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, Collier

County Florida, State

Attorney,

Defendant.

/

OPINION AND ORDER

Plaintiff Daniel Trevino (“Plaintiff” or “Trevino”),

proceeding pro se, brings the instant action under 42 U.S.C. §

1983. He essentially seeks to compel the State Attorney’s Office

to compare deoxyribonucleic acid (DNA) found under the fingernails

of the murder victim in his state criminal case with DNA currently

in the possession of officials in the State of Washington. (Doc.

1). Trevino’s amended complaint (Doc. 15) and the defendant’s

motion to dismiss (Doc. 16) are presently before the Court.

Upon careful consideration of the amended complaint, the

defendants’ motion to dismiss, and pertinent law, the Court

concludes that the amended complaint must be dismissed for failure

to state a claim on which relief may be granted.

I. Procedural History

A. Case Background

To provide background and context for the allegations and

claims in Trevino’s complaint and amended complaint, the Court

takes notice of its prior order on Trevino’s 28 U.S.C. § 2254

habeas petition, which contained a detailed history of Trevino’s

underlying criminal case and postconviction proceedings. See

Trevino v. McNeil, No. 2:06-cv-41-JES-DNF, 2009 WL 804528 (M.D.

Fla. Mar. 26, 2009) (the “Habeas Order”). In 1997, Trevino was

found guilty of first-degree murder. Id. at *2. In a written

order, entered at the conclusion of the guilt phase of Trevino’s

death-penalty trial, the state trial judge noted that both Daniel

Trevino and Beto Trevino (“Beto”) were arrested for the murder of

Michael Lovett. Id. at *19–20. The judge recognized that,

because there was more than one defendant, the evidence was

insufficient to show that Daniel Trevino was the actual killer of

Michael Lovett. Id. at *19. The judge also recognized that the

police investigator’s probable cause affidavit suggested that Beto

was the person who actually fired the weapon, killing Mr. Lovett,

but “[t]he investigation of the Collier County Sheriff’s

Department . . . viewed both defendants as equally culpable.” Id.

The court noted that “circumstantial evidence could equally

sustain the conclusion that Daniel Trevino was aiding and abetting

a felony in the course of which a murder was committed by others

but he himself did not kill, attempt to kill, or intend that a

killing take place[.]” Id. at *20. The state court sentenced

Trevino to life in prison without the possibility of parole. Id.

at *2.

In a subsequent state postconviction motion, Trevino argued

that defense counsel was constitutionally ineffective for failing

to have DNA recovered from the victim’s body tested and compared

to Beto’s DNA prior to trial. Habeas Order, at *16. In rejecting

this ineffective assistance 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

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Defendant’s culpability in this case.” Id. at *17.

The Court also takes notice of a May 6, 2019 order from the

Twentieth Judicial Circuit Court in and for Collier County, which

ruled on Trevino’s fourth petition for postconviction DNA testing.

The state court explained and denied Trevino’s request as follows:

In the instant motion the Defendant

specifically seeks an order from this Court

directing the Codis Crime Lab Manager of the

Washington State Patrol to provide this Court

a DNA profile from Robert “Beto” Trevino.

Defendant asserts that he witnessed Beto

commit the murder in this case and that

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Under the principal theory of murder, a person who “aids,

abets, counsels, hires, or otherwise procures” the murder “is a

principal in the first degree and may be charged, convicted, and

punished as such.” Fla. Stat. § 777.011.

comparing Beto’s DNA profile to one sample

taken from the victim’s fingernails will prove

that Defendant is innocent. Defendant

alleges that Beto was killed in 1998 but was

an inmate in Washington State in the early

1990s and therefore, his DNA profile would be

stored in the CODIS system.

. . .

In the present case, the Defendant admits to

being at the crime scene and intends to prove

someone was present at the crime scene with

him. The fact that Beto and the victim may

have struggled does not affect the Defendant’s

culpability in this case. Defendant admitted

to his presence at the scene of the murder,

therefore any comparative analysis of DNA

profiles will not shed any light on the

Defendant’s innocence or guilt. As indicated

in the Court’s prior orders on the Defendant’s

motions for Postconviction DNA testing, the

presence of another person’s DNA does not

establish that Defendant was not at the crime

scene or that he did not commit the murder.

Hitchcock v. State, 866 So. 2d 23 (Fla. 2004).

The Defendant has failed to demonstrate how

comparing DNA profiles would lead to a

reasonable probability of acquittal or a

lesser sentence. Bates v. State, 3 So.3d

1091, 1098 (Fla. 2009).

