[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 14723 Non

- Argument Calendar

________________________ D.C. Docket No. 3:10

- cv - 00749

- RBD

- TEM

RICCO BROWN, a.k.a. Richardo Natalis Brown, a.k.a. Ricco Recardo Brown, Petitioner

- Appellant,

versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, FLORIDA ATTORNEY GENERAL, Respondents

- Appellees.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ (September 8, 2014) Before HULL , MARCUS and PRYOR , Circuit Judges. PER CURIAM:

Case: 13-14723 Date Filed: 09/08/2014 Page: 1 of 162 Ricco Recardo Brown, a Florida prisoner , serving a sentence of life imprisonment for armed burglary, aggravated battery, and aggravated assault, appeals the denial of his petition for a writ of habeas corpus. See 28 U.S.C. § 2254

. The district court dismissed Brown ’s petition on the ground that it was barred by the one

- year statute of limitation in the Antiterrorism and Effective Death Penalty Act of 1996

. The district court ruled that Brown failed to satisfy the threshold showing of actual innocence to obtain an equitable exception to that deadline. See McQuiggin v. Perkins , 569 U.S. ___, 133 S. Ct. 1924 (2013) ; Schlup v. Delo , 513 U.S. 298, 115 S. Ct. 851 (1995)

. Because Brown’s DNA evidence fails to contradict the eyewitness identifications of him as the perpetrator of his crimes, w e affirm. I. BACKGROUND We divide the discussion in to four parts. First, we discuss Brown’s trial and direct appeal. Second, we discuss Brown’s first a nd second motions for post

conviction filed in the Florida courts

. Third, we discuss Brown’s third state post

conviction proceeding during which he had a new DNA test performed on physical evidence introduced at his trial. Fourth, we discuss Brown’s federal habeas corpus proceedings. Case: 13-14723 Date Filed: 09/08/2014 Page: 2 of 163 A. Brown’s Trial and Direct Appeal In 2002, Brown was tried in a Florida court for four crimes: armed burglary; the armed robbery of Melvin Wiggins Jr.; the aggravated battery of Melvin Wiggi ns Sr. ; and the aggravated assault of Cheryl Wiggins. The Wiggins and two other occupants of the house, Michael Best and Nakita Leatherbury, testified that two armed men wearing Halloween masks entered the Wiggins’ home and that Cheryl fought with and unm asked one of the men

. Cheryl and Melvin Sr. positively identified the burglar as Brown. After the prosecution introduced t he mask and a bandana that Cheryl had stripped off the burglar , the district court read a stipulation of facts about a DNA test performed on t he mask . The parties stipulated that the mask was examined by the Florida Department of Law Enforcement Crime La b “for the possible presence of DNA evidence”; “[n]o fingerprints were found on the mask”; “the DNA samples found were the resul ts of multiple donors”; and “Brown could neither be identified or excluded as a possible donor of the DNA.” Cheryl and Melvin Sr. testifi ed that Brown was the burglar who was unmasked

. Cheryl testified that she r ecognized Brown’ s voice when he threatened her at gun point ; she unmasked him while they were scuffling on the floor; and she was positive of her identification because she notic ed his “weak eye” as he was laying on top of her

. Cheryl stat ed that she had interacted with Brown wh en he

Case: 13-14723 Date Filed: 09/08/2014 Page: 3 of 164 ha d visited the Wiggins’ home occasionally with his girlfriend, Jessica Alexander; Cheryl had known Alexander for 15 years and babysat her daughter, Nakita Leatherbury ; and Cheryl did not like Brown and had communicated that to Alexander

. Melvin Sr. testifi ed that he saw Cheryl struggling with a man in the dark; he was struck in the head with a gun when he pulled the man off Cheryl; and he realized that the man was Brown w hen a light shone on his face as he “backed up inside the kitchen

. ” Cheryl and Melvin Sr. testified that they had Brown arrested when he returned to their home with Alexander later that evening. Melvin Jr. , Best, Nakita , a police officer, and Charles Smith, who was an acquaintance and fellow jail mate of Brown , also connected Brown to the burglary. Melvin Jr. and Best testified that they witnessed Cheryl fight with one of the burglar s , who she refer red to a s “ Ricco

