Mashburn v. Dunn, 1:14-cv-01829-LSC

CourtUnited States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
Writing for the CourtL. Scott Coogler United States District Judge
PartiesELLIS LOUIS MASHBURN, JR., Petitioner, v. JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, et al., Respondents.
Docket Number1:14-cv-01829-LSC
Decision Date31 March 2021

Commissioner, Alabama Department of Corrections, et al., Respondents.



March 31, 2021


Ellis Louis Mashburn, Jr. ("Mashburn") has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. (See generally Doc. 24) (Mashburn's amended and operative habeas petition). Mashburn challenges the constitutionality of his five capital convictions and death sentence in the Circuit Court of Calhoun County, Alabama for murdering his grandmother, Clara Eva Birmingham, and step-grandfather, Henry Owen Birmingham, Jr. After careful consideration, the Court denies Mashburn's petition. The Court begins with the background of Mashburn's death penalty proceedings.

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A. Facts of the Capital Offenses

Quoting from the trial court's amended sentencing order, the Alabama Court of Criminal Appeals ("ACCA") summarized the facts of the double murder and the surrounding circumstances as follows:

On the 30th day of October 2002, the bodies of Henry Owen Birmingham, Jr. and Clara Eva Birmingham were discovered in their home at 205 Melanie Lane, Alexandria, Calhoun County, Alabama. Both had been severely beaten and stabbed. It was determined that the deaths occurred during the evening hours of October 29, 2002.

The Calhoun County Sheriff's Office, with primary assistance from the Alabama Bureau of Investigation, the Department of Forensic Sciences, undertook the investigation. The crime scene, as the evidence reflects, was extremely bloody and it was apparent that a substantial struggle had taken place between the victims and their assailant or assailants. Too, it appeared that whoever had entered the home had not done so by forcible entry against the structure itself and, inferentially, had more likely than not been admitted entry initially.

Numerous items of evidence were collected by both the Calhoun County Sheriff's Office investigators and the Alabama Department of Forensic Sciences. The scene was kept secured and guarded for several days which enabled the DFS criminalists to study, differentiate and collect trace evidence for analysis. While the scene was in great disarray, indicating a substantial and relatively lengthy struggle, especially in light of the victims' ages and states of health, and even though there was a large quantity of blood from the victims, DFS scientists were able to identify and recover blood spatter residue that was not from either of the victims.

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Through various leads and investigation, three suspects were identified. These persons were Ellis Louis Mashburn, Jr., the grandson of Clara Eva Birmingham, Tony Brooks and Jeremy Butler...

. . . .

[]Based upon the evidence presented, the Court finds:

1. [Mashburn], while accompanied by at least one other individual, went to the home of Henry Owen Birmingham, Jr., and Clara Eva Birmingham in the late afternoon or early evening hours of October 29, 200[2]. The apparent reason for the visit was for the purpose of the theft of property and perhaps for the purpose of confronting Henry Owen Birmingham, Jr. In any event, the Birmingham home was invaded either by force or by the application of force to an occupant after entry by [Mashburn] as proven by trace evidence recovered. By testimony presented by a witness to whom [Mashburn] had said to have confessed, he and his accomplice, Tony Brooks, were armed with at least a knife and a hatchet.

2. The fact that certain items of personal property, namely jewelry, of Clara Eva Birmingham were recovered from or were traceable to [Mashburn] after the home invasion, the reasonable inference is that [Mashburn] went to the Birmingham residence for the purpose of obtaining money or things of value.

3. The bodies of Henry Owen Birmingham, Jr., and Clara Eva Birmingham were transported to the Cooper Green Hospital forensic autopsy facility where they were each subjected to a post-mortem examination by Dr. Joseph Embry, State Medical Examiner. The results of the autopsies were that each victim died from multiple stab and sharp instrument wounds and blunt-force trauma to the head. Crime scene photographs, autopsy photographs and the testimony of Dr. Embry showed that each victim

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suffered repeated wounds from a knife or knife-like instrument, that the wounds were vicious and delivered in such a way as to indicate an attack whereby each defended themselves and were obviously aware of the extent and nature of the attack and their impending deaths. The crime scene, too, indicated that both victims resisted attack and bore witness to the violence associated with their deaths.

4. Whether either victim was able to appreciate the plight and suffering of the other or not, the crime scene and the autopsy findings clearly indicate each would have been aware of the soon-to-be-fatal assault being committed upon them individually.

