Watkins v. Secretary, Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KEVIN WATKINS,

Petitioner,

v. Case No. 3:17-cv-976-J-34JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Kevin Watkins, an inmate of the Florida penal system, initiated this

action with the assistance of counsel on September 18, 2017, by filing a Petition for Writ

of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1), with exhibits (Pet. Ex.),1 in

the United States District Court Northern District of Florida. The Northern District

transferred the case to this Court on September 19, 2017. See Doc. 11. In the Petition,

Watkins challenges a 2009 state court (Duval County, Florida) judgment of conviction for

two counts of sexual battery. Watkins raises fives grounds for relief. See Petition at 5-15.2

Respondents submitted an answer in opposition to the Petition. See Answer (Motion to

Dismiss as Untimely) (Response; Doc. 28) with exhibits (Resp. Ex.). Watkins filed a brief

1 For purposes of reference, the Court will refer to the “tab number” Watkins

assigned his exhibits as the Exhibit number.

2 For purposes of reference, the Court will cite the page number assigned by the

Court’s electronic docketing system.

in reply. See Response to Government’s Answer (Motion to Dismiss as Untimely) (Reply;

Doc. 32). This case is ripe for review.

II. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended 28

U.S.C. § 2244 by adding the following subsection:

(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 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 contend that this action is untimely. Response at 2-5. In his Petition,

Watkins argues that he is actually innocent and failing to address the merits of his Petition

would result in a miscarriage of justice. Petition at 14-15. Watkins also argues that newly

discovered forensic evidence entitles him to the factual predicate exception to the statute

of limitations as expressed in § 2254(e)(2)(A)(ii).3 Additionally, in his Reply, Watkins

contends he is entitled to a rebuttal presumption that he equitably tolled the statute of

limitations because the attorney who Watkins hired to file the Petition died after filing it.

Reply at 2. As such, Watkins maintains that it is impossible to determine if Watkins’s

original habeas attorney committed the type of unprofessional conduct that would warrant

equitable tolling. Id. According to Watkins, “it does not follow that because we are

unaware of any extraordinary circumstances there were in fact none.” Id. The following

procedural history is relevant to the one-year limitations issue.

The State of Florida (State) charged Watkins with two counts of sexual battery.

Resp. Ex. A. After a jury convicted him on both counts, the state circuit court sentenced

Watkins to a term of incarceration of fifteen years in prison followed by ten years of sex

offender probation as to both counts. Id. Watkins appealed to Florida’s First District Court

of Appeal (First DCA), which, on October 13, 2010, affirmed the conviction and sentence

as to count one but reversed the conviction and sentence as to count two. Resp. Ex. B.

The First DCA issued the Mandate on December 15, 2010. Resp. Ex. D. Following

remand, on April 4, 2011, the circuit court entered a judgment of not guilty as to count

3 The Court notes this section refers to evidentiary hearings. However,

§2244(d)(1)(D) does allow for the statute of limitations to be calculated from the date on

which the factual predicate of the claim could have been discovered with the exercise of

due diligence.

two. Resp. Ex. C. Watkins again appealed the judgment and sentence for count one, but

voluntarily withdrew the appeal on June 20, 2011. Resp. Ex. E. The First DCA dismissed

the appeal on June 22, 2011. Id.

As Watkins’s conviction and sentence became final after the effective date of

AEDPA, his Petition is subject to the one-year limitations period. See 28 U.S.C. §

2244(d)(1). Respondents contend, and Watkins does not dispute, that Watkins’s

judgment became final on June 22, 2011, when the First DCA dismissed his appeal.

Response at 3; see generally Petition; Reply. As such, Watkins had until June 22, 2012,

to file a federal habeas petition. Watkins did not file the Petition until September 18, 2017.

Thus, the Petition is due to be dismissed as untimely unless he can avail himself of the

statutory provisions which extend or toll the limitations period.

The record reflects that Watkins, with the assistance of counsel, filed a motion for

postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850

Motion) on June 11, 2012, 355 days after his judgment and sentence became final.4 Resp.

