Manuel Pardo Jr. took the witness stand against his lawyer’s advice and admitted that he had intentionally killed all nine people he was charged with murdering around Miami between January and April 1986. He had been a police officer, and he said the victims were drug dealers, “parasites” and “leeches” who had no right to live. After each shooting, he testified, he took a photograph to capture the victim’s “spirit” and then burned it in a special ashtray. At the penalty phase he told the jury he had acted as a “soldier” and not for money, and asked for the death penalty. The jury found him guilty on every count and recommended death on each, by votes ranging from eight to four to ten to two. On May 31, 1990, the Supreme Court of Florida affirmed all eighteen convictions and the death sentences.
The evidence did not depend on his testimony. Carlo Manuel Ribera, who had asked Pardo’s codefendant Rolando Garcia for work unloading drugs from ships, was the State’s first witness. A bullet removed from Pardo’s own foot matched those used to kill Ramon Alvero and Daisy Ricard, his fingerprint was on the wristwatch found beside Ricard’s body, blood and bullets in his car tied him to the murder of Michael Millot, and a diary in his handwriting and newspaper clippings about the killings were found in his apartment. That weight of evidence mattered later. Garcia, tried separately, had his convictions reversed because the State never turned over an eight-hour videotaped statement by Ribera; when Pardo raised the same tapes, the Supreme Court of Florida held on June 29, 2006, that the other proof against him made the omission harmless.
The 2006 opinion and the Eleventh Circuit’s of November 10, 2009, also deal with his trial lawyer, Ronald Guralnick, who had signed a letter of agreement with two television producers on May 18, 1988, shortly after the sentencing, for a $5,000 consulting fee and up to $50,000 if a movie was made. No movie was made. The courts found no conflict that required a new trial, and the Eleventh Circuit, in Judge Birch’s opinion, rejected his claim that he had been tried while incompetent, noting that the three court-appointed experts who examined him for sanity had also found him competent. On October 30, 2012, Governor Rick Scott signed a death warrant, and on December 4 the Supreme Court of Florida affirmed the denial of his last motion, which challenged the lethal injection protocol after the State substituted pentobarbital as the first drug. He was executed on December 11, 2012.
Pardo’s guilt was never really in dispute in these appeals; he confessed to all nine murders from the witness stand, and the arguments here are about his competence, his lawyer’s film agreement, withheld evidence and the method of execution. The victims appear as the courts name them, several of them only by surname in passing, and the opinions say little about who they were beyond the fact of their deaths. Nothing here covers Garcia’s own trials except where the courts compare the two cases.
These opinions of the Supreme Court of Florida and the United States Court of Appeals for the Eleventh Circuit are public records and needed no redaction. The nine people Pardo killed keep their names. So does Carlo Ribera, whose testimony and videotaped statement are the subject of reported decisions in both men’s cases, and so do the producers Richard Seres and Ron Sachs, who testified about their agreement with Pardo’s lawyer, and the psychologists and psychiatrists who examined him.
The Caselaw Access Project text is printed as scanned, with its errors: the Eleventh Circuit’s appearances read “Courb-Appointed” and “Respondenb-Appellee,” and the court’s record citations (“R1-10, Exh.App. L”) are kept exactly. The 2009 opinion writes dates the military way, as in “18 May 1988.” We closed words the printer had split across lines only where the whole word appears elsewhere in the text, and nothing has been spell-checked. Each opinion is followed by its footnotes.
Manuel PARDO, Jr., Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
No. 72463.
Supreme Court of Florida.
May 31, 1990.
Rehearing Denied July 27, 1990.
Calianne P. Lantz, Sp. Asst. Public Defender, Miami, for appellant/cross-appellee.
Robert A. Butterworth, Atty. Gen., and Ralph Barreira, Asst. Atty. Gen., Miami, for appellee/cross-appellant.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Manuel Pardo, Jr. appeals from a death sentence imposed after a jury found him guilty of, inter alia, nine counts of first-degree murder. We have jurisdiction.' Art. V, § 3(b)(1), Fla. Const.
Pardo and a codefendant were indicted for the nine murders, which occurred in five separate episodes between January and April of 1986. After the defendants’ trials were severed, Pardo went to trial on all nine counts. Against the advice of counsel, Pardo, a former police officer, took the stand and admitted that he intentionally killed all nine victims. He said he should avoid culpability, however, because he believed all the victims to be drug dealers, who “have no right to live.” The jury found Pardo guilty and recommended the death penalty in each case, by votes ranging from eight-to-four to ten-to-two.
The trial judge found a total of three aggravating circumstances but found that only one of them applied to all the killings: that each was done in a cold, calculated, and premeditated manner without a moral or legal justification. The court found two other aggravating factors applicable to individual murders. The judge found that the purported drug informant was killed to hinder or disrupt the exercise of a governmental function and that another killing was committed for pecuniary gain. The court specifically rejected the state’s argument that the final four episodes of killing could qualify as prior capital felonies under section 921.141(5)(b), Florida Statutes (1987).
As to mitigation, the court found that Pardo had no prior significant criminal history (section 921.141(6)(a), Florida Statutes (1987)), and was under an extreme mental or emotional disturbance (section 921.-141(6)(b), Florida Statutes (1987)). The judge also said he considered some nonstatutory mitigation, including Pardo’s military service, the fact that he had once saved the life of a child, and that he had the love and affection of his family. After weighing the aggravating and mitigating factors, the court imposed the death penalty.
Pardo raises five issues on appeal, none of which has merit.
First, he argues that the trial court erred in not ordering a hearing on his competency to stand trial. Under the facts of this ease, there was no requirement to have done so. When trial counsel requested that experts be appointed to examine Pardo and determine his sanity at the time of each episode, the court asked if counsel wanted experts also appointed to determine competency and offered to hold a hearing on the subject. Counsel stipulated that his client was competent and repeated that he only wanted a determination of sanity. The court-appointed experts examined Pardo, found him to have been sane, and also determined that he was competent to stand trial. Thus, not only was there no reason for the court to have ordered a competency hearing, but also there was no prejudice to Pardo, as the hearing would not have benefitted him.
Second, Pardo argues that the state did not carry its burden of proving that he was sane when the offenses were committed. The defense put on an expert witness who testified that Pardo was psychotic, but stated that he did know that murder was illegal and wrong. The state presented three witnesses who testified that Pardo met the Florida standard for sanity. The state argues that Pardo did not present sufficient evidence to raise an issue of sanity. We need not resolve that issue, however, because the state presented competent, substantial evidence that the jury could have accepted as proof of sanity. Thus, there is no merit to the second argument.
Third, Pardo argues that the trial court should have granted a motion for mistrial when the prosecutor twice said during her closing argument that Pardo was trying to “escape” justice or criminal liability. Defense objections to both comments were sustained and the jury was instructed not to consider the arguments of counsel to be evidence and the prosecutor was admonished not to use the word “escape.”
Pardo characterizes these remarks as attempts to attack the validity of the insanity defense, which we found reversible error in Garron v. State, 528 So.2d 353 (Fla.1988). The circumstances of the instant case are entirely different from Garrón, in which the prosecutor repeatedly pointed to the insanity defense as a devious legal ploy. The remarks in this case were extremely brief, and the prosecutor drew no logical connection between Pardo’s attempts to “escape” guilt and the validity of the insanity defense itself. We see no error in the court’s refusal to grant a mistrial.
Fourth, Pardo argues that none of the aggravating circumstances were proven. We disagree. The two referring to specific killings were supported in the record by a witness who testified that Pardo told him one victim was killed because he was an informer and the other was killed as part of a drug “rip-off.” Pardo’s own testimony, as well as other abundant evidence in the record, shows that the killings were, in effect, executions, which we have consistently held demonstrates the kind of heightened premeditation that will support a finding that the killings were cold, calculated, or premeditated. See, e.g., Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). We find no error in the court’s having found these three aggravating circumstances.
Finally, Pardo argues that the trial court should have found the statutory mitigating circumstance applying to defendants who cannot appreciate the criminality of their conduct or are seriously impaired in their ability to conform their conduct to the requirements of the law. As proof, the trial judge was supposed to have focused on Pardo’s testimony that he did not consider drug dealers people and that killing them was justified. However, there was no testimony that Pardo’s ability to conform his conduct was impaired or that he did not know that killing these victims was wrong. The court did not have to accept Pardo’s self-serving statements regarding his motives.
As authorized by Florida Rule of Appellate Procedure 9.140, the state filed a cross-appeal on two issues. The first concerns the trial court’s refusal to apply the aggravating factor of a prior conviction for a capital felony to the final four murder episodes. The judge stated:
It is the view of this Court that the Legislature intended this aggravating factor to refer to offenses other than the ones for which he is being accused and tried. Thus, notwithstanding the fact that the Defendant has been convicted of several offenses in this trial, same is not an aggravating factor.
This is not a correct statement of the law. We have consistently held that the contemporaneous conviction of a violent felony may qualify as an aggravating circumstance, so long as the two crimes involved multiple victims or separate episodes. Wasco v. State, 505 So.2d 1314 (Fla.1987). Under similar circumstances in Echols v. State, 484 So.2d 568, 576-577 (Fla.1985), cert. denied, 479. U.S. 871, 107 S.Ct. 241, 93 L.Ed.2d 166 (1986), this Court stated:
We find that all three aggravating factors are established by the evidence beyond every reasonable doubt. We add that the record shows also as a fourth aggravating factor that the appellant had been previously convicted of robbery with a firearm and armed burglary with an assault.... We cannot determine whether the trial judge overlooked this fourth aggravating factor or was uncertain as to whether convictions for crimes committed concurrently with the capital crime could be used in aggravation. However, we note its presence in accordance with our responsibility to review the entire record in death penalty cases and the well-established appellate rule that all evidence and matters appearing in the record should be considered which support the trial court’s decision.
(Citations omitted.)
Similarly, the state argues that the trial court erred in finding the statutory mitigating circumstance that Pardo had no prior significant criminal history. Except with respect to the two killings which occurred in the first episode, this, too, was a mistake of law.
Ordinarily, it is within the trial court’s discretion to decide whether a mitigating circumstance is proven. Scull v. State, 533 So.2d 1137 (Fla.1988), cert. denied, — U.S. -, 109 S.Ct. 1937, 104 L.Ed.2d 408 (1989); Teffeteller v. State, 439 So.2d 840 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984). This does not mean, however, that we are bound to accept the trial court’s findings when, as here, they are based on misconstruction of undisputed facts and a misapprehension of law.
The trial court apparently viewed Pardo’s crimes as one lengthy criminal incident. That analysis is flawed, in that each of the episodes of killing was singular, discrete, and only tenuously related, if at all, to the other episodes. The first two murders took place on January 22, 1986, and purportedly involved a drug “rip-off.” The next episode occurred January 28; the victim was the man who had made Pardo’s silencer and who supposedly was an informant. The third episode, on February 27, was another probable drug rip-off. The fourth, on April 22, involved two women acquaintances who had angered Pardo and his accomplice. The final one was on April 23, the victims being an alleged drug dealer (Pardo’s alleged boss) and his woman companion.
Contemporaneous criminal conduct cannot be considered as prior criminal activity. Scull. However, it would be absurd to say that Pardo, who had already murdered two people, had no significant history of prior criminal activity when he committed the last seven murders. Only the criminal activity, not the convictions for that activity, must occur prior to the murders for which the defendant is being sentenced. Perry v. State, 522 So.2d 817 (Fla.1988).
In sum, there were four proven aggravating circumstances, one proven statutory mitigating circumstance, and several nonstatutory mitigating circumstances involving the defendant’s character. While no proportionality argument has been raised, we have compared the facts of this case to those of others where the death penalty has been imposed and find that the sentence of death is the appropriate penalty for these nine cold-blooded killings.
We affirm the judgments of guilt for all eighteen counts, the sentence of death, and the fifteen-year prison term for the noncap-ital crimes.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDonald, shaw, barkett, GRIMES and KOGAN, JJ., concur.
The state’s theory was that some, though not all, of the victims were drug dealers but that Pardo was also a drug dealer and that his motive was robbery. The state argued that one victim was killed because he was a confidential informant for federal authorities, and that two women were killed because they had taken money from Pardo and his accomplice to buy a video cassette recorder, but had not done so.
The jury also found Pardo guilty of assorted lesser crimes including robbery and use of a firearm in the commission of a felony.
This case also is materially different from Rosso v. State, 505 So.2d 611 (Fla. 3d DCA 1987), in which the district court reversed a murder conviction because the prosecutor made comments that could easily be construed as a determined attack on the insanity defense. The prosecutor said: "I have 10 minutes to talk to you about the defense of insanity. The defense by which a person comes into Court and says, 'I murdered a 15 year old girl and almost murdered my best friend and blew her eye away, and I get to walk. I get to get off. I am not legally guilty. I am not responsible and you cannot hold me responsible.'" Id. at 612.
Manuel PARDO, Jr., Appellant, v. STATE of Florida, Appellee. Manuel Pardo, Jr., Petitioner, v. James R. McDonough, etc., Respondent.
Nos. SC03-1966, SC04-2244.
Supreme Court of Florida.
June 29, 2006.
As Revised on Denial of Rehearing Oct. 19, 2006.
Neal A. Dupree, Capital Collateral Regional Counsel, Leor Veleanu and Lucrecia R. Diaz, Assistant CCR Counsel — South, Fort Lauderdale, FL, for AppellanUPeti-tioner.
Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee/Respondent.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Manuel Pardo, Jr., who is under a sentence of death, appeals the denial of a motion for postconviction relief and petitions for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the denial of postconviction relief and deny Pardo’s habeas petition.
FACTS AND PROCEDURAL HISTORY
This is Pardo’s first postconviction appeal in a case in which he was convicted of nine murders committed in five separate episodes between January and April of 1986. Pardo took the witness stand and admitted all of the killings. The facts below are taken partly from this Court’s opinion in Pardo’s direct appeal, Pardo v. State, 563 So.2d 77 (Fla.1990), and partly from the records in the direct appeal and the postconviction proceedings.
Pardo and a codefendant, Garcia, were charged with the murders. The trial court severed the defendants’ trials after a mistrial, and each defendant was tried separately. Pardo’s counsel withdrew a request for severance that had been granted on several counts. Pardo’s trial encompassed nine counts of first-degree murder as well as charges for related robbery and firearm offenses. Id. at 78.
