Barber v. Secretary, Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JUSTIN MERTIS BARBER,

Petitioner,

vs. Case No. 3:16-cv-200-J-25JRK

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

ORDER

I. INTRODUCTION

Petitioner Justin Mertis Barber initiated this case by filing

a Petition for Writ of Habeas Corpus (Doc. 1). He is represented

by counsel. Through an Amended Petition for Writ of Habeas Corpus

(Petition) (Doc. 6) pursuant to 28 U.S.C. § 2254, he challenges

his state court (St. Johns County) conviction for first degree

murder with a firearm. Respondents filed a Response to Petition

(Response) (Doc. 23).1 Petitioner’s Amended Reply to State’s

Response (Reply) (Doc. 29) followed. As relief, Petitioner asks

1 The Court hereinafter refers to the Exhibits to the Appendix

(Docs. 11-1 to 11-21) as "Ex." Where provided, the page numbers

referenced in this opinion are the Bates stamp numbers at the

bottom of each page of the exhibit. Otherwise, the page number

on the document will be referenced.

that this Court “[v]acate and set aside the plea, judgment and

sentence and if relief is not summarily granted, set the petition

for an evidentiary hearing.” Petition at 14.2

II. EVIDENTIARY HEARING

It is Petitioner’s burden to establish a need for an

evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr.,

647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner bears

the burden of establishing the need for an evidentiary hearing

with more than speculative and inconcrete claims of need), cert.

denied, 565 U.S. 1120 (2012). The Court finds no need for an

evidentiary hearing as the pertinent facts are fully developed in

this record or the record otherwise precludes habeas relief. In

this case, the state court conducted an evidentiary hearing on

Petitioner’s initial Rule 3.850 motion. As such, the Court can

"adequately assess [Petitioner's] claim[s] without further factual

development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), cert. denied, 541 U.S. 1034 (2004). Therefore, Petitioner

is not entitled to an evidentiary hearing. Schriro v. Landrigan,

550 U.S. 465, 474 (2007).

2 With respect to the Petition, Response, and Reply, the Court will

refer to the page numbers assigned by the electronic filing system.

2

III. CLAIMS OF PETITION

Petitioner raises eleven grounds in the Petition: (1) the

trial court erred in denying Barber’s motion for new trial when

the evidence in this purely circumstantial evidence case did not

meet the state’s burden of proof beyond a reasonable doubt; (2)

the holding of the Florida Court of Appeals that Barber could not

rely upon a finding of ultimate fact made by the trial judge at a

death penalty aggravator hearing, when that finding of fact was

based solely on trial evidence and not on any new evidence at the

aggravator hearing, to resolve Barber’s appellate challenge to the

legal insufficiency of the evidence at trial, violated the

collateral-estoppel component of the double jeopardy clause, which

requires the court to give binding effect to a prior determination

of an issue of ultimate fact under Ashe v. Swenson, 397 U.S. 436,

90 S.Ct. 1189 (1970); (3) the trial court violated Barber’s right

to due process in denying Barber’s request to interview jurors to

determine whether the jury had been tainted by improper publicity;

(4) Barber was denied effective assistance of counsel arising out

of a conflict of interest which actually prejudiced Barber because

it resulted in his taking the case to trial, when he could have

and would have entered into a plea agreement but for the advice of

counsel that the case would be won if taken to trial; (5) Barber

was denied effective assistance of counsel arising out of a failure

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to use photographic evidence the state disclosed in pretrial

discovery to the defense, that is, the very first crime scene

photos made by law enforcement, photos which clearly showed no

blood flow on the victim’s face, and which thereby directly

contradicted a key element of the state’s case; (6) Barber was

denied effective assistance of counsel arising out of a failure to

timely poll the jury concerning pretrial and trial publicity and

to adequately and timely challenge the publicity created by Maureen

Christine, the prosecutor who brought the indictment in this case;

