author: KELLUM, Judge. KELLUM, Judge. WELCH, Presiding Judge,

text:
    Tony Mark McCARTHA v. STATE of Alabama.
    CR-09-0461.
    Court of Criminal Appeals of Alabama.
    March 25, 2011.
    Rehearing Denied May 27, 2011.
    Certiorari Denied Aug. 5, 2011 Alabama Supreme Court 1101059.

      Tony Mark McCartha, pro se.

      Troy King and Luther Strange, attys. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Tony Mark MeCartha, appeals from the circuit court’s denial of his petition for postconviction relief filed pursuant to Rule 82, Ala. R.Crim. P., in which he challenged his 2004 convictions for first-degree sodomy. This Court affirmed McCartha’s convictions and sentences, by an unpublished memorandum. See MeCartha v. State (No. CR-03-1949), 954 So.2d 1141 (Ala.Crim.App.2005) (table). This Court entered a certificate of judgment on February 10, 2006.

On February 12, 2007, MeCartha filed a Rule 32 petition, his first, in the Russell Circuit Court. In his petition, MeCartha claimed that his various attorneys had rendered ineffective assistance before trial, during trial, and on appeal. The record indicates that the circuit court denied McCartha’s petition on August 30, 2007. The circuit court’s order explained:

“The Court finds that the Petition seeking relief from conviction and sentence is barred from further review. [MeCar-tha] was represented at trial by the Hon. Jeremy Armstrong. Both of his convictions were appealed to the Alabama Court of Criminal Appeals and affirmed by the Court. The Hon. Aimee Smith represented [MeCartha] on Appeal. A Petition for writ of certiorari was filed with the Alabama Supreme Court. The Alabama Supreme Court denied this petition. The issue of ineffective assistance was raised on appellate review and decided adversely to [McCartha’s] claim. Any further review of this issue is barred.”

(C. 42.) MeCartha did not appeal from the denial of his first Rule 32 petition.

On June 25, 2009, MeCartha filed the instant Rule 32 petition, his second, in the Russell Circuit Court. In this petition, MeCartha claimed that he did not learn that his prior Rule 32 petition had been denied until May 5, 2009, and he asked the circuit court to grant him an out-of-time appeal from the denial of that petition. MeCartha also pz’esented a new claim of actual innocence in this second Rule 32 petition. The State argued that the petition was meritless, insufficiently pleaded, and precluded pursuant to Rules 32.2(a)(3) and (5) because, it argued, the claims could have been but were not raised at trial, Rule 32.2(b) because, it argued, the petition was successive, and Rule 32.2(c) because, it argued, the petition was untimely.

The circuit court denied McCartha’s petition on the ground that MeCartha was attempting to relitigate issues that had already been decided adversely to him. The circuit court also ordered MeCartha to pay the court costs associated with the filing of his Rule 32 petition. On December 4, 2009, MeCartha filed a motion to alter, amend, or vacate the circuit court’s order in which he attacked the circuit court’s denial of his claim, the order requiring him to pay the filing fees, and the impartiality of the circuit judge presiding over his case. On January 13, 2010, the circuit court denied McCartha’s request to set aside the court costs assessed in his case.

On May 14, 2010, this Court remanded this case for the circuit court to determine whether MeCartha was entitled to an out-of-time appeal from the denial of his first Rule 32 petition. After initially denying McCartha’s request and after a second remand by this Court, the circuit court granted McCartha’s request for an out-of-time appeal on January 4, 2011.

I.

McCartha claims that he was entitled to an out-of-time appeal from the denial of his first Rule 32 petition. Because the circuit court granted McCartha relief in the form of an out-of-time appeal, this claim is now moot.

II.

McCartha also claims that the circuit court erred in failing to address his claim that he was actually innocent of the offenses for which he was convicted. In his second Rule 32 petition, McCartha claimed that he was actually innocent, and he attached to his Rule 32 petition various affidavits swearing to his innocence.

The circuit court did not specifically address McCartha’s actual-innocence claim; it simply denied McCartha’s petition in its entirety. As we have often stated, this Court may affirm the judgment of the trial court, if it is correct for any reason. Beckworth v. State, [Ms. CR-07-0051, May 1, 2009] — So.3d-(Ala.Crim.App.2009).

Although couched in terms of actual innocence, McCartha’s claim is actually a claim of newly discovered evidence. In Boyd v. State, 746 So.2d 364 (Ala.Crim.App.1999), this Court explained the standard applicable to claims of newly discovered evidence:

“Under Rule 32.1, Ala. R.Crim. P., subject to the preclusions in Rule 32.2, a remedy is afforded a defendant when the grounds supporting the requested relief are based on newly discovered facts (1) that were not known by petitioner or petitioner’s counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, [Ala. R.Crim. P.,] or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence; (2) that were not merely cumulative to other facts that were known; (3) that were not merely amounting to impeachment evidence; (4) that if they had been known at the time of trial or of sentencing, the result probably would have been different; and (5) that establish that petitioner is innocent of the crime for which petitioner was convicted or should not have received the sentence that petitioner received. Rule 32.1(e)(1) through (5), Ala. R.Crim. P. Rule 32.3 places the burden on the defendant to plead and prove facts necessary to obtain relief. Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief. Rule 32.6(b), Ala. R.Crim. P. When this is done, the burden shifts to the state to plead preclusionary grounds meriting summary dismissal. Rule 32.3[, Ala. R.Crim. P.]. The burden then shifts to the petitioner to disprove a preclusion-ary ground pleadfed] by the state.”

746 So.2d at 405-06 (footnotes omitted). Before the allegations in McCartha’s current Rule 32 petition can be considered to be based on newly discovered evidence, they must meet all five requirements of Rule 32.1(e). See Tarver v. State, 769 So.2d 338, 340-41 (Ala.Crim.App.2000) (“We have repeatedly stated that before a claim may be considered as newly discovered evidence the claim must meet the definition of newly discovered evidence found in Rule 32.1(e).”).

Here, McCartha has failed to plead facts tending to show that the affidavits contained evidence that was not otherwise discoverable at trial. The affidavit executed by Lisa Hall indicated that the allegedly exculpatory testimony she could have provided at trial was, in fact, known by her at the time of trial, and McCartha pleaded no facts tending to show why Hall’s testimony was not discoverable at the time of trial. Similarly, McCartha pleaded no facts tending to show that he filed his Rule 32 petition within six months of discovering the information contained in the affidavits of June Mann, Travis Huguley, and Mary McCartha as required by Rule 32.2(c). Therefore, the evidence presented by McCartha failed to meet the standards of Rule 32.1(e)(1). Moreover, the evidence presented by McCartha amounts to nothing more than impeachment evidence that he would use to challenge the credibility of the witnesses who testified for the State at trial. As such, this evidence fails to satisfy the requirement of Rule 32.1(e)(3). The evidence presented by McCartha failed to meet the five requirements of Rule 32.1(e); thus, he did not meet his burden of pleading as required by Rules 32.3 and 32.6(b). Accordingly, this claim is precluded pursuant to Rules 32.2(a)(3) and (5) because the claims could have been, but were not, raised at trial, pursuant Rule 32.2(b) because the petition was successive, and pursuant Rule 32.2(c) because the petition was untimely.

III.

McCartha also raises various claims regarding the circuit court’s ordering McCartha to pay the filing fee for his second Rule 32 petition. Specifically, McCartha contends that the circuit court granted him in forma pauperis status and that the court could not “un-do” that decision and assess him a filing fee. This claim is meritless.

Section 12-19-70(b), Ala.Code 1975, provides that a “docket fee may be waived initially and taxed as costs at the conclusion of the case if the court finds that payment of the fee will constitute a substantial hardship.” Rule 32.6(a), Ala. R.Crim. P., in pertinent part, provides:

“(a) ... [A Rule 32 petition] shall ... be accompanied by the filing fee prescribed by law or rule in civil cases in the circuit court unless the petitioner applies for and is given leave to prosecute the petition in forma pauperis.... If the application to proceed in forma pauperis is granted, the filing fee shall be waived. If, upon final disposition of the petition, the court finds that all of the claims for relief are precluded for any of the reasons stated in Rule 32.2, it may assess the filing fee, or any portion thereof....”

It is well settled that “ ‘rules and statutes relating to the same subject matter must be read in pari materia, thus allowing for legal harmony where possible.’ ” Ex parte Jett, 5 So.3d 640, 643 (Ala.2007) (quoting Ex parte State ex rel. Daw, 786 So.2d 1134, 1136 (Ala.2000)). In construing rules of court, this Court applies the rules of construction applicable to statutes. Ex parte Jett, 5 So.3d at 643. Therefore, words used in court rules must be given their plain meaning. See Ex parte Ward, 957 So.2d 449, 452 (Ala.2006).

Judge Welch’s special writing, dissenting in part, suggests that Rule 32.6(a), Ala. R.Crim. P., prohibits the assessment of the docket fee when, as in the instant case, all the claims are not procedurally barred by one of the grounds set out in Rule 32.2, Ala. R.Crim. P. However, reading § 12-19-70(b), Ala.Code 1975, in conjunction with Rule 32.6(a), Ala. R.Crim. P., we believe that the Alabama Supreme Court intended for Rule 32.6(a) to encourage the circuit court to assess a filing fee in instances where the court finds that all of the defendant’s claims for relief are precluded. The plain language of Rule 32.6(a), when read in conjunction with § 12 — 19—70(b), does not support the conclusion reached by Judge Welch; namely, that only when final disposition of all claims in a Rule 32 petition are based upon one of the preclusionary grounds listed in Rule 32.2 may a circuit court impose a filing fee. Indeed, the permissive wording used in Rule 32.6(a) — the court “may assess the filing fee,” as opposed to shall assess the filing fee — suggests that this rule was not intended to usurp § 12-19-70(b). Such an interpretation is contrary to the purpose of a filing fee, that is, to compensate the circuit clerk for services rendered — regardless of the outcome of the case. See Ex parte Williams, 613 So.2d 1266, 1268 (Ala.1993). Given the scarce judicial resources available, any other interpretation of Rule 32.6(a) would be unreasonable. Moreover, it could encourage inmates to file still more Rule 32 petitions, creating additional burdens on an already overburdened judicial system. However, because of the question raised regarding the interpretation of Rule 32.6(a), the Supreme Court may wish to modify this rule in order to specifically address the issue raised herein. Nevertheless, we conclude that the circuit court properly ordered McCartha to pay the court costs of his Rule 32 petition and, thus, that McCartha is entitled to no relief on this claim.

