          Supreme Court of Florida
                                  ____________

                                  No. SC11-2403
                                  ____________

                               BRETT A. BOGLE,
                                  Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                  No. SC12-2465
                                  ____________

                               BRETT A. BOGLE,
                                  Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                                [February 9, 2017]

PER CURIAM.

      Brett Bogle appeals an order of the trial court denying his amended motion

to vacate his conviction of first-degree murder and sentence 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 we explain below, we affirm the denial of postconviction relief and deny

the habeas petition.

                                     FACTS

      Brett Bogle was charged in Hillsborough County with the first-degree

murder of Margaret Torres. The following facts come from this Court’s opinion in

Bogle’s direct appeal:

      Margaret Torres (the victim) was the sister of Katie Alfonso and
      stayed at Alfonso’s house four or five nights a week. In June 1991,
      Bogle met Alfonso and shortly thereafter he moved in with Alfonso
      and the victim. Bogle and the victim did not get along and Alfonso
      eventually asked Bogle to move out. The following week [on
      September 1, 1991], Bogle, Alfonso, the victim, and another person
      went out together and things seemed to be going better. During the
      outing, however, Bogle and the victim began to argue again.
      Subsequently, Alfonso and the victim refused to allow Bogle into
      Alfonso’s house. Bogle then broke through the screen door of
      Alfonso’s house, grabbed Alfonso’s neck to push her out of the way,
      grabbed the victim’s arm to remove the telephone from her hand as
      she tried to call 911, pulled the telephones out of the kitchen and
      bedroom, and took clothing from the house. As he left the house,
      Bogle told the victim that she would not live to tell about it if she
      called the police and pressed charges. In response to the victim’s
      uncompleted call to 911, a deputy sheriff arrived shortly after Bogle
      left. The deputy referred the matter to the state attorney’s office.
      Several days later, Bogle called Alfonso and again threatened the
      victim, stating that, if the victim pressed charges, she would not live
      to tell about it.
              About two weeks later [on September 12, 1991], Bogle called
      Alfonso to ask if he could come over to her house. The victim was
      out for the evening. When Alfonso told Bogle that he could not come
      over, he became furious and hung up. Later that night, Bogle and the
      victim ran into each other at a bar called Club 41. Witnesses saw

                                       -2-
them talking briefly. Witnesses also noticed that Bogle was clean and
had no noticeable injuries of any kind when he arrived at Club 41.
The victim left Club 41 at about 1 a.m.; Bogle left approximately five
minutes later. About forty-five minutes after that, Bogle approached a
car outside Club 41 and asked for a ride. At that time, his forehead
was scratched, his clothes were dirty, and his crotch was wet.
       The next day, the victim’s nude and badly beaten body was
found outside an establishment [“Beverage Barn”] located next to
Club 41. Her head had been crushed with a piece of cement, and she
had died of blows to the head. Additionally, she had semen in her
vagina and trauma to her anus consistent with sexual activity that was
likely inflicted before death. The DNA extracted from the semen was
consistent with Bogle’s DNA (12.5% of Caucasian males could have
contributed the semen), and a pubic hair found on the crotch area of
Bogle’s pants matched the victim’s.
       Bogle put on no evidence in his defense. The jury found him
guilty of burglary of Alfonso’s home with force, retaliation against the
victim as a witness to that burglary, and first-degree murder of the
victim. A penalty phase proceeding was held on the first-degree
murder conviction, and the jury recommended death by a seven-to-
five vote. The trial judge, however, granted a new penalty phase
proceeding after determining that improper rebuttal evidence had been
presented by the State.
       At the second penalty phase proceeding, the State presented the
same evidence it relied on in the guilt phase. Bogle put on eight
witnesses who testified that Bogle had been subjected to physical and
mental abuse as a child, had used drugs at his father’s urging from the
time he was five or six years old, was under the influence of alcohol at
the time of the murder, had a personality disorder and suffered from
some mental disturbance at the time of the murder, was kind to others,
and had been injured in an automobile accident a week before the
murder. The jury recommended death by a ten-to-two vote. The trial
judge subsequently sentenced Bogle to death, finding four aggravating
circumstances: (1) previous conviction of a violent felony (burglary
with force on Alfonso and the victim two weeks before the murder);
(2) the murder was committed while engaged in the commission of a
sexual battery; (3) the murder was committed for the purpose of
avoiding arrest; and (4) the murder was heinous, atrocious, or cruel
(HAC). In mitigation, the trial judge gave some weight to the
statutory factor of impaired capacity but stated that substantial

                                 -3-
      impairment had not been proven; gave substantial weight to Bogle’s
      family background; little weight to his alcohol and drug abuse; gave
      some weight to his good conduct during trial; gave some, but not a
      great deal, of weight to his kindness to others; and gave no weight to
      his involvement in an automobile accident. Bogle also received
      consecutive sentences of life in prison for the burglary-with-assault-
      or-battery conviction and five years in prison for the retaliation-
      against-a-witness conviction.

Bogle v. State, 655 So. 2d 1103, 1105-06 (Fla. 1995), cert. denied, 516 U.S. 978.

We affirmed Bogle’s convictions and sentences on direct appeal. Id. at 1110.1

      In July 2000, Bogle filed an amended motion to vacate his conviction and

sentence and subsequently filed amendments and a supplement thereto. Following

an evidentiary hearing,2 the trial court, on October 25, 2011, denied Bogle’s

amended motions to vacate his conviction and sentence.3


       1. Bogle raised the following six claims on direct appeal: (1) the office of
the state attorney for the Thirteenth Judicial Circuit should have been prevented
from prosecuting Bogle after one of Bogle’s attorneys went to work for that office;
(2) the trial court erroneously prevented the penalty phase jury from considering
critical evidence regarding scratches to his face; (3) the trial judge erroneously
refused to give a specially requested penalty phase jury instruction; (4) the
aggravating factors were unsupported; (5) the HAC jury instruction was
unconstitutionally vague, overbroad, and arbitrary and capricious; and (6) his
sentence of death was disproportionate. Id. at 1106-09.

     2. The evidentiary hearing was conducted on June 9-13, 2008, November
30-December 1, 2009, and August 23-24, 2010.

       3. On September 23, 2013, we granted Bogle’s motion to relinquish
jurisdiction, in part, for the purpose of pursuing any claims pertinent to the alleged
newly discovered evidence of an August 20, 2013, letter from the United States
Department of Justice (DOJ). According to this letter, the DOJ reviewed the work
of Agent Malone, who conducted the microscopic hair analysis and testified at

                                         -4-
                                     ANALYSIS

        APPEAL OF THE ORDER DENYING RULE 3.851 MOTION

      Bogle raises the following seven claims on appeal: (1) he was denied due

process and full and fair postconviction proceedings; (2) the trial court erred in

denying his claim that he was deprived of his due process rights under the

Fourteenth Amendment and his rights under the Fifth, Sixth, and Eighth

Amendments because the State withheld evidence that was material and

exculpatory in nature and/or presented false and misleading evidence and/or

argument; (3) the trial court erred in denying his claim that he was denied effective

assistance of counsel at the guilt phase in violation of the Sixth, Eighth, and

Fourteenth Amendments; (4) the trial court erred in denying his claim that he was

denied an adequate adversarial testing at the penalty phase of his trial in violation

of the Sixth, Eighth, and Fourteenth Amendments; (5) the trial court erred in

denying his claim that newly discovered evidence shows that his conviction is

unconstitutionally unreliable; (6) the trial court erred in denying his claim that his

trial counsel had a conflict of interest which violated his rights under the Fifth,




Bogle’s trial. On remand, the trial court granted Bolge’s motion for mitochondrial
DNA. Bogle then filed a successive motion to vacate his conviction and sentence.
On February 17, 2014, the trial court found that it lacked jurisdiction and
accordingly held Bogle’s successive motion in abeyance until appellate
proceedings conclude.

