Windom v. State (886 So. 2d 915, 2004)

PER CURIAM.

Curtis Windom appeals an order of the circuit court denying a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Windom also petitions this Court 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 circuit court’s order denying Windom’s rule 3.850 motion, and we deny Windom’s petition for a writ of habeas corpus.

BACKGROUND

The facts of this case, as set forth in this Court’s direct appeal opinion, are as follows:

In her sentencing order, the trial judge set out the details of this tragic event, which occurred in the City of Winter Garden in west Orange County, Florida on February 7, 1992. Before the event was over, [Windom], armed with a gun, had murdered three people and seriously wounded a fourth. The pertinent facts taken from the trial record and stated in the trial judge’s order are as follows:

Jack Luckett testified that he had talked with [Windom] the morning of the shootings. In their discussion, [Windom] asked Jack if Johnnie Lee had won money at the dog track and Jack said, ‘Tes, $114.” [Windom] said Johnnie Lee owed him $2,000. When [Windom] learned Johnnie had won money at the track, he said to Jack, “My nigger, you’re gonna read about me.” He further said that he was going to kill Johnnie Lee. That same day at 11:51 a.m. (per the sales slip and the sales clerk) [Windom] purchased a .38 caliber revolver and a box of fifty .38 caliber shells from Abner Yonce at Walmart in Ocoee. Mr. Yonce remembered the sale and recalled there was nothing unusual about [Windom] and that he was “calm as could be.”

Within minutes of that purchase, [Windom] pulled up in his car next to where Johnnie Lee was standing talking to two females and Jack Luckett on the sidewalk. All three testified that [Windom’s] car was close and [Windom] leaned across the passenger side of the vehicle and shot Johnnie Lee twice in the back. (Johnnie Lee’s back was towards [Windom] and there was no evidence that he saw [Windom].) ... After the victim fell to the ground, [Windom] got out of the car, stood over the victim and shot him twice more from the front at very close range.... [Windom] then ran towards the apartment where Valerie Davis, his girlfriend and mother of one of his children, lived. ([Windom] lived with Valerie Davis off and on.) She was on the phone, and her Mend Cassandra Hall had just arrived at the apartment and was present when [Windom] shot Valerie once in the left chest area within seconds of arriving in the apartment and with no provocation. ...

From the apartment, [Windom] went outside, encountered Kenneth Williams on the street, and shot him in the chest at very close range. Mr. Williams saw the gun but did not think [Windom] would shoot him. Right before he was shot, he turned slightly and deflected the bullet somewhat. Although he was in the hospital for about 30 days and the wound was serious, he did not die. He said [Windom] did not look normal — his eyes were “bugged out like he had clicked.” ...

From there, [Windom] ended up behind Brown’s Bar where three guys, including [Windom’s] brother, were trying to take the weapon from him. By that time, Valerie’s mother had learned that her daughter had been shot, so she had left work in her car and was driving down the street. [Windom] saw her stop at the stop sign, went over to the car where he said something to her and then fired at her, hitting her twice, and killing her.

Windom v. State, 656 So.2d 432, 435 (Fla.1995).

The jury convicted Windom of three counts of first-degree murder and one count of attempted first-degree murder, and unanimously recommended that Windom be sentenced to death. The trial court followed the jury’s recommendation, finding two aggravating factors, three statutory mitigating factors, and four non-statutory mitigating factors. State v. Windom, No. CR 92-1305 (Fla. 9th Cir. Ct. order filed Nov. 10, 1992). Windom appealed his convictions and sentences to this Court, raising thirteen issues. This Court affirmed Windom’s convictions and sentences. Although this Court found that the evidence was not sufficient to support the cold, calculated, and premeditated (CCP) aggravator with regard to the murders of Valerie Davis and Mary Lubin, it affirmed Windom’s death sentences with respect to these two murders, finding that the existence of the one aggravating factor was sufficient to outweigh the little weight given to the mitigating factors found by the trial court. This Court denied Windom’s remaining arguments. Windom thereafter filed a petition for writ of certio-rari in the United States Supreme Court, which was denied. Windom v. Florida, 516 U.S. 1012, 116 S.Ct. 571, 133 L.Ed.2d 495 (1995).

Windom thereafter filed an amended motion for post-conviction relief, raising twenty-one claims. The post-conviction court held a Hujf hearing and summarily denied several of Windom’s claims. The court granted an evidentiary hearing on claims 2, 3, 4, 5, 6, 8, and 10. Following the evidentiary hearing, the post-conviction court entered a final order denying all relief. State v. Windom, No. CR92-1305 (Fla. 9th Cir. Ct. order filed Nov. 1, 2001) (post-conviction order). Windom now appeals the post-conviction court’s denial of his rule 3.850 motion. He also petitions this Court for a writ of habeas corpus.

RULE 3.850 APPEAL

Windom’s rule 3.850 appeal asserts that (1) his trial counsel was ineffective for failing to present an insanity defense during the guilt phase of the trial; (2) his trial counsel was ineffective for failing to investigate and present mitigating evidence during the penalty phase of the trial; (3) his trial counsel affirmatively harmed his case by making damaging statements to the court and conceding the State’s case; and (4) the post-conviction court erred in summarily denying his remaining post-conviction claims.

Issue 1: Ineffective Assistance of Guilt-Phase Counsel

To prove a claim of ineffective assistance of counsel:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown of the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

This Court reviews a post-conviction court’s Strickland analysis as follows:

[T]he performance and prejudice prongs are mixed questions of law and fact subject to a de novo review standard but ... the trial court’s factual findings are to be given deference. See Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999). So long as its decisions are supported by competent, substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact and, likewise, on the credibility of the witnesses and the weight to be given to the evidence by the trial court. Id. We recognize and honor the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact.

Porter v. State, 788 So.2d 917, 923 (Fla.2001).

Windom argues that his trial counsel, Ed Leinster, was ineffective for failing to investigate and present evidence during the guilt phase of the trial that Windom was insane at the time of the shootings and that he shot the last victim, Mary Lubin, in self-defense. After holding an evidentiary hearing on this issue, the post-conviction court denied this claim, providing over twenty pages of analysis in its order.

