Case Information:

On 07/24/95, Davis filed a Direct Appeal with the Florida Supreme Court, citing the following trial court errors: admission of statements to the police; allowing the jury to hear the 911 tape of Beverly Shultz after discovering that her daughter was missing; the State improperly injected irrelevant matters and improper argument to exploit the emotions of the jury; overruling defense objections to jury instructions on reasonable doubt and premeditated murder; permitting the State’s mental health expert to examine Davis in order to rebut Davis’ mental health expert; jury recommendation tainted by trial errors; denying proposed jury instructions on non-statutory mitigating circumstances; improper jury instructions and insufficient evidence for aggravating circumstances of  avoiding arrest and heinous, atrocious, or cruel circumstances; and finding that Davis’ control release status was similar to being under a sentence of imprisonment, and therefore an aggravating circumstance.  The FSC affirmed the convictions and sentences on 06/05/97.

On 12/10/97, Davis filed a Petition for Writ of Certiorari with the U.S. Supreme Court that was denied on 02/23/98.

On 05/28/98, Davis filed a 3.850 Motion with the Circuit Court that was denied on 06/12/02.

On 07/18/02, Davis filed a 3.850 Motion Appeal with the Florida Supreme Court, citing allegations of ineffective assistance of counsel.  On 11/20/03, the FSC affirmed the denial of the 3.850 Motion.

On 12/02/02, Davis filed a Petition for Writ of Habeas Corpus with the Florida Supreme Court, citing allegations of ineffective assistance of counsel.  On 11/20/03, the FSC denied the Petition.

On 11/23/04, Davis filed a Petition for Writ of Habeas Corpus with the U.S. District Court, Middle District.

Floridacapitalcases.state.fl.us
 

Davis v. State, 698 So.2d 1182 (Fla. 1997). (Direct Appeal)

Defendant was convicted in the Circuit Court, Polk County, Daniel Andrews, J., of murder, and was sentenced to death. On automatic appeal, the Supreme Court held that: (1) defendant was not in custody for purposes of Miranda when he voluntarily went to police station; (2) statement in which jail employee expressed his disappointment was not impermissible renitiation of interrogation after assertion of Miranda rights; (3) Miranda warnings were required prior to interview after defendant reinitated contact; but (4) improper admission of statement obtained was harmless; (5) recording of 911 emergency call by victim's mother was admissible; (6) prosecutor's reference to portions of defendant's statement as “bald-faced lies” and crime and its perpetrator as “vicious and brutal” were not improper; and (7) instructions on aggravators for imposition of death penalty accurately stated law; and (8) defendant's control release status at time murder established aggravating factor of defendant being under sentence of imprisonment at time of murder. Affirmed. Anstead, J., concurred in result only as to conviction and concurred as to sentence.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Eddie Wayne Davis. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. On the afternoon of March 4, 1994, police found the body of eleven-year-old Kimberly Waters in a dumpster not far from her home. She had numerous bruises on her body, and the area between her vagina and anus had been lacerated. An autopsy revealed that the cause of death was strangulation. On March 5, police questioned Davis, a former boyfriend of Kimberly's mother, at the new residence where he and his girlfriend were moving. Davis denied having any knowledge of the incident and said that he had been drinking at a nearby bar on the night of the murder. Later that same day police again located Davis at a job site and brought him to the police station for further questioning, where he repeated his alibi. Davis also agreed to and did provide a blood sample.

While Davis was being questioned at the station, police obtained a pair of blood-stained boots from the trailer Davis and his girlfriend had just vacated. Subsequent DNA tests revealed that the blood on the boots was consistent with the victim's blood and that Davis's DNA matched scrapings taken from the victim's fingernails. A warrant was issued for Davis's arrest. On March 18, Davis agreed to go to the police station for more questioning. He was not told about the arrest warrant. At the station, he denied any involvement and repeated the alibi he had given earlier. After about fifteen minutes, police advised Davis of the DNA test results. Davis insisted they had the wrong person and asked if he was being arrested. Police told him that he was. At that point Davis requested to contact his mother so she could obtain an attorney for him, and the interview ceased. Davis was placed in a holding cell.

A few minutes later, while Davis was in the holding cell, Major Grady Judd approached him and, making eye contact, said that he was disappointed in Davis. When Davis responded inaudibly, Judd asked him to repeat what he had said. Davis made a comment suggesting that the victim's mother, Beverly Schultz, was involved. Judd explained that he could not discuss the case with Davis unless he reinitiated contact because Davis had requested an attorney. Davis said he wanted to talk, and he did so, confessing to the crimes against Kimberly and implicating Beverly Schultz as having solicited the crimes. Within a half hour after this interview, police conducted a taped interview in which Davis gave statements similar in substance to the untaped confession. Davis's full Miranda FN1 warnings were not read to him until the taped confession began. FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In May, 1994, Davis wrote a note asking to speak to detectives about the case. In response, police conducted a second taped interview on May 26, 1994. Police asked Davis if he was willing to proceed without the advice of his counsel, to which Davis responded yes, but specific Miranda warnings were not recited to Davis. During this interview, Davis again confessed to killing Kimberly but stated that Beverly Schultz was not involved. Davis explained that he originally went to Schultz's house to look for money to buy more beer. Because Schultz normally did not work on Thursday nights and because her car was gone, Davis believed that no one was home. Indeed, Schultz was not home at the time because she had agreed to work a double shift at the nursing rehabilitation center where she was employed. However, her daughters, Crystal and Kimberly, were at the house sleeping. When Davis turned on the lights in Beverly Schultz's bedroom, he saw Kimberly, who was sleeping in Schultz's bed. Kimberly woke up and saw him. He put his hand over her mouth and told her not to holler, telling her that he wanted to talk to her. Kimberly went with him into the living room. Davis put a rag in her mouth so she could not yell.

Davis related that they went outside and jumped a fence into the adjacent trailer park where Davis's old trailer was located. Davis said that while they were in the trailer, he tried to put his penis inside of Kimberly. When he did not succeed, he resorted to pushing two of his fingers into Kimberly's vagina. Afterwards, Davis took Kimberly to the nearby Moose Lodge. He struck her several times, then placed a piece of plastic over her mouth. She struggled and ripped the plastic with her fingers but Davis held it over her mouth and nose until she stopped moving. He put her in a dumpster and left.

Davis moved to suppress the March 18 and May 26 statements he made to law enforcement officers, arguing that his Miranda rights were violated. The trial court denied those motions. The jury found Davis guilty of first-degree murder, burglary with assault or battery, kidnapping a child under thirteen years of age, and sexual battery on a child under twelve years of age. The jury unanimously recommended a sentence of death and the trial court sentenced Davis to death.

In aggravation, the trial court found that the murder was: (1) committed by a person under sentence of imprisonment; (2) committed during the commission of a kidnapping and sexual battery; (3) committed for the purpose of avoiding or preventing a lawful arrest; and (4) especially heinous, atrocious, or cruel. As statutory mitigation, the court found that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance and gave this factor great weight. As nonstatutory mitigation, the court found that Davis was capable of accepting responsibility for his actions and had shown remorse for his conduct and offered to plead guilty; that he had exhibited good behavior while in jail and prison; that he had demonstrated positive courtroom behavior; that he was capable of forming positive relationships with family members and others; that he had no history of violence in any of his past criminal activity; that he did not plan to kill or sexually assault the victim when he began his criminal conduct; that he cooperated with police, confessed his involvement in the crime, did not resist arrest, and did not try to flee or escape; that he had always confessed to crimes for which he had been arrested in the past, accepted responsibility, and pled guilty; that he had suffered from the effects of being placed in institutional settings at an early age and spending a significant portion of his life in such settings; and that Davis obtained his GED while in prison and participated in other self-improvement programs. Although the trial court gave “medium weight” to several of these nonstatutory mitigators, most of them were assigned little weight.

Davis raises ten issues in this appeal. As his first issue, Davis contends that the trial court erred in admitting the statements he made to law enforcement officers on March 18 and May 26. We address the statements made at each stage separately. First, with respect to the statements Davis made at the police station on March 18 before he was arrested, the trial court found that whether a Miranda violation had occurred was moot because Davis had not made any incriminating statements during that interview. However, Miranda prohibits the use of all statements made by an accused during custodial interrogation if the accused has not first been warned of the right against self-incrimination and the right to counsel.FN2 Thus, statements obtained in violation of Miranda are inadmissible, regardless of whether they are inculpatory or exculpatory.

FN2. In Miranda, the Court said: The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to “admissions” of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely “exculpatory.” If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement. 384 U.S. at 476–77.

Nevertheless, we uphold the admissibility of Davis's prearrest statements on a different basis. Miranda warnings are required whenever the State seeks to introduce against a defendant statements made by the defendant while in custody and under interrogation. Absent one or the other, Miranda warnings are not required. Alston v. Redman, 34 F.3d 1237, 1243 (3d Cir.1994) (citing Miranda, 384 U.S. at 477–78, 86 S.Ct. at 1629–30); Sapp v. State, 690 So.2d 581 (Fla.1997); see also Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980) (“It is clear that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.”). Although custody encompasses more than simply formal arrest, the sole fact that police had a warrant for Davis's arrest at the time he went to the station does not conclusively establish that he was in custody. Rather, there must exist a “restraint on freedom of movement of the degree associated with a formal arrest.” Roman v. State, 475 So.2d 1228, 1231 (Fla.1985). The proper inquiry is not the unarticulated plan of the police, but rather how a reasonable person in the suspect's position would have perceived the situation. Id.

The circumstances of this case lead us to conclude that Davis was not in custody at the time he made the prearrest statements. Police had questioned Davis several times prior to March 18. At least once he had gone to the police station voluntarily for questioning and was permitted to leave. It is therefore unlikely that a reasonable person in Davis's position would have perceived that he was in custody until he was formally arrested. In any event, any error in admitting these prearrest statements was harmless. Davis did not say anything during the prearrest interview that he had not already said to police on previous occasions.

