Barringer v. Jones
Filing
21
ORDER granting 15 --motion to dismiss; directing the clerk to ENTER A JUDGMENT against Barringer and to CLOSE the case. Signed by Judge Steven D. Merryday on 7/11/2016. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JAY BARRINGER,
Applicant,
v.
CASE NO. 8:15-cv-2458-T-23TGW
SECRETARY, Department of Corrections,
Respondent.
/
ORDER
This action proceeds on Barringer’s second amended application for the writ of
habeas corpus under 28 U.S.C. § 2254 (Doc. 13), which the respondent moves to
dismiss as untimely. (Doc. 15) Barringer pleaded guilty both to attempted capital
sexual battery on a child under twelve and to lewd and lascivious conduct, for which
he is imprisoned for twenty-five years. After successfully correcting the sentence in a
motion under state Rule 3.800, Barringer’s conviction became final in 2006. In 2008
the federal one-year limitation expired after the denial of another Rule 3.800 motion.
Also in 2008 (and citing Barringer’s sixteen earlier challenges to his conviction or
sentence), the Sixth Judicial Circuit Court for Pasco County barred Barringer from
filing any more pro se challenges to his conviction or sentence. Undeterred by that
order, over the next five years Barringer attempted to challenge his conviction in state
courts outside of Pasco County.
The Anti-Terrorism and Effective Death Penalty Act creates a limitation for a
Section 2254 application for the writ of habeas corpus. Recognizing that his
application is untimely under Section 2244(d)(1)(A), which calculates the one-year
limitation from “the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review,” Barringer asserts
entitlement to a delayed one-year limitation under Section 2244(d)(1)(D), which
calculates the limitation from “the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise of due diligence.”
Barringer also asserts that his new evidence proves his actual innocence. Barringer is
entitled to neither a new limitation under Section 2244(d)(1)(D) nor the “actual
innocence” exception to the limitation.
Barringer’s new evidence is a 2015 affidavit from a friend who avers (1) that
Barringer was working with him on the east coast of Florida in Cocoa Beach during
March, 2000, when the sexual assault occurred on the west coast of Florida in Pasco
County, and (2) that he feared coming forward earlier because of threats from the
victim’s family.1 (Doc. 10 at 23) Barringer’s asserted entitlement both to a new
limitation based on newly discovered evidence and to release based on his actual
innocence depend wholly upon this affidavit.
Under Section 2244(d)(1)(D), the one-year limitation begins from “the date on
which the factual predicate of the claim or claims presented could have been
1
The friend delayed fifteen years before he provided the affidavit.
-2-
discovered through the exercise of due diligence.” The limitation starts when the
new evidence was discoverable, not when the evidence was actually discovered.
As Melson v. Allen, 548 F.3d 993, 999 (11th Cir. 2008), explains:
The limitations period under § 2244(d)(1)(D) begins when the
factual predicate of a claim could have been discovered using
due diligence, not when it was actually discovered. See
§ 2244(d)(1)(D); Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir.
2004). Although we have not defined due diligence with respect
to a § 2244(d)(1)(D) claim, we have addressed it in the
analogous context of a second federal habeas petition which is
based on newly discovered facts. See In re Boshears, 110 F.3d
1538, 1540 (11th Cir. 1997) (per curiam). In the latter context, a
petitioner must show that “‘the factual predicate for the claim
could not have been discovered previously through the exercise
of due diligence.’” Id. (quoting 28 U.S.C. § 2244(b)(2)(B)(i)).
Due diligence means the petitioner “must show some good
reason why he or she was unable to discover the facts” at an
earlier date. Id. Merely alleging that an applicant “did not
actually know the facts underlying his or her claim does not
pass the test.” Id. Instead, the inquiry focuses on “whether a
reasonable investigation . . . would have uncovered the facts the
applicant alleges are ‘newly discovered.’” Id. (citation omitted).
Barringer knew that allegedly he was with his friend in another part of the
state when the crime occurred but he nonetheless pleaded guilty to both the
attempted capital sexual assault and the lewd and lascivious conduct. Tollett v.
Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea2 waives a nonjurisdictional defect:
[A] guilty plea represents a break in the chain of events which
has preceded it in the criminal process. When a criminal
defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation of
2
A conviction based on a plea of nolo contendere is reviewed the same as a conviction based
on a guilty plea. Wallace v. Turner, 695 F.2d 545, 548 (11th Cir. 1982).
-3-
constitutional rights that occurred prior to the entry of the guilty
plea.
This waiver of rights precludes most challenges to the conviction. See e.g., United
States v. Patti, 337 F.3d 1217, 1320 (11th Cir. 2003) (“Generally, a voluntary,
unconditional guilty plea waives all non-jurisdictional defects in the proceedings.”),
Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) (“A defendant who enters a
plea of guilty waives all non-jurisdictional challenges to the constitutionality of the
conviction, and only an attack on the voluntary and knowing nature of the plea can
be sustained.”), and United States v. Broce, 488 U.S. 563, 570 (1989) (“By entering a
plea of guilty, the accused is not simply stating that he did the discrete acts described
in the indictment; he is admitting guilt of a substantive crime.”).
The plea colloquy and sentencing hearing transcript demonstrate that
Barringer understood that, by pleading guilty, he was waiving his rights, specifically
including “to have witnesses testify on [his] own behalf.” (Respondent’s Exhibit 4
at 8) Barringer’s present allegation — that his friend’s affidavit proves that he did not
commit the crimes — conflicts with his admissions during the plea colloquy.
(Respondent’s Exhibit 3 at 7–10) Admissions during a plea colloquy are presumed
true, and his admission of the truth of the facts and his admission of guilt “constitute
a formidable barrier in any subsequent collateral proceedings. Solemn declarations
in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63,
73S74 (1977). Accord United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
-4-
The affidavit proffers an alibi defense. Barringer knew the possibility for an
alibi defense when he pleaded guilty. Barringer waived asserting an alibi defense
when he pleaded guilty.3 As a consequence, Barringer is not entitled to a new
limitation under Section 2244(d)(1)(D) based on newly discovered evidence.
Barringer asserts an exception to the limitation based on his actual innocence.
Entitlement to the actual innocence exception is difficult because “[t]o be credible,
such a claim requires petitioner to support his allegations of constitutional error 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). The gateway is narrow and opens “only
when a petition presents
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?