PARENT v. STATE OF FLORIDA

Filing 36

ORDER denying 1 the petition; dismissing the action with prejudice; instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 6/8/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DENIS ANDRE PARENT,
Petitioner,
v.

Case No. 3:14-cv-1346-J-39MCR

SECRETARY, DOC, et al.,
Respondents.
ORDER
I.

STATUS

Petitioner Denis Andre Parent challenges a 2013 (Columbia
County) conviction for lewd or lascivious molestation of a child
(violation of probation). Petition Under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1)
at 1. He filed the Petition on October 20, 2014, pursuant to the
mailbox

rule.1

He

raises

three

grounds

in

the

Petition.

Respondents filed an Answer in Response to Order to Show Cause
(Response) (Doc. 26).

1

In support of the Response, they attach an

The Court gives pro se inmate petitioners the benefit of the
mailbox rule. Houston v. Lack, 487 U.S. 266, 276 (1988). See 28
U.S.C. § 2244(d). In this instance, the Petition was provided to
the prison authorities for mailing on October 20, 2014. Petition
at 14. See Rule 3(d), Rules Governing Section 2254 Cases in the
United States District Courts. The Court will also give Petitioner
the benefit of the mailbox rule with respect to his inmate state
court filings when calculating the one-year limitation period under
28 U.S.C. § 2244(d).

Appendix (Doc. 26).2

Petitioner filed a Rebuttal to State's Answer

on Order to Show Cause (Reply) (Doc. 27).

See Order (Doc. 11).

He

also filed a Notice of the Court (Doc. 34), attaching a response
from the Florida Bar dated June 3, 2016, stating that the Bar's
records show that James V. Modica is an active member in good
standing with the Florida Bar and is up to date with his CLE
requirements.

(Doc. 34-1).

To adequately address Petitioner's claims, the Court will
provide a brief procedural history.

Petitioner was charged by

information with sexual battery upon a child under twelve years of
age.

Ex. A.

He entered a plea agreement to a lesser offense of

lewd or lascivious molestation of a child, and was sentenced to
probation for fifteen years.

Ex. B; Ex. C.

Petitioner violated

his terms of probation, Ex. D, and on October 6, 2004, the court
sentenced him to two years community control with credit for time
served on community control and to continued probation.

Ex. E.

Petitioner violated his terms of community control. Ex. F, and on
March 8, 2005, the court sentenced him to twenty-one days in the
county jail and reimposed probation.

Ex. G.

Once again, on

February 1, 2013, a Correctional Probation Specialist filed an

2

The Court hereinafter refers to the exhibits contained in
the Appendix as "Ex." Where provided, the page numbers referenced
in this opinion are the Bates stamp numbers at the bottom of each
page of the Appendix. Otherwise, the page number on the particular
document will be referenced. The Court will reference the page
numbers assigned by the electronic docketing system where
applicable.
- 2 -

Affidavit [of] Violation of Probation.

Ex. H.

This time, it

charged Petitioner with:
viewing, accessing, owning, or possessing any
obscene, pornographic, or sexually stimulating
visual
or
auditory
material,
including
telephone,
electronic
media,
computer
programs, or computer services that are
relevant to the offender's deviant behavior
pattern, unless otherwise indicated in the
treatment plan provided by the sexual offender
treatment program, and as grounds for belief
that
the
offender
violated
her
[sic]
probation, Officer Wanda G. Ashley states that
on February 1, 2013 the offender was found to
be viewing child porn, as told to this officer
by pictures/images on the subject's cell phone
on February 1, 2013.
Id.
On July 31, 2013, during a change of plea hearing/disposition,
Plaintiff admitted to the violation of probation.

Ex. I at 5.

After a full plea colloquy and the reading of the plea agreement,
the trial court found Petitioner freely, knowingly, and voluntarily
entered

the

Petitioner

plea

with

expressed

the

advice

complete

of

counsel.

satisfaction

acknowledging that the ten-year deal was "good."3

Id.
with

at

11.

counsel,

Id. at 11-12.