(7) Barber was denied effective assistance of counsel arising out

of a failure to challenge the prosecutorial misconduct associated

with the prosecution’s threat to charge Shannon Kennedy with

perjury;3 (8) Barber was denied effective assistance of counsel

arising out of a failure to challenge the false testimony of

Detective Cole concerning David Shuey (that is, that there had

been no similar attacks on the beach, when in fact Shuey had

committed a similar assault at the beach); (9) Barber was denied

effective assistance of counsel arising out of a failure to object

to the failure to fully sequester the jurors but instead allowing

them access to their mobile phones; (10) Barber is actually

innocent and his conviction constitutes a manifest injustice and

3 In his Reply, Petitioner abandons ground seven. Reply at 98.

4

fundamental miscarriage of justice; and (11) the trial court

violated Barber’s right to due process in summarily denying

Barber’s 3.850 motion based on his discovery of juror misconduct

during voir dire of his trial. Barber was denied his right to a

fundamentally fair trial guaranteed Barber by the Sixth Amendment

to the United States Constitution applicable to Barber under the

Fourteenth Amendment to the Constitution when a juror misled

counsel during voir dire in response to a line of inquiry about

law enforcement background and prior employment, and had the juror

truthfully disclosed her prior employment by the FBI Barber would

have requested his counsel to strike her from the jury and counsel

would have struck her. Petition at 21, 31, 37, 43, 46, 49, 57-

60.

IV. SUFFICIENCY OF PETITION

Respondents assert the Petition is legally insufficient

because Barber’s claims are included in an insert and his

supporting facts are in an appendix. Response at 38. Respondents

complain that neither are sworn to or signed, and the document

exceeds twenty-five pages in length. Id. Petitioner responds

that he submitted forty-two pages of facts to satisfy the fact

pleading requirement, and that the habeas petition form for actions

pursuant to 28 U.S.C. § 2254 found on the United States District

Court for the Middle District of Florida webpage allows

5

Petitioner’s use of an attachment for grounds and facts if more

pages are necessary, and in this case, the submission of extra

pages was necessary. Reply at 17. Additionally, the habeas form

Petition is signed by Petitioner under penalty of perjury. Id.

Upon closer review of the Petition, the first sixteen pages

are based on the habeas form. Petition at 1-16. Petitioner

signed the Petition under penalty of perjury. Id. at 16. In

“Insert A,” Petitioner provides the Statement of Grounds. Id. at

17-20. The grounds and the statement of facts supporting those

grounds are in the Appendix to § 2254 Petition of Justin Mertis

Barber Statement of Supporting Facts Grounds 1-11 Inclusive. Id.

at 21-62.

Petitioner filed his initial petition on March 1, 2016 (Doc.

1). The Instructions for a Petition for Relief From a Conviction

or Sentence By a Person in State Custody (Petition Under 28 U.S.C.

§ 2254 for a Writ of Habeas Corpus), revised May 21, 2013, states:

“You may submit additional pages if necessary.” It also includes

this cautionary instruction: “You must include in this petition

all the grounds for relief from conviction or sentence that you

challenge. And you must state the facts that support each ground.

If you fail to set forth all the grounds in this petition, you may

be barred from presenting additional grounds at a later date.”

Id. Of note, the AO 241 (Rev. 10/07) Petition Under 28 U.S.C. §

6

2254 for Writ of Habeas Corpus by a Person in State Custody form

also directs a petitioner to “[a]ttach additional pages if you

have more than four grounds. State the facts supporting each

ground.” It warns that failure to set forth all the grounds may

result in a petitioner being barred from presenting additional

grounds at a later date. Id. This same language is included in

the May 21, 2013, revised habeas form.

The current Appendix of Forms4 attached to the Rules Governing

Section 2254 Cases in the United States District Courts, includes

Instructions which direct a petitioner to answer all the questions

and provides: “[y]ou may submit additional pages if necessary.”

Again, there is a cautionary instruction to include in the petition

all grounds for relief and a directive to state the facts that

support each ground. Id. In particular, the habeas form, number

twelve (emphasis added), states:

For this petition, state every ground on which

you claim that you are being held in violation

of the Constitution, laws, or treaties of the

United States. Attach additional pages if you

have more than four grounds. State the facts

supporting each ground.

CATUION: To proceed in the federal court, you

must ordinarily first exhaust (use up) your

available state court remedies on each ground

on which you request action by the federal

court. Also, if you fail to set forth all the

4 The Appendix of Forms, with Instructions, is “[a]s amended Apr.

28, 1982, eff. Aug. 1, 1982; Apr. 26, 2004, eff. Dec. 1, 2004.”

7

grounds in this petition, you may be barred

from presenting additional grounds at a later

date.

