Roger Allen Rozzelle appeals the district court’s denial of his untimely 28 U.S.C. § 2254 petition challenging his Florida second-degree murder conviction. After review and oral argument, we affirm.
I. BACKGROUND
An information charged Petitioner Rozzelle with one count of second-degree murder, in violation of Florida Statutes § 782.04(2). This appeal centers around the “depraved mind” mens rea in § 782.04(2), which defines second-degree murder as “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” Fla. Stat. § 782.04(2). In a 1999 trial, a jury convicted Rozzelle of second-degree murder. We review the abundant trial evidence establishing that Rozzelle brutally beat and killed the victim, Greg Leier.
A. 1999 Trial and Conviction
On July 17, 1998, Petitioner Rozzelle and his girlfriend, Andrea Barnes, checked into room 225 of a motel in Fort Walton Beach, Florida. At the motel, they met the victim, Greg Leier, who was staying next door in room 226. Leier had arrived several days earlier and had lent his car and credit cards to Tracey Feagin, who was staying at a nearby motel with her boyfriend, Corey Cox.
At 5:00 p.m., Petitioner Rozzelle went to a bar to meet his brother, Anthony Rozzelle. Barnes stayed behind at the motel. Petitioner’s brother Anthony testified that Petitioner stayed with him at the bar until 6:00 p.m., when Petitioner left to check on Barnes. Around 6:00 p.m., Petitioner Rozzelle returned to the motel, where he saw Leier and Barnes in what Petitioner believed to be a sexual encounter. 1 Petitioner claimed that he “[kjnocked them out.”
Petitioner Rozzelle returned to the bar and told his brother Anthony that Petitioner had “caught” Barnes with Leier, “cold-cocked” both of them, “[kjnocked them out,” and dragged Barnes to his room and locked the door. Anthony testified that Petitioner was “[n]ot excited” when he described these events. The brothers stayed at the bar until about 9:00 p.m. Anthony drove Petitioner part of the way back to the motel, then “let him have his car and go on his way.” Anthony told Petitioner to go back to the motel and go to sleep and “don’t get in trouble and don’t go to jail.”
That same evening, witnesses Adley Boudreaux and Dawn Cortie were staying in room 221. Both Boudreaux and Cortie testified that around 8:00 or 8:30 p.m., they were at the motel pool and saw Petitioner Rozzelle drive up, get out of his car quickly, run up the stairs, and beat on the door to room 226, demanding to be let in. At some point, Boudreaux left the pool and returned to room 221. On his way, he saw Petitioner Rozzelle enter room 226. Then Boudreaux heard a female voice “hollering, something about, stop, stop, you know. Don’t do that. Leave him alone.” Boudreaux went into his room.
Motel employee Harish Chauhan testified that the occupant of room 226 phoned the motel front desk asking for security. Minutes later, Chauhan left the motel office and observed Leier, whose face was covered with blood, walking down the stairs. Leier asked Chauhan to call the police. Chauhan returned to the motel office and asked another motel employee to call the police.
At 9:26 p.m., police officer John Burritt responded to the call of battery-already-occurred. He arrived at the motel at 9:28 p.m. As he stepped out of the patrol car, Officer Burritt heard a voice say, “Pm over here.” The victim Leier approached Officer Burritt from the shadows of the ground floor of the motel. Burritt described Leier as having suffered a brutal beating. Leier was “staggering and hunched over,” had “blood pouring out of his mouth” and his head “almost looked twice the size of a normal human being” due to “massive swelling.” Burritt testified, “I was shocked because I’d never seen anybody beaten so badly in my life.” Burritt explained that “[y]ou could tell he was in severe pain and he was having difficulty breathing and having difficulty talking.” Leier told Officer Burritt that the person who beat him was upstairs and brought Burritt to room 225. Leier said, “he’s in there.” Officer Burritt sent Leier to room 226 and knocked on the door to room 225. Petitioner Rozzelle answered. Officer Burritt saw Barnes in the room, and she was bleeding.
Officer Mary Blythe Williams arrived at the motel shortly after Officer Burritt. Officer Williams testified that Barnes “had blood all over her face, around her nose.” According to Officer Williams, Barnes’s “teeth had been knocked out to just below the gumline” so that “[tjhere was just a little tiny bit of white showing up underneath her gumline.”
