Supreme Court of Florida
                                 ____________

                                 No. SC12-986
                                 ____________

                       NORMAN BLAKE MCKENZIE,
                              Appellant,

                                       vs.

                            STATE OF FLORIDA,
                                 Appellee.

                                 ____________

                                 No. SC12-2349
                                 ____________

                       NORMAN BLAKE MCKENZIE,
                              Petitioner,

                                       vs.

                        TIMOTHY H. CANNON, etc.,
                              Respondent.

                              [December 11, 2014]

                             REVISED OPINION

PER CURIAM.

      Norman Blake McKenzie appeals an order entered in the circuit court

summarily denying his motion to vacate his convictions of first-degree murder and
sentences of death filed pursuant to Florida Rule of Criminal Procedure 3.851. He

also petitions this Court for a writ of habeas corpus. We have jurisdiction. Art. V,

§ 3(b)(1), (9), Fla. Const.

                          FACTS AND BACKGROUND

      A jury convicted Norman Blake McKenzie of the first-degree murders of

Randy Wayne Peacock and Charles Frank Johnston. McKenzie v. State, 

, 277 (Fla. 2010). The jury recommended the death penalty by a vote of ten to

two for each murder. 

recommendation, the trial court sentenced

McKenzie to death for the murders. 

After discharging counsel,

McKenzie represented himself during both the guilt and penalty phases of trial, as

well as during the Spencer1 hearing. 

In the opinion affirming the

convictions and sentences, we described the murders, the capital proceedings, and

McKenzie’s decision to represent himself:

      [O]n October 5, 2006, two Flagler Hospital employees became
      concerned when Randy Peacock . . . did not report to work. The two
      employees drove to the home that Peacock shared with Charles
      Johnston. Upon their arrival, they noticed that Peacock’s vehicle, a
      green convertible, was not there. When the employees entered the
      residence, they found Peacock lying face down on the kitchen floor in
      a pool of blood. When deputies from the St. Johns County Sheriff’s
      Office (SJSO) arrived, they . . . located the body of Charles Johnston
      in a shed that was also located on the property. . . . Deputies observed
      a gold sport utility vehicle (SUV) in the driveway and determined that
      it was registered to Norman Blake McKenzie.

      1. Spencer v. State, 

(Fla. 1993).


                                        -2-
        The deputies subsequently spoke with a neighbor of the
victims. The neighbor stated that on October 4, 2006, he went to the
victims’ home to assist Johnston with repairs on his vehicle. When
the neighbor first arrived, Johnston was not there but Peacock was
present and was speaking with a man whom the neighbor later
identified in a photo lineup as McKenzie. . . .
        McKenzie subsequently had an encounter with a Citrus County
sheriff’s deputy during which Randy Peacock’s wallet was recovered
from one of McKenzie’s pockets. Further, Charles Johnston’s wallet
was located in a vehicle that McKenzie had recently operated.
McKenzie agreed to speak with SJSO deputies on two separate
occasions during which he confessed to the murders of Peacock and
Johnston.
        McKenzie explained that he went to the victims’ residence on
October 4, 2006, to borrow money from Johnston because of his drug
addiction. . . . McKenzie then asked Johnston for a hammer and a
piece of wood so that he could knock some “dings” out of the door of
his SUV. Johnston could not locate a hammer and gave McKenzie a
hatchet. While walking into the shed to locate a piece of wood,
McKenzie struck Johnston in the head with the . . . hatchet. Johnston
fell to the floor and McKenzie struck him again. McKenzie then
entered the home, approached Peacock, who was cooking in the
kitchen, and struck him with the hammer side of the hatchet
approximately two times.
        McKenzie returned to the shed, and when he observed that
Johnston was still alive, he struck Johnston one or more times with the
hatchet. McKenzie removed Johnston’s wallet from his pocket . . .
and re-entered the residence. McKenzie observed that Peacock was
struggling to stand up, so he grabbed a knife and stabbed Peacock
multiple times. McKenzie . . . took Peacock’s wallet and car keys,
and departed in Peacock’s vehicle.
        ....
        During a pretrial hearing, McKenzie expressed frustration with
his court-appointed counsel because his right to a speedy trial had
been waived without first consulting with him. When defense counsel
sought a continuance on the basis that more time was needed to
prepare for trial, McKenzie objected. McKenzie insisted that he was
ready and wanted to proceed as expeditiously as possible. As a result,
defense counsel moved to withdraw. The trial court, based upon


                                 -3-
McKenzie’s assertion that he was ready to proceed, denied the motion
and scheduled a trial date.
        During a second pretrial hearing, defense counsel again moved
for a continuance, asserting that additional time was necessary to
prepare for trial and to investigate mitigation. McKenzie again
expressed frustration with his court-appointed counsel. . . . When the
trial court recommended that McKenzie listen to his attorneys’
assertion that more time was required to properly prepare for trial,
McKenzie responded that he did not need the assistance of counsel.
Based upon this statement, the trial court scheduled a Faretta [n.1]
inquiry.

      [N.1.] Faretta v. California, 

(1975).

        During the Faretta hearing, when asked by the trial court why
he wanted to represent himself, McKenzie replied that he was ready
for trial and did not need attorneys to prepare any sort of mitigation on
his behalf. McKenzie also expressed the belief that he possessed
sufficient intelligence to represent himself. With regard to his desire
to proceed to trial as quickly as possible, McKenzie stated that he did
not wish to subject his mother, his fiancée, or the victims’ families to
an extended trial, and that he thought a protracted trial would be a
waste of taxpayer funds.
        When the trial court asked McKenzie why he wanted to
discharge his court-appointed counsel, McKenzie replied that they
insisted upon taking actions with which he disagreed. Defense
counsel agreed that McKenzie’s displeasure with them arose from a
difference of opinion with regard to trial strategy. After conducting a
Faretta inquiry, the trial court concluded that McKenzie was
competent to waive counsel and that his waiver was knowing,
intelligent, and voluntary. The trial court allowed McKenzie to
represent himself but appointed standby counsel with McKenzie’s
approval.
        During the guilt phase of the trial, McKenzie admitted that he
went to the victims’ home on October 4 with the intention of taking
their money. McKenzie also admitted that he hit both Johnston and
Peacock with the hatchet and stabbed Peacock with a knife. After the
State rested its case, McKenzie stated that he would not offer any
witness testimony and further declined to testify on his own behalf.


