ROBERT BRYANT MELSON v. RICHARD F. ALLEN, Commissioner, Alabama Department of Corrections
No. 06-14047
United States Court of Appeals, Eleventh Circuit
November 14, 2008
D. C. Docket No. 04-03422-CV-VEH-HGD
Appeal from the United States District Court for the Northern District of Alabama
(November 14, 2008)
Before BIRCH, BARKETT and WILSON, Circuit Judges.
BIRCH, Circuit Judge:
I. BACKGROUND
In April 1994, Melson fatally shot three employees and wounded another while robbing a Popeye‘s restaurant in Gadsden, Alabama, with his accomplice, Cuhuatemoc Peraita (“Peraita“). See Melson v. State, 775 So. 2d 857, 864-66 (Ala. Crim. App. 1999). The crimes occurred sometime between 11:15 P.M., when the cashier left for the night, and 12:26 A.M., when Bryant Archer (“Archer“) called 911. Both assailants wore bandannas over their faces. Archer recognized Peraita as one of the robbers because he was a recent former employee and had a distinctive hairstyle. Archer identified the other assailant as a black male but gave no other physical description at trial. Police officers went to Peraita‘s house and then followed Peraita‘s car when it left. At 1:20 A.M., police officers arrested Peraita and Melson, who was driving the car. Melson at first told the police that he
At a jury trial in April 1996, Laura Laverty (“Laverty“) testified that Melson and Peraita were at her residence from 11:00 P.M. to 11:30 P.M. the night in question. Melson was wearing a University of Alabama sweatshirt, blue jeans, tennis shoes, and a hat when he left. Laverty also stated that Melson had asked her to see if Melissa King (“King“) would provide him with an alibi. King testified that Melson wrote her three letters from jail asking her to provide a false alibi. In the letters, which were introduced at trial, Melson bemoaned the fact that King was not at a place called Frankie‘s the night of the murders but urged her to say in court that she had seen him leave there between 12:30 and 12:45 A.M.
Inside Peraita‘s house, authorities found a bag of money and some clothes, including a University of Alabama sweatshirt and blue jeans. Police also recovered a gun thrown into the Coosa river by Peraita‘s brother, Edmundo. Plaster casts of shoeprints at the scene matched one of Melson‘s tennis shoes that he was wearing when arrested. Melson presented one alibi witness, Tyrone Porter,
Melson was found guilty and sentenced to death for three robbery-murder convictions, life imprisonment without the possibility of parole on a fourth capital murder conviction, forty years in prison on an attempted murder conviction, and forty years in prisоn on a first-degree robbery conviction. See Melson, 775 So. 2d at 863-64. Melson‘s convictions and sentences were affirmed on appeal by the Alabama Court of Criminal Appeals and the Alabama Supreme Court. See id. at 904; Ex Parte Melson, 775 So. 2d 904, 908 (Ala. 2000). The United States Supreme Court denied Melson‘s petition for writ of certiorari on 5 March 2001. Melson v. Alabama, 532 U.S. 907, 121 S. Ct. 1233 (2001).
