Pierre v. Department of Corrections

Filing 14

ORDER Adopting 10 Report and Recommendation. Certificate of Appealability: DENIED. Closing Case. Signed by Judge K. Michael Moore on 9/25/2024. See attached document for full details. (gbn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:21-cv-21952-KMM
JEAN PIERRE,
v.

Movant,

RICKY D. DIXON,
Secretary, Florida Department of Corrections,
Respondent.

/
ORDER ON REPORT AND RECOMMENDATION

THIS CAUSE came before the Court upon Petitioner Jean Pierre’s (“Petitioner”) Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (“Petition”) (ECF No. 1). The Court
referred the matter to the Honorable Lauren F. Louis, United States Magistrate Judge, who issued
a Report and Recommendation recommending that the Petition be DENIED. (“R&R”) (ECF No.
10). Petitioner objected to the R&R. (“Objs.”) (ECF No. 13). The matter is now ripe for review.
As set forth below, the Court ADOPTS the R&R.
I.

BACKGROUND
A. Factual Background
On November 26, 2012, Petitioner was charged by Amended Information in the Circuit

Court of the Eleventh Judicial District in and for Miami-Dade County, Florida, with (1) retaliating
against a witness, in violation of Fla. Stat. § 914.23; (2) attempted armed robbery, in violation of
Fla. Stat. §§ 812.13(2)(b), 775.087, 777.04; (3) aggravated assault with a weapon, in violation of
Fla. Stat. §§ 784.021(1)(a), 775.087(1); (4) aggravated assault with a firearm, in violation of Fla.
Stat. §§ 784.021(1)(a), 775.087; (5) possession of a firearm by a convicted felon, in violation of

Fla. Stat. §§ 790.23(1), 775.087; and (6) tampering with a witness, in violation of Fla. Stat. §§
914.22(1), 914.22(2)(c), 777.011. R&R at 2; (ECF No. 3-1).
The Petition concerns the underlying testimony and evidence provided by victim Kiani
Brown. On March 23, 2012, Ms. Brown reported that she was at a bus stop at NW 7th Avenue
and NW 36th Street in Miami, Florida waiting for the bus when she was approached by Petitioner.
R&R at 2; (ECF No. 3-2) at 2. Petitioner at the time had a large rock in his hand and walked up
to Ms. Brown, threatening to hit her with the rock if she did not give him any cash. 1 Id. Three
days later, Ms. Brown was again at a bus stop, at NW 12th Avenue and 67th Street. Id. While
waiting, a grey Honda Accord drove by, where Petitioner was seated in the front passenger side of
the vehicle. Id. The vehicle then returned and stopped in close proximity to where Ms. Brown
was waiting. Id. Petitioner’s window then rolled down and Ms. Brown stated she saw Petitioner
point a firearm at her and start laughing. Id. Ms. Brown then started speaking to an unknown
pedestrian, who had just walked up to the bus stop, as if she knew her. Id. The vehicle then
proceeded to drive away from the bus stop. Id. Ms. Brown then heard gun shots coming from the
vehicle. Id.
On July 23, 2012, Ms. Brown authored a sworn affidavit, (the “2012 Affidavit”), within
which Ms. Brown stated that she contacted Petitioner’s trial counsel and requested a meeting.
R&R at 3; (ECF No. 3-4) at 1. In the 2012 Affidavit, Ms. Brown recanted her initial report and

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Petitioner specifically stated: “Who gonna take the stand if I hit you with this rock, hoe?” (ECF
No. 3-2 at 2). Ms. Brown had originally testified for the prosecution and was deposed for a felony
case in which Petitioner was co-defendant and was charged with one count of attempted
premeditated murder with a firearm causing serious bodily injury, in violation of Fla. Stat. §§
777.04(1), 775.087, among other charges. Id. at 1.

