MATHEWS v. SECRETARY, DOC
Filing
57
ORDER denying request for an evidentiary hearing; granting 42 Respondents'Motion to Dismiss Petition as Untimely; dismissing the Amended Petition with prejudice; instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 1/3/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CECIL BRADLEY MATHEWS,
Petitioner,
vs.
Case No. 3:13-cv-1196-J-39MCR
SECRETARY, DOC, et al.,
Respondents.
ORDER
Petitioner initiated this action by filing a pro se Petition
(Petition) (Doc. 1) for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on March 22, 2013.1
He is proceeding on an Amended Petition
(Amended
16),
Petition)
(Doc.
with
an
Appendix
(Doc.
16-1).2
Petitioner challenges a 2006 state court (Clay County) judgment of
conviction for second degree murder with a firearm.
In the
Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus
1
The Court gives pro se inmate petitioners the benefit of the
mailbox rule, see Houston v. Lack, 487 U.S. 266, 276 (1988) (filed
on the date he signed it and presumably handed it to prison
authorities for mailing to this Court).
In this instance, the
Petition is dated March, 2013, and the certification of mailing is
also recorded as March, 2013. See 28 U.S.C. § 2244(d). Since a
specific date is not recorded by Petitioner, the Court assumes that
he signed and dated the Petition on March 22, 2013, as the Petition
is stamped filed on that date by the Clerk.
2
The Court hereinafter refers to the documents attached to
the Appendix as "App."
as Untimely (Response) (Doc. 42),3 Respondents argue that the
Petition must be dismissed as untimely.
a Reply in Opposition (Reply) (Doc. 52).
Petitioner has submitted
See Order (Doc. 26).
The Antiterrorism and Effective Death Penalty Act (AEDPA)
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.
3
The Court hereinafter refers to the Exhibits (Doc. 47)
submitted in support of the Response as "Ex."
2
(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.
28 U.S.C. § 2244(d).
On April 17, 2006, Petitioner was indicted for one count of
first degree murder.
Ex. E.
On May 31, 2006, he entered into a
negotiated plea of guilty to the lesser included charge of second
degree murder, with a negotiated sentence of twenty-five years
incarceration, with a minimum mandatory term of twenty years.
F; Ex. G.
Ex.
On June 15, 2006, Petitioner was adjudicated guilty of
second degree murder with a firearm and sentenced to twenty-five
years of imprisonment with a minimum mandatory term of twenty years
pursuant to a plea agreement.
file a direct appeal.
Ex. H; Ex. I.
Petitioner did not
Thus, his judgment became final thirty days
later on July 17, 2006.4
See Fla. R. App. P. 9.140(b)(3); Saavedra
v. State, 59 So.3d 191, 192 (Fla. 3rd DCA 2011); 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).
Petitioner's one-year limitation period began to run on Tuesday,
July 18, 2006, and ran until it expired on Tuesday, July 17, 2007.
4
Thirty days elapsed on July 15, 2006, however the 15th of
July fell on a Saturday; therefore, the judgment became final on
Monday, July 17, 2006.
3
Although Petitioner filed a petition for belated appeal, prior
to the expiration of the limitation period, Ex. J, it "does not
qualify as an application for collateral review."
Danny v. Sec'y,
Fla. Dep't of Corr., 811 F.3d 1301, 1304 (11th Cir. 2016).
As a
result, there was no statutory tolling of the one-year statute of
limitation by the filing of a motion for belated appeal.
Simply,
"filing a petition for belated appeal of an order denying state
collateral relief does not toll the federal limitation period for
a petition for a writ of habeas corpus."
Id. at 1305 (quoting
Espinosa v. Sec'y, Dep't of Corr., 804 F.3d 1137, 1141 (11th Cir.
2015)). Furthermore, the First District Court of Appeal denied the
petition for belated appeal.
Ex. Q; Ex. S.
Thus, the state court
did not reopen direct review.
Again, the limitations period expired on July 17, 2007.
Although Petitioner filed post conviction motions in 2008, these
motions did not toll the federal one-year limitation period because
it had already expired.
Ex. T.
