Elliott v. Smith

Filing 18

OPINION & ORDER : The Court DISMISSES the time-barred petition (DE 1 ) WITH PREJUDICE and DENIES issuance of a certificate of appealability. The Court will enter a separate Judgment. Signed by Judge Robert E. Wier on 7/15/18.(SYD)cc: mailed to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
MICHAEL ELLIOTT,
Petitioner,
v.
AARON SMITH, Warden,
Respondent.

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No. 6:18-CV-92-REW
OPINION & ORDER

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On March 19, 2018,1 Petitioner, Michael Elliott, filed a pro se Petition for a Writ
of Habeas Corpus under 28 U.S.C. § 2254. DE 1 (Petition). The Court conducted an
initial review and perceived the petition as time-barred. DE 7 (Order). The Court thus
directed briefing on timeliness and equitable tolling (if applicable). Id. Each side
responded. DE 9 (Petitioner’s Response); DE 11 (Warden’s Response).
Having reviewed the entire record under the applicable standards, the Court
DISMISSES the time-barred petition (DE 1) WITH PREJUDICE and DENIES a
certificate of appealability. The AEDPA statute of limitations bars the petition, and no
colorable claim of innocence spares the filing.
Factual & Procedural History
In 2005, the Kentucky Court of Appeals articulated the underlying facts and
history through the conclusion of Elliott’s direct appeals:

1

This filing date reflects the prison mailbox rule. See Richard v. Ray, 290 F.3d 810, 812–
13 (6th Cir. 2002) (per curiam). Here, Elliott averred to placing the motion in the prison
mailing system on March 19, 2018. DE 1, at 15.
1

On December 10, 1991, a Laurel County grand jury returned indictments
against Elliott and his co-defendant, Allen Cushman, for murder, burglary
in the first degree, attempted murder, and robbery in the first
degree. Elliott was also indicted as a persistent felony offender in the first
degree (PFO I). The charges resulted from the August 21, 1991, murder of
Earl L. Cowden and the attempted murder of Cowden's son, Leon.
Cushman was tried separately in November 1995, and was convicted on
all four counts of the indictment and sentenced to death. However, before
Cushman perfected his appeal, and prior to Elliott's trial, he died of natural
causes.
After nearly three years of delay brought on by an interlocutory appeal
taken by Elliott from the trial court's 1992 denial of his ex parte request
for the appointment of a specially-trained mitigation investigator, in
October 1997, Elliott was tried in the Laurel Circuit Court. At trial, the
Commonwealth's case was heavily dependant upon an eyewitness
identification made by Cowden's neighbor, Ted Proffitt. On the afternoon
of Cowden's murder, Proffitt testified that he was working outside of his
house when Mrs. Cowden and her grandson ran out of a field that
separated their houses and Mrs. Cowden screamed that someone was
breaking into her residence. Proffitt immediately ran to the Cowden
residence to investigate and saw both a strange car in the Cowden's
driveway and Cushman in the basement of the house. Proffitt then
returned home to call the state police.
While waiting for the police to arrive, Proffitt saw Cowden driving down
the road towards Cowden's house, so he ran towards the Cowden home in
an attempt to stop Cowden before he walked in on the intruders. When
Proffitt arrived at the Cowden residence, he heard a loud “dynamite”
sound in the house, and, looking through the open front door, saw a man
standing over the body of Cowden. While testifying, Proffitt identified
Elliott as the man standing over Cowden's body. During crossexamination, Elliott's counsel attempted to impeach Proffitt's testimony by
calling to the jury's attention the fact that law enforcement personnel did
not ask Proffitt to identify Elliott from a photographic lineup until two
years after Cowden's murder, during co-defendant Cushman's trial.
The Commonwealth's case against Elliott was further strengthened by the
testimony of one of Elliott's former jail cellmates, Sam Shepard. Shepard
testified that he and Elliott became acquainted while playing cards and
checkers in jail. Elliott told him that he had met an older man who knew
that Cowden kept large sums of cash in his house and they agreed to rob
Cowden. Shepard testified that Elliott had told him that things had gone
awry during the robbery and that he had put a pillow case over Cowden's
head and shot him as he begged for his life. Shepard further testified that
Elliott was bragging about his crime and that he showed no remorse.
2