Finally, the Rules form, after the statement of relief,

contains the signature line for the attorney and a signature line

for the Petitioner, including the same language used by Petitioner

in this case: “I declare . . . under penalty of perjury that the

foregoing is true and correct[.]” See Petition at 16. Upon

review, both Petitioner and his counsel signed the form. Id. at

15-16.

After careful consideration, the Court finds no merit to

Respondents contention that the Petition is legally insufficient

because Petitioner included an insert and presented his supporting

facts in an appendix. The instructions and the form for habeas

petitions invited Petitioner to do so. Obviously, Petitioner has

presented more than four grounds in the Petition. Petitioner

summarily set forth his grounds and then presented, in an orderly

and easily discernible fashion, each ground with its supporting

facts. Although the Petition is somewhat lengthy, the

instructions clearly allow for additional pages and warn a

petitioner to set forth all the grounds in this petition or be

forewarned that a later submission of additional grounds may be

barred. The Petitioner, as instructed, signed the habeas form

under penalty of perjury, and his counsel signed the form as well.

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As such, Petitioner has satisfied pleading requirements.

Respondents’ request that this Court summarily dismiss the

Petition as “legally deficient” is denied.

V. TIMELINESS

Respondents assert the Petition is untimely. Response at 40.

Pursuant to the Antiterrorism and Effective Death Penalty Act

(AEDPA), there is a one-year period of limitation:

(d)(1) A 1-year period of limitation shall apply to

an application for a writ of habeas corpus by a person

in custody pursuant to the judgment of a State court.

The limitation period shall run from the latest of -

(A) the date on which the judgment became

final by the conclusion of direct review or

the expiration of the time for seeking such

review;

(B) the date on which the impediment to

filing an application created by State action

in violation of the Constitution or laws of

the United States is removed, if the applicant

was prevented from filing by such State

action;

(C) the date on which the constitutional

right asserted was initially recognized by the

Supreme Court, if the right has been newly

recognized by the Supreme Court and made

retroactively applicable to cases on

collateral review; or

(D) the date on which the factual

predicate of the claim or claims presented

could have been discovered through the

exercise of due diligence.

(2) The time during which a properly filed

application for State post-conviction or other

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collateral review with respect to the pertinent judgment

or claim is pending shall not be counted toward any

period of limitation under this subsection.

28 U.S.C. § 2244(d).

Respondents, in their Response, contend Petitioner has

failed to comply with the limitation period described above. In

order to properly address this contention, the Court provides a

brief procedural history. Petitioner was charged by indictment

with first degree murder (firearm). Ex. 1 at 1. The state filed

a Notice of State[']s Intent to Seek the Death Penalty. Ex. 2 at

328. The jury returned a verdict of guilty as charged in the

indictment and made a special finding that Petitioner possessed

and discharged a firearm and inflicted death or great bodily harm

to another person. Ex. 7 at 1206. After a penalty phase

proceeding, the jury, by a majority vote of 8-4, advised and

recommended to the court that it impose the death penalty. Id.

at 1214.

The trial court conducted a sentencing proceeding. Ex. 14

at 1952-63. Although the court found the state proved beyond a

reasonable doubt the murder was motivated at least in part for

pecuniary gain, assigning medium weight to the aggravator, and the

state proved beyond a reasonable doubt the murder was committed in

a cold, calculated, and premeditated manner, assigning great

weight to the aggravator, the court found the state had not proven

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beyond a reasonable doubt the capital felony was especially

heinous, atrocious and cruel, giving it no consideration. Id. at

1957-59. The court gave the statutory mitigator of no prior

criminal behavior established by stipulation great weight. Id.

at 1959. The court gave Petitioner’s education and employment

background, a statutory mitigator, medium weight. Id. The court

considered non-statutory mitigating circumstances (non-violent

past – medium weight; love of family – little weight). Id. at

1959-60. It declined to give the jury recommendation great weight

because Petitioner refused to present any mitigation and/or

argument, other than the stipulation. Id. at 1960-61. After

weighing the aggravating and mitigating factors, the court

concluded the murder was not the most aggravated and unmitigated

of crimes for which the death penalty is reserved, and sentenced

Petitioner to life imprisonment without the possibility of parole.

Id. at 1961.

