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1

James R. McDonough succeeded James Crosby as Secretary for the Department of Corrections, and is

automatically substituted as Respondent. See Fed. R. Civ. P. 25(d)(1).

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

MILTON R. MURRAH,

Petitioner,

vs. Case No.: 5:03cv140/MMP/EMT

JAMES R. McDONOUGH,1

Respondent.

___________________________________/

ORDER AND

REPORT AND RECOMMENDATION

Petitioner initiated this action by filing a petition for writ of habeas corpus under 28 U.S.C.

§ 2254 (Doc. 1). Respondent filed a response to the petition (Doc. 7), and Petitioner filed a traverse

(Doc. 24).

The matter is referred to the undersigned magistrate judge for report and recommendation

pursuant to 28 U.S.C. § 636 and N.D.Fla. Loc. R. 72.2(b). After careful consideration of all issues

raised by Petitioner, it is the opinion of the undersigned that no evidentiary hearing is required for

the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the opinion

of the undersigned that the pleadings and attachments before the court show that the petition should

be denied.

I. BACKGROUND AND PROCEDURAL HISTORY

Petitioner does not dispute the procedural background as set forth by Respondent (see Doc.

24). Following a jury trial in the Circuit Court in and for Hamilton County, Florida, Case No. 93-

148-CF, Petitioner was found guilty of two counts of lewd and lascivious conduct and two counts

of capital sexual battery (Doc. 7, Ex. B). He was sentenced to terms of ten years of incarceration

on the lewd and lascivious counts and terms of life imprisonment on the sexual battery counts (id.,

Ex. C). Petitioner appealed his conviction and sentence to the Florida First District Court of Appeals

(“First DCA”). On May 21, 1998, the First DCA affirmed per curiam without opinion (id., Exs. D,

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E). Murrah v. State, 719 So.2d 291 (Fla. 1st DCA May 21, 1998) (Table). Petitioner did not seek

certiorari review by the Florida Supreme Court or the United States Supreme Court.

On February 25, 1999, Petitioner filed with the trial court a motion for post-conviction relief

pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Doc. 7, Ex. O at 1-14). The trial

court denied the motion on July 23, 1999 (id. at 15-16). Petitioner appealed the decision to the First

DCA. The appellate court reversed and remanded to the trial court (id. at 27-32). Murrah v. State,

773 So.2d 622 (Fla. 1st DCA Dec. 12, 2000). Upon remand, the trial court again denied the postconviction motion (id. at 33). On October 31, 2000, Petitioner filed a motion for belated appeal of

the order denying his motion for postconviction relief (Doc. 7, Ex. F). The First DCA granted the

motion (Doc. 7, Exs. G, H). Murrah v. State, 806 So.2d 594 (Fla. 1st DCA Feb. 1, 2002). The

appellate court affirmed the decision denying Petitioner’s post-conviction motion, with the mandate

issuing April 7, 2003 (Doc. 7, Exs. K, N). 

Petitioner filed the instant habeas action on May 27, 2003 (Doc. 1 at 7). Petitioner asserts

a single ground for relief:

Ground one: The Petitioner has obtained newly discovered evidence which

was not available at trial and establishes Petitioner’s actual innocence, and that his

conviction was obtained in violation of the Due Process Clause (14th Amendment,

U.S. Constitution).

(Doc. 1 at 5.1). In his supporting facts, Petitioner asserts that the State knowingly used perjured

testimony at trial and withheld evidence from the defense, in violation of Giglio v. United States,

405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963) (id. at 5.4). Petitioner contends that even if violations of Giglio and

Brady are not established, his conviction violates due process because he is actually innocent of the

crimes for which he was charged and convicted (id. at 5.6). 

Respondents contend Petitioner failed to exhaust his state court remedies with regard to his

Giglio and Brady claims, as required by 28 U.S.C. § 2254, and Petitioner is now procedurally barred

from raising his claims in the state courts (Doc. 7 at 11-12). Furthermore, to the extent Petitioner

attempts to assert an independent claim of actual innocence based upon newly discovered evidence,

the claim is not cognizable on federal habeas review (id. at 14-15). Moreover, Petitioner has failed

to show that the state court decision denying his claim of newly discovered evidence was contrary

to or an unreasonable application of Supreme Court law (id. at 15-17).