. ” Nakita testified that she admitted to the Wiggins’ home t wo armed men who were wearing masks and who were looking for “Auntie Chubby , ” which was a nickname Nakita used to refer to Cheryl ; thereafter she heard Cheryl yell “Ricco”; and one of the men fl e d bare

- faced f rom the house

. Although Nakita testified that she did not recognize the man, a police officer testified that Nakita had said that she saw Brown flee from the house after the burglary

. Smith, Brown’s jail mate, testified that he had known Brown for a few years and that Brown had approached him in jail, told him about the burglary, asked for assista nce “to shake up one of the Wiggins , ” and offered Alexander’s

Case: 13-14723 Date Filed: 09/08/2014 Page: 4 of 165 assistance in bribing the Wiggins. Brown said that Alexander had suggested that
Brown rob the Wiggins , and after the burglary, Alexander had agreed to provide
Brown an alibi . Smith also testified that Brown described how he was admitted to the Wiggins’ home by Nakita ; his fight with and unmask ing by Cheryl ; and
return ing to the home with Alexander to act “like he didn’t do anything

. ” Brown called Alexander as an alibi witness. Alexander testified t hat she had spent the evening of the burglary with Brown, who twice accompanied her to the Wiggins’ home. According to Alexander, she visited the home before the burglary and allowed Nakita to stay longer to play in the Wiggins’ ho use . During this first visit , Alexander avoided making contact with Cheryl because she disliked Brown. When Alexander returned to the house after the burglary , the Wiggins and the police “rushed out” and arrested Brown , although Alexander insisted that she had been with Brown throughout the evening. The jury found Brown guilty of armed burglary, the aggravated battery of Melvin Sr. , and the aggravated assault of Cheryl . Later, the trial court sentenced Brown to imprisonment for life. Brown appealed his con victions and sentence , and o n October 27, 2003, t he First C ircuit Court of Appeals affirmed

. Brown v. State , 857 So. 2d 881 ( Fla. Dist. Ct. App. 2003 )

.

Case: 13-14723 Date Filed: 09/08/2014 Page: 5 of 166 B. Brown’s First and Second Motions for Post

- Conviction Relief On September 24, 2004, Brown filed in a Florida court a motion for post

conviction relief and argued that his trial counsel was ineffective. See Fla. R. Crim. P. 3.850. On May 16, 2005, the state court denied Brown’s motion . The court ruled that Brown’s motion was factually deficient because he had failed “to allege, much less establish, that there is a reasonable probability that the outcome of the proceeding would have been different absent counsel’s deficient performance .

. . .” Brown did not appeal

. On October 13, 2005, Brown filed a second motion that rais ed the same claim for post

- conviction relief

. See id. A Florida court denied Brown’s motion as “procedurally barred” on the ground that it failed to “set forth any basis upon which . . . [to] conclude that the matters therein could not have been raised through the September, 2004 motion.” Brown appealed, and the First Circuit Court of Appeals affirmed

. Brown v. State , 961 So. 2d 936 (Fla. Dist. Ct. App. 2007)

. C. Brown’s Third Motion for Post

- Convict ion Relief and the New DNA Tes t Performed on the Mask and Bandana On December 7, 2006, Brown filed pro se a third motion for collateral review and requested assistance in having n ew DNA test s administered o n the mask and bandana

. A Florida court summarily denied Brown’ s motion, and he appealed

. T he First Circuit Court of Appeals reversed and remanded the case with instructions. Brown v. State , 967 So.2d 398 , 399 ( Fla. Dist. Ct. App. 2007 ).

Case: 13-14723 Date Filed: 09/08/2014 Page: 6 of 167 O n remand, the state court granted Brown’s motion t o test the physical evidence

. The court appointed counsel , an assistant public defender, to represent
Brown , and t he court instructed counsel to prepare for an evidentiary hearing. DNA Labs International tested the mask and the bandana using Y

- ST R analysis, which had been unavailable at the time of Brown’s trial. The test enables scientists to isolate DNA containing the male Y chromosome and to determine the statistical probability of a particular ma n being the contributor o f DNA evidence based o n short tandem repeat (STR) sequences o n the Y chromosome

. DNA Labs tested the swabbings of the mask and a cutting f rom the bandana that had been
test ed by the crime lab. With the swabbings of the mask, DNA Labs was able to develop a partial Y

