Jasmin v. Florida Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-cv-61159-BLOOM

JOEL JASMIN,

Petitioner,

v.

FLORIDA DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________/

ORDER DISMISSING 28 U.S.C. § 2254 PETITION AS TIME BARRED

THIS CAUSE is before the Court on Petitioner Joel Jasmin’s pro se Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254. ECF No. [1]. Petitioner, a state prisoner, challenges his

convictions and sentences in Case No. 09-20924-CF-10A in the Seventeenth Judicial Circuit in

and for Broward County, Florida. This Court has considered the Petition, the State’s Response to

the Order to Show Cause, ECF No. [11], Petitioner’s Reply, ECF No. [17], and the state court

record. After careful consideration, the Petition is DISMISSED as time barred and procedurally

defaulted.1

I. BACKGROUND

On December 9, 2009, Petitioner was charged by information with (1) burglary of an

unoccupied dwelling; and (2) grand theft. Resp’t Ex. 3, ECF No. [12-1] at 16–17. Prior to trial,

Petitioner was adjudged incompetent to proceed. Resp’t Ex. 4, id. at 18. The state trial court later

1 The dismissal of a § 2254 petition as time bared or procedurally defaulted is with prejudice and is a

merits adjudication for purposes of successiveness. See Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351,

found Petitioner competent, and he proceeded to trial on February 29, 2016. Resp’t Ex. 5, id. at

19; see also Trial Tr., ECF No. [14-1].

A jury found Petitioner guilty on both counts. Resp’t Ex. 7, ECF No. [12-1] at 39–40. The

state trial court sentenced Petitioner to 15 years and one day in state prison as a prison release

reoffender and a habitual felony offender. Resp’t Ex. 8, 10, id. at 41–51, 53–55. Petitioner

appealed, and the Fourth District Court of Appeal (“Fourth DCA”) affirmed, per curiam, without

a written opinion. See Jasmin v. State, 257 So. 3d 131 (Fla. 4th DCA 2018).

On July 29, 2019, Petitioner filed his first motion for post-conviction relief under Florida

Rule of Criminal Procedure 3.850, raising a claim of ineffective assistance of counsel. Resp’t Ex.

16, ECF No. [12-1] at 164–70. The state trial court denied the motion without an evidentiary

hearing, and the Fourth DCA affirmed, per curiam, issuing its mandate on the denial of rehearing

on November 20, 2020. Resp’t Exs. 18–28, id. at 253–324.

On December 29, 2021, Petitioner, through counsel, filed a motion for new trial based on

newly discovered evidence. Resp’t Ex. 29, id. at 325–26. Petitioner claimed that his newly

discovered evidence was a private investigator’s report that cast doubt on the testimonies of the

two detectives who arrested him. See id. The state trial court denied the motion for failing to meet

the procedural requirements of Rule 3.850, finding that the private investigator’s report did not

qualify as newly discovered evidence because the investigator’s findings could have been

discovered with reasonable diligence prior to trial. Resp’t Ex. 30, id. at 348–50.

On April 28, 2022, Petitioner, proceeding pro se, filed a successive motion for post-

conviction relief, again relying on his purported newly discovered evidence. Resp’t Ex. 35, id. at

359–82. The state trial court again ruled that the evidence could have been discovered prior to trial,

and it denied the motion as untimely. Resp’t Ex. 38, id. at 441–43. The Fourth DCA affirmed, per

curiam. See Jasmin v. State, 384 So. 3d 769 (Fla. 4th DCA 2024).

On June 28, 2024,2 Petitioner filed the instant Petition pursuant to 28 U.S.C. § 2254. ECF

No. [1]. The Petition raises a single claim: “Petitioner has uncovered new reliable evidence which

demonstrates his actual innocence and reveals a Giglio violation.” Id. at 4. The State responded,

arguing that this claim is time barred, procedurally defaulted, and without merit. ECF No. [11].

Petitioner filed a Reply. ECF No. [17]. The matter is ripe for review.

II. LEGAL STANDARD

To obtain federal habeas relief, a state prisoner must show that he “is in custody in violation

of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The Court may

grant habeas relief only if the state court’s decision on the merits of the federal claim was: (1)

“contrary to, or involved an unreasonable application of, clearly established federal law as

determined by the Supreme Court of the United States;” or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented” in the state court proceeding.