Before trial, Pardo’s counsel had him examined by a clinical psychologist, Dr. Syvil Marquit, both for sanity at the time of the murders and competence to stand trial. Relying on Dr. Marquit’s findings, trial counsel pursued a defense of insanity. Counsel stipulated that Pardo, a former police officer with college degrees in criminology and business management, was competent to stand trial. Three court-appointed experts, one a clinical psychologist and the other two forensic psychiatrists, evaluated Pardo based on the insanity defense. These witnesses, all of whom had substantial experience in conducting mental evaluations of criminal defendants, also evaluated Pardo for competence to stand trial. The three court-appointed experts testified at trial that Pardo was both competent to stand trial and legally sane. The defense expert, Dr. Marquit, testified that Pardo was competent to stand trial but legally insane.
Pardo testified in the guilt phase of the trial against the advice of counsel. Pardo insisted that he was sane and acknowledged that he killed all nine victims. He testified that all nine victims were drug dealers who had no right to live. In cross-examination of Pardo and argument to the jury, the State asserted that Pardo himself was involved in drug trafficking and that his motive for at least some of the murders was to take the victims’ property or money. The State argued further that not all the victims were drug dealers; that one, Michael Millot, was killed because he was a confidential informant, and two, Sara Musa and Fara Quintero, were killed because they took money from Pardo to buy a videocassette recorder but failed to do so.
The jury found Pardo guilty of nine counts of first-degree murder and recommended the death penalty by votes ranging from eight-to-four to ten-to-two. The trial court found one aggravating circumstance as to each murder: that it was committed in a cold, calculated, and premeditated manner without moral or legal justification. The court also found a second aggravating circumstance as to two murders. The court found that the murder of purported drug informant Millot was for the purpose of hindering or disrupting the exercise of a government function, and that the murder of Mario Amador was for pecuniary gain. The trial court found the statutory mitigating factors that Pardo had no significant criminal history and committed the killings while under an extreme mental or emotional disturbance. The sentencing order also reflects that the trial court considered as nonstatutory mitigation that Pardo had served in the military, that he had once saved a child’s life, and that he had his family’s love and affection. The trial court sentenced Pardo to death on each of the nine murder counts.
Pardo raised five issues on direct appeal: (1) the trial court erred in not ordering a competency hearing; (2) the State did not carry its burden of proving he was sane when he committed the crimes; (3) prosecutorial misconduct in closing argument necessitated a mistrial; (4) none of the aggravating circumstances was proved; and (5) the trial court erred in declining to find the statutory mitigator that Pardo could not appreciate the criminality of his conduct or was seriously impaired in his ability to conform his conduct to the requirements of the law. This Court rejected each of Pardo’s arguments. Id. at 79-80. In the State’s cross-appeal, we determined that the trial court erred as to the seven murders in the final four episodes when it rejected the aggravating factor of prior capital felony conviction and found the statutory mitigator of no significant history of prior criminal activity. Id. at 80-81. Thus, Pardo’s death sentences were supported by three aggravating circumstances as to one murder, two aggravating circumstances as to seven murders, and one aggravating circumstance as to one murder, weighed against one statutory mitigating circumstance and several nonstatutory mitigating circumstances. This Court found Pardo’s sentence to be constitutionally proportional, and affirmed both the convictions and death sentences. Id. at 81. The United States Supreme Court denied certiorari. Pardo v. Florida, 500 U.S. 928, 111 S.Ct. 2043, 114 L.Ed.2d 127 (1991).
Pardo filed a motion to vacate his convictions and sentences, raising eleven issues. In a supplemental motion, Pardo raised three additional issues. The trial court granted an evidentiary hearing on three issues: (1) whether the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963), in failing to provide defense counsel an eight-hour videotaped statement by Carlo Ribera, (2) whether Pardo’s trial counsel had a conflict of interest, and (3) whether counsel was ineffective in failing to move to sever the counts of first-degree murder into separate trials.
Two witnesses testified during the two-day hearing: Richard Seres, a film producer, and Ronald Guralnick, Pardo’s trial counsel. Seres’ testimony concerned a conflict of interest claim arising from Guralnick’s contacts with Seres, which Pardo does not raise in this appeal.
In a written order issued after the evidentiary hearing, the trial court denied Pardo’s motion for postconviction relief on all grounds. Pardo appeals, raising these issues: (1) the trial court’s denial, without an evidentiary hearing, of his claims regarding inadequate expert mental health evaluations; (2) the denial, without an evidentiary hearing, of the claim that trial counsel was ineffective in waiving severance of counts; (3) the Brady issue; and (4) the denial of his ineffective assistance claim regarding failure to seek severance of counts. Pardo has also filed a petition for a writ of habeas corpus, raising claims of ineffective assistance of appellate counsel and denial of a proper direct appeal because of omissions in the record.
POSTCONVICTION APPEAL
I. Pardo’s Competence to Stand Trial
Pardo asserts that the trial court erred in denying an evidentiary hearing on his claims that he was incompetent to stand trial, that the expert witnesses who found him competent conducted inadequate mental health evaluations, and that trial counsel was ineffective in failing to request a competency hearing or investigate the cause of Pardo’s alleged insanity and incompetence.
We agree with the trial court that Pardo’s claims that he was incompetent to stand trial and that he received inadequate expert evaluations are procedurally barred. Pardo’s assertion that he was tried while incompetent in violation of due process of law is merely a variant of his failed argument on direct appeal that the trial court should have ordered a competency hearing sua sponte. See generally Medina v. State, 573 So.2d 293, 295 (Fla.1990) (“[I]t is inappropriate to use a different argument to relitigate the same issue.”). In rejecting this claim on direct appeal, we stated:
The court-appointed experts examined Pardo, found him to have been sane, and also determined that he was competent to stand trial. Thus, not only was there no reason for the court to have ordered a competency hearing, but also there was no prejudice to Pardo, as the hearing would not have benefited him.
Pardo, 563 So.2d at 79. Further, Pardo’s assertion that the psychological evaluations we relied upon for this conclusion were performed incompetently could have been raised on direct appeal. See Rodriguez v. State, 919 So.2d 1252, 1267 (Fla. 2005); Marshall v. State, 854 So.2d 1235, 1248 (Fla.2003).
We reject Pardo’s attempt to avoid the procedural bar by relying on the diagnosis of a thyroid and hormonal disorder that was made after he was sentenced but allegedly rendered him incompetent to stand trial. Like the performance of counsel, the competence of an expert’s assistance should be evaluated from the perspective of the circumstances in which it was conducted, free of “the distorting effects of hindsight.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). From this perspective, the evaluations of Pardo were not so deficient that he was denied his due process right to competent expert assistance under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).
Pardo’s assertion that he was incompetent to stand trial is also the basis for two claims of ineffective assistance of trial counsel, both of which were summarily denied. First, Pardo asserts that counsel should have requested a competency hearing. In summarily rejecting this claim, the trial court again relied on this Court’s determination on direct appeal that the trial court had no reason to hold a competency hearing and that the hearing, if held, would not have benefited Pardo.
The record conclusively demonstrates that Pardo is not entitled to relief on this claim. As noted above, two forensic psychiatrists and two clinical psychologists concluded that Pardo was competent to stand trial. They explained their conclusions in terms consistent with the standards for competency set out in Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), and Florida Rule of Criminal Procedure 3.211(a)(2): sufficient present ability to consult with counsel plus a rational and factual understanding of the pending proceedings. In the direct appeal, this Court recognized that in light of the experts’ conclusions that Pardo was competent, there was no reason for the trial court to order a competency hearing. Pardo, 563 So.2d at 79. For the same reason, trial counsel acted well within the wide range of reasonable professional assistance in declining to request that the trial court make a competency determination.
On this issue, this case is similar to Mason v. State, 489 So.2d 734 (Fla.1986). There, this Court remanded for an evidentiary hearing on whether evidence of the defendant’s mental history discovered after trial would have changed the experts’ conclusion that he was competent. However, we rejected Mason’s related claim that counsel was ineffective in failing to request a competency hearing. We ruled that counsel had no duty to request a competency hearing after receiving reports from three psychiatrists finding the defendant competent. Id. at 735-36. Here, as in Mason, at the time of trial counsel “lacked any evidence indicating the need for such a procedure.” Id. at 736. The unanimous opinions of the mental health experts in this case left counsel no basis on which to seek a competency determination. Accordingly, we find neither deficient performance nor prejudice in counsel’s decision not to seek a hearing on Pardo’s competency. We thus affirm the trial court’s denial of relief on this claim.
Pardo further claims that counsel was ineffective in failing to alert the mental health experts to symptoms such as weight gain and hair loss that might have led them to diagnose Pardo’s thyroid and hormonal disorder. In denying this claim, the trial court stated that “[i]f a medical doctor did not diagnose a physical disorder, it cannot be reasonably said that counsel was ineffective in failing to further investigate the cause of Defendant’s insanity.”
As the United States Supreme Court cautioned in Strickland, “[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.” 466 U.S. at 689, 104 S.Ct. 2052. From counsel’s perspective at the time he was preparing to defend Pardo, and without the distorting effects of hindsight, an investigation into any physical cause of Pardo’s possible incompetence would not have been warranted. The tests for both insanity and incompetence focus on a defendant’s thought processes and mental function rather than on physical conditions that might affect a defendant’s mental function. Patton v. State, 878 So.2d 368, 375 (Fla.2004) (stating test for insanity in Florida); Fla. R.Crim. P. 3.211(a) (stating test for competency to stand trial). Rule 3.211(b), which concerns recommended treatments of incompetent defendants, in subdivision (1) requires experts to report on “the mental illness or mental retardation causing the incompetence” but not on physical illness. Thus, counsel, like the four mental health experts who evaluated Pardo, appropriately focused not on symptoms indicating a physical illness but on Pardo’s mental functioning. — his comprehension and ability to reason.
We distinguish Peede v. State, 748 So.2d 253 (Fla.1999), which involved a similar claim. In Peede, this Court reversed the summary denial of a postconviction motion asserting that trial counsel was ineffective in failing to assist a court-appointed psychiatrist and provide the psychiatrist important background information. Id. at 258-59. Peede alleged that the court-appointed expert was not provided hospital or medical records that were available and did not interview anyone familiar with the defendant’s personal history. Id. at 258. The necessity for an evidentiary hearing rested largely on Peede’s assertion that his “serious and preexisting mental illness” demonstrated by these records went undiscovered and could have affected the competency evaluation conducted by the court-appointed mental health expert. Id. at 259. In contrast, Pardo has not pointed to any existing medical records which, if shown to the mental health experts, would have changed their conclusions that Pardo was competent to stand trial. Instead, Pardo’s claim rests on observations of physical symptoms which, as the trial court pointed out, did not indicate to a medical doctor a physical disorder bearing on Pardo’s competency or sanity.
Thus, Pardo’s counsel did not render constitutionally deficient performance in failing to alert the experts to a condition for which physical symptoms first appeared while Pardo was detained pending trial, and that was not diagnosed until after Pardo was convicted and sentenced. We affirm the summary denial of relief on this claim.
II. Trial Counsel’s Failure to Present an Alibi for Two Murders
Pardo asserted below that trial counsel was ineffective in failing to investigate and present an alibi for the murders of Sara Musa and Fara Quintero. Pardo claimed that his wife was the source of the alibi, “which could have demonstrated that Mr. Pardo was nowhere near the scene of the murders.” The motion contained no other details of the facts supporting the alibi. In denying the claim without an evidentiary hearing, the trial court noted that Pardo “does not allege what the alibi was or how the alibi could have changed the probability that he [would] be convicted.” The trial court also observed that even if Pardo’s wife had provided an alibi, Pardo “cannot now show that a different result would have been reached or show he was prejudiced.”
We affirm on both grounds relied on by the trial court. First, Pardo’s claim was insufficiently pled. In Jacobs v. State, 880 So.2d 548 (Fla.2004), we concluded that the petitioner set out a facially sufficient claim because he “specifically identified the alibi witnesses, stated the substance of their exculpatory evidence, and averred that they were known to counsel.” Id. at 553. Here, the motion did not factually describe how Pardo’s wife would have supported an alibi beyond stating that she would have demonstrated that he was “nowhere near the scene of the murders.” Thus, this claim was insufficiently pled.
The trial court also concluded that Pardo did not show prejudice. We agree that the claimed alibi does not undermine judicial confidence in the convictions on the counts involving Musa and Quintero. In Jacobs we stated:
[A] claim of ineffectiveness in failing to present important exculpatory evidence cannot be resolved on the basis of the mere existence of conflicting evidence in the record. Rather, the record evidence must conclusively rebut the claim if the claim is to be resolved without a hearing. ...
However, the mere existence of evidence of guilt is insufficient to conclusively rebut a claim of ineffectiveness in failing to present evidence of innocence in the form of known and available alibi witnesses.
Id. at 555.
In this case, compelling evidence established Pardo’s guilt of the Musa and Quintero murders, capped by his own admission to the jury that he murdered the two women as well as the other seven victims. Thus, the record conclusively refutes any claim that Pardo was prejudiced by the absence of testimony by his wife that he was elsewhere when two of the nine murders in this case occurred. We therefore affirm the summary denial of relief on this claim.
III. Brady Issue: Nondisclosure of Videotaped Interview of State Witness
Following an evidentiary hearing, the trial court denied Pardo’s claim that the State’s failure to disclose videotapes of a police interview with State witness Carlo Ribera required a new trial. The trial court concluded that the videotapes did not undermine confidence in Pardo’s convictions and death sentences for several reasons. First, the defense investigation and three-day deposition of Ribera revealed ample evidence that he was a liar whose testimony should not be taken at face value. Second, defense counsel testified only that he might have used the videotapes to impeach Ribera, depending on the circumstances. Third, Pardo testified in the guilt phase that he committed each of the murders, negating any prejudice. Finally, the defense at trial was insanity, an affirmative defense that admits the acts alleged. We agree that although the State suppressed potentially favorable evidence in failing to disclose the videotapes, the record conclusively demonstrates that judicial confidence in the verdict is not undermined by the nondisclosure.
