Jeannin v. Secretary, Florida Department of Corrections et al

Filing 21

ORDER dismissing 1 the petition with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 10/24/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RICHARD JEANNIN,
Petitioner,
v.

Case No. 3:15-cv-551-J-39JBT

SECRETARY, DOC, et al.,
Respondents.
ORDER
Petitioner challenges a 1992 (Clay County) conviction for two
counts of sexual battery (counts I and III), and one count of lewd
or lascivious act in the presence of a child (count II) in his
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (Petition) (Doc. 1) at 1.1
Petition

on

April

28,

2015,

pursuant

to

the

He filed the
mailbox

rule.2

1

Petitioner is no longer in custody on count II, as that
sentence expired long before the filing of the Petition on April
28, 2015.
Response at 16-17.
See 28 U.S.C. § 2241(c)(3) & §
2254(a) (requiring that persons seeking habeas relief must be in
custody in violation of the Constitution or laws or treaties of the
United States). Petitioner, however, remains in custody on counts
I and III, for which he received life sentences.
2

The Petition was filed with the Clerk on May 1, 2015;
however, giving Petitioner the benefit of the mailbox rule, this
Court finds that the Petition was filed on the date Petitioner
provided his Petition to prison authorities for mailing to this
Court (April 28, 2015). See Houston v. Lack, 487 U.S. 266, 276
(1988); 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 pro se state
court filings when calculating the one-year limitation period under
28 U.S.C. § 2244(d).

Petitioner raises one ground seeking habeas relief.

He claims he

was denied due process when incompetent witnesses were allowed to
testify at trial.

Id. at 4.

Respondents filed a Motion to Dismiss Petition for Writ of
Habeas Corpus (Response) (Doc. 12), and they calculate that the
Petition is untimely filed.

In support of the Response, they

submitted Exhibits to Motion to Dismiss Petition for Writ of Habeas
Corpus (Doc. 12).3

Petitioner filed a Reply (Reply) (Doc. 20).

See Order (Doc. 5).
Pursuant to the Antiterrorism and Effective Death Penalty Act
(AEDPA), there is a one-year period of limitation:
(d)(1) A 1-year period of limitation
shall apply to an application for a writ of
habeas corpus by a person in custody pursuant
to the judgment of a State court.
The
limitation period shall run from the latest
of-(A) the date on which the judgment
became final by the conclusion of
direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment
to filing an application created by
State action in violation of the
Constitution or laws of the United
States is removed, if the applicant

3

The Court hereinafter refers to the exhibits contained in
Document 12 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.
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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).
To adequately address Respondents' contention that Petitioner
has failed to comply with the one-year limitation period, the Court
will provide a brief procedural history.
following.
1 at 48-49.
3.

The record shows the

Petitioner was charged by an amended information.

Ex.

A jury returned a verdict of guilty as charged.

Ex.

On July 20, 1992, the trial court sentenced Petitioner to

concurrent terms of life in prison with a minimum mandatory term of
twenty-five years on counts I and III, and a concurrent term of
four years on count II.

Ex. 5.

Petitioner appealed.

Ex. 6.

On

February 17, 1994, the First District Court of Appeal (1st DCA)
affirmed per curiam.

Ex. 9.

The mandate issued on March 7, 1994.

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Id.

The 1st DCA denied a March 11, 1994 motion for rehearing on

April 4, 1994.

Ex. 10.

The conviction became final on July 3,

1994 (90 days after April 4, 1994, the date of the denial of
rehearing on direct appeal) ("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.").
Thus, Petitioner's convictions became final prior to April 24,
1996, AEDPA's effective date; therefore, he had one year, up until
April 24, 1997, to file a timely federal petition for writ of
habeas corpus, unless the limitation period was tolled.

Wilcox v.

Fla. Dep't of Corr., 158 F.3d 1209, 1211 (11th Cir. 1998) (per
curiam) (one-year from date of enactment is adopted for convictions
that became final prior to the effective date of AEDPA); see
Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999), cert.
denied, 528 U.S. 1085 (2000).
Upon review, Petitioner filed his first Rule 3.850 post
conviction motion on August 4, 1995.

Ex. 11.

The circuit court

denied the Rule 3.850 motion in an order filed on February 1, 1996.
Ex. 12.

The one-year limitation period was tolled until September

4, 1996, when the mandate issued.

Ex. 13.

The limitation period

began to run on September 5, 1996, and ran for a period of 105
days, until Petitioner filed a petition for writ of habeas corpus

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in the 1st DCA on December 19, 1996.
the petition on January 7, 1997.4

Ex. 14.

Ex. 15.

