author: PER CURIAM.

text:
    Richard ENGLAND, Appellant, v. STATE of Florida, Appellee. Richard England, Petitioner, v. Michael D. Crews, etc., Respondent.
    Nos. SC11-2038, SC13-705.
    Supreme Court of Florida.
    July 3, 2014.
    Rehearing Denied Nov. 25, 2014.

      Richard E. Kiley and Ali Andrew Shak-oor, Assistant Capital Collateral Regional Counsels, Middle Region, Tampa, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Mitchell D. Bishop, Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.
   PER CURIAM.

Richard England appeals the denial of his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. For the reasons that follow, we affirm the denial of his posteonviction motion and deny his habeas petition.

I. BACKGROUND

The facts of this case were fully set out in this Court’s opinion on direct appeal. See England v. State, 940 So.2d 389, 393-96 (Fla.2006). Briefly, on July 2, 2001, police found Howard Wetherell’s body in the shower of his upstairs master bathroom. Id. at 393. Wetherell had been beaten to death, and numerous items, including a fire poker and a green Mercury Sable automobile, were missing from his condominium. Id. Though “[t]he State’s investigation of the crime scene was impeded by a white, powdery substance that had been sprayed over the bloody floor and furniture to cover up and destroy any potential evidence underneath,” law enforcement recovered two cigarette butts from an upstairs bedroom. Id. DNA on one of the cigarette butts belonged to England, and DNA on the other belonged to Michael Jackson, a friend of England’s who had been “liv[ing] with Wetherell trading sex for money and a place to stay” prior to the crime. Id. Several days after the murder, Jackson was arrested after wrecking Wetherell’s missing car and gave a statement implicating England in Wethe-rell’s murder. Id. On November 6, 2003, a Volusia County grand jury indicted England for first-degree felony and premeditated murder and robbery with a deadly weapon. Id. at 394.

At England’s trial, in addition to presenting physical evidence linking England to the crime, the State called numerous witnesses to testify regarding England’s involvement in Wetherell’s murder, including jailhouse informant Steven Diehl, England’s friend and drug-dealer fence, Reynaldo DeLeon, England’s codefendant Michael Jackson, and Jackson’s brother. Id. at 394-96. As detailed in this Court’s decision in England’s direct appeal, the jury heard statements or testimony from each of these witnesses that implicated England in Wetherell’s murder. See id.

The jury found England guilty of first-degree premeditated murder and felony murder and robbery with a deadly weapon. Id. at 396. At the penalty phase, the jury heard testimony from England, who denied killing Wetherell and denied knowing about Wetherell and Jackson’s homosexual relationship; two of England’s former employers and England’s girlfriend, all of whom testified that England’s life is worth saving; and a defense investigator, who summarized information obtained from his interviews with England’s mother and sister regarding England’s difficult childhood, including physical and emotional abuse he suffered. Following the penalty phase, the jury recommended death by a vote of eight to four. Id. The trial court followed the jury’s recommendation, finding that the aggravating circumstances outweighed the mitigating circumstances.

On direct appeal, this Court affirmed England’s conviction and death sentence.' Id. Thereafter, the United States Supreme Court denied England’s petition for a writ of certiorari. England v. Florida, 549 U.S. 1325, 127 S.Ct. 1916, 167 L.Ed.2d 571 (2007).

In 2008, England filed a motion for post-conviction relief. The circuit court granted an evidentiary hearing on some of the claims, while summarily denying others. Following the evidentiary hearing, the circuit court entered orders denying relief on all claims.

England appeals the circuit court’s denial of postconviction relief and also petitions this Court for a writ of habeas corpus.

II. POSTCONVICTION MOTION

A. Ineffective Assistance During the Guilt Phase

First, England argues that his trial counsel was ineffective during the guilt phase for failing to ask witness Steven Diehl questions that would have allegedly revealed that Diehl was a state agent. Because England has failed to establish the requirements necessary for relief, we affirm the circuit court’s denial of this claim.

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has explained that, to prevail on an ineffective assistance of counsel claim, a defendant must satisfy two requirements:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Bolin v. State, 41 So.3d 151, 155 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)).

Regarding Strickland’s deficiency prong, there is a strong presumption that trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Moreover, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant bears the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). Regarding Strickland’s prejudice prong, “the defendant ‘must show that but for his counsel’s deficiency, there is a reasonable probability that he would have received a different [outcome].”’ Tanzi v. State, 94 So.3d 482, 490 (Fla.2012) (quoting Porter v. McCollum, 558 U.S. 30, 40, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009)). “A reasonable probability is a ‘probability sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

“Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo.” Dennis v. State, 109 So.3d 680, 690 (Fla.2012).

England has not established either deficiency or prejudice. Regarding deficiency, trial counsel identified the possibility that Diehl was acting as a state agent, moved to suppress his testimony, and deposed him on the issue. Trial counsel did not call Diehl to testify during the suppression hearing, and Diehl’s deposition occurred after the trial court denied the motion to suppress. Nevertheless, as trial counsel testified in the postconviction evi-dentiary hearing, had the deposition revealed new facts concerning Diehl’s relationship with the State, the motion could have been renewed before Diehl was permitted to testify at trial. However, Diehl’s deposition did not reveal any additional evidence that indicated he was a state agent.

Instead, the record shows that England faults his trial counsel for failing to ask Diehl questions that trial counsel actually asked, though trial counsel phrased these questions differently than England now claims he should have. Specifically, England contends that trial counsel did not adequately question Diehl about his first contact with law enforcement, who initiated that contact, and how Diehl’s initial meeting with the detectives investigating Wetherell’s murder occurred. But, during Diehl’s deposition, trial counsel asked, “When did you first talk to law enforcement about this case?” and “Is it possible you had conversations with law enforcement before or after the taped interview [with detectives]?” In response, Diehl spoke only of meeting with the detectives investigating Wetherell’s murder. Similarly, when Diehl was asked at trial how he came to meet with police, he said that he had “requested to do so” “[tjhrough a sergeant of the corrections facility.” Diehl also testified at trial that he came forward because he was disturbed by the information England told him — which included England’s statement that “he bludgeoned ‘an old pervert’ to death with a pipe”— because he felt it was his civic duty. England, 940 So.2d at 395.

