         Supreme Court of Florida
                                 ____________

                                 No. SC15-1659
                                 ____________

                      DAVID BEASHER SNELGROVE,
                               Appellant,

                                       vs.

                            STATE OF FLORIDA,
                                 Appellee.

                                 ____________

                                 No. SC16-124
                                 ____________

                      DAVID BEASHER SNELGROVE,
                               Petitioner,

                                       vs.

                            JULIE L. JONES, etc.,
                                Respondent.

                                 [May 11, 2017]

PER CURIAM.

      David Beasher Snelgrove appeals an order of the circuit court denying his

postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.851
and simultaneously petitions this Court for a writ of habeas corpus.1 For the

reasons that follow, we affirm the denial of the postconviction motion and deny the

petition for writ of habeas corpus, but vacate the two death sentences and order that

Snelgrove receive a new penalty phase proceeding based on the United States

Supreme Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and this

Court’s decision in Hurst v. State, 202 So. 3d 40 (Fla. 2016), petition for cert. filed,

No. 16-998 (U.S. Feb. 13, 2017).

                                I. BACKGROUND

      Following a jury trial in May 2002, Snelgrove was convicted and sentenced

to death for the June 2000 murders of Glyn and Vivian Fowler. In Snelgrove’s

initial direct appeal, this Court described the case as follows:

             On Sunday, June 25, 2000, Glyn and Vivian Fowler were found
      dead in their home. The elderly couple had been brutally beaten and
      stabbed to death, as evidenced by multiple fractures and stab wounds
      spread throughout their bodies. Ultimately, Vivian died from a stab
      wound to the heart, and Glyn died of a brain injury caused by blunt
      force trauma to the head.
             Evidence at the crime scene and in the surrounding area linked
      David Snelgrove, the twenty-seven-year-old nephew of one of the
      Fowlers’ neighbors, to the murder. Snelgrove had recently moved in
      with his aunt and his cousin, Jeff McCrae, after being expelled from a
      drug rehabilitation program. Blood droplets matching Snelgrove’s
      DNA were found throughout the house, as were bloody fingerprints
      and footprints matching Snelgrove’s. A trained bloodhound followed
      a scent from the blood on the Fowlers’ broken window to Snelgrove,



      1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.


                                         -2-
      and the police recovered a knife in the woods next to the Snelgrove
      home with blood matching Snelgrove’s DNA.
              ....
             Defense counsel . . . offered a defense to the State’s case. It
      admitted to the burglary, but denied the murders. Specifically, the
      defense claimed that Snelgrove did, indeed, enter the Fowlers’ home
      through the broken window, but only after the Fowlers had been killed
      by someone else. In the process of coming through the window,
      Snelgrove cut his hand. . . .
             The jury . . . found Snelgrove guilty of two counts of first-
      degree murder, one count of robbery with a deadly weapon, and one
      count of burglary of a dwelling with battery. On the two counts of
      first-degree murder, the jury found Snelgrove guilty of both
      premeditated and felony murder. In the penalty phase, the jury
      recommended the sentence of death by a vote of seven to five.
      However, this recommendation did not individually address the two
      capital murder convictions for which Snelgrove was to be
      sentenced. . . .
             The circuit court sentenced Snelgrove to death on both capital
      murder convictions . . . .

Snelgrove v. State, 921 So. 2d 560, 562-65 (Fla. 2005) (footnote omitted).

      On appeal, this Court affirmed Snelgrove’s convictions but reversed his

death sentences, holding that they were invalid because “the jury returned only a

single, undifferentiated advisory sentence.” Id. at 566. Accordingly, the case was

remanded for a new penalty phase. Id.

      The second penalty phase began in January 2008. On the first day of jury

selection, Snelgrove moved for a continuance for additional time to “test for




                                        -3-
mental retardation.”2 Snelgrove v. State, 107 So. 3d 242, 247 (Fla. 2012). This

Court explained the circumstances as follows:

      According to defense counsel, on the night before jury selection, Dr.
      Robert M. Berland, a forensic psychologist who examined Snelgrove
      and testified at the first penalty phase, notified defense counsel of his
      recommendation to again test Snelgrove to determine whether
      Snelgrove was mentally retarded.[FN2] As Dr. Berland later explained,
      his recommendation was based on his understanding of the “Flynn
      Effect,” which describes the tendency of revisions to the Weshler [sic]
      Adult Intelligence Scale (WAIS) test to produce lower scores for the
      same person than previous versions. Dr. Berland testified that,
      because Snelgrove’s previous score on the WAIS-R test was
      “borderline,” the WAIS-III test might produce a score in the retarded
      range. The trial court denied the motion to continue but allowed
      Snelgrove to proceed with the desired testing.

            [FN2] In preparation for his first trial, Snelgrove
            completed the revised Weshler [sic] Adult Intelligence
            Scale (WAIS-R) test and scored a 78, within the
            “borderline range of intellectual functioning” and above
            the retarded range.