Rule 32.7(d), Ala. R.Crim. P., authorizes the circuit court to summarily dismiss a petitioner’s Rule 32 petition

“[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition.”

See also Hannon v. State, 861 So.2d 426, 427 (Ala.Crim.App.2003); Cogman v. State, 852 So.2d 191, 193 (Ala.Crim.App.2002); Tatum v. State, 607 So.2d 383, 384 (Ala. Crim.App.1992). Because McCartha’s claims were precluded, or were without merit, summary disposition was appropriate.

Based on the foregoing, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

WINDOM, BURKE, and JOINER, JJ„ concur. WELCH, P.J., concurs in part and dissents in part, with opinion.

On Application for Rehearing

KELLUM, Judge.

APPLICATION FOR REHEARING OVERRULED.

WINDOM, BURKE, and JOINER, JJ„ concur. WELCH, P.J., dissents from the denial of rehearing, withdraws his special writing issued on original submission on March 25, 2011, and substitutes a new one.

WELCH, Presiding Judge,

concurring in part and dissenting in part as substituted on application for rehearing on May 27, 2011.

When this Court issued its opinion on original submission in this case on March 25, 2011, I issued a special writing concurring in part and dissenting in part. On application for rehearing, I withdraw that special writing and substitute the following therefor.

I concur in the majority’s affirmance of the circuit court’s denial of the relief requested as to the substantive claims in Tony Mark McCartha’s second Rule 32, Ala. R.Crim. P., petition. However, I respectfully dissent from this Court’s affir-mance of the circuit court’s imposition of the docket fee set forth in § 12-19-71, Ala.Code 1975, which the circuit court imposed at the conclusion of the proceedings pursuant to § 12-19-70(b), Ala.Code 1975.

McCartha filed his first Rule 32 petition on February 12, 2007. The circuit court found that McCartha was not entitled to relief based on the grounds set forth in the petition, and, thus, it denied relief. No appeal was taken. Following two remands by this Court, the circuit court determined that McCartha was entitled to an out-of-time appeal, and, therefore, McCartha was granted relief as to that claim and allowed to pursue an appeal from the denial of his first petition.

McCartha filed his second Rule 32 petition, the instant petition, on June 25, 2009. McCartha presented two claims in this petition. He claimed that he was entitled to an out-of-time appeal from the denial of his first petition and that he was entitled to relief because he was innocent of the crime underlying his conviction. The circuit court denied relief and ordered McCartha to pay the docket fee as authorized in §§ 12-19-70(b) and 12-19-71. McCartha filed a motion to set aside the order, arguing that, because he is indigent, the circuit court erred in requiring him to pay the filing fee. On August 13, 2009, the circuit court entered an order denying McCartha’s request to set aside the court cost assessed in his second Rule 32 petition. (C. 133.)

McCartha appealed from the denial of his petition reasserting the claims raised in his petition and adding the claim that it was error to assess a filing fee upon an indigent defendant.

This Court upholds the circuit court’s denial of McCartha’s claim of actual innocence presented in his first Rule 32 petition on the ground that the claim was not sufficiently pleaded. See Rules 32.3 and 32.6(b).

Regarding McCartha’s challenge to the assessment of the docket fee, McCartha argued that because he had been granted informa pauperis status, a filing fee could not be assessed. The majority finds this claim to be “meritless” and cites § 12-19-70(b), Ala.Code 1975, as authority for imposing the docket fee. 78 So.3d at 1018. “Section 12-19-70(b), Ala.Code 1975, provides that, as was done in the present case, the docket fee of an indigent petitioner may be waived initially and then taxed as costs at the conclusion of the case.” Fincher v. State, 724 So.2d 87, 90 (Ala.Crim.App.1998), citing Cofield v. State, 682 So.2d 493 (Ala.Crim.App.1996). Therefore, as to this issue, the majority holds that “the circuit court properly ordered McCartha to pay the court costs of his Rule 32 petition and, thus, that McCartha is entitled to no relief on this claim.” 78 So.3d at 1019.

I respectfully dissent from the decision to require McCartha to pay a filing fee. I agree with the majority that McCartha is incorrect when he argues that in forma pauperis status prevents a court from imposing the filing fee at the conclusion of the proceedings. Section 12-19-70(b), Ala. Code 1975, clearly contradicts that assertion. I am dissenting because I believe that Rule 32.6(a), Ala. R.Crim. P., as amended effective August 1, 2002, prohibits the assessment of the docket fee when, as here, all the claims are not proeedurally barred by Rule 32.2.

As stated in the majority opinion, § 12-19-70(b), Ala.Code 1975, provides that “[t]he docket fee [of an indigent petitioner] may be waived initially and taxed as costs at the conclusion of the case if the court finds that payment of the fee will constitute a substantial hardship.” Section 12-19-70(b) was enacted in 1975 and has been cited by this Court in numerous cases affirming the assessment of a docket fee upon indigent Rule 32 petitioners at the conclusion of the Rule 32 proceedings. Cofield v. State, 682 So.2d 493 (Ala.Crim.App.1996); Fincher v. State, 724 So.2d 87 (Ala.Crim.App.1998); see Ex parte Beavers, 779 So.2d 1223 (Ala.2000); Smith v. State, 918 So.2d 141 (Ala.Crim.App.2005); Madden v. State, 885 So.2d 841 (Ala.Crim.App.2003); Baker v. State, 885 So.2d 241 (Ala.Crim.App.2003). Thus, I agree whole-heartedly that “[s]ection 12-19-70, Ala.Code 1975, applies to Rule 32 petitions.” Clemons v. State, 55 So.3d 314, 334 (Ala.Crim.App.2003), rev’d on other grounds, 55 So.3d 348 (Ala.2007). However, I believe the 2002 amendment to Rule 32.6(a) prevents assessment of the filing fee against McCartha for the reasons that follow.

The Alabama Supreme Court

“promulgate[s] rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts....”

§ 12-2-7(4), Ala.Code 1975; Ala. Const. 1901, § 150.

Section 12-1-1, Ala.Code 1975, entitled “Effect of rules of Supreme Court of Alabama,” states:

“Any provisions of this title[, Title 12,] regulating procedure shall apply only if the procedure is not governed by the Alabama Rules of Civil Procedure, the Alabama Rules of Appellate Procedure or any other rule of practice and procedure as may be adopted by the Supreme Court of Alabama.”

(Emphasis added.) Thus, the procedural mechanisms for seeking postconviction relief are promulgated under the rule-making authority of the Alabama Supreme Court. See Rule 32.4, Ala. R.Crim. P. (“Proceedings under this Rule are governed by the Rules of Criminal Procedure ...”); Smith v. State, 918 So.2d 141, 147 (Ala.Crim.App.2005) (Rule 32 proceedings are governed by the Alabama Rules of Criminal Procedure.)

The Alabama Supreme Court adopted Rule 32, Ala. R.Crim. P., as part of the Alabama Rules of Criminal Procedure to regulate the procedure applicable in post-conviction petitions seeking relief from alleged errors in a judgment or sentence. See Rule 1.1, Ala. R.Crim. P. (“These rules[, the Alabama Rules of Criminal Procedure,] shall govern the practice and procedure in all criminal proceedings in all courts of the State of Alabama, and political subdivisions thereof, except as otherwise provided by court rule.”).

The Alabama Supreme Court, pursuant to its rule-making authority, adopted Rule 32.6, Ala. R.Crim. P., effective January 1, 1991. This procedural rule required a Rule 32 petitioner to pay the docket fee or to be granted in forma pauperis status in order to obtain review of his or her petition. The pertinent part of the 1991 rule stated:

“(a) ... The [Rule 32] petition shall ... be accompanied by the filing fee prescribed by law or rule in civil cases in the circuit court unless the petitioner applies for and is given leave to prosecute the petition in forma pauperis, in which event the fee shall be waived.... ”

Rule 32.6(a), Ala. R.Crim. P., as effective January 1,1991.

This Court never found a conflict between Rule 32.6, as it was adopted in 1991, and § 12-19-70(b). The waiver of the filing fee in Rule 32.6 at the commencement of the proceedings did not prevent assessment in § 12 — 19—70(b) of the filing fee at the end of the proceedings. To the contrary, this court read Rule 32.6 in concert with § 12-19-70(b) and routinely affirmed challenges to the assessment of a filing fee imposed at the conclusion of a Rule 32 proceeding — without considering the ground underlying the denial or dismissal of the petition.

Effective August 1, 2002, the Alabama Supreme Court amended Rule 32.6(a) to read as follows:

“(a) ... [A Rule 32 petition] shall ... be accompanied by the filing fee prescribed by law or rule in civil cases in the circuit court unless the petitioner applies for and is given leave to prosecute the petition in forma pauperiSj-fe which event the-fee shall be waived.... If the application to proceed, in forma pauperis is granted, the filing fee shall be waived. If upon final disposition of the petition, the court finds that all of the claims for relief are precluded for any of the reasons stated in Rule 32.2, it may assess the filing fee, or any portion thereof. ...”

Rule 32, Ala. R.Crim. P., as amended August 1, 2002 (deletions and additions indicated).