Contrary to his deposition and trial testimony, düring the postconviction eviden-tiary hearing, Diehl testified that a jail deputy “informed me that he knew I was kind of buddying up with Richard England and asked me if I would be interested in speaking with anyone about what was to do — you know, information that I heard from Richard England.” Though Diehl could not remember the deputy’s name, he provided a general physical description. Corrections officers matching this description who were working in Diehl’s area of the jail during the time period in question testified at the evidentiary hearing that they had not contacted Diehl about providing information concerning England and that doing so would have been against their procedure. Though Diehl testified at the evidentiary hearing that the detectives asked him, “off the record,” to question England, Diehl consistently testified (both in his deposition and at trial) that the detectives cautioned him against asking England questions, informed him that he could not act as their agent, and did not offer him any benefit in exchange for information or his testimony. At the evidentia-ry hearing, the detectives testified that they told Diehl that he could not act as their agent or question England, that they did not promise Diehl anything in exchange for information, and that they did not tell Diehl anything different “off the record.”

Under the circumstances, trial counsel’s attempts to discover whether Diehl was acting as a state agent were entirely reasonable and therefore not deficient. See Simmons v. State, 105 So.3d 475, 493 (Fla. 2012) (concluding that counsel was not deficient because his actions were “reasonable under the circumstances”).

England has also failed to establish prejudice. As we explained in our decision on England’s direct appeal, the evidence tying England to Wetherell’s murder included physical evidence and incriminatory statements that England made to others implicating himself in the crime. See England, 940 So.2d at 393-96. For example, the man whom England contacted about fencing items stolen from Wetherell (Reynaldo DeLeon) testified that England and Jackson “brought antique guns, jewelry, and silver” to his house and “England told [him] that Jackson had hit a man, stolen the items, and then went to find England. England also said that he and Jackson went back to the man’s house and found him alive, so England hit the man with a fire poker until he died.” Id. at 394.

Given that Diehl’s testimony concerning England’s statements was cumulative of other incriminatory statements that England made, such as those testified to by DeLeon, there is no reasonable probability that England would have received a different outcome. Our confidence in the outcome is not undermined. See Overton v. State, 976 So.2d 536, 556 (Fla.2007) (concluding defendant failed to establish prejudice where similar testimony to that challenged by the defendant supported the conviction).

Accordingly, we deny relief.

B. Ineffective Assistance During the Penalty Phase

Next, England argues that trial counsel was ineffective for failing to adequately investigate and prepare the penalty phase and counter the State’s case in aggravation with additional mitigating evidence. Because England has not established that these alleged failings prejudiced him, we deny relief.

We have repeatedly recognized that where a defendant fails to establish prejudice, it is not necessary to address whether counsel’s performance was deficient. See, e.g., Allen v. State, 854 So.2d 1255, 1261 (Fla.2003) (“Because we hold that Allen fails to establish prejudice, we do not address whether his counsel’s performance was deficient.”). For a defendant to establish that he was prejudiced by trial counsel’s failure to investigate and present mitigation, the defendant “must show that but for his counsel’s deficiency, there is a reasonable probability he would have received a different sentence. To assess that probability, we consider ‘the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the [postconviction] proceeding’ — and ‘reweig[h] it against the evidence in aggravation.’ ” Dennis, 109 So.3d at 695 (quoting Porter, 558 U.S. at 41, 130 S.Ct. 447 (quoting Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000))). “A reasonable probability is a ‘probability sufficient to undermine confidence in the outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

During the postconviction evidentiary hearing, England presented testimony from his mother and sister concerning his difficult upbringing, alcohol and drug use, and the physical and emotional abuse he suffered as a child. Although more detailed, much of their testimony was cumulative to the defense investigator’s testimony during the penalty phase, in which he summarized his interviews with England’s mother and sister — who, as the postconviction court found, were unavailable to testify before the jury. Further, though England’s mother and sister testified for the first time during the evidentiary hearing that England may have been sexually abused, their testimony was merely speculative, and England himself has consistently denied ever being the victim of sexual abuse.

In addition to newly-raised speculations of sexual abuse, for the first time at the evidentiary hearing, England presented testimony from a mental health expert, Dr. Carpenter, who testified that England suffered from an extreme mental or emotional disturbance at the time of Wetherell’s murder. Specifically, Dr. Carpenter testified that England has bipolar disorder and murdered Wetherell in a “homophobic rage.” In support of his diagnosis, Dr. Carpenter explained that England has ego-dystonic homosexuality, meaning that he is a homosexual (or bisexual) but dislikes this about himself because it is at odds with his view of himself as a heterosexual. Dr. Carpenter opined that, in order to eliminate his conflict about his own homosexual urges or actions, England lashed out in a homophobic rage and killed Wetherell. In addition, Dr. Carpenter testified that England had ADHD as a child that went undiagnosed, was held back in school, and that he potentially has brain damage.

However, as the postconviction court explained in its order denying relief, Dr. Carpenter’s testimony was refuted by two other mental health‘experts and England himself. Specifically, Drs. Danziger and Riebsame testified that England has antisocial personality disorder, that he does not have bipolar disorder, and that there were no statutory mental health mitigators applicable to his case. Dr. Danziger testified that homophobic rage is not recognized in the DSM-IV, and Dr. Riebsame explained that a homophobic rage theory would not be consistent with a first-degree murder like Wetherell’s where the evidence shows that the killer had the presence of mind to destroy evidence. Dr. Riebsame further testified that England does not have brain damage but that he does have psychopathic characteristics. And, though Drs. Danziger and Riebsame testified that England suffers from alcohol and polysubstance dependence, there was no testimony that England’s alcohol or drug use played a role in Wetherell’s murder.

Moreover, England himself rebutted his own expert’s homophobic rage theory. Specifically, England denied killing Wethe-rell, denied knowing that Wetherell was in a homosexual relationship with Jackson, prohibited his trial counsel from making homosexuality an issue in the case, denied that homophobia or homophobic rage had anything to do with the crime, and wrote a letter to the postconvietion court requesting that this claim be removed from his postconviction motion because he is not a homosexual.

Considering all of the evidence presented during the penalty phase and the evi-dentiary hearing, the mitigating circumstances would not have outweighed the four aggravating circumstances present in this case, namely HAC, prior violent felony, during the commission of a robbery, and felony probation. See Porter, 558 U.S. at 41, 130 S.Ct. 447; Dennis, 109 So.3d at 695. There is no reasonable probability that England would have received a different sentence. Our confidence in the outcome is not undermined.

Therefore, we affirm the postconviction court’s denial of relief.

