text:
    THE FLORIDA BAR, Complainant, v. Elizabeth Aileen BROOME, Respondent.
    Nos. SC03-84, SC03-1205, SC03-1206, SC03-1931, SC04-448, SC04-1375.
    Supreme Court of Florida.
    May 25, 2006.

      John F. Harkness, Executive Director, John Anthony Boggs, Staff Counsel and Olivia Paiva Klein, Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.
    Lois B. Lepp, P.A., Pensacola, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding six consolidated cases, arising from nine different Florida Bar investigations into the conduct of Elizabeth Aileen Broome. We have jurisdiction. See art. V, § 15, Fla. Const.

We approve the referee’s findings of fact and recommendations as to guilt, but disapprove of the recommendation as to sanction, imposing a one-year suspension instead. Indeed, were it not for the substantial mitigating evidence in this case, the sanction might have been disbarment.

A. The Facts

The report of the referee found Broome guilty of thirty-three separate rule violations of eighteen different Bar rules, spanning a period of almost seven years, from March 1997 through October 2003, and impacting several different clients. Only four of the thirty-three rule violations involved solely failures to respond to Bar or grievance committee inquiries.

Neither the Bar nor Broome took issue with the facts as found by the referee, although the Bar took issue with the referee’s failure to make certain findings. Because the facts are not at issue, except as they impact what the appropriate discipline should be, and because they are lengthy, they are only briefly summarized here, by case.

Samuel, No. SC03-84, Florida Bar No. 2001-01,274

Samuel hired Broome to defend him on drug possession charges in June 1999. From June 1999 until April 2000, when Samuel fired her, Broome failed to diligently pursue Samuel’s case, requesting and receiving numerous continuances for the stated purpose of taking the depositions of prosecution witnesses. She never took the depositions, despite her client’s repeated requests that she do so.

Broome failed to adequately communicate with her client. She failed to sit down and discuss the case with him, to review his options and the evidence against him before trial, so that he could make an informed decision as to whether to take the prosecutor’s offered plea of probation or go to trial. Samuel chose to go to trial and was convicted. He was sentenced to imprisonment for five years in two cases, with the sentences to run concurrently. Following his conviction, Samuel fired Broome and hired another attorney, who filed a petition for postconviction relief which cited to Broome’s failure to take the requested depositions.

First District Court of Appeal, No. SC03-1205, Florida Bar No. 2003-00,301

Broome represented Beasley at his criminal trial in August 1999. Following his conviction, Beasley was sentenced on February 2, 2000. He told Broome, on at least two occasions, that he wanted her to file an appeal of the final judgment with the First District Court of Appeal (First DCA). Broome failed to file a timely notice of appeal.

Two weeks after the deadline, Broome filed a notice of appeal, a statement of judicial acts to be reviewed, a designation to the court reporter, a motion to withdraw, and a motion to extend the time to appeal with the circuit court. The appellate paperwork was submitted to the First DCA after the circuit court judge inadvertently signed the order to extend the time. The First DCA returned the papers to the circuit court for further disposition because the circuit court did not have jurisdiction to extend the appeal deadline.

In April 2000, at a hearing before the circuit court, Broome withdrew the motion to extend the appeal deadline and told the court she would file a motion for a belated appeal directly with the First DCA. She was reappointed to the case for that purpose. Broome failed to file the motion. Over three months later the public defender’s office stepped in and filed a motion on Beasley’s behalf. A month after that, the First DCA ordered Broome to reply as to whether Beasley asked her to file an appeal before the deadline. Broome did not respond. Neither did she respond to two subsequent show-cause orders as to why her conduct should not be referred to the Bar for investigation or to the Bar’s inquiry letter after the First DCA referred the matter to the Bar. She also failed to respond to an inquiry from the investigating member of the grievance committee.

Brown, No. SC03-1206, Florida Bar No. 2002-00,811

Broome’s former client, Brown, sued Broome for recovery of $5,000 in legal fees in small claims court. In November 1998, Broome agreed, in a mediation agreement, to pay Brown $2,100 and to forward his file to his new attorney. She further agreed to the entry of a final judgment of $5,114.50 plus court costs if she failed to abide by the agreement. Broome breached the agreement and judgment was entered against her for $4,814.50, with costs and interest. Despite her earlier agreement, Broome filed a motion to set aside the judgment, which was denied.

Over two years after the judgment was entered and numerous attempts to settle the matter had failed, Brown filed a motion for a writ of garnishment. In February 2002, he complained to the Bar. Broome told the Bar and the grievance committee that she was taking steps to resolve the matter with Brown when she was not.

The court granted Brown’s request for a hearing in aid of execution and ordered Broome to appear and to file a Fact Information Sheet. Broome appeared for the hearing, but failed to file a Fact Information Sheet. Broome told the court she would pay Brown by December 2, 2002. The court ordered her to either pay Brown or file a Fact Information Sheet by that date. Broome did neither. She was ultimately held in contempt.

In January 2003, Broome promised Brown and the grievance committee that she would start making $500 payments to Brown toward the debt, but, again, failed to do so.

Sapp, No. SC03-1931, Florida Bar No. 2003-00,493

In June 2002, Sapp hired Broome to represent him in two criminal cases, paying her $6,700 in attorney fees to do so. There was no written fee agreement and Broome did not communicate the basis of the fees to him in writing. The fee was clearly excessive; the legal work she did on Sapp’s cases was insufficient to earn that amount of money.

Broome failed to diligently represent her client throughout his criminal proceedings. She performed no substantial legal work on his cases from June through November 2002. She failed to file a timely alibi notice and failed to engage in reciprocal discovery with the prosecution in one of his cases. She failed to adequately communicate with her client and to keep him informed about the status of his cases. She scheduled a bond hearing, but then had another attorney substitute for her (claiming she needed an emergency medical procedure), without telling her client that another attorney would be handling the hearing.

She failed to tell her client of his speedy trial rights and the effect continuances would have on these rights. She requested two continuances in one of his cases without his knowledge or consent, waiving her client’s right to a speedy trial. She asked for the second continuance after her client wrote to the court pro se, requesting a speedy trial and objecting to a continuance. She failed to respond to her client’s numerous requests for a meeting to discuss his cases.

Sapp fired her and hired new counsel. His new attorney asked Broome for his client’s case files. Broome failed to forward the files and failed to return the unearned portion of the fees. Sapp complained to the Bar. Broome failed to respond to the Bar’s letter of inquiry and failed to contact or meet with the investigating member of the grievance committee.

Phifer, No. SC03-1931, Florida Bar No. 2001-01,091

Phifer hired Broome in March 1997 to file a motion for postconviction relief on her behalf for a sentence imposed in September 1996. Broome failed to file the motion until February 1999, after the motion was time-barred. Broome failed to competently and diligently perform the legal services she was retained to perform. After Phifer complained to the Bar, Broome failed to respond to two inquiry letters from the Bar.

Smith, No. SC04-448, Florida Bar No. 2004-00,174

Smith hired Broome to represent him in five criminal cases and paid her a total of $3,900. Ultimately, Smith complained to the Bar about Broome’s representation. Broome failed to respond to either the Bar or the grievance committee. If she had responded, the disciplinary hearing which was held might have proven to be unnecessary.

Spooner, No. SC04-1375, Florida Bar No. 2004-00,357

The referee made numerous findings concerning the Spooner case, all of which led to the conclusion that Broome’s representation of Spooner was adequate. The only ethical violation the referee found in this case, a failure to respond to the Bar’s letter of inquiry in violation of rule 4-8.4(g)(1), was not supported by a factual finding by the referee that Broome failed to respond to a letter of inquiry from the Bar. However, Broome admitted the allegation in her answer to the Bar’s formal complaint against her. Nor is she taking issue with the referee’s finding of the violation. See also Fla. Bar v. Lancaster, 448 So.2d 1019, 1022 (Fla.1984) (holding Bar’s failure to present evidence on an issue to which the parties had stipulated precluded the attorney from challenging the accuracy of the finding).

Mailloux, No. SC04-1375, Florida Bar No. 2004-00,410

Mailloux hired Broome to prepare a motion for modification or reduction of sentence or a motion to withdraw plea or both. Although Broome had a plan of action in Mailloux’s case, when she realized her plan would not work she failed to tell her client. She further failed to respond to the Bar’s letter of inquiry after Mailloux filed a complaint against her with the Bar.

The referee’s report listed the rule violations in each case. For ease of reference and analysis, we considered the totals of all of the cases combined. In all, the referee found Broome guilty of the following: one violation of rule 3-4.3; one violation of rule 4-1.1 (failing to provide competent representation); one violation of rule 4-1.2 (failing to abide by a client’s decisions concerning the objectives of the representation); four violations of rule 4-1.3 (failing to act with reasonable diligence); three violations of rule 4-1.4 (failing to adequately communicate with the client); one violation of rule 4-1.5(a)(l) (charging an excessive fee); one violation of rule 4-1.5(e) (failing to communicate the basis of a fee); one violation of rule 4-1.16(d) (failing to protect a client’s rights upon termination of representation); one violation of rule 4-3.1 (failing to assert only meritorious claims); one violation of rule 4-3.2 (failing to make reasonable efforts to expedite litigation); one violation of rule 4-3.3 (failing to be candid with a tribunal); two violations of rule 4-3.4(c) (failing to obey an order of a tribunal and knowingly disobeying an obligation under the rules of a tribunal); one violation of rule 4-8.4(a) (violating bar rules); one violation of rule 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); two violations of rule 4-8.4(d) (engaging in conduct prejudicial to the administration of justice); seven violations of rule 4-8.4(g)(l) (failing to respond to an inquiry from the Bar); and four violations of rule 4-8.4(g)(2) (failing to respond to an inquiry from a grievance committee).

