text:
    Victor Marcus FARR, Appellant, v. STATE of Florida, Appellee. Victor Marcus Farr, Petitioner, v. Kenneth S. Tucker, etc., Respondent.
    Nos. SC08-1406, SC09-1010.
    Supreme Court of Florida.
    Nov. 29, 2012.
    Rehearing Denied Oct. 11, 2013.

      James Charles Lohman, Austin, TX, and Linda McDermott of McClain & McDer-mott, P.A., Wilton Manors, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General and Thomas David Winokur, Assistant Attorney General, Tallahassee, FL, for Appel-lee/Respondent.
   PER CURIAM.

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

FACTS AND PROCEDURAL HISTORY

The following facts are derived from Farr’s direct appeal;

In December 1990, Farr attempted to kidnap and then shot and wounded [Cindy Thomas and Patsy Lynch] outside a Lake City bar. He attempted to escape by forcibly taking a car in which [Chris Todd and Shirley Bryant] were sitting. [Todd] fled, but Farr managed to crank the car and escape with [Bryant] still inside. When he was pursued by officers later, Farr deliberately accelerated the car into a tree, hoping to kill himself and his hostage. [Bryant] was severely injured in the crash and died of her injuries soon thereafter. Farr was only slightly injured.
After indictment, Farr entered into an agreement with the State in which he pled guilty to all twelve counts of the indictment. As part of the agreement, Farr requested that the state attorney ask for the death penalty. He explained that he wanted to die. After determining that Farr was capable of knowingly and voluntarily entering the plea and that he understood its consequences, the trial court accepted the guilty plea. Farr then knowingly and voluntarily waived his right to a penalty phase jury, and the cause proceeded to sentencing.
At the time of sentencing the record contained a psychiatric report and pre-sentence investigation report containing information about Farr’s troubled childhood, numerous suicide attempts, the murder of his mother, psychological disorders resulting in hospitalization, sexual abuse suffered as. a child, and his chronic alcoholism and drug abuse, among other matters. In imposing the death penalty, the court apparently was influenced by Farr’s decision not to present a case in mitigation. The judge considered in mitigation only Farr’s apparent intoxication at the time of the murder, which the court found not to be of mitigating value and ignored the mitigating evidence contained in the presen-tence report and the psychiatric report.
In aggravation the trial court found that: (1) Farr had previously been convicted of another capital felony or of a felony involving the threat of violence to the person; (2) the homicide was committed while Farr was fleeing from the commission of a kidnapping, a robbery, two attempted kidnappings, and an attempted robbery; (3) the homicide was committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of laws; and (4) the homicide was especially heinous, atrocious, or cruel. Based on these findings, the trial court imposed the death sentence.

Farr v. State, 621 So.2d 1368, 1369 (Fla.1993) (footnotes omitted).

On direct appeal, we affirmed Farr’s convictions, but vacated Farr’s death sentence and remanded for a new penalty phase in light of the trial court’s failure to consider all of the available mitigation. Id. at 1370. At resentencing, Farr “forbade his attorney to present a case for mitigation on remand and ... Farr himself took the witness stand and systematically refuted, belied, or disclaimed virtually the entire case for mitigation that existed in the earlier appeal.” Farr v. State, 656 So.2d 448, 449 (Fla.1995). At the conclusion of the new penalty phase, Farr was once again sentenced to death by the trial court. Id. at 449. Finding that the trial court did not err in rejecting the case for mitigation, this Court affirmed Farr’s death sentence on appeal. Id. at 449-50.

In April of 1997, Farr filed an initial motion for postconviction relief with the trial court. In June of 2005, Farr amended his motion for postconviction relief, raising the following claims: (1) his plea was invalid due to ineffective assistance of his trial counsel, William Slaughter; (2) his plea was involuntary because it was the result of physical and psychological intimidation, abuse, stress, and duress; (3) Slaughter was ineffective by failing to present a voluntary intoxication defense to the offenses charged; (4) Slaughter was ineffective by failing to investigate the facts and circumstances of the collision and failing to present evidence that the crash was an accident; (5) the State committed a Brady violation; (6) Slaughter was ineffective by failing to investigate and present readily available evidence of mitigating circumstances; (7) the sentencing order was improperly authored by Farr’s prosecutor and the trial court failed to independently weigh the aggravating and mitigating circumstances and provide its reasoning for review on appeal; (8) Slaughter was ineffective by failing to investigate Farr’s psychiatric history, to obtain a proper mental health assessment, and to pursue appropriate mental health defenses; (9) Farr’s constitutional rights were violated by the State’s unlawful direct contact and communications with Farr; (10) Slaughter was ineffective by failing to object to, challenge, and confront the State’s Brady violation and the improprieties regarding the sentencing order and the State’s unlawful contact and communications with Farr in violation of Farr’s rights under the Fifth, Sixth, Eight and Fourteenth Amendments to the United States Constitution; and (11) the trial court erred in denying Farr’s Motion for Judicial Disqualification in violation of his right to a full and fair postcon-viction hearing pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and their Florida counterparts. After an evidentiary hearing, the trial court denied all claims for relief. This appeal followed.

Additionally, Farr has filed a petition for writ of habeas corpus, raising four claims: (1) he was denied an adequate mental health examination; (2) appellate counsel was ineffective in failing to assert that the trial court erred in proceeding with the plea hearing and sentencing without conducting a competency evaluation hearing; (3) appellate counsel was ineffective in failing to assert that Farr’s waivers of a penalty phase jury and mitigating evidence were not knowing, intelligent, and voluntary; and (4) appellate counsel was ineffective in failing to assert that the trial court’s reliance on Farr’s unreliable self-incriminating statements resulted in the arbitrary imposition of the death penalty. We address Farr’s claims in turn below.

I. POSTCONVICTION APPEAL

1. Ineffective Assistance of Trial Counsel and Farr’s Plea of Guilty

In order to prevail on his ineffective assistance of counsel claims, Farr must demonstrate both deficiency and prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to deficiency, Farr “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.” Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). As to prejudice, Farr “must demonstrate ‘a reasonable probability that, but for counsel’s errors, [Farr] would not have pleaded guilty and would have insisted on going to trial.’” Grosvenor v. State, 874 So.2d 1176, 1179 (Fla.2004) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). “Ineffectiveness [of counsel] is a mixed question of law and fact.” Strickland, 466 U.S. at 698, 104 S.Ct. 2052. Giving deference to the trial court on questions of fact, we review de novo the trial court’s legal conclusions. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004). Farr claims that the trial court erred in denying him postconviction relief because his guilty plea was invalid due to the ineffective assistance of counsel. Under this claim, Farr raises six different subclaims of ineffective assistance of counsel which allegedly led to his guilty plea. We consider each of them in turn.

a. First Ineffective Assistance of Counsel Claim

First, Farr argues that Slaughter was ineffective in failing to maintain an appropriate relationship with him, which led to Farr’s decision to plead guilty. Had Slaughter kept an appropriate relationship with him, Farr contends, there was a reasonable probability that he would not have entered a guilty plea. Specifically, Farr claims that for the first two months after Slaughter was appointed, Farr wrote repeatedly to him, and begged for Slaughter to visit him. According to Farr, after one month in jail, he had still not heard from Slaughter with the exception of a terse letter stating that he already had everything he needed to know.

The record reflects that Slaughter continuously attempted to persuade Farr not to plead guilty. Despite Slaughter’s attempts, Farr entered into the plea agreement on the condition that the State would recommend the death penalty. At the evi-dentiary hearing, Slaughter testified that he spoke with Farr for twenty to twenty-five minutes before he was appointed, met with him on six or seven, separate occasions, and communicated with him as needed., Moreover, the content of Slaughter’s letters to Farr indicates that Slaughter had maintained a reasonable relationship with Farr and kept him aware of the developments in the case as they occurred. At the plea hearing, Farr stated to the court that he was satisfied with Slaughter’s efforts on his behalf, and that Slaughter had attempted to persuade him not to plead guilty. Therefore, based on Slaughter’s testimony at the evidentiary hearing, Farr’s own statements at the plea hearing, and the content of Slaughter’s letters to Farr, we conclude that Slaughter’s communications with Farr were reasonable under the circumstances. Because Slaughter was not deficient in this respect, the trial court did not err in denying this ineffective assistance of counsel claim.

b. Second Ineffective Assistance of Counsel Claim

Farr argues that Slaughter was ineffective in facilitating Farr’s guilty plea in disregard of Farr’s history of severe depression and suicide attempts. Because the record indicates that Slaughter did not disregard Farr’s mental health history, this claim is without merit, and therefore, the trial court did not err in denying it.

c. Third Ineffective Assistance of Counsel Claim

Farr claims that Slaughter was ineffective in failing to present a voluntary intoxication defense, which led to Farr’s decision to plead guilty. To prevail on this claim, Farr must “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 88 (1955)). It is well-established that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” See Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). We do not “second-guess counsel’s strategic decisions about whether to pursue an intoxication defense.” See Jones v. State, 855 So.2d 611, 616 (Fla.2003). Whether or not counsel’s strategy was the correct one in hindsight is irrelevant to the question of ineffective assistance of counsel. See Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995).

