Yoder v. McCollum
Filing
16
ORDER dismissing the case with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 6/30/2011. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TRAVIS ASHLEY YODER,
Petitioner,
vs.
Case No. 3:08-cv-696-J-34TEM
SECRETARY OF THE FLORIDA
DEPARTMENT OF CORRECTIONS,1
et al.,
Respondents.
ORDER
A. Status
Petitioner Travis Ashley Yoder, through counsel, initiated
this
action
by
filing
a
Petition
for
Writ
of
Habeas
Corpus
(Petition) (Doc. #1) with exhibits (Pet. Ex.) and a Memorandum of
Law (Doc. #5) under 28 U.S.C. § 2254 on June 30, 2008, pursuant to
the mailbox rule.2
He challenges a 2003 state court (Duval County,
Florida) judgment of conviction for second degree murder.
1
The Secretary of the Florida Department of Corrections,
having custody of Petitioner, is the proper Respondent.
2
The Petition (Doc. #1) was filed in this Court on July 10,
2008; however, giving Petitioner the benefit of the mailbox rule,
this Court finds that the Petition was filed on the date Petitioner
handed it to the prison authorities for mailing to this Court (June
30, 2008). See Rule 3(d), Rules Governing Section 2254 Cases in
the United States District Courts. The Court will also give
Petitioner the benefit of the mailbox rule with respect to his
inmate state court filings when calculating the one-year
limitations period under 28 U.S.C. § 2244(d).
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) imposes a one-year statute of limitations on petitions for
writ of habeas corpus.
Specifically, 28 U.S.C. § 2244 provides:
(d)(1) A 1-year period of limitation
shall apply to an application for a writ of
habeas corpus by a person in custody pursuant
to the judgment of a State court.
The
limitation period shall run from the latest
of-(A) the date on which the judgment
became final by the conclusion of
direct review or the expiration of
the 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.
(2) The time during which a properly filed
application for State post-conviction or other
collateral
review
with
respect
to
the
pertinent judgment or claim is pending shall
not be counted toward any period of limitation
under this subsection.
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28 U.S.C. § 2244(d).
Respondents contend that Petitioner has not
complied with the one-year period of limitations set forth in 28
U.S.C. § 2244(d).
See Respondents' Answer in Response to Order to
Show Cause (Response) (Doc. #12) with exhibits (Resp. Ex.).
Petitioner has not filed a Reply, but has asserted that he is
actually innocent of the second degree murder.
13.
See Petition at 8-
This case is now ripe for review.
B. One-Year Limitations Period
The following procedural history is relevant to the one-year
limitations issue.
On July 25, 2002, the State of Florida charged
Petitioner with one count of first degree murder and one count of
aggravated battery.
Pet. Ex. A, Indictment.
Petitioner pled
guilty to the lesser offense of second degree murder, and the State
agreed to a sentence of twenty-five years of imprisonment.
Ex. B, Plea of Guilty and Negotiated Sentence.
agreed
to
abandon
all
charges
in
Case
No.
Pet.
The State also
2002-8054-CF,
an
unrelated case, in which Yoder was charged with one count of sale
of cocaine within 1,000 feet of a school.
Id.; Resp. Ex. A.
The
court accepted the plea as voluntary, adjudicated Yoder guilty, and
sentenced him in accordance with the plea agreement.
Pet. Ex. C.
The State dismissed the aggravated battery charge. Id. at 17. The
written judgment and sentence, filed June 13, 2003, were consistent
with the oral pronouncement.
Pet. Ex. D.
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Petitioner did not appeal the judgment and sentence.
See
Petition at 6. Thus, his conviction became final thirty days later
on July 13, 2003.
See Fla. R. App. P. 9.140(b)(3); Gust v. State,
535 So.2d 642, 643 (Fla. 1st DCA 1988) (holding that, when a
defendant does not file a direct appeal, the conviction becomes
final when the thirty-day period for filing a direct appeal
expires).
After the 2003 conviction, the estate of the deceased
child victim sued the State of Florida, asserting that the Florida
Department of Children and Families (DCF) could have prevented the
child's death.
On May 24, 2004, during the course of the civil
litigation, lawyers took the deposition testimony of forensic
pathologist
William
R.
Anderson,
M.D.,
on
May
24,
2004.
"Petitioner learned through a newspaper article," dated June 4,
2004, that Dr. Anderson had given the deposition testimony.
Petition
at
2;
Pet.
Exs.
E;
F.
Respondents
assert
that,
by
Petitioner's own allegations in the Petition, it appears that the
date on which the factual predicate of the claims presented could
have been discovered through the exercise of due diligence, or in
fact the date the factual predicate was actually discovered, was
June 4, 2004, the date of the newspaper article.
through
counsel,
does
not
contest
Respondents'
Petitioner,
assertion.
