Darby v. Jones et al
MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 6/24/2015. (Attachments: # 1 Appendix A)(KEK)
2015 Jun-24 PM 03:09
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ELVIN EARL DARBY,
WARDEN KENNETH JONES
and THE ATTORNEY
GENERAL FOR THE STATE
Case No.: 7:14-cv-01373-MHH-JHE
On January 9, 2015, Magistrate Judge England entered a Report and
Recommendation in which he recommended that the Court dismiss Mr. Darby’s
petition for writ of habeas corpus. (Doc. 9). After an extension of time, Mr. Darby
filed objections to the report on February 17, 2015. (Doc. 12). For the following
reasons, the Court overrules Mr. Darby’s objections.
STANDARD OF REVIEW
A district court “may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
When a party makes timely objections to a Report and Recommendation, the
district court “make[s] a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” Id.
In his petition for habeas corpus, Mr. Darby “challenges his April 7, 2005
conviction in the Tuscaloosa County Circuit Court for two counts of first-degree
sodomy, for which he was sentenced to fifty years in prison.” (Doc. 12, p. 1). Mr.
Darby contends that the state circuit court violated his federal due process rights
when the court waited too long to mail an order to him that would have given him
an opportunity amend his fourth Rule 32 petition to present newly discovered
evidence for the circuit court’s consideration. (Doc. 12, p. 3).
That state court order to which Mr. Darby refers states that the issues that
Mr. Darby identified in his fourth Rule 32 petition:
have been previously addressed and [the petition] is clearly
successive. The petition fails to state a claim for any “newly
discovered evidence” that would grant relief. The petitioner is given
30 days to amend if he so chooses to state a claim.
(Doc. 12, p. 3; see also Doc. 8, p. 9). Mr. Darby contends that because he received
the order more than 30 days after the circuit court issued the order, he lost his
actual innocence defense. (Doc. 12, p. 3). Mr. Darby summarizes his federal due
process argument as follows:
The circuit court’s failure to furnish Darby a copy of its [sic] order
without undue delay resulted in Darby’s failure to respond to the
circuit court’s [sic] order within 30 days. Darby’s failure to respond
to the circuit court’s [sic] order due to constitutional error in the
circuit courts failure to furnish Darby a copy of its [sic] without undue
delay caused the loss of Darby’s actual innocent claim directly related
to his detention.
(Id.; see also Doc. 12, p. 5).
Magistrate Judge England recommended that the Court dismiss Mr. Darby’s
federal habeas petition because Mr. Darby’s petition is “an attack on the fairness of
Darby’s Rule 32 collateral proceeding,” and under Quince v. Crosby, 360 F.3d
1259, 1262 (11th Cir. 2004), “a finding of a constitutional violation in that
proceeding would not entitle him to relief from his sentence or conviction.” (Doc.
9, p. 3). In his objections to Judge England’s report, Mr. Darby challenges certain
characterizations of his habeas argument in the report and emphasizes that his
actual innocence claim is “directly related to his detention,” such that Quince
should not bar his federal habeas petition. (See Doc. 12, pp. 5-11).
In Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004), the Eleventh
Circuit held that “an alleged defect in a collateral proceeding does not state a basis
for habeas relief.” The Eleventh Circuit explained, however, that a petitioner can
argue “that there was a deficiency which rendered the state court proceedings not
full and fair. Such a deficiency might deprive the state of the presumption of
correctness with respect to the findings of” the state court judge. Id.
Judge England properly found that Mr. Darby’s federal habeas petition does
not attack the validity of Darby’s state conviction or sentence but instead pertains
to the fairness of Mr. Darby’s fourth Rule 32 collateral proceeding. Admittedly, if
Mr. Darby could establish actual innocence in the Rule 32 proceeding, the result
would have a direct impact on his detention, but the fact remains that his federal
petition addresses the lack of due process in a state collateral proceeding, not
Darby’s state detention. Therefore, the Court overrules Mr. Darby’s objections to
the Report and Recommendation.
Giving Mr. Darby the benefit of the doubt and assuming that his due process
challenge is tantamount to an argument under Quince that there was a deficiency in
his fourth Rule 32 proceeding “which rendered the state court proceedings not full
and fair,” thus depriving the state court decision of the presumption of correctness
with respect to the findings of the state court judge, the Court still overrules Mr.
Darby’s objections. Such a challenge under Quince fails because the Alabama
Court of Criminal Appeals properly considered and resolved Mr. Darby’s fairness
As Mr. Darby recognized in his objections, the Alabama Court of Criminal
Appeals held that “the failure of a circuit court to serve its orders on a Rule 32
petitioner or his or her counsel . . . is a denial of due process,” and the Court of
Criminal Appeals acknowledged that Mr. Darby did not receive a copy of the
circuit court’s 30-day order until after the 30 days in which the circuit court gave
him an opportunity to amend his Rule 32 petition expired. (Doc. 12, pp. 6-7; see
also Doc. 1, p. 43). Nevertheless, the Court of Criminal Appeals affirmed the trial
court’s decision because the Court of Criminal Appeals found that any error was
“harmless beyond a reasonable doubt and did not affect Darby’s substantial
rights.” Ex parte Darby, CR-12-0847, p. 9 (Ala. Crim. App. Oct. 2, 2013).1 The
Court of Criminal Appeals pointed out that even though Mr. Darby did not receive
the trial court order that gave him 30 days to amend his Rule 32 petition, Mr.
