Melson v. Allen
| Decision Date | 14 November 2008 |
| Docket Number | No. 06-14047.,06-14047. |
| Citation | 548 F.3d 993 |
| Parties | Robert Bryant MELSON, Petitioner-Appellant, v. Richard F. ALLEN, Commissioner, Alabama Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Northern District of Alabama.
Before BIRCH, BARKETT and WILSON, Circuit Judges.
Robert B. Melson ("Melson"), a prisoner under an Alabama death sentence, appeals the district court's dismissal of his 28 U.S.C. § 2254 federal habeas petition as untimely. Melson contends that he filed his petition within the one-year statute of limitations. Alternatively, he submits that the limitations period may be equitably tolled based on the misconduct of his post-conviction attorneys or his actual innocence. Based on our review of the record and oral arguments, we AFFIRM.
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 had been with Peraita the entire night up until his arrest. Two days later, Melson changed his story, claiming that Peraita dropped him off in an area called Green Pastures around 11:50 P.M. and picked him up again at 1:00 A.M. Melson said they then changed clothes at Peraita's house because they had gotten wet in the rain.
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, who testified that he saw Melson at Frankie's the night of the robbery between 11:00 P.M. and midnight (even though he had no watch).
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 prison 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, 149 L.Ed.2d 141 (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 Rule
32.6(a) of the Alabama Rules of
Criminal Procedure
15 Mar. 2002 The circuit court granted the
state's motion to dismiss and gave
Melson twenty-one days to comply
with the verification requirement
25 Mar. 2002 Melson, through counsel, filed an
amended verified petition to comply
with Rule 32.6(a)
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 § 2254 federal habeas petition. The government filed a motion to dismiss the petition as untimely. The district court subsequently dismissed the petition. First, the court found that Melson's federal habeas petition was time-barred under 28 U.S.C. § 2244(d)(1)(A), which starts a one-year statute of limitations running from the date Melson's conviction became final. The court found that Melson's unverified Rule 32 petition filed on 4 March 2002 was not properly filed so as to toll the limitations period under § 2244(d)(2), and that the actions of Melson's post-convictions attorneys did not warrant equitable tolling. Second, the district court found that Melson's claims of newly discovered evidence filed pursuant to 28 U.S.C. § 2244(d)(1)(D) were procedurally defaulted because they were never raised in a state post-conviction proceeding. The court found no cause or prejudice to excuse the procedural default. Further, the court found that a miscarriage of justice would not occur if these procedurally defaulted claims were not considered because Melson had failed to show he was actually innocent of the crimes. Melson now appeals the district court's dismissal of his federal habeas petition.
We review de novo a district court's dismissal of a federal habeas petition including the determination that a petition is time-barred under § 2244(d). See Arthur v. Allen, 452 F.3d 1234, 1243 (11th Cir.2006). A district court's factual findings are reviewed for clear error. Id. In addition, a state court's factual findings are presumed correct unless the petitioner rebuts that presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (2006).
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 id. § 2244(d)(1) (2006). The statute of limitations starts running on the latest of: "(A) the date on which the judgment became final by the conclusion of direct 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." Id. § 2244(d)(1)(A), (D). Under either trigger date, the limitations period is tolled during the time "a properly filed application for State post-conviction or other collateral review ... is pending." Id. § 2244(d)(2).
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 § 2244(d)(1)(A), Melson had one year from 5 March 2001, or until 6 March 2002, in which to file a timely federal habeas petition. Melson argues that the limitations period was tolled on 4 March 2002, the date he filed an unverified Rule 32 petition. That petition was dismissed, however, for failing to comply with the verification requirement of Rule 32.6(a) of the Alabama Rules of Criminal Procedure. See Melson, 902 So.2d at 717. Rule 32.6(a) requires a Rule 32 petition to be "verified by the petitioner or the petitioner's attorney ... using or following the form accompanying this rule." Ala. R.Crim. P. 32.6(a) (2002). The accompanying form reveals that a...
To continue reading
Request your trial
-
United States v. Rondon, CASE NO. 8:06-cr-326-T-23TGW
...establishes a "gateway"claim of innocence allowing review of the merits of an otherwise barred constitutional claim. Melson v. Allen, 548 F.3d 993, 1002 (11th Cir. 2008). Rondon fails to allege a valid cause to excuse his default because he establishes no external impediment that prevented ......
-
Scott v. U.S.
...succeeded in making the requisite showing of "actual innocence." Scott v. Duffy, 372 Fed.Appx. 61, 63 (11th Cir.2010); Melson v. Allen, 548 F.3d 993, 1001 (11th Cir.2008) vacated and remanded on other grounds by Melson v. Allen, ---U.S. ----, 130 S.Ct. 3491, 177 L.Ed.2d 1081 (2010); Johnson......
-
Overton v. Jones
...determination is consistent with Eleventh Circuit precedent regarding certain procedural filing requirements. See Melson v. Allen, 548 F.3d 993 (11th Cir.2008) (vacated on other grounds)(unverified petition did not trigger the tolling provisions of § 2244(d)(2) ); Sibley v. Culliver, 377 F.......
-
Poitra v. North Dakota
...rejected in Holland. Notably, in 2008 and consistent with the foregoing cases, the Eleventh Circuit held in Melson v. Allen, 548 F.3d 993, 997–1001 (11th Cir.2008), that allegations that a petitioner's attorney did not tell him his initial petition for state postconviction relief had been d......