PER CURIAM.
David Sylvester Frances appeals an order of the circuit court denying his motion to vacate his convictions of first-degree murder and sentences 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.
On direct appeal to this Court, "Frances raise[d] three issues, each of which encompasse[d] a number of sub-issues. He claim[ed] that: (1) the trial court improperly restricted his presentation of guilt and penalty phase evidence that was relevant to his relative culpability for the crimes and what sentence he should receive; (2) the trial court improperly found the heinous, atrocious, or cruel aggravating circumstance (HAC), excluded existing mitigating evidence, and concluded that the aggravating circumstances outweighed the mitigating circumstances; and (3) Florida's death penalty statute is unconstitutional under Ring v. Arizona." Frances v. State, 970 So.2d 806, 812-13 (Fla.2007). This Court affirmed Frances' convictions of first-degree murder and his sentences of death. Id. at 823.
On April 9, 2009, Frances filed a Motion to Vacate Judgment of Conviction and Death Sentence. Following a case management conference, the postconviction court granted an evidentiary hearing as to the following claims raised in Frances' Motion to Vacate: Failure of trial counsel to object to the Court's improper comments regarding "Southerners" and "Yanks"; failure of trial counsel to object to the "cause" strike of Venireperson Roberts; failure of trial counsel to object to comments erroneously informing the jury that a list of mitigators would be provided at the penalty phase; failure of trial counsel to investigate and present available mitigation; proffered evidence regarding Frances' drug abuse and dependency; proffered evidence regarding the good deeds performed by Frances throughout his life; proffered evidence regarding Frances' bouts with stuttering.
The facts of this case are set forth in Frances' direct appeal of his death sentence:
Id. at 809-11.
Frances asserts that his trial counsel was ineffective for failing to preserve an issue of racial bias during jury selection. Frances attempts to phrase the striking of Venireperson Roberts as a peremptory strike involving racial bias. The record indicates that the prosecutor initially sought to strike Venireperson Roberts peremptorily, and used her perceived bias as a race neutral reason for the strike. However, the record further indicates that the judge actually struck Venireperson Roberts for cause. Therefore, it is the appropriateness of that for cause strike that is under review in this Court.
The basis of Frances' argument that trial counsel was ineffective for allowing Venireperson Roberts to be stricken is predicated on the fact that the State mischaracterized Venireperson Roberts' feelings regarding the death penalty and trial defense counsel agreed with the mischaracterization. In a postconviction context, a defendant must establish both that his or her counsel was deficient in failing to preserve the objection and that the defendant was prejudiced by counsel's lack of action. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the Strickland standard requires a showing of both counsel's deficient performance and prejudice to the defendant, once a reviewing court determines that the defendant has not established one prong, the court is not required to analyze whether the defendant has established the other prong. See Stewart v. State, 801 So.2d 59, 64 (Fla.2001) (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052).
Even assuming that defense counsel was deficient for not challenging the State's mischaracterization of Venireperson Robert's position on the death penalty, Frances has failed to demonstrate that he was prejudiced by trial counsel's failure to object to the striking of Venireperson Roberts. Under the second prong of the Strickland analysis, the defendant must demonstrate a reasonable probability that counsel's deficient performance deprived him of a fair trial, undermining the confidence in the outcome of the proceedings. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In Carratelli v. State, 961 So.2d 312 (Fla. 2007), this Court addressed the issue of whether trial counsel was ineffective for failing to object to a juror who should have been stricken for cause. In that case, we determined that in order to obtain postconviction relief, the defendant must demonstrate that an actually biased juror sat on the jury. Frances did not allege at trial, nor has he alleged in any of his appellate and postconviction documents that an actually biased juror served on the jury that convicted him. This case presents
Based on the clear and repeated statements of Venireperson Roberts, she did not appear to be particularly beneficial to the State, nor to Frances. The sum of her statements amounts to the assertion that she would listen to the facts and evidence presented in the case and do her best to apply the law. Therefore, there is no evidence to suggest that the removal of Venireperson Roberts from the venire resulted in prejudice to Frances. This claim is denied.