- DNA profile that “indicate[d] a mixture of at least four male individuals” and that excluded Brown as a contributor to that DNA

. With the cutting from the bandana, t he laboratory developed a partial Y

- DNA profile that “indicate[d] a mixture of two male individuals” and that could not exclude Brown as a contributor to th at DNA

. On May 19, 2008, Brown moved pro se for a new trial . Brown argued that he was actually innocent based on the evidence that he was not a contributor to the DNA on the mask

. During an evidentiary hearing, the parties discussed with the state court the results of both the mask and the bandana. Brown’ s counsel sa id that

Case: 13-14723 Date Filed: 09/08/2014 Page: 7 of 168 he lacked a “good faith basis to file a motion for a new trial on Mr. Brown’s behalf” because the test results were not exculpatory.
T he state court denied Brown’s motion for a new trial. The court ruled that the results of the Y

- STR test “did not, does not and [could not] exonerate” Brown “[t]aken in conjunction with the testimony adduced at trial from both victims.” The court reasoned that, “while the latest DNA testing results could qualify as new and material evidence, there [was] no realistic probability that [t he new DNA evidence ] would change the verdict or finding of the court at the original tri al” because those test results “corroborate[d] the previous information that DNA testing could neither confirm nor exclude [Brown] as the perpetrator” and “detract[ed] none from the significant weight of the evidence used at trial to convict him.” Brown a ppealed, and on June 25, 2009, the First Circuit Court of Appeals affirmed summarily. Brown v. State , 12 So. 3d 222 (Fla. Dist. Ct. App. 2009)

. D. Brown’s Federal Habeas Corpus Proceedings On August 18, 2010, Brown filed a federal petition for a writ of habeas
corpus. See 28 U.S.C. § 2254. Brown argued that the Florida courts violated his rights to due process and equal protection under the Fifth and Fourteenth Amendments by “allow [ing] [h im to be] convict [ed] contrary to [the] law and weight of [the] evidence” and by den ying his motion for a new trial when he “is

Case: 13-14723 Date Filed: 09/08/2014 Page: 8 of 169 actual ly innocen t [] both legally and factually

. ” Brown also argued that the prosecutor present ed false testimony from Smith

. S ee Giglio v. United States , 405 U.S. 150, 92 S. Ct. 763 (1972)

. The State responded that Brown’s petition was barred by the one

- year statute of limitation, see 28 U.S.C. § 2244(d)(1), and Brown replied that his petition was timely. Brown argued that the State miscalculated the period of limitation. In the alternative, Brown argued that h e had substantial evidence of actual innocence entitling him to an equitable exceptio n to the dead line and that he was entitled to a review on the merits of his claims about the violation of his constitutional rights

. The district court appointed counsel for Brown , who obtained an expert, Dr. Gary
W. Litman, to interpret the results of the DNA tests p erformed by the crime lab and by DNA Labs

. The district court held a n e videntiary hearing to assess the new DNA evidence. Brown did not request that Dr. Litman attend the hearing, so the district court continued the proceeding . When the hearing resumed about a month later , Dr. Litman testified about the results of the tests performed by the crime lab and DNA Labs on the bandana and on the mask. With respect to the bandana, Dr. Litman explain e d that the DNA test performed by the crime lab did not produc e a reportable result because it could not “resolve a pattern, a DNA typing pattern.” When DNA Labs tested the bandana using the Y

- STR test , the lab found that there

Case: 13-14723 Date Filed: 09/08/2014 Page: 9 of 1610 was more than one contributor [of DNA] to the bandana” and that Brown could not be exclud ed as a contributor

. Dr. Litman cautioned that the result reported by DNA Labs was of “very limited probative value” because it had found only 2 out of 16 alleles that matched Brown. With respect to the mask, Dr. Litman sai d that he had seen internal documents of the crime lab stat ing it had “includ[ed] certain data that in retrospect [it] should not have been including ” and that DNA Labs thought the crime lab had “calculated incorrectly” its data . But Dr. Litman failed
to explain how the purport ed miscalculation affected the test results reported by the crime lab

. Dr. Litman explained that DNA Labs found that there were four contributors of DNA on the mask and that Brown was excluded a s a contributor to th at DNA