A. Failure to Investigate Mental Health Experts

Windom’s first claim of ineffective assistance of guilt-phase counsel contends that his trial counsel was ineffective for failing to present expert testimony to support an insanity defense. At the evidentiary hearing, Windom presented the testimony of Dr. Jonathan Pincus, Dr. Craig Beaver, and Dr. Robert Kirkland. The State presented the testimony of Dr. Sidney Merin. Dr. Pincus, a neurologist, concluded that Windom was psychotic at the time of the shootings and that Windom suffers from brain damage to the frontal lobe of his brain. Dr. Beaver, a licensed psychologist and clinical neurologist, testified that Windom experienced an acute psychotic episode when he shot the victims. Although he could not reach a specific diagnosis, Dr. Beaver stated that Windom’s psychosis was probably caused by bipolar disorder in a psychotic manic phase, depressive disorder with a mood congruent psychotic feature, or schizophrenia paranoid type.

Dr. Robert Kirkland, a psychiatrist, testified that he evaluated Windom at the time of the trial to determine whether Windom was competent to stand trial and his mental condition at the time of the crimes. He stated that he was not given sufficient information to determine whether Windom was sane at the time he committed the crimes, but there was no indication that Windom had brain damage. Finally, Dr. Sidney Merin, a clinical and neuropsychologist, testified that Windom was not insane at the time of the shootings and that Windom did not have brain damage.

In its detailed order denying relief, the post-conviction court discussed and weighed the expert testimony presented. With regard to the deficient performance prong of the Strickland analysis, the post-conviction court stated:

A strategic or tactical decision is not a valid basis for an ineffective claim unless a defendant is able to show that no competent trial counsel would have utilized the tactics employed by trial counsel. See White v. State, 729 So.2d 909 at 912 [Fla. 1999] (citing Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir.1998)). Mr. Leinster clearly faced a dilemma in this matter. He could attempt to introduce mental health testimony suggesting that Mr. Windom was not of sound mind and that he was unable to formulate criminal intent. However, knowing of Mr. Windom’s past, Mr. Leinster knew that the introduction of this evidence would open the door to Mr. Windom’s activities as a successful drug dealer in his community and what prosecutor Jeff Ashton described as “operation cookie monster.” Mr. Ashton testified that “operation cookie monster” was a large scale drug investigation that was going on in Mr. Windom’s community at the time of the murders. In this investigation, Mr. Ashton learned about possible motives for two of the murders, and the fact that the victims were cooperating with authorities in this drug investigation. Additionally, Mr. Ashton testified that he made this clear to Mr. Leinster, along with the fact that he was anxious to put this information into evidence should Mr. Leinster put on mitigation.

This evidence would have been extremely detrimental to Mr. Windom’s interests. The jury would have certainly thought less of Mr. Windom as a person if they knew he was a drug dealer. Additionally, the evidence that Mr. Windom was a drug dealer would have provided a more sensible motive for his shootings. Mr. Ashton’s memorandum, prepared ten days after Mr. Windom’s arrest, indicated that some or all of Mr. Windom’s victims were police informants. In both deposition and mitigation hearing testimony, witness Mary Jackson testified that Mr. Windom was concerned that Valerie Davis was about to inform on him. The record on appeal supports Mr. Ashton’s testimony that Mr. Windom was involved in large scale drug sales. Mr. Windom and his girlfriends were in possession of large amounts of money at any given time. He and Valerie Davis bought a car for $8,500 in cash. His sister Gloria was able to come up with $15,000 in cash to engage Mr. Leinster. Further, Mr. Windom had $10,000 in cash in a safe located at the apartment of another girlfriend, Julie Harp. This safe was apparently stolen by someone before the murders. These are fairly staggering amounts of money considering the un-contradicted fact that Mr. Windom had never been gainfully employed. The state argues that such large amounts of money obviously could be the source of serious disagreements between Mr. Windom and his fellow drug dealers.

If the jury had heard this evidence, Mr. Leinster would have been unable to present the shootings as senseless acts committed by a person in an altered mental state. The record is clear that Mr. Leinster attempted to buttress his argument that defendant was in an altered mental state at the time of the murders by Dr. Kirkland’s testimony. Dr. Kirkland suggested the possibility that Mr. Windom might have been suffering from a fugue state at the time of the murders, but it did not include or rely on Mr. Windom’s background history. Mr. Leinster attempted to limit Dr. Kirkland’s testimony so as to allow him to attack the intent element of the crimes without opening the door to evidence of Mr. Windom’s bad character, and potential motives for committing the murders. The record shows that this was Mr. Leinster’s strategy throughout the guilt phase trial. Mr. Leinster emphasized in both the opening statement and in closing argument that the shootings were “a senseless act of violence” and that the jury should determine from the acts themselves, the inherent bizarreness of the acts.

Post-conviction order at 11-13 (record citations omitted).

Windom contends that the post-conviction court erred in finding Leinster’s strategy reasonable because Leinster did not have a tactical reason for not presenting evidence that Windom was insane. Windom claims that Leinster simply did not investigate this evidence and did not know it was available. We reject this argument. The post-conviction court’s findings of fact are supported by competent, substantial evidence. These findings of fact indicate that Leinster’s strategy to prevent the State from introducing damaging evidence of Windom’s motive for shooting the victims was reasonable. Trial counsel is not deficient for failing to present additional testimony that would have informed the jury of negative information about the defendant. Breedlove v. State, 692 So.2d 874, 878 (Fla.1997).

