L. SCOTT COOGLER, District Judge.
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.
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.
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.
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 or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section.").
However, the Respondent contends, and the Court agrees, that because the circuit court dismissed Mashburn's petition on April 1, 2010, and Mashburn did not file a timely notice of appeal from that dismissal, the AEDPA clock resumed running on May 13, 2010, which was the last day on which Mashburn could have filed a notice of appeal under Rule 26(a), Ala. R. App. P. See Cramer v. Sec'y, Dep't of Corr., 461 F.3d 1380, 1383 (11th Cir. 2006) (a post-conviction application remains pending until the time to seek appellate review expires if a petitioner does not file a notice of appeal). At that point, Mashburn had 223 days left in which to file his § 2254 petition. See Stafford v. Thompson, 328 F.3d 1302, 1303 (11th Cir. 2003) ("The days when nothing was pending would count toward the one-year limitation period."). Mashburn's federal habeas corpus petition would have been due on December 22, 2010. Thus, the time for filing his federal habeas petition had elapsed before either party learned of the dismissal order and was long expired by the time Mashburn's subsequent Rule 32.1(f) petition seeking to file a belated appeal was filed. As Mashburn's federal habeas petition was not filed until September 2014, it was nearly four years too late.
Mashburn argues that because the state courts later granted his request to appeal the dismissal of his Rule 32 petition out-of-time, his Rule 32 petition remained "pending"—and thus statutorily tolled the one-year statute of limitations for purposes of § 2244(d)(2)—from the time he filed it on October 21, 2009, during the 16-month interval of time between May 13, 2010 (the date that the period expired to appeal the April 1, 2010 dismissal order) and September 8, 2011 (the date Mashburn filed his petition for belated appeal), and that it continued to be pending through the state courts' consideration of his belated appeal up until the date that the Alabama Supreme Court denied certiorari review on February 21, 2014. According to Mashburn, then, when the Alabama Supreme Court denied review of his Rule 32 petition on February 21, 2014, he still had 223 days left in which to file his federal habeas petition, and his filing of the petition on September 26, 2014, with six days remaining on the clock, was thus timely.
However, Eleventh Circuit precedent, which firmly establishes that the statutory tolling period does not encompass a period of time in which a state petitioner does not have a properly-filed post-conviction petition actually pending in state court, forecloses Mashburn's argument. The controlling case is Moore v. Crosby, 321 F.3d 1377 (11th Cir. 2003). In Moore, the petitioner filed a state post-conviction motion on September 8, 1997, after 268 days had elapsed from the date on which his judgment of conviction became final. Id. at 1379 n.1. The Florida state post-conviction court denied the motion on September 15, 1998. Id. As Mashburn failed to do here, the petitioner did not timely appeal the court's denial of his post-conviction motion. Id. Then, a period of 199 days elapsed from the expiration of the time for appeal (October 15, 1998) until the petitioner filed his first state petition seeking a belated post-conviction appeal (May 11, 1999). Id. As of May 11, 1999, 467 days had already elapsed, not counting the period of tolled time in which his post-conviction petition was pending.
The Eleventh Circuit affirmed the district court's denial of the Rule 60(b) motion in the petitioner's federal habeas case, holding that the petitioner's filing of an out-of-time appeal of the denial of the state post-conviction motion after the federal limitations period had already expired did not revive the time during which no state collateral petition was pending before the state court and thus did not toll the AEDPA limitations period, explaining:
Id. at 1380-81.
The same is true for Mashburn's case as was true in Moore: at the point when Mashburn's AEDPA limitations period expired (December 22, 2010) Mashburn "was not entitled to further appellate review [of his Rule 32 petition, because he had not timely appealed its dismissal], and thus he had no application `pending' in state court." Id. at 1380. Simply put, there was nothing for the state court to consider until Mashburn filed his request for a belated appeal on September 8, 2011, and thus there was nothing "pending" before the state court in the interim 223-day period between the last day Mashburn had to appeal the Rule 32 court's denial of his petition (May 13, 2010) and the expiration of the one-year statute of limitations on December 22, 2010. The state court's act of later granting Mashburn's request for a belated appeal would have restarted the tolling relating to the Rule 32 petition, starting from the time of the properly-filed request for a belated appeal (if the AEDPA clock had not already run out months earlier), but it did not change the fact that the Rule 32 petition was not pending prior to the filing of the request for the belated appeal, when the AEDPA limitations period ran out.
