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                                                              [DO NOT PUBLISH]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:
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      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. ___, 

(2013); Schlup

v. Delo, 

, 

(1995). Because Brown’s DNA evidence

fails to contradict the eyewitness identifications of him as the perpetrator of his

crimes, we affirm.

                                 I. BACKGROUND

      We divide the discussion into four parts. First, we discuss Brown’s trial and

direct appeal. Second, we discuss Brown’s first and 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.




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                        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

Wiggins 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 unmasked one of the men. Cheryl and Melvin Sr.

positively identified the burglar as Brown. After the prosecution introduced the

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 the mask. The parties

stipulated that the mask was examined by the Florida Department of Law

Enforcement Crime Lab “for the possible presence of DNA evidence”; “[n]o

fingerprints were found on the mask”; “the DNA samples found were the results of

multiple donors”; and “Brown could neither be identified or excluded as a possible

donor of the DNA.”

      Cheryl and Melvin Sr. testified that Brown was the burglar who was

unmasked. Cheryl testified that she recognized Brown’s voice when he threatened

her at gunpoint; she unmasked him while they were scuffling on the floor; and she

was positive of her identification because she noticed his “weak eye” as he was

laying on top of her. Cheryl stated that she had interacted with Brown when he


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had 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. testified 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 when 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 jailmate of Brown, also connected Brown to the burglary.

Melvin Jr. and Best testified that they witnessed Cheryl fight with one of the

burglars, who she referred to as “Ricco.” Nakita testified that she admitted to the

Wiggins’ home two 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 fled bare-faced from

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 jailmate, 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 assistance “to shake up one of the Wiggins,” and offered Alexander’s


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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 unmasking by Cheryl; and

returning to the home with Alexander to act “like he didn’t do anything.”

      Brown called Alexander as an alibi witness. Alexander testified that 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’ house. 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 convictions and sentence,

and on October 27, 2003, the First Circuit Court of Appeals affirmed. Brown v.

State, 

(Fla. Dist. Ct. App. 2003).




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         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 raised the same

claim for post-conviction relief. See 

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, 

(Fla. Dist. Ct. App. 2007).

   C. Brown’s Third Motion for Post-Conviction Relief and the New DNA Test
                    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 new DNA tests administered on the

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

appealed. The First Circuit Court of Appeals reversed and remanded the case with

instructions. Brown v. State, 

, 399 (Fla. Dist. Ct. App. 2007).
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      On remand, the state court granted Brown’s motion to test the physical

evidence. The court appointed counsel, an assistant public defender, to represent

Brown, and the court instructed counsel to prepare for an evidentiary hearing.

      DNA Labs International tested the mask and the bandana using Y-STR

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 man being the contributor of DNA evidence

based on short tandem repeat (STR) sequences on the Y chromosome. DNA Labs

tested the swabbings of the mask and a cutting from the bandana that had been

tested 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, the 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 that 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 said that




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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.

      The 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 [the new DNA

evidence] would change the verdict or finding of the court at the original trial”

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 appealed, and on June 25, 2009, the First Circuit Court of

Appeals affirmed summarily. Brown v. State, 

(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] [him to be] convict[ed] contrary to [the] law and

weight of [the] evidence” and by denying his motion for a new trial when he “is


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actually innocent [] both legally and factually.” Brown also argued that the

prosecutor presented false testimony from Smith. See Giglio v. United States, 

, 

(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 he had substantial evidence of actual innocence

entitling him to an equitable exception to the deadline 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 performed by the crime lab and

by DNA Labs.

      The district court held an evidentiary 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 explained that the DNA test performed by the crime lab did not produce 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


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was more than one contributor [of DNA] to the bandana” and that Brown could not

be excluded 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 said that

he had seen internal documents of the crime lab stating 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 purported 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 as a contributor to

that DNA. Dr. Litman acknowledged that Brown could have left DNA on another

part of the mask that went undetected and that Brown could have worn the mask

without transferring any DNA because that evidence “might not transfer through”

another layer, such as a bandana.

      The district 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


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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., 

, 1314–15 (11th

Cir. 2012) (quoting 

, 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., 

, 1009 (11th Cir. 2012). The

scope of our review is limited to the issue identified in the certificate of

appealability. McKay v. United States, 

, 1195 (11th 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., 

, 1193 (11th 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 included in the certificate of appealability and that Brown failed


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to raise in his federal habeas petition. See 

; 

. 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 powerful as to require an

examination of the . . . [otherwise] procedurally defaulted constitutional claims in

[his] [p]etition.” We conclude that the district court applied the correct test to

assess Brown’s claim of actual innocence, see 

, 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,” see 

(quoting 

, 115 S.

Ct. at 867).

      In McQuiggin, the Supreme Court held that a federal habeas petitioner can

qualify for an equitable exception to the one-year statute of limitation and obtain

federal review of his claims about constitutional errors in his state court

proceedings if he satisfies the threshold test established in Schlup. 

. Under that 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.” 

513 U.S.

at 

). The test devised in Schlup is intended to “ensure[] that

[the] petitioner’s case is truly extraordinary, while still provide petitioner a


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meaningful avenue by which to avoid a manifest injustice.” 513 U.S. at 

(internal quotation marks and citation omitted). The petitioner must

prove that “he is ‘actually innocent,’” id. at 

, by producing

“new reliable evidence . . . not presented at trial,” 

115 S. Ct. at 865, that

“raise[s] sufficient doubt about [his] guilt to undermine confidence in the result of

the trial,” 

115 S. Ct. at 862.

       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.” 

115 S. Ct. at 869; see House v. Bell, 

, 538, 

, 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.”

, 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,’” 

, 126 S. Ct. at 2077 (citing 

–

–68), if they “consider[ed] fairly all of the evidence

presented,” 

, 115 S. Ct. at 868. As part of that

determination, the district court must account for how “reasonable triers of fact”




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would use the newly presented evidence to assess the “credibility of the witnesses

presented at trial.” 

115 S. Ct. at 868.

      The district court applied the predictive standard of Schlup to evaluate

Brown’s claim of actual innocence. The district court stated repeatedly in its order

that it had considered 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” would have convicted Brown. Although the district court referred once to

the standard applicable to challenges 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, 

, 

, 

(1979),” and that it was “[i]nstead . . . [required to] assess how

reasonable jurors would react to the ‘overall, newly supplemented record.’ House

v. Bell, 

, 538 (2006).” And the district court made 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 not wear the mask left at

the scene or contradict the testimony from Cheryl and Melvin Sr. identifying

Brown as a burglar. Although the results exclude Brown as a contributor of DNA


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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 

, 126 S. Ct. at 2077; 

–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 and Melvin Sr.’s positive identification of Brown as

the perpetrator. And other eyewitnesses’ accounts point to Brown’s involvement.

Those accounts establish that Cheryl called the perpetrator by Brown’s first name

and that the burglars referred 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 equitable exception from that deadline based on his claim of actual

innocence. See 

.


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We AFFIRM the dismissal of Brown’s petition.




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