Floyd v. Cain

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATIONS 36 . The Court will not issue a certificate of appealability.. Signed by Chief Judge Sarah S. Vance on 12/11/12.(jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JOHN FLOYD

CIVIL ACTION

VERSUS

NO: 11-2819

BURL CAIN, WARDEN

SECTION: R

ORDER & REASONS
John Floyd filed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The Court has reviewed de novo the
petition, the record, the applicable law, the Magistrate Judge’s
Report and Recommendation, and petitioner’s objection. The
Magistrate Judge’s recommended ruling is correct; petitioner’s
federal application is untimely and his objections are without
merit. The Court also agrees with the Magistrate Judge’s ruling
that the matter could be disposed of without an evidentiary
hearing. Accordingly, the Court approves the Report and adopts it
as its opinion.
Some of petitioner’s objections warrant further discussion.

A. Equitable Tolling
Floyd’s first set of objections pertain to the Magistrate’s
decision that petitioner’s intellectual disability does not
provide a basis for equitable tolling. Some courts have held that
an intellectual disability may warrant equitable tolling, see

e.g., Hunter v. Ferrell, 587 F.3d 1304 (11th Cir. 2009);
Bridgewater v. Roe, 100 Fed. App’x 633 (9th Cir. 2004), and the
Fifth Circuit has hinted that it would consider equitably tolling
of the limitations period because of a petitioner’s intellectual
disability. Rivera v. Quarterman, 505 F.3d 349, 355 (5th Cir.
2007) (“The bases for equitable tolling that prompt us to remandin particular the relationship between Rivera’s retardation and
his ability to pursue habeas relief—are made the more compelling
precisely because Rivera has been adjudicated to be retarded.
That is, answering whether Rivera is retarded is logically
antecedent—if not a core element itself—to determining whether
equitable tolling is available”).
The Magistrate Judge, assuming that intellectual disability
is a valid basis for equitable tolling, properly found that
equitable tolling was not warranted in Floyd’s case because his
disability did not prevent him from seeking relief in a timely
manner. See Robinson v. Johnson, NO. 99-40291, 2000 WL 821450, at
*1 (5th Cir. May 31, 2000) (“Robinson was clearly not prevented
by his mental state from seeking state post-conviction
remedies.”). Petitioner disagrees with the Magistrate’s reasoning
that because petitioner was able to write hundreds of letters
requesting help with his conviction, including five hundred to
the Innocence Project, and had access to resources such as inmate

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counsel and others, his mental disability did not prevent him
from timely completing the petition. The Magistrate’s conclusion,
however, is supported by the record and the law. The Magistrate’s
relied on evidence in the record to support the conclusion that
Floyd could have timely filed his petition. See LeTourneau v.
Hickman, 116 Fed. App’x 70, 71 (9th Cir. 2004) (“While the Miller
letter suggests that LeTourneau’s mental handicaps made it more
difficult for him to file a timely petition, the letter does not
suggest that the handicaps made it impossible for him to do
so.”).
Petitioner’s next set of objections relating to Floyd’s
claim of actual innocence and its impact on equitable tolling
were fully addressed by the Magistrate Judge. See Cousin v.
Lensing, 310 F.3d 843, 849 (5th Cir. 2002) (holding that a claim
of actual innocence does not justify equitable tolling). While
dicta in Felder v. Johnson does suggest that a “showing” of
actual innocence could be relevant to equitable tolling, no
showing has been made on this record. Felder v. Johnson, 204 F.3d
168, 171 n.8 (5th Cir. 2001).
Finally, petitioner contends that the cumulative effect of
all of his objections should be considered when deciding
equitable tolling. The magistrate did make a determination on
equitable tolling considering the specific facts of petitioner’s

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case. Even assuming that the cumulative effect of petitioner’s
arguments for equitable tolling could be considered, because the
magistrate considered them meritless, their cumulative effect
would not warrant equitable tolling.

B. 28 U.S.C. § 2244(d)(1)(B)
Petitioner next argues that Subsection B applies because
state action which violate the Constitution or laws of the United
States prevented him from filing a timely petition. The
Magistrate Judge determined that even if a Brady violation could
trigger this subsection, Floyd had access to the allegedly
suppressed materials in 1991 and could have timely filed his
petition.
Floyd’s next argument that the State’s failure to provide
him with assistance to the courts triggers Subsection B because
of his intellectual disability. Petitioner does not provide any
authority supporting this position, and as discussed above,
courts addressing a petitioner’s intellectual disability do so in
the context of equitable tolling and not Subsection B.
Accordingly, he was not prevented from filing his petition
on time.

