SCHOENWETTER v. STATE

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gton#p694466 U.S. at 694, 104 S.Ct. 2052; see Porter v. McCollum, ___ U.S. ___, 130 S.Ct. 447, 455-56, 175 L.Ed.2d 398 (2009).

During the penalty phase, the defense's case focused largely on proving mental health mitigation. Three experts, Dr. William Riebsame, Dr. Nona Currie Prichard, and Dr. Joseph Wu, testified extensively regarding their examinations of the defendant. Dr. Riebsame explained to the jury that Asperger's Syndrome is a neurological disorder which reflects an abnormal brain pathology. He testified that individuals diagnosed with the condition have impaired social skills and often find it difficult to get along with others. Asperger's patients also tend to develop an extreme, all-encompassing preoccupation with some area of interest. According to Dr. Riebsame, "They begin to identify with that particular topic, become very well informed about that topic, and their life centers around that particular topic." Dr. Riebsame stated that, in appellant's case, appellant had become focused on sexuality at an unusually early age, engaging in such behavior as dialing 900 phone lines at the age of ten or eleven and viewing pornographic and satanic websites, including child pornography, at an early teenage age. In Dr. Riebsame's evaluation, it was appellant's obsession with witchcraft, Satanism, and sexuality which caused him to enter the Friskey home on the night of the offenses. He expressed his opinion that appellant was under an extreme mental or emotional disturbance at the time of the homicides.

After Dr. Riebsame's testimony, defense counsel called Commander Bobby Mutter of the Titusville Police Department as a partial rebuttal witness to counter the assertion that appellant was interested in child pornography, as opposed to adult pornography. Commander Mutter testified concerning an incident in which appellant's mother brought to the police a CD-ROM containing what she believed might be child pornography that her son had downloaded from the Internet. Commander Mutter informed the jury that he and another investigator reviewed the images, but determined that the women depicted therein were all eighteen years of age or older. No further action was taken by the police on the matter.

Dr. Prichard also described the symptoms of Asperger's Syndrome. Like Dr. Riebsame, she testified that individuals with the condition have a difficult time getting along with others socially. This was due, she explained, to their inability to perceive or understand others' emotions. She testified that individuals with this condition also exhibit an uncommon lack of flexibility in making decisions. Whereas most individuals are capable of reassessing a course of conduct as it progresses, Dr. Prichard stated, Asperger's patients are impaired in their ability to recognize and act on available alternatives. In appellant's case, she testified that his Asperger's Syndrome made it difficult for him to appreciate on an emotional level how his conduct affected the Friskey family, or to abandon his plan to assault the Friskey daughters once he entered the house. This deficiency caused him to panic when he was recognized by Virginia Friskey, which resulted in appellant lashing out at the girl and her parents. In Dr. Prichard's opinion, appellant's ability to conform his conduct to the requirements of the law was substantially impaired.

Dr. Wu, a medical doctor admitted as an expert in psychiatry, neuroscience and PET scan imaging, testified that appellant's PET scan indicated the presence of abnormalities within appellant's frontal lobe and temporal cortex. He explained that these results are consistent with those of individuals diagnosed with Asperger's Syndrome. Dr. Wu also testified that without therapy and medication, individuals with such conditions tend to be inflexible and rigid in their thinking and have substantial difficulty with impulse control.

Some testimony was presented regarding appellant's social background. Deborah Roberts, appellant's mother, testified that appellant's biological father, Reece Ingram, was physically abusive to her while she was pregnant with appellant, that she was malnourished during much of her pregnancy, and that she received poor prenatal care. She separated from Ingram when appellant was approximately one year old and they were later divorced. Roberts testified that once appellant started school he had difficulty making friends and was picked on by other children. He also had difficulty sitting still and paying attention, and for a time was placed on Ritalin. Appellant's performance in school improved, but the Ritalin was discontinued when appellant was in the seventh grade. Roberts eventually married Thomas Schoenwetter, who adopted appellant, and with whom Roberts later had a daughter. After Roberts and Schoenwetter divorced, Roberts moved with appellant to another city to live with a boyfriend whom Roberts met on the Internet. However, the boyfriend became physically abusive toward appellant, and Roberts and appellant moved away after a year. Roberts testified that appellant began attending adult education classes after the tenth grade and that he had almost completed his course-work at the time of his arrest.

