Supreme Court of Florida ____________
No. SC20-1054 ____________
BRETT A. BOGLE, Appellant,
vs.
STATE OF FLORIDA, Appellee.
May 27, 2021
PER CURIAM.
Brett A. Bogle, a prisoner under sentence of death, appeals the
circuit court’s order summarily denying his third 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.
Background
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). The trial judge sentenced Bogle to death after a
second penalty phase resulted in a jury recommendation of death
by a vote of ten to two. Id. at 1105. This Court affirmed Bogle’s
convictions and sentences on direct appeal, id. at 1110, and Bogle’s
death sentence became final in 1995. 1
In his initial postconviction motion, Bogle challenged the hair
analysis testimony of FBI agent Michael Malone. Bogle v. State
(Bogle II), 213 So. 3d 833, 844 (Fla. 2017). This Court affirmed the
denial of Bogle’s initial postconviction motion and denied habeas
relief. Id. at 855. In 2014, after he received a 2013 letter from the
Department of Justice and the FBI regarding Malone’s testimony,
Bogle again challenged Malone’s testimony in a second successive
postconviction motion. Bogle v. State (Bogle III), 288 So. 3d 1065,
1067 (Fla. 2019). In this second successive postconviction motion,
Bogle cited the 2013 letter as newly discovered evidence that
Malone’s trial testimony overstated the reliability of microscopic
hair comparison. Id. In September 2017, the circuit court entered
1. Bogle v. Florida, 516 U.S. 978 (1995) (cert. denied).
-2- an order summarily denying Bogle’s second amended successive
postconviction motion, finding that the newly discovered evidence
claim regarding the 2013 letter was procedurally barred. Id. at
1068. This Court affirmed the circuit court’s summary denial of
relief. Id. at 1069.
On October 10, 2017, Bogle filed a third successive
postconviction motion alleging that a 2017 letter from the United
States Senate Judiciary Committee requesting information from the
FBI regarding Malone’s testimony constituted newly discovered
evidence of both Brady 2 and Giglio 3 violations. The 2017 letter
referenced two internal FBI memoranda from 1991 and a third
memorandum from 1997, but overall the 2017 letter contained the
same claims about Malone’s testimony that were the subject of
Bogle’s previous postconviction motion regarding the 2013 letter.
Bogle argued that the information in the 2017 letter undermines
confidence in the outcome of his trial and sentencing, and warrants
an evidentiary hearing and a new trial or sentencing proceeding.
2. Brady v. Maryland, 373 U.S. 83 (1963).
3. Giglio v. United States, 405 U.S. 150 (1972).
-3- The circuit court summarily denied relief on June 17, 2020,
concluding that Bogle’s claim was procedurally barred. This appeal
followed.
Analysis
Bogle challenges the summary denial of his newly discovered
evidence claim based on the 2017 letter. This Court reviews the
postconviction court’s decision to summarily deny Bogle’s third
successive postconviction motion de novo. Duckett v. State, 231 So.
3d 393, 398 (Fla. 2017). 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).
As we have previously held, Bogle cannot use a successive
3.851 motion to litigate issues that he could have raised in his
initial postconviction motion. Bogle III, 288 So. 3d at 1068 (citing
Fla. R. Crim. P. 3.851(e)(2); Schwab v. State, 969 So. 2d 318, 325
(Fla. 2007)). The issues which Bogle has raised in the present case
are not distinguishable from those raised in his previous
postconviction motions.
-4- In his first rule 3.851 postconviction motion, Bogle alleged a
Brady violation because the State did not furnish Malone’s bench
notes to the defense team. Bogle II, 213 So. 3d at 844. The bench
notes revealed a contradiction with Malone’s hair-matching
testimony, which Malone explained as a transcription error. Id.
This Court concluded that no Brady violation had been
demonstrated. Id. In his second rule 3.851 postconviction motion,
Bogle alleged 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). Bogle III, 288 So. 3d at 1068.
