MacFarland v. Secretary, Department of Corrections
Filing
9
ORDER denying 1 Petition for writ of habeas corpus filed by David MacFarland ; case dismissed with prejudice; certificate of appealability denied; clerk to enter judgment accordingly and close the case. Signed by Judge Gregory A. Presnell on 12/19/2011. (TKW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DAVID MCFARLAND,
Petitioner,
v.
CASE NO. 6:10-cv-1142-Orl-31GJK
SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. section
2254 (Doc. No. 1). Respondents filed a response to the petition in compliance with this
Court's instructions and with the Rules Governing Section 2254 Cases in the United States
District Courts (Doc. No. 6). Petitioner filed a reply to the response (Doc. No. 7).
Petitioner alleges one claim for relief in his petition: newly discovered evidence
proves that Petitioner is actually innocent of the offenses for which he is incarcerated. As
discussed hereinafter, the Court concludes that the petition is untimely and otherwise
subject to denial.
I.
Procedural History
In 1991, Petitioner David MacFarland was charged in nine cases with numerous
offenses.1 On April 15, 1992, the State filed a nolle prosequi in Case Number 1991-CF-9037.
1
Petitioner was charged in the following cases as follows: (1) 1991-CF-7194 - Count
1: Attempted Burglary of a Dwelling, and Count 2: Resisting Officer without Violence; (2)
Thereafter, on May 14, 1992, Petitioner entered an open plea of nolo contendere to the court
to the remaining charges in these cases, except to Count 3 in Case Number 1991-CF-9030,
which the State nol prossed. (App. B at 238-242). The state court sentenced Petitioner in
pertinent part in case number 1991-CF-9417 to a forty-year term of imprisonment as a
habitual felony offender for the armed burglary conviction (count one). On August 4, 1992,
the state court imposed concurrent lesser sentences on the majority of Petitioner’s
remaining convictions but imposed a consecutive fifteen-year term of probation as to some
of his convictions. (App. C at 243-253). Petitioner did not appeal.
Petitioner filed a Florida Rule of Criminal Procedure 3.800(a) motion to correct
sentence on April 10, 1995.2 (App. E). On April 27, 1995, the trial court denied the motion.
1991-CF-9026, Count 1: Burglary of a Dwelling, and Count 2: Grand Theft Third Degree;
(3) 1991-CF-9027, Count 1: Burglary of a Dwelling, Count 2: Grand Theft Third Degree,
Count 3: Grand Theft of a Motor Vehicle, and Count 4: Grand Theft of a Motor Vehicle; (4)
1991-CF-9028, Count 1: Burglary of a Dwelling, and Count 2: Grand Theft Third Degree;
(5) 1991-CF-9029, Count 1: Forgery, Count 2: Uttering a Forgery, and Count 3: Petit Theft;
(6) 1991-CF-9030, Count 1: Forgery, Count 2: Uttering a Forgery, and Count 3: Petit Theft;
(7) 1991-CF-9033, Count 1: Burglary of a Dwelling, and Count 2: Grand Theft Third Degree;
(8) 1991-CF-9037, Count 1: Grand Theft of a Motor Vehicle; and (9) 1991-CF-9417, Count
1: Armed Burglary of a Dwelling, Count 2: Grand Theft Third Degree, Count 3: Grand
Theft Third Degree, and Count 4: Grand Theft of a Motor Vehicle. (App. A).
2
This is the filing date under the “mailbox rule.” See Thompson v. State, 761 So. 2d
324, 326 (Fla. 2000) (“[W]e will presume that a legal document submitted by an inmate is
timely filed if it contains a certificate of service showing that the pleading was placed in the
hands of prison or jail officials for mailing on a particular date, if that [sic] the pleading
would be timely filed if it had been received and file-stamped by the Court on that
particular date.”). All further references to the filing date of pleadings by Petitioner shall
be the filing date under the mailbox rule, unless otherwise noted.
2
(App. F.) Petitioner appealed, and the Fifth District Court of Appeal affirmed per curiam.
Mandate was issued on September 15, 1995. (App. I.)
Petitioner, through counsel, filed a second Rule 3.800(a) motion on April 25, 2002.
(Doc. No. 6-2 at 51.) The state court denied the motion on May 8, 2002. Id. at 56.
Petitioner’s counsel filed an appeal, which was dismissed for lack of jurisdiction as it was
untimely. Id. at 75. Petitioner sought a belated appeal, which the Fifth District Court of
Appeal granted on March 3, 2003. Id. at 146. The appellate court affirmed the denial of the
motion per curiam. Mandate was issued on May 23, 2003. (Doc. No. 6-3 at 22.)
On July 1, 2003, Petitioner filed a motion for postconviction relief pursuant to Rule
3.850 of the Florida Rules of Criminal Procedure, alleging inter alia that newly discovered
evidence established that he was actually innocent of the armed burglary of a dwelling and
grand theft of a motor vehicle in case number 1991-CF-9417. Id. at 43. In support of the
motion, Petitioner filed the May 30, 2003 affidavit of John Wright (“Wright”), wherein
Wright attested that he committed the offenses. Id. at 46-48. The state court ordered an
evidentiary hearing on the claim and subsequently denied relief. (Doc. No. 6-4 at 37-43.)