At the evidentiary hearing on the appellant's rule 3.851 motion, appellant's attorneys, Assistant Public Defenders J. Randall Moore and George McCarthy, testified that their trial strategy was to use the diagnosis of Asperger's Syndrome and ADHD to their advantage during the penalty phase. Moore explained that because of appellant's confession letter, the jury was going to be aware that appellant had entered the Friskey house with the intention of sexually assaulting one or both of the minor females in the house, the younger of whom was only ten years old. In their view, it was necessary to explain this conduct in a manner that could be viewed as mitigating. Moore and McCarthy hoped the jury would come to understand appellant's obsessions with Satanism and pornography as inherently linked to his previously undiagnosed Asperger's Syndrome. Their strategy was to present these obsessions as something appellant could not control, and to argue to the jury that appellant was under the influence of an irresistible compulsion on the night he committed the offenses.

Appellant strongly disagreed with his attorneys' choice of trial strategy. Several witnesses testified at the postconviction hearing that appellant had developed an interest in Christianity while awaiting trial and that he had become active with the prison ministry. According to his trial attorneys, appellant wanted them to refrain from calling many of the witnesses they intended to present during the penalty phase and to rely exclusively on his religious conversion as mitigation. After deliberation, they concluded that this line of testimony would not be beneficial to appellant's case, and no such witnesses were presented to the jury on this topic. This decision, as well as appellant's desire that his attorneys not object to the admission of certain victim impact evidence, caused friction between appellant and his attorneys, which resulted in defense counsel filing a motion to withdraw. On direct appeal, we determined that the trial court's denial of this motion was proper. See Schoenwetter, 931 So.2d at 870.

Appellant now challenges several aspects of his attorneys' defense. He argues that Moore and McCarthy (1) failed to object to improper remarks during the State's opening argument; (2) presented witnesses that portrayed appellant in a negative light; (3) failed to call potential witnesses who could have aided the defense; (4) presented conflicting and unprepared expert witnesses; and (5) failed to sufficiently emphasize mitigating issues during closing argument.

In conducting our review, there is a strong presumption that trial counsel's performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. "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." Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to "overcome the presumption that, under the circumstances, the challenged action `might' be considered sound trial strategy." Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). "[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000).

1. Failure to Object to State's Opening

In his first claim of penalty phase deficiency, appellant argues that his attorneys should have objected to a comment made by the State during opening argument. In that statement, the Assistant State Attorney described appellant's friendship with Chad Friskey, the son of victims Ronald and Haesun Friskey. He informed the jury that appellant had stayed overnight at the Friskey residence on several occasions and was therefore familiar with the layout of the house. He then stated: "This relationship that the defendant had with Chad Friskey also gave him an opportunity to become acquainted with Chad's two younger sisters, Theresa and Virginia Friskey. The defendant came to see them as targets of his sexual desires and sexual fantasies." Appellant argues that this statement improperly presented the aggravating factor of sexual battery to which his attorneys should have objected.

At the postconviction evidentiary hearing, one of appellant's trial attorneys was asked why he chose not to object to this comment by the State. He explained that evidence of appellant's sexual interest in the Friskey daughters was almost certainly going to be admitted at trial through various witnesses, including the psychologists, and potentially through Chad Friskey, who was then listed as a witness. We find that counsel's decision not to object was reasonable. We explained in Jones v. State, 949 So.2d 1021, 1032 (Fla. 2006), that the purpose of an opening argument is for counsel to inform the jury "what he in good faith expected to be established by the evidence presented at trial." Because the defense attorneys anticipated that evidence supporting the State's comments would be presented at trial, they reasonably concluded that they had no grounds on which to object. See Rogers v. State, 957 So.2d 538, 550 (Fla. 2007) (explaining that trial counsel cannot be deemed ineffective for failing to object to comments that are proper). Accordingly, we find that their failure to object to this comment by the State was not deficient under Strickland. Further, because evidence of appellant's interest in the Friskey daughters was in fact presented to the jury, we find that Schoenwetter cannot establish prejudice sufficient to undermine our confidence in the outcome.

2. Introduction of Damaging Evidence

Appellant next objects to his attorneys' decision to call as witnesses Dr. Riebsame and Commander Mutter, who, appellant asserts, brought evidence of child pornography, pedophilia and Satanism into the proceedings. Appellant argues that this testimony had a detrimental impact on the minds of the jury due to strong public feelings on these matters, prejudicing his case for life in prison. We hold that trial counsel's performance was not deficient.

