Supreme Court of Florida
             ____________

             No. SC17-707
             ____________

        STATE OF FLORIDA,
        Appellant/Cross-Appellee,

                   vs.

     GERALD DELANE MURRAY,
       Appellee/Cross-Appellant.

             ____________

             No. SC18-334
             ____________

     GERALD DELANE MURRAY,
            Appellant,

                   vs.

        STATE OF FLORIDA,
             Appellee.

             ____________

             No. SC18-560
             ____________

     GERALD DELANE MURRAY,
            Petitioner,

                   vs.
                              JULIE L. JONES, etc.,
                                  Respondent.

                                 December 20, 2018

PER CURIAM.

      The State appeals, and Gerald Delane Murray cross-appeals, the partial grant

and partial denial of Murray’s initial postconviction motion filed under Florida

Rule of Criminal Procedure 3.851. Murray also appeals the denial of his

successive postconviction motion and petitions this Court for a writ of habeas

corpus.1 For the reasons explained below, we affirm the trial court’s orders and

deny habeas relief.

                                I. BACKGROUND

      In 2009, this Court affirmed Murray’s conviction for first-degree murder and

sentence of death after four trials and three convictions for the murder of 59-year-

old Alice Vest in 1990. Murray v. State, 3 So. 3d 1108, 1112 (Fla. 2009). On

direct appeal, this Court described the facts as follows:

            The evidence presented at the fourth trial revealed that on
      September 15, 1990, the victim, Alice Vest, arrived home around
      11:30 p.m. after having dinner with a friend. When her friend called
      the next morning on September 16, however, Ms. Vest did not answer
      the phone. Concerned, the friend called one of Ms. Vest’s neighbors
      and asked him to check on her. The neighbor went to Ms. Vest’s
      home and observed that one of her window screens was out of the

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


                                         -2-
      window and that her screen door was propped open. Her phone lines
      had been cut. After telling his wife to call 911, the neighbor and
      another man looked inside the home and discovered Ms. Vest’s body
      draped off of her bed with her head on the floor.
             According to the medical examiner’s testimony, the cause of
      death was strangulation with multiple stab wounds as a contributing
      factor. Ms. Vest was also badly beaten with a metal bar, a candlestick
      holder, and a broken bottle that left bruising around her neck, breasts,
      and knees. She also had a black eye, a broken jaw, multiple
      contusions, and at least twenty-four stab wounds over her face, neck,
      upper and lower back, abdomen and thigh. Most of the stab wounds
      were knife wounds, but some were consistent with infliction by a pair
      of scissors found near her body. Ms. Vest had been strangled with a
      web belt and two electrical cords. She was also both vaginally and
      anally raped.
             According to James Fisher, earlier on September 15, 1990,
      Murray, Steve Taylor, and Fisher played pool together after which, at
      around 11:50 p.m., Fisher dropped Murray and Taylor off at a corner
      less than a mile from Murray’s home. Fisher then went home and
      went to bed.
             Juanita White, who lived approximately two miles from the
      victim’s house, testified that, around 12:40 a.m., she saw Murray and
      Taylor in her barn and watched the men run away after she sent her
      dog to attack them. Murray’s brother further testified that both Taylor
      and Murray left town the next day.
             Evidence recovered from the scene of the crime included six
      footprints, five from a Britannia shoe, which Taylor was known to
      wear, and one that was unidentified. No fingerprints were recovered
      from the scene that could be tied to either Taylor or Murray. Semen
      was found inside the victim but the results were inconclusive. Semen
      was also discovered on a blouse and on a comforter and was found to
      be the same blood type as Taylor[2] but not Murray. None of the
      blood spatters at the scene could be tied to either Taylor or Murray.

       2. The death sentence and convictions of Taylor, Murray’s codefendant,
were affirmed on direct appeal in Taylor v. State, 630 So. 2d 1038, 1040 (Fla.
1993) (concluding that DNA evidence linked Taylor to the victim because “the
analyst testified that semen found in the victim’s blouse matched Taylor’s DNA
profile”).


                                        -3-
      But pubic hairs recovered from the victim’s body and from a
      nightgown were found to have the same microscopic characteristics as
      Murray’s pubic hair, but not Taylor’s. Jewelry stolen from the
      victim’s home was linked to both Taylor[3] and Murray.
             Additional evidence presented at trial revealed that
      approximately six months after his indictment for the murder of Alice
      Vest, Murray escaped from prison. One of his co-escapees, Anthony
      Smith, testified that, while out, Murray told him about his role in
      Vest’s murder. According to Smith, Murray said that on the night of
      the murder Taylor came over to his house and wanted to go out.
      Murray initially refused, but Taylor was eventually able to change his
      mind after the two drank some beer. Thereafter, Taylor convinced
      Murray to break into a house. Together, the pair broke into what
      Murray thought was an unoccupied residence. When Murray
      discovered the owner was home, he wanted to leave, but Taylor
      grabbed the female occupant, handed Murray a knife, and sexually
      assaulted her. Afterwards, Murray had the victim perform oral sex on
      him. Murray then wandered through the house looking for things to
      steal. He returned to the bedroom five or ten minutes later and
      discovered that Taylor had stabbed the victim about fifteen or sixteen
      times but she was not dead. Murray and Taylor then secured some
      sort of cord and, together, they choked the woman to death. After
      they killed her, they took whatever was valuable and left.
      Approximately seven months after his escape, Murray was captured in
      Las Vegas, Nevada.
             The jury in Murray’s fourth trial reached a verdict of guilty as
      charged on all counts. During the penalty phase, the State introduced
      evidence of Murray’s other violent felonies. But, pursuant to
      Murray’s instructions, the defense did not introduce any mitigation
      evidence. After the penalty phase closing arguments, the jury
      recommended a death sentence by a vote of eleven to one.
             Thereafter, the court held a Spencer hearing and Murray again
      declined to present any mitigation evidence. The next day, the trial
      court followed the jury’s recommendation and sentenced Murray to
      death, finding that the aggravators outweighed the mitigating

      3. Evidence presented at Taylor’s trial was that a bag was discovered buried
in Taylor’s backyard that “contained the pieces of jewelry taken from the victim’s
home during the attack and burglary.” Taylor, 630 So. 2d at 1040.