                                  -4-
      On August 21, 2007, the jury found McKenzie guilty of two counts of
      first-degree murder.
             After the verdict was announced, McKenzie advised that he
      would like to be represented during the penalty phase and the trial
      court appointed counsel. However, the next day McKenzie recanted
      his request and stated that the impact of the verdict caused him to be
      temporarily distracted from his intended course of action which was to
      expedite the trial proceedings. The trial court conducted a second
      Faretta inquiry and again concluded that McKenzie was competent to
      waive counsel. The trial court allowed McKenzie to represent himself
      but reappointed standby counsel.
             During the penalty phase . . . McKenzie advised that he would
      not offer any mitigation evidence to the jury. However, following the
      prosecutor’s closing statement, McKenzie was allowed to place bank
      records into evidence for the purpose of demonstrating his financial
      behavior in the months before these crimes. By a vote of ten to two,
      the jury recommended that a sentence of death be imposed for each
      murder.
             McKenzie advised the trial court that he wished to represent
      himself during the Spencer hearing and that he did not intend to
      present any witnesses. In light of the minimal mitigation offered by
      McKenzie, the trial court ordered the Florida Department of
      Corrections (DOC) to prepare a presentence investigation report
      (PSI). During the Spencer hearing, the State did not present any
      additional evidence but discussed the aggravating circumstances that
      purportedly had been established and also reviewed potential
      mitigation factors, such as cooperation with law enforcement, cryptic
      references to child abuse, [n.3] and drug addiction. After stating that
      he would not expound upon any purported reference to child abuse,
      McKenzie read a statement that he prepared in which he expressed
      regret for the murders and apologized to the families of the victims.

             [N.3.] The PSI report prepared by the DOC noted that
             McKenzie’s fiancée “would not discuss [McKenzie’s]
             family. . . . She did state that his parents should be the
             ones incarcerated and not him. She would not go into
             any detail.”

(footnote omitted).


                                         -5-
      In sentencing McKenzie to death, the trial court determined that the State

had proven beyond a reasonable doubt the existence of four statutory aggravating

circumstances with regard to each murder: (1) McKenzie had previously been

convicted of another capital felony or of a felony involving the use or threat of

violence to the person (eight prior convictions and the contemporaneous murder of

the other victim) (great weight); (2) the murders were committed while McKenzie

was engaged in the commission of a robbery (significant weight); (3) the murders

were committed for pecuniary gain (merged with the robbery aggravator—no

additional weight was given); and (4) the murders were committed in a cold,

calculated, and premeditated manner without any pretense of moral or legal

justification (CCP) (great weight). 

      The court found the existence of nonstatutory mitigating circumstances to

include that McKenzie (1) suffered from an addiction to cocaine (little weight); (2)

was a victim of child abuse (little weight); (3) exhibited good behavior during trial

court proceedings (some weight); (4) expressed remorse (some weight); (5)

cooperated with law enforcement (some weight); (6) possesses a GED and

certificates in architectural design (very little weight); and (7) is serving a life

sentence for armed carjacking, and the minimum mandatory sentence for the

murders is life without the possibility of parole (little weight). 

trial court concluded that McKenzie had failed to establish the statutory

mitigating circumstance that he was under the influence of an extreme emotional

or mental disturbance at the time of the murders. 

trial court found

“the evidence presented during trial overwhelmingly established that McKenzie

was in complete control of his faculties at the time he committed the murders.” 

regard to sentencing, we explained:

              The trial court concluded pursuant to Muhammad v. State, 

(Fla. 2001), that it could not afford the jury’s advisory
      recommendation great weight in light of McKenzie’s minimal
      presentation of mitigation during the penalty phase. Accordingly, the
      trial court conducted an independent evaluation and concluded that
      the aggravating circumstances established far outweighed the
      mitigating circumstances. [n.4] Based on this conclusion, the trial
      court imposed a sentence of death for each murder.

             [N.4.] The trial court further concluded that “[e]ven in
             the absence of [CCP] . . . the remaining aggravating
             circumstances would far outweigh the mitigating
             circumstances.”

appeal, McKenzie asserted the following issues: (1) the trial court

departed from judicial neutrality when it sua sponte struck a juror for cause; (2) the

Faretta and Nelson2 inquiries were defective and, therefore, the trial court

impermissibly allowed McKenzie to represent himself; (3) the trial court

improperly restricted McKenzie’s access to standby counsel; (4) the trial court

      2. Nelson v. State, 

(Fla. 4th DCA 1973).


                                         -7-
erred when it prepared one sentencing order to address both murders; (5) the death

sentences are not proportionate; (6) Florida’s death penalty statute violates Ring v.

Arizona, 

(2002); (7) the role of the jury during the penalty phase was

impermissibly diminished in violation of Caldwell v. Mississippi, 

(1985); and (8) the death sentences are unconstitutional because the jury did not

issue specific findings with regard to aggravating circumstances and, therefore, it is

impossible to determine whether the jury determination was unanimous with

regard to the aggravating circumstances that applied. 

-

88. This Court denied relief on all claims and affirmed McKenzie’s convictions

and sentences. 

The United States Supreme Court subsequently denied

certiorari review. McKenzie v. Florida, 

(2010).