The following timeline is relevant to the outcome of this case:1
| 4 Mar. 2002 | Melson, through counsel, filed an unverified Rule 32 petition, challenging his convictions. |
| 12 Mar. 2002 | The state filed a motion to dismiss on the ground that the petition was not verified, as required by |
| 15 Mar. 2002 | The circuit court granted the state‘s motion to dismiss and gave Melson twenty-one days to сomply with the verification requirement. |
| 25 Mar. 2002 | Melson, through counsel, filed an amended verified petition to comply with |
| 17 Oct. 2002 | The circuit court dismissed Melson‘s Rule 32 amended petition pursuant to Rule 32.7 because the claims: (1) failed to raise a material issue of fact or law, state a claim, and meet the specificity requirement, or (2) were procedurally barred.2 |
| 2 Dec. 2002 | Melson, through counsel, filed a notice of appeal with the Alabama Court of Criminal Appeals. |
| 6 Dec. 2002 | Melson, through counsel, filed a notice of appeal with the Etowah Circuit Clerk. |
| 16 Dec. 2002 | The Alabama Court of Criminal Appeals issued a certificate of judgment dismissing the appeal because it was not timely filed. |
| 6 Mar. 2003 | Melson, through counsel, filed a second Rule 32 petition requesting an out-of-time appeal from the dismissal of his first Rule 32 petition. |
| 3 Apr. 2003 | The circuit court dismissed Melson‘s second Rule 32 petition.3 |
| 6 Jan. 2004 | The Alabama Court of Criminal Appeals affirmed the circuit court‘s dismissal of Melson‘s second Rule 32 petition because Melson did not state a claim upon which relief could be granted. Melson v. State, 902 So. 2d 715, 719 (Ala. Crim. App. 2004). |
| 10 Dec. 2004 | The Alabama Supreme Court denied Melson‘s petition for writ of certiorari as to his second Rule 32 petition.4 |
On 13 December 2004, Melson filed this
II. DISCUSSION
We review de novo a district court‘s dismissal of a federal habeas petition, including the determination that a petition is time-barred under
A. Timelinesss under 28 U.S.C. § 2244(d)(1)(A)
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“) sets a one-year statute of limitations for filing a federal habeas petition challenging a state court judgment. See
Melson‘s convictions and death sentence became final on 5 March 2001, the date the United States Supreme Court denied his certiorari petition. Pursuant to
Melson contends that the verification requirement is not a filing requirement for purposes of
Nor did Melson‘s amended verified petition, filed on 25 March 2002, toll the one-year limitations period. Once Melson‘s limitations period ended on 6 March 2002, any collateral application filed after that date had no tolling effect. See Alexander v. Secretary, Dep‘t of Corr., 523 F.3d 1291, 1294 (11th Cir. 2008) (a state court motion for post-conviction relief cannot toll the limitations period if that period has already expired). Moreover, Melson “may not attempt to resurrect a terminated statute of limitations by subsequently filing documents that purport to ‘relate back’ to previously submitted documents that were, in themselves, insufficient to toll the statute.” Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004). Because Melson‘s unverified petition filed on 4 March 2002 was insufficient to toll the statute of limitations, his amended petition filed on 25 March 2002 does not relate back to the earlier filing date to toll the statute either. The
Even if we were to find that Melson‘s 4 March 2002 petition tolled the statute of limitations (which we do not), Melson‘s federal habeas petition would still be untimely under
The Alabama Court of Criminal Appeals dismissed Melson‘s appeal on 16 December 2002 because it was not timely filed. See Melson, 902 So. 2d at 717. Accordingly, Melson‘s application for state post-conviction review was not pending during the time between 17 October 2002, the date the circuit court
B. Timeliness Under 28 U.S.C. § 2244(d)(1)(D)
Melson next argues that his federal habeas petition is timely under a second trigger date for the one-year statute of limitations. Under
The limitations period under
The district court did not determine if Melson could have known of the
Several affidavits submitted by Melson detail events where he was allegedly present. For example, Melissa King states in her affidavit that she told a рolice investigator she talked with Melson for about five minutes outside Frankie‘s between 11:00 and 11:30 P.M. on the night of the murders. Melson asserts that the government failed to disclose this fact in violation of Brady, and that it invited King to testify falsely at trial that she did not see Melson at Frankie‘s, in violation of Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 766 (1972). King has since said her affidavit was inaccurate, however, and acknowledged that she testified truthfully at trial. Even if King‘s affidavit were true, Melson would have known before trial that he saw and spoke to King at Frankie‘s that night. He could have questioned King prior to trial about any statements she made to the police. Melson also could have crоss-examined King at trial about her statements to the
Similarly, Joyce Watson (“Joyce“) alleges in her affidavit that she told the police Melson was at her apartment the night of the murders when Julio St. George (“St. George“) arrived with a bag of bloody clothes, ordered Joyce to burn them, and then switched shoes with Melson. Vanessa Watson, who was not present that night, states in her affidavit that Joyce told her a few months after the murders that St. George and Peraita picked up Melson at Joyce‘s apartment after the murders. Again, Melson would have had personal knowledge of these events if they occurred and could have questioned the Watsons before trial about any statements they made to the police.