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2

Section 2254 provides, in pertinent part:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted unless it appears that–

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (i) there is an absence of available State corrective process; or

 (ii) circumstances exist that render such process ineffective to protect the rights of the

applicant.

. . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within

the meaning of this section, if he has the right under the law of the State to raise, by any available procedure,

the question presented. 

Case No.: 5:03cv140/MMP/EMT

II. EXHAUSTION AND DEFAULT

It is a long-standing prerequisite to the filing of a federal habeas corpus petition that the

petitioner have exhausted available state court remedies, 28 U.S.C. § 2254(b)(1),2 thereby giving

the State the “‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal

rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (quoting

Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). To

satisfy the exhaustion requirement, the petitioner must “fairly present” his claim in each appropriate

state court, alerting that court to the federal nature of the claim. Duncan, 513 U.S. at 365-66;

O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard, 404 U.S.

at 277-78.

The Supreme Court has offered the following guidance for determining whether a habeas

petitioner has met the “fair presentation” requirement. In Picard v. Connor, the Court held that, for

purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to

a specific federal constitutional guarantee, as well as a statement of the facts which entitle the

petitioner to relief. Picard, 404 U.S. at 277. In announcing that “the substance of a federal habeas

corpus claim must first be presented to the state courts,” id. at 278, the Court rejected the contention

that the petitioner satisfied the exhaustion requirement by presenting the state courts only with the

facts necessary to state a claim for relief.

Additionally, the Court has indicated that it is insufficient to make a general appeal to a

constitutional guarantee as broad as due process to present the “substance” of such a claim to a state

court. In Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982), the habeas petitioner

was granted relief on the ground that a jury instruction violated due process because it obviated the

requirement that the prosecutor prove all the elements of the crime beyond a reasonable doubt. Id.

459 U.S. at 7 (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)).

The only manner in which the habeas petitioner cited federal authority was by referring to a state

court decision in which “the defendant . . . asserted a broad federal due process right to jury

instructions that properly explain state law.” Anderson, 459 U.S. at 7 (internal quotation marks

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3

The petitioner in Duncan raised a federal due process claim in his habeas petition, but had raised only a state

constitutional claim in his state appeal. Presented with a state constitutional claim, the state court applied state law in

resolving the appeal. 

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omitted). The Court expressed doubt that a defendant’s citation to a state-court decision predicated

solely on state law was sufficient to fairly apprise a reviewing court of a potential federal claim

merely because the defendant in the cited case advanced a federal claim. Id., 459 U.S. at 7 and n.3.

Furthermore, the Court clarified that such a citation was obviously insufficient when the record

satisfied the federal habeas court that the federal claim asserted in the cited case was not the same

as the federal claim on which federal habeas relief was sought. Id.

Years later, the Supreme Court readdressed the “fair presentation” requirement in Duncan

v. Henry, 513 U.S. 364, 115 S.Ct. 887. The Duncan Court strictly construed the exhaustion

requirement so as to mandate that, if state and federal constitutional law overlap in their applicability

to a petitioner’s claim, the petitioner must raise his issue in terms of the applicable federal right in

state court in order to obtain federal review of the issue.3 The Supreme Court explained,“[i]f a

habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due

process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal, but

in state court.” Duncan, 513 U.S. at 365-66. Recently, the Supreme Court again focused upon the

requirement of “fair presentation,” holding that “ordinarily a state prisoner does not ‘fairly present’

a claim to a state court if that court must read beyond a petition or a brief (or a similar document)

that does not alert it to the presence of a federal claim in order to find material, such as a lower court

opinion in the case, that does so.” Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1351, 158

L.Ed.2d 64 (2004). The Baldwin Court commented that “a litigant wishing to raise a federal issue

can easily indicate the federal law basis for his claim in a state court petition or brief, for example,

by citing in conjunction with the claim the federal source of law on which he relies or a case

deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’” Id.

Prior to Duncan, the Eleventh Circuit broadly interpreted the “fair presentation” requirement.