                                         -5-
Sixth, and Fourteenth Amendments; and (7) the trial court erred in denying his

claim that he was denied a fair trial due to prosecutorial misconduct.

         I. Due Process and Full and Fair Postconviction Proceedings

                             A. Motion to Disqualify

      Bogle contends that the postconviction court, Judge Wayne Timmerman,

erred in denying his motions to disqualify. Prior to the evidentiary hearing, the

trial court denied Bogle’s motion to disqualify—based on the defense’s

expectation to call Judge Timmerman’s wife—as legally insufficient. Bogle

sought review of the order denying his renewed motion to disqualify, and this

Court dismissed Bogle’s petition, finding that “[b]ecause neither Judge

Timmerman nor his wife were material witnesses, the trial court did not abuse its

discretion in denying Bogle’s renewed motion to disqualify.” Bogle v. State, 10

So. 3d 631 (Fla. 2009) (table). We do not disturb our prior finding that neither

Judge Timmerman nor his wife were material witnesses in this case. Therefore, we

affirm the postconviction court’s denial of the motions to disqualify.4




       4. The record does not support Bogle’s assertion that Marcia Turley
provided to the adoption attorney (who shared office space with Judge Timmerman
when he was in private practice) that the father of her baby was Guy Douglas and
that she was afraid that Douglas had killed Torres. We also reject Bogle’s claim
that the trial court erred in denying his motions to take Judge Timmerman’s
deposition.

                                        -6-
                     B. Refusal of Questioning and Testimony

      Bogle claims that the trial court committed several errors in precluding

certain questioning and testimony at the evidentiary hearing. We affirm trial court

determinations of evidence admissibility “absent a showing of abuse of discretion.”

Randolph v. State, 853 So. 2d 1051, 1062 (Fla. 2003). Bogle argues that the trial

court erred in refusing to allow the defense to impeach Agent Michael Malone and

Steve Robertson, who reviewed Malone’s work in this case, through questioning

concerning acts of alleged misconduct. We find that the trial court properly

sustained the objections. See Farinas v. State, 569 So. 2d 425, 429 (Fla. 1990)

(“Evidence of particular acts of misconduct cannot be introduced to impeach the

credibility of a witness.”).

      Additionally, we reject Bogle’s claim that the trial court erred in refusing to

allow questioning of Karen Cox, who was the prosecutor in Bogle’s case,

pertaining to any alleged prosecutorial misconduct in other cases.5 We also find

that the trial court did not abuse its discretion in precluding Dr. Terry Melton’s

testimony on hair comparison because Dr. Melton was not qualified. See Simmons

v. State, 934 So. 2d 1100, 1117 (Fla. 2006) (“A trial judge has the discretion to




       5. We also conclude that the trial court properly found the unrelated case
irrelevant as to State witness Patricia Bencivenga.


                                         -7-
determine if a witness’s qualifications render him or her an expert, and this

determination will not be overturned absent clear error.”).

      Contrary to Bogle’s claim, the trial court also did not err in precluding the

questioning of Marcia Turley about her fear of Guy Douglas. Bogle’s counsel was

permitted to ask Turley “Is it fair to say you were scared of Guy Douglas?” and,

“Was your fear of Mr. Douglas related to the fact that he made the threat

immediately following the murder of Margaret Torres, was that partially why you

were afraid of him?” Turley responded to both questions in the affirmative. We

therefore deny relief on this claim.6

                C. Denials of Postconviction Discovery Requests

      Bogle claims the trial court violated his due process rights by denying his

postconviction discovery requests involving access to inmates’ jail calls, access to

the Florida offender DNA database, and errors and false testimony committed by

Malone since Bogle’s trial. The ruling of a postconviction court on a motion for

discovery is reviewed for an abuse of discretion. Floyd v. State, 18 So. 3d 432,

446 (Fla. 2009). The trial court found and we agree that Bogle’s requests

involving both inmates’ jail calls and the Florida offender DNA database were


        6. Additionally, we conclude that the trial court did not abuse its discretion
in limiting Brian Bogle’s testimony, that the trial court properly sustained the
State’s objection during Gary Turley’s testimony, and that Bogle has not
demonstrated that the trial court reversibly erred in precluding the questioning of
trial counsel regarding Roger Kelly’s deposition.

                                         -8-
overly broad without any specificity. In fact, it appears the defense was on a

fishing expedition. Additionally, the trial court properly denied the request

concerning Malone because it was improper impeachment material. We conclude

that Bogle has failed to establish an abuse of discretion. See Farinas, 569 So. 2d at

429.

                            II. Brady and Giglio Claims

       Bogle contends that the trial court erred in denying his Brady7 and Giglio8

claims. This Court, in Franqui v. State, 59 So. 3d 82 (Fla. 2011), articulated the

standard of review for Brady and Giglio claims as follows:

       Brady requires the State to disclose material information within its
       possession or control that is favorable to the defense. To demonstrate
       a Brady violation, the defendant has the burden to show (1) that
       favorable evidence, either exculpatory or impeaching, (2) was
       willfully or inadvertently suppressed by the State, and (3) because the
       evidence was material, the defendant was prejudiced. To meet the
       materiality prong of Brady, the defendant must demonstrate “a
       reasonable probability that, had the evidence been disclosed to the
       defense, the result of the proceeding would have been different.” “. . .
       [M]ateriality under Brady requires a probability sufficient to
       undermine confidence in the outcome.” [For t]he materiality inquiry .
       . . [“]the question is whether ‘the favorable evidence could reasonably
       be taken to put the whole case in such a different light as to undermine
       confidence in the verdict.’ ” “It is the net effect of the evidence that
       must be assessed.” “Although reviewing courts must give deference
       to the trial court’s findings of historical fact, the ultimate question of
       whether evidence was material resulting in a due process violation is a

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

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


                                         -9-
      mixed question of law and fact subject to independent appellate
      review.”
              In order to prove a Giglio violation, “a defendant must show
      that (1) the prosecutor presented or failed to correct false testimony;
      (2) the prosecutor knew the testimony was false; and (3) the false
      evidence was material.” If the first two prongs are established, the
      false evidence is deemed material if there is any reasonable possibility
      that it could have affected the jury’s verdict. The State must then
      “prove that the false testimony was not material by demonstrating it
      was harmless beyond a reasonable doubt.” Under the harmless error
      test, the State must prove “ ‘there is no reasonable possibility that the
      error contributed to the conviction.’ ”
              Both Giglio and Brady claims present mixed questions of law
      and fact. Thus, as to findings of fact, [the Court] defer[s] to the lower
      court’s findings if they are supported by competent, substantial
      evidence. “[T]his Court will not substitute its judgment for that of the
      trial court on questions of fact, likewise of the credibility of the
      witnesses as well as the weight to be given to the evidence by the trial
      court.” We review the trial court’s application of the law to the facts
      de novo.

