Miсah Louis Nelson appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V,
FACTS AND PROCEDURAL HISTORY
Appellant, Micah Louis Nelson, was convicted of and sentenced to death for the first-degree murder of Virginia Brace.
The evidence presented at trial indicated that during the early morning hours of November 17, 1997, Micah Louis Nelson (Nelson) entered Virginia Brace’s (Brace) home by removing the screen and climbing through the bathroom window. Seventy-eight-year-old Brace had been in bed and her glasses and hearing aid were on her bedroom dresser. Nelson sexually assaulted Brace, took her car keys from her purse, and then placed her in the trunk of her own car. He drove around with Brace in the trunk for a period of hours and eventually drove to an orange grove, where he apparently intended to leave her. However, the car became stuck in soft sand and had to be pulled out with the assistance of machinery at about 9:30 a.m. on November 17,1997.
Steven Weir, the heavy equipment operator who pulled the car out of the sand, felt a thud when he put his hand on the car’s trunk. Nelson advised him that there was a dog in the trunk and then proceeded to turn up the car radio. The heavy equipment operator observed Nelson to be nervous and pacing, and Nelson would not look him in the eye when they spoke. Nelson sped off as soon as the car was lifted out of the sand and drove to another orange grove where he let Brace out of the trunk and walked her or dragged her 175 feet into the grove. With Brace on the ground, Nelson attempted to strangle her with his bare hands, emptied the contents of a fire extinguisher into her mouth, and forced a tire iron into her mouth and through the back of her head.
At 3:30 p.m. on November 17, 1997, Joann Lambert noticed an unfamiliar car parked on the road behind her house. The car was still parked in the same location when it began to get dark that evening so she called the Highlands County Sheriffs Department. When Deputy Vance Pope arrived to investigate the car, he found Nelson asleep in the back seat. Deputy Pope also noticed an insurance card on the floorboard with the name Virginia Brace. Nelson told Pope that he borrowed the car from a family friend. Poрe could not verify the vehicle’s registration because the DMV computer was not working at that time. Pope would not allow Nelson to drive because he did not have a driver’s license, so he gave Nelson a ride to Nelson’s sister’s house. Later that evening, Pope heard the name Virginia Brace over the police radio, which prompted him to contact Sergeant Hofs-tra regarding his earlier contact with Nelson. Police recovered the car where Deputy Pope had last seen it, and it was identified as belonging to Brace.
At 11 p.m. on November 17, 1997, Deputy Pope returned to the house where he previously dropped off Nelson. Nelson agreed to be questioned by the Avon Park Police. After a series of interrogations on November 18, 1997, and November 19, 1997, Nelson showed*25 the police where Brace’s body was located and he confessed to killing her.
Nelson told police that some time after midnight, he broke into Brace’s home through her bathroom window. He stated that he entered her bedroom and she woke up and started screaming. He said that they had a struggle on her bed, after which he took her car keys and placed her in the trunk of her car. Nelson stated that he drove around in the car for hours and that at one point he stopped to get gas. He then drove to an orange grove where he was going to kill Brace, but the car became stuck in the sand and he required help to extricate the car from the sand. He then took Brace to another orange grove where he and Brace walked into the grove. He stated that he started to choke Brace on the ground, but she did not pass out, so he sprayed a fire extinguisher into her mouth, which made her cough. He stated that he then took the tire iron and stuck it into her mouth until it came through the back of her neck and into the ground. He stated that Brace gasped for air when he pushed the tire iron into her mouth. Nelson denied having any sexual contact with Brace.
At trial, Dr. Melamud, the medical examiner, testified that the condition of Brace’s body corresponded with her being dead for two days before she was found. He testified that Brace’s injuries were consistent with asphyxiation, an object being forced into her mouth through the back of her neck, such as a tire iron, and a fire extinguisher being discharged into her mouth. He stated that she also suffered a crushed vertebra as a result of the compression of her neck and spinal cord, and three broken ribs. He testified that her death could have resulted from any one of those injuries, or a combination of them. Although he cоuld not assign an order in which the injuries occurred, he stated that the medical evidence indicated that she was alive both when the object was forced into her mouth and through the back of her neck, and when the fire extinguisher’s contents were expelled into her mouth. He could not say with certainty if she was conscious when those injuries were inflicted, but he opined that if Brace had been conscious during the infliction of any of these injuries, she would have experienced severe pain.
