Trease v. Secretary, Department of Corrections et al (Sarasota County)

Filing 43

ORDER denying 38 and 42 --Trease's motions to dismiss counsel; denying 37 --respondent's motion to determine counsel's status; dismissing the application under Section 2254; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the Clerk to ENTER JUDGMENT against Trease and to CLOSE the case. Signed by Judge Steven D. Merryday on 9/24/2014. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROBERT J. TREASE,
Petitioner,
v.
SECRETARY, Department of Corrections,

CASE NO. 8:11-cv-233-T-23TBM
DEATH CASE

Respondent.
/
ORDER
Trease applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)
and challenges the validity of both his conviction for murder and his sentence of death.
An earlier order both determined that the application is time-barred and permitted
Trease an opportunity to present the factual and legal basis for his asserting “actual
innocence” to overcome the limitation. (Doc. 26) The parties briefed Trease’s
purported entitlement to actual innocence (Doc. 29, 30, and 33), which issue is ripe for
decision, but Trease also moves pro se to dismiss his counsel and to withdraw this
action.
I.
TREASE’S PRO SE ATTEMPT TO DISCHARGE COUNSEL
Four times Trease changed his mind during the state proceedings, in addition to
changing his mind in this federal proceeding. First Trease disavowed counsel’s

pursuing post-conviction relief, which caused both the delay of state post-conviction
review and the loss of tolling the federal one-year limitation. As thoroughly discussed
in the earlier order (Doc. 26 at 4 - 6), the present action is untimely because the
limitation was not tolled. Second, after the one-year deadline passed Trease changed
his mind about pursuing state post-conviction review, and the state court re-instated
his motion for post-conviction relief.
Third, after having cooperated in the post-conviction proceedings and while the
ensuing appeal was pending, Trease moved to discharge counsel and withdraw his
appeal. As a consequence the Florida supreme court relinquished jurisdiction for the
post-conviction court to determine whether Trease understood the impact of
withdrawing his appeal. As reported at Trease v. State, 41 So. 3d 119, 121-22 (Fla.
2010) (“Trease II”), after thoroughly questioning him the post-conviction court both
ensured Trease understood the consequences of withdrawing his appeal and permitted
the withdrawal of the motion for post-conviction relief.
Fourth, on the subsequent mandatory review of the post-conviction court’s
determination – that is, Trease’s desire to withdraw his challenge to his conviction and
sentence – Trease again changed his mind and asked the Florida supreme court to
re-instate his appeal, a request rejected in Trease II, 41 So. 3d at 126 (brackets original).
If this Court were to allow Trease to reinstate his post-conviction
proceedings based upon a mere change of mind, there would be
nothing to stop Trease from changing his mind again at a later
date. In fact, based upon Trease’s history, this is a likely scenario.
Then, the trial court would be required to conduct another
-2-

Durocher hearing because Trease has a right to waive postconviction counsel and proceedings. Thereafter, Trease could
again change his mind, and the trial court would be required to
reinstate the post-conviction proceedings. The cycle could
continue indefinitely. Cf. Waterhouse v. State, 596 So. 2d 1008,
1014 (Fla. 1992) (“[A] defendant may not manipulate the
proceedings by willy-nilly leaping back and forth between the
choices [of self-representation and appointed counsel].” (quoting
Jones v. State, 449 So.2d 253, 259 (Fla.1984))).

After accepting the post-conviction court’s determination that he was competent to
withdraw his appeal, Trease II dismisses Trease’s appeal from the denial of postconviction relief.
Trease commenced this federal action with the same appointed counsel as in the
state post-conviction proceedings. After the earlier order determined the untimeliness
of this action and after the actual innocence issue was briefed, Trease announced
another change of mind and both advises that he has dismissed counsel and requests
the dismissal of this action. (Doc. 36) The respondent moves (Doc. 37) to determine
whether Trease proceeds pro se or is represented by appointed counsel. In response,
Trease again moves to “discharge counsel and to discharge appeal.” (Doc. 38)
Trease’s appointed counsel both asserts that he remains as counsel representing Trease
until relieved by court order and encourages the district court to ignore the pro se
papers. (Doc. 40) First, responding to counsel’s arguments, Trease pro se files an
affidavit (Doc. 41), in which he again declares that he discharges counsel. Second,
Trease pro se moves to compel (Doc. 42) a ruling on his earlier motion to “discharge
counsel, and to discharge appeal and to uplift stay without delay.” The district court
-3-