Next we address the admissibility of the untaped confession Davis made to Major Judd and Lieutenant Schreiber while in the holding cell. Davis points out that because he had invoked his right to counsel upon being arrested (and the trial court found that he had), police were prohibited under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), from interrogating Davis unless he reinitiated contact. According to Davis, Judd's expression of his disappointment in Davis constituted initiation of contact by police in violation of Edwards. The trial court made a finding that Major Judd's statement did not constitute interrogation as defined in Innis and Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987). We agree with the trial court's analysis and result. First, Judd's statement was not an express questioning of Davis. Second, Judd's statement was not the functional equivalent of express questioning because there was no allegation or showing in the record that the statement was reasonably likely to elicit an incriminating response from Davis based on his emotional or mental state. See Mauro, 481 U.S. at 526–27, 107 S.Ct. at 1935; Innis, 446 U.S. at 300–301, 100 S.Ct. at 1689–90. Moreover, although Judd eventually did ask Davis to repeat himself, thereby asking a question, it was not intended to elicit an incriminating response. For all Judd knew, Davis could have been asking for a drink of water; surely Judd was permitted to ascertain what Davis had said.

Alternatively, Davis argues that even if he reinitiated contact, Judd should have given him Miranda warnings before interviewing him in the holding cell, pursuant to Kight v. State, 512 So.2d 922 (Fla.1987); disapproved on other grounds, Owen v. State, 596 So.2d 985 (Fla.1992). In Kight, the Court held that a defendant who reinitiated contact with police after having invoked his Fifth Amendment right to counsel was entitled to a fresh set of Miranda warnings before being interrogated. Id. at 926. Yet, this Court later held in Christmas v. State, 632 So.2d 1368 (Fla.1994), that where the defendant who was in custody voluntarily initiated a conversation with law enforcement officers in which the defendant provided information about the case, Miranda warnings were not required.

Although in this case Major Judd did not read Davis his Miranda rights as they are usually set forth, the record shows that as soon as Judd understood that Davis was making statements about the murder, Judd explained to Davis that he would have to reinitiate contact with police because he had asked for a lawyer. Moreover, when Davis said that he could not afford an attorney, Judd assured him that the State would provide him with one. Therefore, it would be easy to conclude that a formal reading of the Miranda warnings was unnecessary. However, the requirement of giving Miranda warnings before custodial interrogation is a prophylactic rule intended to ensure that the uninformed or uneducated in our society know they are guaranteed the rights encompassed in the warnings. As far as we can tell, Davis had never been advised of his Miranda rights with respect to this case before talking to Judd. Under these circumstances, we are compelled to conclude that Davis's untaped confession to Judd should have been suppressed.

Notwithstanding, the erroneous admission of this confession was harmless beyond a reasonable doubt. Shortly after confessing in his holding cell, Davis gave a taped statement in which he voluntarily gave the same information contained in his prior statement to Judd. This statement was clearly admissible because Davis was fully informed of (and waived) his Miranda rights before the start of the taping session. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (holding that although defendant's voluntarily given initial statement was inadmissible because of Miranda violation, subsequent statement, made after careful Miranda warnings were given and waiver was obtained, was admissible).

As to the second taped confession, given on May 26, Davis was not given a fresh set of Miranda warnings, although he was reminded of his right to the advice of counsel. However, numerous state and federal courts have rejected the talismanic notion that a complete readvisement of Miranda warnings is necessary every time an accused undergoes additional custodial interrogation. See Brown v. State, 661 P.2d 1024 (Wyo.1983), and cases cited therein. Rather than adhere to an overly mechanical application of Miranda, we believe that once Miranda has been complied with, the better test for admissibility of statements made in subsequent or successive custodial interrogations is whether the statements were given voluntarily. Such an inquiry must consider the totality of the circumstances. We recede from those portions of Kight and Christmas that may be inconsistent with this analysis.

In this case, Davis had previously received full Miranda warnings and he validly waived them. There is no evidence of coercion; in fact, Davis was responsible for initiating the contact that led to this second taped confession. He was once again apprised of his right to counsel. Under these circumstances, we conclude that the second taped confession was voluntary and that the underlying concerns of Miranda were fully satisfied. Thus, there was no error in admitting the second taped confession. Davis's second issue is that the trial court erred in allowing the jury to hear a tape of the 911 emergency call Beverly Schultz made after discovering her daughter was missing. At trial the State proffered the tape for the stated purpose of showing Beverly Schultz's distressed state of mind at the time of the call. The State contended that Schultz's state of mind was relevant to rebut any inference that she might have been involved in the murder based on Davis's first taped confession, which implicated her. The State also argued that the tape was admissible as a spontaneous statement or an excited utterance. The trial court admitted the tape, instructing the jury that the tape was not being offered for the truth of the matters asserted in the tape, but only to establish Beverly Schultz's state of mind.

We find no error in the admission of the tape. In view of Davis's earlier confession implicating Schultz as the instigator of the crime, the tape was relevant to show her genuine concern over the loss of her child. In addition, the tape was admissible as an excited utterance under section 90.803(2), Florida Statutes (1993). Allison v. State, 661 So.2d 889 (Fla. 2d DCA 1995) (tape of 911 call by son upon finding mother dead admissible as excited utterance); Ware v. State, 596 So.2d 1200 (Fla. 3d DCA 1992) (tape of 911 call for help admissible as excited utterance). Moreover, the call was relevant to establish the circumstances of the crime and the time when Kimberly was discovered missing. Even if it could be said that the tape should not have been admitted, the error would be harmless beyond a reasonable doubt.

Third, Davis contends that the State improperly injected irrelevant matters and improper argument into the trial and exploited the emotional displays of its witnesses. Davis argues that it was error for the prosecutor (1) to ask a prospective juror during voir dire and in the presence of the other prospective jurors whether it would bother her that the case involved a child with a learning disability; (2) to refer to the victim's emotional handicap during closing argument where the victim's handicap had not been part of the State's case; (3) to refer to the emotional reaction of Detective Storie, who testified to discovering the victim's body; (4) to characterize statements given by Davis in one of his confessions as “bald-faced lies”; and (5) to refer to the crime and its perpetrator as “vicious” and “brutal.” As to asking a prospective juror in front of the others whether it would hinder her impartiality if the case involved a learning disabled child, we find no error. Whether a trial judge should have allowed interrogation of jurors on specific subjects is reviewed under an abuse of discretion standard. Farina v. State, 679 So.2d 1151, 1154 (Fla.1996). The prospective juror in question had worked with learning disabled children for ten years. The trial court did not abuse its discretion in permitting the prosecutor to voir dire this prospective juror and any of the other prospective jurors on this subject. The prosecutor stated that he intended to establish that Davis had targeted the victim because of her handicap. Ultimately he did not do so, but the trial judge was reasonable at that stage in permitting this question to determine if any of the jurors had strong feelings or biases that would prevent them from rendering an impartial verdict in the case. Moreover, the prosecutor did not dwell on the victim's handicap during voir dire, but rather asked the question and moved on to other areas.

The prosecutor's reference to the victim's emotional handicap in closing argument was not objected to by the defense. Thus the issue is waived. Even if it had been preserved, any error would have been harmless. The prosecutor made mention of the victim's handicap once in passing. If anything, the jury was more focused on the victim's young age than the fact that she may have been handicapped. We find no error in the trial court's decision to overrule the defense's objection to the prosecutor's reference to Detective Storie as “the guy that got upset thinking about this little girl.” The prosecutor was in the middle of making the argument that Davis placed the victim's body in the dumpster to avoid detection. In light of the number of law enforcement witnesses who testified, it is understandable that the prosecutor used this reference as a short-hand method of referring to the detective who discovered the victim's body in the dumpster. There was no undue emphasis on the detective's emotionalism.

Davis also argues that the prosecutor improperly referred to certain statements in Davis's taped confessions as “bald-faced lies,” particularly where the State was responsible for admitting those tapes into evidence. We find that the comments did not cross the line into improper argument. When it is understood from the context of the argument that the charge is made with reference to the evidence, the prosecutor is merely submitting to the jury a conclusion that he or she is arguing can be drawn from the evidence. Craig v. State, 510 So.2d 857, 865 (Fla.1987). It was for the jury to decide what conclusion to draw from the evidence and the prosecutor was merely submitting his view of the evidence to them for consideration. Nor do we agree with the contention that the prosecutor's characterization of the crime and its perpetrator as “vicious” and “brutal” was improper argument in view of the evidence in the case. In his fourth claim, Davis argues that the trial court erred in overruling defense objections to the standard jury instructions on reasonable doubt and premeditated murder. These issues have been resolved adversely to Davis by our prior case law. Esty v. State, 642 So.2d 1074 (Fla.1994) (reasonable doubt); Spencer v. State, 645 So.2d 377 (Fla.1994) (premeditation).

Penalty Phase

Davis asserts as his fifth issue that the trial court erred in permitting the State's mental health expert to examine Davis in order to rebut the defense's penalty phase mental health expert testimony. According to Davis, the compelled mental health examination violated his Fifth Amendment right against self-incrimination. In Dillbeck v. State, 643 So.2d 1027 (Fla.1994), we rejected the same argument. We reasoned that it would be unfair to permit a defendant to present mitigating mental health evidence at the penalty phase while denying the State the opportunity to present evidence on the same issue. This became especially so after our decision in Nibert v. State, 574 So.2d 1059 (Fla.1990), wherein we held that a trial court must find that a particular mitigating circumstance has been proved whenever the defendant has presented a “ ‘reasonable quantum of competent, uncontroverted evidence’ ” of that mitigating circumstance. Dillbeck, 643 So.2d at 1030 (quoting Nibert, 574 So.2d at 1062). We also directed the proposal of a new Rule of Criminal Procedure that would permit the State to have its mental health expert examine a defendant who intends to present at the penalty phase the testimony of a mental health expert who has interviewed the defendant. We subsequently adopted such a rule. See Fla.R.Crim.P. 3.202. We therefore reject this argument.

