IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CURTIS THOMAS, JR.,

Petitioner,

vs. Case No. 4:11cv164-MCR/CAS

MICHAEL D. CREWS, Secretary 

of Florida Department of Corrections,1

Respondent.

 /

REPORT AND RECOMMENDATION TO DISMISS § 2254 PETITION

On April 15, 2011, Petitioner Curtis Thomas, Jr., proceeding pro se, filed a

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. On December

20, 2011, Respondent has filed a motion to dismiss and an answer. Doc. 14. Petitioner

filed a reply on January 11, 2012. Doc. 17. 

The matter is referred to the undersigned magistrate judge for report and

recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local

1

The Clerk of Court shall substitute Michael D. Crews as Secretary of the Florida

Department of Corrections in place of Kenneth S. Tucker. Michael Crews became

Secretary on December 17, 2012, and shall be automatically substituted pursuant to

Federal Rule of Civil Procedure 25(d). 
Page 2 of 13

Rule 72.2(B). The pleadings and attachments before the Court show that the petition is

untimely and should be dismissed. See Rule 4, R. Gov. § 2254 Cases in U.S. Dist. Cts

(authorizing dismissal “[i]f it plainly appears from the petition and any attached exhibits

that the petitioner is not entitled to relief” in federal court).

Procedural Background

By amended information filed March 27, 2002, in the Second Judicial Circuit,

Gadsden County, the State of Florida charged Petitioner with two counts of capital

sexual battery, in violation of section 794.011(2)(a), Florida Statutes, and two counts of

lewd and lascivious molestation, in violation of section 800.04(5)(b), Florida Statutes, in

connection with events that took place between April 26, 2001, and April 26, 2002. Doc.

14 Ex. A at 23-24; see id. at 5 (initial information filed June 13, 2002). The victims were

Petitioner’s daughters, T.T. and N.T. Id. at 23-24. Petitioner proceeded to a jury trial on

June 25 and 26, 2003, during which he testified. See Doc. 14 Ex. B at 233-54. The jury

found Petitioner guilty as charged on all four counts. Id. Ex. A at 30-33. The trial judge

adjudicated Petitioner guilty and sentenced him to life in prison on the capital sexual

battery convictions and 177.4 months on the other counts, with jail credit, all sentences

to run concurrent. Id. at 35-41. 

Petitioner timely appealed his conviction and sentence to the First District Court

of Appeal (DCA), assigned case number 1D03-2933. See Doc. 14 Ex. C. Petitioner’s

appointed counsel raised three points on appeal: (1) whether the court erred by

admitting T.T.’s hearsay statements in violation of Appellant’s right to confrontation; (2)

whether the court erred by finding the hearsay statements of T.T. reliable in view of the

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fact that T.T. failed to give any evidence of the allegations at trial; and (3) whether the

court erred by allowing nurse practitioner Steele to introduce T.T.’s hearsay statement,

“he hunched me,” when Steele was not attempting to diagnose any injury. Id. at 9, 12,

14. The State of Florida filed an answer brief. Id. Ex. D. On April 26, 2005, the First

DCA per curiam affirmed the case without a written opinion. Id. Ex. E; see Thomas v.

State, 902 So. 2d 139 (Fla. 1st DCA 2005) (table). 

On July 7, 2006, Petitioner, through counsel, filed a motion for post-conviction

motion pursuant to Florida Rule of Criminal Procedure 3.850, in the Gadsden County

Circuit Court. Doc. 14 Ex. F at 1-12. In the Rule 3.850 motion, Petitioner asserted he

had newly discovered evidence that the victims’ mother, Kimberly Bates, had made the

children falsely accuse another man, Jimmy Jones, of sexually abusing T.T. Id. at 3. 

Petitioner asserted that this evidence, if it had been available during trial, would have

materially weakened the State’s case against him and justifies a new trial. Id. at 3-4. 

