Knight v. State (923 So. 2d 387, 2005)

PER CURIAM.

Thomas Knight, n/k/a Askari Abdullah Muhammad, appeals an order of the circuit court summarily denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the circuit court’s order denying postconviction relief and deny Muhammad’s habeas petition.

FACTS AND PROCEDURAL HISTORY

The facts of the crimes in this case are set forth in our direct appeal opinion:

Upon arriving at his place of business and parking in his designated space [on the morning of July 17, 1974], Mr. Gans was approached by the defendant who was carrying an automatic rifle and was told to re-enter his automobile, to drive home and get Mrs. Gans, and to drive to the bank and get $50,000. While inside the bank, Mr. Gans informed the president about the abduction. The police and FBI were alerted. Mr. Gans then returned to his car with the money. He and his wife, shortly thereafter, were found shot to death, the fatal shots— perforating through their necks — having been fired from the rear seat of the vehicle. Thereafter, appellant was apprehended and taken into custody in a weeded area about 2,000 feet from the Gans’ vehicle. Underneath him buried in the dirt was an automatic rifle and a paper bag containing $50,000. There were blood stains on his pants.

Knight v. State, 338 So.2d 201, 202 (Fla.1976). The jury convicted Muhammad of two counts of first-degree murder and recommended that the death penalty be imposed for each. Id. The trial judge sentenced Muhammad to death, and on direct appeal, this Court affirmed the convictions and sentences. Id. at 205.

In December 1979, Muhammad filed a habeas petition, alleging ineffective assistance of appellate counsel. Knight v. State, 394 So.2d 997, 998-99 (Fla.1981). While the petition was pending, the Governor signed a death warrant, scheduling Muhammad’s execution for the Gans’ murders for March 3, 1981. Id. at 999. On February 2, 1981, a motion for a stay of execution was filed with this Court. Id. On February 24, 1981, this Court denied the stay and Muhammad’s habeas petition. Id. at 1003.

Muhammad then filed a habeas petition and a motion for stay of execution in the federal district court. Knight v. Dugger, 863 F.2d 705, 706-07 (11th Cir.1988). The federal district court granted the stay, retained jurisdiction over the petition, and ordered Muhammad to exhaust state law remedies regarding his contention that trial qounsel was ineffective. Id. at 707. Muhammad’s subsequent rule 3.850 motion, filed in state court pursuant to the federal district court’s directive, was denied without an evidentiary hearing, and on appeal the denial was affirmed. Muhammad v. State, 426 So.2d 533, 535 (Fla.1982).

When Muhammad then pursued his previously filed federal habeas petition, the federal district court ultimately dismissed the petition. Knight, 863 F.2d at 707. The Eleventh Circuit, on review of the dismissal, affirmed on six of the seven issues presented, but granted relief on one claim because it was uncertain whether a claimed Lockett/Hitchcock error was harmless. 863 F.2d at 710. The court

remand[ed] this case to the district court with instructions to enter an order granting the application for writ of habe-as corpus, unless the State within a reasonable period of time either resen-tences Muhammad in a proceeding that comports with Lockett or vacates the death sentence and imposes a lesser sentence consistent with law.

Id. The State agreed to a resentencing, and on February 20, 1996, at the conclusion of the resentencing proceeding, the judge accepted the jury’s recommendation of two death sentences for the Gans’ murders by a vote of nine to three. Knight v. State, 746 So.2d 423, 426 (Fla.1998). The trial court again imposed death sentences for each murder. Id. On direct appeal from the resentencing proceeding, this Court affirmed the imposition of the death sentences. Id. at 437.

Muhammad then filed a rule 3.850 motion on November 7, 2000, and an amended rule 3.850 motion on March 23, 2002. After a Hujf hearing, the circuit court summarily denied all of Muhammad’s postcon-viction claims, concluding that they were either procedurally barred, conclusively refuted by the record, facially or legally insufficient as alleged, without merit as a matter of law, or not ripe for consideration.

POSTCONVICTION CLAIMS

On appeal, Muhammad contests the summary denial of the majority of his postconviction claims. Upon careful review of Muhammad’s motion and the circuit court’s detailed order, we find no error in the circuit court’s determination that summary denial was appropriate on each of the claims presented. Accordingly, we affirm the denial of relief on these claims because they are either procedurally barred, conclusively refuted by the record, facially or legally insufficient as alleged, or without merit as a matter of law. For further explanation of the circuit court’s resolution of the individual issues, we attach as an appendix , the order denying postconviction relief rather than repeating in detail those reasons in this opinion.

PETITION FOR WRIT OF HABEAS CORPUS

Muhammad raises five claims in his petition for writ of habeas corpus: (1) whether appellate counsel rendered ineffective assistance of counsel in failing to raise on appeal the issue of the State’s delay in resentencing Muhammad; (2) whether appellate counsel rendered ineffective assistance of counsel in failing to ensure a complete appellate record; (3) whether appellate counsel rendered ineffective assistance in failing to challenge on appeal the resentencing court’s refusal to individually voir dire prospective jurors; (4) whether execution by electrocution or lethal injection constitutes cruel and unusual punishment; and (5) whether rule 4-3.5(d) of the Rules Regulating the Florida Bar is unconstitutional. For the reasons that follow, we deny habeas relief.

Appellate Counsel’s Ineffectiveness

In Orme v. State, 896 So.2d 725 (Fla.2005), we recently explained the standard for analyzing claims of ineffective assistance of appellate counsel:

Claims of ineffective assistance of appellate counsel are properly raised in a petition for writ of habeas corpus addressed to the appellate court that heard the direct appeal. See Rutherford v. Moore, 774 So.2d 637 (Fla.2000). Such claims must be analyzed using the same two-pronged test promulgated in Strickland. That is, we must determine whether counsel’s performance was deficient, and, if so, we must determine if the deficient performance prejudiced the defendant. In Rutherford we said:

If a legal issue “would in all probability have been found to be without merit” had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective. Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994); see, e.g., Kokal v. Dugger, 718 So.2d 138, 142 (Fla.1998); Groover, 656 So.2d at 425. This is generally true as to issues that would have been found to be procedurally barred had they been raised on direct appeal. See, e.g., Groover, 656 So.2d at 425; Medina v. Dugger, 586 So.2d 317, 318 (Fla.1991).

Id. at 643; accord Spencer v. State, 842 So.2d 52, 74 (Fla.2003). This principle is applicable to this case unless the error is deemed to be fundamental error. Fundamental error is an error that “reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Kilgore v. State, 688 So.2d 895, 898 (Fla.1996) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)).

Id. at 737-38.