Officer Burritt arrested Petitioner Rozzelle at the motel. Burritt testified that as he and Rozzelle walked past Leier’s room, Rozzelle looked in and stated, “that’s right, you motherfucker, I kicked your ass, I caught you fucking my old lady, I kicked your ass.” Officer Williams also heard Rozzelle make this statement. Officer Burritt put Rozzelle in the back of Burritt’s patrol car and transported Rozzelle to the police station. Officer Burritt testified that, during the trip, Rozzelle stated, “I caught that guy fucking my old lady and I beat the hell out of him. I’m from the old school and he had it coming.”
At the police station, Petitioner Rozzelle made a taped statement that was introduced at trial. In the statement, Rozzelle said, “I love this woman,” and he “whupped [Leier’s] ass” after seeing Leier and Barnes together after returning from the bar the second time and “didn’t have no second thoughts about it.” Rozzelle continued:
You’re lucky this [foot] wouldn’t fit up his ass or it would have been there, too.That’s all I can say. The guy got — he deserved an ass whupping, and I put one on him and I don’t feel sorry about it. The only thing that I didn’t do to that motherfucker is throw him off the balcony, and if I had probably thought about it, I would have done that, too.
In his taped statement, Rozzelle stated that he had used only his fists to beat Leier. Rozzelle struck Leier with “[a] couple of good left hooks ... probably three or four ... [and a] couple of right crosses, too.”
Rozzelle also indicated that, during or shortly after he beat Leier, Barnes went into her room and locked the door, and Rozzelle had to go downstairs to the motel office to get another key. The police “were there pretty quick,” about “two or three minutes” after Rozzelle went to the motel office.
Emergency Medical Technician (“EMT”) Brian Hughes treated the victim Leier at the motel. Hughes testified that Leier stated that he was hit with a fist and indicated that he was not hit with any other objects. Hughes testified that Leier lost consciousness at the motel.
Around 10:00 p.m., Leier arrived at the hospital. Dr. Carl Glidden, who treated Leier, testified that Leier was unconscious and neurologically unresponsive upon Lei-er’s arrival at the emergency room. Dr. Glidden explained that Leier’s brain “was more or less like jello at that time, no form or function to it.” Dr. Glidden opined that Leier’s injuries “could be consistent” with a beating from a person’s fists.
Dr. Bruce Witkind, a neurosurgeon, testified that Leier was brain dead when Dr. Witkind examined Leier at the hospital. According to Dr. Witkind, a CT scan showed massive bleeding on the left side of Leier’s brain and under his skull, and these injuries were consistent with a beating from a man’s fists.
Dr. Michael Berkland, the Associate Medical Examiner, performed Leier’s autopsy. Dr. Berkland testified that Leier’s injuries included bruises around the eyes, face and mouth, and on the scalp, chest, both arms and back. Leier’s internal injuries included deep bruises extending to the muscle tissue. Leier’s blood alcohol level was approximately 0.40. Dr. Berkland stated that Leier’s injuries were consistent with a beating from a man’s fists but acknowledged that some of Leier’s injuries could have been caused by something else, for example, falling against a hard surface.
At trial, Petitioner Rozzelle’s defense was that, several minutes after he beat Leier the second time, Corey Cox, who had visited the motel with Feagin on a different day but did not know Leier, entered the motel room and administered the final and fatal blows to Leier. Defense counsel argued to the jury that there was a reasonable doubt as to whether Rozzelle was the person responsible for Leier’s death. In his closing argument, defense counsel noted that, after Leier was beaten, Rozzelle’s knuckles were uninjured except for one small scratch and police found no blood on the shoes and shirt Rozzelle was wearing. Defense counsel also argued that Leier’s statement, that Rozzelle beat him, was unreliable because Leier was extremely intoxicated and his brain was injured by the beating. Defense counsel attributed Rozzelle’s incriminating statements after the beating to Rozzelle’s anger. Rozzelle did not testify at trial.
The prosecution argued to the jury that Rozzelle administered the fatal beating and that Rozzelle should be convicted of second-degree murder and not manslaughter. The prosecution did not refer to heat of passion or excusable homicide in its closing argument.
The Florida trial court instructed the jury not only about second-degree murder, but also about the lesser included crime of manslaughter and about “excusable” homicide. There were no objections to the following instructions.
As to second-degree murder, the Florida trial court instructed the jury that the State must prove these thrfee elements beyond a reasonable doubt in order for the jury to convict Rozzelle of second-degree murder: (1) “Greg Leier is dead”; (2) “the death was caused by the criminal act of Roger Allen Rozzelle”; and (3) “there was an unlawful killing of Greg Leier by an act imminently dangerous to another and demonstrating a depraved mind without regard to human life.” See Fla. Stat. § 782.04(2).
