          Supreme Court of Florida
                                 ____________

                                 No. SC13-632
                                 ____________

                             DERRICK MCLEAN,
                                 Appellant,

                                       vs.

                            STATE OF FLORIDA,
                                 Appellee.

                                 ____________

                                 No. SC13-1788
                                 ____________

                             DERRICK MCLEAN,
                                 Petitioner,

                                       vs.

                          MICHAEL D. CREWS, etc.,
                               Respondent.

                                 [June 19, 2014]



PER CURIAM.

      Derrick McLean appeals an order of the circuit court denying his motion for

postconviction relief filed under Florida Rule of Criminal Procedure 3.851 and
petitions this Court for a writ of habeas corpus.1 For the reasons that follow, we

affirm the denial of his postconviction motion and deny his habeas petition.

                  I. FACTS AND PROCEDURAL HISTORY

      Derrick McLean was convicted of the 2004 first-degree murder of Jahvon

Thompson and was sentenced to death. On direct appeal, we described the facts as

follows:

             The evidence at trial revealed that on November 24, 2004,
      McLean, along with his cousin, Maurice Lewin, and acquaintance,
      James Jaggon, drove to the apartment where the victim, fifteen-year-
      old Jahvon Thompson, lived with his father in Orlando. McLean,
      Lewin, and Jaggon planned that morning to rob the apartment of
      marijuana or money or both. On the way to the apartment, the three
      men agreed that McLean and Jaggon would commit the robbery and
      Lewin would wait in the car. Although all three men had guns, there
      was no discussion of shooting or killing anyone during the
      commission of the robbery. McLean and Jaggon, each armed with a
      gun, knocked on the victim’s door and, when the victim opened the
      door, rushed into the apartment. McLean was wearing a black
      baseball cap and batting gloves, and Jaggon was wearing a ski mask.
      Lewin remained nearby in the car, his gold Buick, and maintained an
      open line between his Samsung cell phone and McLean’s Nokia cell
      phone.
             Meanwhile, the victim’s next-door neighbor, Theothlus Lewis,
      heard loud noises he thought might be music coming from
      Thompson’s apartment. Lewis told his girlfriend that he was going
      over to Thompson’s apartment to ask him to turn down the music.
      When Lewis knocked on the door, McLean opened the door,
      brandished a gun, and motioned for Lewis to enter the apartment.
      When Lewis entered the living room area, McLean asked him “where
      was the money at,” and Lewis turned his pockets inside-out, revealing
      he had nothing.

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


                                        -2-
        Then, Lewis saw Jahvon Thompson and Jaggon come from the
hallway. Both Thompson and Lewis were ordered to sit on the couch.
While McLean searched the apartment, Jaggon held Lewis and
Thompson at gunpoint. At some point, McLean grabbed a blue pillow
sham from a shelf and ordered Jaggon to leave the apartment, telling
him to shoot the female next door if he saw her. Lewis testified that
he sensed danger from the look in McLean’s eyes, so he dove to the
floor, crawling toward the back of the apartment. McLean shot at
Lewis, hitting him once in the back, and then fired several more shots
at Thompson. The medical examiner found that each of the three
gunshots to Thompson’s chest would have been fatal. After waiting
for McLean to leave, Lewis returned to his apartment, where his
girlfriend and her daughter had already called 911.
        Meanwhile, Lewin and Jaggon drove off, McLean left the scene
on foot, and the three men met up at a nearby restaurant. McLean,
still carrying the blue pillow sham from the apartment, got into the car
with Lewin and Jaggon, and Lewin pulled the car out onto the road.
A police officer, who was driving an unmarked car in the vicinity and
had been notified of the shooting, saw the gold Buick pass by, and he
activated his lights and initiated pursuit. Lewin sped up and attempted
to elude the officer but soon crashed into the marked patrol car of a
sheriff’s deputy who was investigating an unrelated incident nearby.
The deputy, who was in his marked car, saw the Buick coming at him
and ran from his vehicle in order to get out of the way. Lewin’s car
struck the marked car, sending it into the deputy, who was struck in
the hip and thrown fifteen to twenty feet. The deputy saw Jaggon
sitting in the front passenger seat of the Buick. He also saw McLean
running from the Buick.
        Additional law enforcement arrived on the scene of the crash.
Officers who searched the area discovered a batting glove, black
baseball cap, Nokia cell phone, shirt, and handgun discarded in the
woods adjacent to the crash. A blue pillow sham containing
marijuana was found in the backseat of Lewin’s Buick. McLean’s
DNA was later detected on the shirt, pillow sham, and batting glove.
The Nokia cell phone discovered in the woods near the crash was
determined to be registered to McLean’s girlfriend. Cell phone
records revealed calls between this Nokia phone and Lewin’s phone
on the day of the crime. The Nokia phone also contained images of a
semiautomatic firearm.


