Furtys v. Dixon
| Decision Date | 08 August 2022 |
| Docket Number | 4:20-cv-355-MW-MJF |
| Parties | DONALD FURTYS, JR., Petitioner, v. RICKY D. DIXON, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
DONALD FURTYS, JR., Petitioner,
v.
RICKY D. DIXON, Respondent.
No. 4:20-cv-355-MW-MJF
United States District Court, N.D. Florida, Tallahassee Division
August 8, 2022
REPORT AND RECOMMENDATION
Michael J. Frank, United States Magistrate Judge
Petitioner Donald Furtys, proceeding pro se, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. Respondent (“the State”) answered, providing relevant portions of the state court record. Doc. 10. Petitioner replied. Doc. 20. Petitioner now seeks to “supplement” Ground One of his petition based on “newly discovered evidence” in the form of an affidavit from an uncalled witness. Doc. 27 (Proposed Suppl. Pet.); Doc. 28 (Mot. to Suppl.). Petitioner asks this court to stay this proceeding pending exhaustion of this “supplemental” claim in state court. Doc. 29.
The undersigned concludes that no evidentiary hearing is required for the disposition of this matter, and that Petitioner is not entitled to habeas relief. The undersigned further concludes that Petitioner's motion to supplement his petition
should be denied as futile. Correspondingly, Petitioner's motion to stay this proceeding pending exhaustion of the proposed supplemental claim should be denied.[1]
I. Background Facts and Procedural History[2]
On July 18, 2009, Petitioner and his then-wife, Anna Furtys, adopted two girls from Latvia-L.F. and her older sister C.F. In late July 2009, L.F. turned 8 years old. Shortly thereafter, Petitioner developed a prurient interest in viewing L.F. in the nude. What ultimately gave rise to his criminal convictions was committing video voyeurism against L.F.
Specifically, between July 30, 2011, and July 29, 2012, when L.F. was 10 years old, Petitioner concealed a small, sound-activated digital camera in L.F. and C.F.'s bathroom, in order to secretly record L.F.-for his own amusement, entertainment, sexual arousal or gratification-while L.F. was privately exposing her body. Petitioner set the camera on standby mode, so that the video function
started recording when sound was detected, and stopped recording when sound no longer was detected. By using the sound-activation feature, Petitioner did not have to make repeated trips to the bathroom to turn the camera on and off.
Petitioner recorded L.F. undressing, using the toilet, moving about naked, showering, and otherwise privately exposing her body.[3]The events were recorded in five separate videos on a single media memory card. Petitioner kept the memory card with his jewelry and other personal keepsakes in a small velvet-lined drawer next to his bed.
In February 2014, Anna Furtys found the memory card in Petitioner's jewelry drawer. After viewing the video-recordings, she turned the memory card over to law enforcement officers. On February 21, 2014, law enforcement officers arrested Petitioner.
A. Petitioner's Pretrial and Trial Proceedings
On March 14, 2014, Petitioner was charged in Leon County Circuit Court Case No. 2014-CF-537, with nine counts of Video Voyeurism involving both L.F.
and C.F. Doc. 10-2, Ex. A at 36-38.[4]On July 29, 2014, the State added two more charges involving L.F.-Lewd or Lascivious Molestation on L.F. Id. at 39-41.
Petitioner's defense to the voyeurism charges was two pronged: (1) the charges were barred by Florida's three-year statute of limitations, and (2) the State's evidence did not prove beyond a reasonable doubt the essential element of intent. See Doc. 1 at 22 (“The only element of video voyeurism contested by the Petitioner was the element related to his intent or purpose in using the camera that created the video clips referenced in Counts I through IV.”). Petitioner maintained that the reason he placed the camera in the bathroom was to try to obtain footage of C.F. and Bryce (Anna Furtys's son from a prior marriage) engaging in sexual conduct.
Petitioner's trial counsel, Justin Ward, mounted a vigorous defense. First, the defense moved to sever the voyeurism charges from the molestation charges. Doc. 10-2, Ex. A at 52-54. The State opposed the motion and notified the defense that it intended to introduce similar fact evidence of Petitioner's other bad acts-including his lewd touching of L.F.'s genitals-to prove the element of intent on the voyeurism
charges. Id. at 55-59. At the motion hearing, the State agreed to sever the video voyeurism counts involving C.F., but opposed severance of the remaining charges, all of which pertained to L.F. Doc. 10-3, Ex. B at 294, 308. The trial court denied the motion to sever. See Doc. 10-2, Ex. A at 4; Doc. 10-3, Ex. B at 259-301, 302341; Doc. 10-4, Ex. C at 3-5.
