Supreme Court of Florida
                                  ____________

                                  No. SC13-819
                                  ____________

                        RODERICK MICHAEL ORME,
                               Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                   No. SC14-22
                                  ____________

                        RODERICK MICHAEL ORME,
                               Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                               [December 10, 2015]

PER CURIAM.

      Roderick Michael Orme appeals an order of the circuit court denying his

motion to vacate his sentence of death, filed under Florida Rule of Criminal

Procedure 3.851, and he 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 postconviction court’s denial of relief, and we deny habeas relief.

                    FACTS AND PROCEDURAL HISTORY

      A full description of the facts of the instant case can be found in our opinion

from Orme’s direct appeal. Orme v. State (Orme I), 

, 260-61 (Fla.

1996). The facts relevant here are as follows. In March 1992, Orme was charged

with premeditated or felony murder, robbery, and sexual battery in connection with

the death of Lisa Redd, whose body was found in Orme’s motel room. 

A jury convicted Orme on all three counts and recommended the death penalty by

a vote of seven to five. 

The trial judge followed the recommendation

and sentenced Orme to death, finding three aggravating factors—committed during

the course of a sexual battery; heinous, atrocious, or cruel (HAC); and committed

for pecuniary gain. 

the judge found both statutory mental health

mitigators (substantial impairment and extreme emotional disturbance), giving

them “some weight.” 

previously described the procedural history of

this case as follows:

      On direct appeal, Orme raised eight issues. [n.1] This Court affirmed
      Orme’s conviction of first-degree murder and the sentence of death.
      [Orme 

.] Orme filed a petition for writ of
      certiorari with the United States Supreme Court. That Court denied
      review on January 13, 1997. Orme v. Florida, 

(1997).

             [N.1] The following issues were raised: (1) the trial court
             should have directed a judgment of acquittal on grounds

                                         -2-
      the case against him was circumstantial and the State had
      failed to disprove all reasonable hypotheses of innocence;
      (2) Orme’s statements to officers should have been
      suppressed on grounds he was too intoxicated with drugs
      to knowingly and voluntarily waive his right to silence;
      (3) death is not a proportionate penalty because Orme’s
      will was overborne by drug abuse, and because any fight
      between the victim and him was a “lover’s quarrel”; (4)
      Orme’s mental state at the time of the murder was such
      that he could not form a “design” to inflict a high degree
      of suffering on the victim; (5) the trial court erred by
      failing to weigh in mitigation the fact that Orme had no
      significant prior criminal history; (6) the trial court erred
      in declining to give a special instruction that acts
      perpetrated on the victim after her death are not relevant
      to the HAC aggravator; (7) the instruction on HAC
      violated the dictates of Espinosa v. Florida, 

(1992); and (8) Orme was incapable of forming the
      specific intent necessary for first-degree murder and this
      fact bars his death sentence under Enmund v. Florida,
      

(1982).

       Subsequently, Orme filed an amended motion for
postconviction relief pursuant to Florida Rule of Criminal Procedure
3.851, raising twenty-five claims. After an evidentiary hearing on
four claims of ineffective assistance of trial counsel, the trial court
denied relief. Orme appealed the denial of postconviction relief to
this Court, raising three claims. [n.2] He also petitioned the Court for
a writ of habeas corpus, raising eight claims. [n.3] See [Orme v. State
(Orme II), 

, 737 (Fla. 2005)]. This Court found
defense counsel ineffective for failing to further investigate Orme’s
diagnosis of bipolar disorder with respect to the penalty phase. As a
result, a new penalty phase was ordered. 

      [N.2] Orme argued that (1) the trial court erred in
      denying his ineffective assistance of counsel claim for
      trial counsel’s failure to present evidence of Orme’s
      diagnosis of bipolar disorder; (2) his death sentence is
      unconstitutional pursuant to Ring v. Arizona, 

(2002), and its progeny; and (3) the general jury

                                  -3-
      qualifications procedure in Bay County, where he was
      tried, was unconstitutional. [Orme II], 

      (Fla. 2005).

      [N.3] Three of the claims Orme raised were: (1)
      appellate counsel was ineffective for failing to raise on
      appeal the fact that Orme was involuntarily absent from
      two bench conferences, which he claims were critical
      stages of his trial; (2) appellate counsel was ineffective
      for failing to raise on appeal the claim that the prosecutor
      engaged in misconduct rendering the conviction and
      sentence fundamentally unfair; and (3) appellate counsel
      was ineffective for failing to raise on appeal the claim
      that the trial court erroneously allowed forty-three
      gruesome photographs to be shown to the jury. Orme
      raised five additional claims, all of which were found not
      to be properly raised in a habeas proceeding because they
      were either raised on direct appeal or in postconviction or
      should have been raised and were therefore procedurally
      barred. [Orme 

].