In his first habeas claim, Muhammad contends that appellate counsel were ineffective in failing to raise on appeal the issue of the State’s failure to resentence Muhammad “within a reasonable period of time.” Knight, 863 F.2d at 710. Upon review of the record, we conclude, as did the circuit court in denying a similar post-conviction claim, that Muhammad was responsible, in part, for the delay in resen-tencing. Thus, this claim is denied. See San Martin v. State, 705 So.2d 1337, 1347 (Fla.1997) (“A party may not invite error and then be heard to complain of that error on appeal.”). “[A]ppellate counsel cannot be ineffective for failing to present a meritless claim.” Pietri v. State, 885 So.2d 245, 273 (Fla.2004).

Muhammad next asserts that appellate counsel were ineffective for failing to ensure that a complete record was compiled on appeal. We conclude that this claim is without merit because the record does, in fact, contain the allegedly omitted portions and because Muhammad has not alleged a sufficient basis of prejudice with respect to the untranscribed portions of the resentencing proceeding. See, e.g., Sochor v. State, 883 So.2d 766, 789 (Fla.2004) (rejecting claim that appellate counsel was ineffective for failing to ensure a complete appellate record because “Sochor has not pointed to any errors that occurred during the untranscribed portions of the proceedings; he therefore has not established the necessary element of prejudice”). Thus, we also reject this claim.

We conclude that Muhammad’s claim that appellate counsel were ineffective for failing to challenge on appeal the resentencing court’s refusal to individually voir dire prospective jurors regarding their exposure to media coverage of the case is similarly without merit. Prospective jurors who indicated exposure to media coverage were individually voir dired, and contrary to Muhammad’s contention, jurors Collier and Coachman never overheard other prospective jurors’ comments about their exposure to media coverage. Because each prospective juror who indicated exposure to media coverage was privately interviewed outside of the presence of the other prospective jurors, we deny relief on this claim.

We also reject Muhammad’s claim that appellate counsel were ineffective in failing to challenge on appeal the resen-tencing court’s refusal to individually voir dire prospective jurors regarding their views on the death penalty. That claim is wholly eonclusory, amounting to little more than speculation that the jurors in his case must have been influenced by the comments of prospective juror Painter in responding to questions from the trial court. When the comments are considered in context, Muhammad has not demonstrated that the uttering of these remarks would compel reasonable counsel to raise the issue on appeal. See San Martin v. State, 717 So.2d 462, 467 (Fla.1998) (“[A] trial court’s denial of individual voir dire will only be reversed where a defendant demonstrates the partiality of the jury or an abuse of discretion.... ”).

Other Claims

Muhammad’s remaining claims were raised in his postconviction motion and cannot be relitigated in a habeas petition. See Baker v. State, 878 So.2d 1236, 1241 (Fla.2004) (“Nor can habeas corpus be used as a means ... to litigate issues that ... were raised in a motion under rule 3.850.”); Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989) (“[H]abeas corpus petitions are not to be used for additional appeals on questions which ... were raised ... in a rule 3.850 motion.... ”). Accordingly, we deny relief on those claims.

CONCLUSION

For the reasons stated, we affirm the circuit court’s denial of postconviction relief and deny Muhammad’s petition for a writ for habeas corpus.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ., concur.

LEWIS, J., concurs in result only.

APPENDIX

IN THE CIRCUIT COURT OF THE ELEVENTH

ELEVENTH JUDICIAL CIRCUIT IN AND FOR

MIAMI-DADE COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, vs. ASKARI ABDULLAH MUHAMMAD,

A/K/A THOMAS KNIGHT,

Defendant.

CASE NO. F74-05978

ORDER DENYING AMENDED MOTION FOR POST CONVICTION RELIEF

THIS CAUSE came on to be heard upon application of the defendant on an Amended Motion for Post Conviction Relief filed pursuant to Florida Rule Criminal Procedures 3.850. This Court, upon review of the defendant’s motion, Amended Motion, State’s Response to Amended Motion, Transcripts of the Re-sentencing Proceedings, Supreme Court Opinion in Knight v. State, 746 So.2d 423 (Fla.1998), the Sentencing Order of the trial court in this cause re-sentencing the defendant to death, all documents submitted in-camera for review, after hearing argument of counsel and otherwise being fully advised in the premises, it is:

FOUND, ORDERED and ADJUDGED:

1. That the defendant was charged by indictment on August 24, 1974, for the First Degree Murder of Lillian Gans and Sidney Gans.

2. That the matter was originally tried in calendar year 1975 whereupon the defendant was found guilty as charged and the jury recommended the imposition of the death penalty for both murders.

3. The trial court adjudicated the defendant guilty and imposed the sentence of death upon the defendant for each of the murders.

4. The defendant appealed these convictions and sentences to the Florida Supreme Court which were affirmed, Knight v. State, 338 So.2d 201 (Fla.1976). Thereafter, the defendant sought various forms of collateral relief from the Federal Courts which ultimately resulted in the Eleventh Circuit Court of Appeals vacating the defendant’s sentence and remanding for re-sentencing. Knight v. Dugger, 863 F.2[d] 705 (11th Cir.1988). The defendant was returned to the Eleventh Circuit in and for Miami-Dade County, Florida, on or about May of 1990, in connection with the re-sentencing proceedings.

5. The re-sentencing proceedings ultimately commenced on January 23, 1996, with the culmination of the trial court’s re-sentencing the defendant to death on February 20,1996.

6. The death sentences were affirmed by the Supreme Court in Knight v. State, 746 So.2d 423 (Fla.1998), cert. denied [528 U.S. 990,] 120 S.Ct. 459[, 145 L.Ed.2d 370] (1999).

7. The defendant’s Motion for Post Conviction Relief was due to be filed on or before November 8, 2000.

8. The defendant’s Motion for Post Conviction Relief (Shell motion) was filed on November 7, 2000.

9. Conflict free counsel was appointed on January 24, 2001.

10. Various hearings were held in the interim concerning public disclosure requests.

11. Defendant’s Amended Motion for Post Conviction Relief was filed on March 23, 2002, with the State responding to the Amended Motion on September 3, 2002.

12. In addressing the 28 claims filed by the defendant, this Court is governed by the standard of review that a defendant is entitled to an Evidentiary Hearing on a PosNConviction Relief Motion unless, (1) the motion, files and records in the case conclusively show that the defendant is entitled to no relief, or (2) the Motion or the particular claim is legally insufficient. The Defendant bears the burden of establishing a prima facie case based upon a legally valid claim. Mere conelusory allegations are not sufficient to meet this burden. Freeman v. State, 761 So.2d 1055 (Fla.2000).