Frances further alleges that the State engaged in purposeful discrimination when it exercised a strike on Venireperson Roberts, an African American juror. A defendant has no right to a jury composed in whole or in part of jurors of his or her own race, but "[p]urposeful racial discrimination in [jury selection] violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." Batson v. Kentucky, 476 U.S. 79, 85-6, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In State v. Neil, 457 So.2d 481 (Fla.1984) and its progeny, this Court outlined the following test to determine whether peremptory challenges are being used in a discriminatory manner: Peremptory challenges are presumed to be exercised in a nondiscriminatory manner. Neil, 457 So.2d at 486. A party concerned about the other side's use of peremptory challenges must make a timely objection and demonstrate on the record that the challenged persons are members of a distinct racial group and may have been challenged solely because of their race. Id.; State v. Johans, 613 So.2d 1319, 1322 (Fla.1993). The burden then shifts to the complained-about party to show that the questioned challenges were not exercised solely because of the prospective jurors' race. Neil, 457 So.2d at 486-87. The reasons given in response to the court's inquiry need not be equivalent to those for a challenge for cause. Id. at 487. If the party shows that the challenges were based on characteristics of the challenged persons other than race, then the inquiry should end and jury selection should continue. Id. On the other hand, if the party has actually been challenging prospective jurors solely on the basis of race, then the court should dismiss that jury pool and start voir dire over with a new pool. Id.
The postconviction court found the State's testimony of mistake in dismissing Venireperson Roberts to be credible, and that finding is supported by competent substantial evidence. At the evidentiary hearing, the lead prosecutor testified that after reviewing a copy of the jury score sheet, it appeared that the word "opposed," which was written next to Venireperson Roberts' name, was in darker ink than the word "okay," which was also next to her name. Frances would like for this Court to infer that the "opposed" notation was made in anticipation of litigation.
Frances argues that the postconviction court's ruling is clearly erroneous in finding that the defense was not ineffective for striking Venireperson Roberts. The order stated:
The voir dire record actually indicates that it was Mr. Wixtrom, acting on behalf of the State, who moved to strike Venireperson Roberts, not Mr. Ruiz. It appears that the postconviction court was confused about who actually struck Venireperson Roberts. However, this mistake of fact does not seem to directly bear on the conclusion reached by the court that the defendant has introduced no evidence showing a reasonable probability that, but for the mistaken strike of Venireperson Roberts, the outcome of the trial would have been different. Therefore, the erroneous finding of fact was harmless. Frances has not established ineffective assistance under Strickland. Relief on this claim is denied.
For ineffective assistance of counsel claims raised in postconviction proceedings, this Court affords deference to findings of fact based on competent, substantial evidence and independently reviews deficiency and prejudice as mixed questions of law and fact subject to a de novo review standard. Ponticelli v. State, 941 So.2d 1073, 1090 (Fla.2006). Frances alleges that his counsel was ineffective during jury selection for failing to object to the following comments made by the Court:
Subsequently, defense counsel raised the following objections:
It is clear from the record that defense counsel specifically objected to the comments made by the trial judge before the jury was sworn.
Frances is claiming that his defense counsel at trial was ineffective for failing to object earlier and for failing to request a mistrial or a new jury. At the evidentiary hearing, Frances' lead counsel, Mr. Hooper, testified that he did not find the trial judge's questioning of Juror Pagan regarding her ability to vote for the death penalty to be objectionable. He insisted, "Yes, there is a problem with that response. It doesn't answer the question. It doesn't — it's not what we need. We need a yes or a no." Mr. Hooper testified that he considered Juror Pagan's response of "I think so" to be a "nonresponse." When asked whether he considered that the trial judge's comments regarding southern heritage may taint the jury, Mr. Hooper responded, "Actually, the opposite... the logic is that if a jury is laughing at some levity injected into the proceedings that they may be less likely to vote for death ... so unless it's something that's offensive or prejudicial, the judge injecting some light humor like southern heritage, obviously, is positive."
The postconviction court denied the claim, finding that although "the trial court judge's comments and /or questions concerning `Southerners' and `Yanks' were perhaps patronizing and unrealistic, particularly in light of evolving standards of jury selection ... there is no indication in the record that the trial court judge was intentionally misleading or trying to intimidate any of the potential jurors." The postconviction court determined that "these comments and/or questions, albeit improper, do not rise to the requisite level of prejudice, wherein there is no reasonable probability that but for counsel's alleged omission, the outcome of the case would have been different." The postconviction court's findings as to the trial judge's comments are based on competent, substantial evidence in the record, and we affirm its decision on this issue.
