          Supreme Court of Florida
                                    ____________

                                    No. SC16-793
                                    ____________

                            JAMES AREN DUCKETT,
                                  Appellant,

                                          vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                 [October 12, 2017]

PER CURIAM.

      James Aren Duckett, a prisoner under sentence of death, appeals the circuit

court’s order summarily denying his second successive motion for postconviction

relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we

affirm the postconviction court’s denial of relief.

                                I. BACKGROUND

      In 1988, Duckett was convicted of the 1987 first-degree murder and sexual

battery of eleven-year-old Teresa McAbee. Michael Malone, an FBI hair and fiber

analyst, testified at Duckett’s trial regarding the pubic hair found in the victim’s
underpants. At the time of trial, Malone was a well-qualified and recognized FBI

expert in the area of hair and fiber analysis. Duckett v. State (Duckett I), 568 So.

2d 891, 893 (Fla. 1990). We summarized Malone’s trial testimony in this case as

follows:

             A pubic hair was found in the victim’s underpants. While other
      experts could not reach a conclusion by comparing that hair with
      Duckett’s pubic hair, Michael Malone, an FBI special agent who had
      been qualified as an expert in hairs and fibers in forty-two states,
      examined the hair sample, concluding that there was a high degree of
      probability that the pubic hair found in her underpants was Duckett’s
      pubic hair. Malone also testified that the pubic hair did not match the
      hairs of the sixteen-year-old boy, the uncle, or the others who were in
      contact with the victim that evening.

Id. We affirmed Duckett’s convictions and sentence of death on direct appeal. Id.

at 891. We also upheld the denial of Duckett’s initial motion for postconviction

relief and denied his petition for a writ of habeas corpus. Duckett v. State (Duckett

II), 918 So. 2d 224, 227 (Fla. 2005).

      In his first successive postconviction motion, Duckett claimed that “the

postconviction court erred in summarily denying his claim that a 2011 independent

analysis of Malone’s 1987-88 lab work and trial testimony in this case constitutes

newly discovered evidence that Malone’s trial testimony was false and

misleading.” Duckett v. State (Duckett III), 148 So. 3d 1163, 1166 (Fla. 2014).

This Court summarized the “2011 Report” written by Steve Robertson—an

independent analyst—as follows:


                                         -2-
       After the 1997 Department of Justice report was issued, [which
was critical of the FBI laboratories and some of the forensic
examinations of the agency’s analysts, including Malone,] the FBI
hired independent experts to examine the prior work and testimony of
various agent analysts, including Malone. One independent analyst
reviewed many cases—particularly death penalty cases—in which
Malone offered expert testimony. Subsequently, in August 2011, the
same independent analyst reviewed Malone’s hair-analysis work and
testimony in Duckett’s trial and issued a report (2011 Report).
       In the 2011 Report, the independent analyst addressed the same
areas that he had examined in his prior reviews of Malone’s work in
other cases. In sum, the analyst concluded that no written protocols
prescribing the scientifically acceptable examination and testing
procedures for hair analysis existed until a decade after Malone’s
work in this case was done. Accordingly, the independent analyst
could not determine whether Malone’s work conformed to the
standards or analytic techniques applicable at the time Malone worked
on this case. Second, Malone’s laboratory reports were not
adequately documented in the laboratory bench notes, as there was no
abbreviation key, small portions of notes were illegible, and some
notes were undated. Finally, Malone’s testimony at trial was not
consistent with the laboratory reports, the bench notes, or Malone’s
area of expertise.
       In reaching the conclusion that Malone’s trial testimony was
inconsistent with his reports, notes, and area of expertise, the
independent analyst explained that at trial, Malone sometimes
overstated or exaggerated the accuracy of hair analysis. For example,
the independent analyst opined that some of Malone’s testimony
conveyed the idea that no person other than Duckett could be the
source for the pubic hair found in the victim’s underpants. Similarly,
Malone testified that there was a “high degree of probability” the
pubic hair found in the victim’s underpants was Duckett’s. Duckett
I, 568 So. 2d at 893. The independent analyst explained that hair
analysis does not support this degree of analytical certainty. That is,
microscopic hair analysis can show consistency but not absolute
identity.
       Nevertheless, the independent analyst also found that in other
instances, Malone properly stated the correct standard in his trial
testimony. For example, Malone correctly testified that the pubic hair
found in the victim’s underpants was “consistent with Duckett’s pubic

                                 -3-
      hair” but was not consistent with the pubic hairs of others who had
      been in contact with the victim that evening. Id. at 895. Malone also
      explained that hair analysis is not as precise as fingerprints for
      identifying someone. Malone expressly stated that he could not say
      that a particular hair came from a specific person to the exclusion of
      anyone else.