                                 -3-
        At trial, Lewin and Jaggon testified that the weapon McLean
carried during the crimes was a .380. Eight shell casings found in the
victim’s apartment were consistent with having been fired from a .380
Hi-Point semiautomatic. About six months after the crime, law
enforcement found a .380 Hi-Point semiautomatic in the woods about
fifteen feet from the road where the crash had occurred. This handgun
appeared to be the weapon in the images found on McLean’s cell
phone.
        The day after the crimes, Lewis worked with a police sketch
artist to develop a composite of his shooter. Over the next few days,
the Orlando Police Department showed Lewis three photo lineups—
none including McLean, whose identity they had not yet learned—but
Lewis did not recognize any of the individuals as the shooter. On
December 1, Jaggon’s father told the police that a third man, who was
Lewin’s cousin and named Derrick, was involved in the crime. A
crime line tip also implicated a person named Derrick and provided
information about where he lived, and this information led police to
identify McLean as a suspect in the crime.
        On December 9, police showed Lewis another photo lineup—
this one containing McLean—and Lewis identified McLean as the
shooter. Lewis said he was 90% certain about his identification but
would be absolutely sure if he saw the suspect in person. Police then
took McLean into custody for violation of probation, questioned him
briefly about the murder, and arranged a live lineup of six individuals
from which Lewis identified McLean as the shooter. Lewis also made
an in-court identification of McLean as the man who shot him.
        At trial, Jaggon and Lewin testified against McLean as part of
their plea agreements for charges related to the events of November
24, 2004. Jaggon and Lewin gave consistent accounts of McLean’s
participation in the crime. Lewin also testified that when he asked
McLean why he fired shots during the robbery, McLean replied that
he “wanted to feel like what it feels like to shoot and kill somebody.”
        During the penalty phase, the defense offered expert testimony
regarding McLean’s psychological, mental, and emotional health as
well as testimony from McLean’s older brother. One defense
psychologist diagnosed McLean with an organic brain impairment,
although the psychologist had no medical records or diagnostic
studies to confirm any brain injury. Another defense psychologist
testified that McLean had some history of substance abuse and
functioned at the emotional level of an adolescent. Both

                                 -4-
      psychologists diagnosed McLean with borderline personality disorder
      but found that he was of average intelligence. McLean’s brother
      testified to a history of some family dysfunction.

McLean v. State, 29 So. 3d 1045, 1047-49 (Fla.), cert. denied, 131 S. Ct. 153

(2010) (footnotes omitted).

      Following the penalty phase, the jury voted nine to three in favor of the

death penalty, and the trial court sentenced McLean to death.2 Id. at 1049. We

affirmed McLean’s conviction and death sentence on direct appeal.3 Id. at 1047.