The court revoked his probation and sentenced Petitioner to ten
years in prison, followed by ten years probation, as set forth in
the plea agreement.

Id. at 9, 12.

The court advised that

Petitioner had thirty days to appeal his sentence.

3

Id. at 15.

On

The court described it as a "generous plea agreement[.]"
Id. at 9. Indeed, Petitioner faced a possible thirty-year prison
sentence. Id. at 8-9.
- 3 -

July 31, 2013, the court entered a Probation Violator judgment and
sentence.

Ex. J.

Petitioner sent letters to the court asking to change his
plea.

Ex. K.

The court, construing the letters as a motion,

denied the motion to withdraw the plea.

Ex L.

Finding no lack of

subject matter jurisdiction, no violation of the plea agreement,
sentencing error, or any other basis for relief under Florida law,
the court rejected his motion.

Id.

Additionally, the court found

that any claim of an involuntary plea is refuted by the record.
Id.
Petitioner filed a Rule 3.850 motion for post conviction
relief.

Ex.

M.

He

claimed

newly

ineffective assistance of counsel.

discovered

Id. at 5.

evidence

and

He said that the day

after his plea, a person who used his phone was willing to admit
that he used the phone on the date at issue.

Id.

Petitioner

claimed his counsel never informed him "on how to withdraw my plea
or what grounds were needed[.]" Id.

The circuit court, on October

10, 2013, dismissed the motion as being insufficient on its face,
without prejudice to Petitioner filing an amended motion.

Ex. N.

With respect to the first ground, the newly discovered evidence
claim, the court noted its insufficiency because Petitioner failed
to attach an affidavit from a person whose testimony is necessary
to factually support the claim, or an explanation why the affidavit
could not be obtained.

Id.

With regard to both grounds, the court

- 4 -

found the motion to be conclusory, lacking specific facts to
support the claims.

Id.

Thereafter, Petitioner moved to withdraw his plea. Ex. O. He
renewed his claims of newly discovered evidence and ineffective
assistance of counsel.

Id.

The circuit court denied the motion,

construed to be an untimely motion pursuant to Rule 3.170(1), Fla.
R. Crim. P., or alternatively, an insufficient Rule 3.850 motion.
Ex. P. The court noted Petitioner's failure to attach an affidavit
and the motion's insufficiency.

Id.

Petitioner sought an extension of time to file a Rule 3.800(c)
motion.

Ex. Q.

He then filed a motion to reduce his sentence

pursuant to Rule 3.800(c).

Ex. R.

them untimely and without merit.

The court denied both, finding
Ex. S.

Pointedly, the court

noted that the sentence was imposed pursuant to a negotiated plea
agreement, and as the plea agreement is a contract, Petitioner
"cannot change the terms of that contract by filing a rule 3.800(c)
motion."

Id. (citation omitted).

On April 2, 2014, Petitioner filed another Rule 3.850 motion.
Ex. T.

Petitioner claimed the ineffective assistance of counsel

for failure to investigate and newly discovered evidence.
5.

Id. at

Petitioner asserts that his failure to present an affidavit or

provide reason for not submitting an affidavit with his prior Rule
3.850 motion was the result of counsel's failure to inform him that
it was necessary to support his motion.

- 5 -

Id.

The circuit court

found the motion to be successive, concluding that the court
already ruled upon an amended motion.

Ex. U.

As such, the court

denied the post conviction motion with prejudice.
II.

Id.

STANDARD OF REVIEW

The AEDPA governs a state prisoner's federal petition for
habeas corpus. See 28 U.S.C. § 2254; Ledford v. Warden, Ga.
Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S.Ct. 1432 (2017). "'The purpose of AEDPA
is to ensure that federal habeas relief functions as a guard
against extreme malfunctions in the state criminal justice systems,
and not as a means of error correction.'"

Id. (quoting Greene v.