Id. at 1167. This Court rejected Duckett’s newly discovered evidence claim

regarding the 2011 Report. As this Court explained:

      [A]lthough some of Malone’s testimony overstated the significance of
      the hair comparison, Duckett did not establish that Malone’s
      testimony—when considered in its full context—was false.
      Moreover, as we noted in our decision affirming Duckett’s
      convictions and sentences, Malone’s testimony was “extensively
      challenged” at trial, first on cross-examination and then “during the
      testimony of a Florida Department of Law Enforcement expert on hair
      analysis.” Duckett I, 568 So. 2d at 895.
             ....
             Unlike [comparative bullet lead analysis], the field of forensic
      hair analysis has not been discredited, and the FBI has not
      discontinued the use of such analysis. Moreover, Malone’s expert
      testimony in this case was not without basis. Although some of his
      testimony overstated the degree of accuracy of his analysis, other
      statements were well within the bounds of the field. Nothing has been
      presented that undermines Malone’s testimony that the pubic hair
      from the victim’s underpants was consistent with Duckett’s and
      inconsistent with the pubic hair of others who had been in contact
      with the victim on the night she disappeared. In addition, as
      previously noted, his testimony was challenged extensively at
      trial. See Duckett I, 568 So. 2d at 895.
             Moreover, as recounted more specifically in our prior opinions,
      the hair evidence was by no means the only evidence supporting the
      conviction in this case. Significantly, the victim was last seen at the
      convenience store in Duckett’s patrol car, and the unusual tire tracks
      at the lake where the victim’s body was found matched those of
      Duckett’s patrol car. Duckett II, 918 So. 2d at 228-29. In addition,
      although Duckett had stated that the victim never sat on the hood of


                                       -4-
      his car, “[b]oth Duckett’s and Teresa’s fingerprints were discovered
      on the hood of Duckett’s patrol car.” Id. at 229. In fact, “Duckett’s
      prints were commingled with the victim’s, whose prints indicated that
      she had been sitting backwards on the hood and had scooted up the
      car.” Id.
             Given this context, we conclude that the newly discovered
      evidence does not give rise to a reasonable doubt as to Duckett’s
      culpability. Accordingly, we affirm the postconviction court’s
      summary denial of this claim.

Id. at 1168-69 (third alteration in original). We upheld the denial of Duckett’s first

successive motion for postconviction relief. Id. at 1171.

      In 2014, the Department of Justice conducted a new review (2014 DOJ

Review) of Malone’s lab work and testimony in Duckett’s trial. However, “[t]he

science underlying microscopic hair comparison [was] not the subject of this [new

DOJ] review.” The 2014 DOJ Review is based, in part, upon a review of Malone’s

lab work and trial testimony conducted by the FBI in 2014 (2014 FBI Review).

The 2014 FBI Review identifies numerous types of errors within Malone’s lab

reports and trial testimony. The 2014 DOJ Review—summarized in a letter from

Norman Wong, Special Counsel for the Department of Justice, to Brad King, the

State Attorney for the Fifth Judicial Circuit of Florida—“determined that the

microscopic hair comparison analysis testimony or laboratory report presented in

[Duckett’s] case included [some erroneous] statements that exceeded the limits of

science and were, therefore, invalid.”




                                         -5-
      Duckett filed his current second successive postconviction motion in August

2015. In April 2016, the postconviction court entered an order summarily denying

Duckett’s second successive postconviction motion. Duckett v. State, Nos. 87-CF-

1347(01) & 88-CF-0262 (Fla. 5th Cir. Ct. Apr. 1, 2016) (Postconviction Order).

This appeal follows.

                                  II. ANALYSIS

      On appeal, Duckett argues that the postconviction court erred in summarily

denying: (1) Duckett’s newly discovered evidence claim regarding Malone’s trial

testimony; (2) Duckett’s Brady v. Maryland, 373 U.S. 83 (1963), claim; (3)

Duckett’s Giglio v. United States, 405 U.S. 150 (1972), claim; and (4) Duckett’s

cumulative error claim.1 This Court reviews the postconviction court’s decision to

summarily deny Duckett’s second successive postconviction motion de novo. See

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



       1. Duckett presents a due process claim in his initial brief on appeal.
However, because this claim was not argued in the postconviction motion before
the circuit court, it was not preserved for appeal. See Bryant v. State, 901 So. 2d
810, 822 (Fla. 2005) (“This issue was not argued in the postconviction motion
before the circuit court and was, therefore, not preserved for appeal.”).