To establish a Brady violation, a defendant must prove (1) that evidence favorable to the accused because it is exculpatory or impeaching, (2) was suppressed by the State, either willfully or inadvertently, (3) resulting in prejudice to the defense. Way v. State, 760 So.2d 903, 910 (Fla.2000). The determination whether a Brady violation has occurred is subject to independent appellate review. Id. at 913; Cardona v. State, 826 So.2d 968, 973 (Fla.2002). Prejudice under a Brady claim, like an ineffective assistance claim, is established if the nondisclosure undermines confidence in the conviction. Id.
In this case, the State stipulated below that it failed to disclose to defense counsel the videotapes of the May 6, 1986, police interview of Ribera, establishing the second prong of Brady. The evidentiary hearing and trial court ruling centered on whether the videotapes were impeaching and whether they put the entire case in such a different light as to undermine confidence in the convictions.
Before we address Pardo’s specific arguments on this issue, we distinguish this case from the case of Pardo’s codefendant, in which we ruled that the nondisclosure of the Ribera videotapes required a new trial. See Garcia v. State, 816 So.2d 554 (Fla. 2002). Pardo’s trial testimony admitting the killings places the nondisclosure in a far less prejudicial light than in Garcia’s case. In fact, the exclusion of Pardo’s testimony provided a second basis for reversal of Garcia’s convictions. Id. at 567. Other evidence also strongly implicated Pardo. The State introduced evidence that a projectile removed from Pardo’s foot was fired from one of the two guns used to kill Ramon Alvero and Daisy Ricard. In addition, the State produced evidence that a spent casing from Pardo’s closet was fired from the same gun as a casing found under Alvero’s body. Also, blood and bullets in Pardo’s car connected him to the murder of Millot. Finally, police found in Pardo’s apartment a diary with Pardo’s handwriting and newspaper clippings pointing to the murders. In contrast, little physical evidence linked Garcia to the murders. Id. at 563. Accordingly, the reversal in Garcia does not compel the same result here.
Nonetheless, Pardo asserts that access to the videotapes of the eight-hour interview with Ribera would have altered the course of Pardo’s trial in several ways, undermining confidence in the outcome. Pardo asserts that (1) defense counsel would have been able to successfully move to suppress the evidence acquired during execution of a search warrant at Pardo’s home which relied upon Ribera’s information for probable cause; (2) counsel could have impeached Ribera with greater success at trial, eliminating Pardo’s motivation to testify and admit the killings; and (3) counsel could have better prepared for trial and adopted different strategies, perhaps forgoing the decision to rely on a defense of insanity.
A. Suppression of Evidence
Ribera was the confidential source identified in the affidavit filed with the application for a warrant to search Pardo’s residence. Ribera’s statements under polygraph examination and verification of some of the information he provided that was not released to the public were the primary sources of probable cause. Pardo claims that the material in the videotapes would have portrayed Ribera as so unreliable that trial counsel would have successfully moved to suppress the fruits of the search.
Initially, we are skeptical of the claim that nondisclosure of material bearing on the reliability of a search warrant is impeachment material cognizable under Brady. Impeachment is an attack on the credibility of a witness. See § 90.608, Fla. Stat. (2005). The validity of an affidavit for a search warrant is determined not from witness testimony but from the four corners of the affidavit. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). If the affidavit creates a substantial basis for a finding of probable cause on its face, a defendant seeking to suppress the fruits of the warrant must establish that the affidavit contains statements that were intentionally false or made with reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Thorp v. State, 777 So.2d 385, 391 (Fla.2000). In the alternative, the defendant must demonstrate that the affidavit omits facts with intent to deceive or with reckless disregard for whether the information should have been revealed to the magistrate. Pagan, 830 So.2d at 807. If probable cause does not exist after excising such falsehoods or adding the material omitted, evidence acquired thereby must be suppressed. Thus, falsehoods and omissions from an affidavit used to obtain a search warrant can invalidate the initial probable cause determination, but they are not impeachment material in the sense of facts bearing on the credibility of a testifying witness.
We need not decide whether the nondisclosure of evidence bearing on the validity of a search warrant is cognizable under Brady because the nondisclosure of the Ribera videotapes did not result in prejudice warranting a new trial. A determination of prejudice would require us to conclude first that trial counsel probably would have used the information in the videotapes to file a motion to suppress, second that the motion would have been granted and crucial evidence suppressed, and third that confidence in Pardo’s convictions is undermined. On the record before us, we cannot reach this ultimate conclusion.
Trial counsel Guralnick stated at the evidentiary hearing that he might have been able to use the videotapes to show that the police officer interviewing Ribera did not believe him and that some of Ribera’s knowledge of the crimes came from media accounts of one of the murders. However, Guralnick did not review the videotapes before the evidentiary hearing and thus could not state that the videotapes would have led him to seek suppression of the fruits of the search warrant. Nor did postconviction counsel make a showing that the videotapes would or should have led trial counsel to seek suppression of the evidence obtained via the warrant. Pardo has not identified in the videotapes any falsehoods or omissions of the magnitude identified in Franks and Pagan. Thus he has not established that had the videotapes been disclosed, a motion to suppress probably would have been filed.
Second, there is no basis to conclude that a motion to suppress based on the videotapes would have been granted. As stated above, none of the material in the search warrant affidavit meets the standard of materiality set out in Franks and Pagan — intentional or reckless falsehoods or omissions. Pardo cites no authority requiring that all of the information supplied by a source be excised because the source is generally unreliable, which would be contrary to the focus of the Franks test on specific falsehoods and omissions. Further, the affidavit did not rest solely on information provided by Ribera. There was also corroboration of some of the details attributed to Ribera. Cf. State v. Butler, 655 So.2d 1123, 1127 (Fla.1995) (noting that the United States Supreme Court has repeatedly relied on relevant corroborating facts known by the police in evaluating an informant’s tip as the primary basis for probable cause). On the whole, we find no reasonable probability that had the videotapes been provided to defense counsel, evidence acquired in the search of Pardo’s home would have been ruled inadmissible in Pardo’s trial.
The final consideration is whether, assuming disclosure of the Ribera videotapes would have led to suppression of the fruits of the search, the suppression would render Pardo’s murder convictions and death sentences unreliable. This requires an assessment of the weight of both the evidence seized pursuant to the warrant and the other evidence introduced by the State. Evidence taken from Pardo’s apartment pursuant to the search warrant and introduced at trial included a diary and newspaper clippings that tied him to many of the murders. However, the State also introduced ample evidence unrelated to either the search or the portions of Ribera’s trial testimony that were uncorroborated. For example, a bullet removed from Pardo’s foot matched projectiles used in the murders of Ramon Alvero and Daisy Ricard. Pardo’s fingerprint was found on the wristwatch of victim Ricard, discovered next to her body. Further, the palm print of codefendant Garcia was on a pawn slip for jewelry belonging to victims Musa and Quintero, pawned the day after their murders. In addition, Garcia used credit cards belonging to several victims after their murders. Finally, much of the physical evidence corroborated Ribera’s testimony as to what he had seen and heard.
The primary reason exclusion of the items seized from Pardo’s apartment would not undermine confidence in the outcome is that Pardo insisted on testifying that he personally killed all of the nine victims because they were drug dealers. At that point only Pardo’s sanity remained in question, and the jury in returning guilty verdicts rejected the insanity defense. The assertion by postconviction counsel that Pardo would not have testified had the videotapes been disclosed and the evidence suppressed is unsupported speculation. Pardo’s chief motivation in testifying was to claim credit for the vigilante killings and refute the State’s suggestion through Ribera that Pardo was a drug dealer. Pardo’s reason for testifying appears unrelated to the incriminating nature of the evidence seized in the search of his apartment. This aspect of Pardo’s postconviction claim is addressed in greater detail below.
B. Impeachment of Witness at Trial
Ribera’s trial testimony incriminated Pardo in all nine murders. Ribera testified that Pardo described how he had killed many of the victims and showed Ribera diary entries, newspaper clippings, and Polaroid photographs substantiating his claims. Ribera also testified that Garcia, Pardo’s codefendant, told him how Pardo had killed victims Musa and Quintero.
Postconviction counsel has identified a number of statements in the videotapes which trial counsel could have used to impeach Ribera. However, none of these statements, individually or collectively, undermine confidence in the outcome of the proceedings.
Initially, as noted by the State, on close inspection several of Ribera’s statements, on trivial as well as material facts, are not inconsistent with his trial testimony. Alleged inconsistencies about when Ribera was shown photographs of the murder scenes by Pardo, whether he was allowed in Pardo’s home, and where he had seen credit cards belonging to the victims are not borne out by the record. Of greater significance, the videotaped statements are not inconsistent with Ribera’s trial testimony that Garcia and Pardo played separate roles in their joint enterprise. In the police interview, Ribera described Pardo as the “killing machine” and Garcia as the brains of the drug dealing who, nonetheless, would not do anything without Pardo’s approval. In his trial testimony, Ribera clearly identified Pardo as the one who killed the victims and Garcia as the one who depicted the killings as robberies of drug dealers.
In sum, even without consideration of the additional evidence against Pardo, there are no inconsistencies in the videotapes of Ribera’s police interview that put the case in such a different light as to undermine judicial confidence in the verdict. Nor, assuming trial counsel could expose the jury to evidence of coaching during the interview or indications that Ribera was suffering from a drug hangover, as Pardo alleges, would confidence be undermined. Ribera admitted during cross-examination that he had been a gun-toting drug dealer at the time of his interactions with Pardo and Garcia.
The diary, newspaper clippings, and ballistics and serology evidence against Pardo, discussed above, buttress our conclusion that material in the videotapes does not undermine confidence in the verdicts. As trial counsel Guralnick testified during the evidentiary hearing, “Reasonable doubt was certainly not viable in this particular case.” Pardo does not press a theory of innocence supported by the undisclosed impeachment material other than the general reasonable doubt theory rejected by trial counsel. As noted above, Pardo’s jury confession also serves to distinguish this case from that of his codefendant Garcia on the effect of the nondisclosure of the Ribera videotapes. Pardo’s in-court confession in his own trial negates any prejudice from the nondisclosure of the Ribera videotapes.
The claim by postconviction counsel that Pardo would not have testified had Ribera been impeached with the videotapes is addressed below.
C. Defense Preparation and Strategy
Pardo argues that disclosure of the Ribera videotapes would have changed the defense’s investigation and planning for the trial and enabled defense counsel to successfully discourage Pardo from testifying and admitting that he committed the murders. These assertions are highly speculative. Pardo has not established that, given the physical and testimonial evidence against him, the Ribera videotapes would have materially changed trial counsel’s preparations or the course of the trial. Further, the claim of postconviction counsel that Pardo took the witness stand to rebut Ribera’s testimony on Pardo’s role in the killings is contrary to Pardo’s own testimony. Pardo sharply challenged Ribera’s testimony that Pardo benefited financially from the murders, but did not contest Ribera’s testimony in general or his implication of Pardo in the nine murders in particular. Ribera testified that Pardo killed Amador and Alfonso “to rip them off and get the cocaine and sell it for money,” killed Robledo and Ledo “to rip them off for two or three kilos of cocaine,” and killed Musa and Quintero for $50 and “respect.” On cross-examination, the following exchange occurred:
Q He [Pardo] was proud of killing these people, wasn’t he?
A He was making money.
In his testimony, Pardo explained why he chose to testify, against his lawyer’s advice:
Q Why is it so important for you to have these ladies and gentlemen hear your version of the story?
A Because what Carlo Ribera said was self-serving and is completely wrong and I want my opportunity to tell my side of the story.
Q Mr. Pardo, both Mr. Waskman and Ms. Weintraub [the prosecutors] have tried to make special note that you killed these people because you were a drug dealer and that you were involved in drug trafficking.
A I applaud the State Attorney’s Office in the preparation of their case. It was flawless, it was beautiful with the minor exception of why I killed these people.
At no time did anybody indicate I was a drug dealer. At no time in my life have I ever been a drug dealer....
Q Have you been involved in drug transactions with any of the victims in this case?
A Not drug transactions to benefit myself, no.
Q You admit to killing all of the nine people that they have set forth in this trial?
A Yes, I do, of course I did.
Q Mr. Pardo, why did you kill these people, and I don’t mean one, I mean each and every one?
Q I killed each and every one of these people because they were drug dealers.
As stated above, Pardo maintained that he was not guilty of murder because he considered his victims to be drug dealers who had forfeited the right to live. He did not testify at the postconviction evidentiary hearing to support postconviction counsel’s assertion that he would not have taken the witness stand at trial had Ribera been discredited through his statements in the police videotapes. Therefore, we find no reasonable probability that disclosure of the videotapes of the Ribera interview would have altered the investigation, preparation, or presentation of the defense’s case, and certainly not to a level undermining confidence in the convictions. Accordingly, we affirm the denial of relief on this claim.
IV. Waiver of Severance of Counts
Pardo asserted below that trial counsel was ineffective in waiving a severance of the various murder, robbery, and weapons counts into two or more trials. Relying on the testimony of trial counsel during the evidentiary hearing, the trial court concluded that counsel acted reasonably when he opted to seek an acquittal on the defense of insanity in a single trial rather than attempt to win acquittal in each of a series of trials. In his appeal of the denial of relief on this claim, Pardo asserts that trial counsel’s actual reason for forgoing severance was financial: counsel could not afford to represent Pardo in numerous trials on what he had been paid. In support of this contention, Pardo points to an unfiled motion to withdraw claiming financial hardship taken from counsel’s files. Pardo also asserts that trial counsel did not testify that “[t]he jury would be more likely to believe an insanity defense, given the number of victims,” as the trial court found. The State responds that trial counsel’s strategy was reasonable under the circumstances, that the trial court recognized at the time of trial that the strategy was sound, and that the defense expert who testified for Pardo at trial supported the view that trying the nine murder counts together buttressed the prospects of success on the insanity defense.
“[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 1087, 1048 (Fla.2000). In opting to try all of the counts against his client in a single proceeding, defense counsel made a reasonable strategic decision involving an informed choice among alternatives. The record reflects that at the point when counsel moved to try the counts together, Pardo’s trial had been severed from that of codefendant Garcia, and counts IX through XIII involving the Musa and Quintero murders were severed from the other counts against Pardo. However, during jury selection for the first trial on six of the murders, trial counsel changed his position and agreed that counts IX through XIII, as well as the counts involving the murder of Michael Millot charged in a separate indictment, should also be included. The trial court granted the motion, observing that “in view of his defense, he feels, obviously, and I can see why, it [is] best to try his client on all counts.” Later, in response to the State’s expression of concern that Pardo may not have agreed with counsel’s decision, the trial judge noted that he had seen counsel consult with Pardo. Guralnick confirmed that he had consulted with Pardo.