                                       -4-
      circumstances. Specifically, the trial court found four aggravating
      factors: (1) Murray was previously convicted of three felonies
      involving violence (great weight); (2) he was engaged in a burglary
      and/or sexual battery at the time of the commission of the murder
      (immense weight); (3) the crime was committed for financial gain
      (some weight); and (4) the crime was especially heinous, atrocious
      and cruel (great weight). The trial court rejected two statutory
      mitigating circumstances: (1) the crime was committed by another
      person, and Murray’s participation was relatively minor; and (2)
      Murray’s capacity to appreciate the criminality of his conduct was
      substantially impaired. However, the trial court found the following
      nonstatutory mitigating circumstances: (1) the untimely death of
      Murray’s wife (very little weight); (2) Murray was incapable of
      forming relationships with people (very slight weight); (3) he had
      problems as a youth (little weight); (4) his lack of education and little
      contact with his father (slight weight); and (5) his mental evaluation
      after his arrest for aggravated assault (little weight).

Murray, 3 So. 3d at 1112-14 (footnotes omitted).

      This Court affirmed Murray’s convictions and sentence on direct appeal. Id.

at 1126.4 When reviewing sufficiency of the evidence, this Court identified

evidence presented at trial consistent with Murray’s guilt as follows:



      4. On direct appeal, Murray argued that:

      (A) the trial court erred by admitting hair evidence recovered from the
      victim’s body; (B) the trial court erred by admitting hair evidence
      recovered from the victim’s nightgown; (C) the trial court erred by
      admitting the testimony of a hair and fiber expert and limiting
      Murray’s cross-examination of him; (D) the trial court erred by
      denying Murray’s motion to dismiss his indictment; (E) the trial court
      erred by denying Murray’s right to interview grand jury witnesses; (F)
      the trial court erred in allowing the State to strike an African-
      American juror without providing a legitimate race-neutral reason;
      (G) the trial court erred by denying Murray’s motion for mistrial due
      to juror misconduct; (H) the trial court erred in not giving the jury

                                        -5-
      (1) the testimony of a jailhouse informant (Smith) detailing Murray’s
      confession; (2) the evidence collected from the scene and the
      testimony of the medical examiner which, together, confirmed the
      details of the crime as Murray related them to Smith; (3) the testimony
      of several witnesses who placed Murray with Taylor in the vicinity of
      the crime near the time the crime was committed; (4) testimony
      describing the presence of two different shoe prints as well as multiple
      weapons, implying that more than one person committed this crime;
      (5) the implication of consciousness of guilt since Murray left town
      the next day and later escaped from incarceration; (6) evidence
      connecting Murray and Taylor to Ms. Vest’s stolen jewelry; (7) the
      incriminating statements Murray made to Detective O’Steen; and (8)
      the presence of pubic hair recovered from Ms. Vest’s body and
      nightgown which was found to have the same microscopic
      characteristics as Murray’s known pubic hair.

Id. at 1125. Murray petitioned the United States Supreme Court for certiorari,

which was denied. Murray v. Florida, 558 U.S. 949 (2009).

      Thereafter, Murray filed a motion for postconviction relief that was amended

four times. After holding two evidentiary hearings, the postconviction court

granted a new penalty phase pursuant to Hurst,5 but denied relief on all other

claims. Murray sought to amend his motion again, but was instead allowed to file


      further instruction regarding the meaning of “abiding conviction of
      guilt” when requested; (I) the trial court erred in allowing former trial
      testimony to be read to the jury; (J) the trial court erred in not
      dismissing his case because of double jeopardy; and (K) there was
      insufficient evidence to convict Murray of the offenses charged.

Murray, 3 So. 3d at 1114.
       5. Hurst v. Florida, 136 S. Ct. 616 (2016); Hurst v. State, 202 So. 3d 40
(Fla. 2016).


                                        -6-
his additional claim in a successive motion for postconviction relief. The

postconviction court summarily denied relief on his successive claim.

                                  II. ANALYSIS

      The State appeals the grant of Hurst relief, and Murray cross-appeals the

denial of his other initial postconviction claims, and the summary denial of his

successive postconviction motion. Murray also petitions this Court for a writ of

habeas corpus.

                   A. INITIAL POSTCONVICTION MOTION

1. Hurst

      The State argues that the trial court erred by granting Murray a new penalty

phase pursuant to Hurst. However, because Murray’s jury recommended the death

penalty by a vote of eleven to one, and because this Court has consistently and

repeatedly granted capital defendants new penalty phases post-Hurst where there

were nonunanimous jury recommendations in cases that became final after Ring, 6

we affirm the postconviction court’s grant of the new penalty phase. See State v.

Smith, 251 So. 3d 807, 810 n.3 (Fla. 2018) (citing 21 cases where this Court has

granted new penalty phases for cases involving nonunanimous jury

recommendations).




      6. Ring v. Arizona, 536 U.S. 584 (2002).


                                        -7-
2. Anthony Smith

      Murray argues that the postconviction court erred when it denied his newly

discovered evidence claim based on evidence that the State’s witness, Anthony

Smith, was coerced to testify against Murray and believed the State would reduce

Smith’s sentence in exchange for testifying. Murray bases this claim on statements

Smith alleged in Smith’s own 3.850 motion and a letter Smith wrote to the

prosecutor on January 26, 2006. Murray asserts that it is probable that a jury on

retrial hearing the impeachment evidence against Smith would discredit his

testimony and acquit Murray.

      To obtain a new trial based on newly discovered evidence, a defendant must

meet two requirements. Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). 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 it though due diligence. Id. “Second, the newly discovered evidence

must be of such nature that it would probably produce an acquittal on retrial.” Id.

      Newly discovered evidence satisfies the second prong of the Jones test if it

“weakens the case against [the defendant] so as to give rise to a reasonable doubt

as to his culpability.” Id. at 526 (quoting Jones v. State, 678 So. 2d 309, 315 (Fla.