Therefore, the Court determines that the date on which the factual
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predicate of the claims presented could have been discovered
through the exercise of due diligence was June 4, 2004.3
Therefore, the one-year period of limitations started running
the next day on June 5, 2004, and ran for three hundred and sixty
(360)
days,
when
Petitioner
filed
a
pro
se
motion
for
post
conviction relief (Rule 3.850 motion) pursuant to Florida Rule of
Criminal Procedure 3.850 on May 31, 2005.
Resp. Ex. B.
filed an amended Rule 3.850 motion on January 31, 2006.
C.
Counsel
Resp. Ex.
On August 16, 2007, the trial court denied the Rule 3.850
motion and an amended motion filed by Petitioner.
Pet. Ex. I.
The
appellate court affirmed the denials per curiam on November 28,
2007.
K.
Yoder v. State, 971 So.2d 122 (Fla. 1st DCA 2007); Pet. Ex.
On January 4, 2008, the court denied Petitioner's motion for
3
In Yoder's pro se motion for post conviction relief, filed
pursuant to Florida Rule of Criminal Procedure 3.850, he states
that his ex-wife informed him about the newspaper article
containing "information that was vital to his case," and therefore,
"sometime in October 2004," Yoder requested the information from
the DCF lawyer, which Yoder received November 12, 2004. Resp. Ex.
B at 4-5.
Referring to Dr. Anderson's May 2004 deposition
testimony, the newspaper article stated: "A pathologist testified
in a deposition for the state last month that he believes the boy
died from a fall from the couch."). Pet. Ex. E. Even assuming
that Petitioner did not find out about the deposition testimony
until October 31, 2004, and then requested the information, the
one-year limitations period ran for two hundred and eleven (211)
days (November 1, 2004, to May 31, 2005). Thus, even with this
more generous calculation, the Petition is still untimely (211 days
plus 158 days, totaling 369 days).
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rehearing.
2008.
Pet. Exs. L; M.
The mandate issued on January 23,
Pet. Ex. M.
On or about February 4, 2008, Petitioner, through counsel,
appealed to the Supreme Court of Florida.
Appeal.
Resp. Ex. F, Notice of
The court dismissed the appeal for lack of jurisdiction,
citing Jackson v. State, 926 So.2d 1262 (Fla. 2006)4, and Jenkins
v. State, 385 So.2d 1356 (Fla. 1980).
Yoder v. State, 978 So.2d
161 (Fla. 2008); Pet. Ex. N.
The Florida Supreme Court is a court of limited jurisdiction
and did not have jurisdiction over the case.
See Tucker v. Dep't
of Corr., 301 F.3d 1281, 1283 (11th Cir. 2002) (explaining that the
Florida Supreme Court may review a decision of a district court of
appeal by (1) conflict jurisdiction when the Florida Supreme Court
perceives an actual or potential conflict within the law of the
state, and (2) certified question jurisdiction).
Generally, the
Florida Supreme Court does not have the authority to review cases
where the district court of appeal issues a per curiam affirmance
without issuing a written opinion.
Jenkins, 385 So.2d 1356.5
Jackson, 926 So.2d 1262;
Thus, the time during which the Notice
4
In Jackson, the court held that the state constitutional
provision requiring the supreme court to review decisions of
district courts of appeal declaring invalid a state statute or a
provision of the state Constitution does not apply to unelaborated
per curiam affirmance opinions of the district courts of appeal.
5
The Supreme Court of Florida stated: "Accordingly, we hold
that from and after April 1, 1980, the Supreme Court of Florida
lacks jurisdiction to review per curiam decisions of the several
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of
Appeal
was
limitations.
pending
does
not
toll
the
one-year
period
of
Response at 5.
Accordingly, the one-year limitations period started running
again the next day, on January 24, 2008, and ran for one hundred
and fifty-eight (158) days, when Petitioner filed his Petition in
this Court on June 30, 2008. Thus, five hundred and eighteen (518)
days of untolled time ran.
Based on the foregoing, the Petition,
filed June 30, 2008, is untimely filed and due to be dismissed
unless Petitioner can establish that equitable tolling of the
statute of limitations is warranted.
Petitioner asserts that he is actually innocent of the crime
due to newly-discovered evidence provided by Dr. Anderson in his
May 2004 deposition.
Insofar as Petitioner attempts to raise an
actual innocence claim in his Petition, such a claim is not
cognizable in federal habeas proceedings; however, it may serve as
a
gateway
through
constitutional
claim
which
may
an
be
otherwise
considered
procedurally
on
the
barred
merits.
See
Cunningham v. Dist. Attorney's Office for Escambia Cnty., 592 F.3d
1237, 1273 (11th Cir. 2010) ("Claims of actual innocence based on
newly discovered evidence have never been held to state a ground
district courts of appeal of this state rendered without opinion,
regardless of whether they are accompanied by a dissenting or
concurring opinion, when the basis for such review is an alleged
conflict of that decision with a decision of another district court
of appeal or of the Supreme Court." Jenkins v. State, 385 So.2d at
1359.