      On September 15, 2011, McKenzie filed a motion to vacate the convictions

and sentences pursuant to Florida Rule of Criminal Procedure 3.851, asserting four

claims. The first claim alleged that due to State action, McKenzie was denied a

full and fair capital sentencing phase, and the postconviction court should now

consider McKenzie’s mitigation evidence to determine whether his death sentences

are constitutional. The “State action” in question was divided into multiple

subparts and can be summarized as follows: (1) appointed counsel were ineffective

during the time they represented McKenzie because they failed to properly visit

him in custody and sufficiently consult with him before waiving his right to a


                                        -8-
speedy trial; counsel also failed to adequately explain the capital sentencing

process; (2) McKenzie was not offered the assistance of a mental health expert

pursuant to Ake v. Oklahoma, 

(1985), and counsel were ineffective for

failing to ask for the appointment of an expert prior to their discharge; (3)

McKenzie had a constitutional right to compel witnesses to testify on his behalf but

was not permitted to do so; (4) McKenzie was denied his right of access to courts

because he was not given access to a law library; (5) McKenzie was denied the

right to present mitigation when he attempted to model his defense after the

presentation by the prosecution, but the prosecutor blocked introduction of the

mitigation by objection; (6) the prosecutor’s use of McKenzie’s opening statement

as substantive evidence violated the Confrontation Clause of the United States

Constitution; (7) the prosecutor improperly visited McKenzie in jail without a

court reporter present and, during the visit, falsely informed McKenzie that he

could not introduce statements from his first recorded interrogation by law

enforcement officers; (8) the prosecution’s failure during trial to play two recorded

interrogations of McKenzie prevented the jury and the trial court from considering

existing mitigation, and McKenzie was never given copies of the interrogations;

(9) the PSI prepared by the DOC was deficient; and (10) without full consideration

of McKenzie’s drug abuse, his mental illness, and developmental factors, the death

sentences are unconstitutional.


                                         -9-
      In his second claim, McKenzie reiterated that his counsel were ineffective,

which led McKenzie to choose to represent himself. Under this claim, McKenzie

quoted extensively from a report prepared by a clinical and forensic psychologist

and listed twenty-five “distinct toxic formative influences and compromising

factors” that should have been presented during the penalty phase.3 According to

the psychologist, each of these influences or factors presented “malignant

implications for Mr. McKenzie’s life trajectory and participation in the capital

offense.” McKenzie’s third claim challenged the constitutionality of Florida’s

lethal injection procedure and statute. His final claim challenged the

constitutionality of Florida’s death penalty statute in light of the Supreme Court’s

decision in Apprendi v. New Jersey, 

(2000).


       3. The twenty-five factors are: (1) trans-generational family dysfunction and
distress; (2) hereditary predisposition to psychological disorder and personality
pathology; (3) hereditary predisposition for alcohol and drug abuse/dependence;
(4) fetal cigarette exposure; (5) fetal alcohol exposure; (6) pregnancy and birth
complications; (7) childhood symptoms consistent with Attention Deficit
Hyperactivity Disorder; (8) inhalant abuse; (9) alcohol and drug abuse; (10)
chronic stress in childhood; (11) Hepatitis C and HIV status; (12) mother in mid-
teens at parenting onset; (13) physical and psychological abuse; (14) functional
abandonment by father; (15) physical and emotional neglect post-divorce; (16)
perverse family sexuality and probable family-context sexual abuse; (17) observed
family violence; (18) mother’s alcohol abuse; (19) corruptive and alcoholic
stepfather figures; (20) corruptive influence of siblings; (21) traumatic sexual
exposures and abuse; (22) availability of alcohol and illicit drugs; (23) childhood
onset alcohol and drug abuse; (24) substance-related offending and incarceration
in early adulthood; and (25) cocaine-induced psychological decompensation and
extended sleep deprivation at the time of the offense, in a temporal context of
psychotic symptoms.

                                        - 10 -
      The postconviction court held a Huff4 hearing, and on March 8, 2012,

summarily denied McKenzie’s motion without an evidentiary hearing. McKenzie

now appeals the summary denial, challenging the trial court’s ruling on his first

and second postconviction claims (and all incorporated subclaims), and has also

petitioned this Court for a writ of habeas corpus.

                                    ANALYSIS

                                Standard of Review

      This Court has explained the standard of review of a summarily denied

initial motion for postconviction relief as follows:

              “A defendant is normally entitled to an evidentiary hearing on a
      postconviction motion ‘unless (1) the motion, files, and records in the
      case conclusively show that the movant is entitled to no relief, or (2)
      the motion or particular claim is legally insufficient.’ ” Valentine v.
      State, 

, 54 (Fla. 2012) (quoting Franqui v. State, 

82, 95 (Fla. 2011)). An evidentiary hearing must be held on an
      initial 3.851 motion whenever the movant makes a facially sufficient
      claim that requires factual determination. See Amendments to Fla.
      Rules of Crim. Pro. 3.851, 3.852, & 3.993, 

, 491 n.2
      (Fla. 2000). “[T]o the extent there is any question as to whether a rule
      3.851 movant has made a facially sufficient claim requiring a factual
      determination, the Court will presume that an evidentiary hearing is
      required.” Walker v. State, 

, 135 (Fla. 2012). However,
      merely conclusory allegations are not sufficient—the defendant bears
      the burden of “establishing a ‘prima facie case based on a legally valid
      claim.’ ” 

(quoting Franqui, 

at
      96).
              “To uphold the trial court’s summary denial of claims raised in
      an initial postconviction motion, the record must conclusively

      4. Huff v. State, 

(Fla. 1993).


                                        - 11 -
      demonstrate that the defendant is not entitled to relief.” Everett v.
      State, 

, 485 (Fla. 2010). When reviewing the circuit
      court’s summary denial of an initial rule 3.851 motion, we will accept
      the movant’s factual allegations as true and will affirm the ruling only
      if the filings show that the movant has failed to state a facially
      sufficient claim, there is no issue of material fact to be determined, the
      claim should have been brought on direct appeal, or the claim is
      positively refuted by the record. See 

.
      Finally, “[b]ecause a court’s decision whether to grant an evidentiary
      hearing on a rule 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.” Seibert v. State, 

, 75
      (Fla. 2010) (citing State v. Coney, 

, 137 (Fla. 2003)
      (holding that pure questions of law that are discernable from the
      record are subject to de novo review)).