Petitioner appealed. Ex. 29; Ex. 30; Ex. 31. The Fifth

District Court of Appeal (5th DCA), by written opinion on January

23, 2009, affirmed. Ex. 32. On March 6, 2009, the 5th DCA denied

rehearing. Ex. 34. The mandate issued on March 25, 2009. Ex.

35.

Petitioner filed a Petition for Writ of Certiorari. Ex. 36.

On Monday, October 5, 2009, the United States Supreme Court denied

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the petition, rendering the conviction final. Ex. 38. The

limitation period began running the following day, Tuesday,

October 6, 2009. Petitioner filed his first Rule 3.850 motion on

October 4, 2010, tolling the limitation period (two days remained

in the limitation period when Petitioner filed his post-conviction

motion). Ex. 39. When counsel appealed the denial of the initial

Rule 3.850 motion to the 5th DCA, he apparently filed a motion to

stay the appeal and requested the appellate court relinquish

jurisdiction to the circuit court to pursue a juror interview and

litigate the claim. Reply at 11-12.5 According to Petitioner,

the 5th DCA denied relinquishment. Id. The 5th DCA affirmed per

curiam on August 5, 2014. Ex. 48. The mandate issued on Tuesday,

September 23, 2014. Ex. 51. Post-conviction counsel filed the

second post-conviction motion after the 5th DCA’s decision, but

prior to the mandate being issued on September 23, 2014.6

On August 29, 2014, Petitioner filed his Amended Second Rule

3.850 motion, alleging newly discovered evidence of juror

misconduct. Ex. 52. The state responded by filing State’s Motion

5 Neither party provided the documents regarding the motion to

stay, any opposition to the motion to stay, and the 5th DCA’s

denial of the motion to stay. The Court assumes for the purposes

of this opinion the procedural history provided is accurate in

this regard.

6 Apparently, Petitioner filed a second Rule 3.850 motion on August

13, 2014. Response at 35.

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to deny Defendant’s Pending Motion Pursuant to Rule 3.850, arguing

the claim relies on inadmissible hearsay; the claim is successive

and procedurally barred; and assuming the allegations are true and

the claim is addressed on its merits, Petitioner has not made the

required showing to be entitled to an evidentiary hearing. Ex.

53.

The trial court entered a written order denying the Amended

Second Rule 3.850 motion. Ex. 54. The court assumed the alleged

facts were true and the alleged “newly discovered evidence” was

not time barred, but also found Petitioner could not make the

requisite showing. Id. at 3-4. In its findings, the court held,

“the failure to discover the concealed facts must not be due to

want of diligence of the complaining party. Once again, neither

Juror #161 nor the panel was ever asked about employment or

personal experience with law enforcement.” Id. at 4. Petitioner

appealed the denial of his Amended Second Rule 3.850 motion, Ex.

55, and the 5th DCA per curiam affirmed on February 16, 2016. Ex.

56. The mandate issued on April 6, 2016. Ex. 59. Meanwhile,

Petitioner filed his initial federal petition (Doc. 1) on March 1,

2016.

Based on the history outlined above, the Petition filed in

2016 is untimely and due to be dismissed unless Petitioner can

establish that his August 13, 2014 second Rule 3.850 motion,

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claiming newly discovered evidence, tolled the limitations period

until Petitioner filed his initial federal petition, or that he

can establish that equitable tolling of the statute of limitations

is warranted.

Petitioner’s post-conviction counsel states he memorialized

the information upon which the newly discovered evidence claim was

based by writing an email to trial counsel on December 14, 2012

(Doc. 29 at 137-39). The trial court did not deny the first Rule

3.850 until April 18, 2013. Petitioner did not bring the matter

of the alleged juror misconduct to the attention of the trial court

prior to its ruling on the initial Rule 3.850 motion, although he

had months to do so.

The record shows, in his Amended Second Rule 3.850 motion,

Petitioner claimed:

This evidence was newly discovered by

Barber after the direct appeal and after the

adjudication of the initial 3.850 motion, as

explained in the attached affidavit. It is

being raised under Rule 3.850(b)(1) as newly

discovered evidence. Counsel attempted to

raise this issue earlier during the appeal of

the denial of the initial 3.850 motion to the

Florida Fifth District Court of Appeal and

filed a motion with the Fifth District Court

of Appeal to relinquish jurisdiction to this

Court for the purpose of litigating this

claim, but that motion to relinquish

jurisdiction was denied, therefore, this claim

is being presented at the earliest time

possible under Florida law.

