Supreme Court of Florida ____________
No. SC2023-1476 ____________
MESAC DAMAS, Appellant,
vs.
STATE OF FLORIDA, Appellee.
____________
No. SC2024-0565 ____________
MESAC DAMAS, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
October 1, 2025 CORRECTED OPINION
COURIEL, J.
Mesac Damas, whose convictions and sentences of death we
upheld in 2018, appeals an order of the circuit court denying his initial motion for postconviction relief under Florida Rule of
Criminal Procedure 3.851. Damas raises three issues that he
contends require reversal. Damas also petitions the Court for a writ
of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9),
Fla. Const. We affirm the circuit court’s denial of postconviction
relief and deny the habeas corpus petition.
I
Twice now we have had to tell this woeful tale. See Damas v.
State, 260 So. 3d 200, 202-12 (Fla. 2018). In 2009, after years of
threats, domestic violence, and litigation, Damas killed his wife and
five children—ages nine, six, five, three, and not quite two—by
cutting their throats with a fillet knife. He fled to Haiti.
Apprehended shortly after arrival at the airport in Port-au-Prince,
he confessed to the murders, which he attributed to “bad spirits”
and voodoo spells cast upon him by his mother-in-law. Id. at 207.
He told an agent that, having killed their mother, he decided not to
spare his children because they would have been entrusted to his
mother-in-law’s custody. Id. He pled guilty, waived his right to a
penalty-phase jury, and waived his right to present evidence in
mitigation.
-2- Most of the questions we must decide in this appeal turn on
the extensive proceedings about Damas’s competency to stand trial
and the mitigation investigations carried out by his defense team.
In summary, as the circuit court observed, the defendant was
represented in the trial proceedings by a total of five attorneys, each
of whom testified at a postconviction evidentiary hearing about his
or her observations touching on Damas’s competency and the work
done to develop evidence in mitigation. At that hearing, each
attorney testified that he or she knew Damas’s history of
competency evaluations: he was found competent to proceed after
an initial set of evaluations, incompetent after a second, restored to
competency after a third, and still competent at the time of a fourth.
We summarize this history, and Damas’s counsel’s role in it, below.
A
Following Damas’s first appearance on September 23, 2009,
on the motion of defense counsel, the trial court ordered Dr. Paul
Kling, a psychologist, to examine Damas and report on his
competency. A year later, again upon defense’s motion, the trial
court appointed three experts to evaluate Damas: Dr. Robert Silver
evaluated Damas on October 20, 2010; Dr. Michael Herkov on
-3- December 21, 2010; and Dr. Frederick Schaerf on January 21 and
June 9, 2011.
On June 16, 2011, the trial court held a competency hearing.
The court reviewed reports from Drs. Silver, Herkov, and Schaerf,
heard their testimony, and observed Damas during the hearing.
These experts recounted difficulties in communicating with Damas,
especially his refusal to answer questions related to his criminal
proceedings and his fixation on biblical and religious themes. The
Court found Damas competent to proceed, noting that having a
mental illness or displaying bizarre behavior is not equivalent to
incompetence under section 916.12, Florida Statutes, or Florida
Rule of Criminal Procedure 3.211.
In 2012 and 2013, Damas’s mental status and communication
abilities deteriorated. Defense counsel addressed the issue with the
court. After reviewing Dr. Herkov’s and Dr. Schaerf’s reevaluations
of Damas, the court issued an order on March 19, 2014, finding
Damas incompetent to proceed and committed him to a treatment
facility of the Department of Children and Families pursuant to
sections 916.13(1) and (2), Florida Statutes (2014).
-4- On April 28, 2014, pursuant to Florida Rule of Criminal
Procedure 3.212, the treatment facility notified the court that
Damas had regained competence to proceed and no longer met the
criteria for commitment. 1 A report by Dr. Ali Mandelblatt was filed
together with the facility’s notification, which characterized Damas’s
behavior as malingering and cautioned future evaluators to avoid
equating Damas’s unwillingness to cooperate with incompetence to
proceed. After Damas was discharged and returned to prison, the
court ordered Drs. Herkov and Schaerf to evaluate him again.
On October 8, 2014, the trial court held another competency
hearing. In addition to Dr. Mandelblatt’s report, the court reviewed
reports from Drs. Herkov and Schaerf. At the hearing, the parties
stipulated to the court making a competency decision based on the
written expert reports, rather than on the basis of live testimony. In
1. Florida Rule of Criminal Procedure 3.212(c)(6) requires a treatment facility to admit a defendant determined to be incompetent by the court, report to the court on the defendant’s competency no later than sixty days from admission, and notify the court if the facility administrator determines that the defendant has regained competency or no longer meets the criteria for commitment during the sixty-day period or any period of extended commitment.
