          Supreme Court of Florida
                                   ____________

                                  No. SC14-2351
                                  ____________

                              ROBERT JOE LONG,
                                  Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                 [January 21, 2016]

PER CURIAM.

      Robert Joe Long, a prisoner under sentence of death, appeals the summary

denial of his successive motion for postconviction relief filed pursuant to Florida

Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1),

Fla. Const. For the reasons that follow, we affirm the postconviction court’s order.

      Long raised four issues on direct appeal, including whether the trial court

erred in denying his motion to vacate his plea agreement. Long v. State (Long I),

529 So. 2d 286, 291 (Fla. 1988). This Court affirmed Long’s convictions and

sentences, except the death sentence imposed for the murder of Michelle Denise

Simms, which this Court vacated and remanded for a new sentencing proceeding
before a new jury. Id. at 287. After the second penalty phase, the jury

unanimously recommended a sentence of death, and Long appealed, raising

thirteen issues, including the validity of his guilty plea. See Long v. State (Long

II), 610 So. 2d 1268, 1273-74 (Fla. 1992). This Court again affirmed the validity

of Long’s guilty plea, concluded the State’s expert rebuttal testimony was proper,

found his remaining claims without merit or harmless, and affirmed the sentence of

death on appeal. Id. at 1275.

      After this Court’s affirmance of his convictions and sentences, Long again

raised the validity of his guilty plea, as well seven additional claims, as a basis for

seeking postconviction relief. See Long v. State (Long III), 118 So. 3d 798, 803

(Fla. 2013). On appeal, this Court affirmed the postconviction court’s denial of

relief on all claims. See id. at 806.

      On September 9, 2014, Long filed a successive motion for postconviction

relief, claiming that newly discovered evidence rendered his guilty plea invalid.

Specifically, Long argued that he would not have entered into the plea had he

known of the issues surrounding the forensic testing performed by Federal Bureau

of Investigation (FBI) examiner Michael Malone. The successive motion alleged

that Long’s counsel, Robert Norgard, received a letter from the United States

Department of Justice (USDOJ) dated September 27, 2013, which notified Norgard




                                          -2-
of the questionable forensic testing practices of thirteen FBI examiners, including

Malone who tested the hair and fiber evidence used to convict Long.

      The letter further notified counsel of the Office of Inspector General’s (OIG)

Report issued in 1997 which identified the thirteen FBI examiners. United States

Department of Justice/Office of the Inspector General, The FBI Laboratory: An

Investigation in to Laboratory Practices and Alleged Misconduct in Explosives-

Related and Other Cases, (April 15, 1997) (“1997 OIG Report”). The letter also

included eight independent case review (ICR) reports completed by an independent

analyst hired by the FBI to review Malone’s forensic work in Long’s cases.

      On December 20, 2013, Norgard received another letter from USDOJ

notifying him of two additional ICR reports that related to Malone’s forensic work

in Long’s cases, but the USDOJ enclosed all ten ICR reports out of an abundance

of caution. Again, the USDOJ contacted Norgard by e-mail on July 30, 2014, to

notify him of another OIG report dated July 2014 which was provided to counsel

via an e-mail link. United States Department of Justice/Office of the Inspector

General, An Assessment of the 1996 Department of Justice Task Force Review of

the FBI Laboratory, (July 2014) (“2014 OIG Report”).

      After viewing the State’s response and conducting a case management

conference, the postconviction court issued an order summarily denying Long’s

successive postconviction motion as time-barred because the newly discovered


                                        -3-
evidence was information that could have been ascertained with the exercise of due

diligence. We agree.

      This Court set forth the requirements for initial and successive

postconviction motions under Florida Rule of Criminal Procedure 3.851 and the

standard of review in Hunter v. State, 29 So. 3d 256 (Fla. 2008):

              Rule 3.851(f)(5)(B) permits the denial of a successive
      postconviction motion without an evidentiary hearing “[i]f the motion,
      files, and records in the case conclusively show that the movant is
      entitled to no relief.” Because a court’s decision whether to grant an
      evidentiary hearing on a rule 3.851 motion is ultimately based on
      written materials before the court, its ruling is tantamount to a pure
      question of law, subject to de novo review. See State v. Coney, 845
      So. 2d 120, 137 (Fla. 2003) (holding that “pure questions of law” that
      are discernable from the record “are subject to de novo review”). In
      reviewing a trial court’s summary denial of postconviction relief, this
      Court must accept the defendant’s allegations as true to the extent that
      they are not conclusively refuted by the record. Rutherford v. State,
      926 So. 2d 1100, 1108 (Fla. 2006) (citing Hodges v. State, 885 So. 2d
      338, 355 (Fla. 2004)). The summary denial of a newly discovered
      evidence claim will be upheld if the motion is legally insufficient or
      its allegations are conclusively refuted by the record. McLin v. State,
      827 So. 2d 948, 954 (Fla. 2002) (citing Foster v. State, 810 So. 2d
      910, 914 (Fla. 2002)).
Hunter, 29 So. 3d at 261. “The burden is on the defendant to establish a legally

sufficient claim.” Duckett v. State, 148 So. 3d 1163, 1168 (Fla. 2014) (quoting

Nixon v. State, 932 So. 2d 1009, 1018 (Fla. 2006)).

