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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

THOMAS FLOYD CROW,

Petitioner,

v. CASE NO. 5:10-cv-314-RH-GRJ

SECRETARY, DEPT.

OF CORRECTIONS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

Petitioner initiated this case by filing a pro se Petition for a Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254. Doc. 1. This case is presently before the Court

on Doc. 15, Respondent’s motion to dismiss the Petition as time-barred. Respondent

has submitted the relevant state court records with the motion. Docs. 16 & 17. The

Petitioner failed to file a response to the motion to dismiss and therefore on December

7, 2011 the Court issued an Order to Show Cause, Doc. 18, directing the Petitioner to

show cause why the motion to dismiss should not be granted. Petitioner was advised

that if the petition is dismissed he will be barred from filing a second or successive §

2254 petition without first obtaining an order from the court of appeals authorizing the

district court to consider it. The Court also advised the Petitioner that failure to respond

to the show cause order would result in the dismissal of his petition for failure to comply

with a court order and for failure to prosecute. Petitioner has not filed a response to the

motion to dismiss nor has he responded to the Court’s order to show cause. 

Accordingly, for the following reasons, Petitioner’s petition should be dismissed

for failure to prosecute. Further, the Respondent’s motion to dismiss should be granted

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because the petition was filed untimely.

Background and Petitioner’s Claim

Petitioner was sentenced to life in prison on April 26, 1985 for a first degree

murder, which occurred in November 1983 when Petitioner stabbed the victim in a fight

near Highway 79 after the victim left a bar. Petitioner testified that he had stabbed the

victim to avoid being raped. A swab of the victim’s anus revealed the presence of

sperm. 

Seventeen years later the Petitioner filed a motion for postconviction DNA

testing. Ex. G. On January 16, 2007 the Florida Department of Law Enforcement

(“FDLE”) issued a report of the DNA testing. The report was sent to Petitioner’s attorney

on February 19, 2007. Ex. L. One hundred thirty days later Petitioner filed a motion for

postconviction relief based upon the new DNA evidence. Ex. M. The trial court

conducted a hearing on Petitioner’s motion. A FDLE analyst testified at the hearing that

there were two samples from the anal swab to analyze – a semen sample and a non

semen sample. According to the FDLE analyst , on the semen sample he was not able

to generate a DNA profile because of degradation of the sample due to age. He was

able, however, to obtain a DNA profile from the non semen sample. With regard to the

non semen sample, the major component of the sample was from the victim and the

minor contributor of the portion of the sample was consistent with the FDLE analyst’s

own DNA and excluded the Petitioner. Thus, the DNA testing did not answer the

question of whose sperm was on the semen sample. As to the non semen sample the

major component of the sample was the victim’s own DNA. As to the minor contributor

of the non semen sample the Petitioner was probably excluded. In short, the results of

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the DNA sample were not probative of whether Petitioner committed the murder since

the Petitioner was not charged with sexually assaulting the victim. The trial court denied

Petitioner’s motion for postconviction relief. Petitioner appealed and on October 7, 2009

the First District Court of Appeals issued a per curiam affirmance without written

opinion. Ex. U. After rehearing was denied the First District issued the mandate on

December 7, 2009. Ex. X. The Petition was filed in this case on December 6, 2010.

Doc. 1. 

 Discussion

 The Petition is due to be dismissed for three reasons. First, the Petitioner has

failed to prosecute this case after filing his petition. Secondly – and independent of

Petitioner’s failure to prosecute – the Petition is due to be dismissed as time barred

because Petitioner failed to file his petition within one year of the newly discovered

evidence. Thirdly – while the Petition is framed as one based upon newly discovered

evidence and more properly should be viewed as a claim based upon actual innocence

– even if Petitioner was entitled to bring a federal habeas claim based upon a free

standing claim of actual innocence, the DNA test results would not entitle the Petitioner

to relief because the test results are not probative of guilt.

Turning briefly to Petitioner’s failure to prosecute this case, the Petitioner never

filed a response to the motion to dismiss and despite the directive from the Court in the

Court’s show cause order the Petitioner never filed a response. Indeed, despite the

Court’s notice and warning that the motion to dismiss would be granted and the petition

would be dismissed if Petitioner failed to respond to the show cause order the Petitioner

did nothing. There is no evidence on the docket that Petitioner did not receive the

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Court’s order and it appears that the Petitioner has been housed at Holmes

Correctional Institution during the pendency of this case. 

Petitioner's failure to comply with the Court’s orders has the effect of saddling the

Court with a stagnant case. The Eleventh Circuit has stated that “the district court's

power to control its docket includes the inherent power to dismiss a case[. ]“ Quality

Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d 989,

998 (11th Cir.1983); see also Burden v. Yates, 644 F.2d 503, 505 (5th Cir. Unit B May

1981) (“It is also clear that a district court's power to control its docket includes the

inherent power to dismiss a case.”); Hyler v. Reynolds Metal Co., 434 F.2d 1064, 1065

(5th Cir.1970) ( “It is well settled that a district court has inherent power to dismiss a

case for failure to prosecute[.]”). Moreover, the Local Rules of the Northern District of

Florida provide that when no satisfactory cause is shown as to why a case should not

be dismissed, then the Court may dismiss an inactive case for want of prosecution. 