In this case, Slaughter’s undisputed testimony at the evidentiary hearing was that he had considered the intoxication defense and discussed it with Farr, but ultimately rejected it for the strategic reasons of preventing Farr’s prior criminal history from being disclosed, avoiding any impeachment of the voluntary intoxication defense by Farr’s conflicting statements to the prosecution detailing the events of the night of the incidents, in addition to the fact that the jury likely had a negative view of intoxication. We have said that counsel is not deficient for rejecting a voluntary intoxication defense where the defendant has “recounted the incident with ‘great detail and particularity’ ” and confessed to forming the intent to commit the felony. See Johnson v. State, 593 So.2d 206, 209 (Fla.1992). We find that Slaughter made a reasonable strategic decision to not pursue a voluntary intoxication defense. Therefore, the trial court did not err in denying this claim.

d. Fourth Ineffective Assistance of Counsel Claim

Farr next argues that Slaughter was ineffective in allowing Farr to plead guilty without conducting an independent investigation into the facts and circumstances of the twelve felonies Fan-pled guilty to, when such an investigation would have revealed facts that would have disproved the charges against him.. At the evidentiary hearing, Farr presented expert testimony supporting the theory that the fatal car crash was an unintended accident. But the fact that the crash might have been accidental and unintentional is irrelevant to the felony murder charge because an intent to cause death is not an element of felony murder. See § 782.04(l)(a)2., Fla. Stat. (1990). Consequently, Slaughter “cannot be deemed deficient for failing to raise a nonmeritorious legal theory.” See Bradley v. State, 33 So.3d 664, 682 (Fla.2010) (quoting Thompson v. State, 759 So.2d 650, 665 (Fla.2000)). Farr also argues that counsel failed to investigate other facts underlying the felony murder and the other charges. However, even if we assume arguendo that Slaughter’s performance was deficient in failing to conduct a thorough investigation, the prejudice prong has not been met. There has been no demonstration that, but for Slaughter’s failure to investigate, Farr would not have pled guilty and would have insisted on going to trial. See Grosvenor, 874 So.2d at 1179. We have held that in determining whether there is a reasonable probability that the defendant would have insisted on going to trial:

a court should consider the totality of the circumstances surrounding the plea, including, such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and'the maximum possible sentence the defendant faced at a trial.

Id. at 1181-82.

Here, Farr has not set forth the facts which would have likely led to a successful defense at trial. Instead, Farr points to the fact that the fatal crash may have been an accident, which, as previously noted, is irrelevant to the felony murder charge, and that Farr was intoxicated on the night of the crash, which, as expressed above, Slaughter had considered and rejected for strategic reasons. Moreover, the record clearly indicates that Farr was fully aware and had an understanding of the plea process. The trial court questioned Farr thoroughly before accepting his plea of guilty to ensure that Farr was aware of the consequences of his plea. Under these circumstances, without demonstrating particular facts that a further investigation by counsel would have yielded, it cannot be said that but for Slaughter’s failure to investigate, he would not have pled guilty and would have insisted on going to trial. Therefore, the postconviction court did not err in denying this claim.

e. Fifth Ineffective Assistance of Counsel Claim•

Farr argues that Slaughter was ineffective in stipulating to an inaccurate and false factual basis' for Farr’s guilty plea to the charged offenses where counsel had not investigated the case, thereby facilitating Farr’s guilty plea. As stated by the Fourth District Court of Appeal:

The inquiry which the court should conduct in order to determine that there is a factual basis for the plea of guilty need not be a ‘mini-trial’.... “[T]he court may satisfy itself ... [by] statements and admissions made by the defendant, or by his counsel, or by the prosecutor.... It is not a matter of weighing the evidence but only to ... make certain that a defendant does not plead guilty to an offense of which he could not possibly be guilty.”

Monroe v. State, 318 So.2d 571, 573 (Fla. 4th DCA 1975). We find that the factual basis was sufficient to support the charges against Farr. Moreover, Farr himself testified under oath at the plea hearing that the factual basis was correct. Slaughter’s stipulation to the prosecutor’s factual statement was consistent with his investigation and was not unreasonable under these circumstances. Farr has also not shown that the factual basis for his plea was inaccurate or false. Accordingly, the trial court did not err in denying this claim.

f. Sixth Ineffective Assistance of Counsel Claim,

Lastly, Farr argues that Slaughter was ineffective in failing to protect Farr from physical and psychological abuse which Farr alleged was inflicted by guards in jail prior to and during the time he agreed to plead guilty. Specifically, in his letters to Slaughter, Farr said that he was being mistreated and threatened with beatings by prison guards. On February 28, 1991, Farr was beaten in jail. When Slaughter learned of this beating, he contacted the chief corrections officer and discovered that Farr was not beaten by prison guards but by other inmates, and that the guards were present to pull the inmates off of Farr. Farr was then moved to another location. After the beating, Farr did not raise further claims of mistreatment. Thus, counsel did not have further reason to look into the abuse complaints. Under these circumstances, Farr has not demonstrated what Slaughter could have done to prevent the abuse. Therefore, Slaughter’s performance was not deficient, and the trial court did not err in denying this claim.

2. Voluntariness of Farr’s Guilty Plea

Farr’s next claim is that his guilty plea was involuntary because it was the result of physical and psychological intimidation, abuse, stress, and duress. At the evidentiary hearing, Farr offered the testimonies of three of his cellmates who essentially confirmed that Farr was beaten in jail and that there was a change in Farr’s psyche after the beating. Although the trial court found their testimonies not credible, it is undisputed that Farr was beaten by fellow inmates on February 28, 1991. We have long held that a guilty plea must be made “without a semblance of coercion, and without fear or duress of any kind.” Nickels v. State, 86 Fla. 208, 99 So. 121, 121 (1924). It is of no consequence that the abuse was at the hands of other inmates because the threat or coercion is not required to originate from law enforcement or a state actor for the abuse to form the basis of an involuntary plea claim. See, e.g., Sanders v. State, 662 So.2d 1372, 1374 (Fla. 1st DCA 1995). Here, however, Farr had requested the death penalty before he was beaten. In his December 21,1990, letter to Slaughter, Farr initially indicated that he wanted the death penalty and periodically requested the death penalty thereafter. Even after the beating, Farr was still unsure as to how he wanted to proceed in the ease. We therefore conclude that Farr’s plea was not induced by the beating he endured while he was incarcerated, and Slaughter was not ineffective in this regard. Consequently, the postconviction court did not err in denying this claim.

3. Voluntary Intoxication Defense

Farr claims that Slaughter was ineffective in failing to present a voluntary intoxi-cátion defense. Farr raised this same issue in his first claim that such alleged ineffectiveness led to Farr’s decision to plead guilty. As we noted above, Slaughter discussed the availability of a voluntary intoxication defense with Farr, and after considering the defense, Slaughter rejected it for strategic reasons. Therefore, this claim is without merit and the trial court did not err in denying it.

4. Failure to Investigate

Farr also claims that Slaughter was ineffective in failing to investigate the facts and circumstances of the fatal crash and to present evidence that the crash was an accident. Farr raised this same issue in his first claim that, but for Slaughter’s failure to investigate, Farr would not have pled guilty and would have insisted on going to trial. As we concluded above, this claim is without merit because even if Slaughter’s performance was deficient, Farr fails to meet the prejudice prong.

5. Brady Claim

In this next claim, Farr asserts that the State violated Brady by withholding exculpatory evidence and information from Farr and Slaughter. Pursuant to Brady, the State must disclose material information within its possession or control that is favorable to the defense. 373 U.S. at 87, 83 S.Ct. 1194; see also Mordenti v. State, 894 So.2d 161, 168 (Fla.2004). To succeed on a Brady claim, Farr must prove that (1) favorable evidence — either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because such evidence was material Farr was prejudiced. See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Way v. State, 760 So.2d 903, 910 (Fla.2000).

Farr alleges that the State withheld evidence of a polygraph report made in connection with different offenses in Texas that revealed that Farr was not truthful. Because this evidence concerned Farr’s own statements, it was known to Farr, and therefore, Farr cannot show that had the polygraph report been disclosed, Farr would not have pled guilty to the charges against him. Farr also claims that the State withheld evidence of the prosecutor’s notes on the case: “Tell Jerry About Grand Juror Residence Problem” and “problem of victim’s Identifying the Defendant.” Farr has failed to show that these “problems” were favorable and material evidence suppressed by the State.

Farr also claims that the State withheld evidence that statements made to the police concerning Farr’s alcohol consumption and level of intoxication were intentionally skewed to make Farr appear “less drunk” at the time of commission of the crimes because the prosecutor believed that Farr would use. the voluntary intoxication defense. However, Farr did not present any evidence at the evidentiary hearing to support his assertion that witness statements concerning his level of intoxication were falsified under the State’s direction. Farr’s claim is baséd on speculation, and accordingly, is denied. Because Farr has not met his burden under Brady, the post-conviction court did not err in finding that the State did not commit any Brady violations.

6. Failure to Investigate and Present Available Mitigating Evidence

Farr asserts that Slaughter was ineffective for failing to investigate and present available mitigating evidence at the new penalty phase hearing,-including evidence of Farr’s psychiatric history. In order to succeed in this ineffective assistance of counsel claim, Farr must establish that Slaughter’s ineffectiveness “deprived [him] of a reliable penalty phase proceeding.” Henry v. State, 937 So.2d 563, 569 (Fla.2006) (quoting Asay v. State, 769 So.2d 974, 985 (Fla.2000)). On review, we must determine whether the “investigation supporting counsel’s decision not to introduce mitigating evidence.... was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (emphasis in original). Therefore, we must examine counsel’s reasons for not investigating and presenting mitigation. Sliney v. State, 944 So.2d 270, 281-82 (Fla.2006). Here, the reason that counsel did not introduce mitigating evidence is clear: Farr instructed him not to do so as demonstrated in a December 7, 1993, letter. Farr also stated in the letter that he did not wish Dr. Mhatre to testify about any mitigating evidence, and Farr himself took the stand and belied, discredited, and refuted virtually the entire mitigation case. Slaughter had discussed with Farr several mitigating factors which Slaughter had derived from reviewing the entire record on appeal, the court files, and his office files.

