Trevino v. Andrews

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DANIEL TREVINO,

Plaintiff,

v. Case No. 2:21-cv-918-JES-NPM

KENNETH E. ANDREWS AND

STATE OF FLORIDA,

Defendants.

___________________________

OPINION AND ORDER

Plaintiff Daniel Trevino (“Plaintiff”) brings the instant

action under 42 U.S.C. § 1983 essentially seeking to compel the

State Attorney’s Office to compare deoxyribonucleic acid (DNA)

evidence found under the fingernails of the murder victim in his

case with other DNA evidence currently in the possession of

officials in the State of Washington. (Doc. 1). The matter is

now before the Court on the defendants’ Motion to Dismiss. (Doc.

11). Plaintiff has neither responded to the motion to dismiss nor

1

amended his complaint, and the time to do so has passed. Even

so, the Court has carefully reviewed the allegations in the

Complaint to determine whether Plaintiff has stated one or more

1 Plaintiff had been advised that he “must timely respond to

any motion” or “the Court will assume Plaintiff does not oppose

the relief requested and decide the motion as if it is unopposed.”

(Doc. #3, p. 6, ¶9.) As to motions to dismiss, plaintiff was

advised he must file a response or an amended complaint within 21

days. (Id. at ¶9(a).)

claims on which relief may be granted.

Upon careful consideration of the Complaint and pertinent

law, the Court concludes that the Complaint must be dismissed

without prejudice.

I. The Complaint2

On July 18, 1996, Plaintiff was convicted of the first-degree

murder of Michael Lovett. (Doc. 1 at 2, ¶ 1). Robert “Beto”

Trevino (Beto Trevino) was Plaintiff’s co-defendant for the murder

of Michael Lovett, and Defendant Kenneth E. Andrews (ASA Andrews)

was the Assistant State Attorney who prosecuted Plaintiff’s trial.

(Id. ¶¶ 1, 5.) Prior to the trial, ASA Andrews was aware that DNA

found under Mr. Lovett’s fingernails did not belong to Plaintiff.

(Id. ¶ 2). The Collier County Coroner testified to this at the

trial. (Id.)3

2 Plaintiff offers relatively sparse factual allegations in

his Complaint, making it difficult to discern the context of his

claims. Therefore, the Court takes notice of its prior order on

Plaintiff’s 28 U.S.C. § 2254 habeas petition in Case Number 2:06-

cv-41-JES-DNF at D.E. 39 (the “Habeas Order”). Fed R. Evid.

2.01(b)(2). The Court uses the Habeas Order only to provide

background and context to Plaintiff’s section 1983 Complaint.

While the contents of the Habeas Order help clarify plaintiff’s

allegations here, nothing contained in the Habeas Order was

necessary to the Court’s conclusions.

3 In a written order entered at the conclusion of the guilt

phase of Plaintiff’s death-penalty trial, the trial judge noted

that Plaintiff and Beto Trevino were both arrested for the murder

of Michael Lovett. (Habeas Order at 41). The court recognized

that there was insufficient evidence to show that Plaintiff was

the actual killer of Michael Lovett. (Id.) Instead, the

“circumstantial evidence could equally sustain the conclusion that

Daniel Trevino was aiding and abetting a felony in the course of

On October 3, 1998, Beto Trevino was murdered. (Doc. 1 at

2–3, ¶¶ 3, 5). After learning of Beto Trevino’s death, Plaintiff

filed a motion for postconviction relief in state court pursuant

to Fla. R. Crim P. 3.850. (Id. at 3, ¶ 3).4 Plaintiff also filed

three subsequent postconviction motions pursuant to Fla. R. Crim.

5

P. 3.853 seeking to have DNA from under the fingernails of the

victim compared with the DNA of “Beto Trevino, as maintained in

the CODIS of Washington State.” (Id. at 3, 4, ¶¶ 4, 8). The last

such postconviction motion was denied by the circuit court and

affirmed on appeal on May 2, 2019. (Id. at 3, ¶¶ 4, 6).

Plaintiff asserts that he “has never ceased” his attempts to

acquire the DNA information from Washington State but was informed

that he must have a Florida State Agency request the DNA. (Doc.

