Metro-Dade Police Department, and Sims’ counsel did not object. Detective Silva testified that his dog alerted him to the presence of narcotics in the passenger side of the car that Sims was driving. No drugs were found in the car, and there was no evidence that Sims had ever used drugs or been involved in the sale of them. Nonetheless, Silva testified that the dog would alert to the scent of narcotics after the drugs had been removed, and the State used this to develop its theory of Sims’ motive for killing Officer Stafford.

After Silva testified, the State called Sims’ parole officer, Essie Lynn, to testify that if Sims were found in possession of drugs, he would be in violation of his conditional release and be eligible to return to prison for up to two years. At a sidebar hearing, Sims’ counsel vehemently objected to this testimony on the basis that Lynn was not on the State’s witness list and that there was no “evidence that [Sims] possessed or used narcotics.” During the sidebar hearing, the trial judge indicated that he thought there was “enough to go to the jury on the presence of drugs in that ear.” The following business day the court held a hearing regarding the admissibility of Lynn’s testimony and overruled Sims’ objection. Lynn subsequently testified, and Sims’ counsel never moved to strike the canine-alert evidence that laid the predicate for Lynn’s testimony. During closing argument, the prosecutor repeatedly suggested that Sims killed Officer Stafford because Sims knew he had drugs in the car, and he did not want to be found in violation of his conditional release.

The jury found Sims guilty of first-degree murder and armed robbery, and the jury recommended the death penalty by a vote of eight to four. See id. at 1113. The trial court sentenced Sims to death. Id. On direct appeal, this Court affirmed Sims’ convictions and sentence. Id. at 1119.

On June 28, 1999, Sims filed the instant amended postconviction motion, which the trial court denied after holding an eviden-tiary hearing on three of the grounds Sims raised for relief. Then, on April 8, 2006, this Court issued an order temporarily relinquishing jurisdiction to the trial court to hold an evidentiary hearing on a fourth issue:

[Wjhether defense counsel’s performance was deficient for not challenging the canine-alert testimony presented by Officer Silva and/or for not moving to strike that testimony once defense counsel learned that the State was going to present the testimony of Sims’ parole officer to show that, if Sims was in possession of drugs, he would be found in violation of his conditional release.

This Court’s order also explained that the testimony in question was “clearly prejudicial” because “[ijt was essential to the State’s argument that Sims’ motive for shooting Officer Stafford was to avoid being found in violation of the terms of his conditional release and returned to prison.”

After conducting an evidentiary hearing on July 24-27, 2006, the trial court issued an order concluding that counsel was not deficient. At the evidentiary hearing, Sims called Clinton Pitts, Sims’ lead counsel for the guilt phase. Pitts testified that he knew the State intended to present a motive involving the possession of drugs based upon the canine-alert evidence. Pitts also stated that he did not have a strategic reason for failing to move to preclude the canine-alert evidence and that he could not recall a strategic reason for not objecting to the canine-alert testimony when Detective Silva was called. Pitts testified that upon reviewing the transcript he was surprised that no objections to Detective Silva’s testimony were present. Pitts admitted that looking back on the face of the record, this failure to object was not proper and that he failed to meet professional standards of performance of counsel in a capital case. However, Pitts stated that he recalled that Judge Carney had already made a decision to allow Detective Silva to testify and that Judge Carney reacts strongly when attorneys do not heed his rulings. Further, Pitts testified that he did not have a strategic reason for not moving to strike the canine-alert testimony in connection with the defense’s objection to Lynn’s testimony. Generally speaking, though, Pitts stated that moving to strike testimony makes the jury focus upon that stricken testimony. Moreover, Pitts recalled that his overall strategy regarding the canine-alert testimony “was that that evidence had very little importance and I am going to be able to argue to the jury proficiently that the testimony was very weak.”