has paused to await Trease’s next change of mind, but (thus far) Trease persists in
discharging counsel. (Doc. 41 and 42) This case is ripe for decision on whether
Trease is entitled to a review of his conviction and sentence based on his assertion of
actual innocence. Trease II recognizes the need to prevent a petitioner’s
“manipulat[ing] the proceedings by willy-nilly leaping back and forth between the
choices . . . .” Given Trease’s history of changing his mind, prudence commends not
discharging counsel at this late date.
II.
ACTUAL INNOCENCE GATEWAY
“We hold that actual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration
of the statute of limitations.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
Proving actual innocence is rare and, as explained in Rozzelle v. Sec’y, Fla. Dep’t of Corr.,
672 F.3d 1000, 1010-11 (11th Cir.), cert. denied, 133 S. Ct. 351 (2012), a claim of actual
innocence can occur in a habeas proceeding (1) when actual innocence is asserted as a
“freestanding” constitutional claim, (2) when actual innocence is asserted as a gateway
to review a procedurally defaulted constitutional claim, and (3) when actual innocence
is asserted as a gateway to review an untimely constitutional claim.
Our cases refer to an “actual innocence” claim in at least three
different types of habeas cases. In the first type, a petitioner’s
actual innocence is itself the constitutional basis of the habeas
petition. See Herrera v. Collins, 506 U.S. 390, 400, 113 S. Ct. 853,
860, 122 L. Ed. 2d 203 (1993) (holding that no federal habeas
-4-

relief is available for freestanding, non-capital claims of actual
innocence); Jordan v. Sec’y, Dep’tof Corr., 485 F.3d 1351, 1356
(11th Cir. 2007) (same). This is not Rozzelle’s type of claim.
In the other two types of actual innocence claims, the petitioner’s
assertion of innocence is not itself a freestanding claim, but
merely serves as a “gateway” to get the federal court to consider
claims that the federal court would otherwise be barred from
hearing. “To successfully plead actual innocence, a petitioner
must show that his conviction resulted from ‘a constitutional
violation.’” Johnson, 513 F.3d at 1334[1] (quoting Schlup v. Delo,
513 U.S. 298, 327, 115 S. Ct. 851, 867, 130 L. Ed. 2d 808
(1995)).
In the second type, a petitioner’s actual innocence serves as a
gateway to consideration of constitutional claims procedurally
defaulted in state court, such as failure to exhaust state remedies,
failure to satisfy state filing requirements, et cetera. See Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (explaining that
claim of actual innocence must be supported by “reliable
evidence not presented at trial” (internal quotation mark
omitted)); see also Schlup, 513 U.S. at 324, 115 S. Ct. at 865
(holding that for habeas court to consider procedurally barred
constitutional claims, petitioner must present “new reliable
evidence” of actual innocence). To bypass such a procedural bar,
a petitioner must show either (1) cause and prejudice or (2) a
miscarriage of justice, or “actual innocence.” Schlup, 513 U.S. at
314–15, 115 S. Ct. at 860–61. The actual innocence exception to
the procedural bar is not meant to remedy ordinary errors in
criminal judgments but is narrowly reserved for only
“fundamental miscarriage[s] of justice.” Id. at 315, 115 S. Ct. at
861. To overcome procedural default through a showing of actual
innocence, the petitioner must present “reliable evidence . . . not
presented at trial” such that “it is more likely than not that no
reasonable juror would have convicted him of the underlying
offense.” Johnson, 256 F.3d at 1171 (quoting Schlup, 513 U.S. at
324, 327, 115 S. Ct. at 865, 867 (internal quotation mark
omitted)). This type of actual innocence claim is not Rozzelle’s
claim either.