The referee found several mitigating factors: (1) no prior disciplinary history; (2) personal or emotional problems; (3) physical or mental disability or impairment; (4) interim rehabilitation; (5) absence of a dishonest or selfish motive; and (6) remorse. The referee found two aggravating factors: (1) a pattern of misconduct; and (2) multiple offenses. The referee further noted that Broome’s misconduct occurred over a long period of time and affected multiple clients. The referee expressly considered the Bar’s arguments on the existence of other aggravating factors, but rejected them, finding they did not apply in Broome’s case. He also rejected the Bar’s arguments that a one-year suspension was the appropriate discipline and that Broome should be ordered to pay restitution in the Sapp case.

The referee recommended that Broome be publicly reprimanded in a personal appearance before the referee and placed on probation for three years. While we disapprove the recommendation of a public reprimand and impose a one-year suspension instead, we approve the recommendation that, once she has been reinstated, Broome serve a three-year probationary term with the conditions recommended by the referee. These conditions are: (1) to continue with her Florida Lawyer’s Assistance, Inc. (FLA) contract; (2) to obtain a mentoring attorney, who will be responsible for continuously monitoring Broome’s practice and submitting quarterly reports to the Bar; (3) to undergo an office-procedures and record-keeping analysis by or under the direction of the Law Office Management Assistance Service (LOMAS) of the Bar; (4) to attend an ethics school within six months of this opinion’s becoming final; and (5) to pay costs of $17,149.88 to the Bar.

The Bar petitioned for review and raised three issues: (1) the referee’s failure to find the existence of several additional aggravating factors; (2) the referee’s recommendation of a public reprimand and probation; and (3) the referee’s failure to recommend that Broome be ordered to pay restitution to her client in the Sapp case.

JB. Analysis

We first address the Bar’s argument that the referee should have found the existence of several additional aggravating factors, including substantial experience in the practice of law, bad faith obstruction of the disciplinary proceeding by intentionally faffing to comply with the rules or orders of the disciplinary agency, and indifference to making restitution. The referee expressly found these additional aggravating factors were inapplicable here.

To succeed in challenging the referee’s finding, the Bar must establish the finding was clearly erroneous or without support in the record. Fla. Bar v. Arcia, 848 So.2d 296 (Fla.2003); see also Fla. Bar v. Karten, 829 So.2d 883 (Fla.2002). The Bar cannot satisfy its burden by simply pointing to contradictory evidence when there is also competent, substantial evidence in the record that supports the referee’s finding. Fla. Bar v. Barrett, 897 So.2d 1269, 1275 (Fla.2005).

While the Bar pointed to evidence in the record that would have supported a finding that the factors applied, there is also competent, substantial evidence in the record that they did not. There was evidence to support the referee’s finding that Broome’s years of experience in the practice of law should not be used as an aggravator. The referee found Broome suffered from clinical depression and that her depression caused her to engage in the misconduct found. As depression can affect anyone, regardless of years of experience in the practice of law, Broome’s experience was irrelevant under these factual circumstances. Further, these acts of misconduct were not the kinds of violations more likely to be committed by inexperienced lawyers than seasoned attorneys, so as to make violations by seasoned attorneys more egregious.

There was also evidence that Broome’s failure to pay restitution was due to her inability to do so because of financial difficulties and not because she was indifferent. Finally, there was evidence that Broome’s failure to respond to Bar and grievance committee inquiries was due to her depression and not to bad faith obstruction. Because the referee is in the best position to judge the credibility of the witnesses, including that of the respondent, the Court generally defers to the referee’s assessment and resolution of conflicting testimony. Fla. Bar v. Elster, 770 So.2d 1184, 1185 (Fla.2000). There being competent, substantial evidence in the record to support the referee’s findings that these aggravating factors were inapplicable in this case, the referee’s findings are approved.

We next address the appropriate discipline. The Court’s standard of review for discipline recommendations is different from that for factual findings. In reviewing a referee’s recommended discipline, the Court’s scope of review is broader than it is for factual findings because the Court has the ultimate responsibility of ordering the appropriate sanction. However, it generally will not second-guess a recommendation which has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. Fla. Bar v. Shoureas, 913 So.2d 554, 558 (Fla.2005).

The Bar argues the recommendation for a public reprimand is not supported by the case law or the Florida Standards for Imposing Lawyer Sanctions. We agree. While Florida Bar v. Grigsby, 641 So.2d 1341 (Fla.1994), and Florida Bar v. Moran, 273 So.2d 379 (Fla.1973), relied upon by the referee, imposed public reprimands on attorneys who suffered from clinical depression (which contributed to their ethical misconduct), neither case had the number of rule violations, rules violated, clients affected, and years of misconduct involved in this case. Further, both cases are somewhat dated. “In recent years, this Court has moved towards stronger sanctions for attorney misconduct.” Fla. Bar v. Rotstein, 835 So.2d 241, 246 (Fla.2003).

While the fact of clinical depression or other mitigation may mitigate what might warrant a short suspension down to a public reprimand, it does not mitigate what might warrant disbarment or a long suspension down to one. See, e.g., Fla. Bar v. Condon, 632 So.2d 70 (Fla.1994) (imposing an eighteen-month suspension for misuse of trust account funds where attorney had mental and emotional problems, was continuing to obtain medical treatment, had no prior disciplinary record, and showed remorse); Fla. Bar v. Wells, 602 So.2d 1236 (Fla.1992) (imposing an eighteen-month suspension for abandonment of law practice and arrests for possession of cocaine and paraphernalia in light of mitigating factors of personal and emotional problems, absence of dishonest or selfish motive, inexperience in the practice of law, character and reputation, remorse, and participation in a lawyers assistance program).

A comparison of the rule violations, in terms of number of violations and number of different rules violated, in this case and the cases relied upon by the referee and the Bar demonstrates this case is closer to the Bar’s cases than it is to the referee’s. See also Fla. Bar v. Morrison, 669 So.2d 1040 (Fla.1996) (imposing a one-year suspension for failure to act with reasonable diligence and promptness, failure to keep client reasonably informed, failure to respond in writing to inquiry by disciplinary agency during investigation). In fact, the number of Broome’s violations exceeds that in all of the cases cited by either party, including Florida Bar v. Springer, 873 So.2d 317 (Fla.2004), which resulted in disbarment.

In addition, not all rule violations are equal. The violation of some rules will result in greater sanctions than the violation of others. Broome violated several of these rules — rules 4-3.4(c) (two violations), 4-8.4(c) (one violation), and 4-8.4(d) (two violations). By way of example, the Court has imposed suspensions for one violation of rule 4-3.4(c) (failure to obey the order of a tribunal). See Fla. Bar v. Gersten, 707 So.2d 711 (Fla.1998) (suspending attorney until he complied with court order and for one year after he complied for continuing to refuse a court order to give a sworn statement after he had exhausted all appeals); Fla. Bar v. Tobin, 674 So.2d 127, 129 (Fla.1996) (suspending lawyer for forty-five days where he failed to return funds to court registry pursuant to court order); Fla. Bar v. Langston, 540 So.2d 118, 121 (Fla.1989) (suspending attorney for ninety-one days where attorney in personal divorce proceeding failed to timely comply with court order to transfer interests in property). We have likewise imposed suspensions for dishonest conduct. See Fla. Bar v. Brown, 905 So.2d 76, 80 (Fla.2005) (suspending attorney for six months for double pledging security interest in violation of rules 3-4.3 and 4-8.4(e)). Broome violated these rules and numerous others.

Several standards also support the imposition of a suspension in this case. Standard 4.42 provides suspension is the appropriate discipline when “a lawyer engages in a pattern of neglect with respect to client matters and causes injury or potential injury to a client.” Broome engaged in a pattern of neglect; her neglect caused potentially serious injury to at least one of her clients (Samuel might have taken the proffered plea offer of probation if Broome had taken the time to more fully explain the situation to him, thereby avoiding incarceration).

Either standard 4.61 or standard 4.62 also might apply in this case. These standards provide:

4.61 Disbarment is appropriate when a lawyer knowingly or intentionally deceives a client with the intent to benefit the lawyer or another regardless of injury or potential injury to the client.
4.62 Suspension is appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.

Broome promised Brown several times to either pay him the money she owed him by a certain date or to begin paying him, when she must have known at the time she would be unable to do so.

Standard 6.11 also applies. That standard provides that disbarment is the appropriate discipline when a lawyer knowingly makes a false statement or submits a false document to a court with the intent to deceive the court. Broome told the court in the Brown case that she would pay Brown what she owed him by a certain date and failed to do as she promised. At the time she made the promise, she must have known she would be unable to live up to it.

Standard 6.22 also seems applicable. It provides:

Suspension is appropriate when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.