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The jury recommended a death sentence by a vote of nine to three and the trial court sentenced Nelson to death. The trial court found six statutory ag-gravators: (1) the defendant was previously convicted of a felony, was under a sentence of imprisonment, and was on felony probation, or controlled release, at the time of the murder; (2) the crime for which the defendant was to be sentenced was committed while the defendant was engaged in the commission of, or flight after, committing a sexual battery, burglary, or kidnapping; (3) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest; (4) the murder was especially heinous, atrocious or cruel (HAC); (5) the murder was committed in a cold and calculated and premeditated manner, and without any pretense of moral or legal justification (CCP); and (6) the victim was particularly vulnerable due to advanced age or disability. The trial court found that all six aggravators were proven beyond a reasonable doubt and assigned five of them great weight. The trial court assigned little weight to the sixth aggravator of the victim being “particularly vulnerable due to age or disability.”
*26 The trial court addressed and rejected three statutory mitigating factors.⅛3] Twenty-one nonstatutory mitigating circumstances were addressed by the trial court: (1) at the time of the offense the defendant was impulsive and his ability to exercise good judgment was impaired (not proven); (2) defendant was remorseful for his conduct (not proven); (3) defendant did not plan to commit the offense in advance (not proven); (4) defendant demonstrated appropriate courtroom conduct and behavior (very little weight); (5) defendant is capable of forming loving relationships with family members and friends (very little weight); (6) any mental illness of the defendant may have been controlled by medication (little weight); (7) it is unlikely the defendant will be a danger to others while serving a life sentence in prison (very little weight); (8) defendant did not resist arrest, cooperated with the police, and showed the authorities where the body was located (moderate weight); (9) defendаnt never knew his father and lost his mother at a young age (moderate weight); (10) defendant had a troubled and neglected childhood (not proven); (11) defendant was the victim of inappropriate sexual conduct and abuse as a child (little weight); (12) defendant has organic brain damage (not proven); (13) defendant suffered from depression as a result of his conduct and attempted suicide in the jail (little weight); (14) defendant had diminished educational experience (little weight); (15) defendant was sexually assaulted while in prison (some weight); (16) defendant has limited intelligence (some weight); (17) defendant has no prior violent felony convictions (little weight); (18) the circumstances which resulted in the homicide are unlikely to recur since the defendant will be spending the rest of his life in prison (some weight); (19) defendant has accepted responsibility for his action (not proven); (20) defendant has nevеr received treatment for his mental or emotional problems (little weight); and (21) defendant was willing to plead guilty to all charges for consecutive life sentences without parole (very little weight).
[N.3] The three statutory mitigating factors addressed by the trial court were: (1) age of the defendant at the time of the offense (twenty-one years old) (not proven); (2) the defendant was under extreme mental or emotional disturbance at the time of the offense (not proven); and (3) his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired (not proven).
Id. at 518-21 (some footnotes omitted).
On direct appeal, Nelson’s sole challenge to his conviction of first-degree murder focused on the trial court’s denial of his motion to suppress certain statements and admissions. Id. at 521. Nelson claimed that he madе incriminating statements as a result of police coercion, which included an allegedly false indication by police that DNA evidence linked Nelson to the crime, the use of the “Christian burial” technique, and the fact that police did not afford Nelson breaks during the interrogation despite fatigue. Id. We rejected these arguments and affirmed the denial of the motion to suppress, finding that the trial court’s factual findings and legal conclusions were sufficiently supported. Id. at 521-24. We affirmed the conviction, citing to the “plethora of physical evidence linking Nelson to [the crime].” Id. at 521.
