Executed May 29, 2013 06:12 p.m. EST by Lethal Injection in Florida
13th murderer executed in U.S. in 2013
1333rd murderer executed in U.S. since 1976
2nd murderer executed in Florida in 2013
76th murderer executed in Florida since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(13) |
|
Elmer Leon Caroll W / M / 34 - 56 |
Christine McGowan W / F / 10 |
Citations:
Carroll v. State, 636 So.2d 1316 (Fla. 1994). (Direct Appeal)
Carroll v. State, 815 So.2d 601 (Fla. 2002). (PCR)
Carroll v. Secretary, DOC, 574 F.3d 1354 (11th Cir. 2009). (Habeas)
Final / Special Meal:
Sunny-side-up eggs with bacon and sliced tomatoes, biscuits, avocados, a fruit salad of strawberries, papaya, peaches and pineapple, and canned milk.
Final Words:
None.
Internet Sources:
"Florida executes man who raped and killed 10-year-old girl." (Wed May 29, 2013 9:32pm EDT)
MIAMI (Reuters) - A man convicted of raping and strangling a 10-year-old girl who lived next door to the halfway house where he resided more than 20 years ago was executed in Florida on Wednesday, a state prison official said. Elmer Leon Carroll, 56, was pronounced dead at 6:12 p.m. EDT from a lethal injection at the Florida State Prison near Starke, said Ann Howard, a spokesperson for the Florida Department of Corrections.
Carroll was convicted in the 1990 murder of Christine McGowan. Police said Carroll, who lived at a halfway house for ex-convicts and homeless men, broke into the girl's home while her stepfather slept and her mother was at work, and assaulted the fifth-grader in her bed. A Florida jury gave him the death sentence him two years later for murder and sexual battery. The judge in the case called the crime "savage and barbaric."
The execution came as death penalty opponents in Florida plan to present petitions to Governor Rick Scott on Thursday urging him to veto a bill recently passed by the state's legislature that would speed up the death penalty process. The "Timely Justice Act" would set deadlines for condemned killers to file appeals and post-conviction motions in a state that has 404 inmates on death row, more than any other state except California. Supporters of the bill say they want to prevent frivolous appeals that are costly and only end up delaying the executions. Some opponents warn speeding up the process could lead to innocent prisoners being executed.
Before McGowan's killing, Carroll had previously been convicted twice for molesting children. During his trial, a resident at the halfway house said Carroll told him the girl was "cute" and "liked to watch him make boats," according to court documents. Authorities found blood and other evidence at the scene that tied Carroll to the crime.
A last-minute appeal by his lawyers to the U.S. Supreme Court was denied shortly before the execution. Carroll's attorneys argued he was mentally ill when he committed the murder. Carroll was the thirteenth person executed in the United States this year, according to the Death Penalty Information Center.
"Man executed for rape and murder of girl, 10." (Associated Press Wednesday, May 29, 2013 4:30am)
STARKE — A convicted child molester condemned for the 1990 rape and murder of a 10-year-old Apopka girl was executed Wednesday at the Florida State Prison. Elmer Carroll, 56, was pronounced dead at 6:12 p.m. Wednesday after receiving an injection at the prison in Starke, Gov. Rick Scott's office said.
Carroll was sentenced to die for first-degree murder and sexual battery in the rape and strangling death of Christine McGowan. The girl lived with her family next door to a halfway house for homeless men where Carroll was staying in Apopka.
Five of Christine's family members were among those witnessing the execution. Two of them hugged before walking out, but they did not address the media. When prison officials asked whether he wished to make a final statement, Carroll said, "No sir." A few minutes after the injection procedure began at 6:01 p.m., witnesses could see Carroll's chest rising and falling, and at one point he puffed his cheeks out. He was pronounced dead after a prison physician checked him with a stethoscope.
During Carroll's two decades on death row, his lawyers argued that he was too mentally ill to stand trial or be subjected to the death penalty. The U.S. Supreme Court denied that petition. On Wednesday morning, Carroll ate a last meal of eggs with bacon and biscuits. Carroll had two visitors Wednesday morning — a mitigation specialist and a Catholic priest. No family members visited.
Florida Department of Corrections
DC Number: 835908Incarceration History:
In: 01/10/1980
Out: 05/26/1982
In: 02/02/1983
Out: 04/16/1990
In: 05/29/1992
Out: 05/29/2013
Current Prison Sentence History:
Offense Date-Offense-Sentence Date-County-Case No.-Prison Sentence Length
06/29/1990
AGG BATTERY/W/DEADLY WEAPON
04/16/1992
ORANGE
9011647
15Y 0M 0D
10/28/1990
1ST DEG MUR,COM.OF FELONY
04/16/1992
ORANGE
9012464
DEATH SENTENCE
10/28/1990
SEX BAT BY ADULT/VCTM LT 12
04/16/1992
ORANGE
9012464
SENTENCED TO LIFE
Prior Prison History:
Offense Date-Offense-Sentence Date-County-Case No.-Prison Sentence Length
03/26/1976
L/L, INDEC.ASLT CHILD U/16
01/08/1980
PASCO
6Y 0M 1D
11/14/1982
L/L, INDEC.ASLT CHILD U/16
02/01/1983
PASCO
8202170
15Y 0M 0D
Death Row: Elmer Carroll, 56, was put to death by lethal injection for the rape and murder of Christine McGowan, 10
A convicted child molester condemned for the 1990 rape and murder of a 10-year-old Florida girl was executed Wednesday at the Florida State Prison. Elmer Carroll, 56, was pronounced dead at 6:12 p.m. Wednesday after an injection at the prison in Starke, Florida Gov. Rick Scott's office said. Carroll was sentenced to die for first-degree murder and sexual battery in the rape and strangling death of Christine McGowan. The girl lived with her family next door to a halfway house for homeless men where Carroll was staying in Apopka.
Five of Christine's family members were among those witnessing the execution. Two of them hugged before walking out, and the family issued a statement read to the media by Corrections Department spokeswoman Ann Howard. "Thank you to all that have worked so hard, and justice for all, namely, Christine McGowan. Rest in peace," said the statement from family member Julie McGowan.
Carroll said "no sir" when prison officials asked if he wished to make a final statement. A few minutes after the injection procedure began at 6:01 p.m., witnesses could see Carroll's chest rising and falling, and at one point he puffed his cheeks out. He was pronounced dead after a prison physician checked him with a stethoscope.
During Carroll's two decades on death row, his lawyers argued he was too mentally ill to stand trial or be subjected to the death penalty. The U.S. Supreme Court denied that petition. Carroll, who had been imprisoned twice for indecent assault on a child, had told one of his housemates that the Christine was "cute, sweet and liked to watch him make boats," according to witness testimony at his trial.
Christine's stepfather found the girl dead in her bedroom and noticed that his truck was missing. The truck was found a short time later and an officer came upon Carroll — who had blood on his sweatshirt and genitals, while traces of his semen, saliva and pubic hair were found on Christine, according to court records. Carroll's lawyers employed the insanity defense at his trial, during which they and prosecutors presented conflicting testimony from psychiatrists about Carroll's mental competency.
Carroll had two visitors Wednesday morning, a mitigation specialist and a Catholic priest. No family visited. He also ate a last meal that included eggs, bacon, biscuits, fruit salad and a whole sliced tomato.
His last appeal rejected by the Florida Supreme Court, Elmer Carroll died by lethal injection Wednesday for the 1990 murder of Christine McGowen, a 10-year-old girl from northwest Orange County.
Carroll, 56, died at 6:12 p.m. at Florida State Prison in Starke, the Florida Department of Corrections said. Carroll declined to make a final statement, but Christine's mother, Julie McGowen, issued one: "Thank you to all that have worked so hard, and justice for all, namely, Christine McGowen. Rest in peace."
Carroll raped and strangled Christine in her bed Oct. 30, 1990 while her stepfather slept in another room and her mother was at work. The family lived next door to the halfway house where Carroll was staying after his release from prison. He was convicted of lewd conduct with two other children before he met Christine.
At 10 a.m. Wednesday, Carroll ate a last meal of sunny-side-up eggs with bacon and sliced tomatoes, biscuits, avocados, a fruit salad of strawberries, papaya, peaches and pineapple and canned milk. He had two visitors — death-penalty opponents Susan Cary, a lawyer, and Dale Recinella, a Catholic lay chaplain, author and lawyer.
Orange-Osceola State Attorney Jeff Ashton, who prosecuted the case, attended the execution. "For me, it's completion," Ashton said. At 5 p.m., the Catholic Diocese of Orlando held a service at St. James Cathedral to pray for the death penalty to be abolished. "It's a destructive tool rather than a preventive tool," Bishop John Noonan told about 30 people assembled for the service.
Carroll was written up 20 times in more than 20 years on death row for prison infractions including attempted arson, possession of contraband and, in December, for making threats
On October 30, 1990, at about 6 a.m., Robert Rank went to awaken his ten-year-old stepdaughter, Christine McGowan, at their home in Apopka. When she did not respond to his calls, Robert went to her bedroom and found the door closed when it had been open the night before. She was face-down, under the covers. After shaking the bed, Robert removed the blankets and turned Christine over, then realized she wasn't breathing and was cold to the touch. Shortly thereafter, Robert noticed that his front door was slightly ajar and that his pickup truck he had parked in the yard with the keys in it the night before was missing. When the police arrived, they determined that Christine had been raped and strangled.
Robert Rank said he had locked the door after Christine's mother Julie had left for work around 9:00 pm. He went to bed around 11:00 pm. A BOLO was issued for the missing truck, which was a white construction truck bearing the logo ATC on the side. Shortly thereafter, the truck was seen parked on the side of a highway and 34-year-old Elmer Carroll was observed walking about one mile down the road from the truck. Carroll, who had been released from prison just a few months earlier, was subsequently stopped and searched, and the keys to the truck were found on Carroll.
Two witnesses had also observed Carroll driving the truck earlier that morning. Blood was found on Carroll's sweatshirt and genitalia, and semen, saliva, and pubic hair recovered from the victim were consistent with that of Carroll. The keys to Robert's truck were found in Carroll's possession. Carroll had been living in a travel trailer at the Lighthouse Mission since his release from prison. Christine's house was adjacent to the mission. Carroll had remarked to other residents of the mission about the "cute" girl next door.
The jury convicted Carroll of both charges and recommended death for the first-degree murder conviction by a vote of twelve to zero. The trial court followed the jury's recommendation and sentenced Carroll to death. In so doing, the trial court found the following three aggravating factors: (1) Carroll was previously convicted of two felonies involving the use or threat of violence to the person; (2) the capital felony was committed while Carroll was engaged in the commission of a sexual battery; and (3) the capital felony was especially heinous, atrocious, or cruel. The trial court found no statutory mitigating circumstances, but found as a non-statutory mitigating circumstance that Carroll suffered from "some possible mental abnormalities and has an antisocial personality."
Following is a list of inmates executed since Florida resumed executions in 1979:
1. John Spenkelink, 30, executed May 25, 1979, for the murder of traveling companion Joe Szymankiewicz in a Tallahassee hotel room.
2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983, for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt.
3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud.
4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976.
5. James Adams, 47, died in the electric chair on May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt.
6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times.
7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.
8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..
9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23, 1974, murder of 81-year-old Orlando civil rights leader Zellie L. Riley.
10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.
11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville police Officer Michael Stewart on April 27, 1975.
12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.
13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.
14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.
15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.
16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.
17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.
18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.
19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County.
20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.
21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in Ocala.
22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.
23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.
24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.
25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the April 27, 1977, shooting murder of scrap metal dealer David Drake in Pinellas County.
26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981, sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach.
27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975, murder of drug informant Titus R. Walters in Key West.
28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store.
29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981, slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution.
30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.
31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.
32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.
33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978.
34. Bernard Bolander, 42, executed July 18, 1995, for the Dade County murders of four men, whose bodies were set afire in car trunk on Jan. 8, 1980.
35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981.
36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981.
37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.
38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.
39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.
40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.
41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.
42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.
43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.
44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.
45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.
46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.
47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.
48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.
49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.
50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.
51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.
52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.
53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.
54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.
55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.
56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.
57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.
58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.
59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.
60. Glen Ocha, 47, was executed by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.
61. Clarence Hill 20 September 2006 lethal injection Stephen Taylor Jeb Bush
62. Arthur Dennis Rutherford 19 October 2006 lethal injection Stella Salamon Jeb Bush
63. Danny Rolling 25 October 2006 lethal injection Sonja Larson, Christina Powell, Christa Hoyt, Manuel R. Taboada, and Tracy Inez Paules
64. Ángel Nieves Díaz 13 December 2006 lethal injection Joseph Nagy
65. Mark Dean Schwab 1 July 2008 lethal injection Junny Rios-Martinez, Jr.
66. Richard Henyard 23 September 2008 lethal injection Jamilya and Jasmine Lewis
67. Wayne Tompkins 11 February 2009 lethal injection Lisa DeCarr
68. John Richard Marek 19 August 2009 lethal injection Adela Marie Simmons
69. Martin Grossman 16 February 2010 lethal injection Margaret Peggy Park
70. Manuel Valle 28 September 2011 lethal injection Louis Pena
71. Oba Chandler 15 November 2011 lethal injection Joan Rogers, Michelle Rogers and Christe Rogers
72. Robert Waterhouse 15 February 2012 lethal injection Deborah Kammerer
73. David Alan Gore 12 April 2012 lethal injection Lynn Elliott
74. Manuel Pardo 11 December 2012 lethal injection Mario Amador, Roberto Alfonso, Luis Robledo, Ulpiano Ledo, Michael Millot, Fara Quintero, Fara Musa, Ramon Alvero, Daisy Ricard.
75. Larry Eugene Mann 10 April 2013 lethal injection Elisa Nelson
76. Elmer Leon Carroll 29 May 2013 lethal injection Christine McGowan
Florida Commission on Capital Cases
Inmate: Carroll Elmer
Last Action
06/08/05 USDC 05-857 Habeas
Current Attorney: Reiter, Michael P., Venice, FL
Last Updated: 2008-01-09 12:32:11.0
Case Summary:
Ninth Judicial Circuit, Orange County, Case #90-12464
Circumstances of Offense:
Elmer Carroll was convicted and sentenced to death for the murder of 10-year-old Christine McGowan on 10/30/90.
Robert Rank attempted to wake his stepdaughter, Christine McGowan, on the morning of 10/30/90 and, when she did not answer his calls, Rank went to McGowan’s room. He noticed her door, which was open the night before, was closed. Upon entering the room, Rank discovered McGowan face down on the bed. She had blood between her legs and her body was cold to the touch. Rank then noticed that the front door was slightly open and his construction truck was missing. Police investigators at the scene determined that McGowan had been raped and strangled to death, and issued a bulletin regarding the stolen construction truck.
Upon hearing a radio bulletin regarding the stolen construction truck, Debbie Hyatt notified police that she remembered seeing the abandoned truck and a man, later identified as Elmer Carroll, walking easterly away from the truck. As a result of Hyatt’s tip, Carroll was arrested. When law enforcement officers searched Carroll for weapons, they found a box cutter and the keys to the stolen construction truck.
Information presented at trial revealed that Carroll was a resident of the halfway house located next door to the victim’s home and that Carroll had remarked to other residents about the “cute” girl next door. DNA evidence recovered from the scene matched Carroll’s saliva, semen and pubic hair, and after his arrest, blood was found on Carroll’s sweatshirt and penis.
Prior Incarceration History in the State of Florida:
Offense Date: 03/26/1976
Offense Date: 11/14/1982
Trial Summary:
10/30/90 Defendant arrested.
11/26/90 Defendant indicted on: Count I: First-Degree Murder, Count II: Sexual Battery Under 12
04/13/92 The jury found the defendant guilty on both counts.
04/13/92 Upon advisory sentencing, the jury, by a 12 to 0 majority, voted for the death penalty.