In this case Broome failed to bring her Fact Information Sheet with her to the hearing in aid of execution in the Brown case, although the court ordered her to bring the sheet with her. Her failure to bring the sheet interfered with the proceedings because it made it difficult, if not impossible, for the court to issue writs of attachment for seizure of her assets in order to satisfy the debt.

In consideration of all of these things, the Court concludes that a public reprimand is not reasonably supported by the case law or the standards. Accordingly, we reject the referee’s recommended discipline and impose a one-year suspension followed by probation for three years with the conditions recommended by the referee.

Lastly, we address the Bar’s argument that the referee should have ordered Broome to pay restitution to her client in the Sapp case. Restitution is not required, although it would have been permissible for the referee to have ordered it in this case. We agree with Broome that the amount of the fee which was unearned was not determined, making it impossible for the referee to know what amount to order Broome to pay. As restitution is permissible, not mandatory, and as no definite amount needing to be refunded has been established, we approve the referee’s recommendation that restitution not be ordered in this case.

Conclusion

Competent, substantial evidence in the record supports the referee’s findings of fact and conclusions as to guilt. We therefore approve them. As the recommendation of a public reprimand is without support in the case law and the Florida Standards for Imposing Lawyer Sanctions, however, we disapprove the recommendation and instead impose a one-year suspension, to be followed by three years of probation with the conditions specified in the referee’s report.

Elizabeth Aileen Broome is hereby suspended for one year. The suspension will be effective thirty days from the date of this opinion so that Broome can close out her practice and protect the interests of existing clients. If Broome notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Broome shall accept no new business from the date this opinion is filed until she has been reinstated. Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Elizabeth Meen Broome in the amount of $17,149.88, for which sum let execution issue.

It is so ordered.

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

BELL, J., recused.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Melvin TROTTER, Appellant, v. STATE of Florida, Appellee. Melvin Trotter, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC03-735, SC03-1967.
    Supreme Court of Florida.
    May 25, 2006.

      John W. Jennings, Capital Collateral Regional Counsel, Peter J. Cannon and Carol C. Rodriguez, Assistant CCR Counsels, Middle Region, Tampa, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

Melvin Trotter appeals an order of the circuit court denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and an order concluding that he is not mentally retarded. He also petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. As explained below, we affirm the circuit court’s denial of Trotter’s postconviction motion and the order on mental retardation, and we deny Trotter’s habeas petition.

I. FACTS AND PROCEDURAL HISTORY

In 1986, Trotter, in the course of robbing a store, murdered the seventy-year-old shop owner. She died from the seven stab wounds he inflicted, one of which disemboweled her. Trotter v. State, 576 So.2d 691, 692 (Fla.1990). Upon his conviction for robbery and first-degree murder, the court imposed a death sentence. On appeal, we affirmed Trotter’s convictions but vacated the sentence and remanded for a new penalty phase because the trial court erred in treating his violation of community control as an aggravating factor. Id. at 694.

Following the new penalty phase, eleven jurors recommended death, and the court imposed that sentence after finding four aggravating factors and two statutory, and several nonstatutory, mitigating factors. Trotter v. State, 690 So.2d 1234, 1236 (Fla.1996), cert. denied, 522 U.S. 876, 118 S.Ct. 197, 139 L.Ed.2d 134 (1997). On appeal, Trotter raised ten issues, including a contention that the trial court again erred in using his community control status as an aggravator. Id. at 1237. We affirmed the sentence, finding that subsequent statutory changes permitting use of such status as an aggravator constituted a “refinement” of the law that applied retroactively. Id. Without discussion, we found all other issues meritless. Id.

Subsequently, Trotter filed a motion for postconviction relief under rule 3.850. The trial court held an evidentiary hearing-on four claims, following which it issued an order denying all claims.

Trotter filed this appeal and petitioned for writ of habeas corpus. Following this Court’s promulgation of Florida Rule of Criminal Procedure 3.203, providing a procedure for determining mental retardation in death penalty cases, we granted Trotter’s motion to relinquish jurisdiction. Pursuant to that rule, Trotter filed a successive postconviction motion in the circuit court for determination of mental retardation and waived an evidentiary hearing. The attorneys filed written reports and closing arguments in lieu of live proceedings, and the parties stipulated to the court taking judicial notice of the testimony presented at Trotter’s 2002 postconviction hearing. The court also took judicial notice of Trotter’s trial and resentencing proceedings. The court determined that Trotter was not mentally retarded. In his supplemental brief, Trotter appeals that order as well. We now address the issues Trotter raises in his initial and supplemental briefs.

II. THE ISSUES ON APPEAL

Trotter raises issues regarding his claim that he is mentally retarded. He also raises several claims on appeal from the denial of his postconviction motion. Below we address two issues regarding mental retardation. We then address three issues from his original appeal.

A. Mental Retardation Claims

We first address two issues Trotter raised in his supplemental brief regarding his claim of mental retardation: (1) that the circuit court erred in determining Trotter was not mentally retarded; and (2) that his death sentence is not proportional. We address these issues in turn.

1. Whether Trotter is Mentally Retarded

To establish mental retardation, a defendant must demonstrate all three of the following: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. Fla. R.Crim. P. 3.203(b). In the proceedings held on remand, the circuit court considered the testimony or reports of six mental health experts: Drs. Calvin Pinkard, Harry Krop, Bill Mosman, Sidney Merin, Antolin Llórente, and Michael Gamache. The circuit court concluded that Trotter did not meet any of the three prongs for determining mental retardation by either the preponderance of the evidence or by clear and convincing evidence. Trotter contends this is error. We disagree and find that competent, substantial evidence supports the court’s determination.

First, no expert who tested Trotter’s IQ as an adult, including those who also examined his adaptive skills, found that Trotter meets the definition for mental retardation. They reported IQ scores ranging from 72 to 91. The court found that variances in Trotter’s IQ subtest scores were inconsistent with mental retardation. Trotter’s scores on some sub-tests were normal, and score variances were explained by his not starting school until age nine and the deficient environment in which he grew up. The testimony and reports of several doctors directly supported this conclusion, including Dr. Krop, who examined and tested Trotter and reviewed numerous records. These same doctors found that Trotter was not deficient in adaptive skills. In addition, Dr. Mosman, a defense expert, did not assess adaptive skills because Trotter’s IQ excluded Trotter from the mental retardation category.

Trotter’s arguments on appeal rest almost completely on the testimony of Dr. Calvin Pinkard. In 1974, Dr. Pinkard tested and interviewed Trotter (then age fifteen) to determine whether he was mentally retarded. Without examining prior school records and IQ testing or adaptive functioning, Pinkard concluded that Trotter was not mentally retarded. Pinkard determined Trotter had an IQ of 88, was normal and mature for his age, was able to follow complex verbal directions, and was capable of being trained in a variety of trades. He diagnosed Trotter with “mild” “inadequate personality disorder” based on Trotter’s shyness, negative self-image, and “not making it” in school, but found no treatment was needed.

In 2002, however, Pinkard reversed himself. He opined that Trotter was at age fifteen, and is as an adult, mentally retarded. He testified that Trotter’s 1976 IQ score of 88 was artificially inflated by eight points, and having read Dr. Mosman’s affidavit, Pinkard testified that Trotter had deficits in adaptive functioning. Pinkard did not examine or conduct any new testing on Trotter.

Because Dr. Pinkard is the only expert who examined Trotter in his youth, Trotter contends his testimony should be essentially determinative and afforded great weight. We disagree. First, the question of evidentiary weight is reserved to the circuit court, and this Court does not reweigh the evidence. Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981) (“Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.”), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Second, the circuit court found Dr. Pinkard’s testimony unreliable. The determination of the credibility of witnesses also is reserved to the trial court. Windom v. State, 886 So.2d 915, 927 (Fla.2004) (“This Court has held that it will not substitute its judgment for that of the trial court on questions of fact, and likewise on the credibility of witnesses and the weight given to the evidence so long as the trial court’s findings are supported by competent, substantial evidence.”).

When Trotter was fifteen, Pinkard concluded that Trotter was not mentally retarded. As the circuit court found, even if the IQ score of 88 were adjusted down to 80, the IQ would still be above the mental retardation level, a fact Pinkard admitted. Importantly, Pinkard’s revised opinion does not rest on his own new examination or testing of Trotter; he did none. In fact, there is no basis in his own testimony to support his new opinion. His opinion is contradicted by the testimony of all of the other experts who did examine Trotter. Accordingly, we affirm the trial court’s determination that Trotter is not mentally retarded.