             Following the second day of jury selection, Dr. Stephen
      Bloomfield, another forensic psychologist, conducted the requested
      WAIS-III test. Snelgrove indicated that his IQ score on the WAIS-III
      test was 70, a score consistent with “mild mental retardation.”
      Therefore, on the third day of jury selection, defense counsel renewed
      the motion for continuance, arguing that the WAIS-III results merited
      additional testing and that the trial court should conduct a hearing to
      determine mental retardation pursuant to Florida Rule of Criminal
      Procedure 3.203. The trial court denied the renewed motion after



       2. Because the terms “mental retardation” or “mentally retarded” and
“intellectual disability” or “intellectually disabled” have the same meaning, they
will be used interchangeably throughout this opinion. See § 921.137(9), Fla. Stat.
(2016).


                                        -4-
      noting its belief that a delay was unnecessary because a determination
      on retardation could be made any time prior to sentencing.

Id. at 247-48.

      After Snelgrove’s IQ was retested by Dr. Bloomfield, the parties presented

the following evidence to the penalty phase jury:

      [T]he prosecution presented extensive evidence detailing the scene of
      the crime, injuries to the victims, and incriminating injuries to
      Snelgrove. The prosecution’s evidence included expert testimony
      from forensic pathologist Dr. Thomas Beaver, who testified that both
      victims bore defensive wounds and had been severely beaten,
      strangled, and stabbed in the context of a prolonged struggle involving
      significant pain and suffering. Dr. Beaver further testified that, unlike
      Mrs. Fowler, who lived through all inflicted injuries, Mr. Fowler was
      alive only through the beating and strangling and died just prior to the
      stabbings. There was no sign of sexual assault.
              Snelgrove presented testimony from corrections officers, family
      members, and experts. Dr. Drew Edwards, an expert in cocaine
      addiction, testified that cocaine impairs one’s judgment, decision-
      making, and behavioral control. Dr. Edwards also provided his
      opinion that Snelgrove was addicted to cocaine at the time of the
      murders, and he further expressed his opinion on cross-examination
      that Snelgrove would not have committed the crime if he was not
      intoxicated. Dr. Joseph Wu, an expert in PET scanning, testified that
      Snelgrove’s temporal lobe and subcortical areas were asymmetrical,
      abnormalities “consistent with a history of possible trauma” and
      producing a “disproportionate response to an insult or provocation or
      threat.” Dr. Wu also testified that cocaine can exacerbate abnormal
      functioning of the brain. Dr. Berland testified that Snelgrove
      exhibited signs of psychotic disturbance, specifically, depression and
      delusional paranoid thinking. Based on that result, Dr. Berland
      testified that Snelgrove was acting under an extreme mental or
      emotional disturbance and was substantially impaired in his capacity
      to conform his conduct to the requirements of the law (but not in his
      capacity to appreciate the criminality of his conduct).[FN3] Snelgrove
      presented his educational records to Dr. Berland, who was questioned
      regarding Snelgrove’s placement in special education classes (ESE) as

                                        -5-
      a child. And Dr. Bloomfield testified that he administered the WAIS-
      III test and that Snelgrove scored a 70, suggestive of mild mental
      retardation. However, Dr. Bloomfield testified that further testing was
      necessary for a diagnosis of retardation.

             [FN3] On cross-examination, Dr. Berland clarified that
             he did not seek any information from Snelgrove or law
             enforcement regarding the crime and did not have the
             information necessary to form a causal link between
             Snelgrove’s psychosis and the crime.

             In rebuttal, the prosecution presented testimony from Dr.
      Lawrence Holder, a radiologist and nuclear medicine physician, who
      reviewed PET scan video and images prepared and analyzed by Dr.
      Wu. Dr. Holder testified that he observed no abnormality in the PET
      scan and instead found that Snelgrove’s brain operated normally. The
      prosecution also played video of Snelgrove’s statement to law
      enforcement and presented testimony from the officer who
      interrogated Snelgrove. The interrogating officer testified that
      Snelgrove appeared sober and aware throughout their contact.

Id. at 248. Based on this evidence, “[t]he jury recommended, by separate votes of

8-4 and 8-4, death sentences for each murder.” Id. at 249.