Sixth, Davis argues that the jury recommendation of death was tainted by a number of trial errors. First, he claims that the trial court erred in permitting the prosecutor to cross-examine one of the defense's mental health experts about some hearsay contained in a predisposition report because it was not established that the expert had relied upon the report in rendering his opinion that Davis had been abused as a child. We disagree. The record shows that defense counsel questioned Dr. Dee on direct examination about the records he had reviewed. When Dr. Dee did not remember seeing any predisposition reports, defense counsel assured Dr. Dee that the predisposition reports were contained in the HRS records he had reviewed. On cross-examination, the prosecutor asked Dr. Dee to read a portion of the predisposition report which referred to an earlier HRS investigation. The report noted that the HRS investigation revealed no physical bruises on Davis and that an unnamed person stated that she had not seen bruises for five years. On redirect examination, defense counsel asked Dr. Dee about another of the predisposition reports, in which the author reported having seen belt marks on Davis in the past. It is clear the predisposition reports were among the records Dr. Dee relied upon in arriving at his opinion that Davis had been the victim of child abuse. We find no abuse of discretion in permitting the prosecutor to cross-examine the expert witness on material contained in the predisposition report. See Muehleman v. State, 503 So.2d 310, 315 (Fla.1987) (upholding admission into evidence of report constituting hearsay where expert witness considered report in formulating opinion).

Davis also challenges the State's introduction of a photopack photograph admitted during cross-examination of Davis's grandmother, depicting Davis with long hair and facial hair. We find no error. During its direct examination of Davis's grandmother, the defense admitted photographs of Davis as a young boy, thereby making Davis's appearance relevant. The photopack photograph was proper rebuttal to show that Davis no longer looked the same.

Further, Davis challenges the trial court's refusal to permit his attorney to testify. The situation arose when the State cross-examined the defense's mental health expert Dr. McClane about the fact that Davis's lawyers did not permit him to question Davis about the instant crimes and the effect this limitation had on the formulation of his opinions. Defense counsel objected to this questioning on the ground that the limitation imposed on their expert was a legal decision made in the wake of Dillbeck. In Dillbeck, our ruling permitting the State to examine the defendant was limited to those situations where the defendant had been interviewed by the defense's mental health expert. Yet that is precisely what happened here. The fact that Davis's lawyers limited the subject matter of the questions that Dr. McClane could ask Davis does not change the fact that Davis was interviewed. The State was permitted to point out any weaknesses in Dr. McClane's testimony due to the restrictions placed on his interview of Davis. Nor was it error to deny defense counsel's request to personally testify in order to explain his strategy to the jury. Defense counsel was permitted on redirect to elicit that the witness's interview was limited in an attempt to insulate Davis from being examined by the State.

Davis also argues that the prosecutor improperly introduced the nonstatutory aggravator of future dangerousness into the penalty phase by stating to Dr. McClane during cross-examination that he couldn't predict “from this point forward” whether Davis would commit a crime such as the one he committed here. We agree that the trial court should have sustained defense counsel's objection. However, this error was harmless. The question was never answered because the court required the prosecutor to rephrase the question. Further, the court also told the jury that they would be instructed on the only aggravating circumstances which could be considered. See, e.g., Allen v. State, 662 So.2d 323, 331 (Fla.1995) (finding harmless error where the sentencing order specifically provided that the imposition of the death sentence was based solely on the statutory aggravating factors and the trial court did not allow any other aggravating factors to be argued to the jury), cert. denied, 517 U.S. 1107, 116 S.Ct. 1326, 134 L.Ed.2d 477 (1996). We reject Davis's contention that the prosecutor improperly misled the jurors into believing that they should not be swayed by any sympathy they felt for Davis. See Valle v. State, 581 So.2d 40, 46–47 (Fla.1991). Likewise, we find no merit in the argument that the prosecutor improperly told the jury that the under sentence of imprisonment aggravator alone was sufficient for imposing the death penalty.

As his seventh point, Davis argues that the trial court erred in denying his proposed jury instructions on nonstatutory mitigating factors. We have repeatedly ruled that the standard jury instructions are sufficient. The trial court acted within its discretion to deny a special instruction. E.g., Kilgore v. State, 688 So.2d 895 (Fla.1996); Ferrell v. State, 653 So.2d 367, 370 (Fla.1995), cert. denied, 520 U.S. 1123, 117 S.Ct. 1262, 137 L.Ed.2d 341 (1997); Gamble v. State, 659 So.2d 242, 246 (Fla.1995), cert. denied, 516 U.S. 1122, 116 S.Ct. 933, 133 L.Ed.2d 860 (1996). For the same reason, we reject Davis's argument that the trial court should have given an instruction that unanimous agreement was not required for the consideration of mitigating factors.

Eighth, Davis attacks both the jury instruction on the avoid arrest aggravator and the sufficiency of the evidence in support thereof. The trial court gave the following instruction for this aggravator: “The crime for which the defendant is to be sentenced was committed for the purpose of avoiding or preventing a lawful arrest, or effecting an escape from custody.” Davis argues that because the victim in this case was not a law enforcement officer, the jury should have been instructed that they could find this aggravator only if the State had proven beyond a reasonable doubt that the dominant or only motive for the killing was elimination of the witness. In support of this argument, he cites to our decisions holding that in order for this aggravator to be established where the victim is not a law enforcement officer, the State must clearly show that the dominant or only motive for the killing was witness elimination. E.g., Robertson v. State, 611 So.2d 1228, 1232 (Fla.1993); Jackson v. State, 599 So.2d 103, 109 (Fla.1992); Jackson v. State, 575 So.2d 181, 190 (Fla.1991). However, not every court construction of an aggravating factor must be incorporated into a jury instruction defining that aggravator. See Jackson v. State, 648 So.2d 85, 90 (Fla.1994) (qualifying that not every aggravating factor necessarily requires instruction that incorporates judicial interpretation of that factor). In Whitton v. State, 649 So.2d 861, 867 n. 10 (Fla.1994), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995), we stated that, unlike the heinous, atrocious, or cruel statutory aggravator, the avoid arrest statutory aggravator did not contain terms so vague as to leave the jury without sufficient guidance for determining the absence or presence of the factor. The challenged instruction was therefore legally adequate.

Nor do we agree with the claim that there was insufficient evidence to establish the avoid arrest aggravator. Davis likens the circumstances of this case to those in Doyle v. State, 460 So.2d 353 (Fla.1984), where the Court struck down the avoid arrest aggravator. However, Davis stated in his confession that when Kimberly Waters awoke to find Davis in the bedroom, he placed a rag in her mouth to keep her quiet. He transported her to his trailer in a nearby trailer park where he sexually abused her. Davis admitted that he didn't want anybody to know that he had done something like that. He killed her by striking her with his fist and holding a piece of plastic over her mouth. He also admitted that he put her in the dumpster to enable him to get away before her body could be found. These circumstances more closely resemble cases in which we have upheld this aggravator. See Swafford v. State, 533 So.2d 270, 276 (Fla.1988); Cave v. State, 476 So.2d 180, 188 (Fla.1985); Routly v. State, 440 So.2d 1257, 1264 (Fla.1983).

As his ninth issue, Davis contends that the trial court erred in finding that his control release status supported the finding that he was under a sentence of imprisonment at the time of the murder.FN3 We have not ruled on this precise issue before. In Straight v. State, 397 So.2d 903 (Fla.1981), this Court held that evidence that the defendant was on parole at the time of the murder supported a finding that the defendant was under a sentence of imprisonment for purposes of this aggravator. Later, in Haliburton v. State, 561 So.2d 248, 252 (Fla.1990), we found that this aggravator also included situations where the defendant had been out on mandatory conditional release.FN4 We based our reasoning on language in the mandatory conditional release statute stating that a person under mandatory conditional release was subject to all statutes relating to parole. On the other hand, in Bolender v. State, 422 So.2d 833 (Fla.1982), this Court held that probation did not qualify for the under sentence of imprisonment aggravator because the defendant was not incarcerated. In Trotter v. State, 576 So.2d 691, 694 (Fla.1990), we applied the same reasoning to hold that community control did not satisfy this aggravator.FN5

FN3. § 921.141(5)(a), Fla.Stat. (1993). FN4. § 944.291, Fla.Stat. (1979). FN5. The statute was subsequently amended to expressly include community control as an aggravating circumstance. Ch. 91–271, § 1, at 2562, Laws of Fla.

Davis posits that control release is similar to community control and therefore does not qualify as a “sentence of imprisonment” under the reasoning of Trotter. He distinguishes control release from parole by pointing out that only inmates who are ineligible for parole may qualify for control release. He further distinguishes the two by pointing out that, unlike parole violators, those who have their control release revoked are not entitled to credit for time spent out of prison. However, both of these arguments tend to suggest that control release is even more restrictive than parole. We find that Haliburton governs this issue because control release is most like parole. Like parole, control release is provided for under chapter 947, Florida Statutes (1993). That chapter creates the Parole Commission and sets forth its powers and duties, including administration of both the parole and control release programs. In contrast, probation and community control are housed under a separate chapter FN6 and fall under court supervision. The similarities between parole and control release are greater than their differences. We therefore hold that a defendant under control release at the time he or she committed the murder was under a sentence of imprisonment for purposes of section 921.141(5)(a). FN6. Chapter 948, Fla.Stat. (1993).