        2. The trial court found three aggravating factors: (1) McLean was on
felony probation when he committed the murder (moderate weight); (2) “McLean
was previously convicted of a felony involving the use or threat of violence” (great
weight); and (3) the murder occurred during commission of a robbery (great
weight). McLean, 29 So. 3d at 1049. The trial court also found two statutory
mitigators: (1) that McLean was under extreme mental or emotional disturbance at
the time of the crime (little weight); and (2) that “McLean’s capacity to appreciate
the criminality of his conduct or to conform his conduct to the requirements of the
law” was substantially impaired (little weight). Id. In addition, the trial court
considered the following non-statutory mitigating circumstances: “(1) mental
health issues (no weight); (2) substance abuse issues (little weight); (3) disparate
treatment of codefendants (no weight); (4) family problems (little weight); (5)
brain injury (little weight); and (6) miscellaneous factors, such as poor grades in
high school, good behavior in court, and lack of positive role models in his youth
(little weight).” Id. at 1049-50.
       3. We denied the following claims on direct appeal: (1) that the trial court
erred when it admitted the photographic and live lineup identifications because law
enforcement failed to offer McLean assistance of counsel; (2) that the trial court
erred in conducting a portion of the hearing pursuant to Nelson v. State, 274 So. 2d
256 (Fla. 4th DCA 1973), on McLean’s pro se motion to replace or discharge
counsel, outside of McLean’s presence; (3) “that the trial court erred in instructing
the jury on the avoid arrest aggravator;” (4) that McLean’s death sentence was
disproportionate; and (5) “that Florida’s capital sentencing scheme is

                                        -5-
      In 2011, McLean filed a motion for postconviction relief asserting eleven

claims. The circuit court granted an evidentiary hearing on some of the claims,

while summarily denying others. Following the evidentiary hearing, the circuit

court entered an order denying relief on all claims. McLean now appeals the

denial of his postconviction motion and petitions this Court for a writ of habeas

corpus.

                        II. POSTCONVICTION MOTION

          A. Ineffective Assistance of Counsel During the Guilt Phase

      McLean argues that his trial counsel provided ineffective assistance during

the guilt phase of his trial by failing to call an expert in eyewitness identification to

challenge Lewis’s identification of McLean.4 Because McLean has failed to

establish the requirements necessary for relief, we affirm the circuit court’s denial.




unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002).” McLean, 29 So. 3d
at 1050-53 & n.5.

       4. McLean also argues that his trial counsel was ineffective for failing to
ensure that he was present during a bench conference at the Nelson hearing. We
affirm the summary denial of this claim because this issue is procedurally barred as
it was already raised and denied on direct appeal. McLean, 29 So. 3d at 1050-51;
see also Sireci v. State, 469 So. 2d 119, 120 (Fla. 1985) (“Claims previously raised
on direct appeal will not be heard on a motion for post-conviction relief simply
because those claims are raised under the guise of ineffective assistance of
counsel.”).




                                          -6-
      Following the United States Supreme Court’s decision in Strickland v.

Washington, 466 U.S. 668 (1984), this Court explained that for ineffective

assistance of counsel claims to be successful, two factors must be established:

      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)).

      The deficiency prong of Strickland “requires showing that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. There is a

strong presumption that counsel’s performance was not ineffective, and it is up to

the defendant to present evidence to overcome this presumption. Id. at 689.

Moreover, “[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.” Id.

      In order to establish the prejudice prong of Strickland, the defendant must

show that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable

                                          -7-
probability is a probability sufficient to undermine confidence in the

outcome.” Franqui v. State, 59 So. 3d 82, 95 (Fla. 2011) (quoting Strickland, 466

U.S. at 694).

      Because both prongs of the Strickland test present mixed questions of law

and fact, this Court employs a mixed standard of review, deferring to the circuit

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

reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883

So. 2d 766, 771-72 (Fla. 2004).

      In this case, McLean has failed to demonstrate that trial counsel’s

performance was deficient. At the evidentiary hearing, McLean’s trial counsel

testified that she discussed issues regarding Lewis’s identification of McLean with

co-counsel and attempted to have the lineup identifications suppressed, but that

given the other independent evidence identifying McLean, including, his likeness

to the police sketch, the DNA evidence, and the testimony of his co-defendants as

to his role in the crime, it would not have made sense to bring in an expert on

eyewitness identification. McLean has failed to demonstrate how counsel’s actions

were not reasonable given the facts of the case and counsel’s perspective at the

time. See Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000) (“[S]trategic

decisions do not constitute ineffective assistance of counsel if alternative courses




                                         -8-
have been considered and rejected and counsel’s decision was reasonable under the

norms of professional conduct.”).