III. HABEAS PETITION

A. Ineffective Assistance of Appellate Counsel

England argues that appellate counsel was ineffective for failing to argue that the trial court (1) abused its discretion by allowing England to revoke his speedy trial waiver; and (2) erred by allowing England to represent himself without making the inquiry required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Claims of ineffective assistance of appellate counsel are properly presented in a petition for a writ of habeas corpus. Wickham v. State, 124 So.3d 841, 863 (Fla.2013). “The standard of review for ineffective appellate counsel claims mirrors the Strickland standard for ineffective assistance of trial counsel.” Id. Specifically, to be entitled to habeas relief on the basis of ineffective assistance of appellate counsel, the defendant must establish

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

Bradley v. State, 33 So.3d 664, 684 (Fla.2010) (quoting Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986)). Further, “appellate counsel cannot be deemed ineffective for failing to raise nonmeritorious claims.” Valle v. Moore, 837 So.2d 905, 908 (Fla.2002).

(1) Speedy Trial

England first contends that appellate counsel was ineffective for failing to argue on direct appeal that the trial court abused its discretion by allowing him to revoke his speedy trial waiver. England is not entitled to relief.

Minutes after agreeing to a continuance that would have waived his right to a speedy trial under Florida Rule of Criminal Procedure 3.191, England told the trial court that he had changed his mind and wanted to go to trial. England made this decision despite being informed that his trial counsel could not adequately prepare for either the guilt or penalty phases without a continuance and despite the trial court’s repeated admonitions that England should listen to his attorney. After recognizing that it could “stand on ceremony” and find that England had waived his right to a speedy trial because he had signed the motion for continuance, the trial court declined to do so, concluding that it was England’s right to a speedy trial if he wanted one, which he clearly did, despite being informed of the risks.

The trial court did not abuse its discretion by giving England the speedy trial he requested. See Curtis v. State, 685 So.2d 1234, 1235-36 (Fla.1996) (holding that the trial court did not abuse its discretion by denying defense counsel’s request for a continuance where the “informed and knowing” defendant “remained resolute in his desire for a prompt trial” even though his counsel represented that he would be “ill prepared”); see also Charlot v. State, 85 So.3d 1176, 1178 (Fla. 4th DCA 2012) (“Insisting on the right to a speedy trial is tantamount to objecting to a continuance of that trial.”). Therefore, appellate counsel was not deficient for failing to raise this meritless argument on appeal. See Valle, 837 So.2d at 908.

Accordingly, we deny relief.

(2) Faretta

Next, England claims that appellate counsel was ineffective for failing to argue on direct appeal that the trial court should have conducted a Faretta inquiry. Because the trial court did not err, we deny relief.

Florida law is clear that a Far-etta inquiry is only required where the defendant makes an “unequivocal” request for self-representation:

Under Faretta and our precedent, once an unequivocal request for self-representation is made, the trial court is obligated to hold a hearing, to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.

Tennis v. State, 997 So.2d 375, 378 (Fla.2008).

In this case, England has not argued that he made ari unequivocal request for self-representation. Nor does the record reveal such a request. Nevertheless, England claims that the trial court should have conducted a Faretta inquiry on the following occasions: (i) before considering and ruling on oral pretrial motions in which England asked the trial judge to recuse himself and asked for pretrial release so that he could locate an alleged alibi witness; and (ii) before giving England the impression that he could make the final decision about which witnesses to call. However, since England “was not requesting the right to represent himself at the trial, a Faretta hearing was not required.” Chariot, 85 So.3d at 1178. Further, as the State correctly argues, at the time of England’s trial in 2004, this Court’s decision in Blanco v. State, 452 So.2d 520, 524 (Fla.1984), receded from, by Puglisi v. State, 112 So.3d 1196, 1197-98 (Fla.2013), gave defendants the final say about which witnesses to call.

Accordingly, because the trial court did not err in failing to make a Faretta inquiry, England cannot establish that appellate counsel’s failure to raise this issue undermines our confidence in the outcome of his direct appeal. See Gamble v. State, 877 So.2d 706, 719 (Fla.2004) (“Because the trial court did not err in failing to make a ... Faretta inquiry, Gamble cannot demonstrate that failure of appellate counsel to raise this issue undermined confidence in the outcome of the appeal.”).

Therefore, wé deny relief.

B. Remaining Claims

England raises four additional claims in his habeas petition. We summarily deny three of these claims because they are procedurally barred since England raised one of the three on direct appeal and all three in his postconviction motion. Having done so, England may not relitigate them in his habeas petition. See Breedlove v. Singletary, 595 So.2d 8, 10 (Fla.1992) (“Habeas corpus is not a second appeal and cannot be used to litigate or relitigate issues which could have been, should have been, or were raised on direct appeal.”); Knight v. State, 923 So.2d 387, 395 (Fla.2005) (concluding the defendant was procedurally barred from relit-igating his postconviction claims in his ha-beas petition).

England also raises a cumulative error claim. However, because we find all of England’s claims of error to be procedurally barred or otherwise without merit, he is not entitled to relief. See Bell v. State, 965 So.2d 48, 75 (Fla.2007) (“[W]here individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail.” (quoting Griffin v. State, 866 So.2d 1, 22 (Fla.2003))).

IV. CONCLUSION

For the foregoing reasons, we affirm the denial of England’s postconviction motion and deny his habeas petition.

It is so ordered.

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

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

      . "The trial judge found four aggravating factors beyond a reasonable doubt: (1) that England was under felony probation; (2) that he had a prior violent felony conviction; (3) that the murder was committed during a robbery; and (4) that the murder was especially heinous, atrocious, or cruel[.]” England, 940 So.2d at 408.

      . The trial court did not find any statutory mitigation. However, it found “strong non-statutory mitigators and afforded them great weight collectively.” Id. Specifically, the trial court’s sentencing order stated:
      The defense, despite not being allowed enough time by the Defendant to fully develop the sentencing phase, was able to portray the Defendant's other side.... [T]hey showed him to be intelligent, a quick learner, a hard worker. He is personable, trustworthy, a leader, a good friend, and capable of a loving relationship. He is all of these things despite a terrible childhood full of abuse, uncertainty and abandonment. ... The Defendant was torn from his siblings and raised by [an] abusive man.

