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Mashburn v. Thomas

United States District Court, N.D. Alabama, Eastern Division

January 20, 2015

Ellis Louis Mashburn, Jr., Petitioner,
v.
Kim Thomas, Respondent.

MEMORANDUM OF OPINION

L. SCOTT COOGLER, District Judge.

I. Introduction

On September 16, 2014, Petitioner Ellis Louis Mashburn, Jr. ("Mashburn"), through counsel, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2006 capital murder conviction and sentence of death in the Circuit Court of Calhoun County, Alabama.

On December 1, 2014, the day on which the Respondent had been ordered to file its answer to the petition as well as the state court record, the Respondent filed a motion to dismiss Mashburn's petition as barred by the one-year limitations period set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), as well as a request to extend the answer and state court record filing deadlines until such time as the Court rules on the motion to dismiss. (Docs. 5 and 6.)

After initial review of the Respondent's motion to dismiss, the Court granted the request for an extension of the other deadlines and ordered Mashburn to show cause why the motion to dismiss should not be granted. Mashburn has responded to the show cause order (doc. 8), and the Respondent has filed a reply in support of its motion (doc. 9).

For the following reasons, the Courts finds that Mashburn's habeas petition is due to be dismissed as filed outside of the AEDPA's one-year statute of limitations.

II. Procedural History

On October 29, 2002, Mashburn and an accomplice robbed and murdered his grandmother and step-grandfather, Henry and Clara Eva ("Eva") Birmingham, at their home. The autopsy revealed that they died as a result of multiple blunt and sharp force injuries. Blood that matched Mashburn's blood type was located in the victims' house. Law enforcement officers later retrieved various pieces of Eva Birmingham's jewelry from Mashburn's residence.

Mashburn was indicted for five counts of capital murder-two counts because he had committed the murders during the course of a robbery, two counts because he had committed the murders during the course of a burglary, and one count because he committed the murders by one act or pursuant to one scheme or course of conduct. On September 13, 2006, Mashburn pleaded guilty before a jury to all five counts of capital murder, stating that he was doing so because he was in fact guilty. The matter was presented to a jury so the jury could determine whether the State had proven its case against Mashburn beyond a reasonable doubt, as required by Alabama Code section 13A-5-42. After hearing all the evidence, the jury convicted Mashburn on each count.

At the penalty phase, the trial court found the existence of four aggravating circumstances: (1) that the murders were committed during the course of a burglary; (2) that the murders were committed during the course of a robbery; (3) that the murders were especially heinous, atrocious, or cruel when compared to other capital offenses; and (4) that Mashburn caused the death of two or more persons pursuant to one scheme or course of conduct. The jury voted 11-1 in favor of recommending the death penalty. The trial court followed the jury's recommendation and sentenced Mashburn to death.

Mashburn's conviction and sentence were affirmed by the Alabama Court of Criminal Appeals and certiorari review was denied by the Alabama Supreme Court. Mashburn v. State, 7 So.3d 453 (Ala.Crim.App.2007), cert. denied October 24, 2008. The United States Supreme Court denied Mashburn's petition for certiorari review on June 1, 2009. Mashburn v. Alabama, 556 U.S. 1270 (2009).

On October 21, 2009, Mashburn, through the same counsel that represents him in this proceeding, filed a petition for state post-conviction relief in the state circuit court pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. On February 8, 2010, the State filed its answer and a motion to dismiss all claims in Mashburn's petition.[1] On March 2, 2010, Mashburn filed a motion in which he made various discovery requests of the State. On March 3, 2010, counsel for the parties participated in a teleconference with the circuit court for the purpose of initially reviewing the case. During the teleconference, counsel for the State requested that the court allow it to respond to Mashburn's discovery requests. The court informed the parties that it would not rule on the State's motion to dismiss until it had ruled on Mashburn's discovery motion. The court also stated that it would set a briefing schedule for the State's motion to dismiss and would allow Mashburn to respond to it before ruling on it. The State filed its opposition to Mashburn's motion for discovery on March 11, 2010. Mashburn filed a reply brief in support of his motion for discovery on March 18, 2010. On March 30, 2010, the State sent a proposed order to the court that would dismiss Mashburn's petition for the reasons stated in its motion to dismiss. On April 1, 2010, the court signed and entered that order, dismissing Mashburn's Rule 32 petition in its entirety. At that time the court had not yet ruled on Mashburn's discovery request or set a briefing schedule on the State's motion to dismiss. The court's April 1, 2010, dismissal order indicates that a copy of the order was served on counsel for Mashburn. However, neither counsel for Mashburn nor counsel for the State was served with a copy of the dismissal order. Not surprisingly, then, Mashburn did not file a notice of appeal of that dismissal order within the 42-day period provided under Alabama law. See Rule 26(a), Ala. R. App. P.