Ex. F. The circuit court denied the Rule 3.850 Motion on June 28, 2013. Id. On December

20, 2013, the First DCA per curiam affirmed the denial of the Rule 3.850 Motion. Resp.

Ex. G. Watkins moved for rehearing, which the First DCA denied on January 29, 2014,

and issued the Mandate on February 14, 2014. Id. Accordingly, the statute of limitations

period began to run again on February 14, 2014. See Nyland v. Moore, 216 F.3d 1264,

1267 (11th Cir. 2000) (noting pursuant to Florida law, a circuit court’s denial of a

postconviction motion is pending until the mandate is issued). Watkins had until February

25, 2014, to file a timely petition for writ of habeas corpus in this federal court or file

4 Respondents note that 2012 was a leap year that included 366 days.

another postconviction motion that would have tolled the statute of limitations. Watkins

did not file any other motions in state court that could have tolled the one-year statute of

limitations until September 23, 2014, when he filed a pro se petition for writ of habeas

corpus. Resp. Ex. H at 40. However, by that time more than 200 days had passed since

the one-year statue of limitations had expired. As Watkins did not file any motions that

would have tolled the statute of limitations between February 14, 2014, and February 25,

2016, the instant Petition is untimely. Watkins, nevertheless, contends the merits of his

case should be heard for three reasons, which the Court will examine separately.

Actual Innocence

In McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), the United States Supreme

Court held that a claim of actual innocence, if proven, provides an equitable exception to

the one-year statute of limitations. The United States Supreme Court explained:

We hold that actual innocence, if proved, serves as a gateway

through which a petitioner may pass whether the impediment

is a procedural bar, as it was in Schlup[5] and House,[6] or, as

in this case, expiration of the statute of limitations. We

caution, however, that tenable actual-innocence gateway

pleas are rare: "[A] petitioner does not meet the threshold

requirement unless he persuades the district court that, in light

of the new evidence, no juror, acting reasonably, would have

voted to find him guilty beyond a reasonable doubt." Schlup,

513 U.S., at 329, 115 S.Ct. 851; see House, 547 U.S. at 538,

126 S.Ct. 2064 (emphasizing that the Schlup standard is

"demanding" and seldom met). And in making an assessment

of the kind Schlup envisioned, "the timing of the [petition]" is a

factor bearing on the "reliability of th[e] evidence" purporting

to show actual innocence. Schlup, 513 U.S., at 332, 115 S.Ct.

851.

Id. at 386-87.

5 Schlup v. Delo, 513 U.S. 298 (1995).

6 House v. Bell, 547 U.S. 518 (2006).

In the Petition, Watkins alleges he is actually innocent and in support asserts that

the state circuit court did not allow him to introduce evidence concerning the victim’s

sexually transmitted disease (STD) and forensic evidence discovered after his trial that

allegedly demonstrated that the state relied on a fabricated email to convict him. Petition

at 5-10, 14-15. Concerning the STD, at trial Watkins proffered testimony that during her

high school years, the time at which the victim alleged the crime occurred, the victim had

chlamydia three times and received medical treatment for it. Id. at 424-25. Watkins also

proffered that he never had chlamydia. Id. The circuit court found this testimony had no

probative value and did not allow Watkins to testify to the same in front of the jury. Id. at

426. Watkins now maintains that the circuit court was under the misconception that

chlamydia could only be spread via sexual intercourse. Petition at 6. The Court notes that

the victim testified that Watkins would “grind” on her while their clothes were on and made

her lick his anus, testicle, and balls. Pet. Ex. 11 at 164-73. However, the victim never

testified that Watkins had intercourse or performed oral sex on her. Id. Accordingly, as

Watkins would never have performed oral or vaginal sex with the victim, he would not

have been able to contract chlamydia from her as neither his bare penis or mouth came

in contact with her sexual organs. See Chlamydia - CDC Fact Sheet, Centers for Disease

Control and Prevention, https://www.cdc.gov/std/chlamydia/stdfact-chlamydia.htm (last

visited March 5, 2020) (“You can get chlamydia by having vaginal, anal, or oral sex with

someone who has chlamydia.”). Therefore, evidence regarding the victim’s diagnosis of

chlamydia would not have been exculpatory and, in turn, does not support Watkins’s claim

of actual innocence.