04/16/92 The defendant was sentenced as follows: Count I: First-Degree Murder – Death; Count II: Sexual Battery W/ Victim Under 12 – Life
Appeal Summary:
Florida Supreme Court – Direct Appeal
05/07/92 Appeal filed.
United States Supreme Court – Petition for Writ of Certiorari
State Circuit Court – 3.850 Motion
Florida Supreme Court – 3.850 Appeal
Florida Supreme Court – Petition for Writ of Habeas Corpus
State Circuit Court – 3.850 Motion
Florida Supreme Court – 3.850 Appeal
United States District Court, Middle District – Petition for Writ of Habeas Corpus
United States Court of Appeals, 11th Circuit – Habeas Appeal
United States Supreme Court – Petition for Writ of Certiorari
Factors Contributing to the Delay in the Imposition of the Sentence:
In December 1994, Carroll was granted a time extension in filing a Motion to Vacate Judgment and Sentence (3.850) until February 1, 1996. Statutorily, a defendant has one year from the rehearing denial date in which to file a 3.850 Motion. With his motion for rehearing denied on 06/09/94, the time lapse between filing was approximately one year and seven months. Other than the filing extension, there have been no unreasonable delays at this time.
Case Information:
Carroll filed a Direct Appeal in the Florida Supreme Court on 05/07/92. In that appeal, Carroll alleged that the keys that linked him to Rank’s construction truck should have been suppressed as evidence because they were found as a result of an illegal arrest. Next, Carroll contended that testimony of one of the deputies unfairly and prejudicially commented on his refusal to testify, and he also argued several improper questions asked of a psychiatrist on cross-examination by the prosecutor. In reference to the penalty phase of the trial, Carroll argued the application of the heinous, atrocious, and cruel (HAC) aggravating factor and that the trial court erred in failing to consider certain statutory mitigating evidence. The Florida Supreme Court affirmed the convictions and sentence of death on 04/14/94.
Subsequently, Carroll filed a Petition for Writ of Certiorari in the United States Supreme Court, which was denied on 10/31/94.
On 02/01/96, Carroll filed a Motion to Vacate Judgment and Sentence (3.850) in the State Circuit Court. That motion was denied on 10/20/98, after which Carroll filed an appeal in the Florida Supreme Court on 12/31/98, which was denied on 03/07/02.
Carroll also filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court on 01/10/00, which was denied on 03/07/02.
On 4/22/03, Carroll filed another 3.850 Motion in the State Circuit Court that was denied on 01/12/04. Carroll filed an appeal of that decision in the Florida Supreme Court on 02/09/04. On 05/12/05, the FSC affirmed the denial of the Motion.
Carroll filed a Petition for Writ of Habeas Corpus with the U.S. District Court, Middle District, on 06/08/05 that was denied on 06/20/08.
On 12/04/08, Carroll filed a Habeas Appeal with the United States Court of Appeals. The United States Court of Appeals affirmed the lower courts disposition and denied the Petition for Writ of Habeas Corpus.
On 08/24/09, Carroll filed a Petition for Writ of Certiorari with the United States Supreme Court that was denied on 11/02/09.
Institutional Adjustment:
DATE DAYS VIOLATION LOCATION
10/14/92 30 POSS OF UNAUTH BEV. FSP
Carroll v. State, 636 So.2d 1316 (Fla. 1994). (Direct Appeal)
Defendant was convicted in Circuit Court, Orange County, Belvin Perry, J., for first-degree murder and sexual battery on child under 12 years old, was sentenced to death, and he appealed. The Supreme Court held that: (1) officer had grounds for investigatory stop of defendant who was walking alone on highway, and keys taken from defendant during search for weapons were not fruit of illegal arrest, and (2) trial court properly found that murder was especially heinous, atrocious or cruel and that defendant was able to appreciate criminality of his conduct and could have conformed his conduct to requirements of law. Affirmed. Shaw, J., concurred in result only.
PER CURIAM.
Elmer Leon Carroll appeals his convictions for first-degree murder and sexual battery on a child under twelve years old and his resulting sentences, including the sentence of death. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution, and affirm the convictions and sentences.
On October 30, 1990, at about 6 a.m., Robert Rank went to awaken his ten-year-old stepdaughter, Christine McGowan, at their home in Apopka. When she did not respond to his calls, Rank went into her bedroom and found her dead. Shortly thereafter, Rank noticed that his front door was slightly ajar and that his pickup truck he had parked in the yard with the keys in it the night before was missing. When the police arrived, they determined that Christine had been raped and strangled. A BOLO was issued for the missing truck, which was a white construction truck bearing the logo ATC on the side.
Debbie Hyatt saw a white pickup truck parked near her residence east of Orlando on Highway 50 as she left for work about 6:50 a.m. About a mile down the road, she saw a man whom she later identified as Carroll walking in an easterly direction along the highway away from the truck. She described him as having long scraggly hair and wearing a brown jacket. She did not think too much about it until she later heard over the radio that the police were looking for a white pickup truck bearing the ATC logo. After checking to see that the truck she had seen had the ATC logo described in the radio bulletin, she called the police. When sheriff's deputies arrived, she told them about first seeing the truck and the man walking down the road.
Carl Young, a state wildlife officer, was travelling on State Road 520 in Orange County on the morning of October 30, 1990. At a point near the intersection of Highway 50, Young noticed a man with shoulder length hair wearing a brown jacket walking down the highway. Young thought this was strange because he was not carrying anything. The man looked back over his shoulder at Young as he passed. After turning onto Highway 50 and proceeding west, he saw a deputy sheriff behind a white pickup truck with his revolver drawn. Young went back to the scene to render assistance. By this time, another deputy had arrived, and he heard Debbie Hyatt tell them about the man she had seen walking down the highway away from the truck. Young recalled that her description resembled the person that he had just passed. Young drove back to where Carroll was continuing to walk down the road. Young called to him, but he kept on walking. Young pulled his gun and ordered Carroll to lie down on the ground. Young made a search for weapons and found a box cutter razor blade and some keys. Through radio communication with a deputy who remained at Rank's truck, it was determined that a number on the keys matched a number on the truck. Young and a deputy who had arrived to assist him then placed Carroll under arrest.
At the trial, two other witnesses testified that they had seen the man they identified as Carroll about 6 a.m. at a 7–11 store near Apopka. The witnesses said that Carroll was driving a white truck with the ATC logo. It was also discovered that Carroll was a resident of a halfway house located next door to the Rank home. A resident of the halfway house testified that Carroll had told him that the girl who lived next door was “cute, sweet and liked to watch him make boats.” She was seen talking to a man next door who may have been Carroll the day before the murder. Semen, saliva, and pubic hair recovered from the victim were consistent with that of Carroll. One DNA profile of a specimen obtained from the victim matched Carroll's DNA profile. Blood was found on Carroll's sweatshirt and on his penis.
In addition to contesting guilt, Carroll raised the defense of insanity. The State and the defense presented conflicting psychiatric testimony on the issue of competence. The jury found Carroll guilty of both charges. Following a penalty phase proceeding, the jury returned a recommendation of death by a vote of 12–0. Thereafter, the trial judge sentenced Carroll to death.
GUILT PHASE
Carroll first argues that the court should have suppressed the keys that tied *1318 him to Rank's truck because he had been illegally arrested when the keys were discovered. He insists that he had been arrested without probable cause by the time he was held at gunpoint and made to lie down on the ground. He asserts that the keys and all the evidence seized from his person, including the hair and blood samples, and the DNA test must be suppressed as fruits of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The State responds that Carroll was not arrested until after the keys were found and that the trial judge was correct in finding that Carroll had been stopped upon a well-founded or reasonable suspicion. The State says that the keys were properly seized pursuant to Officer Young's search for weapons. We agree.
The fact that Carroll had been seen walking along a deserted highway in the vicinity of and in a direction away from the abandoned truck, together with the other circumstances known to Officer Young, were sufficient for him to temporarily detain Carroll pursuant to the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The stop was not necessarily converted into an arrest because the officer drew his gun and directed Carroll to lie on the ground. See State v. Ruiz, 526 So.2d 170 (Fla. 3d DCA) (investigatory stop not converted into arrest even though officers with guns drawn directed defendant to lie prone on the ground), review denied, 534 So.2d 401 (Fla.1988), cert. denied, 488 U.S. 1044, 109 S.Ct. 872, 102 L.Ed.2d 995 (1989); State v. Perera, 412 So.2d 867 (Fla. 2d DCA) (fact that officers had weapons drawn did not convert temporary detention into formal arrest), review denied, 419 So.2d 1199 (Fla.1982).
During the course of an investigatory stop, the police are entitled to take such action as is reasonable under the circumstances. Reynolds v. State, 592 So.2d 1082 (Fla.1992). Because Officer Young was questioning a person who may have recently committed a murder, he was justified in being concerned, and his actions were reasonable. He was entitled to make a search for weapons, and found a razor blade during the search. The officer testified that he then felt an object in Carroll's pocket which was hard to his touch. He said he thought that it might be a weapon. When he removed it, he found that it was a set of keys. There is sufficient evidence in the record to support the trial judge's denial of the motion to suppress. See Doctor v. State, 596 So.2d 442 (Fla.1992) (in the course of legitimate frisk for weapons during temporary stop, police may seize weapons or objects which reasonably could be weapons).
Carroll also complains that in his testimony one of the deputies made two unsolicited remarks which were fairly susceptible of being interpreted by the jury as a comment on Carroll's failure to testify. The trial court denied defendant's motions for mistrial, and in each instance offered to give a curative instruction which was refused. At the outset, we do not believe that the statements at issue were fairly susceptible as being interpreted as comments upon Carroll's failure to testify. In any event, even if they could have been so interpreted, we are convinced beyond a reasonable doubt that any error was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). See Brannin v. State, 496 So.2d 124 (Fla.1986) (impermissible comment on right to remain silent held harmless error where actual guilt was largely uncontested and primary theory of defense was based on insanity).
Carroll also complains of certain questions the prosecutor asked Dr. Danziger, a psychiatrist, on cross-examination. Dr. Danziger had studied Carroll's previous medical records in preparation for his testimony that Carroll was insane at the time the crime was committed by reason of an alcoholic blackout. The prosecutor asked him whether he considered among those records the reports of two instances in which Carroll had used the theory of an alcoholic blackout to defend against charges of committing sexual acts with children. After the defense's objection and motion for mistrial were denied, the doctor admitted that the records reflected these facts, but he did not know whether they were so. Contrary to Carroll's argument, the prosecutor was entitled to cross-examine Dr. Danziger as to those portions of the records which he admitted he *1319 considered that were inconsistent with his diagnosis. See Parker v. State, 476 So.2d 134 (Fla.1985).
The prosecutor also asked Dr. Danziger if Carroll had been in State custody for most of the last ten years and if, during that time, he had been subject to frequent observation by mental health professionals. The purpose of the question was to demonstrate that on only one occasion had any mental health professional recorded an act which could be classified as a psychotic symptom such as that testified to by Dr. Danziger. Considering the minimal relevance of the inquiry, we believe that the prosecutor's reference to state custody was erroneous and that defendant's objection should have been sustained. However, the error was harmless beyond a reasonable doubt. Finally, Dr. Danziger was asked whether or not Carroll would still desire to have sex with young children when his schizophrenia was in remission. The judge properly sustained the objection. We find no abuse of discretion in the denial of the defendant's motion for mistrial. See Johnston v. State, 497 So.2d 863 (Fla.1986).
We summarily deny Carroll's contention that the trial judge erred in denying his motions with respect to the propriety of the DNA testing. See Correll v. State, 523 So.2d 562 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988); Robinson v. State, 610 So.2d 1288 (Fla.1992), cert. denied, 510 U.S. 1170, 114 S.Ct. 1205, 127 L.Ed.2d 553 (1994). Defense counsel was permitted to voir dire and extensively cross-examine the State's expert.
PENALTY PHASE
In his sentencing order, the trial judge found three aggravating circumstances: (1) Carroll was previously convicted of two previous felonies involving the use or threat of violence to the person; (2) the capital felony was committed while Carroll was engaged in the commission of a sexual battery; (3) the capital felony was especially heinous, atrocious, or cruel. The judge found no statutory mitigating factors but concluded as a statutory mitigating factor that Carroll suffered from “some possible mental abnormalities and has an antisocial personality.”
Carroll first argues that the court improperly found that the murder was especially heinous, atrocious, or cruel. On this point, the trial judge made the following findings:
On the evening of October 29, 1990, Christine McGowan went to bed at approximately 8:00 p.m. She was alone at home with her step-father, Robert Rank. Mr. Rank went to bed around 11:00 p.m. He got up at about 12:00 a.m. to get a drink of tea. Prior to returning to bed he checked on Christine and did not find anything amiss.
Mr. Rank woke up just before 6:00 a.m. and went out to check on the noise being made by a dog. He then went to Christine's room, where he found the door closed. (The door to her room was open at 12:00 a.m.) He opened the door and found Christine face down on the bed. While attempting to wake her, he noticed blood between her legs and that she felt cold. Mr. Rank then summoned help.
Dr. Thomas Hegert testified at the trial and the sentencing hearing to the following:
1. That he performed an autopsy on Christine McGowan on October 30, 1990.
2. That the cause of death in this case was due to asphyxia or lack of oxygen to the brain as a result of mechanical obstruction of the airway, i.e., strangulation.
3. That the victim had injuries to her mouth-upper lip that was consistent with someone holding a hand over the child's mouth and pressing downward.
4. That the victim had a blunt force trauma injury to the left side of her head that was consistent with a blow to the head.
5. That the victim had injuries to her neck that consisted of abrasions and contusions.
6. That the victim's vagina was torn between 4:00 o'clock and 8:00 o'clock and there were contusions around the vagina. That these injuries were consistent with sexual intercourse.
7. That the type of pain that the victim experienced as a result of the tearing or ripping of her vagina was consistent with the pain associated with child birth.
8. That there was a blue contusion about the anal opening of the victim, along with redness and irritation of the rectum of the victim. Dr. Hegert said those injuries were consistent with attempted penetration of the anus by a penis or other object of similar configuration.
9. That the blow to the head of the victim would not have caused her to become unconscious and he was of the opinion that she was conscious during this ordeal.
10. That it would take 3 to 4 minutes to cause death by complete obstruction of the airways.
11. That the victim would be conscious 1 to 2 minutes before losing consciousness.
12. That the victim would be aware of what was going on and would be subject to the fear and apprehension of not being able to breathe.
13. That the victim was alive and conscious when the injuries to her vagina occurred and could feel pain.
The evidence clearly establishes beyond a reasonable doubt that young Christine McGowan did not meet a swift, merciful and relatively painless death. The Defendant on the night in question entered her home without leaving a sign of forced entry. The evidence showed Christine McGowan received a blow to her head, as she was more than likely trying with all the fiber of her being to resist this uncivilized and barbaric attack. The evidence showed that the Defendant with his penis literally ripped her vagina apart while he raped her. The evidence also showed he attempted to have anal intercourse with her.
The agony, the pain, the horror that this child must have suffered prior to her death is evident. The pain that she endured as a result of this savage and barbaric act coupled with the knowledge that she was not able to breathe is beyond comprehension. Death by strangulation is not instantaneous. Dr. Hegert testified she would be conscious for one to two minutes prior to becoming unconscious. During this time, this child of tender years would experience fear, anxiety, emotional strain and perhaps the foreknowledge of impending doom.
If any crime meets the definition of heinous, atrocious or cruel, it is this case. The Court finds this aggravating factor present.
This finding was supported by the evidence.
Carroll also argues that the court erroneously rejected the statutory mitigating circumstances (1) that the murder was committed while Carroll was under the influence of extreme mental or emotional disturbance and (2) that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. Referring to the first of these mitigating circumstances in the sentencing order, the judge extensively reviewed the testimony of several mental health experts as well as other witnesses and concluded with the following statement:
Based upon all the testimony there are two conclusions one could arrive at after reviewing the testimony. One, the Defendant at the time of the murder was under the influence of an extreme mental or emotional disturbance. Or that the Defendant was not under the influence of an extreme mental or emotional disturbance at the time of the murder and that his actions prior to the murder were typical of a person with an antisocial personality.