2. Proportionality Claim

Trotter next contends that the 1993 resentencing order is deficient and that the death sentence is not proportional. These arguments were not preserved below and are procedurally barred because we considered them on direct appeal from Trotter’s resentencing. See Trotter, 690 So.2d at 1236 n. 8, 1237 (denying without discussion Trotter’s claim that resentenc-ing order was deficient as meritless). Further, this Court considers the question of proportionality in each death penalty case on direct review of the sentence, even when we do not directly address the issue in the written opinion. See Patton v. State, 878 So.2d 368, 380 (Fla.2004) (“[Pjroportionality review is inherent in this Court’s direct appellate review and the issue is considered regardless of whether it is discussed in the opinion or raised by a party ....”); see also Anderson v. State, 841 So.2d 390, 407 (Fla.2003) (“Due to the uniqueness of the penalty, this Court addresses the propriety of all death sentences in a proportionality review.”); Fla. R.App. P. 9.142(a)(6) (“In death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.”):

B. Ineffective Assistance of Counsel Claims

Trotter raises three claims on appeal from the denial of his postconviction motion: (1) that Trotter’s mental health expert did not provide competent and effective assistance under Ake v. Oklahoma, 470 U.S. 68, 74, 84, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (holding where sanity at the time of crime is at issue and in capital penalty proceedings where expert assistance is needed, due process requires that an indigent defendant have psychiatric expert assistance); (2) that trial counsel was ineffective for failing to investigate Trotter’s background and develop available mitigation; and (3) that trial counsel was constitutionally ineffective for failing to file a timely motion to vacate a prior conviction.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court established a two-pronged standard for determining whether counsel provided legally ineffective assistance. First, a defendant must point to specific acts or omissions of counsel that are “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. Second, the defendant must establish prejudice by “showing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. Claims of ineffective assistance present mixed questions of law and fact. Occhicone v. State, 768 So.2d 1037, 1045 (Fla.2000). This Court independently reviews the trial court’s legal conclusions and defers to the trial court’s findings of fact. As explained below, we affirm the denial of each of Trotter’s claims.

1. Mental Health Expert Assistance

In his postconviction motion, Trotter alleged that counsel was ineffective because Trotter did not have the assistance of a competent and effective mental health expert in Dr. Krop. On appeal, however, Trotter presents a different claim: that Krop did not provide competent and effective assistance as required by Ake. Accordingly, this claim was not preserved for appellate review. As explained below, it is also meritless.

In Ake, the United States Supreme Court held, with regard to the sentencing phase of capital trials, that “due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase.” 470 U.S. at 84, 105 S.Ct. 1087. This requirement of access to, and assistance from, a mental health expert was met here. At Trotter’s resentencing, three experts testified for him: Dr. Harry Krop, Dr. Frank Wood, and Dr. Michael Maher. Dr. Krop administered various tests, met with Trotter several times, reviewed numerous documents and records regarding Trotter’s background, and interviewed several witnesses who knew Trotter. Based in large part on his testimony, the trial court found two statutory mitigating factors: that Trotter was under the influence of extreme mental and emotional disturbance and his capacity was substantially impaired. Trotter, 690 So.2d at 1236 n. 6. The resentencing court also found the following nonstatutory miti-gators: Trotter’s below-average IQ, family and developmental problems, disadvantaged background, possible frontal lobe brain disorder, and remorse, and other nonstatutory factors presented by the defense. Id. at 1236 n. 7. Accordingly, Trotter has failed to demonstrate either an error of counsel or the inadequacy of the defense’s mental health expert. See, e.g., Elledge v. State, 911 So.2d 57, 72 (Fla.2005) (“[T]he record does not support the contention that Elledge was denied an adequate mental evaluation as required by Alee.”), cert. denied, — U.S. -, 126 S.Ct. 1173, 163 L.Ed.2d 1141 (2006); Hodges v. State, 885 So.2d 338, 353 (Fla.2004) (holding that the defendant failed to establish an Ake violation because he “had access to multiple mental health experts prior to trial, and the experts performed all of the essential tasks required by Ake ”).

Moreover, Trotter’s allegations both below and on appeal are based on the testimony of Trotter’s more recently hired mental health expert. As we have previously stated, mental health investigation and testimony are not rendered incompetent “merely because the defendant has now secured the testimony of a more favorable mental health expert.” Gaskin v. State, 822 So.2d 1243, 1250 (Fla.2002) (quoting Asay v. State, 769 So.2d 974, 986 (Fla.2000)). Accordingly, Trotter is not entitled to relief on this claim.

2. Investigation into Mitigation

Trotter contends that resentenc-ing counsel was ineffective for failing either to present Trotter’s two nieces as penalty phase mitigation witnesses or to provide them to Dr. Krop for interviews. The trial court found their testimony both irrelevant and cumulative. We affirm.

The two nieces were Gladys Casimir and Marshanette Polite. Gladys was four years old when Trotter was placed in foster care, and Trotter lived with Marshan-ette’s family for a time when she was five or six years old, and she had no more contact with him until they were both adults. They testified, for example, that Trotter married a drug-using prostitute, cared for her children, and was “slow.” In contrast, Dr. Krop, who testified for Trotter at both sentencing and resentencing, interviewed Trotter six times; reviewed numerous documents, including school records, psychological testing, and prison records; interviewed several people, including Trotter’s mother, foster mother, sister, and one of Trotter’s friends, a former foster child who lived with Trotter’s foster family, and a correctional officer who knew Trotter; and consulted a pharmacologist, a psychiatrist, and a neuropsyehologist. As stated previously, the testimony presented at resentencing established two statutory and several nonstatutory mitigating circumstances. Accordingly, Trotter failed to meet either of Strickland’s requirements.

3. Trotter’s Prior Conviction

Trotter’s final argument on appeal is that trial counsel was ineffective for failing to file a timely motion to vacate a prior conviction. In September 1985, Trotter pled no contest to charges of robbery and burglary, and the court sentenced Trotter to two years of community control. Then in June 1986, Trotter committed the murder for which he now stands sentenced to death. At both penalty phases, the first in 1987 and the resentencing in 1993, the 1985 robbery conviction and sentence served as the basis for two aggravators: “prior violent felony” and “on community control at the time of the murder.” In November 1992, Trotter’s defense counsel filed motions to withdraw Trotter’s plea in the 1985 case and to vacate that conviction, which the trial court denied.

Trotter contends that the circuit court erred in denying his 3.850 motion to vacate the 1985 conviction. He also claims that defense counsel was ineffective for not filing a motion to vacate the 1985 conviction at the time of his first murder trial and sentencing. We address each claim in turn.

First, on direct appeal from resen-tencing, Trotter argued that the trial court erred in denying his motion challenging the validity of his 1985 conviction. See Trotter, 690 So.2d at 1236 n. 8. Without discussion, we affirmed denial of the issue as meritless. Id. at 1237. Accordingly, not only could Trotter have raised a claim on direct appeal, but he did so, and is thus proeedurally barred from raising any claim regarding the 1985 plea and conviction.

Trotter also claims that defense counsel was ineffective for fading timely to file a motion attacking the 1985 conviction. Assuming this issue is not moot in light of our prior remand for a new penalty phase, we find the claim lacks merit. The trial court in 1992 denied the motions to withdraw the plea and to vacate the conviction as proeedurally barred because they were filed beyond the two-year limit of rule 3.850. The trial court, however, also denied the motions on the merits because the evidence presented was legally insufficient. In denying this ineffective assistance claim, the postconviction court held that because the trial court previously also denied the motions on the merits, Trotter failed to establish prejudice for counsel’s untimely filing of the motions. We agree that Trotter has failed to establish prejudice and affirm denial of relief on this claim.

III. THE HABEAS PETITION

Trotter also petitions us for a writ of habeas corpus, raising two claims, one of which he admits is not yet cognizable for review. We deny both claims as explained below.

Trotter first contends that his death sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court previously has held that neither Apprendi nor Ring applies retroactively. See Hughes v. State, 901 So.2d 837, 838 (2005) (holding that Apprendi does not apply retroactively); Johnson v. State, 904 So.2d 400, 412 (Fla.2005) (holding that Ring does not apply retroactively). Accordingly, we deny this claim.

In his second habeas issue, Trotter argues that he may be incompetent at the time of execution. He admits, however, that his claim is not ripe for review. Trotter is correct, and we deny this claim as well. See Hall v. Moore, 792 So.2d 447, 450 (Fla.2001) (stating that consideration of death-sentenced defendant’s claim of incompetency or insanity to be executed is premature if death warrant has not been signed); see also Fla. R.Crim. P. 3.811(c)-(d) (stating that court may not consider motion to stay execution on grounds of incompetence or insanity to be executed until governor has signed death warrant and, following statutory proceedings, has determined the prisoner is sane).

IV. CONCLUSION

Having considered the briefs and the supplemental briefs filed following remand and having reviewed the petition for writ of habeas corpus and heard oral argument in this cause, we affirm the denial of post-conviction relief and the order determining Trotter is not mentally retarded, and we deny Trotter’s habeas petition.

It is so ordered.

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

QUINCE, J., recused.

      . Trotter raised eight issues on appeal: that the trial court erred by (1) refusing to grant an additional peremptory challenge; (2) failing to investigate alleged extraneous influences on the jury; (3) refusing to disqualify the prosecutor who previously represented Trotter on an unrelated matter; (4) failing to remove a juror for cause; (5) using Trotter's community control violation as a sentence aggravator; (6) refusing to admit Trotter's drawings as mitigation; (7) using a constitutionally vague heinous, atrocious, or cruel (HAC) jury instruction; and (8) determining that the murder was HAC.

      . The court found the following aggravators: Trotter was on community control at the time of the murder; he had a prior violent felony conviction; he committed the murder in the course of a robbery and for pecuniary gain (merged); and the murder was "especially wicked, evil, atrocious, and cruel.” 690 So.2d at 1236 n. 5. The court found two statutory mitigators — extreme mental and emotional disturbance and capacity substantially impaired (cocaine addiction) — and non-statutory mitigation, including below-average IQ, family and developmental problems, disadvantaged background, possible frontal lobe brain disorder, Trotter’s remorse, and "other nonstatutory factors.” Id. at 1236 & nn. 6-7.