      . England raised the following claims on direct appeal:
      (A) fundamental error occurred because Jackson's testimony included a reference to facts excluded by the trial judge; (B) the jury should have been presented with a special verdict form; (C) certain crime scene and autopsy photographs should not have been admitted because they were gruesome and overly prejudicial; (D) the trial judge admitted testimony in violation of the best evidence rule; (E) the trial judge erred in permitting certain testimony from witness DeLeon; (F) there was juror misconduct; (G) the trial judge erred in finding the heinous, atrocious, or cruel (HAC) ag-gravator; (H) the trial judge violated England's right to a fair sentencing hearing by gagging England during the penalty phase; (I) England’s right to testily was violated; (J) the trial judge erred in refusing to permit reverse Williamsfv. State, 110 So.2d 654 (Fla 1959),] rule evidence during the penalty phase; (K) the trial judge treated England disparately from codefendant Jackson in sentencing; (L) England’s death sentence violates Roperfv. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ]; (M) England's death sentence was not proportional; and (N) England’s death sentence violates Ring [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ].

        Id. at 396-97 (footnotes omitted).

      . Dr. Carpenter testified that England has histrionic personality disorder with antisocial features, but disagreed with Dr. Danziger and Dr. Riebsame's conclusion that antisocial is the dominant personality disorder.

      . Specifically, England claims that (1) his constitutional right against cruel and unusual punishment will be violated because he may be incompetent at the time of his execution; (2) Florida's capital sentencing scheme is unconstitutional as applied to him under Ring and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (3) Florida's death penalty statute is unconstitutional on its face and as applied to him. England failed to appeal the postconviction court’s denial of these three claims to this Court.


source: Caselaw Access Project

license: Public Domain

text:
    Robert J. BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. SC12-1041.
    Supreme Court of Florida.
    Aug. 28, 2014.
    Rehearing Denied Nov. 26, 2014.

      Clyde M. Taylor, Jr. and Clyde Montgomery Taylor, III, Taylor & Taylor, P.A., St. Augustine, FL, for Appellant.
    Pamela Jo Bondi, Attorney General and Stephen Richard White, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
   PER CURIAM.

This case is before the Court on appeal from a final order denying Robert J. Bailey, Jr.’s, amended motion pursuant to' Florida Rule of Criminal Procedure 3.851 to vacate a judgment of conviction for first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 8(b)(1), Fla. Const.

We reject Bailey’s three claims raised in this appeal in which he alleges ineffective assistance of trial counsel. And, because Bailey failed to satisfy the Strickland standard in the postconvietion proceeding held below, we affirm the final order appealed in this case.

I. DIRECT APPEAL

The facts and circumstances pertaining to Bailey’s convictions and sentences are taken from our previous opinion concerning his direct appeal:

Robert J. Bailey was indicted for resisting a police officer with violence and first-degree murder in the shooting death of Sergeant Kevin Scott Right, which occurred after Sergeant Right stopped Bailey for a traffic infraction.
On March 26, 2005, Robert Bailey, John Braz, and D’Tori Crawford drove from Chicago to Florida to look for women during spring break. ■ For the trip, Bailey used a white Dodge Duran-go that his grandfather rented for him. The three men drank beer and smoked marijuana on the way, driving all through the night. Crawford saw that both Braz and Bailey had handguns with them. The men arrived in Pensacola on March 27, but once they arrived, they learned that a recent hurricane had damaged the beaches in Pensacola significantly. After eating lunch at a restaurant, they drove to Panama City and checked into the Sugar Sands Motel. They met a few men from Kentucky, drank some more, and went to a nearby bar called “Sweet Dreams” with a few of the men from Kentucky.
After some time had passed, Bailey and Crawford left the bar in the white Durango to pick up some girls. Traffic was bumper-to-bumper and was moving very slowly. While they were driving, Bailey and Crawford paused to talk to some girls walking down the road, exchanging their phone numbers and hotel room numbers. Bailey and Crawford did not notice that traffic had begun to move until a police officer, Sergeant Right, pulled them over. Sergeant Right requested Bailey’s driver’s license, and after Bailey gave him identification, the officer left, saying that he would be right back. At that point, Bailey started to panic and told Crawford that he did not have a valid license and had a parole violation. He asked Crawford what he thought would happen. Bailey’s hand was shaking so badly that he asked Crawford to call his girlfriend for him. Crawford heard Bailey tell his girlfriend that he was being pulled over by a cop and was going to need her to pick him up because Bailey would “pop this cop” if the officer tried to arrest him. Bailey then reached under the driver’s seat to retrieve a handgun, placing it under his right leg. Bailey’s face was red, and he had tears in his eyes. Crawford tried to calm Bailey down, but Bailey told Crawford that he was not going back to jail again. Crawford refused to be a part of the plan, and when he noticed that the officer was looking down, Crawford got out of the vehicle, blending in with a crowd of people who were walking by. Crawford barely knew Bailey and did not warn the police officer because he was afraid that if he approached the officer, Bailey would shoot him too.
While Bailey was being pulled over, a number of people in other vehicles were watching the events, particularly since traffic was barely moving. As Hillary Chaffer drove by, she noticed that Bailey tried to pull forward while the officer was looking down. Sergeant Right approached Bailey’s vehicle again, removing his handcuffs from his belt. Bailey stuck his gun out the window and fired it three times at the officer. Two of the bullets hit the officer, and the other bullet hit a passing van and lodged in the door of the van. Bailey sped off in his vehicle, while Sergeant Eight radioed dispatch that he had been shot. Many other officers were close by at the time of the shooting....
During the trial, the State presented the testimony of Crawford, who testified about the trip and the circumstances before and after the shooting. Crawford, however, was not present when the police officer was shot. The State presented two eyewitnesses to the shooting: Hillary Chaffer and Jarrod Schalk. Both witnesses were driving past Bailey when he shot Sergeant Eight, and both identified Bailey as the person who shot the .officer. Hillary Chaffer testified that when she passed the white Durango that was pulled over, she saw only Bailey in the vehicle, and he looked very pale and very scared. When she first heard the gunshots, she was facing forward but quickly turned around and saw Bailey with a gun in his hand before he drove away. Jarrod Schalk was the other eyewitness who testified at trial. He was riding in a van as a passenger and began to watch the officer who pulled over a white Durango. He also testified that he saw only Bailey inside the vehicle. As the officer approached Bailey with handcuffs in his hand, Schalk told his friends they were about to see somebody get arrested. Schalk noticed that Bailey’s face looked really mean and upset. Bailey suddenly pointed a gun, and Schalk saw the fire from the gun before he ducked. One of the bullets hit the van in which Schalk was riding. Lawson testified for the State and detailed how Bailey jumped in the back of his truck after the shooting, admitted that he had “popped a cop,” showed them the gun, and instructed the occupants to take him to a particular bar named Sweet Dreams.
Numerous officers and investigators also testified about the evidence found during the investigation. Officer Clayton Jordon testified that Bailey’s identification was found still clipped to Sergeant Eight’s citation book holder when they arrived at the scene.... The two bullets that struck the officer went through the top portion of the officer’s bullet-proof vest and, based on a downward trajectory, hit his heart, liver, and kidney. Both of the wounds were fatal, and Sergeant Eight would have quickly lost consciousness within about a minute.
... The jury found Bailey guilty of murder in the first degree with a firearm and guilty of resisting an officer with violence.
The penalty phase began the next day. During the penalty phase, the State introduced evidence that Bailey was on parole in Wisconsin at the time of the crime and that on March 9, 2005, Bailey’s supervising parole agent placed Bailey on home detention and later sought a warrant requesting Bailey’s arrest. At that point, the State rested. Bailey called one witness: Dr. Larry Kubiak, who was a licensed psychologist. Dr. Kubiak testified that Bailey had numerous problems, including attention deficit hyperactivity disorder (ADHD), some very significant neuro-cognitive deficits that would be consistent with significant brain damage, post-traumatic stress disorder, severe alcohol and drug abuse, depression, and a number of personality disorders including “depressive personality disorder with anti-social features, dependent personality disorder with negativistic features, and borderline personality disorder with schizotypal features.” ...
... The State also called in rebuttal Dr. Greg Prichard, who provided con-' flicting testimony as to whether Bailey had borderline mental retardation. Dr. Prichard opined that Bailey had average intelligence, and his low test results could be based on malingering. The State’s expert disagreed with Dr. Kub-iak’s conclusions regarding statutory mental mitigation, and according to Dr. Prichard, Bailey chose to shoot the officer so that Bailey could do what he wanted to do and that Bailey had a very realistic understanding of what would happen. The State introduced a second expert, Dr. Harry McClaren, who came to the same conclusions as Dr. Prichard and emphasized how Bailey planned the murder shortly before it happened and took clear actions afterwards to avoid being arrested. Finally, the State reintroduced Randy Squire, who intercepted and recorded a telephone conversation that Bailey had with his friend Braz, where Bailey told Braz that he was “playing all [his] little cards” to make sure that he was found incompetent and encouraged his friend to start talking to walls if Braz wanted to stay out of jail too.
By a vote of eleven to one, the jury recommended that the death penalty be imposed. After holding a [hearing in accordance with Spencer v. State, 615 So.2d 688, 690-91 (Fla.1993) ], the circuit court sentenced Bailey to death, finding two aggravating circumstances which were given great weight, rejecting the two statutory mental mitigators, and finding a number of other mitigating circumstances which the court found were entitled to little weight. Bailey raises three claims:
(1) whether the death penalty is disproportionate; (2) whether the prosecutor committed fundamental error by allegedly making inappropriate remarks before the jury; and (3) whether Florida’s capital sentencing procedures are unconstitutional.