1996)). In determining whether the evidence compels a new trial, the

postconviction court must “consider all newly discovered evidence which would


                                         -8-
be admissible” and must “evaluate the ‘weight of both the newly discovered

evidence and the evidence which was introduced at the trial.’ ” Id. at 521 (quoting

Jones, 591 So. 2d at 916). This determination includes

      whether the evidence goes to the merits of the case or whether it
      constitutes impeachment evidence. The trial court should also
      determine whether the evidence is cumulative to other evidence in the
      case. The trial court should further consider the materiality and
      relevance of the evidence and any inconsistencies in the newly
      discovered evidence.

Id. (citations omitted). “When a claim of newly discovered evidence is based upon

the recantation of testimony by a witness for the prosecution, the second prong of

Jones II [709 So. 2d at 512] is met only where the defendant first establishes that

the recanted testimony is truthful.” Spann v. State, 91 So. 3d 812, 822 (Fla. 2012).

      This Court “review[s] the trial court’s findings on questions of fact, the

credibility of witnesses, and the weight of the evidence for competent, substantial

evidence.” Green v. State, 975 So. 2d 1090, 1100 (Fla. 2008). However, we

“review the trial court’s application of the law to the facts de novo.” Id.

      Although Smith’s 3.850 motion and letters would constitute a recantation of

testimony if the allegations contained in them were taken as true, Murray’s claim

of newly discovered evidence is not based upon the recantation of testimony, but

on the impeachment value of Smith’s untruthful pleadings. When confronted at

Murray’s postconviction evidentiary hearing with his 3.850 motion and letter to the

prosecutor, Smith admitted that those were not true but instead a ploy to attempt to

                                         -9-
get a sentence reduction. Smith repeatedly testified at Murray’s second evidentiary

hearing that Smith was truthful in his testimony at Murray’s trial. The

postconviction court found that “Smith was credible when he made clear that his

3.850 claims were false and that the State did not offer him a reduced sentence if

he testified against” Murray in his testimony at Murray’s postconviction

evidentiary hearing. “[I]n determining whether the record supports the trial court’s

finding that the recantation was not credible, we give great deference to the trial

judge’s observations . . . .” Spann, 91 So. 3d at 825. The veracity of Smith’s

evidentiary hearing testimony is further corroborated by the fact that Smith

testified consistently through four trials about Murray’s admission to him after they

escaped jail together.

      Additionally, Smith was impeached at Murray’s fourth trial in several

respects. First, Smith was impeached with evidence that the State agreed to waive

the death penalty in Smith’s first-degree murder case in exchange for his testimony

in Murray’s case. Second, Smith was impeached with his eight prior felonies.

Third, he was impeached with the inconsistencies in his deposition as to facts of

his escape with Murray, and between the facts of Murray’s role in the murder and

his written statement and testimony. Fourth, Smith was impeached as to the bank

robberies he completed after his escape from jail. Fifth, he was impeached with




                                        - 10 -
the specific facts of his murder conviction. Finally, Smith was impeached with the

fact that he had seen the television depiction of Murray’s case.

       Accordingly, it is not probable that the additional impeachment evidence

would produce an acquittal on retrial. Therefore, we affirm the postconviction

court’s denial of this claim.

3. Expert Microscopist

       Murray argues that his counsel was ineffective for failing to present an

expert microscopist in rebuttal to the State’s hair expert. The postconviction court

found that counsel was not deficient because he consulted with a hair and fiber

expert and made a strategic decision not to call him as a defense expert. We affirm

the denial of relief.

       Following the United States Supreme Court’s decision in Strickland,7 this

Court has explained that, to prevail on an ineffective assistance of counsel claim, a

defendant must satisfy two requirements:

       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.




       7. Strickland v. Washington, 466 U.S. 668 (1984).


                                        - 11 -
Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490

So. 2d 927, 932 (Fla. 1986)).

      Regarding Strickland’s deficiency prong, there is a strong presumption that

trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 689.

Moreover, “[a] fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Id. The defendant bears the burden to

“overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350

U.S. 91, 101 (1955)). Regarding the prejudice prong, “Strickland requires

defendants to show ‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’ [A]

‘reasonable probability’ is a ‘probability sufficient to undermine confidence in the

outcome.’ ” Henry v. State, 948 So. 2d 609, 621 (Fla. 2006) (citations omitted)

(quoting Strickland, 466 U.S. at 694).

      Because both prongs of Strickland present mixed questions of law and fact,

this Court employs a mixed standard of review, deferring to the circuit court’s

factual findings that are supported by competent, substantial evidence, but

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


                                         - 12 -
So. 2d 766, 771-72 (Fla. 2004). Moreover, “when a defendant fails to make a

showing as to one prong, it is not necessary to delve into whether he has made a

showing as to the other prong.” Zakrzewski v. State, 866 So. 2d 688, 692 (Fla.

2003) (quoting Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001)).

      Here, Murray did not demonstrate deficiency. At both postconviction

evidentiary hearings, Murray’s counsel testified that he did not call a hair and fiber

expert to testify because the hair at issue had been consumed by DNA testing.

Thus, counsel made the strategic decision to use information gained from

discussion with the expert to call into question the testing methods utilized by

Joseph DiZinno, the State’s expert.

      Additionally, Murray did not prove prejudice. Trial counsel effectively

utilized the information he gained from talking to an independent expert to

challenge DiZinno’s testing and to elicit through cross-examination that there was

no proficiency testing, no written protocols, and no database of hair characteristic

when the hair analysis was conducted. Therefore, Murray has not shown a

reasonable probability that the sentence imposed would have been different had

defense counsel presented its own expert witness. In other words, our confidence

is not undermined.

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

4. Newly Discovered Evidence Regarding DiZinno’s Testimony


                                        - 13 -
      Next, Murray argues that the postconviction court erred in denying his

newly discovered evidence claim regarding Joseph DiZinno’s trial testimony.