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attested that neither incident on March 23, 2012 nor March 26, 2012 occurred. Ms. Brown further
attested that she signed the affidavit of her own free will without coercion. Id.
Following the 2012 Affidavit, Ms. Brown provided several other inconsistent statements
leading up to Defendant pleading guilty. R&R at 3. Detective Roderick Passmore, a detective
with the City of Miami Police Department, spoke to Ms. Brown over the phone, during which Ms.
Brown stated that she went to Petitioner’s counsel’s office because people were threatening her
and she was fearful of retaliation for her cooperation. R&R at 4; (ECF No. 3-5) at 3. Ms. Brown
further attested in a later statement to Detective Passmore that she was in fact threatened with a
rock and a firearm by Petitioner on March 23, 2012 and March 26, 2012. R&R at 4; (ECF No. 311) at 4. Approximately three months later, state prosecutors met with Ms. Brown, where Ms.
Brown stated that she had not signed the 2012 Affidavit and that the signature on the Affidavit
was not hers. R&R at 4; Id. at 81. Ms. Brown then admitted that she had in fact signed the
Affidavit, but only reviewed the second page and not the entire document prior to signing. Id.
On November 26, 2012, the State filed an amended information charging Petitioner with
an additional count of witness tampering. R&R at 4; (ECF No. 3-1) at 7. That same day, the State
represented to the court that Ms. Brown was present and desired to speak to the court. R&R at 4;
(ECF No. 3-6) at 4. The State represented to the court that it believed Ms. Brown was about to
commit perjury and requested the court advise Ms. Brown that she has the right to an attorney.
R&R at 4; Id. at 4–5. Ms. Brown was then sworn in and prior to testifying, the court advised Ms.
Brown that anything she says can be used against her if the statements are false, and she could be
charged with perjury. R&R at 4; Id. at 7. The court then asked if Ms. Brown first wanted to speak
to an attorney, to which Ms. Brown confirmed that she was represented. R&R at 4; Id. The court

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then requested Ms. Brown call her attorney so that he could be present while being asked questions.
Id. at 8. Ultimately, Ms. Brown did not testify. Id.
On January 30, 2013, Petitioner entered a plea on all charges. R&R at 4; (ECF No. 3-7).
At the change of plea, the court asked whether there was approval by the victim, Ms. Brown, of
the plea. Id. at 7. The State responded, “Judge, if you recall this is the victim who came to court
and attempted to recant in front of your honor. At this point [in] time the State believes that this
is in everyone’s best interest.” R&R at 4; Id.
Pursuant to the plea agreement, the State waived multiple minimum mandatory sentences
and Petitioner was sentenced to credit time served and 5 years’ probation. (ECF No. 8-1) at 31;
(ECF No. 7 at 24). Judgment was entered on February 7, 2013, (ECF No. 8-1 at 27), and no appeal
was taken. R&R at 5. On July 23, 2013, an amended affidavit of violation of probation was filed,
alleging that Petitioner had violated his conditions of probation. R&R at 5. Based on such
violations, the court revoked Petitioner’s probation and sentenced Petitioner to 40 years
imprisonment, followed by 10 years of probation. R&R at 5.
B. Procedural History
Petitioner appealed the sentence imposed on his probation violations, which the Third
District Court of Appeal of Florida affirmed, but remanded for correction of the revocation order
to exclude one of the violations. Pierre v. State, 197 So. 3d 604 (Fla. 3d DCA 2016); (ECF No.
8-2) at 2. Petitioner then moved for a rehearing, which was denied. (ECF No. 8-2) at 4, 15. The
mandate from the Third District Court of Appeal was issued on August 1, 2016. Id. at 17.
On August 17, 2017, Petitioner filed a motion for post-conviction relief, pursuant to Florida
Rule of Criminal Procedure 3.850 (“Rule 3.850 Motion”), alleging newly discovered evidence of

