& SC16-183 William A. Gregory v. State of Florida and William A. Gregory v. Julie L. Jones, etc.

Supreme Court of Florida
____________

No. SC15-1663
____________

WILLIAM A. GREGORY,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

____________

No. SC16-183
____________

WILLIAM A. GREGORY,
Petitioner,

vs.

JULIE L. JONES, etc.,
Respondent.

[August 31, 2017]

PER CURIAM.

William A. Gregory appeals an order of the circuit court denying his motion

to vacate his convictions of first-degree murder and sentences of death filed under

Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of
habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the

reasons that follow, we affirm the postconviction court’s order denying

postconviction relief as to the guilt phase. However, we reverse the death

sentences and remand for a new penalty phase based on Hurst v. State (Hurst), 202

So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017), and Mosley v. State,

209 So. 3d 1248, 1268 (Fla. 2016), because the jury’s nonunanimous

recommendation of death by a vote of seven to five as to both murders, is not

harmless beyond a reasonable doubt, for reasons more fully explained below. We

also deny Gregory’s habeas petition except to the extent he seeks relief pursuant to

Hurst. Finally, we affirm the postconviction court’s denial of Gregory’s

Successive Motion to Vacate Judgment and Sentence (Newly Discovered

Evidence).

FACTS AND PROCEDURAL BACKGROUND

The facts of the underlying murders and criminal trial were described in this

Court’s opinion on direct appeal:

William A. Gregory, who was twenty-four years old when the
murders were committed, was for a time involved in a romantic
relationship with Skyler Dawn Meekins, who was seventeen at the
time she was murdered. Skyler and Gregory had a child together,
although their romantic relationship ended in June 2007. Skyler and
Gregory both continued, however, to participate in raising their child.
Around the time their relationship ended, Gregory was in jail
and would often call Skyler’s house. On several occasions, he spoke
with Skyler’s brother, and the two would discuss Skyler’s
whereabouts and activities. During one call, Gregory said he was

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“stressing about Skyler” and asked for information regarding any
other men who might be calling for Skyler. Gregory stated that he
knew Skyler was “trying to . . . get with dudes” and indicated that he
would have to “kind of try to get over Skyler or something.”
During another call, Gregory asked Skyler’s brother to check
Skyler’s e-mail account and online profile for other men with whom
she might be communicating. Gregory told Skyler’s brother that he
had previously accessed Skyler’s e-mail account and “erased . . . all
the dudes she had on there.” Gregory also directed Skyler’s brother to
delete a message Skyler had posted on her online profile about being
newly single. According to an individual who was incarcerated with
Gregory during the period in which these calls were made, Gregory
was jealous of Skyler, did not like the people she was spending time
with, and stated that if he ever caught Skyler “cheating” on him, “he
was going to blow her . . . head off.”
Skyler began dating a new boyfriend, Daniel Arthur Dyer, on
July 4, 2007. Gregory was aware of Skyler’s new relationship with
Daniel, but Gregory would continue to call for Skyler and, after his
release from jail, would visit Skyler’s house several times per week.
According to Skyler’s brother, Gregory would call and stop by to see
Skyler “[a]t least three times a week . . . [u]sually not invited.”
Gregory and Skyler did, however, agree to go shopping together for
their child’s birthday party, and, while he was still in jail, Gregory
would discuss the child on the phone calls he placed.
On August 20, the day before the murders, Gregory, who was
out of jail and on probation, spent the day with his brother and a few
friends. While at one friend’s house, he test-fired a pistol that
someone was trying to sell, possibly leaving gunshot residue on his
hands, and while riding around with his brother and another friend, he
used marijuana and crack cocaine and took pills. Sometime that
afternoon, Gregory called Daniel’s cell phone, asking to speak to
Skyler, who spent the day with Daniel and Daniel’s friend at Daniel’s
house.
Starting at 10:19 p.m. that night, Gregory began making a
number of outgoing phone calls, including several to Skyler’s house.
At 10:26 p.m., an incoming call was made from Skyler’s house to
Gregory’s house number, and there were then six additional outgoing
calls from Gregory to Skyler’s house after the incoming call to
Gregory went unanswered. At 11:31 and 11:32 p.m., Gregory called
the number for a taxicab company that was no longer in business.

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 Gregory’s brother recalled seeing Gregory in their shared
bedroom at approximately 3:00 or 3:30 a.m. in the early morning
hours of August 21. Gregory was wet and mumbling about being
down by the beach. Gregory later told his brother that he passed out
at the beach and awoke with a wave washing up on him, that his shoes
and wallet “got all soaked,” and that he then dove in the pool at a
nearby condominium complex because he was “all . . . sandy.”
At 4:17 a.m., Gregory called 911 to report himself for a
probation violation as a result of his earlier drug use. A law
enforcement officer informed Gregory that Gregory would have to
take the matter up with his probation officer. Gregory’s brother and a
friend said that they had used drugs with Gregory in the past and had
never known him to self-report a probation violation.
Around 6 a.m. that morning, Skyler’s grandparents, who had
been sleeping in the home during the murders, awoke to find Skyler
and her boyfriend Daniel dead in Skyler’s bed. Skyler and Daniel had
each suffered heavy head trauma caused by the firing of a shotgun at
close range while they slept. Skyler’s father, who lived next door,
called the authorities, and sheriff’s deputies were dispatched to the
home. On arrival, the deputies observed Skyler’s and Daniel’s bodies
in a back bedroom, along with a shotgun and two shotgun shells lying
on the floor in front of the bed. Skyler’s grandfather kept a shotgun
and rifles, along with ammunition, in a house closet, which was
usually left unlocked.
Gregory had previously lived with Skyler in that house, and the
guns were kept in the same location during that time. A firearms
analyst concluded that an individual would have to have been familiar
with the particular shotgun used as the murder weapon in this case in
order to load it because it was not a popular shotgun and was “quite
different” in how it would be loaded. Gregory’s fingerprints were
found on this shotgun.
After police had arrived at the home, Skyler’s brother called
and left a message for Gregory at 7:26 a.m., stating, “You better run.”
Gregory placed a 911 call at 8:24 a.m. to report this message to law
enforcement and was taken by law enforcement to the Flagler County
Sheriff’s Office as a result of calling in the threat. Gregory was then
arrested for a violation of probation based on his earlier admissions of
using a controlled substance.
While at the sheriff’s office, Gregory was tested for gunshot
residue. The results were negative, although Gregory apparently