Finally, Davis attacks the heinous, atrocious, or cruel (HAC) aggravator and the adequacy of the instruction given to the jury. The instruction given in this case was identical to the one given in Hall v. State, 614 So.2d 473, 478 (Fla.1993). We found that the instruction “define[d] the terms sufficiently to save both the instruction and the aggravator from vagueness challenges.” Id. (emphasis added.) We see no reason to recede from Hall.

The sentence of death in this case is proportional to other sentences we have approved. The judgment of guilt and the sentence of death are hereby affirmed. The judgments and sentences for burglary, kidnapping, and sexual battery are also affirmed. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING and WELLS, JJ., concur. ANSTEAD, J., concurs in result only as to conviction and concurs as to sentence.
 

Davis v. State, 875 So.2d 359 (Fla. 2003). (PCR)

Background: Defendant was convicted in the Circuit Court, Polk County, Daniel Andrews, J., of murder, and was sentenced to death. On automatic appeal, the Supreme Court, 698 So.2d 1182, affirmed. Defendant moved for post-conviction relief. The Circuit Court, Polk County, Randall G. McDonald, J., denied motion. Defendant appealed and petitioned for writ of habeas corpus.

Holdings: The Supreme Court held that: (1) attorney's failure to pursue defense of voluntary intoxication and request instruction was not deficient performance; (2) attorney did not render deficient performance by failing to obtain an on-the-record waiver by defendant of his right to testify in the penalty phase; (3) attorney did not render ineffective assistance by failing to present a more qualified expert to testify that defendant suffered from post-traumatic stress syndrome due to sexual abuse as a child and while in prison; and (4) allowing child victim's mother to remain in the courtroom after testifying was not shown to be abuse of discretion. Affirmed; petition denied. Wells, J., concurred and filed opinion in which Cantero and Bell, JJ., concurred. Anstead, C.J., concurred in part, dissented in part, and filed opinion.

PER CURIAM.

Eddie Wayne Davis was sentenced to death for the murder of an eleven-year-old child following a unanimous jury recommendation. This Court affirmed the conviction and death sentence. See Davis v. State, 698 So.2d 1182 (Fla.1997). Now in postconviction proceedings, Davis appeals a trial court order denying postconviction relief following an evidentiary hearing and further petitions this Court for a writ of habeas corpus alleging ineffective assistance of appellate counsel.FN1 His claim for postconviction relief is based primarily on claims of ineffective assistance of counsel in the guilt and penalty phases. Specifically, Davis asserts that trial counsel was ineffective in: (1) failing to present the defense of voluntary intoxication in the guilt phase; (2) failing to argue to the jury as to the inherent unreliability of Davis's confessions; (3) failing to obtain an on-the-record waiver of Davis's right to testify in the penalty phase; and (4) failing to present a “qualified” expert on sexual abuse as mitigation evidence in the penalty phase. For the reasons that follow, we affirm the denial of Davis's postconviction motion and deny the petition for habeas corpus. FN1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

FACTS AND PROCEDURAL HISTORY

Davis was convicted of murdering eleven-year-old Kimberly Waters, whose body was found in a dumpster close to her home. See Davis, 698 So.2d at 1186–87. As we explained:

On March 5, police questioned Davis, a former boyfriend of Kimberly's mother, at the new residence where he and his girlfriend were moving. Davis denied having any knowledge of the incident and said that he had been drinking at a nearby bar on the night of the murder. Later that same day police again located Davis at a job site and brought him to the police station for further questioning, where he repeated his alibi. Davis also agreed to and did provide a blood sample. While Davis was being questioned at the station, police obtained a pair of blood-stained boots from the trailer Davis and his girlfriend had just vacated. Subsequent DNA tests revealed that the blood on the boots was consistent with the victim's blood and that Davis's DNA matched scrapings taken from the victim's fingernails. Id. at 1186. While in a holding cell, Davis gave one unrecorded confession and two recorded confessions to the police. In his final confession he stated that he originally went to the home of the victim's mother, Beverly Schultz, who was his girlfriend, to look for money to buy beer:

Because Schultz normally did not work on Thursday nights and because her car was gone, Davis believed that no one was home. Indeed, Schultz was not home at the time because she had agreed to work a double shift at the nursing rehabilitation center where she was employed. However, her daughters, Crystal and Kimberly, were at the house sleeping. When Davis turned on the lights in Beverly Schultz's bedroom, he saw Kimberly, who was sleeping in Schultz's bed. Kimberly woke up and saw him. He put his hand over her mouth and told her not to holler, telling her that he wanted to talk to her. Kimberly went with him into the living room. Davis put a rag in her mouth so she could not yell. Davis related that they went outside and jumped a fence into the adjacent trailer park where Davis's old trailer was located. Davis said that while they were in the trailer, he tried to put his penis inside of Kimberly. When he did not succeed, he resorted to pushing two of his fingers into Kimberly's vagina. Afterwards, Davis took Kimberly to the nearby Moose Lodge. He struck her several times, then placed a piece of plastic over her mouth. She struggled and ripped the plastic with her fingers but Davis held it over her mouth and nose until she stopped moving. He put her in a dumpster and left.

... The jury found Davis guilty of first-degree murder, burglary with assault or battery, kidnapping a child under thirteen years of age, and sexual battery on a child under twelve years of age. Id. at 1186–87. During the four-day penalty phase, Davis's trial counsel presented the testimony of fifteen witnesses in mitigation. These witnesses included Davis's father, stepmother, girlfriend, coworker and friend, maternal aunt, grandmother, paternal aunt, control release supervisor, and special group leader and youth counselor at HRS, as well as three mental health experts. Despite the extensive mitigating testimony, the jury unanimously recommended the death penalty. In imposing the death penalty, the trial court concluded in a detailed and comprehensive sentencing order that the aggravation outweighed the substantial mitigation. In aggravation, the trial court found that the murder was (1) committed by a person under sentence of imprisonment; (2) committed during the commission of a kidnapping and sexual battery; (3) committed for the purpose of avoiding or preventing a lawful arrest; and (4) especially heinous, atrocious, or cruel. As statutory mitigation, the court found that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance and gave this factor great weight.FN2

FN2. As nonstatutory mitigation, the court found that Davis was capable of accepting responsibility for his actions and had shown remorse for his conduct and offered to plead guilty; that he had exhibited good behavior while in jail and prison; that he had demonstrated positive courtroom behavior; that he was capable of forming positive relationships with family members and others; that he had no history of violence in any of his past criminal activity; that he did not plan to kill or sexually assault the victim when he began his criminal conduct; that he cooperated with police, confessed his involvement in the crime, did not resist arrest, and did not try to flee or escape; that he had always confessed to crimes for which he had been arrested in the past, accepted responsibility, and pled guilty; that he had suffered from the effects of being placed in institutional settings at an early age and spending a significant portion of his life in such settings; and that Davis obtained his GED while in prison and participated in other self-improvement programs. Although the trial court gave “medium weight” to several of these nonstatutory mitigators, it assigned little weight to most of them.

On direct appeal, Davis raised ten issues.FN3 The Court determined that Davis's untaped confession while in his holding cell should have been suppressed. See id. at 1189. However, the Court found this error harmless beyond a reasonable doubt because shortly after confessing in his holding cell, Davis gave a taped statement in which he was fully apprised of his Miranda FN4 rights and voluntarily gave the same information contained in the untaped confession. See id. The Court rejected the other issues raised by Davis as without merit and affirmed Davis's conviction and death sentence. See id. at 1194.

FN3. Davis argued that (1) the trial court erred in admitting two statements that Davis made to law enforcement officers; (2) the trial court erred in allowing the jury to hear a tape of a 911 emergency call made by the victim's mother; (3) the State improperly injected irrelevant matters and improper argument into the trial and exploited the emotional displays of its witnesses; (4) the trial court erred in overruling defense objections to the standard jury instructions on reasonable doubt and premeditated murder; (5) the trial court erred in permitting the State's mental health expert to examine Davis; (6) the jury recommendation of death was tainted by a number of trial errors; (7) the trial court erred in denying his proposed jury instruction on nonstatutory mitigating factors; (8) the trial court erred in instructing the jury on the “avoid arrest” aggravator and the sufficiency of the evidence in support thereof; (9) the trial court erred in finding that Davis's control release status supported the finding that he was under sentence of imprisonment at the time of the murder; and (10) the trial court erred in instructing the jury on the heinous, atrocious, and cruel aggravator. FN4. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

Davis filed a motion for postconviction relief raising twelve claims. FN5 After a HuffFN6 hearing, the trial court granted an evidentiary hearing on a portion of Davis's claims.FN7 After the evidentiary hearing, the trial court denied relief in a comprehensive order. Davis now appeals the denial of his postconviction motion and also petitions this Court for a writ of habeas corpus.

FN5. Davis argued: (I) guilt phase counsel was ineffective in violation of the Sixth and Fourteenth Amendments for (a) failing to move for a mistrial upon allowing an enlarged photograph of the victim's body to remain in front of the jury, (b) failing to adequately investigate the criminal past of a key witness, (c) failing to present the defense of voluntary intoxication, (d) failing to procure a change of venue, (e) failing to investigate and prepare DNA evidence, (f) failing to effectively suppress defendant's confession or alternatively to effectively argue its inherent unreliability to the jury; (II) penalty phase counsel was ineffective in violation of the Sixth and Fourteenth Amendments for (a) failing to cross examine Alicia Riggall, Davis's control release supervisor, during the penalty phase of the trial, (b) failing to call Davis to testify at the penalty phase of the trial, (c) failing to present expert testimony on post-traumatic stress disorder, (d) failing to sufficiently develop voluntary intoxication as a mitigator, (e) failing to provide physical evidence of organic brain damage, (f) failing to call Brenda Reincke, Davis's neighbor to testify, (g) failing to move for a competency evaluation; (III) a conflict of interest between counsel and Davis prevented counsel from rendering effective assistance; (IV) the rules prohibiting counsel from interviewing jurors deprived Davis of his constitutional rights; (V) he was denied a meaningful adversarial testing by counsel's conceding guilt without consultation; (VI) Davis may be incompetent at the time of execution; (VII) Florida's capital sentencing structure is unconstitutional on its face and as applied; (VIII) the trial contained numerous procedural and substantive errors which cannot be harmless when viewed as a whole; (IX) he was denied his rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (X) execution by electrocution is cruel and unusual punishment; (XI) lethal injection is cruel and unusual punishment; (XII) Brim v. State, 695 So.2d 268 (Fla.1997), and Murray v. State, 692 So.2d 157 (Fla.1997), establish that Davis's conviction violates the Eighth and Fourteenth Amendments. FN6. Huff v. State, 622 So.2d 982 (Fla.1993).