See, e.g., Watson v. Dugger, 945 F.2d 367 (11th Cir. 1991) (finding issue to be exhausted when

petitioner argued in state court that trial court had failed to follow state law which required proof

of all elements of the crime, and argued in federal court that this was a due process violation);

Mattox v. Dugger, 839 F.2d 1523 (11th Cir. 1988) (holding that a federal habeas corpus petition

should not be dismissed on grounds of procedural default when a petitioner has previously brought

an issue before a state court alleging only state law violations, when such a claim is equally

supported by federal law, and the state cites such federal law in support of its position). However,

after Duncan, the Eleventh Circuit has taken a more restrictive approach. For example, in Zeigler

v. Crosby, the Circuit Court held that the habeas petitioner failed to “fairly present” his juror

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misconduct claims to the state courts where his brief to the state appellate court did not refer to the

federal constitutional issues raised in his federal habeas petition, and none of the cases cited in his

direct appeal discussed the Federal Constitution. 345 F.3d 1300, 1307 (11th Cir. 2003). The court

specifically noted that the section of the petitioner’s appellate brief which dealt with juror

misconduct contained the words: “Appellant was denied due process and a fair trial. . . .,” which

could be interpreted as asserting a fair trial claim under the Florida Constitution and Florida’s Due

Process Clause. Id. at 1308 n.5. The only cases cited in the discussion of the issue in petitioner’s

state appellate brief were state supreme court cases that made no mention of the United States

Constitution and cited no federal cases. The court concluded that petitioner’s “[c]ursory and

conclusional sentence (unaccompanied by citations to federal law), . . . did not present to the Florida

courts the federal claim asserted to us.” Id. 

An issue that was not properly presented to the state court and which can no longer be

litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred

from federal review. O’Sullivan, 526 U.S. at 839-40, 848. This court will also consider a claim

procedurally defaulted if it was presented in state court and rejected on the independent and

adequate state ground of procedural bar or default. See Coleman v. Thompson, 501 U.S. 722, 734-

35 and n.1, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 (1991); Caniff v. Moore, 269 F.3d 1245, 1247

(11th Cir. 2001) (“[C]laims that have been held to be procedurally defaulted under state law cannot

be addressed by federal courts.”); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998)

(applicable state procedural bar should be enforced by federal court even as to a claim which has

never been presented to a state court); accord Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993);

Parker v. Dugger, 876 F.2d 1470 (11th Cir. 1990), rev’d on other grounds, 498 U.S. 308, 111 S. Ct.

731, 112 L.Ed.2d 812 (1991). However, a petitioner may obtain federal review of his claim if the

state procedural rule is applied in an “arbitrary or unprecedented fashion,” Judd v. Haley, 250 F.3d

1308,1313 (11th Cir. 2001), or in a manifestly unfair manner. Ford v. Georgia, 498 U.S. 411,

424-25, 111 S.Ct. 850, 858, 112 L.Ed.2d 935 (1991); Upshaw v. Singletary, 70 F.3d 576, 579 (11th

Cir. 1995).

To overcome a procedural default, the petitioner must show cause and prejudice or a

fundamental miscarriage of justice in order for the federal habeas court to reach the merits of a

claim. Tower, 7 F.3d at 210; Parker, 876 F.2d 1470. “For cause to exist, an external impediment,

whether it be governmental interference or the reasonable unavailability of the factual basis for the

claim, must have prevented petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467,

497, 111 S. Ct. 1454, 1472, 113 L. Ed. 2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488,

106 S. Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)). Lack of counsel or ignorance of available

procedures is not enough to establish cause. Tower, 7 F.3d at 210. To satisfy the miscarriage of

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justice exception, the petitioner must show that “a constitutional violation has probably resulted in

the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 85,

130 L.Ed.2d 808 (1995). “To establish the requisite probability, the petitioner must show that it is

more likely than not that no reasonable juror would have convicted him.” Schlup, 513 U.S. at 327.

Further:

a substantial claim that constitutional error has caused the conviction of an innocent

person is extremely rare. To be credible, such a claim requires [a] 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.

Within this framework, the court will review Petitioner’s claim.

