Petition for Writ of Certiorari — Jonathan Godwin, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections, et al.

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APPENDIX

Appendix. A

USCA11 Case: 22-13113

Document: 12-1

Date Filed: 06/13/2023

Page: 1 of 2

Jft iffe

Hit#: Jpfatgs iSourt of Appeals

No, 22-13113

JONATHAN GODWIN,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL:, STATE,OF FLORIDA,

Respondents-Appeiiees,

Appeal tom the United States District Court

for the Middle District of Florida

D;C, Docket No, i8:i#cy^02253-SDM-SPF

USCA11 Case: 22-13113

Document: 12-1

Date Filed: 06/13/2023

Order of the Court

Page: 2 of 2

22-11724

Jonathan Godwin’s motion for a certificate: of appealability

is DENIED and his motion to proceed on appeal in form pauperis

is DENIED AS MOOT

r-Jf.

Mr-

ID; SPATES CVKQ]MTmJDGE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W,

Atlanta, Georgia 30303

For rules and forms visit

www.cal 1 .uscourts.eov

David J. Smith

Clerk of Court

June 16, 2023

Jonathan Godwin

Wakulla Cl - Inmate Legal Mail

110 MELALEUCA DR

CRAWFORDVILLE, FL 32327

Appeal Number: 22-13113-J

Case Style: Jonathan Godwin v. Secretary, Department of Corrections, et al District Court

Docket No: 8:16-cv-02253-SDM-SPF

CORRECTED to reflect correct appeal number

The enclosed copy of this Court's order denying the application for a Certificate of

Appealability is issued as the mandate of this court. See 11th Cir. R. 41-4. Counsel and pro se

parties are advised that pursuant to 11th Cir. R. 27-2, "a motion to reconsider, vacate, or modify

an order must be filed within 21 days of the entry of such order. No additional time shall be

allowed for mailing."

Any pending motions are now rendered moot in light of the attached order.

Clerk's Office Phone Numbers

General Information: 404-335-6100

Case Administration: 404-335-6135

CM/ECF Help Desk: 404-335-6125

404-335-6122

Attorney Admissions:

404-335-6200

Capital Cases:

Cases Set for Oral Argument: 404-335-6141

Enclosure(s)

DIS-4 Multi-purpose dismissal letter

APPENDIX

Appendix 35

•

C& e 8:16-cv-02253-SDM-SPF

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Page 1 of 7 PagelD 686

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JONATHAN GODWIN,

Applicant,

CASE NO. 8:16-cv-2253-T-23 SPF

SECRETARY, Department of Corrections,

Respondent-

ORDER

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

and challenges his convictions both for robbery with a firearm and for false

imprisonment with a firearm, for which Godwin is imprisoned for life. An earlier,

lengthy order (Doc. 24) denies relief. Both the district court and the circuit court

declined to issue a certificate of appealability (Docs. 24 and 30), and the Supreme

Court denied Godwin’s application for the writ of certiorari; (Doc. 34) Godwin

moves (Doc. 31) under Rule 60(b), rederai Rules oi Civn noceduie.

In his introductory paragraph Godwin asserts entitlement to relief under both

Rule 60(b)(1), which authorizes relief based on “mistake, inadvertence surprise, or

excusable neglect,” and Rule 60(b)(4), which authorizes relief if the judgment is

void.” Godwin presents no argument to support his assertion that the judgment is

void, and no basis for finding the judgment void is apparent from the record. The

Caile 8:16-cv-02253-SDM-SPF

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Page 2 of 7 Page ID 687

remainder of this order addresses Godwin’s asserted entitlement to relief under

Rule 60(b)(1).

In his pending motion Godwin disagrees with the earlier denial of relief on

grounds one, three, and five, specifically, that the district court s ruling was a

“mistake” under Rule 60(b)(1). The recent decision in Kemp v. United States,

142 S. Ct. 1856, 1860 (2022), “conclude [s] . . . that a judge’s errors of law are

indeed ‘mistakes’ under Rule 60(b)(1).”

reminds One and Five:

district court’s mistake wasliTnot addressing'lhe

Godwin contends that the

merits of his claim in ground one that under Terry v. Ohio, 382 U.S. 1 (1967), the

police officers lacked probable cause to stop his car. (Doc. 31 at 3) The earlier order

determined that Godwin waived that part of ground one when he conceded in a

pretrial motion to suppress that the officers had probable cause to stop Godwin’s car.

Consequently, the earlier order limited ground one to a challenge to the scope of the

search. Godwin argues that, notwithstanding the waiver, the district court should

have addressed the merits of the claim.

___ ..

Next, Godwin contends that the district court’s mistake wasin-^^addressing

the merits of his claim in ground five that “his due process right to presence under

Kentucky v. Stincer, 482 U.S. 730 (1987), was violated by his involuntary absence at

the motion for new trial.” (Doc. 31 at 9) The state court held the claim was

procedurally defaulted. The earlier order rejects the Stincer claim as procedurally

barred because Godwin could not both overcome the state court s application of its

-2-

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procedural default rules and show either “cause and prejudice” or “manifest

injustice.” Godwin disagrees with the district court’s deference to the state court’s

application of Florida’s procedural default rules.

In his Rule 60(b) motion Godwin asserts that the court’s failure to address the

merits of these claims “constitutes a Clisby error.” (Doc. 31 at 6) Under Clisby v.

Jones, 960 F.2d 925, 936 (11th Cir. 1992), a district court must resolve all claims for

relief raised in a Section 2254 application. However, a court need not address the

merits of a claim that is untimely or procedurally barred from federal review. See

Nguyen v. United States, 420 F. App’x 875, 878 (11th Cir. 2011)1 (finding that, because

the district court found each claim either untimely or procedurally barred, the district

court resolved each claim in the motion and no Clisby violation occurred). The

district court was not required under Clisby to address the parts of grounds one and

five that Godwin either waived or procedurally defaulted. Moreover, as explained

next , a merits review at this late date is unwarranted even if not barred.