Additionally, Frances argues that his trial counsel was ineffective for allowing two jurors to be stricken without requesting a new trial or a new jury panel. However, Frances does not demonstrate a reasonable probability that the outcome of the proceeding would have been different if his trial counsel had made the requests. At the end of voir dire, Mr. Ruiz specifically objected to the removal of these jurors, citing the court's supposed improper comments as the basis of the removal. Upon hearing the objection, the court affirmatively disagreed with the objection and overruled it. Therefore, there is no evidence that the outcome probably would have been different if Frances' defense counsel had gone further than the specific objection that was made on the record. Frances has failed to establish prejudice under Strickland.
Frances argues that his trial counsel was ineffective for failing to object when the State informed the jury that a list of mitigators would be provided to guide the jury's decision, which opposed the defense's strategy that a catchall mitigation instruction be provided to the jury. This Court has recognized that in evaluating a claim of deficient performance under Strickland, "[j]udicial scrutiny of counsel's performance must be highly deferential." Henry v. State, 948 So.2d 609, 616 (Fla. 2006).
Id. at 617 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
The record indicates that the prosecutor made the following statements to various voir dire panels: "The judge will give you guidelines to follow"; "The Court will give to the jury a list of factors that the jury can look at"; and "The jury will be given a framework of the law from the Court, and included in that framework will be factors that the jury can look at...." Other statements made to the jury regarding aggravating and mitigating circumstances were slight variations of those listed. When questioned at the evidentiary hearing about his failure to object to the State's comments to the jury that a list of mitigators would be provided, Mr. Hooper stated:
The postconviction court denied this claim, in light of these comments by Frances' defense counsel. The trial court's finding that the defense counsel's failure to object was part of an overall defense strategy, that Frances cannot now be heard to complain about, is based on competent substantial evidence. Additionally, Frances failed to demonstrate that he was prejudiced as a result of the State's "promise" that a list of mitigators would be provided.
Frances alleges that the State used race as a basis to refuse to offer a life sentence, and that defense counsel was ineffective for failing to file a motion to prevent the state from seeking the death penalty. The postconviction court determined that the defendant failed to establish that race was ever the reason that the state sought the death penalty in this case.
For ineffective assistance of counsel claims raised in postconviction proceedings, this Court affords deference to findings of fact based on competent, substantial evidence and independently reviews deficiency and prejudice as mixed questions of law and fact. Ponticelli, 941 So.2d at 1090 (citing Sochor v. State, 883 So.2d 766, 785 (Fla.2004) (recognizing that the trial court must resolve conflicting testimony
The issues that Frances raises in relation to this claim are nearly identical to those raised in Freeman v. State, 858 So.2d 319 (Fla.2003). John D. Freeman was a death row inmate who appealed an order from the trial court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Id. at 321. Just as in the instant case, Freeman argued that his defense counsel was ineffective for failing to argue that the State's decision to pursue the death penalty was based on improper racial considerations. Id. at 322. This allegation was based on evidence presented at a postconviction evidentiary hearing, which revealed that Freeman's trial counsel had approached the prosecutor and offered that Freeman would plead guilty to two murders, in exchange for two consecutive life sentences with twenty-five-year mandatory minimum sentences. Id.
The evidence in Freeman further revealed that both the prosecution and the defense were aware of the then pending federal case, McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), which involved an allegation that prosecutors were seeking the death penalty disproportionately against African American defendants. Id. Freeman raised a reverse-McCleskey claim, alleging that "when his trial counsel presented the plea offer to the prosecutor, the prosecutor refused the offer for fear that defense attorneys in other cases would argue that he was favoring Caucasian defendants." Id. at 322-23. Freeman also argued that his trial counsel was ineffective for failing to raise the claim because he admittedly did not know how to do so. Id. at 323.
Just as in the instant case, the prosecutor in Freeman commented on the public accusations that his office too often sought the death penalty in cases involving Caucasian victims and African American defendants. Id. at 323. Similarly, the prosecution in Freeman claimed that the news articles and public scrutiny did not affect the decision of whether or not to prosecute a case and what penalty to seek; only the facts of the case drove that determination. Id.
In Freeman, this Court recognized that "Although the decision to seek the death penalty is within the prosecutor's discretion, that discretion may be curbed by the judiciary where motives such as bad faith, race, religion, or a desire to prevent the defendant from exercising his constitutional rights contributes to the prosecutor's decision." Id. at 322 (citing State v. Bloom, 497 So.2d 2, 3 (Fla.1986)). This Court held that Freeman failed to establish that the State relied on race when it decided to seek the death penalty. Therefore, he could not establish that he was prejudiced under Strickland by his counsel's admitted ignorance regarding the proper legal mechanism required to employ to address the issue of the prosecutor's perceived reliance on race as a factor in the decision to seek the death penalty. Id. at 323-24.