The Florida trial court then instructed that if second-degree murder was not proved, the jury would decide if Rozzelle was guilty of the lesser included crime of manslaughter. In this event, the court instructed that the State must prove these two elements in order for the jury to convict Rozzelle of manslaughter: (1) “Greg Leier is dead”; and (2) “Roger Rozzelle intentionally caused the death of Greg Lei-er, or Roger Allen Rozzelle intentionally procured the death of Greg Leier, or ... the death of Greg Leier was caused by the culpable negligence of Roger Allen Rozzelle.” See Fla. Stat. § 782.07(1). 3
As to “excusable” homicide, the Florida trial court instructed that “[t]he killing of a human being is excusable.... [wjhen the killing occurs by accident and misfortune in the heat of passion upon any sudden and sufficient provocation.” See Fla. Stat. § 782.03. 4
The jury convicted Rozzelle of second-degree murder. The Florida trial court imposed a sentence of life imprisonment. 5
B. Direct Appeal
On direct appeal, Petitioner Rozzelle claimed that the evidence was insufficient to convict him of second-degree murder. In particular, Rozzelle argued that the evidence showed that he acted in the heat of passion and therefore he lacked the “depraved mind” intent required for second-
The State responded that Rozzelle waived this manslaughter defense because his trial counsel did not specifically raise the issue of heat of passion in Rozzelle’s motion for judgment of acquittal. The State explained that Rozzelle’s “argument on appeal, that the evidence showed as a matter of law that the killing was heat-of-passion manslaughter, was not even suggested by counsel below, who argued only [in Rozzelle’s motion for judgment of acquittal] that the State failed to prove a prima facie case.” In addition, the State argued that there was ample evidence at trial to show that Rozzelle killed Leier “by an act imminently dangerous and evincing a depraved mind.”
On December 15, 2000, Florida’s First District Court of Appeal affirmed Rozzelle’s second-degree murder conviction and life sentence without opinion.
Rozzelle v. State,
C. Rule 3.850 Motion in 2001-2003
On June 8, 2001, in Florida circuit court, Petitioner Rozzelle filed a pro se motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Rozzelle’s 3.850 motion claimed that trial counsel was ineffective for not including in Rozzelle’s motion for judgment of acquittal “the fact that the state failed to prove deprived [sic] mind” and thereby failing to preserve this issue for appeal. 7 The State responded that Rozzelle’s trial counsel was not ineffective for numerous reasons, including there was “ample evidence” at trial showing Rozzelle acted with a depraved mind and was properly convicted of second-degree murder.
After appointing 3.850 counsel for Rozzelle, the Florida circuit court held an evidentiary hearing. Rozzelle’s trial counsel testified, inter alia, that he did not argue in his motion for judgment of acquittal that the evidence was insufficient to show that Rozzelle acted with a “depraved mind” because “[t]here was plenty of evidence that a jury ... could use to make a finding of that.” Although Rozzelle did not testify at trial, he testified at the 3.850 hearing that he caught Leier and Barnes together twice, first at 6:00 p.m. and second at 9:00 p.m., and the second encounter is when he observed Leier “embrace[]” Barnes, saw that “[s]he had on a T-shirt with nothing on underneath” and “went off.”
On February 20, 2002, the Florida circuit court denied Rozzelle’s 3.850 motion. The circuit court explained that Rozzelle’s allegations that his trial counsel was ineffective for failing to raise the “depraved mind” element in Rozzelle’s motion for judgment of acquittal were “definitely and certainly without merit.” The circuit court continued, “Such a motion would have been obviously denied ... based on the ample evidence of such intent.”
D. State Habeas Petition in 2006
Almost three years later, Petitioner Rozzelle filed a petition for a writ of habeas corpus in the Florida circuit court. In this March 28, 2006 petition, Rozzelle claimed that the prosecutor “knowingly presented false or purjured testimony” at trial, specifically Officer Mary Blythe Williams’s testimony regarding Andrea Barnes’s physical condition at the motel after the beating. Williams testified that Barnes’s teeth were knocked out, but Rozzelle’s state habeas petition alleged that his evidence showed Barnes still had her teeth. This time, Rozzelle did not raise an ineffective-trial-counsel claim.
