Pugh v. Jones
Order: Petitioner's Actual Innocence Claims (Doc. 25-28), construed as motions, are denied. Signed by Chief Judge William H. Steele on 8/18/2015. Copy mailed to Petitioner. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
BRANDON MARQUIS PUGH,
) CIVIL ACTION 13-0588-WS-B
In October 2014, the Magistrate Judge entered a report and
recommendation (“R&R”) recommending that the petition be dismissed as timebarred. (Doc. 16). Also in October 2014, the Court adopted the R&R as its
opinion, dismissed the action as time-barred, and entered final judgment
accordingly. (Docs. 19, 20). The petitioner did not appeal. Instead, some nine
months later, the petitioner filed a document styled, “Proof of ‘Actual
Innocence.’” (Doc. 23). The petitioner argued he could not have committed the
crime of second-degree rape in 2007 because the victim did not fit the statutory
definition, and he concluded his petition thus should be considered timely. The
Court construed the filing as a motion under Rule 60(b) and held the petitioner
could not obtain relief under that rule. (Doc. 24).
Undeterred, the petitioner has now filed four documents styled, “Actual
Innocence Claim.” (Docs. 25-28). In them, he argues he could not have
committed second-degree rape because the victim “was not mentally
“We hold that actual innocence, if proved, serves as a gateway through
which a petitioner may pass whether the impediment is a procedural bar … or, as
in this case, expiration of the statute of limitations.” McQuiggin v. Perkins, 133 S.
Ct. 1924, 1928 (2013). “We caution, however, that tenable actual-innocence
gateway pleas are rare ….” Id. Indeed, so rare that 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.” Id. (internal quotes omitted). “Unexplained delay in
presenting new evidence [of actual innocence] bears on the determination whether
the petitioner has made the requisite showing.” Id. at 1935. The Court assumes
without deciding that McQuiggin applies here.
Second-degree rape occurs if the defendant “engages in sexual intercourse
with a member of the opposite sex less than 16 and more than 12 years old” or
“engages in sexual intercourse with a member of the opposite sex who is incapable
of consent by reason of being mentally defective.” Ala. Code § 13A-6-62(a). The
petitioner denied in his petition that the victim fit either of these criteria, but he
presented no evidence to support his assertion. (Doc. 1). He repeated this
assertion, again without any supporting evidence, in his reply and in his objection
to the R&R. (Docs. 13, 17). Only after final judgment was entered against him
did the petitioner submit any evidence in support of his allegation that he could not
have committed second-degree rape.
In its previous order, the Court assumed that the petitioner could be
invoking Rule 60(b)(2) or 60(b)(6).1 The former rule requires the presentation of
“newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b).” The latter rule
requires the petitioner to “show extraordinary circumstances justifying the
reopening of a final judgment.” Lugo v. Secretary, Florida Department of
Under Gonzalez v. Crosby, 545 U.S. 524 (2005), the petitioner is not using Rule
60(b) to advance a new claim or to challenge the previous resolution of a claim on the
merits. See id. at 532 (describing uses of Rule 60(b) that constitute improper attempts to
avoid the requirements of 28 U.S.C. § 2244(b)). Instead, he is challenging the Court’s
resolution of a threshold procedural issue.
Corrections, 750 F.3d 1198, 1210 (11th Cir. 2014) (internal quotes omitted), cert.
denied, 135 S. Ct. 1171 (2015). “And such circumstances will rarely occur in the
habeas context.” Id. (internal quotes omitted). “Even where the Rule 60(b)
motion demonstrates sufficiently extraordinary circumstances, whether to grant
the requested relief is … a matter for the district court’s sound discretion.” Id.
(internal quotes omitted).
In his previous filing, the petitioner relied on a 1998 opinion from the
Alabama Supreme Court. While that decision may indicate his victim was over
the age of 16, it also states she has “permanent brain damage.” (Doc. 24 at 3).
The petitioner’s only additional evidence on this go-round is a screen grab from
Facebook (whose page is unspecified) that may feature a picture of the victim
holding a plaque of some sort. The screen grab also shows that a relative of the
victim took her to a movie and (over a year earlier) to the Mobile Civic Center.
The petitioner concludes that the screen grab “proves that she works [and has] a
social life.” (Doc. 27 at 2). The victim’s condition eight years after the petitioner
raped her is of little significance to her mental state at the time of the crime, and it
does nothing to negate the petitioner’s own evidence that his victim has – and had
when he raped her – permanent brain damage. The petitioner’s evidence falls
woefully short of showing that no reasonable juror could have voted to find him
guilty beyond a reasonable doubt.2
For the reasons set forth above, the petitioner’s “actual innocence claims,”
construed as motions under Rule 60(b), are denied.3
The petitioner makes a few other factual assertions concerning his victim but
without offering any supporting evidence. Without evidence, his allegations are
irrelevant under McQuiggin. He also provides no justification for his protracted delay in
presenting evidence of such matters. Even had he done so, these matters are of little
consequence and make no difference to the actual-innocence analysis.
One of the petitioner’s filings addresses the mental competence of a second
victim, whom he apparently raped in 2012. (Doc. 25). This filing is irrelevant, as the
petition challenges only his conviction for the 2007 rape.
DONE and ORDERED this 18th day of August, 2015.
s/WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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