. Dr. Litman ackn owledged that Brown could have left DNA on another part of the mask that went undetected and that Brown could have w o r n the mask without transferring any DNA because that evidence “might not transfer through” another layer, such as a bandana. The distric t court denied Brown’s petition. The district court ruled that
Brown ’s petition was untimely because he filed his petition after the expiration of the one

- year statute of limitation; he was not entitled to equitable tolling of the statutory deadline; and he failed to file his petition within one year of obtaining the

new DNA evidence. The district court also ruled that Brown was not entitled to an equitable exception to the deadline based on his claim of actual innocence. The

Case: 13-14723 Date Filed: 09/08/2014 Page: 10 of 1611 district court determined that Brown had failed to prove that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence,” Kuenzel v. Comm ’ r, Ala

. Dep ’ t of Corr

. , 690 F.3d 1311 , 1314

– 15 ( 11 th Cir

. 2012 ) (quoting Schlup , 513 U.S. at 327 , 115 S. Ct. at 867), because the new DNA test results did not contradict Cheryl’s and Melvin’s testimonies and because of the possibility, as acknowledged by Litman, that Brown could “wear a

. . . bandana and not leave DNA on the mask

. ” Nevertheless, the district court determined that reasonable jurists could disagree about its decision and granted Brown a certificate of appealability. II. STANDARDS OF REVIEW We review de novo the denial of a petition for a writ of habeas corpus. Rozzelle v. Sec’y, Fla. Dep’t of Corr. , 672 F.3d 1000 , 1009 ( 11 th Cir

. 2012 ). The scope of our review is limited to the issue identified in the certificate of appealability. McKay v. U nited S tates , 657 F.3d 1190 , 1195 ( 11 th Cir

. 2011 ).

“ We also do not consider issues or arguments raised for the first time on appeal. ” Ferguson v. Sec ’ y for the Dep ’ t of Corr

. , 580 F.3d 1183, 1193 ( 11 th Cir

. 2009)

. III. DISCUSSION
Brown appeals the denial of federal habeas corpus relief on two grounds

. First, Brown argues that his trial counsel was ineffective, but we will not consider an issue that is not includ ed in the certificate of appealability and that Brown failed

Case: 13-14723 Date Filed: 09/08/2014 Page: 11 of 1612 to raise in his federal habeas petition

. S ee McKay , 657 F.3d at 1195; Ferguson , 580 F.3d at 1193

. Second, Brown argues that the district court reviewed his claim of actual innocence under an incorrect legal standard and that the results of the new
DNA test “creates a cavalcade of reasonable doubt . . . so powe rful as to require an examination of the . . . [otherwise] procedurally defaulted constitutional claims in [his] [p]etition

. ” We conclude that the district court appli ed the correct test to assess Brown’ s claim of actual innocence , see Mc Quiggin , 133 S. Ct. at 19 28 , and that the district court did not err in its determination that Brown failed to prove it
was “ more likely than not that no reasonable juror would have convicted him in the light of the new evidence , ” s ee i d. at 1935 (quoting Schlup , 513 U.S. at 32 7 , 115 S. Ct. at 86 7)

. In McQuiggin , the Supreme Court held that a federal habeas petitioner can qualify for an equitable exception to the one

- year statut e of limitation and obtain federal review of his claims about constitutional errors in his state court proceedings if he satisf ies the threshold test established in Schlup

. McQuiggin , 133 S. Ct. at 1928. Under t hat test , the petitioner must “persuade [] the [habeas] court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. (quoting Schlup , 513 U. S. at 329, 115 S. Ct. at 868). The test devis ed in Schlup is intended to “ensure[] that [the] petitioner’s case is truly extraordinary, while still pro vide petitioner a

Case: 13-14723 Date Filed: 09/08/2014 Page: 12 of 1613 meaningful avenue by which to avoid a manifest injustice.” 513 U.S. at 32 7, 115 S. Ct. at 867 (internal quotation marks and citation omitted). The petitioner must prove that “he is ‘actually innocent,’” id. at 327, 115 S. Ct. at 867, by produc ing “new reliable evidence . . . not presented at trial,” id

