Eubanks v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 3/29/2017. (KAM)

FILED
2017 Mar-29 PM 12:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
BARNEY MOSTELLA,
Petitioner,
v.
KENNETH JONES, et al.,
Respondents.

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Case No.: 4:13-cv-01899-LSC-JHE

MEMORANDUM OF OPINION
On 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.
Most of 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 below.
Mostella 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.
Continuing 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 37). 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
2

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.
Finally, 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 1 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).
Accordingly, 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 entered.
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 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.

1

Mostella briefly argues the requirement that he exhaust state remedies is “not the law.”
However, he is mistaken. See 28 U.S.C. § 2254(b).
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DONE and ORDERED on March 29, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

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