In his testimony at the postconviction evidentiary hearing, trial counsel Guralnick explained his rationale for agreeing to a single trial on all counts:
All of the separate counts of murder that had been filed against him, if I had tried each of thenf individually, I mean, his chances of winning every single one of them with the evidence that they had, you would have had a better shot at winning the lottery. So it was my opinion that with an insanity defense, if they’re all joined in one case, that if the jury believed that he was insane, then he was a total winner.
The trial court instructed the jury that “[a] person is considered insane when he has a mental infirmity or disease or defect and because of this condition, he did not know what he was doing or its consequences or although he knew what he was doing or the consequences, he did not know it was wrong.” Dr. Marquit’s testimony supported the defense’s insanity theory on the rationale that Pardo did not think it was wrong to kill those he considered to be drug dealers. Counsel reasonably could have concluded that the large number of victims demonstrated the sincerity of this belief and thus the credibility of the insanity defense.
Pardo’s own testimony reinforced the decision to try all of the murder counts together to support the insanity defense. He proudly acknowledged killing all nine victims and opined that his acts were not murders because his victims were drug-dealing parasites rather than human beings. In the postconviction evidentiary hearing, trial counsel stated that although he had advised Pardo not to testify, he came to believe it might have been a good move because Pardo sounded “crazier than a bed bug.”
Apart from the unfiled motion to withdraw, there is no support in the record for the allegation that counsel tried all the counts together for financial reasons. As the State points out, fifteen months elapsed between the date of the unfiled motion to withdraw and counsel’s decision to seek a single trial on all counts. Asked at the evidentiary hearing whether something had changed in the interim, counsel stated that it had, but did not elaborate. Although the trial record does not reveal a ruling on the pretrial motion for appointment as a special assistant public defender filed by Guralnick, several motions for expenses in the record reflect that Pardo had been declared indigent for purposes of costs. The suggestion of an ulterior motive for trial counsel’s strategy is without adequate record support.
Accordingly, Pardo has not demonstrated deficient performance under the Strickland standard. Further, there is no indication of prejudice sufficient to overturn the verdicts for any of the five murderous episodes. This Court’s decisions in the direct appeals by Pardo and Garcia establish that the counts were severable. See Garcia, 568 So.2d at 899-901 (reversing conviction for failure to sever trials by episode); Pardo, 563 So.2d at 80 (noting that each episode of killing “was singular, discrete, and only tenuously related, if at all, to the other episodes”). However, even in the event of severance, Pardo has not shown a reasonable probability, sufficient to undermine confidence in the outcome, of a different result in any of the severed trials. Even without Pardo’s jury confession, the physical and testimonial evidence against Pardo was strong, as trial counsel acknowledged in the evidentiary hearing when he stated that he went with the insanity defense because of the overwhelming evidence of guilt and compared the prospect of acquittal to winning the lottery.
Having failed to satisfy either prong of a meritorious ineffective assistance claim, Pardo is not entitled to relief on his assertion that trial counsel failed to perform as the counsel guaranteed by the Sixth Amendment. We affirm the trial court’s denial of relief on this claim.
PETITION FOR WRIT OF HABEAS CORPUS
In his habeas petition, Pardo asserts that appellate counsel was ineffective in failing to raise several issues in Pardo’s direct appeal: that the trial court erred in precluding cross-examination of Ribera on prior crimes he admitted committing but was not charged with, and that the trial court erred in its rulings on several evidentiary issues preserved by trial counsel.
This Court’s standard for evaluating claims of ineffective assistance of appellate counsel in habeas corpus proceedings mirrors the standard set out in Strickland for trial counsel ineffectiveness. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000). This Court said in Rutherford:
[T]his Court’s ability to grant habeas relief on the basis of appellate counsel’s ineffectiveness is limited to those situations where the petitioner establishes first, that appellate counsel’s performance was deficient because “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, that the petitioner was prejudiced because appellate counsel’s deficiency “compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.”
Id. (quoting Thompson v. State, 759 So.2d 650, 660 (Fla.2000)).
Addressing a claim that appellate counsel was ineffective in failing to contest trial court rulings on evidentiary issues, this Court has stated:
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal, this Court evaluates the prejudice or second prong of the Strickland test first. In doing so, we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error. A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner.
Jones v. Moore, 794 So.2d 579, 583 (Fla.2001). In Strickland, the United States Supreme Court stated that if the defendant cannot establish one prong of an ineffective assistance claim, the court need not address the other. 466 U.S. at 697, 104 S.Ct. 2052. Accordingly, in Valle v. Moore, 837 So.2d 905, 910-11 (Fla.2002), this Court denied a claim of ineffective assistance of appellate counsel upon concluding that no prejudice ensued from the lack of an appellate challenge to the admission of a gun because the ruling, if error, was harmless.
Such is the case here. Our confidence in the verdicts of guilt and sentences of death would not be undermined had appellate counsel successfully raised each of the issues specified by postconviction counsel. Both individually and cumulatively, the errors would have been harmless beyond a reasonable doubt. As detailed above, the jury received evidence of highly incriminating notations in Pardo’s diary and possession of newspaper clippings, ballistics and blood evidence linking Pardo to many of the murders, and Ribera’s testimony that Pardo boasted about most of the killings. Further, none of the evidentiary rulings specified in this claim undermine the force of Pardo’s confession to the jury that he intentionally killed each of the nine victims. Accordingly, Pardo was not prejudiced by appellate counsel’s failure to raise issues concerning evidentiary rulings that were harmless beyond a reasonable doubt.
Finally, Pardo claims appellate counsel was ineffective in failing to ensure a complete record. He is not entitled to relief because he has not identified any errors occurring during the proceedings that were not transcribed. See Griffin v. State, 866 So.2d 1, 21 (Fla.2003) (denying habeas relief to petitioner who “has not pointed to any errors that occurred during the portions of the proceedings that were not transcribed”); Ferguson v. Singletary, 632 So.2d 53, 58 (Fla.1993) (rejecting claim of ineffective assistance of appellate counsel based on missing record because the defendant “point[ed] to no specific error which occurred”). Accordingly, we reject this claim as well.
CONCLUSION
Having found no reversible error in the trial court’s denial of Pardo’s motion for postconviction relief, we affirm its ruling. Having found no merit in the points raised in Pardo’s habeas petition, we deny the petition.
It is so ordered.
PARIENTE, C.J., and WELLS, ANSTEAJD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.
The issues raised in Pardo's 3.850 motion concerned (1) the trial court's denial of public records requests; (2) matters relating to trial that Pardo claims denied him an "adversarial testing,” specifically (a) an alleged conflict of interest by trial counsel, (b) the State’s withholding of videotapes of a police interview with State witness Carlo Ribera, (c) trial counsel’s failure to seek suppression of evidence from search warrants, (d) trial counsel's failure to seek severance of some of the first-degree murder counts, (e) trial counsel's introduction of evidence that Pardo identified with Adolph Hitler, collected Nazi memorabilia, and said he worshipped the devil, (f) undisclosed and newly discovered evidence concerning the lead detective in the case, (g) trial counsel’s failure to adequately investigate and challenge Pardo's guilt on two of the murders, (h) trial counsel's failure to request a competency determination, (i) trial counsel’s failure to request a change of venue, and (j) trial counsel's failure to investigate the underlying medical cause of Pardo’s alleged insanity and incompetence; (3) Pardo's competence to stand trial; (4) the adequacy of evaluations by mental health professionals who examined Pardo regarding his insanity defense; (5) prohibitions on juror interviews; (6) the propriety of the state's closing argument and defense counsel's failure to object to it; (7) limitation of cross-examination of Carlo Ribera; (8) alleged error under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (9) various attacks on the constitutionality of the death sentences; (10) the adequacy of instructions on aggravating circumstances; and (11) alleged cumulative error.
The supplement concerned (1) the constitutionality of the death sentences under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (2) newly discovered evidence of Garcia’s plea bargain on four murders after being acquitted of a fifth; and (3) nondisclosure of Garcia's plea agreement.
Pardo also appeals the denial of his public records requests. Having carefully considered the arguments of the parties on this claim, we conclude that Pardo has not been denied his constitutional or statutory rights to public records, and affirm on this issue without further discussion.
Garcia's first set of four first-degree murder convictions was reversed because the offenses were erroneously consolidated for trial. Garcia v. State, 568 So.2d 896, 901 (Fla.1990). On remand, Garcia was convicted of two counts of first-degree murder and again sentenced to death. We reversed on two grounds: the nondisclosure of the Ribera videotapes and the exclusion of Pardo’s testimony taking sole responsibility for the murders in his trial, each resulting in harmful error. 816 So.2d at 560-67.
We have cautioned trial courts conducting evidentiary hearings on ineffective assistance claims that addressing only one of the Strickland prongs risks avoidable delay and duplication of effort if the court’s ruling on that prong is overturned. See Henry v. State, 937 So.2d 563, 568-69 (Fla.2006); Grosvenor v. State, 874 So.2d 1176, 1182-83 (Fla.2004). These concerns do not have the same force on appellate ineffectiveness claims, which do not involve evidentiary hearings.
Manuel PARDO, Jr., Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
No. 08-14053.
United States Court of Appeals, Eleventh Circuit.
Nov. 10, 2009.
Anna-Liisa Nixon (Courb-Appointed), William M. Hennis, III (Courb-Appointed), Fort Lauderdale, FL, for Petitioner-Appellant.
Sandra Sue Jaggard, Miami, FL, for Respondenb-Appellee.
Before BIRCH, BLACK and WILSON, Circuit Judges.
[OPINION BY BIRCH, Circuit Judge: type=majority]
BIRCH, Circuit Judge:
Manuel Pardo, a Florida prisoner under sentences of death based on his nine first degree murder convictions, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We granted a certificate of probable cause. After review and oral argument, we affirm the district court’s order.
I. BACKGROUND
In 1986, Pardo, a former police officer, and codefendant, Rolando Garcia, were charged with nine counts of first-degree murder. Their trials were severed, and Pardo was tried in 1988. Carlo Manuel Ribera was the state’s first witness. He testified that he had known Garcia since 1985, knew that he was involved with drugs, and asked him for a job off-loading illegal drugs from ships in 1986. Ribera heard Garcia mention Pardo as a possible source of a off-loading job and eventually met Pardo at a family gathering. When Ribera visited Garcia and Pardo, they showed him newspaper clippings, a diary, and a photograph about people, including a federal agent, that they said they had killed. Ribera’s testimony was followed by witnesses regarding each murder.
Over his attorney’s objection, Pardo testified that he had committed each of the charged murders but maintained that he killed them because they were drug dealers. He denied being involved with drugs and did not believe that it was wrong to kill the victims, who he referred to as “parasites” or “leeches”, who had no right to be alive. R1-10, Exh.App. L, Vol. 11 at 3563-66, 3573-74. He testified that, after he shot each victim, he took a picture to capture the victim’s “spirit” and then burned the picture in a special ash tray. Id. at 3566-68. He explained that, while working as a police officer, he had been exposed to many victims who had been hurt by drugs. The jury found Pardo guilty of each first degree murder count.
Pardo testified during the penalty phase, over his counsel’s objection and expression of doubt as to Pardo’s competency, that he had not acted for financial gain but had acted as a “soldier.” R1-10, Exh.App. L, Vol. 12 at 4182-86. He said that he was “ready for the death penalty” and asked that it be imposed. Id. at 4185. The jury subsequently recommended death on each count.
After considering the aggravating factors, the trial court found that the cold, calculated, and premeditated nature of the murders applied to each murder, the pecuniary gain factor applied to one murder, and the factor of hindering a governmental function applied to one murder. The trial court considered the mitigating factors and found that Pardo had no significant criminal history, was under the influence of extreme mental or emotional distress, had saved the life of a child, his family loved him, and he had served in the military. After weighing the aggravating and mitigating factors and considering the jury’s recommendation, the trial court imposed death sentences on each murder conviction.
The Florida Supreme Court affirmed his convictions and sentences on direct appeal, Pardo v. State, 563 So.2d 77 (Fla.1990) (per curiam) (“Pardo I”), and the United States Supreme Court denied his petition for writ of certiorari. Pardo v. Florida, 500 U.S. 928, 111 S.Ct. 2043, 114 L.Ed.2d 127 (1991) (“Pardo II").
Pardo moved for postconviction relief in 1992, and amended and supplemented his motion 2001 and 2002. The state trial court held an evidentiary hearing on three issues: (1) whether the state violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) when it failed to turn over Ribera’s 8-hour videotaped statement; (2) whether Pardo’s trial counsel represented Pardo under a conflict of interest; and (3) whether Pardo’s trial counsel was ineffective in failing to sever all nine murder counts into separate trials. During the hearing, Pardo’s counsel presented two witnesses: (1) Ronald Guralnick, Pardo’s trial counsel; and (2) Richard Seres, a movie producer.
The state admitted that, despite Pardo’s trial counsel’s motion for discovery and the prosecutor’s statement during a pretrial discovery hearing that they had turned over all the impeachment and exculpatory evidence, the Ribera videotapes were never provided to defense counsel because they did not know that they existed. The prosecution did not, however, stipulate that the tape would have been admissible at trial or could not have been discovered through counsel’s due diligence. Guralnick testified that he would have used the specific contradictions in Ribera’s videotaped and trial testimony for impeachment purposes.
Seres testified that, shortly after seeing a televised report on Pardo’s sentencing, he and another producer, Ron Sachs, met with Guralnick and Pardo. A few weeks later, Guralnick, Sachs, and Seres signed a “letter of agreement” on 18 May 1988 and, with Pardo, signed a privacy release. R1-10, Exh.App. N, Vol. 28 at 62-66; R1-10, Exh.App. N, Vol. 29 at 192-93; R1-10, Exh.App. N, Vol.31 at Defense Exh. A, B. They met with Pardo and, after Pardo was transferred to death row, took a film crew to meet with him. The agreement provided that, in exchange for “facilitating] the story,” Guralnick would receive $5,000 as a “consulting fee” and up to $50,000 of any licensing fee if a movie was produced. R1-10, Exh.App. N, Vol. 28 at 68, 70-72; R1-10, Exh.App. N, Vol. 29 at 193; R10, Exh.App. N, Vol. 31 at Defense Exh. A. Guralnick received the $5,000 but no further payment because no movie was produced.