It was not until August 23, 2011, sixteen months later, that counsel for the State notified Mashburn's counsel that he had recently obtained a copy of the April 1, 2010, signed dismissal order by inquiring with the court about the status of the post-conviction proceedings. At that time, counsel for the State told Mashburn's counsel that the State had not been served with a copy of the order. Counsel for Mashburn stated that he had not been served either. Counsel for the State then informed Mashburn's counsel that the State would not oppose Mashburn filing a new petition seeking an out-of-time appeal under Rule 32.1(f), Ala. R. Crim. P. Under Alabama law, the proper way to seek an out-of-time appeal from the denial of a Rule 32 petition when the failure to timely appeal was due to no fault of the petitioner is by filing another Rule 32 petition in the circuit court. See Ala. R. Crim. P. 32.1(f). Petitioners have six months from discovery of the dismissal or denial to file the Rule 32.1(f) petition seeking an out-of-time appeal. See Ala. R. Crim. P. 32.2(c).

On September 8, 2011, sixteen days after learning of the court's dismissal of the Rule 32 motion, Mashburn filed a pleading in his original Rule 32 action styled as "Motion Pursuant to Alabama Rule of Criminal Procedure 32.1(f) to Set Aside or Vacate the Court's Order Dismissing Petitioner's Rule 32 Motion." He attached to this motion his original Rule 32 petition that had been filed on October 21, 2009. This motion did not request an out-of-time appeal, but rather sought to vacate the court's dismissal order. In open court on October 12, 2011, Mashburn filed a new petition styled "Amended Petition for Relief from Judgment Pursuant to Rule 32.1(f)." Among other things, this petition sought, under Rule 32.1(f), an out-of-time appeal from the circuit court's dismissal of his original Rule 32 petition, in the event that the court did not grant Mashburn's motion to set aside or vacate the April 1, 2010 order. That same day, the circuit court held a hearing on the petition. The circuit court dismissed successive claims raised in the new petition, but granted Mashburn's petition for an out-of-time appeal. The court expressly found that the delay was due to no fault of Mashburn's or his counsel's, writing, "It appears that neither party received notice of this Court's order summarily dismissing that petition for post-conviction relief. No appeal was filed on that petition. The failure to appeal was not the fault of the Petitioner or his counsel."

On November 18, 2011, Mashburn filed his notice of appeal in the Alabama Court of Criminal Appeals. The appellate court affirmed the circuit court's summary dismissal of Mashburn's original Rule 32 petition on July 12, 2013. Mashburn v. State, 2013 WL 3589300, at *3 (Ala.Crim.App.July 12, 2013). On February 21, 2014, the Alabama Supreme Court denied certioari review.

On September 26, 2014, Mashburn filed the instant petition for writ of habeas corpus in this Court, which is his first and only federal habeas petition.

III. Discussion

A. Statutory tolling of the AEDPA's one-year statute of limitations during the pendency of Mashburn's state post-conviction proceedings

The AEDPA establishes a one-year time limitation for a state prisoner to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1). "This rule serves the well-recognized interest in the finality of state court judgments' and reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review.'" Drew v. Dep't of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002) (quoting Duncan v. Walker, 533 U.S. 167, 179 (2001)). The one-year period runs from the latest of four specified dates. 28 U.S.C. § 2244(d)(1). This case involves the date provided by § 2244(d)(1)(A), which is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."

The 365-day filing period for Mashburn's federal habeas petition began to run on June 1, 2009, the date on which the United States Supreme Court denied his petition for writ of certiorari on direct review. The clock ran for 142 days until Mashburn filed his Rule 32 petition on October 21, 2009. Thus, Mashburn's Rule 32 petition was filed with 223 days remaining in the § 2244(d)(1) limitations period. The AEDPA limitations period was statutorily tolled during the time in which Mashburn's Rule 32 petition was pending. See 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed application for State post-conviction ...


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