13. The burden of persuasion is on a defendant to prove, by a preponderance of competent evidence, that counsel’s performance was unreasonable. See Strickland v. Washington, [466 U.S. 668,] 104 S.Ct. 2052, 2064[, 80 L.Ed.2d 674] (1984). The standard for counsel’s performance is “reasonableness under prevailing professional norms.” Strickland v. Washington, 104 S.Ct. 2052, 2065. “The test for ineffectiveness is not whether counsel could have done more; perfection is not required. Nor is the test whether the best criminal defense attorneys might have done more. Instead the test is ... whether what they did was within the ‘wide range of reasonable professional assistance.’ ” Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir. 1995). (citations omitted).

14. In order to prevail on an ineffective assistance of counsel claim, the defendant must demonstrate counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by 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 the defendant makes such showing it cannot be said that the conviction or death sentence resulted in a break down in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. at 687[, 104 S.Ct. 2052].

15. To establish prejudice during the penalty phase the defendant must show that there is a reasonable probability that, absent trial counsel’s error, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Cherry v. State, 781 So.2d 1040 (Fla.2000) quoting Strickland 466 U.S. at 695[, 104 S.Ct. 2052].

16. Conclusory allegations are insufficient to meet a defendant’s burden of establishing a prima facie case that he is entitled to post-conviction relief. Freeman v. State, supra.

17. The defendant has filed 28 claims in the Amended Motion seeking post-conviction relief and are addressed hereafter in this Order.

CLAIM I

ACCESS TO THE FILES AND RECORDS PERTAINING TO MR. MUHAMMAD’S CASE IN THE POSSESSION OF CERTAIN STATE AGENCIES HAVE BEEN WITHHELD IN VIOLATION OF THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, THE EIGHTH AMENDMENT, AND THE CORRESPONDING PROVISIONS OF THE FLORIDA CONSTITUTION.

In this claim, the defendant alleges that the Metro-Dade Police Department, the State Attorney’s Office, the Department of Corrections, have failed to turn over all records that the said parties may possess. Additionally, the defendant claims that the records from the Bradford County case as of the filing of the amended motion have not been transmitted to this Court for review. Each of these respective claims have previously been heard by this Court and ruled upon, and the respective agencies have filed their notices of compliance with the Public Records Act. Additionally, the Bradford County records had been received and reviewed by this Court with rulings having been entered on the defendant’s claim. Defense counsel at the Huff hearing held in this cause on December 13, 2002, conceded that there were no new records or amendments to defendant’s motion concerning this claim. Accordingly, this claim is denied without an Evidentiary Hearing.

CLAIM II

THE STATE’S EIGHT YEAR DELAY IN PROSECUTING MR. MUHAMMAD AND SEEKING THE DEATH PENALTY VIOLATED MR. MUHAMMAD’S FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS. THE STATE’S DELAY AND VIOLATION OF MR. MUHAMMAD’S DUE PROCESS RIGHTS PRECLUDED THE STATE’S ABILITY TO SEEK A SENTENCE OF DEATH.

The defendant alleges that the delay between the time the Federal Court reversed his death sentence by 1988 and the commencement of his new penalty phase trial violated the Federal Court’s Mandate which caused him to suffer immeasurable prejudice due to the State’s delay and cites authority to the effect that is a violation of the defendant’s due process rights. The defendant further alleges that he was prejudiced by the destruction of Dr. Corwin’s notes but fails to allege specifically what was in those notes, how the existence of the notes would have likely led to a different result had he been re-tried. Additionally, the record indicates that Dr. Corwin was questioned on his ability to testify by reviewing his report generated in the case and the Doctor’s testimony was that he had an actual recollection and that in fact he did remember Mr. Knight. (RST 2682-2684). Moreover, this Court finds the defendant’s claim is procedurally barred in as much as the issue of delay was raised on appeal and rejected by the Supreme Court where the Court found that both parties bear the responsibility for the long delay. Knight v. State, 746 So.2d at 437 (Fla.1998).

Assuming that defendant’s claim is not procedurally barred, as found by the Supreme Court in Knight supra, the delay was i partially caused by the defendant. New¡ counsel had been appointed and sought continuances to prepare, requested competency hearings, failed to cooperate with some of the appointed experts, litigated payments of expert bills against the County, and resisted and failed to provide discovery. Clearly since the defendant contributed to the delay, he cannot now complain about it. San Martin v. State, 705 So.2d 9337[1337] (Fla.1997).

Lastly, the defendant also alleges that the passage of time prejudiced him in that it prevented him from getting a reliable competency determination. Competency is defined as whether the defendant has the sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him at the time of trial. Tuskey[Dusky] v. United States, 362 U.S. 402[, 80 S.Ct. 788, 4 L.Ed.2d 824] (1960). In connection with this claim, the record sufficiently establishes that some of the expert witnesses for the defendant examined him prior to the re-sentencing being ordered. Consequently, timing is not a prejudicial problem. Accordingly, this Claim is denied without an Evidentiary Hearing.

CLAIM III

MR. MUHAMMAD WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT ALL STAGES OF HIS RE-SENTENCING IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS DUE TO THE ACTIONS OF THE STATE IN FAILING TO RE-SENTENCE MR. MUHAMMAD WITHIN A REASONABLE AMOUNT OF TIME. ADDITIONALLY, COUNSEL FAILED TO ADEQUATELY INVESTIGATE AND PREPARE MR. MUHAMMAD’S CASE, TO CHALLENGE THE STATE’S CASE, AND FAILED TO ZEALOUSLY ADVOCATE ON BEHALF OF HIS CLIENT. COUNSEL FAILED TO OBJECT TO OBVIOUS INADMISSIBLE EVIDENCE. COUNSEL FAILED TO EFFECTIVELY CROSS EXAMINE THE STATE’S WITNESSES. COUNSEL FAILED TO ADEQUATELY OBJECT TO EIGHTH AMENDMENT ERROR. A FULL ADVERSARIAL TESTING DID NOT OCCUR. THE COURT AND STATE RENDERED COUNSEL INEFFECTIVE. COUNSEL’S PERFORMANCE WAS DEFICIENT, AND AS A RESULT, MR. MUHAMMAD’S DEATH SENTENCE IS UNRELIABLE.

Defendant, as he did in Claim II, alleges that counsel was ineffective for failing to ensure that a re-sentencing trial occurred in a timely manner. As this Claim was addressed in Claim II, there is no compelling reason to re-address the same issues in detail. Additionally, defendant raises the lost/stale evidence allegation of Dr. Corwin’s destroyed notes which conclusorily alleges that they had been destroyed after re-sentencing was ordered. This Claim as addressed in Claim II is without merit and counsel cannot be deemed ineffective, Kokal v. Dugger, 718 So.2d 138, 143 (Fla.1998).

