ORDER

JAMES C. FOX, Senior District Judge.

In this court's order of September 21, 2011 [DE-180], the undersigned agreed with the Government's suggestion to bifurcate § 2255 evidentiary hearings on the "Britt" claim and the "DNA claim." See Order [DE-180] ("The Clerk of Court is DIRECTED to schedule and notice an evidentiary hearing solely on the Britt § 2255 claim ("the Britt Claim") during the week of October 31, 2011...."). At that time, the court did not perceive the contours of MacDonald's "DNA" claim." The court's comprehension of its task may have been stunted in part by confusion arising from the appellate court's wording in footnote 13, to the opinion vacating and remanding this court's November 2008, order [DE-150].1

During the past several weeks of carefully reviewing all pending motions in light of the Fourth Circuit's remand, the substantive and procedural issues concerning MacDonald's "DNA claim" have come better into focus. MacDonald's "DNA claim," itself, has dual bases:

(1) as an add-on freestanding DNA claim to MacDonald's successive § 2255 "Britt claim" [DE-111], filed January 17, 2006,2 concerning conclusions that he contends must be drawn from the 2006 results from AFDIL tests on "unsourced hairs," see [DE-122]3 and [DE-176]; and

(2) as "Other Relief," [DE-176] which the court now understands to refer to the entirely separate alternative motion seeking an order permitting MacDonald to conduct new and different DNA testing on biological samples already tested, as well as on items not previously tested, pursuant to the Innocence Protection Act of 2006 ("IPA"), 18 U.S.C. § 3600, et seq. This IPA motion is an alternative to the § 2255 motion, and is governed by a separate act of Congress which contains its own basis for federal jurisdiction and its own statutory limitations scheme.

For (relative) ease of reference herein, the court will call the first DNA claim the § 2255 "unsourced hairs" claim, and the second one "the IPA Motion."

A. The § 2255 Unsourced Hairs Claim

MacDonald's § 2255 action, as it now is constituted on remand from the Fourth Circuit Court of Appeals, is comprised of:

(1) MacDonald's assertion that his "newly discovered evidence/Britt claim," consisting of affidavits produced by non-deceased former Deputy U.S. Marshal Jim Britt, the now-deceased mother of trial witness Helena Stoeckley, and others, including the now-deceased individual named Greg Mitchell, together with the universe of all evidence, admissible and inadmissible, whether proffered, admitted, or heard during the 1979 MacDonald trial or obtained at any time thereafter (including the 2006 AFDIL DNA test results), and

(2) MacDonald's free-standing contention that 2006 results of the AFDIL's DNA testing of certain "unsourced hairs" collected at the crime scene, in fact establish that intruders murdered MacDonald's wife and children.

Having the benefit now of substantial supplemental briefing with particular focus on the tangible scientific evidence at issue in both the § 2255 matter and the separate IPA motion, the court concludes that the issues for resolution demand a different logistical arrangement than had been anticipated. MacDonald's § 2255 unsourced hair claims, like his § 2255 "newly discovered evidence/Britt claims," will be the subject of the evidentiary hearing now scheduled to begin August 20, 2012. No additional DNA testing is requested or required in order for the parties to present their evidence supporting and defending against those claims, nor can the court perceive any reason to bifurcate the evidentiary hearing on remand of the successive § 2255 claims (both the "unsourced hairs" aspect and the "new evidence/Britt" aspect) authorized by the Fourth Circuit Court of Appeals. At the court's request, counsel for the parties selected a date on which to begin the evidentiary hearing on the § 2255 claims, that being August 20, 2012, and that hearing date has been scheduled and noticed, and the court is prepared to go forward.

To be clear, no additional DNA or other scientific testing of any physical evidence will be permitted prior to this court's conducting the evidentiary hearing MacDonald has requested and the court of appeals has mandated on his § 2255 motion.

However, upon review of the memoranda and exhibits filed in relation to MacDonald's Motion [DE-176], it occurred to the court that MacDonald may at some future date complain that he was not afforded an opportunity to depose certain witnesses whose affidavits were appended to the Government's Response [DE-212] to the § 2255 component of MacDonald's Motion for New Trial [DE-176]. The court is not aware of any effort to date by MacDonald to depose or to seek to depose any Government witness.

Therefore, it hereby is ORDERED:

A. That § 2255 counsel for MacDonald and for the Government are DIRECTED to file their individual affidavits on or before June 22, 2012, stating:

(1) whether they do or do not wish to take depositions4 prior to commencement of the evidentiary hearing necessitated by the remand of the specific § 2255 claims; and, if so

(2) the identities of the proposed deponents.