       In May 2007, a new penalty phase was conducted before a new
jury, but before the original trial judge. By a vote of eleven to one,
the new jury recommended a death sentence. The trial court followed
the jury’s recommendation and sentenced Orme to death. The trial
court found the following three statutory aggravating factors: (1) the
capital felony was committed for pecuniary gain; (2) the capital felony
was committed while the defendant was engaged in the commission
of, or an attempt to commit, or flight after committing or attempting to
commit a sexual battery; and (3) the capital felony was especially
heinous, atrocious, or cruel. The trial court also found three statutory
mitigators: (1) the defendant had no significant criminal history (little
weight); (2) the capital felony was committed while the defendant was
under the influence of extreme mental or emotional disturbance (little
weight); and (3) the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of the law was substantially impaired (little weight).
The trial court also found that the following mitigation was either
irrelevant to the murder or did not exist and, as a result, gave them no
weight: (1) the age of the defendant; (2) a bipolar disorder contributed

                                  -4-
      significantly to the defendant’s substance abuse; (3) the defendant had
      a difficult childhood; (4) the defendant is a model prisoner; (5) the
      defendant’s potential for rehabilitation; and (6) the defendant tried to
      get the victim help.

Orme v. State (Orme III), 

, 542-43 (Fla. 2009).

      At resentencing, Orme was initially represented by Russell Ramey, who was

appointed after the Public Defender’s Office certified to the court a conflict of

interest and moved for appointment of separate counsel. Subsequently, attorneys

Sarah Butters and George Schulz of Holland & Knight, LLP, filed a notice of

appearance as cocounsel to Ramey. However, at a September 7, 2005, hearing, the

trial court informed Butters and Schulz that their pro bono representation of Orme

as cocounsel to Ramey could prompt Ramey’s withdrawal from the case, as the

Justice Administrative Commission (JAC) would not pay for court-appointed

counsel when private counsel had been obtained. Thus, on November 2, 2005,

Butters and Schulz filed a motion for appointment of Michel Stone as cocounsel

for Orme.1 A hearing was held on the motion on November 7, 2005, and the trial

court conducted a colloquy with Orme, eventually appointing Stone as cocounsel

to Ramey.




        1. Stone had briefly represented Orme before the start of Orme’s original
trial proceedings, when Stone left the Public Defender’s Office to enter private
practice.


                                         -5-
      Orme appealed the death sentence he received at resentencing to this Court,

raising nine claims.2 Orme 

, 543. We affirmed his sentence,

finding no reversible error. 

Orme then filed a petition for writ of

certiorari with the United States Supreme Court, which that Court denied on June

7, 2010. Orme v. Florida, 

(2010).

      On June 1, 2011, Orme filed the instant motion for postconviction relief,

presenting four claims of ineffective assistance of counsel—that resentencing

phase counsel rendered ineffective assistance by (1) violating the Sixth, Eighth,

and Fourteenth Amendments; (2) failing to object to the prosecutor’s improper

arguments at resentencing; (3) failing to preserve the trial court’s error in holding

that a juror’s refusal to consider remorse as a mitigator could only be a basis for a




       2. The nine claims were that the trial court erred in (1) refusing to allow
Orme to challenge for cause prospective jurors who could not consider remorse as
a mitigator; (2) refusing to allow him to inquire of prospective jurors whether they
could consider recommending a life sentence as a matter of mercy even if the
aggravators outweighed the mitigators; (3) failing to dismiss the venire after one
prospective juror revealed that Orme had a prior conviction; (4) refusing to allow
Orme to waive his right to the sentencing option of life in prison without the
possibility of parole for twenty-five years in favor of a harsher punishment of life
in prison without the possibility of parole; (5) failing to give weight to Orme’s
difficult childhood, the fact that Orme was a model prisoner, Orme’s potential for
rehabilitation, and Orme’s attempt to get the victim help; (6) finding that the
pecuniary gain aggravator applied; (7) finding the HAC aggravator; and (8) finding
that the “murder was committed in the course of a sexual battery” aggravator
applied; along with the ninth claim that Orme’s death sentence violated Ring v.
Arizona, 

(2002). 