                                        -6-
      affirming the ruling if the record conclusively shows that the movant
      is entitled to no relief.

Id. (quoting Walton v. State, 3 So. 3d 1000, 1005 (Fla. 2009)). “The burden is on

the defendant to establish a legally sufficient claim.” Nixon v. State, 932 So. 2d

1009, 1018 (Fla. 2006).

                          A. Newly Discovered Evidence

      In his first claim on appeal, Duckett asserts that the postconviction court

erred in summarily denying his claim that newly discovered evidence establishes

that Malone’s trial testimony regarding the hair evidence was false and misleading.

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) (alteration in original) (quoting Heath v. State, 3 So. 3d

1017, 1023-24 (Fla. 2009)). In determining whether a new trial is warranted, the

reviewing 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.”


                                         -7-
Hildwin v. State, 141 So. 3d 1178, 1184 (Fla. 2014) (citing Swafford v. State, 125

So. 3d 760, 775-76 (Fla. 2013)).

      Even assuming that Duckett’s claim is timely, we conclude that Duckett has

failed to demonstrate that the alleged newly discovered evidence—the 2014 DOJ

Review—is of such a nature that it would probably produce an acquittal on retrial.2

First, Duckett has “not establish[ed] that Malone’s [trial] testimony—when

considered in its full context—was false.” Duckett III, 148 So. 3d at 1168

(emphasis added). Although the 2014 DOJ Review concluded that Malone’s lab

reports or trial testimony contained some erroneous and invalid statements that

exceeded the limits of science, the full context of Malone’s trial testimony

indicates that “Malone also accurately represented the reliability of hair analysis by

testifying that hair analysis is not on a par with fingerprints for purposes of

identification” and “expressly and correctly stated that hair analysis cannot support




      2. To the extent that Duckett claims that the 2014 Office of the Inspector
General Report (2014 OIG Report) constitutes newly discovered evidence, that
claim is untimely. See Jimenez v. State, 997 So. 2d 1056, 1064 (Fla. 2008) (“To
be considered timely filed as newly discovered evidence, [a] successive rule 3.851
motion [is] required to have been filed within one year of the date upon which the
claim became discoverable through due diligence.”); see also Long v. State, 183
So. 3d 342, 347 (Fla. 2016) (“Therefore, because Long failed to timely file this
motion after he was first notified as to the problems with Malone and his
inadequate forensic work, we find that the postconviction court’s summary denial
was proper.”). We note that Duckett’s case was not included in the 2014 OIG
Report.


                                         -8-
a conclusion that a hair came from a single person to the exclusion of anyone else.”

Id. Second, Malone’s “testimony was challenged extensively at trial.” Id. at 1169.

As this Court has explained, “Duckett’s counsel extensively challenged Malone’s

credibility during the cross-examination of Malone and during the testimony of a

Florida Department of Law Enforcement expert on hair analysis.” Duckett II, 918

So. 2d at 234 (quoting Duckett I, 568 So. 2d at 895). Third, “the field of forensic

hair analysis has not been discredited, and the FBI has not discontinued the use of

such analysis.” Duckett III, 148 So. 3d at 1169. And fourth, “the hair evidence

was by no means the only evidence supporting the conviction in this case.” Id. As

this Court has explained:

      Significantly, the victim was last seen at the convenience store in
      Duckett’s patrol car, and the unusual tire tracks at the lake where the
      victim’s body was found matched those of Duckett’s patrol
      car. Duckett II, 918 So. 2d at 228-29. In addition, although Duckett
      had stated that the victim never sat on the hood of his car, “[b]oth
      Duckett’s and Teresa’s fingerprints were discovered on the hood of
      Duckett’s patrol car.” Id. at 229. In fact, “Duckett’s prints were
      commingled with the victim’s, whose prints indicated that she had
      been sitting backwards on the hood and had scooted up the car.” Id.

Id. (alteration in original). Moreover, “no one saw Duckett, the only policeman on

duty in Mascotte, from the time he was last seen with the victim until the time he

met the victim’s mother at the police station.” Duckett I, 568 So. 2d at 894-95.

Given this context, we conclude that the alleged newly discovered evidence does

not give rise to a reasonable doubt as to Duckett’s culpability. The alleged newly


                                        -9-
discovered evidence would not probably produce an acquittal on retrial even when

it is considered cumulatively with all of the admissible evidence that could be

introduced at a new trial.

