Epps v. Secretary, Florida Department of Corrections (Putnam County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JIMMY RAY EPPS,

Petitioner,

v. Case No. 3:20-cv-318-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER OF DISMISSAL WITH PREJUDICE

I. Status

Petitioner, an inmate of the Florida penal system, initiated this action by

filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a

Person in State Custody (Doc. 1) on March 24, 2020.1 He also filed a Motion to

Consider Actual Innocence to Cure Petitioner’s Procedural Default (Doc. 2),

which the Court construed as argument in support of his Petition (Doc. 3). He

challenges a 2001 state court (Putnam County, Florida) judgment of conviction

for first degree murder of Amos Brown and attempted first degree murder of

Rashad Medlock. Petitioner is serving life in prison. Respondents filed a

1 The Court uses the date Petitioner certified that he placed the Petition in the prison

mailing system. Doc. 1 at 16.

Response (Doc. 8), with exhibits (Doc. 10; Resp. Ex.), arguing that this case is

untimely filed and should be dismissed with prejudice. Petitioner filed a Reply

(Doc. 13).2 This case is ripe for review.3

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;

2 In his Reply, Petitioner attempts to “amend” his Petition to add his motion to

interview jurors that he filed in state court after he initiated this case. See Doc. 13 at

3. However, requests for affirmative relief must be made in a motion. See Fed. R. Civ.

P. 7(b) (“A request for a court order must be made by motion.”); see also Rosenberg v.

Gould, 554 F.3d 962, 967 (11th Cir. 2009) (“Where a request for leave to file an

amended complaint simply is imbedded within an opposition memorandum, the issue

has not been raised properly.” (quotations and citation omitted)). Thus, Petitioner’s

request to amend his Petition is improper and the Court declines to consider it.

3 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318

(11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th

Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court must

consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

(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).

III. Analysis

Following a jury trial, the state court entered judgment against Petitioner

on March 15, 2001. Resp. Ex. 1 at 312-19. Petitioner appealed, and the Fifth

District Court of Appeal per curiam affirmed Petitioner’s judgment and

convictions without a written opinion on March 26, 2002. Resp. Ex. 7. The

mandate issued on April 12, 2002. See Epps v. State, No. 5D01-898 (Fla. 5th

DCA).

Petitioner’s judgment and sentence became final on June 24, 2002, which

is 90 days after the Fifth DCA’s per curiam decision. See Clay v. United States,

537 U.S. 522 (2003); Close v. United States, 336 F.3d 1283, 1285 (11th Cir. 2003)

(“According to rules of the Supreme Court, a petition for certiorari must be filed

within 90 days of the appellate court’s entry of judgment on the appeal or, if a

motion for rehearing is timely filed, within 90 days of the appellate court’s

denial of that motion.” (citing Supreme Court Rule 13.34)). The next day, June

25, 2002, Petitioner’s federal one-year limitations period began to run, and it

ran for 275 days until it was tolled on March 27, 2003,5 by the filing of

Petitioner’s counseled motion for postconviction relief pursuant to Florida Rule

of Criminal Procedure 3.850. Resp. Ex. 9 at 1-11. Petitioner twice amended his

motion. Id. at 32-43, 67-76. After holding an evidentiary hearing, the circuit

court denied the motion on November 15, 2004. Id. at 86-88. Petitioner, through

counsel, appealed the denial of his Rule 3.850 motion, and the Fifth DCA per

4 See Sup. Ct. R. 13.3 (“The time to file a petition for a writ of certiorari runs from the

date of entry of the judgment or order sought to be reviewed, and not from the issuance

date of the mandate.”).

5 The prison date stamp reflects that Petitioner mailed the motion, presumably to his

counsel, on March 27, 2003. Resp. Ex. 9 at 1. Counsel completed the certificate of

service on April 1, 2003, and the motion was filed with the clerk on April 4, 2003. Id.

at 1, 6. Because it makes no difference in the outcome, the Court uses the date

Petitioner signed the motion.

curiam affirmed the denial without a written opinion and issued the mandate

on October 28, 2005. Resp. Exs. 13, 14; see Epps v. State, No. 5D05-837 (Fla.

5th DCA). The next day, October 29, 2005, Petitioner’s one-year limitations

period continued to run for 90 days until it expired on January 27, 2006.

Petitioner filed the instant case on March 24, 2020—more than 14 years after

his one-year limitations period expired.

Petitioner recognizes that his Petition is untimely. See Doc. 1 at 14-15.