                                         -6-
peremptory challenge; and (4) failing to preserve the issue of the jury’s

consideration of mercy in making its sentencing recommendation. He also raises

two additional claims: that rules prohibiting Orme’s lawyers from interviewing

jurors to discover constitutional error violate Orme’s constitutional rights and that

Orme’s death sentence violates the Eighth Amendment. The State filed its

response on July 26, 2011. The postconviction court granted an evidentiary

hearing on Orme’s first claim only. The hearing began on April 30, 2012. On

March 1, 2013, the court entered an order denying all of Orme’s postconviction

claims.

      Orme now appeals the denial of his motion, raising four claims of ineffective

assistance of resentencing phase counsel3 and one claim of ineffective assistance of

postconviction counsel. Orme also petitions this Court for a writ of habeas corpus,

alleging that appellate counsel rendered ineffective assistance by failing to raise the

following issues on appeal from the resentencing: (1) the use of restraints on Orme

during resentencing; (2) the State’s participation in privileged discussions and



      3. These claims are the same as the first four claims presented to the
postconviction court in Orme’s motion below—that resentencing phase counsel
rendered ineffective assistance by (1) violating the Sixth, Eighth, and Fourteenth
Amendments; (2) failing to object to the prosecutor’s improper arguments at
resentencing; (3) failing to preserve the trial court’s error in holding that a juror’s
refusal to consider remorse as a mitigator could only be a basis for a peremptory
challenge; and (4) failing to preserve the issue of the jury’s consideration of mercy
in making its sentencing recommendation.


                                         -7-
communications of defense counsel in violation of the Equal Protection Clause;

and (3) improper arguments by the prosecutor at resentencing.

                                    ANALYSIS

      First, we summarily reject Orme’s claim of ineffective assistance of

postconviction counsel because, as Orme recognizes, this Court has repeatedly

rejected such claims.4 We also reject the remainder of Orme’s claims for the

reasons outlined below.

                       I. Ineffective Assistance of Counsel

      To prevail on an ineffectiveness claim, a defendant must satisfy both prongs

of the Strickland5 test: that counsel performed deficiently and that such deficiency

prejudiced the defendant. Lynch v. State, 

, 70 (Fla. 2008). Because

both prongs must be demonstrated, once a defendant has failed to meet one prong,

a discussion of the other is unnecessary. 

; see Maxwell

v. Wainwright, 

, 932 (Fla. 1986). Furthermore, because the inquiry

involves mixed questions of law and fact, we defer to the trial court’s factual




       4. Mann v. State, 

, 1163-64 (Fla. 2013); Gore v. State, 

, 778 (Fla. 2012); Kokal v. State, 

, 777 (Fla. 2005);
Foster v. State, 

, 917 (Fla. 2002); King v. State, 

,
1245 (Fla. 2002); Carroll v. State, 

, 609 n.8 (Fla. 2002); Waterhouse
v. State, 

, 1193 (Fla. 2001).
      5. Strickland v. Washington, 

, 687 (1984).


                                        -8-
findings where supported by competent, substantial evidence, but review the

court’s legal conclusions de novo. Walker v. State, 

, 134 (Fla. 2012).

      To demonstrate deficient performance, “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.”

(quoting Bolin v. State, 

, 155 (Fla. 2010)).

In assessing counsel’s performance, judicial scrutiny must be “highly deferential,”

and counsel is entitled to the strong presumption that his or her conduct “falls

within the wide range of reasonable professional assistance.” 

. Thus, a defendant “must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’ ”

v. Louisiana, 

, 101 (1955)).

      To establish prejudice, the defendant must show that without his counsel’s

deficiency, there is a “reasonable probability” that he would have received a

different sentence. Simmons v. State, 

, 503 (Fla. 2012). In other

words, the deficiency must be demonstrated to have “so affected the fairness and

reliability of the proceeding that confidence in the outcome is undermined.”

(quoting 

); see also 

(“A reasonable probability is a probability sufficient to undermine

confidence in the outcome.”). To determine reasonable probability, we must


                                        -9-
“consider the totality of the available mitigation evidence—both that adduced at

trial, and . . . in the [postconviction] proceeding—and reweig[h] it against the

evidence in aggravation.” 

(internal quotation marks

omitted).