The 2002 amendment to Rule 32.6(a) speaks to procedure “upon final disposition of the petition.” Specifically, the amendment added the language “[i]f, upon final disposition of the petition, the court finds that all of the claims for relief are precluded for any of the reasons stated in Rule 32.2, it may assess the filing fee, or any portion thereof....” (Emphasis added.) The amendment — the Alabama Supreme Court’s latest expression regarding the procedure for assessing a filing fee at the conclusion of a Rule 32 proceeding — clearly states that the filing fee is waived for indigent petitioners but that the court may choose to impose the fee or not, depending on the particular circumstances of the case, at the conclusion of the proceedings (as provided in § 12-19-70(b)) when “all” the claims have been found to be precluded by Rule 32.2. The converse of this is that when less than all the claims are precluded by Rule 32.2, the filing fee may not be assessed. A contrary interpretation would eliminate all fields of operation for the 2002 amendment to Rule 32.6(a). In other words, absent this interpretation, the 2002 amendment would not differ in meaning from the rule as originally adopted in 1991. The 2002 amendment clearly restricted the authority of the court to impose filing fees. The majority opinion in effect holds that the amendment had no effect and was meaningless. We cannot presume that the Supreme Court in amending Rule 32.6(a) intended that the amendment mean nothing.

“In sum, ‘[i]f the language of [a] statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature [in the plain language of the statute] must be given effect.’ Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting I MED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). ‘[0]nly if there is no rational way to interpret the words stated will we look beyond those words to determine legislative intent.’ DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998). ‘We should turn to extrinsic aids to determine the meaning of a piece of legislation only if we can draw no rational conclusion from a straightforward application of the terms of the statute.’ 729 So.2d at 277.
“In determining whether judicial construction is required, ‘[t]he language of the entire statute under review must be read together and the determination of any ambiguity must be made on the basis of the entire statute.’ Sheffield v. State, 708 So.2d 899, 907 (Ala.Crim.App.1997). ‘Because the meaning of statutory language depends on context, a statute is to be read as a whole.’ Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993). We must also bear in mind that ‘ “[tjhere is a presumption that every word, sentence, or provision was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.” ’ Sheffield v. State, 708 So.2d 899, 909 (Ala.Crim.App.1997) (quoting 82 C.J.S. Statutes § 316 at pp. 551-52 (1953)).”

State v. Adams, [Ms. CR-08-1728, Nov. 5, 2010] — So.3d-(Ala.Crim.App.2010).

To any extent the majority suggests that § 12-19-70(b) and Rule 32.6 are to be read in pari materia to reach a contrary result, I respectfully disagree. As stated above, § 12-1-1 provides that procedural matters in Title 12 are controlled by “any other rule of practice and procedure as may be adopted by the Supreme Court of Alabama” if such a rule exists. Thus, it appears to me that Rule 32.6 controls the filing of a Rule 32 petition and the imposition of the filing fee. The real difference of opinion here concerns the meaning of the word “may” as it is used in the amended Rule 32.6.

“If the application to proceed in forma pauperis is granted, the filing fee shall be waived. If, upon final disposition of the petition, the court finds that all of the claims for relief are precluded for any of the reasons stated in Rule 32.2, it may assess the filing fee, or any portion thereof....”

Rule 32, Ala. R.Crim. P., as amended August 1, 2002 (emphasis added).

The majority interprets “may” to give a circuit court discretion to impose the filing fee for all Rule 32 petitions, including petitions where each claim was precluded from review. I believe that the circuit court’s discretion is limited only to the instance where all the claims are precluded. I base this belief, in addition to the reasons already expressed, on the principle of interpretation “that the special mention of one thing in a law implies the exclusion of the things not mentioned.” Schenher v. State, 38 Ala.App. 573, 576, 90 So.2d 234, 237 (1956); Richardson v. Wells, 582 So.2d 1134, 1136 (Ala.Civ.App.1991) (“It is frequently said in statutory construction cases that the expression of one thing is the exclusion of the other.”). The amended Rule 32.6 made “special mention” or it specially qualified that “[i]f’ all the claims in the petition were precluded by Rule 32.2, then the filing fee “may” be imposed.

Moreover, the amendment, as interpreted in this dissent, is in accord with “ ‘ “the purpose behind the passage of [12-19-70, which] was to discourage the filing of frivolous suits and to insure that the clerks of the circuit courts do not become ‘credit men.’ ” ’ ” Hyde v. State, 950 So.2d 344, 351 (Ala.Crim.App.2006) (quoting Clemons v. State, 55 So.3d 314 (Ala.Crim.App.2003), rev’d on other grounds Ex parte Clemons, 55 So.3d 348 (Ala.2007), quoting in turn De-Gas, Inc. v. Midland Resources, 470 So.2d 1218, 1220 (Ala.1985)). Claims procedurally barred pursuant to Rule 32.2 are frivolous because they do not allow the reviewing court to reach the merits of the claim. These procedural bars are different from a ruling on the merits, which requires the reviewing court’s resolution of a factual dispute. The procedural bars are also distinguishable from Rules 32.3 and 32.6(b), though perhaps less so. Rules 32.3 and 32.6(b) concern sufficiency in pleading. Rule 32.6(b) states that a claim consisting of bare allegations does not warrant further proceedings. Thus, unlike the procedural bars in Rule 32.2, a claim that is insufficiently pleaded could have been reviewed (i.e., it is not precluded by a procedural bar in Rule 32.2) had the petitioner pleaded facts, that if true, would have entitled him or her to relief. However, even an insufficiently pleaded claim might be saved by the filing of an amendment. Rule 32.7(d) gives the reviewing court the discretion to allow for the amendment of a claim that is not sufficiently specific. Therefore, it appears to me that in amending Rule 32.6(a) the Alabama Supreme Court clarified that regarding a Rule 32 petition, the filing fee for indigents is waived except where all the claims are frivolous, i.e., procedurally barred by Rule 32.2; in such a case, the circuit court may impose the filing fee at the conclusion of the proceedings.

Additionally, I disagree with the majority’s assertion that my interpretation of the amended Rule “could encourage inmates to file still more Rule 32 petitions.” 78 So.3d at 1019. My interpretation should discourage the filing of frivolous petitions, i.e., those precluded, while forgiving payment of a filing fee where the petition is not precluded. I, like most appellate judges, am concerned about the waste of judicial resources caused by the large number of frivolous and unnecessary petitions filed and appealed in Rule 32 cases. However, I am constrained to give effect to the words of the rule, even if to do so causes a result that I personally find unappealing.

For the above reasons, I respectfully dissent. I would urge the Alabama Supreme Court to modify Rule 32.6(a) to allow the assessment of the filing fee in cases that are completely without merit, insufficiently pleaded, or are obviously frivolous, even when these claims are not precluded.

      . Because February 10, 2007, fell on Saturday, McCartha's petition, filed on Monday, February 12, 2007, was deemed timely filed. See Rule 1.3(a), Ala. R.Crim. P.

      . The out-of-time appeal from the denial of McCartha’s first Rule 32 petition has been docketed as a separate appeal. See McCartha v. State (No. CR-10-0562).

      . The appeal from the denial of McCartha’s first Rule 32 petition has been assigned docket number CR-10-0562.

      . The circuit court does not obtain jurisdiction to consider a Rule 32 petition until either the filing fee is paid or the petitioner is granted in forma pauperis status.

      . Rule 32.2 provides a list of preclusionary grounds for which a petitioner will not be given relief.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Willie Seth CRAIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC09-1920.
    Supreme Court of Florida.
    Oct. 13, 2011.
    Rehearing Denied Jan. 20, 2012.

      Bill Jennings, Capital Collateral Regional Counsel, Robert T. Strain, Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Scott Andrew Browne, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

Willie Seth Crain, Jr., a prisoner under sentence of death, appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851, Through his postconviction motion, Crain challenges his capital murder conviction and sentence of death arising from the September 1998 murder of seven-year-old Amanda Brown. On direct appeal, this Court evaluated the circumstantial evidence of Crain’s guilt and affirmed his first-degree felony murder conviction, concluding that sufficient evidence existed that Crain killed Amanda in the course of a kidnapping with the intent to inflict bodily harm. In the instant post-conviction appeal, Crain primarily criticizes his counsel’s performance at trial for failing to adequately challenge the State’s circumstantial case. Crain argues that counsel rendered ineffective assistance for stipulating to the fact that DNA matching Amanda’s DNA was derived from blood as opposed to some other source. He also contends that counsel were ineffective for failing to retain and call an expert to challenge the State’s scratch-marks expert. Crain additionally challenges counsel’s presentation of mental health mitigation during the penalty phase. After conducting an evidentiary hearing, the postconviction court denied relief on these claims, as well as summarily denying relief on Crain’s challenge to the rules prohibiting juror interviews. We affirm the postcon-viction court’s denial of all claims.

