          Supreme Court of Florida
                                  ____________

                                   No. SC18-48
                                  ____________

                      WILLIAM GREGORY THOMAS,
                               Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                               December 28, 2018

PER CURIAM.

      William Gregory Thomas appeals the postconviction court’s order

summarily denying his second successive postconviction motion requesting relief

under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405

U.S. 150 (1972), filed under Florida Rule of Criminal Procedure 3.851. 1

      Thomas’ claims involve two individuals who were incarcerated with

Thomas, Ahmad Dixon, a testifying witness, and Adrian Cason, a potential

witness, who Thomas alleges received favorable treatment in their own




      1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
prosecutions in exchange for testifying or gathering evidence against him. Thomas

asserts that the State violated Brady by not disclosing (1) evidence that the State

had dropped charges against Dixon; and (2) evidence that the State no longer

pursued the death penalty against Cason after he offered to assist the State in

Thomas’ prosecution. Thomas also asserts that the State violated Giglio by

presenting or failing to correct false or misleading testimony regarding (1) whether

Dixon faced any State court charges between his 1993 arrest and his 1994

testimony; and (2) whether Cason was promised a benefit specifically in exchange

for assisting the State in Thomas’ prosecution.

      First, Thomas’ claims are procedurally barred, as this evidence is not newly

discovered. The record establishes that the information in his claims could have

been discovered at an earlier date through the use of due diligence. See Fla. R.

Crim. P. 3.851(d)(2)(A).

      Moreover, even if Thomas’ claims were not procedurally barred, his claims

are without merit. Thomas failed to establish Brady’s materiality prong. See

Mosley v. State, 209 So. 3d 1248, 1258-59 (Fla. 2016) (“To meet the materiality

prong, 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.’ ” (quoting Way v. State, 760 So. 2d 903, 913 (Fla. 2000))). Nor

did Thomas prove a Giglio violation. Even if we accept Thomas’ allegations, any


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false testimony of Dixon or Cason was not material. See Guzman v. State, 868 So.

2d 498, 506 (Fla. 2003) (“Under Giglio, where the prosecutor knowingly uses

perjured testimony, or fails to correct what the prosecutor later learns is false

testimony, the false evidence is material ‘if there is any reasonable likelihood that

the false testimony could have affected the judgment of the jury.’ . . . The State, as

the beneficiary of the Giglio violation, bears the burden to prove that the

presentation of false testimony at trial was harmless beyond a reasonable doubt.”

(quoting United States v. Agurs, 427 U.S. 97, 103 (1976))).

      Accordingly, we affirm the postconviction court’s summary denial of

Thomas’ successive motion for postconviction relief.

      It is so ordered.

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

NO MOTION FOR REHEARING WILL BE ALLOWED.

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

      I agree that Thomas is not entitled to relief on his Brady 2/Giglio 3 claims

regarding Dixon, but I would deny relief on the basis of prejudice rather than a

procedural bar. The per curiam opinion conflates the standards for Brady/Giglio



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

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

                                         -3-
claims with the standards for claims of “newly discovered evidence.” While the

per curiam opinion reasons that the claims are procedurally barred because the

evidence is “not newly discovered” and could have been discovered through “due

diligence,” neither Brady nor Giglio contains a due diligence prong. Per curiam

op. at 2. Rather, the focus in a Brady analysis is whether the State failed to

disclose information favorable to the defendant; with Giglio, the critical inquiry is

whether the State presented false testimony.

      Further, I dissent from the per curiam opinion affirming the postconviction

court’s summary denial of Thomas’s Brady/Giglio claims regarding Cason’s

deposition testimony. I would, instead, grant an evidentiary hearing to further

develop this claim.

                                 BACKGROUND

      On direct appeal, this Court explained the facts underlying Thomas’s crimes,

stating:

             Thomas planned the kidnapping and murder of his wife,
      Rachel, in order to avoid paying his part of a settlement agreement in
      their pending divorce. Thomas and a friend, Douglas Schraud, went
      to Rachel’s house, September 12, 1991, the day before a substantial
      payment was due, and Thomas beat, bound, and gagged Rachel.
      When Rachel tried to escape by hopping outside, Thomas knocked her
      to the ground and dragged her back inside by her hair. He then put
      her in the trunk of her car and drove off. She was never seen again.

Thomas v. State, 693 So. 2d 951, 951 (Fla. 1997). In addition to Schraud’s

testimony at trial and other incriminating evidence, Thomas made “many

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inculpatory statements and admissions.” Id. at 952; see id. at 952 n.3. The Brady

and Giglio claims arise from allegations regarding two of the individuals

incarcerated with Thomas: Ahmed Dixon, who testified at Thomas’s trial, and

Adrian Cason, a potential witness who was deposed but did not testify at trial.