Defendant next alleges that counsel was ineffective by failing to challenge the State’s experts including Dr. Fennel and that the defendant was malingering when assessing his competency to proceed. Defendant does not state what questions should have been asked that were not asked and how the result would have been different if the questions has been asked. Conclusory and speculative allegations are insufficient to warrant an Evidentiary Hearing. Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).

The defendant next alleges that the State failed to disclose exculpatory evidence. Defendant again in the Motion does not allege what this favorable evidence is. This claim is facially insufficient. Ragsdale v. State, 720 So.2d 203 (Fla.1998). Defendant next alleges that counsel was ineffective and that he lost the defendant’s file. The record reflects that the trial counsel asked for a copy of the original trial transcript (RSR 2524) and that in fact counsel had received a copy of that transcript by November of 1995, prior to the re-sentencing trial of this cause. (RSR 1574-75).

The defendant next alleges that trial counsel failed to provide critical and relevant materials to the experts for the competency hearing and/or that materials that were provided were not given in a timely manner. It is also alleged that other experts during re-sentencing were not properly prepared and that had re-sentencing counsel provided background information to the mental health experts, counsel would have learned that defendant’s ae-tions were a product of his mental illness. Defendant does not state how the additional materials would have changed the testimony of the experts or how the outcome would have been different. Much less as hereafter set forth, the issue of defendant’s mental illness and bizarre behavior and upbringing were presented to the jury. Accordingly, this claim of lack presenting materials and/or lack of information is facially insufficient and conclusory. Kennedy v. State, 547 So.2d at 913 (Fla.1989)

Defendant also alleges counsel was ineffective for failing to present evidence that the defendant was aware of the Police pursuit in this case. Counsel did present a lengthy hypothetical and attempted to present such evidence. RST 2070-2105, 2229, 2458-61. Defendant however fails to allege what evidence counsel could have presented to show that the defendant was aware of the Police pursuit. Accordingly, as counsel attempted to present the evidence concerning the Police pursuit and its effect on the defendant, he cannot be deemed ineffective for failing to do so. Strickland v. Washington, supra. Additionally, based on the failure to plead non-conclusory allegations, this claim is facially insufficient. Ragsdale v. State, 720 So.2d 203 (Fla.1998)

Even if evidence had been presented that the defendant was aware of the Police pursuit there is still sufficient evidence to rebut the defendant’s claim that the defendant lulled the victims in a psychotic episode. Defendant took the victims to a remote spot where the Police could not see the actual shooting, he hid in a wooded area and covered himself with vegetation to hide himself from the Police. Consequently, defendant’s counsel could not have been ineffective for presenting a claim that is facially insufficient and/or not supported by the record. Strickland v. Washington, supra.

Defendant next alleges that counsel was ineffective in that he failed to make the jury aware of defendant’s bizarre behavior, his personal problems and his upbringing and alleges that counsel failed to present evidence that he was beaten with palmetto fronds and other incidents in his life. It is alleged that counsel failed to present mental health mitigation or any mitigation. The record reflects that all of this evidence was presented to the jury. Defendant counsel called seven (7) mental health experts, Dr. Fisher (RST 2502-2600), Dr. Corwin (RST 2681-2707), Dr. Miller (RST 2732-2807), Dr. Carbonell (RST 2840-2920), Dr. McClain (RST 2937-3007), Dr. Toomer (RST 3020-3 1 OO), Dr. Rothenberg (RST 3 137-3249). In fact, the Supreme Court discussed the testimony in its opinions setting forth the material facts presented to the lower Court.

Numerous witnesses testified on Knight’s behalf. They presented testimony that Knight, the second oldest of nine children, came from a family with a history of mental illness and neurological problems. Knight’s sisters Mary Ann, Doris an Edna, as well as Deputy Patrick Duval, detailed the poverty, hunger and brutal beatings Knight had sustained during his childhood in Fort Pierce. Knight’s father was an alcoholic who had stopped providing for his family in 1960. Knight’s father beat him often and with brutality. The Knight children often went without food or clothing. In June 1960, Knight’s father raped Knight’s sister Mary Ann. Knight, nine years old at the time, either witnessed his sister’s rape and tried to stop it, or was told about it by Mary Ann immediately thereafter.

Knight was first arrested at age nine for theft. When he was arrested on the same charge several months later, he was committed to the Florida School for Boys, the youngest child ever sent there. He was continually in trouble thereafter, until at age fifteen he was sent to state prison on a burglary conviction. At age nineteen, he was committed to the Northeast Florida State Hospital where he was diagnosed with drug and poison intoxication, excessive drinking, and paranoid personality.

Numerous mental health experts testified to Knight’s longstanding mental problems. Dr. Brad fisher, a forensic psychologist, opined that Knight was a chronic schizophrenic. He testified that Knight was acting under an extreme mental or emotional disturbance at the time of the murders and that his ability to appreciate the criminality of his conduct was substantially impaired. Dr. Joyce Carbonnell, a clinical psychologist, testified that Knight was a schizophrenic and that the statutory mental mitigators were manifested at the time of the murders. Dr. Thomas McLaine, a psychiatrist, testified that he evaluated Knight in 1991, concluding that he fell “somewhere between the severe personality disorder and the schizophrenic.” He also opined that at the time of the killings, Knight was under the influence of an extreme mental or emotional disturbance and that his ability to conform his conduct to the requirements of the law was “somewhat impaired all the time and [has] been for most of his 45 years.” Dr. Jethro Toomer, a psychologist, opined that the statutory mental miti-gators applied at the time of the murders. Dr. David Rottener, a clinical psychologist, testified that Knight was a chronic paranoid schizophrenic. Dr. William Kirwan, a psychiatrist, stated that Knight was argumentative, evasive, hostile, angry and that “there was some conscious exaggeration of his symptoms with a tendency to present himself as being actually ill.” Dr. Arthur Wells, a psychologist, testified that when Knight committed the murders, he was “50 percent or more out of control, had no ability to reason, to judge what he was doing.”

Knight v. State, 746 So.2d at 428-429. Consequently, having presented evidence concerning mental issues to the jury counsel cannot be deemed ineffective for failing to do so. Strickland v. Washington, supra.

Defendant next alleges that counsel was ineffective by failing to move for a change of venue due to pre-trial publicity. Defendant alleges that the news coverage reached the jury and prejudiced him. He does not assert however that there is a reasonable probability that the news coverage affected the outcome of the trial. This claim is facially insufficient as conclu-sory allegations are insufficient to state a claim for relief. Kennedy v. State, 547 So.2d at 913. Additionally, this claim is meritless as stated in Rolling v. State, 695 So.2d 278, 284 (Fla.1997).