In the instant case, conflicting testimony was presented at the evidentiary hearing regarding whether Prosecutor Sedgwick mentioned race as being the determining factor in not offering a sentence of life imprisonment to Frances. Dorothy Sedgwick recalled discussing Frances' race with his defense counsel:
In finding that the "testimony is not credible where there is nothing in the record to support the vague recollection of these witnesses," the postconviction court denied Frances claim because he "fail[ed] to establish that race was ever the reason the State sought the death penalty against him." McCleskey requires a defendant to offer "evidence specific to his own case that would support an inference that racial considerations played a part in his sentence." 481 U.S. at 292-93, 107 S.Ct. 1756.
Based on Prosecutor Sedgwick's unambiguous statement that race considerations did not play a part in her decision to seek the death penalty, coupled with her testimony regarding the aggravators in this case, the postconviction court's finding that there was not enough evidence to demonstrate whether Prosecutor Sedgwick's decision to seek the death penalty was racially motivated is supported by competent, substantial evidence. Just as the defendant in Freeman, Frances has not proven that the prosecutors in his case relied on race in deciding to seek the death penalty, only that they were aware of the accusations of racial bias surrounding the prosecutor's office.
Frances next alleges that his trial counsel was ineffective for failing to investigate and present available mitigation to the jury during the penalty phase. To be entitled to relief on this claim, Frances must show that his attorney's performance was deficient and that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. "In the penalty phase context, `the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" Sochor v. State, 883 So.2d 766, 771 (Fla.2004) (citing Strickland, 466 U.S. at 695, 104 S.Ct. 2052). "We do not require a defendant to show `that counsel's deficient conduct more likely than not altered the outcome' of his penalty proceeding,
The postconviction court determined that Frances failed to establish that his trial counsel was deficient. After recalling the evidence presented to the jury, and the evidence presented at the evidentiary hearing, specifically that which Julie Norman argued should have been presented to the jury, the postconviction court denied the claim as cumulative. The court found that "the testimony presented during the evidentiary hearing virtually added nothing new to the mitigation, but instead essentially provided a more detailed account of the mitigation previously presented during the penalty phase proceedings. The postconviction court also found that counsel was entitled to rely on Frances' mental health expert, Psychologist Eric Mings, who did not indicate that Frances needed to undergo any additional mental health testing or evaluations.
Upon review of the record, we find that the trial court's finding that virtually all of the evidence presented at the evidentiary hearing was a more detailed version of the evidence presented during the penalty phase of the trial was based on competent, substantial evidence. On direct appeal, this court summarized the penalty phase evidence as follows:
Frances, 970 So.2d at 811-12.
Many of the thirty-three statutory and non-statutory mitigating factors that Dr. Cunningham referenced were cumulative to the mitigation presented at trial. The record indicates that the only evidence offered in the evidentiary hearing that had not been referenced during the penalty phase is the testimony of Ms. Norman, depicting the violence that Frances witnessed in his school and neighborhood in the Virgin Islands. During the penalty phase of the trial, Julie Norman's testimony was very limited. She testified generally
None of the witnesses who testified at the penalty phase presented evidence of the extreme violence that permeated Frances' school and neighborhood. This evidence provided a perspective of Frances' daily experiences outside of the home during adolescence. Therefore, the record does not conclusively demonstrate that the information Ms. Norman referenced in her evidentiary hearing testimony is entirely cumulative to the evidence presented at trial.
Nevertheless, a claim of ineffective assistance of counsel for failure to investigate and present mitigation evidence will not be sustained where the jury was aware of most aspects of the mitigation evidence that the defendant argues should have been presented. Troy v. State, 57 So.3d 828, 835 (Fla.2011). Although the evidence offered by Ms. Norman at the evidentiary hearing was not exactly the same as that presented during the penalty phase, in consideration of the testimony of Dr. Cunningham, the majority of the evidence presented at the evidentiary hearing was referenced at trial.
Additionally, Frances has not established prejudice on this point because we cannot conclude that if the jury heard testimony regarding the violence that Frances witnessed in his school and neighborhood in the Virgin Islands, "there is a reasonable probability that ... the jury... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" Sochor, 883 So.2d at 771 (citing Strickland, 466 U.S. at 695, 104 S.Ct. 2052). The trial judge found three aggravators in this case: (1) previous capital conviction (for the contemporaneous murders involved); (2) murder during the commission of a robbery; and (3) HAC as to the victim, Joanna Charles. Frances, 970 So.2d at 812. As mitigating evidence, the court considered the defendant's age (twenty years old at the time of the offense), along with the evidence presented to support the non-statutory mitigating circumstances.
