United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OF OPINION
Scott Coogler United States District Judge
February 17, 2017, the magistrate judge entered a Report and
Recommendation, (doc. 14), recommending that the petition for
writ of habeas corpus be dismissed with prejudice. After he
was granted an extension of time to object to the Report and
Recommendation, (docs. 15 & 16), Petitioner Barney Mostella
(“petitioner” or “Mostella”) filed
his objections on March 16, 2017. (Doc. 17). The court has
considered the entire file in this action, together with the
report and recommendation, and has reached an independent
conclusion that the report and recommendation is due to be
adopted and approved.
Mostella's objections reargue claims presented in his
petition and traverse. The magistrate judge addressed those
claims in full in his report and recommendation, and the
Court finds no error in them. To the extent Mostella raises
objections to the report and recommendation not already
addressed by the magistrate judge, the Court considers them
argues the magistrate judge erred in assessing his actual
innocence argument by concluding Mostella was not actually
innocent due to his guilty plea, and he argues “[a]
determination of [his] case must be by United States Supreme
Court decisions, not 11th Circuit cases or any other circuit
cases.” (Doc. 17 at 3). (Id. at 3-4). However,
Mostella's objection is not well taken for two reasons.
First, the magistrate judge did not rely on Mostella's
guilty plea as a total bar to a showing of actual innocence.
(See doc. 14 at 9) (“However, even assuming
the actual innocence gateway were available to him given his
guilty plea, Mostella has not offered any new, reliable
evidence that was not available at the time of his
plea.”). He correctly observed, however, that
Mostella's guilty plea presents a difficulty a petitioner
who had not pleaded guilty would not face: namely, the
“formidable barrier” presented by an admission of
guilt, which Mostella's purported showing of actual
innocence did not overcome. (Doc. 14 at 10) (quoting
Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct.
1621, 1629, 52 L.Ed.2d 136 (1977)). Second, this Court is
bound by the decisions of the Eleventh Circuit, and contrary
to Mostella's argument a judge of this Court
must take Eleventh Circuit decisions into account in
ruling upon a habeas petition.
his assertions of error in the magistrate judge's
assessment of his actual innocence argument, Mostella states
he was not ordered by the magistrate judge to present any new
evidence, and he argues that the magistrate judge should have
ordered an evidentiary hearing to obtain from the state the
evidence Mostella says proves his innocence. (Doc. 17 at
3-7). However, Mostella's burden under Schlup v.
Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808
(1995) to present “new reliable evidence” is not
triggered by court order; it is a threshold requirement of a
showing of actual innocence. See Id. at 324
(“To be credible, [an actual innocence] claim requires
a petitioner to support his allegations of
constitutional error with new reliable evidence . . . that
was not presented at trial.”) (emphasis added).
Mostella has presented no new evidence at all. To excuse
this, he points to his indigence, but it is not clear how his
indigence is alleged to have prevented him from obtaining new
evidence-if such evidence even exists. To the extent that he
argues an evidentiary hearing would allow him to gather
evidence which he does not currently possess, this is simply
a restatement of an argument Mostella advanced in his
petition and traverse, and the magistrate judge did not err
in rejecting it, in part by noting the evidence Mostella
alleges exonerates him is not “new evidence” and
was available to Mostella at the time of his guilty plea.
Mostella argues the magistrate judge failed to assess his
claim of an unconstitutional search and seizure. (Doc. 17 at
10-11). However, the magistrate judge explicitly noted this
claim was not exhausted because Mostella “did not raise
his unconstitutional search and seizure claim . . . in any
state court proceeding” and, because “another
Rule 32 petition would be barred as successive or untimely .
. . [it is] procedurally defaulted” without a showing
it falls into an exception. (Doc. 14 at 6-7).
the court hereby adopts and approves the findings and
recommendation of the magistrate judge as the findings and
conclusions of this court. The petition for writ of habeas
corpus is due to be DISMISSED. A separate Order will be
Court may issue a certificate of appealability “only if
the applicant has a made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. 2253(c)(2). To
make such a showing, a “petitioner must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000), or that “the issues presented were adequate to
deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotations omitted). This Court finds
Petitioner's claims do not satisfy either standard.
 Mostella briefly argues the
requirement that he exhaust state remedies is “not the
law.” However, he is mistaken. See 28 ...