Regarding the email, Watkins asserts that he hired a forensic computer analyst

after the trial to examine his computer and the expert opined that the email presented at

trial had never been sent, received, or deleted by Watkins and was in fact forged. Petition

at 8. However, at trial, Watkins specifically testified that he received the email, read the

first few lines, and then deleted it. Pet. Ex. 12 at 372-73, 412. Likewise, during a controlled

call, Watkins stated that he received the email. Pet. Ex. 11 at 317. On cross-examination,

the prosecutor showed Watkins the email, allowing him to review it. Pet. Ex. 12 at 412.

After reviewing the email, Watkins acknowledged receiving it and gave specific testimony

about which parts he actually read. Id. Accordingly, Watkins’s own trial testimony refutes

his claim that he never received or deleted the email. The Court further notes that during

the controlled call, the victim twice mentioned the specific sex acts Watkins made the

victim perform on him, and on neither occasion did Watkins deny or take offense to these

statements. Pet. Ex. 11 at 315-30. Instead, Watkins expressed sympathy and apologized.

Id. Moreover, the sex acts Watkins had the victim perform were substantially similar to

the sex acts the victim’s mother testified Watkins would have her perform on him. Id. at

168-73, 254-256. On this record, Watkins has not met the “demanding” Schlup standard

because he has not convinced this Court that in light of this allegedly new evidence, no

juror, acting reasonably, would have voted to find him guilty as charged. A reasonable

juror could find Watkins’s trial testimony that he did receive and delete the email credible

over his expert’s opinion that it was never received or deleted on Watkins’s personal

computer, which does not refute that it could have been received or deleted via another

computer or cellular device. Accordingly, Watkins has failed to establish his claim of

actual innocence; therefore, his allegations here cannot overcome his failure to timely file

the Petition. See McQuiggin, 569 U.S. at 386-87.

Newly Discovered Evidence

Pursuant to § 2244(d)(1)(D), the statute of limitations for filing a petition shall run

from “the date on which the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence” if that date is later than the date

the petitioner’s state court judgment became final. The due diligence contemplated in §

2244(d)(1)(D) “must be determined on a case-by-case basis relative to the factual

predicate.” Cole v. Warden, Georgia State Prison, 768 F.3d 1150, 1156 (11th Cir. 2014).

Here, the Court finds Watkins or his counsel could have discovered the evidence

regarding his computer prior to his trial had they exercised due diligence. Watkins does

not dispute that he and his attorney had access to his computer. Thus, had Watkins

actually believed he never received the email, he could have had his computer analyzed

prior to trial just as he did after his conviction.7 As such, Watkins cannot rely on §

2244(d)(1)(D) to assert that his second claim, involving newly discovered evidence, is

timely because he has not shown that he exercised due diligence.

Nonetheless, even if timely, the Court finds that the state court’s adjudication of

this claim is entitled to deference. AEDPA governs a state prisoner’s federal petition for

habeas corpus. See Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d

600, 642 (11th Cir. 2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA

is to ensure that federal habeas relief functions as a guard against extreme malfunctions

7 Based on Watkins’s trial testimony, it is evident he knew the email had been sent,

which would explain why he did not have his computer analyzed before trial.

in the state criminal justice systems, and not as a means of error correction.’” Id. (quoting

Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks omitted)). As such, federal

habeas review of final state court decisions is “‘greatly circumscribed’ and ‘highly

deferential.’” Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011)

(quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court decision,

if any, that adjudicated the claim on the merits. See Marshall v. Sec’y, Fla. Dep’t of Corr.,

828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written opinion

explaining its rationale in order for the state court’s decision to qualify as an adjudication

on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s

adjudication on the merits is unaccompanied by an explanation, the United States

Supreme Court has instructed:

[T]he federal court should “look through” the unexplained

decision to the last related state-court decision that does

provide a relevant rationale. It should then presume that the

unexplained decision adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by

showing that the higher state court’s adjudication most likely relied on different grounds

than the lower state court’s reasoned decision, such as persuasive alternative grounds

that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at

1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars relitigation

of the claim unless the state court’s decision (1) “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States;” or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98. Also, deferential review under § 2254(d)

generally is limited to the record that was before the state court that adjudicated the claim

on the merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (stating the language

in § 2254(d)(1) “requires an examination of the state-court decision at the time it was

made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for prisoners

whose claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16

(2013). “Federal courts may grant habeas relief only when a state court blundered in a

manner so ‘well understood and comprehended in existing law’ and ‘was so lacking in

justification’ that ‘there is no possibility fairminded jurists could disagree.’” Tharpe, 834

F.3d at 1338 (quoting Richter, 562 U.S. at 102-03). This standard is “meant to be” a

“difficult” one to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s

claims were adjudicated on the merits in the state courts, they must be evaluated under

28 U.S.C. § 2254(d).

Here, Watkins raised this claim of newly discovered evidence with the circuit court,

Resp. Ex. F at 5-7, and the circuit denied relief on the claim based on Watkins’s trial

testimony that he received the email and the controlled call in which Watkins

acknowledged receipt of the email. Id. at 59-60. The First DCA per curiam affirmed the

denial of relief without a written opinion. Ex. G. To the extent that the First DCA decided

the claim on the merits,8 the Court will address the claim in accordance with the

8 In looking through the appellate court’s per curiam affirmance to the circuit court’s

“relevant rationale,” the Court presumes that the appellate court “adopted the same

reasoning.” Wilson, 138 S. Ct. at 1194.

deferential standard for federal court review of state court adjudications. After a review of

the record and the applicable law, the Court concludes that the state court’s adjudication

of the claim was not contrary to clearly established federal law, did not involve an

unreasonable application of clearly established federal law, and was not based on an

unreasonable determination of the facts in light of the evidence presented in the state

court proceedings. Thus, Watkins is not entitled to relief on the basis of this claim.

Even if the state court’s adjudication of this claim was not entitled to deference,

Watkins’s claim is meritless. As explained above, Watkins specifically acknowledged at

trial that he received, partially read, and deleted the email. He also did so during the

controlled call, the same controlled call in which Watkins did not contest the victim’s

statements regarding the sexual acts she performed on Watkins. Based on Watkins’s own

admissions regarding his receipt of the email and the controlled call coupled with the

victim’s testimony, a reasonable juror could find Watkins guilty beyond a reasonable

doubt. As such, Watkins is not entitled to federal habeas relief on the basis of this claim.

Equitable Tolling

A petitioner establishes equitable tolling “only if he shows ‘(1) that he has been

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

way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “‘[A] garden variety claim of excusable

neglect’ . . . does not warrant equitable tolling.” Id. at 651-52 (citations omitted). Notably,

a “petitioner has the burden of proof to show that equitable tolling is required in any

particular case.” Bell v. Florida Atty. Gen., 461 F. App’x 843, 845 (11th Cir. 2012) (citing

San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011)). Watkins has not met his

burden of proving that he is entitled to equitable tolling as he has offered nothing to

support a claim that extraordinary circumstances prevented him from timely filing. Instead,

he merely speculates that such circumstances could have possibly existed. Accordingly,

equitable tolling does not apply to Watkins’s untimely Petition. In light of the above, the

Court finds the Petition is due to be denied as untimely.

III. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Watkins seeks issuance of a certificate of appealability, the undersigned opines

that a certificate of appealability is not warranted. The Court should issue a certificate of

appealability only if the petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial showing, Watkins

“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)).

Where a district court has rejected a petitioner’s constitutional claims on the merits,

the petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.

However, when the district court has rejected a claim on procedural grounds, the

petitioner must show that “jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DISMISSED WITH PREJUDICE, and this action is

DISMISSED WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment dismissing the Petition and

dismissing this case with prejudice.

3. If Watkins appeals the dismissal of the Petition, the Court denies a

certificate of appealability. Because the 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.

4. The Clerk of the Court is directed to close this case and terminate any

pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 6th day of April, 2020.

United States District Judge

Jax-8

C: Kevin Watkins #J38678

Counsel of record

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