Fisher, 132 S.Ct. 38, 43 (2011)).
Under
AEDPA,
when
a
state
court
has
adjudicated the petitioner's claim on the
merits, a federal court may not grant habeas
relief unless the state court's decision was
"contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States," 28 U.S.C. § 2254(d)(1), or
"was based on an unreasonable determination of
the facts in light of the evidence presented
in the State court proceeding," id. §
2254(d)(2). A state court's factual findings
are presumed correct unless rebutted by clear
and convincing evidence.[4] Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th
Cir. 2011).

4

"This presumption of correctness applies equally to factual
determinations made by the state trial and appellate courts." Pope
v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012)
(quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)), cert.
denied, 133 S.Ct. 1625 (2013).
- 6 -

..."It bears repeating that even a strong case
for relief does not mean the state court's
contrary
conclusion
was
unreasonable."
[Harrington v. Richter, 562 U.S. 86, 101
(2011)] (citing Lockyer v. Andrade, 538 U.S.
63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144
(2003)). The Supreme Court has repeatedly
instructed lower federal courts that an
unreasonable application of law requires more
than mere error or even clear error. See,
e.g., Mitchell v. Esparza, 540 U.S. 12, 18,
124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer,
538 U.S. at 75 ("The gloss of clear error
fails to give proper deference to state courts
by conflating error (even clear error) with
unreasonableness."); Williams v. Taylor, 529
U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000) ("[A]n unreasonable application of
federal law is different from an incorrect
application of federal law.").
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253–54 (11th Cir. 2013),
cert. denied, 135 S.Ct. 67 (2014).
In applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its merits.
Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th
Cir. 2016).5

Regardless of whether the last state court provided

a reasoned opinion, "it may be presumed that the state court
adjudicated

the

claim

on

the

merits

in

the

absence

of

any

indication or state-law procedural principles to the contrary."

5

As recently suggested by the Eleventh Circuit in Butts v.
GDCP Warden, 850 F.3d 1201, 1204 (11th Cir. 2017), in order to
avoid any complications if the United States Supreme Court decides
to overturn Eleventh Circuit precedent as pronounced in Wilson v.
Warden, Ga. Diagnostic Prison, 834 F.3d 1227 (11th Cir. 2016) (en
banc), cert. granted, 137 S.Ct. 1203 (2017), this Court, will
employ "the more state-trial-court focused approach in applying §
2254(d)[,]" where applicable.
- 7 -

Harrington v. Richter, 562 U.S. 86, 99 (2011); see also Johnson v.
Williams, 133 S.Ct. 1088, 1096 (2013).

"The presumption may be

overcome when there is reason to think some other explanation for
the state court's decision is more likely."

Richter, 562 U.S. at

99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the last adjudication on the merits is unaccompanied by
an explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
"[A]

habeas

court

must

determine

what

arguments

Id. at 98.
or

theories

supported or, as here, could have supported, the state court's
decision; and then it must ask whether it is possible fairminded
jurists

could

disagree

that

those

arguments

or

theories

are

inconsistent with the holding in a prior decision of [the] Court."
Richter, 562 U.S. at 102; Marshall, 828 F.3d at 1285.
Although the § 2254(d) standard is difficult to meet, it was
meant to be difficult.

Indeed, in order to obtain habeas relief,

"a state prisoner must show that the state court's ruling on the
claim being presented . . . was so lacking in justification that
there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement."

Richter, 562

U.S. at 103.
III.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

Ground One

In his first ground, Petitioner raises a claim of ineffective
assistance of trial counsel for: "[l]egal inefficiency: Public
- 8 -

Defender was more eager to leave the Public Defender[']s Office
than taking care of my motions. His inability to discharge my case
was a legal [sic] required duty.

Mr. Modica's wrongful conduct

affected my case[.]" Petition at 5.

Apparently, Petitioner blames

his counsel for failure to move to discharge his case by timely
moving to withdraw Petitioner's plea.

Petitioner asserts that he

exhausted this ground by raising it on direct appeal.

Id.

Upon

review, however, he did not take a direct appeal.
Respondents urge this Court to find that this ground is
unexhausted because in Petitioner's post conviction motion, he
focused on the claim that counsel never explained to him how to
properly withdraw his plea.