Barnes v. State, 

, 911 (Fla. 2013).

                     Ineffective Assistance of Trial Counsel

      McKenzie first claims that, prior to their discharge, appointed counsel were

deficient because they failed to meet with him at one of the various locations

where he was being held in custody to discuss the waiver of speedy trial and the

capital sentencing process. Based upon this purported deficiency, McKenzie

contends that he acted impulsively and decided to represent himself, which led to

mitigation not being introduced. We conclude that the trial court properly denied

this claim.

      On direct appeal, this Court specifically noted that an attorney may waive

speedy trial without consulting the client and even against the client’s wishes.

; see also State v. Kruger, 

, 759 (Fla. 4th


                                        - 12 -
DCA 1993). Thus, if the right to speedy trial may be waived without consulting

the defendant, counsels’ waiver here cannot be considered an error, let alone one

that is “so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland v. Washington, 

, 687

(1984). Further, McKenzie’s initial and reply briefs fail to present a case in which

counsel was deemed constitutionally deficient solely for failing to visit a criminal

defendant before waiving the right to a speedy trial, and our research reveals no

supporting precedent. Accordingly, McKenzie’s allegation of deficiency is not

supported in the law, and he has failed to satisfy the first prong of Strickland.5

         McKenzie next claims that he was prejudiced by counsels’ failure to visit

him because, had such visits occurred, he would not have acted impulsively and

elected to represent himself. This claim is not only speculative, but positively

refuted by the record. See 

. The record on direct appeal

reflects that McKenzie was determined to go to trial as quickly as possible and,

despite urgings from the trial court that he listen to counsel, would not be swayed

from this course of action. During a pretrial hearing, McKenzie informed the trial

court:

       5. Contrary to the blatant misrepresentation in McKenzie’s motion for
rehearing, this Court does not hold—and never has held—that trial counsel has no
obligation to meet with a client and can never be deemed ineffective for failing to
meet with a client. Instead, the analysis clearly reflects that our holding is limited
to the context of speedy trial waivers.


                                         - 13 -
             I have been here ready to go to trial from the time that I
             was booked on this charge. . . . There’s been plenty of
             time—there’s nothing—this case is a cut-and-dry case.
             You can ask the prosecutor that. There’s not a lot to do,
             okay. I’ve been found competent by another—by my
             evaluation, there’s no reason for this to continue on the
             way it is. None at all. And if the state’s willing to take
             me to trial, then let’s go to trial.

(Emphasis supplied.) McKenzie insisted that he was ready for trial because there

was no discovery to be completed, stating “There’s no depositions to be made. I

was the only one present during the murders when they occurred, how can there be

a deposition to be made? . . . You can’t depo a dead person.” During a later

pretrial hearing, McKenzie again expressed frustration with his counsel based upon

their second request for a continuance. When the trial court recommended that

McKenzie listen to counsel when they informed him that they were not ready to

proceed to trial, McKenzie responded, “if that’s your advice, I don’t—I don’t need

them.”

      During the Faretta hearing, when asked by the trial court why he wanted to

represent himself, McKenzie replied that he was ready for trial and did not need

attorneys to prepare any mitigation on his behalf. McKenzie also expressed the

belief that he possessed sufficient intelligence to represent himself, stating:

      I’m intelligent enough. I’m aware of what’s going on. I’m aware of
      the severity of the charges. I’m aware of the severity of the
      consequences of being found guilty. I understand every bit of it. I
      know the ramifications of what’s taking place.


                                         - 14 -
With regard to his desire to proceed to trial as quickly as possible, McKenzie

stated:

      I just don’t feel that it’s necessary for me to drag this out through the
      courts and cause the taxpayers to spend more and more money on this.
      I really don’t. There’s just—there’s, there’s not a lot to do in this
      case. There isn’t. I understand that it’s a severe case. I’m not trying
      to alleviate the severity of this case at all. And I know that my life is
      on the line here. I understand that.
              ....
      I don’t want to sit here and drag my fiancée through all this. I don’t
      want to have my mother dragged through all this, okay? . . . I don’t
      want to have the victim’s [sic] family dragged through all this and
      have them have to suffer through it all. I don’t.
              But I will put an end to this as fast as possible, as quick as
      possible.

(Emphasis supplied.)

      McKenzie’s own statements during these pretrial hearings establish that

visits by counsel to discuss the strategy to defend and the need for a waiver of

speedy trial would not have been productive. McKenzie’s assertion on rehearing

that we have somehow improperly discerned his intent is puzzling indeed, as the

prior quotes from the record on direct appeal are those of McKenzie himself. They

reflect that McKenzie’s express intent with regard to resolving the murder charges

expeditiously was to spare his fiancée, his mother, and the victims’ families the

anguish of a prolonged trial. He acknowledged that the case was straightforward,

informed the court that he had been ready for trial since he was “booked,” and

expressed his belief that enough time had passed since his arrest. Based upon these


                                        - 15 -
statements by McKenzie, we hold there is no reasonable probability that, had

counsel visited him prior to waiving speedy trial, McKenzie would have

acquiesced to this decision and proceeded to trial with representation.

      Moreover, even if McKenzie had been represented by counsel, during trial

two detectives testified with regard to McKenzie’s highly detailed confessions.

McKenzie admitted that he committed the murders because he wanted money to

purchase drugs. Given the viciousness of the murders with a hatchet and a knife,

the fact that McKenzie actually tricked one of the victims into giving him a murder

weapon, and McKenzie’s extensive violent criminal history, there is no reasonable

probability that, had McKenzie been represented by counsel, and mental health and

addiction evidence introduced, the result of the penalty phase would have been

different, and our confidence in the outcome has not been undermined. See

(to establish prejudice based upon a claim of

ineffective assistance of counsel, a defendant must demonstrate “that there is 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.”).6 Accordingly, McKenzie

has also failed to establish the second prejudice prong of Strickland.


