Anthony F Wainwright v. Secretary, Florida Department of Corrections, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13639
____________________
ANTHONY F WAINWRIGHT,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:05-cv-00276-TJC
____________________
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 1 of 17

-- 1 of 17 --

2 Opinion of the Court 20-13639
Before J ORDAN, G RANT, and B RASHER , Circuit Judges.
PER CURIAM:
Anthony Wainwright, who is under sentence of death in
Florida for the 1994 rape, kidnapping, and robbery of Carmen
Gayheart, see Wainwright v. State, 704 So. 2d 511, 512 (Fla. 1997)
(opinion on direct appeal), appeals from the district court’s denial
of his Rule 60(b) motion in his habeas corpus case. Following oral
argument and a review of the record, we affirm.1
I
In 2007, we affirmed the district court’s dismissal of Mr.
Wainwright’s habeas corpus petition as time-barred by six days. In
so doing we held that Mr. Wainwright was not entitled to equitable
tolling of the limitations period. See Wainwright v. Sec’y, Dep’t of
Corr., 537 F.3d 1282, 1285–86 (11th Cir. 2007) (Wainwright I).
On June 5, 2018, the Capital Habeas Unit of the Federal De-
fender’s Office for the Northern District of Florida filed a motion
to be appointed as habeas counsel for Mr. Wainwright. The district
court granted the motion on June 22, 2018. Almost a year later, on
June 21, 2019, the CHU filed a Rule 60(b) motion on Mr. Wain-
wright’s behalf. The motion asserted a number of grounds, which
we summarize.
1 We assume the parties’ familiarity with the vast record in this case, and set
out only what is necessary to explain our decision.
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 2 of 17

-- 2 of 17 --

20-13639 Opinion of the Court 3
First, Mr. Wainwright argued that the matter of equitable
tolling should be revisited. His former habeas counsel, Joseph Hob-
son, had a conflict of interest in arguing equitable tolling because
he was the attorney who had missed the filing deadline. Moreover,
Mr. Hobson had misrepresented his experience and qualifications,
had lied to him (about working on the petition and about the limi-
tations period), and had perpetrated a fraud on the court (concern-
ing the equitable tolling argument he had made). Mr. Wainwright
asserted that he had acted diligently to protect his rights.
Second, Mr. Wainwright argued that there were independ-
ent grounds for granting him relief from his conviction and death
sentence through Rule 60(b). He claimed for the first time that he
was actually innocent of Ms. Gayheart’s murder and asserted 12
new substantive grounds for relief.
The district court denied the Rule 60(b) motion.
With respect to Mr. Wainwright’s first argument, the district
court concluded that Mr. Hobson had a conflict of interest with
respect to equitable tolling because he was the attorney who had
missed the filing deadline. But the district court found that the late
filing was due to his misunderstanding of how the limitations pe-
riod set out in 28 U.S.C. § 2244(b) worked. The district court ruled
that Mr. Hobson’s negligent miscalculation of the filing deadline—
though troubling—was not extraordinary and did not give rise to
equitable tolling. The district court also found that Mr. Hobson
had not lied to Mr. Wainwright when he assured him that he would
work on filing a habeas corpus petition. Given its rationale, the
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 3 of 17

-- 3 of 17 --

4 Opinion of the Court 20-13639
district court did not address whether Mr. Wainwright had pursued
his rights diligently.
Turning to Mr. Wainwright’s actual innocence claim, the
district court concluded that it constituted an unauthorized second
or successive habeas petition because the newly presented assertion
of actual innocence was not a contention that the previous ruling
(the dismissal of the original habeas corpus petition as untimely)
was erroneous. As a result, the district court explained, it lacked
jurisdiction to consider the claim of actual innocence and the new
substantive claims Mr. Wainwright presented for relief from the
conviction and sentence.
Mr. Wainwright filed a motion to alter and amend, which
the district court denied. Assuming that Rule 59(e) could be used
to challenge the denial of a Rule 60(b) motion in a habeas case, the
district court explained that it had not acted prematurely in denying
the equitable tolling claim. The record showed that Mr. Hobson’s
behavior did not constitute egregious attorney misconduct, and
Mr. Wainwright did not show the existence of an equitable tolling
claim with some merit. Moreover, some of the new arguments Mr.
Wainwright presented were not proper bases for Rule 59(e) relief
and failed in any event. Finally, the newly raised actual innocence
claim did not indicate any defect in the integrity of the original ha-
beas proceeding.
II
Rule 60(b), in subsections (1) through (5), provides a number
of specific reasons that allow a court to relieve a party from a
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 4 of 17