      . Trotter raised the following issues: (1) that the trial court erred in using community control as an aggravating circumstance; (2) that victim impact evidence is generally inadmissible and (3) that admission of such evidence in his case was improper; (4) that he should have been permitted to challenge the validity of his 1985 prior robbery conviction; (5) that the trial court failed to investigate his racial bias claim; (6) that the trial court erred in denying his cause challenges and (7) in denying a specific cause challenge; (8) that the trial court erroneously admitted evidence of a nonstatutory aggravator; (9) that the prosecutor made improper comments; and (10) that the sentencing order was deficient. Id. at 1236 n. 8.

      . In his postconviction motion Trotter alleged that counsel was ineffective for (1) failing to timely challenge the validity of his prior violent felony conviction and failing to present evidence regarding the circumstances of that prior crime; (2) not having the assistance of a competent mental health expert; (3) failing to provide mental health experts with available information necessary to their diagnoses of Trotter; and (4) conceding guilt during the guilt phase closing argument. He further alleged that (5) execution by lethal injection or electrocution is unconstitutional; (6) Florida’s death penalty sentencing statute is unconstitutional on its face and as applied; (7) the penalty phase jury instructions unconstitutionally shifted the burden to Trotter; and (8) cumulative errors were not harmless.

      . Trotter also argues that the clear and convincing evidence standard of section 921.137(4), Florida Statutes (2001) (prohibiting imposition of death sentence on a mentally retarded defendant), is unconstitutional. We need not address this claim, however, because the trial court concluded that Trotter was not mentally retarded either under the clear and convincing evidence standard or the preponderance of the evidence standard. See Singletary v. State, 322 So.2d 551, 552 (Fla.1975) (stating that "courts should not pass upon the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds”).

      . Rule 3.203 defines mental retardation as follows:
      As used in this rule, the term "mental retardation” means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term "significantly sub-average general intellectual functioning,” for the purpose of this rule, means performance that is two or more standard deviations from the mean score on a standardized intelligence test authorized by the Department of Children and Family Services in rule 65B-4.032 of the Florida Administrative Code. The term "adaptive behavior," for the purpose of this rule, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.
      (Emphasis added.) Section 921.137(1), Florida Statutes (2005), provides an identical definition, but the statute “does not apply to a defendant who was sentenced to death prior to” its effective date. Id. § 921.137(8).

      . In his original brief, Trotter raises one issue — that section 921.137, Florida Statutes (2001), is unconstitutional because it does not provide for retrospective application of Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that it is unconstitutional to execute a "mentally retarded offender") — that our remand rendered moot. Another issue, that Trotter is mentally retarded, is redundant and thus merged with the first issue raised in the supplemental brief.

      . Trotter claimed that Dr. Krop’s alleged testing errors, inadequate research, and erroneous diagnoses all resulted in misleading and preventing counsel from adequately or effectively defending Trotter at both the guilt and sentencing phases.

      . The resentencing court found four aggrava-tors. The other two were that the murder was committed in the course of a robbery and that the murder was “especially wicked, evil, atrocious, and cruel.” Trotter, 690 So.2d at 1236 n. 5.


text:
    Bobby RALEIGH, Appellant, v. STATE of Florida, Appellee. Bobby Raleigh, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC03-710, SC03-2282.
    Supreme Court of Florida.
    June 1, 2006.

      Ryan Thomas Truskoski, P.A., Orlando, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Florida and Kenneth S. Nun-nelley, Sr., Assistant Attorney General, Daytona Beach, FL, for Appellee/Respon-dent.
   PER CURIAM.

Bobby Raleigh pled guilty to two counts of first-degree murder and was subsequently sentenced to death. We affirmed his sentences on direct appeal. Raleigh v. State, 705 So.2d 1324 (Fla.1997), cert. denied, 525 U.S. 841, 119 S.Ct. 105, 142 L.Ed.2d 84 (1998). Raleigh now appeals an order of the circuit court denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851. He also petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the circuit court’s order and deny the habeas petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of June 5, 1994, while at the Club Europe in DeLand, Domingo Figueroa told his cousin, Bobby Raleigh, that someone had slapped his mother, Janice Figueroa. Raleigh and Figueroa confronted Douglas Cox and his brother. While they were talking in the parking lot, Raleigh’s mother ran out of the bar screaming at Cox. Raleigh took his mother to the car and returned to confront Cox. Raleigh apologized to Cox for his mother’s actions and they shook hands. After confronting Cox, Raleigh obtained guns from his home, and he and Figueroa drove to Cox’s trailer.

Raleigh went to the door of the' trailer with a gun in his hand and asked about Cox. He was told that Cox was asleep. Raleigh and Figueroa left Cox’s trailer, drove down a nearby dirt road, and parked. They returned and entered Cox’s trailer carrying guns. Raleigh went to the end of the trailer and shot Cox in the head three times at close range. Figueroa and Raleigh each shot Cox’s roommate, Tim Eberlin, until their guns jammed. Raleigh then beat Eberlin in the head with the barrel of his gun until Eberlin stopped screaming.

Raleigh and Figueroa next drove to Raleigh’s home where they burned their clothes and dumped bullets into a neighbor’s yard. They later hid the guns in a secret compartment in Raleigh’s Subaru. The police went to Raleigh’s house that night, and he agreed to talk to them. Raleigh initially denied his involvement in the murders, but after being told that Figueroa had implicated him, he made a second statement, which was taped. In this second statement, Raleigh admitted killing both Cox and Eberlin.

Raleigh was charged with two counts of first-degree murder, one count of burglary, and one count of shooting into a building. He entered into a plea agreement with the State in which he agreed to plead guilty to both counts of murder and, in exchange, the State agreed to nolle prosequi the counts of burglary and shooting into a building. The court accepted Raleigh’s plea pursuant to this agreement on June 6, 1995. Figueroa was tried and sentenced separately.

Raleigh’s penalty phase proceeding was conducted in August 1995. Figueroa was not called to testify. Instead, a prior taped statement Figueroa had given to police investigator Lawrence Horzepa on the day of the murders was introduced through Horzepa. Initially, through a series of leading questions during cross-examination, Raleigh’s counsel asked Horzepa to confirm specific portions of Figueroa’s statement. Specifically, defense counsel asked Horzepa to confirm that Figueroa had told him that his “Aunt Janice” (Raleigh’s mother) had been called a bad name by the victim, Cox, and to confirm that Figueroa admitted to owning the safe that contained the guns. On its redirect examination of Horzepa, the State sought to introduce Figueroa’s entire statement by playing the tape. Defense counsel stated that the defense had no objection. When the tape was played, the jury heard Figueroa say that he shot Eberlin once at Raleigh’s direction, but Figueroa was not sure if his shot hit Eberlin. The jury also heard Figueroa say that Raleigh had already shot Eberlin once.

Raleigh testified on his own behalf at the penalty phase. In addition to eight other witnesses, defense counsel called psychologist Dr. James Upson as its mental health expert. Dr. Upson testified that he met with Raleigh for approximately eleven and a half hours, interviewed Raleigh’s mother for approximately one hour, reviewed Raleigh’s school and medical records, and conducted twenty tests. Dr. Upson found Raleigh to be of normal intelligence with an IQ of ninety-eight. He further testified that Raleigh is a follower who is easily manipulated by others and that Raleigh portrayed some allegiance to Figueroa. Dr. Upson testified that Raleigh fit the criteria for antisocial personality, although Dr. Upson would not clinically diagnose Raleigh with a personality disorder. Dr. Upson further testified that Raleigh’s neuropsychological functions may have been impaired by the consumption of alcohol at the time of the murders, but there was no significant impairment. Ultimately, Dr. Upson concluded that he could not find any statutory mitigators to apply in Raleigh’s case except Raleigh’s age at the time of the murders (nineteen).

At the end of the penalty phase, the jury unanimously recommended the death penalty for Raleigh on both counts of first-degree murder. However, before Raleigh was sentenced, he learned that Figueroa had made another statement about his involvement in the crime. The day following the murder, Figueroa told his uncle that he had killed one victim and Raleigh killed the other. The State had introduced this statement at Figueroa’s trial; and, during closing argument, the State had argued that this statement demonstrated that Figueroa had formed the intent to kill Eber-lin, regardless of whether Figueroa was the one who actually killed Eberlin. The State argued that this statement, coupled with the forensic evidence that two of the three shots which hit Eberlin may have been fired from Figueroa’s gun, demonstrated that Figueroa had downplayed his role in the murders when he gave the statement to investigator Horzepa.

On February 16, 1996, Raleigh was sentenced to death upon the trial court’s finding that the five statutory aggravators outweighed the one statutory and several nonstatutory mitigators. On direct appeal, Raleigh raised fourteen claims. After denying each claim, this Court affirmed Raleigh’s death sentence. Raleigh, 705 So.2d at 1331. Raleigh then filed an amended 3.851 motion for postconviction relief, in which he raised fourteen claims. On August 2, 2001, the trial court held a Huff hearing and ordered an evidentiary hearing on seven of Raleigh’s claims.