With regard to the prejudice prong of the Strickland analysis, the post-conviction court stated:

Mr. Windom has not met his burden to show a reasonable probability that the strategy he now claims Mr. Leinster should have employed regarding guilt phase mental health experts would have produced a different outcome at the guilt phase trial. It is clear that Mr. Leinster acted as he did to prevent the introduction of evidence about Mr. Windom’s criminal drug activities, along with his potential motive to kill certain victims for being informers. Had he introduced such evidence, prosecutor Ashton would have had the platform he needed to build a different model of Mr. Windom. The notions suggested now by the collateral counsel, that Mr. Windom was a simple, humble man who was mentally incompetent and unaware of the nature and consequences of his actions, would have been countered with the state’s evidence showing that Mr. Windom was a remorseless killer bent on revenge for those who informed on him for illicit drug activities.

Post-conviction order at 14. Moreover, the court further stated that while the testimony of the experts presented by Windom were authoritative, their opinions were based on facts not entirely supported by the evidence. Post-conviction order at 15. The court concluded that the evidence surrounding the shootings presented at trial directly negated the experts’ opinions at the evidentiary hearing. The court reasoned:

Dr. Pincus testified that Mr. Windom did not have any plan to do what he did, and that he simply took a gun, shot his best Mend, shot at somebody in the street that he happened to casually meet, killed his girlfriend, and then shot her mother, all in the mistaken belief that they were after him, or that there was some kind of conspiracy. He further testified that the killings were a series of chance encounters. However, the evidentiary hearing evidence and trial record suggests that the first three persons were shot over drug money and in revenge for Mr. Windom’s belief that these people were police informers.

At least an hour before he shot Johnnie Lee, Mr. Windom told Jack Luckett that he was angry with Mr. Lee because Mr. Lee owed him money for another reason. Mr. Windom told Mr. Luckett that he was going to kill Mr. Lee, and that Mr. Luckett would read about him in the paper. A few minutes later Mr. Windom went to a local Wal Mart, and cooly bought the ammunition used to shoot Mr. Lee and the other victims. Within minutes of the ammunition purchase, Mr. Windom drove up to Mr. Lee, who was standing with his back to Mr. Windom, talking to friends. Mr. Windom stopped, aimed out of his car window, and shot Mr. Lee twice in the back. He then got out and shot the prone, motionless victim again and walked off. Witness [Pamela] Fikes, who was talking to Mr. Lee just before his murder recalled that just before Mr. Windom fired the first shot, he said, “my motherfucking money, nigger?” This comment precisely matched the reason Mr. Windom had given earlier that day for planing to kill Mr. Lee.

With respect to the shooting of Mary Lubin, Dr. Pincus expressed a view of the facts which conflicted with the testimony given at the hearing by defense witness Eddie James Windom. Dr. Pincus proposed that defendant shot Mary Lubin as part of a series of chance encounters. However, Eddie James Windom stated that when he saw Ms. Lubin drive up, he jumped into the bushes in such a hurry that he did not even see whether Ms. Lubin had a gun. Eddie James Windom logically concluded that either Mary Lubin or Mr. Windom was going to start shooting, and he fled for his own safety. When directly asked about this, Dr. Pincus conceded that Mr. Windom’s apprehension that Mary Lu-bin might have been armed was founded in logic and was not a paranoid delusion.

While I found both Dr. Pincus and Dr. Beaver to be bright, articulate, and authoritative witnesses, their conclusions were drawn from facts not supported by the evidence.... While there is a wealth of evidence to suggest that Mr. Windom suffered from low IQ, depression, and a bipolar disorder, there is virtually no evidence to suggest that Mr. Windom had any trouble functioning prior to the date of these murders. Virtually no medical records existed to verify either of the head injuries now claimed by Mr. Windom. Mr. Windom’s family says that after his vehicle injury at the age of 16, he became more paranoid and failed to interact much with anybody. This appears to be part of what the doctors based their conclusions upon. Yet in the evidentiary hearing, Mr. Windom’s family testified that prior to this event, he was well-groomed, affable, and took pride in his appearance. One story seems to contradict the other.

... I agree with the state that the doctors did not have a grasp of the violent social setting within which Mr. Windom lived at about the time the shooting occurred. Neither doctor knew of the fact that Mr. Windom’s drug partner, Kenny Thames, was tortured and murdered within months of Mr. Windom’s murders. The doctors never conversed with Mr. Leinster about Mr. Windom’s lifestyle prior to these murders. With additional information, such as Mr. Ashton’s testimony about “operation cookie monster,” they might have believed that Mr. Windom’s “edgy” demeanor was more likely a realistic assessment of the setting in which he lived, rather than a product of irrational paranoia or delusion.

Both doctors seemed to have ignored Mr. Windom’s own statements on the day of the murders, which would seem to belie Dr. Pincus’ conclusions that these murders were merely a series of chance encounters with Mr. Windom acting out of momentary impulse. As previously noted, Mr. Windom suggested to one witness to be sure and read the papers the next day because his name would be in it. He was correct. The totality of the circumstances surrounding these events suggest to me in no uncertain terms that Mr. Windom’s actions were knowing and premeditated.... Perhaps with additional medical testimony, well prepared, Mr. Leinster could have done more to obfuscate the facts by presenting the mitigation of brain damage. Given the other facts which could have and would have surfaced, however, I doubt it.

The testimony of Dr. Sydney Merin seemed more logically based and consistent with the facts. He did not find that Mr. Windom was suffering from a mental impairment which would have supported an insanity defense for his acts on the day of the shootings. He did feel that Mr. Windom had a personality disorder and that some of his low sub-test results were the product of the fact that he suffered from a learning disorder ....

There is no reasonable probability that the guilt phase would have resulted in a different outcome if experts such as Dr. Pincus and Dr. Beaver had been prepared and called by Mr. Leinster. Their conclusions seem contrived, and were based upon speculation about Mr. Windom’s state of mind on the day of the shooting. Their conclusions ignored much of the trial record evidence of Mr. Windom’s statements on the day of the shootings which indicated that he knew what he was doing and had motives for his shooting the victims.

Post-conviction order at 15-20 (reference citations omitted).