In a similar case, McMillan v. Secretary for Department of Corrections, 257 F. App'x 249 (11th Cir. 2007), the Eleventh Circuit reiterated the rule in Moore, stating: "[w]e reject the argument that a state post-conviction motion remains `pending' after the standard time to file an appeal expires merely because a state provides a procedure for seeking an out of time appeal in special circumstances or because a state court ultimately grants a petition for an out-of-time appeal." Id. at 250.
Id. at 252.
The cases Mashburn offers do not call this Eleventh Circuit precedent into question because they either contain materially different facts or do not discuss statutory tolling under § 2244(d), or both. For example, Mashburn cites the Supreme Court's decision in Jimenez v. Quarterman, 555 U.S. 113 (2009), for the proposition that the "federal statute of limitations does not run until state proceedings are complete, even when it involves large gaps of time when a petitioner is not pending in court" (doc. 8 at 7), but in that case the Court was not addressing the statutory tolling provisions of § 2244(d)(2), but was rather determining when the § 2244(d) limitations period begins to run. In Jimenez, after the petitioner's conviction for burglary became final on October 11, 1996, the state appellate court held in post-conviction proceedings that the petitioner had been denied his right to direct appeal and granted him the right to file an out-of-time direct appeal. 555 U.S. at 116. The petitioner filed the direct appeal, his conviction was affirmed, he filed a second state post-conviction application which was denied, and he then filed his first federal habeas petition. Id. The state argued that the petitioner's habeas petition was untimely because the statute began to run on October 11, 1996, when the petitioner's conviction first became final. As recounted by the Court:
Id. at 116-17 (footnote omitted). The Court ultimately interpreted section 2244(d)(1)(A) as follows:
Id. at 121.
By its words, the Jimenez decision implicates only those cases in which there is an out-of-time direct appeal filed as a part of the post-conviction review process in the determination of when direct review ends and when section 2244(d)'s statute begins to run. The Court does not agree with Mashburn that this narrow holding should be expanded to mean that an out-of-time appeal of a post-conviction motion "retroactively" tolls periods of time in which the petitioner is not attempting to exhaust state remedies. Indeed, shortly after Jimenez was handed down, the Eleventh Circuit noted in dicta in Hollingsworth v. Secretary, Department of Corrections, 334 F. App'x 302 (11th Cir. 2009), that because the petitioner's "belated [post-conviction] appeal was not a direct appeal of his conviction, Jimenez does not affect the calculation of [the petitioner's] AEDPA clock." Id. at 305 n.4. In Hollingsworth, as in the cases discussed above, the petitioner failed to timely appeal the state court's denial of his post-conviction motion because he was not apprised of the dismissal in time, and by the time he filed his request for a belated appeal, the one-year AEDPA clock had already run. The Hollingsworth court relied on Moore to hold that the petitioner's belated appeal did not "relate back so as to toll idle periods preceding the filing of the federal [habeas] petition." Id. at 305 (quoting Moore, 321 F.3d at 1381).
Mashburn also argues that the case of Loggins v. Thomas, 654 F.3d 1204 (11th Cir. 2011), and its underlying state cases, is indistinguishable to his but that no federal court found Loggins's petition to be untimely. However, in Loggins, the State never argued that Loggins's federal petition was untimely, and there was no sua sponte discussion from the Eleventh Circuit of how that cases's complicated procedural history would affect the calculation of time for the purposes of § 2244(d)(1). The Supreme Court has held that a federal court may in its discretion consider the timeliness of a state prisoner's habeas petition sua sponte, but it is not obligated to. Day v. McDonough, 547 U.S. 198, 209-10 (2006). This Court will not heed Mashburn's suggestion to take the Eleventh Circuit's silence on the timeliness of Loggins's petition as any kind of affirmative statement relevant to Mashburn's case.