Sims also called Arthur Carter, Sims’ co-counsel for the guilt phase and lead counsel for the penalty phase. Carter testified that he thought Silva’s testimony was irrelevant since no drugs were found in the car and the alert occurred two days after the car had been moved and left unattended. He did not recall whether or not the defense considered filing a motion to preclude the statement prior to trial, and he could not think of a strategic reason for not objecting when Detective Silva was called. Additionally, Carter testified that he did not have a strategic reason for failing to move to strike Silva’s testimony, although he did not see the point once Judge Carney indicated that there was enough to go to the jury on the possession issue. Carter, however, admitted that he could have preserved the issue for appeal by moving to strike the canine-alert testimony outside of the jury’s presence even if he thought Judge Carney would deny the motion.

II. Issues Raised on Appeal

Sims argues that the trial court erred in finding Sims’ counsel not deficient for failing to properly challenge the canine-alert evidence because the trial court ignored multiple admissions by defense counsel and applied the incorrect legal standard. For the reasons explained below, this Court grants relief and remands the case for a new trial.

As we explained in Marris v. State, 931 So.2d 821, 828 (Fla.2006),

In order to establish a claim of ineffective assistance of counsel, a defendant must meet two requirements:
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.
Strickland, v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish the first prong under Strickland, the defendant must demonstrate that “counsel’s representation fell below an objective standard of reasonableness” under “prevailing professional norms.” Id. at 688[, 104 S.Ct. 2052]. To establish the second prong under Strickland, the defendant must show that “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. at 694[, 104 S.Ct. 2052], When reviewing a trial court’s ruling after an evidentia-ry hearing on an ineffective assistance claim, this Court gives deference to the trial court’s factual findings to the extent they are supported by competent, substantial evidence, but reviews de novo the trial court’s determinations of deficiency and prejudice, which are mixed questions of fact and law. See Arbelaez v. State, 898 So.2d 25, 32 (Fla.2005).

“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. “[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.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000).

Regarding the first prong under Strickland, the trial court concluded in its order that “the identified acts or omissions were not outside of the wide range of professional competent assistance.” The trial court found that Pitts “believed any added attention [would] place emphasis where no emphasis was due” and that Pitts “was ‘brilliant’ in his closing argument.” However, we find that the trial court’s conclusion that counsel was not deficient is not supported by competent, substantial evidence in the record.

After reviewing the record in this case, it is clear that- the failure to properly challenge the canine-alert evidence did not represent a strategic choice. At the evi-dentiary hearing, neither of Sims’ attorneys recalled any strategic reason for failing to preclude Detective Silva’s testimony, for failing to object to Detective Silva’s testimony, or for failing to move to strike Detective Silva’s testimony in connection with the defense’s objections to Lynn’s testimony. Essentially, neither counsel had a strategic reason for failing to preserve the issue for appellate review. Indeed, Pitts testified that he was surprised when he realized that no objections to the canine-alert evidence were present in the record. He admitted that this failure to object to the canine-alert testimony was improper. Furthermore, Pitts admitted that he knew before trial that the State intended to use the testimony to develop motive, and Carter admitted that at the time he believed the canine-alert evidence was irrelevant. Sims did not own the vehicle, and no drugs were actually found in the car. Accordingly, we conclude the failure to properly challenge this canine-alert evidence in order to preserve the issue for appellate review “fell below an objective standard of reasonableness” under “prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

Regarding the second prong of Strickland, we conclude that the defense was prejudiced by counsel’s deficient performance. As we stated in our order relinquishing jurisdiction for an evidentiary hearing, the canine-alert testimony was “clearly prejudicial” because “[i]t was essential to the State’s argument that Sims’ motive for shooting Officer Stafford was to avoid being found in violation of the terms of his conditional release and returned to prison.” The State’s case was based upon this motive theory. In its closing, the State repeatedly suggested that Sims killed Officer Stafford because Sims knew there were drugs in the car. Furthermore, this canine-alert evidence was the only evidence supporting the State’s drug possession theory, which allowed for the admission of Lynn’s testimony. See Sims, 681 So.2d at 1115 (“[B]ecause the jury could have concluded from the dog-alert evidence that Sims possessed drugs and was fearful of parole violation, Lynn’s testimony was relevant and admissible to establish motive.”). Given the facts of this case, our confidence in the outcome is undermined. Sims has established that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

III. Conclusion

Having met his burden of establishing his trial counsel was ineffective for failing to properly challenge the canine-alert testimony of Detective Silva, Sims is entitled to the relief requested. We vacate Sims’ convictions and sentence and remand for a new trial.