FN7. The trial court granted an evidentiary hearing on claims IB, IC, IE, IIA (as orally amended), IIB, IIC, IIE, IIF, II G, III, V, and VIII. The trial court found claims IA, ID, IF, VII, and XII to be procedurally barred and denied a hearing. The trial court determined that claims IID and IX were conclusively refuted by the record and denied a hearing. The trial court noted that claim IA was conclusively refuted by the record as well as being procedurally barred. The trial court denied claim IV without a hearing because the defendant never made a motion to interview jurors and thus, the claim had no merit. The trial court denied claim VI without a hearing because the defendant was not under an active death warrant. Claim X was denied as moot and claim IX was denied without a hearing because this Court in Sims v. State, 754 So.2d 657 (Fla.2000), decided lethal injection does not constitute cruel and unusual punishment.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Ineffective Assistance of Counsel—Guilt Phase

Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). This requires an independent review of the trial court's legal conclusions, while giving deference to the trial court's factual findings. See id. In order for a claim of ineffective assistance of counsel to be considered meritorious, a defendant must establish two components under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Stephens, 748 So.2d at 1033. First, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Kennedy v. State, 547 So.2d 912, 913 (Fla.1989). Second, the deficiency in counsel's performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id.; see also Rutherford v. State, 727 So.2d 216, 219 (Fla.1998) ( “[T]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052).

1. Voluntary Intoxication

Davis argues that his trial counsel was ineffective for “failing to present the defense of voluntary intoxication as a valid defense to first-degree murder.” Although it is uncontested that there was abundant evidence presented during the guilt phase of trial by both the State and the defense that Davis was intoxicated at the time of the offense, Davis specifically argues that his trial counsel failed to either present actual evidence in the form of an expert opinion, or request a jury instruction that Davis lacked the specific intent required for a finding of guilt on the charge of first-degree murder due to his voluntary intoxication, or both. This Court has stated that “[c]ounsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel's strategic decisions. Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (citations omitted). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Rolling v. State, 825 So.2d 293, 298 (Fla.2002) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

At the evidentiary hearing, Davis presented the testimony of Dr. Michael Maher, an expert in forensic psychiatry, who testified that in his opinion Davis was sufficiently intoxicated at the time of the offense that his capacity to commit premeditated acts of murder was very substantially impaired. Austin Maslanik, Davis's lead counsel, testified that he did not request a specific instruction on voluntary intoxication for four specific reasons, including the fact that Davis gave two very detailed confessions of the crime which would tend to undermine an argument that Davis was seriously impaired. This view of the evidence is set forth in the trial judge's sentencing order: The evidence was that the defendant had been drinking the afternoon before the murder .... The barmaid ... testified that the defendant did not appear to be intoxicated. [She] was the last objective person to see the defendant before the murder and her testimony, in the opinion of this Court, was believable. The Court, however, believes the defendant was somewhat intoxicated, but not to the point it affected his actions and knowledge.

The defendant left the bar and decided to burglarize the victim's home in hope of finding more beer money as he stated in both of the taped confessions. The defendant unscrewed the front porch light bulb so no one would see him enter. When the defendant turned on the light in the master bedroom he was surprised to find the victim. He stated in his second taped confession he could not turn the light off before the victim saw him. At this time the defendant's intent changed.... The defendant stated in his second taped confession that he placed his hand over the victim's mouth, told her to be quiet and led her out of the house, while stuffing a rag in her mouth. He then either took her directly to the curtilage of the Moose Club (taped confession # 1) or to his trailer (taped confession # 2) where he brutally and forcefully raped her. The defendant had the state of mind not to rape her in her house but to take her to another location. All of this is noted in both taped confessions which give exacting detail beyond one in an intoxicated blackout.... In fact the defendant described in detail how he forcefully penetrated the victim's vagina with his two fingers. He also described how he beat her, held her down, placed plastic over her mouth and nose for a couple of minutes, while the victim ripped at the plastic and tried to get away. The defendant then made a conscious, knowing, decision to take the lifeless body, boost it over the dumpster (taped confession # 1) and shut the lid (taped confession # 2).... This Court allowed the defendant's attorney to argue this statutory mitigator to the Court, but the facts of this case, the defendant's statements and actions show there was no mental disturbance interfering or obviating the defendant's knowledge of right or wrong.

We conclude that this case is similar to Stewart v. State, 801 So.2d 59 (Fla.2001), where we rejected a claim that trial counsel was ineffective for not pursuing a voluntary intoxication defense. In so doing, we noted that during the evidentiary hearing Stewart's trial counsel testified that his conversations with the defendant persuaded him that an involuntary intoxication defense would not be appropriate due to Stewart's detailed account of the crime and the State's potential use of experts who examined Stewart to determine his competency to stand trial. See id. at 65. The Court concluded that the record of both the evidentiary hearing and trial demonstrated that trial counsel made an informed and reasoned decision not to pursue a voluntary intoxication defense for strategic reasons. See id. at 65. Similarly, in Occhicone, 768 So.2d at 1048, and Johnson v. State, 593 So.2d 206, 209 (Fla.1992), the Court rejected claims that counsel was ineffective for not pursuing an intoxication defense where defendant had good recall of what transpired on the night of the murders and, therefore, was not intoxicated to the level of not being able to premeditate the murders. Similar to the defendants in Stewart, Occhicone, and Johnson, in this case Davis gave two taped, detailed confessions as to the circumstances of the crime that substantially undermined the viability of a voluntary intoxication defense. The testimony of defense counsel and the record of the confession in this case provide competent, substantial evidence to support the trial court's findings that Maslanik made an informed and strategic decision not to pursue an intoxication defense. Thus, counsel was not deficient and Davis is not entitled to relief on this issue.

Moreover, even if counsel's performance was deficient, we note that there was a general verdict in this case and the evidence supported an instruction on felony murder based on sexual battery, which is a general intent crime to which voluntary intoxication is not a defense. Therefore, even if the jury had been instructed on voluntary intoxication as a defense to premeditated murder, because the general verdict did not differentiate between premeditated murder and felony murder, Davis cannot establish prejudice. See Sochor v. State, 619 So.2d 285, 290 (Fla.1993) (rejecting claim that trial court committed fundamental error by not instructing the jury on voluntary intoxication as a defense to felony murder based on kidnapping, based in part on the fact that there was sufficient evidence of sexual battery, a general intent crime to which voluntary intoxication is not a defense). Therefore, the trial court did not err in denying this claim.

2. Davis's Confessions

Davis next argues the trial court erred in not granting him an evidentiary hearing on his claim that trial counsel was ineffective “for failing to argue to the jury as to the inherent unreliability of Davis's confessions.” A postconviction defendant is entitled to an evidentiary hearing unless the motion and record conclusively show that the defendant is entitled to no relief. See Floyd v. State, 808 So.2d 175, 182 (Fla.2002). Although this Court has urged trial courts to err on the side of caution when deciding whether or not to grant an evidentiary hearing on postconviction claims, “[a] defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing.” State v. Coney, 845 So.2d 120, 135 (Fla.2003); see also Kennedy, 547 So.2d at 913. In order for a motion to be facially sufficient, the defendant must allege specific legal and factual grounds that demonstrate a cognizable claim for relief. This claim was properly denied by the trial court because Davis failed to plead this claim specifically. Davis does not allege in his motion what is inherently unreliable in the two detailed confessions, nor does he direct us to portions of the record where trial counsel failed to effectively cross-examine witnesses on the confessions' inconsistencies. Davis's conclusory allegations that the jury would have reached a different result had trial counsel argued the “inconsistent parts of the confessions” are not supported by a properly pled factual basis. Thus, this claim is facially insufficient and the trial court did not err in summarily denying this claim.

B. Ineffective Assistance of Counsel—Penalty Phase

1. On-the Record Waiver

In his first claim of penalty phase ineffectiveness, Davis argues that trial counsel was ineffective in failing to obtain an on-the-record waiver by Davis of his right to testify in the penalty phase of trial. In Torres–Arboledo v. State, 524 So.2d 403, 410 (Fla.1988), the Court addressed whether due process required that the trial court obtain from the defendant an on-the-record waiver of the right to testify in the guilt phase. The Court stated: Although we agree that there is a constitutional right to testify under the due process clause of the United States Constitution, ... this right does not fall within the category of fundamental rights which must be waived on the record by the defendant himself. We view this right to be more like an accused's right to represent himself. Although such a right has been expressly recognized by the United States Supreme Court ... this right has not been considered so fundamental as to require the same procedural safeguards employed to ensure that a waiver of the right to counsel is knowingly and intelligently made. Id. at 410–11. In Torres–Arboledo, the Court relied in part on Cutter v. State, 460 So.2d 538 (Fla. 2d DCA 1984), where the Second District stated that the right to testify may be waived by the defendant's attorney “in the absence of express disapproval on the record by the defendant during the pretrial or trial proceedings.” Cutter, 460 So.2d at 539; See Torres–Arboledo, 524 So.2d at 410 (expressly approving Cutter ); see also Occhicone v. State, 570 So.2d 902, 905 (Fla.1990) (relying on Torres–Arboledo to hold that the trial court did not err in not telling Occhicone specifically that he had the right to testify on his own behalf). The standard adopted in Torres–Arboledo applies to the defendant's right to testify at both the guilt and penalty phase. See Lawrence v. State, 831 So.2d 121, 132 (Fla.2002). In this case, the trial court obtained from Davis an on-the-record waiver of his right to testify in the guilt phase, in which Davis affirmatively participated. In securing this waiver, the trial court inquired as to whether Davis wanted to testify and made Davis aware that whether or not to testify was his decision. In the penalty phase, defense counsel indicated that his client would not be testifying. Davis did not testify during the postconviction evidentiary hearing that he disagreed with counsel's waiver. Nor does Davis assert that he was otherwise prevented by counsel from testifying. In fact, his defense counsel stated that the subject of whether Davis would testify in the penalty phase was discussed with Davis. Therefore, because the record affirmatively shows that our holding in Torres–Arboledo was not violated, Davis's counsel was not ineffective in failing to obtain an on-the-record waiver by Davis of his right to testify in the penalty phase. Moreover, Davis has not established prejudice under the second prong of Strickland. Because Davis did not testify at the evidentiary hearing or otherwise establish what testimony he would have offered, we cannot conclude that our confidence in the outcome is undermined by Davis's failure to testify during the penalty phase. Therefore, we affirm the trial court's denial of relief on this claim.

