Summary:

After seeing the photo of 11 year old Junny Rios Martinez in a newspaper for winning a kite contest, Schwab stalked the boy.

Posing as a reporter to get close to his family, Schwab kidnapped the boy from school, then raped, tortured and killed him at a Cocoa Beach motel.

Schwab had been released early from a prison sentence he got for raping a 13-year-old boy. Although Schwab later claimed another man had made him kidnap and rape the boy, he was able to lead police to a footlocker in rural Brevard County where Junny's nude body was discovered.

Citations:

Schwab v. State, 636 So.2d 3 (Fla. 1994) (Direct Appeal).
Schwab v. State, 814 So.2d 402 (Fla. 2002) (PCR).
Schwab v. Brevard County School Bd., 650 So.2d 1099 (Fla.App. 5 Dist.,1995) (Civil).
Schwab v. Crosby, 451 F.3d 1308 (11th Cir. 2006) (Habeas).

Final / Special Meal:

Two fried eggs, four strips of bacon, two sausage links, hash browns, buttered toast and a quart of chocolate milk at 8 a.m.

Final Words:

None.

ClarkProsecutor.org

Florida Department of Corrections

DC Number: 111129
Name: SCHWAB, MARK D
Race: WHITE
Sex: MALE
Hair Color: BROWN
Eye Color: BLUE
Height: 6'01''
Weight: 156 lbs.
Birth Date: 12/16/1968
Initial Receipt Date: 07/01/1992
Current Release Date: DEATH SENTENCE

Mark D. Schwab

DC #111129
DOB: 12/16/68

Eighteenth Judicial Circuit, Brevard County, Case #91-7249-CF-A
Sentencing Judge: The Honorable Edward Richardson
Attorney, Trial: Brian Onek – Assistant Public Defender
Attorney, Direct Appeal: Michael S. Becker – Assistant Public Defender
Attorneys, Collateral Appeals:  Eric Pinkard – CCRC-M

Date of Offense:  04/18/91

Date of Sentence:  07/01/92

Circumstances of Offense:

Mark Schwab was convicted and sentenced to death for the murder of eight-year-old Junny Rios-Martinez.  On 04/18/91, Junny Rios-Martinez was kidnapped, raped, and murdered.  His body was discovered on 04/21/91. 

Schwab was released from prison in March of 1991 after serving three years for sexual assault.  During the same month, a picture of Junny Rios-Martinez, the victim, was published in the newspaper.  Schwab saw the picture and called the family on the phone claiming that he was writing an article on the boy. 

Through this action and the promise of assisting the boy in a acquiring a contract to represent a surfing company, Schwab became friendly with the boy’s family.   

On 04/18/91, a schoolmate of Junny’s reported that Junny had gotten into a U-Haul truck with a man. 

On 04/20/91, Schwab called his aunt in Ohio and told her that someone named “Donald” had made him kidnap and rape Rios-Martinez with threats of killing Schwab’s mother. 

On 04/21/91, the police were questioning Schwab’s aunt when Schwab called.  The police recorded and traced the phone call with her permission.  Upon learning Schwab’s location, the police arrested Schwab in a neighboring Ohio town. 

Schwab told police where to find the body of Junny Rios-Martinez, which was discovered in a rural part of the county inside of a footlocker.

Additional Information:

04/21/91          Schwab was arrested.

05/15/91          Schwab was indicted on the following counts:

Count I:  First-Degree Murder
Count II:  Sexual Battery upon a Child under the Age of 13
Count III:  Kidnapping a Child under the Age of 13

                       Schwab requested to not have a jury trial.

05/22/92          Schwab was adjudicated guilty for each count of the indictment.

07/01/92          Schwab was sentenced as follows:

Mark Schwab filed his Direct Appeal in the Florida Supreme Court on 08/06/92.  He raised several issues on Direct Appeal.  Schwab argued that part of his statement should not have been admitted because he did not have counsel and that the heinous, atrocious, or cruel aggravator was unconstitutional.  He also stated that the State Attorney’s Office gave him legal advice, and in this action, created a conflict of interest.  Schwab argued that the trial court erred in not recusing the State Attorney’s Office. The Florida Supreme Court did not find errors that warranted reversing the conviction or sentence. 

The Florida Supreme Court affirmed the conviction and sentence on 03/03/94.  Rehearing was denied on 05/16/94.  A mandate was issued on 06/15/94.

Schwab filed a Petition for Writ of Certiorari in the United States Supreme Court on 08/26/94.  The United States Supreme Court denied the petition on 10/17/94.

On 12/18/95, Schwab filed a 3.850 Motion in the Brevard County Circuit Court.  On 10/13/99, the Brevard County Circuit Court denied the Motion. 

On 11/12/99, Schwab filed a 3.850 Appeal in the Florida Supreme Court.  Issued raised included that the trial court judge should have recused himself because of his bias against the defendant, that trial counsel was ineffective, that the death sentence was disproportionate, and that the aggravating factors were mishandled.  The Florida Supreme Court affirmed the Denial of the 3.850 Motion on 03/28/02.  A mandate was issued on 04/29/02.

Schwab filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court on 08/10/00.  The Florida Supreme Court denied the petition on 03/28/02.  A mandate was issued on 04/29/02.

On 04/29/03, Schwab filed a Petition for Writ of Habeas Corpus in the United States District Court, Middle District.  The petition was dismissed on 06/30/05.

Timeline Of The Mark Schwab Case

CFNews13.com

July 01, 2008

The timeline on the case in which Mark Schwab was sentenced to death dates back close to two decades.

Schwab's execution is scheduled for 6 p.m. Tuesday, July 1 -- 16 years to the day after he was originally sentenced to death.

Florida executes child killer

By Ron Word - Miami Herald

Florida on Tuesday carried out its first execution since a botched lethal injection procedure prompted the state to revamp the way it conducts capital punishment. Mark Dean Schwab, who was convicted of kidnapping, raping and killing an 11-year-old boy, died at 6:15 p.m.

The execution was the initial test of Florida's new lethal injection procedure, which was instituted after Angel Diaz was executed in December 2006. Needles to inject the deadly chemicals into Diaz missed their mark and he suffered burns and extreme pain, triggering a state investigation and a moratorium.

It took 34 minutes for Diaz to die, more than twice the normal time. Schwab's execution started at 6:03 p.m. and lasted 12 minutes. Schwab, 39, unsuccessfully challenged Florida's new procedure, claiming it could also cause pain and suffering. His latest appeal was denied by the U.S. Supreme Court hours before he was put to death for the 1991 killing Junny Rios-Martinez of Cocoa, a small town on the central-east coast of Florida.

When authorities opened a curtain to the death chamber, Schwab lay on the table blinking his eyes. He did not make a final statement. Within two minutes of the first chemical being administered, Schwab's eyes were closed and his mouth slightly opened. A warden shook Schwab, called out his name and ran a finger over his eyelashes at 6:07 p.m. Schwab did not respond.

"I only wish my son had passed this peacefully," Junny's mother, Vicki Rios-Martinez said afterward. She and her husband were among 40 witnesses to the execution. The couple wore white T-shirts with the boy's picture on the front and the words "JUSTICE DELAYED IS JUSTICE DENIED" on the back. Outside the prison, the boy's other relatives clapped and cheered when they heard Schwab had died.

About 50 death penalty opponents held a brief prayer vigil, then quietly stood by about 75 yards from the family members. Schwab was given a stay of execution by the U.S. Supreme Court in November as it considered the constitutionality of Kentucky's lethal injection procedure. When it ruled Kentucky's protocol was acceptable, it opened the door for Florida and other states with similar laws to resume executions.

In the Diaz execution, the executioner pushed the needle through his veins into his muscles, causing severe chemical burns on his arms. Several times during the process, Diaz could be seen grimacing and asked at one time, "What's going on?" The Diaz case resulted in an investigation by a committee appointed by then-Gov. Jeb Bush. Changes suggested by the panel were incorporated into new execution procedures.

One change called for the warden to assess whether the inmate is unconscious after sodium pentothal is injected into his body. Then the executioner will inject pancuronium bromide, used to paralyze his muscles, and potassium chloride, used to stop his heart.

Schwab raped and killed Junny a month after he was released early from a prison sentence he got for raping a 13-year-old boy. The case led to Florida's Junny Rios-Martinez Act of 1992, which prohibits sex offenders from early release from prison or getting credit for good behavior. Schwab stalked the boy after seeing his photo in a newspaper for winning a kite contest.

Although Schwab claimed another man had made him kidnap and rape the boy, he was able to lead police to a footlocker in rural Brevard County where Junny's nude body was discovered.

Schwab was the 10th person executed in the United States since the Supreme Court's Kentucky ruling and the 65th inmate to be executed since Florida resumed capital punishment in 1979. Schwab was executed at the state's death chamber in Starke, which is about 40 miles southwest of Jacksonville.

Florida executes man for 1991 rape-murder of child

Reuters News

Tue Jul 1, 2008

MIAMI (Reuters) - Florida executed a death row inmate by lethal injection on Tuesday for the 1991 kidnapping, sexual battery and murder of an 11-year-old boy, marking the state's first execution since a Supreme Court ruling ended a nationwide moratorium.

Officials at the Florida State Prison near Starke pronounced Mark Dean Schwab, a 39-year-old native of Ohio, dead at 6:15 p.m. EDT after injecting him with a deadly cocktail of drugs that paralyzed his lungs and stopped his heart, a spokeswoman for Gov. Charlie Crist said.

He became the 10th person to be put to death in the United States since the U.S. Supreme Court in April rejected a legal challenge to the three-drug cocktail used in most executions over the past 30 years.