As the foregoing demonstrates, the post-conviction court extensively weighed the evidence presented at the evidentiary hearing and concluded that the experts’ testimony that Windom was insane at the time of the shootings was contradicted by the circumstances surrounding the shooting and the evidence presented both at the evidentiary hearing and at trial. These findings are supported by competent, substantial evidence and show that even had Leinster presented evidence of mental deficiency, there is no reasonable probability that the outcome of the trial would have been different. Such evidence would have been undermined by the State’s damaging and directly contradictory evidence that Windom was more than capable of functioning as a normal person. See Spencer v. State, 842 So.2d 52, 62 (Fla.2003) (finding that trial counsel was not ineffective for making a strategic decision not to present evidence relating to defendant’s guilt because such evidence would have opened the door to damaging and prejudicial evidence). We therefore affirm the post-conviction court’s denial of Windom’s claim of ineffectiveness with regard to this issue.

B. Failure to Investigate Fact Witnesses

Windom contends that his trial counsel was ineffective for failing to present fact witnesses during the guilt phase of the trial that would have shown a marked change in Windom’s behavior in the weeks preceding the shootings, which would have supported his assertion that he was insane at the time of the crime. At the evidentia-ry hearing, Windom presented the testimony of five family members, a childhood friend, and a neighbor. These witnesses testified generally as to Windom’s poor childhood and upbringing, and his demean- or in the weeks prior to the shootings. They testified that Windom, who had always been well groomed and neatly dressed, had become disheveled. He began walking around in public with no shirt or shoes, or wearing the same clothes for days at a time. They further stated that Windom had not bathed and that he had an odor. Windom’s mother and sister testified that Windom had suffered two brain injuries as a child.

The post-conviction court denied this claim, finding that the lay witness testimony would likely not have changed the outcome of the trial because Windom’s trial counsel did in fact present evidence of Windom’s demeanor at the time of the crime during the guilt phase. Trial counsel presented testimony that Windom looked wild on the day of the shootings and completely out of character. The jury heard testimony that Windom had been upset in the days leading up to the shootings and that Windom had never been a violent person.

With regard to evidence of brain damage from head injuries Windom suffered as a child, the post-conviction court found:

The central theme to Mr. Windom’s attack in this matter centers around Mr. Leinster’s lack of investigation into Mr. Windom’s mental health, and whether he suffered brain damage from two events described during the hearing. The most notable event described was Mr. Windom’s “rollover” traffic accident wherein Mr. Windom alleges he lost consciousness and was hospitalized for a couple of days. Indeed, the defense’s medical experts (Pincus and Beaver) draw a great deal of their conclusions based upon what they felt was one undeniable aspect of [Windom’s] past: that he suffered permanent brain damage from the traffic accident Mr. Windom described. While Mr. Barch was somewhat unsure of the doctor’s name, he did remember speaking to him before the trial, and posing the question to him regarding whether Mr. Windom had sustained any brain damage as a result of his traffic accident. The doctor (who Mr. Barch seemed to think was named Khouzoum) apparently stated unequivocally to Mr. Barch that Mr. Windom suffered no lasting damage from this accident.

Additionally, Mr. Barch specifically asked Mr. Windom’s mother and sister about any incident in his life which may have caused brain damage. They provided no information to Mr. Barch about any other head injuries including birth trauma.

Post-conviction order at 5-6 (record citations omitted).

The post-conviction court’s findings of fact are supported by competent, substantial evidence. We find no legal error in the post-conviction court’s denial of relief on this issue.

C. Trial Counsel’s Substance Abuse

Windom argues that trial counsel Ed Leinster was ineffective at trial because he was intoxicated. At the eviden-tiary hearing, Windom presented the testimony of three lay witnesses who stated that they smelled alcohol on Leinster’s breath during the trial. The State, in turn, presented the testimony of Judge Dorothy Russell, the trial judge who presided over Windom’s trial; Jeff Ashton, who prosecuted Windom’s case; Janna Brennan, who assisted Ashton at trial; and Kurt Barch, who assisted Leinster at trial. These witnesses testified that they had extremely close contact with Leinster throughout the trial and did not smell alcohol on his breath or believe that he was intoxicated. Each of these witnesses further testified that Leinster vigorously and consistently defended Windom’s case and exhibited no signs of alcohol abuse.

The post-conviction court weighed the testimony of these witnesses and concluded that there was no record evidence to support Windom’s allegation that Leinster was intoxicated during the trial. Post-conviction order at 21.

During the hearing, some evidence was presented by Mr. Windom’s relatives that Mr. Leinster smelled of alcohol during the trial. However, Mr. Barch, the presiding judge, and both prosecutors testified that they saw absolutely no evidence of alcohol use or abuse. Further, they each alleged that, based upon Mr. Leinster’s reputation (he had several alcohol and drug related arrests), they were looking for any signs of impairment. On this issue, I accept their testimony over that of Mr. Windom’s relatives.

Post-conviction order at 8.

This Court has held that it will not substitute its judgment for that of the trial court on questions of fact, and likewise on the credibility of witnesses and the weight given to the evidence so long as the trial court’s findings are supported by competent, substantial evidence. Porter v. State, 788 So.2d 917, 923 (Fla.2001). The post-conviction court’s findings with regard to this issue are supported by competent, substantial evidence. Based on these factual findings, we find no legal error in the post-conviction court’s denial of this claim.

D. Denial of Right to Competent Medical Assistance

Windom argues that Leinster’s failure to investigate and present evidence regarding Windom’s mental state denied him his right to competent assistance by a mental health expert. The post-conviction court denied this claim, explaining that it harbored grave reservations about whether Windom ever suffered any sort of meaningful head injury prior to the murders.

Even though [Dr. Pincus and Dr. Beaver] had an opportunity to review a far more extensive background record than did Dr. Kirkland, I cannot accept their opinions. Specifically, Mr. Windom’s conduct on the day of the murders refutes rather than supports their opinions that his acts were the product of brain damage or delusion.

Post-conviction order at 31. Dr. Kirkland further testified that Windom showed no significant signs of brain damage.