See Tinker v. Moore, 255 F.3d
1331, 1334-35 (11th Cir. 2001) (holding that, even though Florida
law allows a prisoner two years to file a Rule 3.850 motion, the
prisoner must file the motion within one year after his conviction
becomes final in order to toll the one-year limitation period),
cert. denied, 534 U.S. 1144 (2002); Webster v. Moore, 199 F.3d
1256, 1259 (11th Cir.) (per curiam) ("Under § 2244(d)(2), even
'properly filed' state-court petitions must be 'pending' in order
4
to toll the limitations period.
A state-court petition like
[Petitioner]'s that is filed following the expiration of the
limitations period cannot toll that period because there is no
period remaining to be tolled."), cert. denied, 531 U.S. 991
(2000).
Thus, this action was not timely filed.
Petitioner apparently makes no claim of equitable tolling. To
the extent Petitioner claims his untimely filing of the federal
Petition
is
excused
because
of
counsel's
unresponsiveness
or
ineffectiveness, Reply at 3, 11, in reliance on the holding in
Martinez v. Ryan, 132 S.Ct. 1309 (2012), Petitioner's contention is
without merit.
As noted,
The Eleventh Circuit has expressly rejected
petitioner's argument that Martinez applies to
overcome the statute of limitations bar.
Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir.
2014) (holding that "the Martinez rule
explicitly relates to excusing a procedural
default of ineffective-trial-counsel claims
and does not apply to AEDPA's statute of
limitations or the tolling of that period.").
Sledge v. Jones, No. 3:14-cv92/MCR/CJK, 2015 WL 521057, at *4 (N.D.
Fla. Feb. 9, 2015).
As a result, the holding in Martinez is
inapplicable to this case and does not excuse Petitioner's untimely
filing of his Petition.
In Arthur v. Thomas, 739 F.3d 611, 630
(11th Cir.), cert. denied, 135 S.Ct. 106 (2014), the Eleventh
Circuit explained:
As our discussion shows, the Martinez
rule
explicitly
relates
to
excusing
a
p r o c e d u r a l
d e f a u l t
o f
ineffective-trial-counsel claims and does not
5
apply to AEDPA's statute of limitations or the
tolling
of
that
period.
The
§
2254
ineffective-trial-counsel claims in Martinez
and Trevino were not barred by AEDPA's
one-year limitations period. Instead, those §
2254 claims were dismissed under the doctrine
of procedural default because the petitioners
never timely or properly raised them in the
state courts under the states' procedural
rules. At no point in Martinez or Trevino did
the Supreme Court mention the "statute of
limitations," AEDPA's limitations period, or
tolling in any way.
Petitioner apparently concedes that his Petition was not
timely filed, but argues that the Court should reach the merits of
the Petition, claiming "actual innocence" and entitlement to the
manifest injustice exception.
Amended Petition at 18-20; Reply.
He argues that the Court's failure to address the merits of the
Petition would result in a fundamental miscarriage of justice.
Amended
Petition
at
20;
Reply.
To
invoke
the
fundamental
miscarriage of justice exception to AEDPA's statute of limitations,
a
habeas
petitioner
must
make
a
credible
showing
of
actual
innocence with new evidence that was not available at the time of
his trial.
(2013).
See McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-32
To do so, "a petitioner 'must show that it is more likely
than not that no reasonable juror would have convicted him in the
light of the new evidence.'" Id. at 1935 (quoting Schlup v. Delo,
513 U.S. 298, 327 (1985)).
This Court summarized the requirements
to show gateway innocence:
"An actual-innocence claim must be
supported 'with new reliable evidence—whether
6
it
be
exculpatory
scientific
evidence,
trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at
trial.'" Milton v. Sec'y, Dep't of Corr., 347
Fed. Appx. 528, 530–31 (11th Cir. 2009)
(quoting Schlup, 513 U.S. at 324, 115 S.Ct.
851). A "habeas court must consider all the
evidence, old and new, incriminating and
exculpatory, without regard to whether it
would necessarily be admitted under rules of
admissibility that would govern at trial."
House, 547 U.S. at 538, 126 S.Ct. 2064.
A
court may also consider "how the timing of the
submission and the likely credibility of the
affiants bear on the probable reliability of
that evidence." Id. at 537, 126 S.Ct. 2064
(quotation omitted).