       A. Violations of the Sixth, Eighth, and Fourteenth Amendments

      Orme’s first claim can be divided into seven subclaims.6 However,

subclaims two through four are so significantly related to the theory of residual

doubt in subclaim one that they will be discussed together below. Subclaims five

through seven will be addressed separately.

      The first issues of ineffective assistance involve the injection of residual or

lingering doubt about the murder and the sexual battery convictions into the

resentencing phase by defense counsel. This Court has rejected the use of residual

doubt as a mitigator. Darling v. State, 

, 162 (Fla. 2002) (“We have

repeatedly observed that residual doubt is not an appropriate mitigating

circumstance.”). “[A] defendant’s right to present evidence challenging an



       6. The first six subclaims are that counsel rendered ineffective assistance by
(1) attempting to use lingering doubt to affect the jury; (2) making false promises
as to the DNA evidence in the case; (3) presenting inconsistent theories of the case;
(4) attempting to convince the jury that Orme had consensual sex with the victim;
(5) calling Drs. Harmor and Riddick to testify; and (6) poorly presenting the
mental health mitigation evidence. As subclaim seven, Orme argues that the
postconviction court erred in not considering the cumulative prejudice resulting
from the deficiencies outlined in the first six subclaims.


                                        - 10 -
aggravating circumstance may not be used to relitigate the guilt determination

through the introduction of evidence suggesting lingering or residual doubt.”

Duest v. State, 

, 40 (Fla. 2003). Thus, where the sole purpose for

admitting certain evidence is to show residual doubt as to the defendant’s guilt, the

evidence is inadmissible. Merck v. State, 

, 796 (Fla. 2013). See,

e.g., 

(upholding court’s exclusion of alibi evidence where

it was not relevant to rebut robbery/pecuniary gain aggravator but was merely an

attempt to relitigate defendant’s failed alibi defense from the guilt phase (citing

Way v. State, 

, 916 (Fla. 2000); Waterhouse v. State, 

, 1015 (Fla. 1992))).

      Here, resentencing counsel’s strategy was to rebut the sexual battery

aggravator by asserting, based on the unknown third party’s DNA found under the

victim’s fingernail and the fact that Orme did not have any scratches on his person,

that Orme had consensual sex with the victim. Orme argues that such strategy

constitutes an impermissible, residual doubt argument and therefore demonstrates

deficient performance. Orme also argues deficiency for resentencing counsel’s

presentation of inconsistent theories in that counsel highlighted the lack of

scratches on Orme’s body to imply that Orme was not guilty, but also stated that

Orme knew he was the one who killed the victim and that neither the defense nor




                                        - 11 -
Orme was trying to evade responsibility for the victim’s death. As to prejudice,

Orme argues that this strategy caused the defense to lose credibility with the jury.

      Regardless of whether this was a good strategy, it does not rise to the level

of ineffective assistance of counsel. Any loss of credibility resulting from a

residual doubt argument has not “so affected the fairness and reliability of the

proceeding that confidence in the outcome is undermined,” 

(quoting 

), especially given the trial court’s finding and

assigning of great weight to three aggravators, including HAC—which is one of

the weightiest in Florida’s statutory sentencing scheme7—and the “relatively

weak”8 mitigation presented in this case. Because Orme has failed to demonstrate

prejudice, we find that he is not entitled to relief as to these subclaims.

      Orme also argues that calling Drs. Harmor and Riddick constituted deficient

performance because portions of their testimony were favorable to and relied upon

by the State in establishing the sexual battery and HAC aggravators. However,

both experts provided testimony that supported the defense theory of the case. Dr.

Harmor testified about a third person’s DNA found at the crime scene. Dr.

Riddick testified that the victim could have been beaten after, rather than before or




      7. Bradley v. State, 

, 680 (Fla. 2010).
      8. Orme 

, 545.


                                         - 12 -
during sex, and that the sex could have been consensual. Whether or not

resentencing counsel received what they desired from the testimony of these two

experts, Orme has not shown that he was prejudiced by it. The State produced

sufficient evidence for the finding of the HAC and sexual battery aggravators even

without the testimony from Drs. Harmor and Riddick. See Orme 

. Accordingly, Orme cannot establish that any deficiency in calling these

experts affected his resentencing in such a way that this Court’s confidence in his

sentence is undermined. 

.