      Following the penalty phase, Snelgrove was granted a 15-month continuance

of the Spencer3 hearing to conduct further testing to determine whether he was

intellectually disabled. Id. After the testing was complete, Snelgrove filed a

motion to prohibit the death penalty due to an alleged intellectual disability, which

was taken up at the Spencer hearing in June 2009. Id. This Court summarized the

evidence from that hearing as follows:



      3. Spencer v. State, 615 So. 2d 688 (Fla. 1993).


                                         -6-
             At the Spencer hearing, Snelgrove presented evidence regarding
      possible mental retardation. His family members reiterated testimony
      given at the penalty phase that Snelgrove was twice hospitalized as a
      child, once when he fell out of a shopping cart and once when he
      overdosed on a relative’s prescription medication. Family members
      offered their observations that Snelgrove was a hyperactive child and
      mentally “slow,” and an older cousin recalled that Snelgrove grew
      depressed after his parents died. Snelgrove also presented testimony
      from Dr. Bloomfield, who added to his penalty-phase testimony by
      detailing his findings that Snelgrove had a significant deficit in
      adaptive functioning and that the adaptive deficit “likely” manifested
      prior to age 18. Dr. Bloomfield testified that he inferred both findings
      from the fact that, when Snelgrove was a child, he was classified by
      the public school system as “emotionally handicapped” (EMO) and,
      as a result of the classification, placed in exceptional student
      education (ESE) classes. Dr. Bloomfield could not locate any records
      to explain Snelgrove’s ESE/EMO designation. However, he testified
      that such a designation—made before Snelgrove was 18—would have
      resulted from “some combination” of observable “maladaptive
      behavior” which serves to define an emotional handicap and could be
      roughly transferred to a determination that Snelgrove had deficient
      adaptive functioning. Dr. Bloomfield clarified that he could not
      provide a definitive answer as to intellectual functioning prior to age
      18 because he could not find an IQ score on Snelgrove prior to age 18.
             In response to Dr. Bloomfield’s testimony, the prosecution
      presented expert testimony from Dr. Gregory Prichard, a forensic
      psychologist who evaluated Snelgrove for mental retardation and
      reviewed the same documentation used by Dr. Bloomfield. Dr.
      Prichard administered the Stanford-Binet 5 test and determined that
      Snelgrove’s full-scale IQ was 75, above the retarded range. [Dr.]
      Prichard further testified that, while Snelgrove’s ESE/EMO
      designation likely indicated behavioral problems beginning prior to
      age 18, it also meant that the school system had likely ruled out the
      possibility of intellectual problems first by testing Snelgrove’s IQ and
      declining to classify him as mentally retarded. Placing a mentally
      retarded child in EMO classes, he said, would be illegal. Dr. Prichard
      did not see any evidence of intellectual limitations in his four-hour
      interview with Snelgrove or in Snelgrove’s records.

Id.

                                       -7-
       After the Spencer hearing, but before sentencing, the trial court issued an

order denying Snelgrove’s claim of intellectual disability.

       In its order, the trial court noted the conflict among Drs. Bloomfield
       (IQ of 70) and Prichard (IQ of 75) regarding Snelgrove’s intellectual
       functioning. It further found that Snelgrove was not deficient in
       adaptive functioning, citing evidence that Snelgrove had no trouble
       communicating, maintaining relationships, keeping full-time
       employment, and caring for himself. Finally, the trial court
       determined that the record conclusively refuted manifestation of the
       condition prior to the age of 18 because Snelgrove’s placement in
       ESE/EMO classes did not constitute evidence of mental retardation.

Id. at 249-50. Thereafter, the trial court followed the jury’s recommendation and

imposed two death sentences for the murders of Glyn and Vivian Fowler.4 Id. at

250.



       4. The trial court found five aggravators applicable to each of the murders:

       (1) the murder was committed when Snelgrove was on community
       control for a felony offense of tampering with physical evidence (little
       to some weight); (2) prior violent felony based on the
       contemporaneous murder (great weight); (3) the murder was
       committed during the commission of robbery and/or burglary, merged
       with pecuniary gain (significant weight); (4) the murder was
       especially heinous, atrocious, or cruel (HAC) (great weight); and (5)
       the victim was particularly vulnerable due to advanced age
       (significant weight).

Snelgrove, 107 So. 3d at 250. The trial court found one statutory mitigator—
extreme mental or emotional disturbance (significant weight)—and the following
nonstatutory mitigators:

       (1) Snelgrove was a hard worker (some weight); (2) Snelgrove was a
       loving and caring person who was loved by his family (some weight);
       (3) Snelgrove had a long history of drug addiction (significant

                                         -8-
      In December 2009, Snelgrove appealed the result of his second penalty

phase, raising seven issues.5 As to the denial of his claim of intellectual disability,

this Court held that the trial court’s determination that Snelgrove was not

intellectually disabled was supported by competent, substantial evidence:

       First, competent, substantial evidence supports the conclusion that
      Snelgrove failed to establish subaverage general intellectual
      functioning. We have found support for a finding against subaverage
      general intellectual functioning where the IQ scores did not
      definitively suggest mental retardation. See Phillips v. State, 984 So.
      2d 503, 511 (Fla. 2008) (“[T]he majority of Phillips’s IQ scores

      weight); (4) Snelgrove was greatly impacted by the death of his
      parents (some weight); (5) Snelgrove is a model inmate and has
      adjusted well to a structured environment (little weight); (6)
      Snelgrove suffers from some abnormal brain functioning and has a
      somewhat limited level of intelligence (some weight).