-5- a colloquy with the court and counsel for the State, Damas’s lead
lawyer, Ms. Kathleen Fitzgeorge, stated that, upon review of the
reports, the defense had no objection to their findings and would
agree Damas was competent to stand trial at that time. And so, on
October 20, 2014, the trial court issued an order finding Damas
competent to proceed. 2
Damas indicated that he wanted to represent himself, so on
July 21, 2017, the trial court conducted a Faretta 3 hearing. Damas
refused to answer the court’s questions, repeatedly stating that he
did not want a trial and wanted to plead guilty. Without Damas’s
cooperation, the court found it impossible to adequately conduct
the Faretta inquiry and to discern whether Damas’s waiver of
2. At the postconviction hearing, Ms. Fitzgeorge testified to the defense’s communication with Damas and decision not to challenge the expert reports. According to Ms. Fitzgeorge, the defense team was confident that Damas clearly understood what they were doing, why they were doing it, and what role they played, and everybody was on board to proceed to trial, relying on the doctors’ reports.
3. Faretta v. California, 422 U.S. 806, 835 (1975) (“[In order to represent himself, a defendant] should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” (citation and internal quotation marks omitted)).
-6- counsel was knowing and voluntary. The trial court denied
Damas’s request for self-representation.
Because Damas indicated his desire to enter a guilty plea, the
trial court ordered another round of evaluations of his competency
by Drs. Herkov and Kling. On August 18, 2017, the court issued a
fourth competency order, finding Damas competent to proceed.
On September 5, 2017, Damas pled guilty to six counts of
first-degree premeditated murder, waived his right to a penalty-
phase jury, and waived his right to present evidence in mitigation.
On direct appeal, we reviewed Damas’s guilty plea sua sponte and
concluded that “the extensive colloquy conducted by the trial court
and Damas’s responses to the questions asked demonstrate that
his guilty pleas were knowing, intelligent, and voluntary.” Damas,
260 So. 3d at 216.
B
The work of Damas’s lawyers to establish facts in mitigation is
also at issue. At the postconviction hearing, witnesses testified that
those efforts started early, focusing on Damas’s mental health and
social and cultural background, and continued even after Damas
waived mitigation. Between September 2009 and March 11, 2015,
-7- the Collier County Public Defender’s office represented Damas. The
public defenders retained a team of mitigation specialists, mental
health experts, and cultural specialists to investigate Damas’s
mitigating circumstances. Donna Murray, a mitigation specialist,
coordinated communications with the experts; interviewed Damas’s
family members and former coworkers; gathered his school,
employment, and medical records; searched for potential witnesses
to testify to various facts; and compiled an investigative report of
Damas’s social history. Upon withdrawing from the case, the public
defenders handed Damas’s case file to their successor counsel,
together with a confidential memorandum containing information
about the experts, potential mitigating factors, and documents
required to establish mitigation.
After March 13, 2015, Damas was represented by two court-
appointed attorneys, Mr. Kevin Shirley and Mr. James Ermacora,
who reviewed the memorandum with Damas’s former counsel and
continued to build Damas’s mitigation based on the work already
done by the public defenders.
To develop facts in mitigation regarding Damas’s mental
health, the defense retained Dr. Robert Ouaou, a
-8- neuropsychologist, in March 20174 to evaluate Damas for brain
damage and neurocognitive vulnerability that could be evidenced by
additional neurological testing. The defense also retained Dr. Mark
Rubino, a neurologist, to evaluate Damas’s head injuries incurred
from a car accident and how they could have affected his behavior.
On August 30, 2017, the defense requested funding for additional,
more advanced Magnetic Resonance Imaging (MRI) and Positron
Emission Tomography (PET) scans to address Damas’s brain
abnormalities, as well as travel expenses and witness fees for Dr.
Joseph Wu, M.D., to testify at the sentencing. After Damas pled
guilty on September 5, 2017, and waived his right to present
mitigation evidence, the trial court denied that request.
The defense retained Dr. Elizabeth McAlister, a specialist in
Haitian culture and religion, to help examine the impact of Haitian
religion, political history, and migration on Damas. Dr. McAlister
testified at the postconviction hearing that she went to Haiti with
4. Between September 2015 and March 2017, Damas’s case was stayed for over eighteen months pending the determination of Hurst v. Florida, 577 U.S. 92 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016).
-9- mitigation specialist Donna Murray in June 2017 to collect
information about Damas’s family life and religious history.