Franqui, 59 So. 3d at 101-02 (citations omitted).

                   A. Information Regarding an Accomplice

      First, the trial court found that Bogle failed to show that the State possessed

and failed to disclose information regarding Guy Douglas that was favorable to the

defense. The record reveals a handwritten note composed by prosecutor Karen

Cox which states: “talk to re: Guy Douglas confessed to being involved.” Above

the statement was the name “Marcia Baurle”9 and “Guy Douglas 92-7731 Capias.”

We conclude that Bogle met his burden of showing under Brady that this note is



      9. Marcia Baurle is also known as Marcia Turley.

                                        - 10 -
favorable, exculpatory evidence that was suppressed by the State. At the

evidentiary hearing, Cox had no recollection of a witness telling her at trial that

Douglas was involved in the murder. Cox interpreted the note to mean that she

was supposed to talk to somebody about whether or not Douglas confessed. Cox

believed that the information was probably not provided by Marcia Turley; Cox

did not recall speaking with Turley. Cox testified that had any other person

confessed to the murder, she would have immediately turned it over to the defense.

       Turley testified at the evidentiary hearing that when Douglas told her Bogle

was brought in for questioning relating to Torres’s murder, Douglas told Turley he

was not worried because he was with her on the night in question. When Turley

refuted his assertion, Douglas told her she did not need to say anything other than

he was with her all night or they would be lucky to find Turley’s body. Jeanne

Bratton, Turley’s sister, testified that subsequent to the murder, Turley told Bratton

that Douglas’s clothes were bloody. The trial court found Bratton to have little

credibility.

       The record also reveals an interoffice memorandum dated October 7, 1991,

in which an employee of victim assistance for the State Attorney’s Office wrote to

Cox regarding the Bogle case:

       Katie Alfonso called today stating (she is sister of Vic) she spoke with
       a person named Andy, who was at bar with Bret[t] and a person
       named Guy, anyway seems Andy is telling people 2 were involved,
       Brett and Guy left the bar together.

                                        - 11 -
At the evidentiary hearing, Cox had no recollection of what led her to believe that

“Andy” was involved in the murder. Katie Alfonso testified at the evidentiary

hearing that she did not recall speaking to “Andy,” and that no one with first-hand

knowledge told her two people were involved. Alfonso recalled a rumor

circulating which suggested more than one person was involved because the crime

was “so horrible.” She further testified that she could have related the rumor to the

memo’s author. Bogle’s trial counsel did not recall the memo.

      We conclude that Bogle has demonstrated under Brady that the message

from Alfonso regarding “Andy” is favorable, exculpatory evidence that was

suppressed by the State. We observe that Bogle has not shown in postconviction

any additional evidence pertaining to “Andy.” As to Cox’s handwritten note,

Bogle’s trial counsel believed that Douglas murdered Torres, and the defense

investigated Douglas.

      The trial court found that the disclosure of Cox’s handwritten note and the

memorandum relating a rumor of multiple persons involved in the murder do not

create a reasonable probability that the result of the proceeding would have been

different. We agree. We find that the evidence offered against Bogle at trial was

strong: Bogle threatened Torres’s life if she called the police concerning Bogle’s

breaking into Alfonso’s house about 11 days before Torres’s murder; Bogle

repeated his threat several days later; Bogle left Club 41 in clean clothes about five

                                        - 12 -
minutes after Torres left on the night of the murder; Bogle was seen in dirty clothes

with his crotch wet approximately forty-five minutes later; and the DNA extracted

from the semen in Torres’s vagina was consistent with Bogle’s DNA. We

conclude that the note and memorandum, which were suppressed by the State,

were not material because there is not a reasonable probability that, had the note

and memo been disclosed to the defense, the result of the proceeding would have

been different. In other words, there is no probability sufficient to undermine our

confidence in the outcome. Accordingly, we deny this Brady claim as it relates to

the note and memorandum.10

      As an additional Brady claim, Bogle refers to another handwritten note

which references Bogle and provides for Gary Turley to be “brought over.” Cox

and Detective Larry Lingo both acknowledged at the evidentiary hearing that they

wrote parts of the note. Gary Turley, Marcia Turley’s husband, testified at the

evidentiary hearing that he observed Douglas driving Torres away from Club 41 on

the night of the murder. Mr. Turley stated that he later saw Douglas’s truck parked

at the Beverage Castle11 without any occupants. He also acknowledged a prior


      10. We also deny Bogle’s claim that because Cox possessed information of
Douglas’s confession and that more than one person was involved in the murder,
she argued falsely at trial that the investigation was clear that Bogle killed Torres.

      11. Presumably, the establishment Gary referred to was the “Beverage
Barn.”


                                        - 13 -
statement in which he admitted that the truck he saw parked at the establishment

might not have belonged to Douglas. He also testified that after the murder, his

wife told him about Douglas’s threatening her to provide him an alibi. The trial

court found that Mr. Turley—who is serving a life sentence, has thirty-three felony

convictions, and admitted to disliking Douglas—lacked credibility. We conclude

that Bogle is not entitled to relief on this Brady claim.12

                             B. Grand Jury Testimony

      Bogle asserts another Brady violation regarding the State’s failure to

disclose the grand jury testimony to the defense. In denying this claim, the trial

court found that any impeachment value would have been minor. Because “there

is no pretrial right to inspect grand jury testimony,” a Brady violation has not been

demonstrated. Brookings v. State, 495 So. 2d 135, 137 (Fla. 1986).

                                   C. Jeffrey Tapp

      Bogle also claims a Brady violation based on the State’s failure to disclose

State witness Jeffrey Trapp’s criminal record and that Trapp admitted to violating

his probation without consequences from the State. At Bogle’s trial, Trapp

testified that he was at the Red Gables Bar on the night of the murder, which his


      12. We also reject Bogle’s Brady claim which relies on a September 7,
1992, note showing that Judge Wayne Timmerman returned Cox’s phone call.
Bogle failed to raise below his Giglio claim relating to his assertion that Detective
Lingo did not confirm Douglas’s alibi; thus, this claim is procedurally barred. See
Green v. State, 975 So. 2d 1090, 1105 (Fla. 2008).

                                         - 14 -
probation forbade as a condition of community control. We find that no Brady

violation has been established because we agree with the trial court that Bogle has

not shown that Trapp’s probation conditions were in effect on the night in

question.

                                  D. Agent Malone

      Bogle also contends that the State violated Brady by failing to furnish F.B.I.

Agent Malone’s bench notes to the defense. The trial court found that the notes

were insufficient to undermine confidence in the proceedings and were unlikely to

produce an acquittal on retrial because the notes have “minimal” value to the

defense. At trial, Malone, an expert in hair and fibers, testified that one Caucasian

pubic hair (Q-18) recovered from the debris of Bogle’s pants was microscopically

indistinguishable from Torres’s pubic hair (K-6). This finding was consistent with

Malone’s report and confirmed by an examiner. Malone’s bench notes, however,

stated that Q-18 equaled K-7, which referred to Torres’s head hair sample. Malone

testified at the evidentiary hearing that this was a transcription error: his bench

notes should have said that Q-18 equaled K-6. We find that no Brady violation has

been demonstrated because Bogle has failed to establish that trial counsel

attempted to obtain and the State suppressed Malone’s notes. See Peede v. State,

955 So. 2d 480, 497 (Fla. 2007) (finding no Brady violation where the defense

could have obtained the information in question with reasonable diligence).