      Additionally, McLean has also failed to establish prejudice. At trial, the

defense focused on issues surrounding Lewis’s identification of McLean as the

shooter, cross-examining Lewis about the identification and arguing during closing

arguments that Lewis’s identification was questionable. Since the jury was

presented with the argument that Lewis’s identification of McLean was unreliable,

there was no prejudice by trial counsel’s failure to call an expert in eyewitness

identification. See Rimmer v. State, 59 So. 3d 763, 777 (Fla. 2010) (“Because

counsel conducted an effective cross-examination of the eyewitnesses and

consistently attacked the eyewitness identifications and the process of making

those identifications, [the defendant] has not demonstrated that he was prejudiced

by counsel’s failure to obtain an eyewitness identification expert.”).

      Moreover, even without Lewis’s identification of McLean, there was

substantial evidence linking McLean to the crime, including, his codefendants’

testimony as to his role in the crime and his blood and DNA found on an item

taken from the victim’s home. See McLean, 29 So. 3d at 1048-49. Therefore,

there is not a reasonable probability of a different outcome. Our confidence in the

outcome is not undermined.

      Accordingly, we affirm the circuit court’s denial of relief.


                                         -9-
                              B. The Crimeline Tape

      Next, McLean claims that his due process rights were violated by the State’s

institutional policy of reprocessing tape recordings of tips received by Crimeline, a

crime reporting hotline, including a tape recording of a tip made implicating him in

the crime of which he was convicted. Additionally, McLean argues that his trial

counsel was ineffective for failing to take action to prevent the destruction of this

evidence. We disagree and affirm the circuit court’s denial of these claims.

      McLean’s substantive claim that his due process rights were violated by the

State’s institutional policy of reprocessing the Crimeline tapes is without merit

because McLean has failed to establish that the State destroyed the evidence in bad

faith. See Guzman v. State, 868 So. 2d 498, 509 (Fla. 2003) (explaining that “[t]he

loss or destruction of evidence that is potentially useful to the defense violates due

process only if the defendant can show bad faith on the part of the police or

prosecution,” and that “bad faith exists only when police intentionally destroy

evidence they believe would exonerate a defendant” (citing Arizona v.

Youngblood, 488 U.S. 51, 57-58 (1988))). McLean has made no allegation, much

less established, that the State intentionally destroyed the tape recording in bad

faith. Nor has McLean shown that the tape recording was of any exculpatory

value, or that the State knew of its potential exculpatory value at the time the tape

was reprocessed. Accordingly, we affirm the circuit court’s denial of this issue.


                                        - 10 -
      We also affirm the denial of the related claim that McLean’s trial counsel

was ineffective for failing to take action to preserve or compel disclosure of the

tape recording. Trial counsel explained at the evidentiary hearing that the defense

did not take any action to compel discovery of or preserve the tape recording

because it was their understanding that the tape recording had already been

reprocessed. Nonetheless, the record establishes that counsel took action to

discover as much information as possible concerning the tip. Counsel obtained

copies of the reports generated from the calls made into Crimeline concerning this

crime, deposed the lead detective as to how this information was used in the case,

and made every effort to learn the identity of the caller. McLean has failed to

explain how trial counsel’s actions were not reasonable under the circumstances or

how these actions “fell beyond an ‘objective standard of reasonableness,’ such that

counsel could not be said to be functioning as the ‘counsel’ guaranteed by the

Sixth Amendment.” Henry v. State, 948 So. 2d 609, 616 (Fla. 2006) (quoting

Strickland, 466 U.S. at 687-88). Therefore, McLean has failed to establish that

trial counsel’s performance was deficient.

