          Supreme Court of Florida
                                   ____________

                                   No. SC17-2151
                                   ____________

                                BRETT A. BOGLE,
                                   Appellant,

                                            vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                 December 19, 2019

PER CURIAM.

      Brett A. Bogle, a prisoner under sentence of death, appeals the circuit court’s

order summarily denying his successive motion for postconviction relief.1 For the

reasons that follow, we affirm the order.

                                       FACTS

      In 1992, Bogle was convicted of the first-degree murder of Margaret Torres,

burglary with assault or battery, and retaliation against a witness. Bogle v. State

(Bogle I), 655 So. 2d 1103, 1104-05 (Fla. 1995). At an initial penalty phase, the

jury recommended death by a seven-to-five vote, but the trial court granted a new


      1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
penalty phase due to an erroneous admission of evidence. Id. at 1105. The trial

judge sentenced Bogle to death after the second penalty phase resulted in a jury

recommendation of death by a ten-to-two vote. Id. This Court affirmed Bogle’s

conviction and sentence on direct appeal, id. at 1110, and Bogle’s death sentence

became final in 1995.2 This Court also affirmed the denial of Bogle’s initial

postconviction motion and denied habeas relief. Bogle v. State (Bogle II), 213 So.

3d 833, 855 (Fla. 2017).

      There were no eyewitnesses to Bogle’s murder of Torres. Torres was the

sister of a woman with whom Bogle had lived, and Bogle and Torres did not get

along. Bogle I, 655 So. 2d at 1105. On the night of the murder, Bogle and Torres

had been at a bar; Bogle left shortly after Torres. The next day, Torres’s “nude and

badly beaten body” was found outside the bar. Id. Her head had been “crushed

with a piece of cement.” Id. “Additionally, she had semen in her vagina and

trauma to her anus consistent with sexual activity that was likely inflicted before

death.” Id. One of the state’s witnesses at trial was Agent Michael Malone, an

FBI lab examiner. Malone testified that a pubic hair found on Bogle’s pants after

the murder “microscopically matched the pubic hairs of Margaret Torres.” Bogle

II, 213 So. 3d at 847. On cross-examination, Malone acknowledged that “hair

comparisons do not constitute a basis for absolute personal identification.” Id.

      2. Bogle v. Florida, 516 U.S. 978 (1995) (cert. denied).


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Unrelated to Malone’s testimony, expert witnesses testified at trial and at the

evidentiary hearing on Bogle’s first postconviction motion that Bogle’s DNA was

consistent with DNA found in Torres’s body and underwear. Id. at 838, 846, 851.

      In 2014, Bogle filed a successive postconviction motion claiming he had

newly discovered evidence of Brady3 and Giglio4 violations related to Agent

Malone’s hair analysis testimony. Specifically, Bogle cited the results of a 2013

federal government review concluding that Malone’s testimony in Bogle’s case

overstated the reliability of microscopic hair comparisons. The successive

postconviction motion also alleged that Bogle was entitled to relief under Hurst v.

State, 202 So. 3d 40 (Fla. 2016), and under changes to Florida’s capital sentencing

statute enacted after Hurst. In September 2017, the circuit court entered an order

summarily denying Bogle’s second amended successive postconviction motion,

finding that the newly discovered evidence claim was procedurally barred and that

Bogle’s Hurst-related claims lacked merit. This appeal followed.

                                    ANALYSIS

      Summary denial of a successive postconviction motion is appropriate “[i]f

the motion, files, and records in the case conclusively show that the movant is

entitled to no relief.” Fla. R. Crim. P. 3.851(f)(5)(B). Applying a de novo



      3. Brady v. Maryland, 373 U.S. 83 (1963).
      4. Giglio v. United States, 405 U.S. 150 (1972).

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standard of review, we find that test satisfied here, and we therefore affirm the

circuit court’s summary denial of Bogle’s motion.

             Brady, Giglio, and Newly Discovered Evidence Claims

      Bogle’s successive postconviction motion alleges that the state withheld

exculpatory evidence about the asserted unreliability of Malone’s testimony (in

violation of Brady) and knowingly presented Malone’s “false” testimony (in

violation of Giglio). The trial court summarily denied these claims, finding them

procedurally barred. We agree.

      Bogle’s claims rely on the results of a Department of Justice and FBI review

of cases in which Agent Malone had testified about microscopic hair analysis.

Released to the state in August 2013 and later provided to Bogle, the review found

that Malone’s testimony in Bogle’s case “exceeded the limits of science” in three

ways: (1) by stating or implying that an evidentiary hair could be associated with a

specific individual to the exclusion of all others; (2) by assigning a statistical

weight or probability to the likelihood that an evidentiary hair originated from a

particular source; and (3) by citing prior cases to assign a predictive value to

bolster the conclusion that an evidentiary hair belonged to a particular individual.

      The 2013 DOJ/FBI review is of no help to Bogle here, however, because he

cannot use a successive 3.851 motion to litigate issues that he could have raised in

his initial postconviction motion. See Fla. R. Crim. P. 3.851(e)(2); Schwab v.