. at 324, 115 S. Ct. at 865, that “raise[s] sufficient doubt about [his] guilt to undermine confidence in the result of the trial,” id. at 317, 115 S. Ct. at 8 62. A determination of actual innocence is based on an assessment of “the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial.” Id. at 332, 115 S. Ct. at 869 ; see House v. Bell , 547 U.S. 518, 538, 126 S. C t. 2064, 2077 (2006)

. In its assessment, the district court cannot make “an independent factual determination about what likely occurred”; instead, it is required to “assess the likely impact of the evidence on reasonable jurors.”
House , 547 U.S. at 538, 126 S. Ct. at 2077. “[T]he habeas court must consider all the evidence, old and new, incriminating and exculpatory,” and “ make a probabilistic determination about what reasonable, properly instructed jurors would do, ’ ” House , 547 U.S. at 538, 126 S. Ct. at 2077 (citing Schlup , 513 U.S. at 327

– 29, 115 S. Ct. at 8 67

– 68 ) , if they “ consider [ed] fairly all of the evidence presented , ” Schlup , 513 U.S. at 329, 115 S. Ct. at 868. As part of t hat determination , the district court must account for how “reasonable triers of fact ”

Case: 13-14723 Date Filed: 09/08/2014 Page: 13 of 1614 would use the newly presented evidence to assess the “credibility of the witnesses presented at trial

. ” Id. at 330, 115 S. Ct. at 868. The district court applied the predictive standard of Schlup to evaluat e Brown’s claim of actual innocence . The district court stat ed repeatedly in its o rder that it had consider ed the new DNA test results and the evidence presented at Brown’s trial to determine whether “it was more likely than not that no reasonable juror” w ould have convicted Brown. Although the district court referred once to the standard appli cable to c hallenges to the sufficiency of the evidence, the district
court explained that “the gateway actual

- innocence standard [was] by no means equivalent to the standard of Jackson v. Virginia , 443 U.S. 307 , 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),” and that it was “[i]nstead . . . [required to] assess how reasonable jurors would react to the ‘overall, newly supplemented record.’ House v. Bell , 547 U.S. 518, 538 (20 06). ” And the district court ma de a “probabilistic determination” about how reasonable jurors would evaluate the new DNA test results and their interpretation by Dr. Litman in connection with Cheryl’s and Melvin Sr.’s positive identifications of Brown. Brown’s new evidence fails to satisfy the threshold showing under Schulp

. The new DNA test results do not prove that Brown did n ot wear the mask left at the scene or contradict the testimony from Cheryl and Melvin Sr. identifying
Brown as a burglar

. Alth ough t he results exclude Brown as a contributor of DNA

Case: 13-14723 Date Filed: 09/08/2014 Page: 14 of 1615 on the mask , Brown’s expert, Dr. Litman , acknowledged that Brown could have left DNA on another part of the mask. Regardless of the results of the DNA test on the bandana, Cheryl testified that Brown was wearing a bandana under his mask , a bandana was found at the scene with the mask, and Dr. Litman acknowledged that a bandana worn under a mask could prevent DNA from transferring to the mask. Brown failed to prove “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence

. ” All of the evidence, both old and new, fails to establish that Brown is actually innocent. See House , 547 U.S. at 538, 126 S. Ct. at 2077 ; Schlup , 513 U.S. at 327

– 30, 115 S. Ct. at 867

– 68 . The new DNA test results do not eliminate Brown as the burglar who wore the mask or contradict Cheryl’s a nd Melvin Sr. ’s positive identifi cation of Brown as the perpetrator. And other eyewitnesses’ accounts point to Brown’s involvement

. Those accounts establish that C heryl called the perpetrator by Brown’s first name and that the burglars re ferred to Cheryl by a nickname used by Nakita , the young daughter of Brown’s girlfriend.
Brown ’s federal habeas petition is barred by the one

- year statute of limitation. Brown failed to file his petition within one year after his conviction became final. See 28 U.S.C. § 2244(d)(1). And Brown has failed to prove that he is entitled to an equitabl e exception from that deadline based on his claim of actual innocence. See McQuiggin , 133 S. Ct. at 1928.

Case: 13-14723 Date Filed: 09/08/2014 Page: 15 of 1616 We AFFIRM the dismissal of Brown’s petition. Case: 13-14723 Date Filed: 09/08/2014 Page: 16 of 16