Id.

      5. Snelgrove raised the following issues on direct appeal:
      (A) whether the trial court erred in denying Snelgrove’s motion for
      continuance before the penalty phase to further explore the possibility
      that Snelgrove was retarded; (B) whether the trial court erred in
      finding that Snelgrove was not mentally retarded; (C) whether the trial
      court erred in admitting video of Snelgrove’s statement to law
      enforcement; (D) whether the trial court erred in instructing the jury
      on its advisory role; (E) whether the trial court erred in allowing the
      prosecution to cross-examine mental health experts Dr. Berland and
      Dr. Edwards regarding their knowledge of the facts surrounding the
      murders; (F) whether the prosecution’s comments and the trial court’s
      instructions regarding victim impact evidence together constituted
      reversible error; and (G) whether the trial court erred in considering
      and weighing several aggravators and mitigators.

Id.


                                         -9-
exceed that required under section 921.137. Moreover, the court
questioned the validity of the only IQ score falling within the statutory
range for mental retardation.”); Jones v. State, 966 So. 2d 319, 329
(Fla. 2007) (“Jones’s scores on the WAIS were as follows: 72 (1991),
70 (1993), 67 (1999), 72 (2003), and 75 (2005). In other words, the
scores did not indicate ‘significantly subaverage general intellectual
functioning.’”). Snelgrove scored a 78 on the WAIS-R, a 70 on the
WAIS-III, and a 75 on the Stanford-Binet 5. The trial court found the
last score of 75 to be more credible than the score of 70, given
Snelgrove’s childhood placement in “emotionally handicapped”
classes instead of “educable mentally handicapped” or “trainable
mentally handicapped” classes. See Burns v. State, 944 So. 2d 234,
247 (Fla. 2006) (finding competent, substantial evidence in spite of
one IQ score of 69 because the more credible expert scored Burns’ IQ
at 74).
        Second, competent, substantial evidence supports the
conclusion that Snelgrove failed to demonstrate deficits in adaptive
behavior. Section 921.137(1), Florida Statutes, defines “adaptive
behavior” as “the effectiveness or degree with which an individual
meets the standards of personal independence and social responsibility
expected of his or her age, cultural group, and community.” Along
these lines, the prosecution’s expert testified that Snelgrove was able
to use abstractions in communication and had no trouble
communicating or comprehending questions. Snelgrove’s family
testified that he maintained significant family relationships, especially
with his mother, and had no trouble maintaining employment in
businesses inside and outside of family ownership. Snelgrove had a
driver’s license, drove company vehicles, and babysat for the family.
Additionally, while in prison, Snelgrove lodged several complaints,
sought services for basic needs, and requested items that included a
dictionary, pinochle cards, and prior medical reports. In short, there
was evidence to support the finding that Snelgrove met “the standards
of personal independence and social responsibility.”
        Finally, there was competent, substantial evidence to support
the trial court’s finding regarding the age of manifestation. Though
the school records indicated academic problems beginning prior to
age 18, Snelgrove offered no evidence to explain them or his
placement in ESE/EMO classes. In the absence of records, Snelgrove
and the prosecution offered conflicting expert testimony regarding
why a child may receive such a designation.[FN8] Yet Snelgrove’s

                                 - 10 -
      expert limited his discussion to the manifestation of deficient adaptive
      behavior and admitted that he could not provide a definitive answer as
      to intellectual functioning prior to age 18. Based on the lack of
      information to support the claim, Snelgrove could not satisfy the third
      prong of the mental retardation statute. See Phillips, 984 So. 2d at
      512 (“As the trial court found, ‘there was no evidence [t]o support the
      Defendant’s contention that his poor grades were a result of mental
      retardation.’”); Cherry[v. State, 959 So. 2d 702, 711 (Fla. 2007)]
      (clarifying the statutory requirement by explaining that the defendant
      must establish that both “subaverage general intellectual functioning
      and deficits in adaptive behavior manifested before the age of
      eighteen”).

             [FN8] In its order rejecting the mental retardation claim,
             the trial court found the expert for the prosecution to
             offer the more credible explanation—that Snelgrove was
             likely tested and determined not to be retarded because it
             would have been illegal to place a retarded child in EMO
             classes.

Id. at 252-54 (some citations omitted). This Court also rejected the other six issues

raised by Snelgrove and affirmed the trial court’s imposition of the two death

sentences. Id. at 262.