      Orme also argues that his resentencing counsel rendered ineffective

assistance in their presentation of mental health mitigation by failing to: (1) correct

the inaccurate testimony of Drs. Maher and Herkov that they were the only two

experts, other than Dr. Walker, to diagnose Orme as bipolar; (2) call Dr. McClane

as a witness or have Dr. Warriner’s9 prior testimony from Orme’s original

postconviction proceedings read to the jury; (3) have Dr. Herkov testify as to the

statutory mitigators; and (4) present the testimony of Drs. Maher and Herkov in a

detailed, cohesive manner, as it was presented at the original postconviction

hearing.




      9. Dr. Warriner died before resentencing.


                                        - 13 -
      Neither Dr. McClane nor Dr. Warriner clearly diagnosed Orme as bipolar.

As we noted in Orme II, Dr. McClane testified in Orme’s original postconviction

proceeding that had he received certain information before trial, he “would have

diagnosed Orme as probable bipolar in a depressed phase,” and Dr. Warriner

indicated that “had he been asked to provide a diagnosis, he would likely have

diagnosed Orme with ‘bipolar disorder, mixed type.’ 

(emphasis added). These statements are tentative and hypothetical, not an actual

diagnosis. Thus, any attempt by resentencing counsel, on redirect, to correct the

testimony that only three doctors diagnosed Orme as bipolar would have been

useless or even detrimental since Drs. Maher and Herkov obviously did not

consider the statements by Drs. Warriner and McClane to constitute actual

diagnoses. Further, Orme received the benefit of their statements when the State’s

expert, Dr. Pritchard, testified at resentencing that both Dr. Warriner and Dr.

McClane had diagnosed Orme with bipolar disorder. Under the circumstances,

prejudice has not been established.

      Nor has Orme demonstrated deficient performance for not presenting

testimony from Drs. McClane and Warriner. Resentencing counsel testified that

they tried contacting Dr. McClane, but he refused to cooperate or testify at Orme’s

resentencing. Orme has not shown that Dr. McClane was willing or available to

testify. In addition, resentencing counsel made the strategic decision to rely on live


                                        - 14 -
testimony rather than reading Dr. Warriner’s postconviction testimony into

evidence. As the postconviction court found, that strategy decision was

reasonable, especially in light of the lack of certainty regarding whether Dr.

Warriner did, in fact, diagnose Orme with bipolar disorder. See 

. As Orme has not shown deficient performance, we find it unnecessary

to discuss the prejudice prong. 

      Orme also cannot demonstrate prejudice for counsel’s failure to have Dr.

Herkov testify concerning the statutory mitigating factors because the other

defense expert, Dr. Maher, testified as to the mitigating circumstances, and the trial

court found the existence of both statutory mental health mitigators and a third

statutory mitigator. Moreover, resentencing counsel asked Dr. Herkov about the

effect of cocaine upon one’s ability to appreciate what one is doing or one’s ability

to avoid doing it. Lastly, Dr. Herkov testified that cocaine intoxication causes

impaired judgment, and he related Orme’s bipolar disorder and drug use back to

the crime. Orme cannot demonstrate prejudice as to this issue and therefore, is not

entitled to relief under Strickland.

      Orme’s last allegation as to mitigation—that the expert testimony at

resentencing could have been better presented—does not overcome the “highly

deferential” judicial scrutiny under which attorney conduct is analyzed.

. More importantly, a “general allegation that


                                        - 15 -
mitigating evidence could have been better presented is an insufficient allegation

of prejudice.” Cole v. State, 

, 428 (Fla. 2003). Orme argues that

had the testimony been better presented, the experts would have had more

credibility with the jury, resulting in a reasonable probability that Orme’s bipolar

disorder would have been established. However, this argument is purely

speculative and does not entitle Orme to relief. Johnston v. State, 

,

477 (Fla. 2011) (“Mere speculation that counsel’s error affected the outcome of the

proceeding is insufficient.”).

      Orme has not demonstrated ineffective assistance as to this first claim.

Therefore, we affirm the postconviction court’s denial of relief. Because none of

Orme’s subclaims entitle him to relief, his claim of cumulative prejudice must also

fail. Suggs v. State, 

, 433-34 (Fla. 2005) (“Because he failed to

prove a deficiency in any one of the above alleged instances of ineffective

assistance of counsel, Suggs’ cumulative claim of prejudicial error also fails.”).

                             B. Improper Arguments

      Most of the prosecutorial comments to which Orme objects were not

improper. Thus, counsel cannot be ineffective for failing to object to them.