FACTS AND PROCEDURAL HISTORY

Crain, then a fifty-two-year-old fisherman and crabber, was charged with the kidnapping and first-degree murder of Amanda Brown. On direct appeal, this Court detailed the evidence establishing Crain’s involvement with Amanda’s disappearance. Because this postconviction challenge focuses on the circumstantial evidence, we set forth these facts to place Crain’s arguments in the appropriate context:

[0]n September 9, 1998, Crain’s daughter, Cynthia Gay, introduced Crain to Amanda’s mother, Kathryn Hartman, at a bar in Hillsborough County. Crain and Hartman danced and talked for four hours, until 1:30 or 2:00 in the morning, then went to Hartman’s residence, a trailer located in Hillsborough County, where they remained for approximately thirty minutes. Amanda was spending the night with her father and was not present. However, two photographs of Amanda and some of her toys were visible in the trailer. Before Crain left, Hartman made it clear to Crain that she wanted to see him again.
The next afternoon, September 10, 1998, Crain returned to Hartman’s trailer. Hartman testified that Crain smelled of alcohol and carried a cup with a yellow liquid in it. Amanda was present. Crain began talking to Amanda about her homework. He pulled some money out and told Amanda that if she got her homework right, he would give her a dollar. He eventually gave her two dollars. Crain and Amanda sat at the kitchen table playing games and working on her homework. At some point during the afternoon, Crain became aware that Amanda had a loose tooth. After wiggling the tooth, Crain offered Amanda five dollars to let him pull the tooth out, but she refused. Hartman testified that the tooth was not ready to be pulled out. Crain remained at Hartman’s residence for approximately one hour. Before he left early in the afternoon, Crain accepted Hartman’s invitation to return for dinner that evening.
Crain returned to Hartman’s trailer shortly after 7 p.m. Crain still smelled of alcohol and carried the same or a similar plastic cup with a colored liquid. After dinner, Hartman and Crain played more games with Amanda. At some point, Crain mentioned that he had a large videotape collection and invited Hartman and Amanda to his trailer to watch a movie. Amanda asked if he had “Titanic,” which she stated was her favorite movie. Crain stated that he did have “Titanic” and Amanda pleaded with her mother to allow them to watch the movie. Hartman was initially reluctant because it was a school night, but she finally agreed. Crain drove Hartman and Amanda approximately one mile to his trailer in his white pickup truck.
They began watching the movie in Crain’s living room but were interrupted by a telephone call from Crain’s sister. Crain said he did not get along with his sister and asked Hartman to speak to her. At the conclusion of a twenty- to twenty-five-minute phone conversation with Crain’s sister, Hartman found the living room unoccupied. Hartman opened a closed door at the rear of the trailer without knocking, and found Amanda and Crain sitting on the bed in Crain’s bedroom, watching the movie “Titanic.” Both were dressed and Amanda was sitting between Crain’s sprawled legs with her back to Crain’s front. Crain’s arms were around Amanda and he appeared to Hartman to be showing Amanda how to work the remote control. Hartman testified that although she was not overly concerned about what she observed at that time, she nevertheless picked Amanda up and sat Amanda beside her on the bed. Crain, Hartman, and Amanda then watched the movie together in Crain’s bedroom. Crain testified at trial that they watched the movie in his bedroom because it was the only air-conditioned room in the trailer.
At some point in the evening, Amanda and Hartman used Crain’s bathroom together. While they were in the bathroom, Hartman did not notice Amanda bleeding from any location that Hartman could observe. Hartman did notice a blue cover on the back of the toilet seat. Amanda did not use the bathroom at any other time that evening.
At another point in the evening, Hartman asked Crain if he had any medication for pain. Crain offered her Elavil and Valium. He also offered her some marijuana, which she declined. Crain told Hartman that the Elavil would “really knock the pain out” and would make her sleep for a long time. Hartman elected to take five, five-milligram Valium tablets. Crain took one Valium tablet.
Eventually, Hartman decided that it was time to leave. Crain drove Hartman and Amanda back to their residence and accompanied them inside. Amanda took a shower. While checking on Amanda during the shower and helping her dry off and get ready for bed, Hartman did not notice any sores or cuts on Amanda’s body. According to Hartman, Crain suggested that Amanda should not go to sleep with wet hair, so Crain blow-dried Amanda’s hair in Hartman’s bathroom without Hartman present. According to Hartman, when Amanda went to sleep in Hartman’s bed around 2:15 a.m., the loose tooth was still in place and it was not bleeding.
According to Hartman, she told Crain, who appeared to be intoxicated at that time, that he could lie down to sober up but she was going to bed. The time was approximately 2:30 a.m. Within five minutes of Hartman going to bed, Crain entered Hartman’s bedroom and lay down on the bed with Hartman and Amanda. Hartman testified that she neither invited Crain to lie in her bed nor asked him to leave. Crain was fully clothed and Amanda was wearing a nightgown. Amanda was lying between Hartman and Crain.
Penny Probst, a neighbor of Hartman, testified that at approximately 12 midnight on September 10-11,1998, she saw a white truck parked immediately behind Hartman’s car in Hartman’s driveway. In the early morning hours of September 11, Probst observed the truck parked at the side of Hartman’s residence with the lights on and the engine running. Probst heard the truck leave after about five minutes.
Hartman slept soundly through the night. When she awoke in her bed alone the next morning, she discovered that Amanda was missing. Hartman testified her alarm clock read 6:12 a.m. when she awoke. Hartman immediately called Crain on his cell phone. At that time, he was at the Courtney Campbell boat ramp in Hillsborough County loading his boat. He told Hartman that he did not know where Amanda was. Hartman then called the police and reported Amanda’s disappearance.
At trial, the State presented the testimony of fisherman Albert Darlington, who witnessed Crain towing his boat into the Courtney Campbell loading area at approximately 6:15 a.m. on September 11, 1998. Darlington testified that Crain pulled up to the boat ramp and backed his boat trailer and truck into the water until the truck’s front tires were halfway submerged. Crain then got out of his truck and boarded his boat wearing what appeared to be a two-tone maroon shirt and dark slacks, and carrying what appeared to be a rolled-up item of clothing. Crain unhooked his boat and launched it in an overall “odd” manner. Darlington further testified that in the eighteen months prior to Amanda’s disappearance, on two occasions Crain told Darlington that Crain had the ability to get rid of a body where no one could find it.
At around 8:30 a.m. on September 11, Detective Mike Hurley located Crain in his boat in Upper Tampa Bay. Crain was dressed in “slickers” (rubber pants fisherman wear over their clothes), a blue t-shirt, and loafers. Crain and Hurley returned to the boat ramp in Crain’s boat. On the ride back, Hurley noticed a small scratch on Crain’s upper arm. At the boat ramp, Crain removed his slickers, revealing jeans with the zipper down. Hurley took Crain to the police station for questioning. Crain was cooperative but denied having anything to do with Amanda’s disappearance.
At the police station, Detective A1 Bracket interviewed Crain. Crain told Bracket that he left Hartman’s house alone at about 1:30 in the morning, went home and accidentally spilled bleach in his own bathroom. Crain claimed that he did not like the smell of bleach, so he spent four hours cleaning his bathroom from about 1:30 to 5:30 in the morning. Later in the same interview, Crain said he cleaned his bathroom with bleach, as was his custom, then cleaned the rest of the house until 5:30 a.m., at which time he left to go crabbing.

Crain v. State, 894 So.2d 59, 63-65 (Fla.2004) (footnotes omitted).

The record reveals that during the questioning, Bracket noticed multiple scratch marks on Crain’s arms. Thereafter, photographs of Crain’s body were taken. A forensic pathologist, Dr. Russell Vega, testified at trial that in his opinion, all but two of the scratch marks were “consistent with” having been caused by the fingernails of a seven-year-old child and one cluster of three scratch marks was “somewhat more likely” to have been caused by fingernails than those depicted in the other photographs. He further testified that one cluster of small gouges on Crain’s arm was “somewhat suggestive of ... having been caused by a small grasping hand” with spacing consistent with the hands of a seven-year-old child.

On direct appeal, we further explained:

During a search of Crain’s residence, Bracket noticed the strong smell of bleach and recovered an empty bleach bottle. Bracket testified that there were obvious signs of grime and dirt around the edges of the bathroom sink. A blue fitted rug that would go around the base of the toilet was found in Crain’s dryer. Another detective applied Luminol, a chemical that reacts both with blood and with bleach, to Crain’s bathroom. The detective testified that the floor, the bathtub, and the walls “lit up.”
Bracket also recovered two pieces of toilet tissue from the inside rim of Crain’s toilet and observed what appeared to be a small blood stain on the seat of the toilet. The tissue pieces, the toilet seat, and the boxer shorts that Crain was wearing on the morning of September 11, 1998, were collected and analyzed for DNA evidence. A forensic scientist for the Florida Department of Law Enforcement (FDLE) testified at trial that two blood stains were found on the toilet seat, one blood stain was found on one of the pieces of toilet tissue, and one blood stain was found on the boxer shorts. The FDLE forensic scientist testified that the blood stain on the boxer shorts and one of the stains from the toilet seat contained DNA consistent with the DNA extracted from personal items belonging to Amanda Brown. The second stain on the toilet seat and the stain on the tissue contained DNA consistent with a mixture of the DNA profiles of Amanda and Crain. Testimony established that the probability of finding a random match between the DNA profile on the boxer shorts and Amanda’s known DNA profile is approximately 1 in 388 million for the Caucasian population.
Detective Hurley supervised an extensive, two-week search for Amanda in Upper Tampa Bay, the land surrounding Upper Tampa Bay (including the Courtney Campbell Causeway), and the land area surrounding the Crain and Hartman residences. Amanda’s body was never found. The maroon shirt and dark pants that Darlington saw Crain wearing on the morning of September 11,1998, also were never recovered.
At trial, the State introduced the testimony of Linda Miller, Maryann Lee, and Frank Stem. Miller and Lee, who were neighbors of Crain’s daughter, Gay, testified about a conversation with Crain that occurred at Gay’s home on the first Saturday after Amanda’s disappearance. Miller and Lee both testified that Miller said to Crain, “Don’t worry, you don’t have anything to worry about,” and “Just remember, you didn’t do anything, you didn’t hurt that little girl.” According to the testimony of Miller and Lee, Crain responded, “Yes, I did do it; yes, you’re right, I didn’t hurt her, I didn’t do anything.” Gay testified that Crain said, stuttering, “yes, I did ... did ... didn’t do it; yes, you’re right, I didn’t hurt her.”
Frank Stem, Crain’s friend and in-law, testified that about one month prior to Amanda’s disappearance, Stem helped Crain lay crab traps in a “special” location. At that time, Crain told Stem that other crabbers would steal the crab traps if they knew of the spot. After Amanda disappeared and during a conversation regarding competing crabbers finding his crab traps, Crain told Stem that if Stem revealed the location of the traps “that it could bury him,” meaning Crain, or that Stem had enough “evidence to bury him.”
Crain then testified in his defense and denied that he was involved in Amanda’s death. He stated that he last saw Amanda while she lay sleeping in her mother’s bed in the early morning hours of September 11,1998.
On the first-degree murder charge in count I, the trial court instructed the jury on the dual theories of premeditated murder and felony murder based on kidnapping “with intent to commit or facilitate the commission of homicide or to inflict bodily harm upon the victim.” On the kidnapping charge in count II, the court instructed the jury that the State had to prove that Crain acted “with intent to commit or facilitate the commission of a homicide.” The jury found Crain guilty of first-degree murder on a general verdict form. The jury also found Crain guilty of kidnapping as charged. In the penalty phase, the jury unanimously recommended the death sentence. The trial court found three aggravators: (1) prior violent felonies (great weight), (2) the murder was committed during the course of a kidnapping (great weight), and (3) the victim was under the age of twelve (great weight). The court found no statutory mitigators and [several] nonstatutory mitigators, and imposed the death sentence.