       6. McKenzie’s assertion on rehearing that the mitigation presented in his
postconviction motion would have motivated at least four additional jury members
to recommend life sentences constitutes pure speculation.

                                        - 16 -
      We affirm the summary denial of this subclaim.

                                  Mental Health Expert

      In Ake, the Supreme Court held 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 

. It further concluded

that “where the consequence of error is so great, the relevance of responsive

psychiatric testimony so evident, and the burden on the State so slim, due process

requires access to a psychiatric examination on relevant issues, to the testimony of

the psychiatrist, and to assistance in preparation at the sentencing phase.” 

This Court has consistently held that Ake claims are procedurally barred if they are

not presented on direct appeal. See, e.g., Anderson v. State, 

, 519

(Fla. 2009); Whitfield v. State, 

, 379 (Fla. 2005); Marshall v. State,

, 1248 (Fla. 2003). McKenzie did not present an Ake challenge in

this case on direct appeal, and this subclaim is barred.

      Moreover, this claim also lacks merit. The trial court, in rejecting the

statutory mitigating circumstance that McKenzie was under the influence of an

extreme mental or emotional disturbance at the time of the murders, specifically

stated in the sentencing order:


                                          - 17 -
      The fact that the Defendant may wish to have this mitigating
      circumstance considered based on his statement to the court that he
      was intoxicated at the time he committed the murders, does not
      overcome the other evidence in the case that establishes in
      overwhelming fashion that the Defendant was in complete control of
      his faculties when these heinous crimes were committed.

(Emphasis supplied.) The record on direct appeal reflects that McKenzie never

requested the appointment of an expert during the guilt or penalty phases to

investigate the existence of mental health mitigation or any other psychological

matter. Whether to request the assistance of an expert, or present any mitigation

evidence other than his bank records, was exclusively McKenzie’s decision after

he knowingly, intelligently, and voluntarily waived his right to counsel, assumed

full control of his case, and chose to represent himself. Moreover, during the

penalty-phase Faretta inquiry, the trial court expressly informed McKenzie he

would not receive special treatment if he chose to represent himself, and McKenzie

acknowledged that he understood. He cannot now assert, and no evidence supports

his claim, that the trial court had an affirmative duty to offer or demand for him the

assistance of a mental health expert pursuant to Ake during the penalty phase.

      Similarly, McKenzie’s claim that counsel were ineffective for failing to

request the appointment of a mental health expert prior to their discharge fails. As

previously noted, after the jury rendered guilty verdicts, McKenzie stated that he

wished to be represented by counsel during the penalty phase. After the trial court

appointed counsel for McKenzie, counsel disclosed that prior to McKenzie’s initial


                                        - 18 -
decision to represent himself, they requested an evaluation to “determine whether

he was competent to stand trial.” During a pretrial hearing, McKenzie also stated,

“I’m sorry, Your Honor, but [counsel] has two evaluations by a psychiatrist

already. He can turn those over to you right now to show you that I’m competent.”

Thus, McKenzie was found to be competent both in an evaluation sought by

counsel and by the trial court during multiple Faretta inquiries.

      In alleging that counsel were ineffective, McKenzie ignores the fact that he

was found to be competent to represent himself, and he chose not to present

mitigation evidence during the penalty phase other than the bank records. Had

counsel requested the appointment of a mental health expert prior to their

discharge, McKenzie’s unequivocal statements and conduct throughout the trial

both demonstrate that he would have refused to submit to an evaluation because it

would have delayed the trial, and that would have been directly contrary to his

express intent to expedite the proceedings.

      There was nothing in the record to indicate to counsel or the trial court that

McKenzie’s mental health status was or would be a legitimate issue or a significant

factor in the case. Accordingly, McKenzie has failed to establish both the

deficiency and prejudice prongs of Strickland.

      We affirm the summary denial of this subclaim.

                                     Witnesses


                                        - 19 -
      This subclaim arises from McKenzie’s decision to represent himself. We

have previously cautioned that a defendant who elects to proceed without counsel

is entirely responsible for his own defense, even if he has standby counsel. See

Behr v. Bell, 

, 1056-57 (Fla. 1996). A defendant who chooses to

represent himself cannot later complain that the quality of his defense was

substandard or amounted to ineffective assistance of counsel. See 

contends that he was denied the opportunity to compel

witnesses on his behalf, he fails to provide the name of a single witness whom he

sought to present but was precluded from doing so by either the trial court or the

State. McKenzie never sought to invoke any process whatsoever. With regard to

the right to compulsory process for obtaining witnesses guaranteed by the Sixth

Amendment, the Supreme Court has stated that this right must be initiated by the

defendant:

              There is a significant difference between the Compulsory
      Process Clause weapon and other rights that are protected by the Sixth
      Amendment—its availability is dependent entirely on the defendant’s
      initiative. Most other Sixth Amendment rights arise automatically on
      the initiation of the adversary process and no action by the defendant
      is necessary to make them active in his or her case. While those rights
      shield the defendant from potential prosecutorial abuses, the right to
      compel the presence and present the testimony of witnesses provides
      the defendant with a sword that may be employed to rebut the
      prosecution’s case. The decision whether to employ it in a particular
      case rests solely with the defendant. The very nature of the right
      requires that its effective use be preceded by deliberate planning and
      affirmative conduct.


                                       - 20 -
Taylor v. Illinois, 

, 410 (1988) (emphasis supplied) (footnote

omitted). While representing himself, McKenzie chose not to present any

witnesses—mental health or otherwise. He had the opportunity to do so, but he

simply did not take advantage of that process. Accordingly, he cannot now assert

that his right to compulsory process and to compel witnesses was violated.