Bailey v. State (Bailey I), 998 So.2d 545, 547-51 (Fla.2008) (footnotes omitted).

II. INITIAL POSTCONVICTION PROCEEDING

In April 2011, Bailey filed a Complete Amended Motion for Post Conviction Relief in accordance with Florida Rule of Criminal Procedure 3.851. The court below ultimately heard Bailey’s arguments for postconviction relief and on June 23, 2011, entered a final order denying Bailey’s amended rule 3.851 motion. This appeal followed.

Bailey raises three issues on appeal. First, Bailey argues that trial counsel was ineffective for failing to use one of the remaining peremptory strikes on an allegedly biased juror. Second, Bailey argues that trial counsel was ineffective for failing to adequately voir dire prospective jurors regarding negative pretrial publicity. Bailey further argues that the inadequate voir dire of the prospective jurors resulted in the violation of his constitutional right to due process under the law. Finally, Bailey argues that trial counsel was ineffective for relying on expert testimony to the exclusion of testimony from his family and other lay witnesses who had knowledge of mental health mitigation that casts doubt on the appropriateness of the death sentence.

III. ANALYSIS

In order for a defendant to obtain relief based on an allegation of ineffective assistance of counsel, there must be a showing that satisfies the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In capital appeals in which an appellant claims that trial counsel was ineffective, we have previously explained our application of the Strickland standard:

A claim of ineffective assistance of counsel, to be considered meritorious, must include two general components. First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Occhicone v. State, 768 So.2d 1037, 1045 (Fla.2000) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)).

A. Standard of Review

This Court’s standard of review is two-pronged:

(1) this Court must defer to the circuit court’s findings on factual issues so long as competent substantial evidence supports them; but (2) must review de novo ultimate conclusions on the deficiency and prejudice prongs. Reed v. State, 875 So.2d 415, 421-22 (Fla.2004) (citing Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999) (“Thus, under Strickland, both the performance and prejudice prongs are mixed questions of law and fact, with deference to be given only to the lower court’s factual findings.”)).

Everett v. State, 54 So.3d 464, 472 (Fla.2010).

B. Merits

1. Biased Juror Claim

a. Deficiency

.Counsel’s performance canhot be found deficient under the Strickland standard when counsel’s actions stem from a reasonable trial strategy. See Occhicone, 768 So.2d at 1048 (“[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.”) (citing Rutherford v. State, 727 So.2d 216, 223 (Fla.1998); State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987)).

The record shows that although counsel initially made an unsuccessful for cause challenge concerning the seating of Juror Linda Good, upon further consideration and after the State rehabilitated her from earlier statements that she made, defense counsel reasonably believed it would be useful to have Juror Good remain on the jury. See Evans v. State, 995 So.2d 933, 942 (Fla.2008) (“Although [the juror] clearly supported the death penalty and initially indicated that a case of self-defense would be the only time she would recommend life, she immediately confirmed that she would listen to the judge’s instructions, ‘consider all circumstances’ and follow the law. Based on her clear confirmation of her ability to follow the law and counsel’s belief that she would be a good guilt-phase juror, counsel’s decision not to challenge [the juror] was reasonable and a matter of trial strategy.”) (citing Dufour v. State, 905 So.2d 42, 54-55 (Fla.2005)).