Crain, 894 So.2d at 65-67 (footnotes omitted).

This Court affirmed Crain’s conviction for first-degree felony murder and sentence of death as to count I in the indictment. Id. at 78. With respect to his sentence and conviction for kidnapping with the intent to commit or facilitate commission of a homicide, count II of the indictment, the Court reversed Crain’s conviction because competent, substantial evidence did not exist to support the jury verdict as charged in the indictment. Id. at 76. As a remedy, the Court remanded to the trial court to enter judgment for false imprisonment and to resentence Crain accordingly. Id.

In September 2006, Crain filed a motion for postconviction relief, raising a total of nine claims. Following a status conference, the postconviction court conducted an evidentiary hearing on Crain’s ineffective assistance of counsel claims. The postconviction court subsequently denied relief on all nine claims.

ANALYSIS

Crain appeals to this Court the denial of his motion for postconviction relief, expressly raising five claims. Crain raises three ineffective assistance of counsel claims, asserting that counsel were ineffective for failing to (1) challenge the State’s circumstantial case as it related to DNA evidence introduced at trial and stipulated to as being derived from blood; (2) call an expert to challenge the State’s expert witness, who testified as to thé origin of scratch marks on Crain’s body; and (3) adequately investigate, prepare, and present available mitigation and provide competent expert psychological evaluation and testimony. In his fourth claim, Crain argues that the rules restricting trial counsel’s ability to interview jurors are unconstitutional. As to his final claim, he asserts that the cumulative effect of the errors and omissions of trial counsel warrants relief. We address each claim in turn, beginning with Crain’s ineffective assistance of counsel claims.

Ineffective Assistance of Counsel Claims

The first three claims raise issues relating to ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both that trial counsel’s performance was deficient and that the deficient performance prejudiced the defendant so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish the deficiency prong under Strickland, the defendant must prove that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). Under the prejudice prong, “Strickland, places the burden on the defendant, not the State, to show a ‘reasonable probability’ that the result would have been different.” Wong v. Belmontes, — U.S.-, 130 S.Ct. 383, 390-91, 175 L.Ed.2d 328 (2009) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 5.Ct. 2052.

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

The State’s Circumstantial Case

In his first claim, Crain contends that trial counsel were ineffective for failing to challenge the State’s circumstantial case as it related to several pieces- of DNA evidence introduced at trial. Crain’s contention focuses on the effects of counsel’s stipulation that DNA stains consistent with Amanda’s DNA, which were found on Crain’s boxer shorts and inside Crain’s bathroom following Amanda’s disappearance, came from bloodstains rather than from another source of DNA, such as urine, saliva, or tears. Specifically, Crain argues that no scientific testing conclusively established that the stains collected and tested were blood, yet the stains were repeatedly referred to as bloodstains during trial. Crain further argues that there was no independent DNA testing or expert testimony offered to challenge the DNA evidence presented and that counsel should have retained an expert to test or examine the DNA evidence and educate the jury about the lack of conclusive testing to establish that the evidence was blood, the potential alternative sources of DNA, the possible cross-contamination of evidence collected, and the lack of substrate control testing. After conducting an evidentiary hearing on this claim, the postconviction court denied relief under both prongs of the Strickland, test.

The facts underlying this claim show that at trial, law enforcement officials testified that after Amanda disappeared, they recovered a piece of toilet tissue from the inside rim of Crain’s toilet and observed what appeared to be two small bloodstains on the seat of the toilet. Thereafter, the piece of tissue (State’s Exhibit 18), the toilet seat (State’s Exhibit 17(A)), and the boxer shorts Crain was wearing on the morning of September 11, 1998 (State’s Exhibit 46), were collected and analyzed for DNA evidence. The stains were first tested by the Florida Department of Law Enforcement (FDLE) and then sent to LabCorp, an independent testing facility in North Carolina. Before the State offered the testimony of Dr. Theodore Yeshion, a forensic scientist for FDLE, to interpret these findings, the trial court read the following stipulation to the jury:

The State of Florida and the defendant, Willie Crain, and his undersigned attorneys, hereby stipulate and agree that the bloodstain found on the toilet seat in Willie Crain’s home, State’s Exhibit 17(A), stain one, has the same DNA profile as the DNA profile found on two items represented as belonging to Amanda Brown....
The State and the defense further stipulate that the bloodstain found on the boxer shorts, State’s Exhibit 46, taken from Willie Crain on September 11, 1998, has the same DNA profile as the DNA profile found on two items represented as belonging to Amanda Brown....

(Emphasis added.) The stipulation was agreed upon prior to trial, during which defense counsel informed the court that they had consulted with a DNA expert, Dr. William Shields, who had reviewed all the documentation and had given counsel advice. The court asked Crain whether he agreed with this stipulation, and Crain acknowledged his agreement with it and that he was not coerced.

Subsequently, Dr. Yeshion testified that he conducted a preliminary visual examination of the toilet seat, State’s Exhibit 17(A). However, to determine whether reddish-brown stains found on that item were in fact blood, he performed a “presumptive blood test,” or “phenolphthalein” test, which is “a chemical presumptive test that simply indicates that blood may be present.” Dr. Yeshion stated that after conducting this test, he was able to find two areas on the toilet seat that contained blood. Dr. Yeshion also tested the boxer shorts recovered from Crain’s person (State’s Exhibit 46) for the presence of blood and noted that he found very a small bloodstain on them. With respect to the toilet tissue recovered, Dr. Yeshion testified that it was very difficult to detect any obvious bloodstains but after examining a smaller, darker area microscopically, he performed the phenolphthalein test on that stain and found a very small amount of blood on the tissue. Dr. Yeshion concluded that the bloodstain on the boxer shorts and one of the stains from the toilet seat contained DNA consistent with the DNA extracted from personal items belonging to Amanda. The second stain on the toilet seat and the stain on the tissue contained DNA consistent with a mixture of the DNA profiles of Amanda and Crain.

When Crain took the stand in his own defense, he appeared to offer an innocent explanation for the presence of blood inside his bathroom. Crain explained that while he was inside Hartman’s trailer on the afternoon of September 10, he observed Amanda wiggling her tooth around because “it was ready to fall out.” He testified that later in the evening, when Hartman and Amanda returned to Crain’s trailer, Amanda was again wiggling her tooth and noted that the tooth was bleeding and getting on her finger, causing Crain to pull off toilet paper to prevent Amanda from getting blood on her hands. According to Crain, Amanda used his bathroom once with her mother and then once by herself for around six to eight minutes. Crain also stated that he kept his underwear on the back of his toilet and put those clothes on before going crabbing in the morning. Crain finally explained that he suffers from hemorrhoids and bleeds almost all the time when he tries to use the bathroom.

At the evidentiary hearing, Crain’s counsel testified that he considered either challenging the validity of the DNA results or providing a reasonable explanation for the presence of the DNA evidence that would be consistent with pretrial statements Crain made to the media and law enforcement officials. According to trial counsel, Crain had offered a reasonable explanation for the presence of Amanda’s blood inside his residence in pretrial statements to the media (to a local reporter and to producers of a national talk show), and Crain insisted on testifying to the same during trial. Thus, it was counsel’s informed strategy to not contest the DNA results because they “were to some extent locked in by [Crain’s] previous statements,” and counsel did not want to present a position inconsistent to that which Crain had previously stated or would have testified in the future. Counsel further explained that the DNA stipulation was entered into only after consulting with Dr. Shields, the retained confidential DNA expert, and with Crain, who willingly signed the stipulation. In fact, prior to the stipulation, counsel provided Dr. Shields with copies of lab reports, bench notes, and any discovery related to the DNA evidence in an effort to challenge the State’s results. However, Dr. Shields did not provide any information to refute the lab findings, did not find any evidence of contamination during the testing process, did not raise a concern that the failure by either the FDLE lab or LabCorp to conduct a substrate control test in this case affected the validity or reliability of the test results, and did not advise counsel that a description of the biological substance on the defendant’s underwear as blood was scientifically inaccurate or misleading.

Notwithstanding counsel’s retention of a confidential DNA expert, who reviewed the State’s results prior to the stipulation, Crain contends that counsel was ineffective for failing to challenge the State’s circumstantial case, and more specifically, the conclusion that the DNA substance matching Amanda’s DNA was blood without independent testing. After finding the testimony of trial counsel to be “very credible” and that Crain’s stipulation at trial was entered into with his full knowledge and consent, the postconviction court determined that Crain failed to establish that trial counsel performed deficiently in stipulating to the DNA evidence as blood or in failing to challenge the DNA evidence or to request that independent testing be conducted in this case. In making this determination, the postconviction court noted that trial counsel considered alternative courses of action and then made a reasonable strategic decision for the stipulation and for not challenging the evidence or requesting an independent analysis. We accept the postconviction court’s findings as supported by competent, substantial evidence. See Parker v. State, 8 So.3d 974, 980 (Fla.2009) (“As long as the trial court’s findings are supported by competent substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses....” (quoting Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997))).