      In September 2014, Snelgrove filed a postconviction motion pursuant to rule

3.851.6 After summarily denying several claims and holding an evidentiary


        6. The postconviction claims were: (1) trial counsel was ineffective during
the penalty phase for failing to call Christine Mack as a mitigation witness and to
testify regarding the claim of intellectual disability; (2) trial counsel was
ineffective during the penalty phase for failing to object to improper prosecutorial
comments; (3) the cumulative effect of trial counsel’s errors deprived Snelgrove of
a fair trial; (4) trial counsel was ineffective during the guilt phase for failing to
request a colloquy regarding Snelgrove’s right to testify; (5) section 921.141,
Florida Statutes (2000), violates the Eighth Amendment because it is vague and
overbroad; (6) Snelgrove’s Eighth Amendment rights will be violated if he is

                                        - 11 -
hearing on Snelgrove’s claims of ineffective assistance of trial counsel during the

penalty phase, the postconviction court denied relief. Snelgrove now appeals the

denial of his postconviction motion. He also petitions this Court for a writ of

habeas corpus.7

                       II. INTELLECTUAL DISABILITY

      Snelgrove claims that his trial counsel was ineffective during the second

penalty phase for failing to secure Christine Mack, his high school’s special

education program administrator, as a witness to establish that he has an

intellectual disability that manifested before the age of 18 and to provide

mitigating evidence of his diminished intellectual functioning. Because Snelgrove




incompetent at the time of execution; and (7) Florida’s capital sentencing statute is
unconstitutional on its face for failing to prevent the arbitrary and capricious
imposition of the death penalty and for violating the guarantee against cruel and
unusual punishment, and trial counsel was ineffective for failing to litigate these
issues.
       7. The habeas claims are: (1) appellate counsel was ineffective for not
raising on direct appeal a claim of fundamental error regarding the unavailability
of Snelgrove’s school records; (2) appellate counsel was ineffective for not raising
on direct appeal a claim of cumulative error; and (3) appellate counsel was
ineffective for failing to raise on direct appeal several constitutional challenges to
section 921.141, Florida Statutes, and Snelgrove’s death sentences, including
whether the sentences are unconstitutional under Ring v. Arizona, 536 U.S. 584
(2002).


                                        - 12 -
did not prove his trial counsel performed deficiently, thereby causing him

prejudice, we affirm the postconviction court’s denial of this claim.8

      Following the United States Supreme Court’s decision in Strickland v.

Washington, 466 U.S. 668 (1984), this Court explained that two requirements must

be met for claims of ineffective assistance of counsel to succeed:

      First, the claimant must identify particular acts or omissions of the
      lawyer that are shown to be outside the broad range of reasonably
      competent performance under prevailing professional standards.
      Second, the clear, substantial deficiency shown must further be
      demonstrated to have so affected the fairness and reliability of the
      proceeding that confidence in the outcome is undermined.

Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright,

490 So. 2d 927, 932 (Fla. 1986)).

      Regarding the deficiency requirement, “[t]here is a strong presumption that

trial counsel’s performance was not ineffective.” Id. (citing Strickland, 466 U.S. at

690). “A fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689. Regarding the

prejudice requirement, the defendant must show that “there is a reasonable



        8. We also affirm the denial of the other claims raised in Snelgrove’s
motion because he failed to demonstrate that he was entitled to postconviction
relief.


                                        - 13 -
probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Williams v. Taylor, 529 U.S. 362, 391

(2000) (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a

‘probability sufficient to undermine confidence in the outcome.’ ” Henry v. State,

948 So. 2d 609, 617 (Fla. 2006) (quoting Strickland, 466 U.S. at 694).

      Because both prongs of Strickland present mixed questions of law and fact,

this Court employs a mixed standard of review, deferring to the postconviction

court’s factual findings that are supported by competent substantial evidence, but

reviewing legal conclusions de novo. See Sochor v. State, 883 So. 2d 766, 771-72

(Fla. 2004).

      In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the United States Supreme

Court ruled that the execution of a “mentally retarded” defendant constitutes cruel

and unusual punishment and is therefore prohibited by the Eighth Amendment.

Under Florida law, claims of intellectual disability as a bar to the imposition of the

death penalty are governed by a three-prong test. Salazar v. State, 188 So. 3d 799,

811 (Fla. 2016). To establish such a claim, a defendant must demonstrate the

following: “(1) significantly subaverage general intellectual functioning; (2)

concurrent deficits in adaptive behavior; and (3) manifestation of the condition

before age eighteen.” Id.; see also § 921.137(1), Fla. Stat. (defining “intellectually

disabled” or “intellectual disability” to include these three factors). The defendant


                                         - 14 -
has the burden to prove by clear and convincing evidence that he is intellectually

disabled. Salazar, 188 So. 3d at 811-12. “If the defendant fails to prove any one of

these components, the defendant will not be found to be intellectually disabled.”

Id. at 812.