§ 2254(d)(1)–(2). This standard is highly deferential to state court decisions. Wilson v. Sellers, 584

U.S. 122, 125 (2018); Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

“A decision is ‘contrary to’ clearly established federal law if the state court applied a rule

that contradicts governing Supreme Court precedent, or if it reached a different conclusion than

the Supreme Court did in a case involving materially indistinguishable facts.” James v. Warden,

957 F.3d 1184, 1190 (11th Cir. 2020) (citing Williams v. Taylor, 529 U.S. 362, 412–13 (2000)). A

state court decision involves an “unreasonable application of clearly established federal law” if

prior Supreme Court decisions “clearly require[d] the state court” to reach a different result.

Kernan v. Cuero, 583 U.S. 1, 3 (2017). A state court’s decision is reasonable “so long as

2 “Under the prison mailbox rule, a pro se prisoner’s court filing is deemed filed on the date it is

delivered to prison authorities for mailing.” Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014)

(quotation omitted). The Petition is stamped as received by prison authorities for mailing on June 28, 2024.

See ECF No. [1] at 1.

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In

addition, “a determination of a factual issue made by a State court shall be presumed to be correct,”

and the petitioner bears “the burden of rebutting the presumption of correctness by clear and

convincing evidence.” § 2254(e)(1).

III. DISCUSSION

Petitioner’s claim is both untimely and procedurally defaulted. In addition, Petitioner has

not demonstrated actual innocence to overcome the time bar or procedural default. Lastly, even if

the Court could reach the merits of Petitioner’s claim, it is without merit.

A. Timeliness

The State argues that the Petition is time barred, and Petitioner concedes that his claim is

untimely. Under 28 U.S.C. § 2244(d)(1)(a), a petitioner has one year from “the date on which [his]

judgment became final by the conclusion of direct review or the time for seeking such review” to

file a federal habeas petition. Petitioner’s judgment was affirmed per curiam without a written

opinion on November 1, 2018. Thus, his conviction became final ninety days later, on January 30,

2019, when his time for filing a petition for writ of certiorari with the United States Supreme Court

expired. See Williams v. Sec’y, Fla. Dep’t of Corr., 674 F. App'x 975, 976 (11th Cir. 2017) (when

a Florida district court of appeal affirms a conviction per curiam, discretionary review with the

Florida Supreme Court cannot be sought and the conviction becomes final ninety days later, when

the time for filing a petition for writ of certiorari expires).

Under § 2244(d)(2), the statute of limitations is tolled for “[t]he time during which a

properly filed application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). After Petitioner’s conviction

became final, the statute of limitations ran untolled for 180 days until July 29, 2019, when he filed

his first motion for post-conviction relief under Rule 3.850. Resp’t Ex. 16, ECF No. [12-1] at 164.

The statute of limitations remained tolled until November 20, 2020, when the Fourth DCA issued

its mandate denying Petitioner’s motion for rehearing. Resp’t Ex. 28, id. at 324; see San Martin,

633 F.3d at 1266 (“[t]he AEDPA clock resumes running when the state’s highest court issues its

mandate disposing of the motion for post-conviction relief”). The statute of limitations then ran

untolled for another 404 days until December 28, 2021, when Petitioner filed his next post-

conviction motion, his motion for new trial based on newly discovered evidence. Resp’t Ex. 29,

ECF No. [12-1] at 325–26. The statute of limitations thus ran untolled for more than 365 days and

the Petition is untimely under § 2244(d)(1)(A).

In addition, § 2244(d)(1)(D) provides that a petition is timely if filed within one year of

“the date on which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Petitioner may not

avail himself of this provision because the state court found that he did not exercise due diligence

in discovering the facts underlying his claim. In his motion for new trial based on newly discovered

evidence, Petitioner alleged that he hired a private investigator in August of 2021, who took

photographs of the crime scene and produced a report that cast doubt on the truthfulness of the

detectives’ trial testimonies. Resp’t Ex. 29, ECF No. [12-1] at 326. The state court found, however,

that “[w]hile the private investigator may have photographed the scene and composed his report

in 2021, these photographs could have been obtained well before [Petitioner’s] trial in 2016.