On April 11, 2006, the Florida circuit court dismissed Rozzelle’s habeas petition. The circuit court concluded that “[t]he remedy of habeas corpus is not available to obtain the kind of collateral postconviction relief available by a motion under Fla. R.Crim. P. 3.850 in the sentencing court.”
See Baker v. State,
On July 27, 2007, Florida’s First District Court of Appeal affirmed the circuit court’s dismissal of Rozzelle’s state habeas petition.
Rozzelle v. McDonough,
E. Federal § 225k Petition
On September 5, 2007, Petitioner Rozzelle, pro se, filed this, his first, § 2254 petition and a supporting memorandum shortly thereafter (hereinafter the “§ 2254 petition”). 9 Rozzelle’s § 2254 petition raised multiple claims, including ineffective assistance of trial counsel as to specific matters. 10 Rozzelle requested that the district court “[r]elease [him] from incarceration, new trial, or remand to state court with instructions to reduce [his] conviction from second degree murder to manslaughter, or any relief this court deems appropriate.”
In its answer, the State raised multiple procedural defenses, including Rozzelle’s failure to satisfy the one-year limitation
Apparently recognizing that his § 2254 petition was three years too late, Rozzelle claims in his § 2254 petition that new reliable evidence shows that he is actually innocent of second-degree murder and that his showing of “actual innocence” excuses his failure to exhaust state court remedies and to timely file his first federal habeas petition.
The evidence, which Rozzelle alleges is “new,” primarily includes statements by witnesses and Rozzelle himself to law enforcement officers — Officer Burritt, Officer Williams, Detective Thomas Matz and Detective Joseph Michael — which they included in their written police reports back in 1998 but which his trial counsel did not introduce at trial. Rozzelle contends these statements show that (1) he caught Leier and Barnes twice in an intimate encounter and thus beat Leier in the heat of passion; (2) he beat Leier with only his fists; and (3) the beating lasted “only seconds” and was not extended. Rozzelle also submitted Barnes’s medical records and a police report addendum documenting Barnes’s injuries, which Rozzelle claims contradict Officer Williams’s testimony that Barnes’s teeth were knocked out. Rozzelle claims that this “new” evidence shows he acted with a lower degree of intent than suggested by the trial evidence and, therefore, if the “new” evidence were introduced, no reasonable juror would have found that he acted with a “depraved mind” and convicted him of second-degree murder. Rozzelle contends the “new” evidence supports only the lesser included crime of manslaughter.
The State responded,
inter alia,
that (1) Rozzelle had failed to present any “new reliable evidence,” as required by
Schlup v. Delo,
F. Magistrate Judge’s Report and Recommendation
The magistrate judge’s report and recommendation (“the report”) concluded Rozzelle’s § 2254 petition was untimely because Rozzelle did not file his petition within one year of the date his conviction became final. Indeed, in this appeal Rozzelle concedes that “[h]e seeks the actual innocence exception because his petition was untimely.” See 28 U.S.C. § 2244(d)(1)(A), (D). 11
G. District Court’s Order
After reviewing Petitioner Rozzelle’s objections to the report, the district court “agree[d] with the overall conclusion reached in the [rjeport, but for different reasons.” The district court acknowledged that Rozzelle’s evidence was not “new” and was “substantively the same as other heat of passion evidence that was admitted at trial.” The district court also concluded that Rozzelle had not diligently pursued his actual innocence claim because he “knew of his actual innocence claim ... certainly no later than March 2000 when he raised the claim on his direct appeal.”
The district court, however, did not resolve whether Rozzelle had made the required “actual innocence” showing based on “new reliable evidence.” Rather, the district court framed the “pertinent question” as whether a gateway actual innocence exception exists to AEDPA’s statute of limitations due to the Suspension Clause. See U.S. Const, art. 1, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). 12 Concluding that no such exception exists, the district court dismissed Rozzelle’s § 2254 petition as untimely.
II. STANDARD AND SCOPE OF REVIEW
Rozzelle’s § 2254 petition and appeal are governed by AEDPA.
See Payne v. Allen,
The district court issued a certificate of appealability as to “whether there is an ‘actual innocence’ exception that will equitably toll the AEDPA statute of limitations period, and, if so, whether that exception should be available to a petitioner who has failed to pursue his innocence claim diligently.” Necessarily subsumed within this question is the threshold issue of whether the petitioner has demonstrated his actual innocence in the first place.
