Brett A. Bogle v. State of Florida

Supreme Court of Florida
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No. SC20-1054
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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).

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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).

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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.

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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

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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

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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.

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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

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