(See Case No. 96-1321CF, Twentieth Judicial Circuit Court in and

for Collier County, Florida at docket entry 698) (“Order, State

DNA Petition”). 2

2 The Court notices the Habeas Order and the order on

Trevino’s state petition to provide background for this section

1983 complaint. While the contents of the earlier orders help

clarify Trevino’s claims here, nothing contained in the orders was

necessary to the Court’s conclusions.

B. First Complaint and Motion to Dismiss

Trevino initiated this action on December 13, 2021 by filing

a pro se complaint under 42 U.S.C. § 1983. (Doc. 1). In his

original complaint, Trevino sought to compare the DNA recovered

from under the murder victim’s fingernails to that of his co-

defendant “Beto.” (Id.) Specifically, Trevino asserted that

Defendant Andrews “refuses to exercise obligations of his office

. . . to have the DNA in Trevino’s case compared with the DNA . .

. being held in the CODIS of Washington State[.]” (Doc. 1 at 3,

¶ 5). Trevino asserted that ASA Andrew’s refusal to facilitate

the comparison of the DNA: (1) violated equal protection; (2)

violated the Eighth Amendment; and (3) violated due process.

(Doc. 1 at 6–7, ¶ 16). The defendants filed a motion to dismiss,

arguing, among other things, that the claims were barred under the

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Rooker-Feldman doctrine and that Trevino had not stated a claim

on which relief could be granted. (Doc. 11).

In a considered opinion, the Court found that—while Trevino’s

claims were not barred from review under Rooker-Feldman—he had not

stated a claim on which relief could be granted. (Doc. 14 at 6–

3

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 Court noted that Plaintiff’s

original complaint did not “invite federal court review and

reversal of [any] state court decisions . . . Rather, [Plaintiff]

asserts he has a valid right to DNA evidence under the

circumstances of his case pursuant to § 1983.” (Doc. 14 at 8).

13). Therefore, the Court dismissed the complaint under Rule

12(b)(6) of the Federal Rules of Civil Procedure. (Id. at 13).

Trevino was provided an opportunity to amend his complaint, but

the Court noted the following:

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.

(Id. at 14–15). The Court also instructed Trevino that he was

required to serve the current State Attorney for the Twentieth

Judicial Circuit in and for Collier County, Florida in her official

capacity and cautioned him that his failure to effectuate service

within ninety days of filing his amended complaint would result in

the dismissal of this action without further notice. (Id. at 16).

C. Pleadings

Trevino filed an amended complaint on May 18, 2023, this time

naming “Kenneth E. Andrews, or his successor” as the sole

defendants and generally questioning the constitutionality of

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portions of Florida’s DNA-testing statutes. (Doc. 15).

Defendants filed a second motion to dismiss. (Doc. 16).

They assert that: (1) Kenneth Andrews is not the proper defendant

in this case; (2) Trevino has not stated a claim on which relief

may be granted; (3) the defendant is entitled to prosecutorial

immunity; (4) the defendant is entitled to qualified immunity; and

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(5) the defense is entitled to Eleventh Amendment immunity. (Id.)

II. Standard of Review

On a motion to dismiss, this Court accepts as true the

allegations in the complaint and construes them in the light most

favorable to the plaintiff. Jackson v. BellSouth Telecomms., 372

F.3d 1250, 1262–63 (11th Cir. 2004). Further, this Court favors

the plaintiff with all reasonable inferences from the allegations

in the complaint. Stephens v. Dep’t of Health & Human Servs., 901

F.2d 1571, 1573 (11th Cir. 1990) (“On a motion to dismiss, the

facts stated in [the] complaint and all reasonable inferences

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Nothing in the record suggests that Plaintiff effectuated

service on the successor state attorney.

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Plaintiff has neither responded to the motion to dismiss

nor amended his complaint, and the time to do so has passed.

Plaintiff was 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

at 6, ¶9). As to motions to dismiss in particular, Plaintiff was

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

days. (Id. ¶ 9(a)). Even so, the Court has carefully reviewed

the allegations in the amended complaint to determine whether

Plaintiff has stated one or more claims on which relief may be

granted.

therefrom are taken as true.”). However, the Supreme Court has

explained that factual allegations must be more than speculative:

While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed

factual allegations, a plaintiff’s obligation

to provide the grounds of his entitlement to

relief requires more than labels and

conclusions, and a formulaic recitation of the

elements of a cause of action will not do.

Factual allegations must be enough to raise a

right to relief above the speculative level.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

citations and quotation marks omitted). Further, courts are not

“bound to accept as true a legal conclusion couched as a factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court,

referring to its decision in Twombly, set forth a two-pronged

approach to motions to dismiss. First, a reviewing court must

determine whether a plaintiff’s allegation is merely an

unsupported legal conclusion that is not entitled to an assumption

of truth. Next, the court must determine whether the complaint’s

factual allegations state a claim for relief that is plausible on

its face. Iqbal, 556 U.S. at 679. Evaluating a complaint under

Rule 12(b)(6) is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense.” Id.