Rogers v. State, 

, 548 (Fla. 2007). However, three of the

prosecutor’s arguments were improper, and Orme’s resentencing phase counsel




                                        - 16 -
should have objected. Nonetheless, we deny relief because prejudice has not been

demonstrated.

      During closing argument, the prosecutor asked the jury to consider the last

minutes of the victim’s life: “Was she feeling any endorphins, was she feeling a

sense of calm, or was she feeling deep sadness, fear, pain, cruelty, what does our

common sense tell us?” This comment asked jurors to use their common sense to

think about what the victim was feeling. As found by the postconviction court, this

comment is an impermissible, “golden rule” argument—one that asks jurors to

place themselves in the victim’s position, imagine the victim’s pain or fear, or

imagine how they would feel if the victim was their relative. See Williamson v.

State, 

, 1006 (Fla. 2008) (quoting Hutchinson v. State, 

, 954 (Fla. 2004)) (internal quotation marks omitted).

      The other two comments were impermissible imaginary scripts. “An

‘imaginary script’ is a subtle form of a ‘golden rule’ argument in which the

prosecutor asks the jury to put the prosecutor’s ‘own imaginary words in the

victim’s mouth,’ thereby ‘trying to unduly create, arouse and inflame the

sympathy, prejudice and passions of [the] jury to the detriment of the accused.’ ”

Gonzalez v. State, 

, 1153 (Fla.) (quoting Urbin v. State, 

, 421 (Fla. 1998)), cert. denied, 

(2014). In the first comment,

the prosecutor stated that the victim could not breathe and therefore, could not tell


                                        - 17 -
Orme to “please take my car, go ahead, take the purse, you’ve already beaten me,

you have already raped me, I have no dignity, don’t take my life.” Later on, the

prosecutor stated that the victim “didn’t beg him, please, Mike, let me go, you are

hurting me.” These two comments placed imaginary words into the victim’s

mouth and were therefore improper. However, Orme must demonstrate prejudice

to prevail on this claim.

      To establish prejudice for counsel’s failure to object to improper

prosecutorial comments, the prosecutor’s comments must “either deprive the

defendant of a fair and impartial trial, materially contribute to the conviction, be so

harmful or fundamentally tainted as to require a new trial, or be so inflammatory

that they might have influenced the jury to reach a more severe verdict than . . . it

would have otherwise.” Walls v. State, 

, 1167 (Fla. 2006)

(quoting Spencer v. State, 

, 383 (Fla. 1994)). Although the

prosecutor in this case made impermissible golden rule and imaginary script

arguments, these arguments do not rise to the level of prejudice required by Walls.

The statements constituted a brief portion of an argument that otherwise focused

on the facts of the case and the evidence against the defendant. None of the

statements were so harmful or inflammatory as to influence the jury to reach a

more severe verdict than it would have otherwise, especially in light of the

evidence presented. 

we find that Orme has failed to demonstrate


                                         - 18 -
prejudice and, therefore, cannot establish a claim of ineffective assistance for

resentencing counsel’s failure to object to these improper prosecutorial comments.

      We take this opportunity to again caution prosecutors about such

impassioned closing arguments. We understand that often comments are made in

the heat of the moment that with hindsight should not be made because they cross

the line from zealous advocacy to improper. However, prosecutors should be ever

mindful that in cases where the evidence supporting guilt or the aggravating

circumstances is not strong, such comments could and have caused this Court to

find that improper comments materially contributed to either the finding of guilt or

the recommendation for a sentence of death.

                         C. Claims Regarding Voir Dire

      Orme argues that resentencing counsel rendered ineffective assistance by not

continuing to question prospective jurors on whether they could consider remorse

or mercy in sentencing. As to prejudice, Orme asserts that when the errors

committed by resentencing counsel are combined with the errors this Court found

harmless on appeal, it is clear that Mr. Orme did not receive the fundamentally fair

proceeding to which he is entitled under the Eighth and Fourteenth Amendments.

      During voir dire, resentencing counsel asked prospective jurors if they could

consider remorse as mitigation and whether mercy should be a consideration in

sentencing. Orme 

. As to each of these issues, the State


                                        - 19 -
objected, and the trial court sustained the objections, restricting defense questions

regarding these topics. 

the court allowed inquiry into

remorse and mercy again, but resentencing counsel did not ask any other

prospective jurors about remorse. 

however, resume questioning

about mercy. 

also began to question the jurors about mercy,

explaining that the consideration of mercy rests with the governor. 