      The postconviction court properly denied this subclaim without an

evidentiary hearing.

                                Access to Law Library

      During the Faretta inquiry, the trial court warned McKenzie that if he chose

to represent himself, he would be more limited than an attorney in researching his

defense. McKenzie confirmed to the trial court that he understood this

ramification of self-representation. Although McKenzie informed the court during

the inquiry that he had “no library privileges,” McKenzie does not allege that he

ever asked the staff at the jail for library privileges, that jail staff denied him such

access, that he brought such a denial to the attention of the trial court, or that the

trial court did nothing to ensure McKenzie the access he sought. Cf. Langon v.

State, 

, 1109-10 (Fla. 4th DCA 1999) (“At a status conference . . .

Langon moved for access to video tapes and his files, as well as increased access to

the law library. Langon also moved for a continuance in order to review these

items and prepare for trial. . . . The court denied Langon’s motion for a


                                          - 21 -
continuance and instructed the sheriff’s office to bring the tapes and files to

Langon’s cell.”). Because McKenzie chose to represent himself, he was

responsible for alerting the trial court to any difficulties he encountered in

accessing legal materials. There is no indication in the record that McKenzie was

denied access to any legal materials he sought. Therefore, this subclaim is

conclusively refuted by the record, and summary denial was proper.

                             Prosecutorial Misconduct

      Under this claim, McKenzie asserts that the State allegedly sabotaged his

case in multiple ways. McKenzie first claims that the prosecution improperly

relied on his guilt phase opening statement as substantive evidence during its guilt

phase closing statement, and this conduct violated the Confrontation Clause. As a

preliminary matter, McKenzie did not object to the prosecutor’s closing statement

of which he now complains, and this issue has not been preserved. Further, an

allegation of improper argument by the prosecution is procedurally barred if not

asserted on direct appeal. See Ferrell v. State, 

, 977 (Fla. 2010);

Kelley v. State, 

, 756 (Fla. 1990).

      Moreover, even if preserved, we conclude that no improper argument or

Confrontation Clause violation occurred. During his opening statement, McKenzie

told the jury in great detail how and why the murders occurred:

            I’m here before you being tried for two crimes which occurred
      on October 4th at about dusk. My intention, in this opening

                                         - 22 -
statement, is twofold: To take up the least amount of your time as
possible, and give you a clear understanding of the crime that took
place. Only I can do this. Though the prosecution can, and will, no
doubt, put before you an excellent case, only I can truly bring you into
the horror of the evening of October 4th, 2006.
       ....
       At approximately 3:00 p.m. on October 4th, 2006, needing
some money, I contemplated on how I could get some. I was working
for Randy Peacock and Charles Johnston. . . . I knew that they had
some money; I wasn’t sure how much. I had drove to their house with
the intention of physically depriving them of their money.
       ....
       I asked . . . Charles Johnston if he had a hammer. You can’t see
the damage to my truck . . . but there is damage on the other side . . . .
It was my intention to utilize the hammer and a piece of wood to bang
out the dent as much as possible to be able to open up the driver’s side
door as much as possible without doing further damage to the vehicle,
as well as get a weapon in my hand.
       . . . On this table is where the hatchet was given to me at that
time. He gave me the hatchet because it has a flat side to it. . . . I was
given a hatchet. I needed a piece of wood. He searched upon the
carport and couldn’t find one. I knew that there was wood laying in
the back of the home, from previous work that I had done around the
home, and I said “come on, we can find a piece of wood back there
easily.” He still searched around the front. I don’t know if he felt
something wrong or what, but I kind of sensed that he did, and I
finally talked him into getting—I know there’s one, you know, right
around the corner, and we walked back there and went into the shed. .
. . And he walked in and I walked in behind him. . . . I struck Charles
Johnston one time in the back of the head with the . . . flat part of the
hatchet, not the blade side, probably about right there. He fell down,
knocking down a lot of the shelves. . . .
       ....
       I walked into the front door. Randy Peacock was standing in
the kitchen, cooking a pot of chicken soup. And I walked up behind
him and I struck him one time in the top, the back of his head, once
again . . . with the flat part of the hatchet. Basically about the same
spot that I hit Charles Johnston at. . . .
       He fell forward, on both elbows, about like that, directly into
the pot of chicken soup, with the soup still maintaining where it was

                                  - 23 -
      being cooked at on the stove. He didn’t fall over, but he was knocked
      out. And he didn’t cry out in pain. He was knocked out. And . . . I
      was puzzled why he wouldn’t fall, and then I realized that he was
      balanced perfectly there, knocked out, leaning with his arms in the
      pot.

(Emphasis supplied.) At this point, the trial court informed McKenzie that he

should tell the jury what he expected the evidence to show, “as opposed to giving a

statement.”

      According to McKenzie, the Confrontation Clause violation occurred when

the prosecutor made the following comments during guilt phase closing

statements:

             . . . All of those injuries and all of that blood and all of that
      viciousness because Norman Blake McKenzie, as he told you in his
      own words in his opening statement, wanted these items and wanted a
      car to get away for his own purposes.
             Ladies and gentlemen, the evidence has clearly shown you,
      beyond any doubt, that this defendant is guilty of both counts of
      murder in the first degree. It’s a rare case, it’s a unique case where
      you hear from the defendant, right off the beginning of the case, that’s
      represented himself here, but still, the State has to prove every
      element of each of those counts beyond and to the exclusion of every
      reasonable doubt.
             Norman McKenzie stood up, and in his own words in his
      opening statement, told you what that evidence would show, but the
      most compelling thing he told you was that not one single witness that
      would take the stand could know the horror of that day, that he was
      the only one that knew the horror of that day, and the truth of his own
      words to you has been the truth of this entire case throughout
      yesterday and today.
             ....
             . . . And Mr. McKenzie told you himself in his opening that the
      evidence would show that [Randy Peacock] was there for just a little
      while, he was sort of balanced there in that position. So forethought

                                       - 24 -
      about why—why was he still there, and then more injuries to that man
      with a different instrument. And those are the circumstances, ladies
      and gentlemen, you must consider based on Florida’s law.