2. “Qualified” Expert on Sexual Abuse in Mitigation

In his second claim of ineffective assistance of penalty phase counsel, Davis argues that his trial counsel was ineffective for failing to present in mitigation the testimony of a qualified expert that Davis suffered from post-traumatic stress syndrome due to sexual abuse suffered by him as a child and while in prison. Specifically, he alleges that the expert presented on this issue was not qualified to render an opinion on the relationship between sexual abuse and post-traumatic stress disorder. In denying this claim, the trial court found: Maslanik testified that Dr. McClane did testify during the penalty phase on Post Traumatic Stress Disorder. The Court finds that Dr. McClane testified that Davis was diagnosed with PTSD. McClane also described to the jury the effects of PTSD. Maslanik testified that he believed Dr. McClane's overall qualifications would qualify him to render an opinion on PTSD. Additionally, Dr. Harry Krop, PhD testified that Davis was diagnosed with PTSD and described PTSD to the jury. Accordingly, this claim is DENIED.

We have recognized that “the obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated.” State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002). “[A]n attorney has a strict duty to conduct a reasonable investigation of a defendant's background for possible mitigating evidence.” Ragsdale v. State, 798 So.2d 713, 716 (Fla.2001) (quoting State v. Riechmann, 777 So.2d 342, 350 (Fla.2000)). In determining whether the penalty phase proceedings were reliable, “the failure [of counsel] to investigate and present available mitigating evidence is a relevant concern along with the reasons for not doing so.” When evaluating claims that counsel was ineffective for failing to present mitigating evidence, this Court has phrased the defendant's burden as showing that counsel's ineffectiveness “deprived the defendant of a reliable penalty phase proceeding.” Asay v. State, 769 So.2d 974, 985 (Fla.2000) (citations omitted). Moreover, as the Supreme Court recently stated in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003): [O]ur principal concern in deciding whether [counsel] exercised “reasonable professional judgmen[t]” is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence ... was itself reasonable. In assessing counsel's investigation, we must conduct an objective review of their performance, measured for “reasonableness under prevailing professional norms,” which includes a context-dependent consideration of the challenged conduct as seems “from counsel's perspective at the time.” Id. at 2536 (citations omitted) (third alteration in original).

In contrast to Wiggins, where counsel's proffered mitigation was completely devoid of evidence of the defendant's life history and family background, in this case there was substantial investigation and a comprehensive presentation of evidence during a four-day penalty phase. Davis's defense team presented the testimony of three mental health experts: (1) Dr. Harry Krop, a clinical psychologist with a specialty in child sexual abuse and an expert in forensic psychology, (2) Dr. Henry Dee, a neuropsychologist and an expert in pediatric neuropsychology and substance abuse, and (3) Dr. Thomas McClane, a psychiatrist and expert in the area of forensic psychiatry and pharmacology. All three mental health experts reviewed extensive background information provided to them by Davis's defense lawyers, including photographs of the victim and the crime scene, the transcripts and audiotapes of two statements made by Davis after he was arrested, jail medical records, other police and arrest reports of Davis's, beginning with juvenile records, Davis's HRS records, psychological evaluations done at Peace River Developmental Center, high school records including two psychological evaluations done by members of the school board, and medical and psychiatric records from the Department of Corrections. The experts also reviewed the arrest reports and Florida Department of Law Enforcement (FDLE) records of Davis's stepfather, Brad Hudson, and FDLE and police reports of Eddie Arnold Davis, Davis's biological father. Finally, the mental health experts also either interviewed or reviewed depositions of various people related to the case, including Davis's two aunts, mother, half sister, grandmother, father, stepmother, and stepfather.

Dr. Krop performed neuropsychological testing and a psychosexual evaluation on Davis and testified during the penalty phase that Davis had suffered from physical abuse as a child and had a problem with excessive drinking. Dr. Krop diagnosed Davis with six different mental health disorders—dysthymia, substance abuse, post-traumatic stress disorder, learning disability, borderline personality disorder, and antisocial personality disorder. Dr. Dee corroborated Dr. Krop's testimony that Davis was physically abused as a child and had moderate to severe problems with alcohol, and testified that he was aware of the allegations of sexual abuse contained in Davis's prison's records. Both Dr. Dee and Dr. Krop evaluated Davis prior to trial. Dr. McClane evaluated Davis after Davis was found guilty but before the beginning of the penalty phase. During this evaluation Davis disclosed for the first time that he was sexually abused by his stepfather, Brad Hudson, sometime between the ages of eleven and thirteen. Dr. McClane testified during the penalty phase that this abuse would have had a “serious effect on the development of a child” and had a “profound effect” on Davis. Dr. McClane diagnosed Davis with five mental health disorders. Dr. McClane's primary diagnosis was post-traumatic stress disorder based on the incidents of sexual abuse, followed by chronic alcohol dependence and intoxication at the time of the offense, borderline intellectual functioning, borderline personality disorder, and antisocial personality disorder.

During cross-examination, the State attempted to attack the credibility of Dr. McClane by focusing on the fact that he was not specially trained in the area of sexual abuse of children. Davis argues that Dr. McClane's testimony that Davis suffered from post-traumatic stress syndrome due to sexual abuse as a child was significantly undermined by this cross-examination. Davis contends that trial counsel should have secured an expert in child sexual abuse to testify that Davis was being truthful when he revealed that he suffered from sexual abuse as a child and that Davis suffered from post-traumatic stress as a result of that abuse.

At the postconviction hearing, Davis presented the testimony of Dr. Sherri Bourg–Carter, a psychotherapist with specialties in forensic psychology and child sexual abuse. Dr. Bourg–Carter testified that she believed Davis was telling the truth as to his allegations of child sexual abuse and diagnosed him as suffering from post-traumatic stress disorder based on this abuse. Dr. Bourg–Carter based her diagnosis on an interview with Davis, the results of psychological tests she administered to him, prior psychological exams done on Davis, Department of Corrections records, and the transcript testimony of Dr. Krop and Dr. McClane at the penalty phase. Dr. Bourg–Carter further testified that Dr. Krop could have been qualified as an expert in child sexual abuse and wondered why Dr. McClane interviewed Davis as to the sexual abuse instead of Dr. Krop. Finally, Dr. Bourg–Carter testified that she thought Dr. Krop should have been alerted to the sexual abuse after reviewing the records. In Dr. Bourg–Carter's opinion, there were certain “red flags” in the record that Davis was possibly a victim of sexual abuse, including the nature of the crime itself—the murder of a young girl. We conclude that Davis's argument that counsel was ineffective in not securing the testimony of an expert such as Dr. Bourg–Carter is without merit. First, trial counsel's performance was not deficient. This Court has found counsel's performance deficient where counsel “never attempted to meaningfully investigate mitigation” although substantial mitigation could have been presented. See Rose v. State, 675 So.2d 567, 572 (Fla.1996); see also Wiggins, 123 S.Ct. at 2542 (failing to uncover substantial mitigating evidence, including sexual abuse, due to inattention is deficient performance and not reasoned strategic judgment). However, in this case, Davis's trial counsel did conduct a thorough background investigation and present substantial mental health mitigation, including the testimony of three mental health experts, who diagnosed Davis with no less than six different mental health disorders. Thus, this case is more like Asay, where we concluded that trial counsel was not deficient where the defendant had been examined prior to trial by mental health experts and the defendant was simply able to secure a more favorable diagnosis in postconviction. See Asay, 769 So.2d at 985.

“In evaluating the Strickland prong[ ] of deficiency ..., it is [also] important to focus on the nature of the mental mitigation [the defendant] now claims should have been presented.” Rutherford, 727 So.2d at 223. In this case, Davis is offering no new mental mitigation testimony. Nor did the postconviction expert rely on information not previously available at trial.FN8 Rather, the testimony of Dr. Bourg–Carter presented at the evidentiary hearing is similar to the penalty phase testimony of Dr. McClane. Both mental health experts diagnosed Davis as suffering from post-traumatic stress disorder based on incidents of child sexual abuse. Dr. Krop diagnosed Davis as suffering from post-traumatic stress as a result of physical abuse suffered as a child. Although Dr. Bourg–Carter may be characterized as a “more favorable mental health expert” in that she has substantial expertise in child sexual abuse and its relationship to post-traumatic stress disorder, Davis's trial counsel was not deficient simply because Davis was able to secure a “more favorable” report on postconviction. Asay, 769 So.2d at 986. FN8. In fact, Dr. Bourg–Carter conceded during the postconviction proceedings that she actually reviewed less prior history than either Dr. Dee or Dr. Krop and would not have been qualified with what she reviewed to testify comprehensively in a penalty phase.

