EPPS

v.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS (PUTNAM COUNTY)

I. Status

Petitioner, 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 by a Person in State Custody (Doc. 1) on March 24, 2020.1 He also filed a Motion to Consider Actual Innocence to Cure Petitioner’s Procedural Default (Doc. 2), which the Court construed as argument in support of his Petition (Doc. 3). He challenges a 2001 state court (Putnam County, Florida) judgment of conviction for first degree murder of Amos Brown and attempted first degree murder of Rashad Medlock. Petitioner is serving life in prison. Respondents filed a   1 The Court uses the date Petitioner certified that he placed the Petition in the prison mailing system. Doc. 1 at 16. Response (Doc. 8), with exhibits (Doc. 10; Resp. Ex.), arguing that this case is untimely filed and should be dismissed with prejudice. Petitioner filed a Reply (Doc. 13).2 This case is ripe for review.3

II. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996 (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;   2 In his Reply, Petitioner attempts to “amend” his Petition to add his motion to interview jurors that he filed in state court after he initiated this case. See Doc. 13 at 3. However, requests for affirmative relief must be made in a motion. See Fed. R. Civ. P. 7(b) (“A request for a court order must be made by motion.”); see also Rosenberg v. Gould, 554 F. 3d 962, 967 (11th Cir. 2009) (“Where a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly.” (quotations and citation omitted)). Thus, Petitioner’s request to amend his Petition is improper and the Court declines to consider it. 3 “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 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. (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 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

Following a jury trial, the state court entered judgment against Petitioner on March 15, 2001. Resp. Ex. 1 at 312-19. Petitioner appealed, and the Fifth District Court of Appeal per curiam affirmed Petitioner’s judgment and convictions without a written opinion on March 26, 2002. Resp. Ex. 7. The mandate issued on April 12, 2002. See Epps v. State, No. 5D01-898 (Fla. 5th DCA).

Petitioner’s judgment and sentence became final on June 24, 2002, which is 90 days after the Fifth DCA’s per curiam decision. See Clay v. United States, 537 U.S. 522 (2003); Close v. United States, 336 F. 3d 1283, 1285 (11th Cir. 2003) (“According to rules of the Supreme Court, a petition for certiorari must be filed within 90 days of the appellate court’s entry of judgment on the appeal or, if a motion for rehearing is timely filed, within 90 days of the appellate court’s denial of that motion.” (citing Supreme Court Rule 13.34)). The next day, June 25, 2002, Petitioner’s federal one-year limitations period began to run, and it ran for 275 days until it was tolled on March 27, 2003,5 by the filing of Petitioner’s counseled motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. 9 at 1-11. Petitioner twice amended his motion. Id. at 32-43, 67-76. After holding an evidentiary hearing, the circuit court denied the motion on November 15, 2004. Id. at 86-88. Petitioner, through counsel, appealed the denial of his Rule 3.850 motion, and the Fifth DCA per   4 See Sup. Ct. R. 13.3 (“The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate.”). 5 The prison date stamp reflects that Petitioner mailed the motion, presumably to his counsel, on March 27, 2003. Resp. Ex. 9 at 1. Counsel completed the certificate of service on April 1, 2003, and the motion was filed with the clerk on April 4, 2003. Id. at 1, 6. Because it makes no difference in the outcome, the Court uses the date Petitioner signed the motion. curiam affirmed the denial without a written opinion and issued the mandate on October 28, 2005. Resp. Exs. 13, 14; see Epps v. State, No. 5D05-837 (Fla. 5th DCA). The next day, October 29, 2005, Petitioner’s one-year limitations period continued to run for 90 days until it expired on January 27, 2006. Petitioner filed the instant case on March 24, 2020—more than 14 years after his one-year limitations period expired.