The 1st DCA denied

The limitation period

remained tolled until January 22, 1997, when the fifteen-day period
in which to seek rehearing pursuant to Rule 9.330, Fla. R. App. P,
expired. Thus, the limitation period began to run again on January
23, 1997.
For Petitioner, the limitation period expired 260 days later,
on Friday, October 10, 1997.

He did not file his second Rule 3.850

motion in the state circuit court until August 4, 1998.
This

motion,

and

any

subsequent

motions/petitions

Ex. 27.
filed

by

Petitioner did not toll the federal one-year limitation period
because it had already expired on October 10, 1997. See Webster v.
Moore, 199 F.3d 1256, 1259 (11th Cir.) (per curiam) ("Under §
2244(d)(2), even 'properly filed' state-court petitions must be
'pending' in order to toll the limitations period.

A state-court

petition like [Petitioner]'s that is filed following the expiration
of the limitations period cannot toll that period because there is
no period remaining to be tolled."), cert. denied, 531 U.S. 991
(2000).

4

Although Petitioner filed a Notice of Appeal dated January
14, 1997 to the Florida Supreme Court, Ex. 16, it was construed to
be a petition for discretionary review and dismissed on January 30,
1997, for want of jurisdiction. Id. As such, it was not properly
filed and did not serve to toll the AEDPA one-year limitation
period. Artuz v. Bennett, 531 U.S. 4, 8 (2000) (addressing the
meaning of "properly filed"). Even assuming this appeal tolled the
one-year limitation period, the Petition is still untimely filed.
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Based on all of the foregoing, the Petition, filed on April
28, 2015, is untimely.

Petitioner, in his Petition, apparently

concedes this point as he states under "Timeliness of Petition"
that "[t]his is a claim of Actual Innocence."

Petition at 8.

Petitioner, in his Reply, states that he is actually innocent
because he was convicted without any legally qualified evidence,
"as all alleged child victim[s'] statements are not evidence[.]"
Reply at 4.

Liberally construing Petitioner's pro se Petition and

Reply, he is apparently claiming that this Court's failure to
address the merits of the Petition would result in a fundamental
miscarriage of justice.
To invoke the fundamental miscarriage of justice exception to
AEDPA's statute of limitations, a habeas petitioner must make a
credible showing of actual innocence with new evidence that was not
available at the time of his trial.
S.Ct. 1924, 1931-32 (2013).

See McQuiggin v. Perkins, 133

To do so, "a petitioner 'must show

that it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.'" Id. at 1935
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1985)).

This Court

summarized the requirements to show gateway innocence:
"An actual-innocence claim must be
supported 'with new reliable evidence—whether
it
be
exculpatory
scientific
evidence,
trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at
trial.'" Milton v. Sec'y, Dep't of Corr., 347
Fed. Appx. 528, 530–31 (11th Cir. 2009)
(quoting Schlup, 513 U.S. at 324, 115 S.Ct.
851). A "habeas court must consider all the
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evidence, old and new, incriminating and
exculpatory, without regard to whether it
would necessarily be admitted under rules of
admissibility that would govern at trial."
House, 547 U.S. at 538, 126 S.Ct. 2064.
A
court may also consider "how the timing of the
submission and the likely credibility of the
affiants bear on the probable reliability of
that evidence." Id. at 537, 126 S.Ct. 2064
(quotation omitted).
Letemps v. Sec'y, Fla. Dep't of Corr., 114 F.Supp.3d 1216, 1221
(M.D. Fla. 2015).
Petitioner, however, points to no new evidence.
Schlup

Pursuant to

and its progeny, Petitioner is required to offer new

reliable evidence that was not available at the time of his trial.
Petitioner

has

not

presented

any

new

exculpatory

scientific

evidence, trustworthy eyewitness accounts, or critical physical
evidence.
In conclusion, Petitioner does not assert or demonstrate that
he

has

new

evidence

establishing

actual

innocence.

Because

Petitioner has not shown an adequate reason why the dictates of the
one-year limitation period should not be imposed upon him, this
case will be dismissed with prejudice as untimely.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Petition (Doc. 1) is DISMISSED with prejudice.

2.

The Clerk shall enter judgment dismissing the Petition

with prejudice and dismissing this case with prejudice.

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3.

If Petitioner appeals the dismissal of the Petition, the

Court denies a certificate of appealability.5
has

determined

that

a

certificate

of

Because this Court

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.
4.

The Clerk shall close this case.

DONE AND ORDERED at Jacksonville, Florida this 24th day of
October, 2017.

sa 10/19
c:
Richard Jeannin
Counsel of Record

5

If Petitioner appeals the dismissal of the Petition, the
undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the Petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. §2253(c)(2). To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)). Here, after due consideration, this Court will deny
a certificate of appealability.
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