The defense team continued to work on Damas’s mitigation
after his guilty plea. Mr. Ermacora testified at the postconviction
hearing:
[Damas’s guilty plea and waiver of mitigation] didn’t give us any concerns about mitigation. It’s obvious that we kept working on mitigation because they were still bringing motions and trying to get further testing done. So we hadn’t given up, we didn’t just throw up our hands and say he is going to plead guilty, he doesn’t want any mitigation, let’s just stop here—and in fact—we did present some mitigation evidence at the Spencer [v. State, 615 So. 2d 688 (Fla. 1993)] hearing, despite the fact that he didn’t want us to.
Eventually, the defense developed forty-seven different mitigation
factors for the penalty phase.
At the sentencing hearing, the defense presented mitigating
evidence of Damas’s mental status and social and cultural
background. Dr. Rubino testified about the car accident Damas
suffered in 2009, the MRI and PET scans performed on him in
2014, the abnormalities in his brain revealed by the scans, and
their possible impact on his behavior. On the basis of her findings
in Haiti, Dr. McAlister testified that Damas’s “fear of sorcery and
- 10 - malevolent magic played a huge role in his behavior.” Damas, 260
So. 3d at 210.
On October 27, 2017, having considered all the evidence, the
trial court imposed six sentences of death on Damas for the
murders of his wife and five children. The court found five
aggravators proven by the State beyond a reasonable doubt: prior
violent felony for all six victims; that the murders were committed
in a cold, calculated, and premeditated manner for all six victims;
that, with respect to the five children, the victims were less than
twelve years of age and under the defendant’s familial/custodial
authority; and that, as to three victims, the murders were
committed in a manner that was especially heinous, atrocious, or
cruel. The court afforded each aggravator great weight.
Based on the mitigating circumstances presented by the
defense, the trial court found twelve mitigating factors, including a
history of mental illness (some weight, but noting that nothing in
the record supports a long and well-documented history of mental
illness before the murders); lack of treatment for his mental illness
(some weight, but finding it was more likely than not that Damas
malingered during evaluations in order to be found incompetent);
- 11 - prior involvement in the Haitian Baptist Church (some weight
together with other factors); and the failure of the Department of
Children and Families and the David Lawrence Center to recognize
his mental health issues and provide him with services (little
weight, and citing previous findings with respect to Damas’s alleged
mental illnesses).
II
Damas appealed his convictions and sentences to this Court,
raising three claims: (1) the trial court abused its discretion by
denying him his Sixth Amendment right to represent himself; (2)
the trial court fundamentally erred by doubling two aggravators
that were both based on the child victims’ age; and (3) the death
penalty is inherently cruel and unusual. This Court rejected all
three claims and affirmed Damas’s convictions and sentences.
Damas, 260 So. 3d at 218.
On March 20, 2020, Damas filed his initial Motion to Vacate
Judgments of Convictions and Sentences (Initial 3.851 Motion) with
special request for leave to amend. On the same day, he filed a
Motion for Determination of Competency. Thereafter, the trial court
appointed two mental health experts, Drs. Julie Harper and Donald
- 12 - McMurray, to evaluate him. Because Damas refused visits by the
experts, the evaluations had to be based on records review and
interviews with correctional officers and defense counsel. Both
experts opined that Damas was competent to proceed. The court
found Damas competent and his refusal to communicate with the
court and counsel a deliberate and intentional attempt to frustrate
the proceedings.
On August 16, 2021, Damas amended his initial 3.851
motion, raising four claims: (1) ineffective assistance of counsel for
failing to challenge competency and request an additional
competency evaluation prior to the Koon 5/Spencer hearing; (2)
ineffective assistance of counsel for failing to conduct a timely and
adequate mitigation investigation; (3) the constitutionality of section
119.19, Florida Statutes, and Florida Rule of Criminal Procedure
3.852 in restricting defendant’s access to public records; and (4)
ineffective assistance of postconviction counsel due to the
COVID-19 pandemic.
5. Koon v. Dugger, 619 So. 2d 246 (Fla. 1993).
- 13 - The circuit court denied Damas’s amended motion on all
claims after conducting an evidentiary hearing. This appeal, and
petition for writ of habeas corpus, follow.
III
Damas raises three issues on appeal, two of which involve the
ineffective assistance of counsel: (1) Damas’s convictions and
sentences are unconstitutional because he was incompetent at each
stage of the proceedings, and his lawyers were ineffective in failing
to expose it; (2) trial counsel was ineffective for failing to conduct a
timely and adequate mitigation investigation; and (3) Damas was
denied access to public records in violation of his Fifth, Sixth,
Eighth, and Fourteenth Amendment rights. None of these issues
provide a basis for relief.
