Joshua v. Estes et al
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 2/24/2016. (KAM, )
2016 Feb-24 PM 04:37
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
DEWAYNE ESTES, Warden;
and the ATTORNEY GENERAL OF )
THE STATE OF ALABAMA,
Case No. 4:13-cv-0862-AKK-TMP
On October 16, 2014, the magistrate judge filed his Report and
Recommendation, recommending that this petition for habeas corpus relief filed
pursuant to 28 U.S.C. ' 2254 be denied and dismissed. Doc. 15. On October
21, 2014, the respondents filed objections, doc. 16, on the basis that the magistrate
judge had not addressed a claim relating to “good time” credits, which the
Petitioner raised by filing a separate petition, doc. 11, and which the court
construed as a motion to amend, doc. 12. The respondents correctly pointed out
that, pursuant to Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992), the court must
address all claims in order to resolve the petition. This Memorandum Opinion
therefore addresses the sentence calculation claim, and also addresses Petitioner’s
objections to the Report and Recommendation.
A. Sentence Calculation
In his amended petition, Petitioner alleges that he is “challenging the way
that [his] goodtime credits are being calculated and credited towards [his]
sentence.” Doc. 11 at 5. He requests relief in the form of an order directing the
Department of Corrections to “give the petitioner any and all good time credits that
has [sic] not been credited to petitioner and to show cause as to why the credits
should not be given to the petitioner whereas he was sentenced under the old law.”
Id. at 8.
In response, the respondents contend that Petitioner’s claim for
good-time credit is due to be dismissed as unexhausted and as time-barred. Despite
receiving an opportunity to respond, Petitioner has failed to rebut this contention.
As such, it is undisputed that Petitioner failed to pursue any state remedy, such as a
state habeas corpus petition, for the alleged loss of good time credits. Therefore,
because a state prisoner is only entitled to federal habeas relief under Section 2254
if he has first “exhausted the remedies available in the courts of the State,” 28
U.S.C. ' 2254(b)(1)(A), Petitioner’s petition for habeas relief is due to be denied.
See Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003) (holding that habeas
actions under § 2241 have same exhaustion requirement as petitions under § 2254
where prisoner is in custody pursuant to a state judgment)
Alternatively, the claim fails on the merits. As the respondents have shown,
the state court sentenced Petitioner in 1978 to two consecutive life sentences.
The “old law” provided for Statutory Good Time (“SGT”), by which inmates could
receive a day’s credit for every two days served. However, inmates serving life
sentences were precluded from receiving SGT credits. Doc. 24-1. Moreover,
the only other provision for receiving good time credits is under the Incentive
Good Time (“IGT”) program, which awarded credits based on good behavior, and
was a privilege an inmate had to earn. Id. There is no indication that Petitioner
ever received discretionary IGT.
Accordingly, there is no evidence that
respondents improperly calculated Petitioner’s sentence, and Petitioner’s claim is
due to be denied.
B. Actual Innocence
On October 29, 2014, Petitioner filed objections to the Report and
Recommendation, contending that he has additional “new reliable evidence” that
demonstrates actual innocence. Doc. 17. The innocence contention is based on
Petitioner purportedly learning recently that the victim identified a different man as
her assailant in a pretrial lineup. 1 Petitioner argues that “had the jury known, the
Petitioner attached to his objections a photograph of five men in a lineup, from where it
appears that the witness identified #1 as the assailant. Petitioner is identified as #4 in the photo
jury probably would not have convicted [Petitioner]” and that “there is a
probability that reasonable doubt would have been in at least one of the jurors
mind [sic] and [Petitioner] would not have been convicted.”
Doc. 17 at 3.
Unfortunately, this argument is unavailing.
In McQuiggen v. Perkins, __ U.S. ___, 133 S. Ct. 1924, 185 L. Ed. 2d. 1019
(2013), the Supreme Court made clear that in rare circumstances a showing of
actual innocence can overcome the statute of limitations imposed on habeas
petitioners through AEDPA:
We hold that actual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is
a procedural bar, as it was in Schlup and House, or, as in this
case, expiration of the statute of limitations. We caution,
however, that 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 reasonably, would have voted to find him guilty
beyond a reasonable doubt.” Schlup [v. Delo, 513 U.S. 298,
329, 115 S. Ct. 851 (1995)]; see House [v. Bell, 547 U.S. 518,
538, 126 S. Ct. 2064(2006)] (emphasizing that the Schlup
standard is “demanding” and seldom met). And in making an
assessment of the kind Schlup envisioned, “the timing of the
[petition]” is a factor bearing on the “reliability of th[e]
evidence” purporting to show actual innocence. Schlup, 513
U.S. at 332, 115 S. Ct. 851.
133 S. Ct. at 1928. However, the threshold requirement for a showing of actual
innocence remains a substantial one, and “tenable actual-innocence gateway pleas
are rare.” Id. Rather, to invoke the exception to AEDPA’s time limitation, a
petitioner must show that it is “more likely than not that no reasonable juror would
have convicted in the light of the new evidence.” Id. at 1935 (quoting Schlup,
513 U.S. at 327 (emphasis added)).
In this case, while the failure to identify the Petitioner in a lineup could serve
to diminish the credibility of the victim’s in-court identification, it is not such
convincing evidence that no reasonable juror could convict. To the contrary, the
purported new evidence raises only the possibility of impeachment of the victim’s
in-court identification and does not positively establish Petitioner’s innocence.
Indeed, as the Petitioner argues, the identification discrepancy is evidence that may
have created reasonable doubt in the mind of at least one juror. In other words, it
is not such compelling evidence that “no reasonable juror” could convict. As such,
it does not meet the stringent requirements for an actual innocence claim.