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State, 969 So. 2d 318, 325 (Fla. 2007).5 Bogle was well aware of potential

deficiencies in Malone’s testimony long before the 2013 review (which, in any

event, on its face says nothing about what the state did or did not know about the

reliability of Malone’s testimony). In our opinion in Bogle II, for example, we

noted that “Bogle . . . claims that his trial counsel was deficient in failing to

demonstrate that the hair comparison in this case was unreliable and flawed.” 213

So. 3d at 847. Relatedly, the record in Bogle’s initial postconviction motion shows

that Bogle’s counsel had received notice of the results of an earlier DOJ review of

Malone’s work in Bogle’s case. That 1999 review found that the lab reports of

Malone’s work were not sufficiently documented to determine whether the work

had been done in a scientifically reliable manner. With diligence, Bogle could

have litigated in his initial postconviction motion the same Brady and Giglio

claims that he raises now.

      To the extent that Bogle asserts a newly discovered evidence claim that is

independent of his Brady and Giglio claims, that claim fails as well. To prevail on

a newly discovered evidence claim, the defendant must satisfy a two-prong test:

first, the evidence was not at the time of trial known by the trial court, by the party,

or by counsel, and the defendant or his counsel could not have known of it by the


      5. Given this conclusion, we need not address whether Bogle’s Brady and
Giglio claims are also untimely. See Fla. R. Crim. P. 3.851(d)(2) (setting out
limited exceptions to one-year time limit).

                                          -5-
use of diligence; and second, the newly discovered evidence must be of such a

nature that it would probably produce an acquittal on retrial. Duckett v. State, 231

So. 3d 393, 399 (Fla. 2017); Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). A

court applying the second prong of this test must evaluate the importance of the

newly discovered evidence in the broader context of any admissible evidence that

could be introduced at a new trial. Duckett, 231 So. 3d at 399.

         Even if we assume that the 2013 review constitutes “evidence” that did not

previously exist (and which Bogle therefore could not have known about or

uncovered), Bogle cannot demonstrate that the information in the report would

probably produce an acquittal on retrial. The report does little more than amplify

what Malone already acknowledged on cross-examination at Bogle’s trial: that

“hair comparisons do not constitute a basis for absolute personal identification.”

Bogle II, 213 So. 3d at 847. And even more importantly, the DNA evidence

showing that Bogle’s semen was in the murder victim’s body and underwear

overwhelms the significance of Malone’s testimony that a pubic hair of the victim

was on Bogle’s pants. See Duckett, 231 So. 3d at 399-400 (denying a similar

newly discovered evidence claim arising out of a 2013 federal government review

of Malone’s testimony); Long v. State, 183 So. 3d 342, 347 (Fla. 2016) (same).

The record in this case conclusively refutes Bogle’s newly discovered evidence

claim.


                                         -6-
                                    Hurst Claims

      Bogle also challenges the summary denial of his claim that the Sixth and

Eighth Amendments, together with post-Hurst changes to Florida’s capital

sentencing statute, demand full retroactive application of this Court’s decision in

Hurst v. State. Under this Court’s precedents, Hurst relief is not available to

defendants, like Bogle, whose death sentences were final prior to the Supreme

Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002). This Court has

repeatedly denied claims similar to Bogle’s, and we decline to revisit our

precedents here. See, e.g., Reese v. State, 261 So. 3d 1246, 1246-47 (Fla. 2019).

                                  CONCLUSION

      For the foregoing reasons, we affirm the postconviction court’s summary

denial of Bogle’s second amended successive postconviction motion.

      It is so ordered.

POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ., concur.
CANADY, C.J., concurs in result with an opinion.

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

CANADY, C.J., concurring in result.

      I agree that the order summarily denying postconviction relief should be

affirmed. I concur in the denial of Bogle’s Brady, Giglio, and newly discovered

evidence claims. I also agree that Bogle is not entitled to relief on his Hurst


                                         -7-
claims. But I would deny the Hurst claims on two grounds. First, I would

conclude that no Hurst error occurred in this case. I adhere to the view that Hurst

v. Florida, 136 S. Ct. 616 (2016), only requires that the jury find an aggravating

circumstance that renders a defendant eligible for a death sentence. See Hurst v.

State, 202 So. 3d 40, 77-82 (Fla. 2016) (Canady, J., dissenting), cert. denied, 137

S. Ct. 2161 (2017). Here, that requirement was satisfied because the jury’s verdict

that Bogle had committed “burglary with force . . . on the victim” and her sister

two weeks before the murder established the existence of the prior violent felony

aggravator. Bogle v. State, 655 So. 2d 1103, 1105 (Fla. 1995). Second, even if

Hurst error were present in this case, I would still deny relief. In my view, Hurst

should not be given retroactive application. See Mosley v. State, 209 So. 3d 1248,

1285-91 (Fla. 2016) (Canady, J., concurring in part and dissenting in part).

An Appeal from the Circuit Court in and for Hillsborough County,
     Michelle Sisco, Judge - Case No. 291991CF012952000AHC

Linda McDermott of McClain & McDermott, P.A., Estero, Florida,

      for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Timothy A. Freeland,
Senior Assistant Attorney General, Tampa, Florida,

      for Appellee




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