-- 4 of 17 --

20-13639 Opinion of the Court 5
judgment (e.g., mistake, excusable neglect, fraud, satisfaction).
Rule 60(b)(6), a catch-all provision, allows a court to reopen a judg-
ment for “any other reason that justifies relief.” To obtain relief
under Rule 60(b)(6), a movant must demonstrate “extraordinary
circumstances.” Buck v. Davis, 580 U.S. 100, 123 (2017). Even when
the movant has demonstrated extraordinary circumstances,
whether to grant relief is a matter for the court’s discretion. See
Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006).
We review the denial of a Rule 60(b)(6) motion for abuse of
discretion. See Buck, 580 U.S. at 122–23; Arthur v. Thomas, 739 F.3d
611, 628 (11th Cir. 2014). The same deferential standard applies to
the denial of an evidentiary hearing on equitable tolling. See Cano,
435 F.3d at 1342–43 (reviewing denial of evidentiary hearing under
Rule 60(b)(6) for abuse of discretion); Lugo v. Sec’y, Fla. Dep’t of
Corr., 750 F.3d 1198, 1206–07 (11th Cir. 2014) (reviewing denial of
evidentiary hearing on equitable tolling for abuse of discretion).
A different standard applies to the district court’s underlying
findings of fact, including those relating to equitable tolling. We
review those findings for clear error. See Wilson v. Thompson, 638
F.2d 801, 803–04 (5th Cir. Unit B March 2, 1981); Dodd v. United
States, 365 F.3d 1273, 1277 (11th Cir. 2004).
III
Mr. Wainwright asserted in his Rule 60(b)(6) motion that he
was entitled to equitable tolling of the habeas limitations period.
He acknowledged that an attorney’s negligence in calculating a fil-
ing deadline does not warrant equitable tolling. See D.E. 52 at 69.
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 5 of 17

-- 5 of 17 --

6 Opinion of the Court 20-13639
See also Holland v. Florida, 560 U.S. 631, 651–52 (2010) (“We have pre-
viously held that ‘a garden variety claim of excusable neglect,’ such
as a simple ‘miscalculation’ that leads a lawyer to miss a filing dead-
line does not warrant equitable tolling.”) (internal citations omit-
ted). He argued, however, that this was not a typical case of negli-
gence because his former habeas counsel, Mr. Hobson, (1) operated
under a conflict of interest in arguing for tolling because he was the
attorney who had missed the filing deadline; (2) engaged in bad
faith by (a) lying to him about working on the habeas petition and
making it seem as if the petition would be filed on time, and (b)
misrepresenting to him that the petition was timely; and (3) perpe-
trated a fraud on the court by basing his equitable tolling argument
on the false claim that he was not provided notice of the rulings of
the Florida Supreme Court. See D.E. 52 at 69–78.
A
The district court concluded, based on Christenson v. Roper,
574 U.S. 373, 377–78 (2015), that Mr. Hobson was indeed acting un-
der a conflict of interest when he requested equitable tolling be-
cause he was the attorney who missed the filing deadline and was
placed in the position of arguing his own ineffectiveness. See D.E.
60 at 13–15. It then turned to whether the arguments that Mr. Hob-
son failed to raise for equitable tolling (the ones set forth in the Rule
60(b) motion and summarized in the preceding paragraph) had
some merit.
Noting that Mr. Wainwright based his equitable tolling claim
on Mr. Hobson’s alleged dishonesty, the district court rejected that
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 6 of 17