      Florida Rules of Criminal Procedure 3.850 and 3.851 govern the timeliness

of postconviction motions. Florida Rule of Criminal Procedure 3.851(d)(1)

specifically prohibits the filing of a postconviction motion in death cases more than


                                        -4-
one year after the judgment and sentence become final unless “the facts on which

the claim is predicated were unknown to the movant or the movant’s attorney and

could not have been ascertained by the exercise of due diligence.” Fla. R. Crim. P.

3.851(d)(2)(A); Glock v. Moore, 776 So. 2d 243, 251 (Fla. 2001).

      If a defendant seeks to make a newly discovered evidence claim, he must

timely file a postconviction motion based on newly discovered evidence to vacate

his judgment and sentence and meet a two-prong test set forth in Jones v. State,

(Jones I), 591 So. 2d 911 (Fla. 1991):

      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. Second, the newly discovered evidence must be of such
      nature that it would probably produce an acquittal on retrial. See
      Jones v. State, [Jones II] 709 So. 2d 512, 521 (Fla. 1998) . . . .

Tompkins v. State, 994 So. 2d 1072, 1086 (Fla. 2008); see Moore v. State, 132 So.

3d 718 (Fla. 2013); Wyatt v. State, 71 So. 3d 86 (Fla. 2011); Melendez v. State,

718 So. 2d 746 (Fla. 1998). Application of the second prong of the Jones test

involves evaluating “the weight of both the newly discovered evidence and the

evidence which was introduced at trial” to determine if the newly discovered

evidence would probably result in an acquittal on retrial. Jones I, 591 So. 2d at

916. However, there is a conundrum in applying the Jones test in a case where a

defendant has entered a plea because there is no trial at which evidence was

introduced.


                                         -5-
      We have addressed the vacation of a judgment and sentence on

postconviction relief where the defendant has entered a guilty plea within the

context of ineffective assistance of counsel. See Grosvenor v. State, 874 So. 2d

1176 (Fla. 2004). In Grosvenor, we established a two-prong test for determining

claims of ineffective assistance of counsel relating to guilty pleas. The first prong

is identical to the deficient performance prongs in Strickland v. Washington, 466

U.S. 668 (1984), and Hill v. Lockhart, 474 U. S. 52 (1985). The defendant must

specifically identify acts or omissions of counsel that were manifestly outside the

wide range of reasonably competent performance under prevailing professional

norms. See Hill, 474 U. S. at 58-59; see also Lynch v. State, 2 So. 3d 47, 56-57

(Fla. 2008). As for the second prong, we held that a defendant must demonstrate

“a reasonable probability that, but for counsel’s errors, the defendant would not

have pleaded guilty and would have insisted on going to trial.” Grosvenor, 874 So.

2d at 1181. The defendant does not have to show that he actually would have

prevailed at trial, but the strength of the government’s case against the defendant

should be considered in evaluating whether the defendant really would have gone

to trial if he had received adequate advice from his counsel. Id. “Counsel’s

effectiveness is determined according to the totality of the circumstances.” Id.

(citing Strickland, 466 U. S. at 690).




                                         -6-
      We likewise establish a similar two-prong test for determining

postconviction claims for newly discovered evidence relating to guilty pleas which

adopts the first prong of the Jones test and the second prong from Grosvenor.

First, the evidence must not have been known by the trial court, the party, or

counsel at the time of the plea, and it must appear that the defendant or defense

counsel could not have known of it by the use of diligence. Second, the defendant

must demonstrate a reasonable probability that, but for the newly discovered

evidence, the defendant would not have pleaded guilty and would have insisted on

going to trial. “[I]n determining whether a reasonable probability exists that the

defendant would have insisted on going to trial, a court should consider the totality

of the circumstances surrounding the plea, including such factors as whether a

particular defense was likely to succeed at trial, the colloquy between the

defendant and the trial court at the time of the plea, and the difference between the

sentence imposed under the plea and the maximum possible sentence the defendant

faced at a trial.” Grosvenor, 874 So. 2d at 1181-82.

      In the present case, Long filed his successive postconviction motion on

September 9, 2014, which is well after this Court issued its October 15, 1992,

opinion affirming his first-degree murder conviction and death sentence on direct

appeal. In his motion, Long alleged that his motion is based on newly discovered




                                        -7-
evidence that he became aware of “when undersigned counsel received the first

letter from the Department of Justice on September 27, 2013.”