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thought that he had tested positive based on test-firing a pistol the
prior day. Gregory subsequently placed a call to a friend from jail,
telling her not to incriminate herself because the calls were recorded,
and then explaining that law enforcement had taken magnet samples
on his skin and reminding her that he “was popping off that pistol in
the backyard” the previous day.
In subsequent phone calls, Gregory spoke to his mother and
brother about the answers they were giving to law enforcement
regarding his whereabouts at the time of the murders. In particular,
Gregory questioned his mother about why she told investigators that
she did not see him on the morning of August 21, and told her,
“nobody’s helping me out.”
On August 25, Gregory was moved to a different housing
facility. During this time, he was in the same cell block as an inmate
who had been certified as a paralegal, and Gregory discussed his
situation with this inmate. Gregory believed he had tested positive for
gunshot residue and seemed very surprised about this because he said
that was one of the reasons he had jumped in a pool after the incident.
Gregory told the inmate that he used a shotgun instead of a pistol,
thinking there would be less gunshot residue, and figured he must
have tested positive because of firing the pistol the day before the
murders.
According to this inmate, Gregory knew Daniel and Skyler
were together in Skyler’s house on August 21 because Gregory “said
he was outside the house, like watching the house.” Gregory told the
inmate that he “just couldn't stand to see” Skyler with her new
boyfriend and that the “worst part about it all was watching [Skyler]
die.” Gregory also stated to the inmate that he was “frustrated
because he couldn’t talk to his family on the phone because he knew
that it was being recorded” and stated that his family members “were
going to be his alibi.”
Gregory later spoke to a different inmate about his case.
Gregory told this individual that it was “a joke” that the State was
concerned about Gregory having walked to Skyler’s house on the
night of the murders because it was “impossible for that to have
happened.” Gregory stated that he had a ride that night and that he
“did what he had to do.”
Gregory was subsequently indicted and tried for the murders of
Skyler and Daniel. The jury found Gregory guilty of two counts of

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 first-degree murder, one count of burglary, and one count of
possession of a firearm by a convicted felon.

The Penalty Phase
During the penalty phase of Gregory’s trial, the State presented
testimony from Gregory’s probation officer that Gregory was on
felony probation at the time of the murders. Gregory called his sister
and mother to testify. Gregory’s sister testified about Gregory’s
history of drug use, lack of a relationship with his father, and his
witnessing an incident during which she was raped when he was eight
years old. Gregory’s mother testified about two head injuries Gregory
suffered as a child and about the effect her abusive relationships with
men and the rape incident involving Gregory’s sister had on Gregory.
By a vote of seven to five, the jury recommended that Gregory
be sentenced to death for the murders of Skyler Dawn Meekins and
Daniel Arthur Dyer. A Spencer[1] hearing was held thereafter, where
the State presented victim impact testimony and Gregory’s sister
briefly testified on his behalf.
In sentencing Gregory to death for both murders, the trial court
found the following aggravating circumstances as to both victims: (1)
the murders were committed by a person previously convicted of a
felony who was on felony probation (moderate weight); (2) Gregory
was previously convicted of a prior violent felony (very substantial
weight); (3) the murders were committed during the course of a
burglary (moderate weight); and (4) the murders were committed in a
cold, calculated, and premeditated manner, without any pretense of
moral or legal justification (CCP) (great weight). The trial court
found one statutory mitigating circumstance—the murders were
committed while Gregory was under the influence of extreme mental
or emotional disturbance (slight weight)—and six nonstatutory
mitigating circumstances. Finding that the aggravating circumstances
far outweighed the mitigating circumstances, the trial court sentenced
Gregory to death for both murders.

Gregory v. State, 118 So. 3d 770, 775-78 (Fla. 2013) (footnotes omitted).

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

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 On direct appeal, Gregory raised five issues: (1) the trial court erred in

denying his motion to disqualify the judge based on statements the judge made

during a pretrial hearing; (2) the trial court erred in admitting into evidence

threatening statements directed toward the victims made by Gregory to a co-

worker eight months before the murders; (3) the trial court erred in admitting

testimony from a witness who could not identify Gregory in court; (4) the trial

court erred in admitting testimony about a statement Gregory made to one of the

victims; and (5) the trial court erred in instructing the jury on and in finding CCP.

Id. at 778 n.4. This Court denied Gregory relief on all claims and additionally

found that the evidence was sufficient to support Gregory’s first-degree murder

convictions and that Gregory’s death sentences were proportionate. Id. at 787.

Gregory filed a timely Motion to Vacate Judgment and Sentence pursuant to

Rule 3.851, raising twelve claims:

Claim I: Gregory received ineffective assistance of trial
counsel during the guilt phase of his capital trial in violation of his
Fifth, Sixth, Eight [sic], and Fourteenth Amendment rights due to trial
counsel’s failure to properly rebut the State’s theory of prosecution,
that he was motivated by jealous anger;
Claim II: Gregory received ineffective assistance of trial
counsel during the guilt phase of his capital trial in violation of his
Fifth, Sixth, Eight [sic], and Fourteenth Amendment rights due to trial
counsel’s failure to present the testimony of Sheri Meekins;
Claim III: Trial counsel provided ineffective assistance of
counsel by failing to properly impeach State witness [sic] Patrick
Giovine and Tyrone Graves. As a result of trial counsel’s deficient
performance, Mr. Gregory was deprived of his rights under the
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the

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 Constitution of the United States and of his corresponding rights
pursuant to the Declaration of Rights under the Constitution of the
State of Florida;
Claim IV: Trial counsel provided ineffective assistance of
counsel by failing to correct a wrongly transcribed word found in
State’s exhibit #73 and stipulating to the transcript’s accuracy at trial,
thereby violating Mr. Gregory’s rights under the Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments to the Constitution of the United
States and of his corresponding rights pursuant to the Declaration of
Rights under the Constitution of the State of Florida;
Claim V: Trial counsel provided ineffective assistance of
counsel by failing to review and investigate all of Mr. Gregory’s
juvenile justice records independently obtained by the Court and
relied upon during the sentencing decision, thereby violating Mr.
Gregory’s rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendments to the Constitution of the United States and of his
corresponding rights pursuant to the Declaration of Rights under the
Constitution of the State of Florida;
Claim VI: Gregory received ineffective assistance of trial
counsel during the penalty phase of his capital trial in violation of his
rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth
Amendments to the Constitution of the United States and of his
corresponding rights pursuant to the Declaration of Rights under the
Constitution of the State of Florida;
Claim VII: Florida’s capital sentencing structure is
unconstitutional, and couches an ineffectiveness claim therein;
Claim VIII: Ring v. Arizona, 536 U.S. 584 (2002), including
an ineffectiveness sub-claim;
Claim IX: Cumulative error;
Claim X: Lethal Injection constitutes cruel and unusual
punishment;
Claim XI: Gregory is entitled to know the identity of the
execution team members; and
Claim XII: Competency at the time of execution.