Specifically, Murray claims that newly discovered evidence — a 2013 review by

the Department of Justice (DOJ) of DiZinno’s lab work and testimony in Murray’s

trial — establishes that DiZinno’s trial testimony regarding the hair evidence is

false and misleading. However, we affirm the denial of this claim.

      A defendant must satisfy a two-prong test in order to obtain relief on the

basis of newly discovered evidence:

      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.

Marek v. State, 14 So. 3d 985, 990 (Fla. 2009). “Newly discovered evidence

satisfies the second prong of this test if it ‘weakens the case against [the defendant]

so as to give rise to a reasonable doubt as to his culpability.’ ” Henry v. State, 125

So. 3d 745, 750 (Fla. 2013) (quoting Heath v. State, 3 So. 3d 1017, 1023-24 (Fla.

2009)).

      Murray has met the first prong of the newly discovered evidence test

because the 2013 DOJ review could not have been previously discovered by

Murray or trial counsel by due diligence because it did not exist at the time of trial.




                                        - 14 -
      However, in Duckett v. State, 231 So. 3d 393, 396-401 (Fla. 2017), this

Court rejected claims of newly discovered evidence, Brady,8 and Giglio9 violations

related to a 2014 Department of Justice review of FBI hair and fiber analyst

Michael Malone. Duckett involved a nearly identical report with similar

conclusions about the report and testimony of hair and fiber expert Malone. In

Duckett, this Court determined that Duckett failed to establish that the 2014 DOJ

review of the hair and fiber analyst’s work and testimony in the defendant’s trial

was of such a nature that it would probably produce an acquittal on retrial, as

required to be granted a new trial based on newly discovered evidence. Id. at 400.

This Court reasoned that although the review indicated that the analyst’s lab

reports and testimony contained some erroneous statements that exceeded the

limits of science, the testimony also accurately represented the reliability of hair

analysis, that the testimony was challenged extensively, that the field of forensic

hair science was not discredited, and that the hair evidence was not the only

evidence to tie Duckett to the murder. Id. at 399-400.

      Similar to Duckett, Murray has failed to meet the second prong of the newly

discovered evidence test because Murray has failed to demonstrate that the alleged




      8. Brady v. Maryland, 373 U.S. 83 (1963).

      9. Giglio v. United States, 405 U.S. 150 (1972).


                                        - 15 -
newly discovered evidence, the 2013 DOJ review, would probably produce an

acquittal on retrial. First, Murray has not established that DiZinno’s trial

testimony, when considered in its full context, was false. Although the 2013 DOJ

review concluded that DiZinno’s lab reports or trial testimony contained some

erroneous and invalid statements that exceeded the limits of science, the full

context of DiZinno’s trial testimony indicates that DiZinno used limiting language

intended to limit his conclusions. This is supported by the testimony of Richard

McNally, the section chief of the science and technology branch in the General

Counsel’s office at the FBI, who testified at Murray’s postconviction evidentiary

hearing that the review did not take into account the limiting language of DiZinno

in context, but looked only at the individual statements. Second, DiZinno’s

testimony was challenged at trial. Murray’s counsel extensively challenged

DiZinno’s credibility during cross-examination and even objected prior to his

testimony as to the lack of procedures and protocols. Third, even according to

Jason Beckert, who testified for Murray on the subject of microscopy at the

postconviction evidentiary hearing, the field of forensic hair analysis has not been

discredited and the FBI has not discontinued the use of such analysis. Beckert

further testified at the postconviction hearing that the errors attributed to DiZinno

were not errors at all. As explained in the letter from the FBI itself, the science

underling microscopic hair comparison was not the subject of the 2013 DOJ


                                        - 16 -
review. Given this context, the newly discovered evidence does not give rise to a

reasonable doubt as to Murray’s culpability.

         Accordingly, we affirm the postconviction court’s denial of this claim.

5. Identification of Pieces of the Victim’s Jewelry

         Murray also argues that his trial counsel was ineffective in failing to object

to hearsay testimony related to an officer’s testimony identifying the jewelry as the

victim’s. We conclude that the postconviction court did not err in denying this

claim.

         First, Murray failed to demonstrate deficiency. Trial counsel testified at the

postconviction evidentiary hearing that he did not object to Detective O’Steen’s

comment about the jewelry because he recalled that O’Steen had visibly seen a

photograph of the victim wearing that particular jewelry item prior to discovering

the jewelry and had made that conclusion on his own. Additionally, trial counsel

testified that the issue of the jewelry being the victim’s was well-settled and

strategically not an issue worth fighting. This was a strategic decision. See

Patrick v. State, 246 So. 3d 253, 262 (Fla. 2018) (“A decision that lodging a

particular challenge to the validity of evidence would be a waste of resources in

light of counsel’s knowledge of corroborating facts can be a reasonable strategic

decision.”).




                                          - 17 -
          Second, Murray failed to demonstrate prejudice. At the postconviction

evidentiary hearing, trial counsel testified that Murray’s theory of the case was that

Taylor was the sole perpetrator of the crime, a trial strategy established by the

record. Counsel further testified that the jewelry discovered in Taylor’s backyard

supports this theory and that it was strategically not worth trying to fight about it

because it was a well-settled issue that the jewelry was identified as being the

victim’s. Thus, Murray has not demonstrated a reasonable probability of a

different outcome had counsel objected. In other words, our confidence is not

undermined.

         Accordingly, we affirm the denial of relief.

6. Shoeprint Expert

         Additionally, Murray claims that trial counsel was ineffective for failing to

retain an expert on shoeprint analysis to rebut the testimony of the State’s expert,

John Wilson. Murray alleges that a defense expert could testify that the shoeprints

found in the victim’s home were from one individual. We affirm the denial of this

claim.