      McLean has also failed to establish prejudice. McLean’s allegations that the

tape recording was of potential exculpatory or impeaching value to his case is

completely speculative, and postconviction relief cannot be based on mere

speculation. See Maharaj v. State, 778 So. 2d 944, 951 (Fla. 2000)


                                        - 11 -
(“Postconviction relief cannot be based on speculation or possibility.”).

Furthermore, McLean’s arrest was not based solely on the tip. Rather, the record

reflects that James Jaggon, Sr., the father of one of McLean’s codefendants, had

contacted police seven days after the crime and told them of McLean’s

involvement before the Crimeline tip came in. In addition, as discussed on direct

appeal, there was independent evidence linking McLean to this crime. See

McLean, 29 So. 3d at 1048-49. Therefore, there is not a reasonable probability of

a different outcome. Our confidence in the outcome is not undermined.

      Accordingly, we affirm the circuit court’s denial of relief.

        C. Ineffective Assistance of Counsel During the Penalty Phase

      Next, McLean claims that his trial counsel was ineffective for failing to

present evidence that he suffered from Attention Deficit Hyperactivity Disorder

(ADHD)5 during the penalty phase. We affirm the circuit court’s denial of relief.

      McLean has not established prejudice because he has failed to demonstrate

that the additional information that he suffered from ADHD would have resulted in

mitigation that would undermine “this Court’s confidence in the sentence of death



       5. At the evidentiary hearing, the expert witness, Dr. Eisenstein, who had
also been a defense witness at trial, used both the terms ADD and ADHD
interchangeably, and explained that ADD “is subdivided into whether or not it’s
primarily an attention problem or it’s a problem of hyperactivity.” ADHD is more
focused on hyperactivity and conduct, while ADD is more focused on the inability
to pay attention for a certain period of time.


                                       - 12 -
when viewed in the context of the penalty phase evidence and the mitigators and

aggravators found by the trial court.” Hurst v. State, 18 So. 3d 975, 1013 (Fla.

2009); see also Bolin, 41 So. 3d at 155 (“A court considering a claim of

ineffectiveness of counsel need not make a specific ruling on the performance

component of the test when it is clear that the prejudice component is not

satisfied.” (quoting Maxwell, 490 So. 2d at 932)).

      As explained on direct appeal, the trial court found three aggravating

circumstances which were given more weight than the mitigating factors. See

McLean, 29 So. 3d at 1049-50. And, although the trial court stated in the

sentencing order that ADHD had not been established as a non-statutory mitigating

factor, the trial court gave “little weight” to McLean’s organic brain injury as a

non-statutory mitigating factor, and Dr. Eisenstein had explained on cross-

examination at trial that McLean’s ADD was part of the organic brain injury.

      Moreover, Dr. Eisenstein’s testimony at the evidentiary hearing concerning

McLean’s ADHD and its impact on McLean’s behavior was largely cumulative to

other testimony presented at trial—that McLean had an impulse control problem,

had an inability to think through the consequences of his actions, and that his

ability to self-monitor and conform his conduct to the requirements of the law was

substantially impaired. See Jones v. State, 998 So. 2d 573, 586 (Fla. 2008) (“We




                                        - 13 -
have repeatedly held that counsel is not ineffective for failing to present

cumulative evidence.”).

      Therefore, McLean has not established prejudice because “[t]he mitigating

evidence adduced at the evidentiary hearing combined with the mitigating

evidence presented at the penalty phase would not outweigh the evidence in

aggravation[.]” Tanzi v. State, 94 So. 3d 482, 491 (Fla. 2012). Therefore, there is

not a reasonable probability that additional evidence of McLean’s ADHD would

have led to a different result. Our confidence in the outcome is not undermined.

      Accordingly, we affirm the circuit court’s denial of relief.

