holding a challenge to the constitutionality of rule 4 — 3.5(d)(4) procedurally barred in postcon-viction proceedings and noting moreover *1028 that “this Court has repeatedly rejected claims that Rule Regulating the Florida Bar 4 — 3.5(d)(4) is unconstitutional”
How later courts described this case
- holding a challenge to the constitutionality of rule 4 — 3.5(d)(4) procedurally barred in postcon-viction proceedings and noting moreover *1028 that “this Court has repeatedly rejected claims that Rule Regulating the Florida Bar 4 — 3.5(d)(4) is unconstitutional”
- holding a challenge to the constitutionality of rule 4–3.5(d)(4) procedurally barred in postconviction proceedings and noting moreover that “this Court has repeatedly rejected claims that Rule Regulating the Florida Bar 4–3.5(d)(4) is unconstitutional”
- concluding that the defendant failed to demonstrate that the proffered evidence had a reasonable probability of changing the outcome, which is a probability sufficient to undermine confidence in the verdict
- reiterating that the capital defendant has no right under Atkins to a jury determination whether he is mentally retarded
Written by the judges who cited it.
The opinion
PARIENTE, J.,
concurring in result.
I do not fully concur in the majority opinion because in my view trial counsel was deficient for failing to adequately investigate Kilgore’s childhood and mental health history during the 1994 penalty phase. Thus, I do not agree that Bobby v. Van Hook, — U.S. —, 130 S.Ct. 13 , 175 L.Ed.2d 255 (2009), is applicable to the deficiency prong of this claim.
As we have explained, “[A]n attorney has a strict duty to conduct a reasonable investigation of a defendant’s background for possible mitigating evidence.” Ragsdale v. State, 798 So.2d 713, 716 (Fla.2001) (quoting State v. Riechmann, 777 So.2d 342, 350 (Fla.2000)). In this case, trial counsel failed to conduct a reasonable investigation by failing to discover additional sources of mitigating evidence available concerning Kilgore’s childhood and mental health history, including evidence with regard to the time Kilgore was institutionalized at the Oakley Training School, where he experienced frequent beatings.
Nonetheless, I concur in the result reached by the majority because I agree that Kilgore failed to establish actual prejudice as to this claim.