In denying relief, the state court reasoned that the claim of newly discovered evidence
could have been discovered with due diligence within two years from July 1995, when the
statute of limitations expired on the offenses. Id. As such, the state court concluded the
claim was untimely. Id. at 42. Petitioner appealed. The Fifth District Court of Appeal of
Florida affirmed in a written opinion. Id. at 109. Mandate was issued on April 26, 2006.
Id. at 115.
3
On February 7, 2008, Petitioner filed another Rule 3.800(a) motion. Id. at 128. The
state court denied the motion on March 18, 2008. Id. at 132. Petitioner appealed, and the
Fifth District Court of Appeal of Florida affirmed per curiam . Id. at 159. Mandate was
issued on September 5, 2008. Id. at 161.
On approximately September 9, 2008, Petitioner filed a fifth Rule 3.800(a) motion.
On September 18, 2008, the state court denied the motion as successive. Id. at 170.
Petitioner did not appeal.
On April 20, 2009, Petitioner filed a sixth Rule 3.800(a) motion. Id. at 172. The state
court denied the motion on April 24, 2009. Id. at 183. Petitioner appealed, and the Fifth
District Court of Appeal affirmed per curiam. (Doc. No. 6-4 at 21.) Mandate was issued on
November 25, 2009. Id. at 23.
Petitioner filed his habeas petition in this Court on June 18, 2010.
II.
Petitioner's Habeas Corpus Petition is Untimely
Pursuant to 28 U.S.C. § 2244:
(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;
4
(C)
(D)
(2)
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.
The time during which a properly filed application for State postconviction 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 section.
28 U.S.C. § 2244(d).
A prisoner, such as Petitioner, whose conviction became final prior to April 24, 1996,
had through April 23, 1997, absent any tolling, to file a § 2254 motion regarding such
conviction. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1211 (11th Cir. 1998) (petitioners
whose convictions became final before the enactment of the AEDPA must be provided a
reasonable time to file their § 2254 petitions, and one year from the effective date is a
reasonable period). Petitioner's instant petition was filed on June 18, 2010, under the
mailbox rule. Because the one-year period of limitation ran on April 23, 1997, Petitioner’s
habeas corpus petition was not timely filed.
Petitioner does not dispute that his petition is untimely. Instead, he argues that the
one-year limitation should not bar his claim because he is “actually innocent.” For
purposes of this discussion, the Court will assume, without deciding, that a showing of
actual innocence is sufficient to relieve habeas petitioners from the burdens imposed by §
5
2244(d).3 “An actual-innocence claim must be supported ‘with new reliable evidence whether 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 F.
App’x 528, 530-31 (11th Cir. 2009) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). To
satisfy the “‘threshold showing of innocence’ justifying ‘a review of the merits of the
constitutional claims,’ the new evidence must raise ‘sufficient doubt about [the petitioner’s]
guilt to undermine confidence in the result of the trial.’” Id. at 531 (quoting Schlup, 513 U.S.
at 317). “‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Id.
(quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
In the present case, Petitioner does not support his allegation of innocence with
sufficient reliable evidence to undermine the Court’s confidence in the outcome of his
criminal proceedings. See Schlup, 513 U.S. at 316. In support of his claim of actual
innocence, Petitioner relies on the 2003 affidavit and later testimony of Wright.
Wright, who was Petitioner’s co-defendant in several of his criminal cases, attested
and testified that Petitioner did not commit the offenses of armed burglary and grand theft
in case number 1991-CF-9417, but instead he (Wright) committed the offenses. (Doc. No.
6-3 at 102.) In discussing the offenses, Wright stated that he thought the vehicle he had
3
In Wyzykowski v. Department of Corrections, 226 F.3d 1213, 1218 (11th Cir. 2000), the
Eleventh Circuit Court of Appeals declined to decide whether there is an actual innocence
exception to the time limitation of § 2244(d). Instead, the court stated that “the factual issue
of whether the petitioner can make a showing of actual innocence should be first addressed
. . . .”
6
stolen in the commission of the crimes was a Skylark.4 Id. at 125. Wright indicated that
Petitioner bought the stolen goods taken in the commission of the offenses. Id. at 102.
Wright testified that he did not confess his guilt of the offenses until after the statute of
limitations expired because he did not want to be convicted of the offenses.5 Wright
admitted that he had been convicted of several felonies and crimes involving dishonesty
and had been a drug user. Id. at 100, 118. Wright further admitted that he and Petitioner
had been friends since approximately 1987. Id. at 103. Wright testified that he would have
admitted his guilt of the offenses at an earlier date, after the statute of limitations had
expired, had he been contacted by anyone about the matter. Id. at 105.
Petitioner
likewise testified that he did not commit the offenses in case number 1991-CF-9417. (Doc.
No. 6-4 at 13.) Petitioner admitted, however, that he knew that Wright had committed the
offenses at the time he entered his plea but thought entering the plea would be in his best
interest given the number of charges and potential sentences he was facing. Id. at 12-13.