III. Discussion

Trevino petitioned in state court, under Florida Statute §

925.11 and Rule 3.853 of the Florida Rules of Criminal Procedure,

“for a comparative DNA analysis test that would prove Robert

Trevino, and not Daniel Trevino, actually murdered the victim of

his charged crime.” (Doc. 15 at 3); see also Order on State DNA

Petition, Part I(A) supra. His petition was denied by the state

courts, and Trevino now argues that Defendant Andrews “unfairly

exploit[ed]” a “loophole” in Florida Statute § 925.11(2)(f)(3)

that “gives the court the discretion to deny any request [for DNA

testing] if the petitioner cannot prove the evidence would result

in either an acquittal at trial or a reduced sentence.” (Id. at

3, 4). Specifically, Trevino disagrees with the portion of the

state order denying his request for DNA testing and finding that

“[Trevino] has failed to demonstrate how comparing DNA profiles

would lead to a reasonable probability of acquittal or a lesser

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sentence.” See Order, State DNA Petition, Part I(A) supra.

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Florida provides a statutory method for obtaining

postconviction DNA testing. These provisions require the state

court deciding a petition for DNA testing to consider whether the

evidence, if presented at trial, could have resulted in an

acquittal or mitigated the defendant’s sentence. See Fla. Stat.

§ 925.11(2)(f)(3) (stating that, when ruling on a motion for DNA

testing, the court shall make a finding of “[w]hether there is a

reasonable probability that the sentenced defendant would have

been acquitted or would have received a lesser sentence if the DNA

evidence had been admitted at trial”); Fla. R. Crim. P. 3.853

(b)(3) (requiring the movant to include a statement explaining how

the DNA testing “will exonerate the movant of the crime for which

Trevino does not argue that the Florida courts erroneously

applied or misinterpreted Florida’s DNA access procedures when

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they denied his four petitions for DNA testing. In fact, he

concedes that he “was charged [and convicted] under the principal

theory of the murder statute,” and, although labeling it a

“loophole,” he also concedes that Florida’s DNA statutes require

state courts to consider whether the DNA evidence sought by the

petitioner would have resulted in an acquittal or reduced sentence

if offered at trial. (See Doc. 15 at 3, 4–5) (referring to Florida

Statute § 925.11(2)(f)(3)).

Rather, Trevino now argues that Florida Statute §

925.11(2)(f)(3) is flawed and unconstitutional because it only

requires the state court to consider whether additional DNA testing

could have led to an acquittal or to a lesser sentence if the

evidence had been available at trial. (See Doc. 15 at 6 (stating

that “statute 925.11(2)(f) no longer affords the 6th amendment

process it was enacted to enforce”)). Specifically, Trevino

argues that, absent this “loophole,” the courts could also consider

the movant was sentenced” or “mitigate the sentence received by

the movant for that crime”).

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Nor could he. In Alvarez v. Att’y Gen. for Fla., 679 F.3d

1257, 1262–63 (11th Cir. 2012), the Eleventh Circuit explained

that a complaint alleging that a state court wrongfully denied DNA

evidence under a state statute, but not complaining that the

statute itself was flawed, would be barred by the Rooker-Feldman

doctrine.

whether, if offered at trial, the DNA evidence would have

encouraged the jury to use their “pardon powers” to find the

petitioner guilty of a lesser-included offense. (Id. at 4).

Trevino asserts that requiring him to demonstrate that the DNA

found under the victim’s fingernails would have exonerated him or

mitigated his sentence overlooks the possibility that—while the

DNA results would not, in the strictest sense, affect his murder

conviction as a principal—he could have received a “jury pardon”

and been convicted of a lesser-included crime if the jury had been

offered additional evidence showing that Beto had been in a

physical altercation with the victim before killing him. (Id. at

6–7). In other words, Trevino argues that section 925.11(2)(f)(3)

fails to contemplate that the jury might overlook the law and jury

instructions in certain cases and acquit a defendant who is charged

only as a principal. This argument fails for two reasons.

First, while the Supreme Court has recognized that “the jury

has the power to bring in a verdict in the teeth of both law and

facts,” Horning v. District of Columbia, 254 U.S. 135, 137–40

(1920), courts have long recognized that “the jury’s de facto power

to refuse to apply the law as instructed by the court . . . is in

dereliction of the jury’s sworn duty.” United States v. Funches,

135 F.3d 1405, 1408 (11th Cir. 1998). See also Sanders v. State,

946 So.2d 953, 958 (Fla. 2006) (“By definition, jury pardons

violate the oath jurors must take before trial, as well as the

instructions the trial court gives them.”); United States v.