Although Farr has the right to waive a penalty phase mitigation presentation, see Ocha v. State, 826 So.2d 956, 961 (Fla.2002), “counsel must first investigate all avenues and advise the defendant so that the defendant reasonably understands what is being waived and its ramifications and hence is able to. make an informed, intelligent decision.” State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002) (footnote omitted); see also Koon v. Dugger, 619 So.2d 246, 249 (Fla.1993). Moreover, to effectuate this waiver,

counsel must inform the court on the record of the defendant’s decision. Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be. The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel’s recommendation, he wishes to waive presentation of penalty phase evidence.

Koon, 619 So.2d at 250.

It is clear that in this case the Koon requirements were met. Slaughter informed the court on the record of Farr’s decision, indicated that after reviewing the entire appellate record, court file, and his office file, he was unable to find any other mitigating circumstances, and Farr himself confirmed that he wanted Slaughter to carry out Farr’s instructions, set forth in the December 7, 1993, letter, despite the fact that Slaughter had discussed with him possible mitigation circumstances. Moreover, the record shows that the mitigation evidence presented at the evidentiary hearing was the same mitigation, albeit in greater detail, that existed in the record at the time of Farr’s new penalty phase proceeding. More importantly, even if Slaughter’s performance was deficient here, Farr has not satisfied the prejudice prong. Slaughter was aware of the mitigation that was presented at the evidentia-ry hearing and any additional mitigating evidence may have been futile as Farr expressly disavowed available mitigation at the new penalty phase proceeding. Consequently, the trial court did not err in denying this claim.

7. Sentencing Order

Farr claims that his sentencing order was impermissibly authored by the prosecutor, and that the trial court did not independently weigh the aggravators and mitigators in his case. A trial court is prohibited from directing the State to prepare the sentencing order where the court has not independently determined the specific aggravating and mitigating circumstances in a case. Patterson v. State, 513 So.2d 1257, 1261-63 (Fla.1987). This claim, however, is proeedurally barred because it was not raised on direct appeal. See Blackwelder v. State, 851 So.2d 650, 652 (Fla.2003).

Farr further argues that Slaughter was ineffective at trial in not objecting to the sentencing order. The trial court did not simply copy the State’s sentencing memorandum verbatim. The record indicates that after the conclusion of the presentation by the defense and the State, the trial judge retired to his chambers. When the judge emerged, he showed both defense counsel and the State changes he had made to the State’s sentencing memorandum. Specifically, the trial judge had incorporated Farr’s resentencing testimony into the State’s memorandum. The trial court also included a statement that it had searched the entire record and had not found other circumstances that would mitigate Farr’s conduct on the night of the murder. Therefore, because the trial court did conduct an independent determination of aggravators and mitigators in Farr’s case, Slaughter had no basis to object to the procedure employed by the court. Accordingly, this claim was properly denied by the postconviction court.

8. Failure to Investigate Farr’s Psychiatric History at Both the Guilt Phase and Penalty Phase

Farr claims that Slaughter was ineffective in failing to pursue mental health defenses. As to the guilt phase, Farr does not specifically address what mental health defenses counsel failed to pursue, and how they would have prevented him from pleading guilty and instead insist on going to trial. As to the penalty phase, this claim was raised in Farr’s ineffective assistance of counsel claim for failure to present available mitigation. As we stated above, Slaughter was aware of Farr’s psychiatric history, and discussed mental mitigation factors with Farr, but Farr chose not to present a mitigation case. Therefore, the trial court properly denied this claim.

9. The State’s Communications with Farr

Farr argues that the State improperly communicated with him while he was represented by Slaughter. Farr argues that the State’s communications with him were improper and manipulated him into pleading guilty. Farr points to three encounters between himself and Frank Owens, the Lake City Chief of Police, as well as to several letters he wrote to the prosecution. However, the record indicates that each encounter Farr had with law enforcement while represented by Slaughter, as well as Farr’s correspondence with the prosecutor, were on his own initiative. Farr was “free to volunteer a statement to police on his ... own initiative at any time on any subject in the absence of counsel,” see Traylor v. State, 596 So.2d 957, 966 (Fla.1992), and cannot now complain of this contact with police or the prosecutor. Moreover, the claim concerning the presentencing communication with Farr is procedurally barred because it could have been raised on direct appeal. See Schoenwetter v. State, 46 So.3d 535, 561 (Fla.2010). Therefore, the trial court did not err in denying this claim.

10.Failure to Challenge Prosecutorial Misconduct

Farr also claims that Slaughter was ineffective in failing to object to, challenge, and confront the State’s Brady violation, the improprieties regarding the sentencing order, and the State’s unlawful contact and communications with Farr in violation of Farr’s rights under the Fifth, Sixth, Eight, and Fourteenth Amendments to the United States Constitution. However, because Farr has failed to demonstrate any misconduct on behalf of the State in this case, any objection by Slaughter would have been without merit. Slaughter “cannot be deemed ineffective for failing to make a meritless objection.” See Hitchcock v. State, 991 So.2d 337, 361 (Fla.2008). Therefore, the trial court did not err in denying this claim.

11.“Motion to Disqualify” Claim

Farr claims that the postconviction court manifested bias against him and in favor of the State during the evidentiary hearing below. According to Farr, this bias is demonstrated by the postconvietion court’s refusal to allow Farr’s postconviction counsel to make arguments, introduce certain evidence, and proffer certain testimony that the postconviction court ruled inadmissible, as well as by the postconviction court’s instruction to the State to object to certain evidence, its unprofessional behavior toward certain defense witnesses and Farr’s counsel, and its ruling to allow the State to cross-examine an expert witness using a document from its own files and then refusing to allow the defense to introduce the same document for lack of authentication.

The postconviction court did not abuse its discretion in denying Farr’s motion to disqualify because Farr largely appears to have exhibited disagreement with its rulings. Such disagreement is insufficient to establish that a recusal motion was improperly denied. See Jackson v. State, 599 So.2d 103, 107 (Fla.1992) (“The fact that a judge has previously made adverse rulings is not an adequate ground for recusal.”). Moreover, as the State notes, the postcon-viction court also overruled several of the State’s objections, and the State was not immune from the judge’s admonishments. Although some of the judge’s comments to Farr’s postconviction counsel and the defense witnesses may have been improper, rude, or gratuitous, that alone does not support a conclusion that the judge was unfair and not impartial.

II. Habeas Corpus Petition

Farr has also raised several claims of ineffective assistance of appellate counsel through a petition for writ of habe-as corpus. Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of appellate counsel, we must determine:

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

Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986); see also Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000); Thompson v. State, 759 So.2d 650, 660 (Fla.2000). In raising such a claim, “[t]he defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069; see also Knight v. State, 394 So.2d 997, 1001 (Fla.1981). Claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000).

1. Ake Claim

In his first habeas claim, Farr asserts that Dr. Mhatre never evaluated Farr for mitigation, and appellate counsel was ineffective in failing' to raise this claim on appeal. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court said that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 83, 105 S.Ct. 1087. In Farr’s case, the record reveals that Slaughter requested a mental health evaluation, and one was ordered and completed by Dr. Mhatre. The evaluation was not intended for mitigation purposes. To the extent Farr is criticizing the quality of the evaluation rendered by Dr. Mhatre, this claim is without merit. First, it is unlikely that Farr would have permitted an evaluation at the time of the sentencing strictly for mitigation purposes, as Farr insisted on waiving his mitigation presentation. In addition, Dr. Mha-tre’s report did indicate several areas of mitigation which were available to be presented if Farr wished to do so. Therefore, Farr has failed to demonstrate that he had a meritorious Ake claim, and as such, appellate counsel was not ineffective in failing to raise this claim on direct appeal. Thompson, 759 So.2d at 668 (“[Ajppellate counsel cannot be deemed ineffective for failing to raise a meritless issue.”).

2. Incompetency Claim

In his second habeas claim, Farr argues that appellate counsel was ineffective in failing to assert on appeal that the trial court erred in proceeding with the plea hearing without conducting a competency evaluation and hearing. Pursuant to Florida Rule of Criminal Procedure 3.210(b), a trial court must hold a hearing to determine a defendant’s mental condition when it has reasonable ground to believe that a defendant is not mentally competent to proceed. Farr argues that his suggestion to the State for him to be charged with premeditated murder, his request for the death penalty, his waiver of a penalty phase jury and a mitigation presentation, and his characterization of the prosecutor and chief of police as his “friends,” constituted reasonable grounds for the trial court to order a competency hearing. However, Dr. Mhatre’s report concluded that Farr was competent, and, both at the plea hearing and the sentencing hearing, Slaughter informed the trial court that Farr had been found to be competent. Under these circumstances, the trial court did not have reasonable grounds to believe that Farr was incompetent to proceed. Thus, appellate counsel was not ineffective for failing to raise this competency issue on direct appeal.

3. The Claim of Invalidity of Farr’s Waivers of a Penalty Phase Jury and Mitigating Evidence

In his third habeas claim, Farr argues that appellate counsel was ineffective for failing to assert on direct appeal that Farr’s waiver of a penalty phase jury and mitigation was not knowing, intelligent and voluntary. As the basis for his claim that his waiver was not voluntary, Farr asserts that Slaughter failed to adequately investigate mitigating circumstances. However, Slaughter made Farr aware of the potential mitigation, yet Farr knowingly chose not to present mitigation. Because Farr’s waiver of mitigation and a penalty phase jury was voluntary, appellate counsel was not ineffective for failing to raise a meritless issue. Thompson, 759 So.2d at 663. Therefore, Farr’s claim is without merit.