It is so ordered.

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

      . Sims’ parole officer, Essie Lynn, testified that Sims never failed the random drug tests that were one of the requirements for conditional release. The only witness who refuted this was Reverend Mervin Simmons, Sims’ friend, whom defense counsel called to testify during the penalty phase. On direct examination, Sims’ defense counsel, Arthur Carter, Jr., asked Simmons if Sims had ever used drugs in high school, and Simmons staled that he had.

      . Before trial, Sims' counsel discussed the irrelevancy of Detective Silva's testimony during a hearing regarding the State's motion in limine, which sought to exclude evidence that, a few weeks prior to shooting Officer Stafford, Sims had been the subject of another traffic stop. The State’s motion stated that “there was evidence that drugs were in the car” and that this evidence provided motive. During the hearing on the motion, the State mentioned “that there will be evidence that there were drugs in the vehicle that the defendant was driving.” Sims’ counsel responded, “That’s not true. The testimony of the officer who had the dog come up said he didn’t find any drugs.” Sims' counsel, however, never actually objected to the admissibility of Detective Silva’s testimony. And, when granting the State's motion in limine, the trial court specifically indicated that it had not considered in its ruling the issue of "what the facts will show with regard to the possession of drugs.”

      . The trial court found the following aggrava-. ting circumstances: "(1) the murder was committed while the defendant was under sentence of imprisonment; (2) the defendant had a prior violent felony conviction; (3) the murder was committed in the course of another felony (armed robbery); (4) the murder was committed to avoid arrest; (5) the victim was a law enforcement officer; (6) the capital felony was coinmitted to disrupt or hinder the lawful exercise of any governmental function or enforcement of laws.” Sims, 681 So.2d at 1113 n. 1.

      .On direct appeal, we rejected claims that “the trial court erred by: (1) admitting the testimony of Sims' parole officer, then refusing to allow the defense to rebut that testimony; (2) allowing the prosecutor's misrepresentations of Sims’ testimony during the state’s rebuttal case; (3) allowing insufficient evidence to sustain Sims' convictions for robbery and felony murder; (4) allowing the prosecutor’s improper closing argument; (5) excusing [a] venireperson ... for cause; (6) refusing to consider evidence of imperfect self-defense as a mitigating circumstance; (7) refusing to instruct the jury that Sims’ age at the time of the crime was a statutory mitigating circumstance; (8) refusing to give Sims’ recommended limiting instruction on the avoiding arrest aggravator; (9) submitting the felony murder aggravator to the jury; (10) inadequately evaluating the aggravating and mitigating circumstances in the sentencing order; and (11) rejecting Sims' challenge to the constitutionality of Florida's capital sentencing statute.” Sims, 681 So.2d at 1113 n. 2.

      . Sims filed his initial poslconviction motion on April 8, 1998.

      . Sims also alleges: (1) counsel was ineffective for failing to object to improper remarks made by the prosecutor during closing argument; (2) counsel was ineffective for failing to obtain an expert in crime scene reconstruction to either testify or assist counsel; (3) counsel was ineffective for failing to adequately investigate and prepare for the penalty phase; (4) counsel labored under a conflict of interest; (5) the trial court erred in excluding the evidentiary hearing testimony of Steven Potolsky; and (6) Sims' death sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). However, because we find that counsel was ineffective for failing to properly challenge the canine-alert evidence, we do not address these issues.