Trease v. Secretary, Department of Corrections (Sarasota County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ROBERT J. TREASE,

Applicant,

v. CASE NO. 8:11-cv-233-SDM-TGW

DEATH PENALTY

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

AMENDED ORDER

Trease applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)

and challenges the validity of both his conviction for murder and his sentence of death.

An earlier order both determined that the application is time-barred and permitted

Trease an opportunity to present the factual and legal basis for his asserting “actual

innocence” to overcome the limitation. (Doc. 26) Another order (Doc. 43) dismisses

Trease’s application after determining that his asserted actual innocence fails to entitle

him to federal review. Trease moved (Doc. 70) under Rule 59(e), Federal Rules of Civil

Procedure, and he argued that the latter order commingles the two different burdens for

showing entitlement to federal review based on actual innocence, specifically, the lesser

burden required to overcome a procedural default based on actual innocence and the

greater burden required to prove a “free standing” claim of actual innocence. To avoid

potential confusion, the district court granted (Doc. 72) the Rule 59(e) motion and

vacated the earlier order (Doc. 43) of dismissal.

The earlier order of dismissal was divided into four sections. The first section

addresses Trease’s pro se attempt to discharge counsel and the second section discusses

actual innocence as a gateway to review a procedurally defaulted or untimely

constitutional claim. The third section evaluates Trease’s evidence of actual innocence,

and the last section determines that Trease is entitled to no relief. Trease’s Rule 59(e)

motion challenged the last two sections but not the first two sections. Because the

earlier order of dismissal was vacated, the following order of dismissal re-states

(without material alteration) the first two sections and amends the last two sections to

eliminate prospective confusion about Trease’s lack of entitlement to relief under the

actual innocence exception for his procedurally defaulted and time-barred claims.

I.

TREASE’S PRO SE ATTEMPT TO DISCHARGE COUNSEL

Four times Trease changed his mind during the state proceedings, in addition to

changing his mind in this federal proceeding. First, Trease disavowed counsel’s

pursuing post-conviction relief, which caused both the delay of state post-conviction

review and the loss of tolling the federal one-year limitation. As thoroughly discussed

in the earlier order (Doc. 26 at 4–6), the present action is untimely because the

limitation was not tolled. Second, after the one-year deadline passed Trease changed

his mind about pursuing state post-conviction review, and the state court re-instated

his motion for post-conviction relief.

Third, after having cooperated in the post-conviction proceedings and while the

ensuing appeal was pending, Trease moved to discharge counsel and withdraw his

appeal. As a consequence, Florida’s supreme court relinquished jurisdiction for the

post-conviction court to determine whether Trease understood the impact of

withdrawing his appeal. As reported at Trease v. State, 41 So. 3d 119, 121–22 (Fla.

2010) (“Trease II”), after thoroughly questioning him the post-conviction court both

ensured Trease understood the consequences of withdrawing his appeal and permitted

the withdrawal of the motion for post-conviction relief.

Fourth, on the subsequent mandatory review of the post-conviction court’s

permitting Trease to withdraw his challenge to his conviction and sentence, Trease

again changed his mind and asked Florida’s supreme court to re-instate his appeal, a

request rejected in Trease II, 41 So. 3d at 126 (brackets original).

If this Court were to allow Trease to reinstate his post-conviction

proceedings based upon a mere change of mind, there would be

nothing to stop Trease from changing his mind again at a later

date. In fact, based upon Trease’s history, this is a likely scenario.

Then, the trial court would be required to conduct another

Durocher hearing because Trease has a right to waive post-

conviction counsel and proceedings. Thereafter, Trease could

again change his mind, and the trial court would be required to

reinstate the post-conviction proceedings. The cycle could

continue indefinitely. Cf. Waterhouse v. State, 596 So. 2d 1008,

1014 (Fla. 1992) (“[A] defendant may not manipulate the

proceedings by willy-nilly leaping back and forth between the

choices [of self-representation and appointed counsel].” (quoting

Jones v. State, 449 So. 2d 253, 259 (Fla.1984))).

After accepting the post-conviction court’s determination that he was competent to

withdraw his appeal, Trease II dismisses Trease’s appeal from the denial of post-

conviction relief.