Letemps v. Sec'y, Fla. Dep't of Corr., 114 F.Supp.3d 1216, 1221
(M.D. Fla. 2015).
As new evidence, Petitioner points to (1) "the expert opinion
of Dr. Rickie P. Sander, Appx. A, pgs. 11, 12, 36[;]" (2) "the fact
that statements made to [the] detective on Dec. 13th, 2005 were the
product of physical and emotional coercion, App. A, 20-22[;] and
(3) "exculpatory evidence being erased from the 911 call by the
detective, App. A, 22-25." Amended Petition at 18-19. Respondents
assert that Petitioner has failed to meet his burden by presenting
new evidence as required by Schlup.
Schlup
Response at 15.
Pursuant to
and its progeny, Petitioner is required to offer new
reliable evidence that was not available at the time of his trial.
Certainly claims of an involuntary confession and alleged tampering
of 911 calls do not constitute new evidence.
Prior to his plea,
Petitioner could have claimed that the statements he made to the
7
detective on December 13, 2005 were the product of physical and
emotional coercion.
Petitioner was present for the interrogation
and aware of the detective's interrogation methods.
constitute new evidence.5
at the time of the plea.
This does not
This information was readily available
Also, the 911 calls are not new evidence.
They were referenced in the Clay County Sheriff's Office December
20, 2005 report. Ex. E5. Petitioner told Detective Tate about the
911 calls.
Id.
Thus, Petitioner was fully aware of the 911 calls.
Furthermore, the record shows that Petitioner and the detective
repeatedly discussed the recorded 911 calls prior to the time of
the plea.6
Finally, Petitioner refers to the expert opinion of Dr. Sander
with regard to his autopsy of the victim as new reliable evidence.
Attached to the Amended Petition is a copy of Petitioner's Petition
for Writ of Habeas Corpus for Withdrawal of Plea to Correct
Manifest Injustice (State Petition) (Doc. 16-1).
App. A.
In
ground two of the State Petition, he raised the following claim:
Petitioner plead guilty to a crime he is
actually innocent of due to counsel[']s
ineffectiveness in violation of Petitioner's
5th, 6th, 14th Amendment rights when counsel
failed to investigate second autopsy doctor
5
The Court reviewed the two interviews, and neither interview
evinces improper interrogation methods, threats, or intimidation.
Ex. L5; Ex. P5; Ex. Q5.
6
The Court listened to the recording of Petitioner's 911
call, the call in question, Ex. K5, and the recording does not have
any unexplained gaps.
8
that proves the Petitioner's legal and actual
innocence thus resulting in a manifest
injustice.
App. A at 11.
In support of ground two, Petitioner referenced the second
autopsy performed by Dr. Sander, and the fact that Dr. Sander sent
the report to defense counsel.
Id.
Petitioner claims that he
asked his counsel for a complete copy of the report, but his
counsel failed to provide it to him.
Id.
Petitioner states that
he and his family could not locate Dr. Sander before the plea, but
Petitioner's family finally contacted Dr. Sander at the "end of
2007[.]" Id.
The record belies Petitioner's assertion that he or his family
did not contact Dr. Sander until the end of 2007.
The letter from
Dr. Sander to Petitioner is dated April 22, 2007, not the end of
2007, and written within the federal one-year limitation period.7
App. A at 36.
It states:
When the gun shot the round that caused
the neck wound of Natalie Mathews, it was next
to her face.
It could have been self
inflicted, either with her index finger or her
thumb being on the trigger. The wound is that
of an accidental shot rather than from a shot
meant to kill her. The gunshot wounds on her
body are completely consistent with your
story.
7
Petitioner waited three years to present the matter to the
state court in a state petition for writ of habeas corpus (dated
June 27, 2010) filed with the First District Court of Appeal. Ex.
DDD. He presented the issue in the Supreme Court of Florida on
March 23, 2012. Ex. XXX.
9
Id.
The second autopsy report by Dr. Sander is not new evidence.
According to Petitioner's own rendition of the facts, the defense
hired Dr. Sander to perform a second autopsy, and the results were
sent to defense counsel prior to the plea.8
Thereafter, defense
counsel advised Petitioner concerning his plea.
circumstances,
Petitioner
is
not
presenting
Under these
"new
evidence."