      Snelgrove did not demonstrate that his trial counsel’s performance in

preparing for the second penalty phase was deficient. It is undisputed that under

prevailing professional norms trial counsel has an “obligation to conduct a

thorough investigation of [a] defendant’s background.” Porter v. McCollum, 558

U.S. 30, 39 (2009) (quoting Williams, 529 U.S. at 396). Here, the postconviction

court’s conclusion that Snelgrove’s trial counsel conducted a sufficient

investigation is supported by the record.

      The record reflects that trial counsel conducted a thorough investigation into

Snelgrove’s background after Snelgrove scored a 70 on the WAIS-III test

administered by Dr. Bloomfield during jury selection for the second penalty phase.

At the evidentiary hearing, trial counsel testified that after being granted a year-

long continuance for the Spencer hearing he met with Snelgrove to discuss a claim

of intellectual disability. Snelgrove gave trial counsel the names of two people

who Snelgrove said knew him as a child, but trial counsel was unable to locate

them to serve as witnesses. In addition, trial counsel and his team contacted the

Miami-Dade County school district about obtaining test scores and additional


                                         - 15 -
records for Snelgrove, but no such records were available. As Snelgrove’s own

witness testified at the evidentiary hearing, some of his school records had been

destroyed pursuant to state guidelines more than a year before he committed the

murders in this case. Trial counsel cannot be faulted for not discovering records

that no longer existed at the time of his investigation. Cf. Rivera v. State, 995 So.

2d 191, 205 (Fla. 2008) (holding that trial counsel was not deficient for not

discovering evidence that did not exist until after trial).

      Trial counsel’s failure to locate Christine Mack and present her as a witness

was not deficient in light of counsel’s reasonable investigation and the evidence

presented during the penalty phase. At the jury proceeding, trial counsel called

multiple members of Snelgrove’s family as mitigation witnesses to testify about his

background, as well as four expert witnesses to discuss his psychological and

intellectual functioning. Trial counsel also entered into evidence Snelgrove’s high

school transcripts, which reflected his ESE designation and failing grades. As to

the Spencer hearing, trial counsel testified that without the benefit of a childhood

IQ score or a nonfamily lay witness, he chose to rely on the same testimony from

Snelgrove’s family and the expert witnesses to establish that Snelgrove had an

intellectual disability that manifested before the age of 18. Snelgrove failed to

demonstrate that this presentation of the evidence during the second penalty phase




                                         - 16 -
was not a sound strategic decision by his trial counsel. See Occhicone v. State,

768 So. 2d 1037, 1048 (Fla. 2000).

      Snelgrove also failed to demonstrate how trial counsel’s alleged deficient

performance caused him prejudice. As to Snelgrove’s claim that Ms. Mack’s

testimony would have established the third prong of the test for an intellectual

disability, at best, her testimony would have been cumulative of other evidence

presented at the Spencer hearing and thus would have made little, if any, difference

in the outcome. See Wong v. Belmontes, 558 U.S. 15, 22 (2009) (holding that a

defendant cannot establish the prejudice prong of Strickland with evidence that is

“merely cumulative” of evidence already presented). For example, like Dr.

Bloomfield, at the evidentiary hearing Ms. Mack pointed to Snelgrove’s

designation as emotionally handicapped and his placement in ESE classes as

evidence that he may have had subaverage intellectual functioning prior to the age

of 18. Although Ms. Mack testified that it was possible for a student to score 70 or

below on an IQ test yet still be placed in ESE/EMO classes, like Dr. Bloomfield,

she could not definitively state that this is what happened to Snelgrove. Instead,

Ms. Mack was clear in her testimony that to her knowledge Snelgrove had never

been deemed to be intellectually disabled and she did not know what his IQ score

was at the time he was a student. Because Ms. Mack’s testimony added nothing

new to the question of whether Snelgrove had an intellectual disability that


                                        - 17 -
manifested prior to the age of 18, Snelgrove failed to prove that there is a

reasonable probability the trial court would have ruled differently on his claim of

intellectual disability had Ms. Mack been called as a witness.

      Similarly, Ms. Mack’s testimony would have been cumulative of other

mitigating evidence presented to the jury during the second penalty phase.

Snelgrove’s claim that Ms. Mack would have provided “non-relative” testimony

about his “problems with learning” overlooks the fact that his high school

transcripts were entered into evidence, that Dr. Berland testified about Snelgrove’s

placement in ESE classes, and that Dr. Bloomfield testified that Snelgrove’s 2008

IQ score of 70 was suggestive of “mild mental retardation.” Ms. Mack’s testimony

about Snelgrove’s EMO/ESE designation would not have added anything new to

the evidence that was presented to the jury. Thus, Snelgrove failed to prove that

there is a reasonable probability the jury’s recommendations of death would have

been different had Ms. Mack been called as a mitigation witness. In other words,

our confidence in the outcome of the penalty phase is not undermined. See Brant

v. State, 197 So. 3d 1051, 1073-74 (Fla. 2016) (“There is no reasonable probability

that re-presenting virtually the same evidence through other [mitigation] witnesses

would have altered the outcome in any manner.” (quoting Atwater v. State, 788 So.