Ground Three:

Godwin contends that the district court’s mistake was in misconstruing his

claim in ground three that Detective Balkcom’s false testimony violated his rights

under Giglio v. United States, 405 U.S. 150 (1972), and “[a]s such, the Court failed to

determine the merits of the claim . . . .” (Doc. 31 at 8) The earlier order rejects the

1 << Unpublished opinions are not considered binding precedent, but they may be cited as

persuasive authority.” 11th Cir. Rule 36-2.

-3-

Cade 8:16-cv-02253-SDM-SPF

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Giglio claim because the conflicting testimony about the procedures for collecting and

preserving evidence was not “material” as required under Giglio. Godwin contends

that his claim was not about conflicting testimony but about Detective Balkcom s

allegedly perjured or misleading testimony about his actions at the impound lot.

Even if he is correct that the earlier order misconstrues his claim, Godwin is entitled

to no relief.

Godwin erroneously relies on Peterson v. Sec’y, Dep’t of Corr., 616 Fed. App’x

827, 829 (11th Cir. 2017), which applies Clisby to a district court’s misconstruing a

claim and later not addressing the actual claim when clarified in a Rule 60(b)

motion. Peterson’s inapplicability is based on Godwin’s timing of his Rule 60(b)

motion. In Peterson the Rule 60(b) motion was filed before the appeal and the denial

of relief under Rule 60(b) was included in the appeal. To the contrary, Godwin filed

his pending Rule 60(b)(1) motion after his appeal.2

Under-Rule 60(c), a party must file a motion under Rule 60(b) “within a

reasonable time,” and for a motion under Rule 60(b)(1) that reasonable time is “no

more that a year after entry of the judgment or order . . . .” However, depending on

the procedural posture, the “reasonable time” deadline is possibly less than a year.

As Kemp v. United States, 142 S. Ct. at 1864, explains, a party cannot raise in a

2 The district court’s record does not contain Godwin’s brief on appeal to determine if the

objeT=ud^

case

were denied by the circuit court on appeal.

-4-

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post-appeal Rule 60(b)(1) motion — like Godwin’s motion — an issue that the party

could have raised in both a pre-appeal Rule 60(b)(1) motion and the appeal:

Rule 60(b)(1) motions, like all Rule 60(b) motions, must be

made “within a reasonable time.” Fed. Rule Civ. Proc. 60(c)(1).

And while we have no cause to define the “reasonable time

standard here, we note that Courts of Appeals have used it to

forestall abusive litigation by denying Rule 60(b)(1) motions

alleging errors that should have been raised sooner (e.g., in a

timely appeal). See, e.g., Mendez v. Republic Bunk, 725 F. 3d 651,

660 (C.A.7 2013).131

See also Sanchez-Llamasv. Oregon, 548 U.S. 331, 350-51 (2006) (“The general rule in

federal habeas cases is that a defendant who fails to raise a claim on direct appeal is

barred from raising the claim on collateral review.”). The Eleventh Circuit applies

this same restriction on using Rule 60(b) to raise an issue that the party could have

raised on appeal. Am. Bankers Ins. Co. ofFla. v. Nw. Nat. Ins. Co., 198 F.3d 1332, 1338

(11th Cir. 1999) (“[T]he law is clear that Rule 60(b) may not be used to challenge

mistakes of law which could have been raised on direct appeal. ), Jackson v. Secy,

Fla. Dep’t of Corr., 791 F. App’x 1, 4 (11th Cir. 2019) (“The reason that Jackson’s

argument would not have entitled him to relief under Rule 60(b) is that Rule 60(b)

cmnot be used as a vehicle to raise arguments that could have, and should have,

been raised on direct appeal.”) (citing Am. Bankers). If he believed that the district

court misconstrued his claim involving Detective Balkcom s testimony, Godwin

should have filed his Rule 60(b)(1) motion before he appealed nearly two years ago.

3 Mendez further states that “a Rule 60(b) motion filed after the time to appeal has run that

seeks to remedy errors that are correctable on appeal will typically not be filed within a reasonable

time.” 725 F.3d at 660.

-5-

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Godwin’s motion (Doc. 31) under Rule 60(b), Federal Rules of Civil

Procedure, for relief from judgment is DENIED.

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL TNFORMA PAUPERIS

Godwin must obtain a certificate of appealability (“COA ) to appeal the

denial of a motion under Rule 60, Federal Rules of Civil Procedure. Jackson v.

Crosby, 437 F.3d 1290, 1294^95 (11th Cir. 2006) (“It is still the law of this circuit that

a ‘certificate of appealability is required for the appeal of any denial of a Rule 60(b)

motion for relief from a judgment in a [28 U.S.C.] § 2254 or [28 U.S.C.] § 2255

proceeding.’”) (quoting Gonzalez v. Sec’y, Dep’t of Corr., 366 F.3d 1253, 1263 (11th Cir.

2004), affd 545 U.S. 524 (2005)).

Godwin is not entitled to a COA. A prisoner applying under Section 2254 has

no absolute entitlement to appeal a district court’s denial of his application.

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 certificate of

appealability, Godwin 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). Godwin is entitled to neither a

certificate of appealability nor an appeal in forma pauperis.

-6-

Cafie 8:16-cv-02253-SDM-SPF

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A certificate of appealability is DENIED. Leave to appeal in forma pauperis is

DENIED. Godwin must obtain authorization from the circuit court to appeal in

forma pauperis.

ORDERED in Tampa, Florida, on August 16, 2022.