Trease commenced this federal action with the same appointed counsel as in the

state post-conviction proceedings. After the earlier order determined the untimeliness

of this action and after the actual-innocence issue was briefed, Trease announced

another change of mind and both advises that he has dismissed counsel and requests

the dismissal of this action. (Doc. 36) The respondent moves (Doc. 37) to determine

whether Trease proceeds pro se or is represented by appointed counsel. In response,

Trease again moves to “discharge counsel and to discharge appeal.” (Doc. 38)

Trease’s appointed counsel both asserts that he remains as counsel representing Trease

until relieved by court order and encourages the district court to ignore the pro se

papers. (Doc. 40) First, responding to counsel’s arguments, Trease pro se files an

affidavit (Doc. 41), in which he again declares that he discharges counsel. Second,

Trease pro se moves to compel (Doc. 42) a ruling on his earlier motion to “discharge

counsel, and to discharge appeal and to uplift stay without delay.” The district court

had paused to await from Trease another change of mind, but (thus far) Trease persists

in the demand to discharge counsel. (Doc. 41 and 42) This case is ripe for decision on

whether Trease is entitled to a review of his conviction and sentence based on his

assertion of actual innocence. Trease II recognizes the need to prevent a petitioner’s

“manipulat[ing] the proceedings by willy-nilly leaping back and forth between the

choices . . . .” Given Trease’s erratic (and arguably manipulative) history, prudence

commends not discharging counsel during this mature phase of his action and at this

decisive moment in his action.

II.

ACTUAL INNOCENCE GATEWAY

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

petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration

of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). Proving

actual innocence is rare and, as explained in Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d

1000, 1010–11 (11th Cir. 2012), a claim of actual innocence can occur in a habeas

proceeding (1) when actual innocence is asserted as a “freestanding” constitutional

claim, (2) when actual innocence is asserted as a gateway to review a procedurally

defaulted constitutional claim, and (3) when actual innocence is asserted as a gateway

to review an untimely constitutional claim.

Our cases refer to an “actual innocence” claim in at least three

different types of habeas cases. In the first type, a petitioner’s

actual innocence is itself the constitutional basis of the habeas

petition. See Herrera v. Collins, 506 U.S. 390, 400, 113 S. Ct. 853,

860, 122 L. Ed. 2d 203 (1993) (holding that no federal habeas

relief is available for freestanding, non-capital claims of actual

innocence); Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1356

(11th Cir. 2007) (same). This is not Rozzelle’s type of claim.

In the other two types of actual innocence claims, the petitioner’s

assertion of innocence is not itself a freestanding claim, but

merely serves as a “gateway” to get the federal court to consider

claims that the federal court would otherwise be barred from

hearing. “To successfully plead actual innocence, a petitioner

must show that his conviction resulted from ‘a constitutional

violation.’” Johnson, 513 F.3d at 1334[1] (quoting Schlup v. Delo,

513 U.S. 298, 327, 115 S. Ct. 851, 867, 130 L. Ed. 2d 808 (1995)).

In the second type, a petitioner’s actual innocence serves as a

gateway to consideration of constitutional claims procedurally

1 Johnson v. Fla. Dep’t of Corr., 513 F.3d 1328, 1333 (11th Cir. 2008).

defaulted in state court, such as failure to exhaust state remedies,

failure to satisfy state filing requirements, et cetera. See Johnson v.

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (explaining that

claim of actual innocence must be supported by “reliable evidence

not presented at trial” (internal quotation mark omitted)); see also

Schlup, 513 U.S. at 324, 115 S. Ct. at 865 (holding that for habeas

court to consider procedurally barred constitutional claims,

petitioner must present “new reliable evidence” of actual

innocence). To bypass such a procedural bar, a petitioner must

show either (1) cause and prejudice or (2) a miscarriage of justice,

or “actual innocence.” Schlup, 513 U.S. at 314–15, 115 S. Ct. at

860–61. The actual innocence exception to the procedural bar is

not meant to remedy ordinary errors in criminal judgments but is

narrowly reserved for only “fundamental miscarriage[s] of

justice.” Id. at 315, 115 S. Ct. at 861. To overcome procedural

default through a showing of actual innocence, the petitioner must

present “reliable evidence . . . not presented at trial” such that “it

is more likely than not that no reasonable juror would have

convicted him of the underlying offense.” Johnson, 256 F.3d at

1171 (quoting Schlup, 513 U.S. at 324, 327, 115 S. Ct. at 865, 867

(internal quotation mark omitted)).