1

Johnson v. Fla. Dep’t of Corr., 513 F.3d 1328, 1333 (11th Cir. 2008).

-5-

In the third situation, a habeas petitioner claims his actual
innocence should serve as a gateway to consideration of
constitutional claims time-barred under AEDPA’s one-year
limitation period. See 28 U.S.C. § 2244(d); Johnson, 513 F.3d at
1333–34; Arthur, 452 F.3d at 1244–46. This is Rozzelle’s type of
claim. Because the standards for actual innocence in cases of
procedural default and untimely federal habeas petitions derive
from the Supreme Court’s decision in Schlup, we have at times
conflated these two case types. See Arthur, 452 F.3d at 1245
(applying the concept of the actual innocence exception to
“procedural bar” to the Arthur case involving an AEDPA-timebarred § 2254 petition). Therefore, like the actual innocence
exception for procedural default, the alleged exception for
AEDPA untimeliness would require the petitioner (1) to present
“new reliable evidence . . . that was not presented at trial,”
Arthur, 452 F.3d at 1245 (quoting Schlup, 513 U.S. at 324, 115 S.
Ct. at 865), and (2) to show “that it is more likely than not that
no reasonable juror would have found petitioner guilty beyond a
reasonable doubt” in light of the new evidence. Johnson, 513 F.3d
at 1334 (quoting Schlup, 513 U.S. at 327, 115 S. Ct. at 867); see
also House v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 2077, 165 L.
Ed. 2d 1 (2006).

As Rozelle explains, the actual innocence burden is the same for claims that are
either procedurally defaulted or time-barred. Trease’s situation is in both the second
and the third situations described in Rozelle because his claims are both procedurally
defaulted and time-barred.
A. Dual Preclusion to Federal Review
1. Exhaustion and Procedural Default
The second situation that Rozelle identifies involves a procedurally defaulted
claim. A petitioner must present each claim to a state court before raising the claim in
federal court. “[E]xhaustion of state remedies requires that petitioners ‘fairly presen[t]’
federal claims to the state courts in order to give the State the ‘opportunity to pass
-6-

upon and correct’ alleged violations of its prisoners’ federal rights.” Duncan v. Henry,
513 U.S. 364, 365 (1995), quoting Picard v. Connor, 404 U.S. 270, 275 (1971). Accord
Rose v. Lundy, 455 U.S. 509, 518-19 (1982) (“A rigorously enforced total exhaustion
rule will encourage state prisoners to seek full relief first from the state courts, thus
giving those courts the first opportunity to review all claims of constitutional error.”).
When he changed his mind the second time Trease forced the withdrawal of his postconviction appeal. As a consequence, in dismissing the appeal (1) Trease II affirmed
the post-conviction court’s granting Trease’s request to withdraw his challenge to his
conviction and sentence, (2) Trease’s abandonment of his appeal precluded the Florida
supreme court from reviewing the merits of his post-conviction claims, and (3) Trease
failed to exhaust his available state court remedies. See Upshaw v. Singletary, 70 F.3d
576, 578 (11th Cir. 1995) (“[T]he applicant must have fairly apprised the highest court
of his state with the appropriate jurisdiction of the federal rights which allegedly were
violated.”).
The failure to properly exhaust each available state court remedy causes a
procedural default of the unexhausted claim. See O’Sullivan v. Boerckel, 526 U.S. 838,
847 (1999) (“Boerckel’s failure to present three of his federal habeas claims to the
Illinois Supreme Court in a timely fashion has resulted in a procedural default of those
claims.”). To overcome the procedural default, Trease must establish either (1) “cause
for the default and prejudice attributable thereto” or (2) “that failure to consider [the