The defense also filed a pretrial motion to dismiss the voyeurism charges based on Florida's statute of limitations. Doc. 10-2, Ex. A at 61-62. The defense maintained that L.F.'s deposition testimony established that the video recordings were created in December 2009 or earlier (when the statute of limitations was three years), but the prosecution of Furtys was not commenced until 2014. Id. at 61-62, 126-27. The State opposed the motion, arguing that the video-recording L.F. had discussed in her deposition was not one of the charged video-recordings. Id. at 69125, 128-33. As to the charged video-recordings, the State presented evidence at the motion hearing that L.F.'s school yearbook photograph taken during the 2011-2012 school year-coupled with Anna Furtys's testimony concerning L.F.'s physical appearance (including her short hairstyle) when she was 10 years old and in the fourth grade-established that the video was taken within the limitations period (on or after February 21, 2011). Doc. 10-3, Ex. B at 259-301, 302-341 (Mot. Hr'g Trs.)
The trial court denied the motion to dismiss. Doc. 10-2, Ex. A at 134-35. The court concluded that the undisputed material facts contained in Petitioner's motion and the State's response, did not demonstrate that “a juror will not be able to decide that the offenses occurred within the applicable statutory period.” Id. (emphasis added).
On January 8, 2015, the State amended the information to remove the four voyeurism charges involving C.F., and to provide a more specific time frame for the video recordings underpinning the voyeurism charges involving L.F.[5]Specifically, the second amended information charged Petitioner with five counts of Video Voyeurism on L.F.-a child under 16 years of age-between the dates of July 30, 2011 and May 27, 2013 (Counts I-V). Doc. 10-2, Ex. A at 42-43; see also Doc. 105, Ex. D at 4. The second amended information also charged Petitioner with two counts of Lewd or Lascivious Molestation on L.F. (Counts VI-VII). Doc. 10-2, Ex. A at 42-43. On February 27, 2015, Petitioner's trial began. Doc. 10-5, Ex. D.
At trial, L.F. testified that within months of coming to live with the Furtyses, Petitioner began showing an unusual interest in her that made her uncomfortable.
For example, “every single day” Petitioner complimented L.F. on how she looked and slapped her buttocks. Doc. 10-5, Ex. D at 82.
On another occasion, when L.F. was alone in the house with Petitioner, she was in the bathroom preparing to bathe when she heard a thud outside the bathroom door. L.F. opened the door to find Petitioner lying on the floor near the door-with his head at the gap between the floor and the door. Petitioner explained that he tripped and fell, but L.F. noticed that he was hiding a mirror with a long handle/hook behind his leg. Id. at 82-83.
On another occasion, L.F. was in the bathroom undressed ready to take a bath when she noticed a camera sitting in the toilet-brush holder. She got dressed and questioned Petitioner about it. Petitioner told L.F. that it “only recorded - it was only voice.” Id. at 84.
On another occasion, L.F. fell asleep on the living-room couch and was awakened by Petitioner pulling her pajama bottoms from her body. Petitioner explained that he was looking for his cell phone. Id. at 86-87.
On one or more other occasions, L.F. was in her bedroom sleeping when she was awakened by someone touching her. She opened her eyes and saw Petitioner walking out of her room. Her pajama bottoms and underwear were pulled down to
her knees. Id. at 87-89. When L.F. confronted Petitioner, he told her not to say anything because he would “get in big trouble and go to jail.” Id. at 90.
Anna Furtys testified that, beginning shortly after she and Petitioner adopted L.F. and C.F., there was something about the way Petitioner touched and behaved toward L.F. that “just didn't feel right.” Id. at 44. Anna stopped leaving L.F. alone in the same room as Petitioner. Id. at 43-44. On one (and the last) occasion when Anna confronted Petitioner about what she felt was his inappropriate behavior toward L.F., Petitioner denied that his behavior was anything other than “a father/daughter thing,” but he then stormed out of the house stating that he was going to kill himself because he was a bad, bad person. Id. at 45. A few days after that incident, Anna Furtys found the concealed camera's memory card hidden in Petitioner's jewelry drawer. Id. at 28-31, 45.
The first video on the memory card was admitted into evidence. Id. at 70. That clip featured Petitioner's face as he was positioning the camera in the girls' bathroom. Id. at 28-31, 70.
The trial judge also admitted into evidence an additional five video-recordings from the memory card. Id. at 69-70. Those videos featured L.F. privately exposing herself in the bathroom. The judge also admitted the following photographs of L.F. from her school yearbooks: (1) the second grade when L.F. was 8 years old; (2) the
third grade when L.F. was 9 years old; (3) the fourth grade when L.F. was 10 years old; and (4) the fifth grade when L.F. was 11 years old, Id. at 32-34. L.F. was 13 years old when she testified at trial. Id. at 78.
Anna Furtys and L.F. each testified that L.F....
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