United States District Court, N.D. Alabama, Northeastern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
November 20, 2017, the magistrate judge filed a report in
which he recommended that the Court dismiss without prejudice
as time barred petitioner Rickey Glenn Langford's 28
U.S.C. § 2244 petition for writ of habeas corpus. (Doc.
12). Mr. Langford filed objections to the report and
recommendation. (Doc. 13).
district court “may accept, reject, or modify, in whole
or part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When
a party objects to a report and recommendation, the district
court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
Id. The Court reviews for plain error proposed
factual findings to which no objection is made, and the Court
reviews propositions of law de novo. Garvey v.
Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see
also United States v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983) (per curiam), cert. denied, 464 U.S. 1050
(1984) (“The failure to object to the magistrate's
findings of fact prohibits an attack on appeal of the factual
findings adopted by the district court except on grounds of
plain error or manifest injustice.”) (internal citation
omitted); Macort v. Prem, Inc., 208 Fed.Appx. 781,
784 (11th Cir. 2006).
objections, Mr. Langford contends that the statutory time bar
contained in 28 U.S.C. § 2244(d) does not apply to
convictions where the underlying court of conviction lacked
jurisdiction. Mr. Langford contends that an illegal search
warrant was obtained to search his residence, causing the
evidence against him to be illegal. Therefore, he argues, the
trial court lost or never had jurisdiction to adjudicate the
drug-trafficking charges on which he was convicted. The Court
is not persuaded by Mr. Langford's argument.
state trial court was not without jurisdiction simply because
a Fourth Amendment search issue existed with respect to
evidence offered in the case. Such Fourth Amendment issues
are usually left to the state court for resolution. See
Stone v. Powell, 428 U.S. 465 (1976). Because there is
no genuine issue concerning the jurisdiction of the court of
conviction, Mr. Langford's objection is without merit.
Langford asserted in h is habeas petition that he is actually
innocent of the charges on which he was convicted, and this
allegation may itself be a basis for avoiding the time bar.
(Doc. 1, p. 12) (citing McQuiggin v. Perkins, 569
U.S. 383 (2013)). As the Supreme Court explained in
We hold that actual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is
a procedural bar, as it was in Schlup and
House, or, as in this case, expiration of the
statute of limitations. We caution, however, that tenable
actual-innocence gateway pleas are rare: “[A]
petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.”
Schlup, 513 U.S., at 329; see House, 547
U.S., at 538 (emphasizing that the Schlup standard
is “demanding” and seldom met). And in making an
assessment of the kind Schlup envisioned, “the
timing of the [petition]” is a factor bearing on the
“reliability of th[e] evidence” purporting to
show actual innocence. Schlup, 513 U.S., at 332.
McQuiggin, 569 U.S. at 386-87 (citing and quoting
Schlup v. Delo, 513 U.S. 298 (1995)). Thus, with a
convincing showing of new evidence proving the petitioner to
be actually innocent, he may avoid the time bar.
Langford has not offered convincing “new
evidence” of actual innocence. At best, he argues that
the evidence presented at trial was not sufficient to show
that he is guilty. This is not an adequate showing of new
evidence of innocence.
[A]s the Schlup decision explains, the gateway
actual-innocence standard is “by no means equivalent to
the standard of Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), ” which governs
claims of insufficient evidence. Id. ., at 330, 99
S.Ct. 2781. When confronted with a challenge based on trial
evidence, courts presume the jury resolved evidentiary
disputes reasonably so long as sufficient evidence supports
the verdict. Because a Schlup claim involves
evidence the trial jury did not have before it, the inquiry
requires the federal court to assess how reasonable jurors
would react to the overall, newly supplemented record.
House v. Bell, 547 U.S. 518, 538 (2006).
courts trust jurors to resolve evidentiary disputes, a
Schlup gateway claim requires more than simply
re-weighing the evidence at trial; it requires new, credible,
and reliable evidence proving the innocence of the petitioner
such that it is more likely than not that no reasonable juror
would convict the petitioner. The Eleventh Circuit Court of
Appeals has explained:
To meet the proper standard, “the 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.” [Schlup], 130 L.Ed.2d at 867
(emphasis added). This showing is more than that showing
required to establish prejudice. Id. The Supreme
Court in Schlup said this about the needed evidence:
“[t]o be credible, such a claim requires petitioner to
support his allegations of constitutional error with new
reliable evidence-whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence-that was not presented at trial.”
Id. at 865.
Kuenzel v. Comm'r, Alabama Dep't of Corr.,
690 F.3d 1311, 1314-15 (11th Cir. 2012) (italics in ...