      The record reflects that on December 20, 2000, General Counsel J. Michael

Hays of the State Attorney’s Office for the Thirteenth Judicial Circuit sent the

1997 OIG Report to Long by certified mail while Long was incarcerated. The

1997 OIG Report discusses Malone’s malfeasance wherein Malone was criticized

about his court testimony in an unrelated case.

      The record also shows a letter, which was dated December 19, 2000, from

Assistant State Attorney Sharon Vollrath from the State Attorney’s Office for the

Thirteenth Judicial Circuit, addressed to Long’s former postconviction counsel,

Byron Hileman. The letter included the ICR reports and Malone’s testing results

of the hair and fiber evidence that were collected in Long’s cases. The ICR reports

indicate that Malone did not perform his testing in a scientifically acceptable

manner in Long’s cases, including Malone’s failure to: (1) test all items he claimed

to have tested; (2) provide adequate data to substantiate his testing and

conclusions; and (3) provide or maintain any documentation for his conclusions.

The ICR reports specifically revealed that Malone’s data related to comparisons of

the fibers was marginal and incomplete and that he also made findings bearing no

basis to support his conclusions, such as color matches. Lastly, the independent

analyst concluded that Malone used vague and scientifically unacceptable terms in


                                        -8-
his reports and that the contemporaneous notes made during testing contained

blacked out sections and abbreviations and terms that could not be interpreted.

      While the 1997 OIG Report, the ICR reports, and the 2014 OIG Report did

not exist at the time Long pleaded guilty on September 23, 1985, the record

reflects that Long and his defense counsel became aware of problems surrounding

Malone as an expert and his inadequate forensic work in December 2000, when

Long received the 1997 OIG Report criticizing Malone’s testimony in an unrelated

case and his counsel received a day earlier the ICR reports detailing improprieties

in Malone’s testing in Long’s cases. Accordingly, Long’s counsel could have

previously ascertained Malone’s malfeasance through the exercise of due diligence

notwithstanding USDOJ’s September 2013 letter notifying counsel regarding

Malone’s involvement in Long’s cases. See Wyatt v. State, 71 So. 3d 86, 99 (Fla.

2011) (“Thus, we hold that a newly discovered evidence claim predicated upon a

case-specific letter from the FBI discrediting the CBLA testimony offered at trial is

not procedurally barred if timely raised.”).

      Therefore, because Long failed to timely file this motion after he was first

notified as to the problems with Malone and his inadequate forensic work, we find

that the postconviction court’s summary denial was proper.

      Furthermore, even if we reviewed the two prongs of the nearly discovered

evidence test as it relates to guilty pleas, Long fails to meet the second prong


                                         -9-
because he cannot demonstrate a reasonable probability that, but for the newly

discovered evidence of FBI Examiner Malone’s questionable testing methods, he

would not have pleaded guilty and would have insisted on going to trial. There

was other evidence that implicated Long in the murder of Michelle Denise Simms.

At a July 1986 hearing on Long’s motion to set aside his plea agreement, the State

indicated that there was additional evidence of Long’s confessions of the murders

and strong circumstantial evidence of blood and tire track impressions. In

addition, we previously examined in detail the circumstances surrounding Long’s

plea agreement, including the colloquy between Long and the trial court at the time

of the plea. See Long I, 529 So. 2d at 287-291. As a result, we concluded that

      There is no question from our review of this record that appellant’s
      decision to plead guilty, after consulting with his attorney, was a
      tactical decision. Under this plea agreement, if counsel could obtain a
      jury recommendation of life because of appellant’s mental problems, a
      life sentence could probably be sustained and appellant would not be
      subject to be tried for any other offenses in Hillsborough County for
      which the death penalty could be imposed. . . . Under the facts, the
      plea agreement was clearly voluntary and entered with appellant’s full
      understanding that he was expressly waiving his right to challenge the
      confession’s admissibility.
Id. at 292. Here, Long’s successive postconviction motion is a thinly disguised

attempt to challenge, for the fourth time, the validity of his plea agreement in

which he strategically entered into to avoid multiple trials and possibly multiple

death sentences.




                                        - 10 -
      Based on the foregoing, we affirm the postconviction court’s summary

denial of Long’s successive postconviction motion.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, CANADY, and PERRY, JJ., concur.
POLSTON, J., concurs in result.
QUINCE, J., recused.

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

An Appeal from the Circuit Court in and for Hillsborough County,
     Deborah Michelle Sisco, Judge - Case No. 291984CF013346000AHC

Robert Anthony Norgard of Norgard, Norgard & Chastang, Bartow, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake,
Assistant Attorney General, Tampa, Florida,

      for Appellee




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