Furthermore, both [Petitioner] and defense counsel knew of the existence of the scene of the crime

before trial.” Resp’t Ex. 30, id. at 349. This factual finding is presumed correct, and Petitioner

offers no argument to rebut it by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (“a

determination of a factual issue made by a State court shall be presumed to be correct. The

applicant shall have the burden of rebutting the presumption of correctness by clear and convincing

evidence.”).

Even if Petitioner did exercise due diligence, however, his claim would still be untimely

because it was filed more than one year from September 17, 2021, the date on which Petitioner

discovered the private investigator’s report. See ECF No. [1] at 4. Moreover, none of Petitioner’s

state post-conviction motions filed in the interim tolled the statute of limitations because they were

rejected by the state court as untimely or procedurally barred. See Sweet v. Sec’y, Dep’t of Corr.,

467 F.3d 1311, 1318 (11th Cir. 2006) (a state post-conviction motion is not “properly filed” under

§ 2244(d)(2) and cannot toll the statute of limitations if it was rejected by the state court as untimely

or procedurally barred). In sum, Petitioner’s claim is time barred.

B. Procedural Default

The State also argues that Petitioner’s claim is procedurally defaulted because he failed to

raise it in state court, and Petitioner does not contest this argument in his Reply. “A federal habeas

court generally may consider a state prisoner’s federal claim only if he has first presented that

claim to the state court in accordance with state procedures.” Shinn v. Ramirez, 596 U.S. 366, 371

(2022). To exhaust a federal claim, “a state prisoner [must] present the state courts with the same

claim he urges upon the federal courts.” Picard v. Connor, 404 U.S. 270, 275 (1971). “When the

prisoner has failed to do so, and the state court would dismiss the claim on that basis, the claim is

‘procedurally defaulted.’” Id.; see also Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999)

(unexhausted claims may be treated “as procedurally defaulted, even absent a state court

determination to that effect, if it is clear from state law that any future attempts at exhaustion would

be futile.”). A petitioner may overcome a procedural default upon a showing of “cause” for the

default and “actual prejudice” if the federal court were to decline to hear his claim. Shinn, 596 U.S.

at 371.

Here, Petitioner never raised his claim in state court. The claim he now casts as a Giglio

claim was presented in his state post-conviction motion as a newly discovered evidence claim.

Petitioner therefore failed to exhaust his Giglio claim because a petitioner must present the same

claim in state court that he raises in his federal habeas petition. See Keys v. Sec’y, Dep’t of Corr.,

773 F. App’x 556, 561 (11th Cir. 2019) (holding that a petitioner’s newly discovered evidence

claim in his state post-conviction motion did not exhaust his federal Giglio claim because “[t]he

federal analog of a Florida law newly discovered evidence claim is a federal newly discovered

evidence claim”).

Petitioner’s claim is thus procedurally defaulted because he may not file a successive post-

conviction motion raising a Giglio claim that could have been raised in his earlier motion. See id.

(“Under Florida law, ‘claims that could have been raised in a prior postconviction motion are

procedurally barred.’ Because Keys has deprived the Florida courts of the opportunity to consider

his Giglio claim, he has procedurally defaulted it.” (quoting Rivera v. State, 187 So. 3d 822, 832

(Fla. 2015))). Moreover, Petitioner makes no showing of cause and prejudice to overcome the

procedural default. See id. (holding that the petitioner could not overcome the procedural default

because “he ha[d] made no argument for cause and prejudice”).

C. Actual Innocence

Petitioner claims he has “new reliable evidence” of his actual innocence. ECF No. [1] at 4.

In its Response, the State argues that Petitioner cannot raise his actual innocence claim here

because this claim was procedurally barred as untimely it in state court due to Petitioner’s failure

to exercise due diligence.3 ECF No. [11] at 19. The State further argues that Petitioner’s evidence

3 The State is incorrect. Actual innocence is an exception to overcome a procedural default. McQuiggin

v. Perkins, 569 U.S. 383, 392 (2013). A claim that was rejected in state court as procedurally barred may

be heard on the merits in federal court if the petitioner can demonstrate actual innocence. Id.

is insufficient to establish his innocence because it is, at best, mere impeachment evidence. Id. at

20–21. In his Reply, Petitioner insists that his new evidence “amounts to more than mere

impeachment evidence” and is “proof of [his] factual innocence.” ECF No. [17] at 8–9.