Darby unilaterally filed multiple amendments to his petition after the trial court
entered the 30-day order.2 The trial court considered all of these amendments
before it dismissed Mr. Darby’s Rule 32 petition. (Id.) Therefore, Mr. Darby was
not harmed by the delayed distribution of the trial court’s 30-day order.
The Alabama Court of Criminal Appeals added that the trial court error was
harmless because of the nature of the new evidence that Mr. Darby identified. The
state appellate court explained that under Rule 32 of the Alabama Rules of
Criminal Procedure, to receive relief from a conviction or sentence on the basis of
“newly discovered material facts,” a defendant cannot rely on new facts that
“merely amount to impeachment evidence.” The Court of Criminal Appeals found
The Court takes judicial notice of the Alabama Court of Criminal Appeals’s decision. See
Horne v. Potter, 392 Fed. Appx. 800, 802 (11th Cir. 2010) (district court properly took judicial
notice of documents related to the plaintiff’s previous civil action because the documents “were
public records that were ‘not subject to reasonable dispute’ because they were ‘capable of
accurate and ready determination by resort to sources whose accuracy could not reasonably be
questioned.’”) (quoting Fed. R. Evid. 201(b); other internal citations omitted). The state court
appellate decision is available on the Alacourt website. A copy of the decision is attached to this
opinion as Appendix A.
On November 9, 2012, Mr. Darby filed an “Amendment to Clarify Pleading.” On November
16, 2012, Mr. Darby filed a second “Amendment to Pleading.” On December 7, 2012, Mr.
Darby amended his petition a third time, filing a “Motion to Amend Rule 32 Petition by Adding
a Pleading Pursuant to Rule 32.7(b), A. R. Cr. P.” Darby, CR-12-0847 at p. 4.
that Mr. Darby’s newly discovered evidence pertained to “the credibility of the
victims” such that the new facts constituted “impeachment evidence” under Rule
32.1. Darby, CR-12-0847 at pp. 12-13 (citing Ala. R. Crim. P. 32.1(e)(3)). As a
result, Mr. Darby’s newly discovered evidence could not provide a basis for relief
from his conviction or sentence under Alabama law.
The undersigned has reviewed the new evidence that Mr. Darby submitted
with his filings in this court and finds that it is, as the Alabama Court of Criminal
Appeals recognized, impeachment evidence. Indeed, Mr. Darby argues in his
federal habeas petition that “[t]he newly discovered evidence has exposed the
State’s case against Darby as merely an intentional deception by it’s [sic]
witnesses, that based on the newly discovered evidence none of the accusations
against him can be possible, and that the actions of the state’s witnesses are
criminal.” (Doc. 1, p. 14). Mr. Darby wishes to present his newly discovered
evidence in a Rule 32 petition to establish that “the state’s only evidence that a
crime had occurred was through the testimony of their witnesses” and “[h]ad the
jury known at the time of trial, based on this newly discovered, they  had been
deliberately deceived, and the facts in issue upon which the victims based [their]
cause of action was not possible. The jury could not have convicted Darby beyond
a reasonable doubt.” (Doc. 8, p. 4). Under Rule 32 of the Alabama Rules of
Criminal Procedure, this impeachment evidence would not give Mr. Darby a basis
for relief from his conviction or sentence. Ala. R. Crim. P. 32.1(e). Consequently,
any flaw in Mr. Darby’s fourth Rule 32 proceeding does not provide a basis for
federal habeas relief under Quince under any scenario.3
The Court has considered the entire file in this action, together with the
Report and Recommendation, and has reached an independent conclusion that Mr.
Darby’s federal habeas petition should be dismissed for the reasons stated in the
Report and Recommendation and for the reasons discussed in this memorandum
opinion. Accordingly, the Court adopts the recommendation of the magistrate
judge and holds that Mr. Darby’s petition for writ of habeas corpus should be
DISMISSED. The Court will enter a separate final order consistent with this
This Court may issue a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
To make such a showing, a “petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
This analysis resolves Mr. Darby’s objections to the magistrate judge’s analysis of Counts I, II,
and III of Mr. Darby’s habeas petition. In his objections, Mr. Darby concedes that his fifth claim
for habeas relief “could have been raised in his first federal habeas petition,” and he
acknowledges that the Court should dismiss that claim for lack of jurisdiction. (Doc. 12, p. 16).
The Court overrules Mr. Darby’s objection to Judge England’s analysis of Mr. Darby’s fourth
claim. The Court accepts Judge England’s recommendation that the Court should dismiss for
lack of subject matter jurisdiction Mr. Darby’s claim for ineffective assistance of trial counsel.
(Doc. 9, pp. 6-7).
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). The
Court finds that Mr. Darby’s constitutional claims do not satisfy either standard.
Therefore, the Court will not issue a certificate of appealability to Mr. Darby. Mr.
Darby may request a certificate of appealability from the Eleventh Circuit Court of
Appeals. See Rule 22, Federal Rules of Appellate Procedure 22; Rule 11, Rules
Governing Section 2254 Cases in the United States District Courts.
DONE and ORDERED this June 24, 2015.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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