Anderson v. State of Alabama et al
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 8/13/2014. (KAM, )
2014 Aug-13 AM 10:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
STATE OF ALABAMA, et al.,
Case No.: 4:13-cv-00102-LSC-SGC
On March 18, 2014, the magistrate judge entered a report and recommendation
recommending the petition for a writ of habeas corpus filed by Petitioner, Major
Anderson (“Anderson”), pursuant to 28 U.S.C. § 2254 was due to be denied. (Doc.
24). Anderson was advised he had fourteen days to object to the report and
recommendation. (Id.). Anderson requested and was granted an extension of time
to file his objections. (Doc. 25; docket entry dated March 28, 2014). On April 14,
2014, Anderson filed a pleading styled as “Motion to Show Cause That This Court
Has Appellate Jurisdiction.” (Doc. 26). On April 22, 2014, Anderson filed another
pleading styled as “Motion to Show Cause That This Court Has Appellate
Jurisdiction.” (Doc. 27). Anderson’s April 22nd pleading appears to be identical to
his April 14th pleading in substance but with six exhibits attached. (See Docs. 26, 27).
The exhibits consist of three documents that were attached to Anderson’s previous
submissions to the court, as well as three legal cases. The court will treat his filings
as objections to the report and recommendation.
To the extent Anderson’s filings are construed as objections to the report and
recommendation, they largely restate the substantive claims Anderson made in his
petition, which he supplemented twice. (See Docs. 1, 10, and 11). The magistrate
judge declined to reach these claims on the grounds they were time-barred pursuant
to 28 U.S.C. § 2244(d)(1). To the extent Anderson asserts new substantive claims,
they, too, are time-barred.
To the extent Anderson is attempting to argue his actual innocence overcomes
the expiration of the statute of limitations, he has failed to persuade the court. In
McQuiggin v. Perkins, 131 S. Ct. 1924 (2013), the Supreme Court held a showing of
“actual innocence” as applied in Schlup v. Delo, 513 U.S. 298 (1995), and House v.
Bell, 547 U.S. 518 (2006), can overcome the statute of limitations imposed by 28
U.S.C. § 2244(d)(1). The Court cautioned, however, “tenable actual-innocence
gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement unless
he persuades the district court that, in light of the new evidence, no juror, acting
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reasonably, would have voted to find him guilty beyond a reasonable doubt.’” Id. at
1928 (quoting Schlup, 513 U.S. at 329) (citing House, 547 U.S. at 538). The Court
clarified “‘the timing of the [petition]’ is a factor bearing on the ‘reliability of th[e]
evidence’ purporting to show actual innocence.” Id. (quoting Schlup, 513 U.S. at
332). “[A] federal habeas court, faced with an actual-innocence claim, should count
unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier to relief,
but as a factor in determining whether actual innocence has been reliably shown.”
Id. “Unexplained delay in presenting new evidence bears on the determination
whether the petitioner has made the requisite showing.” Id. at 1935.
The bases of Anderson’s actual innocence claim are (1) his conclusory
assertions that he is innocent and that there was a general absence of evidence,
including forensic evidence, to connect him to the crime; and (2) what he claims are
the statements of Andragust Torrance and Nathaniel Kelly, which he attached to
several of his submissions to the court. The statement of Andragust Torrance states:
On Jan 8, 2001 I Andragust Torrance told detectives that Mr. Major
Anderson was the alleged murderer of the late Cameron Frazier; but my
statement was false. I was scared that I would be wrongfully charged
with death of Cameron Frazier. I cannot place Major Anderson at the
scene because I myself can say that I saw him because I did not. My
apologies goes to Major Anderson, and his Family, and also anyone else
who got hurt in the process.
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(Doc. 1 at 51) (errors in original). The statement is dated “8/15/01.” (Id.). The
purported statement of Nathaniel Kelly reads, “Nathaniel Kelly—(vic “cousin) said
that vic was with someone named Moon & Ben.”1 (Doc. 1 at 51-52) (errors in
original). Included on the two sheets of paper on which the purported statements of
Torrance and Kelly appear is the following statement: “Ben Patterson shot and killed
Cameron Frazier the night of January 5, 2001 NOT Major Anderson. (Id. at 52
(emphasis in original)).
Anderson’s conclusory assertions of his innocence do not persuade the court
that no reasonable juror would have voted to find him guilty beyond a reasonable
doubt. Nor do the purported statements of Torrance or Kelly so persuade the court.
“‘[T]o be credible a gateway claim requires ‘new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.’” House, 547 U.S. at 537 (quoting Schlup,
513 U.S. at 324). Anderson’s conclusory assertions are not newly discovered
evidence. Nor does it appear that the purported statements of Torrance or Kelly are
newly discovered evidence. Anderson was convicted on two counts of capital murder
on January 30, 2002. Torrance’s purported statement is dated August 15, 2001. (Id.
at 51). There is no date following Kelly’s purported statement (id. at 51-52), although
Anderson claims “Moon” is Torrance, and “Ben” is Ben Patterson. (Doc. 1 at 31; Doc. 10 at 4; Doc. 11 at 6).
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Anderson claims it was made “[i]n [the] same statement [as] Andragust Torrance.”
(Id. at 20; see also Doc. 11 at 6). Thus, although Anderson generally claims he
became aware of newly discovered evidence “within [s]ix months of filing his Rule
32 petition” (Doc. 1 at 33), the purported statements—or, at least, Torrance’s
purported statement—predates Anderson’s conviction, and it appears the “newly
discovered evidence” was substantially available to Anderson at the time of trial.
Even assuming Anderson did not learn of the purported statements or the information
contained therein until “within [s]ix months of filing his Rule 32 petition,” he offers
no explanation as to why he waited nearly eight years after the expiration of the
statute of limitations imposed by § 2244(d)(1) to present them to this court.
Furthermore, the statements are not witnessed. There is some question as to
whether Kelly’s purported statement was even made by him, given its passive tense
and the apparent lack of a signature. Finally, it is unclear to whom the statement
“Ben Patterson shot and killed Cameron Frazier the night of January 5, 2001 NOT
Major Anderson” may be attributed. The statement comes after the purported
statements of Torrance and Kelly, there is no signature following it, and Anderson
describes it merely as “[a]nother statement that was on that affidavit.” (Id. at 31, 52;
see also Doc. 11 at 6).
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Accordingly, to the extent Anderson’s filings are construed as objections, his
objections are due to be overruled.
Having carefully reviewed and considered de novo all the materials in the court
file, the court is of the opinion the magistrate judge’s findings are due to be and are
hereby ADOPTED and his recommendation is ACCEPTED.
To the extent
Anderson’s filings are construed as objections to the report and recommendation,
such objections are hereby OVERRULED. To the extent Anderson’s filings are
construed as motions, they are hereby DENIED. Accordingly, the petition for a writ
of habeas corpus is DENIED and DISMISSED WITH PREJUDICE. A Final
Judgment will be entered contemporaneously herewith.
Done this 13th day of August 2014.
L. Scott Coogler
United States District Judge
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