Cf. Lawrence v. Florida,
Our inquiry also takes into account the fact that Rozzelle, as appellant, contends that “the district court erred as a matter of law in classifying this case as controlled by the equitable tolling standard” and “injecting a diligence hurdle into Rozzelle’s path.” Rozzelle’s appellate brief emphasizes that he “does not seek to toll the limitations period” but “seeks the actual innocence exception because his petition was untimely.” Rozzelle stresses that “[t]he difference between actual innocence and equitable tolling is central to this case.” Similarly, in its brief, the State agrees that equitable tolling is an inappropriate doctrine to determine whether actual innocence provides an exception to AEDPA’s one-year statute of limitations. Rather, the State argues that there is no actual innocence exception, constitutionally required or otherwise, to AEDPA’s limitation period.
Accordingly, our inquiry here is first focused on whether Rozzelle has made a sufficient showing of “actual innocence,” and, only if so, whether the Suspension Clause requires a constitutional exception to AEDPA’s one-year limitation period for actually innocent petitioners.
See, e.g., Johnson v. Fla. Dep’t of Corr.,
III. DISCUSSION
A AEDPA’s Statute of Limitations
AEDPA contains a one-year statute of limitations in which a prisoner convicted of a state crime may file a federal habeas petition. 28 U.S.C. § 2244(d)(1). Petitioner Rozzelle concedes that his § 2254 habeas petition was not timely filed in 2007 but claims that an actual innocence exception to AEDPA’s time-bar exists and argues that he has made a sufficient showing of actual innocence in order for his § 2254 petition to proceed.
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,
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,
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,
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,
Further, as noted above, an AED-PA-time-barred petitioner must make a threshold showing of actual innocence before we will tackle whether the Suspension Clause requires an actual innocence exception to AEDPA’s one-year filing window.
Arthur,
Likewise, we do not reach the Suspension Clause question because (1) Rozzelle fails to state a cognizable “actual innocence” claim, and (2) alternatively, Rozzelle has not made a sufficient evidentiary showing of actual innocence. We explain why.
B. Cognizable “Actual Innocence” Claims
For starters, Petitioner Rozzelle’s “actual innocence” claim is not the usual kind. Rozzelle does not claim that he is actually innocent of all crimes related to Greg Lei-er’s beating and death.
See Sawyer v. Whitley,
Notably, we recently reaffirmed this important factual/legal distinction, albeit in the context of a federal prisoner’s claim of actual innocence of his
sentence. See McKay v. United States,
Similarly, other circuit courts of appeals have endorsed the view that actual innocence must be “factual” and not mere “legal” innocence.
See Jaramillo v. Stewart,
For example, circuit courts differ on whether a complete affirmative defense to
In
Finley v. Johnson,
the Fifth Circuit concluded that a showing of facts establishing an affirmative defense that would result in the defendant’s acquittal constituted a sufficient showing of actual innocence to allow a petitioner to proceed with a procedurally defaulted constitutional claim.
The Ninth Circuit’s
Jaramillo v. Stewart
also involved a complete affirmative defense to criminal conduct. In his procedurally barred § 2254 petition, Jaramillo claimed he was actually innocent of the Arizona crime of first-degree murder because new evidence showed he acted in self-defense,
which rendered his conduct noncriminal.
Likewise, the Seventh Circuit has held that a complete defense of insanity renders a petitioner “factually” rather than “legally” innocent of capital murder. In
Britz v. Cowan,
the Seventh Circuit rejected the State of Illinois’s argument that “actual innocence” requires a defaulted habeas petitioner to show that he “didn’t kill his victim.”
In another capital case, the Eighth Circuit went farther and held that a defaulted petitioner’s claim of innocence is “actual” and not “legal” when the claim negates an essential element of a capital conviction.
See Jones,
Today, we need not decide whether
Schlup
permits a claim of actual innocence based on “new reliable” evidence of a complete affirmative defense that renders the conduct of conviction wholly noncriminal and requires acquittal.
See Jaramillo,
First, the Supreme Court and this Court repeatedly have emphasized that circumstances meriting the consideration of procedurally defaulted or barred constitutional claims are “extremely rare” and apply only in the “extraordinary case.”
Schlup,
Allowing claims of actual innocence to be brought whenever a habeas petitioner argues that he was convicted of an erroneous degree of crime, as in this case, would substantially expand the scope of the actual innocence exception. Almost all crimes with degrees could face similar challenges. Run-of-the-mill offense degree determinations are better assessed in the first instance by trial courts, juries and state appellate courts. Opening federal habeas review to petitions involving degrees of non-capital state crimes could “so broaden the inquiry as to make it anything but a ‘narrow' exception to the principle of finality that [the Supreme Court] ha[s] previously described it to be.”