Reasonable decisions regarding trial strategy, made after deliberation by a claimant's trial attorneys in which available alternatives have been considered and rejected, do not constitute deficient performance under Strickland. See Occhicone, 768 So.2d at 1048. Here, the record demonstrates that appellant's attorneys made a strategic decision to call Dr. Riebsame as a witness based on their belief that his testimony would be more beneficial than harmful. After deliberation, they concluded that, while parts of Dr. Riebsame's testimony may have been unfavorable toward appellant, his testimony was needed to establish as a mitigating circumstance that appellant was under an extreme mental or emotional disturbance at the time of the offense. The attorneys were aware that a portion of this testimony would be harmful, as evidenced by their effort to mitigate any potential negative effect by calling Commander Mutter as a partial rebuttal witness.

We find that these decisions were reasonable. The most negative portion of Dr. Riebsame's testimony — appellant's interest in underage females — was almost certainly going to be (and in fact was) admitted as evidence as a result of the letter appellant had written to the trial judge. Rather than improperly emphasizing this evidence, appellant's attorneys attempted to explain appellant's own statements in a manner the jury could potentially view as mitigating. Accordingly, we reject appellant's claim that the presentation of these witnesses constituted ineffective assistance of counsel.

3. Failure to Present Mitigating Evidence

Third, appellant argues that trial counsel was ineffective for failing to sufficiently investigate and present evidence of his religious faith and social background. Comparable arguments were raised in the recent case of Jones v. State, 998 So.2d 573 (Fla. 2008). There, the appellant argued that trial counsel had been ineffective in failing to present mitigation evidence by "(1) failing to hire a mental health expert and failing to present mental health mitigation; and (2) failing to call witnesses who would have testified about Jones's childhood." Id. at 582. After reciting the general deficiency/prejudice Strickland standard, we explained:

In these circumstances, to determine whether counsel was ineffective, a court must examine not only counsel's alleged failure to investigate and present possibly mitigating evidence, but the reasons for doing so. See Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ("[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.") (quoting Strickland, 466 U.S. at 690-91[, 104 S.Ct. 2052]); Rose v. State, 675 So.2d 567, 572 (Fla. 1996) (stating that in evaluating the competence of counsel "the actual performance of counsel in preparation for and during the penalty phase proceedings, as well as the reasons advanced therefore," must be considered). Moreover, here, Jones must prove his counsel's performance actually "deprived [him] of a reliable penalty phase proceeding." Rutherford v. State, 727 So.2d 216, 223 (Fla. 1998).

Jones, 998 So.2d at 582.

a. Evidence of Appellant's Religious Faith

Appellant first asserts that his trial attorneys were deficient for failing to present penalty phase testimony regarding the religious conversion he underwent while awaiting trial. As discussed above, appellant was in conflict with his attorneys over whether such evidence should have been presented. He argues that his counsel should have called as a witness Chaplain Victor Dodzweit and that had counsel conducted a reasonable investigation, they could have discovered and called other witnesses who were familiar with appellant's involvement with the prison ministry. The failure to call these witnesses, he asserts, deprived the jury of significant mitigating evidence.

During the evidentiary hearing on appellant's motion for postconviction relief, Moore and McCarthy each testified that after discussing the issue with appellant, they became wary as to how such testimony might be perceived by the jury. According to Moore, appellant had come to believe that "because he was saved, he had been forgiven for all of his sins, including what he did to the Friskey family and he was no longer bothered by it." They also met with Chaplain Dodzweit, who at the time of appellant's initial imprisonment was conducting Bible studies and individual counseling at the Brevard County Jail. Dodzweit told Moore and McCarthy much the same thing as appellant: that appellant had been saved and that God had forgiven him for his crimes. Moore testified that he and McCarthy were both "stunned" after speaking with Dodzweit:

We thought he would be Exhibit A in proving lack of remorse, because it didn't seem to have any impact at all on Mr. Schoenwetter, what he had done. We thought, not only would that come out if Mr. Schoenwetter testified, but it would also come out in spades if Reverend Dodzweit testified. We thought it would be very harmful and show a true lack of remorse.

When asked whether such testimony could have been presented in a nondamaging manner, Moore replied:

No, we went round and round about it. We decided that, in the end, the harm outweighed the good. The harm outweighed the benefit. My — nothing personal to Mr. Schoenwetter, but my perception of him was that he would become very, well, self righteous, I guess, in his newly found religion and that would be very offensive to the jury.

Accordingly, no testimony on the specific issue of appellant's religious faith was presented to the jury. However, Dodzweit was in fact called to testify before the trial judge at the Spencer hearing, where he discussed his association with appellant and expressed his belief that appellant would act as a positive influence on other inmates in a prison environment.

