# Trevino v. Andrews

> District Court, M.D. Florida · December 5, 2023

URL: https://www.frixlaw.com/law-library/cases/10114578

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 5, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10114578

## How later opinions describe it (automated extraction)

- recognizing that the court need not provide a pro se plaintiff an additional chance to amend if amendment would be futile

## Opinion text

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
1
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

1
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
3
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
4
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
5
(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

4
Nothing in the record suggests that Plaintiff effectuated
service on the successor state attorney.
5
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
6
sentence.” See Order, State DNA Petition, Part I(A) supra.

6
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
7
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”).
7
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),

8
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.

9
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10114578. Public record. Not legal advice.