A prisoner may overcome a time bar or a procedural default by making a “credible showing

of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). Actual innocence is not a

claim itself, but “serves as a gateway through which a petitioner may pass” to obtain federal review

of his habeas claim, whether the impediment is a procedural bar or the statute of limitations. Id. at

386. The actual innocence burden is the same for both procedural defaults and time bars. Id.

The actual innocence gateway, however, “applies to a severely confined category: cases in

which new evidence shows ‘it is more likely than not that no reasonable juror would have

convicted the petitioner.’” Id. at 395 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). “‘[A]ctual

innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523

U.S. 614, 623 (1998). For a claim of actual innocence to be credible, a petitioner must “support

his allegations of constitutional error with new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not

presented at trial.” Schlup, 513 U.S. at 324. In assessing such evidence, “the district court is not

bound by the rules of admissibility that would govern at trial[,]” and may “consider the probative

force of relevant evidence that was either excluded or unavailable at trial.” Id. at 327–28; see also

House v. Bell, 547 U.S. 518, 538 (2006) (“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.’” ((citing Schlup,

513 U.S. at 328)). “Based on th[e] total record, the court must make ‘a probabilistic determination

about what reasonable, properly instructed jurors would do.’” House, 547 U.S. at 538 (citing

Schlup, 513 U.S. at 329).

This Court’s analysis of Petitioner’s actual innocence claim proceeds in three parts. See

Green v. Sec’y, Dep’t of Corr., 28 F.4th 1089, 1150 (11th Cir. 2022) (employing a three-part

analysis to an actual innocence gateway claim). First, the Court considers Petitioner’s new

evidence. Second, the Court examines the evidence of Petitioner’s guilt, including, but not limited

to, the evidence presented at trial. And third, the Court “analyze[s] whether, considering all this

evidence, [Petitioner] has shown that no reasonable juror would have convicted him.” Id.

i. The private investigator’s report

Petitioner’s purported new evidence is a report from a private investigator, Dan Riemer.

Resp’t Ex. 35A, ECF No. [12-1] at 383–86. Riemer reviewed the trial evidence, investigated and

took photographs of the crime scene—including the structure that Petitioner burglarized and its

surrounding area—and rendered the following conclusions:

• Detective Moule could not have seen Petitioner climb through the bathroom

window if he was parked on the 200 block of Northwest Eleventh Street because

there is “only one location on the street where you could actually park” and

“there is a solid wood fence along the east side of the property” that would have

obstructed Detective Moule’s view of the bathroom window.

• It would have been “highly difficult” for Petitioner, at 5’11” and 240 pounds,

to climb through the bathroom window because “this window is high enough

that you need tremendous upper body strength to even get through the window.”

• Detective Moule testified that his partner, Detective Auguste, “went to the east

side of the building, which he could not have gotten to easily without

interrupting a burglary,” and both detectives testified that they observed

Petitioner “come out the front door” from the east side of the property. “None

of this seems probable when viewing the photographs.”

Id.

Riemer’s conclusions, however, are refuted by the detectives’ trial testimony and by his

own photographs. Riemer’s first conclusion that Detective Moule could not have seen Petitioner

climb through the bathroom window is refuted by his photographs showing that a person parked

on the north side of the property on Northwest Eleventh Street—where Moule testified he was

parked—could have easily seen through the chain link fence surrounding the property and viewed

the east side of the structure where the bathroom window was located. See ECF No. [12-1] at 398–

400. The “solid wood fence” to which Riemer refers divides the property with the neighboring lot

to the east and does not obstruct the view from directly to the north of the property. See id. at 398

(photograph of the property taken from the 200 block of Northwest Eleventh Street, directly north

of the property, showing a mostly unobstructed view of the east wall of the structure). This wood

fence runs perpendicular to the street and would have obstructed Detective Moule’s view only if

he was parked down the street to the east of the property. In other words, Riemer’s photographs

confirm that Detective Moule could have parked at a vantage point that gave him a clear view of

Petitioner climbing through the bathroom window.

Riemer’s report implies that Detective Moule could not have parked at this vantage point

because there is “only one location on the street where you could actually park”—on the east side

of the block—and the solid wood fence would have obstructed Moule’s view from that location.