In the third situation, a habeas petitioner claims his actual

innocence should serve as a gateway to consideration of

constitutional claims time-barred under AEDPA’s one-year

limitation period. See 28 U.S.C. § 2244(d); Johnson, 513 F.3d at

1333–34; Arthur, 452 F.3d at 1244–46. This is Rozzelle’s type of

claim. Because the standards for actual innocence in cases of

procedural default and untimely federal habeas petitions derive

from the Supreme Court’s decision in Schlup, we have at times

conflated these two case types. See Arthur, 452 F.3d at 1245

(applying the concept of the actual innocence exception to

“procedural bar” to the Arthur case involving an AEDPA-time-

barred § 2254 petition). Therefore, like the actual innocence

exception for procedural default, the alleged exception for

AEDPA untimeliness would require the petitioner (1) to present

“new reliable evidence . . . that was not presented at trial,”

Arthur, 452 F.3d at 1245 (quoting Schlup, 513 U.S. at 324, 115

S. Ct. at 865), and (2) to 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. Johnson, 513 F.3d

at 1334 (quoting Schlup, 513 U.S. at 327, 115 S. Ct. at 867); see also

House v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 2077, 165 L. Ed.

2d 1 (2006).

As Rozzelle explains, the actual innocence burden is the same for claims that are

either procedurally defaulted or time-barred. Trease’s situation is in both the second

and the third situations described in Rozzelle because his claims are both procedurally

defaulted and time-barred.

A. Dual Preclusion to Federal Review

1. Exhaustion and Procedural Default

The second situation that Rozzelle identifies involves a procedurally defaulted

claim. A petitioner must present each claim to a state court before raising the claim in

federal court. “[E]xhaustion of state remedies requires that petitioners ‘fairly presen[t]’

federal claims to the state courts in order to give the State the ‘opportunity to pass

upon and correct’ alleged violations of its prisoners’ federal rights.” Duncan v. Henry,

513 U.S. 364, 365 (1995), quoting Picard v. Connor, 404 U.S. 270, 275 (1971). Accord

Rose v. Lundy, 455 U.S. 509, 518–19 (1982) (“A rigorously enforced total exhaustion

rule will encourage state prisoners to seek full relief first from the state courts, thus

giving those courts the first opportunity to review all claims of constitutional error.”).

When he changed his mind the second time, Trease forced the withdrawal of his post-

conviction appeal. As a consequence, in dismissing the appeal (1) Trease II affirmed

the post-conviction court’s granting Trease’s request to withdraw his challenge to his

conviction and sentence, (2) Trease’s abandonment of his appeal precluded Florida’s

supreme court from reviewing the merits of his post-conviction claims, and (3) Trease

failed to exhaust his available state court remedies. See Upshaw v. Singletary, 70 F.3d

576, 578 (11th Cir. 1995) (“[T]he applicant must have fairly apprised the highest court

of his state with the appropriate jurisdiction of the federal rights which allegedly were

violated.”).

The failure to properly exhaust each available state court remedy causes a

procedural default of the unexhausted claim. See O’Sullivan v. Boerckel, 526 U.S. 838,

847 (1999) (“Boerckel’s failure to present three of his federal habeas claims to the

Illinois Supreme Court in a timely fashion has resulted in a procedural default of those

claims.”). To overcome the procedural default, Trease must establish either (1) “cause

for the default and prejudice attributable thereto” or (2) “that failure to consider [the

defaulted] claim will result in a fundamental miscarriage of justice.” Harris v. Reed, 489

U.S. 255, 262 (1989).

To demonstrate “cause” for his procedural default, Trease must justify his

failure to comply with Florida’s procedural rules. In general, “the existence of cause

for a procedural default must ordinarily turn on whether the prisoner can show that

some objective factor external to the defense impeded . . . efforts to comply with the

state procedural rules.” Murray v. Carrier, 477 U.S. at 488. See Marek v. Singletary,

62 F.3d 1295, 1302 (11th Cir. 1995). Even if he shows cause for his procedural default,

Trease must show prejudice arising from the alleged constitutional error. A petitioner

must show that he suffered actual prejudice, “not merely that the errors of the trial

created a possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional dimensions.” United

States v. Frady, 456 U.S. 152, 170 (1982) (emphasis original). Accord Hollis v. Davis,

941 F.2d 1471, 1480 (11th Cir. 1991). To excuse his procedural default Trease must

show both “cause” and “prejudice.” Trease cannot meet the “cause” requirement.