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

-7-

APPENDIX

Appgrtdk £

USCA11 Case: 22-13113

Document: 15

Date Filed: 11/09/2023

Page: 1 of 2

3ln tfjc

Mmhb jSfate (ttnurt of Appmh

3for tPjc lElcUcntlj (Eirnut

No. 22-13113

JONATHAN GODWIN,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No..8:16-cv-02253-SDM-SPF

Before Luck and Lagoa, Circuit Judges.

USCA11 Case: 22-13113

Document: 15

Date Filed: 11/09/2023

Order of the Court

Page: 2 of 2

22-13113

BY THE COURT:.

Jonathan Godwin has filed a motion for reconsideration of

this Court’s June 13,2023, order denying his motion for a certificate

of appealability. Upon review, Godwin's motion is DENIED

because he has offered.no new evidence or arguments of merit to

warrant relief.

■

.'i

APPENDIX

legal mail

UNITED STATES DISTRICT COURT

Provided to Wakulla Cl

MIDDLE DISTRICT OF FLOR DA

OCT 0 7 2021

TAMPA DIVISION

for mailing

JONATHAN GODWIN,

Petitioner,

Case No.: 8:16-cv-2253-SDM-SPF

SECRETARY, DEPARTMENT

OF CORRECTIONS, ET. AL.,

Respondent. /

MOTION FOR RELIEF FROM TUDGMENT

COMES NOW, the Petitioner, JONATHAN GODWIN, pro se,

pursuant to Fed. R. Civ. P. 60 (b)(1) and (4), seeking relief from the

judgment entered in the above-styled cause on October 23, 2020 denying

his habeas petition per 28 U.S.C. § 2254, and avers:

PROCEDURAL HISTORY

On or about August 8, 2016, Godwin timely petitioned for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) Upon an order

to show cause, Respondent responded thereto. (Doc. 7) On October 23,

2020, the Court entered a final judgment denying Godwin's petition in it's

entirety. (Doc. 24) A COA was denied by both this Court and the Eleventh

Circuit Court of Appeals.

JURISDICTION

Since the present Rule was drafted, the Supreme Court held that a

federal district court may hear a Rule 60(b) motion without leave from the

appellate court. See Standard Oil Co. of California v. United States, 429 U.S. 17,

97 S. Ct. 31, 50 L. Ed. 2d 21 (1976) (Appellate Court's mandate does not bar

trial court from disturbing judgment entered in accordance with mandate)

This Court's jurisdiction is based on the nature of the Rule 60(b)

arguments, and not their validity. See Zakriewski v. McDonough, 490 F. 3d

1264,1268 (1.1th Cir. 2007); see also Gonzalez, 545 U.S. at 535-36,125 S. Ct. at

2650.

1 This Honorable Court may take judicial notice of it's own records in habeas

proceedings. See McBride v. Sharpe, 25 F. 3d 962, 969 (11th Cir. 1994); see also Fed. R.

Evid.201.

ARGUMENT

THE COURT'S FAILURE TO MAKE A MERITS

DETERMINATION

THREE

CONSTITUTIONAL

CLAIMS PRESENTED BY GODWIN RESULTED IN A

DEFECT IN THE INTEGRITY OF THE HABEAS

PROCEEDINGS:

Terry Stop Issue

In Ground One of his § 2254 complaint, Godwin alleged, inter alia,

that his

Fourth

and

Fourteenth

Amendment

Rights

against an

unreasonable search and seizure as articulated by Ternj v. Ohio, 392 U.S. 1

(1967) were violated. (Doc. 1, p. 4-5). The basis for his challenge was that

"the information relied upon by the stopping officer was not sufficient to

justify the stop, and/or where the stopping officer's testimony regarding

what he knew and when he knew it was proven to be false and/or

misleading." (Id.)

Respondent argued that Godwin's claim(s) were either foreclosed by

Stone v. Powell, 428 U.S. 465 (1976) or that the stop was valid. (Doc. 7, p. 810).

In his Reply, Godwin asserted that "no full and fair hearing was

afforded [him] in the State courts concerning his Fourth Amendment

claims, i.e., that there was no objective well-founded articulate suspicion to

support the stop, and any consent given was not freely and voluntarily

given." (Citing Tubes v. Dugger, 911 F. 2d at 514) (Doc. 13, p. 4)

Nevertheless, this Court concluded:

"Although as phrased above Godwin's ground might contest

the lawfulness of the initial stop, Godwin conceded during the

hearing on the motion to suppress that the officer had probable

cause to stop his car ... Godwin stipulates in his application

that he conceded the stop based on the officer's testimony in a

strategic move to strengthen Iris argument that the search

exceeded the bounds of Terry ... Consequently, in ground one

Godwin challenges only the scope of the search, not the

lawfulness of the stop." (Doc. 24, p. 12)

Notwithstanding Godwin's allegations that "the State amended the

discovery subsequent to the suppression hearing , and he renewed his

motion at trial" and "[through counsel] reasserted that Officei Trick did

not have a well-founded articulate suspicion to support the stop" (Doc. 1,

p. 5), the Court limited Godwin's claim(s) "to the trial court's pretrial

denial of [his] motion to suppress the fruits of a search.' (Ibid.)2

2 The Court acknowledged that Godwin's Brady claim intertwined with the Fourth

Amendment claim. (Doc. 24, p. 23) As such, liberally construing Godwin's allegations as

a whole, the Court should have considered that “[Godwin] would have nevex conceded

the Terry stop had the officers told the truth." (Doc. 13, p. 23)

Godwin's habeas petition was filed pro se and without the assistance

of counsel. (Doc. 1) As such, his complaint should have been construed

liberally by this Court. See Graham v. Henderson, 89 F. 3d 75, 79 (2nd Cir.