Nelson raised several issues pertaining to his sentence, including that (1) the trial court erred by finding the avoid arrest and cold, calculated, and premeditated (CCP) aggravators; (2) the trial court failed to
Nelson filed a rule 3.851 motion for post-conviction relief on September 16, 2004, and raised twelve claims.
RULE 3.851 APPEAL
Ineffective Assistance of Trial Counsel
Nelson asserts the following four claims in his motion for postconviction relief regarding ineffective assistance of counsel: (1) trial counsel was ineffective by failing to move for a determination of competency; (2) trial counsel was ineffective by faffing to call a witness in both the guilt and penalty phases of the trial to establish that Nelson lacked mens rea and to establish statutory mental mitigation in the penalty phase; (3) trial counsel was ineffective in the investigation and preparation of the penalty phase for failing to call a witness to establish statutory mitigation in the penalty phase; and (4) trial counsel was ineffective for failing to request that the court instruct the jury on statutory mitigation in the sentencing phase of Nelson’s trial. As explained below, we affirm the trial court’s denial of relief on all ineffective assistance of counsel claims raised by Nelson.
Following the United States Supreme Court’s decision in Strickland v. Washington,
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
Maxwell v. Wainwright,
To prove the first prong under Strickland, Nelson must prove that counsel’s performance was unreasonable under the “prevailing professional norms.” Morris v. State,
Additionally, there is a strong presumption that trial counsel’s performance was not ineffective. See id. at 689,
Generally, this Court’s standard of review following a denial of a postcon-viction claim where the trial court has conducted an evidentiary hearing affords deference to the trial court’s factual findings. McLin v. State,
Failure to Move for a Competency Determination
Nelson’s first ineffective assistance claim asserts that trial counsel failed to move for a competency determination. Nelson contends that his suicide attempt and the opinion of the defense mental health expert that he was marginally competent placed trial counsel on notice that Nelson’s competency to proceed was at issue. However, because Nelson is unable to demonstrate that trial counsel was deficient, the postconviction court properly denied this claim.
In Futch v. Dugger,
Also, Nelson alleges that his suicide attempt alone was sufficient to raise a question about his competency to stand trial. However, no such presumption exists. In Drope v. Missouri,
Furthermore, the administration of Mellaril, a powerful antipsychotic drug, did not necessarily render Nelson incompetent: In Groover v. State,
Because Nelson has not dеmonstrated deficiency of his trial counsel, we need not address prejudice. See, e.g., Waterhouse v. State,
Failure to Call Dr. Ashby
Nelson’s second ineffective assistance claim alleges that trial counsel failed to call Dr. Ashby in the guilt phase to establish that Nelson lacked mens rea and also in the penalty phase to establish statutory mental mitigation. Nelson asserts that Dr. Ashby’s testimony was critical to establish his state of mind because Ashby diagnosed him with schizoaffective disorder shortly after the crime. However, for the reasons stated below, Nelson has failed to demonstrate trial counsel’s deficiency and we affirm the postconviction court’s denial of this claim.
Rеgarding trial counsel’s failure to call Dr. Ashby during the guilt phase of trial, Nelson relies on Bunney v. State,
If [alleged] mental deficiencies are sufficient to meet the definition of insanity, these persons should be acquitted on*31 that ground and treated for their disease. Persons with less serious mental deficiencies should be held accountable for their crimes just as everyone else. If mitigation is appropriate, it may be accomplished through sentencing, but to adopt a rule which creates an opportunity for such persons to obtain immediate freedom to prey on the public once again is unwise.
Id. at 825. Therefore, because Nelson did not raise an insanity defense, counsel cannot be found deficient for failing to call Dr. Ashby in the guilt phase.