Rather than something external to the defense, Trease himself precluded his exhausting

the state court remedies when he withdrew his motion for post-conviction relief and

abandoned his appeal.

As an alternative to showing “cause and prejudice,” Trease must show that

dismissal of his procedurally defaulted grounds will result in a “fundamental

miscarriage of justice,” an especial difficulty because Trease must demonstrate “actual

innocence” of the crime of conviction. See Smith v. Murray, 477 U.S. 527, 537 (1986)

(citing Murray v. Carrier, 477 U.S. at 496). See also Engle v. Isacc, 456 U.S. 107, 134–35

(1982), and Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)2 (denying a certificate of

probable cause and holding that a petitioner must show “as a factual matter that he did

not commit the crime of conviction.”). Additionally, to meet the “fundamental

miscarriage of justice” exception, Trease must show constitutional error coupled with

“new reliable evidence –– whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence –– that was not presented at trial.”

Schlup v. Delo, 513 U.S. 298, 324 (1995). Trease’s attempt to show his actual innocence

is discussed below.

2 Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued before

October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en

banc).

2. Statute of Limitation

The third situation that Rozzelle identifies involves an untimely claim. The earlier

order (Doc. 26) determines that Trease’s application is untimely. As Perkins, 133 S. Ct.

at 1928 (brackets original), explains, proof of actual innocence will overcome the

statute of limitation and the burden is the Schlup standard:

“[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).

B. Forfeiture of Federal Review

Trease abuses the judicial process by repeatedly changing his mind. See

Trease II, 41 So. 3d at 126 (characterizing a similar situation as “willy-nilly leaping

back and forth”) (quoting Jones v. State, 449 So. 2d 253, 259 (Fla. 1984)). Trease asserts

no entitlement to a new limitation under Section 2244(d)(1)(D) based on “newly

discovered evidence” because that provision requires the exercise of due diligence. See

Johnson v. United States, 544 U.S. 295, 310 (2005) (rejecting entitlement to a new

limitation for “newly discovered evidence” because of the lack of due diligence).

Fortunately for Trease, due diligence is not a threshold requirement for showing actual

innocence. Perkins, 569 U.S. at 399 (“[W]e reject the State’s argument that habeas

petitioners who assert convincing actual-innocence claims must prove diligence to

cross a federal court’s threshold . . . .”). Nevertheless, a petitioner’s diligence in

asserting a claim of actual innocence is “part of the assessment [in determining]

whether actual innocence has been convincingly shown . . . .” Perkins, 569 U.S. at 399.

Lastly, Perkins, 569 U.S. at 400, explains that the focus is on the evidence.

Focusing on the merits of a petitioner’s actual innocence claim

and taking account of delay in that context, rather than treating

timeliness as a threshold inquiry, is tuned to the rationale

underlying the miscarriage of justice exception –– i.e., ensuring

“that federal constitutional errors do not result in the incarceration

of innocent persons.” Herrera, 506 U.S., at 404, 113 S. Ct. 853.

III.

TREASE’S EVIDENCE OF ACTUAL INNOCENCE

As explained above, Trease’s burden is to both “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, 672 F.3d 1000, 1011 (quoting Schlup, 513 U.S. at 327).

Moreover, in determining whether the burden is met, “Schlup makes plain that the

habeas court must consider ‘all the evidence,’ old and new, incriminating and

exculpatory, without regard to whether it would necessarily be admitted under ‘rules of

admissibility that would govern at trial.’ ” House, 547 U.S. at 538 (quoting Schlup, 513

U.S. at 328). And House, 547 U.S. at 538, further explains that the Schlup standard is

difficult to meet because “[a] petitioner’s burden at the gateway stage is to demonstrate

that more likely than not, in light of the new evidence, no reasonable juror would find

him guilty beyond a reasonable doubt, or, to remove the double negative, that more

likely than not any reasonable juror would have reasonable doubt.”