Resentencing counsel objected to that line of argument and explained that the

defense would not be questioning any more jurors about mercy, so the State should

not be allowed to mention it. The trial court ruled that the State could not discuss

mercy unless defense counsel brought it up. 

Resentencing counsel then

did not mention mercy for the rest of voir dire. On appeal, we found Orme’s

claims of trial court error on these issues unpreserved because counsel did not ask

jurors about remorse or mercy after the court made its rulings. 

545.

      Orme now argues ineffective assistance of counsel for failing to preserve

these claims. However, Orme cannot demonstrate deficient performance. As to

mercy, resentencing counsel made a strategic decision to abandon that line of

questioning to prevent the State from further argument concerning the

consideration of mercy. Such decision was both sound and reasonable. 

. Counsel relied on the prospective jurors to consider mercy on

their own rather than suggesting that they consider it and thereby exposing them to


                                        - 20 -
additional negative argument by the State. Furthermore, counsel’s decision not to

continue questioning prospective jurors about remorse and mercy does not fall

below the range of reasonably competent performance because Orme is not entitled

to have prospective jurors questioned about the specific topics of remorse and

mercy. Orme cannot overcome the highly deferential judicial scrutiny to which

counsel’s behavior is entitled. Therefore, Orme is not entitled to relief under

Strickland.

                                 II. Habeas Claims

      Ineffective assistance of appellate counsel is determined using the Strickland

standard for ineffective trial counsel. 

. Any appellate

counsel deficiency must be related to an error affecting the outcome of the case,

not an error that is harmless. Knight v. State, 

, 1001 (Fla. 1981).

Appellate counsel’s deficiency must have compromised the appellate process so

much that confidence in the correctness of the result is undermined. Thompson v.

State, 

, 660 (Fla. 2000). Appellate counsel will not be deemed

ineffective for failing to raise a meritless issue. Wyatt v. State, 

, 112-

13 (Fla. 2011). As such, appellate counsel cannot be ineffective for not raising

unpreserved claims unless they constitute fundamental error. See Walls, 

at 1176; Davis v. State, 

, 1133 (Fla. 2005). Further, appellate

counsel is not required to raise every claim that might have had some possibility of


                                        - 21 -
success, Zack v. State, 

, 1204 (Fla. 2005), but must instead

“winnow out weaker arguments in order to concentrate on key issues,” 

n.5.

                                A. Use of Restraints

       Orme claims appellate counsel was ineffective for failing to raise as an issue

on direct appeal the use of a restraint during his resentencing. Generally, a

defendant has the right to appear before the jury free from physical restraints.

Weaver v. State, 

, 193 (Fla. 2004). However, restraints may be

used to allay security concerns, such as preventing courtroom violence or an

escape, as well as preventing other courtroom disruptions. Deck v. Missouri, 

, 633 (2005). Orme’s habeas petition and reply to the State’s response

contain speculative and conclusory allegations of prejudice which were not argued

before the trial court.

       Prior to jury selection at the resentencing proceeding, the trial judge began a

discussion about the need for security measures. The State reminded the trial

judge of the need to have a hearing on the matter. During the hearing, personnel

from the Bay County Sheriff’s Office testified on this issue and requested the use

of both a stun belt and a Brady brace. The sheriff’s office provided generalized

reasons for requesting the restraints based on the fact that this was the resentencing

of a defendant who had been convicted of first-degree murder. Resentencing


                                        - 22 -
counsel questioned a witness on the issue of whether the use of a stun belt changes

the defendant’s demeanor in the courtroom because the belt might be activated.

The officer answered that the purpose of the stun belt was to make defendants

aware that there is a method in place to deal with outbursts and improper

movements.

      At the conclusion of the hearing, the trial judge determined that a restraint

should be used but not two restraints, and indicated that the stun belt should be

used. The trial judge acknowledged that Orme had not been a security problem at

earlier appearances before the court but that his case was now in a different

posture. In essence, the court found that the defendant had been convicted of first-

degree murder, that his conviction had been affirmed on appeal, that the case was

now ready for resentencing, that this was the first time since his conviction that

Orme was in a less restrictive environment, and that it was at this point that this

defendant had more reason to possibly try an escape.