Schwab was also the first inmate executed in Florida since the botched December 2006 execution of Angel Diaz, who took an unusually long 34 minutes to die after intravenous tubes used to administer the deadly drugs were connected improperly. The Diaz case reignited national debate over how to enforce the death penalty in the United States. Opponents have long argued that lethal injection, which is used in 37 states, is cruel and unusual punishment barred by the U.S. Constitution.

Schwab was executed exactly 16 years after he received the death sentence for the April 1991 rape and murder of Junny Rios-Martinez Jr. in Brevard County.

Florida execution finished

By Nathan Crabbe - Gainesville.com

Tuesday, July 1, 2008

RAIFORD– Florida’s first execution in more than 18 months happened without a hitch Tuesday, as the state put to death a man who raped and killed an 11-year-old boy. Mark Dean Schwab, 39, was executed by lethal injection shortly after 6 p.m. at Florida State Prison near Starke. He was sentenced to death in the 1991 kidnapping, rape and murder of Junny Rios-Martinez of Cocoa.

The U.S. Supreme Court rejected Schwab’s last-ditch effort to stop the execution on Tuesday afternoon. His attorneys argued that the state has failed to fix problems that led to the botched execution of Angel Diaz in December 2006.

Diaz appeared to be wincing in pain and asked, “What’s happening?” during an execution that lasted more than twice as long as usual. An investigation found IV lines had been pushed through his veins, causing chemicals to burn his flesh before killing him. Schwab’s execution happened in a redesigned death chamber that allows the execution team to have a clearer view of IV lines. In another change to the process, a warden checked to ensure Schwab was unconscious before the lethal drugs were injected.

Rios-Martinez’s mother, Vicki, and other family members witnessed the execution. A MySpace page created by the family includes pictures of the boy in surfing gear and information on the case. “They say, ‘Forgive and forget.’ But this is one of those things you can’t forget,” his mother is quoted on the page as saying. “If you can forget, then it might be easier to forgive.”

Members of Gainesville Citizens for Alternatives to the Death Penalty held a vigil and protest in a field across from the prison. Group member Bonnie Flassig said the vigil brings together people opposed to the death penalty in all cases, including the execution of Schwab and Gainesville student murder Danny Rolling in November 2006. “These cases are really the test cases as to whether people are really opposed to the death penalty,” she said.

Earlier in the day, Schwab had a final meal of two fried eggs, four strips of bacon, two sausage links, hash browns, buttered toast and a quart of chocolate milk. A Baptist minister on staff with the prison system, Perri Davis, stayed outside his cell in the hours before the execution.

Schwab visited with his mother, Mary Killam of New Philadelphia, Ohio, and aunt, Shirley Muhs of Newcomerstown, Ohio, for three hours in the morning. Contact is allowed only during the last hour of the visit.

The execution comes 17 years after the murder of Rios-Martinez. At the time, Schwab had just been released early from prison for raping a 13-year-old boy. He saw Rios-Martinez’ photo in a newspaper for winning a kite contest and posed as a reporter to get close to his family. He kidnapped the boy from school, then raped, tortured and killed him at a Cocoa Beach motel. The case prompted the state to pass a law in 1992 prohibiting sex offenders from early release from prison or getting credit for good behavior.

Schwab’s execution was the 65th in the state since the reinstatement of the death penalty in 1976. It was the 21st execution by lethal injection and first since Diaz’s execution.

After the botched execution, then-Gov. Jeb Bush put a moratorium on executions and created a panel to study the process. The panel recommended changes that were incorporated into new procedures adopted by the Department of Corrections. Gov. Charlie Crist subsequently signed Schwab’s death warrant in July 2007, scheduling the execution for November 2007. But the U.S. Supreme Court’s consideration of a legal challenge to lethal injection caused executions to be put on hold across the country.

In April, the court upheld Kentucky’s method of lethal injection in the case. Florida and the 36 other states with lethal injection use a similar three-drug combination to execute inmates. Inmates are first injected with a sedative, then a paralyzing agent and finally a drug that stops the heart. Schwab’s attorneys had argued problems with the drugs and training of the execution team risked causing severe pain to inmates.

ProDeathPenalty.Com

Early in March 1991 Mark Dean Schwab was released from prison after serving three and one-half years of an eight-year sentence for committing sexual battery on a thirteen-year-old boy.

In the middle of March a picture of eleven-year-old Junny Rios-Martinez appeared in a local newspaper. Several days later Schwab called the Rios-Martinez home, pretended to be a reporter, and claimed that he wanted to write an article on Junny. Schwab ingratiated himself with the family over the next several weeks, eventually claiming that he could get Junny a contract to represent a surfing company.

After school on April 18, 1991, a classmate saw Junny at a little league ball field and saw him get into a U-haul truck with a tall man. Two days later Schwab was in Ohio and called his aunt. He told her that someone named "Donald" had forced him to kidnap and rape the child or else Donald would kill Schwab's mother.

On April 21 the police went to the aunt's home, and, when Schwab called while they were there, she allowed them to record the call. She also gave the officers permission to tap her telephone, and, when Schwab called later that evening, they traced the call and arrested him in a nearby town.

Besides the recorded statements to his aunt, Schwab also gave statements to Sergeant Blubaugh, a Cocoa policeman, who flew to Ohio with assistant state attorney Chris White. The day after his arrest, Schwab, Blubaugh, and White flew back to Florida. Back in Brevard County Schwab eventually indicated where the victim's body could be found. The police then found the body in a rural, undeveloped area of the county, stuffed into a footlocker.

The state indicted Schwab for first-degree premeditated murder, sexual battery of a child, and kidnapping. Schwab waived a jury, and, after a week-long trial, the judge convicted him as charged. Following the penalty proceeding, the judge sentenced him to death.

Mark Dean Schwab

Mark Dean Schwab (December 16, 1968 – July 1, 2008) was a prisoner in the state of Florida, where he was executed for the rape and murder of 11-year-old Junny Rios-Martinez, Jr., on April 18, 1991. He was convicted of the crime in 1992 and sentenced to death. In addition, he received two life sentences.

The crimes and arrest

Schwab was released from prison on March 4, 1991, after serving three years of an eight-year sentence for the aggravated rape of a 13-year-old boy committed in 1987. The rest of his sentence was commuted and he was placed on 15 years of probation.

A month later, Cocoa resident Junny Rios-Martinez, Jr., went missing. Schwab had seen Junny's picture in the March 21, 1991 edition of Florida Today. He became friendly with the boy and his family, introducing himself as an associate of Malcom Denemark from that newspaper. After getting to know Junny, Schwab exploited his interest in surfing by saying he had left Florida Today for a job at a surfing magazine. On April 18, 1991, friends saw Junny get into a U-Haul truck.

On April 20, 1991, Schwab called his aunt in Ohio, claiming a man named "Donald" forced him to kidnap and rape Junny, under threat of killing Junny's mother, Vicki. The next day, police tapped a phone call with Schwab's aunt's permission, and determined Schwab's location. Schwab was arrested, and led police to Junny's dead body, found in Canaveral Groves, a rural area of Brevard County, Florida in a footlocker that was not completely shut and wrapped in rope.

Trial

On May 15, 1991, Schwab appeared in a state court in Brevard County, pleading not guilty to charges of First-Degree Murder, Kidnapping a Child Under Age 13 and Sexual Assault of a Child Under Age 13. Prosecutors sought the death penalty. Schwab waived his right to a jury trial, and was convicted on May 22, 1992.

On July 1, 1992, he was sentenced to death for the murder, and given two life sentences for the kidnapping and sexual battery of a child under the age of 13. In addition, his probation was revoked on the previous rape conviction, and he was re-sentenced to an additional life sentence, giving him a total of three life sentences.

The case led to the passage of the "Junny Rios-Martinez, Jr., Act of 1992", which prohibited those convicted of sexual battery from receiving early release in the state of Florida.

In prison

In 1997, he served a six-month "institutional adjustment" for a positive drug test. His final appeal, to the Supreme Court of the United States, was denied on January 16, 2007. Schwab's Florida Department of Corrections prisoner number is #111129.[1] After being sentenced, he was housed at Florida State Prison in Starke, Florida.

Stays of execution

On December 15, 2006, Governor Jeb Bush suspended all pending executions until further notice after the execution of Ángel Nieves Díaz had taken much longer than usual.[2] This ban was lifted when the new Governor of Florida, Charlie Crist, signed Schwab's death warrant on July 18, 2007.[3] Schwab was then transferred to Florida State Prison. He was scheduled for execution by means of lethal injection on November 15, 2007 at 6:00 p.m. EST. However, federal judge Anne C. Conway granted a stay of execution on November 14.[4]

On November 15, the 11th Circuit Court of Appeals ruled that the execution can proceed,[5][6] but the United States Supreme Court blocked the execution later that same day pending appeals of two Kentucky inmates challenging the combination of the three drugs used for lethal injection, which is the same combination as is used in Florida.[7][8][9]

The Supreme Court upheld Kentucky's death penalty on April 16, 2008, by a vote of 7-2.[10] Governor Crist signed a new death warrant for Schwab the next day, without a date for execution. On May 19, the U.S. Supreme Court specifically denied Schwab's appeal, permitting Governor Crist to reschedule his execution.[11] Schwab made one final appeal to the Florida Supreme Court on June 25, but was denied because the claims being made were the same ones that had already been declined by the U.S. Supreme Court.[12]

Death

Schwab was executed by lethal injection on Tuesday, July 1, 2008 and pronounced dead at 6:15 pm.[13] His last meal consisted of fried eggs, bacon, sausage links, hash browns, buttered toast and a quart of chocolate milk. He declined the offer to make a last statement.[14]

References

Inmate Population Information Detail - Inmate 111129. Florida Department of Corrections. Retrieved on 2007-11-14.

Shawl, Jeannie (2006-12-15). Florida governor suspends all executions after botched lethal injection. Jurist - Legal News & Research. Retrieved on 2007-11-14.