-7-

defaulted] claim will result in a fundamental miscarriage of justice.” Harris v. Reed, 489
U.S. 255, 262 (1989).
To demonstrate “cause” for his procedural default, Trease must justify his
failure to comply with Florida’s procedural rules. In general, “the existence of cause
for a procedural default must ordinarily turn on whether the prisoner can show that
some objective factor external to the defense impeded . . . efforts to comply with the
state procedural rules.” Murray v. Carrier, 477 U.S. at 488. See Marek v. Singletary, 62
F.3d 1295, 1302 (11th Cir. 1995). Even if he shows cause for his procedural default,
Trease must show prejudice arising from the alleged constitutional error. A petitioner
must show that he suffered actual prejudice, “not merely that the errors of the trial
created a possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” United
States v. Frady, 456 U.S. 152, 170 (1982) (emphasis original). Accord Hollis v. Davis, 941
F.2d 1471, 1480 (11th Cir. 1991). To excuse his procedural default Trease must show
both “cause” and “prejudice.” Trease cannot meet the “cause” requirement. Rather
than something external to the defense, Trease himself precluded his exhausting the
state court remedies when he withdrew his motion for post-conviction relief and
abandoned his appeal.
As an alternative to showing “cause and prejudice,” Trease must show that
dismissal of his procedurally defaulted grounds will result in a “fundamental
miscarriage of justice,” an especial difficulty because Trease must demonstrate “actual
-8-

innocence” of the crime of conviction. See Smith v. Murray, 477 U.S. 527, 537 (1986)
(citing Murray v. Carrier, 477 U.S. at 496). See also Engle v. Isacc, 456 U.S. 107, 134-35
(1982), and Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)2 (denying a certificate of
probable cause and holding that a petitioner must show “as a factual matter that he did
not commit the crime of conviction.”). Additionally, to meet the “fundamental
miscarriage of justice” exception, Trease must show constitutional error coupled with
“new reliable evidence – whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence – that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995). Trease’s attempt to show his actual innocence
is discussed below.
2. Statute of Limitation
The third situation that Rozelle identifies involves an untimely claim. The earlier
order (Doc. 26) determines that Trease’s application is untimely. As Perkins, 133 S. Ct.
at 1928 (brackets original), explains, proof of actual innocence will overcome the
statute of limitation and the burden is the Schlup standard:
“[A] petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence, no
juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.” Schlup, 513 U.S., at 329, 115 S. Ct.
851; see House, 547 U.S., at 538, 126 S. Ct. 2064 (emphasizing
that the Schlup standard is “demanding” and seldom met).

B. Forfeiture of Federal Review
2

Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued before
October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

-9-

Trease abuses the judicial process by repeatedly changing his mind. See
Trease II, 41 So. 3d at 126 (characterizing a similar situation as “willy-nilly leaping
back and forth”) (quoting Jones v. State, 449 So.2d 253, 259 (Fla.1984)). Trease asserts
no entitlement to a new limitation under Section 2244(d)(1)(D) based on “newly
discovered evidence” because that provision requires the exercise of due diligence. See
Johnson v. United States, 544 U.S. 295, 310 (2005) (rejecting entitlement to a new
limitation for “newly discovered evidence” because of the lack of due diligence).
Fortunately for Trease, due diligence is not a threshold requirement for showing actual
innocence. Perkins, 133 S. Ct. at 1935 (“[W]e reject the State’s argument that habeas
petitioners who assert convincing actual innocence claims must prove diligence to
cross a federal court’s threshold . . . .”). Nevertheless, a petitioner’s diligence in
asserting a claim of actual innocence is “part of the assessment [in determining]
whether actual innocence has been convincingly shown . . . .” Id. at 1936. Lastly,
Perkins, id., explains that the focus is on the evidence.
Focusing on the merits of a petitioner’s actual innocence claim
and taking account of delay in that context, rather than treating
timeliness as a threshold inquiry, is tuned to the rationale
underlying the miscarriage of justice exception – i.e., ensuring
“that federal constitutional errors do not result in the
incarceration of innocent persons.” Herrera, 506 U.S., at 404, 113
S. Ct. 853.