Sawyer,
Second, the Supreme Court’s categorical language in actual innocence cases does not suggest that it is narrowly slicing the various degrees of wrongdoing.
See Schlup,
Third, the nature of
Schlup'
s evidentiary inquiry also supports this conclusion. As the Supreme Court explained in
Schlup
and
House,
overcoming the bar to defaulted constitutional claims requires a showing of “new reliable evidence ... not presented at trial.”
House,
“Actual innocence,” whatever its outer boundaries, does not discern “extremely rare,” “extraordinary” “miscarriages of justice” in shades of gray.
Schlup,
C. Rozzelle’s Evidence Is Insufficient to Show Actual Innocence
Even if Petitioner Rozzelle’s claim of actual innocence were cognizable, his claim still fails because his “new” evidence is largely cumulative of what the jury heard, and he has not made a sufficient showing that it is more likely than not that no reasonable juror would have convicted him of second-degree murder.
To support a claim of actual innocence, a time-barred § 2254 petitioner must present “new reliable evidence” such that it is more likely than not that “no reasonable juror would have convicted him in light of the new evidence.”
Schlup,
As we noted above, Petitioner Rozzelle’s “new” evidence consists of statements in police reports and records purportedly
The jury, which convicted Petitioner Rozzelle of second-degree murder, heard the substance of virtually all of this evidence. Both Petitioner Rozzelle’s own statements to police and his brother Anthony’s trial testimony showed that Rozzelle beat Leier after discovering Leier and Barnes in an intimate encounter. Anthony testified that Rozzelle had “caught” Barnes with Leier after returning to the motel the first time, “cold-cocked” both of them and “[kjnocked them out.” The jury heard Officer Burritt’s testimony that Rozzelle stated, two or three times, “I caught that guy fucking my old lady and I beat the hell out of him. Pm from the old school and he had it coming.” The jury heard Petitioner Rozzelle’s taped statement, in which he said, “I love this woman,” and he “whupped [Leier’s] ass” after seeing Leier and Barnes together upon returning from the bar the second time. Thus, Rozzelle’s so-called “new” evidence — Leier’s statement that he “got caught with a woman,” Barnes’s statements to police that Rozzelle “caught” her with Leier and “became crazy,” and Rozzelle’s post-conviction testimony — adds nothing to the accounts the jury already heard at trial.
The jury also heard ample testimony that Petitioner Rozzelle beat Leier using only his fists. In Rozzelle’s taped statement, played for the jury, Rozzelle affirmed in response to police questioning that he did not use any weapons to beat Leier and did not pick up any objects and hit Leier with them. Rozzelle stated that he struck Leier only with “[a] couple of good left hooks” and “[a] couple of right crosses, too.” EMT Brian Hughes, who treated Leier at the motel, testified at trial that before Leier lost consciousness, he stated that he was hit with a fist. Hughes testified that he asked Leier if he was hit with any other objects, and Leier said no. Dr. Michael Berkland testified that Leier’s injuries were consistent with a beating from a man’s fists, and Dr. Carl Glidden testified that Leier’s injuries “could be consistent” with a beating from a person’s fists. Rozzelle’s and Leier’s additional statements that Rozzelle beat Leier using only his fists are cumulative of this trial evidence.
Barnes’s medical records and a police report addendum do show that Rozzelle did not knock out Barnes’s upper teeth, contrary to Officer Williams’s trial testimony. However, a photo of Barnes introduced at trial to prove her injuries clearly shows her upper teeth, which already contradicts Officer Williams’s testimony.
In any event, these “new” additions, considered with “all the evidence, old and new,”
House,
As we noted above, a conviction for second-degree murder in Florida requires that the defendant kill “by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design.” Fla. Stat. § 782.04(2). The Florida Supreme Court has defined an “act imminently dangerous to another and evincing a depraved mind” as “an act or
To the extent Barnes’s injuries are even probative of Rozzelle’s state of mind as to Leier’s murder, Barnes’s medical records only support the prosecution’s case that Rozzelle killed Leier with “an evil intent” and with “indifference to human life.”
Montgomery,
The balance of the evidence is no more favorable to Rozzelle’s heat of passion claim. Petitioner Rozzelle’s brother Anthony testified at trial that Rozzelle was “[n]ot excited” when he described catching Barnes and Leier together after returning to the bar from the motel.