The trial court issued an order on January 27, 2015, granting an evidentiary

hearing on Claims I through VI. Claims VII and VIII were summarily denied.

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Claims IX through XII were ruled on as a matter of law at the conclusion of the

hearing.

An evidentiary hearing was held in which Gregory presented witnesses—

Leigha Weber Furmanek, Gregory’s younger sister; Mary Lou Wilson, Gregory’s

maternal grandmother; and Lynda Wilson, f/k/a Lynda Probert, Gregory’s

mother—all of whom supported his claim that his counsel was ineffective in the

guilt phase for failure to rebut the State’s theory that Gregory’s motive for the

murder was jealousy.

After the evidentiary hearing, the trial court issued an order denying all of

Gregory’s postconviction claims. Gregory filed a notice of appeal in this Court.

Shortly thereafter, Gregory filed a successive postconviction motion in the circuit

court alleging newly discovered evidence. Specifically, Gregory’s motion was

based on the affidavit of State witness, Patrick Giovine, which purports to recant

the testimony Giovine gave during Gregory’s original guilt phase trial. This Court

relinquished jurisdiction for the trial court to consider this motion.

Without an evidentiary hearing, the circuit court issued an order denying

Gregory’s successive postconviction motion based on newly discovered evidence.

The postconviction court found that although Giovine’s statement appeared to be a

recantation of his prior testimony, the recantation would not have led to an

acquittal or lesser sentence for Gregory in light of the evidence presented against

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him. Moreover, the postconviction court noted that the trial court did not rely on

Giovine’s testimony in its sentencing order. Gregory subsequently filed an

amended notice of appeal in this Court, also challenging the postconviction court’s

denial of his successive postconviction motion.

As we discuss below, we affirm the denial of the guilt phase claims and

affirm the denial of the newly discovered evidence claim. Because we conclude

that Gregory is entitled to Hurst relief, we decline to address his penalty phase

claims.2

Guilt Phase Claims

Gregory argues that his guilt phase counsel was ineffective for five reasons:

(1) his failure to rebut the State’s theory of prosecution; (2) his failure to call Sherri

Meekins as a defense witness; (3) his failure to impeach the testimony of Patrick

Giovine and Tyronne Graves; (4) his failure to object to an erroneous transcription

of a jailhouse phone call; and (5) cumulative error.

2. We deny Gregory’s claims related to method of execution and identity of
executioners. See, e.g., Allred v. State, 186 So. 3d 530, 542-43 (Fla. 2016)
(rejecting defendant’s claim that he was constitutionally entitled to know the
identity of his execution team and explaining that identity of executioners was not
ascertainable because Governor had not signed death warrant); Muhammad v.
State, 132 So. 3d 176, 205 (Fla. 2013) (explaining that “section 945.10(g), Florida
Statutes (2013), makes the identity of the executioner and any persons preparing,
dispensing or administering lethal injection confidential”); Power v. State, 886 So.
2d 952, 958 (Fla. 2004) (rejecting Power’s claim that his execution is
constitutionally prohibited because Power was insane as premature).

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

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

assistance of counsel claims to be successful, two requirements must be satisfied:

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.

Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010) (quoting Maxwell v.

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

To establish the deficiency prong under Strickland, the defendant must prove

that counsel’s performance was unreasonable under “prevailing professional

norms.” Morris v. State, 931 So. 2d 821, 828 (Fla. 2006) (quoting Strickland, 466

U.S. at 688). “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.

As to the prejudice prong of Strickland, this Court has explained:

“Strickland places the burden on the defendant, not the State, to show
a ‘reasonable probability’ that the result would have been different.”
Wong v. Belmontes, 558 U.S. 15 (2009) (quoting Strickland, 466 U.S.
at 694). Strickland does not “require a defendant to show ‘that
counsel’s deficient conduct more likely than not altered the outcome’
of his penalty proceeding, but rather that he establish ‘a probability
sufficient to undermine confidence in [that] outcome.’ ” Porter v.

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 McCollum, 558 U.S. 30 (2009) (quoting Strickland, 466 U.S. at 693-
94). 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).
Mosley, 209 So. 3d at 1264 (citing Smith v. State, 126 So. 3d 1038, 1042-43 (Fla.

2013)).

“[U]nder Strickland, both the performance and prejudice prongs are mixed

questions of law and fact, with deference to be given only to the lower court’s

factual findings.” Eaglin v. State, 176 So. 3d 900, 906 (Fla. 2015) (quoting

Stephens v. State, 748 So. 2d 1028, 1033 (Fla. 1999)).

1. Failure to Rebut the State’s Theory of Prosecution

Gregory contends that his attorney was ineffective because he failed to rebut

the State’s theory that he was a jealous ex-lover through the use of testimony and

photographs depicting Gregory’s continued relationship with the victim, Skyler

Meekins, in the months preceding her death. As to claim one, the postconviction

court found:

Mr. Gregory alleges trial counsel was ineffective due to his
failure to rebut the State’s theory that the Defendant was motivated by
jealous anger. Counsel did offer evidence of the more favorable side
to Mr. Gregory, and the victim, Skylar [sic] Meekins’ relationship
through the testimony of Leigha Furmanek, Mary Lou Wilson and
Lynda Wilson, f/k/a Lynda Probert. Leigha testified in both the guilt
and penalty phases of trial. At the evidentiary hearing she testified
she had known Skylar [sic] Meekins for approximately twelve years
and considered her a friend. Her brother, William Gregory, was in jail
during most of June 2007. Leigha recalls going to Skylar’s [sic]

