The following text was written and graciously provided to my website by MacDonald case researcher Robyn Bishop.

Judge Fox’s order dated November 4, 2008
 
It is clear that Judge Fox was aware, and made certain he let everyone know he was aware, that the defense was attempting to piggy-back several motions under a singular Pre-Filing Authorization. It appears that the defense hoped that Judge Fox would reach a decision on the merits of these additional motions. Judge Fox did not waste his time reaching decisions upon the merits. Appeals courts and other high courts have and will rescind orders reaching a decision on merit if the court issuing the order does not have jurisdiction. In this case Judge Fox clearly did not have jurisdiction on motions DE-122 Motion to Add Additional Predicate and DE-144 Motion to Supplement Itemized Evidence.

The denial of DE-124 Motion to Expand the Record was simple: Judge Fox found no merit in this claim. The defense based this motion on material that was new or previously rejected. In fact, most (if not all) of the material was previously rejected. Thus Judge Fox accepted the government position and denied this motion.

The Motion to Vacate pursuant to 28 USC ss2255 [DE-111] was the only motion with the authorization to be before Judge Fox. In order for this appellant to receive a PFA it is only required that they show a prima facie case that they might be entitled to relief and a claim of constitutional error. Once the motion had been filed, the gate-keeping standards became much more restrictive.
 
Judge Fox ordered the government to respond to the motion since on the face of the motion there was no evidence to prove petitioner was not entitled to relief. Neither was their evidence showing that he WAS entitled to relief, until the government responded and Judge Fox reviewed the material. Most, if not all, claims made by the defense are res judicata (Latin for “the thing has been judged”). There has been no finding of government misconduct.
 
Judge Fox stated that if Jimmy Britt truly heard the words he ascribed to Blackburn; it still does not prove a threat by Blackburn. At the time of the interviews, Helena was without counsel and Blackburn would have been obligated to inform Helena what would happen if she testified to being present at the crime scene. The defense cannot prove that Helena would have testified differently without Blackburn’s alleged comments. Judge Fox is saying “for the sake of argument {arguendo}, let us assume Blackburn did say he would indict Helena if she testified that she and friends were present at 544 Castle”. This statement would still not be enough to exculpate MacDonald. Without being able to determine the exact context the statements are useless.
 
The government filed a Motion for Publication with Modifications, the order discussed herein. There was no legal precedence cited for this motion. The government filed this motion requesting that certain “facts” be edited into the order as Judge Fox issued it. The modifications requested included:

(1) The fact (with substantial documentation) that Helena Stoeckley was not held in Greenville Co. jail prior to being brought to Raleigh for the trial. Helena was held in the Pickens Co. jail.
(2) The fact that (with considerable documented evidence) Jimmy Britt was not the DUSM that picked Helena up in South Carolina and he was not involved in the transport of Helena to Raleigh, NC.
(3) The fact (again with proof) that DUSM Vernoy Kennedy and a female guard signed for and picked up Helena at the Pickens Co. jail the day before her meeting with the defense and then prosecutors in Raleigh.
(4) The fact (more evidence) that DUSM Kennedy met up with DUSM Dennis Meehan and Janice Meehan in the Charlotte NC area and exchanged custody of Helena. The Meehans then transported Helena to the Wake Co. jail in Raleigh NC.

The government hinted that it has additional evidence in its possession that further proves the lies and misrepresentations contained in Jimmy Britt’s affidavit and thus the motions related to his allegations. Jimmy Britt lied. Helena was not in his presence during the drive from S. Carolina to N. Carolina and therefore, it is impossible for her to have made the alleged confessions as contained in his affidavit. By the same token, Britt’s claims of having heard Helena tell Blackburn the same confession the next day during their meeting is a lie. Since Helena was not in his presence the previous day she could not have confessed to Britt, period.