                                         - 15 -
              E. Testimony Regarding Bogle’s Pants in Evidence

      Bogle asserts in his next Brady claim that the State suppressed the fact that

Bogle’s pants were placed in a drying shed after Detective Lingo’s collection of

the pubic hair and that Detective Lingo removed evidence from the evidence room

to conduct an investigation. Bogle relies on a Hillsborough County Sheriff’s

Office disciplinary report stating that Ronald Cashwell, a Crime Scene Technician,

“placed damp clothing into Evidence without first ascertaining that the articles

were sufficiently dried.” A written request for discipline noted that Cashwell:

      should have taken extreme caution to insure that the pants were dry
      since crucial evidence could have been obtained and used to assist in
      the prosecution of the suspect. Instead, the pants could have become
      molded and the evidence severely damaged or destroyed.

In detailing the events, Cashwell made a written statement that “[t]he items placed

in the shed are unable to be separate[d] from each other and could contaminate

each other and the shed was full of other evidence drying.”

      At trial, F.B.I. Agent Malone was asked whether anyone else came “into

contact with the pants from the time that they were put into property until the time

that you took them out to collect this evidence.” Malone answered, “No, they were

sealed when I checked them out.” Malone was not asked whether anyone else

came into contact with the pants throughout the whole time they were in evidence.

Thus, the disciplinary report, which indicates that a Crime Scene Technician




                                       - 16 -
removed the pants from the evidence room after Malone collected the hairs, is

consistent with Malone’s trial testimony.

      Bogle has not shown that the State suppressed evidence of contamination.

The disciplinary report and Cashwell’s statement on which Bogle relies do not

show that any evidence was actually contaminated but convey that the evidence

could have been contaminated or destroyed. Malone testified at the evidentiary

hearing that he found no evidence of contamination on the hairs retrieved from

Bogle’s pants and that the disciplinary report did not cause him to change his

opinion of the match. Even if Bogle met the first two prongs of Brady, showing

favorable evidence and suppression, the materiality prong has not been satisfied.

Accordingly, we find that Bogle has failed to establish a Brady violation.

      Bogle additionally claims that prosecutor Cox violated Giglio because she

knew Detective Lingo’s testimony about the pants was false and misleading. The

trial court denied this claim, finding the testimony unclear but not false. The trial

court reasoned that there was no evidence presented that anyone touched the pants

between the time they were sealed and placed in the evidence room until the pants

were examined by Detective Lingo. Because we agree that Detective Lingo did

not testify falsely, we deny this Giglio claim.




                                        - 17 -
                                  F. DNA Analysis

      Bogle also claims that Dr. Harold Deadman’s trial testimony that he

conducted restriction fragment length polymorphism (RFLP) DNA analysis in this

case was false, violating Giglio. We agree with the trial court’s conclusion that Dr.

Deadman’s testimony that he was “a supervisor” in the unit indicated that multiple

people were involved in the DNA analysis and was not false or misleading.

Therefore, we deny this Giglio claim.

      Bogle also asserts a Brady claim because the defense did not receive a copy

of the FBI file concerning the RFLP DNA testing. Bogle maintains that the file

could have been used to challenge Dr. Deadman’s credibility, the DNA analysis,

and the investigation. The trial court found the value of the impeachment evidence

disclosed in Dr. Deadman’s file minimal and concluded that Bogle failed to

demonstrate that the result of the proceeding would have been different had Dr.

Deadman’s file been disclosed.13 After carefully reviewing the record, we

conclude that even if the FBI file was suppressed and favorable to the defense, the

materiality prong under Brady has not been met. Therefore, we affirm the trial

court’s denial of relief on this claim.




     13. Contrary to Bogle’s argument, the trial court did not employ an
improper standard.

                                          - 18 -
                                G. Bogle’s Injuries

      Bogle raises a final Giglio claim alleging that prosecutor Cox knowingly

argued falsely that the lacerations on Bogle’s face could only be from the struggle

with Torres because Cox was aware of Bogle’s car accident. We agree with the

trial court that the prosecutor argued reasonable inferences in light of the evidence

presented. We therefore deny relief on this Giglio claim.

               III. Ineffective Assistance of Guilt Phase Counsel

      Bogle contends that the trial court erred in denying his claim of ineffective

assistance of counsel during the guilt phase. Following the United States Supreme

Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), this Court

explained that for ineffective assistance of counsel claims to be successful, two

factors must be established:

      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.

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

490 So. 2d 927, 932 (Fla. 1986)). Because both prongs of Strickland present

mixed questions of law and fact, this Court employs a mixed standard of review,

deferring to the trial court’s factual findings that are supported by competent,




                                        - 19 -
substantial evidence, but reviewing the trial court’s legal conclusions de novo.

Dennis v. State, 109 So. 3d 680, 690 (Fla. 2012).

      Bogle claims that his trial counsel failed to investigate his September 6,

1991, car accident. Specifically, Bogle asserts that trial counsel was deficient in

failing to review medical records and photographs, speak with anyone who

observed Bogle between the accident and the murder, retain an expert, and present

evidence that he was physically incapable of committing the murder. The trial

court denied this claim, observing that Bogle failed to provide any evidence at the

evidentiary hearing that the car accident injury rendered him physically incapable

of committing the murder.

      At trial, no witnesses testified to observing any injuries on Bogle before he

left Club 41 except Phillip Alfonso who saw a scar on Bogle’s right side which

Bogle claimed was from an accident. At the evidentiary hearing, Mary McFarland,

who married Bogle on death row, testified that Bogle had injuries to his face a day

before the murder and opined that there was no way Bogle was capable of

committing the acts as alleged. Bogle’s mother testified that the car accident

punctured Bogle’s lung, that he had a tube in his side, he had broken some of his

ribs, his face was “all messed up . . . [on h]is forehead,” and he was sore. She

believed that she informed Bogle’s trial counsel of photographs taken of Bogle at

the hospital. Bogle’s prior postconviction counsel obtained photographs pertaining


                                        - 20 -
to Bogle’s car accident from Bogle’s civil lawyer. Bogle’s trial counsel did not

recall possessing Bogle’s hospital photographs. Dr. Edward Willey, a forensic

pathologist, testified at the evidentiary hearing that the lacerations Bogle sustained

from the car accident most likely would not have healed completely within ten

days. However, on cross-examination, Dr. Willey could not exclude the possibility

that a preexisting laceration reopened on the day of the murder.

      Even if guilt phase counsel was deficient in failing to effectively show that

some of Bogle’s scratches originated from his accident, we conclude that Bogle

has not demonstrated prejudice. Bogle had motive to kill Torres and had

threatened her life. Bogle’s DNA was consistent with DNA found in the victim’s

vagina. A pubic hair found near the crotch of Bogle’s pants matched Torres.

Bogle has not established that counsel’s showing his scratches were sustained in a

car accident would have undermined confidence in the outcome of his case.

Therefore, counsel’s failure to make such a showing was not prejudicial, and we

deny relief on this claim.

      Bogle also claims his guilt phase counsel was deficient for failing to present

Everett Smith’s testimony relating to events on September 1, 1991. According to

Bogle, Smith’s testimony would have undermined motive for Bogle to kill Torres.