B. If either or both parties seek to take deposition(s), then counsel for the parties shall confer and file, on or before July 6, 2012, a joint proposed schedule for

(1) completing discovery, and

(2) the evidentiary hearing, taking into account time necessary for transcription, if any, and for pre-hearing preparations and pre-hearing conference; or

C. If neither party elects to engage in depositions, then they shall so notify the court on or before June 22, 2012, and immediately thereafter shall engage in preparations, adhering to the procedures outlined in Local Rule 16.1 to the extent applicable,5 for a pre-hearing conference to be conducted on Friday, August 10, 2012, at 9:00 a.m., with the evidentiary hearing to commence as scheduled at 10:00 a.m. on August 20, 2012.

The evidentiary hearing necessary for the court to perform the "more searching inquiry," will include both aspects of the § 2255 claim as remanded by the Court of Appeals — the "newly discovered evidence/Britt claim" aspect as well as the add-on "unsourced hairs" aspect. MacDonald, who bears the burden of proving his § 2255 claims, will present his proof first. Although most, if not all, of MacDonald's "newly discovered evidence/Britt claim" "fact" witnesses now are deceased, there may be other evidence he wishes to present. Of course, the Government is entitled to present whatever relevant evidence6 it has in response to the proffered affidavits, depositions, live witnesses, and the arguments arising therefrom.

Similarly, MacDonald will present the testimony of his own expert witnesses for factual support of his § 2255 "unsourced hairs" claim that the 2006 AFDIL test results demonstrate that intruders, in fact, committed the murders. The Government, of course, will cross-examine those witnesses and elicit testimony from its own forensic witnesses, including those whose affidavits were submitted in the Government's Response [DE-212] to the § 2255 aspect of MacDonald's motion [DE-176] concerning the "newly discovered evidence/Britt claim," and whom MacDonald may depose according to the directions contained herein.

This § 2255 litigation is, of course, civil in nature; thus, the hearing will be conducted in accordance with the FEDERAL RULES OF CIVIL PROCEDURE to the extent they are not inconsistent with more specific § 2255 Rules. Significantly, and as the parties certainly are well aware, this evidentiary hearing may include hearsay, as well as previously excluded evidence and evidence not previously mentioned, evidence that is admissible and that which is inadmissible, if it is part of the "evidence as a whole" as that term is defined by controlling law. See MacDonald, 641 F.3d at 614.

B. The IPA Motion

On the eve of the September 21, 2011, status conference, MacDonald through separate counsel, Christine Mumma, Director of the North Carolina Center on Actual Innocence, filed the "Motion Pursuant to the Innocence Protection Act of 2004, 18 U.S.C. § 3600, For a New Trial based on DNA Testing Results and Other Relief," [DE-176]. The "Other Relief' MacDonald seeks is an order permitting him to conduct "Y-STR" and "Touch" DNA testing on "the physical evidence to identify biological evidence, and to conduct further and expeditious DNA testing of additional biological evidence that the defendant will identify after inspection...." Motion [DE-176], ¶ 9 (citation omitted). According to Ms. Mumma's Affidavit appended to the IPA Motion [DE-176], Y-STR and Touch DNA testing could prove "very probative." She explained,

Mumma Affidavit, Exh. 1 to [DE-176] ¶ 9.

Initially, MacDonald argued that his 1997 motion for DNA testing [DE-46], which ultimately produced the 2006 AFDIL test results [DE-119], should be considered as his timely IPA motion pursuant to § 3600. See Motion [DE-176], ¶ 5 ("Defendant's 1997 request for DNA testing (while the [AFDIL/AFIP] testing was being conducted in 2004) constitutes a request for relief under the IPA"). Of course, the IPA was not even enacted until 2004, and MacDonald now concedes that "his 1997 Motion for DNA Testing did not constitute a request for testing under the IPA." Reply [DE-237] at p. 6.

The only suggestion of a theory upon which MacDonald contends his alternative IPA motion is timely under the terms of that Act is contained in a single sentence, lacking citation, declaring: "The results [of the 1997 testing] constitute additional evidence to be considered in conjunction with MacDonald's assertion of actual innocence, rebutting a presumption of untimeliness under the IPA." Id. at p. 1. Presumably, he is referring to § 3600(a)(10)(B)(iii) concerning a rebuttable presumption against timeliness, which itself may be rebutted upon the court's finding, "(iii) that the applicant's motion is not based solely upon the applicant's own assertion of innocence and, after considering all relevant facts and circumstances surrounding the motion, a denial would result in a manifest7 injustice."

MacDonald's has not explained how his "assertion of actual innocence," which is the gravamen of his successive § 2255 motion, is likely to be ultimately dispositive of timeliness issues concerning this court's jurisdiction over his separate IPA motion. Although the Government has advanced a compelling argument in opposition to the IPA motion and briefing thereon is complete, the court nevertheless declines, at this point, to address the viability of the "alternative" IP A motion.

SUMMARY

The parties are ORDERED to fully and carefully review and comply with the directions and orders contained herein.

SO ORDERED.