Caldwell v. McCabe et al

Filing 37

ORDER granting 29 --motion to dismiss; directing the Clerk to ENTER A JUDGMENT for the defendants and to CLOSE the case. Signed by Judge Steven D. Merryday on 10/7/2013. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

CRAIG CALDWELL,
Plaintiff,
v.

CASE NO. 8:11-cv-841-T-23AEP

BERNIE McCABE, State Attorney for
the Sixth Judicial Circuit Court of Florida,
Defendant.
/

ORDER
Caldwell pleaded guilty to first degree murder and serves life imprisonment.
Caldwell’s civil rights complaint, filed under 42 U.S.C. § 1983, seeks to require
McCabe, the State Attorney for the Sixth Judicial Circuit Court for Florida, to
conduct DNA testing on crime scene evidence, specifically his co-defendant’s tennis
shoes and the string utilized to strangle the victim. An earlier motion to dismiss
(Doc. 15) was denied without prejudice (Doc. 21) because the motion failed to
address both Supreme Court and circuit court decisions that control this action.
McCabe again moves to dismiss (Doc. 29) the complaint under Rule 12(b)(6),
Federal Rules of Civil Procedure. Notwithstanding Caldwell’s opposition (Doc. 30),
the motion to dismiss warrants granting.

In 1988 Caldwell pleaded guilty to assisting in a murder and in 1989 he was
sentenced to life imprisonment. The conviction and sentence were affirmed on direct
appeal. Caldwell v. State, 561 So. 2d 1153 (Fla. Dist. Ct. App. 1990). Caldwell was
unsuccessful in challenging his conviction and sentence both in a state motion for
post-conviction relief and in a federal petition for the writ of habeas corpus. Caldwell
v. Sec’y, Dep’t of Corr., 8:94-cv-317-T-25TGW. Approximately fifteen years later
Caldwell unsuccessfully moved for DNA testing under Rule 3.853, Florida Rules of
Criminal Procedure.
In this federal civil rights action Caldwell challenges the constitutionality of
Rule 3.853 and Section 925.11, Florida Statutes. In his amended complaint (Doc. 13
at 3) Caldwell contends that he “is being denied Due Process by having to prove his
innocence to receive DNA testing where he pleaded guilty . . . but the pleading
standard(s) are constitutionally flawed under § 925.111, Florida Statutes, Fla. R.
Crim. P. 3.853, and case law decisions construing the statute and rule in light of
guilty pleas.” Similarly, in opposing the motion to dismiss (Doc. 30 at 3) Caldwell
contends that Florida’s statute and rule “offends the due process clauses contained in
the federal constitution in relation to the pleading standard to petition for DNA
testing in Florida state courts for criminal defendants who pleaded guilty or nolo
contendere.”
In opposing the motion to dismiss Caldwell clarifies that he asserts no
substantive due process right to DNA testing (Doc. 30 at 4), a claim that would fail.
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See District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009)
(“[T]here is no . . . substantive due process right” to DNA testing.); Skinner v. Switzer,
___ U.S. ___, 131 S. Ct. 1289, 1299 (2011) (“Osborne has rejected substantive due
process as a basis for [DNA testing] claims.”); Alvarez v. Att’y Gen., 679 F.3d 1257,
1261 (11th Cir. 2012) (citing Osborne and Skinner). Caldwell also clarifies that he seeks
no review of the state court’s rejection of his motion for DNA testing, another claim
that would fail. See Exxon Mobile Corp. v. Saudi Basic Industries Corp., 544 U.S. 280,
284 (2005) (“The Rooker–Feldman doctrine, we hold today, is confined to cases of the
kind from which the doctrine acquired its name: cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court review and rejection of
those judgments.”); Skinner v. Switzer, ___ U.S. ___, 131 S. Ct. 1289, 1297 (2011)
(“We held, in both [Rooker and Feldman], that the District Courts lacked
subject-matter jurisdiction over such claims, for 28 U.S.C. § 1257 <vests authority to
review a state court’s judgment solely in this Court.’”).
In Florida a defendant is not unduly restricted from testing DNA material long
after a conviction is final. See Alvarez v. Att’y Gen., 679 F.3d 1257, 1266 (11th Cir.
2012) (“Florida’s procedures are in many ways more favorable to a petitioner seeking
DNA access than the Alaska or federal statutes . . . .”). Section 925.11(1) allows a
convicted defendant to move for an order to require testing of DNA evidence “at any
time following the date that the judgment and sentence in the case becomes final.”
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Rule 3.853(d) also places no deadline to seek testing after a judgment and sentence
become final. Additionally, a defendant who pleads either guilty or nolo contendre has
the same rights under the statute as a defendant who unsuccessfully contested his
charges. Florida law does not, however, grant unfettered access to DNA testing.1
Caldwell’s constitutionality challenge to Rule 3.853 and Section 925.11, as
explained in Skinner, 131 S. Ct. at 1298, is not barred by the Rooker-Feldman doctrine.
Skinner does not challenge the adverse C[ourt of] Criminal]
A[ppeals] decisions themselves; instead, he targets as
unconstitutional the Texas statute they authoritatively construed.
As the Court explained in Feldman, 460 U.S., at 487, 103 S. Ct.
1

Rule 3.853(b) identifies six pleading requirements for obtaining DNA testing.