Moreover, Elliott also told Shepard that he was happy when Cushman died
because only Cushman could testify against him.
Elliott was convicted of murder, robbery, burglary, and wanton
endangerment. He was sentenced to life without parole for 25 years on the
murder conviction, 20 years on the burglary conviction, 20 years on the
robbery conviction, and five years on the wanton endangerment
conviction. On direct appeal the Supreme Court of Kentucky affirmed
Elliott's conviction and sentence by Opinion which was rendered on
January 20, 2000, and became final on February 10, 2000.
Elliott v. Commonwealth, No. 2004-CA-000065-MR, 2005 WL 3441361, at *1–2 (Ky.
Ct. App. Dec. 16, 2005) (footnotes omitted) (hereinafter Elliott I).
More recently, the Kentucky Court of Appeals summarized the post-conviction
procedural history through the trial court’s February 18, 2014, denial of Elliott’s third raft
of state post-conviction filings:
On March 5, 2001, Elliott brought a collateral challenge pursuant to RCr
11.42. The trial court denied that challenge, and this Court upheld the
decision on June 7, 2002. See 2001–CA–000751–MR. Elliot also filed a
second RCr 11.42 challenge in 2003. This Court affirmed the trial court's
denial of that motion in 2004–CA–000065–MR (Ky. App. 2006).
On January 8, 2014, Elliott filed the motion sub judice pursuant to RCr
11.42, CR 60.02(f), and CR 60.03. In that motion, Elliott contested the
results of a DNA test performed in 1991 on blood found at the crime
scene. He further disputed the reliability of multiple eyewitnesses, most
notably Ted Proffitt and Willie Mae Cowden.
The trial court ultimately found that there was no merit to Elliott's request
for an additional DNA test because the blood was previously tested and
was shown to have been the victim's. See Elliott v. Commonwealth, 2004–
CA–000065–MR, 2005 WL 3441361 (Ky. App. Dec. 16, 2005). The trial
court also determined that the reliability of the eyewitnesses who testified
against Elliott during his trial had already been litigated.
Elliott v. Commonwealth, No. 2014-CA-000715-MR, 2016 WL 354314, at *1 (Ky. Ct.
App. Jan. 29, 2016), reh'g denied (Nov. 29, 2016), review denied (Apr. 19, 2017)
(hereinafter Elliott II).

3

Petitioner now pursues § 2254 relief on several state-rejected theories. DE 1, at 7–
9. The Court, however, need not address claim merits. The petition is time barred, and the
show cause response includes no credible actual innocence claim (or any other basis to
save the tardy filing).
AEDPA Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) subjects
section § 2254 petitions to a one-year limitation period. 28 U.S.C. § 2244(d).
Specifically, the statute provides:
(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of limitation
under this subsection.
Id. As explained below, the record clearly establishes (and Elliott does not dispute) the
petition’s untimeliness under § 2244(d).
4

Timeliness Calculation
Elliott states that the date of the underlying judgment and sentencing was October
1997.2 DE 1, at 1. He appealed, and the Kentucky Supreme Court affirmed on January
20, 2000. The record reflects, DE 1, at 3, (and the Court’s research revealed) no petition
to the United States Supreme Court for a writ of certiorari. Elliott’s judgment thus
became final upon passage of the 90-day window to so petition—here, on April 19, 2000.
See Sup. Ct. R. 13(1), (3); Jimenez v. Quarterman, 129 S. Ct. 681, 685 (2009) (“[A]
conviction becomes final when ‘the time for filing a certiorari petition expires.’”).
Two-hundred and sixty-one days then passed until Elliott filed a state RCr 11.42
post-conviction motion on January 5, 2001. See Elliott I, at *2. The trial court denied the
motion on March 5, 2001, and Elliott appealed. See id. The Kentucky Court of Appeals
affirmed 11.42 denial on June 7, 2002. See id. The Kentucky Supreme Court denied
discretionary review on April 17, 2003. See Elliott v. Commonwealth, No. 2002-SC000555, Docket No. 6 (Ky. Apr. 17, 2003).
Thirty-five more days preceded Elliott’s second RCr 11.42 motion, filed May 22,
2003. The trial court denied the motion on October 13, 2003, and denied a motion to alter
or amend on December 3, 2003. See Elliott I, at *2. The state appellate court affirmed on
December 16, 2005, id. at 1, and the state high court denied discretionary review on May
10, 2006. See Elliott v. Commonwealth, No. 2006-SC-000009, Docket No. 34 (Ky. May
10, 2006).
Over seven years then passed before Elliott filed his third RCr 11.42 motion
(along with CR 60.02(f), and 60.03 motions), on January 8, 2014. Elliott II, at *1. The
The Court notes that Petitioner’s attachments include a state court docket sheet listing a
December 1, 1997, disposition. DE 1-3, at 1.
2