Former defense counsel testified during the postconviction evidentiary hearing that Bailey’s defense team formed a trial strategy of seeking second-degree murder, which weighed the potential benefits versus any risks of keeping Juror Good on the jury. Former defense counsel Gontarek, referencing Juror Good, testified that: “[A] jury selection process is- not what a person says but their eye contact with the defendant or with Mike Flowers [co-defense counsel] or myself or their body language, things like that.” Another important component of the defense team’s decision to keep Juror Good arose when counsel informed him about the pros and cons of not using a peremptory challenge to remove this juror and Bailey informed his lawyers that he wanted to keep Juror Good because “he liked her very much.”

We, therefore, conclude that the strategic decision by Bailey’s trial counsel not to use a peremptory challenge to remove Juror Good from the jury was reasonable under the circumstances. See Cole v. State, 841 So.2d 409, 415 (Fla.2003) (finding no error in the trial court’s determination that under the circumstances in which the defendant insisted on keeping an identified juror, trial counsel’s decision not to peremptorily challenge said juror did not constitute deficient performance under the Strickland standard) (citing Occhicone, 768 So.2d at 1048 and Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (“The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.”)).

Sufficient evidence existed in the post-conviction record for the circuit court to find that counsel’s decision not to exercise one of its remaining peremptory challenges to remove Juror Good was part of a reasonable trial strategy, and the circuit court did not err in reaching this legal conclusion. “The evidence is sufficient when it is both competent and substantial.” Caylor v. State, 78 So.3d 482, 497 (Fla.2011) (citing Mansfield v. State, 758 So.2d 636, 646 (Fla.2000)). In addition, it is clear from the record that the defense team’s decision was in concert with Bailey’s informed consent to keep this juror. Accordingly, we find that the circuit court’s factual findings are supported by competent, substantial evidence in this record on appeal and the court did not err as to its legal conclusion that counsel’s performance was not deficient under the Strickland standard.

b. Prejudice

Even if it could be shown that defense counsel’s strategy with regard to Juror Good was unreasonable, we further find that Bailey failed to establish that he was prejudiced by defense counsel’s decision not to use one of its remaining peremptory challenges to remove Juror Good. We have previously explained that when the convicted person alleges that counsel failed to take steps to remove a biased juror, prejudice must be established by proof that a juror was actually biased. See Troy v. State, 57 So.3d 828, 838 (Fla.2011) (“Because the record refutes any claim of actual bias that would have prevented juror Hamblin from serving as an impartial juror, Troy is not entitled to relief.”); Carratelli v. State, 961 So.2d 312, 327 (Fla.2007) (requiring a showing of the juror’s actual bias).

The record shows that after she initially stated that “the death penalty is not used enough,” Juror Good responded to the State’s questions during voir dire by subsequently attesting that she could follow the trial court’s instructions and that she could absolutely consider all mitigation presented in the case. Also during voir dire, Juror Good responded in pertinent part by stating: “[A]s a jury member after hearing the evidence if I find that the person was not mentally stable, you know, other circumstances, I could vote for life.” Juror Good further responded that in the event the State proved Bailey was guilty of first-degree murder, it would be the greater weight of the evidence for the circumstances in aggravation or mitigation that would sway her vote concerning the death penalty. The circuit court also noted in its final order that Juror Good agreed she could follow the law, and that she would not allow any pretrial publicity to influence her opinion about Bailey’s guilt or non-guilt in Sergeant Eight’s murder.

We find that there is competent, substantial evidence in the postconviction evi-dentiary record supporting the circuit court’s finding credibility in Bailey’s former defense team’s expressed views about Juror Good. The record shows that both of Bailey’s former lawyers testified that Juror Good’s affirmative statements, under oath, that she could perform her duties as an impartial juror in deciding Bailey’s fate, persuaded them that she was not actually biased against their client. And, we find there is otherwise insufficient evidence in this record to establish that Juror Good was actually biased against him. Accordingly, Bailey fails to establish that he was prejudiced under the Strickland standard concerning this issue.

2. Improper Voir Dire of the Venire

The circuit court concluded that Bailey’s improper voir dire claim is procedurally barred due to his failure to raise it on direct appeal. We agree.

Bailey’s failure to raise this improper voir dire claim during his direct appeal renders it a pretext to a bona fide ineffectiveness of trial counsel claim. See Brown v. State, 755 So.2d 616, 687 (Fla.2000) (“Brown contends that his guilt-phase counsel was deficient in failing to question a juror as to the extent of her knowledge of a newspaper account of the trial. This claim is procedurally barred in that it should have been raised on direct appeal, and Brown attempts here to circumvent the procedural bar by couching the issue as ineffective assistance of counsel.”). Despite Bailey’s assertion to the contrary, his improper voir dire claim is procedurally barred for the reasons that we explained in Brown.

3. Faulty Reliance on Expert Testimony for Mental Mitigation Claim

a. Deficiency

It is well established that trial counsel is not ineffective for relying on a qualified mental health expert to provide the defense with assistance during the guilt phase and mitigation evidence for the penalty phase. See Looney v. State, 941 So.2d 1017, 1027 (Fla.2006) (“This Court has established that defense counsel is entitled to rely on an evaluation conducted by a mental health expert for trial, even if, in retrospect, that evaluation is less than perfect.”) (citing State v. Sired, 502 So.2d 1221 (Fla.1987)).

The circuit court correctly ruled that, based on Dr. Kubiak’s well-documented professional background and his experience as a neuropsychologist, Bailey’s defense team was not ineffective for relying on Dr. Kubiak as its mental health expert. The circuit court concluded that Bailey’s assertion in his postconviction motion that his defense counsel could have chosen a “better” mental health expert was conclu-sory. The circuit court also concluded that the claim that more evidence of Bailey’s mental deficits could have been presented was without merit.

The circuit court also found former defense counsel Gontarek’s testimony during the postconviction evidentiary hearing that he invited Ms. Gilchrist (Bailey’s mother) and other family members to come and testify for Bailey was more credible than Ms. Gilchrist’s testimony to the contrary. During the postconviction evidentiary hearing, Gontarek testified that when he asked Bailey’s mother and grandfather to come to Florida and testify at trial, neither of them would agree to do so.