Nelson has likewise failed to demonstrate counsel’s deficiency at the penalty phase. The postconviction court denied this claim, noting that Dr. Dee testified extensively in the penalty phase with regard to Nelson’s mental state and applicable mitigating factors. The record demonstrates that Nelson received the benefit of penalty phase testimony from Dr. Dee, whose testimony was more extensive than what could have been offered by Dr. Ash-by. Trial counsel retained Dr. Dee, a trained forensic neuropsychologist, to testify during the penalty phase. Though Dr. Ashby did not examine Nelson for the purpose of presenting mitigating evidence, Dr. Dee did. Further, the record demonstrates that Dr. Dee had access to Dr. Ashby’s records relating to Nelson. As demonstrated at the evidentiary hearing, Dr. Ashby’s testimony would have been cumulative to, and much less detailed than, Dr. Dee’s testimony. Trial counsel testified that he did not give much thought to calling Dr. Ashby, who as a jail psychiatrist worked on a contract basis with the jail and had not examined Nelson for the purpose of testifying to mitigating evidence.
It is notable that Nelson does not cite a single case to demonstrate support for his claim that he is entitled to relief under Chambers v. Armontrout,
Failure to Call a Witness to Evaluate Dr. Kremper’s Reports
Nelson’s third ineffective assistance claim alleges that trial counsel was deficient for failing to secure a qualified psychiatrist to evaluate the report of Dr. Kremper and testify regarding Nelson’s mental health history. Nelson asserts that such testimony would have established that his mental illness was evident at an early age. Trial counsel made the decision not to present Dr. Kremper’s testimony to prevent the jury from hearing Nelson’s prior bаd conduct regarding sexual battery and lewd assault on a family member. We agree with the postconviction court that this decision was reasonable and deny this claim.
We confronted this issue in Sexton v. State,
Also, in Willacy v. State,
As illustrated, it is reasonable for trial counsel to forego evidence that, if presented in mitigation, could damage a defendant’s chances with the jury. Further, as we stated in Stephens v. State,
Trial Counsel’s Failure to Request the Court to Instruct the Jury on Statutory Mitigation in the Sentencing Phase
In Nelson, we affirmed the trial court’s rejection of the two statutory mental health mitigating circumstances, stating, “The record reflects that there was competent, substantial evidence refuting the allegation that Nelson was under extreme mental or еmotional disturbance.”
At the evidentiary hearing, trial counsel was asked whether he had read Bryant v. State,
Competency
Nelson next alleges that he was denied substantive due process because he was tried and convicted while mentally incompetent. This issue fails for two reasons. First, the issue is procedurally barred because he failed to raise it on direct appeal. Second, the record establishes that Nelson was competent at the time of the trial.
“[A] petitioner raising a substantive claim of incompetency is entitled to no presumption of incompetency and must demonstrate his or her incompetency by a preponderance of the evidence.” James v. Singletary,
Unlike the petitioner in James, Nelson has had an evidentiary hearing on his post-conviction incompetency claim as well as a competency determination. In both, the court has found Nelson competent. Specifically, the postconviction court denied this claim, stating, “The fact that Mr. Nelson had once tried to commit suicide and was on psychotropic medication does not mean he was incompetent or that the court was required to order a competency evaluation. The evidence supports a conclusion that the Defendant was competent at the time of trial.” Thus, Nelson has not demonstrated that he was denied due process at any level of the proceedings against him. Accordingly, Nelson is not entitled to relief on this claim.
Pate Claim
Next, Nelson argues that the trial court erred by failing to sua sponte order a competency hearing. Pate v. Robinson,
Nelson raises seven claims in his petition for writ of habeas corpus, which can be summarized as follows: (1) section 921.141, Florida Statutes (1997), is facially vague and overbroad; (2) he is incompetent to proceed and also may be incompetent at the time of execution in violation of the Eighth Amendment prohibition against cruel and unusual punishment; (3) trial counsel was ineffective for failing to object to the avoid arrest aggra-vator jury instruction; (4) appellate counsel was ineffective for failing to raise the claim that the evidence was insufficient to prove the avoid arrest aggravator and was also ineffective for failing to raise the cumulative effect of the errors in Nelson’s trial; and (5) the Florida capital sentencing statute is unconstitutional as applied and on its face.