         This Court has explained that it is not necessary for defense counsel to retain

a defense expert “where defense counsel cross-examined the State’s experts to

establish the facts necessary for the defense.” Belcher v. State, 961 So. 2d 239,

250 (Fla. 2007). Even if “arguably trial counsel’s strategy may have ultimately


                                          - 18 -
been unsuccessful, [the defendant] cannot now properly challenge an informed,

strategic decision of counsel in the hindsight of postconviction.” Dufour v. State,

905 So. 2d 42, 62 (Fla. 2005). “The defendant bears the burden to ‘overcome the

presumption that, under the circumstances, the challenged action “might be

considered sound trial strategy.” ’ ” McCoy v. State, 113 So. 3d 701, 707 (Fla.

2013) (quoting Strickland, 466 U.S. at 689).

      In this case, Murray failed to demonstrate deficiency. Trial counsel testified

at the postconviction evidentiary hearing that he spoke with Wilson prior to trial,

and Wilson told counsel there was only one set of footprints. Thus, counsel’s

strategic decision to not call a shoeprint expert was reasonable given the

information he had been provided by the State’s expert that there was only one set

of footprints. Ultimately at trial, Wilson’s testimony implied that one print may

have come from a different shoe. Because this testimony was different from

Wilson’s prior reports, counsel thoroughly cross-examined Wilson about the

discrepancy dealing with the shoe impressions, specifically asking Wilson to read

from his report anywhere it mentions the possibility of any shoes other than

Britannia shoes. Further, trial counsel moved to strike Wilson’s testimony, and

that was denied. Counsel further addressed the discrepancy in Wilson’s testimony

in closing argument. Because trial counsel’s cross-examination brought out all the




                                        - 19 -
material points Murray claims an expert could have presented, Murray did not

demonstrate deficiency.

      Second, Murray failed to demonstrate prejudice. Wilson explained at trial

that he could not say for sure that the unidentified print came from a different shoe.

Further, Wilson testified that there was no way he could testify as to how many

people were inside the victim’s house at the time of the victim’s murder. Murray’s

argument to this Court that “no expert has ever testified that there was more than

one type of shoeprint found at the scene” supports the conclusion that there was no

prejudice, particularly given trial counsel’s effective cross-examination. Thus,

Murray has failed to establish a reasonable probability of a different result if trial

counsel had retained a shoeprint expert. In other words, our confidence in the

outcome is not undermined.

      Accordingly, we affirm the denial of this claim.

7. Other Claims

      Murray further contends that the postconviction court erred in denying

several of his initial postconviction claims without an evidentiary hearing.

Specifically, Murray claims that the postconviction court erred in summarily

denying the following eight10 unrelated issues: (1) trial counsel was ineffective in


       10. In addition to these eight issues, Murray mentioned in a footnote in his
brief that he wishes to appeal all claims in his initial postconviction motion that did
not receive an evidentiary hearing; however, Murray failed to present argument to

                                         - 20 -
failing to request a Richardson 11 hearing and to move for a mistrial regarding John

Wilson’s trial testimony that reconciled the discrepancy in the chain of custody of

the hair from the victim’s nightgown, for failing to discover that Wilson put the

lotion bottle in the plastic bag, and for inadequately preparing for trial with respect

to the tampering claim; 12 (2) trial counsel was ineffective in failing to impeach

Anthony Smith, who testified as to Murray’s role in the victim’s murder; (3) the

State’s failure to disclose the DOJ’s investigation into DiZinno violated Brady; (4)

the State’s failure to disclose that DiZinno’s initials on the hair evidence were

written by someone else violated Brady, and trial counsel was ineffective in failing

to object to this Brady violation or request a Richardson hearing; (5) the

presentation of DiZinno’s testimony violated Giglio; (6) trial counsel was

ineffective for failing to request a Richardson hearing because DiZinno did not


this Court and, therefore, waived the unbriefed claims. See Braddy v. State, 219
So. 3d 803, 825 (Fla. 2017).
      11. Richardson v. State, 246 So. 2d 771 (Fla. 1971).

        12. To the extent Murray is attempting to relitigate the admission of the hair
evidence that either was or could have been raised on direct appeal, it is
procedurally barred. See Reaves v. State, 826 So. 2d 932, 936 n.3 (Fla. 2002).
Additionally, we agree with the postconviction court that the addition to Wilson’s
testimony did not materially alter or change a previous statement, did not rise to
the level of a discovery violation, and would not have supported a Richardson
hearing. And trial counsel raised multiple challenges to the chain of custody in an
effort to prevent the State from admitting the hair evidence due to tampering and at
trial identified the suspicious nature of Wilson’s testimony and challenged his
credibility. Therefore, Murray could not prove deficiency under Strickland.


                                         - 21 -
personally receive, mount, or initial the items into evidence; (7) trial counsel was

ineffective for failing to challenge the State’s use of peremptory challenges to

exclude jurors; and (8) trial counsel was ineffective for failing to properly preserve

two instances of juror misconduct. However, because these claims were facially

insufficient, procedurally barred, or without merit, we affirm the trial court’s

summary denial. See Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, &

3.993, 772 So. 2d 488, 491 n.2 (Fla. 2000) (explaining that an evidentiary hearing

must be held on an initial 3.851 motion whenever the movant makes a facially

sufficient claim that requires a factual determination); Teffeteller v. Dugger, 734

So. 2d 1009, 1023 (Fla. 1999) (“Trial counsel cannot be deemed ineffective for

failing to raise meritless claims or claims that had no reasonable probability of

affecting the outcome of the proceeding.”).

      Additionally, “because all issues which were not barred were meritless, we

can find no cumulative error.” Johnson v. Singletary, 695 So. 2d 263, 267 (Fla.

1996).