4. Aggravating Factors, Corpus Delicti, and the Evidence at Sentencing

In his final habeas claim, Farr raises three subclaims. First, Farr claims that appellate counsel was ineffective in failing to raise the issue that the aggravating factors found by the trial court were not supported by competent, substantial evidence. In the first direct appeal, we agreed with the trial court that the four aggravating factors found by the trial court “clearly were established beyond a reasonable doubt.” Farr, 621 So.2d at 1370. Thus, it is clear that this Court found that the aggravators were established even if the issue was not raised by appellate counsel. Farr has failed to establish ineffective assistance of appellate counsel because no prejudice has been demonstrated. Second, Farr claims that the trial court’s reliance on his confession in finding Farr guilty violated the corpus delicti. This subclaim is also without merit. Pursuant to the principle of corpus delicti, “[bjefore a confession or statement may be admitted, there must be prima facie proof tending to show the crime was committed.” Tanzi v. State, 964 So.2d 106, 116 (Fla.2007) (quoting Schwab v. State, 636 So.2d 3, 6 (Fla.1994)). A prima facie case of felony murder does not require proof of intent to kill. Thus, contrary to Farr’s argument, the confession of intent could not have been the basis for the trial court’s finding of guilt as to the felony murder charge. Finally, Farr claims that the trial court’s reliance on unreliable evidence at sentencing violated Farr’s rights to an individualized sentencing. This claim also fails because it is procedurally barred as it was raised on direct appeal. See Breedlove v. Singletary, 595 So.2d 8, 10 (Fla.1992).

CONCLUSION

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

It is so ordered.

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

CANADY, J., concurs in result.

      . Farr was indicted for: (1) grand theft (for stealing a gun from his uncle’s home earlier on the day of the crimes); (2) attempted burglary of Lynch while armed with a firearm; (3) attempted robbery of Lynch while armed with a firearm; (4) attempted kidnapping of Lynch while armed with a firearm; (5) attempted kidnapping of Thomas while armed with a firearm; (6) attempted murder of Lynch; (7) attempted murder of Thomas; (8) burglary of Todd while armed with a firearm; (9) kidnapping of Bryant while armed with a firearm; (10) kidnapping of Todd while armed with a firearm; (11) robbery of Todd while armed with a firearm; and (12) first-degree felony murder of Bryant.

      . The mitigating evidence in the record included presentence investigation reports and a psychiatric evaluation. Id. at 1369.

      . Before we rendered the second direct appeal decision, Farr filed a waiver of his right to seek postconviction relief with the trial court.

      .Appellate counsel also argued that Farr’s resentencing testimony was self-serving and unreliable, and that our holding in Hamblen v. State, 527 So.2d 800 (Fla.1988), had been modified by more recent decisions. As to that argument, we held that Klokoc v. State, 589 So.2d 219 (Fla.1991), where the trial court appointed special counsel to present mitigation after the defendant forbade his own attorney to do so — did not modify the core holding in Hamblen that there is no constitutional requirement that such a procedure be followed. Farr, 656 So.2d at 450. We also rejected, as procedurally barred, Farr’s assertions that (1) this Court should recede from
        Hamblen; and (2) the trial court improperly found aggravating factors. Id. at 450 n. 1.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Farr sent various letters to Slaughter before he entered his plea. Slaughter testified at the evidentiary hearing that he had written at least two letters to Farr, had at least one telephone conference with him, and one meeting with him at the courthouse.

      . On January 10, 1991, in a letter to Farr, Slaughter stated that he was beginning to review Farr's indictment. Slaughter also stated that the notes from one of Farr's interviews and Farr’s letters had given him a fairly clear picture of Farr's version of the facts. Finally, Slaughter stated that he would visit Farr within the next several days. On February 14, 1991, Slaughter wrote Farr another letter, which stated: (1) he had provided Farr with discovery materials during a recent meeting at the courthouse; (2) a copy of the order appointing a defense expert had been mailed to Farr; (3) there was no basis for filing a motion for statement of particulars, nor was a motion for severance of offenses appropriate at the time, and that he was confused as to Farr’s request for a motion for continuance as Farr indicated that he wanted the case to be expedited; (4) a face-to-face conference was not necessary at the time; and (5) Slaughter would discuss Farr’s case (excluding confidential matters) with anyone whenever Slaughter believed that it would be advantageous to Farr.

      . For example. Slaughter requested a mental health examination of Farr which was completed by Dr. Mhatre. At the plea hearing, Slaughter disclosed to the trial court that he had requested the evaluation because Farr was requesting the death sentence, and Slaughter wanted to make sure that Farr "knew what he was doing.” Slaughter informed the trial judge that Dr. Mhatre found Farr to be competent.

      . When the murder was committed — in December of 1990 — voluntary intoxication was recognized as a defense. See § 775.051, Fla. Stat. (2011) (abolishing voluntary intoxication defense effective October 1, 1999).

      .This subclaim is also repeated as the third claim for postconviction relief.

      . Slaughter’s experience was that in order for an intoxication defense to be successful, Farr would have had to testify.

      . On February 20, 1991, Farr wrote a letter to the prosecution indicating that Farr intentionally crashed the vehicle so that he could kill himself and the victim. Farr also detailed how he twice told the victim to get out of the vehicle, but she refused, and Farr told her that the night was going "to have a sad end.” In addition, Farr stated in the letter that he was aiming at Thomas’ heart. These admissions by Farr to the prosecution would seriously undercut an intoxication defense.

      . This subclaim is also repeated as the fourth claim for postconviction relief.

      . The plea hearing was held on April 2, 1991.

      . Former cellmate Kenneth Texton testified that after the beating, Farr stated he was worried about what would happen in prison, and that if he was going to fear for his life every day while in prison, it was better for him to receive the death penalty. Texton also testified that Farr was fearful that the victim had several family members associated with the Department of Corrections. Former cellmate Leon Douglas testified that after the beating, Farr became extremely depressed and hopeless that Farr asked if he was going to be subject to abuse for twenty-five years, and stated he could not do it and felt the guards or the Columbia County Sheriff's Office were trying to persuade him through physical force to give up his constitutional rights. Douglas also testified that after the beating, Farr discussed with Douglas how he could obtain a death sentence and make the crime appear more brutal in letters to the victim's family, the state attorney's office, and the judge. Former cellmate Joel Heath testified that after the beating, Farr became paranoid, even more depressed, and decided that he deserved the death penalty.

      . Farr stated in pertinent part in his March 14, 1991, letter to Slaughter:
      [I]s there something you had planned I know nothing of? I truly don’t see any way out. True, I did not mean any of that night to take place nor can I understand why it did, but it did, now here I sit, my life over. Sir, I have asked you before, don’t let me sit down there a large number of years. If you see you can't have me out in 10 to 15 years, no more, just let the ball roll.

      . In United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002), the United States Supreme Court held that "the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” Id. at 633, 122 S.Ct. 2450 (emphasis added); see also United States v. Moussaoui, 591 F.3d 263, 281 n. 14 (4th Cir.2010) ("Moussaoui’s constitutional claims under Brady ... are barred by his guilty plea.”); United States v. Conroy, 567 F.3d 174, 179 (5th Cir.2009) ("Conroy’s guilty plea precludes her from claiming that the government’s failure to disclose the FBI report was a Brady violation.”). We assume arguendo that Farr is not precluded from raising his Brady claim because he pled guilty.

      . Farr presented fifteen mitigation witnesses at the evidentiary hearing who testified about Farr’s psychiatric problems, childhood abuse, and substance abuse issues.

      . The first encounter occurred on December 12, 1990, one day before Slaughter's appointment. The interview transcript of that encounter indicates that the police requested, and Farr agreed, that they be allowed to question him. During the interview, Farr was read his Miranda warnings, which he waived. The second encounter on January 17, 1991, occurred at the request of Farr. Chief Owens again Mirandized Farr, and Farr gave a recorded statement wherein he said that he could not remember parts of the night of the crash, but that he accepted blame for the victim's death. The third encounter on February 20, 1991, also occurred at the request of Farr.

      . Farr claims that the trial judge admonished and stifled defense witnesses and was discourteous to them and to counsel, made abusive and derisive comments to Farr’s post-conviction counsel, and disparaged and reprimanded Farr’s postconviction counsel for being "shrill” and "hysterical.”

      . At the plea hearing, Slaughter stated to the trial court that he requested the evaluation because Farr was requesting that he be sentenced to death, and Slaughter wanted to ensure that Farr "knew what he was doing.” In his report, Dr. Mhatre concluded that Farr was competent at both the time of the offense and at the time of the evaluation.

      . Rule 3.210(b) existed at the time of Farr’s plea hearing, sentencing, and resentencing in 1991 and 1993.

      .Farr maintains that Slaughter's ineffectiveness was apparent on the face of the record. "An ineffective assistance of counsel claim may be brought on direct appeal only in the 'rare' instance where (1) the ineffectiveness is apparent on the face of the record, and (2) it would be ‘a waste of judicial resources to require the trial court to address the issue.’ " Ellerbee v. State, 87 So.3d 730, 739 (Fla.2012) (quoting Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987)).

      . The aggravating factors were: (1) Farr had previously been convicted of another capital felony or of a felony involving the threat of violence to the person; (2) the homicide was committed while Farr was fleeing from the commission of a kidnapping, a robbery, two attempted kidnappings, and an attempted robbery; (3) the homicide was committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of laws; and (4) the homicide was especially heinous, atrocious, or cruel. Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Troy MERCK, Jr., Appellant, v. STATE of Florida, Appellee. Troy Merck, Jr., Petitioner, v. Michael D. Crews, etc., Respondent.
    Nos. SC10-1830, SC11-1676.
    Supreme Court of Florida.
    Jan. 24, 2013.
    Rehearing Denied May 1, 2013.