The trial court’s findings of fact and weight given to the evidence is supported by competent, substantial evidence. Based on these findings, Windom has failed to demonstrate that his defense was “devastated by the absence of a psychiatric examination and testimony [and that] with such assistance, the defendant might have [had] a reasonable chance of success.” Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

Issue 2: Ineffective Assistance of Penalty-Phase Counsel

Windom argues that his trial counsel was ineffective for failing to investigate and present mitigating evidence during the penalty phase of the trial. This argument is based upon the same evidence Windom presented at the evidentiary hearing in support of his claim of insanity discussed above. Specifically, Windom argues that the mental health experts’ testimony at the evidentiary hearing regarding Windom’s mental health should have been presented at the penalty phase. Windom also presented the testimony of his family members, who discussed Windom’s poor upbringing, his childhood bladder control problem, and two head injuries he sustained as a child.

In its detailed order, the post-conviction court denied this claim for reasons similar to its denial of Windom’s guilt-phase ineffectiveness claim. The court found that counsel was not deficient in failing to present this evidence before the jury because the evidence that would have been presented in rebuttal greatly outweighed any value of the mental health expert and lay witness testimony. We find that the post-conviction court’s findings of fact are supported by competent, substantial evidence. Prosecutor Jeff Ashton testified at the evi-dentiary hearing regarding the rebuttal evidence that he would have introduced had defense counsel presented its intended mitigation evidence. This rebuttal evidence would have directly countered any assertion of brain damage by showing that Windom was capable of running a successful drug enterprise and that his everyday functioning was not impaired. The record supports the post-conviction court’s conclusion that Leinster’s strategy to prevent the jury from hearing such damaging evidence was reasonable. See Gaskin v. State, 822 So.2d 1243, 1248 (Fla.2002) (“Trial counsel will not be held to be deficient when she makes a reasonable strategic decision to not present mental mitigation testimony during the penalty phase because it could open the door to other damaging testimony.”); Medina v. State, 573 So.2d 293, 298 (Fla.1990) (holding that trial counsel was not ineffective for failing to investigate and present evidence that would have presented the defendant in an unfavorable light).

Windom further contends that his trial counsel was ineffective for causing Windom to involuntarily waive his right to present mitigating evidence before the jury. Prior to the penalty phase, trial counsel Kurt Barch announced the witnesses that the defense intended to present in mitigation. Upon the conclusion of the State’s presentation at the penalty phase, however, Kurt Barch and Ed Lein-ster did not believe that Windom should present his mitigation witnesses before the jury because to do so would open the door to damaging evidence of Windom’s involvement in drugs. Windom therefore waived his right to present mitigating evidence before the jury, and his trial counsel instead presented such evidence before the trial judge alone.

Windom now contends that his waiver of the presentation of mitigating evidence before the jury was involuntary because he was not aware of what could have been presented. The post-conviction court found that Windom failed to prove this claim at the evidentiary hearing. We agree. Before a defendant may waive his right to present mitigating evidence, counsel must first investigate all avenues and advise the defendant so that the defendant reasonably understands what is being waived and its ramifications and hence is able to make an informed, intelligent decision. State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002). The record in this case reveals that Windom’s waiver was knowing, intelligent, and voluntary. At the time Windom waived his right to present mitigating evidence before the jury, the trial court, trial counsel Leinster, and prosecutor Ashton questioned Windom with respect to the voluntariness of this decision. The record indicates that Windom was indeed aware of the evidence that could have been presented before the jury and voluntarily waived his right to present it. We therefore affirm the post-conviction court’s denial of this claim.

Issue 3: Trial Counsel’s Comments to the Jury During Closing Argument of the Penalty Phase

Windom argues that trial counsel Ed Leinster conceded the State’s case at the penalty phase of trial by pointing out that he was unsuccessful at the guilt phase, that Windom does not deserve pity for what he did, and that Windom’s actions were cold. The post-conviction court found that Windom was not prejudiced by Leinster’s remarks.

Mr. Windom had already been convicted of first-degree premeditated murder, and counsel was attempting to restore credibility with the jury in order to make an argument for saving his client’s life. There was no harm in conceding the validity of the jury’s verdict during the penalty phase, and it was reasonable trial strategy for Mr. Leinster to be realistic about the facts of the case in order to restore a measure of credibility to the defense as it moved into the penalty phase.

... [T]he apparent concession that Mr. Windom deserved the death penalty was not a concession at all. Mr. Lein-ster’s comments conceding that Mr. Windom deserved the death penalty and conceding the existence of the CCP ag-gravator are taken entirely out of context. Mr. Windom had already been convicted of first-degree premeditated murder, and Mr. Leinster was faced with a daunting task. As he stated matter-of-factly, “My job is to try to save a man’s life, end of story.” It would have strained his credibility, thereby contributing to the difficulty of his task, to argue the verdict was unjust to the same jury which would be imposing a sentence. It was a reasonable trial strategy for Mr. Leinster to be realistic about the facts of the case in order to restore a measure of credibility to the defense. The record also demonstrates that he argued vigorously against the death penalty in general and argued that executing Mr. Windom would just be another act of murder.

Post-conviction order at 33.

The post-conviction court’s conclusions with regard to Leinster’s comments at the penalty phase are supported by the record. At the evidentiary hearing, Leinster and Barch made clear that their strategy was to convey that Windom was not acting like himself that day and that he did not deserve the death penalty. Leinster stated that he did not want to lose credibility with the jury by speaking in terms of innocence since the jury had just found Windom guilty. We find no legal error in the post-conviction court’s decision and therefore affirm the court’s denial of this claim.

Issue 4: The Trial Court’s Summary Denial of Windom’s Claims

Windom argues that the post-conviction court erred in summarily denying the following claims: (1) Windom is innocent of first-degree murder and innocent of the death penalty because the jury was given unconstitutionally vague instructions with regard to the CCP aggravating factor and because Windom’s death sentences are disproportionate; (2) Windom’s death sentences are unconstitutional because the penalty-phase jury instructions improperly shifted the burden of proof to Windom; (8) Windom’s death sentences are premised on fundamental error because the jury was not given adequate guidance with regard to the CCP aggravating factor; (4) Windom’s death sentences are predicated upon an automatic aggravating circumstance because Windom’s jury was instructed that it could find the prior violent felony aggravator based on his contemporaneous convictions; and (5) Windom’s constitutional rights were violated by the rules prohibiting Windom’s lawyers from interviewing jurors to determine if constitutional error existed with respect to their verdict.