In sum, Mashburn's Rule 32 proceedings stopped tolling the AEDPA limitations period when they ceased to be pending, which occurred on March 15, 2010, or the last day on which Mashburn could have appealed the circuit court's dismissal order. During the following 223 days in which nothing was pending, the AEDPA clock ran out, and the fact that Mashburn subsequently requested, and was granted, a belated appeal does not operate to retroactively statutorily toll those days. See Moore, 321 F. 3d at 1380-81. Mashburn's § 2254 petition, which was filed nearly four years later, is thus due to be dismissed as untimely, unless he can establish that equitable tolling or some other exception applies.
Mashburn argues in the alternative that he is entitled to equitable tolling of the AEDPA clock from April 1, 2010, the date on which the circuit court dismissed his Rule 32 petition, to the time that Mashburn sought an out-of-time appeal. However, as an initial matter, it is not clear that Mashburn is entitled to equitable tolling on these facts. Additionally, even assuming that he is entitled to equitable tolling of the period of time up until he discovered that the court had dismissed his petition, his § 2254 motion was still filed six days too late.
"Equitable tolling is an extraordinary remedy which is typically applied sparingly." Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). The AEDPA's one year statute of limitations for filing a federal habeas petition is subject to equitable tolling only "when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002) (quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999)). In certain circumstances, a habeas petitioner may be "entitled to have the time limitations of AEDPA equitably tolled until the date that he received notice that the state court had denied relief." Id. However, this relief is available only to petitioners who "exercised diligence in inquiring about the decision." Id. at 711. Due diligence "is assessed on a case-by-case basis, considering the specific circumstances of the subject case." Cole v. Warden, Ga. State Prison, 768 F.3d 1150, 1158 (11th Cir. 2014).
It is by no means clear that Mashburn has made the required showing of diligence and circumstances beyond his control that would entitle him to equitable tolling. As stated above, the trial judge dismissed Mashburn's petition on April 1, 2010, without providing notice to Mashburn or to the State. The Eleventh Circuit discussed a similarly delayed order in Drew v. Department of Corrections:
297 F.3d at 1288.
As was the case in Drew, while the circuit court's failure to notify the parties of the dismissal was not Mashburn or his counsel's fault, the inquiry does not end there. Mashburn must also be able to show that he was diligent in attempting to ascertain the status of his case. Due to the fact that the court apparently assured the parties during the teleconference on March 30, 2010, that it would not rule on the State's motion to dismiss until after it had ruled on Mashburn's discovery request and until after it had allowed Mashburn the opportunity to respond to the motion to dismiss, it is understandable that neither Mashburn nor his counsel inquired about the status of his case for a considerable period of time thereafter. However, Mashburn's counsel made no inquiries for sixteen months, and thus did not learn about the circuit court's dismissal order until counsel for the State, who had made an inquiry with the court regarding the case's status, notified him.
Mashburn's counsel's failure to inquire about his case distinguishes it from the facts in Knight v. Schofield, on which Mashburn attempts to rely. As the Eleventh Circuit described in that case:
292 F.3d at 711. Unlike Knight, Mashburn and his counsel never took the initiative to inquire about the status of the case. Moreover, Mashburn was represented by counsel during the entire period and had resources that were unavailable to Knight.
These facts show a lack of diligence on the part of Mashburn's counsel such to preclude the extraordinary remedy of equitable tolling. The Court also notes that after the conclusion of the direct review process on the belated post-conviction appeal, which Mashburn's counsel knew had been delayed sixteen months, Mashburn's counsel still waited over seven more months, until September 26, 2014, to file his federal habeas corpus petition.
In any event, even assuming for the purposes of argument that Mashburn could show that he was entitled to equitable tolling, his petition is still untimely. This is because Mashburn would only be entitled to equitable tolling up until August 23, 2011, "the date that he received notice that the state court had denied relief." Knight, 292 F.3d at 711. On that date, the AEDPA clock began running again because no state court proceeding was pending at that time. See 28 U.S.C. § 2244(d)(2); see also Moore, 321 F. 3d at 1381 ("[AEDPA's tolling provision] does not encompass a period of time in which a state prisoner does not have a `properly filed' post-conviction application actually pending in state court."); Stafford, 328 F.3d 1303. From August 23, 2011, until the filing of his next state court pleading on September 8, 2011, sixteen days elapsed. Thus, Mashburn had 207 days remaining in which to file his habeas petition. The clock began running again when Mashburn's Rule 32.1(f) proceeding became final with the Alabama Supreme Court's denial of certiorari review on February 21, 2014. With 207 days remaining, Mashburn's habeas corpus petition would have been due on September 16, 2014. Mashburn's petition was not filed until September 26, 2014. Thus, even under the most favorable interpretation of the facts possible, Mashburn's petition is time-barred under the provisions of 28 U.S.C. § 2244(d).