In denying this claim, the trial court found that Smith’s testimony would have had

little substantive or impeachment value. At the evidentiary hearing, Smith testified


                                        - 21 -
that neither Katie Alfonso nor Torres expressed any fear while being around Bogle,

even when he was violent, and described a September 1, 1991, incident

demonstrating this lack of fear. We find that Smith’s testimony would not have

undermined Bogle’s motive to kill Torres and conclude that trial counsel was not

deficient for failing to present Smith’s testimony at trial.

      Bogle additionally claims that trial counsel was deficient for failing to

present the deposition of Roger Kelly, who passed away before trial. Bogle asserts

that Kelly’s deposition establishes that on the night in question, Torres was

dancing with a man other than Bogle and arguing with Guy Douglas. The trial

court denied this claim, finding that the deposition could not legally be introduced

as substantive evidence. We agree. Because Kelly’s deposition was not

admissible as substantive evidence, we deny Bogle’s claim that his trial counsel

was deficient in this regard. See State v. Contreras, 979 So. 2d 896, 911 (Fla.

2008) (“[A] deposition that is taken pursuant to rule 3.220 is only admissible for

purposes of impeachment and not as substantive evidence.”) (citing Rodriguez v.

State, 609 So. 2d 493 (Fla. 1992)). Moreover, the deposition was not admissible as

substantive evidence under Chambers v. Mississippi, 410 U.S. 284 (1973).

      Bogle also claims that his trial counsel was deficient in failing to

demonstrate that the hair comparison in this case was unreliable and flawed, failing




                                         - 22 -
to acquire Agent Michael Malone’s bench notes, and failing to retain an expert. At

trial, Malone concluded as follows:

      In the debris reported as being from Mr. Bogle’s pants, I was able to
      find one Caucasian pubic hair which microscopically matched the
      pubic hairs of Margaret Torres. In other words, it was
      microscopically indistinguishable from her’s [sic] and, therefore, I
      concluded this one pubic hair from the pants was consistent with
      coming from Margaret Torres.

Malone acknowledged, on cross-examination, that the pubic hair was naturally

removed, that there was no way to determine how long the hair had been removed,

and that hair comparisons do not constitute a basis for absolute personal

identification.

      At the evidentiary hearing, Bogle proffered the deposition of mitochondrial

DNA expert Dr. Terry Melton who criticized Malone for using potentially

misleading words and making conclusions without conducting DNA testing on the

sample. Dr. Melton did not state whether she would have been available to testify

at Bogle’s trial, nor did she know whether, at that time, labs were conducting

mitochondrial DNA testing on hairs for criminal defense attorneys. The

evidentiary hearing also revealed that studies relating to mitochondrial DNA and

the proficiency of hair microscopic analysis were unavailable at that time. The

trial court did not give Dr. Melton’s testimony great weight.

      Steven Robertson, an expert in the field of hair analysis and comparison,

concluded at the evidentiary hearing that Malone’s trial testimony matching

                                       - 23 -
Torres’s pubic hair and the hair from Bogle’s pants was not inconsistent with his

lab report, but was inconsistent with Malone’s bench notes. Robertson determined

that Malone testified “fairly” and within the bounds of his expertise. We conclude

that Bogle has not demonstrated that the defense’s failure to obtain Malone’s

bench notes was outside the broad range of reasonably competent performance

under prevailing professional standards at the time of trial. See Long v. State, 118

So. 3d 798 (Fla. 2013). In addition, Bogle failed to present evidence that a

mitochondrial DNA expert, such as Dr. Melton, or a microscopic hair analysis

expert, would have been available to testify at trial, or in the preparation thereof.

Accordingly, we deny relief on this claim.

      Bogle next claims that his trial counsel was deficient in failing to request a

Frye14 hearing to challenge the DNA evidence and show that the F.B.I. did not

follow accepted testing procedures. A Frye hearing determines whether an

expert’s scientific opinion is admissible. Zack v. State, 911 So. 2d 1190, 1197

(Fla. 2005). To be admissible, an expert opinion must be based on techniques that

have been generally accepted by the relevant scientific community and found to be

reliable. Id. (citing Frye, 293 F. at 1014). However, Frye is only utilized where

the science at issue is new or novel. Id. at 1198. In denying this claim, the trial




      14. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).


                                         - 24 -
court determined that Bogle failed to show that the RFLP DNA evidence would

have been inadmissible at trial had counsel requested a Frye hearing.

      At the evidentiary hearing, Dr. Randell Libby, an expert in human molecular

genetics and forensics DNA analysis, testified that RFLP was not generally

accepted in 1992; instead, RFLP was reviewed on a case-by-case basis. Although

Dr. Libby maintained that there were inconsistencies in Bogle’s case which raise a

concern about the possibility of contamination or something else producing an

inconsistent result, Dr. Libby could not identify any problems with the chain of

custody, nor did he have direct knowledge of improper evidence storage causing

degradation of evidence. Dr. Libby could not recall any previous case where he

testified and the evidence was ruled inadmissible. Dr. Libby said he would have

testified at a Frye hearing in this kind of case in 1991 and 1992.

      Dr. Deadman opined at the evidentiary hearing that F.B.I. procedures

employed in 1991 and 1992 for RFLP DNA examinations produced “very reliable”

results and that F.B.I. lab procedures in RFLP DNA analysis in this case were

generally accepted in the relevant scientific community. Dr. Martin Tracey, an

expert in population genetics and DNA analysis, saw no indication of

contamination, having reviewed Dr. Deadman’s RFLP analysis in this case. Based

on our review of the record, we conclude that Bogle has not demonstrated that trial




                                        - 25 -
counsel was deficient for failing to request a Frye hearing. Therefore, we affirm

the trial court’s denial of relief.

       In his final claim of ineffective assistance of guilt phase counsel, Bogle

contends that his trial counsel was deficient in failing to impeach Phillip and

Tammy Alphonso and Jeffrey Trapp. The Alphonsos did not testify at the

evidentiary hearing. As noted above, Bogle has not established that Trapp’s

community control condition was still in effect on the night of the murder. We

therefore deny relief, concluding that Bogle has not demonstrated that his trial

counsel was deficient.

               IV. Ineffective Assistance of Penalty Phase Counsel

       Bogle claims that his trial counsel was also ineffective during the penalty

phase. To be entitled to relief on this claim, Bogle must show that his attorney’s

performance was deficient and that the deficient performance prejudiced his

defense. Strickland, 466 U.S. at 687. “In the penalty phase context, ‘the question

is whether there is a reasonable probability that, absent the errors, the sentencer . . .

would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.’ ” Sochor v. State, 883 So. 2d 766, 771 (Fla.

2004) . “We do 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.’ ”


                                         - 26 -
Porter v. McCollum, 558 U.S. 30, 44 (2009) (quoting Strickland, 466 U.S. at 693-

94).

       This Court has stated that trial counsel has a duty to investigate mitigation.

“In reviewing a claim that counsel’s representation was ineffective based on a

failure to investigate or present mitigating evidence, the Court requires the

defendant to demonstrate that the deficient performance deprived the defendant of

a reliable penalty phase proceeding.” Simmons v. State, 105 So. 3d 475, 503 (Fla.

2012) (quoting Hoskins v. State, 75 So. 3d 250, 254 (Fla. 2011)). When this Court

reviews a trial court’s resolution of a Strickland claim, we defer to the trial court’s

factual findings, but review de novo the trial court’s legal conclusions. Id.