In McCaskill v. State, 344 So.2d 1276 (Fla.1977), we set out the test for determining whether a change of venue is required because of prejudice in the proper county:

The test for determining a change of venue is whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and pre-conceived opinion that jurors could not possibly put these matter out of their minds and try the case solely on the evidence presented in the courtroom.

Id. at 1278 (citing Kelley v. State, 212

So.2d 27, 28 (Fla. 2d DCA 1968)[)]. The trial court in its discretion must determine whether a defendant has raised such a presumption of prejudice under this standard. Manning, 378 So.2d at 276. On appeal, however, the appellate court has “the duty to make an independent evaluation of the circumstances.” Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). In exercising its discretion, a trial court must make a two pronged analysis, evaluating: (1) the extent and nature of any pretrial publicity; and (2) the difficulty encountered in actually selecting a jury. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).

Of course, as the trial court properly noted in its order here, pretrial publicity is normal and expected in certain kinds of cases, like this one, and that fact standing alone will not require a change of venue. Provenzano, 497 So.2d at 1182. Rather, in evaluating the nature and effect of any pretrial publicity on the knowledge and impartiality of prospective jurors the trial court must consider numerous factors, such as: (1) the length of time that has passed from the crime to the trial and when, within this time, the publicity occurred, Oats v. State, 446 So.2d 90, 93 (Fla.1984); (2) whether the publicity consisted of straight, factual news stories or inflammatory stories, Provenzano, 497 So.2d at 1182; (3) whether the news stories consisted of the police of prosecutor’s version of the offense to the exclusion of the defendant’s version, Manning, 378 So .2d at 275; (4) the size of the community in question, Copeland v. State, 457 So.2d 1012, 1017 (Fla.1984); and (5) whether the defendant exhausted all of this peremptory challenges. Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978).

The second prong of the analysis requires the trial court to examine the extent of difficulty in actually selecting an impartial jury at voir dire. If voir dire shows that it is impossible to select jurors who will decide the case on the basis of the evidence, rather that the jurors’ extrinsic knowledge, then a change of venue is required. Copeland, 457 So.2d at 1017. The ability to seat an impartial jury in a high-profile case may be demonstrated by either a lack of extrinsic knowledge among members of the venire, or assuming such knowledge, a lack of partiality. Oats, 446 So.2d at 93. To be qualified, jurors need not be totally ignorant of the facts of the case nor do they need to be free from any preconceived notion at all:

To hold that the mere existence of any preconceived notion as to the guilt of the accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961).

Thus, if prosecutive jurors can assure the court during voir dire that they are impartial despite their extrinsic knowledge, they are qualified so serve on the jury, and a change of venue is not necessary. Davis, 461 So.2d at 69. Although such assurances are not dispositive, they support the presumption of a jury’s impartiality. Copeland, 457 So.2d at 1017. In some instances, the percentage of prospective jurors professing an extrinsic knowledge of the case or a fixed opinion has been used to determine whether pervasive community prejudice exists. However, even where a substantial number of prospective jurors admit a fixed opinion, community prejudice need not be presumed.

For instance, in Murphy the United States Supreme Court evaluated these percentages as follows:

In the present case, by contrast, 20 to 78 persons questioned were excused because they indicated an opinion as to petitioner’s guilt. This may indeed be 20 more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own. 421 U.S. at 803, 95 S.Ct. at 2037-38 (footnote omitted). Consistent with the Murphy rationale, court of this state have found in other cases, where similar percentages of prospective jurors voiced a bias during voir dire, that a change of venue was not required because the partiality of certain individual venire members did not reflect a pervasive prejudice infecting the entire community. See Provenzano; Copeland; see also Pitts v. State, 307 So.2d 473 (Fla. 1st DCA 1975). Rolling, 695 So.2d at 285-286.

Rolling, 695 So.2d at 285-286

Assuming the first prong of the test was met, the second prong was not. There was no difficulty in seating a jury. Only 34 of the 106 venire members questioned had been exposed to any news coverage. (RST 386-91, 1161-64, 1184). As there was no legal basis for a change of venue, counsel was not ineffective for failing to request one. Patton v. State, 784 So.2d 380, 389-90 (Fla.2000).

Defendant also has one sentence claiming re-sentencing counsel failed to effectively litigate the issue of jury sequestration. Conclusory allegations without more are insufficient to state a claim for relief in post conviction proceedings. Kennedy v. State, 547 So.2d at 913 (Fla.1989); Freeman v. State, 761 So.2d 1055 (Fla.2000).

Defendant next alleges counsel was ineffective for failing to recuse the trial judge who personally vouched for Dr. Miller. Judge Ramirez made the statement about Dr. Miller. Judge Sorondo presided over the re-sentencing trial. Judge Sorondo’s conversations with Dr. Miller concerned informing him why he was ordering a competency hearing. (RST 204-40, 3499). Counsel was present when Dr. Miller arrived to conduct the evaluation. Since counsel was present, there was no ex-parte communication and counsel cannot be ineffective for failing to raise this issue. Kokal v. Dugger, 718 So.2d at 143 (Fla.1998).

Defendant next alleges counsel was ineffective because of an alleged conflict of interest as he was ostensibly afraid of the defendant. Again, defendant does not identify any specific lapse during the representation of the defendant that allegedly occurred because of the alleged conflict of interest this claim is facially insufficient. Ragsdale v. State, 720 So.2d 203 (Fla.1998). Additionally, a claim of conflict of interest must be based on dual representation and not on conflicts with an attorney’s self interest. See Beets v. Collins.[Scott,] 65 F.3d 1258, 1270-71 (5th Cir.1995).

Defendant next alleges that counsel was ineffective in failing to raise appropriate objections, moving to strike, and seeking limiting instructions to prevent the admission of inadmissible testimony and evidence. Defendant alleges that the State introduced evidence that his prior attorney lifted her skirt for him without objection. Counsel did object and accordingly cannot be ineffective for failing to do so. (RST 2917-18,2986-87).

In paragraph 32 Defendant alleges that counsel failed to effectively voir dire the panel and exercise challenges, counsel exercised a peremptory challenge to Rivero Saiz and failed to renew the objection before the jury was sworn, causing Defendant to loose a meritorious issue on appeal. Defendant does not state what questions counsel failed to ask the jury panel or which questions counsel asked and should not have asked. This claim is legally insufficient. Ragsdale v. State, supra.