2d 223, 234 (Fla. 2001))).




                                        - 18 -
      Lastly, Snelgrove is not entitled to postconviction relief pursuant to the

United States Supreme Court’s decision in Hall v. Florida, 134 S. Ct. 1986 (2014).

In Hall, the Supreme Court held that the definition of significantly subaverage

general intellectual functioning establishing a strict IQ score cutoff of 70 “creates

an unacceptable risk that persons with intellectual disability will be executed, and

thus is unconstitutional.” Id. at 1990. Accordingly, the Supreme Court held that

the five-point standard error of measurement must be taken into account when

assessing the subaverage intellectual functioning prong of the test for an

intellectual disability. Id. at 2001. “[W]hen a defendant’s IQ test score falls within

the test’s acknowledged and inherent margin of error, the defendant must be able

to present additional evidence of intellectual disability, including testimony

regarding adaptive deficits.” Id. This Court has recently determined that Hall

should be applied retroactively. Walls v. State, 41 Fla. L. Weekly S466, S469 (Fla.

Oct. 20, 2016).

      Here, during the second penalty phase, Snelgrove was permitted to present

evidence of all three prongs of the test for an intellectual disability. The trial court

considered each prong in tandem in determining that Snelgrove was not

intellectually disabled; no single factor was considered dispositive. See id. at S468

(“The Hall decision requires courts to consider all prongs of the test in tandem.”).

This Court previously reviewed the trial court’s determination and concluded that


                                         - 19 -
all of its findings were supported by competent, substantial evidence. Snelgrove,

107 So. 3d at 252-53 (affirming trial court’s conclusion that Snelgrove is not

intellectually disabled). Snelgrove did not present any additional argument or

evidence on his claim of intellectual disability at the evidentiary hearing on his

postconviction motion.

      Accordingly, Snelgrove is not entitled to postconviction relief regarding his

claim of intellectual disability.

                                    III. HURST

      While Snelgrove’s appeal from the denial of his postconviction motion was

pending, the United States Supreme Court issued its decision in Hurst v. Florida, in

which it held that Florida’s capital sentencing scheme violated the Sixth

Amendment. The Supreme Court concluded that “[t]he Sixth Amendment requires

a jury, not a judge, to find each fact necessary to impose a sentence of death. A

jury’s mere recommendation is not enough.” Hurst v. Florida, 136 S. Ct. at 619.

On remand from the Supreme Court, we held that “in addition to unanimously

finding the existence of any aggravating factor, the jury must also unanimously

find that the aggravating factors are sufficient for the imposition of death and

unanimously find that the aggravating factors outweigh the mitigation before a

sentence of death may be considered by the judge.” Hurst v. State, 202 So. 3d at

54. We further held that a unanimous jury recommendation is required before a


                                        - 20 -
trial court may impose a sentence of death. Id. Finally, we determined that a Hurst

error is capable of harmless error review. Id. at 67.

      In Mosley v. State, 209 So. 3d 1248, 1283 (Fla. 2016), we held that Hurst v.

Florida and Hurst v. State apply retroactively to those postconviction defendants

whose sentences became final after the United States Supreme Court’s 2002

decision in Ring v. Arizona, 536 U.S. 584 (2002). There is no dispute that

Snelgrove’s death sentence became final during this timeframe. Therefore,

Snelgrove falls into the category of defendants to whom Hurst is applicable. In

light of the two nonunanimous jury recommendations to impose death in this case,

it cannot be said that the failure to require a unanimous recommendation was

harmless beyond a reasonable doubt. See Kopsho v. State, 209 So. 3d 568, 569-70

(Fla. 2017). We therefore vacate Snelgrove’s death sentences and remand for a

new penalty phase.

                                IV. CONCLUSION

      For the reasons stated above, we affirm the denial of Snelgrove’s rule 3.851

motion and deny the petition for writ of habeas corpus, but we vacate his death

sentences and remand for a new penalty phase.

      It is so ordered.

LABARGA, C.J., and LEWIS, and QUINCE, JJ., concur.
PARIENTE, J., concurs in part and dissents in part with an opinion.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY and LAWSON, JJ., concur.

                                        - 21 -
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

PARIENTE, J., concurring in part and dissenting in part.

      I concur that Snelgrove is entitled to relief pursuant to Hurst. Majority op. at

20-21. I dissent, however, as to the majority’s conclusion that “Snelgrove is not

entitled to postconviction relief regarding his claim of intellectual disability.”