Response at 15.

Also, the record

shows that two of Petitioner's motions for post conviction relief
were dismissed as insufficient.

Ex. N; Ex. P.

In addition, the

circuit court found a motion for extension of time to be untimely
and concluded that a post conviction Rule 3.800 motion cannot be
used to challenge or change the terms of a plea bargain contract.
Ex. S. Finally, the circuit court rejected a final post conviction
motion as successive.

Ex. U.

In addressing the question of exhaustion, this Court must ask
whether Petitioner's claim was fairly raised in the state court
proceedings:
Before seeking § 2254 habeas relief in
federal court, a petitioner must exhaust all
state court remedies available for challenging
his conviction. See 28 U.S.C. § 2254(b), (c).
For a federal claim to be exhausted, the
- 9 -

petitioner must have "fairly presented [it] to
the state courts." McNair v. Campbell, 416
F.3d 1291, 1302 (11th Cir. 2005). The Supreme
Court has suggested that a litigant could do
so by including in his claim before the state
appellate court "the federal source of law on
which he relies or a case deciding such a
claim on federal grounds, or by simply
labeling the claim 'federal.'" Baldwin v.
Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158
L.Ed.2d 64 (2004). The Court's guidance in
Baldwin "must be applied with common sense and
in light of the purpose underlying the
exhaustion requirement"—namely, giving the
state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at
1302. Thus, a petitioner could not satisfy the
exhaustion requirement merely by presenting
the state court with "all the facts necessary
to support the claim," or by making a
"somewhat similar state-law claim." Kelley,
377 F.3d at 1343–44. Rather, he must make his
claims in a manner that provides the state
courts
with
"the
opportunity
to
apply
controlling legal principles to the facts
bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir.
2012), cert. denied, 133 S.Ct. 875 (2013).
The doctrine of procedural default requires the following:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
are
accorded
the
finality
and
respect
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman, supra, at 747–748, 111 S.Ct.
2546; Sykes, supra, at 84–85, 97 S.Ct. 2497. A
- 10 -

state court's invocation of a procedural rule
to deny a prisoner's claims precludes federal
review of the claims if, among other
requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. ––––, ––––, 131 S.Ct.
1120, 1127–1128, 179 L.Ed.2d 62 (2011); Beard
v. Kindler, 558 U.S. ––––, ––––, 130 S.Ct.
612, 617–618, 175 L.Ed.2d 417 (2009). The
doctrine barring procedurally defaulted claims
from being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012).
Respondents assert that this Court is procedurally barred from
reviewing ground one.

Response at 16-18.

This Court finds that

ground one is unexhausted because Petitioner failed to fairly raise
his claim in the state court system, thus the trial court never
considered the merits of this claim.

See Castille v. Peoples, 489

U.S. 346, 351 (1989) (raising a claim in a procedural context in
which its merits will not be considered does not constitute fair
presentation).
Procedural

defaults

may

be

excused

under

certain

circumstances; "[a] petitioner who fails to exhaust his claim is
procedurally barred from pursuing that claim on habeas review in
federal court unless he shows either cause for and actual prejudice
from the default or a fundamental miscarriage of justice from
applying the default."

Lucas, 682 F.3d at 1353 (citing Bailey v.
- 11 -

Nagle, 172 F.3d 1299, 1306 (11th Cir. 1999) (per curiam)).

The

fundamental miscarriage of justice exception is only available in
extraordinary cases upon a showing of "'actual' innocence" rather
than mere "'legal' innocence."

Johnson v. Ala., 256 F.3d 1156,

1171 (11th Cir. 2001) (citations omitted), cert. denied, 535 U.S.
926 (2002).
Petitioner did not fairly and/or properly present this federal
constitutional claim to the state courts.

Any further attempts to

seek post conviction relief in the state courts on this ground will
be unavailing.