Moreover, Petitioner must also demonstrate that the lineup evidence is
Although the Supreme Court and the Eleventh Circuit have not
defined “new” in the context of the actual innocence gateway, the Fifth Circuit
provides some guidance in Lucas v. Johnson, 132 F.3d 1069, 1074 (5th Cir. 1998).
In Lucas, the court evaluated both a free-standing actual innocence claim and a
“gateway” claim and set the same evidentiary standard for both. First, the court
noted that “much of the evidence alleged by Lucas to be newly discovered is
neither new nor newly discovered, but in its essence and character, was presented,
or available to present, to the trial jury.” Lucas, 132 F.3d at 1074. Next, the court
held that to sustain a “new evidence” claim, a petitioner must show that: “(1) the
evidence is newly discovered and was unknown to the defendant at the time of
trial; (2) the defendant’s failure to detect the evidence was not due to a lack of
diligence; (3) the evidence is material, not merely cumulative or impeaching; and
(4) the evidence would probably produce acquittal at a new trial.” Id. at 1075 n.3
(italics added); but see Griffin v. Johnson, 350 F.3d 956, 961-63 (9th Cir. 2003)
(taking a broad view of “new” evidence to allow a petitioner to proceed on the
basis of evidence he possessed at trial).
In this case, the lineup evidence is not “new.”
Based on the record,
Petitioner knew before he signed his confession that the witness had failed to pick
him out of the lineup. Doc. 6-3 at 22. Therefore, even if he did not have in his
possession at the time the documents related to the lineup, he still knew decades
ago that the “lady didn’t pick [him] [out].”
Put differently, seeing the
documents now for the first time does not mean the evidence is “new.”
Alternatively, even if the evidence is “new,” Petitioner must still
demonstrate “the likely impact of this new evidence on reasonable jurors” in order
to prevail. Melson v. Allen, 548 F.3d 993, 1002 (11th Cir. 2008) (overruled on
other grounds, 130 S. Ct. 3491 (2010)). In doing so, “[n]ew evidence that merely
undermines the state’s theory of the case but does not rebut specific jury findings
of guilt is insufficient to demonstrate actual innocence.” Buckner v. Polk, 453
F.3d 195, 200 (4th Cir. 2006). Indeed, as one court has noted, the gateway is not
intended to provide a petitioner with a new trial “with all the attendant
development of evidence, in hopes of a different result,” but instead is an
“opportunity for a petitioner, aggrieved by an allegedly defective trial and having
inexcusably defaulted the available remedies, to raise such a strong doubt to his
guilt that, in hindsight, [the court] cannot have confidence in the trial’s outcome.”
Weeks v. Bowersox, 119 F.3d 1342, 1353–4 (8th Cir. 1997). A petitioner meets
the threshold requirement only if he persuades the court that, in light of the new
evidence, no juror, acting reasonably, would have found him guilty beyond a
reasonable doubt. Schlup, 513 U.S. at 327. Consequently, to prevail, showing
that a reasonable doubt exists is insufficient. Rather, Petitioner must establish that
no reasonable juror would have convicted him in light of the “new reliable
See, e.g., Bosley v. Cain, 409 F.3d 657, 664 (5th Cir. 2005).
Moreover, in evaluating Petitioner’s claim, “[e]ven if the court, as one reasonable
factfinder, would vote to acquit, the court must step back and consider whether the
petitioner’s evidentiary showing most likely places a finding of guilt beyond a
reasonable doubt outside of the range of potential conclusions that any reasonable
juror would reach.” Doe v. Menefee, 391 F.3d 147, 173 (2d Cir. 2004). Put
differently, a court may determine that, as factfinder, it would return a verdict of
not guilty, yet still reject a petitioner’s argument that he is actually innocent. See,
e.g., Lambert v. Blackwell, 134 F.3d 506 (3d Cir. 1997), cert. denied, 532 U.S. 919
(2001). This is because “[t]he demanding nature of the Schlup standard ensures
that only the ‘extraordinary’ case will merit review of the procedurally barred
claims.” Melson, 548 F.3d at 1002.
Here, Petitioner’s claim of actual innocence rests on his assertion that the
victim failed to identify him in a lineup. However, it is unclear whether the
witness in fact identified a different person in the lineup because the left margin of
the photo array appears to have been obscured from the photocopy. Also, it is not
entirely clear that the “#1” notation is the identification of the assailant because the
instructions call for the witness to place an “X” in the “corresponding square,” and
the copy produced to this court does not show any “X” or any “corresponding
More importantly, even if the documents support Petitioner’s
contention that the victim failed to identify him in the lineup, the record is clear
that the victim made a voice identification of the Petitioner, and identified
Petitioner at the preliminary hearing, and again at the trial.
identification lineup documents only amount to impeachment evidence, which is
insufficient under the prevailing law to open the actual innocence gateway to allow
adjudication of Petitioner’s claims. For these reasons, and because Petitioner
knew about the identification issue before he pleaded guilty, the court cannot
consider the instant petition.
Based on the foregoing, the court is of the opinion that the report is due to be
ADOPTED, and the recommendation is ACCEPTED. Having considered herein
the Petitioner’s claim relating to good time credits, the respondents’ objections are
MOOT, and Petitioner’s objections are due to be and hereby are OVERRULED.
Consequently, the petition for writ of habeas corpus is due to be DENIED and
DISMISSED WITH PREJUDICE. A separate final judgment will be entered.
The Clerk is DIRECTED to mail a copy of this Memorandum Opinion to the
DONE the 24th day of February, 2016.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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