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 house and seeing her write letters to Mr. Gregory in jail, also that they
spoke on the phone a lot. Leigha felt that they still cared about each
other and weren’t on bad terms. Mr. Gregory and Ms. Meekins had a
child together who was not yet one at that time. During the months of
June, July and August 2007 Ms. Meekins and Mr. Gregory had spent
the night together at Leigha’s house and had gone to a barbeque there.
When Leigha bonded Mr. Gregory out of jail that July she had
dropped her brother off at Skylar’s[sic] house; she had talked to
Skylar[sic] who asked her to bring him there. During July and August
2007 Mr. Gregory and Ms. Meekins had “a lot of contact” because
they were planning their daughter’s first birthday on July 31, 2007.
Around that time Mr. Gregory advised Leigha that Ms. Meekins was
dating someone else and that he was “okay with that.” This was along
the same lines as Leigha’s trial testimony.
Mr. Gregory’s grandmother, Mary Ann Wilson and mother,
Lynda Wilson also both testified at the trial that Gregory was still on
and off with Skylar [sic] and she had spent the night at the Wilson’s
home, with Mr. Gregory. They were aware that Skylar [sic] was also
dating Dan Dyer, but she and Mr. Gregory continued to see each
other. Their testimony at the evidentiary hearing was consistent with
that presented at the trial.
Mr. Wood testified that he made a strategic decision to omit
some things from the jury such as pictures of Mr. Gregory and Ms.
Meekins, and jail phone calls between them. The concern he had was
the negative impact it would have on the jury due to victim impact
concerns in death penalty cases. Attorney Wood decided not to put on
the happy pictures of them shopping and having a birthday party for
their daughter. He feared the jury would compare them to the pictures
of the crime scene, and that it would have a negative impact on his
client. Also on the phone calls when Mr. Gregory would get “lovey-
dovey” Skylar [sic] Meekins would turn the conversation away to
Kyla, their daughter. It appeared from the phone calls that Mr.
Gregory was the pursuer, while Ms. Meekins, while accepting the
calls, is not reengaging him.
It appears from the record that Attorney Wood’s investigation
was thorough; his trial strategy well-reasoned. This court finds
counsel was neither deficient nor prejudicial pursuant to the
Strickland test.

(Record citations omitted).

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 We conclude that the trial court’s factual findings are supported by

competent, substantial evidence and that the conclusions as to deficiency and

prejudice, along with its conclusions regarding the reasonable strategic decisions of

counsel are factually and legally sound. This Court has explained “strategic

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.” Occhicone v. State, 768 So. 2d 1037, 1048 (Fla.

2000). From the testimony presented, it is clear that Attorney Wood was aware of

the photographs, jailhouse phone calls, and the additional testimony that other

witnesses could have provided that Gregory contends should have been admitted to

rebut the State’s theory.

Moreover, as the postconviction court stated, Attorney Wood explained his

trial strategy in relation to the photographs and jailhouse phone calls during the

postconviction evidentiary hearing. Attorney Wood stated that he considered

admitting the evidence to rebut the State’s theory but ultimately decided against it

fearing that it would constitute an indirect form of victim impact evidence.

Additionally, as the postconviction court stated in its order, the jailhouse phone

calls did not depict Gregory in the best light, showing his attempts to show

affection to Skyler and her obvious rejection of Gregory, a point that would have

served to favor the State’s theory in this case that Gregory was a rebuked, jealous

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ex-lover. Attorney Wood’s actions do not appear unreasonable in light of the

circumstances. Accordingly, we conclude that Attorney Wood was not deficient in

this respect, and the postconviction court correctly denied this claim.

We also conclude that Gregory was not prejudiced by Attorney Wood’s

strategic decision. The jury heard and considered testimony and evidence that

suggested Skyler and Gregory maintained an amicable relationship up to the time

of the murders. The evidence presented at the postconviction evidentiary hearing

through the photographs and testimony detailing Gregory and Meekins’ ongoing

relationship the summer before her death was largely cumulative to the evidence

that was presented during the trial. During the trial, both Gregory’s grandmother,

Mary Ann Wilson, and Gregory’s mother, Lynda Wilson, testified that Gregory

was still on and off with Skyler and she had spent the night at the Wilson’s home,

with Gregory. They also testified that they were aware Skyler was dating Dan

Dyer, even though she and Gregory continued to see each other. More

importantly, the additional evidence could have led the jury to compare the photos

of Meekins alive and well with those of the crime scene, and could have further

highlighted to the jury that Skyler’s one-year-old child was now without a mother.

This is exactly what Attorney Wood feared.

Accordingly, Gregory is not entitled to relief on this claim.

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 2. Failure to Present the Testimony of Sherri Meekins

Next, Gregory contends that his guilt phase counsel was ineffective because

he failed to present the testimony of the victim’s stepmother, Sherri Meekins,

which included information inconsistent with the State’s theory of the case. The

postconviction court denied relief on this claim, stating:

Trial counsel testified that he did not call Sherri Meekins
because she was “a loose cannon.” Although she could have offered
testimony concerning the possibility of Mr. Gregory handling the
murder weapon her testimony would have been a two-edged sword.
Sherri Meekins could also testify that Mr. Gregory had called her
earlier in the day and indicated to her, the victim’s stepmother, that he
would be at the property to see Skylar[sic] Meekins around the time of
the murder. And that after their daughter was born Mr. Gregory and
Skylar[sic] Meekins fought frequently; Gregory would hit Skylar[sic],
and it would end up in terrible screaming and fighting. “Counsel
cannot be deemed ineffective merely because current counsel
disagrees with trial counsel’s strategic decisions.” Occhicone v. State,
768 So. 2d 1037, 1048 (Fla. 2000) (referencing Strickland, 466 U.S. at
689).

(Record citations omitted).

