Mashburn v. State
Citation | 148 So.3d 1094 |
Decision Date | 12 July 2013 |
Docket Number | CR–11–0321. |
Parties | Ellis Louis MASHBURN, Jr. v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
Lauren Foshee, Jacquelyn Hutzell, and Megan Stephens, Birmingham; and Richard Carlton Keller, Birmingham, for appellant.
Luther Strange, atty. gen., and Richard D. Anderson, asst. atty. gen., for appellee.
Ellis Louis Mashburn, Jr., appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his five capital-murder convictions and his resulting sentence of death.
In 2006, Mashburn pleaded guilty to, and was found by a jury to be guilty of, five counts of capital murder in connection with the murders of his grandmother, Clara Eva Birmingham, and his stepgrandfather, Henry Owen Birmingham, Jr. Specifically, Mashburn was convicted of: (1) the murder of Mr. Birmingham during the course of a robbery, see § 13A–5–40(a)(2), Ala.Code 1975; (2) the murder of Mrs. Birmingham during the course of a robbery, see § 13A–5–40(a)(2), Ala.Code 1975; (3) the murder of Mr. Birmingham during the course of a burglary, see § 13A–5–40(a)(4), Ala.Code 1975; (4) the murder of Mrs. Birmingham during the course of a burglary, see § 13A–5–40(a)(4), Ala.Code 1975; and (5) the murders of two persons by one act or pursuant to one scheme or course of conduct, see § 13A–5–40(a)(10), Ala.Code 1975. By a vote of 11–1, the jury recommended that Mashburn be sentenced to death for his capital-murder convictions. The trial court followed the jury's recommendation and sentenced Mashburn to death. On appeal, this Court remanded the case for the trial court to issue an amended sentencing order in compliance with § 13A–5–47(d), Ala.Code 1975. After the trial court complied with our instructions on remand, this Court affirmed Mashburn's convictions and sentence of death. Mashburn v. State, 7 So.3d 453 (Ala.Crim.App.2007). The Alabama Supreme Court denied certiorari review and this Court issued a certificate of judgment on October 24, 2008. The United States Supreme Court subsequently denied certiorari review on June 1, 2009. Mashburn v. Alabama, 556 U.S. 1270, 129 S.Ct. 2736, 174 L.Ed.2d 250 (2009).
In its amended sentencing order,1 the trial court stated the following facts regarding the crimes:
and blunt-force trauma to the head. Crime scene photographs, autopsy photographs and the testimony of Dr. Embry showed that each victim 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.
Mashburn timely filed his Rule 32 petition on October 21, 2009, alleging that the State had suppressed evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that he had been denied the effective assistance of counsel during both the guilt and penalty phases of his trial. The State filed an answer and a motion to dismiss on February 9, 2010. The State argued that Mashburn's Brady claim was precluded by Rules 32.2(a)(2) and (a)(5), Ala. R.Crim. P., was insufficiently pleaded, and was meritless. The State also argued that Mashburn's various claims of ineffective assistance of counsel relating to the guilt phase of his trial were waived by virtue of his guilty plea, were insufficiently pleaded, and/or were meritless and that Mashburn's various claims of ineffective assistance of counsel relating to the penalty phase of his trial were insufficiently pleaded and/or were meritless. On March 3, 2010, Mashburn filed a motion for discovery. On March 12, 2010, the State filed a motion to withhold ruling on Mashburn's discovery request on the ground that all of Mashburn's claims were due to be summarily dismissed and, thus, that discovery was unnecessary.
On April 1, 2010, the circuit court issued a lengthy order summarily dismissing Mashburn's petition. The record reflects that the parties were not notified of the circuit court's April 2010 order until August 2011. Subsequently, Mashburn filed a second Rule 32 petition requesting an out-of-time appeal from the summary dismissal of his first petition. After a hearing, the circuit court granted Mashburn's request for an out-of-time appeal. This appeal followed.
“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo. ” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). “However, where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, ‘[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.’ ” Boyd v. State, 913 So.2d 1113, 1122 (Ala.Crim.App.2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992) ).
“On direct appeal we reviewed the record for plain error; however, the plain-error standard of review does not apply to a Rule 32 proceeding attacking a death sentence.” Ferguson v. State, 13 So.3d 418, 424 (Ala.Crim.App.2008). Additionally, “[i]t is well settled that ‘the procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.’ ” Nicks v. State, 783 So.2d...
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