Price, Caitlin (2007-07-18). Florida governor lifts temporary ban on executions. Jurist - Legal News & Research. Retrieved on 2007-11-14.

Semple, Kirk (2007-11-15). Judge Stays Execution, Citing Case Under Review. The New York Times. Retrieved on 2007-11-15.

Mark Dean Schwab v. Secretary, Dept. of Correction. United States Court of Appeals, Eleventh Circuit (2007-11-15). Retrieved on 2007-11-15.

Schwab execution can proceed. Bay News 9 (2007-11-15). Retrieved on 2007-11-15.

Supreme Court blocks execution of Florida child killer. Bay News 9 (2007-11-15). Retrieved on 2007-11-15.

Wood, Ron (2007-11-15). Supreme Court blocks execution of child killer. Orlando Sentinel. Retrieved on 2007-11-15.

Klas, Mary Ellen (2007-11-16). Supreme Court halts Florida execution. The Miami Herald. Retrieved on 2008-05-17.

http://www.orlandosentinel.com/news/local/crime/orl-bk-lethal-injections-041608,0,6284759.story

High court: Florida execution can proceed - 05/19/2008 - MiamiHerald.com

Florida Supreme Court denies child killer's last-minute execution appeal - 06/27/2008 - OrlandoSentinel.com

Death Row Fact Sheet (HTML). Florida Department of Corrections. Retrieved on 2008-06-29.

Parents of Junny Rios-Martinez see Mark Dean Schwab die (HTML). Orlando Sentinel. Retrieved on 2008-07-01.

External links
Profile of the Mark Dean Schwab case at Florida's Capital Crimes Database (Word document)

Mark D. Schwab vs. State of Florida - Case no. 80,289

Wikipedia.org

Victim's parents watch killer die

By Dara Kam - Palm Beach Post

Tuesday, July 01, 2008

RAIFORD — Florida's first execution by lethal injection since the procedure was halted 18 months ago went off seemingly without a hitch Tuesday as child killer Mark Dean Schwab slipped away tranquilly. In the front row of the witness chamber, on the other side of the glass, sat Junny and Vicki Rios-Martinez, the parents of the 11-year-old boy, named after his father, Schwab raped and murdered in 1991.

The execution appeared peaceful, Vicki Rios-Martinez said at a news conference. "I only wish my son had passed this peacefully as well," she said, without bitterness. "We should all be so lucky when it's our time," Junny Rios-Martinez added.

At 6:03 p.m., the curtains to the execution chamber opened slowly, revealing Schwab strapped into a gurney with leather cuffs around his wrists. Twelve minutes later, a doctor pronounced him dead. Lethal injection normally kills within about 15 minutes.

Thirty-seven witnesses, including 12 members of the media, attended the execution, the first since a federal judge halted Schwab's execution in November. Family members wore white T-shirts emblazoned with photos of the boy and the words "In memory of Junny Rios-Martinez" or "Junny Rios-Martinez In Loving Memory."

Schwab had accepted a shot of diazepam, an anti-anxiety drug, about a half-hour before the execution. He appeared calm and blinked at the ceiling when the curtains opened. The first wave of drugs was delivered via an intravenous tube connected through a window in the wall behind the gurney on which Schwab lay, his feet facing the window.

At 6:03 p.m., the team warden, Tim Cannon, asked Schwab whether he wanted to issue a final statement. He did not respond. Shortly afterward, his mouth went slack and his eyes never reopened.

At 6:07, Cannon shook Schwab, called his name and flicked his eyelashes to ensure that the sodium pentothal had taken effect. After two more drugs were administered, Cannon announced that "the sentence of the state of Florida vs. Mark Schwab was carried out at 6:15 p.m."

Outside Florida State Prison, about 50 anti-death penalty protesters and 20 supporters gathered beneath a large oak tree in a field across the street from where Death Row inmates are housed and put to death. One held a sign decorated with fiery symbols reading, "Rot in Hell Schwab."

Department of Corrections spokeswoman Gretl Plessinger said there were no problems with the execution and that "it was considered humane and dignified." Two IV tubes were inserted into each of Schwab's arms - one to deliver the lethal triple-drug cocktail and another as an alternate if any problems arose with the original. The execution team had to stick Schwab's arm twice to find a vein, but that was considered normal procedure, Plessinger said.

During the execution, the family and witnesses remained nearly silent, occasionally huddling and whispering.

A month after being released early from a prison sentence he received for raping a 13-year-old boy, Schwab saw Junny's photo in a newspaper after the boy had won a kite contest. Schwab posed as a newspaper reporter, telling the family he wanted to write a story about Junny. Although Schwab claimed another man had made him kidnap and rape the boy, he led police to a footlocker in rural Brevard County, where Junny's nude body was discovered.

Earlier Tuesday, Schwab met with his mother and aunt for several hours. He ate his last meal of two fried eggs, four strips of bacon, two sausage links, hash browns, buttered toast and a quart of chocolate milk at 8 a.m.

Schwab's execution was the first in Florida since the botched December 2006 execution of Angel Diaz, whose prolonged death led to a state-imposed moratorium and investigation.

A medical examiner said the executioner pushed the needles through Diaz's veins and into his muscles, causing him extreme pain. It took 34 minutes for him to die, more than twice as long as usual. The investigation led the Department of Corrections to alter its procedure to check for consciousness after the first drug is administered.

In November, a federal judge halted Schwab's execution hours before it was to take place as the U.S. Supreme Court considered the constitutionality of lethal injection. In April, the high court ruled in a Kentucky case that the method is not cruel and unusual punishment and therefore passed constitutional muster.

Schwab was the 10th person executed in the United States since the Kentucky ruling and the 21st to die by lethal injection in Florida. He was the 65th inmate executed since Florida resumed capital punishment in 1979.

The Rios-Martinezes said they planned to return to their Brevard County home after the execution, and Vicki Rios-Martinez she would go back to work today. "This reign of evil has come to an end. Now it's time for all of us to move on," she said.

Schwab v. State, 636 So.2d 3 (Fla. 1994) (Direct Appeal).

Defendant was convicted in Circuit Court, Brevard County, Edward Richardson, J., of first-degree murder, sexual battery of child, and kidnapping, was sentenced to death, and he appealed. The Supreme Court held that: (1) recusal of state attorney's office, after defendant asked prosecutor if he was doing the right thing in disclosing where victim's body was, was not error; (2) there was sufficient proof of corpus delicti to admit defendant's admissions that he kidnapped and raped victim; and (3) state established aggravating factors of previous conviction of violent felony, committed during kidnapping and sexual battery, and heinous, atrocious or cruel manner. Affirmed.

PER CURIAM.

Mark Schwab appeals his convictions of first-degree murder, sexual battery of a child, and kidnapping and his sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm Schwab's convictions and sentence.

Early in March 1991 Schwab was released from prison after serving three and one-half years of an eight-year sentence for committing sexual battery on a thirteen-year-old boy.

In the middle of March a picture of eleven-year-old Junny Rios-Martinez appeared in a local newspaper. Several days later Schwab called the Rios-Martinez home, pretended to be a reporter, and claimed that he wanted to write an article on Junny. Schwab ingratiated himself with the family over the next several weeks, eventually claiming that he could get Junny a contract to represent a surfing company.

After school on April 18, 1991, a classmate saw Junny at a little league ball field and saw him get into a U-haul truck with a tall man. Two days later Schwab was in Ohio and called his aunt. He told her that someone named “Donald” had forced him to kidnap and rape the child or else Donald would kill Schwab's mother.

On April 21 the police went to the aunt's home, and, when Schwab called while they were there, she allowed them to record the call. She also gave the officers permission to tap her telephone, and, when Schwab called later that evening, they traced the call and arrested him in a nearby town.

Besides the recorded statements to his aunt, Schwab also gave statements to Sergeant Blubaugh, a Cocoa policeman, who flew to Ohio with assistant state attorney Chris White. The day after his arrest, Schwab, Blubaugh, and White flew back to Florida. Back in Brevard County Schwab eventually indicated where the victim's body could be found. The police then found the body in a rural, undeveloped area of the county, stuffed into a footlocker.

The state indicted Schwab for first-degree premeditated murder, sexual battery of a child, and kidnapping. Schwab waived a jury, and, after a week-long trial, the judge convicted him as charged. Following the penalty proceeding, the judge sentenced him to death.

After Schwab indicated he knew where the body was, he said to White: “I know you're a prosecutor, but you're also an attorney. Do you think I'm doing the right thing?” White responded that he thought the victim's parents would appreciate it if Schwab could help find the body.

Prior to trial, Schwab filed a motion to recuse the state attorney's office from the case, claiming that White's response constituted legal advice that created a conflict of interest and called into question the integrity of the judicial system. The trial court held a hearing on the motion to recuse and then denied it. Now, Schwab argues that the court erred in denying the motion. We disagree.

A defendant has no constitutional right to consult with a state attorney. Owen v. State, 596 So.2d 985 (Fla.), cert. denied, 506 U.S. 921, 113 S.Ct. 338, 121 L.Ed.2d 255 (1992). Schwab had been given and had waived his Miranda FN1 rights several times in Ohio, and he was Mirandized again shortly after the exchange with White. He never, however, asked for an attorney. Schwab was well aware of the adversarial nature of criminal proceedings and knew that White was the state's counsel, not his. In spite of all this, he spoke to White voluntarily. After hearing both sides, the trial court concluded:

FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). From what I heard today and what I've seen in your motion, I can see no legal basis at all or ethical basis to require the State Attorney at this juncture to be disqualified from the prosecution of this case. We agree, reject the contention that White became Schwab's lawyer, and hold that the trial court did not err in denying the motion to recuse the state attorney's office.