                     A. Challenging the Aggravating Factors

       Bogle claims that his trial counsel was deficient in failing to present any

evidence challenging the prior violent felony and avoid arrest aggravating factors

relating to September 1, 1991. The evidence at trial showed that on that day Bogle

and Torres argued, Bogle broke through Katie Alfonso’s screen door, pushed Katie

out of the way, and grabbed Torres’s arm to remove the telephone from her hand

as she tried to call 911. Bogle, on two separate occasions, threatened Torres that if

she pressed charges, she would not live to tell about it.

       For this claim, Bogle relies on the evidentiary hearing testimony of Everett

Smith, who detailed his version of the events on September 1. As noted above, we


                                         - 27 -
found that Smith’s testimony would not have undermined Bogle’s motive to kill

Torres and that trial counsel was not deficient for failing to present Smith’s

testimony during the guilt phase. We additionally conclude that trial counsel was

not deficient for failing to present Smith’s testimony during the penalty phase.

              B. Investigating and Presenting Mitigation Evidence

      Bogle next claims his trial counsel was deficient in the investigation and

presentation of mitigation evidence. At the second penalty phase, through the

testimonies of a psychiatrist and seven witnesses consisting of Bogle’s family and

friends, the defense established that:

      Bogle had been subjected to physical and mental abuse as a child, had
      used drugs at his father’s urging from the time he was five or six years
      old, was under the influence of alcohol at the time of the murder, had
      a personality disorder and suffered from some mental disturbance at
      the time of the murder, was kind to others, and had been injured in an
      automobile accident a week before the murder.

Bogle, 655 So. 2d at 1105.15 In analyzing the mitigation evidence, the trial court:

      gave some weight to the statutory factor of impaired capacity but
      stated that substantial impairment had not been proven; gave
      substantial weight to Bogle’s family background; little weight to his
      alcohol and drug abuse; gave some weight to his good conduct during
      trial; gave some, but not a great deal, of weight to his kindness to
      others; and gave no weight to his involvement in an automobile
      accident.


       15. In addition to the psychiatrist, Bogle’s penalty phase counsel also
retained a psychologist for mitigation purposes. Both experts evaluated Bogle
prior to the penalty phase. We reject Bogle’s claims that his counsel failed to
provide critical information to his expert and request any psychological testing.

                                         - 28 -
Id. at 1105-06.

      We observe that the postconviction evidentiary hearing included some of the

same witnesses who testified at the second penalty phase and that much of the

evidence was cumulative. See Troy v. State, 57 So. 3d 828, 835 (Fla. 2011) (“[A]

defendant’s claim that he was denied effective assistance of counsel because of

counsel’s failure to present mitigation evidence will not be sustained where the

jury was aware of most aspects of the mitigation evidence that the defendant

claims should have been presented.”). Bogle’s forensic psychologist concluded at

the evidentiary hearing that Bogle had a significant mental illness and that he was

under the influence of mental or emotional disturbance in some form at the time of

the murder.

      We reject Bogle’s characterization that he presented substantial mitigation in

postconviction and conclude that Bogle has not established prejudice under

Strickland. We note that, in this case, the trial court found that the following

aggravating factors were applicable: prior violent felony, the murder was

committed while engaged in the commission of a sexual battery, avoid arrest, and

HAC. See Gonzalez v. State, 136 So. 3d 1125, 1167 (Fla. 2014) (“HAC and prior

violent felony are among the weightiest aggravators in Florida’s statutory

scheme.”). Because we conclude that Bogle has not established that his trial




                                        - 29 -
counsel was ineffective as to investigating and presenting mitigation evidence, we

deny relief.16

                          V. Newly Discovered Evidence

      Bogle claims that the trial court erred in denying his claim of newly

discovered evidence. This Court has set forth a two-prong test that a defendant

must satisfy in order to obtain relief in cases involving newly discovered evidence:

              To obtain a new trial based on newly discovered evidence, a
      defendant must meet 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. Second, the newly
      discovered evidence must be of such nature that it would probably
      produce an acquittal on retrial. See Jones v. State, 709 So. 2d 512,
      521 (Fla. 1998) (Jones II). Newly discovered evidence satisfies the
      second prong of the Jones II test if it “weakens the case against [the
      defendant] so as to give rise to a reasonable doubt as to his
      culpability.” Jones II, 709 So. 2d at 526 (quoting Jones v. State, 678
      So. 2d 309, 315 (Fla. 1996)). 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. See Jones v.
      State, 591 So. 2d 911, 915 (Fla. 1991) (Jones I).

Marek v. State, 14 So. 3d 985, 990 (Fla. 2009). The postconviction court must

consider the effect of the newly discovered evidence, in addition to all of the

admissible evidence that could be introduced at a new trial. Swafford v. State, 125

So. 3d 760, 775-76 (Fla. 2013). Bogle’s claim of newly discovered evidence


       16. We expressly reject Bogle’s contention that his trial counsel was
deficient for failing to speak to his family members and friends and for failing to
secure Brian Bogle’s live testimony during the penalty phase.

                                        - 30 -
consists of Y-STR17 DNA testing of Torres’s fingernails. The State conducted

postconviction STR DNA testing from the vaginal swabs and Torres’s underwear.

                        A. Testing of Torres’s Fingernails

      In 2007, the underside of Torres’s fingernail clippings from both hands were

swabbed for Y-STR testing. A male profile was obtained, which appeared to be a

mixture consistent with at least two male DNA present—one major and one minor

contributor—at all seventeen markers. Bogle’s expert was unable to identify the

genetic material source of the DNA or when it was deposited. Bogle’s experts

excluded Bogle as a contributor to the mixture detected from the fingernails.

      We agree with the trial court’s finding that Bogle has satisfied the first prong

of Jones II. Regarding the second prong, as stated by the trial court, the absence of

Bogle’s DNA beneath Torres’s fingernails is relevant to counter the State’s

argument that Bogle’s “fresh” scratches were caused by Torres during their

struggle. It certainly cannot be said, however, that this evidence establishes that

the contributor to this DNA mixture was actually the person who murdered Torres.

Moreover, it cannot be determined whether Bogle’s DNA was present on Torres’s

fingernails at her death, approximately sixteen years before they were swabbed.

We conclude that the trial court correctly found that this evidence is not of such a

nature that it would probably produce an acquittal on retrial.


      17. “STR” stands for short tandem repeat.

                                        - 31 -
           B. Testing of the Vaginal Swabs and Torres’s Underwear

      Patricia Bencivenga, a crime laboratory analyst for the Florida Department

of Law Enforcement (FDLE), conducted STR DNA testing on the four wood sticks

of the vaginal swabs in Bogle’s case, on the swab packaging, and on Torres’s

underwear. Bencivenga obtained a mixture DNA profile of only two profiles: a

major contributor was male and a small contributor which matched Torres. The

major male contributor was then run through the Combined DNA Index System

(CODIS), which made a hit on Bogle. After conducting DNA testing on a known

Bogle profile, Bencivenga concluded that the major contributor was consistent

with Bogle’s profile and the minor was consistent with Torres’s profile.