The post-conviction trial court held an evidentiary hearing on the Rule 3.850

motion on February 6, 2007, and April 8, 2007. Doc. 14 Exs. H and I. Petitioner

continued to be represented by counsel, who called witnesses in support of the Rule

3.850 motion. Doc. 14 Exs. H and I. When Petitioner’s counsel sought to call the

victims to testify, the trial judge sustained the State’s objection. Doc. 14 Ex. I at 8-13. 

The judge ruled: “I don’t think there’s been any predicate laid to call either of these child

witnesses in the court concerning the testimony that they gave in the trial back in ’03,

almost four years later.” Id. at 11. The judge found:

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There’s no predicate laid to have them testify in this case, now. The only

testimony about this Ms. Bates is what she did in the Jimmy Jones case,

not in this case. There’s no direct evidence that – or any even passing

evidence that she somehow convinced these children to lie or make up

something about Mr. Curtis Thomas in that case. You’re trying to say that

if she did it in this case, she must have done it in that case and obviously

that’s not relevant testimony.

Id. at 12-13. At the conclusion of the hearing, the judge denied the Rule 3.850 motion

on the record:

The Court will deny the – after the evidentiary hearing both initially and

then this bifurcated hearing that we’ve handled today, the Court will deny

the motion for relief under rule 3.850. The Court finds that there has been

no recantation evidence by the victims in the case. The Court find[s] that

the evidence that has been presented or has been learned about a

potential case involving Jimmy Jones is not sufficient to require a new trial

in this case.

In other words, Mr. Curtis Thomas is not entitled to a new trial

based upon this evidence that the victim’s mother in this case may have

put her daughters up to swearing or giving false testimony and false oaths

and statements against Mr. Jones in his case. It’s not clear whether that

testimony would have been allowed under circumstances, because there’s

several different evidentiary rule problems with that evidence coming in at

a trial even if it had been available.

In any event, based upon that the Court finds that the plaintiff,

excuse me, the defendant, Curtis Thomas, Jr., has not presented

sufficient evidence to result in post conviction relief, setting aside of the

jury’s verdict. 

Id. at 15-16. The state post-conviction trial court rendered a written order denying the

Rule 3.850 motion on March 13, 2007. Id. Ex. G at 56-57. 

Petitioner, proceeding pro se, appealed the denial of his Rule 3.850 motion to the

First DCA, assigned case number 1D07-2261. See Doc. 14 Ex. J. Petitioner filed an

initial brief and raised one point: whether the lower court erred in denying appellant’s

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motion for post conviction relief based on newly discovered evidence. Id. The State

filed an answer brief, and Petitioner filed a reply brief. Id. Exs. K, L. The First DCA per

curiam affirmed the case without an opinion on June 1, 2009, and the mandate issued

June 29, 2009. Id. Ex. M; see Thomas v. State, 10 So. 3d 637 (Fla. 1st DCA 2009)

(table). 

On October 9, 2008, Petitioner filed a pro se motion for DNA testing pursuant to

Florida Rule of Criminal Procedure 3.853, which the state trial court dismissed on

October 23, 2008, without prejudice to file an amended motion. Doc. 14 Exs. N, O. On

November 6, 2008, Petitioner filed an amended Rule 3.853 motion referencing “the

record panties belonging to T.T. and/or N.T. and containing sperm samples [that] were

gathered as evidence at Gadsden Memorial Hospital in May 2002 and tested or not by

the Florida Department of Law Enforcement.” Id. Ex. P. In May 2009, the State filed a

response to the Rule 3.853 motion indicating it was not aware of any evidence that has

not already been examined and attaching a lab report, submitted as State’s Exhibit 7,

“which shows that there was not any sperm for subsequent DNA examinations.” Id. Ex.

Q. On July 21, 2009, the state court dismissed the Rule 3.853 motion without prejudice,

specifically “should the Defendant come up with new information relating to the actual

existence of the ‘panties’ and or any information relating to the ‘panties’ being misplaced

or destroyed, if in fact they ever even existed, the Court will entertain an appropriate

motion at that time.” Id. Ex. R. 