Schwab also claims that his last statement to Sergeant Blubaugh should have been suppressed because his question to White invoked his right to counsel. The statement to White, however, was not a request for counsel. Blubaugh again read Schwab his Miranda rights before taking that last statement, and Schwab waived those rights. The trial court, therefore, did not err in refusing to suppress that statement.

Two months prior to trial someone calling himself “Doug” FN2 sent a letter to Brian Onek, the assistant public defender who represented Schwab. The public defender's office turned the letter over to the state, and, on examination, Schwab's fingerprints were found on the letter.FN3 The state filed notice that it would call five employees of the public defender's office FN4 to testify to the chain of custody of the letter. Onek moved to withdraw as counsel and argued that, due to his relationship with his fellow employees, he would not be able to cross-examine them, thereby denying Schwab the effective assistance of counsel.

The court denied the motion, and the state called the witnesses, who testified to their handling of the letter. Onek refused to cross-examine any of the witnesses, but the court questioned two of them. FN2. The record is unclear, but it appears that “Doug” and “Donald” are the same person. FN3. The letter was received while Schwab was in jail. His fingerprints being found on the letter seriously discredited his story that “Donald” forced him to rape the victim and that “Donald” must have killed the victim by casting grave doubt on the existence of “Donald” and bolstering the state's theory that Schwab had invented “Donald.” FN4. Two secretaries, two investigators, and the office's executive director.

Rule Regulating The Florida Bar 4-1.7(b) provides in part: A lawyer shall not represent a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest.

Moreover, the opportunity to fully and completely cross-examine “critical witnesses is fundamental to a fair trial.” Jennings v. State, 413 So.2d 24, 26 (Fla.1982). These principles occasionally produce a conflict of interest that requires allowing a public defender to withdraw. E.g., Williams v. State, 622 So.2d 490 (Fla. 4th DCA 1993). To mandate withdrawal, however, the prejudice caused by continued representation must be more than de minimis, and the party seeking withdrawal bears the burden of demonstrating that substantial prejudice will result if withdrawal is not allowed. Ray v. Stuckey, 491 So.2d 1211 (Fla. 1st DCA 1986); Cazares v. Church of Scientology, 429 So.2d 348 (Fla. 5th DCA), review denied, 438 So.2d 831 (Fla.1983).

Schwab has not met this burden. The witnesses' testimony went to establish the collateral matter of the letter's chain of custody. The facts establishing that custody had been set out in the motion to withdraw and were not in dispute. The witnesses testified to those facts as admitted, and, therefore, their credibility was not at issue. Any prejudice to Schwab came from the letter itself, not from the public defender's employees explaining their receipt and handling of the letter. Therefore, we find no merit to Schwab's argument that the trial court erred in denying the motion to withdraw.

Schwab moved for judgment of acquittal of the murder, sexual battery, and kidnapping charges, arguing that the state failed to prove the corpus delicti of those crimes independent of his statements. Schwab now argues that the trial court erred in denying those motions. We disagree.

The general order of proof is to show that a crime has been committed and then that the defendant committed it. Spanish v. State, 45 So.2d 753 (Fla.1950); see State v. Allen, 335 So.2d 823 (Fla.1976). “But in many cases the two elements are so intimately connected that the proof of the corpus delicti and the guilty agency are shown at the same time.” Spanish, 45 So.2d at 754. Thus, the “evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together and inseparable on one foundation of circumstantial evidence.” Cross v. State, 96 Fla. 768, 780-81, 119 So. 380, 384 (1928).

A defendant's confession or statement “may be considered in connection with the other evidence,” but “the corpus delicti cannot rest upon the confession or admission alone.” Id. at 781, 119 So. at 384. Before a confession or statement may be admitted, there must be prima facie proof tending to show the crime was committed. Frazier v. State, 107 So.2d 16 (Fla.1958); Cross; see Farinas v. State, 569 So.2d 425 (Fla.1990); Bassett v. State, 449 So.2d 803 (Fla.1984). Additionally, by the end of trial the corpus delicti must be proved beyond a reasonable doubt. Cross.

The state's proof met these standards. The medical examiner testified that the victim died from manual asphyxiation, most probably by strangling or smothering. The victim's nude body and the clothes that had been cut off him were found concealed in a footlocker FN5 in a remote location. Cf. Stano v. State, 473 So.2d 1282 (Fla.1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986).

A wad of tape also found in the footlocker yielded a fingerprint identified as Schwab's. Witnesses testified that Schwab rented and returned the U-haul truck. Although the victim may have gone willingly with Schwab initially, the conclusion that at some point he was held against his will is inescapable. Cf. Sochor v. State, 619 So.2d 285 (Fla.), cert. denied, 510 U.S. 1025, 114 S.Ct. 638, 126 L.Ed.2d 596 (1993); Bedford v. State, 589 So.2d 245 (Fla.1991), cert. denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992).

The details in Schwab's statements correspond well with the physical evidence. Therefore, we hold that the state submitted sufficient proof of the corpus delicti to admit Schwab's admissions that he kidnapped and raped the victim. Moreover, all of the evidence proved beyond a reasonable doubt the corpus delicti of each of the charged crimes and that Schwab committed them.

FN5. A K-Mart sales slip for the purchase of a footlocker, dated April 18, 1991, was found in Schwab's car.

Prior to trial the state served notice that it would present similar fact evidence through the testimony of three other young men that Schwab had attacked. The defense countered with a motion in limine to prevent the state from presenting this evidence, but the court deferred ruling on that motion until the state proffered the evidence at trial.

After hearing the three witnesses' proffered testimony and arguments from both sides, the court found that the testimony was relevant to show identity, motive, and opportunity, among other things, and that one witness' testimony rebutted Schwab's “Donald” story because of the timing of the incident.

The court held that the testimony's probative value outweighed its prejudicial effect and allowed it into evidence. Schwab now argues that the evidence was irrelevant and became a feature of the trial and should not have been admitted.

Similar fact evidence that reveals other crimes is relevant and “admissible if it casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality” and should be admitted if “relevant for any purpose save that of showing bad character or propensity.” Williams v. State, 110 So.2d 654, 662 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); Gore v. State, 599 So.2d 978 (Fla.), cert. denied, 506 U.S. 1003, 113 S.Ct. 610, 121 L.Ed.2d 545 (1992).

There are significant similarities among the four incidents. The victims ranged from eleven to fifteen years of age and had similar physical attributes, i.e., all were short, had blond hair, and weighed less than one hundred pounds. Schwab ingratiated himself with the family of one of the witnesses, as he did with the instant victim, and attempted to befriend the others before offering them rides. He held each at knifepoint and admittedly cut the instant victim's clothes off with a knife. The major difference is that the instant victim, but not the others, was killed, but it is not required that the collateral crime “be absolutely identical to the crime charged.” Gore, 599 So.2d at 984.

When considered together, the common points form a sufficiently unique pattern so as to be admissible, and the trial court did not err in admitting the testimony of these witnesses. Moreover, the judge stated that “the State has presented a significant amount of other evidence and testimony that outweighs” the similar fact evidence so that such evidence could not become a feature of the trial. He further stated that he would consider the evidence only for the limited purposes relative to identity, motive, etc. There is no indication in the record that the judge did other than what he stated he would do. Therefore, we find no merit to this issue.

The record contains competent, substantial evidence supporting the convictions, and no reversible error occurred in the guilt phase of the trial. Therefore, we affirm Schwab's convictions of first-degree murder, sexual battery of a child, and kidnapping.

The trial court found that the following aggravators had been established beyond a reasonable doubt: previous conviction of a violent felony; committed during a kidnapping and sexual battery; and heinous, atrocious, or cruel. The trial court considered the statutory mitigators and forty items of allegedly nonstatutory mitigation, but found little in the tendered material actually to be of a mitigating nature or to have been established by the record.

The court concluded its analysis by stating: “In weighing the aggravating and mitigating circumstances, the Court finds that any one of the three aggravating circumstances outweighs all mitigating circumstances.” Schwab argues that his death sentence is not appropriate. We disagree.

The record supports all three aggravators. The state introduced Schwab's prior conviction of sexual battery, and the evidence supports his instant convictions of kidnapping and sexual battery of a child. We agree with the trial court's conclusion that the facts also demonstrate the murder to have been committed in a heinous, atrocious, or cruel manner.FN6 The court cited to Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988), and Campbell v. State, 577 So.2d 932 (Fla.1991), and conscientiously applied the dictates of those cases in analyzing the proposed mitigating evidence. We see no error in the trial court's findings of fact and agree that death is the appropriate penalty for this murder.

FN6. The trial court's findings are as follows:Junny Rios Martinez left Stradley ballfield with the defendant thinking he was with a trusted friend. The defendant drove the victim in a rented U-haul truck to his motel room. Once inside the room the defendant physically overcame the child and bound his hands with duct tape and placed the tape over his mouth.

The defendant then violently cut the child's clothes off with a knife, rendering him naked and terrified. At the time, Junny Rios Martinez was five feet tall and weighed approximately 76 pounds. He was eleven years old. During this crime scenario, the defendant punched the child twice in the stomach. His head was covered for part of the time with a bed sheet or mattress cover. The child continued to cry and began to physically shake. He was subjected to being raped anally by the adult defendant. The defendant admitted that this rape caused the child pain.

The rape continued until the defendant climaxed. At no time did the defendant state that this child lost consciousness. In fact the contrary is shown. The defendant said that the child continued to cry even with the duct tape on his face. By the defendant's own account, this crime sequence involved a significant amount of time.

At some point after the rape, the child was either strangled or smothered to death by the defendant. It is impossible for this Court to contemplate another crime that would be more heinous, atrocious and cruel than the death of Junny Rios Martinez. The terror of the abduction and rape followed by the slow death of strangulation or suffocation was extreme. Such conduct is in fact heinous, atrocious and cruel.

