Fitzgerald v. Hobbs

Filing 26

OPINION AND ORDER ADOPTING 19 Report and Recommendations and writes separately to address McQuiggin v. Perkins, ---U.S.---,133 S. Ct. 1924(2013), which was decided three months after Judge Ray issued his proposed findings and recommended disposition; this habeas petition will be dismissed with prejudice and a certificate of appealability will be denied. Signed by Judge J. Leon Holmes on 6/26/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ANTHONY JEROME FITZGERALD
ADC #106273
v.

PETITIONER

No. 5:11CV00262 JLH/JTR

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT

OPINION AND ORDER
United States Magistrate Judge J. Thomas Ray has recommended that Anthony Jerome
Fitzgerald’s 28 U.S.C. § 2254 petition for a writ of habeas corpus be dismissed with prejudice and
that no certificate of appealability should issue. The Court has reviewed Judge Ray’s proposed
findings and recommended disposition, as well as the timely objections filed by Fitzgerald. Upon
de novo review of the record, the recommended disposition is adopted as the decision of this Court.
The Court writes separately to address McQuiggin v. Perkins, --- U.S. ----, 133 S. Ct. 1924 (2013),
which was decided three months after Judge Ray issued his proposed findings and recommended
disposition.
In McQuiggin, the Supreme Court resolved a circuit split by holding that a habeas petitioner
can overcome the expiration of the Antiterrorism and Effective Death Penalty Act (AEDPA) statute
of limitations by making a convincing showing of actual innocence. See McQuiggin, 133 S. Ct. at
1928 (referencing 28 U.S.C. § 2244(d)(1)). McQuiggin does not mandate an outcome different from
Judge Ray’s recommendation. McQuiggin held that petitioners attempting to show actual innocence
are required to produce new evidence sufficient to persuade the district court that “no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” 133 S. Ct. at 1928
(quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)). As Judge

Ray noted, Fitzgerald’s claims of actual innocence are entirely premised on evidence—911
recordings—that is not new but was discussed at trial. See Document #7-2, at 6-7 (Pre-trial:
“[Petitioner’s attorney]: Due to the lateness of the delivery of the 911 tape, I would like that it be
excluded from being produced at trial. [Prosecuting attorney]: We’re not going to introduce the 911
tape, your Honor . . . .”); id. at 58-59 (Trial: “[Attorney]: So when you talked [through] this with the
prosecutors and they talked to you about it, did they also tell you that Anthony Fitzgerald’s name is
not mentioned on any of the [911 call] transcripts[?] [Witness]: They said they only have two 911
calls . . . .”). McQuiggin held that unjustifiable delay on a habeas petitioner’s part, while not to be
viewed as “an absolute barrier to relief,” should still be considered as a “factor in determining
whether actual innocence has been reliably shown.” Id. Fitzgerald has failed to show that it is more
likely than not that no reasonable juror would have convicted him in the light of the new evidence.
In reaching this conclusion, the Court has followed McQuiggin in considering Fitzgerald’s delay in
filing his petition as a factor in determining whether actual innocence has been reliably shown rather
than as an absolute barrier to relief.
Two other comments are necessary. First, in his statement of necessity to the Court,
Fitzgerald requests an evidentiary hearing to introduce “new reliable evidence” in the form of the
aforementioned 911 tape recordings. As discussed above, these recordings are not new but were
present and discussed at Fitzgerald’s trial. No hearing is therefore necessary, a conclusion already
correctly reached by Judge Ray. See Document #15 (denying motions for discovery and evidentiary
hearing). Second, in Footnote 1 of his proposed findings and recommended disposition, Judge Ray
notes that Fitzgerald asserts in his habeas petition that he filed for post-conviction relief in state

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court.

Fitzgerald now admits that “he never pursued post-conviction relief in state court.”

Document #25, at 2. Thus, this issue is definitively resolved.
Fitzgerald’s habeas petition will be dismissed with prejudice, and his certificate of
appealability will be denied.
IT IS SO ORDERED this 26th day of June, 2013.

_________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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