VREELAND v. PRUITT

Filing 22

ORDER ACCEPTING REPORT AND RECOMMENDATION - The 17 report and recommendation is accepted and adopted, over Petitioner's objections, as this Court's opinion. The Clerk shall enter judgment stating, "The Respondent 's motion to dismiss, ECF No. 10 , is GRANTED. The petition for writ of habeas corpus, ECF No. 1 , is DISMISSED as untimely." A certificate of appealability is DENIED. The Clerk shall close the file. Signed by CHIEF JUDGE MARK E WALKER on 11/18/2020. (cle)

Case 4:19-cv-00529-MW-EMT Document 22 Filed 11/18/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
DELMART E.J.M. VREELAND, II,
Petitioner,
v.

Case No.: 4:19cv529-MW/EMT

WARDEN SCOTT PRUITT,
Respondent.
______________________________/
ORDER ACCEPTING REPORT AND RECOMMENDATION
This Court has considered, without hearing, the Magistrate Judge’s Report
and Recommendation, ECF No. 17, and has also reviewed de novo Petitioner’s
objections to the report and recommendation, ECF No. 21. This Court writes simply
to address one argument Petitioner raises in his objections; namely, the issue of
actual innocence—something that, if proved, “serves as a gateway through which a
petitioner may pass whether the impediment [to habeas relief] is a procedural bar . .
. or. . . . expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S.
383, 386 (2013). “In other words, a credible showing of actual innocence may allow
a prisoner to pursue his constitutional claims . . . on the merits.” Id. at 392.
Here, with respect to Petitioner’s claim of actual innocence, Petitioner asserts
he should have been charged with the more specific crime of passing a worthless
check or obtaining property in return for a worthless check instead of grand theft.

Case 4:19-cv-00529-MW-EMT Document 22 Filed 11/18/20 Page 2 of 2

See, State v. Smith, 578 So. 2d 826, 827 (Fla. 5th DCA 1991) (“Obtaining property
in return for a worthless check will always constitute theft because the more general
theft element subsumes the more specific worthless check element.”) (emphasis in
original). Petitioner’s quarrel with the State Attorney’s charging decision does not
equate to a claim for actual innocence. Accordingly,
IT IS ORDERED:
The report and recommendation is accepted and adopted, over Petitioner’s
objections, as this Court’s opinion. The Clerk shall enter judgment stating, “The
Respondent’s motion to dismiss, ECF No. 10, is GRANTED. The petition for writ
of habeas corpus, ECF No. 1, is DISMISSED as untimely.” A certificate of
appealability is DENIED. The Clerk shall close the file.
SO ORDERED on November 18, 2020.
s/Mark E. Walker
Chief United States District Judge

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