Jenkins

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANDRE DESHON JENKINS,

Petitioner,

v. Case No. 3:23-cv-763-TJC-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

Respondent.

ORDER

I. Status

Petitioner Andre Deshon Jenkins, an inmate of the Florida penal system,

initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ

of Habeas Corpus. Doc. 1. Petitioner challenges a state court (Duval County,

Florida) judgment of conviction for second-degree murder. He is serving a

sentence of life imprisonment. Respondent filed a Response with exhibits,

arguing that the Petition is untimely and requesting dismissal of this case with

prejudice. Doc. 5.1 Petitioner filed a Reply. Doc. 6. This case is ripe for review.2

1 The Court will cite exhibits by document and page number as assigned by the Court’s

electronic case management system.

2 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318

(11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th

II. One-Year Limitation Period

The Antiterrorism and Effective Death Penalty Act (AEDPA) amended 28

U.S.C. § 2244 by adding the following subsection:

(d)(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of—

(A) the date on which the judgment became

final by the conclusion of direct review or

the expiration of the time for seeking such

review;

(B) the date on which the impediment to

filing an application created by State action

in violation of the Constitution or laws of

the United States is removed, if the

applicant was prevented from filing by

such State action;

(C) the date on which the constitutional

right asserted was initially recognized by

the Supreme Court, if the right has been

newly recognized by the Supreme Court

and made retroactively applicable to cases

on collateral review; or

(D) the date on which the factual predicate

of the claim or claims presented could have

Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court must

consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

been discovered through the exercise of due

diligence.

(2) The 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

shall not be counted toward any period of limitation

under this subsection.

28 U.S.C. § 2244(d).

III. Analysis

A. Timeliness of Petition

On September 13, 2016, following a jury trial, the trial court adjudicated

Petitioner guilty of second-degree murder and sentenced him to life

imprisonment. Doc. 5-1 at 203-09. Petitioner appealed. Id. at 216. On November

30, 2018, the First District Court of Appeal (First DCA) issued a written opinion

affirming his conviction. Doc. 5-10. The First DCA held that the trial court

“correctly applied the evidentiary standards” to Petitioner’s “motion for new

trial.” Id. at 1-2.

Because the First DCA issued a written opinion, Petitioner could have

sought discretionary review with the Florida Supreme Court within thirty days.

See Fla. R. App. P. 9.120(b); see also Florida Star v. B.J.F., 530 So. 2d 286, 288

(Fla. 1988) (holding that the Florida Supreme Court has subject-matter

jurisdiction to review any decision of a district court of appeal that expressly

addresses a question of law within the four corners of the opinion). Petitioner

did not seek review with the Florida Supreme Court. Doc. 5-11. Therefore, his

conviction became final on December 31, 2018, the deadline to seek such review.

See Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (“[F]or a state prisoner who

does not seek review in a State’s highest court, the judgment becomes ‘final’ on

the date that the time for seeking such review expires.”); Spivey v. Sec’y, Fla.

Dep’t of Corr., No. 3:15-cv-23-MMH-JRK, 2019 WL 10749420, at *1 (M.D. Fla.

Jan. 29, 2019) (finding that petitioner’s judgment became final after the

expiration of his time to seek discretionary review in the Florida Supreme Court

because the First DCA issued a written opinion on direct appeal).

The one-year limitation period began to run on January 2, 2019. See

Mobley v. Sec’y, Fla. Dep’t of Corr., No. 23-10388, 2023 WL 9530737, at *1 (11th

Cir. Sept. 5, 2023) (finding that, where petitioner’s “convictions became final on

December 31, 2012,” the “one-year limitations period began to run on January

2, 2013”). The limitation period ran for 211 days until August 1, 2019, when

Petitioner moved for postconviction relief under Florida Rule of Criminal

Procedure 3.850. Doc. 5-12 at 6. Following an evidentiary hearing, the

postconviction court denied the motion. Id. at 80-88. The First DCA affirmed in

an unelaborated decision, and the mandate issued on December 12, 2022. Doc.

5-15.

The limitation period resumed the next day, December 13, 2022.

Petitioner then had 154 days—or until May 16, 2023—to seek federal habeas

relief. He missed the deadline by six weeks, filing his Petition on June 28, 2023.

