Goodman v. Davenport et al

Filing 11

MEMORANDUM OPINION court declines to issue a COA with respect to any claims as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/12/2015. (AHI)

FILED
2015 Jun-12 PM 04:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION

TIMOTHY MILLARD GOODEN,
Petitioner,
vs.
CARTER F. DAVENPORT,
Warden, and THE ATTORNEY
GENERAL OF THE STATE
OF ALABAMA,
Respondents.

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Case No. 1:15-cv-00470-CLS-HGD

MEMORANDUM OPINION
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, 2005.1 (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

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The court notes that Peoples was executed, based on his capital murder conviction, on
September 22, 2005.
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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 principal. No particular acts are necessary to make one
an aider and abettor. . . .
Scott v. State, 374 So.2d 316, 318-19 (Ala. 1979) (citation omitted).
In petitioner’s case, the 2005 affidavit of John Peoples is not “newly
discovered evidence.” Further, petitioner has failed to show that it is more likely than
not that no reasonable juror would have found him guilty beyond a reasonable doubt
as an accomplice of Peoples by aiding and abetting him in the murders of the victims.
Therefore, he cannot overcome the statute of limitations bar.
After careful consideration of the record in this case, the magistrate judge’s
report and recommendation and petitioner’s objections thereto, the court hereby
ADOPTS the report of the magistrate judge. The court further ACCEPTS the
recommendations of the magistrate judge that the petition for writ of habeas corpus
be denied.

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Pursuant to Rule 11 of the Rules Governing § 2254 Cases, the Court has
evaluated the claims within the petition for suitability for the issuance of a certificate
of appealability (COA). See 28 U.S.C. § 2253.
Rule 22(b) of the Federal Rules of Appellate Procedure provides that when an
appeal is taken by a petitioner, the district judge who rendered the judgment “shall”
either issue a COA or state the reasons why such a certificate should not issue.
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has
made a substantial showing of the denial of a constitutional right.” This showing can
be established by demonstrating that “reasonable jurists could debate whether (or for
that matter, agree that) the petition should have been resolved in a different manner”
or that the issues were “adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542
(2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4, 103 S.Ct. 3383, 3394-95
& n.4, 77 L.Ed.2d 1090 (1983)). For procedural rulings, a COA will issue only if
reasonable jurists could debate whether the petition states a valid claim of the denial
of a constitutional right and whether the court’s procedural ruling was correct. Id.
The Court finds that reasonable jurists could not debate its resolution of the
claims presented in this habeas corpus petition. For the reasons stated in the
magistrate judge’s report and recommendation, the Court DECLINES to issue a COA
with respect to any claims.
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A separate order in conformity with this Memorandum Opinion will be entered
contemporaneously herewith.
DONE this 12th day of June, 2015.

______________________________
United States District Judge

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