At the evidentiary hearing, Raleigh presented the testimony of a second mental health expert, Dr. Ernest Bordini. Dr. Bordini diagnosed Raleigh as suffering from a nondescript neuropsychological dysfunction. Dr. Bordini further testified that several statutory mitigators applied, including that Raleigh was acting under the dominion and control of Figueroa. The trial court denied relief. Raleigh now appeals the trial court’s denial as it relates to five of his claims. He also petitions this Court for a writ of habeas corpus.

II. RULE 3.851 MOTION FOR POSTCONVICTION RELIEF

As to Raleigh’s appeal of the denial of his motion for postconviction relief, we first address his claim that his mental health evaluation was inadequate under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). We then address three claims alleging ineffective assistance of counsel. Those claims are that counsel provided ineffective assistance by (1) failing to adequately prepare the mental health expert’s testimony; (2) failing to object to the admission of Figueroa’s taped statement; and (3) counseling Raleigh to plead guilty to two counts of first-degree murder. We then consider the claim that the State knowingly presented false testimonial evidence in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Lastly, we address the assertion that the State violated Raleigh’s right to due process under Bradshaw v. Stumpf 545 U.S. 175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005), by taking inconsistent positions in Raleigh’s and Figueroa’s trials regarding the identity of the principal actor in the murder of Eber-lin. For the reasons stated below, we affirm the trial court’s denial of these claims.

A. Ake Claim

Raleigh contends that he did not receive adequate mental health assistance as required by Ake. “Ake requires that a defendant have access to a ‘competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.’ ” Mann v. State, 770 So.2d 1158, 1164 (Fla.2000) (quoting Ake, 470 U.S. at 83, 105 S.Ct. 1087). Because an Ake-type claim rests on a denial of a defendant’s right to due process and equal protection under the Fourteenth Amendment, 470 U.S. at 76, 105 S.Ct. 1087, it generally is procedurally barred on postconviction review because it should have been presented on direct appeal. See Marshall v. State, 854 So.2d 1235, 1248 (Fla.2003); Moore v. State, 820 So.2d 199, 203 n. 4 (Fla.2002); Cherry v. State, 781 So.2d 1040, 1047 (Fla.2000). A narrow exception to this general procedural bar was carved out by this Court in State v. Sired, 502 So.2d 1221, 1223 (Fla.1987).

In Sired, this Court affirmed the trial court’s finding that a limited postconviction evidentiary hearing was necessary to address the defendant’s claim that he “was deprived of his rights to due process and equal protection” because, based upon the findings of a third psychiatrist, there was evidence that Sireci’s two court-appointed psychiatrists failed to conduct competent and appropriate evaluations by missing the signs of psychosis and organic brain damage. Id. This procedural exception was based upon the recognition that a new sentencing hearing is required “in cases which entail psychiatric examinations so grossly insufficient that they ignore clear indications of either mental retardation or organic brain damage.” Id. at 1224 (citing Mason v. State, 489 So.2d 734 (Fla.1986)). More recently, we elaborated on this concern by stating that “one of the most compelling indications for granting an evi-dentiary hearing on an Ake claim [raised in a motion for postconviction relief] occurs when one or more of a defendant’s mental health experts ‘ignore[s] clear indications of either mental retardation or organic brain damage.’ ” Jones v. State, 845 So.2d 55, 68 (Fla.2003) (affirming trial court’s denial of evidentiary hearing on Ake claim) (quoting Sireci, 502 So.2d at 1224).

Relying on Sired, the trial court considered the merits of Raleigh’s Ake claim and denied it. The trial court ultimately concluded that Raleigh received a professional, competent, and appropriate mental health evaluation for use in aid of his defense. The trial court found that relief was not warranted because Dr. Upson did not miss signs of mental retardation or organic brain damage. In addition, the trial court found that Dr. Bordini’s evaluation of Raleigh was simply a more favorable repackaging of Dr. Upson’s evaluation, not a demonstration that Dr. Upson’s evaluation was inadequate.

These findings are supported by competent, substantial evidence. Dr. Bordini’s testimony did not establish that Dr. Upson missed any clear indications of mental retardation or organic brain damage, thereby rendering Dr. Upson’s evaluation “grossly insufficient” under Sired. Both experts concluded that Raleigh does not have brain damage. In addition, neither Dr. Upson nor Dr. Bordini found Raleigh to be mentally retarded; both found his IQ to be ninety-eight. Based on this record, the trial court correctly concluded that relief was not warranted under Sired

The trial court’s additional finding, that Dr. Bordini’s evaluation is essentially no more than a better repackaging of Dr. Upson’s evaluation, is also supported by the record. While Dr. Bordini gave a number of reasons why he believed Dr. Upson’s evaluation was inadequate, his testimony did not establish that Dr. Upson had failed to perform the essential tasks required under Ake. Both experts spent a comparable amount of time interviewing Raleigh and his mother, Janice Figueroa, and both reviewed Raleigh’s medical and school records. Each expert administered a plethora of tests aimed at essentially the same four major areas: intellectual functioning, achievement, neuropsychological functioning, and personality. As the trial court noted, the results of both experts’ testing are substantially similar. Both discovered as follows:

[Raleigh] had symptoms of depression; had difficulty differentiating between fantasy and reality; is insecure; [is] passive, dependent, a follower; has a close relationship with his mother; had attempted suicide; is remorseful; tends to act before thinking; fits criteria for anti-social personality, even though that may not be his diagnosis; the use of alcohol on the night of the murders may have impacted his neuro-psychological function; [Raleigh] was only nineteen (19) years old at the time of the murders; and showed some allegiance to Domingo Figueroa.

(Citations omitted.) Although Dr. Bordini focused more on Raleigh’s neuropsychological functioning through the administration of the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) [DSM TV] test, this testing did not reveal anything that undermined the adequacy and appropriateness of Dr. Upson’s earlier evaluation. Ultimately, other than learning some additional facts that Raleigh did not share with Dr. Upson regarding his upbringing and sexual abuse, Dr. Bordini’s evaluation was substantially similar to Dr. Up-son’s:

In light of the foregoing, we affirm the trial court’s conclusions that Dr. Upson did not miss signs of mental retardation or organic brain damage and that Raleigh in fact received a professional, competent, and appropriate mental health evaluation for use in aid of his defense.

B. Ineffective Assistance of Counsel

Raleigh’s next three claims allege ineffective assistance of counsel. When considering claims of ineffective assistance of counsel, this Court applies the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “An ineffective assistance claim has two components: A petitioner must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. To establish deficient performance, a petitioner must demonstrate that counsel’s representation ‘fell below an objective standard of reasonableness.’ ” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citation omitted) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052); see also Hodges v. State, 885 So.2d 338, 345-346 (Fla.2004) (stating and applying Strickland standard). The prejudice prong of the analysis “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Failure to establish either prong results in a denial of the claim. Ferrell v. State, 918 So.2d 163, 170 (Fla.2005). When reviewing these claims, we defer to the trial court’s findings of fact regarding the credibility of witnesses and the weight assigned to the evidence, but we review the performance and prejudice prongs de novo. Windom v. State, 886 So.2d 915, 921 (Fla.2004) (citing Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999)). Raleigh has not satisfied the Stñckland standard in any of his three ineffective assistance of counsel claims.

(1) Failure to Adequately Prepare Mental Health ExpeH Testimony

First, Raleigh claims that defense counsel was ineffective for failing to adequately prepare the testimony of Dr. Up-son at the penalty phase proceeding. In support of this argument, Raleigh points to the testimony the State elicited on cross-examination from Dr. Upson about Dr. Upson’s lack of knowledge regarding the facts surrounding the crime scene and criminal episode. The thrust of Raleigh’s claim is that his penalty phase presentation was undermined by Dr. Upson’s lack of credibility and that his sentence is, therefore, unreliable.

However, even assuming a deficiency in performance, Raleigh has failed to establish prejudice. He has not established that Dr. Upson’s testimony would have been more favorable or materially more credible if Dr. Upson had been provided with these facts. At the penalty phase proceeding, Dr. Upson testified that he was comfortable with his opinion and that he was not sure if additional facts would change it. Moreover, Dr. Upson was not called to testify at the evidentiary hearing to establish that the additional facts would indeed have changed his opinion. Thus, based on the record, Raleigh has failed to establish prejudice, and we affirm the denial of this claim. See Ferrell, 918 So.2d at 170.

(2) Admission of Figueroa’s Taped Statement

Second, Raleigh argues that he was prejudiced by defense counsel’s failure to object to the State’s introduction of Figueroa’s taped statement on its redirect examination of police investigator Horzepa. As noted earlier, investigator Horzepa testified to a portion of the statement Figueroa made to him during defense counsel’s cross-examination. On redirect, the State introduced the entirety of Figueroa’s statement by playing the tape itself. When this statement was played, the jury heard Figueroa say that Raleigh directed him to shoot Eberlin. Raleigh claims that “the statement cast doubt on [Raleigh’s] veracity as a witness, strengthened the State’s argument that the cold, calculated, and premeditated [CCP] aggravator applied, and weakened [his] mental health mitigation,” particularly the “under substantial domination of another” mitigator.