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for federal habeas relief absent an independent constitutional
violation occurring in the underlying state criminal proceeding")
(quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)).
"'To be
credible,' a claim of actual innocence must be based on [new]
reliable evidence not presented at trial."
Calderon v. Thompson,
523 U.S. 538, 559 (1998) (quoting Schlup v. Delo, 513 U.S. 298
(1995)). To meet this standard, a petitioner must "show that it is
more likely than not that no reasonable juror would have convicted
him" of the underlying offense in light of the new evidence.
Schlup, 513 U.S. at 327.
In denying the Rule 3.850 motions, the state court stated in
pertinent part:
The opinions expressed by Dr. Anderson in his
deposition were based on the same information
and facts known at the time the Defendant pled
guilty,
they
provide
no
new
factual
information, and merely assert a new theory as
to what may have happened to the minor victim.
(Exhibit "C."). . . .
Moreover, the Defendant's presumptive
assertion that the deposition definitely
proves his innocence is overly optimistic, if
not blatantly wrong. The Defendant is under
the misapprehension that for an injury to be
considered indicative of blunt force trauma,
the impact must be of a high-velocity, as
opposed
to
a
low-velocity,
nature.
(Defendant's Motion, page 10; Amended Motion,
page 10). Although the Defendant bases this
belief on Dr. Anderson's deposition, the
Defendant is misinterpreting what was actually
said in the deposition.
Dr. Anderson
testified that he felt the injury pattern did
not indicate a "high-energy impact" such as he
would normally see in a child abuse case, and
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opined that the minor victim could have died
as a result of an accidental injury, such as
falling off a couch and hitting his head.
(Exhibit "C," page 16.) However, Dr. Anderson
also testified that the medical findings
indicate that the minor victim could very well
have suffered his fatal head injury as a
result of being intentionally pushed to the
ground and striking his head, via a lowvelocity impact . . . .
Thus, Dr. Anderson's opinion as to the cause
of the minor victim's fatal head injury was
inconclusive as to the force of impact, and
whether
the
injury
was
accidental
or
intentional. Accordingly, the deposition of
Dr. Anderson is neither newly discovered
evidence, nor does it conclusively demonstrate
the Defendant's innocence . . . .
Pet. Ex. I at 3-6.
In his deposition, Anderson opined that "this
was not a high-velocity impact injury."
Pet. Ex. F at 16.
While
Anderson thought the child victim's injury was probably accidental
based on the low-velocity impact, id. at 17, 107, he ultimately
concluded that there is "a very good chance" that it was an
accidental
injury,
intentional injury."
"but
you
can't
Id. at 109.
rule
out
a
low-velocity
Thus, Anderson was not able to
conclusively determine whether it was an accidental or intentional
injury.
Id.
Moreover, Dr. Arruza, the medical examiner who
indicated that homicide by blunt head trauma was the cause of
death, was also deposed in the civil lawsuit and maintained her
opinion regarding the cause of death.
Resp. Ex. D at 705 (Medical
Examiner's Report), 718, 758, 760, 773.
In sum, assuming Dr.
Anderson's deposition is "new evidence," Petitioner has failed to
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show that it is more likely than not that no reasonable juror would
have convicted him of the underlying offense in light of Dr.
Anderson's testimony. Thus, the actual innocence claim must fail.
Petitioner has not shown a justifiable reason why the dictates
of the one-year limitations period should not be imposed upon him.
For this reason, this Court will dismiss this case with prejudice
pursuant to 28 U.S.C. § 2244(d).
C. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Petitioner appeals the dismissal of the Petition, the
undersigned opines that a certificate of appealability is not
warranted.
This Court should issue a certificate of appealability
only if the Petitioner makes "a substantial showing of the denial
of a constitutional right."
28 U.S.C. § 2253(c)(2).
To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists
would
find
the
district
court's
assessment
of
the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Where
a
constitutional
district
claims
court
on
the
has
rejected
merits,
the
a petitioner's
petitioner
must
demonstrate that reasonable jurists would find the district court's
- 10 -
assessment of the constitutional claims debatable or wrong.
Slack, 529 U.S. at 484.
See
However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling."
Id.
Upon consideration of the record as a whole, this Court will deny
a certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
Respondents' request to dismiss this case with prejudice
(Doc. #12) is GRANTED.
2.
This case is DISMISSED with prejudice.
3.
The Clerk of the Court shall enter judgment dismissing
this case with prejudice and shall close this case.
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4.
If Petitioner appeals the dismissal of the Petition, the
Court denies a certificate of appealability.
has
determined
that
a
certificate
of
Because this Court
appealability
is
not
warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
filed in this case.
Such termination shall serve as a denial of
the motion.
DONE AND ORDERED at Jacksonville, Florida, this 30th day of
June, 2011.
sc 6/29
c:
Counsel of Record
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