Despite McKenzie’s assertion that his opening statement was relied upon by the

prosecution as substantive law, the quote above reflects the prosecution

specifically informed the jury that the State had the burden of proving McKenzie’s

guilt “beyond and to the exclusion of every reasonable doubt.” Further, McKenzie

omitted from his initial brief a portion of the State’s closing statement, which

followed the paragraph above that ends with the words “yesterday and today”:

             Ladies and gentlemen, we didn’t show you a lot of pictures or
      spend a lot of time on them. We showed you what we needed to to
      prove the elements of our case. It’s our job . . . to show you that
      Randy Wayne Peacock, who was in his own kitchen cooking chicken
      soup, died this death, and under the law of the state of Florida, this is a
      premeditated murder.

(Emphasis supplied.) The record also reflects that during the guilt phase, the State

presented as witnesses two detectives who heard McKenzie’s confessions. Those

detectives testified in great detail to the facts of the murders as they were conveyed

by McKenzie. Finally, before opening statements were given, the trial court

informed the jury that “[w]hat the lawyers say, and what Mr. McKenzie says, is not

evidence, and you are not to consider it as such during the opening statement”

(emphasis supplied). The court later instructed the jury “[i]t is up to the State to

prove the defendant’s guilt by evidence,” and “[i]t is to the evidence introduced in

this trial and to it alone that you are to look for that proof.”

                                          - 25 -
      Accordingly, the record conclusively refutes McKenzie’s allegation that the

prosecutor improperly relied upon his opening statement as evidence. Rather, the

State expressly noted during closing statements that it carried the burden of

establishing McKenzie’s guilt of the crimes, and the trial court affirmed this

principle in its instructions. Moreover, during the guilt phase, the State presented

ample evidence of McKenzie’s guilt and did not rely upon McKenzie’s opening

statement. Lastly, although McKenzie claims that “the State used his opening

statements to argue its case despite a lack of confrontation of those statements,” no

authority has been presented to support the principle that a criminal defendant can

assert a Confrontation Clause challenge to a statement when the defendant is the

one who voluntarily made the statement. This allegation of misconduct fails.

      McKenzie’s remaining claims of prosecutorial misconduct arise from the

perils of self-representation. These claims are (1) the prosecutor improperly

objected to McKenzie’s closing statements, thereby preventing McKenzie from

presenting evidence in mitigation;7 and (2) the prosecutor visited McKenzie in jail



      7. McKenzie cites the following exchanges in support of this subclaim:

             MCKENZIE: I don’t believe that under any circumstances at
      this time right now could this crime have ever occurred in my state of
      mind as I am right now. Never.
             Demonstrating a depraved mind without regard for human life.
      Did I go there to get that? Yes, [I] did. I did. Could I do that now?
      No.


                                        - 26 -
without a court reporter present8 and allegedly informed him that during trial, he

could not introduce statements from his first interrogation by law enforcement.

Had McKenzie been represented, counsel would have (1) presented opening and

closing statements that properly commented on the evidence offered during trial;

and (2) advised McKenzie as to the admissibility of statements made during the

first interrogation and whether those statements would be beneficial or detrimental

to McKenzie’s case. However, McKenzie chose to represent himself and,

therefore, he was responsible for his entire defense. 

.

As a result, any misinterpretation of the law or misunderstanding of trial procedure

            STATE: Your Honor, I’m going to have to object because it’s
      not about what Mr. McKenzie could do now; it’s about what
      happened on the day of the crime.

            COURT: I’m going to sustain the objection. Mr. McKenzie,
      you have to comment on the evidence.

             MCKENZIE: Yes, ma’am.

(Guilt phase closing statement.)

            MCKENZIE: Some things occurred in my childhood that in
      the beginning I didn’t know was wrong, and I remember—

            STATE: I’m sorry, Your Honor. At this point I’m going to
      have to object.
(Penalty phase closing statement.)

      8. McKenzie cites no legal authority for the proposition that a prosecutor
who visits a pro se criminal defendant in jail is legally required to have a court
reporter present.


                                        - 27 -
and the rules of evidence by McKenzie were exclusively due to his actions. We

hold that the postconviction court properly denied this subclaim.9

                             Interrogation Recordings

      In response to a notice of discovery filed by McKenzie’s counsel prior to

their discharge, the State filed a “Discovery Exhibit.” Listed in that exhibit is

“Electronic surveillance of conversations.” Thus, McKenzie was on notice that

electronic copies of his two interrogations existed, and he could have requested

that they be provided to him. Had McKenzie acquired and reviewed the

recordings, he could have played them for the jury, argued to the jury or the trial

court that they provided compelling evidence of mental health and addiction

mitigation, and used them to rebut the detectives’ testimony. However, McKenzie

took no steps to acquire the recordings. Accordingly, the failure of the jury and the

trial court to view the recordings can only be attributed to McKenzie, and not to

any misconduct by the State.

      We hold that the postconviction court properly denied this subclaim without

an evidentiary hearing.

                                    Deficient PSI



       9. McKenzie’s assertion on rehearing that our holding condones
“prosecutors engag[ing] in all sorts of misconduct when seeking a death sentence
of a pro se defendant” is based upon the false and misguided premise that the State
engaged in improper conduct during the trial proceedings.


                                        - 28 -
      Because of the minimal mitigation offered by McKenzie, the trial court

ordered the preparation of a PSI by the DOC.10 McKenzie now contends that this

report was deficient because it did not contain any reference to the recorded

confessions, his mental health, or his social history. However, during the Spencer

hearing McKenzie was provided a copy of the PSI, and the trial court insisted that

he read it, stating “I want you to sit down there and I want you to read through it.