-- 6 of 17 --

20-13639 Opinion of the Court 7
contention. The district court found that Mr. Hobson missed the
filing deadline “because he misunderstood the federal statute of
limitations.” D.E. 60 at 17. And it based that finding on the follow-
ing evidence in the record.
First, Mr. Hobson’s misunderstanding was reflected in both
his court filings and in his letters to Mr. Wainwright, and “[u]nfor-
tunately such misconceptions are not extraordinary. Mr. Hobson
is not the only attorney to have thought that [the] limitations pe-
riod did not start running until the Florida Supreme Court dock-
eted a denial of certiorari review.” Id. at 17–18 (citations omitted).
Second, the fact that Mr. Hobson communicated his mis-
taken belief about the operation of the limitations period did not
amount to a lie because “nearly anytime a lawyer miscalculates or
misinterprets AEDPA’s limitations period, he has an opinion about
the deadline that, by definition has no basis in law or fact.” Id. at
19. The district court explained that if it accepted Mr. Wainwright’s
“recasting of the facts, many instances of attorney negligence like
this one would morph into cases of attorney dishonesty. That can-
not be so, because it is well established that a ‘garden variety claim
of excusable neglect,’ such as a ‘simple miscalculation that leads a
lawyer to miss a filing deadline,’ does not warrant equitable toll-
ing.” Id. (quoting Holland, 560 U.S. at 651–52, with some internal
quotation marks omitted).
Third, Mr. Wainwright’s case was like Cadet v. Fla. Dep’t of
Corrections, 853 F.3d 1216, 1219, 1237 (11th Cir. 2017), which held
that gross negligence or misunderstanding of the law on the part
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 7 of 17

-- 7 of 17 --

8 Opinion of the Court 20-13639
of an attorney is not enough, by itself, to warrant equitable tolling.
See D.E. 60 at 19–20. In that case, equitable tolling was denied even
though habeas counsel misunderstood how the limitations period
functioned, relayed that misunderstanding to his client, and stuck
to his position when the client suggested that the limitations period
should be calculated differently. See Cadet, 853 F.3d at 1234–36.
Fourth, the district court found that Mr. Hobson did not lie
to Mr. Wainwright when he assured the latter that he was working
on filing a habeas petition. Mr. Hobson filed a 73-page habeas pe-
tition raising 11 grounds for relief, stating factual and legal bases for
each claim. Though Mr. Hobson filed the petition late, he did so
because of his misunderstanding of the limitations period, and his
letters to Mr. Wainwright about working on the petition were not
false: “Mr. Hobson’s intentions were sincere,” and he did not “lie[ ]
to [Mr. Wainwright] about investigating and filing the habeas peti-
tion.” D.E. 60 at 22. And although the petition contained typo-
graphical and factual errors, and only included four case citations,
those shortcomings demonstrated negligence rather than “will-
fully misle[ading] Mr. Wainwright about working on the petition.”
Id. at 23. Similarly, the fact that Mr. Hobson pivoted to other argu-
ments on equitable tolling on appeal in Wainwright I also did not
“indicate that [he] was willfully deceitful.” Id. at 21 n.13.
Assuming that Mr. Hobson had been grossly negligent, the
district court found no basis for equitable tolling based on the new
arguments that Mr. Wainwright presented. See id. at 20. The
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 8 of 17

-- 8 of 17 --

20-13639 Opinion of the Court 9
district court concluded that there was no basis for an evidentiary
hearing or for Rule 60(b)(6) relief. See id. at 17 n.11, 24.2
B
Mr. Wainwright argues that he plausibly alleged misconduct
on the part of Mr. Hobson, and that he was entitled to Rule 60(b)(6)
relief on equitable tolling grounds. Alternatively, he argues that the
district court should have held an evidentiary hearing. See Br. for
Appellant at 8–22.
Applying clear error review, we cannot say that any of the
district court’s factual findings concerning Mr. Wainwright’s claim
of attorney dishonesty and misconduct are clearly erroneous. See
generally Cooper v. Harris, 581 U.S. 285, 293 (2017) (“A finding that is
‘plausible’ in light of the full record—even if another is equally or
more so—must govern.”). That means that Mr. Hobson missed the
habeas filing deadline because he misunderstood how AEDPA’s
statute of limitations functioned; that Mr. Hobson’s communica-
tions with Mr. Wainwright about preparing the habeas petition re-
flected and conveyed that misunderstanding; and that Mr. Hobson
did not lie to Mr. Wainwright when he said he was working on the
habeas petition.
2 Because the district court addressed the equitable tolling claim on the merits
after finding that Mr. Hobson operated under a conflict of interest, it reasoned
that it did not have to address Mr. Wainwright’s contention that Mr. Hobson
perpetrated a fraud on the court by making spurious equitable tolling argu-
ments. See D.E. 60 at 13–14 n.9.
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 9 of 17