      Bill Jennings, Capital Collateral Regional Counsel, and Richard Edward Kiley, James Vincent Viggiano, Jr., and Ali Andrew Shakoor, Assistant Capital Collateral Regional Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Stephen D. Ake, and Robert J. Landry, Assistant Attorneys General, Tampa, FL, for Appellee/Respon-dent.
   PER CURIAM.

Troy Merck, Jr., appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the denial of his motion and deny his habeas petition.

OVERVIEW

Troy Merck, Jr., was convicted of first-degree murder following the stabbing of James Anthony Newton, which occurred in the early morning of October 12, 1991, outside of a bar. This Court affirmed Merck’s conviction but twice reversed his sentence due to penalty phase errors. After a third penalty phase, the jury recommended the death sentence by a vote of nine to three. After a Spencer hearing, the trial judge sentenced Merck to death. This Court affirmed Merck’s sentence. Merck v. State (Merck III), 975 So.2d 1054, 1067 (Fla.2007).

Merck filed a postconviction motion asserting various claims, and after an eviden-tiary hearing on some of those claims, the postconviction court denied Merck’s motion. Merck has appealed. Merck has also filed a habeas corpus petition.

FACTS AND PROCEDURAL HISTORY

This Court summarized the facts underlying Merck’s conviction:

Newton died after Merck repeatedly stabbed him while the two men were in the parking lot of a bar in Pinellas County shortly after 2 a.m. on October 12, 1991. The bar had closed at 2 a.m., and several patrons of the bar remained in the parking lot. The evidence was that several of these individuals, including the victim, Merck, and those who witnessed the murder, had consumed a substantial amount of alcohol during the evening while at the bar.
After closing, Merck and his companion, both of whom had recently come to Florida from North Carolina, were in the bar’s parking lot. The two were either close to or leaning on a vehicle in which several people were sitting. One of the car’s occupants asked them not to lean on the car. Merck and his companion sarcastically apologized. The victim approached the car and began talking to the car’s owner. When Merck overheard the owner congratulate the victim on his birthday, Merck made a snide remark. The victim responded by telling Merck to mind his own business. Merck attempted to provoke the victim to fight; however, the victim refused.
Merck then asked his companion for the keys to the car in which he had come to the bar. At the car, Merck unlocked the passenger-side door and took off his shirt and threw it in the back seat. Thereafter, Merck approached the victim, telling the victim that Merck was going to “teach him how to bleed.” Merck rushed the victim and began hitting him in the back with punches. The person who had been talking to the victim testified that she saw a glint of light from some sort of blade and saw blood spots on the victim’s back. The victim fell to the ground and died from multiple stab wounds; the main fatal wound was to the neck.
Merck was indicted on November 14, 1991, for the first-degree murder of James Anthony Newton. The case went to trial and ended in a mistrial on November 6, 1992, because the jury was unable to reach a verdict. After a second trial, Merck was found guilty as charged. The jury recommended death by a vote of nine to three.... The trial court sentenced Merck to death.

Merck v. State (Merck I), 664 So.2d 989, 940-41 (Fla.1995).

On October 12, 1995, this Court affirmed the conviction but reversed Merck’s death sentence because it found that a North Carolina juvenile adjudication presented to the jury was not a “conviction” within the meaning of the prior violent felony aggra-vator and that admitting evidence regarding this adjudication was harmful error. Id. at 944. A second penalty phase proceeding was conducted in July of 1997. That- jury unanimously recommended a death sentence, which- the trial court imposed. On July 13, 2000, this Court once again reversed the death sentence because the trial court failed to adequately consider nonstatutory mitigation in its sentencing order and inappropriately applied the felony probation aggravator, which did not exist at the time of Newton’s murder. Merck v. State (Merck II), 763 So.2d 295, 298-99 (Fla.2000).

On March 17-19, 2004, a third penalty phase was. conducted. The jury recommended the death sentence by a vote of nine to three. After a Spencer hearing, the trial judge sentenced Merck to death on August 6, 2004, finding two aggravating factors: prior violent felony and heinous, atrocious, or cruel; one statutory mitigating factor: age of nineteen at the time of the offense; and three nonstatutory mitigating factors: difficult childhood/relationship with mother, under influence of alcohol--at the time of the offense, and capacity for growth as evidenced by his social improvements while in .prison. On appeal from the third resentencing, Merck raised the following claims: (1) whether the trial court improperly excluded evidence relating to Merck’s presumptive parole date that was relevant to the jury’s determination of sentence; (2) whether the trial court improperly excluded evidence that was relevant to the nature and circumstance of the offense, had bearing on the finding of an aggravating factor, and could have been the basis for additional mitigating factors; (3) whether improper remarks to the jury, made by the assistant state attorney during closing argument, denied Merck of a fair penalty phase proceeding; (4) whether the death sentence must be reversed because the trial coui*t failed to find or gave too little weight to mitigating factors; (5) whether the death sentence imposed is proportionate; and (6) whether Florida’s death penalty statute is unconstitutional. On appeal, this Court affirmed Merck’s sentence of death. Merck III, 975 So.2d at 1059, 1067.

Merck filed a postconviction motion in the trial court raising the following issues: (1) Merck was denied the effective assistance of counsel at the guilt/innocence phase of his capital trial, and as a result, Merck’s convictions and death sentence are unreliable; (2) Merck did not receive effective assistance of counsel throughout his penalty phase; (3) Florida’s death penalty statute is facially vague and over-broad, and the penalty phase jury received unconstitutional instructions that diluted its sense of responsibility in determining the proper sentence, which constituted fundamental error because counsel did not litigate these issues; (4) Florida’s capital sentencing statute is unconstitutional on its face and as applied for failing to prevent the arbitrary and capricious imposition of the death penalty, and to the extent that counsel did not litigate this issue, Merck received ineffective assistance of counsel; (5) the heinous, atrocious, or cruel jury instruction was unconstitutionally vague and overbroad; (6) Merck’s trial was fraught with procedural and substantive errors, which, as a whole, deprived Merck of a fundamentally fair trial; and (7) the death penalty is cruel and unusual punishment as applied to Merck who may be incompetent at the time of execution. Merck asserted that claims 1 and 2 of his postconviction motion required an eviden-tiary hearing, and the postconviction court granted an evidentiary hearing on those claims. Merck asserted that claims 3-7 did not necessitate an evidentiary hearing and that he was only raising the claims in order to preserve them for federal review. After an evidentiary hearing on claims 1 and 2, the trial court denied those claims and summarily denied the claims for which Merck did not request an evidentiary hearing.

Merck has appealed, raising the following issues for this Court’s review: (1) whether the postconviction court erred in denying the claim that trial counsel was ineffective in (a) presenting two defense theories and (b) failing to object to an improper and misleading jury instruction in the guilt phase of the trial; (2) whether the postconviction court erred in denying the claim that trial counsel was ineffective for failing to strike two jurors whose statements during voir dire revealed that they were incapable of being impartial regarding the death penalty; (3) whether counsel’s failure to proffer testimony to show that. Merck was a minor participant in the crime deprived him of his right to a fair trial; (4) whether the failure of law enforcement to keep and preserve evidence was a bad faith failure to preserve exculpatory evidence in violation of Merck’s right to due process; (5) whether the postcon-viction court erred in denying the claim that Merck did not receive effective assistance of counsel during the penalty phase because counsel did not present his mental health expert to the jury; and (6) whether counsel was ineffective in the penalty phase by failing to ask for statutory mental mitigators at the charge conference.

Merck has also filed a habeas corpus petition, raising the following issues: (1) whether cumulative error deprived Merck of a fair trial; (2) whether the sentence of death constitutes cruel and unusual punishment based on Merck’s incompetency; (3) whether Florida’s death penalty statute is unconstitutional as applied to Merck’s case; and (4) whether counsel was ineffective for failing to allege that Florida’s capital sentencing statute is unconstitutional on its face and as applied to Merck’s case.

Merck filed a pro se all writs petition while his postconviction appeal was pending in this Court, asserting that his post-conviction counsel was ineffective because counsel failed to raise all of the claims Merck wished to address and requesting new counsel. This Court denied the petition on the merits. Merck v. State, 60 So.3d 387 (Fla.2011) (table decision).

As explained below, we affirm the trial court’s denial of relief and deny Merck’s habeas petition.

POSTCONVICTION MOTION

Ineffective Assistance of Counsel Claims

Merck raises the following ineffective assistance of counsel claims: (1) whether the postconviction court erred in denying the claim that trial counsel was ineffective in (a) presenting two defense theories and (b) failing to object to an improper and misleading jury instruction in the guilt phase of the trial; (2) whether the postcon-viction court erred in denying the claim that trial counsel was ineffective for failing to strike two jurors whose statements during voir dire revealed that they were incapable of being impartial regarding the death penalty; (3) whether counsel’s failure to proffer testimony during the penalty phase to show-that Merck was a minor participant in the crime deprived him of his right to a fair trial; (4) whether the postconviction court erred in denying the claim that Merck did not receive effective assistance of counsel during the penalty phase because counsel did not present his mental health expert to the penalty phase jury; and (5) whether counsel was ineffec-five in the penalty phase for failing to ask for statutory mental mitigators at the charge conference.

Standard of Review

Following the United State Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, the defendant must demonstrate both deficiency and prejudice:

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)).