Doc. 1 at 1, 29. Therefore, this action is untimely.3

B. Actual Innocence

Petitioner does not dispute that he missed the one-year deadline. Instead,

he appears to contend that he is entitled to the actual-innocence exception to

AEDPA’s statute of limitations. Doc. 6 at 1-3. “[T]enable actual-innocence

gateway pleas are rare: ‘[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.’” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (quoting Schlup v. Delo,

513 U.S. 298, 329 (1995)). “To be credible, such a claim requires [a] petitioner

to 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.

3 On March 6, 2023—before the limitation period expired—Petitioner filed a successive

Rule 3.850 motion. Doc. 5-16. The postconviction court ruled that the motion was

“untimely in that it was filed more than two years after [Petitioner’s] conviction

became final.” Doc. 5-17 at 2. Because the motion was “untimely” under Florida law,

it was not “properly filed” and thus could not “toll the limitation period.” Walton v.

Sec’y, Fla. Dep’t of Corr., 661 F.3d 1308, 1311 (11th Cir. 2011). This conclusion is not

altered by the fact that the postconviction court also rejected Petitioner’s claim on the

merits. See Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318 (11th Cir. 2006)

(“[W]hen a state court unambiguously rules that a post-conviction petition is untimely

under state law, [a federal court] must respect that ruling and conclude that the

petition was not ‘properly filed’ for the purposes of § 2244(d)(2), regardless of whether

the state court also reached the merits of one of the claims.”).

at 324. “‘[T]he 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.’” Rozzelle

v. Sec’y, Fla. Dep’t Corrs., 672 F.3d 1000, 1017 (11th Cir. 2012) (quoting House

v. Bell, 547 U.S. 518, 538 (2006)).

Petitioner fails to satisfy the “exceedingly narrow” actual-innocence

exception. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). At trial,

the prosecution proved that Petitioner murdered a sex worker in Jacksonville,

Florida. Around 3:30 a.m. on May 19, 2011, witnesses heard a woman’s

“terrified scream” followed by a gunshot. Doc. 5-2 at 234-35, 244-45. The culprit

had shot the victim once in the head with a .45 caliber handgun. Id. at 319, 392-

93. Two witnesses saw a dark-colored, mid-size vehicle flee the scene of the

shooting—the front yard of a vacant residence. Id. at 204-05, 246-47. Law

enforcement found a “fresh,” “wet” condom near the victim’s feet. Id. at 266, 336,

406. Subsequent analysis showed that the condom contained Petitioner’s semen

and the victim’s DNA. Id. at 344-47.

One week before the shooting, a sheriff’s deputy had stopped Petitioner

behind a “closed business” in Jacksonville. Id. at 356-57. Petitioner drove a

“black four-door Saturn sedan” and had a Taurus .45 caliber handgun.4 Id. at

4 Petitioner showed the deputy a “concealed weapons permit.” Doc. 5-2 at 363.

360, 366. After law enforcement learned that the condom contained Petitioner’s

semen, Petitioner agreed to speak with two detectives. Id. at 423-24. He claimed

that sometime after the shooting, his car was “repo’d” and he sold his .45 caliber

handgun to “a random white guy” at a gas station. Id. at 447-48. He also denied

being in Florida at the time of the shooting even after the detectives told him

the condom contained his semen. Id. at 445-47.

Petitioner now contends that he is actually innocent. In support, he

alleges that trial counsel refused to call three witnesses—Gina Jordan,

Detective Bryan Walcott, and Terry Bruce. Doc. 6 at 2; Doc. 5-12 at 9-14. As an

initial matter, the testimony of these witnesses does not qualify as “new

evidence.” McQuiggin, 569 U.S. at 386. Counsel was aware of each witness but

elected not to present their testimony at trial. Doc. 5-12 at 705-17. “Evidence is

not ‘new’ if it was available at trial, but a petitioner merely chose not to present

it to the jury.” Goldblum v. Klem, 510 F.3d 204, 226 n.14 (3d Cir. 2007); see also

Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005) (“Evidence is only ‘new’ if

it was not available at trial and could not have been discovered earlier through

the exercise of due diligence.”). The “failure of [Petitioner’s] trial counsel to

present testimony from . . . witness[es] known at the time of trial” is insufficient

to satisfy the actual-innocence exception. Jackson v. Davenport, No. 2:13-cv-

111-WHA, 2015 WL 10491200, at *3 (M.D. Ala. Dec. 11, 2015), adopted by 2016

WL 1060810 (M.D. Ala. Mar. 17, 2016).