See Douglas v. State,
You’re lucky this [foot] wouldn’t fit up his ass or it would have been there, too.... I don’t feel sorry about it. The only thing that I didn’t do to that motherfucker is throw him off the balcony, and if I had probably thought about it, I would have done that, too.
Given that Rozzelle beat Leier not once but at two different times separated by several hours, and given Rozzelle’s cavalier, mean-spirited and unapologetic attitude toward his brutal attack, the jury was entitled to conclude from the evidence that Rozzelle acted with a depraved mind and not in the heat of passion.
“New” evidence purportedly showing that Rozzelle’s beating of Leier was not a “prolonged assault” also does not show that Rozzelle did not kill Leier with a “depraved mind.” Rozzelle argues that he lacked a “depraved mind” because Boudreaux’s and Rosnick’s unadmitted statements show his beating of Leier lasted “only seconds.” But these statements show no such thing. In his written statement, Boudreaux indicated that Rozzelle entered the motel room and that Boudreaux heard a woman “yelling stop, stop, leave him alone” before he saw Rozzelle go to the motel office. Rosnick’s statement noted that “[a]t about the time [Rozzelle] was leaving [the motel office] or a few seconds afterwards [Leier] called the office asking for security” and Chauhan observed Leier bleeding. Nothing Boudreaux or
Moreover, the allegedly brief duration of Rozzelle’s second assault does not show that he lacked a “depraved mind” given the vicious and severe nature of the second assault. Leier’s horrific injuries provide ample evidence of Rozzelle’s depravity, the duration of the beating notwithstanding.
See Beasley v. State,
In sum, the jury already heard evidence that Petitioner Rozzelle killed Leier only after discovering Leier and Barnes in sexual encounters. Yet Rozzelle’s own statements, his brother’s testimony, the extent of Leier’s injuries and other trial evidence would more than entitle a jury to conclude that Leier’s homicide was second-degree murder beyond a reasonable doubt.
See Forehand v. State,
IV. CONCLUSION
For all of these reasons, we affirm the district court’s denial of Rozzelle’s time-barred § 2254 petition.
AFFIRMED.
Notes
. The record does not clearly show where Leier and Barnes were when Rozzelle first saw them together after he returned to the motel around 6:00 p.m.
. Rozzelle's counsel’s argument on Rozzelle’s motion for a judgment of acquittal was:
Your Honor, at this time the defendant would make a motion for directed verdict of acquittal. I would state that the state has failed to prove a prima faci[e] case against the defendant. At best they’ve shown that the defendant has committed battery, but they have not shown that he committed the acts that actually resulted in Mr. Leier's death. For that reason, Your Honor, we would ask that the court direct a verdict of not guilty.
. Florida Statutes § 782.07(1) provides that "[t]he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification ... and in cases in which such killing shall not be excusable homicide or murder ... is manslaughter.”
. Florida Statutes § 782.03 provides:
Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.
. Rozzelle had prior Alabama convictions for burglary, sexual assault and sale of controlled substances.
. After his direct appeal, Petitioner Rozzelle did not file a petition for a writ of certiorari in the U.S. Supreme Court.
. Rozzelle’s 3.850 motion also claimed that (1) trial counsel was ineffective for not moving to suppress Rozzelle's statement to police; (2) Rozzelle’s waiver of his right to testify was involuntary; and (3) trial counsel was ineffective for failing to object to the prosecutor's comments in closing argument.
. On January 24, 2005, Petitioner Rozzelle signed and gave to prison authorities a motion, under Florida Rule of Criminal Procedure 3.800, raising a state-law claim that his Criminal Punishment Code scoresheet was incorrectly calculated. The motion was filed on January 26, 2005. The state trial court denied Rozzelle’s 3.800 motion, and Florida’s First District Court of Appeal affirmed on June 14, 2005.
Rozzelle
v.
State,
. Rozzelle’s § 2254 petition itself consisted of a seven-page form petition with an attached statement of issues. In the district court, Rozzelle’s supporting memorandum was considered as part of his § 2254 petition, and no objection was made.