There is a strong presumption that trial counsel’s performance was not deficient. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. “[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). Furthermore, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument. Melendez v. State, 612 So.2d 1366, 1369 (Fla.1992).
In demonstrating prejudice, the defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.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 circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

Johnston v. State, 63 So.3d 730, 737 (Fla.2011) (parallel citations omitted).

1. Voluntary Intoxication Defense and Jury Instructions

First, Merck asserts that defense counsel was ineffective during the guilt phase of his trial for presenting two defense theories of (1) reasonable doubt of the identity of the perpetrator and (2) voluntary intoxication. We disagree. “Inconsistent defenses are allowable in criminal cases where the proof of one does not necessarily disprove the other.” Phillips v. State, 874 So.2d 705, 707 (Fla. 1st DCA 2004). Such strategic decisions do not necessarily fall below the standard of reasonable assistance of counsel so as to be deemed deficient. See Ford v. State, 955 So.2d 550, 553-54 (Fla.2007) (counsel not ineffective for presenting evidence of voluntary intoxication, even though the main defense was that the State’s case was inadequate to show defendant’s guilt, because the intoxication defense was not advanced as an admission of guilt, was secondary to the main defense, and “to the extent it was offered as a defense, it was done to defeat the premeditation element of the murder charge”). Here, Merck’s defense counsel was not deficient for presenting these two theories because counsel never admitted Merck’s guilt in advancing the intoxication theory, primarily focused on the theory of reasonable doubt as to the adequacy of the State’s case, and used the intoxication defense to negate premeditation. As Frederic Zinober, co-counsel during Merck’s guilt phase trial, testified during the post-conviction evidentiary hearing, based on Merck’s and other witnesses’ statements regarding how many drinks Merck had consumed on the night of the murder, he believed a secondary voluntary intoxication defense was an appropriate strategy if the jury did not believe the defense’s main theory that the State had not proven beyond a reasonable doubt that Merck was the perpetrator. Accordingly, counsel was not deficient for presenting both theories to the jury. See id.; Dufour v. State, 905 So.2d 42, 52 (Fla.2005) (“This Court has held that it will not second-guess counsel’s strategic decisions concerning whether an intoxication defense will be pursued.”). We need not address the prejudice prong of the Strickland test since Merck cannot meet the deficiency prong. See Evans v. State, 946 So.2d 1, 12 (Fla.2006) (“[Because the Strickland standard requires establishment of both [deficient performance and prejudice] prongs, when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.”) (quoting Whitfield v. State, 923 So.2d 375, 384 (Fla.2005)).

Secondly, Merck contends that trial counsel was ineffective because he did not object to the trial court’s characterization of voluntary intoxication as the sole defense rather than one of the defenses. Merck asserts that this misled the jury because voluntary intoxication was not “the” defense asserted, but rather a lesser, secondary defense, and innocence based on reasonable doubt of the identity of the perpetrator was the main defense. Merck fails to establish prejudice for this claim.

Zinober conceded during the postconviction evidentiary hearing that it would have been preferable for the trial court to correctly state that voluntary intoxication was “a” defense rather than “the” defense. However, the record indicates that the jury heard both defenses throughout the trial. During the defense’s closing argument, after discussing voluntary intoxication, Zinober argued to the jury that the main defense was that the State had not adequately proven that Merck committed the murder and recounted evidence that had been introduced during the trial that supported this theory. Based on the evidence provided to the jury throughout the trial regarding both defenses, the trial court’s statement does hot appear to have misled the jury to believe voluntary intoxication was the sole asserted defense. Therefore, Merck has not established prejudice. See Johnston, 63 So.3d at 737. We need not address the performance prong of the test since Merck cannot meet the prejudice prong. See Evans, 946 So.2d at 12. Accordingly, we affirm the trial court’s denial of this claim.

2. Penalty Phase Jurors

Merck asserts that counsel was ineffective for failing to move to strike two jurors who he claims were predisposed to vote for the death penalty. We disagree.

“The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.” Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). Jurors who initially express strong views pertaining to the death penalty are permitted to serve if they clearly indicate an ability to abide by the trial court’s instructions. Johnson v. State, 660 So.2d 637, 644 (Fla.1995); Bryant v. State, 656 So.2d 426, 428 (Fla.1995). Where a lawyer’s incom petence involves the failure to preserve a cause challenge to a juror, the proper inquiry for deciding whether prejudice for purposes of an ineffective assistance claim has occurred is whether the failure to preserve a challenge to a juror resulted in a biased juror serving on the jury. Carratelli v. State, 961 So.2d 312, 324 (Fla.2007). If a lawyer’s error did not result in the seating of a biased juror, then postconviction relief on the basis of the lawyer’s alleged ineffectiveness is not appropriate. See id.

A review of the record shows that the challenged jurors were not biased or predisposed to vote for the death penalty. The challenged jurors’ responses to questions during voir dire did not reveal that they were leaning toward imposing the death penalty or that they had preconceived notions that made them biased. As Watts, defense co-counsel with Schwartz-berg during the penalty phase trial, testified at the. postconviction evidentiary hearing, the statements made-by the challenged jurors were consistent with those of people willing to listen to both sides and not people who would automatically vote for the death penalty. The challenged jurors confirmed that they would base their decisions upon the information presented and would consider evidence of both aggravating and mitigating factors. Therefore, Merck has not established prejudice. We need not address the performance prong of the test since Merck cannot meet the prejudice prong. See Evans, 946 So.2d at 12. Accordingly, we affirm the trial court’s denial of this claim.

3. Minor Participant Evidence

Merck asserts that his penalty phase counsel was ineffective for failing to proffer testimony which would have demonstrated that Merck was a minor participant in accordance with section 921.141(6)(d), Florida Statutes. Specifically, Merck contends that because counsel failed to proffer evidence that Merck may not have been the murderer, that evidence was not preserved for appellate review. Merck contends that had this evidence been properly preserved by proffer, this Court would have been able to review that evidence and would have reversed his death sentence. Merck’s claim is without merit.

To establish prejudice, Merck must show that if the testimony had been proffered, there is a reasonable probability that “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Johnston, 63 So.3d at 737 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “A defendant has the right in the penalty phase of a capital trial to present any evidence that is relevant to, among other things, the nature and circumstances of the offense.” Downs v. State, 572 So.2d 895, 899 (Fla.1990). In the penalty phase, a trial judge is permitted to consider as mitigating evidence the fact that a defendant was an accomplice in the capital felony and that his or her participation was relatively minor. See § 921.141(6)(d), Fla. Stat. (2007). However, the evidence that Merck now claims should have been proffered and considered by the jury at his penalty phase was not evidence of his minor participation, but rather of his innocence.

“[W]here the sole purpose for seeking to have the evidence admitted [is] to show residual or lingering doubt of [the defendant’s] innocence,” the evidence is inadmissible at the penalty phase. England v. State, 940 So.2d 389, 406 (Fla.2006). As Watts conceded during the postconviction evidentiary hearing, the evidence the defense sought to admit during the penalty phase would have been used to raise fingering doubt as to whether Merck was the actual perpetrator and was inadmissible for this reason. Merck does not have a right to re-litigate his guilt during the penalty phase after being found guilty as the perpetrator in the guilt phase. See, e.g., Williamson v. State, 961 So.2d 229, 237-38 (Fla.2007) (reiterating that “ ‘residual or fingering doubt ... is not an appropriate matter to be raised in mitigation during the penalty phase proceedings of a capital case.’ ”) (quoting Rose v. State, 675 So.2d 567, 572 n. 5 (Fla.1996)).

Even if counsel had proffered the evidence, evidence of fingering doubt, it would have been inadmissible at the penalty phase. Therefore, Merck has not established prejudice. See Johnston, 63 So.3d at 737. We need not address the performance prong of the test since Merck cannot meet the prejudice prong. See Evans, 946 So.2d at 12. Accordingly, we affirm the trial court’s denial of this claim.

4. Mental Health Expert Testimony

Merck asserts that during his third penalty phase, defense counsel Schwartzberg rendered ineffective assistance by failing to provide his mental health expert, Dr. Maher, with sufficient background information regarding Merck’s mental mitigation and in making an uninformed decision not to call Dr. Maher to testify before the jury. Merck contends that had Dr. Maher testified in front of the penalty phase jury, two statutory miti-gators would have been established: (1) under extreme mental or emotional disturbance, and (2) capacity to conform conduct to the law was impaired, which would have resulted in the jury recommending a life sentence rather than death. We find that Merck cannot establish the necessary prejudice regarding this claim.

As this Court has said, “the obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated.” State v. Lewis, 838 So.2d 1102,1113 (Fla.2002).

In determining whether the penalty phase proceedings were reliable, [t]he “failure [of counsel] to investigate and present available mitigating evidence is a relevant concern along with the reasons for not doing so.” Asay v. State, 769 So.2d 974, 985 (Fla.2000) (quoting Rose v. State, 675 So.2d 567, 571 (Fla.1996)) (alterations in original). Thus, when evaluating claims that counsel was ineffective for failing to present mitigating evidence, the defendant must show that counsel’s ineffectiveness “deprived the defendant of a reliable penalty phase proceeding.” Id. (quoting Rutherford v. State, 727 So.2d 216, 223 (Fla.1998)).

Orme v. State, 896 So.2d 725, 731 (Fla.2005).