As discussed above, none of Frances' claims of ineffective assistance of counsel warrant relief. Accordingly, Frances' claim of cumulative error must be denied. Bradley v. State, 33 So.3d 664, 684 (Fla. 2010).
In his postconviction motion, Frances argued that Florida's method of execution by lethal injection violated his constitutional rights. This claim was summarily denied by the trial court. In this habeas claim, he argues that the death sentence itself is unconstitutional because it resulted from ineffective assistance of trial and appellate counsel. The purpose of a writ of habeas corpus is to inquire into the legality of a prisoner's present detention. Wright v. State, 857 So.2d 861, 874 (Fla.2003) (citing McCrae v. Wainwright, 439 So.2d 868 (Fla.1983)). Habeas corpus petitions are not to be used for additional appeals on questions which could have been or were raised on appeal or in a postconviction relief motion. Hunter v. State, 817 So.2d 786, 798 (Fla.2002) (citing Parker v. Dugger, 550 So.2d 459, 460 (Fla. 1989)). Frances alleged ineffective assistance of trial counsel for failure to present available mitigation in the corresponding postconviction motion. To the extent that he raises that same claim in this petition for habeas corpus, the claim is procedurally barred and relief is denied.
Frances alleges ineffective assistance of appellate counsel, claiming that his appellate counsel failed to address the full scope of the unconstitutionality of Frances' death sentence. As support for his argument, Frances cites two United States Supreme Court decisions, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (barring the execution of mentally retarded persons) and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (barring the execution of juveniles) as "the evolving standards of decency" in death penalty jurisprudence. Frances contends that on direct appeal, appellate counsel never offered Simmons or Atkins as persuasive authority to show that based on evolving standards of decency, his death sentence could not be justified.
Claims of ineffective assistance of appellate counsel are appropriately raised in a petition for writ of habeas corpus. Brown v. State, 846 So.2d 1114, 1127 (Fla.2003). In order to grant habeas relief based on ineffectiveness of counsel, this Court must determine:
Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986). It is the defendant's burden to allege a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based. Brown, 846 So.2d at 1127. If a legal issue "would in all probability have been found to be without merit" had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective. Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000).
Frances argues that there was evidence to support the application of four statutory mental health mitigators in this case: (1)
Further, in finding that a death sentence for a defendant who was eighteen years and nine months old at the time of his offense was constitutional, this Court has also held that "Roper [v. Simmons] only prohibits the execution of defendants whose chronological age was below eighteen at the time of their capital offense." Id. at 561, 125 S.Ct. 1183 (citing Hill v. State, 921 So.2d 579, 584 (Fla.2006)). As it is very likely that this Court would have found Frances' claims based on Atkins and Simmons to be without merit, appellate counsel cannot be said to be ineffective for failing to raise nonmeritorious issues.
Frances next argues that his appellate counsel was ineffective for failing to raise on appeal the unconstitutionality of the strike of Venireperson Roberts. The standard to prove ineffective assistance of appellate counsel is parallel to the Strickland standard for ineffective assistance of trial counsel. Rutherford, 774 So.2d at 643. Thus, this Court's ability to grant habeas relief on the basis of appellate counsel's ineffectiveness is determined by the defendant's ability to meet both the deficiency and prejudice prongs of Strickland. Id. (stating that defendant must establish first, that appellate counsel's performance was deficient because "the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance" and second, that the petitioner was prejudiced because appellate counsel's deficiency "compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.").
Because this issue was not preserved at trial, this claim was not reviewable on direct appeal unless appellate counsel could have demonstrated fundamental error. Bell v. State, 965 So.2d 48, 76 (Fla.2007). As this Court has explained, "to justify not imposing the contemporaneous objection rule, `the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.'" Jackson v. State, 983 So.2d 562, 576 (Fla.2008). This Court has determined that "[b]ecause ... the failure to raise or preserve a cause challenge is not reviewable on direct appeal, it cannot constitute fundamental error per se." Carratelli, 961 So.2d at 325. Appellate counsel could not be ineffective for failure to raise a claim that was unpreserved and did not constitute fundamental error.
For the reasons stated above, we affirm the trial court's denial of postconviction relief and we deny habeas relief.
POLSTON, C.J., and LEWIS and CANADY, JJ., concur in result.