In determining whether a mitigating circumstance is applicable in a given case, the trial court may accept or reject the testimony of an expert witness just as the court may accept or reject the testimony of any other witness. Bates v. State, 506 So.2d 1033 (Fla.1987).
The Court after carefully evaluating and analyzing the testimony of Doctors McMann, Danziger, and Benson finds that their testimony is not sufficient to establish this mitigating factor to the standard required by law. This Court is not reasonably convinced that this crime was committed while the Defendant was under the influence of extreme mental or emotional disturbance. There is no testimony from *1321 any witness that the Defendant was exhibiting any bizarre behavioral characteristics at the time of the murder or sexual battery. On the contrary, the evidence showed that these were the acts of a cold-blooded; heartless; child molester-killer who stealthily entered the victim's home; raped and murdered her; took her step-father's vehicle and later had a cup of coffee at the 7–11.
The judge also found that while Carroll may have been emotionally disturbed to some degree, the evidence established that he was able to appreciate the criminality of his conduct and that he could have conformed his conduct to the requirements of the law. The testimony concerning Carroll's mental condition was in sharp conflict, and the judge was entitled to make this finding. We reject Carroll's contention that the mitigating factors outweighed the appropriate aggravating factors.
Accordingly, we affirm both of Carroll's convictions and sentences, including the sentence of death. It is so ordered.
BARKETT, C.J., and OVERTON, McDONALD, GRIMES, KOGAN and HARDING, JJ., concur. SHAW, J., concurs in result only.
Carroll v. State, 815 So.2d 601 (Fla. 2002). (PCR)
Defendant, who was convicted of first-degree murder and sexual battery on child under 12 years old and sentenced to death, filed motion for postconviction relief. The Circuit Court, Orange County, Belvin Perry, J., denied motion. Defendant appealed and filed petition for writ of habeas corpus. The Supreme Court held that: (1) defendant was not deprived of right to effective assistance of trial, or of appellate, counsel; (2) State did not improperly withhold Brady material; and (3) prosecutor's comments did not rise to level of fundamental error. Affirmed, and petition denied. Wells, C.J., concurred in the result.
PER CURIAM.
Elmer Leon Carroll, a prisoner under sentence of death, appeals the trial court's denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, and he petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons set forth below, we affirm the trial court's order denying Carroll postconviction relief. We also deny Carroll's petition for writ of habeas corpus.
BACKGROUND
Carroll was convicted for first-degree murder and sexual battery on a child under twelve years of age. The facts in this case are set forth in greater detail in Carroll v. State, 636 So.2d 1316 (Fla.1994). The relevant facts are as follows:
On October 30, 1990, at about 6 a.m., Robert Rank went to awaken his ten-year-old stepdaughter, Christine McGowan, at their home in Apopka. When she did not respond to his calls, Rank went into her bedroom and found her dead. Shortly thereafter, Rank noticed that his front door was slightly ajar and that his pickup truck he had parked in the yard with the keys in it the night before was missing. When the police arrived, they determined that Christine had been raped and strangled. A BOLO was issued for the missing truck, which was a white construction truck bearing the logo ATC on the side.
Id. at 1317. Shortly thereafter, the truck was seen parked on the side of a highway and Carroll was observed walking about one mile down the road from the truck. Carroll was subsequently stopped and searched, and the keys to the truck were found on Carroll. Two witnesses had also observed Carroll driving the truck earlier that morning. Blood was found on Carroll's sweatshirt and genitalia, and semen, saliva, and pubic hair recovered from the victim were consistent with that of Carroll.
The jury convicted Carroll of both charges and recommended death for the first-degree murder conviction by a vote of twelve to zero. See id. at 1317. The trial court followed the jury's recommendation and sentenced Carroll to death.FN1 We affirmed Carroll's conviction and sentence on *608 direct appeal. See id. at 1321. The United States Supreme Court denied Carroll's petition for writ of certiorari on October 31, 1994. See Carroll v. Florida, 513 U.S. 973, 115 S.Ct. 447, 130 L.Ed.2d 357 (1994).
FN1. In so doing, the trial court found the following three aggravating factors: (1) Carroll was previously convicted of two felonies involving the use or threat of violence to the person; (2) the capital felony was committed while Carroll was engaged in the commission of a sexual battery; and (3) the capital felony was especially heinous, atrocious, or cruel. See id. at 1319. The trial court found no statutory mitigating circumstances, but found as a nonstatutory mitigating circumstance that Carroll suffered from “some possible mental abnormalities and has an antisocial personality.” Id.
Carroll timely filed his initial 3.850 motion on February 1, 1996. Thereafter, Carroll filed an amended 3.850 motion raising twenty-four claims. FN2 Following a HuffFN3 hearing, the trial court ordered that an evidentiary hearing be held as to five of the twenty-four claims raised in Carroll's amended motion.FN4 The trial court held an evidentiary hearing on August 4–5, 1997. Subsequent to this hearing, the trial court entered an order denying relief on all of Carroll's claims. This appeal follows.
FN2. These claims included: (1) Carroll is being denied his right to effective representation because CCRC lacks sufficient funds; (2) public records are being withheld; (3) ineffective assistance of counsel during the penalty phase; (4) the Florida Bar rules' prohibition against interviewing jurors is unconstitutional; (5) jury instructions on prior conviction of a violent felony aggravator, engaged in the commission of a sexual battery aggravator, avoiding lawful arrest aggravator, and heinous, atrocious, or cruel aggravator were improper; (6) ineffective assistance of counsel during the guilt phase; (7) State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (8) Florida's statute setting forth the aggravating circumstances to be considered in a capital case is facially vague and overbroad; (9) ineffectiveness of counsel denied Carroll his rights to adequate mental health assistance pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (10) ineffective assistance of counsel to the extent counsel conceded admissibility by failing to object to the introduction of certain photographs into evidence; (11) Carroll was denied constitutional rights when the judge and prosecutor impermissibly suggested to the jury that the law required a recommendation of death; (12) the jury was misinformed of its advisory role and counsel was ineffective for failing to object; (13) the penalty phase jury instructions shifted the burden to Carroll to prove a life sentence was appropriate and counsel was ineffective in failing to object; (14) Florida's capital sentencing statute is unconstitutional; (15) the prosecutor made inflammatory and improper comments and counsel was ineffective for failing to object; (16) the sentencing court erroneously instructed the jury on the standard by which it must judge expert testimony and counsel was ineffective for failing to object; (17) the murder in course of a felony aggravator is an automatic aggravator and counsel was ineffective for failing to object; (18) the jury was misled and incorrectly informed as to its function at capital sentencing and counsel was ineffective for failing to object; (19) Carroll was incompetent during his capital pretrial, trial, and sentencing proceedings; (20) Carroll is innocent of first-degree murder and was denied an adversarial testing; (21) counsel was ineffective in failing to properly investigate and provide the mental health experts with necessary information, thereby resulting in the loss of the affirmative defense of insanity; (22) counsel failed to discover and remove prejudiced jurors; (23) newly discovered evidence shows Carroll's conviction and sentence are constitutionally unreliable; and (24) cumulative procedural and substantive errors deprived Carroll of a fair trial.
FN3. Huff v. State, 622 So.2d 982 (Fla.1993).
FN4. These claims included: claim 3 (ineffective counsel during penalty phase); claim 6—subpart A (counsel ineffective during guilt phase because he failed to provide background materials to mental health experts), and subpart C (counsel ineffective during guilt phase for failing to investigate other suspects); claim 9 (only as to counsel's alleged ineffectiveness in connection with the mental health experts); claim 19 (only as to those claims involving counsel's alleged ineffectiveness in relation to the mental health experts); and claim 21 (only as to counsel's alleged ineffectiveness in connection with the mental health experts).
3.850 APPEAL
Carroll raises eight issues on appeal, FN5 several of which may be disposed of summarily because they are procedurally barred,FN6 facially insufficient,FN7 or without merit.FN8 Carroll's remaining claims, however, warrant discussion and we will address them in turn.
FN5. These issues include: (1) the trial court erred in denying Carroll's claim that he is not guilty by reason of insanity; (2) the trial court erred in denying Carroll's claim that: (a) he was incompetent at all stages of the proceedings and trial counsel's ineffectiveness denied him a reliable competency hearing; and (b) Carroll's waiver of his right to testify and call witnesses in mitigation was not knowing, voluntary, and intelligent because he was incompetent and trial counsel was ineffective in failing to investigate mitigation; (3) the trial court erred in denying Carroll's claim that trial counsel was ineffective during the penalty phase; (4) the trial court erred in denying Carroll's claim that trial counsel was ineffective during the guilt phase; (5) Carroll was denied a full and fair evidentiary hearing; (6) the trial court erred in summarily denying: (a) Carroll's claim alleging denial of effective postconviction representation; (b) Carroll's claim alleging a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (c) claims 4, 10, 12, 13, 15, 17, and 18 in Carroll's amended 3.850 motion as being procedurally barred or without merit; (d) Carroll's claim alleging that he was deprived of his right to a competent mental health expert pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); and (e) Carroll's claim alleging cumulative error.
FN6. We find issue (1) to be an attempt by collateral counsel to relitigate the issue of Carroll's sanity at the time of the offense. This issue could have been raised on direct appeal and thus is procedurally barred. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995). In addition, we find issue (2)(b) is procedurally barred. This issue was not asserted in Carroll's amended 3.850 motion below and thus was not addressed by the trial court. Accordingly, this issue is not properly before this Court on appeal. See Shere v. State, 742 So.2d 215, 218 n. 7 (Fla.1999); Doyle v. State, 526 So.2d 909, 911 (Fla.1988).
FN7. In issue (6)(c), Carroll alleges that the trial court erred in summarily denying claims 4, 10, 12, 13, 15, 17, and 18 in his amended 3.850 motion as being procedurally barred or without merit. On appeal, however, Carroll fails to assert any definitive argument as to this issue. Thus, we find this issue is insufficiently presented for review. See Shere v. State, 742 So.2d 215, 217 n. 6 (Fla.1999).
FN8. We find that issues (5), (6)(a), and (6)(e) are without merit. In issue (5), Carroll argues that he was denied a full and fair evidentiary hearing because the trial court allegedly prevented collateral counsel from fully questioning Detective Latrelle regarding Detective Payne's investigative notes and the trial court denied collateral counsel's motion for an extension of time to submit written closing argument. Based upon our review of the record, we conclude that this issue is without merit.
Likewise, we find Carroll's allegation in issue (6)(a) that the trial court erred in summarily denying his claim that he is being denied his right to effective representation because CCRC lacks sufficient funds is without merit. This Court has held that claims of ineffective assistance of postconviction counsel do not present a valid basis for relief. See Lambrix v. State, 698 So.2d 247, 248 (Fla.1996). Moreover, the record reflects that the trial court granted Carroll's motion for continuance requesting the court to continue the evidentiary hearing because of collateral counsel's alleged lack of funding. Although Carroll alleges that funds for hiring experts were inadequate, he does not point to any specific expert he was unable to retain as a result of under-funding. Carroll's conclusory assertion within this issue that public records were not provided to counsel or, if received, were incomplete is insufficiently pled. Moreover, the record reveals that the trial court held several hearings as to Carroll's public records requests and expressly concluded that all matters relating to his requests had been settled.
Lastly, given our resolution of the issues raised by Carroll on appeal, we find no merit to Carroll's cumulative error claim raised in issue (6)(e). See Downs v. State, 740 So.2d 506, 509 (Fla.1999).
INEFFECTIVE ASSISTANCE OF COUNSEL
First, Carroll alleges that abundant psychiatric testimony before, during, and since trial establishes that he was incompetent at the time of trial. Carroll's underlying claim that he was incompetent to stand trial should have been raised on direct appeal and therefore is procedurally barred. See Patton v. State, 784 So.2d 380, 393 (Fla.2000); Johnston v. Dugger, 583 So.2d 657, 659 (Fla.1991). As a corollary to the substantive competency claim, however, Carroll argues that trial counsel's ineffectiveness deprived him of a reliable competency hearing.
In this case, trial counsel filed a motion for a competency hearing on August 15, 1991. Thereafter, the trial court appointed Drs. Gutman and Danziger to evaluate Carroll for competency and sanity. In addition, the trial court requested Drs. Kirkland, Erlich, and Benson, who had previously evaluated Carroll for competency in November December of 1990, to re-evaluate Carroll for competency and sanity. On November 15, 1991, the trial court held a competency hearing at which Drs. Gutman, Danziger, Kirkland, and Benson testified. FN9 Of these four doctors, Dr. Benson was the only one to testify that Carroll was incompetent to stand trial.FN10 On December*611 27, 1991, the trial court entered an order finding Carroll competent to stand trial based upon consideration of the expert testimony and argument of counsel at the competency hearing, as well as the experts' reports submitted to the court.
FN9. The record reveals that Dr. Erlich did not re-examine Carroll pursuant to the trial court's order, nor did he attend the competency hearing despite being subpoenaed. In his initial report evaluating Carroll in December 1990, however, Dr. Erlich concluded that Carroll was competent to stand trial and that he believed much of Carroll's mental symptomatology was self-serving distortions.
FN10. Dr. Kirkland, who first examined Carroll in November of 1990, originally concluded that Carroll was incompetent to stand trial on a murder charge. Based on his re-examination of Carroll in October of 1991, however, Dr. Kirkland testified at the competency hearing that he believed Carroll was competent to proceed.
Nonetheless, Carroll argues that trial counsel's ineffectiveness in failing to provide adequate background information to the doctors deprived him of a reliable competency determination. Carroll alleges that Drs. Danziger and Gutman testified at the evidentiary hearing that based on additional background information supplied by collateral counsel, consisting of school records and affidavits from family members, they would reconsider their original opinions regarding Carroll's competency at the time of trial. The record, however, refutes Carroll's claim. Neither Dr. Danziger nor Dr. Gutman testified that in light of the additional background information provided by collateral counsel they would have found Carroll incompetent to stand trial. Thus, even assuming trial counsel was deficient for failing to provide the additional background information, Carroll has not demonstrated prejudice under Strickland. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Accordingly, we find this claim was properly rejected.
Guilt Phase
Carroll also asserts that the trial court erred in denying his claim alleging that trial counsel rendered ineffective assistance during the guilt phase. Specifically, Carroll argues trial counsel was ineffective in presenting an insanity defense; trial counsel was ineffective in failing to retain a confidential DNA expert; and trial counsel was ineffective in failing to impeach the testimony of the medical expert. First, Carroll maintains that the failure of his insanity defense is directly related to trial counsel's ineffectiveness. In particular, Carroll contends that: (1) trial counsel did virtually nothing to affirmatively present an insanity defense; and (2) trial counsel allowed the State to present damaging testimony from experts who based their opinions on incomplete information.
We find that the record refutes Carroll's allegation that trial counsel did “virtually nothing” to affirmatively present an insanity defense. First, trial counsel called several lay witnesses to testify at trial in support of Carroll's insanity defense. In particular, trial counsel called the director of the halfway house in which Carroll was residing at the time of the offense. She testified that Carroll began to act differently a couple of weeks before the alleged offense and that she spoke with him about getting counseling. Additionally, trial counsel called two bartenders from the taverns Carroll patronized the night before the victim was discovered. Both bartenders testified that they witnessed Carroll acting strangely and observed him talking to his jacket and speaking about demons and Satan.