14

Ex. 52 at 9 (emphasis added).

Petitioner, in his Reply, submits that Florida law allows for

two years from the finality of the direct appeal (two years from

October 5, 2009, the denial of petition for writ of certiorari) to

file a Rule 3.850 motion and the motion can be amended at any time

within the two-year period so long as the state has not responded

to the motion and the court has not ruled on the motion. Reply

at 9. He further states that the state never responded to the

motion;7 therefore, Petitioner had until October 5, 2011 to file

an amendment to the original motion. Id. Finally, Petitioner

points out the circuit court expressly ordered that all amendments

be filed by October 5, 2011, the two-year deadline. Id. at 10.

Florida law provides for an exception to the general rule a

defendant must file his motion for post-conviction relief in a

non-capital case within two years of the date on which the judgment

and sentence became final. Rule 3.850(b), Fla. R. Crim. P. An

exception to the two-year time bar is the discovery of new

evidence, the facts on which the claim is predicated were unknown

to the movant or the movant’s attorney and could not have been

ascertained by the exercise of due diligence. Rule 3.850(b)(1)

7 Contrary to Petitioner’s contention, the record demonstrates the

state did respond to the Rule 3.850 motion by filing the State’s

October 29, 2012 Motion to Deny Defendant’s Pending Motion Pursuant

to Rule 3.850. Ex. 41 at 490-98.

15

(emphasis added). Under this exception, the claim must be made

within two years of the time the new facts were or could have been

discovered with the exercise of due diligence. Id. See Smith v.

State, 990 So.2d 1199, 1205 (Fla. 5th DCA 2008) (amending the

initial Rule 3.850 motion prior to resolution of the motion is the

better practice); Jones v. State, 591 So.2d 911, 913 (Fla. 1991)

(per curiam) (“allegations of newly discovered evidence fall

within the exception to the two-year requirement of rule 3.850”);

Blake v. State, 152 So.3d 66, 68 (Fla. 2nd DCA 2014) (per curiam)

(“A claim of newly discovered evidence can be an exception to the

two-year time limitation in Rule 3.850(b).”).

It matters not that the circuit court did not specifically

address timeliness in rejecting Petitioner’s Amended Second Rule

3.850 motion; “[a] state court does not have to explicitly make a

timeliness ruling” before the federal court can find a post-

conviction motion untimely and not properly filed for tolling

purposes under AEDPA. Stephens v. Sec’y, Dep’t of Corr., No.

5:18-cv-9-02PRL, 2019 WL 4918711, at *3 (M.D. Fla. Oct. 4, 2019).

See Jones v. Sec’y, Fla. Dep’t of Corr., 906 F.3d 1339, 1346 (11th

Cir. 2018) (recognizing the state court does not have to make a

timeliness ruling before a federal court can find the post-

conviction motion untimely and not properly filed pursuant to 28

U.S.C. § 2244(d)(2)), cert. denied, 139 S. Ct. 1384 (2019).

16

Accordingly, this Court must undertake an examination of

timeliness and decide what the state courts would have found with

respect to timeliness. Walton v. Sec’y, Fla. Dep’t of Corr., 661

F.3d 1308, 1312 (11th Cir. 2011) (citing Evans v. Chavis, 546 U.S.

189, 198 (2006)), cert. denied, 568 U.S. 853 (2012). It is

important to recognize: “[w]e are applying a federal statute and

are guided by congressional intent. We will not allow the tolling

of AEDPA’s limitations period when it is clear that the petitioner

failed to seek timely review in state court.” Gorby v. McNeil,

530 F.3d 1363, 1368 (11th Cir. 2008) (per curiam) (citation

omitted), cert. denied, 556 U.S. 1109 (2009).