Powell, 469 U.S. 57, 66 (1984) (“Jurors, of course, take an oath

to follow the law as charged, and they are expected to follow

it.”). And given the disfavor with which “jury pardons” are viewed

in both state and federal courts, it is beyond dispute that Trevino

has no constitutional right to one.

Second, in District Atty’s Office for the Third Judicial

Circuit v. Osborne, 557 U.S. 52 (2009), the Supreme Court endorsed

the DNA testing procedures set forth in Alaska and federal

statutes. Both the Alaska and federal DNA-testing statutes

contain provisions that are similar to Florida’s rules in that

they require the applicant to identify a theory of defense that

would establish his or her actual innocence or raise a reasonable

probability that the applicant did not commit the offense before

DNA testing will be ordered. See, e.g., Ak. Sat. § 12.73.020 (9)

(allowing the court to order postconviction DNA testing of evidence

when the proposed DNA testing would “raise a reasonable probability

that the applicant did not commit the offense”); 18 U.S.C. §

3600(a) (1), (8)(requiring the court ordering testing to find that

the testing could produce evidence that would “raise a reasonable

probability that the applicant did not commit the offense”).

While containing similar provisions as the Alaska and federal

DNA statutes regarding the state court’s consideration of whether

the DNA evidence could exonerate the petitioner, the Florida DNA

statutes also direct the court to consider the effect of the DNA

8

evidence on the petitioner’s sentence. Given that Florida’s DNA-

testing statute allows a reviewing court to consider whether the

DNA evidence will exonerate a prisoner or merely mitigate his

sentence, it is more applicant-friendly than either the Alaska or

federal provisions. And as recognized by the Eleventh Circuit in

Alvarez:

[I]nasmuch as Florida’s postconviction DNA

access procedures either mirror or are more

applicant-friendly than the Alaska and federal

statutes endorsed in Osborne, Florida’s

postconviction DNA access procedures plainly

do not offend any principle of justice so

rooted in the traditions and conscience of our

people as to be ranked as fundamental, nor do

they transgress any recognized principle of

fundamental fairness in operation.

679 F.3d at 1266 n.2 (citing Osborne, 129 S. Ct. at 2320).

Applying this clear directive from Alvarez, this Court finds that

the portion of Florida’s DNA-access procedures requiring the state

court to consider whether the DNA evidence would exonerate the

petitioner or reduce his sentence is not unconstitutional because

it mirrors in part, and is more applicant friendly, than statutes

approved by the Supreme Court. While Trevino disagrees with the

Eleventh Circuit’s conclusion on this matter (see Doc. 15 at 6),

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See Fla. Stat. 925.11(2)(f)3(directing the court to consider

whether a petitioner would have been acquitted or received a lesser

sentence if the evidence had been admitted at trial); Fla. R. Crim.

P. 3.853 (stating that the movant must explain how the DNA testing

will exonerate him or mitigate his sentence).

this Court is not free to ignore binding Supreme Court or Eleventh

Circuit precedent in favor of what he views to be a better line of

reasoning. See Jaffree v. Wallace, 705 F.2d 1526, 1533 (11th Cir.

1983) (“Judicial precedence serves as the foundation of our federal

judicial system. Adherence to it results in stability and

predictability.”).

IV. Conclusion

Liberally construing the arguments raised in Trevino’s

amended complaint, the Court finds that he has not stated a claim

9

on which relief may be granted. Because Trevino’s theory of

relief is foreclosed by binding precedent, a second amendment of

his complaint would be futile. Accordingly, the dismissal is

without leave to amend. See Silberman v. Miami Dade Transit, 927

F.3d 1123, 1133 (11th Cir. 2019) (recognizing that the court need

not provide a pro se plaintiff an additional chance to amend if

amendment would be futile).

Accordingly, it is now ORDERED:

1. The Defendants’ Motion to Dismiss (Doc. 16) is GRANTED.

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To the extent Trevino intended to raise additional claims

or arguments in his amended complaint, they are dismissed under

Rules 8 and 10 of the Federal Rules of Civil Procedure and for

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

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

2. The amended 42 U.S.C. § 1983 complaint filed by Daniel

Trevino (Doc. 15) is DISMISSED for failure to state a claim on

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

3. The Clerk of Court is directed to terminate any pending

motions, close this case, and enter judgment in favor of the

defendants.

DONE AND ORDERED in Fort Myers, Florida on December 5, 2023.

Not & AKL.

JGHH E. STEELE

Sq IGOR UNITED STATES DISTRICT JUDGE

SA: FIMP-2

Copies: Daniel Trevino, counsel of record