We find no error in the post-conviction court’s summary denial of these claims. All of these claims are procedurally barred because they either were raised and rejected on direct appeal or could have been raised on direct appeal. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (stating that issues that could have been but were not raised on direct appeal or issues that were raised and rejected on direct appeal are not cognizable through collateral attack).

PETITION FOR WRIT OF HABEAS CORPUS

In his petition for writ of habeas corpus, Windom asserts: (1) Windom’s death sentence is unconstitutional based on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (2) Windom’s death sentence is rendered invalid because necessary elements of the offense were not charged in the indictment; and (3) appellate counsel was ineffective for failing to assert fundamental error on direct appeal with regard to improper statements made by the prosecutor at trial.

Habeas Issues 1 and 2: Validity of Windom’s Death Sentence

Windom asserts that his death sentence is unconstitutional in light of the United States Supreme Court’s decisions in Ring v. Arizona and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This Court considered similar claims and denied post-conviction relief in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002); King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002); and Porter v. Crosby, 840 So.2d 981 (Fla.2003). Moreover, the jury in this case recommended that Windom be sentenced to death by a unanimous vote, and one of the aggravating circumstances found by the trial judge was that Windom had been convicted of a prior violent felony. We deny relief in this case.

Habeas Issue 3: Appellate Counsel’s Ineffectiveness

Windom argues that appellate counsel was ineffective for failing to assert fundamental error with respect to instances during which the jury was permitted to heai' improper prosecutorial arguments. When evaluating an ineffective assistance of appellate counsel claim raised in a writ of habeas corpus, this Court must determine

first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986). The defendant must allege a specific, serious omission or overt act upon which the claim of ineffective assistance can be based. Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Fundamental error is error that “reaches down into the validity of the trial itself to the extent that the verdict of guilty could not have been obtained without the alleged error.” Kilgore v. State, 688 So.2d 895, 898 (Fla.1996). Windom’s appellate counsel was not ineffective for failing to assert fundamental error with regard to the prosecutor’s statements during trial. The record does not support Windom’s contentions that the prosecutor’s comments were improper. Appellate counsel is not ineffective for failing to raise nonmeritorious claims. Moore v. State, 820 So.2d 199, 209 (Fla.2002). We therefore deny this claim.

CONCLUSION

Accordingly, we affirm the post-conviction court’s denial of Windom’s rule 3.850 motion and deny Windom’s petition for writ of habeas corpus.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

WELLS, J., concurs with an opinion, in which CANTERO and BELL, JJ., concur.

PARIENTE, J., concurs specially with an opinion.

CANTERO, J., concurs specially with an opinion, in which WELLS and BELL, JJ., concur.

ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

. The aggravating factors were: (1) Windom had been previously convicted of another offense or felony involving the use of threat or violence to the person; and (2) the crime was cold, calculated, and premeditated (CCP).

. The statutory mitigating factors were: (1) Windom had no significant history of prior criminal activity (some weight); (2) the capital felony was committed while Windom was under the influence of extreme mental or emotional disturbance (very slight weight); and (3) Windom acted under extreme duress or under substantial domination of another person (little weight).

. The nonstatutory mitigating factors were: (l)Windom assisted people in the community (little weight); (2) Windom was a good father (little weight); (3) Windom saved his sister from drowning (very little weight); and (4) Windom saved another individual from being shot during a dispute over twenty dollars (very little weight).

.On direct appeal, Windom asserted: (1) the prosecutor's discriminatory use of peremptory challenges denied Windom his right to an impartial jury; (2) the trial court erred in allowing the State to introduce irrelevant, prejudicial evidence of a nonstatutory aggravating factor; (3) the trial court erred in failing to conduct an adequate hearing concerning the competency of his trial counsel; (4) the trial court erred in allowing the introduction of prejudicial photographs of the victims; (5) the trial court erred in denying defendant's attempt to call a witness; (6) the trial court erred in its instruction on the CCP aggravating factor; (7) the trial court erred in finding that the crimes were committed in a CCP manner; (8) the trial court erred in finding the prior violent felony aggravating factor; (9) the death penalty was disproportionate in this case; (10) the trial court erred in its instruction on reasonable doubt; (11) the trial court erred in denying Windom's requested special jury instructions at the penalty phase; (12) the trial court improperly rejected mitigating evidence by giving such little, if any, weight; and (13) section 922.141, Florida Statutes (1991), was unconstitutional.

. The claims raised by Windom were: (1) Florida’s lack of standards for counsel in capital cases led to the post-conviction court’s tolerance of an incompetent attorney; (2) his trial counsel was ineffective for failing to adequately investigate and present evidence at the guilt phase of his trial; (3) his trial counsel was ineffective for failing to adequately investigate and present evidence at the penalty phase of the trial; (4) Windom was denied his rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), at the guilt and penalty phases because his trial counsel failed to obtain an adequate mental health evaluation and to provide necessary background information to the mental health expert; (5) his trial counsel affirmatively harmed his case by making damaging statements to the court and conceding the State's case; (6) Windom was denied a fair trial due to impermissible considerations and misstatements of law made by the prosecutor, and Windom's trial counsel was ineffective for failing to object; (7) Windom's constitutional rights were violated by the failure of the trial court, prosecutor, and defense counsel to understand and correctly apply the Sixth Amendment requirements of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct 1712, 90 L.Ed.2d 69 (1986); (8) Windom's convictions are unreliable because of the cumulative effect of his trial counsel's ineffectiveness, improper prosecutorial argument, and improper rulings of the trial court; (9) Windom is innocent of first-degree murder and innocent of the death penalty; (10) Windom was absent from critical stages of the trial; (11) Windom's death sentences are unconstitutional because the trial court improperly shifted the burden of proof to Windom during the penalty phase, and his trial counsel was ineffective for failing to object; (12) Windom's death sentences are premised upon fundamental error because the trial court's instruction as to the CCP aggravating factor was vague; (13) Windom's death sentences are unconstitutional because they are predicated on an automatic aggravating circumstance, and his trial counsel was ineffective for failing to object; (14) the rules prohibiting Windom's lawyers from interviewing jurors to determine the presence of error are unconstitutional; (15) Florida’s capital sentencing statute is unconstitutional; (16) execution by lethal injection is a form of cruel and unusual punishment; (17) Windom was denied a proper direct appeal because portions of the record were omitted and counsel failed to raise this argument; (18) the Florida Supreme Court erred in failing to conduct a harmless error analysis after striking an aggravating factor; (19) Windom was denied access to his own trial files; (20) Windom was denied his right to adequate representation because of the lack of funding available to fully investigate and prepare his case; and (21) Windom was denied his constitutional right to public records.