1996) (When read liberally, a pro se habeas petition "should be interpreted

to raise the strongest arguments that [it] suggests].") (quoting Burgos v.

Hopkins, 14 F.3d 787, 790 (2nd Cir. 1994)) The Eleventh Circuit has stated,

"[W]e read pro se briefs liberally to ensure that such litigants do not,

through their ignorance of legal terminology, waive claims." See United

States v. Thien Ly, 646 F. 3d 1307,1316 (11th Cir. 2011).

Ultimately, Godwin's allegations merely set forth the supporting

historical operative facts of his claim(s). (Ibid.) see Dupree v. Warden, 715 F.

3d 1295, 1299 (11th Cir. 2013) ("A habeas petitioner must present a claim in

clear and simple language such that the district court may not

misunderstand it.") As such, this Court's failure to either construe

Godwin's allegations liberally or mistakenly failed to consider the

allegations as a whole, the result is the same, i.e., the Court failed to

determine the merits of Godwin's allegation that his constitutional right

against an unreasonable seizure under Terry was violated. An unresolved

claim constitutes a Clisby error regardless of the reason the claim was not

resolved. See Puiatti v. McNeil, 626 F. 3d 1283, 1307 (lllh Cir. 2010); see also

United States v. Wilcher, 746 Fed. Appx. 904, 2018 U.S. App. LEXIS 24061

(lllh Cir. Aug. 23, 2018) (unpublished) (relying upon Gonzalez, 545 U.S. at

535-36 because Mr. Wilcher merely wanted the district court to address

claim it previously failed to address.)3

Giglio Issue

In Ground Three of his § 2254 complaint, Godwin alleged, inter alia,

that his due process rights under Giglio v. United States, 405 U.S. 150 (1972),

was violated when the prosecutor intentionally solicited and/or failed to

correct false and/or misleading testimony presented to the jury, and used

to obtain his conviction. (Doc. 1, p. 11) Godwin asserted three separate

claims for relief premised upon the testimony of Katrina Winkler, Officer

David Trick, and Detective Gary Balkcom. (Id. atp. 11-13)

The allegations concerning Detective Gary Balkcom were set forth in

paragraph (3) of Ground Three. Godwin alleged, inter alia, that Detective

* "Unpublished opinions are not considered binding precedent, but they may be cited

as persuasive authority." Ulh Cir. Rule 36-2.

Balkcom falsely testified about the procedure for checking in/out evidence

that has allegedly been stored. (Ibid, at p. 12-13) As such, the false

testimony impeded the defense from moving to object to the admissibility

of said evidence on grounds of probable tampering, and illegal search and

seizure. (Ibid.)

The Court determined that Godwin alleges "that two police officers

gave conflicting testimony about the procedures used for collecting,

preserving, and releasing evidence, in other words, a chain of custody.

Concluding that the "admissibility of evidence as a matter of state law not

subject to federal review." (Doc. 24, p. 20-21) Continuing with it's analysis,

the Court next stated, "the prosecutor did not fail to disclose evidence, and

the two officers were subject to cross-examination about the conflicting

description of the procedure for collecting and preserving evidence."

Finally stating that "the inconsistent testimony about the procedures was

not -as discussed above - material." (Id.)

Here, Godwin contends that the Court misconstrued his claim

concerning Detective Gary Balkcom. Godwin's allegations do not suggest

"conflicting testimony about the procedures used for collecting, preserving,

and releasing evidence" by two police officers as determined by the Court.

Rather, his claim alleged that Detective Balkcom perjured and/or mislead

the jury about his actions at the impound lot. (Doc. 1, p. 12-13) More

specifically, while discounting the accuracy of his report, Detective

Balkcom committed perjury:

(by prosecutor) Q. 'Whenever you open up evidence that has

already been sealed or taped, when you go place that evidence

back in the evidence locker for lack of a better term, what

procedure do you have to do to insure that you're the one that's

had that evidence?

We reseal it, initial the tape with our initials and date. (Id.

at p. 13)

Ultimately, the answer provided by Detective Balkcom was the gist

of Godwin's claim. However, the Court misconstrued the claim. (Doc. 24,

p. 20-21) As such, the Court failed to determine the merits of the claim

properly presented by Godwin's habeas petition. Accord Petevson v. Sec y

Dep'l ofCorr., 676 Fed. Appx. 827, 829 (11th Cir. 2017) (unpublished) (the

district court misconstrued the Batson claim that Peterson asserted in his

2254 petition; therefore, the district court abused it's discretion in denying

Peterson's Rule 60(b) motion for relief from judgment).4

Stimer Issue

In Ground Five of his § 2254 complaint, Godwin alleged, inter alia,

that his due process right to presence under Kentucky v, Stincer, 482 U.S. 730

(1987), was violated by his involuntary absence at the motion for new trial.

(Doc. 1, p. 19) Godwin asserted that his "presence would've contributed to

the grounds Mr. Sinardi, Esq. attempted to argue ..." (Id. at p. 20). Hence,

his "presence would've made the hearing more reliable." (Ibid.)

The Court determined that the "post-conviction court rejected this

claim as procedurally barred." (Doc. 24, p. 32) "Consequently, the initial

question is whether the state court issued a "plain statement" applying the

independent and adequate state procedural bar. As recited above, the state

court's order (1) declares "that this claim is procedurally barred because it

could have been and should have been raised on direct appeal," (2) cites

several state cases that apply the state procedural bar to similar

-1 See Footnote 3, supra.

circumstances, and (3) concludes by denying the claim without further

analysis/7 (Id. at p. 34.) (internal quotations in original) Concluding, the

post-conviction court's order and the appellate court s affirmance in a per

curiam decision, Godwin procedurally defaulted the substantive claim in

ground five by not raising the claim on direct appeal." (Id.)

