United States District Court, N.D. Alabama, Eastern Division
C. LYNWOOD SMITH, Jr., District Judge.
On June 2, 2015, the magistrate judge's report and recommendation was entered and the parties were allowed therein fourteen (14) days in which to file objections to the recommendations made by the magistrate judge. On June 9, 2015, petitioner filed objections to the magistrate judge's report and recommendation.
In his objections, petitioner asserts that he can overcome the statute of limitations bar of 28 U.S.C. § 2244(d) because he is actually innocent of the crime of conviction. See McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1931-34, 185 L.Ed.2d 1019 (2013). To show actual innocence of the crime of conviction, a movant "must show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt" in light of the new evidence of innocence. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995). Petitioner has presented the court with a copy of an affidavit from John Peoples which appears to be dated September 17, 2005. (Doc. 10 at 17). In the affidavit, Peoples states that petitioner only drove Peoples to the victims' house and then drove Peoples' truck away to return home, and that petitioner never set foot on the victims' property. Petitioner argues that he was not a participant in the murders, only an accomplice, and that he did not know what Peoples was going to do; therefore, he is actually innocent.
Complicity is defined by Ala. Code § 13A-2-23:
A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
(1) He procures, induces or causes such other person to commit the offense; or
(2) He aids or abets such other person in committing the offense; or
(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make.
As explained in Henry v. State, 555 So.2d 768 (Ala.Crim.App. 1989):
The words "aid and abet" encompass all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary. Wright [ v. State, 494 So.2d 936 (Ala.Crim.App. 1986)]; Sanders v. State, 423 So.2d 348 (Ala.Crim.App. 1982). Actual participation in the crime need not be proved by positive testimony to convict someone of aiding and abetting.... Such facts as the defendant's presence in connection with his companionship, and his conduct at, before, and after the commission of the act, are potent circumstances from which participation may be inferred. Sanders v. State, supra ; Smith v. State, 57 Ala.App. 151, 326 So.2d 680 (1975), cert. denied, 295 Ala. 419, 326 So.2d 686 (1976).
Id. at 769. Additionally,
Any word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, whether or not the one so contributing is present, brings the accused within the statute that makes any person concerned in the commission of a felony, directly or indirectly, a ...