-- 9 of 17 --

10 Opinion of the Court 20-13639
As for Mr. Wainwright’s reliance on Mr. Hobson’s “apparent
deceit” about his experience and qualifications in federal habeas
corpus litigation—which allegedly led to him being hired and paid
$25,000 by a charitable organization—the problem is that there is
no “causal link” between that “apparent deceit” and the subsequent
untimely filing of the habeas corpus petition. See Cadet, 853 F.3d at
1236. And without that link, any “apparent deceit” on Mr. Hob-
son’s part does not provide a basis for Rule 60(b)(6) relief based on
equitable tolling.
We also see no abuse of discretion on the part of the district
court in denying Mr. Wainwright an evidentiary hearing. The
abuse of discretion standard gives a district court a “range of
choice” as long as its decision is not a “clear error of judgment.”
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en
banc). This deferential review means that we will sometimes af-
firm the district court even though we might have ruled differently
had it been our call. See In re Rasbury, 24 F.3d 159, 168 (11th Cir.
1994). Here the “record refute[d]” most of Mr. Wainwright’s “fac-
tual allegations” about Mr. Hobson, and in such a situation “a dis-
trict court is not required to hold an evidentiary hearing.” Schriro
v. Landrigan, 550 U.S. 465, 474 (2007).
IV
Mr. Wainwright also argues that the district court erred in
holding that his petition was an unauthorized second or successive
petition because actual innocence is a cognizable basis for finding
extraordinary circumstances for Rule 60(b)(6) relief. We affirm the
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 10 of 17

-- 10 of 17 --

20-13639 Opinion of the Court 11
district court’s decision because Mr. Wainwright has failed to show
that he is actually innocent.
A
A petitioner sentenced to death may “raise[ ] a claim of ac-
tual innocence to avoid a procedural bar to the consideration of the
merits of his constitutional claims.” Schlup v. Delo, 513 U.S. 298,
326–27 (1995). Such a showing of actual innocence allows a peti-
tioner to overcome AEDPA’s statute of limitations, even without
successfully asserting equitable tolling. See McQuiin v. Perkins, 569
U.S. 383, 392 (2013). The so-called Schlup gateway standard used to
invoke this exception is high—a petitioner asserting actual inno-
cence must “persuade[ ] 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.” Id. at 386 (citing Schlup, 513 U.S.
at 329).
Whether a convincing showing of actual innocence can also
reopen a final judgment pursuant to Rule 60(b)(6) is an open ques-
tion for us. The Third Circuit has held that “a proper demonstra-
tion of actual innocence by [the petitioner] should permit Rule
60(b)(6) relief unless the totality of equitable circumstances ulti-
mately weigh heavily in the other direction.” Satterfield v. Dist. Att’y
Philadelphia, 872 F.3d 152, 163 (3d Cir. 2017). Accord Howell v. Super-
intendent Albion SCI, 978 F.3d 54, 58 (3d Cir. 2020) (same). On the
other hand, the Eighth Circuit has ruled that a Rule 60(b) motion
raising a new claim of actual innocence is an unauthorized second
or successive petition. See Rouse v. United States, 14 F.4th 795, 800–
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 11 of 17

-- 11 of 17 --

12 Opinion of the Court 20-13639
03 (8th Cir. 2021). Cf. Brooks v. Yates, 818 F.3d 532, 534 (9th Cir. 2016)
(holding that the district court did not abuse its discretion in hold-
ing that the petitioner failed to demonstrate entitlement to Rule
60(b) relief via a showing of actual innocence, but alternatively
holding that even if “the Schlup gateway is available to support a
Rule 60(b) motion, [the petitioner] has fallen well short of raising
sufficient doubt about his guilt to undermine confidence in the re-
sult of the trial”) (internal brackets, citation, and quotation marks
omitted).
In one of our prior habeas decisions presenting a Rule 60(b)
motion premised on actual innocence, we looked at the petitioner’s
evidence of actual innocence and found it to be insufficient. We
did this without first taking a position on whether actual innocence
can be used to reopen a final habeas judgment pursuant to Rule
60(b)(6) because the “actual innocence question” is the “decisive
factor.” Kuenzel v. Comm’r, Ala. Dep’t of Corr., 690 F.3d 1311, 1314
(11th Cir. 2012). Here we follow the approach of Kuenzel. We need
not reach the question of whether actual innocence can reopen a
final judgment under Rule 60(b) because Mr. Wainwright has not
sufficiently shown that he is actually innocent.
B
Mr. Wainwright offers a new report from a DNA expert crit-
icizing the work and testimony that the state’s DNA experts pre-
sented at his trial. He argues that this report, considered with all
the other evidence in the record, establishes his actual innocence
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 12 of 17