Instead, Dr. Sander's opinion expressed in his letter simply
amounts
to
credibility
a
of
different
the
way
of
prosecution's
attempting
evidence,
to
in
undermine
the
particular
the
credibility of Dr. Margarita Arruza, the Chief Medical Examiner,
and her testimony concerning the results of the initial autopsy.
There is no new evidence offered that is directly probative of
Petitioner's innocence (DNA evidence, forensic evidence, alibi
evidence, or a confession).
In this instance, "the basic facts of
the evidence existed at the time of trial and is not really new."
Kuenzel v. Allen, 880 F.Supp.2d 1205, 1218 (N.D. Ala. 2011), aff'd,
690 F.3d 1311 (11th Cir. 2012). In this regard, Petitioner has not
presented
new
exculpatory
scientific
evidence,
trustworthy
eyewitness accounts, or critical physical evidence.
Alternatively, Petitioner has not presented a credible claim
of actual innocence.
Sufficient doubt has not been raised to
8
The procurement of a second autopsy is mentioned in Buford
(Tony) A. Pate's Sworn Statement of December 10, 2005. Ex. H5 at
1-2.
10
undermine the confidence in the result, or when confronted with Dr.
Sander's opinion, the Court is not convinced that no reasonable
juror would have convicted Petitioner. See McQuiggin, 133 S.Ct. at
1933.
The fundamental miscarriage of justice occurs only in
extraordinary cases, resulting in nearly every case claiming actual
innocence being rejected.
Hannon v. Sec'y, Dep't of Corr., 622
F.Supp.2d 1169, 1201 (M.D. Fla. 2007), aff'd, 562 F.3d 1146 (11th
Cir. 2009).
Indeed, "[t]his fundamental miscarriage of justice
exception is not available unless 'the petitioner shows, as a
factual matter, that he did not commit the crime of conviction.'"
Id. (quoting Ward v. Cain, 53 F.3d 106, 108 (5th Cir.1995) (denying
certificate of probable cause) (footnote omitted)). This demanding
standard is not easily met.
This Court must consider all the evidence, old and new,
incriminating and exculpatory. Letemps, 114 F.Supp.3d at 1221. In
undertaking this consideration, the Court concludes that Petitioner
has failed to demonstrate that no reasonable juror considering Dr.
Sander's opinion could conclude that Petitioner committed the
offense of second degree murder.
Applying McQuiggin's actual
innocence exception to the AEDPA statute of limitation, the Amended
Petition is due to be dismissed as untimely.
An explanation
follows.
Given any presentation of Dr. Sander's opinion, it is logical
that
the
state
would
present
its
11
own
expert
to
refute
this
evidence.
See Ex. C5, Deposition of Dr. Margarita Arruza; Ex. D5,
Office of the Medical Examiner Examination Report.
Dr. Arruza
testified that the chest wound was the most fatal wound.
37.
She also stated the bullet took a downward course.
Ex. C5 at
Id. at 15.
She admitted that bruising may or may not evince a contact wound.
She gave no opinion as to distance.9
Id. at 17.
Id. at 20.
With
regard to the neck wound, she stated the bullet went straight down.
Id. at 21.
In response to the question as to whether the neck
wound was a contact wound, Dr. Arruza stated she found a faint
light gray powdery substance.
Id.
She further explained that it
was not a "tight-packed powdery substance[,]" but rather on the
outer range because the powder was "very dispersed[.]"10 Id. at 26.
Additionally, based on the presentation of the factual basis
for the plea, the state was prepared to offer evidence that
Petitioner had discovered his wife was having an extramarital
affair, and he had followed her on December 5, 2005, and saw her
with her lover.
wife.
Ex. G at 11.
Id. at 12.
He returned home and confronted his
With regard to the shooting, the state was
prepared to offer evidence of the following:
Your Honor, the evidence also showed that
afer she was killed –- she was actually shot
twice, once in the chest and once in the neck.
9
The victim was wearing a black sweater which could have
filtered "all the gunshot residue." Ex. C5 at 17.
10
Dr. Arruza opined a tight-packed powdery substance would
evince a closer shot. Ex. C5 at 26.
12
The evidence showed that one of the two
gunshots entered her neck, at the base portion
of
her
neck,
going
directly
downward,
indicating that she was shot from above.