The United States Supreme Court has explained that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Wiggins, 539 U.S. at 521, 123 S.Ct. 2527. In the present case, trial counsel considered the available evidence and made a reasoned decision not to present Dodzweit as a witness or to present evidence of appellant's religious conversion to the jury. As the circuit court concluded:

It was reasonable for [trial counsel] to believe that the jury might be offended if they heard testimony that the Defendant was now at peace with himself after he killed two people and seriously injured a third. Although this testimony could have presented some mitigating evidence, it was reasonable for Moore and McCarthy to believe the harm would outweigh the good.

We agree and conclude that counsel's performance was not deficient. See Gore, 846 So.2d at 470 ("[W]hen an attorney has made a tactical decision not to present mitigating evidence after a full investigation, counsel is not ineffective. Moreover, an attorney's reasoned decision not to present evidence of dubious mitigating value does not constitute ineffective assistance.") (citation omitted).

While the extent to which Moore and McCarthy investigated appellant's additional witnesses is unclear from the record, their failure to interview these witnesses should be found "reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Wiggins, 539 U.S. at 521, 123 S.Ct. 2527. "[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Both defense attorneys discussed the issue with appellant and his chaplain and determined that it would have been impossible to present this line of testimony in a nonprejudicial manner. Therefore, we find their decision not to spend more time investigating the issue to have been a reasonable strategic choice, particularly in light of the extensive mental health mitigation that was actually developed. We conclude that they did not render ineffective assistance on these grounds.

In addition to Victor Dodzweit, appellant presented four witnesses familiar with his religious conversion — David Musalo, Richard Dean, Thomas Wood, and Frederick Shelor — at the postconviction evidentiary hearing. Musalo, Dean, and Wood each testified that they were volunteers or employees of the prison ministry at the time of appellant's incarceration. Shelor was a fellow inmate, also involved in the prison ministry. All four testified that they were never contacted or interviewed by appellant's defense counsel. When asked about these individuals during his own postconviction testimony, Randall Moore responded that he was familiar with their names, but could not recall their precise roles in the defense investigation.

b. Evidence of Appellant's Social Background

Appellant also claims that his attorneys rendered ineffective assistance by failing to present more evidence of his social background. Appellant asserts that counsel should have called as witnesses his biological father, Reece Ingram, his paternal grandmother, Nettie Connor, and Laura Blankman, an investigator hired by the defense. Each of these individuals testified at the postconviction evidentiary hearing. After reviewing their postconviction testimony, we find that counsel was not deficient in failing to present these witnesses and that appellant's case was not prejudiced by their absence during the penalty phase.

Reece Ingram, appellant's biological father, testified that he was arrested and sent to prison for five and one-half years for assault and robbery when appellant was approximately eighteen months old and that he was divorced from appellant's mother while still in prison. Ingram also testified that he visited his son in jail shortly after appellant's arrest. Prior to that visit, Ingram had not seen appellant since he was seven or eight years old. Ingram stated that he would have been willing to testify at the penalty phase, but asserted that he had never been contacted by the Public Defender's office.

Nettie Connor, Ingram's mother and appellant's paternal grandmother, testified that appellant's mother, Deborah Roberts, had not permitted her to have a relationship with appellant and that she had only seen him on four occasions. She stated that she spoke by telephone with someone from the Public Defender's office prior to appellant's trial, but was not asked to testify. Connor expressed the opinion that had appellant been permitted to have a relationship with her and her family, he would not have been in trouble with the law.

Laura Blankman testified that she was a professional investigator specializing in death penalty mitigation. She explained that she was hired by the defense to investigate appellant's family history. At the time she began her investigation, funding had only been obtained for thirty hours of work, although she stated that a complete investigation often took 400 hours. Much of her allotted time was spent interviewing appellant and his mother. Blankman discussed in detail Roberts' familial history of abuse, particularly by Roberts' father, with whom Roberts and appellant lived until appellant was approximately four years old. She also learned about appellant's difficult childhood. Blankman testified that she felt more investigation was needed, particularly regarding appellant's paternal family, but that no additional funding could be obtained. However, Blankman continued to be involved in the case. She ultimately contributed approximately 100 hours toward the investigation, and even attended a portion of appellant's trial, where she sat at the defense table.

During the evidentiary hearing, appellant's attorneys testified that they were unable to locate Ingram while preparing their case for mitigation. They mailed a letter requesting Ingram's assistance to addresses previously associated with him but received no response. Moore testified that he spoke with Connor but found that she would not provide any information that could be used to contact her son. According to Moore, Connor indicated that Ingram would not cooperate with their investigation. Regarding Laura Blankman, Moore testified that she had been hired specifically to locate Ingram or any other members of appellant's paternal family. When her efforts proved unsuccessful, Moore and McCarthy determined that she could do nothing further and that there was no remaining need for her services. Ultimately, they concluded that any information pertaining to appellant's paternal family would be of limited use given that appellant had little contact with that side of his family during childhood.