In the present case, Bogle alleges that the 2017 letter
establishes that the State was aware of the limits of hair
comparison but still presented Malone’s testimony that overstated
the results of hair analysis. The postconviction court concluded
that the information surrounding the reliability of Malone’s
testimony has already been “litigated, denied, and affirmed on
appeal.” We agree with the postconviction court’s analysis. Bogle’s
present complaint regarding the 2017 letter contains nothing that
was not pursued in Bogle’s previous postconviction motions or at
-5- the time of his 3.851 evidentiary hearing. The existence of a new
document that refers to the same information previously
determined not to justify relief does not qualify as newly discovered
evidence. See Duckett v. State, 231 So. 3d 393 (Fla. 2017) (2014
review of Malone’s hair analysis did not constitute newly discovered
evidence).
Because Bogle fails to allege new or different grounds for relief,
his claim is procedurally barred as successive under Florida Rule of
Criminal Procedure 3.851(e)(2), which states:
A motion filed under this rule is successive if a state court has previously ruled on a postconviction motion challenging the same judgment and sentence. A claim raised in a successive motion shall be dismissed if the trial court finds that it fails to allege new or different grounds for relief and the prior determination was on the merits; or, if new and different grounds are alleged, the trial court finds that the failure to assert those grounds in a prior motion constituted an abuse of the procedure; or, if the trial court finds there was no good cause for failing to assert those grounds in a prior motion; or, if the trial court finds the claim fails to meet the time limitation exceptions set forth in subdivision (d)(2)(A), (d)(2)(B), or (d)(2)(C).
Even assuming that Bogle’s claim is not procedurally barred,
we conclude that Bogle has failed to demonstrate that the alleged
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Supreme Court of Florida ____________
No. SC20-1054 ____________
BRETT A. BOGLE, Appellant,
vs.
STATE OF FLORIDA, Appellee.
May 27, 2021
PER CURIAM.
Brett A. Bogle, a prisoner under sentence of death, appeals the
circuit court’s order summarily denying his third 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.
Background
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). The trial judge sentenced Bogle to death after a
second penalty phase resulted in a jury recommendation of death
by a vote of ten to two. Id. at 1105. This Court affirmed Bogle’s
convictions and sentences on direct appeal, id. at 1110, and Bogle’s
death sentence became final in 1995. 1
In his initial postconviction motion, Bogle challenged the hair
analysis testimony of FBI agent Michael Malone. Bogle v. State
(Bogle II), 213 So. 3d 833, 844 (Fla. 2017). This Court affirmed the
denial of Bogle’s initial postconviction motion and denied habeas
relief. Id. at 855. In 2014, after he received a 2013 letter from the
Department of Justice and the FBI regarding Malone’s testimony,
Bogle again challenged Malone’s testimony in a second successive
postconviction motion. Bogle v. State (Bogle III), 288 So. 3d 1065,
1067 (Fla. 2019). In this second successive postconviction motion,
Bogle cited the 2013 letter as newly discovered evidence that
Malone’s trial testimony overstated the reliability of microscopic
hair comparison. Id. In September 2017, the circuit court entered
1. Bogle v. Florida, 516 U.S. 978 (1995) (cert. denied).
-2- an order summarily denying Bogle’s second amended successive
postconviction motion, finding that the newly discovered evidence
claim regarding the 2013 letter was procedurally barred. Id. at
1068. This Court affirmed the circuit court’s summary denial of
relief. Id. at 1069.
On October 10, 2017, Bogle filed a third successive
postconviction motion alleging that a 2017 letter from the United
States Senate Judiciary Committee requesting information from the
FBI regarding Malone’s testimony constituted newly discovered
evidence of both Brady 2 and Giglio 3 violations. The 2017 letter
referenced two internal FBI memoranda from 1991 and a third
memorandum from 1997, but overall the 2017 letter contained the
same claims about Malone’s testimony that were the subject of
Bogle’s previous postconviction motion regarding the 2013 letter.
Bogle argued that the information in the 2017 letter undermines
confidence in the outcome of his trial and sentencing, and warrants
an evidentiary hearing and a new trial or sentencing proceeding.
2. Brady v. Maryland, 373 U.S. 83 (1963).
3. Giglio v. United States, 405 U.S. 150 (1972).
-3- The circuit court summarily denied relief on June 17, 2020,
concluding that Bogle’s claim was procedurally barred. This appeal
followed.