As his final point on appeal, Schwab argues that the heinous, atrocious, or cruel aggravator is unconstitutional. We have found no merit to this contention previously, e.g., Smalley v. State, 546 So.2d 720 (Fla.1989), and refuse to reconsider this issue.

Therefore, we affirm Schwab's convictions and sentence of death. It is so ordered.

Schwab v. Brevard County School Bd., 650 So.2d 1099 (Fla.App. 5 Dist.,1995) (Civil).

Death-row inmate, whose deposition was sought in connection with wrongful death action against school board by parents of murder victim, filed notice of appeal purporting to appeal order by the Circuit Court, Brevard County, Charles M. Holcomb, J., which granted school board leave to depose inmate, based on inmate's contention that deposition would violate his right against self-incrimination. After inmate was ordered to either pay filing fee or obtain order of insolvency from lower court, inmate brought motion to reconsider. The District Court of Appeal, Cobb, J., held that: (1) even if filing fee were paid appeal would be premature and subject to dismissal on jurisdictional grounds as there had been no objection to any specific question posed to inmate, and (2) determination of indigency as will allow waiver of appellate fee must be made at trial court level. Appeal dismissed.

Schwab v. State, 814 So.2d 402 (Fla. 2002) (PCR).

After his conviction for first-degree murder and death sentence were affirmed, 636 So.2d 3, defendant brought motion for postconviction relief. The Circuit Court, Brevard County, Charles M. Holcomb, J., denied the motion. Defendant appealed and petitioned for writ of habeas corpus. The Supreme Court held that: (1) judicial bias claims were procedurally barred; (2) trial counsel was not ineffective; and (3) direct appellate counsel was not ineffective. Affirmed; petition denied.

PER CURIAM.

Mark Dean Schwab appeals an order of the circuit court denying his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const. We affirm the denial of Schwab's postconviction motion and deny the petition for habeas corpus.

I. BACKGROUND

The facts of this crime were set forth in Schwab v. State, 636 So.2d 3, 4 (Fla.1994): Early in March 1991 Schwab was released from prison after serving three and one-half years of an eight-year sentence for committing sexual battery on a thirteen-year-old boy.

In the middle of March a picture of eleven-year-old Junny Rios-Martinez appeared in a local newspaper. Several days later Schwab called the Rios-Martinez home, pretended to be a reporter, and claimed that he wanted to write an article on Junny. Schwab ingratiated himself with the family over the next several weeks, eventually claiming that he could get Junny a contract to represent a surfing company.

After school on April 18, 1991, a classmate saw Junny at a little league ball field and saw him get into a U-haul truck with a tall man. Two days later Schwab was in Ohio and called his aunt. He told her that someone named “Donald” had forced him to kidnap and rape the child or else Donald would kill Schwab's mother.

On April 21 the police went to the aunt's home, and when Schwab called while they were there, she allowed them to record the call. She also gave officers permission to tap her telephone, and, when Schwab called later that evening, they traced the call and arrested him in a nearby town. Besides the recorded statements to his aunt, Schwab also gave statements to Sergeant Blubaugh, a Cocoa policeman, who flew to Ohio with assistant state attorney Chris White.

The day after his arrest, Schwab, Blubaugh, and White flew back to Florida. Back in Brevard County Schwab eventually indicated where the victim's body could be found. The police found the body in a rural, undeveloped area of the county, stuffed into a footlocker.

After a non-jury trial, Judge Edward J. Richardson found Schwab guilty of first-degree murder, sexual battery of a child, and kidnaping. Judge Richardson sentenced Schwab to death on the murder conviction and imposed consecutive life sentences on the other conviction.FN1 We affirmed Schwab's conviction and sentence on direct appeal. See Schwab, 636 So.2d at 4.

FN1. In aggravation, Judge Richardson found that Schwab had been previously convicted of a violent felony, that the murder was committed while Schwab was engaged in the commission of a kidnaping and a sexual battery, and that the murder was especially heinous, atrocious, or cruel (HAC). Judge Richardson “considered the statutory mitigators and forty items of alleged nonstatutory mitigation, but found little in the tendered material actually to be of a mitigating nature or to have been established by the record.” Schwab, 636 So.2d at 7.

* * *

Issue 5-Ineffective Assistance of Counsel During the Penalty Phase

Schwab claims that his counsel was ineffective during the penalty phase. Schwab argues that his counsel was ineffective for presenting Schwab's father as a mitigation witness while knowing that Schwab's father would deny allegations of abusing Schwab and Schwab's mother. Schwab also argues that his counsel failed to investigate the waiver of the penalty phase jury, failed to neutralize the prior violent felony and the murder committed during the commission of an enumerated felony aggravating circumstances, and failed to provide the assistance of a competent mental health expert.

At the evidentiary hearing, Schwab's counsel testified that he understood that the testimony of Schwab's father and mother would differ as to the alleged abuse endured by Schwab and Schwab's mother. However, counsel testified that he presented the father's testimony because he believed that Judge Richardson needed to have a full understanding of Schwab's childhood.

Counsel also testified that he believed the father testified very well and that Schwab's parents' testimony did not conflict. We conclude that the presentation of the testimony of both of Schwab's parents was a strategic decision which counsel could reasonably make. See Mann v. State, 770 So.2d 1158, 1161 (Fla.2000) (finding trial counsel's decision to present evidence of pedophilia was strategic decision not outside range of reasonable competent performance); Occhicone, 768 So.2d at 1048. In fact, in weighing the aggravators and mitigators, Judge Richardson found as a mitigating factor that Schwab grew up in an unstable home. Such finding may have been based on the presentation of testimony from both parents.

Schwab next argues that his counsel failed to investigate the waiver of an advisory penalty phase jury. As discussed above, Schwab and his counsel were completely aware of the possible consequences in waiving the advisory jury. Schwab and his counsel made an informed tactical decision in respect to both the guilt phase and the penalty phase. Hence, as with the guilt phase waiver of the jury, Schwab cannot establish his counsel's deficient performance in respect to the penalty phase. See id.

Schwab's next ineffectiveness subclaim is that his counsel failed to neutralize two aggravating circumstances presented at Schwab's penalty phase. The prior violent felony conviction aggravator found at Schwab's penalty phase was based on Schwab's guilty plea for sexual battery. See Schwab, 636 So.2d at 7.

Schwab argues that if counsel had properly investigated, counsel would have discovered that Schwab's deficient mental condition prohibited his entering a knowing, intelligent, and voluntary guilty plea for his prior sexual battery conviction.FN9 Schwab also argues that because Schwab did not plead guilty to either sexual battery or kidnaping during the guilt phase of trial, counsel was ineffective for stipulating at the penalty phase to the aggravating factor that the murder was committed during the commission of a violent felony.

FN9. This argument is the same as Schwab's eighth claim, as set out in footnote three and rejected in footnote five, except that, here, Schwab's argument is couched as an ineffective assistance of counsel claim.

In our opinion regarding Schwab's direct appeal, we discussed and found no error in the trial court's finding of aggravating circumstances. The record supports all three aggravators. The state introduced Schwab's prior conviction of sexual battery, and the evidence supports his instant conviction of kidnapping and sexual battery of a child. We agree with the trial court's conclusion that the facts also demonstrate the murder to have been committed in a heinous, atrocious, or cruel manner. Schwab, 636 So.2d at 7.

Preliminarily, we find that these ineffectiveness subclaims challenge the propriety of the aggravating circumstances but veil such challenge in an ineffective assistance of counsel argument. Therefore, as we found such aggravators valid on direct appeal, we find Schwab's subclaims are procedurally barred. See, e.g., Rutherford v. State, 727 So.2d 216, 218-19 n. 2 (Fla.1998) (finding procedurally barred claims that could have been raised on direct appeal even though couched in ineffective assistance of counsel argument).

Notwithstanding this procedural bar, these claims are without merit. Schwab presented no evidence to support his assertion that his prior felony conviction for sexual battery was invalid. Furthermore, Schwab's argument that his trial counsel should not have stipulated to the murder during the commission of an enumerated felony aggravator is similarly without merit as Schwab was convicted of sexual battery of a child and kidnaping after adversarial testing at the guilt phase of trial. See Schwab, 636 So.2d at 7-8. Given these concurrent felony convictions, counsel was not ineffective for acknowledging this fact. See, e.g., Patton v. State, 784 So.2d 380, 390 (Fla.2000) (finding facts counsel conceded were supported by overwhelming evidence and, even if counsel had denied these facts, there was no reasonable possibility jury would have rendered different verdict). Therefore, relief was properly denied.

Schwab next contends that his counsel was ineffective for failing to ensure that Schwab had access to a competent mental health expert for the purpose of evaluating, preparing, and presenting mitigation evidence for the defense. See Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); see also Mann, 770 So.2d at 1164.

The trial judge found that Schwab presented no evidence to support this claim. We agree. Ake requires that a defendant have access to a “competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake, 470 U.S. at 83, 105 S.Ct. 1087.

Schwab's counsel presented Dr. Bernstein, an expert in psychological evaluation, who testified as to mental mitigation evidence at the penalty phase. Dr. Bernstein testified that in conducting his evaluation he interviewed Schwab twice and interviewed Schwab's mother once.

Dr. Bernstein conducted a mental status examination and lengthy psychological tests, including the Minnesota Multiphasic Personality Inventory (MMPI) and the MMPI II, among various others. Dr. Bernstein also testified that he reviewed and relied on the videotaped opinions of Dr. Fred Berlin and Dr. Ted Shaw in forming his diagnosis of Schwab. Dr. Berlin and Dr. Shaw, experts in the diagnosis and treatment of mentally disordered sex offenders, interviewed and evaluated Schwab.

Dr. Berlin gave a formal sexual disorder diagnosis, and Dr. Shaw provided information concerning the potential benefits Schwab could have received had he been admitted to certain treatment programs.