As we have routinely stated, “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Patton v. State, 878 So.2d 368, 373 (Fla. 2004) (quoting Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000)). Prior to entering into the stipulation, counsel considered attacking the validity of the DNA evidence by retaining a confidential expert. When the expert failed to provide counsel with a basis for questioning the State’s test results, the defense sought to establish an innocent, plausible explanation for the presence of blood found on Crain’s boxer shorts and inside his bathroom. Not only was this a reasonable alternative course in light of the retained expert’s conclusions, but this decision was also consistent with Crain’s prior statements to the media, Crain’s continued insistence that if blood was found inside his bathroom or on his clothes, it was due to Amanda’s loose tooth, and Crain’s testimony to this effect at trial. Cf Carroll v. State, 815 So.2d 601, 613 & n. 14 (Fla.2002) (concluding that trial counsel’s decision not to retain a DNA expert was reasonably strategic where counsel spoke with several DNA experts in preparation for dealing with the DNA evidence, the DNA evidence “was pretty solid,” the FBI lab was under no scrutiny at the time, and counsel sought to exclude the evidence during trial and testified that the retention of an expert would have done the defendant a disservice). Moreover, when the trial judge questioned Crain about this stipulation at trial, he acknowledged that his agreement with it was not coerced. Under these circumstances, we conclude that counsel’s decision to stipulate to the DNA evidence as being derived from blood was not deficient; rather, the record supports the conclusion that it was a well-informed and strategic decision made after consulting an expert and considering alternative courses of action.

Even if we were to assume that counsel’s performance was deficient, Crain cannot establish prejudice under Stride-land. It has never been contested whether the DNA found on Crain’s boxer shorts and inside his bathroom matched Amanda’s DNA; rather, Crain’s postconviction claim is predicated only upon counsel’s decision to stipulate that the DNA was blood. In essence, Crain alleges that if counsel had not entered into the DNA stipulation and had adequately investigated ways in which to challenge the State’s DNA evidence, the jury would have heard testimony to the effect that the DNA could have been derived from a variety of sources, not just blood, and that possible problems with the handling of the DNA evidence during testing existed.

During the evidentiary hearing, Crain’s sole expert on this issue, Dr. Elizabeth Johnson, testified that presumptive blood testing, like the testing Dr. Yeshion performed on the DNA evidence in this case, does not conclusively establish that the source of DNA is blood. Dr. Johnson explained that substrate control testing, which Dr. Yeshion did not undertake in this case, would have eliminated the possibility that the DNA was derived from a source other than blood, such as saliva, tears, nasal or vaginal secretions, or urine. She also testified as to her concerns regarding possible cross-contamination, but because more recent testing of the items did not yield any favorable results, Dr. Johnson could not say whether the DNA’s source was anything other than blood. Based on the information provided to her, Dr. Johnson finally testified that she was unable to “evaluate whether there was or wasn’t contamination.”

At the evidentiary hearing, Dr. Yeshion defended his use of the phenolphthalein presumptive test and noted that in his thirty-five years of using that test, he had not found “anything other than blood that reacts to the phenolphthalein test when used in the proper sequence” and had no real problem “going right to DNA and saying that the DNA [he was] obtaining is a DNA result because of the biological evidence which is identified through phenolphthalein and believed to be blood.” Dr. Yeshion also explained that the proper safety protocols were in place to detect and avoid cross-contamination and that there was no indication that contamination occurred in this case. Dr. Martin Tracey, a DNA analyst and an expert in the field of population genetics presented by the State, testified that in the late 1990s, very few labs implemented substrate control testing, that such controls were not recommended as being necessary at the time, and that he was unaware of any guidelines requiring the use of substrate controls for forensic DNA analysis to be considered reliable. Dr. Tracey further noted that the lack of substrate control testing did not affect the results in this case.

In analyzing prejudice, the postconviction court determined that the State’s experts, Drs. Tracey and Yeshion, were credible and found Dr. Johnson’s testimony to be “essentially credible” but that much of it was “based on mere speculation.” These findings are supported by competent, substantial evidence. Dr. Johnson was unable to testify that despite Dr. Yeshion’s failure to use conclusive blood testing, the source of the DNA evidence in this case was derived from anything other than blood or that cross-contamination actually occurred. On the other hand, Drs. Yeshion and Tracey found no problems with the DNA testing conducted in this case. The postconviction record does not disclose any definitive evidence of invalid or even questionable DNA test results, and therefore Crain has failed to demonstrate prejudice.

Because Crain has established neither deficiency nor prejudice, we deny relief on this claim.

Failure to Retain a Rebuttal Expert

Crain next argues that trial counsel were ineffective for failing to retain an independent expert to challenge the testimony elicited from the State’s expert, Dr. Russell Vega, a forensic pathologist who rendered an opinion as to the origin of certain scratch and gouge marks appearing on Crain’s body following Amanda’s disappearance.

To place this claim in context, at trial it was revealed that during police questioning of Crain on September 11,1998, Detective A1 Bracket noticed multiple scratch marks on Crain’s arms and asked Crain how he received them. Crain claimed that the scratches occurred while he was lifting crab traps, but Crain became defensive when Bracket asked him to demonstrate how the scratch marks were inflicted. Thereafter, several photographs of Crain’s body were taken. To interpret the origin of these scratch marks as depicted in the photographs, the State presented the testimony of Dr. Vega. On direct examination, Dr. Vega testified that Crain’s scratch marks were probably inflicted within a few hours to a day before the photos were taken, but he could not identify the origin of the scratch marks with any certainty. In his opinion, all but two of the scratch marks were “consistent with” having been caused by the fingernails of a seven-year-old child and one cluster of three scratch marks was “somewhat more likely” to have been caused by fingernails than those depicted in the other photographs. He further opined that one cluster of small gouges on Crain’s arm was “somewhat suggestive of ... having been caused by a small grasping hand” with spacing consistent with the hands of a seven-year-old child.

Dr. Vega made considerable concessions on cross- and redirect examination. On cross, Dr. Vega conceded his inability to reach any conclusion or opinion as to whether Crain’s scratches or wounds were caused by human fingernails. The doctor admitted that the cause of the scratches would also be consistent with crab traps, mechanisms with wire meshing, and to a lesser extent, bushes, twigs, or things of that nature, as well as other innumerable inanimate objects. Based on cross-examination questions, Dr. Vega emphasized that he was unable to narrow down that any two of the scratches occurred at exactly the same. time. Finally, on redirect, Dr. Vega admitted that he could not reach an opinion within a reasonable degree of medical certainty as to the origin of Crain’s injuries.

In support of this claim, postconviction counsel called Dr. Ronald Wright, another forensic pathologist, to show the type of expert opinion that trial counsel could have presented during the guilt phase. In Dr. Wright’s view, some of Crain’s injuries were “quite old” and made at least several days before the photographs were taken; some were “basically inconsistent with fingernail scratches, unless somebody had [his or her] fingernails cut into a V so that you would have a very narrow fingernail mark”; and the scratch marks depicted in two of the photographs were the only injuries that could not be excluded as fingernail marks even though they lacked “the characteristic curvilinear feature.” However, Dr. Wright also acknowledged the following: he did not disagree with Dr. Vega’s written report concerning the scratch marks; his own opinion was in accord with the opinions expressed in Dr. Vega’s report; Dr. Vega did not mislead the jury as to the nature or limitations of his opinion; he did not have any “real problems with” Dr. Vega’s testimony because “at least a couple of’ the scratch marks could have been caused by fingernails; he could not rule out the possibility that fingernails caused Crain’s scratch marks, only that it was, in his view, unlikely; and he agreed that there was nothing outside the permissible mode of expression within forensic pathology for Dr. Vega to give his opinion that Crain’s scratch marks were consistent with human fingernails. In fact, Dr. Wright’s main criticism of the trial testimony appeared to be that counsel never asked Dr. Vega whether his opinion was based upon a reasonable degree of medical certainty, but the trial record indicates that on redirect, Dr. Vega stated that his opinion was not within a reasonable degree of medical certainty.

At the evidentiary hearing, trial counsel explained the reason for choosing not to retain an expert to challenge Dr. Vega’s conclusions. According to counsel, before trial, the defense deposed Dr. Vega, during which Dr. Vega’s assessment of the cause of the scratch marks was equivocal — they could have been caused by fingernails but could have also been caused by a variety of other objects consistent -with Crain’s occupation as a crabber. In his deposition testimony, Dr. Vega admitted that he was unable to reach any conclusions as to the precise origin of the scratch marks, which he later admitted at trial. Based on the nature of Dr. Vega’s deposition testimony, counsel did not recall contemplating the retention of an expert to rebut Dr. Vega’s findings because the doctor’s testimony was not damaging.

In denying this claim, the postcon-riction court found trial counsel’s testimony to be credible and that counsel’s actions in not retaining an expert for the guilt phase were based on a reasonable strategic decision. While Crain contends that his trial counsel should have further challenged Dr. Vega’s testimony through the use of a defense expert, the United States Supreme Court has recognized that “Strickland ... permits counsel to ‘make a reasonable decision that makes particular investigations unnecessary.’” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052); see id. at 789 (acknowledging that “it would be well within the bounds of a reasonable judicial determination for the state court to conclude that defense counsel could follow a strategy that did not require the use of experts regarding” a challenge to the prosecution’s blood evidence).