Id. at 385; see also id. at 401 (photograph taken from Northwest Eleventh Street to the east of the

property, showing a wood fence partially obstructing the view). But Riemer’s own photographs

again refute this assertion. These photographs show a grassy strip running alongside the entirety

of the 200 block of Northwest Eleventh Street, on which a car could easily park. See id. at 401.

Moreover, there is no reason to believe Detective Moule did not simply park his car on the street.

Riemer’s findings are based entirely on his unfounded assumption that Detective Moule parked at

a vantage point where he could not see the bathroom window. There is no evidence to support this

assumption. Indeed, Moule testified that he was parked on the 200 block of Northwest Eleventh

Street, but he did not specify where on that block he was parked. See Trial Tr., ECF No. [14-1] at

247:13–15. Riemer’s conclusion that Detective Moule could not have seen the burglary is refuted

by Moule’s testimony and Riemer’s own photographs.

Second, Riemer’s conclusion that it would have been “highly difficult” for Petitioner, at

5’11” and 240 pounds, to climb through the bathroom window, is speculative and not supported

by any reliable evidence. First, none of Riemer’s photographs clearly indicate the height or size of

the bathroom window. One of Riemer’s photographs purportedly shows a bathroom window, but

there is nothing in the record substantiating that this was the window through which Detective

Moule observed the burglar climb. See id. at 395 (photograph purportedly showing the bathroom

window on the east side of the structure). Second, even if Petitioner did need “tremendous upper

body strength” to get through this window, there is no evidence suggesting that Petitioner, who

was thirty-seven at the time of the burglary, did not possess the requisite upper body strength. A

reasonable juror could have also inferred that Petitioner used an assist to climb through the

window, like a stool or a ladder. And third, considering it was dark and Detective Moule was

across the street, a reasonable juror could have also concluded that Detective Moule saw Petitioner

climbing through some window, but not necessarily the bathroom window. There was no evidence

taken from the crime scene itself confirming which window the burglar used. Had Detective Moule

been mistaken about which window Petitioner used, it would not have cast doubt on Petitioner’s

guilt considering the remaining evidence.

Lastly, according to Riemer’s report, Detective Moule testified that his partner, Detective

Auguste, “went to the east side of the building,” which would have “interrupt[ed] [the] burglary[.]”

Id. at 385. Riemer also states that neither detective could have “observed [Petitioner] come out the

front door” because they were on the east side of the building. Id. These conclusions make little

sense because neither detective testified that they went to the east side of the building. Detective

Moule stated that he was on Northwest Eleventh Street, to the north of the property, and Detective

Auguste testified that he was on Northwest Third Avenue, to the west of the property. Trial Tr.,

ECF No. [14-1] at 247 13–15; 271:2–3. Detective Auguste testified that he observed Petitioner

exiting the property from Northwest Third Avenue. Id. at 271:7–8.

In sum, the findings in Riemer’s report are refuted by the evidence or otherwise incredible

and based on speculation. Moreover, as explained below, even if the Court were to accept these

findings as true, they are at best impeachment evidence and do not establish Petitioner’s innocence.

ii. The evidence of Petitioner’s guilt

At trial, Detective Moule gave the following testimony. While surveilling the area on

Northwest Eleventh Street, he observed Petitioner walking down the street behaving suspiciously.

Trial Tr., ECF No. [14-1] at 247:7–21. Detective Moule then saw Petitioner enter the subject

property through an open gate in the chain link fence surrounding the property. Id. at 249:16–20;

260:11–19. Petitioner removed a screen on a bathroom window and entered one of the structures.

Id. at 250:2–6; 261:9–17. Petitioner was inside for about five minutes and then left carrying a red

recycling bin containing miscellaneous tools. Id. at 252:9–10. Detective Moule and his partner,

Detective Auguste, intercepted Petitioner, who was cooperative. Id. at 252:9–14. Detective Moule

contacted the property owner, who confirmed that the tools in the bin were his.4 Id. at 253:24–

254:13. While Detective Moule was transporting Petitioner to the police station, Petitioner said,

“Man, I should of [sic] ran when y’all stopped me.” Id. at 255:12–13. Detective Moule also

investigated the crime scene but was unable to recover any fingerprints. Id. at 255:20–256:6.