Here, Godwin contends that the Court made a mistake by enforcing

the state's procedural bar to default his claim. That is so, because it was

"inconsistent and unfair for the state courts to deny the claim on collateral

review on grounds that it should/could have been raised on direct

appeal." (Doc. 13, p. 29) Godwin presented this argument in his Reply, (hi.)

In sum, Godwin asserted in state court that he received ineffective

assistance of appellate counsel on direct appeal, for failing to argue

fundamental error occurred by his involuntary absence at the motion for

new trial. (Ibid, at p. 27) Moreover, the state court improperly applied a

procedural bar to a claim that's cognizable in a 3.850 postconviction motion

for relief. See e.g Donaldson v. State, 985 So. 2d 63, 64 (Fla. 2nd DCA 2008)

(this issue [right to presence] is properly considered in a motion filed undei

Florida Rule of Criminal Procedure 3.850)5 see also Wooten v. Sec'y, Dep't of

Corr., 2018 US. Dist. LEXIS 18361 (M.D. Orl.

Feb. 5, 2018) (Pursuant to the

Sixth Amendment, a defendant has a right to be present "at any stage of

the criminal proceedings that is critical to its outcome if [the defendant's]

presence would contribute to the fairness of the procedure.") (citing

Donaldson v. State, 985 So. 2d 63, 64 (Fla. 2lic1 DCA 2008) (quoting Kentucky v.

Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L.Ed. 2d 631 (1987). As such,

the Court should have excused the State's procedural bar ruling, and

reached the merits of Godwin's claim. See Johnson v. Mississippi, 486 U.S.

578, 588-589, 108 S.Ct. 1981, 100 L.Ed. 2d 575 (1988) (A State procedural

ground is not an adequate and independent state ground for a state court

decision, so as to bar review of a federal question ... unless the procedural

rule in question is strictly or regularly followed.); Upshaw v. Singletan/, 70 F.

3d 576, 580 (11th Cir. 1995) (because the Slate Court's denial of petitioner's

claims was inconsistent and manifestly unfair, the denial did not provide

an adequate ground to preclude federal review, and the claims were not

s Godwin's complaint and Reply cite Donaldson. (Doc. 1, p. 20; Doc. 13, p. 29)

procedural!)' barred); \Nheat v. Thigpen, 793 F. 2d 621, 625-626 (5lh Cir. 1986)

(state law does not clearly prohibit petitioner from raising issues in state

postconviction that were not raised on appeal).

CONCLUSION

Under Fed. R. Civ. P. 60(b)(1), relief is warranted when a mistake,

attributed to the district court resulted in a "defect in the integrity of the

proceedings." See Wims v. United States, 663 Fed. App'x 836, 838 (111,1 Cir.

2016) (unpublished) (relying upon Gonzalez, 545 U.S. at 535-536); see also

Parks v. U.S. Life & Credit Corp., 677 F. 2d 838, 839 (ll‘h Cir. 1982)

(explaining that Fed. R. Civ. P. 60(b)(1) applies to mistakes of judges) For

various reasons - as discussed above - the Court's failure to determine the

merits of claims properly presented in Godwin's habeas petition resulted in

a defect in the integrity of the proceedings. Hence, the judgment entered on

October 23, 2020 denying Godwin's habeas petition is void, and the

proceedings should be reopened.

WHEREFORE, based on the foregoing facts and authorities, Godwin

respectfully request that the Court grant all relief that he may be entitled to,

including but not limited to:

A. Vacate the judgment entered on October 23, 2020 denying his

habeas petition; and/or

B. Reopen the habeas proceedings; and/or

C. Grant any further relief deemed just and proper in accordance

with the law.

Respectfully Submitted,

Mr. Jonathan Godwin, pro se

Wakulla C.I.

110 Melaleuca Drive

Crawfordville, FL 32327

PECLARATION/CERTIFICATE OF SERVICE

HAVING READ the foregoing motion, I affirm under penalties of

perjury pursuant to 28 U.S.C. § 1746, all stated is true and correct, and

certify that a true copy has been handed to officials at Wakulla C.I. for

forwarding by prepaid U.S. postage to: Honorable Clerk Sam M. Gibbons,

801 North Florida Ave., Tampa, FL 33602; and Peter-Tcodanes AAG,

Concourse Center 4, 3507 E. Frontage Rd., Suite 200, Tampa, FL 33607 on

this

day of October,"2021-.

Respectfully Submitted,

Mr. Jonathan Godwin, pro se

Wakulla C.I.

110 Melaleuca Drive

Crawfordville, FL 32327

APPENDIX

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

LEGAL MAIL

Provided to

Wakulla Cl

SEP 0.9 2022

JONATHAN GODWIN,

Petitioner,

FOR MAILING

Case No: 8:i6-cv-2253-SDM-SPF

SECRETARY, DEPARTMENT

OF CORRECTIONS, ET AL,

Respondent.

MOTION TO ALTER,

AMEND AND / OR RECONSIDER

COMES NOW, the Petitioner, JONATHAN GODWIN, pro se,

pursuant to Fed.R.Civ.P. 59(e) and 60(b)(1), respectfully requesting that

the Court Alter, Amend, and/or Reconsider its order entered August 16,

2022, and avers:

1. The Court’s order states in relevant part:

Grounds One and Five:

Godwin contends that the district court’s mistake in not

addressing the merits of his claim in ground one that under Terry v.

Ohio. 832 U.S. 1 (1967), the police officers lacked probable cause to stop

his car. (Doc. 31 at 3) The earlier order determined that Godwin waived

that part of ground one when he conceded in a pretrial motion to

suppress that the officers had probable cause to stop Godwin’s car.

Consequently, the earlier order limited ground one to a challenge to the

scope of the search. Godwin argues that, notwithstanding the waiver,

the district court should have addressed the merits of the claim.