1 at 3, ¶ 6). Plaintiff asked Florida law enforcement

investigators to obtain the evidence, but they either ignored or

which a murder was committed by others but he himself did not kill,

attempt to kill, or intend that a killing take place[.]” (Id.)

4 In his postconviction motion, Plaintiff argued that defense

counsel should have had the DNA tested (and compared to Beto

Trevino’s DNA) prior to trial. In rejecting the claim, the

postconviction court explained that “the Defendant’s presence at

the crime scene was established by his statements to law

enforcement. The fact that Beto and the victim may have struggled

does not affect the Defendant’s culpability in this case.”

(Habeas Order at 35–36).

5

Florida provides a statutory method for obtaining

postconviction DNA testing, Fla. Stat. § 925.11 and 925.12, and

Fla. R. Cr. P. 3.853 sets forth the procedures for obtaining such

testing.

refused his requests. (Id.) Plaintiff asserts that ASA Andrews

“refuses to exercise obligations of his office . . . to have the

DNA in Plaintiff’s case compared with the DNA . . . being held in

the CODIS of Washington State[.]” (Doc. 1 at 3, ¶ 5). Plaintiff

asserts that the DNA recovered from under the fingernails of the

victim will match the DNA of Beto Trevino which is maintained by

Washington State. (Id. at ¶8)

Plaintiff asserts three federal claims and seeks declaratory

relief. Plaintiff asserts that ASA Andrews’ refusal to facilitate

the comparison of the DNA (1) violates equal protection, (2)

violates the Eighth Amendment, and (3) violates due process.

Plaintiff also asks the court for a declaratory judgment

determining “whether the United States Constitution requires the

testing of the DNA . . . per the 5th, 8th, and 14th Amendments to

the U.S. Constitution.” (Doc. # 1 at 6–7, ¶ 16).

Defendants filed a motion to dismiss based on six separate

grounds. They assert that: (1) Plaintiff’s claims are barred by

the Rooker-Feldman doctrine; (2) Plaintiff’s claims are barred by

the statute of limitations; (3) Defendant Andrews is entitled to

prosecutorial immunity; (4) Plaintiff’s claims are barred by

qualified immunity; (5) Plaintiff’s claims are barred by Eleventh

Amendment immunity; and (6) Plaintiff fails to state a claim for

relief. (Doc. 11).

II. Standard of Review

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted). To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief

above the speculative level.” Id. at 555. See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citations omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff, Erickson v. Pardus,

551 U.S. 89 (2007), but “[l]egal conclusions without adequate

factual support are entitled to no assumption of truth,” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678. “Factual allegations that are merely consistent

with a defendant’s liability fall short of being facially

plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted). Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,

a court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief.” Iqbal, 556

U.S. at 679.

A complaint filed pro se must be liberally construed and held

to less stringent standards than formal pleadings drafted by

lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

III. Discussion

A. Subject Matter Jurisdiction

The Court first addresses the jurisdictional issue raised by

defendants. Defendants argue that this court lacks jurisdiction

over Plaintiff’s claims under the Rooker-Feldman doctrine because

the claims raise issues which would generally be presented on

direct appeal of a criminal conviction. (Doc. 11 at 4).

Defendants rely primarily on Alvarez v. Att’y Gen. for Fla., 679

F. 3d 1257, 1262 (11th Cir. 2012). Defendants assert: “As framed

in Plaintiff’s Complaint, Plaintiff requests this Court to

intervene in a closed state criminal proceedings and question the

finality of his conviction. This Court lacks jurisdiction to enter

an order instructing a state court to re-open a closed case and

conduct DNA testing, as this would ultimately require this Court

to review the decision of a state court.” (Doc. 11 at 4-5.)

The Rooker-Feldman doctrine bars federal district courts from

reviewing state-court decisions. Behr v. Campbell, 8 F.4th 1206,

1208 (11th Cir. 2021). The scope of the doctrine is narrow,

confined to “cases brought by state-court losers complaining of

injuries caused by state-court judgments rendered before the

district court proceedings commenced and inviting district court

review and rejection of those judgments.” Exxon Mobil Corp. v.

Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). In Behr, the

Eleventh Circuit warned that “district courts should keep one thing

in mind when Rooker-Feldman is raised: it will almost never apply.”

Id. at 1212.

