Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D21-181 _____________________________ JAMES JONATHAN MITCHELL, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Linda L. Nobles, Judge. July 13, 2021 PER CURIAM. James Jonathan Mitchell appeals the trial court’s order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850. Mitchell asserts that the trial court erred when it denied his three postconviction claims and his motion seeking appointment of postconviction counsel. Finding no error by the trial court, we affirm. Facts The State charged Mitchell with first-degree murder by drug distribution. The State alleged that Mitchell sold the victim the heroin that caused the victim’s death. Mitchell denied selling drugs to the victim. But the evidence presented at trial showed that, on the day he died, the victim and his friends met Mitchell at a convenience store between 5:00 p.m. and 8:00 p.m. to purchase black tar heroin. The victim died at 8:06 p.m. from acute heroin intoxication. The State also presented testimony that Mitchell confessed to the crime. Mitchell’s jail cellmate, Savario Champion, testified that Mitchell admitted selling black tar heroin to the victim and told Champion that the victim died because of the potency of the heroin. On cross-examination when asked whether he had gone through Mitchell’s belongings in the jail cell, including his legal paperwork, Champion denied that he had done so. When asked about his criminal convictions, Champion admitted that he was a convicted felon serving a twelve-year federal sentence and that he hoped he would receive leniency for his testimony in Mitchell’s case. The jury returned a guilty verdict of first-degree murder. The trial court sentenced Mitchell to life in prison. This Court affirmed his conviction and sentence on direct appeal. Mitchell v. State, 294 So. 3d 853 (Fla. 1st DCA 2020) (unpublished table decision). Mitchell filed a postconviction motion. The trial court struck it as insufficiently pleaded. Mitchell then filed an amended motion raising claims of newly discovered evidence, a Giglio * violation, and ineffective assistance of counsel. Mitchell also moved for the appointment of postconviction counsel. The trial court summarily denied the postconviction motion and also denied the motion for appointment of counsel. This timely appeal follows. Analysis We review an order summarily denying a postconviction claim de novo. Flagg v. State, 179 So. 3d 394, 396 (Fla. 1st DCA 2015). When the appellant’s claim is facially invalid or the record conclusively refutes the claim, we will affirm the summary denial * Giglio v. United States, 405 U.S. 150 (1972) (holding that a new trial was required where the State knowingly presented false testimony at trial and that evidence was material). 2 of the claim. Id. Mitchell raised three postconviction claims in his motion and seeks review of the trial court’s order summarily denying all three claims. First, Mitchell asserted that he was entitled to relief from his judgment and sentence based on newly discovered evidence. To prevail on the claim, Mitchell had to show that “the evidence was unknown to the movant or his counsel and could not have been uncovered by due diligence at the time of trial” and that “the evidence is such that it would probably produce an acquittal on retrial.” Himes v. State, 310 So. 3d 542, 544 (Fla. 1st DCA 2021). The second prong of the test is satisfied if the newly discovered evidence “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Melton v. State, 193 So. 3d 881, 885 (Fla. 2016) (quoting Jones v. State, 709 So. 2d 512, 526 (Fla. 1998)). Mitchell’s claim satisfies the first prong of the test. He asserted that after trial he learned from another inmate that Champion went through Mitchell’s legal papers in their shared jail cell. Even so, his newly discovered evidence claim does not satisfy the second prong of the test because the evidence does not rise to the level of weakening the case against Mitchell to give rise to reasonable doubt of his guilt. The informant told Mitchell that Champion stated that he intended to testify falsely that Mitchell confessed his guilt. Champion hoped that his testimony would result in a more lenient sentence. Champion admitted that Mitchell never confessed to the crime nor did he share anything about his case with Champion. Because Champion testified at trial that Mitchell confessed to the crime, Mitchell argued that the State obtained his conviction through perjured