Petitioner recognizes that his Petition is untimely. See Doc. 1 at 14-15. He does not argue that he is entitled to equitable tolling. Instead, he argues that the state court’s decision denying his claim that his trial counsel was ineffective for failing to consult with him when deciding not to discuss any lesser-included offenses with the jury and his claim relating to newly discovered evidence was “patently unreasonable.” Doc. 2 at 2.6 Petitioner includes an affidavit that summarizes the “proffered testimony” of himself, Ronnie Maples, Kearfer Medlock, Rashad Medlock, a Ballistics Expert, and a Forensic Expert.

Id. at 5-20. He claims that this evidence shows he is actually innocent and thus his failure to comply with the one-year limitations period should be waived. See Doc. 13; see also Doc. 1 at 14-15. “[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or, as in

In his affidavit, Petitioner avers that at the end of 2001 or beginning of 2002, while he was housed at Taylor Correctional Institution, he was approached by inmate Ronnie Maples, who claimed that he saw Tyree Belton murder Amos Brown.⁷ Doc. 2 at 5. He also states that later, while still housed at Taylor CI, Kearfer Medlock, the brother of attempted murder victim Rashad Medlock, approached Petitioner and explained that “everybody knows” Petitioner was not the shooter. Id. at 6. Kearfer allegedly told Petitioner that Belton admitted to Kearfer that Belton murdered Brown and shot Rashad by

Amos Brown and Rashad Medlock.” Id. at 16. Petitioner also asserts that while the state’s forensic expert testified that no gunpowder residue was found in Petitioner’s car, he wants to present testimony from a forensic expert “that, all things considered, the upholstery [in Petitioner’s car] should have been covered in copious amounts of GPR, and that – in their opinion – [Petitioner’s vehicle] was not the car” from which the shot was fired. Id. at 18. Petitioner has not offered any new reliable evidence to sustain an assertion of actual innocence. He largely rehashes the testimony given at his trial. Indeed, evidence was presented at trial regarding the different identifications of the vehicle used in the shooting, the race of the individuals in that vehicle, and the gunshot residue and importance of the “spread.” During closing arguments, Petitioner’s defense counsel referred to the shotgun pellets and the spread:

And the interesting thing is no pellets are recovered. And you’ve heard testimony - - you’ve heard the testimony about the spread and how gunshot works. But there is no pellets anywhere. Not on the ground. Not anywhere at the scene. No wadding. No shells. And you need to play [sic] close attention to the wounds on Medlock and Brown. And look at that, establish the spread. Use your common sense.

Could the victims have been standing as described by Medlock and Robinson and Daniels? Are the injuries consistent with one shot?

Now, it’s just a little confusing.

We’ve got an expert who says if this was a 20- gauge shotgun and you’re using Number Three buckshot, the maximum - - the maximum that you can load the shell into a 20-gauge is a shell with 20 pellets. Yet, we have nine pellets into Mr. Medlock, 13 pellets into Mr. Brown, and one or two, maybe, into Mr. Daniels. Any way you count them, it comes up to 23, 24 pellets.

Ladies and Gentlemen, does that mean that this was not a 20-gauge that was used, but a different gauge? And what type of ammunition was actually used? Was it self-loaded ammunition? Was it manufactured? Was it, as the State - - I don’t know whether they’re trying to get you to assume that - - was it the same type of ammunition that was found with the gun they found at Robert Adkins’ house under the sofa? Was it Federal, Winchester, Remington? Do we know? And do we even know, where is the shotgun that was used to shoot Medlock and Brown? What gun was used? What ammo? Resp. Ex. 2 at 1126-27; see id. at 1132-33 (reiterating to the jury the importance of considering the spread). Defense counsel also pointed out the discrepancies in the testimony regarding the color of the vehicle and race of the shooter: And [Rashad Medlock] tells you, it was after midnight that this white Ford, or what it - - later he told Officer Zike it was a gray Trans Am. He told Lieutenant Harper it was a gray Trans Am with four black males in it, came - - first came by the house. And then he said that same vehicle returned about three. So we are talking about from midnight to three, according to him.[9]

Mr. Robinson says it was a gray car. And he says there were at least two white males in it and one female. Now, if we’re talking about the same - - if we’re talking about Jimmy Epps and the same group of people - - if we’re talking about the same car being the car that Mr. Robinson admits that he went up and didn’t hit someone, maybe slapped them, or maybe unintentionally got his hand knocked into the person as they pulled away in this gray car - - where is the female?