Once again, we conclude that the trial court’s findings of fact are supported

by competent, substantial evidence and we agree with the trial court’s mixed

findings of fact and law as to the reasonableness of the strategic decision, as well

as the lack of deficiency and prejudice, explained more fully below. Attorney

Wood testified that he decided not to call Sherri Meekins because she was a “loose

cannon” and because he did not want her to be able to say that Gregory had called

her the day before the murders with a plan to come see Skyler. Meekins testified

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in her deposition and at the evidentiary hearing that Gregory called her and had

wanted to come to the Meekins’ property on the night of the murders to pay Skyler

for a puppy. Meekins thought this was unusual because he had obtained the puppy

some time before that. Meekins also testified that she suffers from a long history

of mental illness and was manic at the time of the trial. Although Meekins testified

at the evidentiary hearing to some points that could be helpful to Gregory, she also

testified that she could not differentiate between guns; had never seen Gregory

touch the gun in the closet with the vacuum cleaner; Gregory was one of the oldest

people who hung out at the Meekins’ residence, while the other kids were middle-

and high-school aged; she was bothered by Gregory’s behavior including an

incident where he just came into her house uninvited in the middle of the night;

and Gregory knew which doors were locked, which ones were not, and which ones

were broken in the house where Skyler lived.

Further, Gregory’s reliance on Sears v. Upton, 561 U.S. 945, 951 (2010),

Porter v. McCollum, 558 U.S. 30, 39 (2009), and Williams v. Taylor, 529 U.S.

362, 396 (2000), is misplaced. In those cases, the Supreme Court acknowledged

that potentially helpful evidence may not have been uniformly favorable to the

defendant, but counsel’s failure to investigate and develop that evidence fell below

the standards expected of a reasonable capital defense attorney. In this case, by

contrast, Attorney Wood carefully considered calling Meekins to testify. However,

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after concluding that her testimony was more harmful than helpful, he decided

against it. This is the quintessential strategic decision, made after considering and

weighing the benefits versus the harms. Accordingly, we conclude that Gregory’s

attorney was not deficient in this respect.

Additionally, Gregory has failed to demonstrate prejudice. As the State

notes, had Attorney Wood called Sherri Meekins to testify that she saw Gregory

shooting a gun, such information would not have lent any more credibility to

Gregory’s defense, nor would it have created reasonable doubt. Moreover, the

State could have cross-examined Meekins and elicited such information as

Gregory was planning on coming over to the Meekins residence on the night of the

crimes for a reason she described as “strange” and that she was bothered by

Gregory’s behavior including an incident where he just came into her house

uninvited, in the middle of the night. Because Attorney Wood made a reasonable

strategic choice after a thorough examination of the case, and even if trial counsel

had elicited testimony from Sherri Meekins, there is no prejudice as our confidence

in the outcome is not undermined.

Accordingly, Gregory is not entitled to relief on this claim.

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 3. Failure to Impeach the Testimony of State Witnesses Patrick Giovine and
Tyrone Graves

Gregory contends that trial counsel was ineffective for failing to impeach

two jailhouse “snitches” who testified for the State at trial. The postconviction

court denied this claim, stating:

During the trial both Mr. Graves and Mr. Giovine were called
by the state to testify about conversations they claimed to have had
with Mr. Gregory in the Flagler County Inmate Facility; one witness
prior to the murders and one witness after. The witness Graves was
unable to identify anyone in the courtroom of being William or Billy
Gregory, the Appellant. A review of the record demonstrates
Attorney Wood successfully crossexamined Mr. Graves on many of
the statements he made, including impeaching him with prior
statements. Likewise, Attorney Wood conducted a thorough cross-
examination of witness Giovine.
At the evidentiary hearing Trial counsel testified that he
handled the discrepancies in their testimonies on cross-examination.
He felt he had effectively impeached them to poke holes in the state’s
case. He stated “[b]ased on the responses they gave and their
demeanor and the way they appeared, I did not think the state had
good witnesses out of either of those two individuals.” “Fair
assessment of attorney performance, for purposes of reviewing claim
for ineffective assistance of counsel, requires that every effort be
made to eliminate distorting effects of hindsight, to reconstruct
circumstances of counsel’s challenged conduct, and to evaluate
conduct from counsel’s perspective at the time.” Blake v. State, [180
So. 3d 89] (Fla. 2014) (citing Strickland, 466 U.S. at 689). Review of
the trial record does not demonstrate a deficiency; counsel appeared to
have carefully picked issues he wished to impeach the witnesses on.
Counsel made a strategic decision; counsel’s reasonable trial decisions
do not constitute ineffective assistance of counsel. Jones v. State, 845
So. 2d 55, 65 (Fla. 2003). Further, the testimony of these two
witnesses was not prejudicial to the outcome of the case.

(Record citations omitted.)

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 The postconviction court’s factual findings are supported by competent,

substantial evidence and its conclusions as to deficiency and prejudice are not in

error. Gregory contends that Attorney Wood should have used statements Giovine

made during an initial interview with an investigator,3 which were inconsistent

with the evidence presented at trial prior to Giovine’s testimony in order to

impeach Giovine. On cross-examination, trial counsel impeached Giovine with

one prior felony conviction and one felony withheld; the fact his prison exposure

was sixty years and he had entered a plea for eight to twelve years; the fact he had

threatened the State that he would not testify unless he got a better deal; and the

fact he was not going to testify but to save his own skin. It is clear that trial

counsel had Giovine’s statements, was familiar with them, and could impeach

3. During his interview Giovine stated: “[Gregory] just said . . . he told me
they got shot—shot twice, both—each of them got shot twice.” Giovine said the
victims were both shot once in the chest and in the head. Giovine stated that “Dan
was on the floor and Skyler was on the bed,” and that the police never found the
murder weapon. Finally, Giovine said that only Skyler, Dan, and Skyler’s
grandfather were in the house at the time of the murders. During this same
interview, Giovine admitted he had read documents which belonged to Mr.
Gregory, specifically newspaper articles about the murders. However, prior to
Giovine’s testimony, the following unrefuted evidence was introduced by the
State: (1) Meekins and Dyer were both lying on the bed at the time of the murders;
(2) Meekins and Dyer were both shot once in the head; (3) the murder weapon was
found on the floor next to the bodies and; (4) Meekins, Dyer, both Meekins’
grandparents, and Kyla were all in the house at the time of the murders.

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Giovine with the information contained therein if he thought it was beneficial to do

so.

On cross-examination, trial counsel impeached Graves with his five prior

felony convictions; the fact his first-degree felony charge was still pending and his

possible prison exposure; the fact he had talked to a guard and other inmates, and

read an article pertaining to the murders prior to giving his statement; and the fact

he had been a confidential informant previously. Gregory used Graves’ jail PIN to

call Skyler in an attempt to trick her into answering because she would not answer

for Gregory. Based on Attorney Wood’s impeachment of Graves at trial, it is clear

that Attorney Wood had Graves’ statements, was familiar with them, and could

impeach Graves with the information contained therein if he thought it was

beneficial to do so.