III.
TREASE’S EVIDENCE OF ACTUAL INNOCENCE

- 10 -

Although decided before the AEDPA created a statute of limitation, Herrera v.
Collins, 506 U.S. 390, 417 (1993), explains that, when attempting to show actual
innocence, the petitioner’s burden is “necessarily extraordinarily high.”
We may assume, for the sake of argument in deciding this case,
that in a capital case a truly persuasive demonstration of “actual
innocence” made after trial would render the execution of a
defendant unconstitutional, and warrant federal habeas relief if
there were no state avenue open to process such a claim. But
because of the very disruptive effect that entertaining claims of
actual innocence would have on the need for finality in capital
cases, and the enormous burden that having to retry cases based
on often stale evidence would place on the States, the threshold
showing for such an assumed right would necessarily be
extraordinarily high.

A. The Evidence at Trial
Whether Trease can meet this “extraordinarily high” burden requires an
understanding of the evidence that supports Trease’s conviction. The operative facts
supporting the conviction, as found in Trease v. State, 768 So. 2d 1050, 1052 (Fla. 2000)
(“Trease I”), are as follows:
On August 17, 1995, Hope Siegel arranged a date with the
victim, Paul Edenson, so Trease could learn where the victim hid
his safe. When Siegel arrived at the victim’s home they talked for
a while, after which Siegel departed and walked to Trease’s
location, and told him that the victim did not have a safe. Trease
followed her back to the victim’s house where he surprised the
victim and battered him in an effort to get the sought-after
information. Upon the victim’s insistence that he did not have a
safe in the house, Trease told Siegel to get a gun which Trease
put to the victim’s head as he continued the questioning. The
victim remained uncooperative so Trease fired a nonlethal bullet
into his head and then sent Siegel for a knife with which he cut
the victim’s throat. An expert medical witness testified that the
victim would have died a few minutes later.

- 11 -

Subsequent to their arrest, Trease denied any knowledge of the
crime, but Siegel made a taped statement implicating both. The
State had no physical evidence tying Trease to the crime, so
Siegel’s testimony was critical at trial. The jury found Trease
guilty of first-degree murder, burglary, and robbery with a
firearm.

The findings supporting the death sentence, as determined in Trease I, 768 So. 2d at
1052-53, are as follows:
During the penalty phase of the trial, the State submitted
aggravating evidence that Trease had been previously convicted
of several violent felonies; that the murder was committed to
facilitate a burglary or robbery, to gain a pecuniary interest, and
to avoid lawful arrest; and that the murder was heinous,
atrocious, and cruel. Trease submitted mitigating evidence that
he was abused as a child, that he adjusted well to incarceration,
that he helped prevent the suicide of an inmate, and that Siegel
had received a disparate sentence. The trial court imposed the
death sentenceFN1 in compliance with the jury’s eleven-to-one
vote and Trease filed the instant appeal.
FN1. The trial court found the following statutory
aggravating factors: (1) previous violent felonies
against persons; and that the murder was
committed (2) while engaged in a burglary or
robbery, (3) to avoid arrest, and (4) for pecuniary
gain; and (5) the murder was heinous, atrocious or
cruel. Based on Trease’s evidence, the trial court
found three nonstatutory mitigating factors and
assigned weight to each factor: (1) Trease’s abuse
as a child – “considerable” weight; (2) Trease
adjusted well to incarceration and helped prevent
an inmate suicide – “little or no” weight; and (3)
Siegel’s disparate sentence – “little” weight. The
trial court gave “great weight” to the jury’s
recommendation, and concurred “with the jury’s
finding that the aggravating circumstances found to
exist outweigh[ed] the mitigating circumstances.”

B. The Proposed New Evidence

- 12 -

Trease’s supposed compelling new evidence of actual innocence is less than
compelling. The new evidence challenges both the validity of the state’s testimony on
the bullet analysis and the veracity of Hope Seigel – the co-defendant and whose
testimony Trease I characterized as “critical.”
1. Carbon Based Lead Analysis (“CBLA”)
Police recovered bullet fragments from the crime scene. The fragments were,
however, too small to use the usual ballistics tests to determine if a particular gun fired
the bullet. Instead, the fragments were subjected to a “carbon based lead analysis”
test, which examines the metallurgical characteristics of the lead to determine if two
bullets were made from the same melting process. At trial the prosecution presented
the testimony of a Federal Bureau of Investigation (“FBI”) analyst, who testified that a
CBLA test showed that the lead from the bullet fragments contained the same
metallurgical characteristics as the lead in the bullets recovered from the firearm that
Trease and Seigel possessed. The analyst testified “that the bullet fragments and the
bullet core of the Federal cartridge were all manufactured from the same source of lead
as the Federal ammunition plant in Minnesota.” (Respondent’s Exhibit A27 at 2422)
This testimony was presented in 1996. In closing arguments the prosecutor argued
that the CBLA test corroborated Seigel’s testimony by matching the bullets fragments
from the crime scene to the firearm.3 In 2008 the FBI revealed that it had suspended