First, Damas contends that his mental illness rendered him
incompetent to proceed during the trial, sentencing, and
postconviction proceedings, but that his incompetency was never
established because of his lawyers’ ineffective assistance. We reject
this contention.
- 14 - 1
To the extent that Damas’s argument is really about his
competency, and not about his lawyers’ work, it is procedurally
barred. “This Court has many times held that postconviction
proceedings are not to be used as a second appeal, and that claims
that were or could have been raised on direct appeal are
procedurally barred in postconviction.” Barnes v. State, 124 So. 3d
904, 912 (Fla. 2013); Reynolds v. State, 373 So. 3d 1124, 1126 (Fla.
2023) (“[A] postconviction litigant is barred from bringing any
claims that could have been raised in prior litigation.” (citing
Barwick v. State, 361 So. 3d 785, 795 (Fla. 2023))).
In particular, a competency claim may not be raised in a
postconviction motion. Dougherty v. State, 149 So. 3d 672, 676
(Fla. 2014) (“In Florida state courts, neither a procedural nor a
substantive competency claim of trial court error may be raised in a
postconviction motion.” (citing Thompson v. State, 88 So. 3d 312,
316 (Fla. 4th DCA 2012))); Wickham v. State, 124 So. 3d 841, 861-
62 (Fla. 2013) (holding that the defendant’s competency claims were
procedurally barred because they were not raised on direct appeal
(citing Nelson v. State, 43 So. 3d 20, 33 (Fla. 2010))); Carroll v.
- 15 - State, 815 So. 2d 601, 610 (Fla. 2002) (“[The defendant’s]
underlying claim that he was incompetent to stand trial should
have been raised on direct appeal and therefore is procedurally
barred.”).
Damas could have challenged the trial court’s determination of
his competency on direct appeal, but he did not. On the contrary,
he contended on direct appeal that the trial court erroneously
declined his request for self-representation. Damas, 260 So. 3d at
212. As we have held, “[t]he Dusky [v. United States, 362 U.S. 402
(1960)] standard [to stand trial] is the same standard of competence
required to plead guilty or to waive the right to assistance of
counsel.” Noetzel v. State, 328 So. 3d 933, 946 (Fla. 2021) (citing
Godinez v. Moran, 509 U.S. 389, 391, 398, 402 (1993)); see also
Woodbury v. State, 320 So. 3d 631, 646 (Fla. 2021); Dusky, 362
U.S. at 402. Both standards test whether a defendant has the
sufficient present ability to understand the proceedings against him
and to make reasoned choices among the available alternatives.
See Godinez, 509 U.S. at 397-400. On direct appeal, Damas
claimed that he had answered every question the court asked and
acknowledged the severity of the charges against him, the
- 16 - maximum penalty, and the benefits of having counsel’s assistance,
but the trial court impermissibly refused to honor his knowing and
intelligent choice to represent himself. Now he denies having ever
been competent. The procedural bar stops just such a change in
course.
In any event, the trial court applied the appropriate legal
standard in concluding that Damas was competent to proceed.
That is, the court determined that Damas had “sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding” and “a rational as well as factual
understanding of the proceedings against him.” Dusky, 362 U.S. at
402; see Peede v. State, 955 So. 2d 480, 488 (Fla. 2007) (holding
that the Dusky standard is the test for whether a defendant is
competent to stand trial). The Dusky standard was codified in
section 916.12, Florida Statutes, and Florida Rule of Criminal
Procedure 3.211, which enumerate the criteria to determine a
defendant’s capacity to proceed. See § 916.12(1), (3), Fla. Stat.
(2017); Fla. R. Crim. P. 3.211(a)(1), (2); Carter v. State, 706 So. 2d
873, 875 (Fla. 1997) (“Florida Rule of Criminal Procedure
3.211(a)(1) codifies what is known as the Dusky standard of
- 17 - competence . . . .”). Florida Rules of Criminal Procedure 3.210 to
3.212 also set forth the procedures for a trial court to determine
whether a defendant is competent to proceed or has been restored
to competency. See Carter, 706 So. 2d at 875; Dougherty, 149 So.
3d at 677.
Damas’s claim of ineffective assistance of counsel with respect
to his competency proceedings fails, too. To prevail on a claim of
ineffective assistance of counsel, a defendant must prove: (1)
counsel’s performance was deficient, and (2) the deficiency
prejudiced the defense. See Strickland v. Washington, 466 U.S.
668, 687 (1984); Smith v. State, 330 So. 3d 867, 875 (Fla. 2021).