We conclude that appellant's attorneys were not deficient within the meaning of Strickland. The record reveals that Moore and McCarthy made strong efforts to locate appellant's paternal family, which included contacting Connor by letter and by telephone, mailing letters to Ingram, and hiring Laura Blankman. The investigation was only discontinued when they determined it would not be beneficial to appellant's defense. Based on the information gathered from Connor and Blankman, we find that this decision to limit the investigation was an entirely reasonable professional judgment. See Wiggins, 539 U.S. at 521, 123 S.Ct. 2527.

Further, we find that the failure to call these witnesses does not satisfy the Strickland requirement of prejudice. With regard to the absence of Reece Ingram and Nettie Connor, the circuit court explained:

The only additional information that these witnesses would have provided was that Deborah Roberts, the Defendant's mother, prevented the Defendant from having any contact with his biological father or his paternal family members. However, it is questionable whether the Defendant would have been better off having a relationship with Ingram considering that the evidence showed that Ingram physically abused the Defendant's mother while she was pregnant with him and then went to prison for aggravated assault and burglary. Had this testimony been presented at the penalty phase, it is unlikely that the jury would have given it much weight.

With regard to Laura Blankman, much of the testimony she could have presented during the penalty phase was in fact introduced into evidence through the testimony of Deborah Roberts. Specifically, Roberts testified that she was physically abused by appellant's father while pregnant and that appellant was abused by her later boyfriend. The absence of Ingram, Connor, and Blankman as witnesses does not undermine our confidence in the outcome of the proceedings. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

c. Failure to Integrate Social and Medical Evidence

We next address appellant's claim that trial counsel was ineffective for failing to call an additional mental health expert who could relate evidence of appellant's religious conversion to the mental health testimony presented by other experts. Appellant relies primarily on the testimony of Dr. Henry Dee, who was admitted as an expert in the field of forensic psychology and neuropsychology at the postconviction evidentiary hearing.

Dr. Dee reviewed the reports and testimony of the medical experts who testified during the penalty phase, as well as other documents relating to appellant's crime and conviction. Dr. Dee testified that based on his own testing, he believed appellant suffered from frontal lobe damage. He also interviewed appellant and his relatives and learned that appellant had moved frequently as a child. Dr. Dee testified that this would have been particularly difficult for a child with Asperger's Syndrome and ADHD, and would have impaired appellant's ability to develop social skills as a child. He also testified that individuals with appellant's conditions have difficulty expressing remorse because they lack empathetic understanding of others. He noted that in letters written following appellant's religious conversion, appellant had frequently expressed remorse for his crimes.

We find that the absence of this testimony did not prejudice appellant's case under Strickland, Similar testimony was presented by other expert witnesses during the penalty phase. Dr. Wu testified regarding appellant's frontal lobe damage, and Dr. Riebsame and Dr. Prichard both explained how appellant's ADHD and Asperger's Syndrome would have affected his behavior at the time of the offenses. Appellant's mother testified regarding his difficult childhood. Further, the three mitigating factors to which Dr. Dee testified — extreme mental or emotional disturbance, inability to conform conduct to the requirements of the law, and the defendant's age — were all considered by the trial court in its sentencing order. Dr. Dee's testimony that appellant expressed remorse in his letters was at least partially considered when the trial court weighed the nonstatutory mitigator that "the defendant accepted responsibility by pleading guilty." Schoenwetter, 931 So.2d at 865 n. 4. In light of these considerations, we find that appellant has failed to demonstrate prejudice such that our confidence in the outcome of the proceedings is undermined. See Valle, 778 So.2d at 965-66; see also Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Accordingly, we reject appellant's claim of ineffectiveness on this issue.

4. Deficiency in Presenting Expert Witnesses

Fourth, appellant asserts that trial counsel was deficient for presenting unprepared and inconsistent expert witnesses. Appellant first argues that his attorneys rendered ineffective assistance by calling expert witnesses, Dr. Prichard and Dr. Riebsame, who testified to conflicting mitigating circumstances. Second, appellant claims his attorneys were deficient for failing to provide these experts with copies of appellant's videotaped police interview. We find both claims to be without merit.