III. LEGAL ANALYSIS

Respondent contends Petitioner failed to exhaust his federal claims in the state courts. In

response, Petitioner admits that he did not include “the magic words of a due process violation” in

his state post-conviction motion in which he asserted his claim of actual innocence based upon

newly discovered evidence (Doc. 24 at 3). Additionally, he concedes he did not cite Brady or

Giglio, or any other federal law, in his state post-conviction motion because Rule 3.850 provides that

defendants state only facts, without citing legal authority, and the state courts are presumed to know

the law and apply it to the facts (id.). 

Petitioner presented his claim of newly discovered in the state court as follows:

Ground Five: Trial court should conduct a hearing into newly discovered

evidence which was not available at trial.

On March 20, 1996, trial court judge issued an order to appoint Attorney

K.N. “Sonny” Scaff, Jr., to review a videotape of a recantation, of the testimony of

the state’s two main witnesses, who were the alledged [sic] victims in this case. A

copy of the recantation tape was furnished to the trial court, the chief judge of this

circuit, and defense counsel.

This tape was made after the jury findings and during defendant’s direct

appeal. Present during the taped session were the following persons:

1. Mr. William Mitchell (family friend)

P.O. Box. 1326

Jasper, FL 32052

2. Mr. Wayne Mitchell (family friend)

Jasper, FL

3. Mr. John Murrah (brother of victims)

712 W. Jefferson St. #20

Brooksville, FL 34601

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4. Mr. Steven (Murrah) Densmore (brother of victims)

Live Oak, FL

5. Caroline Murrah (mother of victims)

Address unknown

6. Two witnesses, the alleged victims

J.M and M.M.

On May 8, 1996, the attorney appointed by this court recommended this

honorable court to “immediately grant Mr. Murrah (the defendant) a new trial.” The

very least, an evidentiary hearing into this situation.

(Doc. 7, Ex. O at 11-12). Petitioner submitted the videotape of the alleged recantation in support

of his claim.

Initially, Petitioner’s contention that he believed he should include only facts, and not legal

authority, to support his claims in his state post-conviction motion is belied by the fact that he

referred to legal authority in his other grounds for relief. For example, in his other grounds,

Petitioner referred to his right to “a competent and constitutionally effective attorney,” (see Doc. 7,

Ex. O at 4), the “Frye” rule, (id. at 5), and the legal rule that motions for judgment of acquittal be

specific as to the grounds for the motion (id. at 7). Nowhere in Petitioner’s state post-conviction

motion did he mention facts suggesting that the State withheld evidence from the defense or that the

prosecutor knowingly presented false testimony, and he in no way referred to the federal

constitutional issues raised in his federal habeas petition. Thus, the undersigned concludes that

Petitioner failed to exhaust his state court remedies with respect to his claims that the State withheld

evidence from the defense and knowingly presented false testimony. As any attempt on Petitioner’s

part to return to state court to raise these claims would be barred as untimely and successive,

Petitioner is deemed to have procedurally defaulted these claims. 

Petitioner does not allege that an external impediment prevented him from presenting the

federal constitutional nature of his claim to the state court when he had the opportunity to do so.

Indeed, the fact that the videotaped recantation was produced while his direct appeal was pending

shows that the factual basis for his claim was available during the direct appeal and post-conviction

process. Thus, Petitioner cannot meet the cause and prejudice standard to overcome his default.

Although Petitioner contends he is entitled to review under the “fundamental miscarriage of justice”

exception to the procedural bar by relying on the alleged “newly discovered evidence” of the

victims’ recantation, he falls far short of making the showing required by Schlup. 

Petitioner alleges that while the direct appeal of his conviction was pending, the victims, his

twin daughters, recanted their abuse allegations, stating: (1) Petitioner never “molested” them, (2)

child welfare workers told them that if they (the victims) stated that Petitioner molested them, they

would be taken to Disney World, Six Flags, and any place they wanted to go for a week long

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4

Florida Statutes section 92.50 provides, in relevant part:

92.50. Oaths, affidavits, and acknowledgments; who may take or administer; requirements

(1) In this state.--Oaths, affidavits, and acknowledgments required or authorized under the laws of

this state (except oaths to jurors and witnesses in court and such other oaths, affidavits and

acknowledgments as are required by law to be taken or administered by or before particular officers)

may be taken or administered by or before any judge, clerk, or deputy clerk of any court of record

within this state, including federal courts, or before any United States commissioner or any notary

public within this state. The jurat, or certificate of proof or acknowledgment, shall be authenticated

by the signature and official seal of such officer or person taking or administering the same; however,

when taken or administered before any judge, clerk, or deputy clerk of a court of record, the seal of

such court may be affixed as the seal of such officer or person.