More importantly, trial counsel called several mental health experts in support of Carroll's insanity defense. Dr. McMahon, who had examined Carroll within two days of the offense, testified that she observed Carroll to be extremely disorganized and only partially oriented. In her clinical opinion, Carroll was psychotic at the time of her interview, experiencing both auditory and visual hallucinations. Dr. Danziger testified at trial that he had three separate diagnoses for Carroll: schizophrenia *612 chronic differentiated type; alcoholism; and multiple drug abuse. Further, Dr. Danziger testified that more likely than not Carroll was not responsible for his actions and was so psychotic at the time of the offense that he was unable to distinguish right from wrong, although he conceded it was a difficult call. Dr. Benson testified that his diagnosis was paranoid schizophrenia, poly-substance abuse, and borderline intelligence quotient. In addition, Dr. Benson testified that Carroll was most likely actively psychotic at the time of the alleged crime and therefore did not know what he was doing or its consequences. FN11 Hence, the record clearly refutes Carroll's allegation that trial counsel did virtually nothing to present an insanity defense. FN11. By contrast, Dr. Kirkland testified for the State that he believed Carroll was not insane at the time of the offense.
Carroll also asserts that trial counsel's ineffectiveness in failing to provide adequate records and background information to the various medical experts permitted the State to portray Carroll as a malingerer, thereby weakening his insanity defense. Specifically, Carroll contends Dr. Gutman's trial testimony, that he believed Carroll was malingering and that Carroll had an IQ around 105–110, was devastating to the defense. Carroll maintains that had trial counsel provided Dr. Gutman with the additional information collateral counsel collected he would have testified favorably for the defense and deprived the State of its argument that Carroll was a calculating killer who feigned mental illness to avoid responsibility. In support, Carroll argues that at the evidentiary hearing Dr. Gutman admitted that after reviewing the additional information provided by collateral counsel his current diagnosis would be “mental disorder with mood, memory, personality change and cognitive decline associated with alcohol deterioration and influence on the brain.” FN12 Dr. Gutman also noted that the records would confirm that Carroll had evidence of a psychotic illness on or around the time of the alleged offense and that psychosis had developed.
FN12. Dr. Gutman's initial diagnosis was as follows: malingering; psychosexual disorder, pedophilia (provisional); and mixed personality disorder with antisocial passive-aggressive, paranoid and borderline personality traits.
Carroll, however, overlooks the fact that Dr. Gutman admitted at trial that his opinion regarding Carroll's IQ was inconsistent with psychological test records he had received, which showed Carroll's IQ ranging between sixty to sixty-nine and the high seventies to low eighties. Further, Dr. Gutman specifically stated at trial that he was not able to reach a conclusion regarding Carroll's sanity at the time of the offense. In fact, Dr. Gutman conceded that he was not rendering an opinion as to Carroll's mental condition at the time of the offense. Even with the additional information collected by collateral counsel, Dr. Gutman acknowledged at the evidentiary hearing that it was a close call as to whether the two statutory mental mitigating circumstances existed. Cf. Ferguson v. State, 593 So.2d 508, 511 (Fla.1992) (noting that standard for finding two statutory mental mitigators was lower than M'Naghten insanity standard). Dr. Gutman also reiterated that Carroll has a “malingering-like persona” and that his diagnosis of malingering would still be present.FN13 Thus, even if we were to assume *613 trial counsel was deficient for failing to provide the additional background information, we conclude based on the record in this case that Carroll has failed to demonstrate prejudice. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Accordingly, we find no error in the trial court's denial of this claim.
FN13. It is worth noting that Dr. Gutman was not the only expert at trial to indicate that Carroll may have been malingering. For instance, Dr. Kirkland testified that some elements of the psychological testing performed at his request shortly after Carroll's arrest indicated that he was malingering. Although Dr. Kirkland believed Carroll's symptoms of schizophrenia were genuine, he testified that he thought Carroll's claims of amnesia concerning many important events were not accurate.
Carroll also claims that trial counsel was ineffective during the guilt phase for failing to retain a confidential DNA expert. At the evidentiary hearing, however, Carroll's trial counsel testified that he made an informed tactical decision not to hire a DNA expert since at the time he thought it would have done a disservice to Carroll.FN14 In particular, trial counsel testified:
FN14. Trial counsel did speak with several DNA experts in preparation for dealing with the DNA evidence and did seek to exclude the DNA evidence during trial. On appeal, this Court denied Carroll's contention that the trial court erred in denying his motions with respect to the propriety of the DNA testing, noting that defense counsel was permitted to voir dire and extensively cross-examine the State's DNA expert. See Carroll, 636 So.2d at 1319.
I thought the DNA evidence, if it was admissible, was pretty solid.... This was an F.B.I. Lab that was under no scrutiny at the time. I thought there was a real good chance that, I kind of liked what I saw with the DNA evidence that we had. If you looked at some of the probes they looked like it wasn't—kind of hard to follow his testimony. I didn't think he was, really, that that was not totally strong. There was some areas where he said I can't be sure about this.... [I]f the judge said okay, I'm going to give you another DNA [expert], at the time I thought I would have really done Elmer Carroll a disservice....
In light of trial counsel's testimony at the evidentiary hearing, we find no error in the trial court's conclusion that counsel's decision not to retain a DNA expert was strategic and not “outside the broad range of reasonably competent performance under prevailing professional standards.” Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Downs v. State, 453 So.2d 1102 (Fla.1984)); cf. Jones v. State, 732 So.2d 313, 320 (Fla.1999) (holding that trial counsel was not ineffective for failing to obtain an expert to discuss effects of HIV and resulting AIDS). More importantly, even assuming trial counsel was deficient for failing to retain a DNA expert, Carroll has not demonstrated prejudice under Strickland. Carroll does not allege that the DNA evidence was inaccurate, nor does he assert that hiring a DNA expert would have uncovered any favorable evidence. Rather, Carroll merely contends that trial counsel's failure to procure a DNA expert constitutes ineffective assistance. Accordingly, we find no error in the trial court's denial of this claim.
Lastly, Carroll argues that trial counsel was ineffective during the guilt phase for acquiescing in the admission of autopsy photographs and failing to impeach the testimony of the medical examiner. We find the record refutes Carroll's claim that trial counsel acquiesced in the admission of autopsy photographs. Indeed, trial counsel objected to the majority of the photographs introduced during the medical examiner's testimony, on grounds that particular photographs were either prejudicial or duplicative. Further, even assuming trial counsel was deficient, we find that Carroll has failed to demonstrate prejudice under Strickland. We also find *614 Carroll's allegation that trial counsel was ineffective for failing to impeach the medical examiner is insufficiently pled. Carroll does not allege what, if any, favorable information could have been elicited by a more vigorous cross-examination of the medical examiner. Accordingly, we find no error in the trial court's denial of this claim.
Penalty Phase
Carroll argues that trial counsel was ineffective for failing to adequately investigate and present available evidence in support of statutory and nonstatutory mitigating circumstances at the penalty phase. Carroll contends that had trial counsel performed an adequate investigation substantial mitigation could have been established, including: Carroll committed the offense under the influence of extreme mental or emotional disturbance; Carroll's capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired; Carroll suffers organic brain damage; Carroll is borderline retarded; Carroll suffers from a psychotic illness; Carroll has learning disabilities and lacks mental flexibility; contributing factors of Fetal Alcohol Syndrome exist; Carroll has a long history of alcohol and drug abuse; Carroll suffered severe physical abuse as a child, including blows to the head; Carroll suffered sexual abuse as a child; and Carroll has a possible genetically conditioned mental illness.
Specifically, Carroll contends that trial counsel failed to call as witnesses Carroll's relatives who would have testified as to Carroll's upbringing. At the postconviction evidentiary hearing, Carroll called five family members who testified in varying degrees as to Carroll's family background and history, including physical and sexual abuse, substance abuse, and his mental problems. These family members testified that had they been asked they would have testified on Carroll's behalf at the penalty phase. Under Strickland, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. However, “[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.” Id. During the evidentiary hearing, trial counsel testified that, despite his inquiries, Carroll did not provide him with the names of any witnesses who could have provided mitigating evidence. To the contrary, trial counsel testified that based upon what Carroll had told him there were no family members that could come forward and offer any useful testimony in mitigation. Nonetheless, trial counsel stated that efforts were made to locate family members but to no avail. Trial counsel also indicated that having spoken with Carroll about his life, he did not believe Carroll had a close family relationship anymore as a result of various past events.FN15 While we acknowledge that counsel has a duty to investigate, “when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to *615 pursue those investigations may not later be challenged as unreasonable.” Id.; see also Johnston v. Singletary, 162 F.3d 630, 642 (11th Cir.1998) (same); Rose v. State, 617 So.2d 291, 294–95 (Fla.1993) (trial counsel was not ineffective for failing to call family members where defendant told counsel that he had not had contact with his family for a number of years and that his family's testimony would not be helpful). By failing to respond to counsel's requests to provide trial counsel with the names of witnesses who could assist in presenting mitigating evidence, Carroll may not now complain that trial counsel's failure to pursue such mitigation was unreasonable. See Cherry v. State, 781 So.2d 1040, 1050 (Fla.2000), cert. denied, 534 U.S. 878, 122 S.Ct. 179, 151 L.Ed.2d 124 (2001).FN16
FN15. The family members' testimony at the evidentiary hearing established that they had not maintained a close relationship with Carroll. For instance, Carroll's step-brother stated he had not seen Carroll since the 1980s; Carroll's half-sister testified she had not seen Carroll since the 1960s; Carroll's sister noted that she had not seen Carroll since 1981; Carroll's nephew stated that he had not seen Carroll since the 1970s; and Carroll's niece testified that she had not seen Carroll in at least ten years.
FN16. Moreover, the State responds that the presentation of these witnesses would have allowed cross-examination and rebuttal evidence that would have likely countered any additional value Carroll might have gained from such testimony. For example, as noted by the trial court, several of Carroll's family members testified at the evidentiary hearing that they were aware of Carroll's prior sexual misconduct with children, including an incident with his own niece. See Rose, 617 So.2d at 295 (“In light of the harmful testimony that could have been adduced from Rose's brother and the minimal probative value of the cousins' testimony, we are convinced that the outcome would not have been any different had their testimony been presented at the penalty phase.”); Medina v. State, 573 So.2d 293, 298 (Fla.1990) (finding no ineffectiveness in not presenting witnesses where they would have opened the door for the State to explore defendant's violent past).
Carroll also alleges that trial counsel was ineffective for failing to call the mental health experts to testify during the penalty phase. At the postconviction evidentiary hearing, Carroll called Drs. McMahon, Danziger, and Gutman, who had testified during the guilt phase of his trial. Each of these doctors testified that had they been asked by trial counsel they could have testified during the penalty phase as to the existence of two statutory mitigating circumstances, i.e., the murder was committed while Carroll was under the influence of extreme mental or emotional disturbance, and the capacity of Carroll to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. In addition, Carroll presented testimony from two mental health experts, Drs. Crown and Toomer, who examined Carroll prior to the evidentiary hearing at the request of collateral counsel. Dr. Crown performed a standard neuropsychological evaluation of Carroll, concluding that Carroll has a full scale IQ of 81 and suffers from organic brain damage that affects his intellectual and cognitive capacities. Dr. Toomer conducted a psychological evaluation and administered several tests, including the Bender Gestalt test and Minnesota Multiphasic Personalty Inventory (MMPI). The results of the Bender Gestalt test suggested the possibility of organicity or brain damage. Dr. Toomer, however, was unable to arrive at a specific diagnosis for Carroll because “he presents symptomatology that runs the entire gamut of several personality disorders, all the way through to a major mental disorder.” Drs. Crown and Toomer also testified that they believed the two statutory mitigating circumstances noted above were present. In addition, Dr. Crown indicated that he believed several nonstatutory mitigating circumstances were present, including organic brain damage, physical and sexual abuse, and learning difficulties.
In rejecting this claim, the trial court concluded that trial counsel made a strategic decision not to recall at the penalty phase the mental health experts who *616 had testified at length during the guilt phase. At the evidentiary hearing, trial counsel in part explained:
[T]he main witness in the case Dr. [Danziger] ... was a good witness but was wavering. I certainly didn't want to put him on the stand and say have him waver, then the ball game was truly over because what he said he had said, and he said it in a nice professional way.
It was my call. I guess I didn't want to call the same people again just to have them ask the same series of questions maybe in a different way. I know as a prosecutor I would have enjoyed that, if I was a prosecutor in the case, after you lose the case to call the same witnesses back. You'd have a field day with something like that.
They had been persuasive, as persuasive as I thought they were going to be as to that.
It was a judgment call and I made it.
Although attorneys may differ as to this strategy, we agree with the trial court's conclusion that the decision did not fall outside the wide range of reasonable professional assistance. “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.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Johnson v. State, 769 So.2d 990, 1001 (Fla.2000) (“Counsel's strategic decisions will not be second-guessed on collateral attack.”); Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (“Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel's strategic decisions.”). The mental health experts testified at length during the guilt phase about Carroll's mental condition, and we cannot conclude that trial counsel's decision to rely on their guilt phase testimony in arguing the existence of mitigating circumstances at the penalty phase was unreasonable in light of his concerns that the experts were wavering. See Provenzano v. Dugger, 561 So.2d 541, 546 (Fla.1990) (finding that trial counsel was not ineffective for failing to present expert testimony during the penalty phase concerning defendant's mental condition when counsel presented extensive testimony during the guilt phase that defendant was paranoid). Further, trial counsel's decision to rely on the mental health experts' guilt phase testimony at the penalty phase prevented the State from revealing damaging evidence during cross-examination of the experts, including past reports of Carroll's sexual misconduct with children. FN17. See supra note 16.
Moreover, even if trial counsel's conduct during the penalty phase was found to be deficient, Carroll would not be entitled to a new sentencing unless he demonstrated prejudice from counsel's alleged errors. Carroll “must demonstrate that there is a reasonable probability that, absent trial counsel's error, ‘the sentencer ... would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death.’ ” Cherry, 781 So.2d at 1048 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052); see also Rose, 675 So.2d at 571. The trial court in this case found three aggravating circumstances, one of which was that the murder was especially heinous, atrocious, or cruel. The trial court instructed the jury on three statutory mitigating circumstances, including the two statutory mental mitigators, which the mental health experts at the evidentiary hearing stated they believed to exist in this case. The jury was also instructed that it could consider any other *617 aspect of Carroll's character or record and any other circumstance of the offense. Although the trial court did not find the statutory mental mitigators, it found as a nonstatutory mitigating circumstance that Carroll suffered from “some possible mental abnormalities and has an antisocial personality.”
As discussed above, several mental health experts testified at length during the guilt phase of Carroll's trial. From this testimony, the jury learned most, if not all, of the mitigating circumstances now claimed to exist. For example, evidence was presented that Carroll was suffering auditory and visual hallucinations; he had borderline intelligence and a below-average IQ; he had a seventh grade education; he had a history of drug and alcohol abuse; he began drinking at a young age and was drinking heavily by age twelve; he had experienced blackouts; he had been rendered unconscious on several occasions from blows to his head; and he suffered physical abuse as a child. Trial counsel also introduced during the penalty phase a police report documenting an incident of sexual abuse Carroll suffered as a child. Thus, the jury was aware of much of the information Carroll alleges was not introduced at trial. Nevertheless, the jury recommended a sentence of death by a twelve to zero vote, and the trial court sentenced Carroll in accordance with that recommendation. We find no error in the trial court's conclusion that even if Carroll's background and mental state had been explored in greater detail during the penalty phase, such evidence would not have changed the outcome in this case. Based upon the record and the brutal nature of ten-year-old Christine McGowan's death, the trial court concluded that Carroll has failed to demonstrate that there is a reasonable probability that, absent the claimed errors, the sentencer would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death. Accordingly, we find no error in the trial court's denial of this claim.
Mental Health Evaluation
In a related issue, Carroll argues that the trial court erred in not granting an evidentiary hearing on his claim alleging that he was deprived of his right to a competent mental health expert pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In his amended motion for postconviction relief, Carroll argued that he was denied a competent mental health evaluation because trial counsel was ineffective in failing to provide adequate background information to the mental health experts. Contrary to Carroll's assertion, the trial court did hold an evidentiary hearing on this claim. Indeed, based upon our review of the record, it is clear that Carroll was able to fully explore this issue at the evidentiary hearing. The trial court, however, denied this claim for the same reasons it had rejected Carroll's allegation that trial counsel provided ineffective assistance during the penalty phase.
