United States District Court, E.D. Kentucky, Southern Division, London
OPINION & ORDER
E. Wier, United States District Judge.
March 19, 2018,  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
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.
& Procedural History
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
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).
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.
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).
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 ...