      We therefore affirm the postconviction court’s summary denial of Duckett’s

newly discovered evidence claim.

                                     B. Brady

      In his second claim on appeal, Duckett asserts that the postconviction court

erred in summarily denying his claim that the State violated Brady by withholding

material and exculpatory evidence regarding Malone’s trial testimony. “To

establish a Brady violation, the defendant has the burden to show that: (1) the

evidence was either exculpatory or impeaching; (2) the evidence was willfully or

inadvertently suppressed by the State; and (3) because the evidence was material,

the defendant was prejudiced.” Davis v. State, 136 So. 3d 1169, 1184 (Fla. 2014).

“In reviewing a Brady claim, ‘this Court defers to the factual findings made by the

trial court to the extent they are supported by competent, substantial evidence, but

reviews de novo the application of those facts to the law.’ ” Johnson v. State, 135

So. 3d 1002, 1028 (Fla. 2014) (quoting Lightbourne v. State, 841 So. 2d 431, 437

(Fla. 2003)).

      Duckett’s Brady claim fails to meet the second prong of Brady. As the

postconviction court found: “There is absolutely no evidence in any of the


                                        - 10 -
documents indicating the prosecutor knew of any problems regarding Mr.

Malone’s [hair] analysis, much less suppressed such evidence.” We conclude that

competent, substantial evidence supports the postconviction court’s suppression

finding.

      We therefore affirm the postconviction court’s summary denial of Duckett’s

Brady claim.

                                     C. Giglio

      In his third claim on appeal, Duckett asserts that the postconviction court

erred in summarily denying his claim that the State violated Giglio by knowingly

presenting false testimony at his trial through Malone. “To establish a Giglio

violation, it must be shown that: (1) the testimony given was false; (2) the

prosecutor knew the testimony was false; and (3) the statement was material.”

Guzman v. State, 868 So. 2d 498, 505 (Fla. 2003). “This Court applies a mixed

standard of review to Giglio claims, ‘defer[ring] to the factual findings made by

the trial court to the extent they are supported by competent, substantial evidence,

but review[ing] de novo the application of those facts to the law.’ ” Suggs v. State,

923 So. 2d 419, 426 (Fla. 2005) (alterations in original) (quoting Sochor v. State,

883 So. 2d 766, 785 (Fla. 2004)).

      Duckett’s Giglio claim fails to clear the hurdle of the first prong of Giglio.

As explained previously, Duckett has “not establish[ed] that Malone’s [trial]


                                        - 11 -
testimony—when considered in its full context—was false.” Duckett III, 148 So.

3d at 1168 (emphasis added).

      We therefore affirm the postconviction court’s summary denial of Duckett’s

Giglio claim.

                               D. Cumulative Error

      In his fourth claim on appeal, Duckett asserts that errors demonstrated in the

proceedings below cumulatively entitle him to a new guilt phase. “Where several

errors are identified, the Court ‘considers the cumulative effect of evidentiary

errors and ineffective assistance [of counsel] claims together.’ ” Diaz v. State, 132

So. 3d 93, 118 (Fla. 2013) (alteration in original) (quoting Hurst v. State, 18 So. 3d

975, 1015 (Fla. 2009)). However, “[i]t is well established that ‘where individual

claims of error alleged are either procedurally barred or without merit, the claim of

cumulative error must fail.’ ” Mendoza v. State, 87 So. 3d 644, 657 (Fla. 2011)

(quoting Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003)). “Moreover, claims of error

that have previously been presented to this Court on direct appeal or in

postconviction and subsequently rejected cannot form the basis for a valid claim of

cumulative error.” Wright v. State, 213 So. 3d 881, 911 (Fla. 2017). Because

Duckett has failed to establish that any guilt phase errors occurred that either

individually or cumulatively would entitle him to a new guilt phase, we deny relief

on this claim.


                                        - 12 -
                                  III. CONCLUSION

          Based on the foregoing, we affirm the postconviction court’s denial of all

relief.

          It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.

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

An Appeal from the Circuit Court in and for Lake County,
     William Gray Law, Jr., Judge - Case No. 351987CF001347AXXXXX

Mary Elizabeth Wells of Law Office of M.E. Wells, Atlanta, Georgia; Neal A.
Dupree, Capital Collateral Regional Counsel, and Michael C. Meyer, Capital
Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida,

          for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Vivian Singleton,
Assistant Attorney General, Daytona Beach, Florida,

          for Appellee




                                          - 13 -