It is not clear whether Raleigh claims that defense counsel was ineffective for failing to object to the State’s introduction of the entirety of Figueroa’s statement or that defense counsel was ineffective for opening the door to the statement in the first instance. Thus, we address both aspects. We find that both arguments are without merit.

If Raleigh’s claim is that counsel was ineffective for failing to object to the State’s admission of the entire statement on its redirect of investigator Horzepa, defense counsel cannot be deemed deficient for failing to make a meritless objection. Defense counsel introduced portions of Figueroa’s statement during the cross-examination of investigator Horzepa. Once defense counsel opened the door, under the facts and circumstances of this case, the doctrine of completeness permitted the State to introduce the remainder of Figueroa’s statement. See § 90.108(1), Fla. Stat. (1997) (“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.”); see also Thompson v. State, 648 So.2d 692, 695 (Fla.1994) (finding no error where defense counsel invited hearsay statements during questioning of state’s witness). Therefore, defense counsel was not deficient for making a meritless objection.

In its order, the trial court addressed the second aspect. It considered this claim to be that defense counsel was ineffective for opening the door to the introduction of Figueroa’s entire statement by introducing a portion of Figueroa’s statement during the cross-examination of investigator Horzepa. In denying this claim, the trial court found that this claim “amounts to nothing more than disagreement with defense counsel’s strategy and is insufficient in light of the testimony at the evidentiary hearing.” This finding is supported by the record.

The record establishes that defense counsel made an informed and reasoned, strategic decision to introduce Figueroa’s taped statement after considering the alternatives. As summarized in the trial court’s order, the testimony of defense counsel was that:

[Defense counsel] did not want [Figueroa] to testify personally at [Raleigh’s] penalty phase proceeding because they would not have any control over what he testified to. They believed his live testimony may have been more damaging than his recorded statement. Instead, they preferred that the statement come in because parts of it could be used to support Defendant’s case, i.e., to show the control or influence [Figueroa] had over [Raleigh],

Thus, rather than call Figueroa to the stand, counsel decided to introduce the beneficial portions of Figueroa’s statement through the cross-examination of investigator Horzepa.

“[S]trategic 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.” Stewart v. State, 801 So.2d 59, 65 (Fla.2001) (quoting Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000)). “Reasonable strategic decisions of trial counsel should not be second-guessed by a reviewing court.” Jones v. State, 845 So.2d 55, 65 (Fla.2003) (citing Strickland, 466 U.S. at 689-91, 104 S.Ct. 2052). Raleigh has not demonstrated that defense counsel’s decision to introduce Figueroa’s statement fell outside the norms of professional conduct. Therefore, we affirm the denial of this claim.

(S) Recommendation to Plead Guilty to Tivo Counts of First-Degree Murder

Third, relying on Delgado v. State, 776 So.2d 233 (Fla.2000), Raleigh alleges that defense counsel was ineffective for recommending that he plead guilty to two counts of first-degree murder. The trial court denied this claim, in part, because Delgado does not apply retroactively and is, therefore, inapplicable. We agree.

Indeed, Delgado does not apply retroactively. Although we expressly receded from Raleigh in Delgado, we specifically held that Delgado did not apply retroactively to convictions which had already become final. Id. at 241 (citing Witt v. State, 387 So.2d 922, 928-31 (Fla.1980)). Raleigh’s sentence became final in 1998, well before Delgado was decided in 2000. As the trial court properly noted, “there is no reason to conclude that [Raleigh’s] attorneys were ineffective for failing to foresee the result in Delgado.” Therefore, we affirm the trial court’s denial of this claim.

C. Giglio and Stumpf Claims

Raleigh’s final two claims challenge the State’s differing uses of Figueroa’s pretrial statements between the trial of Raleigh and the trial of Figueroa. The first of these two claims alleges that the State violated Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), by presenting testimony it knew was false.

To establish a claim under Giglio, the defendant must prove (1) the testimony given was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material. Suggs v. State, 923 So.2d 419, 426 (Fla.2005). In reviewing this claim, we defer to the trial court’s findings of fact but independently determine whether the facts are sufficient to establish the elements required in each claim. Id.

The thrust of Raleigh’s Giglio claim is that, at his trial, the State only introduced Figueroa’s statement to investigator Horzepa without mentioning or introducing the statement Figueroa made to his uncle. Because Figueroa’s statement to his uncle arguably contradicts portions of his statement to investigator Horzepa, Raleigh claims that the State knowingly presented false testimony. Raleigh has not established that Figueroa’s statement to investigator Horzepa was false, much less that the State knew it was false. Therefore, this claim is without merit.

Raleigh’s second related claim is that the State violated his right to due process under Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005), by taking inconsistent positions in Raleigh’s and Figueroa’s trials as to the identity of the principal actor in the murder of Eberlin. At Raleigh’s penalty phase, the prosecutor argued that Raleigh was the principal actor in the murder of both victims. This argument was not materially inconsistent with Figueroa’s statement to investigator Horzepa that Raleigh had killed both victims. However, during closing argument at Figueroa’s trial (at which both of Figueroa’s statements were introduced into evidence), the prosecutor commented upon the conversation between Figueroa and his uncle as follows:

[“] Hey, man, tell me what you did. Tell me what you did,[”] [Figueroa’s uncle] said. [“] Tell me.[”] This is the next day, if you remember. Finally, [Figueroa] says, [“]man, it was really bad. It was bad. I killed one and Bobby killed one.[”] It doesn’t sound like there is a whole lot of hesitation that I might have killed one or it’s possible that I killed one or I am not sure if I killed one. I mean, he told his uncle the truth. I killed one and Bobby killed one.

Raleigh claims that this argument is an assertion that Figueroa, not Raleigh, actually killed Eberlin. Relying on Stumpf, Raleigh asserts that due process precludes the State from taking such an inconsistent position.

In Stumpf, the state first tried Stumpf under the theory that he was the principal actor in the shooting death of the victim. Id. at 2403-04. Then, based upon new evidence that came to light after Stumpf had been tried and convicted, the state tried Stumpf s codefendant under the inconsistent theory that the codefendant was the principal actor in the shooting death of the same victim. Id. The United States Supreme Court held that the use of such inconsistent theories warranted remand to determine what effect this may have had on Stumpfs sentence and to determine whether the death penalty violated due process. Id. at 2407-08.

No such due process concerns are present in this case. Unlike the situation in Stumpf, the State did not first try Raleigh as the principal actor in Eberlin’s murder and then inconsistently prosecute Figueroa as the principal actor in the same death. Instead, the State argued consistently in both trials that Raleigh was a principal actor in the death of Eberlin. The difference in Figueroa’s trial was that, using Fig-ueroa’s second statement to his uncle, the prosecutor argued that Figueroa played a greater role in the crime than he had admitted in his statement to investigator Horzepa. In particular, the prosecutor argued that Figueroa’s statement to his uncle (consistent with the forensic evidence) established that Figueroa had formed the necessary intent in Eberlin’s death to be convicted of first-degree murder. The essence of this argument was that Figueroa was no less culpable for the murder of Eberlin than Raleigh.

Specifically, the prosecutor began his closing argument in Figueroa’s trial by reading the definition of killing with premeditation and presenting to the jury this theory: “Whether or not [Figueroa] actually was the one who killed him doesn’t matter. The fact of the matter is what was his intent at the time. The intent was to kill Mr. Eberlin.” To support this theory, the prosecutor argued that Figueroa may have shot at Eberlin two times, giving him time to reflect while shooting Eber-lin. The prosecutor acknowledged that “[y]ou can argue this evidence as far as how the shots took place to your heart’s content. There’s a zillion ways that could have happened.” It was in this context that the prosecutor argued that Figueroa’s statement to his uncle demonstrated that he had formed the intent to kill Eberlin.

To summarize, the State did not take an inconsistent position as the prosecution did in Stumpf. In Figueroa’s trial, the State never contradicted the position it took at Raleigh’s trial regarding Raleigh’s culpability. It did not change course by seeking to prove that Figueroa, not Raleigh, was the principal actor in Eberlin’s death. Therefore, the due process concerns raised in Stumpf do not apply.

Accordingly, we affirm the trial court’s denial of Raleigh’s Giglio claim and deny relief on his Stumpf claim.

III. PETITION FOR WRIT OF HABEAS CORPUS

Having affirmed the trial court’s denial of Raleigh’s 3.851 motion, we now consider Raleigh’s petition for writ of habeas corpus. In his petition, Raleigh raises two claims, both essentially arguing that Florida’s capital sentencing statute is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). As both the United States Supreme Court and this Court have recently recognized, Ring does not apply retroactively. Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (holding that Ring does not apply to cases which are already final on review); Johnson v. State, 904 So.2d 400, 412 (Fla.2005). Raleigh’s appeal was final in 1998 when the United States Supreme Court denied certiorari. See Raleigh v. State, 705 So.2d 1324 (Fla.1997), cert denied, 525 U.S. 841, 119 S.Ct. 105, 142 L.Ed.2d 84 (1998). Therefore, we deny Raleigh’s ha-beas petition.

IV. CONCLUSION

For the reasons set forth above, we affirm the trial court’s denial of Raleigh’s motion for postconviction relief, and we deny his petition for a writ of habeas corpus.

It is so ordered.

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

      . The facts are taken from Raleigh's direct appeal. Raleigh, 705 So.2d 1324.