On September 22, 2010, Petitioner filed a petition for writ of habeas corpus in the

Okaloosa County Circuit Court, arguing there was no substantive evidence to support

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the jury’s verdict, his convictions violate double jeopardy, and the trial court abused its

discretion in denying his motion for judgment of acquittal. Doc. 14 Ex. X at 1-48. That

same day, Petitioner also filed in the Okaloosa County Circuit Court a Rule 3.853

motion for DNA testing concerning the rape kit done on the victims. Id. at 49-51. By

order rendered October 13, 2010, the Okaloosa County Circuit Court denied both the

petition for writ of habeas corpus and the Rule 3.853 motion. Id. at 52-54. The court

denied the Rule 3.853 motion without prejudice to raise the issue in the Gadsden

County Circuit Court. Id. at 52. As to the petition for writ of habeas corpus, the court

explained that the first and third arguments were issues that should have or could have

been raised on direct appeal, and the second argument presented a post-conviction

claim time-barred under Rule 3.850. Id. at 52-53. 

Petitioner filed a pro se appeal in the First DCA, assigned case number 1D10-

5931, and filed an initial brief asserting the circuit court erred in denying the habeas

corpus petition. Doc. 14 Ex. Y. The First DCA per curiam affirmed the case without an

opinion on March 9, 2011, and the mandate issued April 5, 2011. Id. Ex. Z; see

Thomas v. State, 56 So. 3d 772 (Fla. 1st DCA 2010) (table). 

On October 1, 2010, Petitioner filed a petition for writ of habeas corpus in the

Gadsden County Circuit Court, arguing there was no substantive evidence to support

the jury’s verdict. Doc. 14 Ex. T. Petitioner subsequently filed, on October 1, 2010, a

“Notice of Clarification” indicating that the habeas corpus petition filed in the Gadsden

County Circuit Court was only a courtesy copy as “an initial filing of the same habeas

corpus petition was filed in the Okaloosa County Court 24 September 2010.” Id. Ex. U. 

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Also on October 1, 2010, Petitioner filed another Rule 3.853 motion for DNA

testing in Gadsden County Circuit Court, asserting there existed untested DNA

evidence from rape kits which, if tested, would exonerate him. Doc. 14 Ex. S. On

October 19, 2010, Petitioner filed another copy of the Rule 3.853 motion for DNA

testing. Id. Ex. V. On February 15, 2011, the state trial court denied the Rule 3.853

motion, explaining “the rape kits were submitted to FDLE for testing and no foreign DNA

was found on them, and this evidence was submitted to the jury.” Id. Ex. W. The court

noted that Petitioner had previously filed a motion relating to DNA testing of the rape

kits and warned Petitioner “that he must not file duplicative motions that have been

ruled on without a new basis for doing so.” Id. at 2. 

As indicated above, Petitioner filed this § 2254 petition on April 15, 2011. Doc. 1. 

Petitioner alleges one ground: “Petitioner was denied his Sixth and Fourteenth

Amendment Rights to due process and fair trial guaranteed him under the United States

Constitution when considering that newly discovered evidence reveals that Petitioner is

actually innocent of the crimes he stands convicted.” Id. at 3. In response to an order

from this Court, Petitioner clarified that the ground he raises “is not actual innocence

(which he asserts to excuse any default), but that his conviction was obtained by the

use of perjured testimony in violation of due process.” Doc. 9 at 2; see Docs. 7 and 8. 

On December 30, 2011, Respondent filed a motion to dismiss and an answer. 

Doc. 14. Respondent argues the § 2254 petition should be dismissed because it is

untimely. Id. at 10-12. Respondent further argues, on the merits, Petitioner has not

presented a ground for federal habeas relief; rather, he presents a claim of actual

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innocence. Id. at 17-23. Finally, Respondent argues that even if Petitioner had

presented a claim of constitutional error in his trial or if this Court allows a free-standing

actual innocence claim, Petitioner is not entitled to relief. Id. at 23-29.