Mashburn argues that since Ala. R. Crim. P. 32.2(c) gave him up to six months after learning about the dismissal order to file a request for a belated appeal, this Court should find that the AEDPA clock continued to be equitably tolled during the sixteen days in which he waited to file his out-of-time appeal request. According to Mashburn, then, the clock with 223 days remaining did not begin to run again until the Supreme Court denied review of the belated appeal on February 21, 2014, and his § 2254 motion was timely filed on September 26, 2014 because there were six days remaining on the clock. Under Mashburn's logic, if he had waited until the last day of the six-month period provided for in Ala. R. Crim. P. 32.2(c) to file his belated appeal, the AEDPA clock should have remained equitably tolled for that entire six-month period. However, Mashburn cites no authority indicating that Ala. R. Crim. P. 32.2(c) has any effect whatsoever on the doctrine of equitable tolling, and this Court finds that it shouldn't. The doctrine of equitable tolling provides that the clock is tolled only up until the petitioner discovers the ruling, no later, and its dual requirements of diligence in efforts to file a timely habeas petition and extraordinary and unavoidable circumstances preventing such a filing run counter to a finding that a petitioner could wait as long as was provided for under state law to file a belated appeal, knowing all the while that he had discovered the ruling months earlier. Moreover, even though it may have reasonably taken Mashburn's counsel sixteen days to prepare the appropriate pleadings seeking an out-of-time appeal, Mashburn has offered no explanation as to why counsel waited seven months after the conclusion of review on the belated direct appeal—a proceeding that counsel knew had been considerably delayed—to file the federal habeas petition. In sum, even if equitable tolling applied in this case up until the date that Mashburn discovered the ruling, Mashburn's habeas petition was still filed too late.
In the interest of completeness, the Court notes that the Supreme Court has held that actual innocence can serve as a gateway through which a prisoner may bring his first federal post-conviction challenge despite the expiration of the relevant statute of limitations. See McQuiggin v. Perkins, 133 S.Ct. 1928, 1934-36 (2013). That holding was based on an equitable exception to the statute of limitations contained in the AEDPA. Id. However, Mashburn has not raised a claim of actual innocence as an exception that might excuse the untimeliness of his filing, either in his brief in response to the Respondent's motion to dismiss or in his habeas petition itself. Indeed, the fact that Mashburn pled guilty to all five counts of capital murder runs counter to any post-conviction claim of actual innocence of the crimes committed. If he were to now make that claim, he would have to produce new, reliable evidence demonstrating that "it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 327 (1995). Nothing in his filings amounts to such a claim.
However, the actual innocence exception has been applied not only in the context of a claim of actual innocence of the crime of conviction, but also in the context of a claim of actual innocence of the sentence imposed. See Sibley v. Culliver, 377 F.3d 1196, 1205-06 (11th Cir. 2004) (citing Sawyer v. Whitley, 505 U.S. 333, 336 (1992)). "To show actual innocence of a capital sentence, a movant `must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found [him] eligible for the death penalty under the applicable state law.'" McKay v. United States, 657 F.3d 1190, 1196-97 (11th Cir. 2011) (quoting Sawyer, 505 U.S. at 336); see also Sibley, 377 F.3d at 1205 (describing how a movant claiming actual innocence of his capital sentence must show that he is innocent of the death penalty because none of the aggravating factors legally necessary for invocation of the death penalty applied). The Supreme Court has acknowledged the difficulty in fitting the actual innocence doctrine "into the context of an alleged error at the sentencing phase of a trial on a capital offense." Sawyer, 505 U.S. at 340 (quoting Smith v. Murray, 477 U.S. 527, 537 (1986)). Accordingly, the Eleventh Circuit has articulated the following rigorous test:
Johnson v. Singletary, 938 F.2d 1166, 1183 (11th Cir. 1991) (emphasis in original).