3

“The shell casing found in her car was fired from that gun. It was a Federal brand that
killed him. The FBI told you that. You heard the metallurgy.” (Respondent’s Exhibit A29 at 2704)

- 13 -

using the CBLA test because the test fails to account for the total number of bullets
made during the melting process and the consequent possible misleading relevance of
the testimony.
The FBI’s suspending use of the CBLA test is, by itself, no evidence of actual
innocence. The possible prejudicial impact of the now discredited test is in the
prosecution’s reliance on the test to corroborate Seigel’s testimony.
2. Veracity of Hope Seigel
Trease argues that Seigel alone was the killer. Trease names a mental health
expert to whom Seigel allegedly confessed to the killing and identifies several women
who would testify that, while in jail, Seigel confessed to them that she alone killed the
victim. These witnesses also asserted that Seigel offered conflicting stories about the
incident. Trease’s defense at trial was that Seigel, and not him, was responsible for the
killing. At trial Trease presented the testimony of one of the witnesses he contends
provides evidence of actual innocence.4 Trease’s attack on Seigel’s credibility is largely
cumulative to defense counsel’s same attack on her credibility at trial.
C. Not Proof of Actual Innocence
Trease contends that Seigel’s uncorroborated testimony blaming the murder on
Trease was the only evidence against him. Although characterized as “critical” in
Trease I, the prosecution presented much evidence that independently corroborated

4

Another of the witnesses Trease now identifies refused to testify at trial.

- 14 -

Seigel’s account of the gruesome slaying, evidence on which a jury could reasonably
base a conviction. Several witnesses placed Trease with Seigel near the scene of the
murder.5 The medical examiner testified (1) the injury to the victim’s eye was caused
by “a severe blow, a violent blow to the face, consistent with a fist blow, that would
have carried a lot of force,” (2) that the victim’s throat was cut three times with a
serrated knife, which required the use of a greater amount of strength than a
“razor-sharp-edged knife” would require, and (3) that the murderer was someone who
was either very strong and muscular or someone who was heavyset. (Respondent’s
Exhibit A22 at 1563-72) The medical examiner agreed that his findings were
consistent with the following scenario:
That [the victim], immediately prior to his death, was punched in
the face by a strong left-handed man, that [the victim] fell back to
the floor hitting his head, and with [the victim] lying on his
stomach on the floor with the right side of his face facing the
ceiling, a gun was placed to the right side of his head and he was
shot, and immediately after that, his head was pulled back with
the right hand of the perpetrator and this perpetrator, using his
left hand, with forceful slices [and] using his left hand went
across his neck in forceful strokes at least three times.

(Respondent’s Exhibit A22 at 1574) The jury heard testimony that Trease had reached
the rank of “black belt” in Karate and that he had demonstrated how to kill someone
by cutting their throat.6 A jury could have found (1) that Trease, who is left-handed
5

Trease and Seigel were arrested together out of state.

6

Jeffrey Colson testified that Trease had (1) claimed to be a “black belt” in Karate and
showed some techniques, one of which was “visually very stunning” and (2) demonstrated “how an
individual might take out someone else’s throat by moving the knife across the throat.
(Respondent’s Exhibit A27 at 2442-44)

- 15 -

and had claimed he was accomplished in the martial arts, had the requisite physical
capabilities to inflict the described injuries whereas Seigel, who is right-handed, lacked
the physical capabilities, and (2) that Trease knew how to cut someone’s throat.
IV.
CONCLUSION
This action is focused solely on whether Trease meets his “necessarily
extraordinarily high” burden. Herrera, 506 U.S. at 417. The admonition in Perkins,
133 S. Ct. at 1936, that the focus is on the evidence, bears repeating.
Focusing on the merits of a petitioner’s actual innocence claim
and taking account of delay in that context, rather than treating
timeliness as a threshold inquiry, is tuned to the rationale
underlying the miscarriage of justice exception – i.e., ensuring
“that federal constitutional errors do not result in the
incarceration of innocent persons.” Herrera, 506 U.S., at 404, 113
S. Ct. 853.

