Overton v. Jones, CASE NO. 13–10172–CIV–MOORE

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Citation: 155 F.Supp.3d 1253
• Docket Number: CASE NO. 13–10172–CIV–MOORE
• Parties: Thomas Mitchell Overton, Petitioner, v. Julie L. Jones, Secretary, Florida Department of Corrections, Respondent.
• Decision Date: 12 January 2016

155 F.Supp.3d 1253

Thomas Mitchell Overton, Petitioner,
v.
Julie L. Jones, Secretary, Florida Department of Corrections, Respondent.

CASE NO. 13–10172–CIV–MOORE

United States District Court, S.D. Florida.

Signed January 12, 2016

155 F.Supp.3d 1260

Marie-Louise R. Samuels, The Samuels Parmer Law Firm, PA, Tampa, FL, Roseanne Violet Eckert, Capital Collateral Regional Counsel, Fort Lauderdale, FL, for Petitioner.

Noticing 2254 SAG Miami-Dade/Monroe, Katherine McIntire, Attorney General Office, West Palm Beach, FL, for Respondent.

ORDER DENYING HABEAS CORPUS PETITION

K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE

Petitioner, Thomas Mitchell Overton (“Mr.Overton”) is on death row at the Union Correctional Institution in Raiford, Florida, for the murders of Michael and Susan McIvor. Mr. Overton was convicted in 1999 of two counts of first degree murder, one count of killing an unborn child by injury to the mother, one count of burglary with assault/battery and one count of sexual battery. The matter before the Court is Mr. Overton's Petition for Writ of Habeas Corpus By a Person in State Custody (“Petition”) filed November 8, 2013 [DE 8]. The State filed its Response. [DE 11]. Mr. Overton filed a Reply. [DE 12]. This matter has been fully briefed. For the reasons that follow, Mr. Overton's Petition for Writ of Habeas Corpus is DENIED.

155 F.Supp.3d 1261

FACTUAL BACKGROUND

The Florida Supreme Court gave the following recitation of the pertinent facts:

On August 22, 1991, Susan Michelle MacIvor, age 29, and her husband, Michael MacIvor, age 30. were found murdered in their home in Tavernier Key. Susan was eight months pregnant at the time with the couple's first child.

Susan and Michael were last seen alive at their childbirth class, which ended at approximately 9 p.m. on August 21, 1991. Concerned co-workers and a neighbor found their bodies the next morning inside the victims' two-story stilt-house located in a gated community adjacent to a private airstrip.

Once law enforcement officers arrived, a thorough examination of the house was undertaken. In the living room, where Michael's body was found, investigators noted that his entire head had been taped with masking tape, with the exception of his nose which was partially exposed. He was found wearing only a T-shirt and underwear. There was a blood spot on the shoulder area of the tee-shirt. When police removed the masking tape, they discovered that a sock had been placed over his eyes, and that there was slight bleeding from the nostril area. Bruising on the neck area was also visible. The investigators surmised that a struggle had taken place because personal papers were scattered on the floor near a desk, and the couch and coffee table had been moved. A small plastic drinking cup was also found beside Michael's body.

Continuing the search toward the master bedroom, a piece of clothesline rope was found just outside the bedroom doorway. Susan's completely naked body was found on top of a white comforter. Her ankles were tied together with a belt, several layers of masking tape and clothesline rope. Her wrists were also bound together with a belt. Two belts secured her bound wrists to her ankles. Around her neck was a garrote formed by using a necktie and a black sash, which was wrapped around her neck several times. Her hair was tangled in the knot. Noticing that a dresser drawer containing belts and neckties had been pulled open, officers believed that the items used to bind and strangle Susan came from inside the home. Her eyes were covered with masking tape that appeared to have been placed over her eyes in a frantic hurry. Under the comforter upon which the body rested were several items which appeared to have been emptied from her purse. Also under the comforter was her night shirt; the buttons had been torn off with such force that the button shanks had been separated from the buttons themselves. Near the night shirt were her panties which had been cut along each side in the hip area with a sharp instrument.

Within the master bedroom, the investigators also found a .22 caliber shell casing, and somewhat later a hole in a bedroom curtain was noticed. Also in that bedroom, the officers found an address book with some pages partially torn out.