                B. SUCCESSIVE POSTCONVICTION MOTION

      In the appeal of the denial of his successive postconviction motion, Murray

contends that newly discovered evidence demonstrates that Murray is innocent,

entitling him to an evidentiary hearing and a new trial. This alleged newly

discovered evidence is from James Dixon, a person of interest during the original


                                        - 22 -
homicide investigation in this case, who claims that Walter Holton committed the

murder, not Murray or Taylor. The affidavit of James Dixon, taken on September

15, 2017, states the following:

      I, James Dixon worked for Walter Holton in the early 90s doing odd
      jobs. Holton sold large amounts of cocaine with a Cuban Friend from
      Miami, who drove a Porsche. Both men were dangerous if you
      crossed them and were known to put contract hits out on people who
      crossed them. I was questioned by Police about a sailboat necklace
      that was possibly connected to a homicide. I got the sailboat necklace
      from Angela Smith, who was the girlfriend of Walter Holton at the
      time. She told me that she got it from his Cuban friend, who told her
      to “never get rid of it.” I did not tell the police where I got the
      necklace from, because I was afraid of Walter Holton and his Cuban
      friend. My DNA was collected by the police and I was cleared of any
      involvement with the homicide case.

      We have affirmed the summary denial of a newly discovered evidence claim

filed in Taylor’s case based on James Dixon’s affidavit. See Taylor v. State, No.

SC18-520 (Fla. Dec. 20, 2018). We do so as well here.

      As this Court has explained:

      A successive rule 3.851 motion may be denied without an evidentiary
      hearing if the records of the case conclusively show that the movant is
      entitled to no relief. See Fla. R. Crim. P. 3.851(f)(5)(B). This Court
      reviews the circuit court’s decision to summarily deny a successive
      rule 3.851 motion de novo, accepting the movant’s factual allegations
      as true to the extent they are not refuted by the record, and affirming
      the ruling if the record conclusively shows that the movant is entitled
      to no relief.

Kormondy v. State, 154 So. 3d 341, 351 (Fla. 2015) (quoting Walton v. State, 3 So.

3d 1000, 1005 (Fla. 2009)). This “Court will uphold the summary denial of a



                                       - 23 -
newly-discovered-evidence claim if the motion is legally insufficient or its

allegations are conclusively refuted by the record.” Ventura v. State, 2 So. 3d 194,

198 (Fla. 2009).

      Here, the factual allegations of the newly discovered evidence claim based

on James Dixon’s affidavit are directly and conclusively refuted by the following

portions of the record: (1) testimony from Joseph DiZinno, the expert at the FBI,

matching the pubic hair recovered from Ms. Vest’s body and nightgown with the

microscopic characteristics as Murray’s pubic hair; 13 (2) the testimony of Smith

detailing Murray’s confession; (3) evidence connecting Murray and Taylor to Ms.

Vest’s jewelry; and (4) incriminating statements Murray made to Detective

O’Steen. The bag of jewelry, including a sailboat piece that the detective

discussed at both Murray and Taylor’s trials, was found buried in a bag at Taylor’s

former place of residence. See Taylor, 630 So. 2d at 1039-40 (“In January, 1991,

while Taylor’s former roommate was removing a fence behind the duplex, he

discovered a small plastic bag buried in the ground near the fence. The bag

contained the pieces of jewelry taken from the victim’s home during the attack and

burglary.”). At Murray’s trial, Murray’s brother and a friend testified that in



       13. During postconviction proceedings, STR testing on DNA extract of the
hair was conducted by FDLE and then by a defense expert. FDLE found Murray
to be a match for “Q20, Hair #5,” and the defense expert was unable to exclude
Murray.


                                        - 24 -
February 1991 they saw Taylor go into the backyard of the duplex he lived in

previously and return with dirty hands from digging. Additionally, Taylor’s semen

DNA that was found on the victim’s blouse contradicts Dixon’s theory that Taylor

was not involved in the murder. Taylor, 630 So. 2d at 1040.

      Accordingly, we affirm the summary denial of Murray’s successive

postconviction motion.

                              C. HABEAS PETITION

1. Burglary Jury Instruction

      In his petition for habeas relief, Murray alleges that appellate counsel was

ineffective for failing to allege fundamental error based on the unobjected to

“remaining in” language contained in the jury instruction for burglary. However,

we deny relief.

      The standard of review for claims of ineffective assistance of appellate

counsel mirrors the Strickland standard for ineffective assistance of trial counsel.

Valle v. Moore, 837 So. 2d 905, 907 (Fla. 2002). In order to grant habeas relief on

ineffectiveness of appellate counsel, this Court must determine

      first, whether the alleged omissions are of such magnitude as to
      constitute a serious error or substantial deficiency falling measurably
      outside the range of professionally acceptable performance and,
      second, whether the deficiency in performance compromised the
      appellate process to such a degree as to undermine confidence in the
      correctness of the result.




                                        - 25 -
Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986) (citing Johnson v.

Wainwright, 463 So. 2d 207, 209 (Fla. 1985)).

      Additionally, appellate counsel cannot be deemed ineffective for failing to

raise meritless issues or issues that were not properly raised in the trial court and

are not fundamental error. Valle, 837 So. 2d at 908. “In fact, appellate counsel is

not necessarily ineffective for failing to raise a claim that might have had some

possibility of success; effective appellate counsel need not raise every conceivable

nonfrivolous issue.” Id. (citing Jones v. Barnes, 463 U.S. 745, 751-53 (1983);

Provenzano v. Dugger, 561 So. 2d 541, 549 (Fla. 1990)). Jury instructions “are

subject to the contemporaneous objection rule, and, absent an objection at trial, can

be raised on appeal only if fundamental error occurred.” State v. Delva, 575 So. 2d

643, 644 (Fla. 1991).

      Murray did not meet his burden of proving that appellate counsel was

ineffective for not litigating this claim of instructional error on direct appeal

because Murray did not demonstrate that the unobjected to “remaining in”

language included in the burglary instruction was error that rises to the level of

fundamental error.

      This case is factually distinguishable from Floyd v. State, 850 So. 2d 383

(Fla. 2002). In Floyd, this Court reversed a burglary conviction where the jury

instruction included the “remained in” language. Id. at 402. The evidence in


                                         - 26 -
Floyd supported that the victim and the defendant knew each other, had an

extended discussion on the victim’s porch and in the house prior to the shooting.

Id. This Court reasoned that the facts did not support a “surreptitious remaining”

because it could be argued that the defendant’s intent to commit a crime formed

after he entered the victim’s house. Id. at 402. Therefore, when the facts cannot

support a “surreptitious remaining” after a consensual entry, inclusion of the

“remaining in” language from the standard jury instruction constitutes fundamental

error. Id.