. Huff v. State, 622 So.2d 982 (Fla.1993).

WELLS, J.,

concurring.

I fully concur in the majority opinion.

I do join in Justice Cantero’s excellent opinion on the retroactivity of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and on Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Justice Cantero has done great service with this work. I point out that my joining in Justice Cantero’s opinion is not a variance from the views that I have expressed in Bottoson, King, and Duest v. State, 855 So.2d 33 (Fla.2003), cert. denied, No. 03-8841, — U.S. ——, 124 S.Ct. 2023, 158 L.Ed.2d 500 (U.S. 2004), that Florida courts are to continue to follow the United States Supreme Court’s precedent expressly approving the constitutionality of Florida’s capital sentencing statute. In initial proceedings, trial courts are to continue to apply the capital sentencing statute, which has now been in effect for twenty-nine years. I join Justice Cantero’s opinion because I agree with his opinion that retroactivity is a threshold issue and recognizing that Ring is not retroactive will serve to reduce the presentation and argument of other issues related to Ring in post-conviction proceedings in this Court and in the trial courts.

I further agree with Justice Cantero that the adoption of the Teague analysis for retroactivity in post-conviction collateral proceedings would serve the interests of the proper administration of justice in Florida.

CANTERO and BELL, JJ., concur.

PARIENTE, J.,

specially concurring.

I concur in the majority opinion, and write separately in response to Justice Cantero’s specially concurring opinion to explain why I would not address the retro-activity of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), in this ease. First, I believe that deciding the issue now is unnecessary in light of our consistent rejection of Ring claims. Second, deciding retroactivity is premature because we have not determined whether Ring has any applicability to Florida’s capital sentencing scheme, and a proper retro-activity analysis would need to take into account the substance of any new principle of law. Third, and related to the second point, this Court has never before decided retroactivity before deciding the applicable principle of law, and there is no sound reason for taking this step in this case when there is another basis for denial. Fourth, deciding retroactivity will not save us judicial labor because the issue of retro-activity is also pending before the United States Supreme Court. Lastly, since we can decide this case on other grounds without deciding retroactivity, this appears to me to be an inappropriate case in which to reconsider our precedent of Witt v. State, 387 So.2d 922 (Fla.1980). I address each of these points in turn.

First, because a majority of this Court has been able to dispose of post-conviction Ring claims on other grounds, there is no need to decide retroactivity now. In every post-conviction appeal in which a Ring claim has been raised and discussed, this Court has determined on the merits that Ring did not warrant reversal of the defendant’s sentence of death. This very case serves as an example of a consensus on Ring claims. Six of us have concurred in the majority opinion’s rejection of Windom’s Ring claim in reliance not only on the decisions in Bottoson and King but also on the prior violent felony aggravator and the unanimous death recommendation. See majority op. at 930.

Majority decisions of this Court in other cases reflect the same or a similar consensus. See Johnston v. State, 863 So.2d 271, 286 (Fla.2003) (holding that “prior violent conviction [aggravator] alone” satisfies the mandate of Ring), cert. denied, — U.S. -, 124 S.Ct. 1676, 158 L.Ed.2d 372 (2004); Anderson v. State, 863 So.2d 169, 189 (Fla.2003) (relying in part on unanimous death recommendation and prior violent felony conviction to reject Ring claim), cert. denied, — U.S. -, 124 S.Ct. 1662, 158 L.Ed.2d 363 (2004); Belcher v. State, 851 So.2d 678, 685 (Fla.) (concluding that aggravators of prior violent felony conviction and murder in the course a felony supported by separate guilty verdict exempt sentence from holding in Ring, cert. denied, 540 U.S. 1054, 124 S.Ct. 816, 157 L.Ed.2d 706 (2003)). Whether one concludes that Ring has no application in Florida and that an other-conviction ag-gravator is a supplemental basis to deny relief under Ring, or that Ring applies and that an other-conviction aggravator is the sole reason for denial of relief under Ring in the absence of a unanimous death recommendation, the fact remains that this Court has reached a consensus that has resulted in the denial of Ring relief in the vast majority of cases. Because a majority of the members of this Court appears to have reached a bottom-line determination that has resulted in the denial of Ring claims without rebanee on the decisions in Bottoson and King, I conclude that at this point, we need not take the next step and determine whether Ring applies to cases in which the sentence of death is final.

Second, we should not address retroac-tivity until and unless any part of Florida’s death penalty scheme is declared unconstitutional. Deciding retroactivity before applicability would be putting the proverbial cart before the horse. This is because under Witt an essential consideration in determining retroactivity is whether the decision is of fundamental significance. See Witt, 387 So.2d at 931. We explained:

The doctrine of finality should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications. Thus, society recognizes that a sweeping change of law can so drastically alter the substantive or procedural underpinnings of a final conviction and sentence that the machinery of post-conviction rebef is necessary to avoid individual instances of obvious injustice.