Next, Godwin contends that the district court’s mistake in not

addressing the merits of his claim in ground five that “his due process

right to presence under Kentucky v. Stincer, 482 U.S. 730 (1987), was

violated by his involuntary absence at the motion for new trial.” (Doc.

31 at 9 ) The state court held the claim was procedurally defaulted. The

earlier order rejects the Stincer claim as procedurally barred because

Godwin could not overcome the state court’s application of its

procedural default rules and show either “cause and prejudice” or

“manifest injustice.” Godwin disagrees with the district court’s

deference to the state court’s application of Florida’s procedural default

rules.

...The district court was not required under Clisbv to address the

parts of grounds one and five that Godwin either waived or procedural

defaulted.1 Moreover, as explained next, a merits review at this late

date is unwarranted even if not barred.

Ground ThreeGodwin contends that the district court’s mistake was in

“misconstruing” his claim in ground three that Detective Balkcom’s

•false testimony violated his rights under Giglio v. United States. 405

U.S. 150 (1972), and “[a]s such, the Court failed to determine the merits

of the claim...” (Doc. 31 at 8) The earlier order rejects the Giglio claim

because the conflicting testimony about the procedures for collecting

and preserving evidence was not “material” as required under Giglio.

Godwin contends that his claim was not about conflicting testimony but

about Detective Balkcom’s allegedly perjured or misleading testimony

about his actions at the impound lot. Even if he is correct that the

earlier order misconstrues his claim, Godwin is entitled to no relief.

(Doc. 40 at 2*4)

****

Ultimately concluding that, “if he believed that the district court

misconstrued his claim involving Detective Balkcom's testimony,

1 Clisbv v. Jones. 960 F.2d 925 (11th Cir. 1992)(en banc)

Godwin should have filed his Rule 60(b)(1) motion before he appealed

nearly two years ago.” (Doc. 40 at 5)

ARGUMENT TO ALTER. AMEND. AND / OR RECONSIDER2

A. Ground One

The Court’s misinterpretation of substantive facts has resulted in

an erroneous application of a dispositive legal principle, where it

determine “[t]he district court was not required under Clisbv to address

the parts of grounds one” that Godwin “waived.” (Doc. 40 at 3)

Godwin’s Rule 60(b) motion asserted that his “habeas petition was

filed pro se and without the assistance of counsel,” and therefore,

“should have been construed liberally.” (Doc. 31 at 5) He argued that

the “[district] court’s failure to either construe [his] allegations liberally

or mistakenly failed to consider the allegations as a whole, the result is

the same, i.e., the Court failed to determine the merits of [his]

allegation that his constitutional right against an unreasonable seizure

under Terry was violated.” (Id.) In support of his argument, Godwin

reiterated that his habeas petition alleged that “the state amended the

discovery subsequent to the suppression hearing,” and he “renewed his

2 Godwin will address the issues in the same chronological order as the Court.

motion at trial” and “[through counsel] reasserted that officer Trick did

not have a well-founded articulate suspicion to support the stop.” (Ibid.

at 4)

Here, based on the aforementioned, Godwin first contends that he

complied with Rule 2(c) by including “all available grounds for relief

and the facts supporting each.” See Rule 2(c), Rules Governing Habeas

Corpus Cases. As stated in his Rule 60(b) motion, “Godwin’s allegations

merely set forth the supporting historical operative facts of his

claim(s).” (Doc. 31 at 5)

Next, Godwin does not dispute the historical fact of his initial

concession of the stop based on the officers’ suppression hearing

testimony. However, Godwin contends that the concession (waiver)

applied only to the officers’ testimony presented at the pre-trial

suppression hearing. As such, that concession (waiver) did not extend to

the new evidence disclosed by the prosecution subsequent to the pre

trial suppression hearing, i.e., the audio recording of the BOLO, and the

officers testimony presented at trial.3 In other words, the waiver was

not absolute, and in fact, was receded from by Godwin at trial.

That said, the “liberal policy” of Rule 15(a) is meant to ensure the

determination of claims on the their merits. See Rule 15(a), Rules

Governing Habeas Corpus Cases. The gist of Godwin’s Rule 60(b)

motion was that the Court failed to liberally construe the allegations as

a whole supporting his Terry stop claim. Compare Delgado v. Sec’y

Den’t of Corr.. 2018 U.S. Dist. LEXIS 64051, at 3_4 (M.D. Fla. April 17,

2018)(“[p]etitioner fails to indentify where the Court failed to construe

his first ground for relief in his habeas petition liberally.”)4

In sum, Godwin’s Rule 60(b) motion argued that the habeas

court’s “waiver” determination was a strict and rigid interpretation of

the allegations. Hence, depriving him of a merits determination of his

unlawful stop claim. Therefore, the Court’s determination that the

“district court was not required under Clisbv to address the part(s) of

3 Florida law permits a trial court to revisit a ruling on a motion to suppress

where hew relevant evidence emerge at or before trial. See e.g. State v. Ellis,

491 So.2d 1296 (Fla. 3rd DCA 1986)(reversing trial court order denying State’s

motion to reopen suppression hearing)

4 The Clisbv citation referenced by Godwin has been mischaracterized by the

Court. A fair reading of the issue demonstrates that the Clisbv reference was

an after-the-fact consequence to the habeas court’s failure to “liberally

construe” the Terry claim, not the legal basis for the Rule 60(b) motion.

ground(s) one” that Godwin “waived,” was a misinterpretation of

substantive facts that resulted in an erroneous application of a

dispositive legal principle entitling Godwin to a reconsideration of the

issue.