Portions of these videotapes were presented to Judge Richardson. On the basis of this evaluation, Dr. Bernstein diagnosed Schwab as a pedophile operating at a regressed level of maturity who exhibited violent sexual deviant behavior. Schwab's counsel performed the essential tasks required by Ake. See Mann, 770 So.2d at 1164. Therefore, we affirm the trial court's denial of this claim. III. HABEAS CORPUS

Schwab raises three claims in his petition for a writ of habeas corpus. Schwab first contends that, during the trial, Judge Richardson should have recused himself due to his apparent and actual bias and that appellate counsel was ineffective for failing to raise this fundamental error.

Schwab's first habeas claim is procedurally barred as it was raised and rejected in our discussion of Schwab's rule 3.850 appeal. See Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989) (“[H]abeas corpus petitions are not to be used for additional appeals on questions which could have been ... or were raised on appeal or in a rule 3.850 motion, or on matters that were not objected to at trial.”).

In addition, no motion to recuse Judge Richardson was ever made. Appellate counsel cannot be deemed ineffective for failing to raise an issue that was not pursued or objected to at trial. See Ventura v. State, 794 So.2d 553 (Fla.2001) (appellate counsel cannot be deemed ineffective for failing to raise unpreserved issues).

We also reject Schwab's claim that the alleged judicial bias constitutes fundamental error. As we discussed in our review of Schwab's 3.850 motion appeal, Schwab expressly waived his right to file a motion to recuse Judge Richardson on the basis of the prosecutors' filed affidavits at the July 3, 1991, judicial bias hearing.

Likewise, Schwab's claim that Judge Richardson demonstrated his actual bias throughout the trial is also without merit. Schwab's alternative judicial bias claims are merely based on rulings adverse to Schwab and are thus legally insufficient to warrant Judge Richardson's disqualification. See Patton, 784 So.2d at 391; Rivera, 717 So.2d at 481-82.

In his second claim, Schwab argues that appellate counsel was ineffective for failing to ensure that Schwab's direct appeal was based on a complete, accurate, and reliable record. The basis of Schwab's claim is that there are five omissions in the record which deprived him of a direct appeal based on a complete, accurate, and reliable record. Specifically, these omissions are that: (1) the July 3, 1991, judicial bias hearing was not transcribed for direct appeal; (2) a document entitled “State's Questions for In Camera Inquiry,” designed to ensure that Schwab was informed on the content of the prosecutors' affidavits, was not included in the direct appeal record; (3) and (4) portions of the two videotapes of two mental health experts' opinions were not transcribed for direct appeal; and (5) a videotape of Schwab that was presented was also not transcribed for direct appeal.

We find that Schwab's second ineffective assistance of appellate counsel claim is without merit. The videotapes that were not transcribed were admitted into evidence and were available for review on direct appeal. We find Schwab has not demonstrated any prejudice resulting from not including in the record a transcript of the portions of the videotapes heard by Judge Richardson.

As to the failure to include a copy of the State's Questions for In Camera Inquiry and a transcript of the July 3, 1991, judicial bias hearing, Schwab cannot show that he was prejudiced by such omissions. At the July 3, 1991, judicial bias hearing, Schwab stated under oath that he had read the prosecutors' affidavits and, after discussion with his attorneys, understood that the failure to file a motion to disqualify would constitute waiver.

Therefore, we find that the absence of the State's questions and a transcript of this hearing in the direct appeal record did not result in a possibility of a different outcome in these proceedings. Eutzy, 536 So.2d at 1015 (“[A] court need not determine whether counsel's performance was deficient before examining whether the alleged deficiency was prejudicial.”). Appellate counsel cannot be found ineffective for not raising on appeal an issue with little or no merit. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000).

Schwab's third habeas claim is that he is incompetent to be executed. We agree with Schwab's concession that this claim is not yet ripe and thus is without merit. See Mann v. Moore, 794 So.2d 595, 602 (Fla.2001); Hall v. Moore, 792 So.2d 447, 450 (Fla.2001).

IV. CONCLUSION

Accordingly, we affirm the trial court's denial of Schwab's 3.850 motion and deny the petition for habeas corpus. It is so ordered.

Schwab v. Crosby, 451 F.3d 1308 (11th Cir. 2006) (Habeas).

Background: Following affirmance on appeal of defendant's state conviction for murder and death sentence, 636 So.2d 3, defendant filed petition for writ of habeas corpus. The United States District Court for the Middle District of Florida, No. 03-00536-CV-ORL-18JGG, Anne C. Conway, J., denied the petition, and appeal was taken.

Holdings: The Court of Appeals, Carnes, Circuit Judge, held that:
(1) defense counsel's failure to attempt any cross-examination of employees of the public defenders' office regarding the chain of custody of a letter purporting to be a confession did not prejudice defendant;
(2) state reviewing court's determination that the presumed prejudice rule of Sullivan did not apply to conflicts of interests other than those arising from concurrent multiple representations was not an unreasonable application of firmly established federal law;
(3) proof of corpus delicti was sufficient to admit defendant's inculpatory statements; and
(4) sentencing court's error, if any, in its treatment of the evidence offered by defendant in mitigation or in its treatment of facts established by that evidence, was harmless.

CARNES, Circuit Judge:

So far as we know, the first time that Mark Dean Schwab sexually assaulted a young male was in the fall of 1986, when Schwab was seventeen years old. His victim was a younger, slightly built (4'10” tall, 85 lbs.), high school sophomore whose first name, which is all we will use, was Warren. On his way to school in Brevard County, Florida one morning, Warren walked by Schwab's truck in the parking lot of a bank near the school. Schwab asked Warren to help him start the truck, which he did, although the truck started easily.

Warren then made the mistake of accepting Schwab's offer of a ride to school. As soon as Schwab drove the truck out of the parking lot, he grabbed Warren's hair, pulled Warren's head into his lap, and put a knife against his throat. Schwab drove the truck down some winding dirt roads and eventually parked it so that a tree blocked the passenger door.

With Warren trapped inside the truck, Schwab ordered him to remove his shorts. He then began to masturbate Warren. After a few minutes he ordered Warren to masturbate himself and he performed oral sex on Warren. Schwab's assault on Warren lasted 30 to 45 minutes. Afterwards, he drove Warren to the high school and threatened to kill him if he told anyone what had happened.

Two days later, as Warren was again walking to school, Schwab pulled up alongside him, gave him a $20 bill, and thanked him for not telling anyone. Warren did not see Schwab after that and did not come forward about the crime until he heard about the disappearance of the young boy in this case, which happened five years later.

In the meantime, Schwab's next known sexual assault occurred during the summer of 1987. This time his victim, first name Than, was a thirteen-year-old boy (between 5'3” and 5'6” tall). In order to get his hands on Than, Schwab called the boy and his family, telling them he had adopted a dog that they had given to a local pet shelter. He said that he needed their advice about how to care for the dog. Using that ruse, over the next few weeks Schwab visited Than's home in Brevard County several times, ingratiating himself with the family.

About three weeks after first meeting Than, Schwab called him one morning and told him that he had a house painting job on which he could use some help. Schwab promised to give Than half of the $400 that he expected to be paid for the work. Than agreed, and a little while later Schwab picked him up. Instead of driving Than to the painting job, Schwab took him to his house.

Immediately after the two walked inside Schwab's house, he stuck a knife to Than's throat. Schwab then forced Than to take off his clothes, bound his hands behind his back with a cord, and blindfolded him. Schwab touched Than's penis and orally molested him. Schwab then forced the thirteen-year-old boy to lie on his stomach on a couch and anally raped him. The entire ordeal lasted several hours, all morning and into the afternoon. Than blacked out during part of it.

Afterwards, Schwab untied Than, allowed him to dress, and drove him home. Schwab told Than not to tell anyone and promised that he would put $200 in Than's mailbox the next day if he would keep quiet. Than had a small cut on his throat from the knife and had bruises on his arms from being tied up. He reported what had happened to him, and Schwab was charged with sexual battery under Florida law. He confessed and pleaded guilty to the sexual battery charge, Fla. Stat. § 794.011(3) (“A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon is guilty of a life felony.”). That crime was punishable by “a term of imprisonment for life or by a term of imprisonment not exceeding 40 years.” Id. §§ 775.082(3)(a), 794.011(3). He did not receive nearly that much punishment. Instead, on March 18, 1988, Schwab was sentenced to only eight years in prison. Unfortunately, and tragically, he did not serve his full sentence or even half of it.

In early March of 1991 Schwab was released from prison in Florida. See Schwab v. State, 636 So.2d 3, 4 (Fla.1994). His early release was not because he had received any type of treatment. He hadn't. Although he had been tentatively accepted into a sex offender program for inmates, before Schwab could complete the screening process that program was ended because of budget cuts.

Still, even without treatment, Schwab was released from prison on probation only three years after he was given an eight-year sentence. He was required to participate in a sexual offender therapy program as a condition of his probation. In less than a month after his release, and during the time he was participating in the program, Schwab had found another victim.

Junny Rios-Martinez was an eleven-year-old boy, who was 5' tall and weighed 76 pounds. He won a kite-flying contest which led to his picture being published in the March 21, 1991 edition of Florida Today, a local newspaper in Brevard County, Florida. Children are often excited to see their pictures in the newspaper, and Junny could not have suspected that it would ultimately cost him his life.

The day after Junny's photograph ran in the paper his mother received a phone call from a man identifying himself as Malcolm Denemark and saying that he was from the newspaper. The man told Mrs. Rios-Martinez that he had seen Junny's picture in the paper and wanted to interview Junny for another article. He called back later that day while Junny was at home and was allowed to speak with him. Junny agreed to be interviewed, and his mother and the man arranged for it to take place at the Rios-Martinez home before Junny's baseball game the following day.