5. Other than [Mashburn's] plea of guilty, the most compelling evidence was the DNA analysis and comparison of crime scene blood with that of [Mashburn] and the testimony of a former cellmate of [Mashburn], Michael Wayne Simpson. Four blood traces recovered from the scene, three in the master bedroom and one from the wall in the den, matched that of the Defendant, Ellis Mashburn, with a computed population frequency of 1:1.2 quintillion non-related white individuals and 1:1.3 quintillion non-related black individuals. To strengthen the connection of the trace evidence recovered, [Mashburn] was observed to have a fresh laceration on his left hand that he stated he had himself sewed up after 'cutting it on a fence' at his residence. Additionally, Michael Wayne Simpson testified that [Mashburn] had confessed to him about the killing of his grandmother and step-grandfather while accompanied by Tony Brooks. [Simpson's] testimony relating what he stated . . . [Mashburn] told . . . him was confirmed by various aspects of the crime scene.

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Mashburn v. State (Mashburn II), 148 So. 3d 1094, 1102-04 (Ala. Crim. App. 2013) (internal quotation marks omitted) (emphasis in the trial court's amended order) (some alterations added); 1 (see also Doc. 30-29 at 55-66.)

B. Procedural History

A Calhoun County Grand Jury indicted Mashburn for robbing, burglarizing, and murdering the Birminghams in October 2002 at their home. (Doc. 30-1 at 26-27; Doc. 30-29 at 1-2.) The Grand Jury charged Mashburn with five capital offenses—two counts for murdering the Birminghams during a robbery, two counts for murdering them during a burglary, and one count for murdering them by an act, scheme, or course of conduct. Mashburn v. State (Mashburn I), 7 So. 3d 453, 455-56 (Ala. Crim. App. 2007); see also § 13A-5-40(a)(2), (4), (10), Ala. Code 1975 (classifying murder during a robbery in the first degree, murder during a burglary in the first degree, and murder of "two or more persons . . . by one act or pursuant to one scheme or course of conduct" as capital crimes).

Mashburn pled guilty to the capital counts, and the State presented its guilt-phase case to a jury. Mashburn I, 7 So. 3d at 456; see also § 13A-5-42, Ala. Code 1975 (providing that a jury may consider a guilty plea when determining whether the state

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has "prove[n] the defendant's guilt of the capital offense beyond a reasonable doubt"). On September 19, 2006, the jury convicted Mashburn on all counts. (Doc. 30-2 at 79-83; Mashburn I, 7 So. 3d at 456).

The jury's guilty determination triggered penalty-phase proceedings under Alabama law. Mashburn I, 7 So. 3d at 456. After a penalty hearing, the jury found unanimously in a special verdict that Mashburn's crimes "were especially heinous, atrocious or cruel when compared to other capital offenses[.]" (Doc. 30-2 at 84.) Eleven of twelve jurors recommended that Mashburn receive a death sentence. (Doc. 30-2 at 85; Mashburn I, 7 So. 3d at 456). The trial court held a sentencing hearing, accepted the jury's penalty findings, and sentenced Mashburn to death. (Doc. 30-29 at 3; Mashburn I, 7 So. 3d at 456).

Mashburn appealed, and the ACCA rejected the bulk of his challenge but remanded requiring "the trial court [to] enter a new sentencing order that complie[d] with the requirements of § 13A-5-47(d), Ala. Code 1975."2 Mashburn I,

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7 So. 3d at 465. As documented in the post-remand judgment and sentencing memorandum, the trial court found that Mashburn's intentional killing of two people during the course of a burglary and robbery and the jury's special verdict finding supported four aggravating circumstances. (Doc. 30-29 at 55, 62.) The trial court recognized the absence of a unanimous recommendation of death as a mitigating circumstance. (Id. at 65.) The trial court identified Mashburn's acceptance of legal responsibility; insignificant criminal history; young age; dysfunctional family unit; histories of emotional, physical, and substance abuse; untreated Attention Deficit or Attention Deficit Hyperactivity Disorders; difficult birth, including possible anoxia; lack of mental health treatment, including reports of hearing voices; and the firm meaning of a life sentence without parole as other established mitigating circumstances. (Doc. 30-29 at 63-64; see also Mashburn II, 148 So. 3d at 1131 (referencing trial court's mitigating findings listed in Mashburn's Rule 32 petition)). While the trial court accepted nearly all of Mashburn's mitigating factors, it rejected Mashburn's reliance on organic brain injury and "significant" mental dysfunction because the asserted conditions lacked a "reliable degree of proof" within the record, including contrary evidence showing that Mashburn had

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"a structurally normal brain for a male of his age." (Doc. 30-29 at 65.) The trial court concluded that the aggravating aspects of Mashburn's capital offenses "as found by the Jury in its guilt and special verdicts . . . . clearly outweigh[ed]" the mitigating...

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