Id at 925. A determination that the standard jury instruction that informs the jury that its role is only advisory may be erroneous under Ring but might not trigger retroactivity. On the other hand, a determination that a defendant has been denied the Sixth Amendment right to a unanimous determination of an aggravating factor might trigger application of the Witt factors, especially in light of the repeated recognition that death is different. Thus, too many questions that would critically affect the retroactivity analysis remain unanswered at this point.

Third, this Court has never before decided retroactivity as a threshold matter before deciding the merits of the substantive issue. To do so now when it is unnecessary to reach the issue in this case would not be sound precedent because the nature of the new principle of law and the issue of whether that principle should be given retroactive effect are interrelated. In short, we cannot determine whether Ring constitutes a “development of fundamental significance,” Witt, 387 So.2d at 931, until we have ascertained its effect, if any, on Florida’s capital sentencing scheme. In other situations in which we have addressed ret-roactivity of a new rule of law, we knew precisely what rule of law we were applying. See, e.g., State v. Stevens, 714 So.2d 347, 348 (Fla.1998) (holding that decision limiting sentence enhancement for attempted murder of a law enforcement officer to attempted first-degree murder was retroactive); State v. Woodley, 695 So.2d 297, 298 (Fla.1997) (determining that decision holding that attempted felony murder was a nonexistent crime was not retroactive). In contrast, because we cannot yet ascertain the effect of Ring in Florida, we cannot yet reliably determine retroactivity. If and when either this Court or the United States Supreme Court determines in a specific case that Ring has invalidated a Florida death sentence in some respect, it is that decision’s retroactivity that will be in issue, not Ring itself, which did not directly apply to the Florida death scheme.

Further, there is scant precedent in the decisions of other courts for determining the retroactivity of a new rule of law before deciding whether the rule would apply in a particular case. Justice Cantero cites to Turner v. Crosby, 339 F.3d 1247 (11th Cir.2003), cert. denied, No. 03-9251, - U.S.-, 124 S.Ct. 2104, 158 L.Ed.2d 718 (U.S. 2004), as a case in which the court decided that Ring was not retroactive without determining whether it applied to Florida’s death scheme. See specially concurring op. at 939. However, the Eleventh Circuit in Turner decided nonretroactivity as an alternative to its holding that the claim was procedurally barred when presented initially in a federal habeas petition, arguably making the discussion of retroac-tivity dicta. See 339 F.3d at 1282 (“Alternatively, if Turner is not procedurally barred from bringing a Ring claim, Ring does not apply retroactively to Turner’s § 2254 petition in any event.”).

Fourth, a decision by this Court that Ring is not retroactive will not promote greater judicial efficiency. The issue of the retroactivity of Ring is presently pending review in the United States Supreme Court. See Summerlin v. Stewart, 341 F.3d 1082 (9th Cir.), cert. granted in part sub nom. Schriro v. Summerlin, 540 U.S. 1045, 124 S.Ct. 833, 157 L.Ed.2d 692 (2003). While Summerlin is pending, defendants will continue to raise the issue at the state level to preserve it for eventual federal review. In his specially concurring opinion, Justice Cantero suggests that deciding retroactivity now will clarify the Court’s position to the growing number of appellants who have argued that this Court has already decided that Ring applies retroactively. The fact that some defendants have made this assertion incorrectly should not press us into deciding retroactivity prematurely.

Finally, and for some of the same reasons discussed above, I do not consider this the appropriate case in which to reconsider our decision in Witt. Although I am not averse to revisiting the proper retroactivity standard in applying precedent from the United States Supreme Court, I think it prudent to await a case in which retroactive application would require either that a conviction be reversed or a sentence vacated. Because a majority of this Court would deny Ring relief to Windom even if we were to conclude that Ring applies retroactively, this is not the proper case to revisit Witt.

In conclusion, I believe that because of the uncertainties in the law created by Ring and yet to be resolved in this State, we would be acting unnecessarily, prematurely, and with no significant conservation of judicial resources in determining at this point whether Ring is retroactive.

CANTERO, J.,

specially concurring.

I concur in the majority’s opinion. I write separately because the appellant, like many others before him (and many others that will follow), argues that the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), renders unconstitutional Florida’s death penalty sentencing scheme. I believe we should finally decide the question of whether, even if Ring did apply in Florida (members of this Court disagree on whether it does, and under what circumstances), it would apply retroactively. I would hold that it does not.

I also write separately because I believe that we should answer questions about the retroactivity of decisions of the United States Supreme Court based on that Court’s own standards, as articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and not based on the now-outmoded test we announced in Witt v. State, 387 So.2d 922, 925 (Fla.1980).

I discuss below (I) the history of Ring and our discussions about whether it applies in Florida; and (II) whether Ring should apply retroactively, by (A) explaining the different standards for determining retroactivity, and then analyzing the retro-activity of Ring under (B) the Teague standard or (C) the Witt standard.

I. Lord of the Ring: The Supreme Court’s Decision and Our Cases Interpreting It

I begin by analyzing the decision in Ring and our subsequent interpretations. In June 2002, the United States Supreme Court decided Ring v. Arizona, in which it held that a jury, not a judge, must determine facts relevant to whether the death penalty is the appropriate punishment. This decision affected the death penalty law of many states. All states where, in capital cases, a judge was partially or totally responsible for the sentencing decision had to determine whether and under what circumstances Ring applied and whether it required anywhere from a slight change to a total revamping of the sentencing process. In this Court, no majority view has emerged. We have not considered, however, whether, if Ring did apply, it would apply retroactively. In my view, this is a threshold issue that should precede any discussion of Ring’s applicability.

A. The Fellowship of the Ring: The Supreme Court’s Decisions in Apprendi and Ring

The Supreme Court’s decision in Ring merely applied another case, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), decided two years earlier, to death penalty cases. Therefore, to understand Ring and its holding, we must first analyze Apprendi. The defendant in Apprendi was charged with possession of a firearm for an unlawful purpose, which under New Jersey law carried a maximum sentence of ten years’ imprisonment. 530 U.S. at 468-70, 120 S.Ct. 2348. The trial court also found, however, that the defendant committed the offense while motivated by racial bias. The judge therefore imposed an enha