5

Petitioner states that Caroline Murrah, the mother of the victims, and John Murrah, a brother of the victims,

were present during the videotape, however, the transcript shows that neither of those persons was present (Doc. 22,

Transcript at 2, 25-26).

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vacation, and they would get anything they wanted, (3) child welfare workers told them that if they

were lying, they (the victims) would be put in jail, (4) when they were first questioned by child

welfare workers, they denied that Petitioner molested them, and (5) the reason they told child

welfare workers that Petitioner molested them was so the workers would quit “bothering” them (see

Doc. 22, Transcript of Videotaped Session). The alleged recantations were recorded on a videotape

by a family friend. Respondent submitted the videotape and a transcript thereof to this court (see

Doc. 22).

The videotaped recantation does not bear sufficient indicia of reliability to support a credible

claim of actual innocence. Initially, unlike the victims’ testimony during Petitioner’s trial, there is

no indication that the victims’ statements during the videotaped session were sworn by a person

authorized to administer an oath.4 Also weighing against the reliability of the recantations is the fact

that at least once during the videotaped session, the recorder was turned off and restarted (id. at 26).

Additionally, the session was attended only by persons who the then-14-year-old victims knew were

supportive of Petitioner and disbelieved the sexual abuse allegations. The videotaped session was

conducted by Mr. William Mitchell, who Petitioner identifies as a “family friend.” Also present

were Mr. Mitchell’s brother, who Petitioner also identifies as a “family friend,” the victims’ brother,

Steve Densmore, who testified for the defense at Petitioner’s trial, and Steve Densmore’s wife, Rose

Densmore (id. at 2, 25-26).5

 

Petitioner mentioned Mr. Mitchell in his trial testimony. At the time of trial, Petitioner had

been detained for approximately twenty-two months (Doc. 7, Ex. O at 522). Petitioner testified that

during his incarceration, he became an “outside trustee” and worked for Mr. Mitchell for

approximately a year doing maintenance work on county buildings (id. at 523-24). He testified that

prior to his incarceration, he worked at a feed mill (in the videotaped session, Mr. Mitchell referred

to a time when Petitioner “worked for me some at the mill”) (id. at 516). The transcript of the

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videotaped session conducted by Mr. Mitchell shows that the victims remembered seeing Mr.

Mitchell at an apartment where they lived with Petitioner during the time of the abuse (Doc. 22,

Transcript at 2-3). During the videotaped session, Mr. Mitchell described his longstanding

relationship with Petitioner and clearly indicated his belief that Petitioner did not commit the sexual

offenses of which he was accused and convicted, as evidenced by the following statement at the end

of the session:

MR. MITCHELL: Well, I am glad you all have come forth. Like I said,

I worked with your dad for over a year now or nearly two years and he is the

meekest, mildest, gentle person I have had to deal with of all the trustees that come

up to the courthouse and work with me. I never, ever had to worry about your father.

I never had to look over my shoulder to see if he was going to leave, I never

had to worry about him. Whatever he told me, I am giving this as a testimony to

Milton. I knew him before, you all remember he worked for me some at the mill and

he worked for me, like I say, for the County, I guess over a year, he worked with me,

possibly two years, I can’t be precise about that. Every day even on weekends. I got

him out seven days a week and I got to know your dad real well and then this came

down if anybody is interested, this is why I am still involved in it, this is why I am

interested in seeing that the truth is being told. I could not believe that this mild

mannered man could possibly do these horrible things that he has been accused of.

So that is why I am asking you all to make this statement.

(id. at 31). From this statement, as well as Mr. Mitchell’s statement at the beginning of the

videotape, “What I asked you all, the story that you all told concerning Milton [Petitioner], . . .

would you all like to recant it, or would you all like to tell us another story?” (id. at 3), it is clear that

Mr. Mitchell asked the victims to make the videotaped statement. 