We first find that the expert testimony was complementary rather than conflicting. Dr. Riebsame testified that appellant, based on his PET scan, Asperger's Syndrome, and the circumstances of the offense, was under an extreme mental or emotional disturbance at the time of the offense. Dr. Prichard, in her testimony, explained that appellant, due to his Asperger's Syndrome, was inflexible in his ability to act on options and select available alternatives once he had begun a course of action. She expressed her opinion that appellant's capacity to conform his conduct to the requirements of law was substantially impaired. With regard to the deficient performance prong of appellant's Strickland claim, it was not unreasonable for the trial attorneys to have concluded that the testimony of two experts would be more beneficial than one. With regard to the prejudice prong, the experts did not contradict each other. Rather, they each testified to a separate statutory mitigating factor based on the effects of Asperger's Syndrome and ADHD. Because the trial court in fact considered and weighed both of these factors as mitigation, see Schoenwetter, 931 So.2d at 865, the experts' testimony seems to have helped rather than harmed the defense.

Second, appellant's attorneys were not deficient for failing to provide Dr. Riebsame and Dr. Prichard with copies of the videotaped police interview, nor do we find that our confidence in the outcome of the proceedings is undermined by this oversight. Both experts testified extensively regarding their professional qualifications, both had access to a wide range of personal materials relating to appellant's background, and both conducted interviews and psychological testing with appellant himself. In light of this testimony, it is unlikely that the jury would have concluded the experts were unprepared because they had not viewed a videotape of the defendant's initial confession. Further, Dr. Riebsame was recalled after being given the opportunity to view the video and testified that it had no impact on his initial testimony. Dr. Prichard admitted that she had not viewed the tape, but was then asked whether certain behaviors would indicate Asperger's Syndrome. She responded that they would. This exchange took place after the jury had already viewed the tape themselves. Later, on redirect examination, Dr. Prichard stated that she had read the interrogating officers' accounts of appellant's confession. She then testified that the substance of his confession did not change her opinion as to how appellant's mental impairments would have affected his actions at the time of the crime.

5. Deficient Closing Argument

Finally, appellant argues that during closing argument, his trial counsel failed to stress the importance of appellant's lack of impulse control, instead focusing on appellant's preoccupation with Satanism and sexuality. Appellant asserts that counsel should have relied more heavily on the testimony of Dr. Wu concerning the results of appellant's PET scan. He argues that this deficiency deprived the jury of the understanding that his lack of impulse control was related to frontal lobe damage. Appellant argues that emphasizing this information in closing would have provided greater support for the two statutory mental health mitigating circumstances weighed by the jury.

After reviewing the record, we find that the appellant's characterization of his counsel's closing statement is inaccurate. The closing argument for the defense was delivered by George McCarthy, who in fact argued that appellant's lack of impulse control and his inability to view options and reassess his course of conduct was what led him to commit the crime. McCarthy discussed the testimony of Dr. Wu and the results of the PET scan. He informed the jury that the PET scan provided physical evidence of appellant's neurological disorders and requested that the jury give this evidence great weight as a mitigating factor. After discussing appellant's obsessions with sex and video games, during which he described the testimony of appellant's friends and family, McCarthy again tied the evidence to appellant's diagnosis of Asperger's Syndrome and lack of impulse control. Therefore, in contradiction to appellant's argument here, it is clear that trial counsel did not fail to discuss appellant's mental health mitigation during the closing argument. Appellant's claim of deficiency on these grounds is therefore rejected.

D. Roper v. Simmons

Next, appellant raises several claims of error based on the decision of the United States Supreme Court in Roper v. Simmons. First, he argues that in light of the evolving standards of decency relied on by the Court in Roper, his execution would violate the Eighth and Fourteenth Amendments to the United States Constitution. Second, he argues that based on Roper and this Court's decision in Urbin v. State, 714 So.2d 411, 418 (Fla. 1998) (explaining that the age-related statutory mitigator becomes weightier the closer the defendant is to the age where the death penalty is constitutionally barred), the trial court erred in not affording more weight to his age-related statutory mitigating circumstance. Third, appellant argues that death would be a disproportionate punishment based on his age, immaturity, mental defects, and related mitigating circumstances.

With regard to appellant's argument that his death sentence is unconstitutional under Roper, we have consistently rejected such claims in cases where the defendant was not below eighteen years of age at the time of the criminal offense. We held in Hill v. State, 921 So.2d 579, 584 (2006), that " Roper only prohibits the execution of those defendants whose chronological age is below eighteen." See also Kearse v. State, 969 So.2d 976, 992 (Fla. 2007) (denying relief based on Roper where appellant was eighteen years and three months old at the time of the offense and suffered from low-level intellectual functioning and mental and emotional impairments). In this case, appellant's age was eighteen years and nine months at the time of the offense. Therefore, Roper does not render his sentence of death unconstitutional.