In Skinner v. Switzer, 562 U.S. 521 (2011) a convicted state

prisoner seeking DNA testing of crime-scene evidence challenged

the Texas postconviction DNA statute in a civil rights action under

42 U.S.C. § 1983, asserting that the statute “as construed” by the

Texas courts denied him procedural due process. The Supreme Court

rejected a claimed Rooker-Feldman bar: “If a federal plaintiff

‘present[s][an] independent claim,’” it is not an impediment to

the exercise of federal jurisdiction that the “same or a related

question” was earlier aired between the parties in state court.”

Id. at 532. Skinner did not challenge the adverse court decisions

but challenged the constitutionality of the Texas statute they

authoritatively construed. “[A] state-court decision is not

reviewable by lower federal courts, but a statute or rule governing

the decision may be challenged in a federal action.” Id. at 532.

The Court found “Skinner has properly invoked § 1983. Success in

his suit for DNA testing would not ‘necessarily imply’ the

invalidity of his conviction. While test results might prove

exculpatory, that outcome is hardly inevitable; . . .” Id. at

534.

In Alvarez, the Eleventh Circuit held that a plaintiff

proceeding under section 1983 who had unsuccessfully sought DNA

analysis in state court is barred from claiming that the state

officials violated his right to procedural due process by denying

the request. 679 F.3d at 1260, 1262. The Alvarez court held

that the Rooker-Feldman doctrine applies to a prisoner’s section

1983 claim that a state court misapplied its own DNA access

procedures because success on the prisoner’s claim would

“effectively nullify” the state court’s judgment. Alvarez, 679

F.3d at 1264.

Here, the Complaint does not invite federal court review and

reversal of the state court decisions. Plaintiff does not

challenge his underlying conviction (yet), the Florida statute, or

the rulings of the state court on his multiple postconviction

motions. Rather, petitioner asserts he has valid constitutional

right to DNA evidence under the circumstances of his case pursuant

to § 1983. Federal courts routinely handle this type of claim.

While the claims may not be viable, dismissal under the Rooker-

Feldman doctrine is not warranted.

B. First Cause of Action

In his first cause of action, Plaintiff asserts that ASA

Andrews is aware of the DNA evidence available in Washington State

but refuses to acquire it; this refusal is a deliberate decision

to prevent Plaintiff from obtaining the DNA evidence; and Plaintiff

needs the DNA evidence from Washington State because it would form

a basis for a “viable” postconviction motion that may result in

his acquittal and/or a ground for clemency. (Doc. 1 at 5, ¶¶ 9–

11). ASA Andrews’ refusal to acquire the DNA for comparison is

said to constitute a violation of “equal protection resulting from

a pattern of refusal to produce such evidence, once conviction has

been obtained.” (Id. ¶12.)

The Equal Protection Clause of the Fourteenth Amendment

prohibits states from denying people the equal protection of the

laws, which means “all persons similarly situated should be treated

alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

439 (1985) (quotation marks omitted). To state an equal protection

claim, a plaintiff must show (1) that he is similarly situated to

others who have received more favorable treatment and (2) that the

state engaged in invidious discrimination against him based on

race, religion, national origin, or some other constitutionally

protected interest. Sweet v. Sec'y, Dep't of Corr., 467 F.3d 1311,

1318–19 (11th Cir. 2006). Even liberally construed, Plaintiff’s

first cause of action does not plausibly state any of the elements

of an equal protection claim.

The Court also liberally construes the first cause of action

as a claim asserting that the state has deprived him of his

constitutional right of access to the courts by denying him access

to the DNA evidence. Such a claim, however, is foreclosed by

Eleventh Circuit and Supreme Court precedent.

To show a violation of the constitutional right of access to

the courts, a prisoner must show an actual injury. Lewis v. Casey,

518 U.S. 343, 349 (1996); see also Cunningham v. District

Attorney’s Office, Escambia Co., 592 F.3d 1237, 1271 (11th Cir.

