VREELAND v. PRUITT

Opinion

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

DELMART E.J.M. VREELAND, II,

Petitioner, v. Case No.: 4:19cv529-MW/EMT

WARDEN SCOTT PRUITT,

Respondent.

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ORDER ACCEPTING REPORT AND RECOMMENDATION

This Court has considered, without hearing, the Magistrate Judge’s Report and Recommendation, ECF No. 17, and has also reviewed de novo Petitioner’s objections to the report and recommendation, ECF No. 21. This Court writes simply to address one argument Petitioner raises in his objections; namely, the issue of actual innocence—something that, if proved, “serves as a gateway through which a petitioner may pass whether the impediment [to habeas relief] is a procedural bar . . . or. . . . expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). “In other words, a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits.” Id. at 392. Here, with respect to Petitioner’s claim of actual innocence, Petitioner asserts he should have been charged with the more specific crime of passing a worthless check or obtaining property in return for a worthless check instead of grand theft. See, State v. Smith, 578 So. 2d 826, 827 (Fla. 5th DCA 1991) (“Obtaining property in return for a worthless check will always constitute theft because the more general

theft element subsumes the more specific worthless check element.”) (emphasis in original). Petitioner’s quarrel with the State Attorney’s charging decision does not equate to a claim for actual innocence. Accordingly,

IT IS ORDERED: The report and recommendation is accepted and adopted, over Petitioner’s objections, as this Court’s opinion. The Clerk shall enter judgment stating, “The Respondent’s motion to dismiss, ECF No. 10, is GRANTED. The petition for writ

of habeas corpus, ECF No. 1, is DISMISSED as untimely.” A certificate of appealability is DENIED. The Clerk shall close the file. SO ORDERED on November 18, 2020. s/Mark E. Walker Chief United States District Judge