Appellant also argues that the trial court should have assigned more than "little weight" to his age-related mitigating circumstance based on Roper. We find this claim to be procedurally barred. This Court has held that "[proceedings under rule 3.850 are not to be used as a second appeal; nor is it appropriate to use a different argument to relitigate the same issue. Likewise, issues that could have been raised on direct appeal, but were not, are not cognizable through collateral attack." Torres-Arboleda v. Dugger, 636 So.2d 1321, 1323 (Fla. 1994) (citation omitted). In appellant's direct appeal, we considered the weight assigned to the statutory and nonstatutory mitigating circumstances:

The defendant . . . takes issue with the weight that was given to the four statutory mitigating circumstances, which were given little weight, and with the weight given to two of the nonstatutory mitigating circumstances. Although Schoenwetter maintains these mitigating factors were not accorded the proper weight, he has failed to even argue, much less demonstrate, why the weight given by the trial judge was not appropriate under the facts of this case. The weight given to these mitigators lies within the discretion of the trial court, and there has been no showing that the trial court abused its discretion. Therefore, we find no error in the trial court's consideration of these mitigating factors.

Schoenwetter, 931 So.2d at 875 (footnote omitted). As to appellant's specific argument that Roper dictates a different result, Roper was decided well before appellant's direct appeal was heard by this Court. Appellant had the opportunity to raise these arguments but failed to do so. Thus, the issue is not cognizable through collateral attack. See Torres-Arboleda, 636 So.2d at 1323.

Third, appellant argues that this Court should reweigh the aggravating and mitigating circumstances surrounding his death sentence in light of the United States Supreme Court's decision in Roper. We addressed the proportionality of appellant's sentence on direct appeal and determined that death was a proportionate punishment in light of the totality of the circumstances of the offense, and in light of the circumstances of similar cases in which death sentences have been imposed. See Schoenwetter, 931 So.2d at 875-76. Again, because this issue was raised and decided on direct appeal, appellant is procedurally barred from raising the issue here. See Torres-Arboleda, 636 So.2d at 1323.

E. Cumulative Error

In his last claim under Rule 3.851, appellant argues that the cumulative effect of the errors asserted above require this Court to vacate his sentence. Claims of cumulative error do not warrant relief where each individual claim of error is "either meritless, procedurally barred, or [does] not meet the Strickland standard for ineffective assistance of counsel." Israel v. State, 985 So.2d 510, 520 (Fla. 2008); see Bradley v. State, 33 So.3d 664 (Fla. 2010); Reese, 14 So.3d at 920; Parker v. State, 904 So.2d 370, 380 (Fla. 2005). Because we find that each individual claim of error fails on at least one of these three grounds, we reject the claim of cumulative error.

III. PETITION FOR WRIT OF HABEAS CORPUS

A. Roper v. Simmons and Atkins v. Virginia

Finally, we review the two claims raised in appellant's petition for writ of habeas corpus. As the first of his claims, appellant argues that his sentence of death is unconstitutional due to evolving standards of decency cited by the United States Supreme Court in Roper v. Simmons and Atkins v. Virginia. This Court has held that "[h]abeas corpus is not to be used for additional appeals of issues that could have been, should have been, or were raised on appeal or in other postconviction motions." Mills v. Dugger, 559 So.2d 578, 579 (Fla. 1990). In Mills, we rejected the petitioner's habeas claims, noting that most had been raised either on direct appeal or in the petitioner's postconviction motion. See id. In this case, appellant has already raised Roper in his rule 3.851 motion. Because every argument raised in this portion of appellant's habeas petition either could have been or in fact was raised in his motion filed pursuant to rule 3.851, this claim is rejected as procedurally barred.

Additionally, even if this claim were not barred for procedural reasons, appellant would not be entitled to relief on the merits under either Roper or Atkins. As explained above, Roper only prohibits the execution of defendants whose chronological age was below eighteen at the time of their capital offense. See Reese, 14 So.3d at 920. Because appellant was eighteen years and nine months of age at the time of his offense, Roper does not render his death sentence unconstitutional.