N.D. Fla. Loc. R. 41.1(A).

The test for determining the appropriateness of dismissal is whether there is “a

clear record of delay or willful contempt and a finding that lesser sanctions would not

suffice.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985). Here, despite the fact

that Petitioner has been afforded more than eight months to respond and has failed to

do so amounts to a failure to prosecute and thus dismissal is appropriate. 

Second – and independent of whether the Petitioner has abandoned his case –

the petition is due to be dismissed because the petition was filed more than one year

after Petitioner was advised of the results of the DNA testing.

A one-year period of limitation applies to the filing of a habeas petition by a

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person in custody pursuant to a state court judgment and runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct

review or the expiration of time for seeking such review; 

(B) the date on which the impediment to filing an application created by State

action in violation of the Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by

the Supreme Court, if the right has been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). 

Under section 2244(d)(1)(A), the one year period begins to run on the date the

conviction becomes final on direct review. In cases such as this, where the conviction

became final before the effective date of the amendment creating the time limit for the

filing of petitions, the time period begins to run on April 24, 1996, the date the

amendment became effective. Wilcox v Florida Dep’t. of Corrections, 151 F.3d 1335

(11 Cir. 1998). Petitioner’s conviction became final in 1987, after the time period for th

filing a writ of certiorari expired following his direct appeal. Accordingly, under AEDPA,

Petitioner was required to file his habeas petition in 1997. 

In cases such as this, where the Petitioner attempts to rely upon newly

discovered evidence under § 2244(d)(1)(D), Petitioner must show that the petition was

filed within one year of the date on which the new evidence was discovered or could

have been discovered through the exercise of due diligence. Petitioner failed to file the

petition within one year of when he was provided with the DNA results, which is the new

evidence Petitioner contends entitles him to habeas relief. 

The FDLE report containing the results of the DNA testing was issued on

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January 6, 2007. Notably, the FDLE report was sent by facsimile to Petitioner’s attorney

on February 19, 2007. Ex. L. Thus, on February 19, 2007 the one year period began to

run. The limitations period was not tolled until June 29, 2007, the date Petitioner filed a

motion for postconviction relief based upon the DNA evidence. Ex. M. However, one

hundred thirty days of the one year period had expired as of June 29, 2007. The tolling

of the limitations period ended on December 7, 2009 when the First District issued the

mandate concluding its review of the post conviction motion. The petition in this case

was filed on December 3, 2010, three hundred sixty-one days after the tolling ended.

Because one hundred thirty days already had expired before the post conviction motion

was filed the Petitioner filed the petition in this case four hundred ninety-one days after

the date Petitioner’s counsel received the DNA report – the date when for AEDPA

purposes the Petitioner knew or should have known of the factual predicate of his claim

in this case.

Thus, under 28 U.S.C § 2254(d)(1) (D) the instant petition is clearly time-barred,

and Respondent’s motion to dismiss is due to be granted.

Lastly, even though the petition is time barred the petition is without merit.

Putting aside the issue of whether Petitioner’s claim is actually a free standing claim

based upon actual innocence and whether a petitioner may obtain federal habeas relief

based upon a free standing claim of actual innocence, the DNA test results have little

probative value to the issue of whether the Defendant was guilty of first degree murder.

According to Petitioner, had the DNA evidence been revealed to the jury there is

a strong likelihood that petitioner would not have been convicted. There are several

shortcomings in this argument. Notably, the DNA test results did not answer the

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question of whether Petitioner was or was not a contributor of the sperm found in the

anal swab of the victim. Rather, the DNA results at best demonstrate only that the

Petitioner was not a contributor to the non semen sample from the swab. Simply put,

the DNA sample was not probative of whether the Petitioner’s semen was present in

the anal swab and thus would not inform the trier of fact as to whether the Petitioner

sexually assaulted the victim – as the State argued – or whether the Petitioner killed the

victim because the victim made sexual advances to Petitioner.

The Petitioner, of course was not charged with sexual assault but rather was

charged with first degree murder. The evidence supporting first degree murder was

more than ample. Petitioner admitted that he had a fight with the victim, that he pulled

his knife on the victim and that he indeed stabbed the victim albeit to avoid being raped

by the victim. The anal swab of the victim and the DNA testing conducted more than

twenty years after the murder offers nothing to the question of whether the Petitioner

murdered the victim and is not probative of whether the victim did or did not make

sexual advances to Petitioner. Accordingly, Petitioner has failed to demonstrate that he

is entitled to habeas relief based on the DNA testing.

Certificate of Appealability

Section 2254 Rule 11(a) 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).” A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing

Section 2254 Cases.

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The undersigned finds no 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).

Therefore, the undersigned recommends that the district court deny a certificate of

appealability in its final order.

Rule 11(a) also provides: “Before entering the final order, the court may direct

the parties to submit arguments on whether a certificate should issue.” Thus, if there is

an objection to this recommendation by either party, that party may bring this argument

to the attention of the district judge in the objections permitted to this report and

recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. That the motion to dismiss, Doc. 15, should be GRANTED.

2. That the petition for a writ of habeas corpus (Doc. 1) be DENIED.

3. That a certificate of appealability be DENIED.

IN CHAMBERS this 1 day of August 2012. 

st

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

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

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 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.

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