As previously indicated, several mental health experts evaluated Carroll for competency and sanity prior to trial. The record reveals that these mental health experts were provided with Carroll's prison and hospital records dating back to 1980, as well as the results of the psychological testing performed upon Dr. Kirkland's request shortly after Carroll's arrest. Several experts at trial also indicated that they reviewed police reports and witness statements. Trial counsel, however, testified at the evidentiary hearing that he did not provide Carroll's school records to the mental health experts because he did not have them. Nor were the experts provided affidavits *618 from Carroll's family members regarding his upbringing. However, several of the mental health experts' reports indicate that their personal interviews with Carroll included information concerning his family history, drug and alcohol abuse, physical and sexual abuse, and low level of education. Trial counsel acknowledged at the evidentiary hearing that he did not request the mental health experts to evaluate Carroll for the purpose of providing mitigating evidence during the penalty phase because he believed the experts had conducted thorough examinations.
Even if counsel was deficient, Carroll would not be entitled to relief unless he demonstrated prejudice as a result of counsel's failure to provide the mental health experts with sufficient information or to ensure a competent evaluation. As noted above, several of the mental health experts' reports indicate that they were generally aware of Carroll's background. Further, in addition to the psychiatric and mental status examinations performed by the mental health experts, the record reveals that upon Dr. Kirkland's request a psychological evaluation of Carroll was performed and a battery of tests were administered, including the Minnesota Multiphasic Personality Inventory (MMPI), the Millon Clinical Multiaxial Inventory (MCMI), the Wechsler Adult Intelligence Scaled–Revised (WAIS–R), Rorschach, and Bender–Gestalt tests. Carroll's overall performance on the WAIS–R was not consistent with any known psychiatric or organic related illness. Similarly, Dr. Kirkland's psychiatric evaluation report indicates that the mental status examination he conducted did not reveal any evidence of organic brain damage.
The fact that Carroll has now secured the testimony of more favorable mental health experts simply does not establish that the original evaluations were insufficient. See Cherry, 781 So.2d at 1052; Rose, 617 So.2d at 295. More importantly, we find no error in the trial court's conclusion that Carroll has failed to demonstrate that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Accordingly, we affirm the trial court's denial of this claim.
BRADY CLAIM
Next, Carroll argues that the trial court erred in summarily denying his claim that the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, Carroll alleges that the State withheld investigative notes prepared during the criminal investigation by Detectives Latrelle and Payne which contained information indicating that the victim's family suspected that Robert Rank, the victim's stepfather, was somehow involved; that Rank allegedly abused the victim; that Carroll and Rank were rumored to have smoked crack cocaine together on the day of the murder; and that another rape had recently occurred in the neighborhood.
Although the trial court did not expressly grant an evidentiary hearing as to this specific claim, it did hold a hearing as to claim 6, subpart C, in which Carroll alleged trial counsel was ineffective for failing to investigate other suspects. These claims essentially mirrored each other and both were based upon the information contained within the investigative notes.FN18 *619 Moreover, it is clear from our review of the record that Carroll was provided the opportunity to sufficiently develop his Brady claim during the postconviction proceeding.
FN18. For example, in claim 6, subpart C, of his amended motion, Carroll stated, “Whether through the State's failure to disclose material, exculpatory information, Brady; prosecutorial misconduct, Giglio; ineffective assistance of counsel, Strickland v. Washington; or the fact that this information is newly discovered evidence, Jones v. State, 591 So.2d 911 (Fla.1991); this critical information was not investigated by defense counsel or presented to the jury.” Moreover, collateral counsel during the evidentiary hearing stated, “I'm offering [the investigative notes] for the, under Brady, offering them. They existed, there was information that is exculpatory, potentially, that was out there. That's what I'm offering it for.”
The United States Supreme Court has recently provided the following three-prong analysis for determining the merits of a Brady violation claim:
[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.
Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). With regard to the third prong, the Court emphasized that prejudice is measured by determining “whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” Id. at 290, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). In applying these elements, the evidence must be considered in the context of the entire record. See State v. Riechmann, 777 So.2d 342, 362 (Fla.2000); Sireci v. State, 773 So.2d 34 (Fla.2000); Haliburton v. Singletary, 691 So.2d 466, 470 (Fla.1997).
The court below denied Carroll's claim, reasoning that there was no Brady violation since Carroll personally knew or should have known whether he was acquainted with Rank, whether he took drugs with Rank on the day in question, and whether there were witnesses to his activities with Rank. On appeal, Carroll argues that the trial court's reasoning is flawed because: (1) he was incompetent and therefore unable to provide his attorney with information to help his defense; and (2) even if he had been capable of disclosing to trial counsel that he knew Rank, he obviously could not have been aware of the other information contained within the notes, i.e., that the victim's family suspected Rank was somehow involved, that Rank allegedly abused the victim, and that another rape had recently occurred in the neighborhood.
As previously discussed, a competency hearing was held in this case and Carroll was declared competent to stand trial. Thus, Carroll's first argument is without merit. Further, we find no error in the trial court's conclusion that Carroll was in the best position to provide information as to whether or not he knew Rank and whether he consumed drugs with Rank on the day in question. See Roberts v. State, 568 So.2d 1255, 1260 (Fla.1990) (denying Brady claim on basis that defendant “himself knew whether he had been drinking or taking drugs prior to the offense and also would have been aware of those who may have witnessed this”); see also Occhicone, 768 So.2d at 1042 (“Although the ‘due diligence’ requirement is absent from the Supreme Court's most recent formulation of the Brady test, it continues to follow that a Brady claim cannot stand if a defendant knew of the evidence allegedly withheld or had possession of it, simply because the evidence cannot then be found to have been withheld from the defendant.”).
Similarly, we find Carroll's second argument to be without merit. As noted by the State, the prosecution is not required to provide the defendant all information regarding its investigatory work on a particular case regardless of its relevancy or materiality. Further, even if we were to conclude that the State should have disclosed the information, we would find Carroll has failed to satisfy the prejudice prong of the three-part test. Trial testimony by police officers and various experts revealed that hair and blood samples were taken from Rank, but that subsequent testing ruled out his involvement. By contrast, blood was found on Carroll's sweatshirt and genitalia, and semen, saliva, and pubic hair recovered from the victim were consistent with that of Carroll. Thus, considering the investigative notes in the context of the entire record, we find no error in the trial court's denial of this claim since there is no reasonable probability that this evidence could “put the whole case in such a different light as to undermine confidence in the verdict.” Strickler, 527 U.S. at 290, 119 S.Ct. 1936.
In conclusion, we find no reversible error in the trial court's denial of postconviction relief.
HABEAS CORPUS
We also deny Carroll's claim that his appellate counsel was ineffective. The issue of appellate counsel's ineffectiveness is appropriately raised in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). However, in order to grant habeas relief on the basis of ineffectiveness of appellate counsel, this Court must determine:
[W]hether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986); see also Freeman, 761 So.2d at 1069. “The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069; see also Knight v. State, 394 So.2d 997, 1001 (Fla.1981).
First, Carroll asserts that appellate counsel was ineffective for failing to notify this Court of Carroll's incompetence during his direct appeal and failing to seek a stay pending his restoration to competency. To support his argument, Carroll relies on Carter v. State, 706 So.2d 873 (Fla.1997). FN19 We find such reliance to be misplaced. In Carter, we addressed the issue of a capital defendant's competency during postconviction proceedings. Carter is inapplicable to appellate proceedings. Further, errors that are properly subject to appellate review are invariably reflected in the trial record. As Justice Overton recognized in Jackson v. State, 452 So.2d 533 (Fla.1984): Competency of a defendant to stand trial and competency of a defendant to aid his counsel in an appeal are not the same. In the first instance, a defendant has to be able to advise counsel of facts and circumstances to aid in his defense. In the second instance, the record has been made and counsel must make the legal decision of what issues should be appealed. Id. at 537 (Overton, J., specially concurring). Thus, appellate counsel was not ineffective for failing to raise this issue on appeal. FN19. Carroll also relies on several provisions of the Rules Regulating the Florida Bar to support his claim that he must be competent while pursuing appellate remedies. We find such reliance to be misplaced. Contrary to Carroll's assertions, these ethical rules do not support his argument that he must be competent to pursue appellate remedies.
Next, Carroll claims that appellate counsel was ineffective for failing to raise on direct appeal the prejudicial error caused by the admission of gruesome and inflammatory photographs. This Court has explained that the admission of photographic evidence of a murder victim is within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent abuse. See Rutherford v. Moore, 774 So.2d 637, 646 (Fla.2000); Pangburn v. State, 661 So.2d 1182, 1187 (Fla.1995). “While a trial court should exercise caution in admitting particularly gruesome photographs, and in limiting their numbers, such photographs may still be relevant.” Larkins v. State, 655 So.2d 95, 98 (Fla.1995). This Court has upheld the admissibility of photographs where they are relevant to “explain a medical examiner's testimony, to show the manner of death, the location of wounds, and the identity of the victim.” Id. at 98.
In this case, numerous photographic slides depicting the victim's injuries were admitted into evidence during the guilt phase of Carroll's trial over defense counsel's objections. The photographs were used during the medical examiner's testimony to help explain the nature of the victim's injuries and cause of death, and were also probative in the determination of the HAC and sexual battery aggravating circumstances. We find the trial court did not abuse its discretion in admitting the photographic slides into evidence because they were relevant to show the circumstances of the crime and the nature and extent of the victim's injuries. See Mansfield v. State, 758 So.2d 636, 648 (Fla.2000) (stating that trial court did not abuse its discretion in admitting photographs depicting the mutilation of the victim's genitalia where the photographs were relevant to the medical examiner's determination as to the manner of the victim's death, and were probative in the determination of heinous, atrocious, or cruel and sexual battery aggravators); see also Rutherford, 774 So.2d at 647; Gudinas v. State, 693 So.2d 953, 963 (Fla.1997); Larkins, 655 So.2d at 98. Accordingly, appellate counsel was not ineffective for failing to raise this issue on appeal.
Carroll also argues that appellate counsel was ineffective for failing to raise the issue of the prosecutor's improper comments and arguments made during the penalty phase. This Court has held that allegedly improper prosecutorial comments cannot be appealed unless a contemporaneous objection is made. See Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla.1998); Kilgore v. State, 688 So.2d 895, 898 (Fla.1996). The exception to the general rule is where the improper comments rise to the level of fundamental error. See Thomas v. State, 748 So.2d 970, 985 n. 10 (Fla.1999); Kilgore, 688 So.2d at 898. In this case, trial counsel did not object to any of the comments alleged to have been improper or inflammatory. Thus, even if appellate counsel had raised this issue on direct appeal relief would have only been granted if this Court determined that the comments constituted fundamental error.
First, Carroll contends that the prosecutor essentially asked the jury to ignore its obligation to weigh aggravation and mitigation. Contrary to Carroll's assertion, the prosecutor did not suggest that the jury ignore its obligation to weigh the aggravating and mitigating circumstances. Moreover, the trial court properly*622 instructed the jury prior to deliberations of its duty to weigh the aggravating and mitigating circumstances in reaching its recommendation. Accordingly, appellate counsel was not ineffective for failing to raise this issue on appeal.
Secondly, Carroll asserts that the prosecutor sought to inflame the jury by stating that Carroll was the “boogie man” and a “creature that stalked the night” who “must die.” FN20 “When comments in closing argument are intended to and do inject elements of emotion and fear into the jury's deliberations, a prosecutor has ventured far outside the scope of proper argument.” Garron v. State, 528 So.2d 353, 359 (Fla.1988). Although improper and ill advised, the prosecutor's isolated comments were not as egregious or cumulative in scope as in cases where this Court has found fundamental error. See, e.g., Brooks v. State, 762 So.2d 879 (Fla.2000); Ruiz v. State, 743 So.2d 1 (Fla.1999); Urbin v. State, 714 So.2d 411 (Fla.1998); Rhodes v. State, 547 So.2d 1201 (Fla.1989). Thus, appellate counsel was not ineffective for failing to raise this issue on appeal.
FN20. In particular, the State argued:
By your vote, tell Elmer Carroll you do not deserve to live. There is nothing good about you. There is nothing but evil in you and you must die.
A small child sometimes will cry out in the night frightened by a shadow or a piece of wallpaper that looks like a monster and its parents will come in and say it's okay, you don't have to be afraid. There's no monsters under the bed. There is no boogie man. There is no creature which stalks the night searching out children. It doesn't exist. Well, ladies and gentlemen, those parents lie because, ladies and gentlemen, that is the boogie man right there. That is the creature that stalked the night and murdered a ten year old girl and he must die.
Carroll also alleges that appellate counsel was ineffective for failing to argue on direct appeal that Carroll did not make a knowing, voluntary, and intelligent waiver of his right to present evidence during the penalty phase. We disagree. As discussed previously, trial counsel relied on the mental health experts' guilt phase testimony to argue the existence of mitigating circumstances during the penalty phase and also introduced in evidence a police report documenting an incident of sexual abuse Carroll suffered as a child. Accordingly, we find appellate counsel was not ineffective for failing to raise this issue on appeal. FN21. To the extent Carroll alleges that appellate counsel was ineffective for failing to argue on direct appeal that the trial court erred in not ordering another competency hearing sua sponte, we find his claim to be without merit. See Ferguson v. Singletary, 632 So.2d 53, 58 (Fla.1994).
Next, Carroll claims appellate counsel was ineffective for failing to argue that the instructions given to the jury regarding the aggravating circumstances were erroneous. Carroll did not object to either the prior violent felony or the murder in the course of a felony instruction at trial. Thus, Carroll's claim as to the jury instructions for these two aggravating circumstances was not preserved for appeal. Appellate counsel cannot be ineffective for failing to raise issues not properly preserved for appeal. See Johnson v. Singletary, 695 So.2d 263, 266–67 (Fla.1996); Groover v. Singletary, 656 So.2d 424, 425 (Fla.1995). Further, the prior violent felony jury instruction given in this case was in accordance with the standard jury instruction and Carroll has two qualifying felony convictions. Moreover, this Court has rejected the argument that the murder in the course of a felony aggravator constitutes an improper automatic aggravator. See Blanco v. State, 706 So.2d 7, 11 (Fla.1997); Johnson v. State, 660 So.2d 637, 647 (Fla.1995).
Trial counsel did object to the avoid arrest instruction on the basis that it was not applicable. Accordingly, Carroll contends that appellate counsel was ineffective for failing to raise this issue on appeal. Appellate counsel, however, does not have to raise every possible argument on appeal to be effective. See Atkins v. Dugger, 541 So.2d 1165, 1167 (Fla.1989). Moreover, even assuming the trial court erred in giving the instruction, we find the error was harmless under the facts in this case. Thus, appellate counsel was not ineffective for failing to raise this claim on appeal.
In addition, Carroll argues that appellate counsel was ineffective for failing to argue on appeal that the HAC instruction was unconstitutionally vague. Trial counsel did not object to the instruction on the basis it was unconstitutionally vague, but rather objected to the applicability of the instruction. Thus, this claim was not preserved for appeal. See Roberts v. Singletary, 626 So.2d 168, 168–69 (Fla.1993) (holding claim that HAC instruction was unconstitutionally vague was procedurally barred where trial counsel only objected to its applicability). Nonetheless, the record reflects that appellate counsel not only challenged the sufficiency of the evidence supporting the finding of HAC, but also argued that the instruction given was unconstitutionally vague. On appeal, we affirmed the trial court's finding of HAC. See Carroll, 636 So.2d 1316, 1319–20 (Fla.1994). Although we did not specifically address the argument that the instruction given was unconstitutionally vague, the record reflects that the HAC instruction given in this case was virtually identical to the one that withstood scrutiny in Hall v. State, 614 So.2d 473, 478 (Fla.1993), subsequent to Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). Thus, there is no basis for relief.