5

trial court denied the motions on February 18, 2014. Id. The Kentucky Court of Appeals
affirmed, on January 29, 2016, and, on November 29, 2016, denied rehearing. Id. The
Kentucky Supreme Court denied discretionary review on April 19, 2017. Id. Threehundred and thirty-four days later, Elliott filed the current § 2254 petition, on March 19,
2018.
Over thirty-four hundred days3 ticked off Elliott’s AEDPA clock between
judgment finality and the instant filing, rendering the current petition time barred under §
2244(d)(1)(A) & (d)(2).4 Elliott, with his show-cause response, does not dispute the §
2244 untimeliness of his petition.5 Nor does he pursue equitable tolling. DE 9. Rather,
Elliott seeks to pass through the equitable “actual innocence” gateway to overcome the
3

This charitably presumes that each RCr 11.42 effected tolling, a debatable result under §
2244(d)(2). See 28 U.S.C. § 2244(d)(2) (limiting tolling to properly filed state postconviction applications). Elliott does not argue his petition was timely under §
2244(d)(1), and even the most generous definition of § 2244(d)(2) tolling would not, by a
long shot, save the petition. Accordingly, the Court assumes, but does not decide, for
purposes of this Opinion that the state motions were properly filed.
4
The Court notes that there was an interim federal filing on July 24, 2006, (though it is
difficult to tell, a July 19, 2006, prison mailbox date may apply). Petitioner made clear in
2006—and now confirms, DE 1, at 13—that he was not filing a § 2254 petition. See
Elliott v. Commonwealth, Case No. 6:06-cv-326-DCR-EBA, ECF Nos. 2 (Complaint), 9
(Elliott letter rejecting characterization of his filing as § 2254), and 35 (March 16, 2018,
Order). District Judge Reeves recently explained:
Elliott has now filed a motion to re-characterize his initial Complaint as a
habeas petition under 28 U.S.C. § 2254, over twelve years after informing
the Court that it was not to be so construed. . . . The Court will honor
Elliott’s earlier instruction not to construe his Complaint as a habeas
petition under 28 U.S.C. § 2254, and deny his attempt, twelve years later,
to change his mind. Simply put, one failed piece of litigation does not
represent a place holder for later actions. Of course, Elliott is free to file a
first habeas petition in this case. . . . However, any petition filed at this
point likely would be barred by the one-year statute of limitations. 28
U.S.C. § 2244(d)(1).
Id. at ECF No. 35. The Court agrees with Judge Reeves’s apt summary, and perceives no
limitations-period relevance in the 2006 federal filing.
5
Elliott does not make a § 2244(d)(1)(D) predicate-discovery argument (a sure loser
given that he has argued the same facts now for well over a decade).
6

expired AEDPA limitations period. Id.; see McQuiggin v. Perkins, 133 S. Ct. 1924, 1928
(2013) (“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.”).
The Court has carefully reviewed the filings. Elliott’s actual innocence claim, on
this record and under the proper standards, is wholly meritless.
Actual Innocence
“[A] credible showing of actual innocence may allow a prisoner to pursue his
constitutional claims . . . on the merits notwithstanding” a time bar. McQuiggin, 133 S.
Ct. at 1931. “This rule, or fundamental miscarriage of justice exception, is grounded in
the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not
result in the incarceration of innocent persons.” Herrera v. Collins, 113 S. Ct. 853, 862
(1993) (internal citation omitted). A petitioner claiming actual innocence must “support
his allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence that was not presented at trial.” Cleveland v. Bradshaw, 693 F.3d 626, 632–33
(6th Cir. 2012). The standard is demanding:
The Supreme Court has cautioned 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.’ ” McQuiggin, 569 U.S. at 386
(alteration in original) (quoting Schlup [v. Delo, 115 S. Ct. 851, 868
(1995)]).
Adams v. Haviland, No. 17-4145, 2018 WL 2057494, at *2 (6th Cir. Apr. 16, 2018).