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innocence. R&R at 6; (ECF No. 3-10). The new evidence concerned an affidavit from Ms. Brown
dated February 22, 2017 (the “2017 Affidavit”). R&R at 6. In the 2017 Affidavit, Ms. Brown
states that (1) she did not witness anything in the original attempted murder case, (2) she was never
threatened by Petitioner by either a rock or firearm in this case, (3) she never spoke to Detective
Passmore following the 2012 Affidavit, and (4) in November 2012 she planned to recant in court,
but was scared to do so because of the statements the judge and the prosecutors made that day. Id.
at 6. After conducting an evidentiary hearing, the court denied the Motion because it found that
the 2017 Affidavit was not newly discovered evidence. (ECF Nos. 3-15, 3-16). Accordingly, the
state court denied the Rule 3.850 Motion as untimely. Id.
Petitioner appealed the decision asserting it was error to deny the Rule 3.850 motion based
on the finding that Ms. Brown’s affidavit was not newly discovered evidence. (ECF No. 3-17).
The Third District Court of Appeal affirmed the decision. (ECF Nos. 3-20, 3-22); Pierre v. State,
303 So. 3d 214 (Fla. 3d DCA 2020). Petitioner filed a motion for rehearing, which was denied.
R&R at 6. The mandate was issued on August 19, 2020. (ECF No. 3-22).
On May 25, 2021, Petitioner filed the instant Petition for a writ for habeas corpus pursuant
to 28 U.S.C. § 2254, raising three grounds for relief: (1) counsel was ineffective for failing to
investigate Ms. Brown as a witness; (2) the State failed to disclose exculpatory evidence and not
manufacture inculpatory evidence; and (3) Petitioner is actually innocent of the underlying
charges. See (ECF No. 1).
II.

LEGAL STANDARD
The Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

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The Court “must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). A de novo review is therefore required if a party
files “a proper, specific objection” to a factual finding contained in the report. Macort v. Prem,
Inc., 208 F. App’x 781, 784 (11th Cir. 2006). “It is critical that the objection be sufficiently
specific and not a general objection to the report” to warrant de novo review. Id.
III.

DISCUSSION
As set forth in the R&R, Magistrate Judge Louis recommends that the Court deny the

Petition. R&R at 25. Magistrate Judge Louis first finds that the Petition was filed untimely. R&R
at 8–16. Specifically, Magistrate Judge Louis provides that (1) the Rule 3.850 Motion filing did
not toll the federal habeas clock, (2) equitable tolling is not applicable because there was no tolling
during the pendency of the 3.850 Motion, and (3) under the actual innocence exception, Petitioner
failed to demonstrate through the 2017 Affidavit that he is actually innocent. Id. In the event the
Court disagrees with Magistrate Judge Louis’s denial on lack of timeliness, the R&R further
provides that the merits claims should also be denied. Id. at 16. Magistrate Judge Louis did not
hold an evidentiary hearing and recommends denial of a Certificate of Appealability. Id. at 24–
25.
Petitioner raises both factual and legal objections to the R&R. See generally Objs. With
respect to the factual objections, Petitioner states that the R&R does not include the full history
concerning the 2012 Affidavit, specifically Ms. Brown’s alleged communications with Petitioner
prior to her recanting her statement, and Ms. Brown’s fears that the State would prosecute her of
perjury. See Objs. at 5–7. With respect to the legal objections, Petitioner argues that the state
court ruling, which denied the Rule 3.850 Motion as untimely, was erroneous and the R&R’s