The Strickland test requires both the deficiency and the prejudice
prongs to be satisfied for an ineffective assistance of counsel claim
to survive. See Martin v. State, 311 So. 3d 778, 792 (Fla. 2020)
(“Because Strickland requires a defendant to establish both prongs,
if one prong is not met, the court is not required to analyze whether
the defendant has established the other prong.” (citation and
internal quotation marks omitted)). “Because both prongs of the
Strickland test present mixed questions of law and fact, this Court
- 18 - 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.” Davis v. State, 383 So. 3d 717, 733 (Fla. 2024) (quoting
Sheppard v. State, 338 So. 3d 803, 816 (Fla. 2022)).
Damas claims that his trial counsel improperly stipulated to
his competency at competency hearings. But that allegation is
simply not true. The circuit court noted that at the hearings on
October 8, 2014, and August 18, 2017, defense counsel did not
stipulate to Damas’s competency, but only to the admission of the
expert reports finding Damas competent. In Dougherty, we held
that where the parties and the judge agree, the trial court may
decide the issue of competency on the basis of written expert
reports alone, but a defendant cannot stipulate that he is
competent, especially where he has been previously adjudicated
incompetent in the same criminal proceedings. 149 So. 3d at 678.
Here, the trial court did not abuse its discretion in admitting the
expert reports based on the parties’ agreement and then entering an
independent order finding Damas competent to proceed.
- 19 - Damas blames his counsel for failing to request additional
competency evaluations prior to his guilty plea and the sentencing
hearing. But the record reflects that his counsel had reason to
believe and represent to the court that their client was competent to
proceed. And due to Damas’s lack of cooperation, requesting more
competency evaluations would have been futile.
As Damas’s counsel testified at the postconviction hearing,
they no longer had particular concerns about his competency to
proceed after he was released from the treatment facility. Counsel
believed that Damas was able to understand the legal process and
the rights he was willing to waive, even though he showed little
interest in cooperating with his lawyers, the experts, or the court.
And counsel testified that they had no good faith basis to challenge
the experts’ evaluations. See Nixon v. State, 932 So. 2d 1009, 1020
(Fla. 2006) (“When there is no reason to suspect that a defendant is
incompetent, it cannot be deficient performance if counsel does not
request a competency examination.”); Boyd v. State, 910 So. 2d
167, 187 (Fla. 2005) (holding that once a defendant is determined
competent to stand trial, a presumption of competence attaches to
the defendant in later proceedings; another competency hearing is
- 20 - required only if a bona fide question as to the defendant’s
competency has been raised).
Counsel also testified about Damas’s refusal to cooperate with
the attorneys and experts alike—he had no interest in assisting the
defense team or taking an active part in his defense. Given
Damas’s lack of cooperation, ordering further evaluations would
have been futile—he refused to meet with the experts or answer
their questions. See Smith v. State, 310 So. 3d 366, 373 (Fla. 2020)
(holding that defendant’s lack of cooperation at the penalty phase
undermined his allegations of ineffective assistance of counsel
(citing Brown v. State, 894 So. 2d 137, 147 (Fla. 2004))); Cherry v.
State, 781 So. 2d 1040, 1052 (Fla. 2000) (finding no deficient
performance by counsel because the alleged missing information
was due to the defendant’s lack to cooperation); cf. Sims v. State,
602 So. 2d 1253, 1257-58 (Fla. 1992) (“[W]e do not believe counsel
can be considered ineffective for honoring the client’s wishes.”).
Because Damas fails the Strickland deficiency prong, we need not
consider the prejudice prong. See Martin, 311 So. 3d at 792.
- 21 - B
Damas next contends that he has received ineffective
assistance of counsel because his trial counsel failed to conduct a
timely and adequate mitigation investigation, as a result of which
substantial mitigation evidence was never developed or presented to
the court. Specifically, Damas argues that after the Public
Defender’s Office withdrew from representation, the two court-
appointed attorneys, Mr. Shirley and Mr. Ermacora, failed to build
on the mitigation investigations already developed by the public
defenders. Damas alleged that they failed to follow up on the
potential leads for additional mitigation, work diligently with the
mental health and cultural experts retained by the public
defenders, or adequately prepare the experts to testify at the
sentencing hearing.
The circuit court correctly found that counsel’s performance
was not deficient. We have emphasized that in capital cases, “an
attorney has a strict duty to conduct a reasonable investigation of a
defendant’s background for possible mitigating evidence,” and
counsel’s obligation to investigate and prepare for the penalty
portion of a capital case cannot be overstated. Valentine v. State,
- 22 - 98 So. 3d 44, 53 (Fla. 2012) (quoting State v. Riechmann, 777 So.