He does not argue that he is entitled to equitable tolling. Instead, he argues

that the state court’s decision denying his claim that his trial counsel was

ineffective for failing to consult with him when deciding not to discuss any

lesser-included offenses with the jury and his claim relating to newly discovered

evidence was “patently unreasonable.” Doc. 2 at 2.6 Petitioner includes an

affidavit that summarizes the “proffered testimony” of himself, Ronnie Maples,

Kearfer Medlock, Rashad Medlock, a Ballistics Expert, and a Forensic Expert.

Id. at 5-20. He claims that this evidence shows he is actually innocent and thus

his failure to comply with the one-year limitations period should be waived. See

Doc. 13; see also Doc. 1 at 14-15.

“[A]ctual innocence, if proved, serves as a gateway through which a

petitioner may pass whether the impediment is a procedural bar . . . or, as in

6 These are the same two grounds that Petitioner raises in the Petition. Doc. 1 at 5-8.

this case, expiration of the statute of limitations.” McQuiggin v. Perkins, 569

U.S. 383, 386 (2013). To avoid the one-year limitations period based on actual

innocence, a petitioner must “present new reliable evidence . . . that was not

presented at trial” and “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.” Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d 1000, 1011

(11th Cir. 2012) (quotations and citations omitted); see Schlup v. Delo, 513 U.S.

298, 327 (1995) (finding that to make a showing of actual innocence, “a

petitioner must show that it is more likely than not that no reasonable juror

would have found [the] petitioner guilty beyond a reasonable doubt”).

In his affidavit, Petitioner avers that at the end of 2001 or beginning of

2002, while he was housed at Taylor Correctional Institution, he was

approached by inmate Ronnie Maples, who claimed that he saw Tyree Belton

murder Amos Brown.7 Doc. 2 at 5. He also states that later, while still housed

at Taylor CI, Kearfer Medlock, the brother of attempted murder victim Rashad

Medlock, approached Petitioner and explained that “everybody knows”

Petitioner was not the shooter. Id. at 6. Kearfer allegedly told Petitioner that

Belton admitted to Kearfer that Belton murdered Brown and shot Rashad by

7 Belton was initially arrested for the murder of Brown and attempted murder of

Rashad. See Resp. Ex. 2 at 684-91 (Lieutenant Griffith testifying that Belton was

originally arrested on these charges, but after further investigation, the charges were

dropped).

accident. Id. Kearfer obtained an affidavit from Rashad which confirmed that

prior to Petitioner’s trial, Rashad had been attempting to say that the shooter

was black, but the prosecutor (Gary Woods) threatened Rashad to keep his

mouth shut. Id. at 7.

Petitioner further avers that in 2017, he met Rashad at Calhoun

Correctional Institution. Id. at 7-8. Rashad told Petitioner that Petitioner needs

to “‘do another appeal’” and Rashad would make a statement on Petitioner’s

behalf once Rashad was out of prison. Id. at 8. Petitioner explains that Rashad’s

testimony would show that the prosecutor threatened Rashad at Petitioner’s

trial and postconviction evidentiary hearing to keep Rashad from telling the

truth—which was that a black male (Petitioner is white) shot Brown and

Rashad. Id. at 8-10.

Attached to Petitioner’s original Rule 3.850 motion are affidavits from

Maples, Rashad, and Kearfer. See Resp. Ex. 9 at 7-11.8 Maples avers that he

saw a “stre[a]k of fire come from the passenger side of the car” and he heard a

“loud boom.” Id. at 7. He also states that he “saw a black man still leaning out

the window with something in his hands.” Id. In Rashad’s affidavit, he states

that he told an officer several times that a black male shot him. Id. at 9. He

indicates that he “wanted to testify [o]n [Petitioner’s] behalf during his trial,

8 The affidavits of Maples and Kearfer are also attached to the Petition. See Docs. 1-1,

1-2.

but [he] was threaten[ed] by D.A. Gary Woods.” Id. He concludes that Petitioner

was not the shooter. Id. Finally, Kearfer’s affidavit reflects that Belton admitted

to Kearfer that Belton was the shooter. Id. at 10.

Notably, in Petitioner’s counseled second amended Rule 3.850 motion,

which Petitioner also signed under penalty of perjury, Petitioner argued:

The evidence was overwhelming that Defendant

committed an act but to not argue for a lesser included

offense was ineffective assistance of counsel. Defense

counsel was faced with a virtually unwinnable case, but

a viable lesser offense. All of the people in the car were

intoxicated and rowdy. In this delirium they got into a

vehicle with a gun. If anyone had been shot, they didn’t

know it. That translates into a manslaughter

conviction, not first degree murder.