Even if the proposed testimony qualified as “new evidence,” Petitioner’s

claim of actual innocence still fails because he cannot show that “in light of the

new evidence, no juror, acting reasonably, would have voted to find him guilty

beyond a reasonable doubt.” McQuiggin, 569 U.S. at 386. According to

Petitioner, Jordan would have testified that she saw “a dark brown Cadillac

fleeing the scene a short time after hearing a gunshot.” Doc. 5-12 at 9. But as

counsel explained at the postconviction evidentiary hearing, Jordan gave

“conflicting statements to the police.” Id. at 708. She told one officer that “she

heard one gunshot, . . . went outside[,] and did not see anything else.” Id. at 706.

She then told a different officer that she “went outside” after hearing a

“gunshot” and saw a “brown Cadillac.” Id. at 707. Given these inconsistent

statements, a “reasonable juror would not likely find [Jordan] to be” a credible

witness. Caracciolo v. McDonough, 456 F. Supp. 2d 1240, 1260-61 (S.D. Fla.

2006).

Detective Walcott’s proposed testimony likewise fails to establish

Petitioner’s innocence. The victim was found naked from the waist down, and

law enforcement did not recover a purse or wallet. Doc. 5-2 at 256-57. Detective

Walcott investigated James Johnson and his girlfriend Carrie Marino, two

friends of the victim who had “spent some time” with her in the hours before

the murder. Doc. 5-12 at 710-11. Detective Walcott searched Johnson’s truck

and found “a pair of female jeans and a purse.” Id. at 712. But the jeans had “no

tears, no signs of a struggle, no bloodstains.” Id. Moreover, Detective Walcott

spoke with “other people” associated with the victim and learned that the purse

“didn’t match the description of the victim’s purse.” Id. at 713. Additionally,

“Johnson was elsewhere with . . . Marino at the time of the murder.” Id. at 82.

As the postconviction court explained, because there was no evidence that the

jeans or purse “belong[ed] to the victim,” any testimony about these items would

have been “immaterial.” Id.

Finally, Bruce’s proposed testimony is insufficient to satisfy the actual-

innocence exception. At his deposition, Bruce stated that approximately thirty

minutes before the shooting, he saw a car with two unidentified occupants pick

up a woman who fit the victim’s description. Id. at 715. But Bruce also indicated

that he “couldn’t testify to what he was [saying] . . . because it had been such a

long time.” Id. at 717. As counsel put it, Bruce’s “memory” was “not . . . good at

that point.” Id. And as the postconviction court found, “Bruce’s testimony would

not have cast doubt on [Petitioner’s] guilt; rather, it would have merely raised

the possibility that [he] committed the crime with an accomplice.” Id. at 83.

For all these reasons, Petitioner fails to establish that he is entitled to the

actual-innocence exception. Indeed, Petitioner offers nothing to rebut the most

important evidence against him—the fresh condom next to the victim with

Petitioner’s sperm and the victim’s DNA, Petitioner’s possession of a .45 caliber

handgun when the victim was shot with a .45 caliber bullet, his disposal of the

handgun after the shooting, and his possession of a vehicle matching the

description of the vehicle seen fleeing the murder scene. Given the substantial

evidence of his guilt and the minimal probative value of the proposed witness

testimony, Petitioner fails to show that “in light of the new evidence, no juror,

acting reasonably, would have voted to find him guilty beyond a reasonable

doubt.”5 McQuiggin, 569 U.S. at 386.

Accordingly, it is

ORDERED:

1. The Petition (Doc. 1) and this case are DISMISSED with

prejudice.

2. If Petitioner appeals, the Court denies a certificate of appealability.

Because the Court has determined that a certificate of appealability is not

warranted, the Clerk shall terminate from the pending motions report any

motion to proceed on appeal as a pauper that may be filed in this case. Such

termination shall serve as a denial of the motion.6

5 Petitioner does not argue that he is entitled to equitable tolling, and he alleges no

facts supporting due diligence or extraordinary circumstances. See Lawrence v.

Florida, 549 U.S. 327, 336 (2007); Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1221

(11th Cir. 2017).

6 The Court should issue a certificate of appealability only if the petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

3. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 16th day of April,

2026.

& Cimotbeg g. Corrig on

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

TpaP-2

C:

Andre Deshon Jenkins, #D45903

Counsel of Record

make this substantial showing, Petitioner “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong,’ Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration of

the record as a whole, the Court will deny a certificate of appealability.

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