Detective Auguste testified as follows. He was patrolling the area with Detective Moule

and set up surveillance on the Third Avenue side of the property, around the corner from where

Detective Moule was stationed. Id. at 270:5–271:4. Detective Auguste could not see Petitioner

enter the property, but he saw Petitioner exit the property carrying a large plastic bin and relayed

4 The property owner also testified at trial that the tools recovered belonged to him. Id. at 281:1–23.

this observation to Detective Moule. Id. at 271:5–22. He then met Detective Moule after Moule

had stopped Petitioner. Id. at 273:16–21. Auguste observed power tools and equipment inside the

red bin Petitioner was carrying. Id. at 274:10–13.

In addition to this trial testimony, the following evidence was excluded by the trial court

but may be considered here. See Schlup, 513 U.S. at 328. First, the detectives testified that they

were patrolling the area due to an increase in burglaries. Trial Tr., ECF No. [14-1] at at 227:21–

228:2. Second, the property owner told the detectives that there were other items stolen, which

were never recovered. Id. at 228:4–8. And third, Petitioner had two prior convictions for burglary.

Id. at 230:8–17.

iii. The private investigator’s report in light of the entirety of the record

Upon consideration of the record as a whole, the Court finds that Petitioner’s new evidence

does not show that it is more likely than not that no reasonable juror would have convicted him.

As mentioned, Riemer’s report is not supported by any evidence. Even if this report were true, it

provides no basis for an actual innocence claim because, at best, it only impeaches Detective

Moule’s testimony, and does nothing to discredit Detective Auguste’s testimony. See Calderon v.

Thompson, 523 U.S. 538, 563 (1998) (holding that newly discovered impeachment evidence,

which is “a step removed from evidence pertaining to the crime itself,” “provides no basis for

finding” actual innocence). According to Riemer’s report, Detective Moule could not have

observed Petitioner enter the structure through a bathroom window. But Riemer’s findings only

pertain to Moule’s testimony; the report has no bearing on Detective Auguste’s testimony that he

saw Petitioner exit the property holding a bin of tools. Thus, the report, even if true, could not

support Petitioner’s claim of innocence.

Crucially, the report does nothing to cast doubt on the main piece of evidence supporting

Petitioner’s guilt: the fact that he was carrying tools belonging to the property owner when he was

stopped by the detectives. In his Petition, Petitioner attempts to explain away this inculpatory fact.

He claims he was simply “walking down the road” when he “happened to discover the bin just

lying there, unattended.” ECF No. [1] at 6. Petitioner alleges that when he “began inspecting the

contents of the recycle bin, that’s when the detectives jumped out on him.” Id.

These unsupported allegations, of course, are not evidence of actual innocence. See Schlup,

513 U.S. at 324 (an actual innocence claim must be supported by “new reliable evidence”);

Patterson v. McDonough, No. 4:06CV138-WS, 2007 WL 1577859, at *6 (N.D. Fla. May 31, 2007)

(“Petitioner’s unsupported allegations of perjury and misconduct are insufficient to make a

showing of actual innocence”). But assuming Petitioner had testified at trial and given this

explanation, his testimony would have been contradicted by Detective Auguste’s testimony that

he saw Petitioner exit the premises carrying the bin. A reasonable juror would have been free to

reject Petitioner’s testimony in favor of Detective Auguste’s testimony. See United States v.

Mateos, 623 F.3d 1350, 1362 (11th Cir. 2010) (“A defendant who chooses to testify runs the risk

that the jury will disbelieve her testimony, and ‘runs the risk that if disbelieved the jury might

conclude the opposite of her testimony is true.’” (quoting United States v. Brown, 53 F.3d 312,

314 (11th Cir. 1995)) (alterations adopted)).

Finally, Petitioner highlights two pieces of evidence that were excluded at trial, which he

contends show his innocence. First, according to Petitioner, the fact that the property owner told

police that other items were missing and never recovered suggests that “someone other than

Petitioner burglarized [the structure], took the tools they wanted from the recycle bin, and then

discarded the bin on the ground near the structure.” ECF No. [1] at 6. This explanation, however,

like Petitioner’s claim that he was just “walking down the road” when he discovered the bin, is at

odds with Detective Auguste’s testimony that he saw Petitioner exit the premises with the bin.

Moreover, there are numerous other plausible inferences a juror could have drawn from this

information; for instance, Petitioner might have discarded these items before he was stopped, or

the structure might have been burglarized on a separate occasion. Indeed, it was defense counsel

who moved to exclude testimony about the missing items, reasoning that it was prejudicial to the

defense. Resp’t Ex. 17D, ECF No. [12-1] at 207.