Majority op. at 20. Instead, I would remand for a new evidentiary hearing on

Snelgrove’s possible intellectual disability in light of the fact that the first

evidentiary hearing on that matter occurred in 2009, prior to the United States

Supreme Court’s decision in Hall v. Florida, 134 S. Ct. 1986 (2014). As I

previously explained, “Hall changed the manner in which evidence of intellectual

disability must be considered.” Walls v. State, 41 Fla. L. Weekly S466, S469,

2016 WL 6137287, at *7 (Fla. Oct. 20, 2016) (Pariente, J., concurring). Courts

must now “consider all three prongs in determining an intellectual disability, as

opposed to relying on just one factor as dispositive. . . . [B]ecause these factors are

interdependent, if one of the prongs is relatively less strong, a finding of

intellectual disability may still be warranted based on the strength of the other

prongs.” Oats v. State, 181 So. 3d 457, 467-68 (Fla. 2015).

      When this Court last affirmed the trial court’s denial of Snelgrove’s

intellectual disability claim, the Court cited Cherry v. State, 959 So. 2d 702 (Fla.

2007), and the trial court relied on Nixon v. State, 2 So. 3d 137, 142 (Fla. 2009),

                                          - 22 -
which affirmed the bright-line cutoff IQ score of 70 for determining intellectual

disability as stated in Cherry. See Snelgrove v. State, 107 So. 3d 242, 252 (Fla.

2012). Hall has since “specifically disapproved of the bright-line cutoff of 70 for

IQ scores stated by this Court in Cherry,” in assessing the first prong of the test for

intellectual disability. Thompson v. State, 208 So. 3d 49, 50 (Fla. 2016). Thus,

while the trial court had evidence from Snelgrove’s and the State’s experts that

Snelgrove’s full scale IQ scores ranged from 70 to 75, “it is impossible to know the

true effect of this Court’s holding in Cherry on the circuit court’s review of the

evidence presented at [Snelgrove’s] intellectual disability hearing.” Id. at 60.

       Further, the majority apparently bases its conclusion that Snelgrove’s pre-

Hall intellectual disability hearing complied with the commands of Hall because

the trial court permitted Snelgrove “to present evidence of all three prongs of the

test for an intellectual disability.” Majority op. at 19. Yet, as this Court explained

in Thompson, “it is not enough that a defendant be allowed to present evidence on

all three prongs of the intellectual disability test.” 208 So. 3d at 59. The inquiry

must instead focus on whether the court conducted a “conjunctive and interrelated

assessment” of all prongs. Id. (quoting Hall, 134 S. Ct. at 2001).

      I acknowledge that a defendant is not always entitled to another hearing on

intellectual disability following Hall. However, in this case, there is a risk that the

trial court and this Court were unduly influenced by an IQ score exceeding the


                                         - 23 -
prior bright-line cut off score of 70, requiring a new evidentiary hearing or at the

very least a reevaluation of the evidence previously presented. Indeed, a review of

the trial court’s order rejecting Snelgrove’s intellectual disability claim reveals that

the trial court prefaced its analysis by emphasizing that this Court “has consistently

interpreted” the statutory definition of significantly subaverage general intellectual

functioning “to require a defendant seeking exemption from execution to establish

he has an IQ of 70 or below.” State v. Snelgrove, No.: 00-323-CFFA (Fla. 7th Cir.

July 2, 2009) (quoting Nixon, 2 So. 3d at 142) (denying Defendant’s Motion to

Prohibit the Imposition of the Sentence of Death/Mental Retardation).

      In fact, the trial court’s order denying Snelgrove’s intellectual disability

claim reveals that the court relied on the State’s expert, Dr. Prichard, who testified

that the defendant had a “full scale IQ of 75 and therefore was not mentally

retarded.” As we explained in Walls, 41 Fla. L. Weekly at S469, 2016 WL

6137287 at *6, “[b]ecause [the defendant’s] prior evidentiary hearing was directed

toward satisfying the former definition of intellectual disability and was reviewed

by the circuit court with the former IQ score cutoff rule in mind,” remanding for a

new evidentiary hearing on intellectual disability was necessary. It is also

necessary here. Accordingly, I would conclude that a new intellectual disability

hearing should be held prior to the commencement of the penalty phase to ensure




                                         - 24 -
that Snelgrove “receive[s] the type of conjunctive and interrelated assessment that

Hall requires.” Thompson, 208 So. 3d at 59.

POLSTON, J., concurring in part and dissenting in part.

      I concur with the majority’s decision except its vacating of the death

sentences pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

An Appeal from the Circuit Court in and for Flagler County,
     Joseph David Walsh, Judge - Case No. 182000CF000323XXXXXX
And an Original Proceeding – Habeas Corpus

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Richard E.
Kiley and Ali Andrew Shakoor, Assistant Capital Collateral Regional Counsel,
Middle Region, Temple Terrace, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Scott A. Browne,
Senior Assistant Attorney General, Tampa, Florida,

      for Appellee/Respondent




                                       - 25 -