Defendant next alleges that counsel never specifically objected to Detective Smith testifying as to the contents of the pilot’s statement, causing the loss of the issue on appeal. Defendant did object to Detective Smith testifying about the statements of the other witnesses. (RST 2352-53, 2363-64, 2386-88). Again, counsel’s allegations are conclusory and failed to allege the actual prejudice suffered by the Defendant inasmuch as the Supreme Court addressed the majority of Detective Smith’s hearsay testimony and found that the Court did not abuse its discretion. Knight v. State, 746 So.2d at 430. This claim is legally insufficient. Ragsdale v. State, supra.

In paragraph 33 Defendant alleges many things in brevity. In addition to the allegation as to Detective Smith he alleges that counsel failed to object to the prosecutor’s comments on future dangerousness, as noted, the Florida Supreme Court concluded that the State did not impermissi-bly inject Knight’s future dangerousness as an unlawful non-statutory aggravating circumstance sufficiently to constitute fundamental error. Knight v. State, 746 So.2d 423, 431, FN10.

Defendant also alleges counsel was ineffective for opening the door on rebuttal for Dr. Miller’s testimony. Defendant does not allege specifically how counsel did this, how it prejudicially affected him, or what Dr. Miller’s harmful testimony was. This claim along with the following one that re-sentencing counsel also failed to object to improper comments and questions posed to defense witnesses are not alleged with enough specificity but are conclusory and are insufficient to support an evidentiary heaping. Kennedy v. State, 547 So.2d at 913.

Defense counsel next alleges that at re-sentencing counsel failed to object to improper and questions poised to defense experts by the State and irrelevant and inflammatory comments and arguments resulting in prejudice to Mr. Mohammed. This claim is insufficient in that the Supreme Court in its opinion indicated that even if the issue was properly preserved, the Court would still find no error. Knight v. State, 746 So.2d at 433.

As to the claim that counsel failed to object the State discussed the fact that Dr. Fisher was hired by CCR, the record shows that defense counsel did object. (RST 2541-44).

Defendant next alleges that counsel was ineffective for failing to seek an instruction on merger but defendant based on all the aggravators that were found by the jury, fails to allege how the he failure to give the merging instruction undermined the liability of the jury sentencing recommendation. Consequently, this conclusory allegation is insufficient to warrant an eviden-tiary hearing. Ragsdale v. State, supra.

Defendant next alleges that counsel was ineffective in failing to challenge the use of the Bradford County case. This claim is withqut merit as the conviction was valid and counsel cannot be ineffective for failing to challenge a valid conviction, as noted often in this Order. Kokal v. Dugger, 718 So.2d at 143.

Defendant further in a similar light again alleges counsel was ineffective for failing to present evidence about his psychological state at the time of the Bradford County murder. This evidence was presented at re-sentencing RST 2233-2301, 2555-56, 2874-78, 3387-3402. All other remaining allegations in this claim that have not specifically been addressed are conclusory in nature and fail to specifically plead any prejudice sufficient to warrant an,evidentiary hearing. Kennedy v. State, 547 So.2d at 913.

CLAIM IV

MR. MUHAMMAD WAS DENIED HIS RIGHTS UNDER AKE V. OKLAHOMA AT HIS RE-SENTENCING. WHEN COUNSEL FAILED TO OBTAIN AN ADEQUATE MENTAL HEALTH EVALUATION AND FAILED TO PROVIDE THE NECESSARY BACKGROUND INFORMATION TO THE MENTAL HEALTH CONSULTANTS, ALL IN VIOLA- ' TION OF MR. MUHAMMAD’S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATE CONSTITUTION, AS WELL AS HIS RIGHT UNDER THE FIFTH, SIXTH AND EIGHT AMENDMENTS.

Defendant alleges that the mental health experts were not provided with necessary background information. Defendant does not allege what necessary background information was not provided to what expert. As such, the claim is facially insufficient and Defendant is not entitled to an eviden-tiary hearing. Kennedy v. State, 547 So.2d at 913.

Defendant also fails to allege that the opinion ‘of the experts would change if he/she had the background information. There is no prejudice if the opinion would not change. Oats v. Dugger, 638 So.2d 20 (Fla.1994). If the provision of background information would not change an experts opinion, counsel cannot be ineffective in failing to provide the information. Breedlove v. State, 692 So.2d 874 (Fla.1997).

If these allegations were sufficiently alleged, the allegations would still be refuted by the record. Dr. Fisher testified that he had been provided with 6 full boxes of background materials. (RST 2511-13). Dr. Kirwan testified that he reviewed the report of Defendant’s hospitalization. (RST 2749-52). Dr. Carbonell stated that she reviewed voluminous records. (RST 2848) Dr. McClane stated that he reviewed documents. (RST 2949-51) Dr. Toomer stated that he reviewed numerous documents. (RST 3038-39).

Defendant again alleges that the jury did know about his bizarre behavior, drug use, devastating abandonment by his wife, at he was beaten with palmetto fronds, Mary Ann’s rape, and other abuse during his childhood. As noted in Claim III, this is clearly refuted by the record, as the Florida Supreme Court notes all this in it’s opinion. Knight, 746 So.2d at 428-29.

CLAIM V

FLORIDA’S SENTENCING PROCEDURE REQUIRING ONLY A BARE MAJORITY OF JURORS TO RECOMMEND DEATH VIOLATES 921.141, FLORIDA STATUTES, ARTICLE 1, SECTION 17 OF THE FLORIDA CONSTITUTION AND AMENDMENTS SIXTH, EIGHTH, AND FOURTEENTH OF THE UNITED STATES CONSTITUTION. MR MUHAMMAD’S COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE.

Defendant in this claim alleges that anything less than a unanimous vote for death by the jury violates the dictates of Apprendi v. New Jersey, [530 U.S. 466,] 120 [S.]Ct. 2348[, 147 L.Ed.2d 435] (2000).

This claim is lacking in merit as no State has extended the holding in Apprendi v. New Jersey, supra, to capital sentencing schemes and the plain language of Appren-di indicates that it is not intended to apply to capital schemes. Mills v. Moore, 786 So.2d 532, 536-537 (Fla.2001). Moreover, couching the Aprendi[Apprendi] claim in light of the Ring v. Arizona decision [536 U.S. 584,] 122 Sup.Ct. 2428[, 153 L.Ed.2d 556] (2002) is equally unavailing. The Florida Supreme Court has recently addressed the issue of the applicability of Ring v. Arizona to Florida sentencing scheme and has found that the Florida scheme continues to meet constitutional muster. Bottoson v. Moore, [833 So.2d 693,] 27 Fla. L. Weekly S891 (Fla.2002); King v. Moore, 831 So.2d 143 (Fla.2002). It is unfathomable to believe that the Unites States Supreme Court would have lifted the stays of execution imposed pending the Ring decision thereby allowing the execution of King and Bottoson if the U.S. Supreme Court had determined that Ring invalidated the death sentences imposed in those cases and/or the statutory scheme being used in Florida. Additionally, the U.S. Supreme Court refused to intercede and allowed the execution of King by denying certiorari in connection with the then pending active death warrant within the last several months. King v. Moore, [537 U.S. 1069,] 123 S.Ct. 662[, 154 L.Ed.2d 563] (2002) (certdenied). Consequently, counsel cannot be ineffective for failing to raise a non-meritorious issue and accordingly this claim is denied without eviden-tiary hearing.

