MAYNARD (THEODORE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 15, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001554-MR
THEODORE MAYNARD
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 146515
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE, NICKELL, AND WINE, JUDGES.
MOORE, JUDGE: Theodore Maynard appeals the Jefferson Circuit Court’s order
denying his CR1 60.02(e) and (f) motion for relief from the judgment against him.
After a careful review of the record, we affirm because Maynard failed to file his
motion within a reasonable time after entry of the judgment.
1
Kentucky Rule of Civil Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Maynard was convicted in 1972 of the rape and willful murder of
Laura Hefley, a University of Louisville music student. He was sentenced to life
imprisonment for both convictions, and those sentences were ordered to be served
consecutively. Maynard filed a direct appeal, and Kentucky’s highest court
remanded the case for a hearing to determine whether Maynard was prejudiced by
the failure to order production of a police detective’s report. See Maynard v.
Commonwealth, 497 S.W.2d 567, 570 (Ky. 1973).
The trial court conducted the hearing and determined that Maynard
was not prejudiced by the failure to produce the report. The Kentucky Supreme
Court subsequently affirmed the judgment against Maynard.
Maynard moved to vacate the judgment against him pursuant to RCr2
11.42. In his motion, he raised various claims of the ineffective assistance of
counsel. After holding a hearing, the circuit court denied Maynard’s RCr 11.42
motion. Maynard appealed that ruling, and this Court affirmed.
Maynard then filed a petition for a writ of habeas corpus in the United
States District Court. In 1982, the Court granted Maynard’s petition with respect
to his rape conviction, but denied the petition concerning his murder conviction.
See Maynard v. Sowders, No. 3:07-CV-P658-R, 2009 WL 799741, *1 (W.D. Ky.
Mar. 25, 2009) (slip copy) (discussing its prior decision regarding Maynard’s
petition for a writ of habeas corpus).
2
Kentucky Rule of Criminal Procedure.
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Twenty-six years later, Maynard moved for relief from the judgment,
pursuant to CR 60.02(e) and (f). Maynard claimed he was actually innocent of the
crime under the Commonwealth’s theory of the case, which Maynard alleged was
the theory that “the crime of murdering the victim Laura Hefley was committed . . .
as an attempt to cover up or otherwise obstruct the result of having committed the
crime of First Degree Rape against Ms. Hefley in the first instance.” Maynard
argued he was actually innocent of the murder because the medical examiner
testified he could not substantiate whether Ms. Hefley was raped or not, yet the
Commonwealth had asserted that the rape of Ms. Hefley was the motive for her
murder. Maynard also moved for a DNA analysis of some non-motile sperm that
the medical examiner had found in Ms. Hefley’s vagina because Maynard
contended that the DNA analysis would show that the rape was not committed by
Maynard. The circuit court denied Maynard’s motion for a DNA analysis, as well
as his CR 60.02 motion.
Maynard now appeals, contending that: (a) a DNA analysis should be
conducted because it will allegedly show that he is actually innocent of the murder
based on the Commonwealth’s theory of the case; and (b) the circuit court entered
insufficient findings of fact in its order denying his CR 60.02 motion to allow for
proper appellate review.
II. ANALYSIS
On appeal, we review the denial of a CR 60.02 motion for an abuse of
discretion. “A movant is not entitled to a hearing on a CR 60.02 motion unless he
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affirmatively alleges facts which, if true, justify vacating the judgment and further
allege[s] special circumstances that justify CR 60.02 relief.” White v.
Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (internal quotation marks
omitted).
Kentucky Rule of Civil Procedure 60.02(e) and (f) state as follows:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
grounds: . . . (e) the judgment is void, or has been
satisfied, released, or discharged, or a prior judgment
upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment
should have prospective application; or (f) any other
reason of an extraordinary nature justifying relief. The
motion shall be made within a reasonable time. . . .
“Civil Rule 60.02 is not intended merely as an additional opportunity
to relitigate the same issues which could reasonably have been presented by direct
appeal or RCr 11.42 proceedings.” McQueen v. Commonwealth, 948 S.W.2d 415,
416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 60.02 “is not a
separate avenue of appeal to be pursued in addition to other remedies, but is
available only to raise issues which cannot be raised in other proceedings.” Id.
A. CLAIM REGARDING DNA ANALYSIS AND ACTUAL INNOCENCE
Maynard first alleges that he is actually innocent of the murder. He
contends the circuit court should have granted his request for DNA analysis of the
non-motile sperm found in the victim’s vagina because such analysis would show
that Maynard was actually innocent of the murder conviction, based upon the
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Commonwealth’s theory that the person who raped the victim also murdered her.
However, Maynard waited twenty-six years from the time that his petition for a
writ of habeas corpus was partially granted by the United States District Court
before he filed his CR 60.02 motion in the present case. Furthermore, it appears
that Kentucky began DNA testing in or around 1990, see Shane v. Commonwealth,
243 S.W.3d 336, 342 (Ky. 2007), as modified (2008), yet Maynard waited eighteen
years after DNA testing began in Kentucky before he filed his CR 60.02 motion
and requested DNA testing. A motion brought under CR 60.02 must be brought
within a reasonable time. See CR 60.02. We do not find that Maynard brought his
CR 60.02 motion within a reasonable time and, thus, the circuit court did not abuse
its discretion in denying his motion.
Moreover, even if the DNA analysis was conducted and it showed that
the non-motile sperm found in Ms. Hefley’s vagina was not Maynard’s, this still
would not prove that Maynard was actually innocent of the crime of murder.
Rather, it would only prove the semen belonged to a third individual, but Maynard
has already been granted habeas relief from his rape conviction. As for the murder
conviction, even the United States District Court, in denying Maynard’s habeas
petition concerning his murder conviction, reasoned that there was corroborating
evidence to support his murder conviction. Thus, in addition to being time barred,
Maynard’s actual innocence claim lacks merit, and the circuit court did not abuse
its discretion in denying Maynard’s CR 60.02 motion.
B. CLAIM REGARDING FINDINGS OF FACT
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Maynard next alleges that the circuit court erred in failing to enter
findings of fact concerning his CR 60.02 motion. However, because his motion
was time barred, the circuit court did not need to review the merits of Maynard’s
claim and it therefore was unnecessary for the circuit court to enter such findings.
Accordingly, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Theodore Maynard, Pro se
LaGrange, Kentucky
Jack Conway
Attorney General
Frankfort, Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky
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