That next day, which was Saturday, March 23, Schwab went to Junny's home for the interview and introduced himself as “Mark Dean.” Schwab explained that Denemark, his associate from Florida Today, could not make the interview because of a conflict but that he was prepared to conduct it for Denemark.

Schwab carried a spiral notebook with handwriting on several pages, which he said were questions that Denemark had prepared for the interview. Schwab did not work for any publication (he had a construction job), and he was not an associate of anyone named Malcolm Denemark. But neither Junny nor his mother knew that, and they certainly did not know the person they had let into their home was a child molester who had just gotten out of prison.

During the interview, Schwab sat on a couch in the living room, Junny sat across from him in a rocking chair, and Mrs. Rios-Martinez sat on the couch just a few feet away. Schwab asked Junny about the things he liked to do, his favorite subject in school, his grades, whether there were drugs in school or peer pressure, and about cars. Junny showed Schwab his baseball and surfing trophies, and Schwab told Mrs. Rios-Martinez: “You must be very proud of him.” He gave Junny a gift certificate to McDonald's on which was written “To: Junny. From: Florida Today (Mark).”

After the interview was over, Schwab told Mrs. Rios-Martinez that he would like to interview Junny again for another, potentially national, story and that Junny should attend a photo shoot for the story at Florida Today's offices the next Monday. Mrs. Rios-Martinez agreed and told Schwab that he could also take photos of Junny playing drums at a club where his father worked on Sundays.

Schwab asked Mrs. Rios-Martinez if he could go with them to Junny's baseball game that evening, telling her that he wanted to see Junny playing and get to know him and his family better. Mrs. Rios-Martinez consented to that, and Schwab spent a half hour at Junny's baseball game that night.

Schwab did not show up at the club to take photographs of Junny on the next Sunday. He called Mrs. Rios-Martinez that night and told her his deadline on the story had been extended and the photo shoot canceled. The next day, Schwab called again. This time he told Mrs. Rios-Martinez that he would no longer be involved with the article for Florida Today, because he had taken a new position with a surfing magazine. In this way, Schwab began to exploit the information he had gained about Junny's interest in surfing during his visit to their home.

Two days later Mrs. Rios-Martinez and her husband received a letter from Schwab. In it he told them that their family was a special one, unlike any other he had ever met, and that he could tell all of the family members (there were two other children) loved each other very much.

The following Sunday, which was Easter, Schwab personally delivered an Easter card to the Rios-Martinez family. Mrs. Rios-Martinez was at home alone. She and Schwab discussed the letter he had sent her and her husband. She told Schwab “that it had affected [her] deeply, emotionally and that [she] was very affected by and very moved by what he had written about [her] family.”

They also discussed the new job Schwab claimed to have. He told Mrs. Rios-Martinez that he had gained a lot of contacts with surfing companies and that he would like to help Junny get sponsored by one of them. He asked her to write up a resume for Junny and to get together some pictures of him that Schwab could take to his contacts. She did.

Three days later Schwab told Mrs. Rios-Martinez that a surfing company was interested in sponsoring Junny. Later in the week, she put together more pictures of Junny, and Schwab came by the house and picked them up. He then told Mrs. Rios-Martinez that he wanted to take Junny to Daytona Beach to meet people from the surfing company over the weekend. That did not happen because the family was not able to make the necessary arrangements.

The following week Schwab dropped by the Rios-Martinez household and told them that a surfing company, which he named, had agreed to sponsor Junny. He brought Junny a t-shirt with the company's logo. Schwab told Junny that he could have whatever surfboard he wanted and that he could even design it himself. He said that the company also would provide Junny with surfing clothes.

Over the next several days Schwab visited the family several times. He worked with Junny on designing his surfboard and clothes. He told Mrs. Rios-Martinez that he had met with the president of the surfing company, and he hand-delivered to Mrs. Rios-Martinez forged documents, purporting to be a sponsorship letter and contracts. Schwab provided the family with a list of the surfing tournaments that he claimed Junny would participate in.

During one of his visits with them Schwab again asked Junny's parents if he could take Junny to Daytona Beach to meet with the surfing company. They agreed. Schwab told them that he would pick Junny up at 10:00 a.m. on Sunday, April 14, 1991. That morning, however, he called and cancelled the trip. Mr. and Mrs. Rios-Martinez did not hear from Schwab again. Their son did.

Thursday, April 18, 1991, began like any other school day for Junny. At about 7:00 a.m., he left home for his sixth grade class at Clearlake Middle School in Brevard County. He may have been anxious about the baseball game he was going to play that evening. At about 2:15 p.m. that day a bookkeeper at Junny's school received a phone call from a man purporting to be his father. The man told her to deliver a message to Junny: “I'd like for him not to go home on the bus. I would like for him to meet me at the ball field.” Believing the man to be Junny's father, she contacted Junny's classroom, had him sent to the office, and gave him the message.

At about 3:00 p.m. that day, one of Junny's schoolmates walked with him for a short while toward the baseball field. She saw him jump the fence into the baseball field. Another of Junny's friends later saw him and “some tall guy” getting out of a U-Haul truck. A short while later, the friend went back by the park but the truck, the man, and Junny were gone.

Junny's baseball game started at 6:30 that evening. Mrs. Rios-Martinez went to the baseball field right after work, arriving shortly after 7:00 p.m. Junny was not there. Her husband, who was also at the park, had not seen Junny. Mrs. Rios-Martinez immediately left for home, but Junny was not there either. She called Schwab at the number he had given her but was unable to reach him. Later that evening she and her husband reported their son missing.

Early the next morning, April 19, Schwab learned from his mother that the police had been to the apartment he shared with her and wanted to question him about a missing child. About forty-five minutes later, Schwab called his mother and told her that he was going to see his probation officer. He did not.

Instead, in the late afternoon of the next day, April 20, he called his aunt in Port Washington, Ohio, nearly a thousand miles from Cocoa, Florida. Schwab told her that a man named “Donald” had forced him at gunpoint to kidnap a boy named Junny. Schwab said that Donald had threatened to kill his mother if he did not do so. Schwab also told his aunt that Donald had forced him to have sexual relations with the young boy.

The next day, April 21, Ms. Kinsey was visited by law enforcement officers who were looking for Schwab in connection with Junny's disappearance. While they were at Ms. Kinsey's home, Schwab called. He called back later that day and the officers were able to trace the call to a nearby town where they arrested him while he was at a pay phone still talking with his aunt.

The night he was arrested Schwab voluntarily gave a recorded statement to law enforcement officers. Schwab's story, as recounted in that statement, is this. A man he identified as “Donald” confronted him outside a bar at about 2:00 a.m. on the Sunday before Junny disappeared, which would have been April 14, 1991, and threatened to get him put back behind bars.

On Monday, April 15, Schwab received a call threatening to frame him for sexually assaulting a boy unless Schwab bought a motorcycle for another man. Because of those two threats Schwab rented a U-Haul truck-he said he did it to make him look less conspicuous-and he checked himself into a motel in Cocoa Beach, Brevard County.

According to Schwab's story, on Thursday, April 18, Donald accosted him at a restaurant near the motel and forced Schwab into his car at gunpoint. Donald drove him to a field and threatened to kill his mother if Schwab did not do everything he was told. Donald then drove the two of them to a pay phone Donald used to call Junny's school pretending to be Mr. Rios-Martinez and leaving the message that Junny should go to the baseball field after school.

After making that call Donald took Schwab back to the U-Haul truck and warned Schwab that he had better return to his motel room with “some kid” or else his mother “was going to be dead.” Schwab immediately went in his U-Haul truck and picked up Junny at the baseball field.

Schwab claimed that shortly after he returned to his motel room with Junny, Donald entered the room, locked the door behind him, drew his gun, and told Schwab: “Now I got you, you son of a bitch.” Donald used duct tape to bind Junny's hands behind his back and a knife to cut Junny's clothes off of him.

Donald told Schwab that he “was going to have to do something to this kid sexually.” When Junny started to cry, Donald struck him “a couple times” and then taped his mouth shut. Donald then put his gun to the back of Schwab's head and forced him to have anal intercourse with Junny.

Schwab also told the officers that Donald forced him to leave the motel and told him not to come back for several hours. When Schwab returned to the hotel room sooner than he should have, Donald ordered him to pick up and handle a black footlocker that was in the room. Donald again forced Schwab to leave. After five or six hours, Schwab returned to the motel room but Donald and Junny were no longer there.

Schwab claimed that he did not know where Junny was. The officers returned him to Florida on April 23, 1991. While they were traveling from the airport to the police station, Schwab told one of the officers that he wanted to look for Junny's body.

For several hours during that rainy, overcast afternoon and into the night, Schwab directed the officers accompanying him to various locations in Brevard County. At about 10:00 p.m., Schwab led the officers to a largely undeveloped part of the county. Once there Schwab walked down an unpaved road, stopped, began pacing around in the road, and then pointed into the woods.

The search team crossed a drainage ditch and walked into the woods in the direction that Schwab pointed. Not far from the road, they saw a small footlocker tied nearly shut with rope and covered with palm fronds and debris, which obviously had been placed there to hide it. The lid of the footlocker was slightly open and a white cloth was visible inside. Even from ten feet away, the team could tell from the smell that a human body was inside. It had been five days since Junny was last seen alive.

The officers took the footlocker to the Medical Examiner's office where it was carefully examined. When the ropes tied around the footlocker were cut and the lid opened, there was a blanket that had several stains on it. Under the blanket was a small boy's naked body in a “semi-fetal position.” His face was not recognizable because of decomposition, but through fingerprints the body was identified as that of Junny Rios-Martinez.

Also found inside the footlocker were a pair of shoes, socks, underwear, shorts, a shirt, a watch, a yellow medal, a gold chain, two towels, some pieces of wadded-up duct tape, and a manila folder. Mrs. Rios-Martinez identified the clothing and jewelry items as belonging to her son. Some of the clothing she had bought for him the prior Easter, and the gold chain was a family heirloom his father had passed on to Junny.