Likewise, appellant is not entitled to relief under Atkins. In that case, the United States Supreme Court held that it is unconstitutional to execute an individual who suffers from mental retardation. See Atkins, 536 U.S. at 321, 122 S.Ct. 2242. Under Florida law, mental retardation is defined as "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." Jones v. State, 966 So.2d 319, 326 (Fla. 2007) (quoting § 921.137(1), Fla. Stat. (2005)); see also Hurst v. State, 18 So.3d 975, 1008 n. 9 (Fla. 2009). To assert a valid claim under Atkins, a defendant must establish that he or she has an IQ of 70 or below. Nixon v. State, 2 So.3d 137, 142 (Fla. 2009); Jones, 966 So.2d at 329; Zack v. State, 911 So.2d 1190, 1201 (Fla. 2005). We have held on several occasions that other mental defects are not entitled to the same consideration as mental retardation. See, e.g., Reese, 14 So.3d at 920 (rejecting Atkins claim where postconviction testimony indicated that the defendant was under a "severe emotional disturbance" at the time of the offense); Connor v. State, 979 So.2d 852, 867 (Fla. 2007) (rejecting claim where the defendant suffered from mental and psychological disorders such as organic brain damage, frontal lobe damage, micrographia, and stuttering, on grounds that these conditions were different from mental retardation); Lawrence v. State, 969 So.2d 294, 300 n. 9 (Fla. 2007) (declining to extend Atkins to the mentally ill).

Here, appellant has made no assertion that he suffers from mental retardation. Instead, his claim is based on diagnoses of Asperger's Syndrome, ADHD, and frontal lobe damage. While these conditions may be considered as mitigating circumstances at sentencing — and, indeed, were considered as mitigation by the trial court — mere mental illness does not serve as a bar to execution under Atkins. See Diaz v. State, 945 So.2d 1136, 1152 (Fla. 2006). Further, the evidence presented during the penalty phase and postconviction proceedings indicate that appellant's IQ is significantly higher than 70. The trial court noted in its sentencing order that the experts who testified at the penalty phase had agreed that appellant's IQ was approximately 130. Dr. Dee, appellant's postconviction mental health expert, testified at the evidentiary hearing that appellant had received a score of 123 on a more recent IQ test.

B. Ineffective Assistance of Appellate Counsel

Pursuant to appellant's second claim, we review whether his appellate counsel was constitutionally deficient under Strickland. Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla. 2000). Consistent with Strickland, to grant habeas relief based on ineffective assistance of appellate counsel this Court must determine,

first, whether 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 Freeman, 761 So.2d at 1069; Thompson v. State, 759 So.2d 650, 660 (Fla. 2000). In raising such a claim, "[t]he defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based." Freeman, 761 So.2d at 1069. Claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000). "If a legal issue `would in all probability have been found to be without merit' had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective." Id. (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla. 1994)).

Here, it is argued that appellate counsel was deficient for failing to properly present the issue of a conflict between appellant and his trial counsel. We find this claim to be without merit. Due to conflicts with their client, trial counsel filed a motion to withdraw during the penalty phase. The trial court denied the motion and the issue was raised on direct appeal. We concluded:

The trial court properly denied the motion to withdraw. This record does not demonstrate that the attorney-client relationship had deteriorated to the point where counsel could no longer give effective aid in the fair representation of the defense. See Wilson v. State, 753 So.2d 683, 688 (Fla. 3d DCA 2000). General loss of confidence or trust standing alone will not support withdrawal of counsel. See Johnston v. State, 497 So.2d 863, 868 (Fla. 1986).

Schoenwetter, 931 So.2d at 870.

We find that appellant has failed to demonstrate any "specific, serious omission" on the part of appellate counsel. Freeman, 761 So.2d at 1069. Although appellant raises testimony adduced at the postconviction evidentiary hearing demonstrating friction between himself and his trial attorneys, none differs in substance from the evidence presented on direct appeal. Accordingly, we hold that appellate counsel did not render ineffective assistance.

The only new evidence presented is taken from the postconviction testimony of Randall Moore. Moore was asked whether appellant pled guilty because he felt that he should be punished for his crime. Moore responded: "I don't know what his thinking was." Reviewing the transcript, this statement appears to be an expression of frustration rather than an admission that he was unable to give effective counsel to the defendant. Laura Blankman also testified that appellant's relationship with his attorneys was strained. As we explained on direct appeal, evidence of this kind is insufficient to support withdrawal of counsel. See Schoenwetter, 931 So.2d at 870 (citing Johnston v. State, 497 So.2d 863, 868 (Fla. 1986)).

IV. CONCLUSION

For the reasons discussed above, we affirm the circuit court's denial of appellant's motion for postconviction relief. We also deny appellant's petition for writ of habeas corpus.

It is so ordered.

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