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reliance on this holding improperly entitled the state court to “absolute deference.” Id. at 10.
Petitioner further objects to the legal conclusion that he has failed to allege, or demonstrate, actual
innocence. Id. at 12. With respect the merits claims, Petitioner concedes that his two constitutional
claims were procedurally defaulted, but argues that the actual innocence claim should have been
treated as a gateway to allow merits consideration of the constitutional claims. Id. at 16.
The Court takes each of Magistrate Judge Louis’s findings, and Petitioner’s corresponding
objections, in turn.
1. TIMLINESS
“The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes
a 1-year statute of limitations for filing a federal habeas corpus petition.” Pace v. DiGuglielmo,
544 U.S. 408, 410 (2005) (citing § 2244(d)(1)). The year commences on “the date on which the
judgment became final by . . . the expiration of the time for seeking [direct] review.”
§ 2244(d)(1)(A). Under this clause, “the judgment becomes final . . . when the time for pursuing
direct review in [the Supreme] Court, or in state court, expires.” Gonzalez v. Thaler, 565 U.S. 134,
150 (2012). AEDPA’s limitations period is tolled while “a properly filed application for State
postconviction or other collateral review with respect to the pertinent judgment or claim is
pending.” 28 U.S.C. § 2244(d)(2); see also Kearse v. Sec’y, Fla. Dep’t of Corr., 736 F.3d 1359,
1362 (11th Cir. 2013) (“In order to toll the statute of limitations, the application for state
postconviction relief must be properly filed.”). A state postconviction motion is “properly filed”

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when “its delivery and acceptance are in compliance with the applicable laws and rules governing
filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000).
The precise issue with respect to Magistrate Judge Louis’s timeliness finding is whether
Petitioner’s Rule 3.850 Motion, alleging newly discovered evidence of innocence in state court,
tolled the statute of limitations period. The R&R provides that the statute of limitations began to
run on October 13, 2016 after the state court judgment was final (and following the 60 day period
to file a writ of certiorari), giving Petitioner through October 13, 2017, absent any tolling, to file a
timely federal habeas corpus petition. R&R at 9. Petitioner filed the 3.850 Motion on August 17,
2018, which the state court rendered untimely during a hearing on June 15, 2018. Id. Relying on
Jones v. Sec’y, Fla. Dep’t of Corr., the R&R states that “when a state court unambiguously rules
that a post-conviction petition is untimely filed under state law, we must respect that ruling and
conclude that the petition was not ‘properly filed’ for the purposes of § 2244(d)(2).” Id. at 10
(citing 906 F.3d 1339, 1350 (11th Cir. 2018)). Without finding that the testimony did constitute
new evidence when the state evidentiary hearing occurred on June 15, 2018, Magistrate Judge
Louis found that such untimely Motion did not toll the time to file a federal habeas petition during
its pendency. R&R at 10–11.
Petitioner objects, arguing that the R&R errs in its deference to the state court finding that
the Rule 3.850 Motion was untimely, referring to Magistrate Judge Louis’s deference to the state
court ruling as “determinative” and “absolute deference.” Objs. at 10. Petitioner takes issue with
the R&R’s reliance on Jones to support the proposition that “[w]hen a postconviction petition is
untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).” Id. Petitioner
contends that Jones invokes a “normal deference” standard, where the state court is afforded

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significant, but not absolute deference. Objs. at 10. Petitioner asserts that although the standard
is deferential to a state court’s finding, if the state court unreasonably determined the facts, a
defendant may be entitled to federal habeas relief. Id. Petitioner concludes that the R&R would
create an absolute bar for federal habeas petitions based on evidence that a state court has found
does not qualify as newly discovered, “even if the State court ruling is wrong.” Id. at 9.
The question before the Court is whether it was proper for Magistrate Judge Louis to defer
to the state court’s ruling. The law in the Eleventh Circuit is clear. “[W]hen a state court
unambiguously rules that a post-conviction petition is untimely under state law, we must respect
that ruling and conclude that the petition was not ‘properly filed’ for the purposes of § 2244(d)(2).”
Jones v. Sec’y, Fla. Dep’t of Corr., 906 F.3d 1339, 1350 (11th Cir. 2018); Stafford v. Thompson,
328 F.3d 1302, 1305 (11th Cir. 2003)(“[W]e are bound by the state court’s determination that the
appeal was untimely.”); Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318 (11th Cir.
2006)(“[W]hen a state court determines that a petition is untimely . . . the timeliness decision
standing alone compels a federal court to conclude that the state motion was not ‘properly filed.’”);
Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (“[W]e see no principled reason to apply
a lesser measure of deference to the state court in the context of § 2244(d)(2) than we apply in the
context of procedural default questions. We therefore conclude that the state court’s holding that
[the] Rule 3.850 petition was time-barred is due deference.”).
Petitioner asserts, without citing to any authority, that there is a cognizable difference in
the level of deference afforded to a state law decision when reviewing a post-conviction state law
ruling. Objs. at 10. From what the Court can ascertain, this revised deference standard would
require the court to address the merits every time a state court rules that a post-conviction petition