testimony. Mitchell asserted that the only other evidence supporting his conviction consisted of incredible and inconsistent statements by witnesses with criminal histories who were motivated to testify in exchange for leniency. Mitchell’s characterization of the evidence presented against him is inaccurate. Multiple witnesses testified that they saw Mitchell selling black tar heroin to the victim on the night the victim died. Moreover, defense counsel thoroughly impeached 3 Champion’s credibility. Counsel brought out that Champion had a motive to lie in exchange for leniency. And even if the jury had found Champion’s testimony credible, the alleged statement by Champion to the informant that Mitchell never confessed to him does not negate or refute the other evidence of Mitchell’s guilt. See Morris v. State, 275 So. 3d 230, 234 (Fla. 1st DCA 2019) (holding that a purported recantation did not qualify as newly discovered evidence because it did not eliminate or diminish the other testimony about the defendant’s guilt). For these reasons, Champion’s statements discovered after trial do not qualify as newly discovered evidence. And the trial court did not err in denying this postconviction claim. Second, Mitchell argued that the State knowingly presented Champion’s false testimony about Mitchell’s alleged confession in violation of Giglio. To show a Giglio violation, Mitchell had to show “(1) that the testimony was false; (2) that the prosecutor knew the testimony was false; and (3) that the statement was material.” Robinson v. State, 707 So. 2d 688, 693 (Fla. 1998). Mitchell did not make the necessary showing because his claim is conclusory and insufficiently pleaded. Mitchell asserted that the prosecutor presented false testimony, but he did not offer any evidence or make any argument that the prosecutor knew or reasonably should have known that Champion’s testimony was false. As a result and because Mitchell had already exhausted his opportunity to amend his postconviction motion, the trial court properly denied this claim. See Franqui v. State, 59 So. 3d 82, 96 (Fla. 2011) (“The defendant bears the burden to establish a prima facie case based on a legally valid claim; mere conclusory allegations are insufficient.”); Daniels v. State, 66 So. 3d 328, 330 (Fla. 1st DCA 2011) (“Spera requires only one opportunity to amend.”). Third, Mitchell argued that defense counsel was ineffective for failing to address Champion’s perjured testimony. Mitchell claimed that he advised defense counsel of the alleged newly discovered evidence, but counsel did not act on the information. Even so, Mitchell never alleged what counsel should have done with this information or why counsel’s performance was deficient. For this reason, the trial court properly denied Mitchell’s claim. See Kennedy v. State, 547 So. 2d 912, 913 (Fla. 1989) (“A defendant may not simply file a motion for postconviction relief containing 4 conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing.”). Last, Mitchell argued that the trial court erred when it denied his motion for the appointment of postconviction counsel. We review the trial court’s decision for an abuse of discretion. Woodward v. State, 992 So. 2d 391, 393 (Fla. 1st DCA 2008). “A defendant has no absolute right to counsel in post-conviction proceedings.” Id. at 392. Rather, the right to counsel in a postconviction proceeding depends on whether “the assistance of counsel is essential to accomplish a fair and thorough presentation” of the defendant’s claims. State v. Weeks, 166 So. 2d 892, 897 (Fla. 1964). The assistance of counsel was not essential to present Mitchell’s postconviction claims. Two claims were insufficiently pleaded. And the remaining claim of newly discovered evidence was not complex, did not require an evidentiary hearing, and did not require substantial legal research. Thus, the trial court did not abuse its discretion when it declined to appoint postconviction counsel. See Graham v. State, 372 So. 2d 1363, 1366 (Fla. 1979) (describing the factors that a trial court must consider when ruling on a request for the appointment of postconviction counsel). We AFFIRM the trial court’s orders denying the postconviction motion and Mitchell’s motion for the appointment of counsel. ROWE, C.J., and ROBERTS and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ James Jonathan Mitchell, pro se, Appellant. 5 Ashley Moody, Attorney General, and Benjamin Hoffman, Assistant Attorney General, Tallahassee, for Appellee. 6