Mashburn v. Comm'r, Ala. Dep't of Corr.

80 F.4th 1292

Ellis Louis MASHBURN, Jr., Petitioner-Appellant, v. COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.

No. 22-10329

United States Court of Appeals, Eleventh Circuit

Filed: September 5, 2023

Appeal from the United States District Court for the Northern District of Alabama, D.C. Docket No. 1:14-cv-01829-LSC

Richard C. Keller, Erin Cornelius Howell, Burr & Forman, LLP, Birmingham, AL, Randall S. Susskind, James Hubbard, Equal Justice Initiative of Alabama, Montgomery, AL, for Petitioner-Appellant.

Richard Anderson, Edmund Gerard LaCour, Jr., Alabama Attorney General's Office, Montgomery, AL, for Respondent-Appellee.

Before Wilson, Jordan, and Rosenbaum, Circuit Judges.

Wilson, Circuit Judge:

Ellis Mashburn, Jr. appeals the district court's denial of his petition for habeas corpus. After reviewing this case's extensive record, and with the benefit of oral argument, we affirm.

I. Background

A. Facts

As with all convictions that result in the ultimate punishment, the facts underlying this case are heart-wrenching from any perspective. In 2006, Mashburn pleaded guilty to, and was subsequently found guilty of, murdering his grandmother and step-grandfather.¹ Like the Alabama Court of Criminal Appeals (ACCA), Mashburn v. State, 148 So. 3d 1094, 1103-04 (Ala. Crim. App. 2013) (Mashburn I), and the federal district court after it, Mashburn v. Dunn, No. 1:14-cv-01829, 2021 WL 1208868, at *1-2 (N.D. Ala. Mar. 31, 2021) (Mashburn II), we recite the facts as they were stated in the Alabama trial court's amended sentencing memorandum.²

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 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. His testimony relating what he stated was told to him was confirmed by various aspects of the crime scene.

B. Procedural History

Mashburn was convicted on five counts of capital murder, including murdering Mr. and Mrs. Birmingham in the course of a robbery, Ala. Code § 13A-5-40(a)(2) (Counts 1-2); murdering Mr. and Mrs. Birmingham in the course of a burglary, Ala. Code § 13A-5-40(a)(4) (Counts 3-4); and murdering two people by one act or pursuant to a single scheme or course of conduct, Ala. Code § 13A-5-40(a)(10) (Count 5). Mashburn I, 148 So. 3d at 1102. A penalty-phase jury unanimously concluded in a special verdict that Mashburn's crimes "were especially heinous, atrocious or cruel when compared to other capital offenses" and voted eleven-to-one to recommend a sentence of death—a recommendation that the trial court adopted. Mashburn II, 2021 WL 1208868, at *3.

In its amended sentencing memorandum, the trial court identified ten mitigating circumstances that were proven during the proceedings: 1) acceptance of legal responsibility; 2) no significant criminal history; 3) Mashburn's young age (24) at the time of the offenses; 4) "a stormy and dysfunctional family life" and a "more probable than not" chance that Mashburn was "the victim of psychological and physical abuse and was not properly protected by his mother from those intra-family problems"; 5) untreated attention deficit disorder or attention deficit hyperactivity disorder that resulted in significant educational and behavioral issues; 6) a familial predisposition to mental, social, and substance-abuse issues and substance abuse early in life and at or near the time of the crime; 7) family reports of a difficult birth that resulted in anoxia at the time of delivery (though this circumstance was largely impeached by Alabama "but [was] given appropriate consideration by the Court"); 8) mental health issues (like hearing voices) that went unaddressed; 9) Mashburn was loved by his family; and 10) "[t]hat life without possibility of parole means life without possibility of parole." The trial court also noted that the jury's verdict—elevento-one in favor of death—was not unanimous and that "[m]ental health experts opined that [Mashburn] had a decreased intellectual function likely caused by poly-substance abuse and alleged physical trauma," although the court found that the "trauma was not objectively demonstrated."

The trial court also determined that four aggravating circumstances were proven beyond a reasonable doubt: 1) the capital offenses were committed in the course of a burglary; 2) the capital offenses were committed in the course of a robbery; 3) the capital offenses were "especially heinous, atrocious or cruel compared to other capital offenses"; and 4) Mashburn "intentionally caused the death of two or more persons pursuant to one scheme or course of conduct."

The trial court concluded "that the evidence clearly supports the Jury's verdicts in this case and, in particular, the Jury's recommendation of a sentence of death." The trial court then stated that it "is independently of the opinion and finds that the aggravating circumstances in this case clearly outweigh the mitigating ones presented, that the earlier-imposed sentence of death in this case was and is appropriate under Alabama's guided sentencing scheme and that there has been no reason demonstrated that any other sentence would be warranted."

Mashburn's convictions and sentence were affirmed by the ACCA, and both the Supreme Court of Alabama and the Supreme Court of the United States denied certiorari. Mashburn v. State, 7 So. 3d 453 (Ala. Crim. App. 2007), cert. denied October 24, 2008; Mashburn v. Alabama, 556 U.S. 1270, 129 S.Ct. 2736, 174 L.Ed.2d 250 (2009) (mem.).

After exhausting his direct appeals, Mashburn filed a petition for postconviction relief under Alabama Rule of Criminal Procedure 32.³ See Am. Pet. For Relief from J. Pursuant to Rule 32.1(f) of the Ala. Rules of Criminal Procedure (Rule 32 Petition), Mashburn v. State, 148 So. 3d 1094 (Ala. Crim. App. 2013) (No. CR-11-0321). In his petition to the state circuit court, Mashburn alleged that his penalty-phase counsel were constitutionally ineffective, in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, Mashburn first argued that his counsel were ineffective for failing to present evidence that he was under the influence of drugs (methamphetamine and prescription drugs) and was without sleep for numerous days at the time of the crimes. See Rule 32 Petition, ¶ 224. Mashburn claimed that counsel should have presented this information along with evidence about how drug use and sleep deprivation would have affected his mental state during the commission of the crimes. Id. ¶ 226. Second, Mashburn pointed out that Dr. Thomas Sachy, a clinical neuropsychiatrist, testified that Mashburn had "some form of bipolar disorder." Id. ¶ 255. Mashburn argued that his counsel were ineffective for not pushing further and offering medical evidence about how this disorder could have caused involuntary and combative behavior on the night of the murders. Id. ¶ 258.

Mashburn requested discovery, but a little over a week later, Alabama filed a motion requesting that the circuit court withhold ruling on Mashburn's request because his claims were due to be...