“[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.” McLean v. State, 147 So. 3d 504, 510 (Fla.

2014) (quoting Strickland, 466 U.S. at 687). As with other decisions Gregory’s

attorney made, the assertions regarding deficiency are classic attempts to assess

counsel’s conduct after the fact.

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 In this case, Gregory has not established that reasonable trial counsel would

have used the statements to impeach Graves or Giovine as opposed to attacking the

testimony on cross-examination as Attorney Wood did. It is unclear what Attorney

Wood could have done differently that would have been more effective in this

case.

Further, Gregory has failed to explain how he was prejudiced by any

alleged deficiency. As Attorney Wood testified at the evidentiary hearing, he did

not believe, following his cross-examination of both witnesses, that “the State had

good witnesses out of either of those two individuals.” There can be no prejudice

for failing to further impeach Graves because even without Graves’ testimony, the

State could still argue that Gregory would repeatedly call Skyler in an attempt to

reach her and then become frustrated when he could not. As to Giovine, who later

recanted his testimony—the subject of Gregory’s newly discovered evidence claim

—the State presented three other jailhouse informants who testified in varying

ways, including that Gregory prophetically stated that he would “blow [the

victim’s] f’ing head off” if she cheated on him. Giovine did not testify that

Gregory actually confessed the murder to him, but only that Gregory said that he

“did what he had to do” and that Giovine assumed that Gregory meant committing

the murders.

Accordingly, Gregory is not entitled to relief on this claim.

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 4. Failure to Object to an Erroneous Transcription

Gregory contends that Attorney Wood was ineffective for failing to object to

the erroneous transcription of one of the jailhouse phone calls presented at trial.

Specifically, Gregory contends that on the call he actually stated to his mother: “I

tried calling back a couple of times and that f***ing told me that, you know, she

wasn’t there,” while the call was transcribed to indicate that he stated: “I tried

calling back a couple of times and that f***er told me that, you know, she wasn’t

there.” The postconviction court denied this claim, stating:

Trial counsel failed to correct a significant word found in state’s
Ex #73—“f[***]er” instead of “f[***]ing.” Ex. # 73 is audio
recording of a jail call. It is alleged the transcript contained the error;
Appellant also claims the transcript, with error, improperly went back
with jury for deliberation.
At the evidentiary hearing Attorney Wood testified that the
ultimate meaning of the call did not change: “to listen to the phone
call, it was very clear that Mr. Gregory was not happy about Mr. Dyer
being in the picture at all.” Mr. Gregory did not protest to Attorney
Wood that what was being presented to the jury was inaccurate. Mr.
Gregory made no showing that the jury having read the word
“f[***]er” instead of “f[***]ing” would have been, more inclined to
find him guilty.
The transcripts in this case were properly used as demonstrative
aids and did not go back to the jury room. Attorney Wood testified it
is his common practice to inspect the evidence that’s been marked
before the bailiff takes it back to the jury room and he did that in this
case. He would not allow unmarked exhibits to go back to the jury
room.
June Laws, the deputy clerk in the case sub Judice, testified that
she separates marked exhibits from demonstrative aids, and only
marked exhibits are given to the bailiff to take into the jury room.
Deputy Taylor, the bailiff in this case, testified that he only took the
marked exhibits back to the jury room.

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 Additionally, the Court repeatedly advised the jury to rely on
the audio, it was the evidence; the transcripts were simply an aid. Mr.
Gregory has failed to meet his burden, neither deficiency nor
prejudice was shown as required by Strickland.

(Record citations omitted.) We agree. Gregory did not produce any evidence to

support his assertion that the word “f***ing” was, in fact, transcribed inaccurately

as the word “f***er,” or that the difference in words undermined confidence in the

outcome of the case.

Attorney Wood testified that Gregory was sitting beside him at counsel

table, going through the transcripts as the jailhouse calls were being played for the

jury, and Gregory never relayed to Attorney Wood that the calls had been

inaccurately transcribed or otherwise indicated the transcription said something

different from what he had said on the call. Moreover, Gregory did not produce

any evidence demonstrating that the meaning of the jailhouse call was at all

changed by the exchange of expletives from the noun to the adjective form, or that

the jury, having read the word “f***er” in the demonstrative aid rather than

“f***ing,” would have been more inclined to find Gregory guilty. Attorney Wood

testified that, regardless of the word, the overall meaning and intent behind the call

was clear: Gregory was not happy that Meekins was dating another man.

Finally, the jury saw the transcript twice—once while the call was played

and again on an overhead projector during closing arguments. There was

testimony during the evidentiary hearing that the transcripts were properly used as

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demonstrative aids and did not go back into the jury room. Each transcript was

collected at the end of the phone call to which it pertained. Accordingly, we

conclude that Attorney Wood was not deficient.

Additionally, we conclude there was no prejudice in this case. Gregory has

not demonstrated that the jury would have reached a different conclusion if the

transcription, which they saw only twice for a short period of time, read “f***ing”

instead of “f***er.” As Attorney Wood testified at the postconviction evidentiary

hearing, regardless of the word choice, from Gregory’s tone and demeanor during

the phone call, it was clear that Gregory was not happy that Dyer was in the

picture. Thus, it was Gregory’s overall tone and demeanor on the call that was the

most damaging aspect of the testimony, not the exact language he used.

Accordingly, Gregory is not entitled to relief on this claim.4 We now

address the newly discovered evidence claim that also relates to the guilt phase.

GREGORY’S SUCCESSIVE MOTION FOR POSTCONVICTION RELIEF
BASED ON NEWLY DISCOVERED EVIDENCE

After the circuit court’s denial of Gregory’s postconviction claims of

ineffective assistance of counsel, Gregory filed a successive postconviction motion

in the circuit court alleging newly discovered evidence. Specifically, Gregory’s

4. Because Gregory has failed to prove ineffective assistance of counsel on
each of the underlying claims, we also conclude that Gregory is not entitled to
relief on his claim of cumulative error.

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motion was based on the affidavit of State witness, Giovine, which purports to

recant the testimony Giovine gave during Gregory’s original guilt phase trial.