Even if counsel was deficient for not having an expert specifically trained in child sexual abuse examine Davis after Davis revealed incidents of sexual abuse, Davis is unable to demonstrate prejudice. As noted above, both Dr. Krop and Dr. McClane testified that Davis suffered from post-traumatic stress syndrome. Consistent with this diagnosis and the other multiple diagnoses of the experts, the trial judge found in his sentencing order that the mitigating factor of extreme mental or emotional disturbance was established and stated that it is apparent to this Court the defendant came from a dysfunctional family; the defendant is an alcoholic, with low self-esteem; the defendant had an abused, neglected childhood; the defendant has had learning disabilities, which he has overcome; the defendant is immature for his age; the defendant may have an anti-social personality disorder; the defendant may have suffered from post-traumatic stress disorder; the defendant has suffered from chronic depression and anxiety; the defendant has poor impulse control and defective judgment at times and the defendant has suffered from attention deficit hyperactivity disorder. The Court is reasonably convinced this mitigating factor exists and gives it great weight. (Emphasis supplied.) Thus, there was extensive mental health testimony presented during the penalty phase and the trial judge gave the statutory mitigator of extreme emotional disturbance great weight. Davis cannot establish prejudice such that our confidence in the outcome is undermined. Therefore, we affirm the denial of relief on this claim.

II. PETITION FOR WRIT OF HABEAS CORPUS

Davis raises four claims in his petition for habeas corpus. The first three claims pertain to ineffective assistance of appellate counsel in not raising on direct appeal: (1) the trial court's failure to obtain an on-the-record waiver of Davis's right to testify in the penalty phase; (2) the trial court allowing the victim's mother to remain in the court room; and (3) the trial court admitting inflammatory photographs of the victim. Fourth, Davis argues that his death sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

A. Ineffective Assistance of Appellate Counsel

Habeas petitions are the proper vehicle by which to raise ineffective assistance of appellate counsel claims, and the analysis of these claims follows the two-pronged analysis of Strickland as to both deficient performance and prejudice. See Rutherford v. Moore, 774 So.2d 637, 642 (Fla.2000). Because these claims are presented first to this Court in cases involving the imposition of a death sentence, we are called on to analyze the performance of appellate counsel in handling the defendant's direct appeal. A core principle of ineffective assistance of counsel claims is that “appellate counsel will not be considered ineffective for failing to raise issues that have little or no chance of success.” Spencer v. State, 842 So.2d 52, 74 (Fla.2003). In other words, “[if] a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective.” Rutherford, 774 So.2d at 642 (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)).

In his first habeas claim, Davis argues that his appellate counsel was ineffective for failing to raise on direct appeal the failure of the trial court to obtain an on-the-record waiver by Davis of his right to testify at the penalty phase. Because we have determined that neither the trial court nor counsel erred in not obtaining an on-the-record waiver from Davis, Davis's claim that appellate counsel was ineffective for failing to raise this issue on appeal is without merit.

Davis next argues that appellate counsel was ineffective for not raising on direct appeal that the trial court allowed, over objection, the mother of the victim to remain in the courtroom after testifying. This claim is without merit. Section 90.616, Florida Statutes (1995), provides an exception to the rule of sequestration for a minor child victim's parent, and Davis has been unable to establish how the trial judge abused his discretion in allowing the victim's mother to remain in the courtroom. See Rose v. State, 787 So.2d 786, 804 (Fla.2001) (finding no error in allowing victim's family to remain in courtroom where there was no showing of prejudice to the accused); Gore v. State, 599 So.2d 978, 985 (Fla.1992) (same); see also Stano v. State, 473 So.2d 1282, 1287 (Fla.1985) (finding no error in trial court exempting a deputy clerk from the rule of sequestration where no prejudice to the defendant was shown). Because the underlying claim would not have been successful on direct appeal, appellate counsel cannot be ineffective for failing to raise the issue.

Third, Davis argues that his appellate counsel was ineffective for failing to raise on direct appeal the admission of a series of inflammatory photographs of the victim. Defense counsel objected to the admission of four of these photographs. We have stated that “the admission of photographic evidence is within the trial judge's discretion and a trial judge's ruling on this issue will not be disturbed on appeal unless there is a clear showing of abuse.” Rutherford, 774 So.2d at 646 (quoting Pangburn v. State, 661 So.2d 1182, 1187 (Fla.1995)); see also Carroll v. State, 815 So.2d 601, 621 (Fla.2002). Photographic evidence is relevant to depict the circumstances of the crime, “to assist the crime scene technician in explaining the condition of the crime scene,” Hertz v. State, 803 So.2d 629, 641 (Fla.2001) (quoting Pope v. State, 679 So.2d 710, 713 (Fla.1996)), and to “explain a medical examiner's testimony, to show the manner of death, the location of wounds, and the identity of the victim.” Rutherford, 774 So.2d at 647 (quoting Larkins v. State, 655 So.2d 95, 98 (Fla.1995)).

We have examined the four photographs that were admitted into evidence over trial counsel's objection and the remaining photographs that were introduced without objection. As to the preserved issue of the four photographs, we conclude that appellate counsel could not have shown that the trial court abused its discretion in admitting those photographs. As to the remaining unobjected-to photographs, counsel can only be deemed deficient for failing to raise this issue on appeal if the admission of the unobjected-to photographs constituted fundamental error: We have “repeatedly held that appellate counsel cannot be considered ineffective for failing to raise issues which [were] procedurally barred ... because they were not properly raised at trial”. [As to an unpreserved issue] if it had been raised on appeal, it would have warranted reversal only if it constituted fundamental error, which has been defined as an error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Rutherford, 774 So.2d at 646 (citations omitted); see also Johnson v. Moore, 837 So.2d 343, 347 (Fla.2002) (“[A]ppellate counsel cannot be deemed ineffective for failing to raise [an unpreserved] issue unless the alleged error constitutes fundamental error.”); Valle v. Moore, 837 So.2d 905, 907–08 (Fla.2002) (same).

The admission of these photographs does not constitute error, much less fundamental error, and thus Davis has not demonstrated that any deficiency in appellate counsel's performance “compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Rutherford, 774 So.2d at 647 (quoting Groover v. Singletary, 656 So.2d 424, 425 (Fla.1995)).

B. Ring and Apprendi

Finally, Davis argues that Florida's death penalty statute, section 921.141, Florida Statutes (2003), is unconstitutional based on Apprendi and Ring. We note that Davis's death sentence is supported by both the “committed during the course of a kidnapping and sexual battery” aggravator and a unanimous death recommendation. We have denied relief in direct appeals where there has been a prior violent felony aggravator. See Duest v. State, 855 So.2d 33, 49 (Fla.2003); see also Doorbal v. State, 837 So.2d 940, 963 (Fla.2003) (stating that prior violent felony aggravator based on contemporaneous crimes charged by indictment and on which defendant was found guilty by unanimous jury “clearly satisfies the mandates of the United States and Florida Constitutions”). We have also denied relief to postconviction defendants raising this issue. See Jones v. State, 855 So.2d 611, 619 (Fla.2003); Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002); King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002). Davis is not entitled to relief on this issue.

CONCLUSION

For the above reasons, we affirm the lower courts denial of Davis's rule 3.851 motion for postconviction relief and deny the petition for a writ of habeas corpus. FN9. We also reject the remainder of the claims contained in Davis's postconviction motion and petition for writ of habeas corpus. Davis's claim that his Eighth Amendment rights will be violated because he may be incompetent at the time of execution is premature and without merit as Davis is not under active death warrant at this time. See Hunter v. State, 817 So.2d 786, 799 (Fla.2002); § 922.07, Fla. Stat. (2003); Fla. R.Crim. P. 3.811. Finally, Davis's claim that cumulative error warrants a new trial and penalty phase is without merit as Davis has been unable to demonstrate any error, either individually or collectively. See Atwater v. State, 788 So.2d 223, 228 n. 5 (Fla.2001); Downs v. State, 740 So.2d 506, 509 n. 5 (Fla.1999).

It is so ordered. WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur. WELLS, J., concurs with an opinion, in which CANTERO and BELL, JJ., concur. ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

WELLS, J., concurring. I write to adopt my concurring opinion in Duest v. State, 855 So.2d 33 (Fla.2003), in respect to the Ring claim. CANTERO and BELL, JJ., concur.

ANSTEAD, C.J., concurring in part and dissenting in part. I concur in the majority opinion in all respects with the sole exception of its discussion of the U.S. Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
 

Davis v. Scott, 2014 WL 3407473 (M.D.Fla. 2014). (Habeas)

JAMES D. WHITTEMORE, District Judge.

Eddie Wayne Davis is a State of Florida prisoner under sentence of death and is scheduled to be executed today, Thursday, July 10, 2014, at 6:00 p.m. BEFORE THE COURT are his Emergency Petition for Writ of Habeas Corpus, Complaint for Declaratory and Injunctive Relief Pursuant to 42 U.S.C. § 1983 (Dkt.1), and his Emergency Application for Stay of Execution (Dkt.3). Defendants oppose the Emergency Petition and move to dismiss the claims or, in the alternative, for summary judgment (Dkt.11), and oppose the application for a stay of execution (Dkt.9). Petitioner filed a Reply (Dkt.12). Upon consideration, The Emergency Petition for Writ of Habeas Corpus, Complaint for Declaratory and Injunctive Relief Pursuant to 42 U.S.C. § 1983 is DISMISSED and the Emergency Application for Stay of Execution is DENIED.