A. The Evidence at Trial

Whether Trease can meet this burden requires an understanding of the evidence

that supports Trease’s conviction. Some of the operative facts supporting the

conviction, as found in Trease v. State, 768 So. 2d 1050, 1052 (Fla. 2000) (“Trease I”), are

as follows:

On August 17, 1995, Hope Siegel arranged a date with the

victim, Paul Edenson, so Trease could learn where the victim hid

his safe. When Siegel arrived at the victim’s home they talked for

a while, after which Siegel departed and walked to Trease’s

location, and told him that the victim did not have a safe. Trease

followed her back to the victim’s house where he surprised the

victim and battered him in an effort to get the sought-after

information. Upon the victim’s insistence that he did not have a

safe in the house, Trease told Siegel to get a gun which Trease

put to the victim’s head as he continued the questioning. The

victim remained uncooperative so Trease fired a nonlethal bullet

into his head and then sent Siegel for a knife with which he cut

the victim’s throat. An expert medical witness testified that the

victim would have died a few minutes later.

Subsequent to their arrest, Trease denied any knowledge of the

crime, but Siegel made a taped statement implicating both. The

State had no physical evidence tying Trease to the crime, so

Siegel’s testimony was critical at trial. The jury found Trease

guilty of first-degree murder, burglary, and robbery with a firearm.

The findings supporting the death sentence, as determined in Trease I, 768 So. 2d at

1052–53, are as follows:

During the penalty phase of the trial, the State submitted

aggravating evidence that Trease had been previously convicted

of several violent felonies; that the murder was committed to

facilitate a burglary or robbery, to gain a pecuniary interest, and

to avoid lawful arrest; and that the murder was heinous, atrocious,

and cruel. Trease submitted mitigating evidence that he was

abused as a child, that he adjusted well to incarceration, that he

helped prevent the suicide of an inmate, and that Siegel had

received a disparate sentence. The trial court imposed the death

sentenceFN1 in compliance with the jury’s eleven-to-one vote and

Trease filed the instant appeal.

FN1. The trial court found the following statutory

aggravating factors: (1) previous violent felonies

against persons; and that the murder was committed

(2) while engaged in a burglary or robbery, (3) to

avoid arrest, and (4) for pecuniary gain; and (5) the

murder was heinous, atrocious or cruel. Based on

Trease’s evidence, the trial court found three

nonstatutory mitigating factors and assigned weight

to each factor: (1) Trease’s abuse as a child ––

“considerable” weight; (2) Trease adjusted well to

incarceration and helped prevent an inmate suicide

–– “little or no” weight; and (3) Siegel’s disparate

sentence –– “little” weight. The trial court gave

“great weight” to the jury’s recommendation, and

concurred “with the jury’s finding that the

aggravating circumstances found to exist

outweigh[ed] the mitigating circumstances.”

B. The Proposed New Evidence

Trease’s supposed compelling new evidence of actual innocence is less than

compelling. The new evidence challenges both the validity of the state’s testimony on

the bullet analysis and the veracity of Hope Seigel –– the co-defendant and whose

testimony Trease I characterized as “critical.”

1. Carbon Based Lead Analysis (“CBLA”)

Police recovered bullet fragments from the crime scene. The fragments were,

however, too small to use the usual ballistics tests to determine if a particular gun fired

the bullet. Instead, the fragments were subjected to a “carbon based lead analysis”

test, which examines the metallurgical characteristics of the lead to determine if two

bullets were made from the same melting process. At trial the prosecution presented

the testimony of a Federal Bureau of Investigation (“FBI”) analyst, who testified that a

CBLA test showed that the lead from the bullet fragments contained the same

metallurgical characteristics as the lead in the bullets recovered from the firearm that

Trease and Seigel possessed. The analyst testified “that the bullet fragments and the

bullet core of the Federal cartridge were all manufactured from the same source of lead

as the Federal ammunition plant in Minnesota.” (Respondent’s Exhibit A27 at 2422)

This testimony was presented in 1996. In closing arguments the prosecutor argued

that the CBLA test corroborated Seigel’s testimony by matching the bullets fragments

from the crime scene to the firearm.3 In 2005 the FBI revealed that it had suspended

using the CBLA test because the test fails to account for the total number of bullets

made during the melting process and the consequent possible misleading relevance of

the testimony.

The FBI’s suspending use of the CBLA test is, by itself, no evidence of actual

innocence. The possible prejudicial impact of the now discontinued test is in the

prosecution’s reliance on the test to corroborate Seigel’s testimony.