While we are concerned at the lack of communication between Schwartzberg and Dr. Maher, Merck has not established the second prong of prejudice to be entitled to relief under an ineffective assistance of counsel claim. The record indicates that Dr. Maher was informed about Merck’s background and mental conditions. Dr. Maher’s 1992 deposition provides that Maher discussed his mental diagnoses of Merck, including his opinion that Merck suffered from Post Traumatic. Stress Disorder (PTSD), Attention Deficit Hyperactivity Disorder (ADHD), ptosis, fetal alcohol effect, brain injuries and alcoholism. Dr. Maher’s 2003 deposition includes his opinion that Merck qualified for the statutory mitigators of (1) under extreme mental or emotional disturbance, and (2) capacity to conform conduct to the law was impaired. Schwartzberg and Watts had at their disposal the 1992 deposition and were present at the 2003 deposition and thus Merck’s defense counsel would have been aware of Dr. Maher’s diagnoses of Merck.

The postconviction evidentiary hearing also provided evidence that the State was prepared to introduce the following negative evidence in rebuttal to Dr. Maher’s testimony: Merck’s violent history; Dr. Sloman’s diagnosis of Merck as having antisocial personality disorder — a diagnosis which Dr. Maher conceded was detrimental to the defense’s case; Merck’s admission that he stabbed the victim; and Merck’s acknowledgement that the way he responded on the night of the murder was beyond what he thought was necessary to protect himself. Dr. Maher testified at the postconviction evidentiary hearing that Merck suffered, from an impulsivity disorder. This allowed the State to inquire into the basis for the diagnosis, and subsequently elicit testimony about Merck’s violent history. Dr. Maher confirmed his awareness of several violent acts committed by Merck and his opinion that each of those was consistent with his diagnosis. Additionally, all of Dr. Maher’s diagnoses of Merck’s mental mitigation were presented to the judge during the Spencer hearing and, as discussed in subsection 5 below, the judge rejected the mental mitigation, which we affirmed on direct appeal. Merck III, 975 So.2d at 1064-66. Furthermore, the jury heard about mitigation from lay witnesses including friends and family who testified about Merck’s disturbing upbringing, and was provided with the “catch-all” mitigation provision.

In light of the mitigation evidence provided by the lay witnesses, the fact that the new information by Dr. Maher would have provided a more negative picture of Merck, and the fact that the trial court rejected the statutory mitigators even after Dr. Maher testified at the Spencer hearing, we find that Merck was not prejudiced by Sehwartzberg’s decision not to call Dr. Maher to testify at the penalty phase jury trial. See Gaskin v. State, 822 So.2d 1243, 1250 (Fla.2002) (“The trial court was also not convinced that Gaskin would have received a life sentence if the evidentiary hearing testimony had been presented at trial because the new evidence merely included much cumulative information that had already been considered and rejected by the trial court, and the new information painted a much more negative and prejudicial picture of Gas-kin.”). Accordingly, because the detrimental effect would likely have outweighed any benefit from Dr.. Maher’s testimony, Merck has failed to establish prejudice. See Johnston, 63 So.3d at 737. Because Merck’s claim fails under the prejudice prong of Strickland, the deficiency prong need not be addressed. See Evans, 946 So.2d at 12.

5. Statutory Mental Mitigators

Merck asserts that counsel was ineffective for failing to request the following statutory mental mitigators be read to the penalty phase jury: (1) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and (2) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance. This claim is without merit.

Only where a defendant has presented evidence of a statutory mitigator should the trial judge read the applicable instructions to the jury. See Bryant v. State, 601 So.2d 529, 533 (Fla.1992) (A “[defendant is entitled to have the jury instructed on the rules of law applicable to [his] theory of the defense if there is any evidence to support such instructions.”) (quoting Hooper v. State, 476 So.2d 1253, 1256 (Fla.1985)).

Here, the defense did not present evidence to the penalty phase jury to support the trial court providing the jury with the statutory mitigation instructions for either (1) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, or (2) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance. Although the jury heard extensive testimony about Merck’s background and disturbing upbringing through the testimonies of lay witnesses and was instructed on the “catch-all” mitigating factors, these testimonies did not provide evidence that at the time of the murder Merck was under extreme mental or emotional disturbance or that his capacity to conform his conduct to the law was impaired. Accordingly, because no evidence in support of these miti-gators was presented to the jury, counsel was not deficient for failing to request such mitigators be read to the jury. See Cole v. State, 841 So.2d 409, 420-21 (Fla.2003) (counsel not ineffective for failing to request instructions for extreme emotional and mental disturbance and impaired capacity statutory mental mitigators because the psychologist did not render an opinion during the penalty phase concerning whether the two statutory mitigators applied to the murder for which the defendant was on trial).

Additionally, defense counsel proposed these mitigators to the trial court after the Spencer hearing, which the trial court considered and rejected in its sentencing order. We addressed the merits of Merck’s claim that the trial court erred in failing to consider these statutory mental mitigators in its decision in Merck III, and denied Merck’s claim on the merits:

Merck argues that the trial judge erred by failing to find two statutory mitigating factors: that Merck was under the influence of extreme mental or emotional disturbance; and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired at the time of the stabbing. A trial judge may reject a claim that a mitigating circumstance has been proven, provided that the record contains competent, substantial evidence to support the rejection. Franqui v. State, 804 So.2d 1185, 1196 (Fla.2001) (citing Mansfield v. State, 758 So.2d 636, 646 (Fla.2000)). A trial court’s rejection of a proposed mitigating factor will be upheld on appeal so long as competent, substantial evidence exists to support the rejection. Banks v. State, 700 So.2d 368, 638 (Fla.1997); see also Willacy v. State, 696 So.2d 693, 696 n. 6 (Fla.1997) (noting that Court’s appellate review function does not involve reweighing or reevaluating evidence of aggravating and mitigating circumstances, and receding from prior cases to extent that they indicated otherwise). After reviewing the record, we find that the trial judge did not abuse his discretion in rejecting the proposed mitigating factors because his findings are supported by competent, substantial evidence.
First, competent, substantial evidence supports the trial judge’s finding that Merck’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired. Katherine Sullivan, a friend of the victim who witnessed the stabbing, testified that Merck successfully caught keys thrown to him just moments before the stabbing, despite his alleged alcohol consumption, and that Merck did not have any trouble walking at the time of the murder. Neil Thomas, Merck’s companion on the night of thé murder, testified that Merck did not have any trouble walking or talking as a result of his alcohol consumption. Merck’s efforts to evade police after the stabbing, such as abandoning the car, changing clothes, and hiding in bushes, indicate that he was not too drunk to appreciate the criminality of his actions. Finally, Dr. Sloman, the State’s expert psychologist, testified that he did not believe that impairment from Merck’s personality disorder or his alcohol consumption rose to the level of this statutory aggravator because he concluded that Merck made conscious decisions to behave as he did.
Second, competent, substantial evidence supports the trial judge’s finding that the capital felony was not committed while Merck was under the influence of extreme mental or emotional disturbance. While Dr. Maher, the defense’s expert psychiatrist, testified that he believed Merck was experiencing extreme mental or emotional turmoil at the time of the crime, Dr. Sloman testified that he did not believe that Merck was experiencing extreme mental or emotional distress at the time of the crime. When experts disagree, the trier of fact is entitled to resolve the resulting factual issue. See Walls v. State, 641 So.2d 381, 390 (Fla.1994). Here, the trial court gave greater weight to Dr. Sloman’s testimony. Questions relating to evidentia-ry weight are within the province of the circuit court, and this Court will not reweigh the evidence on appeal. Trotter v. State, 932 So.2d 1045, 1050 (Fla.2006). We defer to the trial judge’s finding that this mitigating factor was not established because his finding was supported by Dr. Sloman’s testimony.
. Here, the trial judge described Merck’s difficult childhood and noted Merck’s apparent effort to make “the best of’ being in prison before assigning those mitigating circumstances “some weight.” He also explained in detail his reasons for finding that the mitigating circumstance of Merck’s alcoholism and his alcohol consumption on the night of the murder merited only little weight. Again, after reviewing the record, the trial judge’s assignments of weight to the established mitigating factors do not appear unreasonable or arbitrary given the entirety of the evidence presented. Thus, we find this claim is without merit.

Merck III, 975 So.2d at 1064-66. According to the trial court’s rejection of the statutory mitigators after Dr. Maher provided evidence in support of the miti-gators, the trial court would likely have rejected the statutory mitigators had counsel requested the instructions be read to the jury without the benefit of Dr. Maher’s testimony concerning his opinion that Merck qualified for the mental mitigators. Counsel cannot be deemed deficient for failing to make a meritless argument. See Johnston, 63 So.3d at 737. Because Merck’s claim fails under the deficiency prong of Strickland, the prejudice prong need not be addressed. See Evans, 946 So.2d at 12. Accordingly, we affirm the trial court’s denial of this claim.

Because Merck has failed to establish both prongs of Strickland in any of his ineffective assistance of counsel claims, we affirm the trial court’s denial of his ineffective assistance of counsel claims.

Newly Discovered Evidence Claim

Merck asserts that the destruction of khaki pants -allegedly worn by the perpetrator and found in Merck’s car violated his right to due process because Detective Nestor intentionally destroyed potentially exculpatory evidence. Merck claims that Nestor’s testimony in 1997 provided new evidence of Nestor’s awareness that the khaki pants were of evidentiary value at the time he discarded them. We affirm the postconviction court’s summary denial of this claim.

To obtain a new trial based on newly discovered evidence, a defendant must satisfy a two-prong test:

First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” [Jones v. State, 709 So.2d 512, 521 (Fla.1998) (Jones II) ]. Newly discovered evidence satisfies the second prong of the Jones II test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Jones II, 709 So.2d at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)). “If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence.” Marek v. State, 14 So.3d 985, 990 (Fla.2009) (citing Jones v. State, 591 So.2d 911, 915 (Fla.1991) (Jones I)).

