Eleventh Circuit affirms denial of Thomas Overton's Brady claim
On Thursday, the U.S. Court of Appeals for the Eleventh Circuit issued a per curiam substituted opinion affirming the Southern District of Florida’s decision denying Overton’s habeas petition.
Relevant Background
Thomas Overton was convicted of and sentenced to death to murdering Susan Michelle MacIvor and Michael MacIvor in 1991. The primary evidence at trial was DNA evidence obtained when Overton was in custody in late 1996 on other charges and “cut himself with a razor blade and the towel that he used to stop the bleeding was turned over to investigators.” The DNA was used to match DNA to the crime scene.
Before trial, “Overton’s counsel attempted to get the DNA evidence excluded. Trial counsel filed multiple motions for exclusion of the evidence and moved for a Frye hearing . . . to require the State to establish the DNA evidence’s admissibility.” Further, Overton’s counsel argued that all “inculpatory DNA evidence derived from the bedsheet cuttings” should be excluded because “the State ‘taint[ed]’ the evidence when it impermissibly contacted the defense’s expert and had the expert run additional tests on the evidence without the consent of Overton’s counsel.” Overton’s counsel also “argued that the DNA evidence was inadmissible because it was not scientifically reliable.”
The Court granted Overton’s request for a Frye hearing. “[W]hen the hearing began as scheduled, four days before jury selection, defense counsel told the court that they were not prepared and could not meaningfully challenge the information the State provided as to the STR testing performed by Bode. Defense counsel requested to continue the Frye hearing. The district court denied the request and proceeded with the hearing.” At the hearing, “the State presented expert testimony to show that both RFLP and STR testing were generally accepted methods of DNA analysis and that the testing had been properly conducted in Overton’s case. Three experts testified for the State . . . . Overton’s counsel did not meaningfully question the State’s experts and did not present any witnesses of their own.” Ultimately, the trial court admitted the RFLP and STR DNA testing results. The State presented the DNA to the jury.
Overton was convicted. The jury recommended death for Susan’s murder by a vote of 9 to 3 and for Michael’s murder by a vote of 8 to 4. His sentences of death became final on May 13, 2002—less than a month before the retroactivity cutoff for Hurst relief.1
Federal Habeas Claims
After unsuccessfully litigating postconviction claims, Overton filed a federal habeas petition in the U.S. District Court for the Southern District of Florida. Overton claimed that his “trial counsel was ineffective in failing to prepare for and participate adequately in a preliminary hearing and that the State violated Brady v. Maryland by failing to disclose an investigator’s history of sloppy evidence collection practices.”
The Southern District of Florida concluded that Overton’s petition was untimely.2 Alternatively, the Court concluded that Overton’s claims failed on their merits, determining that the Florida Supreme Court reasonably rejected Overton’s ineffective assistance of counsel and Brady claims. The Southern District of Florida declined to issue Overton a certificate of appealability, but the U.S. Court of Appeals for the Eleventh Circuit issued Overton a certificate on three issues: (1) “the timeliness of Overton’s federal habeas petition,” (2) “Overton’s claim that his trial counsel was ineffective for failing to prepare adequately for and present a challenge to the State’s DNA evidence at Frye hearing,” and (3) “Overton’s claim that the State violated Brady by failing to disclose Pope’s sloppy evidence handling in other cases.”
On Thursday, the U.S. Court of Appeals for the Eleventh Circuit issued a per curiam substituted opinion affirming the Southern District of Florida’s decision denying Overton’s habeas petition. On federal habeas, the Court reviews the last state court decision on the merits, which is the Florida Supreme Court’s 2007 decision in Overton’s case.
First, the Court overturned the Southern District’s decision that Overton’s petition was untimely, writing:
The judgment in his case became final on May 13, 2002, when the Supreme Court of the United States denied his petition for a writ of certiorari from the denial of his direct appeal. That started the clock on AEDPA’s one-year statute of limitations, giving Overton until May 13, 2003 to file a federal habeas petition or a state postconviction motion that would toll the federal limitations period. 28 U.S.C. § 2244(d). He filed a first Rule 3.851 motion on April 30, 2003, 13 days before the federal statute of limitations expired. Although that motion did not comply with the rule—and the following one did not, either—the state postconviction court twice gave Overton the opportunity to file a compliant motion. He timely filed one on October 30, 2003. Under Bates, this compliant motion related back to the April 30 motion, such that it was both “properly filed” and “pending” from April 30, 2003 until October 31, 2013. See Bates, 964 F.3d at 1328. At that point, Overton still had 13 days remaining to file a federal habeas petition. He filed eight days later, on November 8, 2013. That petition was timely filed under 28 U.S.C. § 2244(d). We thus reject the State’s argument that Overton’s federal habeas petition was filed too late.3
On the merits, the Eleventh Circuit agreed with the Southern District that Overton is not entitled to relief. First, Overton claimed ineffective assistance of counsel for his trial counsel’s failure to participate in the Frye hearing in his case. The Eleventh Circuit determined that even if Overton could establish error, he could not establish prejudice because the Florida Supreme Court determined that the evidence would have still been admissible here despite “defects in the evidence’s chain of custody.”
Overton also raised a Brady claim related to undisclosed evidence of the State’s expert mishandling evidence in another case. He argued “that because the evidence would have demonstrated a pattern of mishandling, would have impeached the State’s star witness, and was of a different nature than the impeachment evidence in this case, it was material. Likewise, he contends that the aggregate effect of the suppressed evidence made the evidence material because his trial counsel, armed with the suppressed evidence, would have been able to draw concessions from several of the state’s witnesses at trial.”
Again, the Eleventh Circuit determined that the case failed on the prejudice prong:
Here, the undisclosed information showing Pope’s improper handling of DNA evidence in Allen was cumulative of the evidence of his similar DNA mishandling in this case. Just as in Turner, “it would not have surprised the jury to learn” of Pope’s mishandling of DNA evidence in another case because of defense counsel’s impeachment of Pope with his mishandling of the DNA evidence in this case. 582 U.S. at 327. And the evidence of his mishandling of DNA in Overton’s case was likely more compelling than evidence of Pope’s similar conduct in another case. Id. Nor can we agree with Overton that the aggregate effect of the evidence and the evidence’s “different nature” made it material. Reply Br. 37. Again, Pope was impeached with evidence of his “sloppy evidence collection practices” in this case. Appellant’s Br. 101. We are un-convinced that if additional state’s witnesses were confronted on cross examination with the suppressed information it would have “put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 433. Therefore, we cannot say that the Florida Supreme Court unreasonably applied Brady in concluding that the undisclosed evidence was cumulative of Pope’s impeachment at trial and immaterial for the purposes of Overton’s Brady claim.
The full opinion can be downloaded here.
The panel was Judges Jordan, Pryor, and Brasher.
For a full explanation of Hurst, see the five-part TFDP series available here.
Overton v. Jones (Overton III), 155 F. Supp. 3d 1253, 1267–70 (S.D. Fla. 2016).
(Citation omitted.)