On January 11, 2012, Petitioner filed a reply. Doc. 17. Petitioner asserts a

“defense to procedural bar through the actual innocence/miscarriage of justice

gateway.” Id. at 2. Petitioner asserts he is actually innocent of the crimes of which he

was convicted, resulting in a miscarriage of justice. Id. at 5. Petitioner requests an

evidentiary hearing “where the alleged victim(s) will come forward and testify before the

Court that they were coerced into making the allegations.” Id. 

Analysis

There is a one-year limitations period for filing a § 2254 petition. 28 U.S.C.

§ 2244(d)(1). The period generally runs 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,” though there are later commencement dates. Id. § 2244(d)(1)(A).2 The

limitations period is tolled for the time during which a “properly filed” application for relief

is pending in state court. Id. § 2244(d)(2). The time may be equitably tolled, but “only if

a petitioner establishes both extraordinary circumstances and due diligence.” Diaz v.

Sec’y for Dep’t of Corr., 362 F.3d 698, 702 (11th Cir. 2004). 

2

Later dates which may commence the limitations period are the date on which

(1) an unconstitutional impediment which prevented the applicant from filing is removed;

(2) the constitutional right asserted was recognized by the United States Supreme Court

and made retroactive on collateral review; and (3) the factual predicate for the claim

could have been discovered by due diligence. 28 U.S.C. § 2244(d)(1)(B)-(D).

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In this case, Petitioner's conviction became final on July 25, 2005, when the time

expired for seeking certiorari review in the U.S. Supreme Court, following the per curiam

affirmance of his direct appeal by the First DCA on April 26, 2005. See 28 U.S.C.

§ 2244(d)(1)(A); Sup. Ct. R. 13. The AEDPA clock ran for 347 days until July 7, 2006,

when Thomas filed his Rule 3.850 motion in the state trial court. See Doc. 14 Ex. F. 

The AEDPA time was tolled until the First DCA issued its mandate on June 29, 2009, in

the appeal from the denial of the Rule 3.850 motion. At this point, the clock started

again with 18 days remaining. The AEDPA time expired July 17, 2009, absent any

other tolling activity.

Petitioner’s Rule 3.853 motions for DNA testing did not toll the AEDPA limitations

period. See Brown v. Sec’y, Dep’t of Corr., 530 F.3d 1335, 1337-38 (11th Cir. 2008). 

Petitioner did not file anything else until he filed a petition for writ of habeas corpus in

Okaloosa Count Circuit Court on September 22, 2010, well after the AEDPA one-year

limitations period expired. See, e.g., Hutchinson v. State of Fla., 677 F.3d 1097, 1098

(11th Cir. 2012) (“In order for that § 2244(d)(2) statutory tolling to apply, the petitioner

must file his state collateral petition before the one-year period for filing his federal

habeas petition has run.”); Tinker v. Moore, 255 F.3d 1331, 1335 n.4 (11th Cir. 2001),

cert. denied, 534 U.S. 1144 (2002) (“We remind petitioners that a properly and timely

filed petition in state court only tolls the time remaining within the federal limitation

period.”); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (“Under § 2244(d)(2),

even ‘properly filed’ state-court petitions must be ‘pending’ in order to toll the limitations

period. A state-court petition . . . that is filed following the expiration of the limitations

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period cannot toll that period because there is no period remaining to be tolled.”). 

Accordingly, the § 2254 petition is untimely. 

In his reply, Petitioner appears to acknowledge that his AEDPA time has expired

and asserts a “defense to procedural bar through the actual innocence/miscarriage of

justice gateway.” Doc. 17 at 2. The U.S. Supreme Court has held that “actual

innocence, if proved, serves as a gateway through which a petitioner may pass” even

when the AEDPA time has expired. McQuiggen v. Perkins, 133 S.Ct. 1924, 1928

(2013); see Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d 1000, 1011 (11th Cir. 2012). 