. As explained later, we ultimately do not reach the merits of Rozzelle's § 2254 claims. For completeness, however, Rozzelle’s § 2254 petition alleges that: (1) trial counsel was ineffective by failing to interview or depose certain witnesses, failing to call certain witnesses, and failing to "familiarize himself with the law and facts of the case”; (2) the prosecutor knowingly put false evidence before the jury, specifically, Adley Boudreaux's testimony; (3) the prosecutor, while arguing against Rozzelle's motion for a mistrial, falsely stated that Dr. Carl Glidden would testify concerning Andrea Barnes’s injuries; and (4) Officer Mary Blythe Williams's testimony about Barnes’s injuries was false or perjured.
. The magistrate judge properly calculated why Rozzelle’s § 2254 petition was not timely filed. Specifically, the magistrate judge found that Rozzelle’s Florida conviction became final for purposes of 28 U.S.C. § 2244(d)(1)(A) on March 15, 2001, upon expiration of the 90-day period for seeking a writ of certiorari by the U.S. Supreme Court on direct appeal. The magistrate judge further found that Rozzelle’s Florida 3.850 motion, filed on June 7, 2001, (after 83 days of the limitations period had run) tolled the § 2244(d)(1) limitation period until August 26, 2003, when Florida’s First District Court of Appeal affirmed the Florida circuit court’s denial of Rozzelle’s 3.850 motion. See 28 U.S.C. § 2244(d)(2) (providing for tolling during pendency of state post-conviction review). As a result, the § 2244(d)(1) statute of limitations ran 282 days later, on June 4, 2004, more than three years before Rozzelle filed his § 2254 petition.
The magistrate judge also found that the factual predicates of all the evidence Rozzelle referenced in his § 2254 petition "could have been discovered through the exercise of due diligence" before the conclusion of Rozzelle's trial, and thus the one-year time period did not begin running at the time Rozzelle discovered the alleged "new” evidence. 28 U.S.C. § 2244(d)(1)(D).
. The district court characterized Rozzelle’s actual innocence as “arguable” and assumed without deciding that Rozzelle had made an actual innocence showing in order to reach the question of whether the Suspension Clause nonetheless permitted Rozzelle’s untimely petition.
. In the district court, the State argued that Rozzelle had not shown actual innocence, and the State need not have cross appealed the dismissal of Rozzelle’s § 2254 petition to argue that Rozzelle has not demonstrated his actual innocence.
See Lucas v. W.W. Grainger, Inc.,
. One circuit court has concluded that the Suspension Clause requires no such exception.
See David v. Hall,
This Court has generally framed the AED-PA-actual-innocence question not as an equitable tolling issue, which has a due diligence component, but as whether the Suspension Clause necessitates a constitutional exception to AEDPA’s one-year time-bar where a habeas petitioner has shown actual innocence.
Johnson,
. We recognize that Rozzelle alternatively argues,
passim,
that he is not guilty of homicide at all because Leier’s death was not caused by Rozzelle’s admitted beating of Lei-er, but was caused by another person inflicting the fatal blow or by an intervening event, such as Leier's falling down the motel stairs due to intoxication. There is so little, if any, "new reliable” support for either defense theory in the supplemented record that we summarily reject this claim without discussion. In addition, we note that Rozzelle does not appear to claim that his homicide was "excusable” and wholly lawful under Florida Stat
. In
Johnson v. Alabama,
petitioner Johnson participated in a two-man home invasion and was convicted of capital murder of an occupant of the home.
.
McKay
acknowledged that "a movant’s procedural default is excused if he can show that he is actually innocent either of the crime of conviction or, in the capital sentencing context, of the sentence itself.”
. In Jones, the petitioner did not make a sufficient evidentiary showing of lack of capacity to deliberate, and there was no discussion of whether the negation of “deliberation” under Missouri law would render the petitioner not guilty of all homicide crimes or just capital murder.
. This Court’s repeated reluctance to reach the question of whether the Suspension Clause requires an exception to AEDPA’s one-year statute of limitations for actually innocent petitioners also evinces our restraint in this regard.
See Johnson,
.
House
involved new DNA evidence showing that semen in the raped victim's nightgown came from her husband, not from the petitioner-defendant House, as well as other new testimony and blood evidence.
. Because Rozzelle’s "new” evidence fails in any event, we need not reach the issue of whether Rozzelle’s evidence that was available at trial but was simply not presented should be considered "new” under
Schlup. Compare Goldblum v. Klem,
. We recognize that Boudreaux also testified, however, that he was not sure in which order it happened because too much time had passed and admitted Rozzelle’s entering the motel office may have been prior to his getting into the room or after. Nonetheless, Boudreaux did say the entering and yelling was before Rozzelle went to the motel office.