Guralnick testified that he was retained by Pardo for an “insignificant” amount of money and that he moved to withdraw because he was concerned that his “pro bono” representation would “virtually destroy his law practice.” R1-10, Exh.App. N, Vol. 29 at 183, 187-88, 190-92; R10, Exh.App. N, Vol. 31 at Defense Exh. M. Although he initially joined Garcia’s motion to sever the counts, he withdrew from that motion because he believed that, “with an insanity defense, if they’re all joined in one case, that if the jury believed that he was insane, then he was a total winner.” R1-10, Exh.App. N at 233.
The state trial court denied postconviction relief on all claims. The Florida Supreme Court affirmed and denied rehearing. Pardo v. State, 941 So.2d 1057 (Fla. 2006) (per curiam) (“Pardo III”).
Pardo filed his federal petition for writ of habeas corpus in 2007. The district court denied Pardo’s petition, Pardo v. McDonough, No. 07-22867-Civ-Cohn (S.D.Fla.2008) (“Pardo IV’); R1-15, and his motion to alter or amend the judgment, R1-17; (“Pardo V’). Pardo appealed, and moved for a certificate of appealability (“COA”). The district court denied his application for a COA. We initially denied his motion for a COA, but granted the motion on reconsideration.
II. DISCUSSION
Our review of the district court’s denial of Pardo’s petition for writ of habeas corpus is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which establishes a “highly deferential standard” for state court judgments. Williams v. Allen, 542 F.Sd 1326, 1336 (11th Cir.2008) (quotation marks and citation omitted), cert. denied, — U.S. -, 129 S.Ct. 2383, 173 L.Ed.2d 1325 (2009). Under that standard, a habeas petition may not be granted as to any claim adjudicated on the merits in the state court unless the state court adjudication was contrary to, or involved an unreasonable application of, clearly established holdings of the Supreme Court or was based on an unreasonable determination of the facts as based on the evidence presented in the state court. Id. (citing § 2254(d)). We review questions of law and mixed questions of law and fact, including ineffective assistance of counsel claims, de novo, and review findings of fact for clear error. Id. (citations omitted).
On appeal, Pardo raises four issues: (1) whether the trial court erred by failing to sua sponte order a full competency hearing; (2) whether he was tried while incompetent; (3) whether he was denied effective assistance of counsel because his attorney failed to request a competency hearing, failed to discover the underlying cause for Pardo’s insanity, and waived severance of the murder counts; and (4) whether he was denied his right to adversarial testing during the guilt phase by the prosecution’s withholding of material evidence.
A. Rejection of Pardo’s Competency Claim
Pardo argues that, although his trial counsel did not formally request a competency hearing or determination, the trial court should have sua sponte ordered a competency hearing because it should have had a bona fide doubt as to Pardo’s competence based on his inability to assist his attorney, his efforts to undermine his attorney, and his trial counsel’s doubts as to Pardo’s competence. He maintains that, during both the court-appointed sanity evaluations and the trial court’s guilt and penalty court proceedings, he made bizarre statements that demonstrated his lack of (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and (2) a rational and factual understanding of the proceedings. He cites to his trial testimony regarding the murders; his description of the victims as “parasites,” “leeches,” and “undesirable dregs of society”; the photographs that he took of the victims to “capture their spirit on film”; and his process of burning the photographs and “sen[ding] their souls to the eternal fires of damnation of hell for the misery they caused on earth while they were alive.” R1-10, Exh.App. L, Vol. 11 at 3565-67, 3641. Pardo explained that he learned that a “spirit stays within the body [for] three to five minutes after the person dies” from one of his 500 or so books on Naziism. Id. at 3568-69. He commented that Hitler “rooted out the evil” [and despite the deaths of children] “was a hero.” Id. at 3570-72. He linked the drug dealers to Communists and contended that, but for his actions in “killing drug dealers,” no one was going to impose the “absolute justice” that was his goal to punish the drug dealers. Id. at 3572-74, 3577. He maintains that it is irrational to plead not guilty by reason of insanity and then to tell the jury that he disagrees with his own defense and that he is not insane. He contends that his position is supported by the argument made by his attorney, just before Pardo made a statement to the jury during the penalty phase, that he did not believe Pardo was “competent to understand” whether his statement would “help him or hurt him.” R1-10, Exh.App. L, Vol. 12 at 4182. He argues that the Florida Supreme Court’s decision was contrary to clearly established federal law.
During the pretrial proceedings, the trial court appointed psychologist Dr. Merry Haber to examine Pardo. Dr. Haber was directed to report her findings only to Pardo’s counsel. After receiving Dr. Haber’s oral report, Pardo’s attorney filed a motion to rely on an insanity defense. When the trial court offered to have experts appointed for a competency examination and to set a hearing, Pardo’s attorney, Guralnick, responded that Pardo was competent and neither he nor any mental health expert had said that he was incompetent to stand trial. Guralnick also stipulated that his motion was based solely on his insanity at the time of the offense. Thereafter, the trial court announced that it would appoint experts to examine Pardo regarding his sanity at the time of the offenses, but would not appoint experts to examine Pardo’s “competency in view of [his] counsel’s announcement ] that he was competent to stand trial.” R1-10, Exh.App. L, Vol. 7 at 1440. The order appointing the experts, Dr. Leonard Haber, Dr. Sanford Jacobson, and Dr. Lloyd Richard Miller, however, included competency as one of the requested evaluations and the trial court did not specify that the evaluation was to be on sanity at the time of the offenses alone.
Four mental health experts testified during Pardo’s trial, and each found Pardo competent to stand trial. Defense witness Dr. Syvil Marquit testified that Pardo was insane, but was competent to stand trial. Prosecution witnesses psychologist Dr. Leonard Haber and psychiatrists Dr. Jacobson and Dr. Miller testified that they had examined Pardo and that he was competent to stand trial. The jail psychiatrist examined Pardo on the day before the penalty phase began and his attorney opined that Pardo was not competent to make his statement to the jury, and also found him competent.
Pardo’s guilt phase testimony was coherent and directly responsive to the questions asked. He was aware of the crimes with which he was charged, provided a legally correct definition of homicide, and was aware of the potential penalty.
On direct appeal, the Florida Supreme Court found the issue meritless and stated that:
There was no requirement [that the trial court order a hearing on Pardo’s competency to stand trial]. When trial counsel requested that experts be appointed to examine Pardo and determine his sanity at the time of each episode, the [trial] court asked if counsel wanted experts also appointed to determine competency and offered to hold a hearing on the subject. Counsel stipulated that his client was competent and repeated that he only wanted a determination of sanity. The court-appointed experts examined Pardo, found him to have been sane, and also determined that he was competent to stand trial. Thus, not only was there no reason for the court to have ordered a competency hearing, but also there was no prejudice to Pardo, as the hearing would not have benefitted him.
Pardo I, 563 So.2d at 79. The district court held that “the Florida Supreme Court’s rejection of this claim was not contrary to, or an unreasonable application of, clearly established United States Supreme Court precedent.” Pardo IV at 10.
A trial judge must conduct a sua sponte sanity hearing if the defendant’s conduct and the evidence raises as “bona fide doubt” regarding the defendant’s competence to stand trial. Pate v. Robinson, 383 U.S. 375, 385-86, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966). A defendant is competent to stand trial if he possesses (1) sufficient present ability to consult with his attorney with a reasonable degree of rational understanding, and (2) a rational and factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960) (per curiam); Fla. R.Crim. P. 3.211(a)(1).
Pardo expressly declined the trial court’s offer to hold a competency hearing, his attorney stipulated to his competence, and four mental health experts testified that Pardo was competent. The district court did not err in finding that the Florida Supreme Court’s decision on this issue was neither contrary to nor involved an unreasonable application of clearly established federal law.
B. Whether Pardo Was Tried While Incompetent
Pardo argues that he was tried while incompetent because he was physically ill with a thyroid and hormonal disorder which caused a severe mood disorders and clinical depression. He contends that, as a result of the doctors’ failure to conduct physical examinations or to otherwise follow up on the physical symptoms that they observed, he was tried while suffering from significant medical problems. He maintains that it is not proeedurally barred because it is based on facts developed outside of the record on direct appeal.
In his report to the trial judge, Dr. Jacobson noted that Pardo had complained about losing hair from his mustache, an eyebrow and on his arms and legs. He stated that such a loss might be attributed to stress. During the trial, he explained that, although his initial impression of Pardo’s physical appearance was that he was clean, neat, and tidy, he later noticed that Pardo had “some hair loss” in one of his eyebrows. R1-10, Exh.App. L, Vol. 12 at 3680. Pardo explained to Jacobson that he was also having some hair loss problems on his arms and other areas. Dr. Marquit reported that Pardo complained of hair loss but opined that it could be due to trichotillomania, a condition in which the victim pulls his hair out. Pardo denied doing this, but Marquit had observed him fingering his hair at least once.
In his postconviction petition, Pardo requested an evidentiary hearing on the issue of his competency at trial, but the issue was found to be proeedurally barred by both the trial court and by the Florida Supreme Court. The Florida Supreme Court noted that the issue was “merely a variant of his failed argument on direct appeal that the trial court should have ordered a competency hearing sua sponte” and “could have been raised on direct appeal.” Pardo III, 941 So.2d at 1062-63. The Florida Supreme Court also rejected “Pardo’s attempt to avoid the procedural bar by relying on the diagnosis of a thyroid and hormonal disorder that was made after he was sentenced but allegedly rendered him incompetent to stand trial” because, based on a review “from the perspective of the circumstances” in which the experts’ evaluations of Pardo were conducted, their evaluations were not so deficient as to deny Pardo due process. Id. at 1063. The Florida Supreme Court explained that the evaluating experts “appropriately focused” on Pardo’s comprehension and ability to reason in making their competence determination and not on his physical symptoms or illness. Id. at 1064.
The district court denied the claim noting that it could have been raised on direct appeal, and that Pardo failed to show prejudice because he had not produced any medical records that would have changed the experts’ conclusions that he was mentally competent to stand trial. It concluded that the Florida Supreme Court’s conclusion did not unreasonably apply clearly established Supreme Court precedent.
Although the district court correctly found that this claim was procedurally defaulted, the claim also fails substantively. In evaluating such a claim, we concern ourselves with the facts that could have indicated to the trial court that the mental health professionals who evaluated Pardo provided incompetent assistance and should have ordered a physical examination. See Clisby v. Jones, 960 F.2d 925, 930 (11th Cir.1992) (en banc). Besides the professionals’ comments about Pardo’s hair loss, which at least one attributed to stress, there was no evidence submitted to the trial judge of any physical ailments suffered by Pardo which would have effected his competence.
To be competent to stand trial, a defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and that ability must be of record. Dusky, 362 U.S. at 402, 80 S.Ct. at 788. The state court’s factual conclusions regarding a defendant’s competence to stand trial are entitled to a presumption of correctness, and can be overcome only with clear and convincing evidence of incompetence. Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990) (per curiam); Sanchez-Velasco v. Secretary, 287 F.3d 1015, 1030 (11th Cir.2002). On a postconviction incompetency claim, “the standard of proof is high”: the petitioner must present a preponderance of “clear and convincing evidence” of “positive[], unequivocal], and clear[ ]” facts “creating a real, substantial and legitimate doubt” as his competence. Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir.1995). Evidence of incompetence “must indicate a present inability to assist counsel or understand the charges.” Id. at 1107. Absent evidence of such an inability, evidence of low intelligence, mental deficiency, bizarre, volatile, or irrational behavior, or the use of anti-psychotic drugs is not sufficient to show incompetence to stand trial. Id.
The Florida Supreme Court correctly identified and applied Supreme Court precedent. Pardo did not come forth with the “new” evidence of his alleged incompetence due to his thyroid condition until 2001, and even then it was merely an assessment that he suffered from an “altered mental status secondary to a general medical condition of thyroid impairment” at the time of his trial which rendered him incompetent. R1-10, Exh.App. N Vol. 25 at 102. As the Florida Supreme Court observed, this evaluation does nothing to the three evaluations rendered at the time of Pardo’s trial that he was competent. Further, it is clear that Pardo “failed to develop” this claim timely in the state court. Pardo’s thyroid condition was discovered before his direct appeal brief was filed, and yet it was not addressed or developed until three years later.
C. Denial of effective assistance of counsel
1. Failure to request a competency hearing or discover Pardo’s medical infirmity
Pardo contends that, although his attorney, Guralnick, objected to Pardo’s testimony and believed that Pardo was incompetent to understand how his statements during the penalty phase would effect him, Guralnick failed to move for a competency hearing. He maintains that the appointed experts observations of Pardo’s physical state should have put the experts and Guralnick on notice of his medical condition. He argues that a competency hearing would have permitted him the opportunity to test the experts’ findings in an adversarial setting. He asserts that the Florida Supreme Court’s ruling on this issue is an unreasonable application of United States Supreme Court precedent and that the district court overlooked the facts in concluding that the Florida court was not unreasonable.
The Florida Supreme Court affirmed the trial court’s summary denial of this issue. It held that “in light of the experts’ conclusions that Pardo was competent” there was no reason to hold an evidentiary hearing, and that his “trial counsel acted well within the range of reasonable professional assistance in declining to request ... a competency determination.” Pardo III, 941 So.2d at 1063. Pardo’s “counsel did not render constitutionally deficient performance in failing to alert the experts to a condition for which physical symptoms first appeared while Pardo was detained pending trial, and that was not diagnosed until after Pardo was convicted and sentenced.” Id. at 1064.
The district court affirmed, finding that it was not an unreasonable application of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) because it was predicated on the trial court’s investigation of Pardo’s competency through the evaluations and Pardo’s attorney’s “reasonable” reliance on the four experts reports in determining not to seek a competency hearing. R1-15 at 16.
Pardo’s counsel’s duty was to conduct a reasonable investigation or to make a reasonable decision that an investigation was unnecessary. See Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to counsel’s judgments.” Id.