7

Elliott’s responsive brief mostly recites McQuiggin’s (and other courts’)
elucidation of the actual innocence standard. DE 9, at 2–7. Petitioner devotes minimal
space to the “(2)” pieces of evidence he touts as innocence proof. Id. at 7. First, Elliott
advances a theory based on new state laws. DE 9, at 8. The Court readily dispenses with
this argument; “‘actual innocence’ means factual innocence[.]” Bousley v. United States,
118 S. Ct. 1604, 1611 (1998). Elliott entirely fails to explain how Kentucky evidencetesting laws allegedly passed in “2013 . . . then 2017-2018” constitute evidence that he
did not commit the 1991 murder (or any of his other crimes). DE 9, at 8. The theory,
targeting evolution in state DNA testing protocols, falls outside the parameters of the
actual innocence rubric.
The other “evidence” Elliott cites is blood from the crime scene. Petitioner has
focused multiple legal sorties on blood from the site of the Cowden murder. He persists
in suggesting that there may be exculpatory evidence in the form of untested blood
attributable to an unknown third-person.
There are several reasons this gambit fails. First, the Kentucky courts have
conclusively adjudicated the issue, as a matter of fact. Authorities, as a result of prior
Elliott litigation, did test the blood, and the results matched the victim. See Ellott I, 2005
WL 3441361, at *4 n.20 (“This Court granted a writ of prohibition. The blood was
eventually tested and it matched the victim.”). Indeed, the Otto Affidavit Elliott continues
to reference (DE 9, at 3; DE 1-4, at 25–26) contributed to the decision to test; the analysis
occurred and the evidence matched victim Cowden. Many years later, Elliott tried to
secure re-testing; Kentucky refused. See Elliott II, 2016 WL 354314, at *1 (affirming trial
court finding “that there was no merit to Elliott’s request for an additional DNA test

8

because the blood was previously tested and was shown to have been the victim’s”); Id.
at *3 (“Elliott is requesting a DNA test on blood that has already been tested.”). The Otto
Affidavit predates the testing. As to the quoted Detective at least, that affidavit clearly is
hearsay.6 In any event, the later Kentucky appellate decisions foreclose the notion of
untested blood. Unequivocally, the Kentucky Court of Appeals has twice found the blood
tested and indicative of the victim. Elliott offers no contrary proof and puts nothing else
before the Court. His testing predicate is contrary to the record and invalid.
Further, blood from the victim—and that is all the pertinent record shows—does
not in any way meet the Schlup standard. Although the sampling may have been “new,”
in terms of not previously presented, the information certainly is not exculpatory and
does not call into doubt the jury’s decision. Indeed, more physical evidence of the known
blood shed at the murder scene would simply confirm the story and not exonerate Elliot.
See Shank v. Vannoy, No. 16-30994, 2017 WL 6029846, at *2 (5th Cir. Oct. 26, 2017)
(“[T]o qualify as new evidence of actual innocence, the evidence must be material, not
merely cumulative or impeaching.” (internal citations and quotation marks omitted)).7

The Court recognizes that the actual innocence inquiry is not bounded by “rules of
admissibility that would govern at trial.” Schlup, 115 S. Ct. 851, at 868. Nonetheless, the
Court must also give “due regard to any unreliability” of proposed evidence. Id. at 867.
Hearsay is inherently unreliable. Lee v. Illinois, 106 S. Ct. 2056, 2063 (1986) (Hearsay
evidence that “does not fall within a firmly rooted hearsay exception [is] . . .
presumptively unreliable[.]” (internal quotation marks omitted)). The Court, here, notes
the affidavit’s attributions as hearsay for reliability, rather than admissibility, purposes.
The ultimate testing results, directly contrary to the alleged hearsay statements, here
confirm the unreliability that hearsay doctrine presumes.
7
Goble v. Taylor, No. CIV. 14-58-ART-REW, 2015 WL 770389, at *4–5 (E.D. Ky. Feb.
19, 2015) (“Goble cannot enter the actual-innocence gateway for one simple reason: he
has no new evidence. . . . [T]he gateway requires new evidence.”).
6

9

The Kentucky courts expertly catalogued the strong proof of guilt, which included
an eyewitness and a later jailhouse confession. Considering the blood samples here
would, at most, be neutral relative to the identity of the killer. As such, the evidence
hardly suggests that “no juror, acting reasonably, would have voted to find [Elliott] guilty
beyond a reasonable doubt.” McQuiggin, 133 S. Ct. at 386 (quoting Schlup, 115 S. Ct. at
868).
The Court rejects Elliott’s petition as untimely on its face and ineligible for the
slender actual-innocence exception.
III.

CONCLUSION
Elliott filed a facially untimely § 2254 petition. Tolling does not preserve the

petition (and Elliott does not argue for traditional equitable tolling application).
Petitioner’s actual innocence claim is wholly incredible and insufficient to open the
McQuiggin gateway as a means to overcome the time bar.
For the reasons stated, the Court DISMISSES the time-barred petition (DE 1)
WITH PREJUDICE and DENIES issuance of a certificate of appealability.8 The Court
will enter a separate Judgment.
This the 15th day of July, 2018.

8

The Court denies issuance of a certificate because the timeliness result is not, on this
record, fairly debatable, for all the reasons explained above. See Slack v. McDaniel, 120
S. Ct. 1595, 1604 (2000) (requiring a petitioner to demonstrate, when a court dismisses
on procedural grounds, that “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling”).
10

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