      At all thirteen areas tested, Bogle’s DNA profile matched the DNA of the

major male contributor on the vaginal swabs. The frequency of the occurrence of

that profile is approximately 1 in 45 quadrillion Caucasians, one in 8.1 quintillion

African-Americans, and 1 in 81 quadrillion Southeastern Hispanics.18 After

conducting DNA testing on Torres’s underwear, Bencivenga found a profile of a

mixture at one area: one of Torres and one consistent with Bogle’s profile. Guy

Douglas was excluded in postconviction as the source of the foreign DNA profile




      18. Dr. Libby, testifying for the defense, computed the statistical probability
with considering the common alleles as Caucasians as 1 in 43,000. The trial court
found that Dr. Libby was not as credible as Bencivenga.

                                        - 32 -
from the vaginal swabs and excluded as a contributor to the mixed DNA profile

obtained from Torres’s underwear.19

      The trial court found that because the prosecution’s evidence that Torres was

murdered during a sexual assault was “very strong,” evidence that Bogle’s DNA

profile was the sole match to the semen found on the vaginal swabs and her

underwear was “highly relevant and highly prejudicial.” We conclude that it is

significant that Bogle’s DNA profile matched the DNA of the major male

contributor on the vaginal swabs from Torres. We note that Detective Lingo

testified that Bogle denied having sex with Torres in his interview on or about

September 14, 1991. Bogle, therefore, has not demonstrated that he is entitled to

relief on his claim of newly discovered evidence.20

                              VI. Conflict of Interest

      Bogle asserts that the trial court erred in denying his claim that his trial

counsel had conflicts of interest which violated his right to present a defense and to

confront and cross-examine witnesses. In denying this claim, the trial court found


      19. Contrary to Bogle’s suggestion that the trial court directed that
Douglas’s DNA sample be acquired, the record reveals that Douglas voluntarily
provided a DNA sample.

       20. We reject Bogle’s unsupported claims that the results of the State’s STR
DNA testing conducted in postconviction is inadmissible and that Detective Lingo
tampered with evidence. Bogle has not shown that there is a probability that
someone tampered with evidence. See Armstrong v. State, 73 So. 3d 155, 171
(Fla. 2011).

                                        - 33 -
that Bogle failed to show that there was an actual conflict of interest that adversely

affected his representation.

      In Cuyler v. Sullivan, 446 U.S. 335, 350 (1980), the United States Supreme

Court held that “the possibility of conflict is insufficient to impugn a criminal

conviction. In order to demonstrate a violation of his Sixth Amendment rights, a

defendant must establish that an actual conflict of interest adversely affected his

lawyer’s performance.” Here, Bogle contends that the Public Defender’s Office

representation of Guy Douglas, Jeffrey Trapp, and Margaret Torres created an

impermissible conflict of interest. We deny relief on this claim because Bogle has

failed to show that an actual conflict of interest existed.

                          VII. Prosecutorial Misconduct

      Bogle asserts that the trial court erred in denying his claim of prosecutorial

misconduct.21 We agree with the trial court’s determination that this claim is

procedurally barred. See Spencer v. State, 842 So. 2d 52, 60 (Fla. 2003) (“We

conclude that Spencer’s substantive claims of prosecutorial misconduct could and


       21. Bogle complains of the prosecutor’s reference to the FBI Crime
Laboratory as “the greatest crime laboratory in the world.” He also complains of
statements that law enforcement “did everything they could in this case,”
“followed every lead,” and that the investigation was “very thorough” and “didn’t
contradict what was already clear.” Bogle also complains of the statement, “[y]ou
can’t judge this man [Bogle] or expect this man to behave within the confines of
the ordinary person. You can’t expect a person who is capable of doing what he
did to Margaret Torres to act as you would expect an ordinary human being to act,”
and “[i]t’s not like a pubic hair in the crotch of the pants he [Bogle] was wearing.”

                                         - 34 -
should have been raised on direct appeal and thus are procedurally barred from

consideration in a postconviction motion.”).

      Bogle additionally argues that his trial counsel was ineffective by failing to

object to the alleged prosecutorial misconduct. Bogle relies on Ruiz v. State, 743

So. 2d 1, 8 (Fla. 1999), in which we reversed a defendant’s convictions and

sentences due to the trial being “permeated by egregious and inexcusable

prosecutorial misconduct.” We conclude that the prosecutor’s comments in this

case were fair comments on the evidence presented at trial. Accordingly, we deny

relief on this claim. See Spann v. State, 985 So. 2d 1059, 1068 (Fla. 2008)

(providing that counsel cannot be deemed ineffective for failing to object to a fair

comment which is based on the evidence presented during trial).

                                HABEAS PETITION

      In the petition for a writ of habeas corpus, Bogle claims that his appellate

counsel was ineffective on direct appeal for failing to raise: (1) a due process claim

regarding the felony-murder jury instruction with the underlying felony of sexual

battery; (2) a due process claim pertaining to the trial court’s refusal to instruct the

jury on hair analysis; (3) that the trial court erred in instructing and considering

inapplicable aggravating factors; (4) that the trial court’s admission of gruesome

photographs violated his constitutional rights; (5) that the trial court violated the

principles of Lockett v. Ohio, 438 U.S. 586 (1978), and Hitchcock v. Dugger, 481


                                         - 35 -
U.S. 393 (1987); and (6) a prosecutorial misconduct claim. Aside from his various

claims of ineffectiveness on the part of appellate counsel, Bogle raises a claim that

Florida’s capital sentencing scheme is unconstitutional under Ring v. Arizona, 536

U.S. 584 (2002).

                   I. Ineffective Assistance of Appellate Counsel

      Consistent with the Strickland standard, to grant habeas relief based 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.

Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986).

                          A. Felony-Murder Instruction

      Bogle contends that his appellate counsel was ineffective in failing to claim

that the trial court erred regarding the jury instruction on felony murder. Bogle

acknowledges that his trial counsel did not object to the instruction. The

indictment charged Bogle with first-degree murder under theories of both

premeditation and felony-murder, with the underlying felony of sexual battery.

The trial court instructed the jury under both theories and the jury rendered a

general verdict. On direct appeal, we determined that the aggravator “committed




                                        - 36 -
while engaged in the commission of a sexual battery” was proven beyond a

reasonable doubt. Bogle, 655 So. 2d at 1108.

      Bogle has failed to demonstrate that it was fundamental error for the trial

court to instruct the jury on felony murder when he was properly charged under

that theory and the evidence was sufficient to support the commission of the

underlying offense. Consequently, appellate counsel cannot be deemed ineffective

for failing to raise a nonmeritorious claim. Kokal v. Dugger, 718 So. 2d 138, 142

(Fla. 1998). Accordingly, we deny relief on this claim.

                B. Requested Jury Instruction on Hair Analysis

      Bogle claims that his appellate counsel was ineffective for failing to argue

that the trial court erred in refusing to allow the following requested jury

instruction on hair analysis:

             [1.] Hair evidence must meet the following requirement: the
      circumstances must be such that the hair could have been transferred
      between the victim and defendant only at the time that the crime was
      committed.
             [2.] Hair analysis and comparison are not absolutely certain and
      reliable. Although hair comparison analysis may be persuasive, it
      does not result in identifications of absolute certainty.

      Had the claim been raised, appellate counsel would have been required to

prove the following three elements:

      (1) the special instruction was supported by the evidence; (2) the
      standard instruction did not adequately cover the theory of defense;
      and (3) the special instruction was a correct statement of the law and
      not misleading or confusing.