We have long held that a fact-finder’s judgment of witness credibility that is supported by competent, substantial evidence, as found in this case, will stand. See Gonzalez v. State, 990 So.2d 1017, 1024 (Fla.2008) (‘“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 as well as the weight to be given to the evidence by the trial court.”’ Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997) (quoting Demps v. State, 462 So.2d 1074, 1075 (Fla.1984)).”).

There is competent, substantial support within the postconviction evidentiary record for the circuit court’s conclusion that Bailey’s trial lawyers’ actions were part of reasonable trial strategy, and the circuit court did not err in reaching this conclusion. Former defense counsel Gontarek testified that he “100 percent prefers” a psychologist versus a parent to testify about the background of a defendant facing the death penalty. And, during the postconviction evidentiary hearing, Gonta-rek also testified that he believed Dr. Kub-iak was a better witness than Bailey’s mother. As we previously stated, it is not ineffective assistance when trial counsel carries out a reasonable strategy that discriminates between the best potential witnesses to call. See Everett, 54 So.3d at 474 (“This Court has also consistently held that a trial counsel’s decision to not call certain witnesses to testify at trial can be reasonable trial strategy.”) (citing Bowles v. State, 979 So.2d 182, 188 (Fla.2008) (holding that, after weighing the benefit/risk ratio, counsel’s declination to call a clinical psychologist whose testimony could have provided emotional disturbance mitigation was consistent with reasonable trial strategy); Arbelaez v. State, 898 So.2d 25, 39 (Fla.2005) (holding that trial counsel’s failure to call defendant’s family members as witnesses during penalty phase was reasonable trial strategy and not ineffective assistance of counsel)).

Regarding Bailey’s assertion that Dr. Kubiak inadequately presented key features of Bailey’s personal history, the State argues that defense counsel was not deficient in relying on its expert. The State points out that through Dr. Kubiak the defense was able to introduce Bailey’s school records, medical records, and other records from certain Wisconsin state agencies — including records from that state’s Department of Corrections during the period when Bailey was an inmate serving a felony sentence there. Notwithstanding the State’s assertions about this point, the record shows that Dr. Kubiak spent several hours administering various tests on Bailey in order to evaluate his competence, mental health, and mental deficits.

In the postconviction evidentiary hearing, former defense counsel Gontarek admitted during his direct examination that he did not travel to Wisconsin to investigate Bailey’s personal history and family background. Gontarek also testified that he was unaware Ms. Gilchrist had assured Bailey’s predecessor defense counsel that she would be willing to assist the defense in any way possible. However, Gontarek testified that he interviewed Ms. Gilchrist and Bailey’s grandfather, by telephone about Bailey’s personal history and family background. Gontarek testified that when Bailey’s mother and grandfather expressed unwillingness to travel to Florida to testify during Bailey’s trial, he concluded that the mitigation evidence they would have provided could be introduced through Dr. Kubiak at trial.

Bailey argues that his defense counsel was deficient for deciding not to use Bailey’s family and other lay witnesses who would have bolstered Dr. Kubiak’s testimony. Moreover, Bailey asserts that his mother would have been the best witness for him. The circuit court found insufficient evidence to conclude that trial counsel performed deficiently, finding instead that counsel’s decision was strategic. We find that Gontarek’s testimony about what transpired during his communication with Ms. Gilchrist and Bailey’s grandfather constitutes competent, substantial evidence in the postconviction record. Such testimonial evidence from Bailey’s former counsel supports the circuit court’s findings, and the circuit court did not err in concluding that counsel employed reasonable trial strategy to avoid the presentation of cumulative mental health mitigation evidence to the jury.

Moreover, the circuit court observed that during the postconviction evidentiary hearing Bailey “did not present any additional evidence concerning [his] mental and psychological conditions and did not call any psychologists to testify” ... “[i]nstead, [Bailey] presented lay witness testimony at the evidentiary hearing in the form of three family witnesses.” Based on the testimony provided during the postconviction evidentiary hearing, the circuit court found that the lay witnesses that Bailey called “faile[d] to provide any substantial mitigation that was not already introduced by Dr. Kubiak at the penalty phase of [Bailey’s] trial.”

Although the testimony of a family member about a defendant’s mental health will not always be cumulative to the testimony of an expert mental health witness, because in many instances family members may be able to provide compelling testimony regarding mitigating circumstances, we find that in this case there is competent, substantial evidence in the record before us supporting the circuit court’s findings. Furthermore, we find that the circuit court did not err in concluding that the lay witness members of Bailey’s family would have provided evidence pertaining to mental health and psychological circumstances at trial that was cumulative to the evidence presented to the jury by Dr. Kubiak. “[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.’” Lynch v. State, 2 So.3d 47, 71 (Fla.2008) (quoting Darling v. State, 966 So.2d 366, 377 (Fla.2007) (citing Gudinas v. State, 816 So.2d 1095, 1106 (Fla.2002))); see also Trotter v. State, 932 So.2d 1045, 1052 (Fla.2006) (affirming the trial court’s denial of postconviction relief on the allegation that counsel was ineffective by not presenting Trotter’s nieces’ irrelevant and cumulative mitigation testimony).

Therefore, the circuit court’s conclusion that counsel’s performance was not deficient, regarding the declination to call lay witnesses comprised of Bailey’s family and friends during the penalty phase, is supported by existing case law. See Jennings v. State, 583 So.2d 316, 321 (Fla.1991) (affirming the circuit court’s conclusion that counsel was not deficient for deciding not to put on additional testimony to bolster mitigation that was sufficiently proven),

b. Prejudice

Prejudice is established when a showing of trial counsel’s error during the penalty phase undermines our confidence in the defendant’s sentence of death. See Wheeler v. State, 124 So.3d 865, 873 (Fla.2013) (“Under [the Strickland ] standard, a defendant is not required ‘to show “that counsel’s deficient conduct more likely than not altered the outcome” of his penalty proceeding, but rather that he establish “a probability sufficient to undermine confidence in [that] outcome.” ’ ”) (quoting Porter v. McCollum, 558 U.S. 30, 44, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (quoting Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052)). And, as the Supreme Court has held: “[t]o assess that probability, [the Court] considers] ‘the totality of the available mitigation evidence ... ’ and ‘re-weights] it against the evidence in aggravation.’ ” Id. (quoting Porter, 558 U.S. at 41, 130 S.Ct. 447 (quoting Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000))).