Johnston v. State, 27 So.3d 11, 18-19 (Fla.2010).

The summary denial of a newly discovered evidence claim will be upheld if the motion is legally insufficient or its allegations are conclusively refuted by the record. McLin v. State, 827 So.2d 948, 954 (Fla.2002). Because a court’s decision whether to grant an evidentiary hearing on a Florida Rule of Criminal Procedure 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. See State v. Coney, 845 So.2d 120, 137 (Fla.2003) (holding that “pure questions of law” that are discernible from the record “are subject to de novo review”). Accordingly, when reviewing a court’s summary denial of an initial rule 3.851 motion, this Court must accept the movant’s factual allegations as true, and this Court will affirm the ruling only if the filings show that the movant has failed to state a facially sufficient claim or that there is no issue of material fact to be determined. See generally Amends. Fla. R. Crim. Proc. 3.851 (Amendments I), 772 So.2d 488, 492 n. 2 (Fla.2000). However, to the extent there is any question as to whether a rule 3.851 movant has made a facially sufficient claim requiring a factual determination, this Court will presume that an evidentiary hearing is required. See generally id.

The postconviction court correctly summarily denied Merck’s claim. Regarding the first prong of a newly discovered evidence claim, Merck contends that Detective Nestor’s testimony in 1997 produced new information that he was aware that the khaki pants were worn by the perpetrator based on information provided by Katherine Sullivan, an eyewitness to the murder. Merck asserts that this new information shows that Nestor intentionally destroyed potentially exculpatory evidence. Merck’s claim is without merit. Merck raised this claim on direct appeal, and this Court denied the claim on the merits:

... Merck asserts that the failure on the part of Detective Nestor to keep as evidence a pair of khaki pants located during the search of the vehicle abandoned by Merck and his companion after the murder, was a bad-faith failure to preserve potentially exculpatory evidence, resulting in a denial of due process. In examining the items found in the vehicle, Detective Nestor meticulously looked at every item found in the car, and a videotape was made of the search. Detective Nestor testified that it was his job as the case agent to determine which of these items had evi-dentiary value. He retained all items that he determined to have evidentiary value, and he left the other items in the vehicle. The vehicle was thereafter available to be picked up by its registered owner. One of the items examined by Detective Nestor was a pair of “baggy khaki colored style pants.” Detective Nestor testified that after he examined those pants and found no blood stains on them, he concluded that they did not have evidentiary value and left the pants in the vehicle.
Merck raised this issue in post-trial motions which were acknowledged not to be timely. Merck asserts that the failure to maintain this evidence was fundamental error and, as such, can be raised for the first time post-trial. We do not agree. Here, the failure to preserve the khaki pants was clearly known by Merck prior to and during the trial. The issue was not preserved by timely objection and was not properly the basis for a post-trial attack on the conviction. State v. Matera, 266 So.2d 661 (Fla.1972).
However, even if there had been a timely presentation of this issue, based upon our review of the record, we con-elude that the failure to preserve the khaki pants was not a denial of due process pursuant to Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), and Kelley v. State, 569 So.2d 754 (Fla.1990). There is simply no showing that Detective Nestor acted in bad faith in deciding not to preserve pants which had no blood stains. Moreover, Merck has to stack multiple inferences in order to postulate that the pants were either material or exculpatory. Thus, we find no merit in Merck’s fourth issue.

Merck I, 664 So.2d at 942. The record reveals that during the defense’s cross-examination of Detective Nestor, defense counsel specifically asked Nestor whether Sullivan had identified the khaki pants as the pants worn by the perpetrator, to which Nestor responded affirmatively, but stated that because no blood was on them, he determined them to be of no evidentia-ry value. Merck’s instant claim provides no new information which has not already been addressed. Therefore, the first prong of a newly discovered evidence claim has not been met.

Additionally, regarding the second prong of a newly discovered evidence claim, Nestor’s 1997 testimony does not provide evidence that would probably produce an acquittal on retrial. See Jones II, 709 So.2d at 521. As determined by this Court on direct appeal, because no blood was found on the khaki pants, “Merck has to stack multiple inferences in order to postulate that the pants were either material or exculpatory.” Merck I, 664 So.2d at 942. Therefore, it is clear that the trial court properly summarily denied the motion because its allegations are conclusively refuted by the record. Accordingly, we affirm the postconviction court’s summary denial of this claim.

Habeas Corpus Petition

Merck raises the following issues in his habeas petition: (1) whether cumulative error deprived Merck of a fair trial; (2) whether death constitutes cruel and unusual punishment based on Merck’s incompetency; (3) whether Florida’s death penalty statute is unconstitutional as applied to Merck’s case; and (4) whether counsel was ineffective for failing to allege that Florida’s capital sentencing statute is unconstitutional on its face and as applied to Merck’s case.

1. Cumulative Error

Merck asserts that he was denied a fair trial based upon cumulative errors committed by trial counsel. “[W]here individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail.” Griffin v. State, 866 So.2d 1, 22 (Fla.2003); see also Downs v. State, 740 So.2d 506, 509 n. 5 (Fla.1999). Merck is not entitled to relief on this claim because the alleged individual errors are without merit as provided in our discussion of his postconviction motion above, and, therefore, the contention of cumulative error is without merit.

2. Competency at Time of Execution

Merck asserts that in accordance with Florida Rules of Criminal Procedure 3.811 and 3.812, a prisoner cannot be executed if the person lacks the mental capacity to understand the fact of the impending death and the reason for it. Merck acknowledges that this claim is not ripe for review since a death warrant has not been issued and asserts that he raises this issue for preservation purposes only. This Court has repeatedly held that no relief is warranted under these circumstances. See, e.g., Gonzalez v. State, 990 So.2d 1017, 1035 (Fla.2008) (rejecting claim that defendant may not be competent at the time of execution where defendant acknowledges that claim is not ripe for review and was being raised only for preservation purposes) (citing State v. Coney, 845 So.2d 120, 137 n. 19 (Fla.2003)); see also Jones v. State, 845 So.2d 55, 74 (Fla.2003); Hall v. Moore, 792 So.2d 447, 450 (Fla.2001). Merck is not entitled to relief on this claim.

3. Ring Claim

Merck claims that based on the United States Supreme Court decisions in Jones v. United States, 526 U.S. 227, 243, n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2355, 147 L.Ed.2d 435 (2000), Merck’s death sentence is unconstitutional because it is impossible to determine whether a unanimous jury found any one aggravating circumstance. “[I]t is improper to argue in a habeas petition a variant to a claim previously decided.” Reaves v. Crosby, 837 So.2d 396, 398 (Fla.2003). Merck raised this claim on direct appeal and this Court denied the claim on the merits. See Merck III, 975 So.2d at 1067.

Merck claims that the decision in Evans v. McNeil, 08-14402-CIV-JEM, 2011 WL 9717450 (S.D.Fla.2011), in which the United States District Court for the Southern District of Florida determined that Florida’s death penalty procedures violate Ring, supports Taylor’s contention that his sentence of death should be vacated. However, the Eleventh Circuit Court of Appeals recently reversed the decision of the District Court. Evans v. Sec’y, Fla. Dep't of Corr., 699 F.3d 1249, 1265-66 (11th Cir.2012). Furthermore, even if it had been affirmed, a federal district or appeals court ruling that a Florida statute is unconstitutional is not binding on this Court. State v. Dwyer, 332 So.2d 333, 335 (Fla.1976). Accordingly, we deny relief on this claim.

4. Ineffective Assistance of Counsel for Failure to Raise Ring Claim

Merck asserts that counsel was ineffective for failing to argue that Florida’s death penalty statute is unconstitutional on its face and as applied to this case at trial and on appeal. To the extent that Merck claims trial counsel was ineffective, the claim is not cognizable on ha-beas corpus review. Nelson v. State, 43 So.3d 20, 33 (Fla.2010). To the extent that Merck claims appellate counsel was ineffective, a habeas claim based on ineffective appellate counsel must satisfy the Strickland standard. Lynch v. State, 2 So.3d 47, 84-85 (Fla.2008) (to grant habeas relief based on ineffectiveness of appellate counsel, the alleged omissions must be of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and the deficiency compromised the appellate process to such a degree as to undermine confidence in the correctness of the result). Appellate counsel will not be deemed ineffective for failing to raise a meritless issue. See Lynch, 2 So.3d at 85. This Court has repeatedly upheld the constitutionality of the state’s capital punishment statute and process as currently administered especially where the prior violent felony aggravator is present. See, e.g., Hall v. State, 87 So.3d 667, 671 (Fla.2012) (citing Bryant v. State, 901 So.2d 810, 823 (Fla.2005)). Furthermore, we addressed Merck’s claim that Florida’s death penalty sentencing statute was unconstitutional on direct appeal and determined the claim meritless. Merck III, 975 So.2d at 1067. Accordingly, we deny relief on this claim.

CONCLUSION

Based on the foregoing, we affirm the trial court’s denial of Merck’s postconviction motion and deny Merck’s habeas petition.

It is so ordered.

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

      . Spencer v. State, 615 So.2d 688 (Fla.1993).

      . The trial judge found two aggravating factors: HAC and prior violent felony; and two nonstatutory mitigating factors: abused childhood and alcohol use on the night of the murder. Merck I, 664 So.2d.at 941.

      . The trial judge found three aggravating factors: felony' probation, prior violent felony, and HAC; two statutory mitigating factors, age and extreme mental or emotional disturbance; and six non-statutory mitigating factors: childhood abuse, learning disability, long-term alcohol abuse, chemically dependent parents, lack of parental role model, and capacity to form loving relationships. Merck II, 763 So.2d at 296.