Id. at 74-75. The postconviction court held an evidentiary hearing, at which

Maples testified. See id. at 86. The court then denied the motion, finding, in

part, that Maples’ testimony was “inherently unreliable,” and that in light of

the testimony presented at trial, Maples’ testimony “offer[s] no exculpatory

evidence” for Petitioner. Id. at 87. The postconviction court also noted that

Petitioner withdrew his claims of newly discovered evidence based on the

statements of Kearfer and Rashad, but the court alternatively denied the claims

finding that Petitioner “failed to meet his burden regarding the statements of

either Kearfer or Rashad Medlock.” Id. at 86.

Regarding Petitioner’s proffered expert testimony to show his actual

innocence, Petitioner claims that the state’s ballistics expert at trial “described

that the number of pellets found in the victims were too many to have been fired

from one single cartridge,” and that given the testimony regarding the locations

of the shooter and the victims, “the spread was too wide.” Doc. 2 at 15. According

to Petitioner, “[w]hat their expert didn’t say was that in order for the shotgun

in evidence to have been the one used at the shooting, the shooter would have

had to be about 100 yards down that road – which would be outside of the lethal

range of the shotgun.” Id. at 15-16. Petitioner claims that he needs a ballistics

expert to explain “that one single shot or ‘boom’ with the shotgun in evidence

would not have expelled that many pellets and would not have created a spread

width that wide from where the shooter was witnessed firing his weapon at

Amos Brown and Rashad Medlock.” Id. at 16. Petitioner also asserts that while

the state’s forensic expert testified that no gunpowder residue was found in

Petitioner’s car, he wants to present testimony from a forensic expert “that, all

things considered, the upholstery [in Petitioner’s car] should have been covered

in copious amounts of GPR, and that – in their opinion – [Petitioner’s vehicle]

was not the car” from which the shot was fired. Id. at 18.

Petitioner has not offered any new reliable evidence to sustain an

assertion of actual innocence. He largely rehashes the testimony given at his

trial. Indeed, evidence was presented at trial regarding the different

identifications of the vehicle used in the shooting, the race of the individuals in

that vehicle, and the gunshot residue and importance of the “spread.” During

closing arguments, Petitioner’s defense counsel referred to the shotgun pellets

and the spread:

And the interesting thing is no pellets are

recovered. And you’ve heard testimony - - you’ve heard

the testimony about the spread and how gunshot

works. But there is no pellets anywhere. Not on the

ground. Not anywhere at the scene. No wadding. No

shells. And you need to play [sic] close attention to the

wounds on Medlock and Brown. And look at that,

establish the spread. Use your common sense.

Could the victims have been standing as

described by Medlock and Robinson and Daniels? Are

the injuries consistent with one shot?

Now, it’s just a little confusing.

We’ve got an expert who says if this was a 20-

gauge shotgun and you’re using Number Three

buckshot, the maximum - - the maximum that you can

load the shell into a 20-gauge is a shell with 20 pellets.

Yet, we have nine pellets into Mr. Medlock, 13 pellets

into Mr. Brown, and one or two, maybe, into Mr.

Daniels. Any way you count them, it comes up to 23,

24 pellets.

Ladies and Gentlemen, does that mean that this

was not a 20-gauge that was used, but a different

gauge? And what type of ammunition was actually

used? Was it self-loaded ammunition? Was it

manufactured? Was it, as the State - - I don’t know

whether they’re trying to get you to assume that - - was

it the same type of ammunition that was found with

the gun they found at Robert Adkins’ house under the

sofa? Was it Federal, Winchester, Remington? Do we

know? And do we even know, where is the shotgun

that was used to shoot Medlock and Brown? What gun

was used? What ammo?

Resp. Ex. 2 at 1126-27; see id. at 1132-33 (reiterating to the jury the importance

of considering the spread). Defense counsel also pointed out the discrepancies

in the testimony regarding the color of the vehicle and race of the shooter:

And [Rashad Medlock] tells you, it was after

midnight that this white Ford, or what it - - later he

told Officer Zike it was a gray Trans Am. He told

Lieutenant Harper it was a gray Trans Am with four

black males in it, came - - first came by the house. And

then he said that same vehicle returned about three.