Construing his habeas petition liberally, Mashburn does allege several ineffective assistance of trial counsel claims that could equate to an argument that he is actually innocent of, or in other words ineligible for, the death penalty. Before addressing those claims, however, the Court first notes that it is unclear whether McQuiggin, which addressed the petitioner's claim that he is actually innocent of the underlying crime committed, can be extended to mean that an "actually innocent of the death penalty" claim can also serve as an equitable exception to the AEDPA's time-bar. For the purposes of discussion, however, the Court will assume that McQuiggin's holding reaches these types of claims.
Mashburn alleges in his habeas petition that, had his trial counsel not been constitutionally ineffective in failing to challenge the robbery and burglary aspects of the murders, which were used as two out of the four aggravating factors making him eligible for the death penalty, then four out of the five capital murder counts would have been eliminated at trial and the use of the robbery and burglary counts as aggravating factors at the sentencing phase would have been unavailable. In support of this claim, Mashburn discusses evidence in the form of witness testimony that Eva Birmingham's former home had been burglarized several months before the night of the murders, that several of the items supposedly stolen from her house on the night of the murders may have been stolen from her former home on a prior occasion instead, and that other items of valuable jewelry were not taken from her home on the night of the murders. Mashburn says that his counsel should have used this evidence to challenge the prosecution's theory that the murders were committed for pecuniary reasons. However, this ineffective assistance of counsel claim is not sufficient to show that Mashburn was actually innocent of the death penalty because, even taking away the four burglary and robbery-related counts and the two burglary and robbery-related aggravating factors, one count of capital murder would have remained that Mashburn was charged with (count five charging him with murder made capital because he killed Henry and Eva Birmingham by one act or pursuant to one scheme or course of conduct) and two aggravating circumstances supporting his eligibility for the death penalty would have remained (that the capital offenses were especially heinous, atrocious and cruel and that Mashburn intentionally caused the death of two or more people by one act or pursuant to one scheme or course of conduct). In other words, Mashburn has not shown that a reasonable juror would not have found one or both of the other two aggravating factors that made Mashburn eligible for the death penalty. See Johnson, 938 F.2d at 1183 (petitioner must be able to show that but for the alleged constitutional error, the sentencing body would not have found any aggravating factors).
Mashburn's other ineffective assistance of counsel claims fare no better. Mashburn claims that his counsel failed to raise a voluntary intoxication argument that could have been asserted to negate that he went to Henry and Eva Birmingham's home with the intent to commit a robbery and burglary. However, as noted above, taking away the two aggravating factors related to robbery and burglary, the jury still could have found the existence of one of the two other aggravating factors. Mashburn also claims that counsel failed to raise an argument that he murdered Henry Birmingham in self defense. Because this claim makes no corresponding argument with regard to his murder of Eva Birmingham, it doesn't negate the existence of the aggravating factors. Finally, Mashburn argues that counsel was ineffective for failing to present certain evidence in mitigation. However, the Supreme Court has rejected this type of argument as a means of claiming actual innocence of the death penalty. See Sawyer, 505 U.S. at 347 ("[T]he `actual innocence' requirement must focus on those elements that render a defendant eligible for the death penalty, and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error.").
In sum, after assuming without deciding that a claim of "actual innocence of the death penalty" may serve as an equitable exception to an untimely-filed petition, and then independently combing through Mashburn's habeas petition for alleged errors related to his innocence of either the crimes committed or the death penalty imposed, this Court finds that Mashburn does not have a colorable claim that he is actually innocent of the death penalty such that there would be a fundamental miscarriage of justice for this Court to fail to consider his time-barred petition.
Mashburn's federal habeas petition is barred by the one-year statute of limitations, and he has failed to prove that he is entitled to an equitable exception from that deadline. For the foregoing reasons, the Respondent's motion to dismiss is due to be granted and Mashburn's § 2254 petition is due to be dismissed.
This 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 jurist would find the district court's assessment of the constitutional claims debatable and 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 Mashburn's claims do not satisfy either standard.
A separate order will be entered.