Bailey argues that he was prejudiced by not having family members testify at his trial because they would have been able to prove that he suffered from bipolar disorder and, thereby, humanize him to the jury. Bailey further argues that Dr. Kub-iak only established that he had a rule-out diagnosis for bipolar disorder in his mental health history. Dr. Rowan testified on direct examination in a telephonic deposition, explaining how Bailey’s rule-out diagnosis for bipolar disorder was accomplished. Dr. Rowan stated that Bailey’s medical records showed that previous clinicians had administered bipolar disorder therapy medication, and measured his responsiveness thereto in an attempt to rule out bipolar disorder. Dr. Rowan further testified that there was no record that any clinician had previously diagnosed Bailey with bipolar disorder, nor did she diagnose Bailey with bipolar disorder.

Consequently, the State responded to Bailey’s assertion that he was prejudiced by asserting that any mental health mitigation evidence that would have been presented through his family’s testimony would have been cumulative to the mental health mitigation evidence presented to the jury by Dr. Kubiak. Based on the evidence in the postconviction record, the circuit court found that in this case, Bailey’s family did not provide any mental health mitigation evidence beyond what Dr. Kubiak introduced during Bailey’s penalty phase; there was one exception— the circuit court found that testimony about a house fire that severely injured Bailey’s mother and younger brother, was not fully developed. Bailey started the house fire when he was five years old.

The circuit court concluded that this single piece of testimonial evidence, even taken as mitigation evidence, would not have outweighed the aggravating factors that were assigned great weight by the trial judge. In addition, the circuit court opined that this evidence “would have likely reinforced [other expert testimony about Bailey’s] antisocial and sociopathic behavior.” Bailey argues that there was little risk that the jury would have interpreted the house fire event as indicium of the malevolent act of a five-year-old boy.

The record shows that the house fire occurred because young Bailey was left alone while playing with matches in his bedroom. Bailey contends, however, that the evidence about the house fire would have established that afterwards Ms. Gilchrist emotionally abandoned Bailey and, thus, began a cycle of abuse directed at him by his mother that altered the course of his life.

Nevertheless, Bailey fails to show prejudice because the jury did not hear testimony related to the house fire during his trial. The circuit judge weighed the credibility of the witnesses during the postcon-viction evidentiary hearing and found no mitigating circumstances related to the house fire that shifted the balance of the circumstances in which two aggravating factors were proven and assigned great weight. The circuit court’s findings are supported by competent, substantial evidence in the record, and the court did not err in drawing its legal conclusions.

Therefore, we conclude that our confidence is not undermined in the outcome of the penalty phase, because there is no reasonable probability that but for the omission of testimony about the house fire incident, Bailey would have been sentenced to life imprisonment. See Strickland, 466 U.S. at 700, 104 S.Ct. 2052 (“Given the overwhelming aggravating factors, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence imposed.”); see also Kilgore v. State, 55 So.3d 487, 504 (Fla.2010) (concluding that the defendant failed to demonstrate that the proffered evidence had a reasonable probability of changing the outcome, which is a probability sufficient to undermine confidence in the verdict) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052); see also Sochor v. State, 883 So.2d 766, 771 (Fla.2004) (“In the penalty phase context, ‘the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’ ”) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). Under the totality of circumstances found in this record, there is insufficient evidence for us to conclude that Bailey was prejudiced simply because the jury did not hear cumulative mental health mitigation evidence, or testimony about the aftermath of a house fire that occurred when he was a youngster.

IV. CONCLUSION

Based on this record, we affirm the circuit court court’s final order denying Bailey’s amended rule 3.851 motion.

It is so ordered.

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

CANADY, J., concurs in result.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . The trial court found the following aggravating circumstances: (1) the capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or probation (given great weight); and (2) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody (also given great weight). See Bailey I, 998 So.2d at 551.
      The trial court also made findings about the following statutory mitigating circumstances:

        (1) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired (not reasonably established by the evidence); (2) the crime for which the defendant is to be sentenced was committed while he was under the influence of extreme mental or emotional disturbance (not reasonably established by the evidence); (3) the defendant, born on July 15, 1982, was 22 years old at the time of the crime (given very little weight). Id. at 551-52.
      The trial court found the following non-statutory mitigating factors: (1) defendant has a low I.Q. (given little weight in light of no expert declaring defendant to be intellectually disabled); (2) defendant has a history of mental health problems from early childhood (given little weight); (3) defendant spent time in a juvenile facility for troubled youth (given little weight); (4) defendant was intoxicated at the time of the crime (given little weight); (5) defendant came from a broken home (given little weight); (6) defendant was a poor student in grade school who was diagnosed with attention deficit hyperactivity disorder (ADHD), although he was continually promoted in Milwaukee public schools (given little weight); (7) defendant showed concern for Sgt. Kight when he was arrested (given little weight); and (8) defendant was very respectful during all of his court appearances and has adjusted well to incarceration (given little weight). Id. at 552.

      . In his amended rule 3.851 motion, Bailey sought relief on eight grounds: (1) trial counsel was ineffective for failing to use peremptory strikes on one or more biased jurors (Ground I); (2) due process violation for failure of trial court and counsel to adequately voir dire prospective jurors regarding pretrial publicity (Ground II); (3) trial counsel was ineffective for failing to formulate a defense theory (Ground III); (4) trial counsel was ineffective for failing to attack one of the two statutory aggravators argued by the State (Ground IV); (5) penalty phase counsel provided ineffective assistance by failing to call family witnesses and present photographs and records of the defendant as a child, and instead limited the presentation of mitigating evidence to only one “expert” witness who was impeached by the State (Ground V); (6) the State’s lethal injection procedures are unconstitutional (Ground VI); (7) ineffective assistance of counsel for failing to call former attorney Walter Smith to impeach State’s expert witness regarding the Defendant’s mental retardation (Ground VII); and (8) ineffective assistance of counsel for failing to call Dr. Jill Rowan to testily regarding her findings of mental retardation, and failing to obtain an MRI, CAT scan, or PET scan of the defendant’s brain (Ground VIII).

      . Even if Bailey could show cause as to why this claim is not procedurally barred, this claim fails to satisfy the Strickland standard for relief from alleged ineffective assistance of trial counsel. First, there is no deficiency because the record shows that counsel took reasonable steps to seat a jury that was amenable to the defense's trial strategies. See Occhicone, 768 So.2d at 1048. Second, there is no prejudice because there is no showing in this record that identifies any specific juror for whom there was proof that that juror was actually biased against Bailey. See Carratelli, 961 So.2d at 327.