So we are talking about from midnight to three,

according to him.[9]

Mr. Robinson says it was a gray car. And he says

there were at least two white males in it and one

female. Now, if we’re talking about the same - - if we’re

talking about Jimmy Epps and the same group of

people - - if we’re talking about the same car being the

car that Mr. Robinson admits that he went up and

didn’t hit someone, maybe slapped them, or maybe

unintentionally got his hand knocked into the person

as they pulled away in this gray car - - where is the

female?

. . . .

Mr. Daniels testified. It was a gray car, after

midnight, returned 30 minutes, at max, 40 minutes

afterwards. . . . He saw the gun that was used. A

sawed-off shotgun.

. . . .

The State would have you jump to some sort of

conclusion that the gun that they have kept parading

around here is the gun that was used. And if you will

9 On cross-examination, Rashad denied ever telling anyone that a black person had

shot him. Ex. 2 at 546.

recall, I asked Mr. Daniels, is that his interpretation

of a sawed-off shotgun? And he said no.

Id. at 1130-31; see id. at 1138 (defense counsel summarizing Lieutenant

Griffith’s testimony: “And he had a description of a white, gray, beige, tan

vehicle. Blue is close enough for him.”).

Detective Lassiter testified that he did not know whether there was any

gunshot residue found in Petitioner’s vehicle. Resp. Ex. 2 at 650. Lieutenant

Griffith testified that he did not find any gunshot residue, discarded casings, or

waddings in Petitioner’s vehicle. Id. at 719. Allen Miller, a Senior Crime

Laboratory Analyst with the Florida Department of Law Enforcement, testified

that “it’s not uncommon not to find” any gunshot residue on the door of a

vehicle. Id. at 1024, 1028.

Petitioner’s brother testified that he was with Petitioner at the time of

the shooting, and that before Petitioner shot the gun, he said, “Hey, ni**er.”

Resp. Ex. 2 at 801-02, 807. Testimony was also presented that before the

shooting, Petitioner stated multiple times, in essence, that he was going to kill

a ni**er, and after the shooting, he stated that he (or we/they) had shot or killed

a ni**er. See id. at 395, 415, 450-51, 472-74, 476, 491, 495, 513, 732, 759-60,

799. Petitioner testified on his own behalf, denying that he ever shot a shotgun

on the date in question and trying to point the blame on his brother. See id. at

1038-40; see also id. at 1064-65 (testifying that his brother shot at a black male

in East Palatka that evening, but they did not travel to the part of Palatka

where Brown and Rashad were shot). He also denied telling anyone that he was

going to kill a ni**er or that he/they had shot a ni**ger. See id. at 1055, 1056,

1057, 1059, 1060, 1061.

Upon review, this Court finds that Petitioner simply wants to remold the

testimony that was provided at trial. However, the jury considered that

testimony and found Petitioner guilty. Notably, in his Rule 3.850 proceeding,

Petitioner acknowledged, under penalty of perjury, that he was not guilty of

first-degree murder, but instead, he was only guilty of manslaughter.10 “It is

important to note in this regard that ‘actual innocence’ means factual

innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614,

623 (1998); see Rozzelle, 672 F.3d at 1015 (deciding “that the narrow and

extraordinary nature of Schlup’s actual innocence ‘gateway’ does not extend to

petitioners . . . who did the killing and whose alleged ‘actual innocence’ of a non-

capital homicide conviction is premised on being guilty of only a lesser degree

of homicide”).

When Petitioner’s “newly discovered evidence” is considered along with

the testimony and evidence presented at trial, it cannot be said that it is “more

10 While defense counsel did not argue for a lesser-included offense during closing

arguments, the jury was instructed on the lesser-included crimes for first degree

murder and attempted first degree murder, including manslaughter and attempted

voluntary manslaughter. See Resp. Ex. 2 at 1179-89.

likely than not that no reasonable juror would have found petitioner guilty

beyond a reasonable doubt in light of the new evidence.” Rozzelle, 672 F.3d at

1011. Petitioner has failed to show that he is entitled to the “exceedingly

narrow” actual innocence exception. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

Accordingly, it is

ORDERED:

1. This case is DISMISSED with prejudice as untimely.

2. If Petitioner appeals, 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.11

11 The Court should issue a certificate of appealability only if Petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(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)). Here, after consideration of

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

3. The Clerk shall enter judgment dismissing this case with prejudice

as untimely, terminate any pending motions, and close this case.

DONE AND ORDERED at Jacksonville, Florida, this 94 day of

December, 2022.

ee Cirmotheg 9. Corrig on

Ww. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 11/28

C:

Jimmy Ray Epps, #J05338

Counsel of Record

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