      Even if the trial judge’s articulation of the reasons for the restraint is not

sufficiently specific, we find that such error would not require reversal because

prejudice has not been demonstrated. See Smith v. State, 

, 493-94

(Fla. 2009); Elledge v. State, 

, 1022-23 (Fla. 1982) (indicating that

the critical issue to be determined in a restraint case is the degree of prejudice

caused by using a restraint). In this case, resentencing counsel was concerned with


                                         - 23 -
the fact that a stun belt could alter the defendant’s demeanor in the courtroom. No

argument was made that the use of the stun belt would interfere with his right to

counsel or would prevent him from fully participating or communicating with

counsel. Additionally, there is nothing in the record indicating that the stun belt

was ever visible to the jury. See 

. Under these

circumstances, we find the defendant is not entitled to relief on the merits of his

claim. Therefore, it has not been demonstrated that appellate counsel was

ineffective for failing to raise the issue on appeal.

                          B. Access to Privileged Material

      Orme next argues that appellate counsel was deficient for failing to raise the

issue of the State being noticed of and allowed to participate in allegedly privileged

discussions and communications because the trial court’s refusal to hear his

motions ex parte was erroneous.10 Orme asserts that there was no justification for

allowing the State to be involved in the preparation of Orme’s defense and that the

disclosure of these motions prejudiced him by revealing to the State information it




        10. The State cites Jones v. State, 

(Fla. 2006), to argue that
Orme’s claim is procedurally barred because it should have been raised on appeal.

n.5. However, that case involved a defendant using a postconviction
motion to argue claims of trial court error that should have been raised on appeal.
In contrast, Orme’s claim is being raised in a habeas petition where the very act of
failing to raise an issue on appeal is the basis for the claim of ineffective assistance
of appellate counsel. Thus, Orme’s claim is not procedurally barred.


                                         - 24 -
was not entitled to receive and from which it could deduce the defense strategy.

However, Orme has not indicated any specific information within his motions that

would have revealed any defense strategy, nor has he set forth any basis on which

the trial court should have heard his motions ex parte.11 In addition, Orme has not

specifically stated what information the State learned to which it would not have

already been entitled under Florida’s liberal discovery rules. In a habeas petition,

“[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.” 

(quoting Anderson v. State, 

, 520 (Fla. 2009)). This

requirement is especially significant here, where the motions in question appear to

be mostly innocuous: requesting DNA testing of items previously tested by the

State and requesting that the court order payment of expert witness invoices by the

JAC. Such vague, conclusory allegations are insufficient to warrant relief on a

habeas claim. 

. As such, we deny relief as to Orme’s

second habeas claim.

                           C. Prosecutorial Arguments




       11. See Fla. Code Jud. Conduct, Canon 3(B)(7)(a) (stating that a “judge
shall not initiate, permit, or consider ex parte communications” except where
required “for scheduling, administrative purposes, or emergencies that do not deal
with substantive matters or issues on the merits”).


                                        - 25 -
         In his final ineffective assistance of appellate counsel claim, Orme argues

appellate counsel should have argued for reversal of his sentence based on

allegedly improper comments during closing argument. Most of the comments to

which Orme objects were proper and thus, would not be the basis for a successful

argument on appeal. Additionally, resentencing phase counsel did not object to

any of the comments; therefore, they are unpreserved and must constitute

fundamental error to result in ineffective assistance of appellate counsel. Walls,

at 1176. “In order for improper comments made in the closing

arguments of a penalty phase to constitute fundamental error, they must be so

prejudicial as to taint the jury’s recommended sentence.” 

in his

claim of ineffective assistance of resentencing counsel, Orme has not demonstrated

that the comments here rose to such level. Thus, appellate counsel was not

deficient for not raising this meritless issue, 

, and

counsel’s failure to raise this claim does not undermine our confidence in the result

of his appeal, 

. Therefore, we deny relief on this

claim.

                                    CONCLUSION

         Orme has failed to demonstrate ineffective assistance of resentencing phase

counsel as to any of his claims. Accordingly, we affirm the postconviction court’s

denial of Orme’s postconviction motion. Because Orme has not demonstrated


                                          - 26 -
ineffective assistance of appellate counsel, we deny relief on the three claims

raised in his habeas petition as well.

      It is so ordered.

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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Two Cases:

An Appeal from the Circuit Court in and for Bay County,
     Brantley Scott Clark, Jr., Judge - Case No. 031992CF000442XXAXMX
And an Original Proceeding – Habeas Corpus

Linda McDermott of McClain & McDermott, P.A., Estero, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, and Patrick M. Delaney, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee/Respondent




                                         - 27 -