                                        - 37 -
Stephens v. State, 787 So. 2d 747, 756 (Fla. 2001) (footnotes omitted). This

criteria has not been demonstrated. We conclude that Bogle has not shown that the

trial court abused its discretion in denying the requested jury instruction. See

Hudson v. State, 992 So. 2d 96, 112 (Fla. 2008) (providing that a trial court’s

denial of special jury instruction is reviewed for abuse of discretion). Thus,

appellate counsel cannot be deemed ineffective for failing to raise a meritless issue.

Kokal, 718 So. 2d at 142.

                       C. Inapplicable Aggravating Factors

      Bogle contends that his appellate counsel was ineffective for failing to claim

that the trial court erred in instructing the jury on, and in improperly considering,

inapplicable aggravating factors. However, on direct appeal, Bogle raised a claim

that the aggravators were inapplicable, which we decided adversely to him. Bogle,

655 So. 2d at 1108-09. As a result, this claim is procedurally barred. See Bryan v.

Dugger, 641 So. 2d 61, 65 (Fla. 1994).

                             D. Autopsy Photographs

      Bogle claims that his appellate counsel was ineffective for failing to argue

that the trial court erred in admitting autopsy photographs. As to the admissibility

of photographs:

      This Court has long followed the rule that photographs are admissible
      if they are relevant and not so shocking in nature as to defeat the value
      of their relevance. Where photographs are relevant, “then the trial

                                         - 38 -
      judge in the first [instance] and this Court on appeal must determine
      whether the gruesomeness of the portrayal is so inflammatory as to
      create an undue prejudice in the minds of the jury and [distract] them
      from a fair and unimpassioned consideration of the evidence.” We
      have consistently upheld the admission of allegedly gruesome
      photographs where they were independently relevant or corroborative
      of other evidence.

Looney v. State, 803 So. 2d 656, 669-70 (Fla. 2001) (quoting Czubak v. State, 570

So. 2d 925, 928 (Fla. 1990)). Autopsy photographs may be admissible when used

to “illustrate the medical examiner’s testimony and the [victim’s] injuries.” Pope

v. State, 679 So. 2d 710, 713-14 (Fla. 1996). The admission of the photographs is

within the trial court’s discretion and will only be reversed when an abuse of

discretion is shown. Harris v. State, 843 So. 2d 856, 864 (Fla. 2003).

      Trial counsel raised objections as to the admission of autopsy photographs.

The trial court admitted four photographs while excluding the others for being too

gruesome and duplicitous. The medical examiner opined that Torres died from

blunt impact head trauma with skull fractures and lacerations of the brain after

being struck seven times by a stone. The medical examiner utilized the admitted

photographs for his testimony in explaining Torres’s injuries. We conclude that

Bogle has failed to establish that the trial court abused its discretion in admitting

the autopsy photographs. Thus, appellate counsel cannot be deemed ineffective for

failing to raise a meritless issue. Kokal, 718 So. 2d at 142.




                                         - 39 -
              E. Trial Court’s Prevention of Mitigation Evidence

      Bogle additionally claims that appellate counsel was ineffective in failing to

claim that the trial court prevented the presentation of mitigation evidence in

violation of Lockett, 488 U.S. 586, and Hitchcock, 438 U.S. 393. Bogle relies on

one question that his trial counsel sought to ask of mental health expert Dr. Arturo

Gonzalez: “Were you able to substantiate [Bogle’s] drug use from his own family

members prior to September 12, 1991?” The State raised a relevance objection,

which the trial court sustained. Because counsel for Bogle did not make a proffer

to the trial court or offer to make a proffer, the issue was unpreserved. See

Blackwood v. State, 777 So. 2d 399, 410-11 (Fla. 2000); Lucas v. State, 568 So. 2d

18, 22 (Fla. 1990). Because appellate counsel is not ineffective for failing to raise

issues that were not preserved for appeal, Groover v. Singletary, 656 So. 2d 424,

425 (Fla. 1995), we deny relief on this claim.

                           F. Prosecutorial Misconduct

      In his final claim of ineffectiveness of appellate counsel, Bogle claims that

his appellate counsel was ineffective for failing to raise a claim of prosecutorial

misconduct. This claim attempts to reargue claims of prosecutorial misconduct

that were already raised in his postconviction motion. See Swafford v. Dugger,

569 So. 2d 1264, 1266 (Fla. 1990) (“Allegations of ineffective assistance of

appellate counsel may not be used to evade the rule against using habeas corpus as


                                        - 40 -
a second appeal.”). Because trial counsel did not object to the prosecutor’s

comments, appellate counsel is not ineffective for failing to raise issues which

were not preserved for appeal. Groover, 656 So. 2d at 425.

                    II. Florida’s Capital Sentencing Scheme

      Bogle asserts that Florida’s capital sentencing scheme is unconstitutional

under Ring, 536 U.S. 584, and Hurst v. Florida, 136 S. Ct. 616 (2016). Bogle’s

first-degree murder conviction and sentence of death were final in 1995, before the

Supreme Court decided Ring. We acknowledge that Hurst v. Florida, in which the

United States Supreme Court found Florida’s death penalty scheme defective to the

extent that a jury must at least “make a specific factual finding with regard to the

existence of mitigating or aggravating circumstances,” supporting a death sentence

in order to preserve the Sixth Amendment right to a jury trial, is an extension of

Ring. 136 S. Ct. at 622. Bogle is not, however, entitled to Hurst relief because

Hurst does not apply retroactively to cases that were final before Ring was

decided. See Asay v. State, 41 Fla. L. Weekly S646, S652 (Fla. Dec. 22, 2016).

Therefore, we deny relief on this claim.22




       22. We deny Bogle’s remaining claims, which should have been raised on
direct appeal or in his postconviction motion. See Wyatt v. State, 71 So. 3d at 112
n.20.


                                        - 41 -
                                  CONCLUSION

      In light of the foregoing, we affirm the trial court’s denial of relief on

Bogle’s amended motion to vacate his conviction of first-degree murder and

sentence of death, and we deny Bogle habeas relief.

      It is so ordered.

QUINCE, J., concurs.
LABARGA, C.J., and LEWIS, CANADY, and POLSTON, JJ., concur in result.
PARIENTE, J., concurs in part and dissents in part with an opinion.
LAWSON, J., did not participate.

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

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

    For the reasons set forth in my concurring in part and dissenting in part

opinion in Asay23 and elaborated on in Gaskin,24 I would grant Bogle a new

penalty phase under Hurst.25

    Accordingly, I dissent from the majority’s conclusion to affirm Bogle’s

sentence of death.




      23. Asay v. State, 41 Fla. L. Weekly S646 (Fla. Dec. 22, 2016).

      24. Gaskin v. State, No. SC15-1884 (slip op. issued Fla. Jan. 19, 2017).

      25. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016); see Hurst v. Florida,
136 S. Ct. 616 (2016).


                                        - 42 -
Two Cases:

An Appeal from the Circuit Court in and for Hillsborough County,
     Wayne S. Timmerman, Judge - Case No. 291991CF012952000AHC
And an Original Proceeding – Habeas Corpus

Linda McDermott and Martin J. McClain of McClain & McDermott, P.A., Estero,
Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Candance M.
Sabella, Chief Assistant Attorney General, Tampa, Florida,

      for Appellee/Respondent




                                     - 43 -