Medical examiner, Dr. Margarita Arruza,
was deposed by counsel, and she indicated
just, that, that the second –- or one of the
two gunshot wounds went straight down at an
angle, indicating that a firearm had to have
been above her.
Also of note, Your Honor, she indicated
the presence of gunshot residue on her face,
her right cheek, indicating that the firearm
was, again, above her, pointing downwards,
when fired.
That
coincides
with
incriminating
statements that the defendant gave, because
his statements indicated for many, many hours
to the police that he had engaged in a tussle
with his wife and wrestled with her over the
gun, with it only going off once that struck
her.
He never was able to explain and, in
fact, denied ever holding the gun for many,
many hours of interviews, over two separate
interviews.
Eventually he did say he picked up the
gun, and while standing over her, that it went
off when he picked it up, indicating that the
last portion of his several hours of
interviews that he did, in fact have control
of the weapon.
Finally, Your Honor, the weapon was
located laying on the victim's crotch area.
After being shot twice, the weapon was cocked
and ready to be fired a third time, indicating
that someone other than herself had control of
the weapon, which, of course, we believe to be
Mr. Mathews.
Id. at 12-14.
13
In light of the above, when reviewing the letter of Dr. Sander
along
with
the
deposition
of
Dr.
Arruza,11
the
incriminating
statements of the Petitioner, the Sworn Statement of inmate Brandon
Keith Jenkins, the Sworn Statement of Bufurd A. Pate, and the
physical evidence, the Court concludes that Petitioner has not
raised sufficient doubt about Petitioner's guilt to undermine the
confidence in the result of the proceedings. Thus, when confronted
with the letter of Dr. Sander (and the recording of the December
13, 2005 interview and Petitioner's 911 call), the Court is not
convinced
exception.
that
Petitioner
has
satisfied
the
actual
innocence
As a consequence, the Court does not find the evidence
sufficient to overcome the expiration of the one-year limitation
period and the Court will not review the merits of the Amended
Petition.
Petitioner may also be attempting to rely on his assertion
that he received the ineffective assistance of counsel and an
illegal sentence based on a score sheet error.
With respect to
these two claims, Petitioner has alleged that there is evidence of
legal innocence, not factual innocence.
day.
This will not save the
Petitioner must show "factual innocence, not mere legal
11
As noted by Respondents, this Court may consider the timing
of the submission, and here there was an inordinate delay in
presenting the letter of Dr. Sander to the state and federal
courts. The record shows Petitioner waited over three years from
the date of the letter to raise the issue in the state court and
waited nearly six years to submit the issue to the federal court.
See Response at 60-61.
14
insufficiency."
Bousley v. United States, 523 U.S. 614, 623
(1998); see Rozzelle v. Sec'y, Fla. Dep't of Corr., 672 F.3d 1000,
1012-13 (11th Cir. 2012), cert. denied, 133 S.Ct. 351 (2012).
Moreover, the ineffective assistance of counsel and sentencing
error claims are presented as the underlying constitutional claims
raised in the Amended Petition.
Since the Court is not reaching
the merits of the Amended Petition, these underlying grounds will
not be addressed.
Because Petitioner has not shown an adequate reason why the
dictates of the one-year limitation period should not be imposed
upon him, this case will be dismissed with prejudice as untimely.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
Petitioner's
request
for
an
evidentiary
hearing,
contained in the Amended Petition at 19-21, is DENIED.
2.
Respondents' Motion to Dismiss Petition for Writ of
Habeas Corpus as Untimely (Doc. 42) is GRANTED.
3.
The
Amended
Petition
(Doc.
16)
is
DISMISSED
with
prejudice.
4.
The Clerk shall enter judgment dismissing the Amended
Petition with prejudice and dismissing this case with prejudice.
15
5.
Petition,
Because
If
Petitioner
the
this
appeals
Court
denies
Court
has
a
the
dismissal
certificate
determined
that
of
a
of
the
Amended
appealability.12
certificate
of
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.
6.
The Clerk shall close this case.
DONE AND ORDERED at Jacksonville, Florida this 3rd day of
January, 2017.
sa 12/13
c:
Cecil Bradley Mathews
Counsel of Record
12
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)). Here, after due consideration, this Court will deny
a certificate of appealability.
16
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