      In the present case, the record supports that Murray broke into the victim’s

house in order to gain entry, and not after a consensual entry. Specifically, this

Court summarized that “one of her window screens was out of the window and that

her screen door was propped open. Her phone lines had been cut.” Murray, 3 So.

3d at 1113. There is no plausible analysis under which the jury could have

concluded that the defendant entered the victim’s house without criminal intent and

only formed criminal intent while “remaining in” the victim’s house. As applied to

the facts of Murray’s case, the inclusion of the “remaining in” language in the

burglary instruction was mere surplusage and not fundamental error. Thus,

because including the “remaining in” language in the jury instruction was not

fundamental error, appellate counsel cannot be deemed ineffective for not raising




                                        - 27 -
an unpreserved claim on appeal. See Rodriguez v. State, 919 So. 2d 1252, 1281

(Fla. 2005).

      Accordingly, we deny this claim.

2. Juror Vaccaro

      Murray next argues that appellate counsel was ineffective for failing to raise

on direct appeal a claim that the trial court abused its discretion in denying his

cause challenge of juror Vaccaro. However, we disagree.

      “The test for determining juror competency is whether the juror can lay

aside any bias or prejudice and render his verdict solely upon the evidence

presented and the instructions on the law given to him by the court.” Lusk v. State,

446 So. 2d 1038, 1041 (Fla. 1984). “A trial court has great discretion when

deciding whether to grant or deny a challenge for cause based on juror

competency.” Conde v. State, 860 So. 2d 930, 939 (Fla. 2003). “This is because

trial courts have a unique vantage point in their observation of jurors’ voir dire

responses.” Id. As a result, “this Court gives deference to a trial court’s

determination of a prospective juror’s qualifications and will not overturn that

determination absent manifest error.” Id.

      Here, the trial court did not abuse its discretion. Although Mr. Vaccaro

initially indicated that it may be true that he would be more likely to believe a

police officer due to his familial relationships, upon further questioning he


                                         - 28 -
affirmed that he could follow the judge’s instruction to evaluate witness testimony

individually and not give more weight to a witness’s testimony because the witness

is a police officer. The trial judge noted that in observing Mr. Vaccaro, he seemed

very sincere and honest in his assertion. Appellate counsel was not ineffective for

failing to raise this meritless issues. See Mosley v. State, 209 So. 3d 1248, 1271

(Fla. 2016).

      Accordingly, we deny relief.

3. Representing Murray at Trial and on Direct Appeal

      Murray next claims that appellate counsel was ineffective for serving as both

trial counsel and counsel on direct appeal, violating Murray’s rights to conflict-free

counsel, due process, and equal protection. However, no relief is warranted.

      “An actual conflict of interest that adversely affects counsel’s performance

violates the Sixth Amendment of the United States Constitution.” McWatters v.

State, 36 So. 3d 613, 635 (Fla. 2010). “To prove a claim that an actual conflict of

interest existed between a defendant and his counsel, the defendant must show that

his counsel actively represented conflicting interests and that the conflict adversely

affected counsel’s performance.” Thompson v. State, 759 So. 2d 650, 661 (Fla.

2000) (quoting Quince v. State, 732 So. 2d 1059, 1063 (Fla. 1999)). “A possible,

speculative or merely hypothetical conflict is ‘insufficient to impugn a criminal




                                        - 29 -
conviction.’ ” Hunter v. State, 817 So. 2d 786, 792 (Fla. 2002) (quoting Cuyler v.

Sullivan, 446 U.S. 335, 350 (1980)).

      However, because ineffective assistance of counsel claims for failing to

preserve issues at trial are properly raised in postconviction, there arises no

potential for conflict when counsel is the same for trial and direct appeal.

Additionally, “[a]ppellate counsel’s failure to raise an issue which was not

preserved for appellate review and which does not present a fundamental error

does not amount to a serious deficiency in performance.” Bertolotti v. Dugger,

514 So. 2d 1095, 1097 (Fla. 1987). As a result, Murray cannot demonstrate the

deficiency prong of Strickland regarding counsel’s decision to represent Murray

during trial and on direct appeal.

      Accordingly, we deny this habeas claim.

4. John Wilson

      Murray contends that appellate counsel was ineffective on direct appeal for

failing to argue fundamental error and ineffective assistance of counsel on the face

of the record regarding John Wilson’s testimony reconciling the chain of custody

of the hair on the victim’s nightgown in relation to the lotion bottle. However, this

habeas claim is procedurally barred.

      To the extent Murray is utilizing this claim as an attempt to relitigate the

admission of the hair evidence that was raised and rejected on direct appeal, it is


                                         - 30 -
procedurally barred. See Murray, 3 So. 3d at 1115-16. Moreover, this claim is

very similar to the claim of ineffective assistance of counsel raised in Murray’s

initial postconviction motion that was summarily denied by the postconviction

court. Although claims of ineffective assistance of appellate counsel are

appropriately presented in a petition for writ of habeas corpus, Valle, 837 So. 2d at

907, claims of ineffective assistance of appellate counsel may not be used to

camouflage issues that should have been presented on direct appeal or in a

postconviction motion. Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000).

      Accordingly, we deny this habeas claim.

5. DiZinno’s Initials

      Murray also claims that appellate counsel was ineffective for failing to more

directly challenge Dizinno’s testimony when he gave new testimony during the

fourth trial that a lab assistant named Angie Moore probably placed his initials on

the hair evidence slides at the lab based on a review of his notes. DiZinno had

previously testified that he thought another technician had placed his initials on the

slides, but he also testified previously that he was not certain about that. Because

appellate counsel raised claims related to DiZinno’s testimony and the chain of

custody regarding this evidence, we conclude that he was not ineffective for failing

to raise such claims.




                                        - 31 -
       A habeas petition should not be used as a vehicle for relitigating claims that

were raised and rejected by this Court in prior proceedings. See Thompson v.