CLAIM VI

THE STATE’S USE OF MISLEADING TESTIMONY AND IMPROPER ARGUMENT AND FAILURE TO DISCLOSE MATERIAL EXCULPATORY INFORMATION TO MR. MUHAMMAD VIOLATED BRADY V. MARYLAND, U.S. V. GIGLIO AND THE CONSTITUTIONAL RIGHTS OF MR. MUHAMMAD UNDER THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS. MR. MU-HÁMMAD’S COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO THE IMPROPER CONDUCT BY THE STATE AND RENDERED INEFFECTIVE BY THE STATE’S ACTIONS. MR. MUHAMMAD WAS DENIED A PROPER ADVERSARIAL TESTING.

Defendant alleges that the State failed to disclose exculpatory evidence that was relevant to his state of mind during the Burke offense. (Bradford County). This issue was addressed by the Florida Supreme Court in Muhammad v. State, 603 So.2d 488, 489 (Fla.1992), when the Court reminded the issue to the trial Court for an evidentiary hearing. A defendant cannot show a Brady violation has occurred if the defendant knew of the existence of the evidence or in fact had the evidence. Maharaj v. State, 778 So.2d 944, 954 (Fla.2000). Quoting Occhicone v. State, 768 So.2d 1037, 1042 (Fla.2000). Since this issue, had been remanded for an evidentia-ry hearing, defendant cannot now claim the State withheld information concerning his state of mind and moreover, this information was available to the defendant pri- or to the re-sentencing.

The defendant also alleges that the State failed to disclose evidence that the defendant was abandoned by his wife shortly before the offense. Defendant certainly should have known of the existence of this evidence and such alleged failure to disclose by the State, assuming said evidence was exculpatory or impeachment value, is not a Brady violation.

The defendant also asserts that the State did not disclose information that the defendant was aware that the police were pursuing him. Again, the defendant himself is in a far better position than the State to have knowledge whether the defendant himself was aware of the police pursuit. The State did disclose evidence regarding the police pursuit. Terry Nelson of the FBI did testify regarding the surveillance of the defendant and his car. (RST 2033-2088). Detective Smith also testified following his review of the prior testimony and police reports (RST 3550-3558). The evidence claimed by the defendant having been disclosed or otherwise known or available to him, no Brady violation has occurred. Accordingly, this claim is denied without evidentiary hearing.

CLAIM VII

THE PROSECUTOR’S INFLAMMATORY AND IMPROPER COMMENTS AND ARGUMENTS RENDERED MR. MUHAMMAD’S DEATH SENTENCE FUNDAMENTALLY UNRELIABLE IN VIOLATION OF THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO OBJECT, THEREBY DENYING MR. MUHAMMAD HIS RIGHTS UNDER THE SIXTH AMENDMENT AND HIS RIGHT TO A RELIABLE DIRECT APPEAL.

In this claim, the defendant alleges that prosecutors urged consideration of improper matters, misstated the law, and injected emotion into the proceedings without objection of the trial counsel. The Florida Supreme Court noted in its opinion that counsel failed to object to these comments. Knight v. State, 746 So.2d at 433. The defendant in his motion having noted that counsel failed to object has now couched his arguments in terms of ineffective assistance of counsel for failure to object. The defendant in his motion claims that the resulting prejudice is that counsel was ineffective in that Mr. Muhammad was barred from having the issue reviewed on direct appeal. The Florida Supreme Court, however, in the next paragraph stated:

Even if this issue was properly preserved, we still would find no error. Although one of the cited prosecutor’s comments regarding the value of Knight’s and victim’s lives was clearly improper, see Urbin, 714 So.2d at 420-21, we conclude this isolated instance of misconduct was not egregious enough to warrant voiding of the entire proceeding.

Knight v. State, 746 So.2d at 433.

Defendant in his motion concedes and acknowledges that the Supreme Court ruled that certain comments were clearly error, however the misconduct was not enough to void the entire proceedings. Couching the claims now as ineffective assistance of counsel on the same issues to which the Supreme Court has indicated would be no error does not sufficiently plead a claim for ineffective assistance of counsel. Accordingly, this claim is denied without an evidentiary hearing.

CLAIM VIII

MR. MUHAMMAD’S EIGHTH AMENDMENT RIGHTS WERE VIOLATED BY THE SENTENCING COURT’S REFUSAL TO FIND AND WEIGH THE MITIGATING CIRCUMSTANCES SET OUT IN THE RECORD. THE RESENTENCING COURT FAILED TO RENDER CONSTITUTIONALLY MANDATED INDIVIDUALIZED SENTENCING REQUIRED.

Defendant in this claim alleges that the sentencing court merely summed up the non-statutory mitigating factors into three generalized areas and failed to consider the various statutory and non-statutory mitigation presented. All these claims generally should be raised on direct appeal and are procedurally barred, Roberts v. State, 568 So.2d 1255, 1257-1258 (Fla.1990). A review of the Supreme Court’s opinion indicates that the issue of the trial court’s review of proffered mitigation and aggravators was addressed by the Supreme Court. In fact, the Supreme Court noted:

The trial judge’s lengthy and detailed sentencing order, replete with citations to the record and case law, is a comprehensive evaluation of all salient weighing factors. The trial specified the sometimes conflicting evidence presented, analyzed the evidentiary basis of the proposed aggravators, evaluated the proffer mitigators and weighed those he found established. He further assessed the credibility of the expert witnesses, assigned weight to the expert opinions, and ruled accordingly. Consequently, Knight is hard pressed to show that the trial court erred in carrying out its responsibility to carefully consider each of the relevant aggravators and mitigators and assign proportion and weight to each.

Knight v. State, 746 So.2d at 435.

Additionally, the defendant never pleads or states what non-statutory mitigating circumstances the trial court failed to consider. This claim is facially insufficient. Ragsdale v. State, 720 So.2d 203, 207 (Fla.1998). Accordingly, this claim is denied without evidentiary hearing.