We deny several of Nelson’s claims without further discussion. First, we deny Nelson’s claims that section 921.141, Florida Statutes (1997), is facially vague and overbroad and that the Florida death sentencing statute is unconstitutional as applied because they were not raised on direct appeal and are procedurally barred. Breedlove v. Singletary,
We now address Nelson’s remaining claim that appellate counsel was ineffective for failing to raise the claim that the evidence was insufficient to prove the avoid arrest aggravator. For the reasons set forth below, Nelson is not entitled to habe-as relief on this claim.
Ineffective Assistance of Appellate Counsel
Unlike a claim of ineffective assistance of trial counsel, ineffective assistance of appellate counsel is cognizable in habeas corpus. See Rutherford v. Moore,
Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of counsel, this Court must determine:
[F]irst, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency*35 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,
This Court has also stated that appellate counsel cannot be ineffective for failing to raise claims which were not preserved due to trial counsel’s failure to object. See, e.g., Owen v. Crosby,
Here, Nelson’s complaints stem from the avoid arrest aggravator, which this court upheld because Nelson failed to preserve the issue for appeal. Nelson,
Although Nelson’s admissions to police alone support his intentional elimination of Brace as a witness, other considerations also support the avoid arrest aggravator in this case.... The evidence in this сase indicates that Nelson probably could have accomplished the burglary of Brace’s home and sexual battery without killing her since Brace likely posed little physical resistance to Nelson: she was 78 years old; she was awakened from her bed in the middle of the night when she was wearing only a nightgown; and at that time her eyeglasses and hearing aids were on her night stand. Further, Nelson easily obtained access to her car. Therefore, it appears that once Nelson immobilized Brace by putting her in the trunk, he secured an uneontested getaway and there was no reason for him to kill her except to eliminate her as a witness.
*36 Nelson’s act of taking Brace to a remote area to kill her also lends support to the finding of the avoid arrest aggra-vator in this case. The evidence at trial was that Nelson drove to an isolated orange grove to kill Brace, but his plan was stymied when the car became stuck in the sand and he needed the assistance of other people to extricate the car. Nelson then drove to another orange grove where he killed Brace. The record reflects that Nelson’s journey to two different orange groves was intended to find an isolated place to kill Brace, the sole witness to his crimes.
We find no error in the trial court’s finding of the avoid arrest aggravator because the defendant’s own statements and actions corroborate evidence that the sole or dominant murder motive in this case was to silence Brace as the sole witness against him.
Nelson,
CONCLUSION
For the reasons stated above, we affirm the postconviction court’s order denying Nelson’s rule 3.851 motion, and we deny his petition for writ of habeas corpus.
It is so ordered.
Notes
. Nelson was also tried and convicted of . grand theft, burglary, and sexual battery, for which he received fifteen-year and life sentences.
. Nelson's claims were (1) trial counsel was ineffective for failing to move for a determination of competency; (2) Nelson was tried and convicted while mentally incompetent; (3) trial counsel was ineffective for failing to call a witness in both the guilt and penalty phases of the trial to establish a lack of mens rea in the guilt phase and statutory mental mitigation in the penalty phase; (4) trial counsel was ineffective in the investigation and preparation of the penalty phase by failing to call a witness to establish statutory mitigation in the penalty phase; (5) trial counsel failed to request the court to instruct the jury on statutory mitigation in the sentencing phase; (6) section 921.141, Florida Statute (1997) is facially vague and overbroad causing the death sentence to be premised on a fundamental error; (7) Nelson is incompetent to proceed; (8) trial counsel was ineffective for failing to object to the court instructing the jury on and finding that Nelson killed the victim to avoid arrest despite contrary evidence; (9) the death sentence is cruel and unusual punishment because Nelson may be incompetent at the time of execution; (10) the trial was filled with procedural and substantive error which cannot be harmless when viewed as a whole; (11) the Florida Capital Felony Sentencing Statute is unconstitutional; and (12) Florida’s Capital Felony Sentencing Statute is unconstitutional on its face and as applied, and Nelson received prejudicially ineffective assistance of counsel because trial counsel failed to properly litigate this issue.