An autopsy determined that Junny had died from “mechanical asphyxia,” probably smothering or strangulation. In spite of the decomposition, signs of possible bruising around the anus were detected. One of the pieces of tape that had been wadded up in the footlocker had Schwab's fingerprint on it. A search of Schwab's car led to the discovery of a receipt from a K-Mart. The receipt, dated April 18, 1991, the day Junny was abducted, showed the purchase of a footlocker.

After Junny's body was found, Schwab gave another statement to officers. In it he retold his story about a man named Donald forcing him to kidnap and rape Junny. This time, however, Schwab added that after he had intercourse with Junny, Donald had forced him and Junny, who was still alive, to get into the U-Haul that Schwab had rented.

Donald drove them around various locations near Cocoa while discussing where he could dump Junny's body so that Schwab would be blamed for his death. One of those locations was near where Junny's body was found. Donald then returned Schwab to the motel and told him to “get lost” and not to come back for several hours. When Schwab returned the next morning he saw Donald carrying the black footlocker, which Donald handed to Schwab. He then ordered Schwab to leave again.

According to Schwab's supplemental story, after he returned to the motel a few hours later Donald forced him into his car and drove him out to where the footlocker was. He ordered Schwab to walk into the woods where Schwab spotted the footlocker. Donald then returned Schwab to the motel and threatened him for the last time. The next day, Schwab said, he drove to Ohio.

The state trial court judge, after hearing all of the evidence at a bench trial and sentence hearing, rejected Schwab's story about another man being involved and found that Schwab had acted alone. He found that Schwab had planned things so that the young victim left the baseball field thinking he was with a trusted friend. Once in the motel room, Schwab physically overpowered the slightly built child. He bound with duct tape the little boy's hands, his mouth, and part of his face. He took a knife and violently cut off the child's clothes, leaving him naked, crying, and terrified.

He punched him twice in the stomach. He put a bed sheet or mattress cover over the head of the little boy who was so scared that he started to shake. Schwab anally raped him. The victim did not even have the solace of unconsciousness during the ordeal, which lasted a substantial amount of time. He continued to cry throughout, stopping only when Schwab finally strangled or smothered him to death. See Schwab, 636 So.2d at 7 n. 6 (quoting from the trial court's findings).

A few days before his brutal abuse of eleven-year-old Junny, Schwab had attended a group therapy session as part of the sexual offender program that was a condition of his probation.

Schwab and his defense counsel made a strategic decision to waive a jury. Id. After a week-long trial, the trial judge convicted Schwab on all counts as charged. Id. At a penalty proceeding before the judge, the evidence that was presented on mitigating circumstances included the opinions of a number of mental health experts.

Dr. Fred Berlin, a psychiatrist who is head of the sex offender program at Johns Hopkins University, interviewed Schwab in October 1991 and prepared a report on his behalf. There is no copy of Dr. Berlin's report in the record before us, but according to Schwab's brief to the Florida Supreme Court, Dr. Berlin diagnosed him as having “a paraphiliac disorder which consisted of homosexual pedophilia and sexual sadism.”

This disorder caused Schwab to “find [that] young males are a powerful sexual attraction” and to become “even more aroused if humiliation and pain are involved.” In Dr. Berlin's opinion Schwab's disorder is “a serious psychiatric illness” that is “not due to any voluntary decision on [Schwab's] part.”

Dr. Howard Bernstein, a licensed psychologist, who also evaluated Schwab, testified for him at sentencing. Dr. Bernstein found no evidence that Schwab had any psychosis, formal thought disorder, major mood disorder, or any other mental disorder. Instead, he found Schwab to be “rational and realistic” when interviewed but added that “his social judgment and thinking is clearly impaired within a very narrow range of interest and concerns, and that's the sexual concern.”

He described Schwab as being “preoccupied with sexual concerns,” and “profoundly driven by these cravings,” and as having “immature judgment at the very least.” Dr. Bernstein also believed that Schwab likely uses what he described as “false memories” in order to justify his inappropriate sexual behavior and “to blame others” for it.

Dr. Bernstein explained that Schwab's acting out sexually likely begins as a “fantasy” that “gives arousal” during which Schwab becomes “fixated” on a victim who fits his sexual predilection-“[y]ounger boys, same gender, smaller stature.” In order to fulfill his “obsessive sexual preoccupation,” Schwab takes a “ritualistic” approach involving “preplanning” and “schemed” events. His fantasy is fueled by his excitement and arousal, as well as by aggression and control. Schwab contemplates only the positive consequences of his actions: “Orgasm, satisfaction, completion, authority, revenge.” In order to justify acting on his fantasy, Schwab must “distort[ ] real events to justify his behavior to ... reduce his guilt.”

According to Dr. Bernstein, after Schwab's preplanning and scheming phase, there is “hyperaggressiveness” marked by “increased physiologic arousal [and] sexual excitement.” Schwab begins to “transfer his fantasies to a real ... victim, and that leads to the next stage, victim seeking behavior.” Once Schwab locates a victim that meets his fantasy, he begins “a fantasy rehearsal process.” The “mode of gratification” used by Schwab is “sex, ... humiliation, ... [and] sadism.” It is at this point, Dr. Bernstein believes, that Schwab loses control, his fantasy becomes an “irresistible impulse,” and Schwab “has an incapacity to stop.” Schwab has rationalized, minimized, and, ultimately, denied the possibility of any negative consequences from his action and has given himself “permission ... for the assault.” The conclusion of this process is for Schwab to act out his fantasized sexual aggression.

Under cross-examination, Dr. Bernstein acknowledged that Schwab had been able to control his desires for the several weeks during which he attempted to lure Junny away from his parents.

Schwab was also rational in understanding that he would not be able to fulfill his desires unless he succeeded in being alone with Junny. Dr. Bernstein testified that Schwab's disorder likely progressed from the time of the crime involving Than to the later one involving Junny. He conceded that being punished for the 1987 crime against Than may have taught Schwab that in order to fulfill his desires while protecting himself from punishment he needed to kill his victim.

Dr. Bernstein was of the opinion that Schwab knows he is ill, exhibits signs of guilt about his victims, and is “in constant turmoil” about it. However, he also described Schwab as “egocentric” and “perhaps narcissistic,” stating that “[h]e wanted to use people for his own pleasure.” Overall, Dr. Bernstein summed up Schwab as “[d]amaged goods,” a “sick child ... with sexually disordered behavior in an adult body,” and “[c]ertainly dangerous by history.” In his opinion, Schwab showed “a low potential for change” and was one for whom “[r]ehab programs are unlikely to succeed.”

Dr. William R. Samek, a clinical psychologist specializing in treating sexual offenders and sexual abuse victims, testified as a rebuttal witness for the prosecution. Dr. Samek disputed Dr. Bernstein's conclusion that Schwab's sexual desires became “irresistible impulses” which he could not control. In Dr. Samek's view, such impulses can be resisted “if there's sufficient motivation to stop.” He believed that Schwab's known assaults showed a progression and “that [Schwab] ha[d] learned each time to do things better, more carefully and slicker.”

Dr. Samek believed that Schwab is not a pedophile but that he has “an antisocial personality disorder” and is a “rape/murderer and mentally disordered sex offender.” As a result, Schwab “would have been more difficult to treat ... than your average pedophile.” Dr. Samek concluded that “it is highly unlikely that [Schwab] could be successfully rehabilitated and be safe without a lot of controls around him.”

In support of that conclusion, Dr. Samek noted that Schwab's “offenses were very cool, calm, [and] carefully planned,” that Schwab went “well beyond what is needed to rape or even to [molest] ... a kid,” and that Schwab “went to extreme lengths to ... seduce ... and charm the family.”

Dr. Samek found this last point notable because “most child molesters choose victims who are easily molestable.” He testified that Schwab's choice of “good kids from good families who are happy” reflects “his own resentment that he didn't have a nice family” and that Schwab “gets back” at his victims “by destroying them.” Dr. Samek also based his conclusion that Schwab is not treatable on the fact that he exhibited “a tremendous amount of remorse while in prison” but “that didn't stop his behavior when he got out.”

After considering all of those expert witness opinions and more evidence offered in support of aggravating and mitigating circumstances, see Schwab, 636 So.2d at 7-8, the state trial court judge found that the aggravating circumstances outweighed the mitigating circumstances and sentenced Schwab to death. See id. at 7. The conviction and sentence were affirmed on direct appeal, id. at 8, and state collateral relief was denied, Schwab v. State, 814 So.2d 402 (Fla.2002).

Schwab filed a petition in the district court seeking relief pursuant to 28 U.S.C. § 2254. A habeas petitioner in custody under a state court judgment is entitled to that relief if “the state court judgment rests on a decision that ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ ” Hunter v. Sec'y, Dep't of Corr., 395 F.3d 1196, 1202 (11th Cir.2005) (quoting 28 U.S.C. § 2254(d)). The district court denied Schwab's petition for a writ, and this is his appeal from that denial.

* * *

In addition to finding that the especially heinous, atrocious, or cruel aggravating circumstance applied, the court also found as aggravating circumstances that Schwab previously had been convicted of another capital felony or one involving the use or threat of violence, and that the murder was committed during the course of kidnapping and sexual battery. See Fla. Stat. § 921.141(5)(b), (d), (h).

The court not only concluded that the aggravating circumstances outweighed the mitigating ones, but also found “that any one of the three aggravating circumstances outweighs all mitigating circumstances.” There is no possibility that any error the judge may have made in describing the evidence offered in mitigation or in discussing the circumstances proven by that evidence had any effect or influence on his sentencing decision, much less a substantial and injurious one.

The district court's denial of Schwab's petition for federal habeas relief is AFFIRMED.