We’ve got all morning.” After, the trial court asked McKenzie if there was

anything incorrect, or anything that should be added. McKenzie replied “no,”

other than requesting that the amount of his estimated monthly expenses be

changed. McKenzie did not alert the trial court to the lack of information in the

PSI similar to what he now asserts should have been included. To the contrary,

before reading his prepared statement during the Spencer hearing, the following

dialogue occurred:

           MCKENZIE: . . . [The prosecution] made a slight reference to
      some experiences, however traumatic or not they may have been, in
      my childhood. I’m not going to expound upon that at all.

             COURT: You don’t wish to offer any of that mitigation?

            MCKENZIE: No, I don’t. I just, I don’t. I’m not going to—
      I’m not going to go through that, you know.

       10. In his motion for rehearing, McKenzie curiously claims that we have
somehow misunderstood that “the PSI was not a report by Mr. McKenzie but a
report about Mr. McKenzie.” This assertion makes no sense in light of the above
sentence.


                                        - 29 -
(Emphasis supplied.) Thus, McKenzie had no desire for his social history to be

presented to the trial court for consideration as mitigation. This was McKenzie’s

decision while he acted as his own counsel. Further, as discussed in the prior

subclaim, McKenzie had notice of the recordings of his prior statements to law

enforcement. If McKenzie had wanted the trial court to consider these recordings

as possible drug abuse or mental health mitigation, he could have simply requested

them and had them presented during the Spencer hearing, or even requested that

the interrogations be presented during trial. He did not do so.

      Accordingly, any claims of deficiency with regard to the interrogations or

the PSI are waived at this juncture because (1) the trial court asked McKenzie if

anything was missing from the report, and McKenzie replied in the negative; (2)

McKenzie was on notice that the interrogation recordings existed, but did nothing

to bring them to the court’s attention; and (3) McKenzie expressly informed the

trial court that he did not wish to present any mitigation with regard to his

childhood. Based on the foregoing, the postconviction court properly denied this

subclaim without an evidentiary hearing.

                                     Summation

      A number of the subclaims presented in the first issue on appeal arise from

McKenzie’s decision to represent himself during his capital criminal proceeding.

Based upon his knowing, intelligent, and voluntary waiver of his right to counsel,

                                        - 30 -
and due to either inadvertence, lack of legal experience, or a definitive decision,

evidence that might have been considered by the jury or the trial court as

mitigation was not presented. The fact that McKenzie may have made ill-advised

decisions while he represented himself does not establish that he is entitled to a

“do-over” of his penalty phase or any phase of his underlying trial in the

postconviction context. If this approach was adopted, many competent capital

defendants would elect to represent themselves during trial as a delaying tactic.

Instead, the cautionary statement in Behr applies with equal force here: “[A]

defendant who represents himself has the entire responsibility for his own defense,

even if he has standby counsel. Such a defendant cannot thereafter complain that

the quality of his defense was a denial of ‘effective assistance of counsel.’ 

(quoting 

n.46). In light of the

foregoing, we affirm the summary denial of the subclaims presented in

McKenzie’s first postconviction claim.

      Additionally, because McKenzie’s second claim on appeal essentially

constitutes a presentation of the mitigation evidence that McKenzie would have

offered if this Court had granted him relief on his first claim, we reject this claim

as well. Contrary to McKenzie’s misrepresentation on rehearing, our analysis has

not discounted “expertise in psychology and addiction.” Rather, we reiterate that

McKenzie had no desire to present experts in these fields while he acted as his own


                                         - 31 -
counsel, and his belated attempt to do so during the postconviction proceedings

was improper. Based upon the evidence that McKenzie chose to introduce during

the penalty phase, this Court on direct appeal conducted a full proportionality

review with regard to the death sentences imposed by the trial court. See

. Accordingly, to claim on rehearing that no such

review occurred is misleading at best, and false at worst. McKenzie is not entitled

to a second proportionality review at the postconviction appellate stage for

evidence that he chose not to present during his capital trial.

      Finally, because there is no error by the postconviction court, McKenzie’s

claim of cumulative error fails. See Lukehart v. State, 

, 524 (Fla.

2011) (“This Court has repeatedly held that where the alleged errors, when viewed

individually, are ‘either procedurally barred or without merit, the claim of

cumulative error also necessarily fails.’ ” (quoting Israel v. State, 

,

520 (Fla. 2008)).

                              Habeas Corpus Petition

      In the sole issue presented in the habeas petition, McKenzie claims that

because he is mentally ill, to execute him would be unconstitutional. However,

regardless of whether McKenzie actually suffers from mental illness, we have

previously held that mental illness alone does not operate as an absolute bar to

execution. See, e.g., Power v. State, 

, 222 (Fla. 2008) (“[N]either


                                        - 32 -
this Court nor the Supreme Court has recognized mental illness as a per se bar to

execution.” (quoting Diaz v. State, 

, 1151 (Fla.), cert. denied, 

(2006)). Further, in 2011 this Court rejected a claim that execution of

the mentally ill is inconsistent with “evolving standards of decency in death

penalty jurisprudence.” Johnston v. State, 

, 484 (Fla. 2011).

Accordingly, this claim is without merit, and McKenzie is not entitled to habeas

relief.

                                     CONCLUSION

          For the foregoing reasons, we affirm the denial of the rule 3.851 motion and

deny the petition for writ of habeas corpus.

          It is so ordered.

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

NO MOTION FOR REHEARING WILL BE ALLOWED.

Two Cases:

An Appeal from the Circuit Court in and for St. Johns County,
     Wendy Williams Berger, Judge - Case No. 552006CF001864XXAXMX
And an Original Proceeding – Habeas Corpus

James Lawrence Driscoll, Jr. and David Dixon Hendry of Capital Collateral
Regional Counsel-Middle Region, Tampa, Florida,

          for Appellant/Petitioner




                                          - 33 -
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Mitchell David
Bishop, Assistant Attorney General, Daytona Beach, Florida,

      for Appellee/Respondent




                                     - 34 -