Carroll also alleges that appellate counsel was ineffective for failing to argue that the penalty phase jury instructions improperly shifted the burden to him to prove that a life sentence would be appropriate. Trial counsel did not object to the instructions on the ground that they improperly shifted the burden. Therefore, this issue was not properly preserved for appeal. Furthermore, this Court has consistently held that the burden-shifting argument is without merit. See Rutherford, 774 So.2d at 644 & n. 8; Demps v. Dugger, 714 So.2d 365, 368 & n. 8 (Fla.1998). Appellate counsel's failure to raise nonmeritorious issues does not constitute ineffective assistance. See Groover, 656 So.2d at 425.
Next, Carroll asserts that the trial judge impermissibly suggested to the jury that the law required a recommendation of death, and that appellate counsel was ineffective for failing to raise this issue on appeal. We disagree. Contrary to Carroll's assertion, the trial court did not impermissibly suggest to the jury that the law required a recommendation of death. Therefore, appellate counsel was not ineffective for failing to raise this issue on appeal. Within this issue, Carroll also argues that the jury was not properly instructed that mercy and sympathy are proper considerations during the penalty phase. This issue was not properly preserved for appeal. Appellate counsel cannot be ineffective for failing to raise issues not properly preserved for appeal. See Johnson, 695 So.2d at 266–67; Groover, 656 So.2d at 425. Moreover, this Court has previously rejected the argument that appellate counsel was ineffective for failing to argue this issue on appeal when, as in this case, the trial court gave the standard jury instructions with respect to sentencing and advised the jury that it could consider any other aspect of defendant's character or record and any other circumstances of the offense as mitigation. See Correll v. Dugger, 558 So.2d 422, 425 (Fla.1990). Accordingly, appellate counsel was not ineffective for failing to raise this issue on appeal.
Lastly, Carroll argues that Florida's capital sentencing scheme is unconstitutional. Carroll, however, does not argue that appellate counsel was ineffective for failing to raise this issue. Nonetheless, even if Carroll had alleged ineffectiveness of appellate counsel, this issue would be without merit since this Court has decided this issue adversely to Carroll's position. See, e.g., Fotopoulos v. State, 608 So.2d 784, 794 (Fla.1992).FN22
FN22. Carroll's additional claim within this issue that he is incompetent and that requiring him to elect electrocution or lethal injection violates due process and the Eighth Amendment is premature since the appeals process is still ongoing and a death warrant has not yet been signed. See Fla. R.Crim. P. 3.811.
CONCLUSION
For the reasons set forth above, we affirm the trial court's denial of postconviction relief. We also deny Carroll's petition for writ of habeas corpus. It is so ordered. SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS, and QUINCE, JJ., concur. WELLS, C.J., concurs in result only.
Carroll v. Secretary, DOC, 574 F.3d 1354 (11th Cir. 2009). (Habeas)
Background: Following affirmance of his conviction for first-degree murder and sexual battery on a child under 12 years old, and of his death sentence, 636 So.2d 1316, and of the denial of his motion for state postconviction relief, 815 So.2d 601, Florida inmate sought federal habeas relief. The United States District Court for the Middle District of Florida, No. 05-00857-CV-GAP-KRS, Gregory A. Presnell, J., 2008 WL 2557555, denied relief, and petitioner appealed.
Holdings: The Court of Appeals, Black, Circuit Judge, held that:
(1) allegation that trial court violated defendant's due process rights when it declined to grant him an evidentiary hearing did not state a cognizable claim for habeas relief;
(2) state court's decision, that petitioner was not mentally retarded, was not contrary to or an unreasonable application of clearly established federal law; and
(3) argument that petitioner was deprived of equal protection by being sentenced to death even though he was mentally ill, whereas the mentally retarded were exempt from execution under federal law, failed to state a cognizable claim for habeas relief. Affirmed.
BLACK, Circuit Judge:
Elmer Leon Carroll, a Florida prisoner under a sentence of death, appeals the district court's order denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The district court granted a certificate of appealability as to the second claim from Carroll's petition: Whether Carroll was denied his rights of due process and equal protection when the state court failed to grant an evidentiary hearing on his claim of mental retardation and mental illness under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). After review and oral argument, we affirm the district court's order.
I. FACTS
The facts of the underlying crime are gathered largely from the Florida Supreme Court's decisions affirming Carroll's conviction and sentence, Carroll v. State, 636 So.2d 1316 (Fla.1994) ( Carroll I), and the trial court's denial of Carroll's first 3.850 motion for post-conviction relief, Carroll v. State, 815 So.2d 601 (Fla.2002) ( Carroll II).
On October 30, 1990, at about 6 a.m., Robert Rank went to awaken his ten-year-old stepdaughter, Christine McGowan, at their home in Apopka, Florida. When Christine did not respond to his calls, Rank went into her bedroom and found her dead. Shortly thereafter, Rank noticed his front door was slightly ajar and his pickup, in which he had left the keys, was missing. When the police arrived, they determined Christine had been raped and strangled. A BOLO was issued for the missing truck, which was a white construction truck bearing the logo ATC on the side.
Shortly thereafter, the truck was seen parked on the side of a highway, and Carroll was observed walking about one mile down the road from the truck. Carroll was subsequently stopped and searched, and the keys to the truck were found on Carroll. Two witnesses had also observed Carroll driving the truck earlier that morning. Blood was found on Carroll's sweatshirt and genitalia, and semen, saliva, and pubic hair recovered from the victim were later determined to be consistent with that of Carroll.
On November 26, 1990, Carroll was indicted on one count of first-degree felony murder and one count of sexual battery on a person less than twelve years of age.
B. The Competency Hearing
In August 1991, Carroll's trial counsel, James E. Taylor, Jr., became “increasingly concerned” that Carroll did not understand the gravity of the charges against him and was incapable of assisting in his defense. Taylor filed a motion for a competency hearing, in which he proffered the opinions of two licensed psychiatrists who believed Carroll was not competent to stand trial. Judge Jeffords D. Miller granted the motion and appointed five experts to evaluate Carroll to determine if he was competent to stand trial. Pursuant to the court's order and Florida Rule of Criminal Procedure 3.211, any expert who determined Carroll was not competent was also required to inform the court as to “[t]he nature and extent of the mental illness or mental retardation suffered by the Defendant” and “[w]hether the Defendant, because of such mental illness or mental retardation, meets the criteria for involuntary hospitalization or placement as set forth by law.” In addition to evaluating Carroll for competency, the experts were also asked to examine Carroll as to his sanity at the time of the alleged offense.
On November 15, 1991, Judge Miller heard testimony from Dr. Edward Benson, Dr. Robert G. Kirkland, Dr. Michael E. Gutman, and Dr. Jeffrey A. Danziger, all of whom were psychiatrists, regarding Carroll's competency to stand trial. FN1 Of the experts, only Dr. Benson testified he believed Carroll was not competent to stand trial. Dr. Benson had evaluated Carroll twice after his arrest, and at both times Dr. Benson believed Carroll was not competent. Dr. Benson first examined Carroll on December 11, 1990, at which time he observed Carroll “was actively psychotic, schizophrenic, and ... he was very delusional, and ... very incoherent, very withdrawn.” Dr. Benson again examined Carroll on October 11, 1991, and determined Carroll was still “quite psychotic” although “he had been previously much more psychotic last year.” Following the October 1991 evaluation, Dr. Benson submitted a written report to the court in which he diagnosed Carroll with schizophrenia and a paranoid-type personality disorder; the report also noted Carroll had a borderline intelligence quotient (IQ), based upon the results of previous psychological testing.
FN1. Dr. Lawrence B. Erlich did not appear at the hearing and did not examine Carroll following the court's order in August 1991. Dr. Erlich, a forensic psychiatrist, did evaluate Carroll on December 7, 1990, at which time he supplied a report to the court indicating he believed Carroll was competent to stand trial.
Like Dr. Benson, Dr. Kirkland testified he had evaluated Carroll multiple times. Dr. Kirkland first evaluated Carroll shortly after his arrest and concluded “[t]here was an indication of possible emotional or mental disorder.” Following this evaluation, Dr. Kirkland recommended Carroll was not competent to stand trial and committed him to the intensive psychiatric unit at Florida Hospital under Dr. Kirkland's care. There, Carroll underwent psychological testing and “although there were some indicators of possible psychosis, the main thread seemed he was malingering.” After spending several days at Florida Hospital, Carroll returned to the Orange County Jail where Dr. Kirkland continued to monitor him. On October 10, 1991, Dr. Kirkland again evaluated Carroll, at which time he concluded that Carroll was legally sane and competent to stand trial and that he suffered from antisocial personality disorder. Citing lack of investigative reports of the crime, however, Dr. Kirkland declined to give an opinion as to Carroll's mental condition at the time of the offense.
In addition to Dr. Kirkland, Dr. Gutman also testified he believed Carroll was competent to stand trial. Dr. Gutman testified he examined Carroll once, on September 26, 1991, and reviewed medical information dating back to 1980, jail clinic files, and investigative reports dealing with the alleged offenses. Based upon his own evaluation and the reports provided to him, Dr. Gutman made a diagnosis “that [Carroll] has a substance abuse problem with alcohol and drugs; that he was malingering at the time I saw him; and that he has a long term character and behavior disorder with antisocial passive/aggressive and borderline personality traits.” In his written report to the court, Dr. Gutman added he believed Carroll was “of average to high average intelligence,” despite a score of 60 on an IQ test performed at Florida Hospital shortly after the arrest, and noted “[t]his inconsistency would point to conscious efforts to look retarded or mentally ill.” Dr. Gutman declined to offer an opinion on Carroll's mental status at the time of the offense, citing lack of information provided by Carroll. FN2. Carroll claimed to have no memory of the sexual assault and murder of Christine McGowan.
Dr. Danziger was the last expert witness to testify at the competency hearing. Dr. Danziger evaluated Carroll on October 14, 1991; he also reviewed Carroll's medical records, jail clinic files, and investigative reports to help formulate his opinions. On the basis of his evaluation and the other information supplied to him, Dr. Danziger, like Dr. Kirkland and Dr. Gutman, testified he believed Carroll was competent to stand trial. Dr. Danziger also provided a written report to the court, in which he diagnosed Carroll with “Schizophrenia, Chronic Undifferentiated Type,” alcoholism, and multiple drug abuse; he added he believed Carroll was “genuinely psychotic” the night of the offense, but admitted that he offered the opinion “without much certainty or forcefulness” and that “[t]his is probably one of those opinions that is a 51% for and 49% against.” His report also noted Carroll's psychological testing results from Florida Hospital; these results included a verbal IQ score of 58, which the doctor who conducted the testing determined “was not reliable and underestimated [Carroll's] intelligence because he was not cooperating.” Based upon his own observations, Dr. Danziger described Carroll's intellect as “roughly in the average to below average range” and concluded “[t]here was no evidence to suggest that he had mental retardation.”
After considering the testimony from the competency hearing and the reports of the four experts who testified, Judge Miller found Carroll was competent to proceed to trial and to assist his attorney in preparation of his defense and issued an order to that effect on December 27, 1991.
Dr. Benson, Dr. Danziger, and Dr. Elizabeth McMahon, a clinical psychologist, testified for the defense. Dr. McMahon, the only expert who did not also testify at the competency hearing, examined Carroll for three hours on November 1, 1990, just two days after the murder. During that examination, Dr. McMahon observed that Carroll was “extremely disorganized,” “only partially oriented,” and, in her clinical opinion, “experiencing both auditory and visual hallucinations.” Dr. McMahon described the examination as “difficult” and concluded that, before further examination could occur, Carroll needed to be on an antipsychotic medication. She also told the jury she believed Carroll was psychotic-and not malingering-at the time of the interview.
Dr. Danziger testified as to the same diagnoses that he provided in his written report to the court following his examination of Carroll in October 1991: (1) schizophrenia, chronic differentiated type, (2) alcoholism, and (3) multiple drug abuse. Dr. Danziger acknowledged the question of insanity at the time of the offense was “frankly a very difficult call” because there were no witnesses and Carroll had no recollection of the crime. Based upon witness statements, however, Dr. Danziger was able to opine Carroll “was psychotic both before and after the offense and, in fact, was quite grossly and bizarrely psychotic.” Because of the psychosis, Dr. Danziger told the jury “it's my opinion that more likely than not [Carroll] was not responsible for his actions and was so psychotic he was unable to distinguish right from wrong.” On cross-examination, Dr. Danziger admitted he still felt uncertain about his opinion, and he agreed with a statement in his written report that it was a close call-“51% for and 49% against.”
Dr. Benson was the final witness for the defense. As he did at the competency hearing, Dr. Benson explained his observations from his two examinations of Carroll. He informed the jury that, following the second examination, he had determined three diagnoses for Carroll: (1) “paranoid schizophrenia,” (2) a “history of previous significant poly-substance abuse,” and (3) “borderline intelligent quotient.” With respect to the third diagnosis, Dr. Benson noted previous psychological tests had placed Carroll's IQ at 79, which was “absolutely below average IQ.” Dr. Benson also provided an opinion as to Carroll's sanity at the time of the offense, testifying, “all in all, I think it is most likely that the defendant was actively psychotic at the time of the alleged crime, [and] therefore, did not know what he was doing or its consequences.” On cross-examination, Dr. Benson acknowledged he was unable to form *1360 an opinion as to whether Carroll could distinguish between right and wrong.
The State called Dr. Kirkland as a rebuttal witness. Dr. Kirkland testified that, following psychological tests and examinations conducted at Florida Hospital in early December 1990, Dr. Kirkland could not make a “clear cut diagnosis” of Carroll. He noted, however, the testing indicated elements of depression, psychosis, and malingering. Although Dr. Kirkland explained he initially believed, prior to Carroll's stint at Florida Hospital, that he was not competent to stand trial, he reconsidered his opinion following an October 1991 examination and reported he thought Carroll was competent. Based upon that later examination, Dr. Kirkland diagnosed Carroll with antisocial personality, alcohol abuse, and a schizophrenia residual or chronic paranoid-type of personality disorder. Dr. Kirkland also testified he was initially unable to provide an opinion as to Carroll's mental condition at the time of the offense, but after reviewing investigative reports of the crime, he believed “if Mr. Carroll, in fact, did this crime that at the time, though he may have been intoxicated at the time, he knew what he was doing, knew the nature and consequences of it and knew that it was wrong.”
Following three days of testimony, the jury convicted Carroll of both charges, and the trial moved into its penalty phase. During this proceeding, the defense argued “[t]he mitigators ... deal with his mental condition,” but declined to call any witnesses because the doctors who “were able to render any type of relevant testimony as to his psychiatric condition at around the time of the offense have already testified and I don't want to open up the door to anything I've discussed with him.” The defense did, however, submit an investigative report from 1969 indicating Carroll had been sexually molested as a child.
At the conclusion of the penalty phase, the jury returned a recommendation of death for the first-degree murder conviction by a vote of twelve to zero. Judge Perry followed the jury's recommendation and sentenced Carroll to death. He found three aggravating circumstances and no statutory mitigating factors, but concluded as a nonstatutory mitigating factor that Carroll suffered from “some possible mental abnormalities and has an antisocial personality.”
On appeal to the Florida Supreme Court, Carroll raised five arguments, which included a claim that the trial court “failed to consider (or gave only little weight to) highly relevant and appropriate mitigating circumstances” during sentencing. In support of this claim, Carroll noted the extensive trial testimony regarding his mental health. He also maintained “[t]here was evidence ... presented that the defendant has a below normal intelligence, which is a factor in mitigation.” The Florida Supreme Court affirmed Carroll's conviction and sentence. Carroll I, 636 So.2d at 1321. The United States Supreme Court denied Carroll's petition for writ of certiorari on October 31, 1994. Carroll v. Florida, 513 U.S. 973, 115 S.Ct. 447, 130 L.Ed.2d 357 (1994).