2d 342, 350 (Fla. 2000)). But at the same time, we have also
recognized that the reasonableness of counsel’s performance may
be determined or substantially influenced by the defendant’s own
statements or actions: “[W]hen a defendant has given counsel
reason to believe that pursuing certain investigations would be
fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.” Foster
v. State, 132 So. 3d 40, 60 (Fla. 2013) (emphasis omitted) (quoting
Strickland, 466 U.S. at 691); see also Rodriguez v. State, 919 So. 2d
1252, 1263 (Fla. 2005) (finding defendant’s lack of cooperation
limited counsel’s performance, undermining his allegations of
ineffective assistance of counsel); Cherry, 781 So. 2d at 1052
(finding no ineffective assistance of counsel when defendant refused
to supply names of witnesses who would have testified on his
behalf); Rose v. State, 617 So. 2d 291, 294-95 (Fla. 1993) (finding
counsel was not ineffective for failing to contact defendant’s family
members to testify because defendant indicated to counsel his
family would not be helpful).
- 23 - Here, competent, substantial evidence shows that both the
public defenders and the private attorneys worked diligently to
investigate Damas’s mitigation background and effectively present it
to the sentencing court. Defense counsel worked with a team of
specialists, consultants, and experts to investigate Damas’s mental
health and cultural background as mitigating circumstances. The
mitigation specialist, Ms. Murray, and the cultural expert, Dr.
McAlister, went to Haiti to collect mitigating evidence.
After the public defenders withdrew from representation, Mr.
Ermacora and Mr. Shirley continued to work with the mitigation
specialist retained by their predecessor and kept building Damas’s
mitigation background. Both the public defenders and the private
attorneys testified at the postconviction hearing that Damas was a
difficult client to represent because, most of the time, he refused to
discuss his case with counsel and refused to be interviewed by the
mental health experts. Despite Damas’s obstruction and waiver of
mitigation presentation, the defense still managed to develop a full
picture—forty-seven mitigating factors—of his mental status and
familial, social, and cultural background and present it to the
sentencing court.
- 24 - Damas argues that Mr. Shirley and Mr. Ermacora
unreasonably believed that they should wait until after the guilt
phase to conduct a full mitigation investigation and thus missed the
opportunity to talk with Damas and move for leave to conduct
additional tests. Damas’s allegations have little support in the
record. As the witnesses testified at the postconviction hearing, Mr.
Shirley and Mr. Ermacora started working on Damas’s mitigation as
soon as they were appointed in March 2015. Mr. Ermacora testified
that they did not order the additional tests suggested by Dr. Wu
immediately because they expected a longer guilt phase, and the
tests might be unnecessary if Damas were found not guilty.
Damas’s sudden plea of guilty disrupted the plan of his defense.
Furthermore, it is well settled that the timing and scope of the
mitigation investigation fell within counsel’s sound trial strategy,
which cannot be the basis of deficient performance. See Occhicone
v. State, 768 So. 2d 1037, 1048 (Fla. 2000) (“[S]trategic decisions do
not constitute ineffective assistance of counsel if alternative courses
have been considered and rejected and counsel’s decision was
reasonable under the norms of professional conduct.” (citing
Rutherford v. State, 727 So. 2d 216, 223 (Fla. 1998); State v.
- 25 - Bolender, 503 So. 2d 1247, 1250 (Fla. 1987))). Therefore, defense
counsel’s decision to delay the additional tests until after the guilt
phase does not constitute deficient performance.
Damas also fails to show prejudice. The trial court
acknowledged and accorded proper weight to twelve mitigators
presented by the defense, including Damas’s mental wellness,
which he claims hasn’t been sufficiently tested. There is no
reasonable probability that the totality of Damas’s mitigating
circumstances could have overcome the substantial and weighty
aggravators against him.
The circuit court did not err in denying Damas’s ineffective
assistance of counsel claim.
C
In his last claim on appeal, Damas contends that the circuit
court’s denial of his public records requests under chapter 119,
Florida Statutes, and Florida Rule of Criminal Procedure 3.852(g)
and (i) violated his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution and the
- 26 - corresponding Florida law.6 Damas concedes that this claim is
being presented for preservation purposes only.
We review a circuit court’s denial of requests for public records
for abuse of discretion. See Tanzi v. State, 407 So. 3d 385, 391
(Fla.), cert. denied, 145 S. Ct. 1914 (2025). We have repeatedly held
that rule 3.852 does not authorize a fishing expedition for records
unrelated to a colorable claim for postconviction relief. See id.
(citing Cole v. State, 392 So. 3d 1054, 1066 (Fla. 2024)); see also
Sims v. State, 753 So. 2d 66, 70 (Fla. 2000); Asay v. State, 224 So.
