United States v. Macdonald, 15-7136

Decision Date21 December 2018
Docket NumberNo. 15-7136,15-7136
Citation911 F.3d 723
Parties UNITED STATES of America, Plaintiff – Appellee, v. Jeffrey R. MACDONALD, Defendant – Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Joseph Edward Zeszotarski, Jr., GAMMON, HOWARD & ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellant. John Stuart Bruce, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Leslie K. Cooley, Assistant United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before MOTZ, KING, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Motz and Judge Harris joined.

KING, Circuit Judge:

Over the last four decades, we have repeatedly been called upon to review Jeffrey R. MacDonald’s trial and convictions in the Eastern District of North Carolina for the murders in 1970 of his pregnant wife and their two young daughters at Fort Bragg. In April 2011, we remanded for further proceedings on two habeas corpus claims being pursued by way of a successive 28 U.S.C. § 2255 motion — a prosecutorial misconduct claim based on the newly discovered evidence of former Deputy U.S. Marshal Jimmy Britt (the "Britt claim"), plus a freestanding actual innocence claim premised on the results of DNA testing (the "DNA claim").See United States v. MacDonald , 641 F.3d 596 (4th Cir. 2011). Thereafter, in July 2014, the district court ruled that MacDonald has failed to make the evidentiary showing necessary to pursue the Britt and DNA claims by successive § 2255 motion, and that he has also failed, in any event, to establish the merits of the Britt claim or the DNA claim. See United States v. MacDonald , 32 F.Supp.3d 608 (E.D.N.C. 2014). We granted MacDonald a certificate of appealability under 28 U.S.C. § 2253 and, as explained herein, now affirm the district court’s judgment denying the § 2255 motion.1

I.
A.

As detailed in our 2011 decision, see MacDonald , 641 F.3d at 599-603, the brutal murders of MacDonald’s wife and two daughters occurred in the family’s Fort Bragg apartment on February 17, 1970. At the time, MacDonald was a physician and Captain in the U.S. Army Medical Corps whose training and work included emergency medicine and surgery. He was initially charged with the murders by the Army, but those charges were eventually dismissed. In January 1975, MacDonald was indicted by the federal grand jury in the Eastern District of North Carolina. As a result of a series of pretrial motions and interlocutory appeals, MacDonald’s trial did not begin until July 1979. At the conclusion of the seven-week trial, the jury found MacDonald guilty of one count of first-degree murder and two counts of second-degree murder. His convictions resulted in three consecutive life terms of imprisonment and were ultimately affirmed on direct appeal. Between 1984 and 1997, MacDonald filed a series of motions for postconviction relief, including § 2255 motions. MacDonald did not succeed on any of those motions or in the related appeals, except that, in 1997, we granted his request for DNA testing and remanded for that limited purpose.2

The ensuing proceedings have involved the claims now before us, i.e., the Britt and DNA claims. See MacDonald , 641 F.3d at 603-07. In January 2006, before the DNA testing was completed, we granted MacDonald prefiling authorization for the successive § 2255 motion raising the Britt claim. See 28 U.S.C. § 2244(b)(3). That is, we determined that the § 2255 motion makes a prima facie showing that it satisfies § 2255(h). See United States v. Winestock , 340 F.3d 200, 205 (4th Cir. 2003) ("The court of appeals must examine the application to determine whether it contains any claim that satisfies § 2244(b)(2) (for state prisoners) or § 2255 [ (h) ] (for federal prisoners)."). In pertinent part, a successive motion can be sustained under § 2255(h) if it contains a claim based on "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense." See 28 U.S.C. § 2255(h)(1). Pursuant to § 2244(b)(4), however, we left it to the district court to conduct a more searching assessment of whether the Britt claim satisfies § 2255(h)(1). See Winestock , 340 F.3d at 205 ("When the application is thereafter submitted to the district court, that court must examine each claim and dismiss those that are barred under [ § 2244(b)(2) or § 2255(h) ].").

In March 2006, shortly after the § 2255 motion was submitted to the district court, the results of the DNA testing finally became available. MacDonald promptly moved to add the DNA claim as a predicate to the pending § 2255 motion, as well as to have the DNA test results considered as part of the "evidence as a whole" in the court’s assessment of the Britt claim. Separately, MacDonald submitted a mass of other evidence — including evidence excluded at trial, evidence submitted with prior unsuccessful motions for postconviction relief, and evidence more recently discovered — that he contended was also part of the "evidence as a whole."