The motion for post-conviction DNA testing must be under oath and must include
the following:
(1) a statement of the facts relied upon in support of the motion, including a
description of the physical evidence containing DNA to be tested and, if known, the
present location or last known location of the evidence and how it originally was
obtained;
(2) a statement that the evidence was not previously tested for DNA, or a statement
that the results of previous DNA testing were inconclusive and that subsequent
scientific developments in DNA testing techniques likely would produce a definitive
result establishing that the movant is not the person who committed the crime;
(3) a statement that the movant is innocent and how the DNA testing requested by
the motion will exonerate the movant of the crime for which the movant was
sentenced, or a statement how the DNA testing will mitigate the sentence received by
the movant for that crime;
(4) a statement that identification of the movant is a genuinely disputed issue in the
case and why it is an issue or an explanation of how the DNA evidence would either
exonerate the defendant or mitigate the sentence that the movant received;
(5) a statement of any other facts relevant to the motion; and
(6) a certificate that a copy of the motion has been served on the prosecuting
authority.
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1303, and reiterated in Exxon, 544 U.S., at 286, 125 S. Ct. 1517, a
state-court decision is not reviewable by lower federal courts, but a
statute or rule governing the decision may be challenged in a
federal action. Skinner’s federal case falls within the latter
category. There was, therefore, no lack of subject-matter
jurisdiction over Skinner’s federal suit.

