Mashburn v. Commissioner, Alabama Department of Corrections

713 F. App'x 832
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 26, 2017
DocketNo. 15-11408
StatusPublished
Cited by6 cases

This text of 713 F. App'x 832 (Mashburn v. Commissioner, Alabama Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mashburn v. Commissioner, Alabama Department of Corrections, 713 F. App'x 832 (11th Cir. 2017).

Opinion

JULIE CARNES, Circuit Judge:

Petitioner Ellis Mashburn, an Alabama state death row prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as time-barred. Mashburn argues that his habeas petition was timely as a result of both statutory and equitable tolling. We agree that equitable tolling applies under the particular circumstances of this case. Accordingly, we REVERSE the district court’s ruling that Mashburn’s § 2254 petition is time-barred and REMAND for the district court to rule on the merits of the claims asserted in the petition.

I. BACKGROUND

A. State Criminal Conviction

In September, 2006, Mashburn pled guilty to capital murder in connection with the robbery and killing of his grandmother and step-grandfather, Henry and Eva Birmingham. Evidence of Mashburn’s guilt was presented to the jury, as required by Alabama Code § 13A-5-42 in death penalty cases. The jury convicted Mashburn, and voted 11-1 to impose the death penalty. The trial court accepted the jury’s recommendation and sentenced Mashburn to death.

Mashburn’s conviction and sentence were affirmed by the Alabama Court of Criminal Appeals on direct review. Mashburn v. State, 7 So.3d 453 (Ala. Crim. App. 2007). The Alabama Supreme Court denied Mashburn’s petition for a writ of certiorari on October 24, 2008. See id. The conviction and sentence became final when the United States Supreme Court denied certiorari on June 1, 2009. Mashburn v. Alabama, 556 U.S. 1270, 129 S.Ct. 2736, 174 L.Ed.2d 250 (2009).

B. State Post-Conviction Proceedings

On October 21, 2009, Mashburn filed a state petition for post-conviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.1 The State moved to dismiss the Rule 32 petition, and Mash-burn moved for additional discovery related to the State’s arguments for dismissal. On March 3, 2010, the Rule 32 court held a conference with the parties to discuss the pending motions. During the conference, the court instructed the parties that it would not rule on the State’s motion to dismiss until it had first ruled on Mash-burn’s discovery motion. The court further advised the parties that it would set a briefing schedule to allow Mashburn to respond to the State’s motion to dismiss before ruling on it.2

On March 30, 2010, the State sent a proposed order to the Rule 32 court summarily dismissing Mashburn’s petition for the reasons stated in its motion. Contrary to what the court had previously advised the parties, and before ruling on Mash-burn’s motion for discovery or setting a briefing schedule on the motion to dismiss, the court signed and entered the proposed order dismissing Mashburn’s petition on April 1, 2010. Unfortunately, the clerk of court did not serve the dismissal order as required by Alabama law. See Ala. R. Crim. P. 34.5 (“Upon the entry of any order in a criminal proceeding made in response to a motion, other than an order made in open court, the clerk shall, without undue delay, furnish all parties a copy thereof by mail or by other appropriate means approved by the judge.”). Thus, both Mashburn and the State were unaware that Mashburn’s Rule 32 petition had been dismissed on April 1, 2010. Neither party learned about the dismissal until approximately sixteen months later.

The parties agree that under Alabama law, an appeal from the dismissal of a Rule 32 petition must be filed within 42 days of the dismissal order. See Ex parte Wright, 860 So.2d 1253, 1254 (Ala. 2002) (noting that Rule 32 proceedings are subject to the 42-day appeal period of Ala. R. App. P. 4(a)(1)). Thus, the appeal period for the dismissal of Mashburn’s Rule 32 petition expired on May 13, 2010. See id. Not surprisingly, because Mashburn was not notified of the dismissal order when it was issued or at any time during the following 42 days, he did not file a timely appeal of the dismissal order.

On August 23, 2011, counsel for the State inquired about the status of Mash-burn’s Rule 32 petition and learned that the petition had been dismissed on April 1, 2010. The State’s counsel immediately informed Mashburn’s attorney about the dismissal, and he advised Mashburn’s attorney that he would not oppose a petition seeking an out-of-time appeal of that order pursuant to Rule 32.1(f) of the Alabama Rules of Criminal Procedure. Rule 32.1(f) provides for an out-of-time appeal when the failure to timely appeal the dismissal of a Rule 32 petition was “without fault on the petitioner’s part.” Ala. R. Crim. P. 32.1(f). A petition for an out-of-time appeal under Rule 32.1(f) must be filed within six months of discovering the dismissal. See Ala. R. Crim. P. 32.2(c) (“[T]he time for filing a petition under rule 32.1(f) to seek an out-of-time appeal from the dismissal ... of a petition previously filed under any provision of Rule 32.1 shall be six (6) months from the date the petitioner discovers the dismissal.”).

On September 8, 2011, sixteen days after learning about the dismissal of his Rule 82 petition, Mashburn filed a pleading titled “Motion to Set Aside or Vacate the Court’s Order Dismissing Petitioner’s Rule 32 Motion.” The State objected to this pleading, arguing that it should have been styled as a petition for an out-of-time appeal under Rule 32.1(f) rather than as a motion to set aside or vacate the dismissal order. In response to the State’s objection, Mashburn filed a new pleading on October 12, 2011 titled “Amended Petition for Relief from Judgment Pursuant to Rule 32.1(f).” Among other relief, the amended Rule 32.1(f) petition sought an out-of-time appeal from the April 1, 2010 dismissal of the Rule 32 petition.

The Rule 32 court held a hearing on Mashburn’s Rule 32.1(f) petition on the same day it was filed. The court acknowledged during the hearing that Mashburn had not received notice of the April 1, 2010 dismissal order, and it expressly found that the failure to timely appeal the order was not Mashbum’s fault. Based on those findings, the court granted Mashburn’s Rule 32.1(f) petition to file an out-of-time appeal.

Mashburn subsequently appealed the dismissal of his Rule 32 petition to the Alabama Court of Criminal Appeals on November 18, 2011. See Mashburn v. State, 148 So.3d 1094, 1105 (Ala. Crim. App. 2013). The Court of Criminal Appeals permitted the out-of-time appeal and affirmed the dismissal of Mashburn’s Rule 32 petition on the merits on July 12, 2013. See id. at 1105-62 The Alabama Supreme Court denied certiorari on the out-of-time appeal on February 21, 2014, concluding Mashburn’s state Rule 32 proceedings. See id. at 1094.

C. Federal Habeas Petition

Mashburn filed his § 2254 petition for federal habeas relief on September 26, 2014. The State moved to dismiss the petition as barred by the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), 28 U.S.C. § 2244(d)(1). The district court granted the State’s motion to dismiss Mashburn’s § 2254 petition as untimely.

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713 F. App'x 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mashburn-v-commissioner-alabama-department-of-corrections-ca11-2017.