3d 695, 700 (Fla. 2017) (“[W]here a defendant cannot demonstrate
that he or she is entitled to relief on a claim or that records are
relevant or may reasonably lead to the discovery of admissible
evidence, the trial court may properly deny a records request.”
(citation omitted)); Valle v. State, 70 So. 3d 530, 547-49 (Fla. 2011)
6. Damas requested additional public records from eight state agencies under rule 3.852(g): Office of the State Attorney, Department of Corrections, Florida Department of Law Enforcement, Collier County Sheriff’s Office, Miami-Dade Police Department, Miami-Dade Aviation Department, Department of Children and Families, and the Medical Examiner. He requested additional public records from five state agencies under rule 3.852(i): North Collier Fire and Rescue District, Florida Department of Health, Florida Department of State Division of Elections, Judicial Qualifications Commission, and Collier County EMS.
- 27 - (“The circuit court has the discretion to deny public records
requests that are ‘overly broad, of questionable relevance, and
unlikely to lead to discoverable evidence.’ ” (quoting Moore v. State,
820 So. 2d 199, 204 (Fla. 2002))).
Here, the circuit court found that Damas failed to show any
specific records relevant to a specified claim for postconviction relief
or a subject matter of the postconviction proceedings. Instead, he
was “seeking to discover if possible claims exist, rather than records
to support a colorable claim for postconviction relief.” We find the
court’s reasons for denial adequate and proper. The circuit court
did not abuse its discretion in denying Damas’s requests. Likewise,
we reject his categorical allegation that denying him access to these
records violated his rights to due process and access to the courts.
See Heath v. State, 3 So. 3d 1017, 1029 n.8 (Fla. 2009) (“Vague and
conclusory allegations on appeal are insufficient to warrant relief.”
(citing Doorbal v. State, 983 So. 2d 464, 482 (Fla. 2008))).
IV
Damas also petitions for a writ of habeas corpus on the
grounds of ineffective assistance of appellate counsel. Damas
raises three claims: his appellate counsel rendered ineffective
- 28 - assistance by failing to (1) challenge the sentencing court’s
improper use of expert competency reports to sentence him to
death; (2) seek appellate review of the sentencing court’s denial of
additional expert funding and tests; and (3) make necessary and
outcome-determinative arguments to challenge the trial court’s
denial of his right to represent himself.
Damas’s petition fails for multiple reasons. “Habeas petitions
are the proper vehicle to advance claims of ineffective assistance of
appellate counsel.” Rutherford v. Moore, 774 So. 2d 637, 643 (Fla.
2000) (citation omitted). And as is true in the rule 3.851 context,
“[t]he criteria for proving ineffective assistance of appellate counsel
parallel the Strickland standard for ineffective trial counsel.” Knight
v. State, 225 So. 3d 661, 681 (Fla. 2017) (alteration in original)
(quoting Mungin v. State, 932 So. 2d 986, 1003 (Fla. 2006)). Thus,
the Court must consider whether the alleged actions or omissions of
counsel fell below the objective standard of reasonableness and
whether such deficiency by counsel compromised the appellate
process to such a degree as to undermine confidence in the
correctness of the result. Id. (quoting Mungin, 932 So. 2d at 1003).
- 29 - In his first claim, Damas faults his appellate counsel for failing
to challenge on direct appeal the trial court’s allegedly improper use
of expert competency reports, especially the one issued by Dr.
Mandelblatt, to sentence him to death. This claim is meritless
because, as we have repeatedly held, appellate counsel may not be
deemed ineffective for failing to challenge an unpreserved error on
direct appeal, unless such a claim rises to the level of fundamental
error. See Hendrix v. State, 908 So. 2d 412, 426 (Fla. 2005) (citing
Rutherford, 774 So. 2d at 646).
Here, the alleged error—the trial court’s reference to the expert
competency reports in its sentencing order—was not preserved for
appellate review, and would not have risen to the level of
fundamental error, given Damas’s waivers of a penalty-phase jury
and mitigation and the gravity of the established aggravators. See
Smiley v. State, 295 So. 3d 156, 172 (Fla. 2020) (“Objected-to
comments are reviewed for harmless error, and unobjected-to
comments for fundamental error. Fundamental error is error that
reaches down into the validity of the trial itself to the extent that the
jury’s recommendation of death could not have been obtained
without the assistance of the alleged error.” (citing Card v. State,
- 30 - 803 So. 2d 613, 622 (Fla. 2001))). To the extent Damas is trying to
relitigate the issue of his competency in his habeas petition, we
have said that he cannot. See State v. Murray, 262 So. 3d 26, 45
(Fla. 2018) (prohibiting the use of ineffective assistance of appellate
counsel claims to relitigate issues presented on direct appeal or in a
postconviction motion (citing Rutherford, 774 So. 2d at 643)).