2. Veracity of Hope Seigel

Trease argues that Seigel alone was the killer. Trease names a mental health

expert to whom Seigel allegedly confessed to the killing and identifies several women

who would testify that, while in jail, Seigel confessed to them that she alone killed the

victim. These witnesses asserted also that Seigel offered conflicting stories about the

incident. Trease’s defense at trial was that Seigel, and not him, was responsible for the

3 “The shell casing found in her car was fired from that gun. It was a Federal brand that killed

him. The FBI told you that. You heard the metallurgy.” (Respondent’s Exhibit A29 at 2704)

killing. At trial Trease presented the testimony of one of the witnesses he contends

provides evidence of actual innocence.4 Trease’s attack on Seigel’s credibility is largely

cumulative to defense counsel’s similar attack on her credibility at trial.

C. Not Proof of Actual Innocence

Trease contends that Seigel’s uncorroborated testimony blaming the murder on

Trease was the only evidence against him. Although characterized as “critical” in

Trease I, the prosecution presented much evidence that independently corroborated

Seigel’s account of the gruesome slaying, evidence on which a jury could reasonably

base a conviction. Several witnesses placed Trease with Seigel near the scene of the

murder.5 The medical examiner testified (1) the injury to the victim’s eye was caused

by “a severe blow, a violent blow to the face, consistent with a fist blow, that would

have carried a lot of force,” (2) that the victim’s throat was cut three times with a

serrated knife, which required the use of a greater amount of strength than a

“razor-sharp-edged knife” would require, and (3) that the murderer was someone who

was either very strong and muscular or someone who was heavyset. (Respondent’s

Exhibit A22 at 1563–72) The medical examiner agreed that his findings were

consistent with the following scenario:

That [the victim], immediately prior to his death, was punched in

the face by a strong left-handed man, that [the victim] fell back to

the floor hitting his head, and with [the victim] lying on his

stomach on the floor with the right side of his face facing the

ceiling, a gun was placed to the right side of his head and he was

4 Another of the witnesses Trease now identifies refused to testify at trial.

5 Also, Trease and Seigel were arrested together out of state.

shot, and immediately after that, his head was pulled back with

the right hand of the perpetrator and this perpetrator, using his

left hand, with forceful slices [and] using his left hand went

across his neck in forceful strokes at least three times.

(Respondent’s Exhibit A22 at 1574) The jury heard testimony that Trease had

reached the rank of “black belt” in Karate and that he had demonstrated how to kill

someone by cutting their throat.6 A jury could have found (1) that Trease –– who is

left-handed and who had both claimed and demonstrated his martial arts’ skills –– had

the requisite physical capabilities to inflict the described injuries whereas Seigel, who is

right-handed, lacked the physical capabilities, and (2) that Trease knew how to cut

someone’s throat.

IV.

CONCLUSION

The admonition in Perkins, 569 U.S. at 400, that the focus is on the evidence,

bears repeating:

Focusing on the merits of a petitioner’s actual innocence claim

and taking account of delay in that context, rather than treating

timeliness as a threshold inquiry, is tuned to the rationale

underlying the miscarriage of justice exception – i.e., ensuring

“that federal constitutional errors do not result in the incarceration

of innocent persons.” Herrera, 506 U.S., at 404, 113 S. Ct. 853.

This focus inures to Trease’s benefit because the restrictions to federal review under

Section 2254 are inapplicable. Trease presented his evidence of actual innocence to

6 Jeffrey Colson testified that Trease had (1) claimed to be a “black belt” in Karate and showed

some techniques, one of which was “visually very stunning,” and (2) demonstrated “how an individual

might take out someone else’s throat by moving the knife across the throat.” (Respondent’s Exhibit A27

at 2442–44)

the post-conviction court, which conducted an evidentiary hearing and determined

that the same evidence Trease presents here was sufficient to prove neither ineffective

assistance of counsel nor actual innocence nor to qualify as “newly discovered

evidence.” (Respondent’s Exhibit B5 at 887–909) If Trease had not withdrawn his

petition and if his appeal ended with a denial of relief, the state court’s findings of fact

and determinations of law would receive a deferential review in federal court under

Section 2254. If due diligence was part of the “threshold inquiry” to determine

eligibility for actual innocence (Perkins specifically precludes requiring due diligence in

an actual innocence inquiry) Trease could claim no entitlement to actual innocence

because his repeatedly “changing his mind” eviscerates any assertion of due diligence.