2010). To show actual injury, Plaintiff must have “‘a colorable

underlying claim for which he seeks relief.’” Alvarez, 679 F.3d

at 1266. Plaintiff admits that he has attempted (albeit

unsuccessfully) to obtain the DNA from Washington through state

procedures. Plaintiff does not show (or even allege) that those

procedures were inadequate—rather, he complains that they did not

result in the outcome he wanted. See Osborne, 557 U.S. at 73

(recognizing that it is the plaintiff’s “burden to demonstrate the

inadequacy of the state-law procedures available to him in state

postconviction relief.”) Plaintiff cannot demonstrate here that

he suffered an actual injury because he has not been prevented

from lodging this same cause of action in a court of law. Alvarez,

679 F.3d at 1267 (finding that Alvarez could not raise a colorable

claim that he was deprived of access to the courts by state action

because the State’s out-of-court refusal to provide DNA testing

did not prevent Alvarez from seeking release of the evidence in

state court (which he did)). Plaintiff’s First Cause of Action

must be dismissed for failure to plausibly state a claim on which

relief may be granted. Fed. R. Civ. P. 12(b)(6).

C. Second Cause of Action

Plaintiff’s Second Cause of Action asserts that ASA Andrews’

failure to obtain the DNA comparison violates his Eighth Amendment

right to be free from cruel and unusual punishment, presumably

because it would subject him to life in prison, even if access to

a DNA comparison would exonerate him. (Doc. 1 at 5–6, ¶¶ 13–14).

However, in Alvarez the Eleventh Circuit explained that Osborne

precludes an Eighth Amendment claim:

One of the main reasons underlying the decision in

Osborne is that it should be primarily up to the state

and federal legislatures to fashion procedures that

balance the powerful exonerating potential of DNA

evidence with the need for maintaining the existing

criminal justice framework and the finality of

convictions and sentences. For us to sweep aside

Florida's established procedures and constitutionalize

a right to access evidence for DNA testing under the

Sixth or Eighth Amendments would squarely conflict with

the Supreme Court's explicit rejection of an invitation

to suddenly constitutionalize this area. We can discern

no conceivable basis in this case, nor has Alvarez

provided us with one, for attempting an end-run around

the Osborne holding under the cloak of the Sixth or

Eighth Amendments.

Alvarez, 679 F.3d at 1265 (internal citations and quotation marks

omitted). This Court applies the same reasoning and concludes

that Plaintiff has not stated an Eighth Amendment claim based on

the refusal to compare the DNA found under the victim’s fingernails

to that of Beto Trevino. Plaintiff’s Second Cause of Action is

dismissed for failure to plausibly state a claim on which relief

may be granted. Fed. R. Civ. P. 12(b)(6).

Plaintiff’s argument about executive clemency fares no

better. The Supreme Court has held that there is no federal

constitutional right to executive clemency. See Conn. Bd. of

Pardons v. Dumschat, 452 U.S. 458, 464 (1981) (recognizing that a

convicted prisoner has no constitutional right to release before

the expiration of a valid sentence). Thus, executive clemency

“cannot be a basis for an access to courts claim.” Cunningham v.

Dist. Attorney's Office for Escambia Cnty., 592 F.3d 1237, 1272

(11th Cir. 2010). And Plaintiff’s clemency claim is also subject

to dismissal for failure to plausibly state a claim on which relief

may be granted. Fed. R. Civ. P. 12(b)(6).

D. Third Cause of Action

Plaintiff’s Third Cause of Action asserts that ASA Andrews’

intentional decision not to order comparison of the DNA deprives

him of due process of law. (Doc. 1 at 6, ¶ 15). The Supreme

Court has “made it abundantly clear that there is no freestanding

constitutional right to access evidence for DNA testing” and that

“the federal courts may only upset a state’s postconviction DNA

access procedures if they are fundamentally inadequate to

vindicate substantive rights.” Alvarez, 679 F.3d at 1258–59

(emphasis in original); see also D.A. Office for Third Judicial

Dist. v. Osborne, 557 U.S. 52, 73 (2009) (concluding that the

Supreme Court was “reluctant to enlist the Federal Judiciary in

creating a new constitutional code of rules for handling DNA”).

Thus, there is no substantive due process right to obtain evidence

for postconviction DNA testing purposes. Id. at 72–74.

Plaintiff’s Third Cause of Action must be dismissed for failure to

plausibly state a claim on which relief may be granted. Fed. R.

Civ. P. 12(b)(6).