After review of the evidence, the Court concludes that Wright’s testimony and
affidavit are not reliable. First, Wright waited approximately thirteen years after the
offenses to confess his guilt. See, e.g., Milton, 347 F. App’x at 531-32 (noting that reliability
of affidavits may be called into question by substantial delay in submission of affidavits
4
Skylarks were produced by Buick. The charging information reflects that the
vehicle stolen in case number 1991-CF-9417 was a Dodge. (Doc. No. 6-1 at 26.)
Furthermore, in pleadings filed in the state court, Petitioner referred to the vehicle taken
in case number 1991-CF-9417 as a Dodge Sprint. (Doc. No. 6-4 at 120.)
5
The statute of limitations for the offenses expired in July 1995 according to the state
court.
7
from time of offenses); see also Schlup, 513 U.S. at 332 (noting that “the court may consider
how the timing of the submission and the likely credibility of the affiants bear on the
probable reliability of that evidence”). Furthermore, Wright admitted that he has been
convicted of numerous felonies and crimes of dishonesty and had been a drug user, which
further calls his credibility into question. Additionally, Wright did not identify the correct
vehicle that was stolen in case number 1991-CF-9417. Finally, Wright admitted that he and
Petitioner had been friends for years, a potential motive for providing untruthful
testimony. See, e.g., Milton, 347 F. App’x at 532 (reasoning reliability of affiants was called
into question because they were friends or family members of the petitioner). For all of
these reasons, the Court determines that the evidence relied on by Petitioner to support his
actual innocence claim is not reliable.
Moreover, the Court notes that Petitioner admitted that he knew when he entered
his plea that Wright had committed the offenses. As such, although Wright may not have
been required to testify at Petitioner’s trial, Petitioner clearly could have testified himself
that Wright committed the offenses had he chosen to proceed to trial. In other words, the
Court questions whether Wright’s subsequent willingness to admit he committed the
offenses can serve to make the evidence “new,” such that it could not have been presented
at trial.
In sum, the Court concludes that Petitioner has not presented new, reliable evidence
demonstrating his actual innocence. Therefore, he does not come under the actual
8
innocence exception, if such an exception exists.6
Any of Petitioner’s allegations that attempt to excuse his failure to file the instant
petition within the one-year period of limitation and that are not specifically addressed
herein have been found to be without merit.
III.
Certificate of Appealability
This Court should grant an application for 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 such a showing “the petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
6
Alternatively, the Court notes that Petitioner’s claim is procedurally barred from
review by this Court as the state court found it to be untimely. Furthermore, even if the
claim was not procedurally barred, a claim of actual innocence based on newly discovered
evidence is not cognizable in habeas proceedings because federal habeas relief is designed
to rectify constitutional violations, rather than factual errors. See Herrera v. Collins, 506 U.S.
390, 390-91 (1993) (“[C]laims of actual innocence based on newly discovered evidence have
never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the course of the underlying state criminal
proceedings.”); Townsend v. Sain, 372 U.S. 293 (1963) (“[T]he existence merely of newly
discovered evidence relevant to the guilt of a state prisoner is not ground for relief on
federal habeas corpus.”); Mize v. Hall, 532 F.3d 1184, 1195 (11th Cir. 2008) (“A claim of
actual innocence is normally used not as a freestanding basis for habeas relief, but rather
as a reason to excuse the procedural default of an independent constitutional claim.”);
Jordan v. Secretary, Dept. of Corrections, 485 F.3d 1351, 1356 (11th Cir. 2007) (“For what it is
worth, our precedent forbids granting habeas relief based upon a claim of actual innocence,
anyway, at least in non-capital cases.”); Drake v. Francis, 727 F.2d 990, 993 (11th Cir. 1984)
(“In order for a claim of newly discovered evidence to justify habeas review, the evidence
must bear on the constitutionality of the defendant’s conviction.”). A review of the record
demonstrates that Petitioner does not contend that a constitutional violation occurred in
the course of his criminal proceedings. Instead, his claim is merely that newly discovered
evidence demonstrates his innocence. Thus, Petitioner’s claim is procedurally barred and
not cognizable in the instant proceeding.
9
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Secretary Department
of Corrections, 568 F.3d 929, 934 (11th Cir. 2009). When a district court dismisses a federal
habeas petition on procedural grounds without reaching the underlying constitutional
claim, a certificate of appealability should issue only when a petitioner shows “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.; Lamarca, 568 F.3d at 934.
However, a
prisoner need not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337
(2003).
Petitioner has not demonstrated that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. Moreover, Petitioner cannot
show that jurists of reason would find this Court's procedural rulings debatable. Petitioner
has failed to make a substantial showing of the denial of a constitutional right. Thus, the
Court will deny Petitioner a certificate of appealability.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
This case is DISMISSED WITH PREJUDICE.
2.
Petitioner is DENIED a Certificate of Appealability.
3.
The Clerk of the Court shall enter judgment accordingly and is directed to
close this case.
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DONE AND ORDERED in Orlando, Florida, this 19th day of December, 2011.
Copies to:
OrlP-1 12/19
David MacFarland
Counsel of Record
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