The factual predicates for Melson‘s Brady claim concerning Bryant Archer‘s alleged statements to the police also could have been discovered before trial. According to Melson, the government did not disclose that Archer, the sole surviving witness, told the police that: (1) the black assailant had bushy hair and was slightly taller than Peraita, and (2) that the robbers entered Popeye‘s at 11:30 P.M. As with King‘s and Watson‘s alleged statements, Melson has not produced any policе report showing that Archer made these statements. Even if he did, Melson‘s trial counsel acknowledged that he saw the photo line-up shown to
Melson further asserts that Laura Laverty failed to testify at trial about information known tо the prosecution but not to defense counsel, including the fact that the prosecutor threatened her into testifying. Laverty has not submitted an affidavit stating she was threatened by the police. Instead, Melson proffers an affidavit from Edmundo Peraita (“Edmundo“) who claims that Laverty said the police threatened her into disclosing that Edmundo told her he threw his brother‘s gun into the river, although Edmundo cannot remember the circumstances under which she was threatened. Melson concedes, however, that his trial counsel learned before trial that Edmundo had led the police to the gun. If Melson had questioned Edmundo before trial as to who he told about the disposal of the murder weapon, Melson could have discovered at that time any alleged threats to Laverty. Melson has thus not shown he exercised due diligence in discovering these claims.
Melson further asserts that the prosecution did not disclose a statement
In sum, Melson has failed to show that the factual predicates of his claims could not have been discovered through due diligence until the autumn of 2004. To the contrary, Melson either had personal knowledge of, or could have discovered using due diligence, the factual predicates for his claims prior to his 1996 state court trial. Accordingly, because the one-year limitations period does not run from the autumn of 2004, Melson‘s petition is not timely under
C. Equitable Tolling Based on Attorney Misconduct
Even if Melson‘s petition cannot be statutorily tollеd, he argues that it should be equitably tolled based on the misconduct and abandonment of his state post-conviction attorneys. Specifically, Melson alleges that his post-conviction attorneys did not tell him that his initial Rule 32 petition was dismissed, his
The Supreme Court has yet to decide whether the AEDPA‘s statute of limitаtions permits equitable tolling but has assumed that it does where the parties agree it is available. See Lawrence v. Florida, 549 U.S. 327, 127 S. Ct. 1079, 1085 (2007). In order for equitable tolling to apply, a petitioner has the burden of proving: “(1) that he ha[d] been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 1085 (quotation marks and citation omitted). We have emphasized that “[e]quitable tolling is an extraordinary remedy that must be applied sparingly” for “[a] truly extreme case.” Holland v. Florida, 539 F.3d 1334, 1338 (11th Cir. 2008) (per curiam). Attorney negligence, even gross negligence, does not warrant equitable tolling. Id. at 1339; see also Lawrence, 549 U.S. at 127 S. Ct. at 1085 (attorney error does not “warrant equitable tolling, pаrticularly in the post-conviction context where prisoners have no constitutional right to counsel“). There must be “an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer‘s part” in order for a court to
None of Melson‘s assertions of attorney misconduct, even if true, rise to the level of egregious attorney misconduct warranting equitable tolling. Melson does not allege that his post-conviction attorneys acted in bad faith, were dishonest, had a divided loyalty, or were mentally impaired. The fact that his attorneys missed deadlines is insufficient to equitably toll the limitations period. See Lawrence, 549 U.S. at 127 S. Ct. at 1085 (attorney miscalculation of the limitations period does not warrant equitable tolling because this “would essentially equitably toll the limitations periods for every person whose attorney missed a deadline“). Even when combined with his attorneys’ alleged failure to communicate about the status of his case, no egregious misconduct has been shown. See Holland, 539 F.3d at 1339 (no equitable tolling where post-conviction attorney failed to file a federal habeas petition timely and inform petitiоner of the status of his case despite repeated requests). Accordingly, the district court correctly concluded that any attorney error by Melson‘s post-conviction attorneys did not warrant equitable tolling of the AEDPA‘s statute of limitations.
D. Actual Innocence
Melson submits that, even if his petition is untimely, he should be allowed to
Neither the Supreme Court nor this Court has ever held that the Constitution requires an actual innocence exception to the AEDPA‘s one-year limitations period. See Johnson v. Florida Dep‘t of Corr., 513 F.3d 1328, 1333 (11th Cir. 2008) (“To date, this Court has avoided this constitutional issue because no time-barred petitioner has made the requisite actual-innocence showing.“). Before reaching this question, the petitioner must first make a sufficient showing of actual innocence. Id. This requires the petitioner to produce “new reliable evidence — whether it be exculpatory scientific evidence, trustwоrthy eyewitness accounts, or
In evaluating this new evidence, a habeas court “may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence.” House, 547 U.S. at 537, 126 S. Ct. at 2077 (quotation marks and citation omitted). The court then assessеs the likely impact of this new evidence on reasonable jurors. Id. at 538, 126 S. Ct. at 2077. The demanding nature of the Schlup standard ensures that only the “extraordinary” case will merit review of the procedurally barred claims. Id.