The Court cautioned, however, that “tenable actual-innocence gateway pleas are rare: 

‘[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.’” McQuiggen, 133 S.Ct. at 1928 (quoting

Schlup v. Delo, 513 U.S. 298, 329 (1995)); see Gore v. Crews, 720 F.3d 811, 817 (11th

Cir. 2013) (explaining U.S. Supreme Court “has not recognized any equitable

exceptions to the statutory bars on habeas petitions when the petitioner does not make

a ‘credible showing’ of actual innocence” and the Court’s “most recent decision on the

matter, McQuiggin, reaffirmed that principle, holding that there is an ‘equitable

exception’ to the statute of limitations applicable to habeas claims, 28 U.S.C. § 2244(d),

but only when the petitioner presents new evidence that ‘shows it is more likely than not

that no reasonable juror would have convicted the petitioner’”). “To be credible, such a

claim requires a petitioner to support his allegations of constitutional error with new

reliable evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness

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accounts, or critical physical evidence – that was not presented at trial.” Schlup, 513

U.S. at 324. 

In this case, Petitioner has not supported his allegations with any new reliable

evidence. Indeed, his allegations concern the same “newly discovered evidence”

presented to the state post-conviction trial court in his Rule 3.850 motion in 2006 and

considered at an evidentiary hearing in 2007, specifically that the victims’ mother falsely

accused another man, Jimmy Jones, of sexually abusing T.T. See Doc. 1 at 4. As

Respondent explains, the record supports the state post-conviction court’s

determinations regarding such evidence. See Doc. 14 at 23-28. Moreover, as

Respondent also points out, in Florida, evidence of false allegations in an unrelated

case are generally not admissible. See id. at 28; Pantoja v. State, 59 So. 3d 1092 (Fla.

2011). Although the district court “is not bound by the rules of admissibility that would

govern at trial,” Schlup, 513 U.S. at 329, Petitioner did not present any new reliable

evidence sufficient to meet the stringent “actual innocence” standard. See McQuiggin,

133 S.Ct. at 1936 (“We stress once again that the Schlup standard is demanding. The

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.’” (quoting Schlup,

513 U.S. at 316)). 

Conclusion

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This § 2254 petition is untimely and Petitioner has not demonstrated entitlement

to any exception to the one-year AEDPA limitations period. Accordingly, Respondent’s

motion to dismiss should be granted and the § 2254 petition should be dismissed. 

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2254 Cases in the U.S. District Courts 

provides that “[t]he district court must issue or deny a certificate of appealability when it

enters a final order adverse to the applicant,” and if a certificate is issued “the court

must state the specific issue or issues that satisfy the showing required by 28 U.S.C. §

2253(c)(2).” Rule 11(b) provides that a timely notice of appeal must still be filed, even if

the court issues a certificate of appealability. 

Petitioner cannot make a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)

(explaining how to satisfy this showing).3 Therefore, the Court should deny a certificate

of appealability in its final order. Leave to appeal in forma pauperis should also be

denied, as an appeal would not be taken in good faith. See Fed. R. App. P. 24(a)(3)(A)

(providing that before or after notice of appeal is filed, court may certify appeal is not in

good faith or party is not otherwise entitled to appeal in forma pauperis). 

3

Because dismissal of the petition is recommended solely on the procedural

basis of timeliness, Petitioner must show “at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right

and that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack, 529 U.S. at 484 (emphasis added). 

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The second sentence of Rule 11(a) provides that “[b]efore entering the final

order, the court may direct the parties to submit arguments on whether a certificate

should issue.” Petitioner shall make any argument as to whether a certificate should

issue by filing objections to this report and recommendation.

Recommendation

It is therefore respectfully RECOMMENDED that Respondent’s motion to dismiss

(Doc. 14) be GRANTED, the § 2254 petition for writ of habeas corpus be DISMISSED

AS UNTIMELY, a certificate of appealability be DENIED, and leave to appeal in forma

pauperis be DENIED. 

IN CHAMBERS at Tallahassee, Florida, on December 19, 2013.

S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within fourteen (14) days after being served with a copy of this

report and recommendation. A party may respond to another party's objections

within fourteen (14) days after being served with a copy thereof. Failure to file

specific objections limits the scope of review of proposed factual findings and

recommendations.

Case No. 4:11cv164-MCR/CAS