As noted by Respondents, although the trial court did not

expressly address timeliness it did find the facts could have been

ascertained at trial, and the failure to discover the facts was

due to want of diligence of the complaining party. Response at

42-43. The trial court concluded that, during voir dire, the

panel was never asked about employment or personal experience with

law enforcement.8 Ex. 54 at 4. As a result, Juror #161 did not

8 The trial record demonstrates Patricia Steder, Juror #161, served

on the jury. Ex. 15 at 18. During voir dire, the court asked

whether the panel had any close friends or immediate family members

with experience in law enforcement. Id. at 67. The record

further demonstrates that when asked what she did, Ms. Steder

responded she owns a bed and breakfast. Id. at 73. Upon inquiry

by defense counsel, she said she had managed the bed and breakfast

for eight years. Ex. 16 at 127. When asked what she did before

17

conceal her prior employment with the FBI as she was never asked

about her employment or personal experience with law enforcement.

Id. at 3. Instead, the panel was asked if close friends or

immediate family members had experience in law enforcement. Id.

Thus, the trial court concluded Petitioner could have discovered

the evidence at trial. See Jones v. Sec’y, Fla. Dep’t of Corr.,

906 F.3d at 1350 (concluding untimeliness finding subsumed within

denial of relief because the petitioner could have discovered the

evidence).

In the case at bar, the evidence at issue does not qualify as

newly discovered, “[t]hat is, the asserted facts ‘must have been

unknown by the trial court, by the party, or by counsel at the

time of trial, and it must appear that defendant or his counsel

being in the bed and breakfast business, Ms. Steder responded she

was a real estate agent and builder in Virginia. Id. at 128.

Both the state and defense counsel accepted Ms. Steder. Id. at

175. Petitioner, in his Amended Second Rule 3.850 motion claimed

he “would have requested and his counsel would have struck this

juror had he known her background with the FBI” in an

administrative capacity. Ex. 52 at 6. This is a curious

assertion based on post-conviction counsel’s December 14, 2012

email to trial counsel informing them that, post-trial, Timothy

Faircloth had spoken to Ms. Steder, and she said: “she ended up

being the lone hold our juror, holding out for not guilty[.]” (Doc.

29 at 137). Apparently, after an initial jury vote of 8 guilty

and 4 not guilty, Ms. Steder became the lone holdout. Id. The

Court is deeply skeptical of Petitioner’s assertion that he would

have struck Ms. Steder, the lone holdout for “not guilty” simply

because she had worked for the FBI in an administrative or

secretarial capacity.

18

could not have known them by the use of diligence.’” Jones v.

State, 591 So.2d at 916 (quoting Hallman v. State, 371 So.2d 482,

485 (Fla. 1979)). With the use of reasonable diligence, the

juror’s prior employment with the FBI could have been ascertained

at trial. As such, the failure to discover the facts at trial was

due to want of diligence; therefore, Petitioner failed to reach

the threshold requirements for filing a timely motion (an exception

to the two-year time bar is the discovery of new evidence, the

facts on which the claim is predicated were unknown to the movant

and could not have been ascertained by the exercise of due

diligence). As Petitioner’s second successive Rule 3.850 motion

was untimely under Florida law, his motion was not properly filed

pursuant to AEDPA’s tolling provision, and, therefore, his

Petition is time-barred.

The next inquiry this Court will make is whether equitable

tolling of the statute of limitations is warranted. Based on the

record before the Court, Petitioner has not presented any

justifiable reason why the dictates of the one-year limitation

period should not be imposed upon him. Petitioner has failed to

show an extraordinary circumstance, and he has not met the burden

of showing that equitable tolling is warranted.9 The record

9 In order to be entitled to equitable tolling a petitioner is

required to demonstrate two criteria: 1) the diligent pursuit of

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demonstrates he had ample time to exhaust state remedies and

prepare and file a federal petition.

Petitioner does, however, make a claim of actual innocence.

Petition at 60; Reply at 107-110. He claims “[t]he trial evidence

itself shows that Barber is actually innocent of this crime.”

Petition at 60. Along with claiming actual innocence, he contends

his conviction constitutes a manifest injustice and fundamental

miscarriage of justice. Reply at 107.

Respondents argue the claim of actual innocence is

procedurally defaulted. Response at 94. In his Reply, Petitioner

explains that he presents this claim “as a gateway claim,” not a

stand-alone claim. Reply at 107-108. He asks that: “this Court

review and adjudicate the merits of his underlying constitutional

claims of error despite any procedural bar.” Id. at 109.