In his second claim, Damas complains that his appellate
counsel failed to challenge the trial court’s denial of funding for
additional MRI and PET scans and for Dr. Wu to travel to Florida to
testify at the sentencing hearing. This claim is also meritless.
We have held that appellate counsel cannot be deemed
ineffective for failing to raise an issue on direct appeal that would,
in all probability, have been found to be without merit. See
Rutherford, 774 So. 2d at 643 (quoting Williamson v. Dugger, 651
So. 2d 84, 86 (Fla. 1994)). Here, the record reveals that the trial
court denied funding for additional tests because Damas had
knowingly and intelligently waived mitigation, and the original
testing had provided sufficient information on the effect of the car
accident on his mental wellness. In its sentencing order, the trial
court duly considered Damas’s mental illness as possibly caused by
- 31 - the brain damage incurred in the accident and afforded it some
weight. The court soundly exercised its discretion to refuse the
funding for extra tests and experts. See San Martin v. State, 705
So. 2d 1337, 1347 (Fla. 1997) (“A trial court’s refusal to provide
funds for the appointment of experts for an indigent defendant will
not be disturbed unless there has been an abuse of discretion.”
(citing Martin v. State, 455 So. 2d 370, 372 (Fla. 1984))). Appellate
counsel was not ineffective for failing to raise a meritless claim on
direct appeal. And again, ineffective assistance of appellate counsel
is not a panacea for claims already litigated on direct appeal or a
postconviction relief.
As to his third claim, Damas already challenged the trial
court’s denial of his request for self-representation on direct appeal,
and we affirmed. Damas cannot now relitigate the issue under the
guise of an ineffective assistance of appellate counsel claim.
Because his claims are procedurally barred and meritless,
Damas is not entitled to habeas relief on the basis of ineffective
assistance of appellate counsel.
- 32 - V
For all these reasons, we affirm the circuit court’s denial of
postconviction relief and deny the petition for habeas corpus relief.
It is so ordered.
MUÑIZ, C.J., and CANADY, GROSSHANS, FRANCIS, and SASSO, JJ., concur. LABARGA, J., concurs specially with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
LABARGA, J., specially concurring.
I concur with the majority in its determination that Damas’s
postconviction and habeas claims do not warrant relief.
Particularly, I agree that what appears to be a merits-based
challenge to Damas’s competency is procedurally barred. Yet, I
note that the review of Damas’s competency-related ineffective
assistance of counsel claim benefits from the detailed record of
competency proceedings undertaken in this case.
The record reveals that defense counsel, the circuit court, the
State, and mental health experts treated the issue of Damas’s
competency with the serious consideration required under Florida
Rules of Criminal Procedure 3.210, 3.211, and 3.212. During the
- 33 - eight years between Damas’s arrest in 2009 and his sentencing in
2017, he was evaluated for competency twelve times by five
different mental health experts. The circuit court rendered orders
on Damas’s competency in 2011, twice in 2014, and again in 2017.
After competency proceedings resulted in a finding of
competency in 2011, Damas was in fact committed to a treatment
facility following the circuit court’s finding in early 2014 that he was
incompetent to proceed due to a major mental illness. Damas was
later discharged. Upon reevaluation, experts determined that
Damas did not suffer from a major mental illness that would
interfere with his competency, and the circuit court found Damas
competent to proceed. Damas was evaluated for competency again
in 2017 and, in August 2017, the month before entering his guilty
pleas, the trial court again found Damas competent to proceed.
The record also demonstrates that Damas was persistently
uncooperative and contains multiple expert conclusions that
Damas was malingering. These factors naturally informed defense
counsel’s strategy with respect to any suggested issue involving
Damas’s competency, and they undermine Damas’s argument that
counsel’s performance was deficient. Moreover, the record belies
- 34 - any conclusion of prejudice, i.e., that Damas was proceeded against
while incompetent.
An Appeal from the Circuit Court in and for Collier County, Ramiro Manalich, Judge – Case No. 112009CF002298AXXXXX And an Original Proceeding – Habeas Corpus
Suzanne Keffer, Capital Collateral Regional Counsel, James L. Driscoll, Jr., Assistant Capital Collateral Regional Counsel, and Michael T. Cookson, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida,
for Appellant/Petitioner
James Uthmeier, Attorney General, Tallahassee, Florida, and Timothy A. Freeland, Senior Assistant Attorney General, Tampa, Florida,
for Appellee/Respondent
- 35 -