Because the denial of the postconviction motion was on appeal, this Court

relinquished jurisdiction for the trial court to address this newly discovered

evidence claim.

The circuit court did not hold an evidentiary hearing but denied Gregory’s

motion after concluding that although Giovine’s statement appeared to be a

recantation of his prior testimony, it would not have led to an acquittal or lesser

sentence for Gregory in light of the evidence presented against him.

A defendant may obtain a new trial based on newly discovered evidence if

he satisfies two requirements. “First, the evidence must not have been known by

the trial court, the party, or counsel at the time of trial, and it must appear that the

defendant or defense counsel could not have known of it by the use of diligence.”

Tompkins v. State, 994 So. 2d 1072, 1086 (Fla. 2008). “Second, the newly

discovered evidence must be of such nature that it would probably produce an

acquittal on retrial.” Id. (citing Jones v. State, 709 So. 2d 512, 521 (Fla. 1998)).

“If the defendant is seeking to vacate a sentence, the second prong requires that the

newly discovered evidence would probably yield a less severe sentence.” Id.

(citing Jones v. State, 591 So. 2d 911, 915 (Fla. 1991)). In cases concerning

recanted testimony as newly discovered evidence, the court must be satisfied that

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the recantation is true and that the recanted testimony would probably render a

different outcome in the proceeding. Davis v. State, 26 So. 3d 519, 526 (Fla.

2009). Further, when “determining the impact of the newly discovered evidence,

when a prior evidentiary hearing has been conducted, the trial court is required to

consider all newly discovered evidence which would be admissible at trial and then

evaluate the ‘weight of both the newly discovered evidence and the evidence

which was introduced at trial.’ ” Melton v. State, 193 So. 3d 881, 885 (Fla. 2016)

(quoting Jones, 709 So. 2d at 521).

Regardless of whether the affidavit represents a recantation of Giovine’s

testimony, we agree with the postconviction court that the new testimony would

not have resulted in an acquittal on retrial. As the postconviction court stated:

At trial, the State presented several witnesses who provided
overwhelming evidence of Defendant’s guilt. Mr. Bowling,
Defendant’s former co-worker, testified that Defendant commented
that if his girlfriend ever cheated on him, he would kill her and the
other man. Defendant’s former cell mate, Mr. Graves, testified that
Defendant told him that if he were to ever catch the victim cheating,
“he was going to blow her f***ing head off.” Another former cell
mate, Mr. Goebel, testified that Defendant told him that he watched
victim Meekins’ house, that he killed her, and that his family would
be his alibi for the murders. Mr. Goebel also testified that Defendant
told him that he was surprised that he tested positive for gun residue
since he went into the swimming pool after the incident in an effort to
remove any gun residue that may have been present.
A friend of victim Dan Dyer, Mr. Green, testified that victim
Dyer told him that Defendant stated that victim Dyer ruined his life.
Victim Meekins’ neighbor, Mr. Mahoney, testified that on the night of
the murders he heard noises outside of his house and voices that stated
“we’re over here” prior to hearing a car door close. Mr. Mahoney’s

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 testimony rejects Defendant’s theory that it was impossible to have
walked to victim Meekins’ home when the crimes were committed.
Mr. Tucker, a Florida Department of Law Enforcement Analyst,
testified that Defendant’s fingerprints were found on the shotgun that
was used in the murders.
Additionally, testimony was presented at trial that Defendant
was possessive and excessively called victim Meekins wanting to
know her whereabouts and who she was with when she was not home.
Audio recordings of Defendant and victim Meekins’ brother, Colton
Meekins (hereinafter “Mr. Meekins”), were played to the jury. The
audio recordings reflected that Mr. Meekins went into victim
Meekins’ online accounts and read and erased messages from other
men. The audio recordings also reflected that Defendant admitted that
he went into victim Meekins’ online account in the past and deleted
messages from other men. The jury heard telephone calls between
Defendant and his brother, Kory Gregory (hereinafter “Mr. Gregory”),
that reflected Defendant’s attempt to influence his family members’
statements.

(Record citations omitted.)

We conclude that, for the same reasons we find that Gregory was not

prejudiced by his attorney’s failure to further impeach Giovine during the trial,

Gregory would not have been acquitted had he been granted a new trial based on

the newly discovered evidence of Giovine’s recantation.

Accordingly, we affirm the postconviction court’s order denying Gregory

relief.

Hurst

In Hurst v. Florida, 136 S. Ct. 616 (2016), the United States Supreme Court

held that Florida’s capital sentencing scheme was unconstitutional because “[t]he

Sixth Amendment requires a jury, not a judge, to find each fact necessary to

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impose a sentence of death. A jury’s mere recommendation is not enough.” Id. at

619. On remand, this Court held that a unanimous jury recommendation is

required before the trial court may impose a sentence of death. Hurst, 202 So. 3d

at 57. Moreover, this Court 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.” Id. at 54. This Court also determined that Hurst error

is capable of harmless error review. Id. at 68.

Hurst applies retroactively to defendants whose sentences became final after

the United States Supreme Court issued its decision in Ring v. Arizona, 536 U.S.

584 (2002). Mosley, 209 So. 3d at 1283. Thus, Hurst applies retroactively to

Gregory’s sentences, which became final in 2013. Accordingly, we must

determine whether the Hurst error during Gregory’s penalty phase proceeding was

harmless beyond a reasonable doubt.

As this Court has stated, “in the context of a Hurst v. Florida error, the

burden is on the State, as the beneficiary of the error, to prove beyond a reasonable

doubt that the jury’s failure to unanimously find all the facts necessary for

imposition of the death penalty did not contribute to [the] death sentence.” Hurst,

202 So. 3d at 68. As applied to the right to a jury trial with regard to the facts

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necessary to impose the death penalty, it must be clear beyond a reasonable doubt

that a rational jury would have unanimously found that each aggravating factor

was proven beyond a reasonable doubt, that there were sufficient aggravating

factors to impose death, and that the aggravating factors outweighed the mitigating

circumstances. Id.