Melson proffers the following evidence of his innocence: (1) two statements made by his co-defendant Peraita in 2001 and 2002 that Melson was not his accomplice; (2) Melissa King‘s 2005 affidavit recanting her trial testimony that Melson asked her to provide a false alibi; (3) a 2005 affidavit by Sara Romano, a private investigator, recounting Bryant Archer‘s alleged statements that the robbers entered Popeye‘s at 11:30 P.M. and that the black male had bushy hair and wаs a
None of these proffered statements are sufficient to satisfy the threshold showing required by Schlup. In his 2001 and 2002 statements, Peraita says that he robbed Popeye‘s with someone other than Melson, dropped his unidentified accomplice off, then picked up Melson at Frankie‘s. Melson did not attach an affidavit by Peraita attesting to these statements but merely referenced them in the body of his amended habeas petition. In addition to the unreliable nature of these statements, the timing of their submission is circumspect given that these statements were made years before Melson presented them for the first time in this petition. Further, these statements conflict with Joyce and Vanessa Watson‘s affidavits that Melson was at Joyce‘s apartment when the murders occurred and that Peraita picked him up from Joyce‘s apartment after the murders. Peraita‘s statements do not constitute the type оf trustworthy, reliable evidence that Schlup envisioned.
King‘s affidavit that she saw Melson at Frankie‘s between 11:00 and 11:30
Likewise, Archer‘s purported statement that the robbers entered Popeye‘s at 11:30 P.M. does not conflict with trial testimony concerning the timeframe of the robbery. Given that Archer did not give a physical description of the black аssailant at trial, the details about the black assailant‘s hair and height do not conflict with his testimony nor establish Melson‘s innocence. Further, Archer‘s
Next, Melson claims that Julio St. George was Peraita‘s actual accomplice in the murders. Melson‘s evidence of this claim is Joyсe Watson‘s affidavit and two affidavits by Watson‘s sisters, LaShunda Davis and Vanessa Watson. As discussed earlier, Joyce claims that Melson was at her apartment when St. George, carrying a bag of bloody clothing, arrived on the night of the murders with Peraita. However, LaShunda Davis, who also claims to have been at Joyce‘s apartment that night, omits any mention of Melson being present or of St. George carrying a bag of bloody clothes. These statements also conflict with Melson‘s other purported alibi presented at trial that he was in the Green Pastures area at the time of the murder. Melson‘s decision to produce a second set of conflicting alibi witnesses “at the 11th hour with no reasonable explanation for the nearly decade-long delay” is suspect. Arthur, 452 F.3d at 1246 (quotation marks and citation omitted).
Finally, Melson has not shown how the affidavit of Edmundo Peraita demonstrates he is actually innocent of the crimes. In that affidavit, Edmundo
Melson‘s evidence falls far short of the threshold required for a gateway claim of innocence. The petitioner in House met the threshold based on substantial evidence pointing to a different suspect, coupled with new, reliable DNA and forensic evidence undermining the central proof of semen and blood. See House, 547 U.S. at 554, 126 S. Ct. at 2086. Even then, the Supreme Court noted the “issue is close” as to whether the petitioner met the Schlup standard of proof. Id. In contrast, Melson has only produced conflicting statements, several of which are unverified or discredited by the affiant, that purport to establish two different alibis. This is not the “rare case where — had the jury heard all the conflicting testimony — it is more likely than nоt that no reasonable juror viewing the record as a whole would lack reasonable doubt.” Id. Moreover, because Melson failed to make a threshold showing of actual innocence, the district court properly denied his motions for discovery and an evidentiary hearing. See Sibley, 377 F.3d at 1206. Melson is thus not entitled to a review of the merits of his time-barred claims.
Melson‘s federal habeas petition is untimely under both
AFFIRMED.