This focus inures to Trease’s benefit because the restrictions to federal review under
Section 2254 are inapplicable. Trease presented his evidence of actual innocence to
the post-conviction court, which conducted an evidentiary hearing and determined
that the same evidence Trease presents here was sufficient to prove neither ineffective
assistance of counsel nor actual innocence nor to qualify as “newly discovered
evidence.” (Respondent’s Exhibit B5 at 887-909) If Trease had not withdrawn his
petition and if his appeal ended with a denial of relief, the state court’s findings of fact
and determinations of law would receive a deferential review in federal court under
Section 2254. If due diligence was part of the “threshold inquiry” to determine
- 16 -

eligibility for actual innocence – a requirement Perkins specifically precludes – Trease
could claim no entitlement to actual innocence because his repeatedly “changing his
mind” eviscerates any assertion of due diligence. To the extent that Perkins permits
“taking account of delay in th[e] context” of “the merits of [his] actual innocence
claim,” Trease’s repeatedly “changing his mind” has impeded an orderly state
post-conviction review process and, in particular, the state’s determination of the same
facts that he presents here as evidence of actual innocence, a state court determination
that would receive deferential treatment upon federal review under Section 2254.
Trease’s “untimeliness, although not an unyielding ground for dismissal of a petition,
does bear on the credibility of evidence proffered to show actual innocence.” Perkins,
133 S. Ct. at 1936. Trease’s repeatedly “changing his mind” casts doubt on the
credibility of his evidence of actual innocence.
Nevertheless, the district court has considered each of Trease’s arguments and
all of the evidence proffered to support entitlement to actual innocence. Perkins, 133 S.
Ct. at 1928, “caution[s] . . . that tenable actual innocence gateway pleas are rare . . . .”
This is because “[t]he gateway should open only when a petition presents ‘evidence of
innocence so strong that a court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of nonharmless constitutional
error.’” Perkins, 133 S. Ct. at 1936 (quoting Schlup). Trease argues that the new
evidence is proof that Seigel was the lone killer and that only her testimony ties Trease
to the slaying. To the contrary, the independent evidence described above
- 17 -

corroborates Seigel’s testimony. Trease’s argument for actual innocence is that
Seigel’s trial testimony – that Trease committed the slaying – is not credible, yet he
bases his claim of actual innocence on her credibility, specifically her hearsay
statements to others (many of whom also have credibility issues). Trease fails to meet
his “necessarily extraordinarily high” burden and shows no “truly persuasive
demonstration of ‘actual innocence.’” Herrera, 506 U.S. 417.
Accordingly, Trease’s motions to dismiss counsel (Doc. 38 and 42) are
DENIED and the respondent’s motion (Doc. 37) to determine counsel’s status is
DENIED. Having determined in an earlier order (Doc. 26) that the application is
untimely and having now determined that Trease fails to show actual innocence, the
application under Section 2254 (Doc. 1) is DISMISSED. The clerk must enter a
judgment against Trease and close this case.
DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Trease is not entitled to a certificate of appealability (“COA”). A prisoner
seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s
denial of his petition. 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 COA, Trease
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.
- 18 -

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d
926, 935 (11th Cir 2001). Because his application is clearly time-barred and because he
shows no reasonable entitlement to the actual innocence exception to the statute of
limitation, Trease is not entitled to a certificate of appealability and he is not entitled to
appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma
pauperis is DENIED. Trease must obtain permission from the circuit court to appeal in
forma pauperis.
ORDERED in Tampa, Florida, on September 24, 2014.

- 19 -