Analysis
Bogle challenges the summary denial of his newly discovered
evidence claim based on the 2017 letter. This Court reviews the
postconviction court’s decision to summarily deny Bogle’s third
successive postconviction motion de novo. Duckett v. State, 231 So.
3d 393, 398 (Fla. 2017). 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).
As we have previously held, Bogle cannot use a successive
3.851 motion to litigate issues that he could have raised in his
initial postconviction motion. Bogle III, 288 So. 3d at 1068 (citing
Fla. R. Crim. P. 3.851(e)(2); Schwab v. State, 969 So. 2d 318, 325
(Fla. 2007)). The issues which Bogle has raised in the present case
are not distinguishable from those raised in his previous
postconviction motions.
-4- In his first rule 3.851 postconviction motion, Bogle alleged a
Brady violation because the State did not furnish Malone’s bench
notes to the defense team. Bogle II, 213 So. 3d at 844. The bench
notes revealed a contradiction with Malone’s hair-matching
testimony, which Malone explained as a transcription error. Id.
This Court concluded that no Brady violation had been
demonstrated. Id. In his second rule 3.851 postconviction motion,
Bogle alleged 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). Bogle III, 288 So. 3d at 1068.
In the present case, Bogle alleges that the 2017 letter
establishes that the State was aware of the limits of hair
comparison but still presented Malone’s testimony that overstated
the results of hair analysis. The postconviction court concluded
that the information surrounding the reliability of Malone’s
testimony has already been “litigated, denied, and affirmed on
appeal.” We agree with the postconviction court’s analysis. Bogle’s
present complaint regarding the 2017 letter contains nothing that
was not pursued in Bogle’s previous postconviction motions or at
-5- the time of his 3.851 evidentiary hearing. The existence of a new
document that refers to the same information previously
determined not to justify relief does not qualify as newly discovered
evidence. See Duckett v. State, 231 So. 3d 393 (Fla. 2017) (2014
review of Malone’s hair analysis did not constitute newly discovered
evidence).
Because Bogle fails to allege new or different grounds for relief,
his claim is procedurally barred as successive under Florida Rule of
Criminal Procedure 3.851(e)(2), which states:
A motion filed under this rule is successive if a state court has previously ruled on a postconviction motion challenging the same judgment and sentence. A claim raised in a successive motion shall be dismissed if the trial court finds that it fails to allege new or different grounds for relief and the prior determination was on the merits; or, if new and different grounds are alleged, the trial court finds that the failure to assert those grounds in a prior motion constituted an abuse of the procedure; or, if the trial court finds there was no good cause for failing to assert those grounds in a prior motion; or, if the trial court finds the claim fails to meet the time limitation exceptions set forth in subdivision (d)(2)(A), (d)(2)(B), or (d)(2)(C).
Even assuming that Bogle’s claim is not procedurally barred,
we conclude that Bogle has failed to demonstrate that the alleged
newly discovered evidence—the 2017 letter—is of such a nature
-6- that it would likely produce an acquittal on retrial. First, the hair
evidence was not the only evidence supporting a conviction in the
present case. This Court previously determined that “Bogle had the
motive to kill Torres and had threatened her life,” Bogle II, 213 So.
3d at 846, and that Bogle was seen after the murder and “his
forehead was scratched, his clothes were dirty, and his crotch was
wet.” Id. at 838 (quoting Bogle I, 655 So. 2d at 1105). Moreover,
“Bogle’s DNA profile was the sole match to the semen found on the
vaginal swabs [from the victim] . . . .” Id. at 851. Finally,
mitochondrial DNA testing conducted after the trial has now
confirmed that the pubic hair found on Bogle’s pants was
consistent with the victim’s profile. Id. at 843; Bogle III, 288 So. 3d
at 1069 (“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.”). In light of this evidence, the exclusion of Malone’s hair
testimony would not have resulted in an acquittal.
-7- Conclusion
For the foregoing reasons, we affirm the postconviction court’s
summary denial of Bogle’s third successive motion for
postconviction relief.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Hillsborough County, Michelle Sisco, Judge – 291991CF012952000AHC
Todd G. Scher of Law Office of Todd G. Scher, P.L., Hollywood, Florida,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and Timothy A. Freeland, Senior Assistant Attorney General, Tampa, Florida,
for Appellee
-8-