In his petition, Davis contends that Florida's clemency proceedings are constitutionally defective and the clemency rules, procedures and customs are facially unconstitutional. He frames the issue as being “whether the Florida clemency procedures comport with the minimum requirements of due process.” The essence of this claim is that he did not receive minimum due process as discussed in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998). He concedes, however, that he received notice of his clemency review, was appointed and represented by counsel during his clemency review, was interviewed with counsel present by the Florida Commission on Offender review, and was permitted to presented evidence during the review.

Factual and Procedural Background

Petitioner Davis was convicted in 1995 of first-degree murder, burglary with assault, kidnapping of a child under 13, and sexual battery on a child. He was sentenced to death. Davis' convictions and sentence were affirmed by the Florida Supreme Court. See Davis v. State, 698 So.2d 1182 (Fla.1997), cert. denied, 522 U.S. 1127, 118 S.Ct. 1076, 140 L.Ed.2d 134 (1998). His collateral attacks on his conviction and sentence have been rejected by the Florida Supreme Court, this Court, and the Eleventh Circuit Court of Appeals. Davis v. State, 875 So.2d 359 (Fla.2003); Davis v. McNeil, 2009 U.S. Dist. LEXIS 30702 (M.D.Fla. Mar. 30, 2009); Case No. 8:04–cv–2549–T–27MAP (M.D.Fla.2004); Davis v. Sec'y, Dept. of Corr., Case No. 09–11907–P (11th Cir.2009) (denying certificate of appealability).

On June 2, 2014, Florida's Governor signed a death warrant for Davis, stating that “executive clemency for EDDIE WAYNE DAVIS, as authorized by Article IV, section 8(a), Florida Constitution, was considered pursuant to the Rules of Executive Clemency and it has been determined that executive clemency is not appropriate.”

On June 9, 2014, Davis filed a successive postconviction motion pursuant to Florida Rules of Criminal Procedure 3.851. Claim III of the motion alleged that his procedural due process rights were violated during the clemency process. The motion was denied, and Davis appealed to the Florida Supreme Court. While the appeal of the denial of his Rule 3.851 motion was pending in the Florida Supreme Court, Davis filed a second petition in state circuit court challenging the clemency process under 42 U.S.C. § 1983. The second petition was likewise denied. On July 7, 2014, the Florida Supreme Court affirmed both decisions in separate orders and denied Davis' application for a stay of execution. See Davis v. State, No. SC14–1178, 2014 WL 3034008, at *8–9 (Fla. July 7, 2014); Davis v. Scott, No. SC14–1286, Slip Op. at 2 (Fla. July 7, 2014) (unpublished). Davis' petition for writ of certiorari and application for stay of execution filed with the United States Supreme Court are pending. FN1. Neither party requests that this Court abstain from addressing the petition, notwithstanding that identical claims are pending before the United States Supreme Court.

Writ of Habeas Corpus

Habeas actions and § 1983 actions “are mutually exclusive.” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir.2006) (“[I]f a claim can be raised in a federal habeas petition, that same claim cannot be raised in a separate § 1983 civil rights action.”). The Complaint does not challenge the fact or duration of Davis' imprisonment. Rather, it challenges the constitutionality of his clemency proceedings and Florida's clemency procedures. These claims are not cognizable in a habeas proceeding brought under § 2254. See Valle v. Sec'y Fla. Dep't of Corr., 654 F.3d 1266, 1268 (11th Cir.2011) (“Valle's constitutional claims about clemency procedures are collateral to his conviction and sentence, and are not cognizable in this § 2254 proceeding. His complaint about Florida's clemency procedures may only be brought under 42 U.S .C. § 1983.”). Accordingly, Davis' petition for habeas corpus is due to be dismissed.

Standard for Stay of Execution

A stay of execution is equitable relief which may be granted only if the moving party shows that: “(1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest.” Mann v. Palmer, 713 F.3d 1306, 1310 (11th Cir.2013) (quoting Valle v. Singer, 655 F.3d 1223, 1225 (11th Cir.2011)). Davis' application for stay of execution fails at the first step of the analysis because his challenge to the clemency process is barred by res judicata. Even if his claims were not precluded, they are due to be dismissed on the merits.

Res Judicata

Respondent contends that these claims are barred by res judicata. In this Circuit, a party seeking to invoke res judicata must satisfy four elements: (1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action. Mann v. Palmer, 713 F.3d 1306, 1311 (11th Cir.2013) (quoting In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir.2001)). “The court next determines whether the claim in the new suit was or could have been raised in the prior action; if the answer is yes, res judicata applies.” In re Piper Aircraft, 244 F.3d at 1296.

The elements of res judicata are met here. The state circuit court and the Florida Supreme Court, both of which were vested with jurisdiction, both rendered final judgment on the merits of Davis' clemency claims. See Davis v. State, No. SC14–1178, 2014 WL 3034008, at *8–9 (Fla. July 7, 2014); Davis v. Scott, No. SC14–1286, Slip Op. at 2 (Fla. July 7, 2014) (unpublished). Those proceedings involved the same parties and the same causes of action as those asserted in this action.FN2 Davis' constitutional challenge to the clemency proceedings is identical to those brought in state court, and is therefore barred by res judicata. Accord Muhammad v. Sec'y, Fla. Dep't of Corr., 739 F.3d 683, 685, 688 (11th Cir.2014) ( section 1983 action barred by res judicata when petitioner raised the same claim in state court and claim was rejected by the Florida Supreme Court). FN2. It is of no moment that Davis' first challenge to the clemency procedures was brought in his successive postconviction motion pursuant to Florida Rules of Criminal Procedure 3.851. See Mann, 713 F.3d at 1311 (if cases arise out of “the same nucleus of operative fact,” or are based “on the same factual predicate,” they are the same “claim” or “cause of action” for purposes of res judicata).

Constitutional Claims on Clemency Procedure

Even if Davis' claims are not barred by res judicata, they fail on the merits. In Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), a 5–4 majority of the Court held that basic elements of fair procedure and due process are required in clemency proceedings. See id. at 289 (O'Connor, J., concurring in part and concurring in the judgment) FN3 (“[S]ome minimal procedural safeguards apply to clemency proceedings.”); id. at 292 (Stevens, J., concurring in part and dissenting in part) (“[I]f a State adopts a clemency procedure as an integral part of its system for finally determining whether to deprive a person of life, that procedure must comport with the Due Process Clause.”). The remaining four Justices did not determine whether clemency proceedings were subject to procedural due process, concluding only that clemency is “a matter of grace committed to the executive authority.” Id. at 285 (plurality opinion). FN4 Justice O'Connor concluded that the process the petitioner received, notice of the hearing and an opportunity to participate in an interview, comported with “whatever limitations the Due Process Clause may impose on clemency proceedings.” Id. at 290. The Chief Justice's plurality opinion makes clear that if minimal procedural due process was required for the clemency process, the four Justices in the plurality would concur with Justice O'Connor that those minimal requirements were met by notice and an opportunity to participate in an interview.FN5

FN3. Justice O'Connor's opinion was joined by Justices Souter, Ginsburg, and Breyer. Id. at 288. FN4. This holding was contained in Part II of the plurality opinion written by Chief Justice Rehnquist, which was joined by Justices Scalia, Kennedy, and Thomas. Id. at 275. FN5. Justice Stevens would have remanded the case to the District Court for a determination of whether the procedures meet the minimum requirements of due process. Id. at 295 (Stevens, J., concurring in part and dissenting in part).

It is undisputed that Davis received notice of his clemency hearing, was represented by clemency counsel during the process, and was interviewed by the Florida Commission on Offender Review, during which he was permitted to present a video and other evidence. This process met minimum due process requirements and exceeded the procedure extended to the petitioner in Woodard and therefore does not violate the Procedural Due Process Clause of the Fourteenth Amendment. Accord Mann, 713 F.3d at 1316–17 (no procedural due process claim where Governor conducted clemency hearing, with notice, and prisoner was represented by counsel).

Petitioner's contention that the Governor's exercise of “unfettered discretion” deprived him of due process is unavailing. “The Constitution of the State of Florida vests in the Governor, with the approval of two of his cabinet members, the discretion to commute the punishment of individuals not convicted of treason or impeachment. Fla. Const. Art. 4, § 8.” Mann, 713 F.3d at 1316; See also Rule 8, Florida Rules of Executive Clemency. Since clemency is committed to the discretion of the Governor, due process provides only minimal protection for death row inmates in the clemency process. Mann, 713 F.3d at 1316. As for Davis' complaint that he did not have access to certain confidential clemency documents, including his own file, minimum due process requirements do not mandate that Davis have access to confidential clemency documents. See Woodard, 523 U.S. at 285 (“executive's clemency authority would cease to be a matter of grace committed to the executive authority if it were constrained by the sort of procedural requirements that respondent urges”). As discussed, Davis' clemency process met minimum due process requirements.

Davis' contention that the Governor was predisposed to deny clemency likewise fails to demonstrate a substantial likelihood of success on the merits. The 2011 letter authored by an assistant legal counsel Davis relies on was written some three years before the Governor denied clemency in 2014, after a full clemency hearing. Nothing in this record, including the speculative assertions Davis draws from that letter, supports judicial intervention. See Woodard, 523 U.S. at 289 (O'Connor, J., concurring in part and concurring in the judgment) (“Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.”). Even if the letter might suggest a predisposition on the part of the Governor, that does mean that the Governor and his cabinet members did not fulfill their duty to consider clemency. See Joubert v. Nebraska Bd. of Pardons, 87 F.3d 966, 969 (8th Cir.1996), cert. denied, 518 U.S. 1035, 117 S.Ct. 1, 135 L.Ed.2d 1097 (1996) (“Although these statements might reflect the members' predisposition, such predisposition does not mean that the members failed to fulfill their statutorily imposed duty to consider the application.”).

Under Woodard, minimum due process required only that Davis receive notice and an opportunity to be heard as part of the clemency process. That, he received. Accordingly, he has not demonstrated a substantial likelihood of success on the merits.

Conclusion