-- 12 of 17 --

20-13639 Opinion of the Court 13
of sexual battery, premediated and felony murder, and innocence
of the death penalty. We do not agree.
Again, to meet the applicable standard, the petitioner must
show “that it is more likely than not that no reasonable juror would
have convicted him in light of the new evidence.” Kuenzel, 690 F.3d
at 1314–1315 (citing Schlup, 513 U.S. at 867). Or, to remove the dou-
ble negative, he must demonstrate “that more likely than not any
reasonable juror would have reasonable doubt.” House v. Bell, 547
U.S. 518, 538 (2006). The standard does not require a district court
to form an “independent judgment as to whether reasonable doubt
exists,” but rather “requires the district court to make a probabilis-
tic determination about what reasonable jurors would do.” Schlup,
513 U.S. at 868.
The petitioner must present new, credible evidence of inno-
cence: “To be credible, such a claim requires petitioner to support
his allegations of constitutional error with new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy eyewit-
ness accounts, or critical physical evidence.” Kuenzel, 690 F.3d at
1315 (citing Schlup, 513 U.S. at 865). Cases in which constitutional
error has caused the conviction of an innocent person are “ex-
tremely rare[,]” and therefore claims of actual innocence are
“rarely successful.” Schlup, 513 U.S. at 865–66. See House, 547 U.S.
at 538 (“the Schlup standard is demanding and permits review only
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 13 of 17

-- 13 of 17 --

14 Opinion of the Court 20-13639
in the extraordinary case”) (internal citation and quotation marks
omitted). 3
As new evidence, Mr. Wainwright offers a report from a
DNA analyst, Candy Zuleger, which criticizes the findings of the
two state DNA experts who testified at trial. Those two experts
were James Pollock, a Florida Department of Law Enforcement se-
rologist, and Michael DeGuglielmo, a DNA analyst from a private
company. Both experts testified that DNA evidence found on the
backseat of Ms. Gayheart’s car was consistent with Mr. Wain-
wright’s semen.
According to Ms. Zuleger, Mr. Pollock obtained DNA evi-
dence from unreliable testing methods, and therefore the evidence
does not show that Mr. Wainwright raped Ms. Gayheart. Specifi-
cally, Ms. Zuleger’s report states that “it is unclear how [Mr. Pol-
lock] . . . extracted sperm cells” because his report does not explain
3 The circuits are split as whether the new evidence required under Schlup in-
cludes only newly discovered evidence that was not available at the time of
trial or whether it encompasses evidence that was available but not presented
at trial. The Seventh, Ninth, and Tenth Circuits have interpreted “new” to
mean evidence that was not presented at trial. See Gomez v. Jaimet, 350 F.3d
673, 679–80 (7th Cir. 2003); Griffin v. Johnson, 350 F.3d 956, 962–63 (9th Cir.
2003); Fontenot v. Crow, 4 F.4th 982, 1032 (10th Cir. 2021). The Third and
Eighth Circuits have held that “new” means evidence not available at trial
through the exercise of due diligence. See Kidd v. Norman, 651 F.3d 947, 952
(8th Cir. 2011); Hubbard v. Pinchak, 378 F.3d 333, 341 (3d Cir. 2004). Because
we conclude that Mr. Wainwright has not sufficiently established his actual
innocence with the evidence he has presented, we need not address this issue
today.
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 14 of 17