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is untimely. Petitioner’s argument is foreclosed by the binding precedent of this Circuit. The
Court thus agrees with Magistrate Judge Louis’s findings that the Rule 3.850 Motion did not toll
the time to file a federal habeas petition during its pendency. Accordingly, Petitioner’s objections
are overruled.
2. EQUITABLE TOLLING
“‘If a defendant files a petition for a federal writ of a habeas corpus beyond section
2244(d)(1)’s one-year limitation period,’ the court can still review the otherwise untimely petition
if one of two equitable exceptions are met: ‘equitable tolling’ or ‘actual innocence.’” Gerome v.
Fla. Dep’t of Corr., No. 23-23778-CIV, 2024 WL 1759137, at *5 (S.D. Fla. Apr. 24, 2024)
(quoting San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011)) (alterations omitted).
Petitioner argues that the time during which he was negotiating with state prosecutors for a
sentence reduction should equitably toll his time to file this Petition. Petition at 30. In the R&R,
Magistrate Judge Louis finds that Petitioner’s argument for equitable tolling during negotiations
with the State depends on his assumption that his Rule 3.850 Motion was properly filed and thus
tolled the statute of limitations until at least 2020. R&R at 11. The R&R accordingly provides
that because the Rule 3.850 Motion was not properly filed, it did not toll the statute of limitations
and thus any actions taken thereafter would not equitably toll the deadline that already elapsed.
Id. Petitioner objects on the same grounds stated above—that the Rule 3.850 Motion tolled the
federal habeas clock. Objs. at 11.
In light of the Court’s finding that the Rule 3.850 Motion did not toll the federal habeas
clock, the Court accordingly overrules Petitioner’s objection with respect to equitable tolling for
the reasons set forth above.

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3. ACTUAL INNOCENCE
Petitioner further argues that the Petition is reviewable under the actual innocence
exception, arguing that the 2017 Affidavit confirms that Petitioner never committed these crimes
and only pleaded guilty due to the State successfully intimidating Ms. Brown into inculpating him.
Petition at 25. Magistrate Judge Louis rejected this argument, holding that the 2017 Affidavit “can
hardly be considered new in that Ms. Brown’s recantation was well known to Petitioner.” R&R
at 15. Given Petitioner knew of Ms. Brown’s recantations and still pleaded guilty, the R&R
concludes ‘“it is difficult for him to now argue that the evidence is new and of such exculpatory
value that no reasonable juror could have convicted him because of it.”’ Id. at 16 (citing Moncrief
v. Baldwin, 2023 U.S. Dist LEXIS 199952, 2023 WL 8610127 (M.D. Ala. 2023)).
Petitioner objects on the grounds that (1) it is a valid actual innocence claim that a person
pleaded guilty knowing they were innocent, but fearing that they would be convicted by false
testimony put on by the State, (2) there is no additional evidence that the crimes took place, outside
of Ms. Brown’s initial statements, and thus the 2017 Affidavit would prove that Petitioner is
actually innocent, and (3) the Court must provide an actual merits-based analysis of Ms. Brown’s
testimony and the history of the case, rather than simply concluding that the Petition is procedurally
barred. Objs. at 11–14.
In consideration of Petitioner’s claim of actual innocence, the Court also considers
Petitioner’s factual objections to the R&R. Specifically, Petitioner notes that the R&R fails to
consider that there is no evidence of Petitioner “terrorizing or threatening” Ms. Brown to recant.
Objs. at 5. Petitioner further argues that the State and trial judge “intimidated” Ms. Brown after
she expressed she intended to recant. Id. Petitioner asserts that when Ms. Brown intended to