The record reflects that Pardo’s counsel investigated Pardo’s mental health and, after perceiving of issues with Pardo’s mental health, requested the appointment of a mental health professional for an evaluation. Pardo’s counsel also had Pardo evaluated on four different days by another mental health professional and reported to the trial court that none of the doctors had found Pardo to be incompetent. Pardo was also evaluated by three additional experts who each testified that Pardo was competent. Based on five experts’ testimony that Pardo was competent, Pardo’s counsel made a reasonable investigation of Pardo’s mental state. Neither the fact of Pardo’s actions contrary to his attorney’s advice nor the physical manifestations of his thyroid condition equate to incompetence to stand trial. See Medina, 59 F.3d at 1107 (“[N]ot every manifestation of mental illness demonstrates incompetence to stand trial.”) The district court did not err in finding that the Florida court’s decision was not contrary to or an unreasonable application of Supreme Court precedent.
2. Waiver of motion to sever murder counts
Pardo argues that his defense attorney unreasonably and prejudicially withdrew his motion to sever the counts and agreed that the murder counts could all be tried together. He contends that his attorney’s actions were motivated by his concerns for his own financial situation instead of concern for Pardo’s best interests. He maintains that the facts of numerous charges, including the nine murder charges, made it difficult for the jury to evaluate each charge separately. The State responds that the issue is not within the certificate of appealability.
Our review on the merits of a 28 U.S.C. § 2254 petition is limited to those issues specified in a certificate of appealability and to those issues for which the petitioner has made a substantial showing of the denial of a constitutional right. Hodges v. Attorney Gen., 506 F.3d 1337, 1339-40 (11th Cir.2007). Although the certificate of appealability issued by us did not specify any issues, Pardo did not raise the issue of the ineffectiveness of his counsel for his waiver of the severance motion in his motions for certificate of appealability in the district court or in this court, or in his request for reconsideration in this court. See generally R1-19 at 3, 8-9. He thus waived the issue in this court. However, he also fails on the merits of this issue.
During pretrial proceedings, Pardo’s attorney moved for severance of various counts and the defendants. The trial court denied the motion in part but severed the trial of each defendant and of two of the murder counts. R1-10, Exh.App. L., Vol. 7 at 1522-31, 1536; R1-10, Exh.App. L, Vol. 8 at 1577. During the jury selection, however, Pardo’s attorney withdrew the motion to sever the counts and agreed that all of the murder counts, including the earlier severed counts, should be tried together. The trial court granted the request, directed that all of the charged counts would be tried together, and observed that “in the view of [Pardo’s insanity] defense, [Pardo’s attorney] feels, obviously, and I can see why, it best to try his client on all counts.” R1-10, Exh.App. L, Vol. 8 at 1841-42. When the prosecution requested confirmation that Pardo had been advised that the counts would all be tried together and asked whether he had any objections, the trial court commented that it had observed Pardo’s attorney “confer with him” and Pardo’s attorney confirmed that he did so. Id. at 1908.
During the postconviction evidentiary hearing, Pardo’s counsel testified that he decided to try all of the murder charges at one time because, based on the insanity defense, he believed that he had a better chance of prevailing. R1-10, Exh.App. N, Vol. 29 at 232-33. The trial court denied the claim, finding that “[t]he strategy used by [Pardo’s attorney] was reasonable.” R1-10, Exh.App. N, Vol. 27 at 374. The Florida Supreme Court affirmed, finding that Pardo had failed to satisfy either the deficient performance or prejudice prongs of an ineffective assistance of counsel claim. Pardo III, 941 So.2d at 1072. It held that Pardo’s attorney “made a reasonable strategic decision involving an informed choice among alternatives” which was “reinforced” by Pardo’s own testimony in which he “acknowledged killing all nine victims and opined that his acts were not murders because his victims were drug-dealing parasites rather than human beings.” Id. at 1071. It also noted that Pardo’s claim that the strategy was based on Pardo’s attorney’s financial concern was not supported by the record as the only evidence was the “unfiled motion to withdraw” which was prepared fifteen months before his attorney decided to seek a single trial. Id. at 1071-72. It also concluded that, although the counts were severable, Pardo failed to show a reasonable probability of a different result if the counts had been tried separately because both “the physical and testimonial evidence against Pardo was strong.” Id. at 1072.
The district court denied the claim for ineffective assistance for waiving severance, finding that the Florida Supreme Court’s rejection of the claim was neither contrary to nor an unreasonable application of clearly established United States Supreme Court precedent.
The district court’s ruling on this was correct. The state court’s factual finding that the severance decision was strategic was supported by the record. Pardo’s attorney testified that it was a strategic decision made after the defense of insanity was pursued and after consultation with Pardo. Although Pardo’s attorney may have had financial concerns fifteen months before the severance waiver was made, he never filed his motion to withdraw based on that reason. Further, the Florida Supreme Court held the strategy reasonable. Pardo’s insanity defense was that he was compelled to kill the victims by unconscious impulses. See R1-10, Exh., App. L, Vol. 12 at 3492-93, 3497. The Florida Supreme Court thus reasoned that counsel’s decision to try the charges together provided more credibility to the assertion of compulsion.
D. Whether Pardo was denied his right to adversarial testing during the guilt phase by the prosecutor’s withholding of material evidence.
Pardo argues that he was denied his due process rights under Brady because the prosecution withheld Ribera’s videotaped statement which was crucial impeachment evidence. He contends that the prosecution’s failure to disclose this evidence prejudiced him by limiting his tools to successfully move for suppression of the search warrant because the tapes make it clear that Ribera’s interview and polygraph exams were orchestrated to support a search warrant. He maintains that the tapes show that Ribera was a liar and was provided with information by the Metro-Dade police officers. He claims that the tapes show that Ribera was coached, told how to take the tests, and provided with the test questions when he continued to fail. He also states that the inconsistencies between Ribera’s taped statements and his trial testimony could have been used for impeachment. He asserts that the tapes show that Ribera changed his statements regarding Pardo’s role in the crimes and where he learned about Pardo’s involvement. He suggests that the Ribera’s physical appearance on the tapes indicates that he as actually impaired from drug use during his statement. He also argues that the suppression of the tapes deeply impaired the defense’s investigations and preparation for trial. He comments that, if the tapes had been available, a reasonable doubt, instead of insanity, strategy might have been used. He maintains that the Florida Supreme Court’s denial of this claim was an unreasonable application of the law.
During the postconviction evidentiary hearing, Pardo’s attorney testified that, although he probably tried to develop different legal theories for the defense, “[rjeasonable doubt ... was certainly not viable.” R1-10, Exh.App. N, Vol. 29 at 144. He explained that he investigated Ribera and learned that he was thought of as “crazy,” “a fabricator,” “a person of ill repute”, and “a person who mistreated his own family.” Id. at 146-47. He confirmed that, during the trial, he asked Ribera whether he was “an unadulterated liar” and made similar attacks on Ribera’s credibility. Id. at 156. He explained that he “might have” used Ribera’s contradictory statements for impeachment but would have made that determination based on the circumstances. Id. at 159, 164. He explained that he would not have used the tape testimony if it was not relevant, unless he had little else.
Although Pardo alleged that the search warrant falsely stated that Ribera provided details of the crimes that were not known to the public, the search warrant affiant outlined numerous details of the crimes that Ribera knew but did not indicate his source. R1-10, Exh.App. L, Vol. 3 at 144-49. In the videotape, Ribera said that, after hearing from Pardo and Ribera that they had killed two victims at an identified apartment complex, he saw a report about the murders at that same apartment complex on television the next morning and began to believe the stories that Pardo and Garcia were telling him. R1-10, Exh.App. N, Vol. 31, Exh. F, Tape 2 at 19; Tape 4 and 5 at 26-27. Ribera specifically denied being under the influence of alcohol or drugs at the time of the videotaping. Id., Tape 1 at 27-28.
The trial court denied this claim finding that the tapes could not have placed the entire case in a different light because Pardo’s attorney had evidence that Ribera was a habitual liar, and used that evidence to attack Ribera’s credibility during the trial. Based on Pardo’s attorney’s possession of similar impeachment evidence at the time of the trial and Pardo’s insistence on testifying that he committed the murders, the trial court held that the confidence in verdict was not undermined.
Before addressing the issues raised in Pardo’s postconviction appeal, the Florida Supreme Court explained that it needed to distinguish Pardo’s case from that of his codefendant, Garcia, in which it “ruled that the nondisclosure of the Ribera videotapes required a new trial.” Pardo III, 941 So.2d at 1066. It stated that “Pardo’s trial testimony admitting the killings places the nondisclosure in a far less prejudicial light than in Garcia’s case” and that other evidence, not present in Garcia’s case, “also strongly implicated Pardo,” including a projectile fired from one of the murder weapons and removed from Pardo’s foot; a spent casing fired from the same murder weapon and matching a casing under one of the murder victims found in Pardo’s closet; “blood and bullets” connected to another murder found in Pardo’s car, and a diary in Pardo’s handwriting and containing newspaper articles about the murders found in Pardo’s apartment. Id. It concluded that the nondisclosure of the Ribera videotapes did not result in prejudice warranting a new trial because Pardo’s counsel made no showing of how the videotapes would have led to suppression of the evidence obtained via the search warrant, the search warrant affidavit was not based solely on Ribera’s testimony, there was ample evidence connecting Pardo to the murders which was not seized under the search warrant, and Pardo’s “motivation in testifying was to claim credit for the vigilante killings and refute ... Ribera[’s suggestion] that Pardo was a drug dealer” and was unrelated to the incriminating nature of the evidence seized from his apartment. Id. at 1068. It again noted that “Pardo’s in-court confession in his own trial negates any prejudice from the nondisclosure of the Ribera videotapes” and that there were no inconsistencies in Ribera’s testimony that undermined the verdict. Id. at 1068-69. It observed that several of Ribera’s statements, including his description of Pardo as the killer, were not inconsistent and were buttressed by the physical evidence against Pardo. It also found that Pardo had failed to establish that disclosure of the videotapes would have effected his decision to testify because it was clear from his trial testimony that he did so, not to “contest Ribera’s testimony in general or his implication of Pardo in the nine murders,” to challenge Ribera’s testimony that he benefitted financially from them and because he did not testify in support of his counsel’s position at the evidentiary hearing. Id. at 1069-70.
Reviewing each of Pardo’s claims as to the nondisclosure, the district court found that “the Florida Supreme Court’s rejection of [Pardo’s] Brady claim was not contrary to, or an unreasonable application of, clearly established United States Supreme Court precedent”. Pardo IV at 23.
In order to state a Brady claim, the defendant must show that (1) the evidence is favorable as exculpatory or impeaching; (2) the evidence was suppressed either willfully or inadvertently; and (3) prejudice resulted. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). To be prejudicial, the evidence must be such at that disclosure of it would have created a reasonable probability that the proceeding result would have been different. Id. at 280, 119 S.Ct. at 1948. The nondisclosure of cumulative or repetitious evidence is not sufficient to establish a Brady claim. United States v. Agurs, 427 U.S. 97, 110 n. 16, 96 S.Ct. 2392, 2400 n. 16, 49 L.Ed.2d 342 (1976).
Although Pardo may be able to meet the first two prongs, he is unable to show prejudice. He failed to show that production of the videotape would have prevented him from confessing his guilt or otherwise altered his trial strategy. Pardo’s claims that the affidavit contained false information is incorrect, and thus production of the tape would not have led to a motion to suppress the warrant. Ribera did not change his position regarding Pardo’s role in the murders. Pardo’s attorney was aware of Ribera’s credibility issues and addressed it during the trial.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court denial of Pardo’s petition for writ of habeas corpus.
AFFIRMED.
Pardo and Garcia were also charged with nine counts of possession of a firearm while engaged in a criminal offense. Pardo was convicted of this charge and sentenced to concurrent fifteen year sentences on each count. Pardo v. State, 563 So.2d 77, 78, 81 (Fla.1990) (per curiam). Those convictions are not addressed on appeal. Although Garcia was initially convicted of four counts of murder, Garcia v. State, 568 So.2d 896 (Fla.1990), his convictions were reversed and the case was remanded for separate trials on each double homicide. On remand, Garcia was again convicted but, again, his convictions were reversed and the case was remanded for a new trial. Garcia v. State, 816 So.2d 554, 557 (Fla.2002) (per curiam). On the second remand, Garcia pled guilty to four counts of second degree murder and was sentenced to 25 years in prison.
Pardo's postconviction proceedings were stayed pending Garcia’s retrial.
To the extent that Pardo also raises a substantive incompetence claim, "the procedural default rule ... does not operate to preclude a defendant who failed to request a competency hearing at trial or pursue a claim of incompetency on direct appeal from contesting his competency to stand trial and be sentenced though postconviction proceedings.” Adams v. Wainwright, 764 F.2d 1356, 1359 (11th Cir.1985). Although this aspect of his claim is not procedurally barred, he has not presented sufficient evidence to show entitlement to a postconviction evidentiary hearing. Pardo’s only evidence of incompetency is his post-trial diagnosis of a thyroid and hormonal disorder as a physical cause of his incompetence. This is not sufficient to "positively, unequivocally, and clearly generate the [requisite] legitimate doubt” as to his competency at the time of trial. Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir.1995) (quotation marks and citation omitted).
Manuel PARDO, Appellant, v. STATE of Florida, Appellee.
No. SC12-2350.
Supreme Court of Florida.
Dec. 4, 2012.
Neal Andre Dupree, Capital Collateral Regional Counsel, William McKinley Hennis, III, Litigation Director, and Jessica Leigh Houston, Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, FL, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, FL, Sandra Sue Jaggard and Tamara Milosevic, Assistant Attorneys General, Miami, FL, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Manuel Pardo, a prisoner under sentence and active warrant of death, appeals the circuit court’s order summarily denying his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the denial of postconviction relief.