      . The aggravating circumstances found by the trial judge were: (1) prior violent felony (applied to both Cox and Eberlin); (2) that the murders were committed while engaged in a burglary (applied to the murders of both Cox and Eberlin); (3) that the murder of Cox was cold, calculated, and premeditated (CCP); (4) that the murder of Eberlin was committed to avoid arrest or effect escape; and (5) that the murder of Eberlin was especially heinous, atrocious, or cruel (HAC). Raleigh, 705 So.2d at 1327 n. 1.

      . The trial court found one statutory and fifteen nonstatutory mitigators. The statutory mitigator is Raleigh's age — he was nineteen at the time of the crime. Id. at 1327 n. 2. The nonstatutory mitigators were that the defendant (1) was intoxicated; (2) was remorseful; (3) pled guilty; (4) offered to testify against codefendant Figueroa; (5) could probably adjust well to prison life; (6) was a good son and friend to his mother; (7) was a good brother; (8) was a good father figure to ex-girlfriend’s daughter; (9) was bom into dysfunctional family; (10) did not know who fathered him; (11) attempted suicide; (12) had low self-esteem; (13) suffered from an adjustment disorder and was antisocial; (14) used poor judgment and engaged in impulsive behavior; and (15) was a follower. Id. at 1327 n. 3.

      .Raleigh alleged the trial court erred in (1) failing to instruct the jury on the "no significant history of criminal activity” statutory mitigator; (2) instructing the jury on the "pecuniary gain” aggravator; (3) failing to give the requested instruction on the CCP aggravator; (4) dismissing a juror over defense objection where there was no showing that the juror could not be fair; (5) finding the "during the course of a burglary” aggravator; (6) finding the "avoid arrest” aggravator; (7) finding the CCP aggravator for Cox's murder; (8) finding the HAC aggravator for Eberlin’s murder; (9) rejecting the "under substantial domination of another” statutory mitigator; (10) rejecting the "no significant history of criminal activity” statutory mitigator; (11) giving only "some weight” to the "remorseful and cooperative with authorities” nonstatuto-ry mitigator; (12) rejecting Figueroa’s life sentences as a nonstatutory mitigator; (13) giving "little weight” to Raleigh's voluntary intoxication; and (14) sentencing Raleigh to death because death is disproportionate. Id. at 1327 n. 4. For each of the fourteen issues, this Court found that either the trial court committed no error or that the claim lacked merit. Id. at 1327-31.

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

      . The court granted an evidentiary hearing on the following claims; (1) penalty phase defense counsel was ineffective for failing to object to the admission of the codefendant’s taped statement in violation of section 921.141(1), Florida Statutes (1995); (2) the State knowingly presented false evidence in violation of defendant’s rights under the United States Constitution and the Florida Constitution; (3) defendant was deprived of his rights because the mental health expert who evaluated defendant did not render adequate mental assistance as required by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (4) defense counsel was ineffective for failing to adequately investigate and present mitigation and to adequately challenge the State's case; (6) defense counsel was ineffective for recommending that the defendant plead guilty to first-degree murder; (9) defense counsel was ineffective for recommending that defendant accept the plea based on their prediction of a life sentence from the judge; and (11) defense counsel was ineffective for advising defendant that in exchange for his plea, he would receive a nonjuty sentencing phase proceeding or a jury override.

      .Raleigh does not challenge the trial court's denial of his claim that defense counsel was ineffective for recommending that defendant accept the plea based on their prediction of a life sentence from the judge or his claim that defense counsel was ineffective for advising defendant that, in exchange for his plea, he would receive a nonjuty sentencing phase proceeding or a jury override.

      . Dr. Bordini testified that Raleigh had an IQ of ninety-eight, was not mentally retarded, and relied upon visual information more than language, giving visual signals more weight. The trial court correctly notes that Dr. Upson made similar findings:
      [Raleigh] is an individual who academically falls in the normal range; his linguistic skills are lower than his visual spatial skills, which means that he will be prone to handle learning and frustrating situations more in terms of action than in terms of reflective thought; his ability to achieve is within what one would predict from his ability; [he has] no significant neuro-psychological deficiencies with the exception of some difficulty in judgment, particularly where conceptual processes are involved....

      . The weight accorded by the trial court to Dr. Bordini's findings will not be disturbed on appeal. See Rutherford v. State, 727 So.2d 216, 224 & n. 4 (Fla.1998) (finding trial court was within its discretion to discount more favorable mental health evaluation conducted six and ten years after the murders at issue).

      . As accurately summarized by the trial court, Dr. Bordini alleged that Dr. Upson’s evaluation was deficient because
      Dr. Upson (1) was unaware of critical family history and witness statements, yet [Dr. Bordini] admitted that Defendant simply refused to discuss his sexual abuse at the time of the penalty phase proceeding; (2) failed to adequately understand Defendant’s behavior before the murders; (3) did not have enough information about domination to adequately testify to it; (4) erred by failing to work with a diagnosis; (5) administered and scored the MMPI test wrong (Dr. Bor-dini could not replicate the results); (6) failed to administer a formal memory test; and (7) he failed to fully explore the effects of alcohol on Defendant’s judgment and motor function on the night of the murders.

      .Dr. Upson did not administer the DSM IV test. The results from Dr. Bordini's administration of the DSM IV test were adequately summarized by the trial court as follows:
      Dr. Bordini first noted some frontal lobe difficulties, but he did not elaborate. Using DSM IV, Dr. Bordini made a diagnosis of Defendant. As to Axis I, he noted a cognitive disorder not otherwise specified, which he described as neuropsychological dysfunction directly related to developmental factors and frequent freon inhalation; a communication disorder not otherwise specified; depression; posttraumatic stress disorder; and an anxiety disorder not otherwise specified. As to Axis II, he noted borderline personality disorder; dependant personality disorder (subserves his needs to others); and features of antisocial personality disorder. As to Axis III, Dr. Bordini noted that Defendant had chronic hip and hand pain.

      . The trial court noted that
      Dr. Bordini relayed a history of Defendant which included: he did not know who his natural father was, yet he suspected that his father’ was his maternal uncle; his mom was fifteen (15) years old when she gave birth to Defendant; he witnessed physical abuse and was sexually abused himself, as early as age four; he felt alienated from his stepfather; he witnessed his stepfather abuse his mom; he used drugs and alcohol, and huffed freon; attempted suicide; had bisexual feelings; and dealt drugs.
      (Footnote omitted.) Although he was not aware of the sexual abuse, Dr. Upson’s findings also noted that Raleigh has trouble with traditional sexual roles. Furthermore, as the trial court also noted, neither Dr. Upson nor defense counsel can be faulted for the defendant’s own reluctance to discuss his prior sexual abuse with Dr. Upson.

      . Within his Ake claim, Raleigh also alleges that defense counsel failed to obtain a professional, competent, and appropriate mental health evaluation by virtue of either Dr. Up-son's failure to provide an adequate and appropriate evaluation or counsel's failure to provide the background material necessary for an adequate and appropriate evaluation. We note that because these claims focus on defense counsel’s alleged deficiencies rather than the deficiencies of his mental health expert, they are properly analyzed under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To the extent that Raleigh is claiming that defense counsel was ineffective for failing to obtain an adequate mental health evaluation, this claim is without merit because, as demonstrated here, Dr. Upson’s evaluation was not inadequate. Ftowever, to the extent that Raleigh is claiming that defense counsel was ineffective for failing to adequately prepare the testimony of Dr. Upson by failing to provide the necessary background information, we address the merits of this argument in the next section.

      .We also note that Dr. Upson’s testimony helped the defendant establish one statutory mitigator and at least seven of the fifteen nonstatutory mitigators. The statutory miti-gator was Raleigh’s age — he was nineteen at the time of the crime. The nonstatutory miti-gators Dr. Upson's testimony helped to establish were: (1) was intoxicated; (2) was remorseful; (11) attempted suicide; (12) had low self-esteem; (13) suffered from an adjustment disorder and was antisocial; (14) used poor judgment and engaged in impulsive behavior; and (15) was a follower. See supra note 3.

      . On cross-examination, the State elicited testimony from Dr. Upson in which Dr. Up-son acknowledged that, apart from the information contained in the indictment and what was relayed to him by Raleigh, he knew very little of the criminal episode; that he had “requested the facts of the case and got some”; and that he had not been asked to evaluate the crime scene.

      . On cross-examination, when asked by the State whether specific additional facts regarding the crime scene would change his opinion, Dr. Upson only responded that they might but that he would have to review them.

      . 705 So.2d 1324 (Fla.1997).

      . Raleigh raised this claim at oral argument after filing a notice of supplemental authority.

      . The prosecutor stated:
      In fact, I would submit to you it’s easy to show by the evidence that [Figueroa] probably tried to pull the trigger at least one other time. Now, whether it was between the first and second shot or after the second shot, we don’t have any evidence to that fact. We do know that that the bullet had to be cleared and it landed right at his feet. That all shows the conscious intent. The reflection. A premeditated murder can be done in a twinkling of any eye as long as you have the conscious intent and reflect about it just a second and I submit that when you point a gun, when you pick it up and point it in a direction in that pointblank little room and fire it, you fire it not once but twice and perhaps try to squeeze a third round, that all shows obviously the intent to kill.