                               D. Remaining Claims

      Finally, we affirm the circuit court’s summary denial of McLean’s claims

that: (1) Florida’s lethal injection procedure is unconstitutional because it involves

a risk that it will cause extreme pain in violation of the Eighth Amendment, (2)

section 945.10(1)(g), Florida Statutes, is unconstitutional, and (3) that his

constitutional right against cruel and unusual punishment will be violated since he

may be incompetent at the time of execution. These claims have been repeatedly

rejected by this Court. See, e.g., Chavez v. State, 132 So. 3d 826, 831 (Fla.), cert.

denied, 134 S. Ct. 1156 (2014) (“Summary denial of a lethal injection challenge is

proper where the asserted reasons . . . are based upon conjecture or speculation.”);

Henyard v. State, 992 So. 2d 120, 130 (Fla. 2008) (“We [have] previously found


                                        - 14 -
section 945.10 facially constitutional and decline to recede from our decision

now.”); Hall v. Moore, 792 So. 2d 447, 450 (Fla. 2001) (explaining that it is

premature for a death-sentenced individual to present a claim of incompetency

with regard to his execution if a death warrant has not been signed).6

                             III. HABEAS PETITION

      McLean raises two claims in his habeas petition: (1) that his appellate

counsel was ineffective for failing to raise an allegation of error concerning the

State’s destruction of the Crimeline tape; and (2) that Florida’s capital sentencing

scheme, which permits the imposition of a death sentence based on a simple

majority jury recommendation violates the Eighth Amendment’s evolving

standards of decency. We reject both claims and find that no habeas relief is

warranted.

      While claims of ineffective assistance of appellate counsel are appropriately

presented in a petition for a writ of habeas corpus, McLean’s claim concerning the

Crimeline tip is procedurally barred because he raised this exact argument in his

postconviction motion. Johnston v. State, 63 So. 3d 730, 747 (Fla. 2011) (holding



        6. Because we find all of McLean’s claims of error to be procedurally
barred or otherwise without merit, we deny McLean’s claim that the cumulative
impact of the alleged errors deprived him of his right to a fair trial. Bell v. State,
965 So. 2d 48, 75 (Fla. 2007) (“[W]here individual claims of error alleged are
either procedurally barred or without merit, the claim of cumulative error must
fail.” (quoting Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003))).


                                         - 15 -
that the defendant’s habeas claim was procedurally barred because it could have

been or was raised in his postconviction motion); Knight v. State, 923 So. 2d 387,

395 (Fla. 2005) (holding that claims raised in a postconviction motion “cannot be

relitigated in a habeas petition”). Moreover, as discussed above, this issue is

meritless.

      Similarly, McLean’s claim that Florida’s capital sentencing scheme is

unconstitutional because it allows a death sentence recommendation based on a

simple majority jury vote has been repeatedly rejected by this Court and is without

merit. See, e.g., Kimbrough v. State, 125 So. 3d 752, 754 (Fla.), cert. denied, 134

S. Ct. 632 (2013) (“[The defendant’s] claim ‘is subject to our general jurisprudence

that non-unanimous jury recommendations to impose the sentence of death are not

unconstitutional.’ ” (quoting Mann v. State, 112 So. 3d 1158, 1162 (Fla. 2013)));

Parker v. State, 904 So. 2d 370, 383 (Fla. 2005) (“This Court has repeatedly held

that it is not unconstitutional for a jury to recommend death on a simple majority

vote.”).

                               IV. CONCLUSION

      For the foregoing reasons, we affirm the denial of McLean’s motion for

postconviction relief and deny his habeas petition.

      It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.

                                        - 16 -
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Two Cases:

An Appeal from the Circuit Court in and for Orange County,
     Julie Hions O’Kane, Judge - Case No. 2004-CF-015923-A-O
and
An Original Proceeding – Habeas Corpus

Mark S. Gruber, Capital Collateral Regional Counsel, Middle Region, Tampa,
Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida and Scott Andrew
Browne, Assistant Attorney General, Tampa, Florida,

      for Appellee/Respondent




                                     - 17 -