Despite the defense assertions in the Motion for Certificate of Appealability (COA) on these denials, it is not an adjudicated fact that Britt was truthful in his affidavit. In fact, the truth or falsity of Britt’s comments are irrelevant to the rationale Judge Fox used in coming to his decisions. The Motion for COAs is denied. The motion to publish with modifications is denied except for the correction of non-substantive clerical errors in the order.
 

Motion Pursuant to 28 USC 2255

The Motion to Vacate, set aside, or correct a sentence under 28 USC 2255 is the modern descendant of the writ of habeas corpus. To qualify, a prisoner must be in custody due to a judgment in a U.S. District Court. There is a set of rules governing such motions. Rule 9 of these rules requires the prisoner to request a Pre-Filing Authorization (PFA) from the court before filing a second or successive section 2255 motion. District Courts are not required to hear applications for writ of habeas corpus except under the provisions listed in ss2255.

There are strict gatekeeping standards that must be met and overcome. A motion will fall into one of two categories – (1) motions based on matters previously presented in a habeas petition, and (2) motions based on matters not previously presented in a habeas petition. Motions falling into the first category are dismissed. Motions falling into category (2) shall be dismissed unless:
(a) it is based on a new rule of constitutional law, made retroactive to the cases by the U.S. Supreme Court; OR,
(b) (i) the underlying facts on which the claim is based could not have been discovered through the exercise of due diligence, and,
(ii) the facts, if proven and viewed with the evidence as a whole would be enough to provide clear and convincing evidence that no reasonable juror would vote to convict without constitutional error.
In other words, a prisoner filing a successive habeas motion must show either (a) or (b). IF (b) is used, then the prisoner must show part (i) and (ii). The language concerning “without constitutional error” is very important. A prisoner must have some so t of constitutional based claim, not just one of “factual innocence.”

The prisoner submits his request for a PFA to the Circuit Court of Appeals. The Court of Appeals must approve or deny the PFA within 30 days. If the PFA is granted, the case goes back to the District Court.

At this time, it seems unlikely that inmate would get another PFA. The only item that even has a chance of receiving a PFA is the DNA test results. It doesn’t seem likely that a PFA would be issued, because a claim involving DNA results does not rely on Constitutional error, thus failing to satisfy the gatekeeping requirements for a successive habeas petition. Even if the Fourth Circuit court issues a PFA on the DNA results and the case goes back to the U.S. District Court, inmate must still convince a Court that, upon hearing the new evidence, no reasonable juror would vote to convict. In other words, if even one reasonable juror would still vote to convict, even after hearing that some DNA found in the home was unsourced, then the conviction will stand.
 

Philip Callahan’s 2007 thoughts on the Jimmy Britt saga 

The defense motion regarding the claims of a former U.S. Marshal, Jimmy Britt, is still under consideration by Judge Fox. There is no real timetable as to when Judge Fox has to make his decision on the Britt motion, but as evidenced by his prior rulings in this case, he will be thorough. Britt approached the MacDonald defense team in 2005 and claimed that he was present when co-prosecutor James Blackburn allegedly threatened Helena Stoeckley.  According to Britt, the threat revolved around Blackburn seeking to prosecute Stoeckley for murder if she testified at trial that she had witnessed several of her acquaintances attack the MacDonald family.  Britt's rationale for waiting 26 years to divulge this information was out of respect for Judge Franklin Dupree.  Dupree, however, died in 1995, which meant that Britt's supposed conscience took 10 years to kick in as MacDonald remained behind bars.  

Britt could also tell the defense team with a straight face that he could not remember whether Brian Murtagh or George Anderson were present during this meeting with Stoeckley nor could he describe the room where this meeting took place with any semblance of clarity. Britt has admitted to having substance dependence issues, he’s had financial difficulties in the recent past, and according to the late Peter Kearns, he was reprimanded by the CID in the 1970’s. In my opinion, Britt's selective memory combined with the skeletons which have jumped out of his closet since the motion was first filed, will result in future legal headaches for MacDonald's rotating band of lawyers.