                                    ANALYSIS

      In this case, because the postconviction court did not conduct an evidentiary

hearing, this Court must accept Thomas’s allegations to the extent they are not

refuted by the record. See Allen v. State, 854 So. 2d 1255, 1259 (Fla. 2003).

      As to Dixon, Thomas argues that the State failed to disclose evidence that

the State had dropped charges against Dixon, and he further gave false testimony at

his deposition and the trial when he stated that he did not have any dropped State

charges. Thomas argues that this information would have been vital to impeaching

Dixon at trial. However, this information would have been cumulative to the

information presented at trial because the jury heard that Dixon had three prior

felony convictions, was currently incarcerated at the Duval County Jail on federal

charges for possession with intent to distribute cocaine, and was awaiting

sentencing after pleading guilty to the federal charges without a plea bargain.

Therefore, the jury was made aware of Dixon’s possible “motives for testifying,

including the prospect of receiving a plea deal.” Further, the additional

impeachment evidence Thomas claims does not undermine the evidence presented


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to the jury of Thomas’s guilt, which is explained above. Thus, Dixon has failed to

prove prejudice to sustain a Brady claim or materiality to sustain a Giglio claim.

Accordingly, I concur in result as to Thomas’s claim regarding Dixon.

      As to Cason, Thomas argues that the State failed to disclose that Cason’s

plea deal was based solely on his assistance in gathering evidence against Thomas

and did not require Cason to testify at Thomas’s trial, as evidenced by testimony in

Cason’s 2000 postconviction hearing. Further, Thomas claims that, at his

deposition, Cason presented false or misleading testimony when he failed to

disclose that his plea deal with the State did not include his testifying during

Thomas’s trial. Thomas argues that the defense could have used this information

to show Cason was acting as a State agent when he encouraged Thomas to speak

freely with him in front of Dixon.

      The record is insufficient to determine whether Thomas is entitled to relief

on this claim. First, as to the Brady claim, it was not defense counsel’s

responsibility to assume Cason’s deposition testimony was false and continue

digging to determine whether the plea deal encompassed more or less than what

Cason claimed. As I explained in Pittman v. State, 90 So. 3d 794 (Fla. 2011):

      [T]he majority could be read to approve of a due diligence
      requirement in Brady when Brady has no such requirement. . . .
             This would of course be a serious misstatement of the purpose
      of Brady, which imposes the important requirement on prosecutors “to
      learn of any favorable evidence known to the others acting on the
      government’s behalf in the case,” Kyles v. Whitley, 514 U.S. 419, 437,

                                         -6-
      (1995), and to produce that evidence if it is material. This Court has
      explicitly stated: “[W]e point out that there is no ‘due diligence’
      requirement in the Brady test and that the prosecutor is charged with
      possession of what the State possesses . . . .” Archer v. State, 934 So.
      2d 1187, 1203 (Fla. 2006). As more fully explained by this Court
      in Archer:

             [W]e have held that a defendant is not required to compel
             production of favorable evidence which is material, in
             that the evidence tends to negate the guilt of the accused
             or tends to negate the punishment. To comply
             with Brady, the individual prosecutor has a duty to learn
             of any favorable evidence known to others acting on the
             government's behalf in the case and to disclose that
             evidence if it is material. The postconviction court is in
             error to the extent that the court’s order is read to mean
             that [the defendant] had to demonstrate “due diligence”
             in obtaining favorable evidence possessed by the State or
             that the prosecutor’s obligation was only to give to [the
             defendant] favorable evidence which was in the
             prosecutor’s personal possession.

      Id. at 1203 (emphasis added) (citations omitted). Of course, if the
      defendant knew of the evidence or had possession of it, then there
      could not be a Brady claim because the evidence could not be found
      to have been withheld from the defendant.

Id. at 820-21 (Pariente, J., concurring in result).

      Further, Thomas’s Giglio claim rises and falls on the truthfulness of Cason’s

deposition testimony regarding his plea deal. Thus, I would grant an evidentiary

hearing to further develop the claim.

                                   CONCLUSION

      For these reasons, I concur in result as to the per curiam opinion’s

conclusion that Thomas is not entitled to relief on his Brady/Giglio claims

                                          -7-
regarding Dixon but dissent as to Thomas’s claim regarding Cason, on which I

would grant an evidentiary hearing.

An Appeal from the Circuit Court in and for Duval County,
     Marianne L. Aho, Judge - Case No. 161993CF005394AXXXMA

Bjorn E. Brunvand and J. Jervis Wise of Brunvand Wise, P.A., Clearwater,
Florida; and Martin J. McClain of McClain & McDermott, P.A., Wilton Manors,
Florida,

      for Appellant

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

      for Appellee




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