D. Carroll's First 3.850 Motion for Post-Conviction Relief
On February 1, 1996, Carroll filed his first motion to vacate judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850. He later submitted an amended motion, in which he raised 24 claims. Judge Perry again presided over the proceedings. Following a HuffFN3 hearing, he concluded an evidentiary hearing *1361 was necessary on five of the claims, including Carroll's claims that his counsel was ineffective for failing to provide background materials to mental health experts to assist them in determining Carroll's insanity and intoxication at the time of the offense (Claim VI), that his counsel was ineffective for failing to provide background materials to mental health experts to assist them in determining Carroll's competency (Claim XIX), and that his counsel was ineffective for failing to properly investigate and provide the mental health experts with necessary information, thereby resulting in the loss of the affirmative defense of insanity (Claim XXI). On August 4-5, 1997, Judge Perry conducted an evidentiary hearing, during which five expert witnesses testified for the defense as to Carroll's mental health. Of these experts, three-Dr. McMahon, Dr. Danziger, and Dr. Gutman-testified at the guilt phase of Carroll's trial.
FN3. Huff v. State, 622 So.2d 982 (Fla.1993).
Dr. Barry M. Crown, a psychologist who specialized in clinical and forensic psychology and neuropsychology, was the first health expert to testify. Dr. Crown had evaluated Carroll twice in 1997 and had conducted a number of neuropsychological tests during those meetings. The tests examined different facets of Carroll's intellectual functioning, including, “[i]n lay terms, how smart [Carroll] [wa]s, how well he deal[t] with difficulties,” and “his intellectual efficiency.” Based upon these tests, Dr. Crown testified Carroll's full scale IQ was 81 and described this score as being “in the border-line range, which is this nether nether land between mentally retarded and being low average.”FN4 He added the tests indicated Carroll had a problem-solving capacity “of someone who's 11 years and five months old” and had an attentional capacity “of someone who was about eighty years old suffering from the beginning of a degenerative process.” Dr. Crown further testified regarding Carroll's general ability: [H]is reading ability was at about the second grade level, spelling at about the third grade, simple arithmetic at about the fifth grade level. That's actually a range in the .08 percentile. That means that roughly better than 99 out of 100 people are able to process this better than he. And even at his best, 98 out of a hundred are able to function at a level that's significantly higher than he is.
Carroll's performance on the neuropsychological tests led Dr. Crown to conclude Carroll suffered from brain damage that affected his intellectual, cognitive, and affective capacities. FN4. Dr. Crown also placed Carroll's verbal IQ at 84 and his performance IQ at 79.
Dr. Crown further opined this brain damage had manifested early in Carroll's life, largely the result of fetal alcohol syndrome, physical abuse, and substance abuse. As support for this conclusion, Dr. Crown testified Carroll's brain capacity had not changed since he was a child, noting that Carroll's 1997 tests yielded similar results to those conducted when Carroll was twelve and thirteen years old. Specifically, Dr. Crown explained Carroll's childhood tests “produced the same numbers, the same scores that, that I [found]; they were in the same, same reference group with a minimal variance. And there's a great deal of similarity in terms of those identified functions.” He noted Carroll produced a full-scale IQ of 80 on the Weschler Intelligence Scale for Children in both 1968 and 1969, and testified “it's highly unlikely that someone could fake that number on a deliberate basis beginning when they were 12 years old.” Dr. Crown did mention a 1990 test had yielded a verbal IQ of 58 but explained the score was a lower outlier because Carroll was psychotic at the time of the test. Dr. Crown concluded his testimony on direct examination by stating if he had been given the opportunity to conduct the testing in 1992 and to testify at Carroll's trial, he would have testified Carroll met the requirements for two statutory mitigating factors-specifically, Carroll's capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of the law was substantially impaired, and Carroll committed the murder under the influence of extreme mental or emotional disturbance.
Like Dr. Crown, Dr. Jethro W. Toomer, a forensic psychologist, was a new mental health expert for the defense. Dr. Toomer stated he conducted a psychological evaluation of Carroll on January 25, 1996, at the request of Carroll's counsel. After examining Carroll and reviewing his medical records, Dr. Toomer believed Carroll “present[ed] symptomatology that r[an] the entire gamut of several personality disorders, all the way through to a major mental disorder. At times he manifest[ed] symptomatology indicative of psychosis ... and at other times he manifest[ed] symptomatology reflecting a severe personality disorder.” Dr. Toomer further testified Carroll's mental history was inconsistent with a conclusion that he was malingering at the time of trial. Based upon these conclusions, he stated that had he been called during Carroll's penalty phase, he would have testified Carroll was unable to appreciate the criminality of his conduct and suffered from severe mental or emotional disturbance.
Dr. McMahon and Dr. Danziger again testified for the defense and reiterated their initial conclusions as to Carroll's mental status and competency. Like Dr. Crown and Dr. Toomer, they both testified that if they would have been called during the penalty phase of Carroll's trial proceedings, they would have opined that Carroll's capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of the law was substantially impaired, and that he committed the murder under the influence of extreme mental or emotional disturbance.
Dr. Gutman was the final mental health expert to testify at the evidentiary hearing on Carroll's 3.850 motion. Dr. Gutman had testified for the State at trial, but had changed his diagnosis after reviewing Carroll's entire medical history and psychological evaluations. After initially concluding Carroll had psychosexual and mixed personality disorders and was malingering during his September 1991 evaluation, Dr. Gutman amended his diagnosis to include brain damage: “My current diagnosis would be mental disorder with mood, memory, personality change and cognitive decline associated with alcohol deterioration and influence on the brain.”FN5 Dr. Gutman explained the portions of Carroll's history that led to his new diagnosis, including school records that indicated Carroll's IQ was “in the 75 to 85 range.” Dr. Gutman further testified that had he been called during Carroll's penalty phase, he would have given an opinion that Carroll was unable to appreciate the criminality of his conduct and suffered from severe mental or emotional disturbance.
FN5. This new diagnosis, however, did not alter Dr. Gutman's initial diagnoses of psychosexual and mixed personality disorders and malingering, which he still maintained at the time of the post-conviction evidentiary hearing. Those traits were still present, with Carroll's brain damage explaining why he possessed them.
On October 20, 1998, Judge Perry entered an order denying all of Carroll's claims for post-conviction relief. The Florida Supreme Court later affirmed the trial court's order and denied Carroll's petition for a writ of habeas corpus. Carroll II, 815 So.2d at 607.
E. Carroll's Successive 3.850 Motion
On April 22, 2003, Carroll filed a successive 3.850 motion, raising two new claims based upon the Supreme Court's decisions in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). With respect to his Atkins claim, Carroll argued he was exempt from execution under the Eighth Amendment because he was “borderline mentally retarded and/or suffering from such severe brain damage and mental limitations that death could never be an appropriate punishment.”
Judge Perry, who had presided over Carroll's trial in 1992 and his initial post-conviction proceedings in 1997, once again was assigned the case and, on June 12, 2003, held a Huff hearing on Carroll's new claims. At that hearing, Carroll's collateral counsel maintained Carroll had made a prima facie showing of mental retardation to warrant an evidentiary hearing under Atkins: “It's our contention he has substantial limitation of present functioning. IQ range from 75 to 81. Postconviction and trial record demonstrate he also suffers from other mental illness, comparative reasoning.” As support for this argument, collateral counsel relied solely on existing evidence in the record and did not proffer any additional evidence regarding Carroll's mental retardation.FN6 Specifically, collateral counsel cited Dr. Crown's testimony regarding Carroll's IQ and intellectual ability from the evidentiary hearing on Carroll's initial 3.850 motion. He also pointed to evidence in the record pertaining to Carroll's reading, spelling, and arithmetic abilities as well as his poor performance in school, contending Carroll's learning disabilities evidenced a significant limitation in adaptive functioning. Collateral counsel further argued Carroll had exhibited problems with self-direction and self-care during his life. He concluded by noting Carroll's deficits in adaptive behavior manifested by age eighteen.
FN6. In his briefs to this Court, Carroll states, without citation to the record, that he proffered a recent IQ score of 75 to the state court. We have found nothing in the record supporting this statement. At the Huff hearing, Carroll's counsel did maintain Carroll had posted an IQ score of 75, but counsel made this statement in his reply to the State's argument and did not provide any further information regarding this score, including whether it was the result of recent testing. Likewise, Carroll's successive 3.850 motion does state he “has been measured with a full scale IQ at 75.” This number, however, appears to be an average of several previous IQ scores; the successive 3.850 motion does not mention any recent testing. Indeed, at oral argument, Carroll's counsel conceded no new evidence was proffered to the state court.
On January 12, 2004, the trial court summarily denied Carroll's successive 3.850 motion. With respect to Carroll's Atkins claim, Judge Perry considered the evidence presented at trial, the prior evidentiary hearing on Carroll's first 3.850 motion, and the Huff hearing on his successive motion-all proceedings over which Judge Perry had presided-and concluded “Defendant does not meet the definition of mentally retarded as set forth in Atkins because his IQ score is and was over 75.” He also found the record showed no significant limitation in Carroll's adaptive skills. Accordingly, Judge Perry denied Carroll's mental retardation claim. Furthermore, he declined to apply Atkins to the mentally ill, noting “the eighth amendment of the United States Constitution prohibits the execution of insane prisoners and there are already numerous safeguards in place for the protection of the truly insane.” On May 12, 2005, the Florida Supreme Court affirmed without an opinion. Carroll v. State, 904 So.2d 430 (Fla.2005) ( Carroll III).
F. Carroll's § 2254 Petition
On June 8, 2005, Carroll filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with the United States District Court for the Middle District of Florida, raising seven claims for relief. Without conducting an evidentiary hearing, the district court denied Carroll's petition. The bulk of the district court's order addressed Carroll's Atkins claim. Regarding Carroll's mental capacity, the district court concluded “the record supports the trial court's finding that Petitioner's IQ is over 75, and Petitioner has failed to rebut this finding by clear and convincing evidence.” Interpreting Atkins to apply only to persons who possess IQs of 75 or lower, the district court determined the state trial court's decision that Carroll was not entitled to relief was not “contrary to” or “an unreasonable application of” clearly established federal law and “was not unreasonable in light of the substantial evidence supporting its conclusion.” Furthermore, the district court declined to extend Atkins to the mentally ill and thus denied Carroll's equal protection claim as well. Carroll filed a notice of appeal with this Court, and the district court granted a COA as to Carroll's Atkins claim. This Court later denied Carroll's request to expand the COA to cover additional issues.
II. STANDARD OF REVIEW
Following a district court's denial of a habeas petition, this Court reviews questions of law and mixed questions of law and fact de novo and findings of fact for clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir.2000) (per curiam). Carroll filed his federal habeas petition after April 24, 1996, and thus this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which “establishes a highly deferential standard for reviewing state court judgments.” Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 768 (11th Cir.2003). Under AEDPA, a federal court shall not grant habeas relief on claims that were previously adjudicated in state court unless the state court's decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
III. DISCUSSION
Carroll essentially asserts two Atkins claims in his § 2254 petition. First, he maintains that he is “functionally mentally retarded,” a status that exempts him from execution under Atkins, and that the state court's denial of his request for an evidentiary hearing as to this issue violated his due process rights. Second, he contends the state trial court's decision not to extend Atkins to the mentally ill violated his equal protection rights because the mentally ill are similarly situated to the mentally retarded and the rationale behind Atkins applies equally to persons with mental illnesses.
A. Due Process-Mental Retardation
Carroll argues his due process rights were violated when the state court failed to grant an evidentiary hearing on his claim of mental retardation under Atkins. Carroll asserts the records on which the state trial court relied to determine he did not meet the definition of mental retardation under Atkins were incomplete, inconsistent, and analyzed outside the context of a mental retardation hearing. He further contends the record suggests his IQ may be less than 75, and an evidentiary hearing is necessary to conclusively establish his *1365 level of intellectual functioning and adaptive behavior.
Carroll conflates a number of issues in his due process argument, and we believe separating these issues provides clarity in determining both the appropriate legal analysis and the appropriate remedy. We thus construe Carroll's briefs and oral argument as advocating three separate bases of relief: (1) Carroll is entitled to habeas corpus relief because the state court violated his due process rights by failing to grant an evidentiary hearing on his Atkins claim, (2) Carroll is entitled to habeas corpus relief because he is mentally retarded and thus exempt from execution under Atkins, and (3) Carroll is entitled to an evidentiary hearing on his Atkins claim, and we should remand this case to the district court to conduct one.
We consider these issues in turn.
1. Whether the state trial court violated Carroll's due process rights when it declined to grant him an evidentiary hearing on his claim of mental retardation.
Carroll contends the state trial court violated his due process rights when it summarily denied his Atkins claim of mental retardation without an evidentiary hearing. He maintains Florida law required the state court to conduct an evidentiary hearing on his successive post-conviction motion because the claim was legally sufficient under Atkins and not conclusively refuted by the record. Carroll also insinuates federal law ( i.e., Atkins itself), in addition to Florida law, mandated that the state court conduct an evidentiary hearing in this case. This Court has repeatedly held defects in state collateral proceedings do not provide a basis for habeas relief. See, e.g., Anderson v. Sec'y for Dep't of Corr., 462 F.3d 1319, 1330 (11th Cir.2006) (per curiam); Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir.2004); Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir.1987) (per curiam). The reasoning behind this well-established principle is straightforward: a challenge to a state collateral proceeding does not undermine the legality of the detention or imprisonment- i.e., the conviction itself-and thus habeas relief is not an appropriate remedy. See Quince, 360 F.3d at 1261-62; Spradley, 825 F.2d at 1568. Moreover, such challenges often involve claims under state law-for example, Florida Rules of Criminal Procedure 3.850 and 3.851, which govern the availability of, and procedures attendant to, post-conviction proceedings in Florida-and “[a] state's interpretation of its own laws or rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved.” See McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir.1992).
Because of this bar to relief, we have stated it is “beyond debate” that a state court's failure to conduct an evidentiary hearing on a post-conviction motion does not constitute a cognizable claim for habeas relief. See Anderson, 462 F.3d at 1330. In Spradley, we considered a habeas petition in which a Florida inmate claimed “the state trial court which heard and denied his 3.850 motion violated his due process rights because it failed to conduct an evidentiary hearing and did not attach to its opinion denying relief those portions of the record on which it relied.” 825 F.2d at 1567. We rejected this claim, holding a state court's failure to conduct an evidentiary hearing cannot form the basis for habeas relief because such an error does not “undermine[ ] the validity of petitioner's conviction” and is “unrelated to the cause of petitioner's detention.” Id. at 1568. We later reaffirmed this general principle in Quince, noting “an alleged defect in a collateral proceeding does not state a basis for habeas relief.” 360 F.3d at 1262.
Under this Court's precedent, Carroll's claim that the state court violated his due process rights by failing to conduct an evidentiary hearing under Florida Rule of Criminal Procedure 3.850 and 3.851 on his post-conviction Atkins claim does not state a claim on which this Court may grant habeas relief. See Spradley, 825 F.2d at 1568. Carroll does not address this bar to relief. Accordingly, we deny Carroll's due process claim for habeas relief to the extent it rests on the state court's failure to grant an evidentiary hearing under Florida law.
Carroll has also suggested the Atkins decision itself compels state courts to conduct evidentiary hearings on claims of mental retardation. Atkins, however, simply sets forth the constitutional prohibition on the execution of mentally retarded individuals, and it specifically “leave[s] to the States the task of developing appropriate ways to enforce the constitutional restriction,” Atkins, 536 U.S. at 317, 122 S.Ct. at 2250, which presumably includes the availability of, and procedures attendant to, evidentiary hearings before state trial courts, see Fla. R. Crim P. 3.203(e), 3.850(d), 3.851(f)(5)(A)-(B). Carroll points to no language in Atkins, or any other decision of the Supreme Court or this Court, to support his argument that federal law requires state courts to conduct evidentiary hearings on every claim of mental retardation-especially in cases, such as Carroll's, in which a petitioner has presented evidence regarding his mental health in three prior proceedings. Finding no case to support Carroll's argument ourselves, we conclude his due process claim regarding the failure of the state court to conduct an evidentiary hearing does not state a cognizable claim for habeas relief. FN7. Although not a basis for our holding on this issue, we again note Carroll did not proffer any new evidence regarding his mental retardation claim before the state court at the Huff hearing. Rather, the evidence he proffered was limited to testimony and affidavits from the evidentiary hearing on his initial 3.850 motion.