B. Ground Five

First, the Court committed a substantive mistake of fact, when

it misconstrued Godwin’s challenge to the habeas court’s prior

procedural ruling to his substantive due process claim as articulate by

Kentucky v. Stincer. 482 U.S. 730 (1987). Contrary to the Court’s

assessment that “Godwin asserts that the court’s failure to address

these claim[s] [one and five] “constitutes a Clisbv error” (Doc. 40 at 3),”

Godwin’s challenge to the habeas court’s prior procedural ruling to

claim five did not rely upon, cite, or reference Clisbv v. Jones, 960 F.2d

925 (11th Cir. 1992). (Doc. 31 at 9*12)

Godwin’s Rule 60(b) motion argued “that the [habeas] court made

a mistake by enforcing the state’s procedural bar to default his claim.”

(Doc. 31 at 10) The Honorable Judge Behnke, ruled that Godwin’s

Stincer claim may be raised under Fla.R.Crim.P. 3.850. See Order

Granting Evidentiary Hearing. (Doc. 7, Ex. 46 at 141) However,

subsequent to the hearing, a different Judge (Honorable S. Ward), ruled

that the Stincer claim was procedurally barred. See Order Denying

Postconviction Motion for Relief. (Doc. 7, Ex. 48 at 169) The Second

District Court of Appeal affirmed without further elucidation. (Doc. 7,

Ex. 41).

Based upon said procedural history, Godwin’s motion argued that

“the [habeas] court should have excused the states procedural bar

ruling, and reached the merits of his claim.” (Doc. 31 at 11-12) See Jude

v. Halev. 250 F.3d at 1314 (The state court’s procedural rule cannot be

“manifestly unfair” in its treatment of the petitioner’s Federal

constitutional claim to be considered adequate for purposes of the

procedural default doctrine.)(quoting Card v. Dugger. 911 F.2d 1494,

1517 (11th Cir. 1990)(quotation marks in original)5

In sum, Godwin’s Rule 60(b) motion argued that the state courts

procedural bar ruling was not an independent and adequate state

ground due deference on Federal habeas review. Therefore, the Court’s

determination that the “district court was not required under Clisbv to

5 The postconviction court’s orders demonstrate that reasonable jurists not

only could, but did disagree on whether Godwin’s claim was cognizant on

postconviction review. Therefore, at the very least, the Court should reconsider

its denial of a certificate of appealability.

address the part[s] of ground[s]” five that Godwin “procedurally

defaulted,” was a substantive misconstruction of facts that resulted in

an erroneous application of a dispositive legal principle entitling

Godwin to reconsideration of the issue.

C. Ground Three

The Court determined that regardless of the issues presented by

Godwin’s Rule 60(b)(1) motion, “a merits review at this late date is

unwarranted.” (Doc. 40 at 3) That “Godwin should have filed his Rule

60(b)(1) motion before he appealed nearly two years ago.” (Ich at 5)

Based on the procedural history of the instant case, Godwin contends

that Eleventh Circuit precedent and applicable Federal Rules of Civil

Procedure 60, are at odds with the Court’s ruling. Thus, the Court has

committed a mistake of law.

The Court determined that it’s “order addresses Godwin’s asserted

entitlement to relief under Rule 60(b)(1).” (Doc. 40 at 2) The general

rule is that a motion under Rule 60(b) must be made “within a

reasonable time - and for (l), (2), and (3) no more than a year after the

entry of the judgment or order or the date of the proceeding.” See

Fed.R.Civ.P. 60(c); See also Gonzalez v. Crosby, 545 U.S. at 545 n.2

(2005)(“The motion shall be made within a reasonable time, and for

reasons, (l),(2), and (3) not more than one year after the judgment,

order, or proceeding was entered or taken.”)

First, the procedural history demonstrates that the habeas court

rendered judgment against Godwin on October 23, 2020. (See Exhibit A,

at Docs. 24 and 25 attached) According to Rule 60(c), Godwin had until

October 23, 2021, to file a motion for relief under Rule 60(b)(1). See

Turner v. Secy of Air Force. 944 F.2d 804, 807 (llth Cir.

199l)(Although the motion in this case was made after the time had

passed to file an appeal from the order, this circuit has not required

that such motions be made within that time frame... The Rule itself

states that motions under Rule 60(b)(1) must be made within a year of

the order entered.Xellipsis added) The Court’s docket show Godwin’s

Rule 60(b)(1) motion was filed on October 12, 2021 - eleven days prior

to the one year deadline. (See Exhibit A at Doc. 31, attached) As such,

the Court has committed a mistake of law, when it determined that

“Godwin should have filed his Rule 60(b)(1) motion before he appealed

nearly two years ago.” (Doc. 40 at 5) See also Lairsey v. Advance

Abrasive Co.. 542 F.2d 928, 929 (5th Cir. 1976)(“The district court

denied the motion on the ground it was untimely because not filed

within the period allowed for perfecting a timely appeal. We hold that

the motion was timely filed within the provisions of Rule 60(b) and

remand the case to the district court for consideration of the motion.”)6

Furthermore, Godwin contends that his eleventh hour Rule

60(b)(1) motion was filed “within a reasonable time” under the

circumstances presented herein. Those circumstances being:

Godwin is an incarcerated layman of the law litigating without

the assistance of a bar certified attorney.