To the extent that Perkins permits “taking account of delay in th[e] context” of “the

merits of [his] actual innocence claim,” Trease’s repeatedly “changing his mind” has

impeded an orderly state post-conviction review process and, in particular, the state’s

determination of the same facts that he presents here as evidence of actual innocence ––

a state court determination that would receive deferential treatment on federal review

under Section 2254. Trease’s “untimeliness, although not an unyielding ground for

dismissal of a petition, does bear on the credibility of evidence proffered to show actual

innocence.” Perkins, 569 U.S. at 401. Trease’s repeatedly “changing his mind,” that is,

his failure to persist in pursuing his asserted actual innocence, casts doubt on the

credibility of his evidence of actual innocence.

Nevertheless, the district court has considered each of Trease’s arguments and all

the evidence proffered to support entitlement to actual innocence. Perkins, 569 U.S. at

386, “caution[s] . . . that tenable actual innocence gateway pleas are rare . . . .” This is

because “[t]he gateway should open only when a petition presents ‘evidence of

innocence so strong that a court cannot have confidence in the outcome of the trial

unless the court is also satisfied that the trial was free of nonharmless constitutional

error.’” Perkins, 569 U.S. at 401 (quoting Schlup, 513 U.S. at 316). Trease argues both

that the new evidence is proof Seigel was the lone killer and that only her testimony ties

Trease to the slaying. To the contrary, the independent evidence described above

corroborates Seigel’s testimony. Trease’s argument for actual innocence is that Seigel’s

trial testimony –– that Trease committed the slaying –– is not credible, yet he bases his

claim of actual innocence on her credibility, specifically her alleged hearsay statements

to others (many of whom also have questionable credibility). See, e.g., Moore v.

Quarterman, 534 F.3d 545, 565 n.17 (11th Cir. 2008) (“To show ‘actual innocence,’ as

with showing ‘actual prejudice,’ requires something more than pointing to ‘[a] mere

possibility of prejudice,’ because a speculative claim ‘will not satisfy the actual prejudice

prong of the cause and prejudice test, much less demonstrate actual innocence.’ ”) (quoting

United States v. Shaid, 937 F.2d 228, 236 (5th Cir. 1991) (italics original)). Trease fails to

meet his burden under Schlup, 513 U.S. 327, which is admittedly difficult:

[W]e hold that the Carrier “probably resulted” standard . . . must

govern the miscarriage of justice inquiry when a petitioner who

has been sentenced to death raises a claim of actual innocence to

avoid a procedural bar to the consideration of the merits of his

constitutional claims.

The Carrier standard requires the habeas petitioner to show that “a

constitutional violation has probably resulted in the conviction of

one who is actually innocent.” 477 U.S., at 496, 106 S. Ct., at

2649–2650. To establish the requisite probability, the petitioner

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

would have convicted him in the light of the new evidence. The

petitioner thus is required to make a stronger showing than that

needed to establish prejudice.

Trease’s new evidence is neither “so strong that [this] court [does]not have confidence

in the outcome of the trial,” Schlup, 513 U.S. at 316, nor so strong that it rises to the

level of proof, as House, 547 U.S. at 538, describes, that it is “more likely than not any

reasonable juror would have reasonable doubt.”

Accordingly, Trease’s motions to dismiss counsel (Doc. 38 and 42) are DENIED

and the respondent’s motion (Doc. 37) to determine counsel’s status is DENIED.

Having determined in an earlier order (Doc. 26) that the application is untimely and

having now determined that Trease fails to show actual innocence, the application

under Section 2254 (Doc. 1) is DISMISSED. The clerk must enter a judgment against

Trease and close this case.

DENIAL OF BOTH A

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Trease is not entitled to a certificate of appealability (“COA”). A prisoner

seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s

denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a

COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” To merit a COA, Trease

must show that reasonable jurists would find debatable both (1) the merits of the

underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C.

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d

926, 935 (11th Cir 2001). Because his application is clearly time-barred and because

he shows no reasonable entitlement to the actual innocence exception to the statute of

limitation, Trease is not entitled to a certificate of appealability and he is not entitled to

appeal in forma pauperis.

Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma

pauperis is DENIED. Trease must obtain permission from the circuit court to appeal in

forma pauperis.

ORDERED in Tampa, Florida, on March 7, 2024.

ALTAD.W AA dyelen

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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