By its decision of November 2008, the district court ruled that the DNA claim’s absence from the § 2255 motion at the time of prefiling authorization deprived the court of jurisdiction over that claim. See United States v. MacDonald , No. 3:75-cr-00026 (E.D.N.C. Nov. 4, 2008), ECF No. 150 (unpublished). The court also excluded the DNA test results and the other evidence submitted by MacDonald from its assessment of the Britt claim. The court then decided, focusing on the facts alleged in support of the Britt claim and on the evidence admitted at trial, that MacDonald had not made the evidentiary showing necessary to sustain the § 2255 motion.

On appeal, we concluded that the district court had taken an "overly restrictive view of what constitutes the ‘evidence as a whole,’ " erroneously omitting the DNA test results and other non-trial evidence from its assessment of the Britt claim. See MacDonald , 641 F.3d at 614. We thus remanded "for a fresh analysis of whether the Britt claim satisfies the applicable standard of § 2255(h)(1)." Id.3 Additionally, we determined that the court had erred in deeming itself to be without jurisdiction over the DNA claim, and that the court instead should have considered adding the DNA claim to the § 2255 motion under Rule 15(a) of the Federal Rules of Civil Procedure. Id. at 615-16. Rather than instructing the court to conduct a belated Rule 15(a) evaluation on remand, we simply granted MacDonald prefiling authorization for the DNA claim.

B.

At bottom, by our 2011 decision, we remanded for the district court to assess the Britt and DNA claims under § 2255(h)(1), and for such other and further proceedings as may be appropriate. In so doing, we examined various requirements for successive § 2255 motions engendered by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Most importantly, we recognized that § 2255(h)(1) obliges the movant "to proffer some new evidence in support of his habeas corpus claim." See MacDonald , 641 F.3d at 612 (citing § 2255(h)(1) ’s requirement for "newly discovered evidence"). Section 2255(h)(1) then requires the court to determine whether that new evidence, "if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense."

To define what constitutes the "evidence as a whole" for purposes of a § 2255(h)(1) assessment, we relied on pre-AEDPA precedent from which § 2255(h)(1) derived, including the Supreme Court’s decision in Schlup v. Delo , 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). We discerned that "the ‘evidence as a whole’ is exactly that: all the evidence put before the court at the time of its ... § 2255(h)(1) evaluation." See MacDonald , 641 F.3d at 610. We elaborated that the court must make its " § 2255(h)(1) determination — unbounded ‘by the rules of admissibility that would govern at trial’ — based on ‘all the evidence, including that alleged to have been illegally admitted [and that] tenably claimed to have been wrongly excluded or to have become available only after the trial.’ " Id. at 612 (alteration in original) (quoting Schlup , 513 U.S. at 327-28, 115 S.Ct. 851 ). In other words, "the court must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under [evidentiary rules].’ " Id. (alteration in original) (quoting House v. Bell , 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (explaining Schlup ) ). We cautioned, however, that the movant is not entitled to "the benefit of every doubt." Id. Rather, "the court must give ‘due regard to any unreliability of’ the evidence and ‘may have to make some credibility assessments.’ " Id. at 612-13 (quoting Schlup , 513 U.S. at 328, 330, 115 S.Ct. 851 ).

The § 2255(h)(1) determination, as we explained, requires the "court to assess how reasonable jurors would react to the overall, newly supplemented record." See MacDonald , 641 F.3d at 613 (quoting House , 547 U.S. at 538, 126 S.Ct. 2064 ). If the court rules in the movant’s favor under § 2255(h)(1), the movant merely passes a procedural bar to having his habeas corpus claim considered on its merits. That is, the movant remains "obliged to prove ... that claim before obtaining any § 2255 relief thereon." Id. at 614.

II.

To inform its procedural and merits assessments of the Britt and DNA claims on remand, the district court conducted a seven-day evidentiary hearing in September 2012 and obtained post-hearing memoranda from MacDonald and the government. In its decision of July 2014, the...

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