Habeas corpus, at its core, is an equitable remedy. Schlup

v. Delo, 513 U.S. 298, 319 (1995). It is important to recognize,

“[a]ctual innocence may provide a gateway for a § 2254 petitioner

to obtain a decision on the merits for an otherwise time-barred

his rights and (2) some extraordinary circumstance that stood in

his way and that prevented timely filing. Agnew v. Florida, No.

16-14451, 2017 WL 962489, at *5 (S.D. Fla. Feb. 1, 2017), report

and recommendation adopted by No. 1614451, 2017 WL 962486 (S.D.

Fla. Feb. 22, 2017). It is the petitioner's burden of persuasion,

and Petitioner has not met this burden.

20

claim.” Creel v. Daniels, No. 5:16-cv-00803-LSC-JEO, 2018 WL

2187797, at *2 (N.D. Ala. Apr. 12, 2018), report and recommendation

adopted, No. 5:16cv00803-LSC-JEO, 2018 WL 2184543 (N.D. Ala. May

11, 2018) (citing McQuiggin v. Perkins, 569 U.S. 383, 392 (2013);

Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d 1000, 1011 (11th

Cir. 2012) (per curiam), cert. denied, 568 U.S. 914 (2012);

Wyzykowski v. Dep’t of Corr., 226 F.3d 1213, 1218 (11th Cir.

2000)).10

To invoke the fundamental miscarriage of justice exception to

AEDPA’s statute of limitations, a habeas petitioner must make a

credible showing of actual innocence with new reliable evidence

that was not presented at trial. See Rozzelle, 672 F.3d at 1011

(finding the alleged exception for AEDPA untimeliness requires a

petitioner (1) to present “new reliable evidence . . . that was

not presented at trial,” . . . and (2) to show “that it is more

likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt” in light of the new

evidence) (citations omitted). Petitioner is obliged to show “it

10 Of note, Respondents provided the Court with the record of the

state court proceedings, and the Court thoroughly read and

considered the record before assessing whether Petitioner made a

credible showing of actual innocence with new evidence not

available at the time of trial. See Wyzykowski, 226 F.3d at 1219

(seeking the district court’s legal analysis upon review of the

record when considering whether a petitioner has made a showing of

actual innocence).

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is more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.” McQuiggin, 569

U.S. at 399 (quoting Schlup, 513 U.S. at 327) (internal quotation

marks omitted).

Therefore, in order to meet this difficult standard to

overcome a procedural bar, Petitioner must present new evidence

that was not available at the time of trial, and it must be “new

reliable evidence-whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence-

that was not presented at trial.” Schlup, 513 U.S. at 324.

Instead of meeting this standard and offering new reliable evidence

in support of his actual innocence claim, Petitioner apparently

claims the trial evidence was insufficient to convict. Petition

at 60. He asserts his actual innocence gateway claim should be

reviewed under the standard which requires he make only a prima

facie showing that it is more likely than not that no reasonable

juror, considering all available evidence including that which was

excluded at trial (even if not newly-discovered), would have found

the petitioner guilty beyond a reasonable doubt, referencing

Calderon v. Thompson, 523 U.S. 538 (1998). Reply at 109.

It is clear, a petitioner must offer new evidence to satisfy

the actual-innocence-gateway exception. Wroten v. Gordy, No. 16-

00406-CG-C, 2017 WL 1423945, at *2 (S.D. Ala. April 19, 2017)

22

(noting McQuiggin quoted Schlup, and the Supreme Court really meant

that a petitioner must produce new evidence to invoke the actual-

innocence-gateway exception), cert. denied, 138 S. Ct. 1272

(2018); McQuiggin, 569 U.S. at 395 (restricting the miscarriage of

justice exception to a severely confined category of cases in which

new evidence shows it is more likely than not that no reasonable

juror would have convicted the petitioner) (citation and quotation

omitted). The Eleventh Circuit, in Rozzelle, 672 F.3d at 1011,

reiterated this standard: the actual-innocence-gateway exception

requires new reliable evidence.

