This case is before the Court on appeal from an order denying a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons stated below, we affirm the postconviction court‘s order denying relief.
Ineffective Assistance of Counsel
As it relates to ineffective assistance of counsel, Clark first alleges counsel was ineffective for failing to investigate and present evidence that Hatch was the shooter. Next, Clark alleges that counsel was ineffective for failing to present evidence in support of mitigation. We find both these arguments without merit.
Generally, this Court‘s standard of review following a denial of a postconviction claim where the trial court has conducted an evidentiary hearing affords deference to the trial court‘s factual findings. ―[A]s long as the trial court‘s findings are supported by competent substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.‘ ‖ McLin v. State, 827 So. 2d 948, 954 n.4 (Fla. 2002) (quoting Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997)). However, the circuit court‘s legal conclusions are reviewed de novo. See Sochor v. State, 883 So. 2d 766, 772 (Fla. 2004).
Relating to Clark‘s first claim, following the United States Supreme Court‘s decision in Strickland v. Washington, 466 U.S. 668 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied: (1) the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards; and (2) the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986).
As to the first prong, the defendant must establish that ―counsel made errors so serious that counsel was not functioning as the ‗counsel‘ guaranteed the defendant by the Sixth Amendment.‖ Strickland, 466 U.S. at 687; see also Cherry v. State, 659 So. 2d 1069, 1072 (Fla. 1995). For the second prong, the reviewing court must determine whether there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694. ―A reasonable probability is a probability sufficient to undermine confidence in the outcome.‖ Id. ―Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687.
Regarding Clark‘s claims that Davis was ineffective for failing to present evidence of Clark‘s intoxication and his long-standing substance abuse and for failing to call experts to cast doubt on the physical evidence in the case, the postconviction court found that Clark failed to prove these claims. Clark alleges that counsel was ineffective for failing to investigate and present evidence that Hatch was the shooter. At the evidentiary hearing, Clark presented no evidence to support this claim. Trial counsel cannot be ineffective for failing to present evidence that did not exist at the time of trial. See, e.g., Pooler v. State, 980 So. 2d 460, 465 (Fla. 2008); Bell v. State, 965 So. 2d 48, 64 (Fla. 2007).
Clark alleges that his counsel was ineffective for failing to present mitigation at the penalty phase of his trial or, alternatively, for failing to convince Clark that he needed to present mitigation. We previously found that Clark made a knowing, intelligent waiver of his right to present mitigation. Clark, 613 So. 2d at 414. Because this claim was raised on direct appeal and found to be without merit, it is procedurally barred from being raised in postconviction proceedings. See Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1323 (Fla. 1994) (―Proceedings under rule 3.850 are not to be used as a second appeal; nor is it appropriate to use a different argument to relitigate the same issue.). Thus, in order to find counsel was deficient for failing to present mitigation, this Court must either find that counsel failed to investigate mitigation or was deficient in some other way prior to advising Clark.
Even if we allowed Clark to pierce his waiver, he cannot show counsel was deficient. Davis testified that the mitigating evidence collected ―cut both ways.‖ He further testified that both he and Clark agreed it would not be beneficial to present such evidence in the ―weaker‖ case. Because counsel did not fail to investigate mitigation, and because Clark was found competent, Davis cannot be found deficient for his strategy. Finally, Clark has failed to establish prejudice. The exact same mitigation was presented in the Nassau County trial, which led to the imposition of the death penalty. Although that conviction was overturned by this Court on direct appeal, this Court did not find that the trial court improperly rejected all the mitigation presented. Instead, we overturned the sentence because we found several of the aggravators unsupported by the record. Clark, 609 So. 2d at 514-15.
Newly Discovered Evidence
Clark raised this claim at the evidentiary hearing below, to which the State objected both procedurally and on the merits. In its order denying relief, the postconviction court found Clark‘s claim ―untimely in that the Defendant failed to raise this newly discovered evidence claim within one year of learning of its existence. The court noted that Clark waited two years to raise the claim. Further, the postconviction court found that Clark ―failed to establish that this evidence would have been admissible at [his] trial and that ―Thompson‘s testimony was not of such nature that it would probably produce an acquittal for the Defendant on retrial, especially in light of Thompson‘s credibility issues. (Michael Thompson, an inmate at Union Correctional Institution, testified that he met Clark in the Death Row library and that, while looking over Clark‘s paperwork, he recognized the name John Hatch as an inmate with whom he had served time at another prison. Thompson testified that Hatch told him that he‘d had to testify against Clark to save his own life and that he, Hatch, was the actual shooter.)
At trial, Clark himself testified that Hatch was the shooter and that he was merely an accomplice to the crimes. He also testified that Willis was a friend of his father and that he had no reason to shoot Willis. However, Thompson‘s description of the crime is not consistent with Clark‘s own version. Clark did not mention a drug deal or money. Further, Thompson‘s testimony that Hatch said they dumped the body immediately after shooting Willis is not consistent with the evidence presented at trial. Finally, Thompson is serving multiple sentences and would probably not serve as a credible witness at a new trial. Accordingly, the postconviction court properly denied Clark‘s claim of newly discovered evidence.
Having reviewed all of Clark‘s claims and finding them either to be barred or meritless, we affirm the postconviction court‘s order.
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