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C. Subsection D
1. Fingerprint Comparison Evidence
Petitioner’s objections pertaining the failure of the State
to disclose the fingerprint comparison evidence are meritless.
The Magistrate concluded that petitioner had notice of this
evidence and access to this evidence in ample time for him to
file a timely petition.
2. Evidence of the Victim’s “Taste” in Sexual Partners
Petitioner’s next set of objections relate to the disclosure
of an affidavit by John Clegg that allegedly contradicted a
detective’s testimony about the victim’s sexual history. However,
the Magistrate Judge correctly concluded that the new evidence
does not qualify as Brady material because it does not have
impeachment or exculpatory value. It is not necessarily
inconsistent with the testimony of the detective, and its value
is extremely negligible as Clegg’s knowledge of the victim’s
sexual history was, as evidenced by his own statements, very
limited. The evidence was also not Brady material because it was
readily available to the Floyd. Finally, even assuming this
evidence was Brady, Floyd was on notice about the detective’s
report and Clegg’s role in the 1990s. An exercise of due
diligence could have lead Floyd to discover this material and
enabled him to file a timely petition.

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3. DNA Test Results/Psychological Examination Results
Petitioner’s next argues that a claim of actual innocence is
a constitutional violation that can support habeas relief and
therefore new evidence supporting innocence can invoke Subsection
D. As the Magistrate notes, this argument is precluded by
precedent. Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims
of actual innocence based on newly discovered evidence have never
been held to state a ground for federal habeas relief absent an
independent violation occurring in the underlaying state criminal
proceeding.”); Foster v. Thaler, 369 Fed. App’x 598, 601 n.3 (5th
Cir. 2010).
4. Information on the Destruction of Evidence
Petitioner’s claim that the destruction of evidence after
trial could invoke Subsection D fails because habeas proceedings
do not remedy alleged Constitutional violations that occur after
the conviction. See Morris v. Cain, 186 F.3d 581, 585 n.6 (5 th
Cir. 1999) (“[W]e must find constitutional error at the trial or
direct review level in order to issue the writ.”). In addition,
relief under Arizona v. Youngblood, 488 U.S. 51 (1988), is a
trial right and not a post conviction right. Ferguson v. Roper,
400 F.3d 635, 638 (8th Cir. 2005) (“Youngblood state the
applicable constitutional principle when potentially useful
evidence is lost or destroyed before trial.”).

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D. Denial Of Evidentiary Hearing was Appropriate
Finally, because an evidentiary hearing “would likely reveal
nothing more than the record presently indicates and would waste
judicial time and resources,” the Magistrate was correct in
declining to hold an evidentiary hearing. Coker v. Quarterman,
270 Fed. App’x 305, 310 (5th Cir. 2008) (declining to remand a
case to hold an evidentiary hearing on equitable tolling).

E. Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Proceedings
provides that “[t]he district court must issue or deny a
certificate of appealability when it enters a final order adverse
to the applicant. Before entering the final order, the court may
direct the parties to submit arguments on whether a certificate
should issue.” Rules Governing Section 2254 Proceedings, Rule
11(a). A court may only issue a certificate of appealability if
the petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); Rules Governing
Section 2254 Proceedings, Rule 11(a) (noting that 28 U.S.C. §
2253(c)(2) supplies the controlling standard). In Miller-El v.
Cockrell, the Supreme Court held that the “controlling standard”
for a certificate of appealability requires the petitioner to
show that “reasonable jurists could debate whether (or, for that

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matter, agree that) the petition should have been resolved in a
different matter or that the issues presented [are] ‘adequate to
deserve encouragement to proceed further.’” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). With respect to claims denied
on procedural grounds, the petitioner must make a two-part
showing: (1) that “jurists of reason would find it debatable
whether the district court was correct in its procedural ruling,”
and (2) that “jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right.” Johnson v. Quarterman, 483 F.3d 278, 284
(5th Cir. 2007) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)).
Here, Floyd

has not made a substantial showing of the

denial of a constitutional right. Further, the issues would not
engender debate among reasonable jurists.
Accordingly, IT IS ORDERED that John D. Floyd’s petition is
DISMISSED WITH PREJUDICE. The Court will not issue a certificate
of appealability.
New Orleans, Louisiana, this11th day of December, 2012.
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_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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