State, 759 So. 2d 650, 657 n.6 (Fla. 2000). This Court has explained that when

looking at claims of ineffective assistance of appellate counsel for failure to raise

additional arguments in support of a claim on direct appeal, “petitioner’s

contention that [the point] was inadequately argued merely expresses

dissatisfaction with the outcome of the argument in that it did not achieve a

favorable result for petitioner.” Rutherford, 774 So. 2d at 645 (quoting Routly v.

Wainwright, 502 So. 2d 901, 903 (Fla. 1987)).

       On appeal, appellate counsel raised multiple claims of evidence tampering,

and the trial court’s failure to exclude some evidence. See Murray, 3 So. 3d at

1115-16. This included a claim that the trial court erred by admitting the hair

evidence despite indications of probable tampering. See id. Counsel specifically

pointed to DiZinno’s testimony and changing the name of the technician who

worked for him that placed his initials on the slides. Initial Brief For Appellant at

23-26, 27-31, 47-49, Murray, 3 So. 3d 1108. Therefore, because he in fact did so,

appellate counsel cannot be deemed ineffective for failing to challenge the chain of

custody through the change in DiZinno’s testimony regarding who placed his

initials on the slides.

6. Prosecutorial Misconduct


                                        - 32 -
      Finally, Murray alleges that appellate counsel was ineffective for failing to

raise a claim of prosecutorial misconduct based on inconsistencies in testimony of

various witnesses on direct appeal. However, we deny relief.

      Appellate counsel cannot be deemed ineffective for failing to raise a

meritless issue. See Valle, 837 So. 2d at 908. Murray has not cited one case

involving prosecutorial misconduct based upon inconsistent testimony of witnesses

on retrial. Cf. Ruiz v. State, 743 So. 2d 1, 8-9 (Fla. 1999) (“Prosecutors Cox and

Goudie attempted to tilt the playing field and obtain a conviction and death

sentence in a number of improper ways: by invoking the immense power, prestige,

and resources of the State (i.e., ‘What interest do we [prosecutors] as

representatives of the citizens of this county have in convicting somebody other

than the person—.’); by demeaning and ridiculing the defendant (i.e., ‘if that guy

were Pinocchio, his nose would be so big none of us would be able to fit in this

courtroom’); by characterizing the defendant as the archetypical liar and then

equating truth with justice and justice with a conviction (i.e., ‘[t]ruth equals justice’

and ‘justice is that you convict him’); by appealing to the jurors’ raw emotions

(i.e., recounting the anecdote concerning prosecutor Cox’s cancer-stricken father);

and by introducing improper evidence (i.e., the blown-up photo of the bloody head;

testimony concerning the unrelated robbery charge; and testimony concerning the

unrelated gun).”). Appellate counsel was not deficient for using the alleged


                                         - 33 -
inconsistencies in testimony as support for evidence tampering claims that were

successful in previous direct appeals rather than as support for a novel

prosecutorial misconduct claim. 14

      Accordingly, we deny habeas relief.

                                III. CONCLUSION

      For the reasons set forth above, we affirm the postconviction court’s order

granting Hurst relief but denying Murray’s other initial postconviction motion

claims. We also affirm the summary denial of Murray’s successive postconviction

motion and deny his habeas petition.

      It is so ordered.

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

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION
FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE
JANUARY 2, 2019. NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO
FILE A REHEARING/CLARIFICATION MOTION AND, IF FILED,
DETERMINED.




      14. Murray also raised a Giglio claim in his initial postconviction motion,
which the postconviction court denied, based upon the inconsistent testimony
resolving the chain of custody discrepancies.


                                        - 34 -
PARIENTE, J., concurring.

      I agree with the majority’s decision affirming the postconviction court’s

order granting Murray a new penalty phase pursuant to Hurst 15 and denying

Murray’s separate petition for a writ of habeas corpus. I write separately to, again,

emphasize the arbitrariness in the discrepancy between Murray, who is receiving

Hurst relief, and his accomplice, Taylor, who was denied Hurst relief. See Taylor

v. State, No. SC18-520, slip op. at 26-28 (Fla. Dec. 20, 2018) (Pariente, J.,

concurring in result).

      Taylor and Murray were both convicted of first-degree murder and

sentenced to death for the same crime—the 1990 murder of Alice Vest. Id. at 28.

Taylor’s conviction and sentence of death became final in 1994. Id. at 26.

However, as I explained in my concurring in result opinion in Taylor, Murray’s

conviction and sentence did not become final until 2009 because he received three

retrials. Id. at 27. Therefore, “[e]ven though both defendants received

nonunanimous recommendations for death—Taylor received a 10-2 jury

recommendation for death and Murray received an 11-1 jury recommendation—

Murray will receive a new penalty phase . . . but Taylor will not.” Id. This

discrepancy between Taylor and Murray’s cases illustrates how “the Court’s line-



      15. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S.
Ct. 2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).

                                        - 35 -
drawing for the retroactivity of Hurst creates unconstitutional results for

defendants.” Id. at 28.

LAWSON, J., concurring specially.

      I concur in that portion of the opinion affirming the postconviction court’s

order granting Hurst relief for the reasons explained in Okafor v. State, 225 So. 3d

768, 775-76 (Fla. 2017) (Lawson, J., concurring specially), and I fully concur as to

all other issues addressed in the majority opinion.

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

      I concur with the majority’s decision except its affirming the grant of a new

penalty phase pursuant to Hurst.

CANADY, C.J., concurs.

Appeals from the Circuit Court in and for Duval County,
     Russell L. Healey, Judge - Case No. 161992CF003708AXXXMA
And an Original Proceeding – Habeas Corpus

Pamela Jo Bondi, Attorney General, and Jennifer A. Donahue, Assistant Attorney
General, Tallahassee, Florida,

      for Appellant/Cross-Appellee/Respondent

Rick A. Sichta, Susanne K. Sichta, and Joe Hamrick of The Sichta Firm, LLC,
Jacksonville, Florida,

      for Appellee/Cross-Appellant/Petitioner




                                        - 36 -