Steve Densmore, the victims’ brother, testified as a defense witness at Petitioner’s trial. He

testified that he lived with Petitioner and the victims when the alleged abuse occurred (Doc. 7, Ex.

O at 477-78). He stated his bedroom shared a common wall with the victims’ bedroom, and if

someone tapped on the wall in one bedroom, you could hear it in the other (id. at 477). He also

stated his bedroom door was two or three feet from the roll-away bed his parents slept on in the

livingroom, and when someone was outside his bedroom door, he could hear them speak (id. at 478).

Steve testified that despite the victims’ testimony that they screamed when Petitioner molested them,

he never heard them scream (id. at 481). Additionally, he testified he never saw Petitioner

inappropriately touch the victims (id. at 479). Steve also contradicted the testimony of the victims

that he knew about the abuse (id. at 475, 241-42, 348). 

The fact that the victims were only 14 years old at the time of the videotaped session, that

they were questioned by someone who they knew disbelieved their abuse allegations, and that the

other persons in attendance had testified in support of Petitioner, weighs against the reliability of

the recantations. In light of the unreliable circumstances of the videotaped recantation, the

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undersigned concludes that Petitioner has failed to make a colorable showing of actual innocence.

Therefore, this court is precluded from reviewing Petitioner’s Brady and Giglio claims. 

Additionally, to the extent Petitioner argues that his claim of actual innocence based upon

newly discovered evidence is subject to federal habeas review independent of any claim of

constitutional error, his contention is without merit. In addressing a similar claim of actual

innocence, the United States Supreme Court articulated the context in which such claims come

before a federal habeas court:

A person when first charged with a crime is entitled to a presumption of innocence,

and may insist that his guilt be established beyond a reasonable doubt. Other

constitutional provisions also have the effect of ensuring against the risk of

convicting an innocent person. . . . All of these constitutional safeguards, of course,

make it more difficult for the State to rebut and finally overturn the presumption of

innocence which attaches to every criminal defendant. But we have also observed

that “[d]ue process does not require that every conceivable step be taken, at whatever

cost, to eliminate the possibility of convicting an innocent person.” Patterson v. New

York, 432 U.S. 197, 208, 97 S.Ct. 2319, 2326, 53 L.Ed.2d 281 (1977). To conclude

otherwise would all but paralyze our system for enforcement of the criminal law.

Once a defendant has been afforded a fair trial and convicted of the offense

for which he was charged, the presumption of innocence disappears.

. . . .

Claims 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 underlying state criminal proceedings. . . .

This rule is grounded in the principle that federal habeas courts sit to ensure that

individuals are not imprisoned in violation of the Constitution -- not to correct errors

of fact.

. . . .

Few rulings would be more disruptive of our federal system than to provide

for federal habeas review of freestanding claims of actual innocence.

Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993) (citations

omitted).

In the instant case, Petitioner argues he is entitled to habeas relief because newly discovered

evidence shows that his conviction is factually incorrect. However, the fundamental miscarriage

of justice exception applies only where Petitioner “supplements his constitutional claim with a

colorable showing of factual innocence,” not where Petitioner makes a freestanding claim of actual

innocence. Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)

(plurality opinion) (emphasis added); see also Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir.

2002) (petitioner alleged no independent constitutional violation relating to trial witness’

recantation, therefore, he was not entitled to federal habeas relief). Thus, to the extent Petitioner

asserts a claim of actual innocence independent of any claim of constitutional error that occurred

at his trial, he has failed to state a cognizable claim.

For the aforementioned reasons, it is ORDERED:

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The clerk of court is directed to change the docket to reflect that James R. McDonough is

substituted for James Crosby as Respondent

And it is respectfully RECOMMENDED:

That the petition for writ of habeas corpus (Doc. 1) be DENIED. 

At Pensacola, Florida, this 6th day of March 2006.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within ten

(10) days after being served a copy thereof. A copy of objections shall be served upon the

magistrate judge and all other parties. Failure to object may limit the scope of appellate

review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701

(11th Cir. 1988).

Case 5:03-cv-00140-MP-EMT Document 30 Filed 03/06/06 Page 11 of 11