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testify and recant her initial statements, the trial judge was “willing to treat Ms. Brown as a
potential perjurer and criminal at the State’s request, with the intent and effect of preventing her
from giving exculpatory testimony.” Id. Petitioner concludes that such facts are “critical” to the
Petition, and although the 2012 Affidavit was submitted prior to Petitioner entering his plea, this
affidavit was never believed or accepted by the State. Id.
Considering Petitioner’s factual and legal objections, the Court agrees with the R&R that
Petitioner has not presented new evidence that would demonstrate his actual innocence. “A
credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . .
on the merits notwithstanding the existence of a procedural bar to relief.” McQuiggin v. Perkins,
569 U.S. 383, 393–94 (2013). Habeas petitioners asserting actual innocence as a gateway to
review of defaulted or time-barred claims must establish that, “in light of the new evidence, it is
more likely than not that no reasonable juror would have found him guilty beyond a reasonable
doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995). To be credible, a claim of actual innocence
requires the petitioner to “support his allegations of constitutional error with new reliable evidencewhether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence-that was not presented at trial.” Id. at 324. This standard is demanding, and only permits
review in the “extraordinary” case. House v. Bell, 547 U.S. 518, 538 (2006).
The Court agrees with Magistrate Judge Louis’s findings that the 2017 Affidavit is not
newly discovered evidence, and recites “identical exculpatory statements” to the 2012 Affidavit.
R&R at 15. Petitioner’s conviction of guilt rests on his guilty plea, which he knowingly and
voluntarily entered into with the knowledge of such exculpatory statements. With respect to the
allegations that the State and trial judge “intimidated” Ms. Brown, and colloquied her on the risks

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of perjuring herself, this does not change the underlying factual underpinnings that Ms. Brown had
provided several inconsistent statements regarding Petitioner’s underlying allegations, falling far
short of the “trustworthy eyewitness accounts” required to meet the extraordinary circumstances
wherein the Court has lost confidence in the outcome of the case. Schlup, 513 U.S. at 327. The
Court thus overrules Petitioner’s objection as to his claim of actual innocence.
Accordingly, since Petitioner has presented no valid reasoning supported by the record that
he is actually innocent, the Petition is time-barred pursuant to 28 U.S.C. § 2244(d)(1)-(2) and he
is not entitled to review on the merits.
The Court further agrees with the R&R that the pertinent facts of the case are fully
developed in establishing that habeas relief is precluded, and thus Petitioner’s request for an
evidentiary hearing is denied. See Chavez v. Sec’y, Fla. Dep’t of Corrs., 647 F.3d 1057, 1060
(11th Cir. 2011) (holding that in a habeas proceeding, the burden is on the petitioner to establish
the need for an evidentiary hearing).
IV.

CERTIFICATE OF APPEALABILITY
A certificate of appealability shall issue only if the applicant has made a substantial

showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make such a showing,
an applicant “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)
(citation omitted), or that “the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Here, the Court agrees with the R&R’s
findings that Petitioner has not made a substantial showing of the denial of a constitutional right.

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Nor has Petitioner raised issues that reasonable jurists would find debatable. A certificate of
appealability is not appropriate here.
V.

CONCLUSION
Accordingly, UPON CONSIDERATION of the Petition, the R&R, the Objections, the

pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that Magistrate Judge Louis’s R&R (ECF No. 10) is ADOPTED.
Petitioner’s Objections (ECF No. 13) are OVERRULED and Petitioner’s Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 is DENIED.
The Clerk of Court is INSTRUCTED to CLOSE THIS CASE. All outstanding Motions
are DENIED AS MOOT.
25th day of September,
DONE AND ORDERED in Chambers at Miami, Florida, this _____

2024.

K. MICHAEL MOORE
UNITED STATES DISTRICT JUDGE
c: All counsel of record

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