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Elliott v. Smith

United States District Court, E.D. Kentucky, Southern Division, London

July 15, 2018

AARON SMITH, Warden, Respondent.

          OPINION & ORDER

          Robert E. Wier, United States District Judge.

         On March 19, 2018, [1] Petitioner, Michael Elliott, filed a pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. DE 1 (Petition). The Court conducted an initial review and perceived the petition as time-barred. DE 7 (Order). The Court thus directed briefing on timeliness and equitable tolling (if applicable). Id. Each side responded. DE 9 (Petitioner's Response); DE 11 (Warden's Response).

         Having reviewed the entire record under the applicable standards, the Court DISMISSES the time-barred petition (DE 1) WITH PREJUDICE and DENIES a certificate of appealability. The AEDPA statute of limitations bars the petition, and no colorable claim of innocence spares the filing.

         Factual & Procedural History

         In 2005, the Kentucky Court of Appeals articulated the underlying facts and history through the conclusion of Elliott's direct appeals:

On December 10, 1991, a Laurel County grand jury returned indictments against Elliott and his co-defendant, Allen Cushman, for murder, burglary in the first degree, attempted murder, and robbery in the first degree. Elliott was also indicted as a persistent felony offender in the first degree (PFO I). The charges resulted from the August 21, 1991, murder of Earl L. Cowden and the attempted murder of Cowden's son, Leon. Cushman was tried separately in November 1995, and was convicted on all four counts of the indictment and sentenced to death. However, before Cushman perfected his appeal, and prior to Elliott's trial, he died of natural causes.
After nearly three years of delay brought on by an interlocutory appeal taken by Elliott from the trial court's 1992 denial of his ex parte request for the appointment of a specially-trained mitigation investigator, in October 1997, Elliott was tried in the Laurel Circuit Court. At trial, the Commonwealth's case was heavily dependant upon an eyewitness identification made by Cowden's neighbor, Ted Proffitt. On the afternoon of Cowden's murder, Proffitt testified that he was working outside of his house when Mrs. Cowden and her grandson ran out of a field that separated their houses and Mrs. Cowden screamed that someone was breaking into her residence. Proffitt immediately ran to the Cowden residence to investigate and saw both a strange car in the Cowden's driveway and Cushman in the basement of the house. Proffitt then returned home to call the state police.
While waiting for the police to arrive, Proffitt saw Cowden driving down the road towards Cowden's house, so he ran towards the Cowden home in an attempt to stop Cowden before he walked in on the intruders. When Proffitt arrived at the Cowden residence, he heard a loud “dynamite” sound in the house, and, looking through the open front door, saw a man standing over the body of Cowden. While testifying, Proffitt identified Elliott as the man standing over Cowden's body. During cross-examination, Elliott's counsel attempted to impeach Proffitt's testimony by calling to the jury's attention the fact that law enforcement personnel did not ask Proffitt to identify Elliott from a photographic lineup until two years after Cowden's murder, during co-defendant Cushman's trial.
The Commonwealth's case against Elliott was further strengthened by the testimony of one of Elliott's former jail cellmates, Sam Shepard. Shepard testified that he and Elliott became acquainted while playing cards and checkers in jail. Elliott told him that he had met an older man who knew that Cowden kept large sums of cash in his house and they agreed to rob Cowden. Shepard testified that Elliott had told him that things had gone awry during the robbery and that he had put a pillow case over Cowden's head and shot him as he begged for his life. Shepard further testified that Elliott was bragging about his crime and that he showed no remorse. Moreover, Elliott also told Shepard that he was happy when Cushman died because only Cushman could testify against him.
Elliott was convicted of murder, robbery, burglary, and wanton endangerment. He was sentenced to life without parole for 25 years on the murder conviction, 20 years on the burglary conviction, 20 years on the robbery conviction, and five years on the wanton endangerment conviction. On direct appeal the Supreme Court of Kentucky affirmed Elliott's conviction and sentence by Opinion which was rendered on January 20, 2000, and became final on February 10, 2000.

Elliott v. Commonwealth, No. 2004-CA-000065-MR, 2005 WL 3441361, at *1-2 (Ky. Ct. App. Dec. 16, 2005) (footnotes omitted) (hereinafter Elliott I).

         More recently, the Kentucky Court of Appeals summarized the post-conviction procedural history through the trial court's February 18, 2014, denial of Elliott's third raft of state post-conviction filings:

On March 5, 2001, Elliott brought a collateral challenge pursuant to RCr 11.42. The trial court denied that challenge, and this Court upheld the decision on June 7, 2002. See 2001-CA-000751-MR. Elliot also filed a second RCr 11.42 challenge in 2003. This Court affirmed the trial court's denial of that motion in 2004-CA-000065-MR (Ky. App. 2006).
On January 8, 2014, Elliott filed the motion sub judice pursuant to RCr 11.42, CR 60.02(f), and CR 60.03. In that motion, Elliott contested the results of a DNA test performed in 1991 on blood found at the crime scene. He further disputed the reliability of multiple eyewitnesses, most notably Ted Proffitt and Willie Mae Cowden.
The trial court ultimately found that there was no merit to Elliott's request for an additional DNA test because the blood was previously tested and was shown to have been the victim's. See Elliott v. Commonwealth, 2004- CA-000065-MR, 2005 WL 3441361 (Ky. App. Dec. 16, 2005). The trial court also determined that the reliability of the eyewitnesses who testified against Elliott during his trial had already been litigated.

Elliott v. Commonwealth, No. 2014-CA-000715-MR, 2016 WL 354314, at *1 (Ky. Ct. App. Jan. 29, 2016), reh'g denied (Nov. 29, 2016), review denied (Apr. 19, 2017) (hereinafter Elliott II).

         Petitioner now pursues § 2254 relief on several state-rejected theories. DE 1, at 7- 9. The Court, however, need not address claim merits. The petition is time barred, and the show cause response includes no credible ...

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