E. Declaratory Relief

Plaintiff seeks a declaratory judgment stating that he is

entitled to a comparison of the DNA evidence pursuant to the Fifth,

Eighth, and Fourteenth Amendments to the United States

Constitution. But as set forth above, the Complaint makes no

plausible showing that he is entitled to such a declaration. The

requested declaratory relief is dismissed for failure to plausibly

state a claim on which relief may be granted. Fed. R. Civ. P.

12(b)(6).

IV. Conclusion

Plaintiff has not stated a claim on which relief may be

granted, and his complaint is subject to dismissal under Rule

6

12(b)(6) of the Federal Rules of Civil Procedure. Generally, a

plaintiff proceeding pro se must receive at least one opportunity

to amend the complaint if he might be able to state a claim by

doing so. Woldeab v. Dekalb Cty. Bd. of Educ., 885 F.3d 1289,

1291-92 (11th Cir. 2018).

Given the Eleventh Circuit’s conclusion that Florida’s DNA

access procedures are constitutional, see Alvarez, 679 F.3d at

1266 n.2, and given that Plaintiff was able to file a state

petition under Rule 3.853 of the Florida Rules of Criminal

Procedure seeking the DNA at issue here (Doc. 1 at 3), it appears

unlikely that Plaintiff will be able to state a cognizable section

1983 claim in an amended complaint. Nevertheless, Plaintiff may

amend his complaint to clarify the substance of his claims,

demonstrate that he did not receive the procedural process he was

due, and show how the DNA testing would exonerate him of the

offenses or mitigate his sentence.

Additionally, the Court notes that Plaintiff has named both

former Assistant State Attorney Kenneth E. Andrews and the State

of Florida as defendants. It is not clear that the state has been

separately served with process, and there is no need to do so at

6 Defendant Andrews also argues that Plaintiff’s claims are

barred by the statute of limitations and asserts multiple

immunities to any claim for damages. (Doc. 11 at 5–10). Because

Plaintiff’s claims are dismissed, the Court need not address these

arguments until and unless Plaintiff files an amended complaint.

this point because all claims are dismissed. However, cases

analyzing DNA testing claims under § 1983 are construed as actions

against the custodians of the evidence—generally, the current

State Attorney in his or her official capacity. See Skinner, 562

U.S. at 1295 (stating that Skinner named as the defendant “the

District Attorney whose office prosecuted Skinner and has custody

of the evidence Skinner would like to have DNA tested”); Alvarez,

679 F.3d at 1257 (bringing claim against the State Attorney for

the Eighteenth Judicial Circuit and the Attorney General of the

State of Florida); Caldwell v. McCabe, No. 8:11-cv-841-T-23AEP,

2013 WL 5532751 (M.D. Fla. Oct. 7, 2013) (bringing DNA-testing

claim against the State Attorney for the Sixth Judicial Circuit

Court). Thus, if Plaintiff files an amended complaint, he should

ensure that he names and serves the custodian of the DNA as the

proper defendant—in this case the current State Attorney for the

Twentieth Judicial Circuit in and for Collier County, Florida in

her official capacity.

Accordingly, it is now ORDERED:

1. The Defendants’ Motion to Dismiss (Doc. 11) is GRANTED

to the extent set forth above.

2. The Complaint filed by Daniel Trevino (Doc. 1) is

DISMISSED WITHOUT PREJUDICE under Rule 12(b)(6) Of the

Federal Rules of Civil Procedure as to both Defendant

Kenneth E. Andrews and the State of Florida.

3. Plaintiff may file an amended complaint against the

State Attorney for the Twentieth Judicial Circuit in and

for Collier County, Florida in her official capacity

within thirty (30) days of the date of this Opinion and

Order. If Plaintiff does not timely file an amended

complaint, the Court will dismiss this action without

further notice for failure to prosecute. ’

DONE AND ORDERED at Fort Myers, Florida, this 3rd day of April

2023.

Dm af

VW) Lee

JGHH E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTIMP-2

Copies to: Daniel Trevino, Counsel of Record

7 Notice to Plaintiff. Plaintiff must also effectuate

service of process on the State Attorney for the Twentieth Judicial

Circuit in and for Collier County, Florida. If the defendant is

not served within $90 days of Plaintiff’s amended complaint (or

Plaintiff does not provide good cause for his failure to do so)

this action will be dismissed without further notice under Rule

4(m) of the Federal Rules of Civil Procedure.