Second, Petitioner claims that Riemer’s investigation revealed that, based on criminal

activity records, the detectives were not surveilling the area due to an increase in burglaries. Id.

But Riemer’s report makes no such finding. It states that he requested burglary reports from the

police department and that these reports “will either show that there were numerous burglaries

prior to this incident, or that [the detectives] were not sitting in surveillance because of burglaries

in that area.” ECF No. [12-1] at 386. Appended to Riemer’s report are criminal activity records

but no mention of whether they show an increase in burglaries. Id. at 403–428. In any event,

Petitioner does not explain how the detectives’ purportedly pretextual reason for surveilling the

area supports his innocence. The reason the detectives were in the area is immaterial to Petitioner’s

guilt.

In sum, Petitioner has not shown that in light of the private investigator’s report, no

reasonable juror would have found him guilty of burglary. Accordingly, Petitioner’s actual

innocence claim fails.

D. Merits

Finally, the State argues that even if Petitioner could pass through the actual innocence

gateway, his substantive claim fails on the merits. ECF No. [11] at 21–24. Petitioner raises a claim

under Giglio v. United States, 405 U.S. 150 (1972), contending that Riemer’s report proves that

both Detective Moule and Detective Auguste testified falsely at his trial. ECF No. [1] at 7–10. The

State contends that this claim fails because Riemer’s report does not establish that these detectives

testified falsely. ECF No. [11] at 24. In his Reply, Petitioner again asserts that the report shows he

is innocent of the burglary and demonstrates a Giglio violation. ECF No. [17] at 4–10.

“To establish a Giglio claim, a habeas petitioner must prove: (1) the prosecutor knowingly

used perjured testimony or failed to correct what he subsequently learned was false testimony; and

(2) such use was material, i.e., that there is any reasonable likelihood that the false testimony could

have affected the judgment.” Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1348 (11th Cir.

2011) (quoting Ford v. Hall, 546 F.3d 1326, 1332 (11th Cir. 2008)). “Giglio error is a species of

Brady error that occurs when ‘the undisclosed evidence demonstrates that the prosecution’s case

included perjured testimony and that the prosecution knew, or should have known, of the perjury.’”

Ventura v. Att’y Gen., Fla., 419 F.3d 1269, 1276–77 (11th Cir. 2005) (quoting United States v.

Agurs, 427 U.S. 97, 103 (1976)).

Petitioner does not allege that the prosecution knew or should have known that the

detectives’ testimony was false. See Davis v. Terry, 465 F.3d 1249, 1253 (11th Cir. 2006)

(rejecting a habeas petitioner’s Giglio claim because he “fail[ed] to make any specific allegations

tending to show that the government knew [its witness’s] statement to be false”). But even if

Petitioner had alleged that the prosecution knew or should have known that this testimony was

false, his claim is refuted by the record because, as explained above, Riemer’s report does not

show that the detectives testified falsely. Thus, Petitioner’s Giglio claim fails on the merits.

IV. EVIDENTIARY HEARING

Petitioner is not entitled to an evidentiary hearing because he has not alleged specific facts

that, if true, would entitle him to habeas relief. Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740,

763 (11th Cir. 2010) (“Having alleged no specific facts that, if true, would entitle him to federal

habeas relief, [Petitioner] is not entitled to an evidentiary hearing.”).

V. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED that:

Case No. 24-cv-61159-BLOOM

1. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, ECF No. [1], is

DISMISSED as time barred and procedurally defaulted.

2. A certificate of appealability is DENIED because Petitioner has failed to make a

substantial showing of the denial of a constitutional right. See § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 484-85 (2000).

3. The Clerk is directed to CLOSE this case and mail a copy of this Order to Petitioner

at the address of record.

4. To the extent not otherwise disposed of, any scheduled hearings are CANCELED, all

pending motions are DENIED AS MOOT, and all deadlines are TERMINATED.

DONE AND ORDERED in Chambers at Miami, Florida, on November 18, 2024.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record via CM/ECF

Joel Jasmin, PRO SE

L59328

Moore Haven Correctional Facility

Inmate Mail/Parcels

Post Office Box 719001

Moore Haven, FL 33471

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