As such, he has procedurally defaulted this claim

of ineffective assistance of counsel.
Although Petitioner attempts to blame his counsel for his
failure to properly seek to withdraw his plea based upon newly
discovered

evidence,

the

circuit

court

specifically

advised

Petitioner that he must "attach an affidavit 'from any person whose
testimony is necessary to factually support the defendant's claim
for relief' or 'an explanation why the required affidavit could not
be obtained[.]'" Ex. N.

The court gave Petitioner the opportunity

to provide a sufficient motion by dismissing his Rule 3.850 motion
without prejudice and allowing him to file an amended motion
compliant with the court's directive.

Id.

Instead of heeding the

admonition of the circuit court, Petitioner filed another deficient
motion, once again alleging newly discovered evidence/ineffective
assistance of counsel, but failing to attach an affidavit or
provide an explanation why the affidavit could not be obtained.
- 12 -

Ex. O.

This time, the circuit court denied the motion with

prejudice as facially insufficient because Petitioner failed to
heed the court's directive to provide an affidavit or explanation
why the required affidavit could not be obtained.

Ex. P.

Therefore, Petitioner must demonstrate cause and prejudice.
First, Petitioner must demonstrate cause for his default.

This

cause has to result from an objective factor external to the
defense, and that factor had to prevent Petitioner from raising his
constitutional claim which cannot be fairly attributable to his own
conduct.

Johnson v. Ala., 256 F.3d at 1171; Wright v. Hopper, 169

F.3d 695, 706 (11th Cir.), cert. denied, 528 U.S. 934 (1999).

In

order for Petitioner to establish prejudice, he must show that the
alleged errors actually and substantially disadvantaged his defense
resulting in a denial of fundamental fairness.

Johnson v. Ala.,

256 F.3d at 1171 (citation omitted).
Upon full consideration, the Court finds that Petitioner has
not shown cause and prejudice.
circuit
conduct.

court's

directive

is

His failure to comply with the
fairly

attributable

Also, he has failed to show prejudice.

to

his

own

Petitioner

accepted the plea bargain and admitted that he violated his
probation "by viewing, accessing, owning or possessing any obscene,
pornographic or sexually stimulating visual or auditory material on
or about February 1st, 2013."6

6

Ex. I at 5.

He also wanted the

On February 1, 2013, Petitioner had in his possession a
cellular telephone with seventeen pictures of child pornography.
- 13 -

good deal, as he was facing a maximum sentence of thirty years in
prison.

Id. at 12.

Additionally, he failed to show that failure

to address this claim on its merits would result in a fundamental
miscarriage of justice.

This is not an extraordinary case as

Petitioner has not made a showing of actual innocence.
In conclusion, the Court finds that ground one is unexhausted
and procedurally defaulted.

Also of import, the fundamental

miscarriage of justice exception is inapplicable to the case at
bar. As a result, Petitioner is barred from pursuing ground one in
federal court.
B.

Ground Two

In his second ground, Petitioner claims newly discovered
evidence.

Petition

at

6.

Petitioner

states

that

another

individual has come forward as the perpetrator of the crime.

Id.

This ground is unexhausted and procedurally defaulted. His motions
for post conviction relief were denied as insufficient on their

Ex. H, Complaint/Arrest Affidavit.
Per Petitioner, "Parent's
employer knew of pictures on [Petitioner's] phone and called [the]
probation office."
Reply at 5.
As noted by Respondents,
Petitioner's possession of the cellular telephone containing these
pornographic images was enough to constitute a violation of
probation. Response at 30. Petitioner did not have to be the
person who actually downloaded the images onto the cellular
telephone or took the photographs; Petitioner's possession of the
telephone with pornographic images could constitute a violation of
the terms of probation. Id.
- 14 -

face.7

Ex. N; Ex. P.

Since Petitioner did not properly exhaust

this claim, he did not fairly present it to the state courts.
It should be noted that exhaustion requires not only the
filing of a Rule 3.850 motion, but an appeal of its denial.
Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) (per
curiam).

Ground two is unexhausted and procedurally defaulted.

Petitioner has not shown cause for his default.