Caldwell asserts a constitutional challenge to the statute and seeks no review of the
state court’s judgment. As a consequence, McCabe’s reliance on Alvarez to dismiss
this action based on the Rooker-Feldman doctrine is misplaced because Carl Alvarez’s
“as-applied procedural due process claim plainly and broadly attacks the state court’s
application of Florida’s DNA access procedures to the facts of his case; notably, it
does not challenge the constitutionality of those underlying procedures.” 679 F.3d at
1263 (italics original). Nevertheless, analysis in Alvarez, aside from the Rooker-Feldman
doctrine, disposes of Caldwell’s claims.
In rejecting Carl Alvarez’s alternative claim that Rule 3.853 violates due
process, Alvarez finds that “Florida’s post-conviction DNA access procedures plainly
do not offend any principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental, nor do they transgress any recognized
principle of fundamental fairness in operation.” 679 F.3d at 1266. The full analysis,
which is directly applicable to Caldwell’s claim of facial unconstitutionality, is as
follows (679 F.3d at 1266) (italics original):
Florida’s procedures are in many ways more favorable to a
petitioner seeking DNA access than the Alaska or federal statutes,
see generally Alaska Stat. § 12.72.010 et seq.; 18 U.S.C. § 3600—both
of which the Supreme Court endorsed in Osborne. Osborne, 129 S.
Ct. at 2316–17 (noting that “the federal statute is a model for how
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States ought to handle the issue” of post-conviction DNA testing);
id. at 2320 (holding that there was “nothing inadequate about the
procedures Alaska has provided to vindicate its state right to postconviction relief in general, and nothing inadequate about how
those procedures apply to those who seek access to DNA
evidence”); see also Cunningham, 592 F.3d at 1263 (“Osborne . . .
invites . . . a comparative approach, describing key elements of
Alaska’s process as both ‘similar’ to other state and federal statutes
and also ‘not inconsistent’ with fundamental fairness.”).
Thus, for example, unlike the Alaska and federal statutes at issue
in Osborne, Florida’s procedures explicitly provide for the
possibility of a hearing on a motion to obtain DNA testing. Fla. R.
Crim. P. 3.853(c)(3) (“Upon receipt of the response of the
prosecuting authority, the court shall review the response and enter
an order on the merits of the motion or set the motion for
hearing.”). Also unlike the Alaska and federal statutes, Florida
explicitly provides for the right to appeal an adverse decision on
the motion, Fla. R. Crim. P. 3.853(f), as well as the possibility of a
rehearing in the trial court, Fla. R. Crim. P. 3.853(e). In addition,
unlike the federal statute, Rule 3.853 does not require that the
applicant’s identity be a disputed issue at trial, allowing instead for
the additional possibility that the DNA evidence will only mitigate
his sentence. Rule 3.853 requires that the motion contain either “a
statement that identification of the movant is a genuinely disputed
issue in the case and why it is an issue or an explanation of how the
DNA evidence would either exonerate the defendant or mitigate the
sentence that the movant received.” Fla. R. Crim. P. 3.853(b)(4)
(emphases added). The federal statute, however, is not phrased in
the disjunctive but rather definitively requires the court to find that,
“[i]f the applicant was convicted following a trial, the identity of
the perpetrator was at issue in the trial.” 18 U.S.C. § 3600(a)(7).
Also unlike the federal statute, Rule 3.853 sets a definitive limit on
the time period within which the government must respond to a
motion seeking post-conviction DNA testing. Rule 3.853 provides
that, if the court finds the motion to be facially sufficient, “the
prosecuting authority shall be ordered to respond to the motion
within 30 days or such other time as may be ordered by the court.”
Fla. R. Crim. P. 3.853(c)(2). The federal statute, on the other
hand, more vaguely provides that, upon receipt of the applicant’s
motion, the court shall “allow the Government a reasonable time
period to respond to the motion.” 18 U.S.C. § 3600(b)(1)(B).
Finally, unlike the federal statute, Rule 3.853 places no time limit
on when a motion for post-conviction DNA testing can be filed.
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Specifically, Rule 3.853 provides that “[t]he motion for postconviction DNA testing may be filed or considered at any time
following the date that the judgment and sentence in the case
becomes final.” Fla. R. Crim. P. 3.853(d) (emphasis added). The
federal statute, on the other hand, does not set a firm deadline but
requires that the motion for post-conviction DNA testing be made
in a “timely fashion.” 18 U.S.C. § 3600(a)(10).
In other respects, Florida’s procedures mirror the federal statute in
the protections afforded applicants. Both provide, for example,
that the government must bear the costs of DNA testing if the
applicant is indigent. 18 U.S.C. § 3600(c)(3)(B); Fla. R. Crim. P.
3.853(c)(6). Similarly, both provide that a court may appoint
counsel to represent an indigent applicant. 18 U.S.C. § 3600(b)(3);
Fla. R. Crim. P. 3.853(c)(4). And like the federal statute, Rule
3.853 places limits on who can conduct the actual DNA testing in
order to ensure the reliability of the process and the results.
Specifically, Rule 3.853 provides that the DNA testing must be
conducted by the Florida Department of Law Enforcement or its
designee. Fla. R. Crim. P. 3.853(c)(7). Upon a showing of good
cause, however, the court may order that the testing be done by
another certified laboratory or agency, if requested by a movant
who can bear the cost of such testing. Id. The federal statute
similarly provides that the DNA testing must be carried out by the
Federal Bureau of Investigation. 18 U.S.C. § 3600(c)(1). If,
however, “the court makes all the necessary orders to ensure the
integrity of the specific evidence and the reliability of the testing
process and test results,” “the court may order DNA testing by
another qualified laboratory.” Id. § 3600(c)(2).
In short, inasmuch as Florida’s post-conviction DNA access
procedures either mirror or are more applicant-friendly than the
Alaska and federal statutes endorsed in Osborne, Florida’s postconviction DNA access procedures plainly do not offend any
principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental, nor do they transgress any
recognized principle of fundamental fairness in operation. See
Osborne, 129 S. Ct. at 2320; cf. Cunningham, 592 F.3d at 1263
(“Alabama’s procedures pass [constitutional] muster if they
compare favorably with Alaska’s.”).

Caldwell unsuccessfully petitioned for DNA testing under Rule 3.853 and
identified a co-defendant’s tennis shoes and the string utilized to strangle the victim
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as the items he wanted tested. Caldwell never identifies how the DNA testing would
exonerate him of either the crime or mitigate his sentence. As a consequence,
Caldwell shows no due process violation because he fails to show that the state is
precluding his presenting an underlying constitutional claim. See Alarvez, 679 F.3d at
1265-66 (italics original) (“Finally, Alvarez argues that the State, by denying him access
to the physical evidence, has effectively deprived him of the opportunity to litigate his
claim, in violation of the Due Process and Equal Protection Clauses of the Fifth and
Fourteenth Amendments. . . . Alvarez has pointed us to no underlying cause of
action that he was prevented from lodging in a court of law. . . . Thus, he has failed
to establish in support of his access to courts claim the necessary prerequisite of an
<actual injury.’”).
Accordingly, the motion to dismiss (Doc. 29) is GRANTED. The civil rights
complaint is DISMISSED. The clerk must enter a judgment for the defendants and
close this case.
ORDERED in Tampa, Florida, on October 7, 2013.

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