BACKGROUND
Pardo was indicted for nine counts of first-degree murder based on five separate killing episodes that took place from January to April 1986. At his trial, Pardo, a former police officer, testified against the advice of counsel and admitted to having committed the nine murders, stating that the victims were drug dealers who had no right to live. The jury found Pardo guilty of all nine murders and recommended the death penalty by votes ranging from eight-to-four to ten-to-two. The trial court followed the jury’s recommendations, imposing a death sentence for each of the nine first-degree murder counts. We affirmed Pardo’s convictions and death sentence on direct appeal. Pardo v. State, 563 So.2d 77, 81 (Fla.1990), cert. denied, Pardo v. Florida, 500 U.S. 928, 111 S.Ct. 2043, 114 L.Ed.2d 127 (1991). Pardo subsequently filed a motion for postconviction relief, which the circuit court denied after a two-day evidentiary hearing. On appeal, we affirmed the circuit court’s denial of postconviction relief, denied Pardo’s accompanying petition for writ of habeas corpus, and denied rehearing. Pardo v. State, 941 So.2d 1057, 1073 (Fla.2006). Pardo then sought habeas corpus relief in the federal courts, which was also denied. Pardo v. Sec’y, Fla. Dep’t of Corr., 587 F.3d 1093, 1106 (11th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 3334, 176 L.Ed.2d 1231 (2010), and reh’g denied, — U.S. -, 131 S.Ct. 38, 177 L.Ed.2d 1128 (2010).
On October 30, 2012, Governor Rick Scott signed a death warrant for Pardo, and the execution was set for December 11, 2012. Thereafter, Pardo filed a successive motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851. The circuit court denied the motion without holding an evidentiary hearing. Pardo has filed this appeal of the circuit court’s summary denial, in which he raises five claims.
ANALYSIS
Pardo’s postconviction claims are governed by rule 3.851, which provides the pleading requirements for initial and successive postconviction motions. Fla. R.Crim. P. 3.851(e)(1)-(2). In particular, a motion for postconviction relief must state the nature of the relief the defendant seeks, Fla. R.Crim. P. 3.851(e)(1)(C), and must include “a detailed allegation of the factual basis for any claim for which an evidentiary hearing is sought.” Fla. R.Crim. P. 3.851(e)(1)(D).
An evidentiary hearing on a rule 3.851 motion “should be held ‘whenever the movant makes a facially sufficient claim that requires a factual determination.’ ” Parker v. State, 89 So.3d 844, 855 (Fla.2011) (quoting Gore v. State, 24 So.3d 1, 11 (Fla.2009)). However, “[p]ostconviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.” Id. (quoting Gore, 24 So.3d at 11). Because the circuit court denied Pardo’s successive rule 3.851 motion without holding an evidentiary hearing, we review the circuit court’s decision de novo, “accepting the movant’s factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows that the movant is entitled to no relief.” Gore v. State, 91 So.3d 769, 774 (Fla.) (quoting Walton v. State, 3 So.3d 1000, 1005 (Fla.2009)), cert. denied, — U.S. -, 132 S.Ct. 1904, 182 L.Ed.2d 661 (2012).
In his appeal to this Court, Pardo argues that the circuit court erred in summarily denying the following claims: (1) Florida’s September 4, 2012, lethal injection protocol is unconstitutional; (2) he has been denied public records necessary to establish his lethal injection claim; (3) he was incompetent to stand trial; (4) he was denied an adequate clemency proceeding; and (5) executing him after he has spent more than two decades on death row constitutes cruel and unusual punishment. We address each claim in turn.
Lethal Injection Protocol
The first issue Pardo raises on appeal is the circuit court’s summary denial of his challenge to the constitutionality of Florida’s lethal injection protocol. Pardo’s principal arguments center on the following allegations: (1) when Florida’s lethal injection protocol substituted pentobarbital for sodium thiopental as the first drug in the three-drug lethal injection sequence, the State failed to modify its protocol to account for the fact that pentobarbital may take longer to act than sodium thiopental; (2) there are serious risks associated with using pentobarbital as an anesthetic; (3) Florida’s supply of vecuronium bromide, which is now the second drug in the three-drug sequence, may be tainted; and (4) if pentobarbital improperly mixes with vecuronium bromide during the administration of the lethal injection drugs, the intended anesthetic effects of the pentobarbital could potentially be compromised. The State asserts, first, that the claims involving pentobarbital are procedurally barred because the substitution of pentobarbital in the protocol occurred more than one year ago; and, second, that Pardo’s challenge to the recent substitution of vecuronium bromide is legally insufficient. The circuit court denied Pardo’s lethal injection claims as time barred and meritless.
In relatively recent succession — first in June 2011 and then in September 2012— the State has twice changed the protocol pertaining to which drugs are used in Florida’s three-drug lethal injection sequence. A number of defendants have brought challenges to the substitution of the new drugs, asserting that there is no evidence that these drugs will perform as intended and that experts have not yet determined the appropriate dosage for their use in lethal injection. See, e.g., Valle v. State, 70 So.3d 530 (Fla.), cert. denied, — U.S. -, 132 S.Ct. 1, 180 L.Ed.2d 940 (2011). This Court has denied these claims, holding that a defendant cannot sustain the heavy burden required to show an Eighth Amendment violation through speculation and by pointing to a lack of evidence. Id. at 541, 546. We recognize, however, that the use of these particular drugs in executions is comparatively new, and that the body of relevant science is still being developed. Therefore, in reviewing the challenges presented, we are cognizant of our responsibility to examine the specific allegations that the defendant is raising in order to determine whether the defendant is relying on new evidence that did not exist previously or on new factual developments. See, e.g., Schwab v. State, 969 So.2d 318, 321 (Fla.2007) (“As this Court has held before, when an inmate presents an Eighth Amendment claim which is based primarily upon facts that occurred during a recent execution, the claim is not procedurally barred.”); Fla. R.Crim. P. 3.851(e)(2).
The Eleventh Circuit Court of Appeals has likewise recognized this same concept. In Arthur v. Thomas, 674 F.3d 1257, 1260, 1262 (11th Cir.2012), the Eleventh Circuit held that it was error to summarily dismiss, without permitting an opportunity for evidentiary development, a defendant’s complaint that the substitution of pentobarbital in Alabama’s lethal injection protocol constituted a “significant change” for purposes of the Eighth Amendment. The Eleventh Circuit explained as follows:
Simply because no court, based on the allegations and evidence that has been presented in cases to date, has found a significant change does not mean that such evidence does not exist. To read our circuit decisions in Powell [v. Thomas, 643 F.3d 1300 (11 th Cir.2011)], DeYoung [v. Owens, 646 F.3d 1319 (11th Cir.2011)], and Valle [v. Singer, 655 F.3d 1223 (11 th Cir.2011) ] as holding-no matter what new facts allege or new evidence reveals — that Alabama’s, Georgia’s and Florida’s substitutions of pentobarbital for sodium thiopental is not a significant change in their execution protocols is to ignore the reality that scientific and medical evidence that exists today may differ from that which new scientific and medical discoveries and research reveal tomorrow.
Id. at 1260. With this backdrop in place, but mindful that a defendant is not entitled to relitigate claims that have been previously rejected without relying on new evidence or new factual developments, we now turn to the merits of Pardo’s Eighth Amendment claim, focusing on whether Pardo has presented new arguments we have not previously considered.
While the “death penalty is an authorized punishment for capital crimes,” art. I, § 17, Fla. Const., this Court has the duty “to ensure that the method used to execute a person in Florida does not constitute cruel and unusual punishment.” Lightbourne v. McCollum, 969 So.2d 326, 349 (Fla.2007). In accordance with our state constitution, this Court evaluates “whether lethal injection is unconstitutional ‘in conformity with decisions of the United States Supreme Court.’ ” Id at 335 (quoting art. I, § 17, Fla. Const.). The United States Supreme Court’s plurality decision in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), sets forth the requirements that a defendant must meet in order to succeed in an Eighth Amendment challenge to a state’s lethal injection protocol. Although subjecting one to a risk of future harm can qualify as cruel and unusual punishment, the Supreme Court in Baze explained that to prevail on such a claim, condemned inmates must demonstrate that “the conditions presenting the risk must be ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ ” Id. at 49-50, 128 S.Ct. 1520 (plurality opinion) (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). That is, “there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’ ” Id. at 50, 128 S.Ct. 1520 (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 & n. 9, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). An inmate faces a “heavy burden” to show that lethal injection procedures violate the Eighth Amendment. Id. at 58, 128 S.Ct. 1520 (quoting Gregg v. Georgia, 428 U.S. 153, 175, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). A defendant cannot simply rely on conjecture and speculation. See Brewer v. Landrigan, —U.S. -, 131 S.Ct. 445, 445, 178 L.Ed.2d 346 (2010) (mem.).
Pardo first objects to the constitutionality of Florida’s lethal injection protocol as it relates to pentobarbital, the first drug, asserting many of the same claims we have already considered and rejected in Valle, where we stated:
In order to show the risks of using pentobarbital as a substitute, Valle relies extensively on the testimony of Dr. Waisel, who testified that pentobarbital and sodium thiopental are not interchangeable barbiturates, that five grams of sodium thiopental are not proportionally equivalent to five grams of pentobarbital, and that due to a lack of research, he would be unable to determine a dose of pentobarbital that would properly anesthetize an individual. Instead, he could only testify as to the amount needed to sedate someone....
In opposition, the State presented the testimony of Dr. Dershwitz, who testified that 5000 milligrams of pentobarbital, as provided for in the DOC’s lethal injection protocol, is “far in excess of the dose that would be used in a human for any reason.” According to Dr. Der-shwitz, that dosage of pentobarbital is lethal standing alone, and when administered, the drug will induce a total flat line on the electroencephalogram (EEG) in brain activity, meaning that the person into whom the drug is injected will have no perception or sensation....
Based upon the testimony presented, the circuit court concluded that Dr. Der-shwitz “refuted any suggestion that the dose of pentobarbital in the Florida lethal injection protocol would leave an inmate conscious and able to experience pain and suffering during the lethal injection process.” The circuit court’s findings are borne out by the testimony and are well-supported by the record. While Dr. Waisel opined that he would be unable to determine whether pentobarbital would produce its intended effect (i.e., to anesthetize the inmate before the administration of the last two drugs in the three-drug sequence), in the end, he did not testify that the drug would fail to do so. By asserting that no evidence exists concerning whether pentobarbital will render an inmate unconscious, Valle has failed to meet his burden of proof. As the circuit court correctly recognized, Dr. Waisel’s asserted lack of knowledge about pentobarbital’s effects falls short of the heavy burden of affirmatively showing that the drug is sure or very likely to cause serious illness and needless suffering or that its use will result in a substantial risk of serious harm.
Valle, 70 So.3d at 540-41 (footnotes omitted). We therefore reject these portions of Pardo’s lethal injection claim, including the alleged risks associated with using pentobarbital as an anesthetic, based on the reasoning we fully explained in Valle.
Pardo does raise one new Eighth Amendment challenge relating to the substitution of pentobarbital in the lethal injection protocol, asserting that, while pentobarbital has a substantially slower onset than the drug it replaced, the State did not modify the protocol to account for this fact, meaning that Pardo may not be fully anesthetized before the injection of the second and third drugs in the lethal injection sequence. Aside from speculation, however, Pardo fails to provide any specific allegation that such a scenario is likely. To support his assertion, Pardo relies on the declaration of his expert, anesthesiologist Dr. Mark Heath, in which Dr. Heath states as follows:
There is no literature regarding the timeframe with which pentobarbital would produce anesthesia if it were to be used for induction. Based on its chemical properties it is predictable that its onset of action would be slower than that of thiopental. In other words, the time it takes for a patient to transit from consciousness to unconsciousness would be longer with pentobarbital than with an equivalent dose of thiopental. But there is no information available that would allow an accurate prediction of how much slower it would be.
(Emphasis added.)
Upon a full review of the record, we deny this aspect of Pardo’s lethal injection claim because he bases his challenge on pure speculation and conjecture. Nothing within Dr. Heath’s declaration alleges that Pardo will not be unconscious or that he will be insufficiently anesthetized at the time the other two drugs are introduced. Pardo cannot sustain the heavy burden of bringing an Eighth Amendment challenge by resting solely upon a lack of evidence. See Valle, 70 So.3d at 541 (“By asserting that no evidence exists concerning whether pentobarbital will render an inmate unconscious, Valle has failed to meet his burden of proof.... Dr. Waisel’s asserted lack of knowledge about pentobarbital’s effects falls short of the heavy burden of affirmatively showing that the drug is sure or very likely to cause serious illness and needless suffering or that its use will result in a substantial risk of serious harm.” (footnote omitted)). Accordingly, we deny Pardo’s challenge to the substitution of pentobarbital in Florida’s lethal injection protocol.
Next, Pardo challenges the constitutionality of lethal injection in light of his allegation that Florida’s vecuronium bromide supply may be tainted. Again, however, this challenge rests purely on speculation. Therefore, we also deny this portion of Pardo’s lethal injection claim.
In his final lethal injection challenge, Pardo argues that Florida’s lethal injection protocol is unconstitutional because it violates the drug manufacturer’s warning that vecuronium bromide “should not be mixed with alkaline solutions (e.g., barbiturate solutions such as thiopental [or pentobarbital]) in the same syringe or administered simultaneously during intravenous infusion through the same needle or through the same intravenous line.” Pardo alleges that if pentobarbital and vecuronium bromide improperly mix, pentobarbital would precipitate, possibly resulting in a smaller dose of pentobarbital than is intended and thereby potentially compromising the intended anesthetic effects of the pentobarbital. Even accepting Pardo’s argument as true, however, this claim is disproved by the lethal injection protocol itself. Specifically, pentobarbital is the first chemical to be introduced. Pardo’s allegations fail to show how the effectiveness of pentobarbital is compromised when it has already been administered prior to the introduction of vecuronium bromide.
In Ferguson v. Warden, Florida State Prison, Case No. 12-15191, 2012 WL 4946112 (11th Cir. Oct. 18, 2012), cert. denied, — U.S. -, 138 S.Ct. 498, 184 L.Ed.2d 334 (2012), the Eleventh Circuit recently denied a defendant’s similar Eighth Amendment challenge to Florida’s lethal injection protocol, as amended in September 2012, holding both that the use of pentobarbital in the lethal injection sequence does not violate the Eighth Amendment and, as to the new claims concerning the substitution of vecuronium bromide as the second drug in the three-drug sequence, that
Ferguson’s speculation as to the parade of horribles that could possibly occur during his execution does not meet the burden of proof required by the Eighth Amendment.... Simply because an execution method may inadvertently result in pain does not establish the sort of ‘objectively intolerable risk of harm’ necessary to establish an Eighth Amendment violation.
Id. at *2 (quoting Baze, 553 U.S. at 50,128 S.Ct. 1520).