Thus, pursuant to Schlup and its progeny,11 Petitioner must

offer new reliable evidence that was not available at the time of

trial. Petitioner has not done so, and this proves fatal to his

gateway claim:

The lack of new evidence is fatal to his

actual innocence argument. See House v. Bell,

547 U.S. 518, 537 (2006) (“to be credible, a

gateway claim requires new reliable evidence

... that was not presented at trial”); Johnson

v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (“a claim of actual innocence must be

based on reliable evidence not presented at

trial”); Moore v. Frazier, 605 Fed. Appx. 863,

868 (11th Cir. 2015) (“Moore argues only that

the evidence presented at trial was

insufficient to convict and that the state

11 As Justice O’Connor explained in her concurring opinion in

Schlup, the petitioner must make a showing “in light of newly

discovered evidence of innocence.” Schlup, 513 U.S. at 332

(O’Connor, J., concurring).

23

court failed to instruct the jury on self-

defense. But he has presented no “new reliable

evidence” showing that it is more likely than

not that no reasonable jury would have

convicted him of malice murder”); Jackson v.

Chatman, 589 Fed. Appx. 490, 491 (11th Cir.

2014) (“Jackson must establish that in light

of new evidence it is more likely than not

that no reasonable juror would have convicted

him.... If Jackson makes that showing, he is

not necessarily entitled to habeas relief, but

he may proceed with his untimely § 2254

petition.”); Brown v. Sec'y, Fla. Dep't of

Corr., 580 F. Appx 721, 727 (11th Cir. 2014)

(“the petitioner must ‘persuade[] the [habeas]

court that, in light of the new evidence, no

juror, acting reasonably, would have voted to

find him guilty beyond a reasonable doubt’”)

(quoting McQuiggin, 569 U.S. at 386).

Creel v. Daniels, 2018 WL 2187797, at *3.

Instead of offering new reliable evidence that was not

available at the time of trial, Petitioner asserts that “absent

the constitutional claims of error in his case, it is more likely

than not that no reasonable juror would have found him guilty

beyond a reasonable doubt.”12 Reply at 109. This does not satisfy

the Schlup standard; without production of new reliable evidence

showing that it is more likely than not that no reasonable jury

12 To the extent Petitioner may be asserting initial crime scene

photos that were not introduced by counsel, although counsel was

well-aware of them, constitute evidence of actual innocence, the

Court is not convinced. See Ex. 40 at 300 (testimony of counsel

that the most relevant area of the victim’s face, the left side of

her face, is in shadow). See also, Ex. 40, Exhibit C at 519-20,

Ex. 45 at 15-16, 21-22.

24

would have convicted him of murder, Petitioner may not

satisfactorily invoke the actual-innocence-gateway exception.

Based on the record before the Court,13 Petitioner has not

presented any justifiable reason why the dictates of the one-year

imitation period should not be imposed upon him. He has failed

to demonstrate he is entitled to equitable tolling. He has failed

to make a credible showing of actual innocence by failing to offer

new evidence that is directly probative of his innocence.

Therefore, this Court will dismiss the Petition and the case with

prejudice pursuant to 28 U.S.C. ' 2244(d).

Accordingly, it is now

ORDERED AND ADJUDGED:

1. The Amended Petition for Writ of Habeas Corpus (Doc. 6)

and the case are DISMISSED with prejudice.

2. The Clerk shall enter judgment dismissing the Amended

Petition with prejudice and dismissing the case with prejudice.

3. The Clerk shall close the case.

4. If Petitioner appeals the dismissal of the Amended

Petition for Writ of Habeas Corpus (Doc. 6), the Court denies a

13 In undertaking its review of the case, the Court has reviewed

the entire record before the Court, including pleadings,

appendices, and exhibits. Although voluminous, the record is

bereft of any new evidence probative of actual innocence.

25

certificate of appealability.!4 Because this Court has determined

that a certificate of appealability is not warranted, the Clerk

shall terminate from the pending motions report any motion to

proceed on appeal as a pauper that may be filed in this case.

Such termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida, this 12th day of

November, 2019.

4 De

af J. DAVIS

United States District Judge

sa 10/31

Cc:

Counsel of Record

14 This Court should issue a certificate of appealability only if

a petitioner makes "a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253 (2). To make this

substantial showing, Petitioner "must demonstrate that reasonable

jurists would find the district court's assessment of the

constitutional claims debatable or wrong," Tennard v. Dretke, 542

U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)), or that "the issues presented were ‘adequate to deserve

encouragement to proceed further,'" Miller-El v. Cockrell, 537

U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)). Upon due consideration, this Court will

deny a certificate of appealability.

26