. . . .

Mr. Daniels testified. It was a gray car, after midnight, returned 30 minutes, at max, 40 minutes afterwards. . . . He saw the gun that was used. A sawed-off shotgun.

. . . .

The State would have you jump to some sort of conclusion that the gun that they have kept parading around here is the gun that was used. And if you will   9 On cross-examination, Rashad denied ever telling anyone that a black person had shot him. Ex. 2 at 546. recall, I asked Mr. Daniels, is that his interpretation of a sawed-off shotgun? And he said no. Id. at 1130-31; see id. at 1138 (defense counsel summarizing Lieutenant Griffith’s testimony: “And he had a description of a white, gray, beige, tan vehicle. Blue is close enough for him.”). Detective Lassiter testified that he did not know whether there was any gunshot residue found in Petitioner’s vehicle. Resp. Ex. 2 at 650. Lieutenant Griffith testified that he did not find any gunshot residue, discarded casings, or waddings in Petitioner’s vehicle. Id. at 719. Allen Miller, a Senior Crime

Laboratory Analyst with the Florida Department of Law Enforcement, testified that “it’s not uncommon not to find” any gunshot residue on the door of a vehicle. Id. at 1024, 1028. Petitioner’s brother testified that he was with Petitioner at the time of the shooting, and that before Petitioner shot the gun, he said, “Hey, ni**er.” Resp. Ex. 2 at 801-02, 807. Testimony was also presented that before the shooting, Petitioner stated multiple times, in essence, that he was going to kill a ni**er, and after the shooting, he stated that he (or we/they) had shot or killed a ni**er. See id. at 395, 415, 450-51, 472-74, 476, 491, 495, 513, 732, 759-60, 799. Petitioner testified on his own behalf, denying that he ever shot a shotgun on the date in question and trying to point the blame on his brother. See id. at 1038-40; see also id. at 1064-65 (testifying that his brother shot at a black male in East Palatka that evening, but they did not travel to the part of Palatka where Brown and Rashad were shot). He also denied telling anyone that he was going to kill a nier or that he/they had shot a niger. See id. at 1055, 1056, 1057, 1059, 1060, 1061. Upon review, this Court finds that Petitioner simply wants to remold the testimony that was provided at trial. However, the jury considered that testimony and found Petitioner guilty. Notably, in his Rule 3.850 proceeding, Petitioner acknowledged, under penalty of perjury, that he was not guilty of first-degree murder, but instead, he was only guilty of manslaughter.¹⁰ “It is important to note in this regard that ‘actual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998); see Rozzelle, 672 F. 3d at 1015 (deciding “that the narrow and extraordinary nature of Schlup’s actual innocence ‘gateway’ does not extend to petitioners . . . who did the killing and whose alleged ‘actual innocence’ of a non-

capital homicide conviction is premised on being guilty of only a lesser degree of homicide”). When Petitioner’s “newly discovered evidence” is considered along with the testimony and evidence presented at trial, it cannot be said that it is “more

1011. Petitioner has failed to show that he is entitled to the “exceedingly narrow” actual innocence exception. Johnson v. Alabama, 256 F. 3d 1156, 1171 (11th Cir. 2001). Accordingly, it is

ORDERED:

1. This case is DISMISSED with prejudice as untimely.

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.¹¹

ee Cirmotheg 9. Corrig on Ww. TIMOTHY J. CORRIGAN United States District Judge

JAX-3 11/28

C: Jimmy Ray Epps, #J05338 Counsel of Record