"Because [the

petitioner] has failed to establish one element of the cause and
prejudice exception, he cannot show the exception applies. Johnson
v. Singletary, 938 F.2d 1166, 1175 (11th Cir. 1991)(citing Engle v.
Isaac, 456 U.S. 107, 134 n. 43 (1982)), cert. denied, 506 U.S. 930
(1992).

Also,

Petitioner

has

not

met

the

actual

innocence

exception, referred to as the fundamental miscarriage of justice
exception.

Since he has failed to make a colorable showing of

actual innocence, Crawford v. Head, 311 F.3d 1288, 1327 (11th Cir.
2002) (citation omitted), cert. denied, 540 U.S. 956 (2003), the
Court will apply the default to ground two.
Petitioner did not fairly present his federal constitutional
claim to the state courts.

Instead, he came to this Court without

a final state court ruling on the merits of his claim.

Petitioner

has procedurally defaulted ground two. Since Petitioner has failed
to show cause and he has failed to make a colorable showing of

7

Of note, the circuit court found the third post conviction
motion successive and did not reach its merits. Ex. U.
- 15 -

actual innocence, the Court will not address the merits of ground
two.
Petitioner

alleges

that

someone

else

cellular telephone phone on February 1, 2013.

had

access

to

his

Even though someone

else may have handled or used Petitioner's cellular telephone or
downloaded

images

onto

the

cellular

telephone,

Petitioner's

possession of a telephone containing pornographic images was enough
to constitute a violation of probation.

Ex. H.

This is not an

extraordinary case as Petitioner has not made a showing of actual
innocence rather than mere legal innocence.

Thus, Petitioner is

barred from pursuing this claim of newly discovered evidence in
federal court.
Alternatively, to the extent Petitioner is claiming actual
innocence as a free-standing claim, the Petition is due to be
denied. In this Circuit, precedent forbids granting federal habeas
relief for freestanding, non-capital claims of actual innocence.
Rozzelle v. Sec'y, Fla. Dep't of Corr., 672 F.3d 1000, 1010-11
(11th Cir.) (per curiam) (citing Herrera v. State, 506 U.S. 390,
400 (1993)), cert. denied, 133 S.Ct. 351 (2012).

In Herrera, 506

U.S. at 400, the Supreme Court noted that "[c]laims of actual
innocence based on newly discovered evidence have never been held
to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal
conviction."

The Supreme Court explained:

"[t]his rule is

grounded in the principle that federal habeas courts sit to ensure
- 16 -

that

individuals

are

not

imprisoned

in

Constitution - not to correct errors of fact."

violation
Id.

of

the

Finally, the

Supreme Court warned: "[f]ew rulings would be more disruptive of
our federal system than to provide for federal habeas review of
freestanding claims of actual innocence."

Id.

401.

In this ground, Petitioner is attempting to place all blame
for his probationary violation on a third party, claiming innocence
and denying his commission of the violation. The Eleventh Circuit,
however, has stated, "[f]or what it is worth, our precedent forbids
granting habeas relief based upon a claim of actual innocence,
anyway, at least in non-capital cases."

Jordan v. Sec'y, Dep't of

Corr., 485 F.3d 1351, 1356 (11th Cir.) (citing Brownlee v. Haley,
306 F.3d 1043, 1065 (11th Cir. 2002)) (emphasis added), cert.
denied, 522 U.S. 979 (2007). It is significant that in Brownlee v.
Haley, 306 F.3d 1043, 1064-65 (11th Cir. 2002), the petitioner
claimed newly discovered evidence: a key state's witness disavowed
his testimony implicating the defendant.