Due to the COVID-19 pandemic, prison officials established

preventative measures to curtail the spread of the virus. As such,

Godwin could only conduct legal research and retrieve materials by

request. (See Exhibit B attached)

Even subsequent to being lifted, the COVID-19 restrictions had a

ripple effect, i.e.

law library visits for inmates where Godwin is

currently being housed are for one day a week with a maximum three

6 In Bonner v. City of Prichard. 661 F.2d 1206 (11th Cir. 1981)(en banc), the

Eleventh Circuit adopted as binding precedent all of the decisions of the former

Fifth Circuit handed down prior to the close of business on September 30,

1981. Id. at 1209.

hour session-except for verified deadlines. Subject to cancellation for

any number of reasons. (See Exhibit C attached)

Notwithstanding the limited access caused by the preventive

measures to counter COVID-19, Godwin sought both a certificate of

appealability and reconsideration thereto in the circuit court. (See

Exhibit D attached)

After two unsuccessful attempts, Godwin’s petition for writ of

certiorari was filed with the U.S. Supreme Court. (See Exhibit E

attached)

While the petition for certiorari was pending in the Supreme

Court, Godwin was also litigating an appeal in the Second District

Court of Appeal, State of Florida. See Godwin v. State. Case No. 2D213800.7

As stated by the Honorable Judge Godbold, in Lairsev. “where the

litigant has timely initiated procedure for relief, he should not be

7 In fact, this Court granted Godwin a stay pending resolution of his certiorari

petition. (See Exhibit A at Doc. 33, attached)

penalized for choice of “wrong*’ procedure.” 542 F.2d at 932. Godwin

should not be either.8

In sum, Godwin’s Rule 60(b)(1) motion was filed within a year of

the district court’s judgment in the habeas proceeding, and within a

reasonable time under the circumstances. Therefore, the Court has

committed a mistake of law, when it determined that “Godwin should

have filed his Rule 60(b)(1) motion before he appealed nearly two years

ago.” Hence, Godwin is entitled to reconsideration of his motion.

RELIEF SOUGHT

WHEREFORE, Godwin respectfully requests that the Court alter,

amend, and/or reconsider its order denying his Rule 60(b)(1) motion and

certificate of appealability, and/or grant any further relief deemed just

and proper in accordance with the law.

Respectfully submitted,

Mr. Jonathan Godwin, pro se

8 As the Court noted, “Both the district court and the circuit court declined to

issue a [COA] (Docs. 24 and 30), and the Supreme Court denied Godwin’s

application for writ of certiorari. (Doc. 34)” (Doc. 40 at 1) As such, Godwin was

denied permission to appeal the district court’s denial of his habeas petition

per 28 U.S.C. § 2254. See 28 U.S.C. § 2253(C)(1).

DECLARATION / CERTIFICATE OF SERVICE

HAVING READ the foregoing motion, I affirm under penalties of

perjury pursuant to 28 U.S.C. § 1746, all stated is true and correct, and

certify that a true and correct copy has been handed to officials at

Wakulla C.I. for forwarding by prepaid U.S. Postage to: Office of the

Clerk, United States Courthouse, 801 North Florida Ave., Tampa FL.

33602; and Sonya Roebuck Horbelt, AAG, Concourse Center 4, 3507 E.

Frontage Rd. Suite 200, Tampa FL 33607-7013 on this __ day of

September, 2022.

Respectfully submitted,

Mr. Jonathan Godwin, pro se

Wakulla C.I.

110 Melaleuca Drive

Crawfordville, FL. 32327

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

LEGAL MAIL

Provided to

Wakulla Cl

SEP 0 9 2022

JONATHAN GODWIN,

Petitioner,

FOR MAILING

Case No: 8:i6-cv-2253-SDM-SPF

SECRETARY, DEPARTMENT

OF CORRECTIONS, ET AL,

Respondent.

NOTICE OF APPEAL

NOTICE IS GIVEN, that Petitioner, Jonathan Godwin, pro se,

appeals to the Eleventh Circuit Court of Appeals, the order of this Court

dated August 16, 2022. The nature of the order appealed is a final order

under 28 U.S.C. § 1291, denying Petitioner’s Rule 60(b) motion per

Fed.R.Civ.P. 60.

Respectfully submitted,

Mr. Jonathan Godwin, pro se

Wakulla C.I.

110 Melaleuca Drive

Crawfordville, FL. 32327

DECLARATION / CERTIFICATE OF SERVICE

HAVING READ the foregoing Notice of Appeal, I affirm under

penalties of perjury pursuant to 28 U.S.C. § 17465 all stated is true and

correct; and certify that a true and correct copy has been handed to

officials at Wakulla C.I. for forwarding by prepaid U.S. Postage toOffice of the Clerk, United States Courthouse, 801 North Florida Ave.,

Tampa FL. 33602; and Sonya Roebuck Horbelt AAG, Concourse Center

4, 3507 E. Frontage Rd. Suite 200, Tampa FL 33607'7013 on this

day of September, 2022.

Respectfully submitted,

Mr. Jonathan Godwin, pro se

Wakulla C.I.

110 Melaleuca Drive

Crawfordville, FL. 32327

APPENDIX

Caie 8:16-cv-02253-SDM-SPF

Document 44

Filed 12/20/2022

Page 1 of 1 PagelD 743

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JONATHAN GODWIN,

Applicant,

CASE NO. 8:16-cv-2253-T-23SPF

SECRETARY, Department of Corrections,

Respondent.

ORDER

An earlier, lengthy order (Doc. 24) denies Godwin’s application under

28 U.S.C. § 2254 for the writ of habeas corpus. Both the district court and the circuit

court declined to issue a certificate of appealability (Docs. 24 and 30), and the

Supreme Court denied Godwin’s application for the writ of certiorari. (Doc. 34)

Godwin moved under Rule 60(b)(1), Federal Rules of Civil Procedure, which the

district court denied. (Docs. 31 and 40) Godwin requests reconsideration under

Rules 59(e) and 60(b)(1) of the last order (Doc. 40) denying relief under Rule 60(b)(1).

Reconsideration of the order denying reconsideration is unwarranted.

Godwin’s motion (Doc. 41) is DENIED.

ORDERED in Tampa, Florida, on December 20, 2022.

STEVEN D. MERRYDAY

UNTIED STATES DISTRICT JUDGE

APPENDIX

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