-- 14 of 17 --

20-13639 Opinion of the Court 15
how he did it. See D.E. 52–4 at 30. Ms. Zuleger contends that her
“review cannot determine that [Mr.] Pollock used a verifiable
method for the extraction of sperm cells” and therefore she “can-
not conclude that the cells [Mr.] Pollock analyzed were sperm
cells.” Id. She concludes that Mr. Pollock’s testing does not show
to a degree of reasonable scientific certainty that the DNA that
came from Mr. Wainwright is from semen. In other words, she
asserts that Mr. Wainwright’s DNA could have come from his skin
or elsewhere. See id.
Mr. DeGuglielmo testified that he was able to extract from
the sample an epithelial cell—one of the four main types of body
tissue—that came from Ms. Gayheart. But according to Ms. Zu-
leger his report does not explain how he knows the epithelial cell
was from Ms. Gayheart. See D.E. 52–4 at 30–31. It does not, for
example, say that this extracted cell matched a known sample from
Ms. Gayheart (perhaps one provided by the medical examiner’s of-
fice). Id. She also states that Mr. DeGuglielmo’s testing, which
showed that Mr. Wainwright’s sperm was mixed in the same sam-
ple with Ms. Gayheart’s epithelial cells, does not show that Mr.
Wainwright raped Ms. Gayheart because “[t]he epithelial cells
could have come from the skin on any part of her body.” Id. at 31.
Ms. Zuleger hypothesizes that the sample could have been a
result of Mr. Wainwright’s “ejaculation on a place where Ms.
Gayheart’s epithelial cells were[.]” Id. She also criticizes other as-
pects of both experts’ work—they shared their results with each
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 15 of 17

-- 15 of 17 --

16 Opinion of the Court 20-13639
other, and Mr. DeGuglielmo failed to list the database that he used.
See id. at 31–33.
Mr. Wainwright’s new impeachment evidence—even con-
sidered on its own—does not meet the rigorous Schlup innocence
standard. Ms. Zuleger’s report does not include results from new
DNA testing showing that Mr. Wainwright is innocent of the rape
or the murder. Indeed, Ms. Zuleger’s affidavit does not even estab-
lish that the state’s experts mistakenly identified Mr. Wainwright’s
DNA as semen. It merely points to some ways that the experts may
have deviated from proper protocol or procedure in conducting the
DNA testing and highlights some conclusions that she contends
could not have been reliably drawn from the results. This impeach-
ment evidence falls short of establishing Mr. Wainwright’s inno-
cence. See House, 547 U.S. at 540–553 (petitioner satisfied gateway
standard from Schlup by presenting new DNA testing showing that
sperm did not come from petitioner but from victim’s husband,
along with new witnesses testifying that the husband confessed to
the murder); McQuiin, 569 U.S. at 389–90 (petitioner presented
sufficient new evidence of actual innocence based on new affidavits
from three witnesses, two of whom heard another person confess
to the murder, and two of whom saw that other person’s blood-
stained clothing).
Moreover, Mr. Wainwright’s new evidence is insufficient
when considered together with the other evidence presented at
trial. See House, 547 U.S. at 538 (“In assessing the adequacy of a
petitioner’s showing, the habeas court must consider all the
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 16 of 17

-- 16 of 17 --

20-13639 Opinion of the Court 17
evidence, old and new, incriminating and exculpatory.”) (internal
citation and quotation marks omitted). At trial, the state presented
evidence that Mr. Wainwright confessed to Sheriff James Harrell
Reid that he had kidnapped, robbed, and raped Ms. Gayheart (alt-
hough he claimed his co-defendant, Richard Hamilton killed her).
See Wainwright v. State, 2 So. 3d 948, 950 (Fla. 2008). Additionally,
two jailhouse informants, Robert Murphy and Gary Gunter, testi-
fied that Mr. Wainwright told them that he shot Ms. Gayheart. Mr.
Murphy testified that Mr. Wainwright admitted to strangling Ms.
Gayheart and shooting her in the head. See R. 2708, 3414. Mr. Gun-
ter testified that Mr. Wainwright said both he and his co-defendant
raped a woman they abducted, and “they” took a gun and shot her.
See R. 2742.
Reasonable jurors, considering the new evidence along with
the evidence available at trial, would still find Mr. Wainwright
guilty beyond a reasonable doubt. He therefore has not met the
Schlup innocence standard and cannot set aside the previous judg-
ment under Rule 60(b).
V
We affirm the district court’s denial of Mr. Wainwright’s
Rule 60(b) motion.
AFFIRMED.
USCA11 Case: 20-13639 Document: 68-1 Date Filed: 07/18/2023 Page: 17 of 17

-- 17 of 17 --