In the present case, Crain cannot establish deficient performance for failure to retain an expert witness when trial counsel made a reasonable decision to confront and challenge the State’s own witness at trial through cross-examination, particularly since counsel deposed the State’s expert in advance of trial and, while doing so, obtained significant concessions regarding the nature of the scratch-marks testimony. See Smithers v. State, 18 So.3d 460, 470-71 (Fla.2009) (concluding that trial counsel’s decision to rely solely on cross-examination of State’s expert was reasonable since expert’s testimony was consistent with the defense’s argument); Belcher v. State, 961 So.2d 239, 250-51 (Fla.2007) (holding that it was a reasonable strategic decision for trial counsel to decline retaining an expert to rebut the State’s expert when at trial, counsel rigorously challenged the State’s expert and attempted to confront the evidence not through a defense expert, but by vigorously challenging the State’s expert at trial).

Standing alone, Dr. Vega’s testimony on direct examination would have been highly unfavorable to the defense. However, trial counsel vigorously attacked Dr. Vega’s testimony on cross-examination by obtaining a concession that he was unable to reach a definitive conclusion regarding whether Crain’s scratches were caused by human fingernails, that Crain’s injuries were also consistent with being caused by objects associated with Crain’s profession as a crabber, and that he could not determine if all of Crain’s injuries occurred simultaneously. Dr. Vega also acknowledged that his opinion was not within a reasonable degree of medical certainty. Dr. Vega’s trial testimony was consistent with his deposition testimony that trial counsel obtained prior to trial.

As the United States Supreme Court has recently recognized, “Strickland does not enact Newton’s third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense” because “[i]n many instances cross-examination will be sufficient to expose defects in an expert’s presentation.” Harrington, 131 S.Ct. at 791. In accord with that logic, the record is clear that in the present case, trial counsel deposed Dr. Vega before trial, and during that deposition, counsel obtained significant concessions. Thereafter, trial counsel made a reasonable strategic decision to attack the scratch-marks evidence not through the use of a rebuttal expert, but rather through a comprehensive challenge of the State’s expert. Thus, Crain cannot premise his ineffectiveness claim on trial counsel’s reasonable strategic decision made after deposing the State’s expert.

Even if we were to assume deficiency, Crain has not demonstrated prejudice. While it is true that Dr. Wright opined that it was unlikely fingernails caused Crain’s scratch marks, he was also unable to rule fingernails out as a cause of the scratch marks. Additionally, Dr. Wright admitted that he had no “real problems” with Dr. Vega’s trial testimony because in his view, several of the scratch marks could have been caused by fingernails and it was not unprofessional or outside the normal permissible mode of expression within forensic pathology for Dr. Vega to indicate that Crain’s scratch marks were consistent with being caused by human fingernails. Moreover, Dr. Vega even acknowledged at trial that he could not narrow down whether any two of the injuries occurred at exactly the same time.

In support of prejudice, Crain further alleges that during guilt-phase closing arguments, the prosecutor improperly blurred the distinction between the cause of his scratch marks as being “consistent with” fingernails and actually being “caused by” fingernails with the following statements:

The Prosecutor: Let me show you State’s Exhibit No. 31, which are the gouge marks, they’ve been described as gouge marks, four of them; three and then a thumb.
And you can see them there, I’m gonna tilt the picture, one, two, three and down here a thumb. Dr. Vega said they are suggestive of a little girl’s fingernails; because of the parallel nature and the spacing, it’s consistent with the fingernails of a seven year old girl.
And when you look at these injuries and you look at the hand of Amanda Brown, you can vision, you can see her fingernails digging into this man’s elbow as she fought for [her] life — as he took her life in that bathroom.
You can see it in this picture. You can see the claw that she’s scratching with, all of 45 pounds against this man. State’s 32(A), three more parallel scratches.
Can Dr. Vega rule these out as coming from any other source? Absolutely not. But look at them in the context, ladies and gentlemen, there’s another three coming down the back of the arm occurring roughly the same time, according to Dr. Vega, as the gouge on the elbow.

(Emphasis added.) Contrary to Crain’s contention, the prosecutor’s statements regarding Crain’s scratch marks were fair comments based upon Dr. Vega’s testimony, and thus no prejudice resulted. See Wade v. State, 41 So.3d 857, 869 (Fla.2010) (“The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.” (quoting Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985))), cert. denied, — U.S. -, 131 S.Ct. 1004,178 L.Ed.2d 835 (2011).

Crain also cites to this Court’s discussion of Dr. Vega’s testimony throughout its direct-appeal decision to support his prejudice claim, see Crain, 894 So.2d at 65, 72, 74-75, specifically noting “this Court’s repeating of the State’s keen emphasis on the scratch marks upon direct appeal.” Considering the testimony of Dr. Vega at trial and comparing it with the testimony that Crain now offers through Dr. Wright, the differences are not so substantial so as to undermine our confidence in the outcome of Crain’s guilt-phase proceeding. Moreover, our references to Dr. Vega’s testimony on direct appeal cannot be considered in isolation of our analysis of all the circumstantial evidence that points to Crain’s culpability for Amanda’s murder, which stands as strong evidence of his guilt.

In light of the above, we affirm the postconviction court’s denial of relief on this claim.

Penalty-Phase Investigation and Presentation

In his final ineffectiveness argument, Crain essentially raises two subclaims. He first argues that counsel failed to adequately investigate, prepare, and present available mitigation. Crain also contends that counsel failed to supervise the administration of available mental health tests and provide a competent expert psychological evaluation and testimony. Crain generally alleges that these deficiencies prejudiced his penalty-phase proceeding. For the reasons that follow, we deny relief on all aspects of this claim.

To properly address this claim, we first review the relevant testimony. The trial record discloses that Dr. Robert Berland, a board-certified forensic psychologist and the defense’s sole penalty-phase expert, evaluated Crain in preparation for the penalty phase and testified at trial. During the penalty phase, Dr. Berland acknowledged that he administered to Crain the original versions, as opposed to more recent versions, of the Wechsler Adult Intelligence Scale (WAIS) and Minnesota Mul-tiphasic Personality Inventory (MMPI). Based on his MMPI testing, Dr. Berland found that Crain suffered from delusional paranoid thinking. Dr. Berland used the WAIS to assess impairment for brain injury, and the WAIS indicated that Crain was not mentally retarded and had an overall IQ of 85. In Dr. Berland’s view, Crain was psychotic, and he also had some reason to believe that Crain suffered from impaired functioning due to brain injury. Dr. Berland further opined that at the time of his offense, Crain suffered from an extreme mental or emotional disturbance and that Crain’s capacity to conform his conduct to the requirements of law was substantially impaired. At trial, the State’s clinical and forensic psychiatric expert, Dr. Barbara Stein, disagreed with Dr. Berland’s assessment and criticized his use of the original WAIS because it was outdated and could not be used to evaluate brain injury. The jury unanimously recommended a sentence of death.

During postconviction proceedings, Dr. Berland explained the purpose behind using original versions of the WAIS and MMPI. According to Dr. Berland, Crain’s intelligence was not an issue, and he was more concerned with preliminary evidence of brain injury. Consequently, Dr. Ber-land utilized the original WAIS, which neu-ropsychological research indicated was a better measure of impairment from brain injury than the test’s subsequent versions. Dr. Berland also explained that the original and second editions of the MMPI were now proven to be clinically and statistically equivalent and a larger research history supported using the original MMPI at the time of Crain’s trial. Further, during the penalty phase, Dr. Berland testified consistent with his postconviction testimony regarding his use of the original WAIS. At trial, he stated that the original WAIS was a better measure of impairment for brain injury and had a multitude of research dating back to 1950 supporting its usage for such an assessment. Dr. Berland also testified that the revised and third editions of the WAIS had considerably less research supporting their use in this regard.

At the evidentiary hearing, trial counsel testified to being aware of Dr. Berland’s use of the original versions of the tests and acknowledged that the State’s penalty-phase expert disagreed with the validity of Dr. Berland’s testing procedures. However, counsel recalled the following: no one definitively established whether the tests used were outdated; Dr. Berland was comfortable using such tests and found them to be legitimate assessment tools; and Dr. Berland had been a doctor for a long period of time and was regarded as being good at his profession.

In denying this claim, the postconviction court determined that counsel did not render deficient performance, and in doing so, made extensive findings of fact and credibility:

First, the Court finds the testimony of both Dr. Berland and [trial counsel] to be credible. Consequently, the Court finds counsel did not perform deficiently for failing to establish evidence of Defendant’s brain damage through neurop-sychological testing. Defense counsel made a strategic decision to obtain evidence of brain damage through PET scan testing and when that failed, to present the testimony of Dr. Berland. [Trial counsel] also relied on the opinion and recommendation of his expert, Dr. Berland. The Court further finds Defendant has failed to show counsel performed deficiently for presenting the testimony of Dr. Berland during the penalty phase. Dr. Berland explained his reasons for using the older versions of the WAIS and MMPI and adequately expressed his opinions and the bases for those opinions; [trial counsel] was not ineffective for relying on Dr. Berland’s evaluations and opinions. See Darling v. State, 966 So.2d 366, 377 (Fla.2007) (“This Court has established that defense counsel is entitled to rely on the evaluations conducted by qualified mental health experts, even if, in retrospect, those evaluations may not have been as complete as others may desire.”); Sexton v. State, 997 So.2d 1073, 1085 (Fla.2008) (“The fact that Dr. McCraney [postconviction expert], some seven years later, disagreed with the extent or type of testing performed, or the type of mitigation presented, does not mean that trial counsel was deficient at trial.”). Additionally, much of the information provided by Dr. [Mark] Cunningham was cumulative where Dr. Berland informed the jury about Defendant’s alcohol and substance abuse, his history of psychiatric care and counseling, good behavior in prison, unstable home life, substantial physical, sexual and emotional abuse during childhood, witnessing of disturbing sex, and lack of education and social training. See 966 So.2d at 377 (“[T]his Court has held that even if alternate witnesses could provide more detailed testimony, trial counsel is not ineffective for failing to present cumulative evidence.”). Consequently, the Court further finds trial counsel performed a reasonable investigation into Defendant’s mental health and background as required. See Strickland v. Washington, 466 U.S. 668, 691 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984) (“[CJounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”). As such, Defendant has failed to show counsel performed defi-ciently under Strickland.