The sliding glass door in the bedroom was open and a box fan was operating. There had been a heavy rain storm the night before and the heat and humidity were quickly rising. As a result of these conditions. Susan's body was covered with moisture. The investigators used a luma light to uncover what presumptively appeared to be seminal stains on Susan's pubic area, her buttocks, and the inside of her thighs. The serologist later testified that he collected what appeared to be semen from Susan's body

155 F.Supp.3d 1262

with swab applicators. Three presumptive seminal stains also appeared on the fitted sheet. Within close proximity to one of the seminal stains on the fitted sheet, a stain which appeared to be dried feces was located. It was also noticed that Susan had fecal matter in her buttocks area. Ultimately, the officers took the comforter, fitted sheet, and mattress pad into evidence.

The investigation next proceeded to a spare bedroom, which was then being renovated for use as a nursery for the baby. The sliding glass door in that room was also open. A ladder was found propped up against the balcony outside the nursery. Cut clothesline rope was hanging from the balcony ceiling, and outside the home, the phone wires had been recently cut with a sharp instrument.

The medical examiner's testimony at trial established multiple factors. As to Michael, the autopsy revealed that he suffered a severe blow to the back of the head. The external examination of Michael's neck revealed several bruises particularly around the larynx, along with ligature marks which indicated that the device used to strangle Michael had been wrapped around his neck several times, FN1 and that pressure was applied from behind. The internal examination of Michael's neck confirmed that his larynx, as well as the hyoid bone and epiglottis, had been fractured. There was also bruising and an internal contusion indicative of a heavy blow to the back of the neck. The internal examination of the neck area revealed that the neck was unstable and dislocated at the fifth cervical vertebrae. There was also internal bleeding in the left shoulder, indicative of a severe blow to the area. Additionally, Michael had significant bruising in his abdominal area causing a contusion fairly deep within the abdomen. The doctor testified that the injury could have been inflicted by a strong kick to the area. Based on his observations, the doctor opined that the cause of death was asphyxiation by ligature strangulation (rope). He added that Michael could have been rendered unconscious ten to fifteen seconds after the ligature was applied, or that it could have taken longer depending on the pressure applied.

FN1. The doctor testified that the ligature marks were indicative of “a rope wrapped around four times or wrapped around twice and reapplied once or wrapped around once and reapplied four times.”

With respect to Susan, the external examination of her face revealed that she had received several slight abrasions. The ligature marks around her neck indicated that she was moving against the ligature, thereby causing friction. Also, the discoloration in her face indicated that blood was not exiting the head area as fast as it was entering. According to the medical examiner, this is indicative of an incomplete application of the ligature, which demonstrated that, more likely than not, a longer period of time passed before Susan lost consciousness once the ligature was applied. Her wrists also exhibited ligature marks and her hands were clenched. Moving down to her lower body, an abrasion to her vulva and several abrasions to her legs indicative of a struggle were found. The medical examiner concluded, based on the totality of the circumstances, that she had been sexually battered. When interrogated for an explanation of the presence of feces in the rectal area, the doctor determined that it could have happened either at the time of death or it could have been caused by her fear.

155 F.Supp.3d 1263

The medical examiner determined that Susan was approximately eight months pregnant at the time and proceeded to examine the fetus. The doctor determined that the baby would have been viable had he been born, and that he lived approximately thirty minutes after his mother died. The doctor testified that there was evidence that he tried to breath on his own.

Overton v. State, 801 So.2d 877, 881–884 (Fla.2001).

STATUTE OF LIMITATIONS

In response to Mr. Overton's Petition, the State argued that the Petition is barred by the statute of limitations. ( [DE 11] at 23–26). Mr. Overton has replied that his Petition was timely filed. However, Mr. Overton asserts that, even if the Court finds that his petition was not timely filed, the Court should consider the merits of his claims. Mr. Overton asserts three equitable grounds which could excuse his untimeliness: (1) the State has waived a timeliness argument, (2) the requirements of Rule 3.851 were not firmly established or regularly followed, and (3) Mr. Overton is innocent of the crimes for which he was convicted.

Standard of Review on Timeliness

In 1996, Congress set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). Congress intended AEDPA to further the principles of comity, finality, and federalism. Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (stating that “there is no doubt Congress intended AEDPA to advance these doctrines [comity, finality, and federalism]”). Clearly, Congress created a one-year limitations period that was meant to streamline the habeas review process and to lend...