After fully reviewing Pardo’s challenges to lethal injection and examining the record upon which he relies, we deny Pardo’s constitutional challenges to Florida’s lethal injection protocol because his allegations are based primarily on speculation and conjecture. In this way, Pardo’s claim falls short of the heavy burden of affirmatively showing that Florida’s lethal injection protocol in effect is sure or very likely to cause serious illness and needless suffering, or that it will result in a substantial risk of serious harm. See Baze, 558 U.S. at 50, 128 S.Ct. 1520 (holding that the defendant must demonstrate that “the conditions presenting the risk must be ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers’ ” (quoting Helling, 509 U.S. at 33, 34-35, 113 S.Ct. 2475)). Accordingly, we affirm the circuit court’s denial of relief on Pardo’s constitutional challenge to Florida’s lethal injection protocol.
Public Records Requests
Next, Pardo alleges that the circuit court erred in denying his public records requests and that the Florida Department of Corrections (DOC) has frustrated condemned inmates’ efforts to discover and present relevant facts necessary to evaluate the constitutionality of Florida’s lethal injection procedures, including how the DOC procures the drugs. The circuit court held a hearing on Pardo’s public records requests and denied Pardo’s demand for additional public records.
Pursuant to Florida Rule of Criminal Procedure 3.852(i)(2), Pardo must demonstrate the following requirements before a circuit court can order that additional public records be disclosed:
(A) collateral counsel has made a timely and diligent search of the records repository;
(B) collateral counsel’s affidavit identifies with specificity those additional public records that are not at the records repository;
(C) the additional public records sought are either relevant to the subject matter of a proceeding under rule 3.851 or appear reasonably calculated to lead to the discovery of admissible evidence; and
(D) the additional records request is not overly broad or unduly burdensome.
Fla. R.Crim. P. 3.852(i)(2). This Court reviews the circuit court’s denial of a public records request for an abuse of discretion. Valle, 70 So.3d at 549.
The records that Pardo sought in this case are similar to the records the defendant sought in Valle. This Court held in Valle that the circuit court did not abuse its discretion in denying the request for public records because the pleadings were speculative, conclusory, and failed to allege how the requested information would lead to evidence pertaining to a colorable Eighth Amendment violation, which requires a showing that use of the drug is ‘“sure or very likely to cause serious illness and needless suffering’ and give rise to ‘sufficiently imminent dangers.’ ” Baze, 553 U.S. at 50, 128 S.Ct. 1520 (quoting Helling, 509 U.S. at 33, 34-35, 113 S.Ct. 2475). Specifically, we analyzed the claim as follows:
With respect to Valle’s assertion that undisclosed records could show that sodium thiopental and pentobarbital were obtained from a foreign country, such information would be of questionable relevance, and he has failed to demonstrate how its disclosure would relate to a colorable Eighth Amendment claim.... In requesting these materials, Valle simply posits a hypothetical argument, but he does not explain why these facts will result in a substantial risk of serious harm.... Because he has failed to allege how this information would lead to evidence related to his claim, Valle’s requests on this issue appear to be no more than a “fishing expedition” for which rule 3.852 is not intended. Consequently, the circuit court did not err in denying Valle’s requests to produce these records.
Valle, 70 So.3d at 549.
Likewise, in this case, Pardo is not asserting how the information he seeks would lead to a colorable Eighth Amendment claim that use of the drugs is “ ‘sure or very likely to cause serious illness and needless suffering’ and give rise to ‘sufficiently imminent dangers.’” Baze, 553 U.S. at 50, 128 S.Ct. 1520 (quoting Helling, 509 U.S. at 33, 34-35, 113 S.Ct. 2475). Instead, Pardo challenges the deference that the judicial branch gives to another branch of government that it will fulfill its obligations in a constitutional and lawful manner. This is not an Eighth Amendment claim. While Pardo’s public records requests may be narrower than the requests in Valle, Pardo still fails to establish how his requests are relevant to his Eighth Amendment claim that lethal injection under Florida’s protocol will result in a substantial risk of serious harm. Accordingly, we hold that the circuit court did not abuse its discretion in denying Pardo’s public records requests.
Competency to Stand Trial
In his third claim on appeal, Pardo alleges that he was incompetent to stand trial. Because Pardo has raised this argument at every stage of his appellate proceedings, and because we have previously rejected it, we find that the circuit court did not err in denying this claim as procedurally barred.
On direct appeal, Pardo argued that the trial court should have ordered a competency hearing to determine whether his trial counsel properly stipulated that Pardo was competent to stand trial. Pardo, 563 So.2d at 79. In rejecting this claim, we stated as follows:
When trial counsel requested that experts be appointed to examine Pardo and determine his sanity at the time of each episode, the court asked if counsel wanted experts also appointed to determine competency and offered to hold a hearing on the subject. Counsel stipulated that his client was competent and repeated that he only wanted a determination of sanity. The court-appointed experts examined Pardo, found him to have been sane, and also determined that he was competent to stand trial. Thus, not only was there no reason for the court to have ordered a competency hearing, but also there was no prejudice to Pardo, as the hearing would not have benefitted him.
Id. Therefore, not only did we determine on direct appeal that there was no need for a competency hearing in this case, but we also found that Pardo had not been prejudiced by the lack of such a hearing since three court-appointed experts and one defense expert had examined Pardo and determined that he was, in fact, competent to stand trial.
In his initial postconviction motion, Pardo challenged the adequacy of those expert evaluations and alleged that trial counsel was ineffective, both for failing to request a competency hearing and for failing to investigate the cause of Pardo's alleged insanity and incompetence. Pardo, 941 So.2d at 1062. Specifically, Pardo pointed to a post-trial diagnosis of hypothyroidism, the mental health effects of which he alleged rendered him incompetent to stand trial. Id. at 1063. In rejecting Pardo’s claim as procedurally barred, we stated that “Pardo’s assertion that he was tried while incompetent in violation of due process of law is merely a variant of his failed argument on direct appeal that the trial court should have ordered a competency hearing sua sponte.” Id. at 1062. We further rejected Pardo’s reliance on his hypothyroidism diagnosis, explaining that “[l]ike the performance of counsel, the competence of an expert’s assistance should be evaluated from the perspective of the circumstances in which it was conducted, free of ‘the distorting effects of hindsight.’” Id. at 1063 (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We therefore concluded that, “[flrom this perspective, the evaluations of Pardo were not so deficient that he was denied his due process right to competent expert assistance.” Id.
Furthermore, we likewise rejected Pardo’s claim in his initial postconviction appeal that trial counsel was ineffective with respect to Pardo’s alleged incompetence to stand trial. First, we stated that the two forensic psychiatrists and two clinical psychologists who determined that Pardo was competent to stand trial “explained their conclusions in terms consistent with the standards for competency set out in Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), and Florida Rule of Criminal Procedure 3.211(a)(2).” Pardo, 941 So.2d at 1063. Second, we found that Pardo’s trial counsel and the four experts who evaluated Pardo “appropriately focused not on symptoms [like hair loss and weight gain] indicating a physical illness but on Pardo’s mental functioning — his comprehension and ability to reason.” Id. at 1064. Lastly, we noted that “Pardo’s claim rests on observations of physical symptoms which ... did not indicate to a medical doctor a physical disorder bearing on Pardo’s competency or sanity.” Id.
Despite having previously raised and litigated his competence to stand trial both on direct appeal and in his initial postconviction motion, Pardo argues that this claim is not now procedurally barred because the issue presented on direct appeal and relied on to bar the claim during his initial postconviction appeal was not fully developed. We reject this argument.
Pardo has not presented any new evidence in his successive motion for postconviction relief that was not presented in his initial motion, which was previously denied. Indeed, in his current appeal to this Court, Pardo predominantly reargues points alleged in his initial motion regarding the purported effects of his hypothyroidism on his competence to stand trial. This claim has been considered and rejected in proceedings at every step of this case.
Furthermore, we reject as unsupported by the record Pardo’s argument that this Court has simply relied on a misguided procedural bar and never fully considered this issue. The record in this case is clear that Pardo was evaluated before trial by four medical professionals, all of whom concluded, pursuant to the legal standard for competency, that he was competent to stand trial. While Pardo alleges that these expert evaluations were deficient, we have previously rejected this claim, and Pardo cannot now rely on “the distorting effects of hindsight” to second-guess the expert evaluations in his case. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. As we previously stated, fully informed about the alleged effect of Pardo’s hypothyroidism on his competence to stand trial, “the evaluations of Pardo were not so deficient that he was denied his due process right to competent expert assistance.” Pardo, 941 So.2d at 1063.
Accordingly, we agree with the circuit court that this claim is procedurally barred, and we therefore affirm the circuit court’s denial of relief.
Clemency Proceedings
In his fourth claim on appeal, Pardo alleges that he was denied a full and fair clemency proceeding. At the hearing held in the circuit court to determine whether an evidentiary hearing was warranted, Pardo produced an affidavit from the attorney who served as his clemency counsel, in which the attorney recalled attending a meeting at Florida State Prison in 1990 with Pardo and a member of the clemency board. Other documents in the record indicate that Pardo underwent an evaluation by DOC medical personnel around the same time for clemency purposes. In addition, Pardo’s death warrant includes language indicating that “after review of an updated clemency investigation at the time” of signing the warrant, the governor determined that clemency was “not appropriate.”
In denying this claim, the circuit court stated that Pardo “had his [clemency] interview” and that it is “solely the province of the executive branch to determine clemency.” Pardo contends that his clemency proceeding was inadequate because he did not have the opportunity to present witnesses and evidence, including information regarding his hypothyroidism diagnosis and his compelling life history, and because his clemency interview took place decades before his death warrant was signed. We find Pardo’s arguments unavailing for several reasons.
First, Pardo had a clemency proceeding in 1990 at which he was represented by counsel, and we have previously rejected the argument that a defendant is entitled to present a full accounting of mitigation evidence as part of the clemency process. See Grossman v. State, 29 So.3d 1034, 1044 (Fla.), cert. denied, — U.S. -, 130 S.Ct. 1498, 176 L.Ed.2d 105 (2010); Johnston v. State, 27 So.3d 11, 25 (Fla.), cert. denied, — U.S. -, 131 S.Ct. 459, 178 L.Ed.2d 292 (2010); Glock v. Moore, 776 So.2d 243, 252-53 (Fla.2001). Second, we have likewise rejected the argument that a long time lapse between a defendant’s clemency proceeding and the signing of his death warrant renders the clemency process inadequate or entitles the defendant to a second proceeding. See Gore, 91 So.3d at 778-79; Johnston, 27 So.3d at 25-26; Bundy v. State, 497 So.2d 1209, 1211 (Fla.1986). Third, we have consistently recognized that .clemency is an executive function and that, in accordance with the doctrine of separation of powers, we will not generally second-guess the executive’s determination that clemency is not warranted. See Johnston, 27 So.3d at 26 (“[W]e decline to depart from the Court’s precedent, based on the doctrine of separation of powers, in which we have held that it is not our prerogative to second-guess the executive on matters of clemency in capital cases.”); Rutherford v. State, 940 So.2d 1112, 1122-23 (Fla.2006) (denying a similar clemency claim because the defendant had a hearing and because clemency is an executive function); Bundy, 497 So.2d at 1211 (stating that it is not this Court’s “prerogative to second-guess the application of this exclusive executive function”). Finally, while Pardo asserts that he should have been afforded an opportunity to participate in an updated clemency investigation before his death warrant was signed with the renewed consideration that executive clemency was considered and rejected, our precedent clearly refutes this argument. See Gore, 91 So.3d at 778-79; Grossman, 29 So.3d at 1044; Marek v. State, 14 So.3d 985, 998 (Fla.2009).
Accordingly, we affirm the circuit court’s denial of relief on this claim.
Length of Time on Death Row
In his final argument on appeal, Pardo asserts that the circuit court erred in summarily denying his claim that executing him after the twenty-four years he has spent on death row constitutes cruel and unusual punishment. Relying on this Court’s clearly established precedent on this issue, the circuit court denied Pardo’s length of time on death row claim as meritless and legally insufficient. The circuit court recognized what we have long held: “[N]o federal or state court has accepted the argument that a prolonged stay on death row constitutes cruel and unusual punishment, especially where both parties bear responsibility for the long delay.” Valle, 70 So.3d at 552 (quoting Tompkins v. State, 994 So.2d 1072, 1085 (Fla.2008)). Indeed, we have repeatedly rejected this claim for sentences of similar or greater length than Pardo’s. See Ferguson v. State, 101 So.3d 362, 366-67 (Fla.2012) (rejecting claim that over three decades of incarceration on death row constituted cruel and unusual punishment), cert. denied, - U.S. -, 133 S.Ct. 497, 184 L.Ed.2d 312 (2012); Gore, 91 So.3d at 780-81 (rejecting length of time on death row claim and noting that an inmate who had been on death row for over thirty years was executed in February 2012); Valle, 70 So.3d at 552 (rejecting claim that thirty-three years on death row constituted cruel and unusual punishment); Johnston, 27 So.3d at 27-28 (Fla.2010) (rejecting claim that almost twenty-five years on death row constituted cruel and unusual punishment); Tompkins, 994 So.2d at 1085 (rejecting claim that twenty-three years on death row constituted cruel and unusual punishment); Booker v. State, 969 So.2d 186, 200 (Fla.2007) (rejecting claim that almost thirty years on death row constituted cruel and unusual punishment); Lucas v. State, 841 So.2d 380, 389 (Fla.2003) (rejecting claim that over twenty-five years on death row constituted cruel, and unusual punishment); Foster v. State, 810 So.2d 910, 916 (Fla.2002) (rejecting claim that twenty-three years on death row constituted cruel and unusual punishment); Rose v. State, 787 So.2d 786, 805 (Fla.2001) (rejecting as meritless length of time on death row argument from prisoner under sentence of death since 1977).
Accordingly, because Pardo has not presented any compelling reason for us to reconsider our well-settled precedent on this issue, we find that the circuit court did not err in denying Pardo’s claim.
CONCLUSION
Based on the foregoing analysis, we affirm the circuit court’s denial of Pardo’s successive rule 3.851 motion for postconviction relief. No rehearing "will be entertained by this Court. The mandate shall issue immediately.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.
To the extent that Pardo also alleges ineffective assistance of clemency counsel, we reject this claim as insufficiently argued.