After reviewing the sentencing order, which found three aggravating circumstances and various nonstatutory mitigation circumstances, noting the jury’s unanimous recommendation, and considering the additional mitigating testimony presented during the evidentiary hearing, the postconviction court further found that there was no prejudice.

On appeal, Crain essentially challenges the postconviction court’s credibility determinations and, more specifically, the weight given to Dr. Berland’s testimony. However, this Court is “highly deferential to the trial court’s judgment on the issue of credibility,” Archer v. State, 934 So.2d 1187, 1196 (Fla.2006), and in “evaluating a trial court’s order, 'this Court will not substitute its judgment for that of the trial court on ... the credibility of the witnesses ... ’ provided its order is supported by competent, substantial evidence,” Cherry v. State, 959 So.2d 702, 709 (Fla.2007) (quoting Porter v. State, 788 So.2d 917, 923 (Fla.2001)).

After having reviewed both the trial and evidentiary hearing testimony, we conclude that the postconviction court’s findings are sufficiently supported by the record. Although Dr. Stein and Dr. Mark Cunningham, two other experts who testified during postconviction proceedings, disagreed with Dr. Berland’s opinions and the type of testing Dr. Berland conducted pri- or to and in preparation for the penalty phase, the postconviction court found that Dr. Berland adequately explained the basis for his evaluations and opinions and found his testimony to be credible. Therefore, counsel were not ineffective for relying on Dr. Berland’s assistance, “even if, in retrospect, [his] evaluations may not have been complete as others may desire.” Darling, 966 So.2d at 377. Accordingly, we affirm the postconviction court’s denial of relief on all aspects of this claim.

Jury Interview Rules

Lastly, Crain argues that rule 4 — 3.5(d)(4) of the Rules Regulating the Florida Bar and Florida Rule of Criminal Procedure 3.575, which place restrictions on post-trial jury interviews by attorneys, unconstitutionally deny him the right to effective assistance of counsel in pursuing his postconviction remedies. This Court has repeatedly rejected similar constitutional challenges to these rules. See, e.g., Floyd v. State, 18 So.3d 432, 459 (Fla.2009) (rejecting claim that rule 4-3.5(d)(4) violated due process rights as well as the First, Sixth, Eighth, and Fourteenth Amendments); Barnhill v. State, 971 So.2d 106, 117 (Fla.2007) (“We deny relief on this issue consistent with our prior decisions which have found that rule 4-3.5(d)(4) and rule 3.575, which collectively restrict an attorney’s ability to interview jurors after trial, do not violate the defendant’s constitutional rights.”). We also note that “juror interviews are not permissible unless the moving party has made sworn allegations that, if true, would require the court to order a new trial because the alleged error was so fundamental and prejudicial as to vitiate the entire proceedings,” Green v. State, 975 So.2d 1090, 1108 (Fla.2008) (quoting Johnson v. State, 804 So.2d 1218, 1225 (Fla.2001)), and there is no evidence that Crain made such a request in this case. Accordingly, we affirm the postcon-viction court’s denial of this claim.

CONCLUSION

For the reasons set forth above, we affirm the postconvietion court’s denial of relief.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

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

      . In our direct appeal decision, Dr. Vega's testimony was characterized in the following manner:
      A forensic pathologist testified at trial that the scratches on Crain’s arms probably occurred within a few hours to a day before the photos were taken. Although the pathologist could not identify the source of the scratches with certainty, he testified that all but two of the scratches were more likely to be caused by the fingernails of a seven-year-old child than by another cause. The pathologist also testified that there was one cluster of small gouges on Crain's arm, and it was more likely that these gouges were caused by the small grasping hand of a child of about seven years of age than by another cause.

        Crain, 894 So.2d at 65. We now clarify that any statement in our direct appeal decision to the effect that the marks on Crain’s body were “more likely” caused by the hand or fingernails of a seven-year-old child "than by another cause” was a mischaracterization of Dr. Vega’s trial testimony. Dr. Vega never drew such a strong correlation between the marks and their apparent cause. Rather, Dr. Vega acknowledged that the marks on Crain’s body were "consistent” with having been caused by the fingernails or with the hand spacing of a seven-year-old child, but were also consistent with having been caused by other objects.

      . In contrast to the jury instruction on count I, which related to the murder charge and instructed the jury on alternative theories of kidnapping, on count II, the jury was not instructed on the unpled alternative of kidnapping with intent to inflict body harm. Id.
        at 75. Thus, on appeal, when examining whether the evidence was legally sufficient to support a separate conviction for kidnapping as charged in count II of the indictment, this Court concluded that competent, substantial evidence did not exist to support the jury verdict of kidnapping with the intent to commit homicide. Id. at 76. As to count I, however, we held that there was sufficient evidence to support a felony murder conviction under the alternative theory of kidnapping with the intent to inflict bodily harm. Id. at 73-74.

      . Crain raised the following postconviction claims: (1) counsel rendered ineffective assistance by failing to challenge the State's circumstantial case as to the introduction of DNA evidence; (2) counsel rendered ineffective assistance by failing to seek the exclusion of photos of scratches on Crain’s body on the basis that such photos were obtained pursuant to an unconstitutional search; (3) counsel rendered ineffective assistance by failing to retain a defense expert to challenge the testimony of the State’s medical expert who testified regarding scratch-mark evidence presented at the guilt phase; (4) counsel rendered ineffective assistance for failing to provide a competent psychological evaluation and testimony, to adequately investigate, prepare, and present available mitigation, and to otherwise challenge the State’s case for the death sentence; (5) counsel rendered ineffective assistance by failing to effectively cross-examine several trial witnesses for the purpose of impeachment; (6) execution by lethal injection constitutes cruel and unusual punishment; (7) because Crain may be incompetent at the time of execution, his right against cruel and unusual punishment will be violated; (8) the rules prohibiting Crain's lawyers from interviewing jurors to determine if error occurred are unconstitutional and deny Crain adequate assistance of postconviction counsel; and (9) cumulative error occurred.

      . Since we conclude that Crain’s individual claims are without merit, we likewise deny his claim that cumulative error occurred in this case. See Israel v. State, 985 So.2d 510, 520 (Fla.2008).

      . Dr. Elizabeth Johnson testified at the evi-dentiary hearing that “substrate control” testing is the testing of an area from a piece of cloth as close as possible to the visible presumed bloodstain, but which is not stained itself, to determine whether there is an overlay or superimposition of invisible biological material in that area that would give a DNA profile from a source other than blood.

      . At the evidentiary hearing, trial counsel recalled that in trying to defend against the State’s DNA case, they had to confront Crain’s prior statements to a local reporter, Warren Eli, and the producers of a national talk show that Amanda's tooth was loose on the night she visited and that this may have been the source of Amanda's blood. Counsel testified that he reviewed the tape of the talk show, and Crain continued to insist that if there was blood in his bathroom or on his clothes, it was a result of Amanda having a loose tooth. According to counsel, Crain reiterated his pretrial insistence that any blood DNA from Amanda was a result of her loose tooth rather than the result of a murder.

      . To the extent Crain argues that counsel were ineffective for failing to object to comments made by the prosecutor during closing argument and for ineffectively responding to the prosecutor's misstatement of the evidence, these claims are procedurally barred because they were not raised below. See Green v. State, 975 So.2d 1090, 1104 (Fla.2008). We further conclude that they are without merit.

      . The record does not reflect that Dr. Vega’s written report was ever entered into evidence during either the trial or postconviction proceedings.

      . As recognized in footnote 2 of this opinion, any statement we made to the effect that the marks on Crain's body were "more likely" caused by the hand or fingernails of a seven-year-old child "than by another cause” should have been more accurately stated as being "consistent” with those conclusions.

      . Crain asserts in the alternative that counsel’s failure to retain a rebuttal expert rendered them ineffective per se under the standard articulated in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). We reject this claim because the "Cronic standard is reserved for situations where the assistance of counsel has been denied entirely or withheld during a critical stage of the proceeding such that the ‘likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.’ ” Chavez v. State, 12 So.3d 199, 212 (Fla.2009) (quoting Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002)). In this case, because counsel was never denied, Crain cannot rely on the per se rule from Cronic to avoid establishing prejudice; the record reflects that counsel was present during Dr. Vega's testimony and conducted a thorough cross-examination of the State’s expert witness.

      . At sentencing, the trial court found the following nonstatutory mitigating circumstances, assigning to each various weight: (1) although the trial court was not reasonably convinced Crain was psychotic or had a brain injury, the trial court found Crain was an uncured pedophile, that his mental health was impaired, and that his mental health problems were exacerbated by the use of alcohol and drugs (some weight); (2) Crain was intoxicated at the time of the offense (some weight); (3) Crain had a history of extensive abuse (some weight); (4) Crain had a history of abuse and an unstable home life (modest weight); (5) Crain was deprived of educational benefits and social learning that one would normally obtain from public education (modest weight); (6) Crain experienced depression and suicidal ideation in the months leading up to his arrest (little weight); (7) Crain had a history of hard, productive work (some weight); (8) Crain had a good prison record (modest weight); and (9) Crain had the capacity to form loving relationships (modest weight).

      . Crain also contends that counsel failed to secure and present available mitigation. However, Crain has neither identified nor argued for any mitigating evidence that should have been, but was not, presented at trial. Because Crain has failed to identify any source of potential mitigation in support of this argument, we conclude that Crain’s bare subclaim has been waived for the purposes of appeal. See Pagan v. State, 29 So.3d 938, 957 (Fla.2009) (“The purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues, and these claims are deemed to have been waived.” (quoting Duest v. Dugger, 555 So.2d 849, 852 (Fla.1990))); see also Doorbal v. State, 983 So.2d 464, 482 (Fla.2008).