2. Whether Carroll is exempt from execution under Atkins because he is mentally retarded.
Carroll maintains he is mentally retarded and thus exempt from execution under Atkins. As evidence of his mental retardation, Carroll notes he has scored less than 75 on several IQ tests; his reading ability is at the second-grade level, his spelling ability is at the third-grade level, and his arithmetic ability is at the fifth-grade level; and he exhibited poor adaptive behavior in his childhood and adolescence.
In Atkins, the Supreme Court held the execution of mentally retarded individuals violated the Eighth Amendment's prohibition against cruel and unusual punishments. 536 U.S. at 321, 122 S.Ct. at 2252. Although the Court left “to the States the task of developing appropriate ways to enforce the constitutional restriction,” id. at 317, 122 S.Ct. at 2250, it reproduced definitions of mental retardation formulated by the American Association on Mental Retardation and American Psychiatric Association:
The American Association on Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.”
The American Psychiatric Association's definition is similar: “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C).”
Id. at 308 n. 3, 122 S.Ct. at 2245 n. 3 (internal citations and emphasis omitted). The Court also noted that “ ‘[m]ild’ mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70,” id., and that an IQ score between 70 and 75 “is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition,” id. at 309 n. 5, 122 S.Ct. at 2245 n. 5.
When Atkins was decided in 2002, the state of Florida already had a law prohibiting the execution of mentally retarded individuals. See Fla. Stat. § 921.137. That law defines “mental retardation” as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” The statute further defines “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test.” The Florida Supreme Court has interpreted this definition as requiring a petitioner to establish he has an IQ of 70 or below. See Jones v. State, 966 So.2d 319, 329 (Fla.2007). Section 921.137, however, applies only to persons sentenced to death after the effective date of the statute in 2001. Fla. Stat. § 921.137(8). Thus, as the district court noted, § 921.137 is inapplicable to Carroll, and “it is only within the context of Atkins' mental retardation definition that this Court evaluates Petitioner's claim.”
The state trial court made factual determinations that Carroll is not mentally retarded and that he possesses an IQ of above 75. In challenging these determinations, Carroll points to evidence in the record indicating he has scored below 75 on previous IQ tests. Specifically, he notes the trial testimony of Dr. Michael Gutman, who testified “psychological tests showed [Carroll] to have an IQ of sixty or in the sixty to sixty-nine range.” Carroll also states he scored a 58 on an IQ test shortly after being arrested. With respect to his adaptive behavior, Carroll emphasizes his poor cognitive abilities, citing the testimony of Dr. Barry Crown and Dr. Elizabeth McMahon at the evidentiary hearing on his initial post-conviction motion, as well as adolescent behavioral problems, citing an affidavit of Nelly T. Smith, his sister.
This evidence fails to undermine the state court's factual determinations or establish those determinations were unreasonable in light of the evidence before the state trial court. See 28 U.S.C. § 2254(d)(2). The record in this case is replete with evidence-presented at three separate proceedings, two of which were before the same state trial judge-supporting the state court's findings. ( See R2-20, Exh. Vol. 4 at 511-12FN8 (Dr. Gutman's*1368 testimony that Carroll was “in the high average range of intelligence” and his IQ was between 105 and 110); R2-20 Exh. Vol. 4 at 512 (IQ tests on which Carroll had scored in the high 70s and low 80s); R2-20, Exh. Vol. 6 at 758 (school IQ test of 79); R2-20, Exh. Vol. 10 at 1059 (Dr. Gutman's report indicating Carroll was “of average to high average intelligence”); R2-20, Exh. Vol. 10 at 1064 (Dr. Benson's report indicating Carroll had a borderline IQ); R2-20, Exh. Vol. 10 at 1070 (Dr. Danziger's report describing Carroll's intellect as “roughly in the average to below average range”); R2-20, Exh. PC Vol. 2 at 229 (Dr. Crown's testimony that Carroll's IQ was 81, which was in a “nether nether land between mentally retarded and being low average”); R2-20, Exh. PC Vol. 2 at 229 (tests scores showing a verbal IQ of 84 and a performance IQ of 79); R2-20, Exh. PC Vol. 2 at 237-38 (school IQ tests of 80); R2-20, Exh. PC Vol. 2 at 392 (school records indicating Carroll's IQ ranged from 80 to in the 75-to-85 range).) In addition to the facts in the record, Carroll's counsel admitted at the state Huff hearing that Carroll had an “IQ range from 75 to 81.”FN9 ( See R2-20, Exh. PC2 Vol. 1 at 23.)
FN8. The state court filings were filed with the district court as an exhibit to R2-20 and consist of three sets of volumes. One set of volumes contains the record from Carroll's trial and direct appeal; these volumes are designated as “Vol.” Another set of volumes contains the record regarding Carroll's first 3.850 motion for post-conviction relief; these volumes are designated as “PC Vol.” The final set of volumes contains the record regarding Carroll's successive 3.850 motion for post-conviction relief; these volumes are designated as “PC2 Vol.”
FN9. Counsel's argument at the Huff hearing, however, was consistent with the claim in Carroll's successive 3.850 motion-that is, Carroll is borderline mentally retarded.
Moreover, the state court considered the same evidence Carroll has presented in his briefs to this Court and found it unpersuasive. Indeed, Carroll does not provide the full context of the testimony regarding his sub-75 IQ scores: the same expert, Dr. Gutman, who testified at trial as to tests showing an IQ in the 60-to-69 range also estimated Carroll's IQ to be between 105 and 110, and Carroll's own expert at the evidentiary hearing on his initial 3.850 motion maintained Carroll's previous IQ score of 58 was likely the result of psychosis.
Finally, Carroll has never attempted to proffer any additional evidence to any court-whether it be the state courts, the district court, or this Court-that would undermine the exhaustive evidence already in the record indicating he is not mentally retarded. Quite simply, Carroll has had numerous opportunities ( i.e., his competency hearing, his trial, and the evidentiary hearing on his initial 3.850 motion) during the past eighteen years to present evidence supporting a finding of mental retardation.FN10 The state trial court judge, who presided over both Carroll's trial and evidentiary hearing on his initial 3.850 motion and was intimately aware of the evidence presented during these proceedings, found he had failed to do so, and the record supports this finding.
FN10. Although Atkins was not decided until 2002, mental retardation has long been considered a mitigating circumstance under Florida law. See Crook v. State, 813 So.2d 68, 77 n. 7 (Fla.2002) (listing cases).
Our review does not stop here, however, because Carroll also maintains the state court construed Atkins too narrowly, and thus its decision is “contrary to” or “an unreasonable application” of clearly established federal law. He maintains Atkins does not require individuals to possess a certain IQ ( i.e., below 75) to satisfy the definition of mental retardation. He further asserts the intellectual functioning prong of the mental retardation inquiry is “interrelated” with the adaptive behavior prong. Thus, according to Carroll, a borderline IQ, accompanied by a serious mental illness that substantially impairs an individual's cognitive abilities, can satisfy the definition of mental retardation in *1369 some circumstances. He asserts his case is one such circumstance.
As the district court noted, the mental health experts who have evaluated Carroll have diagnosed him with a myriad of mental disorders, including schizophrenia, psychosis, fetal alcohol syndrome, brain damage, psychosexual disorder, and personality disorder. Although some evidence in the record suggests Carroll malingered during his examinations, we do not doubt Carroll indeed suffers from some, if not multiple, forms of mental illness. That said, the mental retardation inquiry is not different merely because an individual suffers from mental illness. The inquiry still requires an individual to demonstrate “significantly subaverage general intellectual functioning” along with deficits in adaptive behavior and an onset before age 18. In other words, contrary to Carroll's assertions, the intellectual functioning and adaptive behavior prongs must each be satisfied for an individual to qualify as mentally retarded. See Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. at 2245 n. 3 (reproducing the American Association on Mental Retardation's and the American Psychiatric Association's definitions of mental retardation, which both state the three-criteria test for mental retardation in the conjunctive); see also Fla. Stat. § 921.137 (stating significantly subaverage general intellectual functioning must exist concurrently with deficits in adaptive behavior).
Carroll further asserts his mental illness can render him “functionally mentally retarded,” as was apparently the case when a psychotic episode caused him to perform poorly on an IQ test shortly after his arrest. Under Carroll's interpretation of Atkins, “the functionally mentally retarded” are also exempt from execution. We reject this argument for the same reasons articulated by the district court. Atkins protects only those individuals who are mentally retarded, as is evident by the third prong of the mental retardation inquiry, which requires onset by age 18. See id., 122 S.Ct. at 2245 n. 3; see also Fla. Stat. § 921.137. Thus, a constitutional rule exempting the “functionally mentally retarded” from execution would go beyond the holding of Atkins, something this Court may not do when reviewing § 2254 petitions. See 28 U.S.C. § 2254(d)(1); see also infra III.B.
In sum, we conclude the state court's factual determination that Carroll is not mentally retarded was reasonable and thus Carroll has failed to demonstrate the state court's denial of his Atkins claim “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(2). We also hold the state trial court reasonably applied the controlling Supreme Court precedent ( Atkins) and thus its decision was not “contrary to” or “an unreasonable application of” clearly established federal law. See 28 U.S.C. § 2254(d)(1). Accordingly, we deny this claim.
3. Whether this case should be remanded for the district court to conduct an evidentiary hearing.
Carroll alternatively argues this Court should remand his Atkins claim to the district court for an evidentiary hearing to determine his mental capacity. The Supreme Court has held federal courts must take into account the deferential standards prescribed by AEDPA in determining whether an evidentiary hearing is appropriate. See Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007). “It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id. at 474, 127 S.Ct. at 1940. In this case, the factual *1370 record is sufficient for this Court to conclude the state court's adjudication was not “contrary to” or “an unreasonable application of” clearly established federal law or “based on an unreasonable determination of the facts.” See supra III.A.2. Ample evidence, in the form of exhaustive expert testimony from Carroll's competency hearing, trial, and initial post-conviction evidentiary hearing, supports the state court's determination that he is not mentally retarded. Accordingly, an evidentiary hearing on Carroll's Atkins claim is unnecessary. FN11. Although Carroll did not explicitly raise the argument, we conclude, for the same reasons, the district court did not abuse its discretion in disposing of Carroll's § 2254 petition without conducting an evidentiary hearing.
B. Equal Protection-Mental Illness
In addition to his mental retardation claims, Carroll maintains he is also exempt from execution because he is mentally ill. He maintains the rationale behind the Supreme Court's decision in Atkins applies equally to persons “who are unable to control their conduct due to mental illness.” Specifically, he notes mentally ill persons, like the mentally retarded, act with a lesser moral culpability, and this lesser culpability does not merit retribution in the form of the death penalty. Carroll also asserts executing mentally ill persons does not further the goal of deterrence because, like the mentally retarded, the mentally ill cannot process the possibility of execution as a penalty and control their conduct based on that information. Carroll argues the state court's failure to apply Atkins to the mentally ill was a violation of his right to equal protection.
Atkins did not explicitly address the suitability of capital punishment within the context of mentally ill individuals. Carroll, however, requests this Court extend Atkins to prohibit the execution of the mentally ill. Such an extension would constitute a new rule of constitutional law. See Spaziano v. Singletary, 36 F.3d 1028, 1042 (11th Cir.1994) (“Even if the result the habeas petitioner seeks is within the logical compass of a prior Supreme Court decision; even if prior Supreme Court decisions inform, or even control or govern, the analysis of the claim; it is still a new rule claim unless the rule is actually dictated by pre-existing precedent.” (internal citations and quotation marks omitted)). Under AEDPA, however, this Court cannot create new rules of constitutional law within the context of a habeas petition by a state prisoner. See 28 U.S.C. § 2254(d)(1) (stating a federal court may not grant habeas relief to a state prisoner unless the adjudication of his claim in state court “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” (emphasis added)). Accordingly, sans a decision from the Supreme Court barring the execution of mentally ill prisoners, we reject Carroll's claim that he is exempt from execution because he is mentally ill.
IV. CONCLUSION
Carroll has failed to demonstrate the state court's conclusion that he was not entitled to relief under Atkins was “contrary to” or “an unreasonable application of” clearly established federal law or “based on an unreasonable determination of the facts.” See 28 U.S.C. § 2254(d). Accordingly, we affirm the district court's denial of his § 2254 petition. AFFIRMED.
DC#: 835908
DOB: 08/19/56
02/21/07 USDC 05-857 Response
10/23/07 USDC 05-857 Reply
06/20/08 USDC 05-857 Denied
12/04/08 USCA 08-14317 Habeas Appeal
07/24/09 USCA 08-14317 USCA affirmed the denial of the Petition.
08/24/09 USSC 09-6134 Cert Writ filed
11/02/09 USSC 09-6134 Cert denied
Sentencing Judge: The Honorable Belvin Perry
Trial Attorney: James E. Taylor, Esq. – Private
Attorneys, Direct Appeal: J. Wulchak & C. Quarles – Assistant Public Defenders
Attorney, Collateral Appeals: Michael P. Reiter, Esq. – Registry
Date of Offense: 10/30/90
Date of Sentence: 04/16/92
Offense: LEWD,LASCIVIOUS CHILD U/16
Sentence Date: 01/08/1980
County: PASCO
Prison Sentence Length: 6Y 0M 1D
Offense: LEWD,LASCIVIOUS CHILD U/16
Sentence Date: 02/01/1983
County: PASCO
Case No. 8202170
Prison Sentence Length: 15Y 0M 0D
FSC #79,829
636 So. 2d 1316
04/14/94 FSC affirmed the convictions and sentence of death.
06/09/94 Rehearing denied.
07/11/94 Mandate issued.
USSC #94-6014
513 U.S. 973
09/07/94 Petition filed.
10/31/94 Petition denied.
CC #90-12464
02/01/96 Motion filed.
10/20/98 Motion denied.
FSC #94,611
815 So.2d 601
12/31/98 Appeal filed.
03/07/02 Decision affirmed.
04/19/02 Rehearing denied.
05/20/02 Mandate issued.
FSC #SC00-46
815 So.2d 601
01/10/00 Petition filed.
03/07/02 Petition denied.
04/19/02 Rehearing denied.
05/20/02 Mandate issued.
CC #90-12464
04/22/03 Motion filed.
01/12/04 Motion denied.
FSC #SC04-192
904 So. 2d 430
02/09/04 Appeal filed.
05/12/05 FSC affirmed the denial of the Motion.
USDC# 05-857
06/08/05 Petition filed.
06/20/08 Petition denied.
USDC# 08-14317
12/04/08 Appeal filed.
07/17/09 USCA affirmed the denial of the Petition.
USSC# 09-6134
130 S.Ct. 500
08/24/09 Petition filed.
11/02/09 Petition denied.
05/18/93 00 DEST. OF ST. PROP. FSP
05/25/94 00 DISRESP.TO OFFICIALS UNION C. I.
04/05/95 00 UNAUTH USE OF DRUGS UNION C. I.
04/27/95 00 POSS OF CONTRABAND UNION C. I.
03/16/96 00 ARSON OR ATTEMPT UNION C. I.
07/10/96 90 OBSCENE PROFANE ACT UNION C. I.
08/08/98 00 DISORDERLY CONDUCT UNION C. I.
01/10/99 00 DISRESP.TO OFFICIALS UNION C. I.
07/27/99 00 SPOKEN THREATS UNION C. I.
09/02/99 00 DISORDERLY CONDUCT UNION C. I.
10/01/99 00 POSS OF CONTRABAND UNION C. I.
05/10/00 60 DISRESP.TO OFFICIALS UNION C. I.
02/23/01 60 DISRESP.TO OFFICIALS UNION C. I.
06/01/02 60 DISORDERLY CONDUCT UNION C. I.
11/10/04 60 DISOBEYING ORDER UNION C. I.
A. The Crime