The Eleventh Circuit

denied habeas relief in Brownlee finding:
Finally, even if Goodgame's recantation
were credible (and the trial court has
squarely found that it was not), the Supreme
Court has held that "[c]laims of actual
innocence based on newly discovered evidence
have never been held to state a ground for
federal habeas relief absent an independent
constitutional violation occurring in the
underlying state criminal proceeding." Herrera
v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853,
860, 122 L.Ed.2d 203 (1993). It is not our
role to make an independent determination of a
petitioner's guilt or innocence based on
- 17 -

evidence that has emerged since the trial.
"This rule is grounded in the principle that
federal habeas courts sit to ensure that
individuals are not imprisoned in violation of
the Constitution—not to correct errors of
fact." Id. Brownlee alleges no independent
constitutional
violation
relating
to
Goodgame's recantation, and he is therefore
entitled to no federal habeas relief on this
claim.
Brownlee, 306 F.3d at 1065.
It is noteworthy that the case before the Court is not a
capital case; therefore, this Court cannot grant habeas relief on
a claim of actual innocence absent an independent constitutional
violation occurring in the underlying state criminal proceeding.
The claim of actual innocence based on newly discovered evidence
raised in ground two does not state a ground for federal habeas
relief.

See In re: Davis, 565 F.3d 810, 817 (11th Cir. 2009) (per

curiam) (discussing freestanding actual innocence claims); Graddy
v. Crews, No. 5:13cv317-WS/GRJ, 2014 WL 5341834, at *3 (N.D. Fla.
Oct. 20, 2014) (Not Reported in F.Supp.3d) ("a free-standing claim
of actual innocense [sic] is not recognized as a valid claim for
habeas relief").

No federal habeas relief is available for

freestanding, non-capital claims of actual innocence.

Murrah v.

McDonough, 256 F. App'x 323, 325 (11th Cir. 2007) (per curiam) (a
certificate of appealability was granted on the issue of the
trustworthiness

and

effect

of

the

alleged

videotaped

witness

recantation; however, the Eleventh Circuit found that "Murrah's

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freestanding actual innocence claim is not cognizable under federal
habeas law.").
Petitioner does not allege the implication of an independent
constitutional

violation.

His

claim

of

actual

innocence,

a

freestanding claim, is not cognizable in this non-capital, federal
habeas proceeding. Thus, based on Circuit precedent, Petitioner is
not entitled to habeas relief on his freestanding claim of actual
innocence.

Ground two is due to be denied.
C.

Ground Three

In his third ground, Petitioner raises a claim asserting that
the state and the public defender induced him to plead guilty,
knowing Petitioner was not guilty. Petition at 8. He alleges that
he was induced to plead guilty without any evidence, analysis, or
depositions of the true perpetrator. Id. Respondents contend that
ground three is unexhausted and procedurally defaulted.

Response

at 31-33.
Petitioner did not raise an involuntary plea claim in the
state circuit court.
attempt

to

raise

Ex. M; Ex. O; Ex. Q; Ex. R; Ex. T.
a

claim

concerning

counsel's

He did

failure

to

investigate and verify Petitioner's innocence in a Rule 3.850
motion, Ex. T, but the circuit court denied the post conviction
motion as successive.

Ex. U.

As such, the state court declined to

hear the claim because the prisoner failed to abide by a state
procedural rule.

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Upon review, Petitioner failed to exhaust an involuntary plea
claim. Petitioner's third ground is procedurally barred. Although
he

attempted

to

raise

a

claim

that

his

counsel

failed

to

investigate and verify Petitioner's innocence, the record shows
that the circuit court did not address this claim on its merits
because Petitioner raised the claim in a successive post conviction
motion.

The court denied the motion with prejudice as successive.

Therefore, ground three is unexhausted and procedurally defaulted.
Petitioner has failed to show cause and prejudice, and he has
failed to show that a fundamental miscarriage of justice will
result if the Court fails to address the merits of this claim.
Accordingly, it is now
ORDERED:
1.

The Petition (Doc. 1) is DENIED, and this action is

DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment accordingly

and close this case.
3.

If Petitioner appeals the denial of his Petition, the

Court denies a certificate of appealability.8

8

Because this Court

This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
To 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.
- 20 -

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.
DONE AND ORDERED at Jacksonville, Florida, this 8th day of
June, 2017.

sa 5/30
c:
Denis Andre Parent
Counsel of Record

322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Upon due consideration, this Court will deny a
certificate of appealability.
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