In Gregory’s case, we conclude that the State cannot establish that the Hurst

error was harmless beyond a reasonable doubt. Here, the jury neither unanimously

made the requisite factual findings nor unanimously recommended a sentence of

death. Instead, the jury recommended both of Gregory’s death sentences by a vote

of seven to five. Therefore, this Court has no way of knowing if the jury

unanimously found whether the four aggravating factors—(1) the murders were

committed by a person previously convicted of a felony who was on felony

probation; (2) Gregory was previously convicted of a prior violent felony; (3) the

murders were committed during the course of a burglary; and (4) the murders were

committed in a cold, calculated, and premeditated manner, without any pretense of

moral or legal justification (CCP)—were sufficient to impose a sentence of death

or whether the aggravating factors outweighed the mitigating circumstances. In

this case, the trial court found one statutory mitigating circumstance—the murders

were committed while Gregory was under the influence of extreme mental or

emotional disturbance—and six nonstatutory mitigating circumstances. This Court

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cannot speculate why the five jurors who voted to recommend a sentence of life

imprisonment determined that a sentence of death was not the appropriate

punishment. Thus, we conclude that the Hurst error in Gregory’s case was not

harmless beyond a reasonable doubt. In doing so, we note that the jury in

Gregory’s case recommended a sentence of death by the same narrow vote that

Timothy Lee Hurst’s jury recommended death where the aggravating factors

presented required a factual determination. See Hurst, 202 So. 3d at 47.

Accordingly, we vacate Gregory’s death sentences and remand for a new

penalty phase.

HABEAS PETITION

In a separate petition for writ of habeas corpus, Gregory raises a Hurst claim,

which we have already addressed and granted him relief. The only substantive

claim that Gregory raises in his habeas petition regarding the guilt phase is that

Gregory’s attorney on direct appeal was ineffective for failing to raise the issue

that Gregory’s jailhouse phone calls should not have been admitted at trial.

First, to the extent Gregory contends that appellate counsel was ineffective

for failing to argue that the court erred by admitting, over the defense objection,

the jailhouse phone calls that were introduced by the State, we conclude that

Gregory is not entitled to relief. Appellate counsel is not required to argue every

preserved issue on appeal, particularly when that issue is meritless. In Simmons v.

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State, 105 So. 3d 475, 512 (Fla. 2012) (citing Davis v. State, 928 So. 2d 1089,

1126-27 (Fla. 2005)), this Court recognized that appellate counsel cannot present

every conceivable claim on direct appeal.

Because we conclude that the trial court did not abuse its discretion in

allowing the jailhouse phone calls to be admitted, we deny relief as to this claim.

The phone calls at issue were taped while Gregory was incarcerated during the

summer of 2007, before the murders. In denying the defense’s motion in limine

with respect to the calls, the trial court stated:

The State MAY offer as evidence relevant recorded telephone
conversations between the Defendant and certain witnesses while the
Defendant was incarcerated in the Flagler and St. Johns County Jails.
These calls include, but are not limited to, the following:
a. Conversations between the Defendant and Skyler Meekins’
brother, Colton Meekins, prior to the murders concerning Skyler
Meekins’ whereabouts, activities and communications as they related
to other guys. These conversations include, but are not limited to
requests by the Defendant for Colton Meekins to access Skyler
Meekins’ home computer, review her personal e-mails and MySpace
account, and delete photographs of and communications between
other guys. Such conversations are relevant to the issue of motive and
are, accordingly, admissible at trial.
b. Conversations between the Defendant and Skyler Meekins,
Kory Gregory and/or Linda Probert prior to the murders concerning
the relationship between the Defendant and Skyler Meekins, Skyler
Meekins’ conduct, and/or the Defendant’s plans when he was released
from jail. These-conversations provide the context and background of
the relationship and are relevant to the issue of motive.
c. Conversations between the Defendant and Kory Gregory and
Linda Probert after the murders pertaining to his association to the
murders, or the lack thereof. Such statements are clearly relevant to
the issues of this case.

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 d. Conversations between the Defendant and Amber Curnutt
after the murders in which the Defendant discusses shooting a gun the
day before the murders and her relaying that information to law
enforcement. As stated previously, these statements are relevant to
the issue of the Defendant’s consciousness of guilt.
These calls, collectively, are quite lengthy and include a
number of conversations that are not relevant to any issue in the case.
These irrelevant conversations must be redacted prior to their
publication of them at trial. Counsels for the State and the Defendant
have agreed to collaborate and attempt to agree on the necessary
redactions. To the extent that the parties are not able to agree, then
they will submit to the court those conversations that remain in
dispute, at which time the court will resolve the matter.

This ruling was not erroneous. The calls may have painted Gregory in a bad light,

as Gregory contends; however, they also had considerable probative value as to the

context of Gregory’s relationship with Meekins and Gregory’s possible motive for

the crime. Additionally, the trial court required the State to redact the phone calls

by removing any irrelevant information. Accordingly, had appellate counsel raised

this claim on appeal it would have been rejected. Appellate counsel cannot be

ineffective for failing to raise a meritless claim. Simmons, 105 So. 3d at 512.

Next, with respect to Gregory’s Cronic5 claim, this claim is not a proper

habeas claim and, in any event, it is without merit as to any inference that his

appellate counsel did not function as proper appellate counsel. While we

acknowledge that the appellate brief was only twenty-eight pages, Gregory has

5. United States v. Cronic, 466 U.S. 648 (1984).

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failed to address any other meritorious issues that should have been raised. Thus,

this claim is meritless.

Accordingly, we deny habeas relief.

CONCLUSION

For the foregoing reasons, we affirm the denial of both of Gregory’s motions

for postconviction relief and we deny Gregory’s petition for habeas corpus relief.

However, we vacate Gregory’s sentences of death and remand for a new penalty

phase proceeding under Hurst.

It is so ordered.

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

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

LAWSON, J., concurring specially.

See Okafor v. State, 42 Fla. L. Weekly S639, S641, 2017 WL 2481266, at

*6 (Fla. June 8, 2017) (Lawson, J., concurring specially).

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

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

sentence pursuant to Hurst.

CANADY, J., concurs.

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An Appeal from the Circuit Court in and for Flagler County,
Joseph David Walsh, Judge - Case No. 182007CF000866XXXXXX
And an Original Proceeding – Habeas Corpus

Jim Viggiano, Capital Collateral Regional Counsel, Middle Region, Julie A.
Morley, and Mark S. Gruber, Assistant Capital Collateral Regional Counsel,
Middle Region, Temple Terrace, Florida,

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Tayo Popoola,
Assistant Attorney General, Daytona Beach, Florida,

for Appellee/Respondent

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