CLAIM IX

THE INTRODUCTION OF NON-STATUTORY AGGRAVATING FACTORS SO PERVERTED THE SENTENCING PHASE OF MR. MUHAMMAD’S TRIAL THAT IT RESULTED IN THE ARBITRARY AND CAPRICIOUS IMPOSITION OF THE DEATH PENALTY, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.

The defendant alleges that the State improperly presented and argued to the jury non-statutory aggravators. The defendant raised these issues on direct appeal and the Florida Supreme Court indicated that there is no such thing as a non-statutory aggravating factor in Florida, and the Court found that the allegations raised did not present fundamental error. In so doing the Court stated

Although the comment approaches the border of impropriety, and was probably subject to a valid objection, we conclude that the State did not impermissibly inject Knight’s ‘future dangerousness’ into the proceeding as a non-lawful, non-statutory aggravating circumstance sufficiently to constitute fundamental error.

Knight v. State, 746 So.2d at 43-l[431], n. 10.

As these issues were raised on appeal and having been addressed by the Supreme Court, they are procedurally barred. Cherry v. State, 659 So.2d 1069 (Fla.1995). Accordingly, this claim is denied without an evidentiary hearing.

CLAIM X

MR. MUHAMMAD’S SENTENCING JURY WAS IMPROPERLY INSTRUCTED ON AGGRAVATING FACTORS DUE TO THE VAGUENESS OF INSTRUCTIONS AND THE FACT THAT THE AGGRAVATING FACTORS DID NOT APPLY IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.

In this claim, defendant alleges that the instructions and the aggravators were incorrectly given or applied. These arguments concerning jury instructions on all the aggravators, the lack of evidence supporting same, the improper giving of certain instructions, prior violent felony conviction as to the Bradford County case, and the finding of HAC, were all raised on appeal and except for the HAC aggravator, were rejected by the Supreme Court in its opinion. Knight v. State, 746 So.2d at 434. Moreover, while the Supreme Court agreed on direct appeal that the finding of the HAC aggravator was not supported by the record, the Court then found the error to be harmless in view of the finding of five (5) other valid aggrava-tors. Knight v. State, 746 So.2d at 435-436.

The defendant next alleges that because the jury was instructed on an inapplicable factor, there was an unlawful weighing, an extra thumb on the scale so to speak, in violation of the principles stated in Sochor v. Florida, 504 U.S. 527[, 112 S.Ct. 2114], [119 L.Ed.2d 326] (1992), and Espinosa v. Florida, [505 U.S. 1079,] 112 S.Ct. 2926[, 120 L.Ed.2d 854] (1992). The Florida Supreme Court subsequent to these cases addressed the issue a proper jury instruction given on HAC, even if HAC could not have existed as a matter of law in Johnson v. Singletary, 612 So.2d 575 (Fla.1993).

In Espinosa the Supreme Court held invalid a standard jury instruction on the aggravating factor of heinous, atrocious, or cruel. The improper instruction had defined the factor as “especially wicked, evil, atrocious or cruel.” Espinosa, 505 U.S. at 1080, 112 S.Ct. at 2927. Thus, under Sochor and Espinosa, an error would exist if the jury was instructed improperly on the heinous, atrocious or cruel factor, whether or not the trial court in its written findings found the same factor to be present. Conversely, no error is present if the jury was properly instructed, even though the heinous, atrocious, or cruel factor could not have existed as a matter of law.

Johnson, 612 So.2d at 576-577.

The defendant next alleges that the sentencing court erred in allowing Sidney and Lillian Gans’ contemporary deaths to serve as aggravating factors for one another. This issue was raised on appeal and rejected by the Supreme Court. Knight v. State, 746 So.2d at 434. The defendant also alleges that the court erred in allowing the Bradford County case to be used as aggravation. That conviction is not an invalid conviction and this issue has been previously addressed in this order as being meritless.

The defendant next alleges the instruction on pecuniary gain is unconstitutionally vague. This claim is meritless in that financial gain does not have to be the . sole motive for the pecuniary gain aggravator to apply. Pecuniary gain is not inconsistent with the finding of seeking to avoid arrest. Card v. State, 803 So.2d 613, 626, 628 & n. 16 (Fla.2001).

Additionally, the Supreme Court noted in its opinion that the evidence outlined above supports the judge’s findings that the murders were committed for pecuniary gain, especially the fact that even in flight, Knight still had the presence of mind to retain the paper bag containing $50,000.00. Knight v. State, 746 So.2d at 435.

Defendant next alleges that the aggravator of kidnapping was not supported by the evidence and not applicable in this case. Defendant alleges that it is a doubling of the avoiding arrest aggravator. As such, defendant alleges that counsel was ineffective for failing to object. In the Supreme Court’s opinion discussing aggra-vators, the Supreme Court indicated that there could be little doubt that the murders were committed in the commission of a kidnapping. Additionally, the court found that there was sufficient evidence including circumstantial evidence to support the trial court’s finding of the avoiding arrest aggravator. Knight v. State, 746 So.2d 423, 434, 435 (Fla.1990). It is clear that, “the State need not charge and convict of felony murder or any felony in order for the court to find that the aggravating factor of murder committed during the course of a felony was established.” Occhicone v. State, 570 So.2d 902, 905 (Fla.1990).

The defendant next alleges that it was error not to have a sentencing verdict form to indicate whether the jury found a kidnapping beyond a reasonable doubt in light of Apprendi, supra. Issues regarding verdict forms and necessary vote counts could have and should have been raised on appeal and are procedurally barred. Francis v. Barton[, 581 So.2d 583 (Fla.1991)], supra.

Accordingly, this claim is denied without evidentiary hearing.

CLAIM XI

MR. MUHAMMAD’S SENTENCING JURY WAS MISLED BY COMMENTS, QUESTIONS, AND INSTRUCTIONS THAT UNCONSTITUTIONALLY AND INACCURATELY DILUTED THE JURY’S SENSE OF RESPONSIBILITY TOWARDS SENTENCING IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

The defendant alleges that the jury was not properly instructed as to its role in the sentencing process and that counsel was ineffective for failing to object to these comments. Claims of error based on Caldwell v. Mississippi, 472 U.S. 320[, 105 S.Ct. 2633, 86 L.Ed.2d 231] (1985) are procedurally barred in post conviction motions. Oats v. Dugger, 638 So.2d 20, 21 & n. 1 (Fla.1994).

The defendant argued that the jury was told they recommended a sentence to the judge, that their recommendation was advisory and that the judge alone had the responsibility to determine the sentence to be imposed for first degree murder and as such defense position is that a Caldwell error was committed and that the jury