IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BRANDON MARQUIS PUGH, )

 )

Petitioner, )

 )

v. ) CIVIL ACTION 13-0588-WS-B

 )

LOUIS BOYD, )

 )

Respondent. )

 ORDER

In October 2014, the Magistrate Judge entered a report and 

recommendation (“R&R”) recommending that the petition be dismissed as timebarred. (Doc. 16). Also in October 2014, the Court adopted the R&R as its 

opinion, dismissed the action as time-barred, and entered final judgment 

accordingly. (Docs. 19, 20). The petitioner did not appeal. Instead, some nine 

months later, the petitioner filed a document styled, “Proof of ‘Actual 

Innocence.’” (Doc. 23). The petitioner argued he could not have committed the 

crime of second-degree rape in 2007 because the victim did not fit the statutory 

definition, and he concluded his petition thus should be considered timely. The 

Court construed the filing as a motion under Rule 60(b) and held the petitioner 

could not obtain relief under that rule. (Doc. 24).

Undeterred, the petitioner has now filed four documents styled, “Actual 

Innocence Claim.” (Docs. 25-28). In them, he argues he could not have 

committed second-degree rape because the victim “was not mentally 

incompetent.” 

“We hold that actual innocence, if proved, serves as a gateway through 

which a petitioner may pass whether the impediment is a procedural bar ... or, as 

in this case, expiration of the statute of limitations.” McQuiggin v. Perkins, 133 S. 

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Ct. 1924, 1928 (2013). “We caution, however, that tenable actual-innocence 

gateway pleas are rare ....” Id. Indeed, so rare that a petitioner “does not meet the 

threshold requirement unless he persuades the district court that, in light of the 

new evidence, no juror, acting reasonably, would have voted to find him guilty 

beyond a reasonable doubt.” Id. (internal quotes omitted). “Unexplained delay in 

presenting new evidence [of actual innocence] bears on the determination whether 

the petitioner has made the requisite showing.” Id. at 1935. The Court assumes 

without deciding that McQuiggin applies here.

Second-degree rape occurs if the defendant “engages in sexual intercourse 

with a member of the opposite sex less than 16 and more than 12 years old” or 

“engages in sexual intercourse with a member of the opposite sex who is incapable 

of consent by reason of being mentally defective.” Ala. Code § 13A-6-62(a). The 

petitioner denied in his petition that the victim fit either of these criteria, but he 

presented no evidence to support his assertion. (Doc. 1). He repeated this 

assertion, again without any supporting evidence, in his reply and in his objection 

to the R&R. (Docs. 13, 17). Only after final judgment was entered against him 

did the petitioner submit any evidence in support of his allegation that he could not 

have committed second-degree rape.

In its previous order, the Court assumed that the petitioner could be 

invoking Rule 60(b)(2) or 60(b)(6).1 The former rule requires the presentation of 

“newly discovered evidence that, with reasonable diligence, could not have been 

discovered in time to move for a new trial under Rule 59(b).” The latter rule 

requires the petitioner to “show extraordinary circumstances justifying the 

reopening of a final judgment.” Lugo v. Secretary, Florida Department of 

 1 Under Gonzalez v. Crosby, 545 U.S. 524 (2005), the petitioner is not using Rule 

60(b) to advance a new claim or to challenge the previous resolution of a claim on the 

merits. See id. at 532 (describing uses of Rule 60(b) that constitute improper attempts to 

avoid the requirements of 28 U.S.C. § 2244(b)). Instead, he is challenging the Court’s 

resolution of a threshold procedural issue.

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Corrections, 750 F.3d 1198, 1210 (11th Cir. 2014) (internal quotes omitted), cert. 

denied, 135 S. Ct. 1171 (2015). “And such circumstances will rarely occur in the 

habeas context.” Id. (internal quotes omitted). “Even where the Rule 60(b) 

motion demonstrates sufficiently extraordinary circumstances, whether to grant 

the requested relief is ... a matter for the district court’s sound discretion.” Id. 

(internal quotes omitted). 

In his previous filing, the petitioner relied on a 1998 opinion from the 

Alabama Supreme Court. While that decision may indicate his victim was over 

the age of 16, it also states she has “permanent brain damage.” (Doc. 24 at 3). 

The petitioner’s only additional evidence on this go-round is a screen grab from 

Facebook (whose page is unspecified) that may feature a picture of the victim 

holding a plaque of some sort. The screen grab also shows that a relative of the 

victim took her to a movie and (over a year earlier) to the Mobile Civic Center. 

The petitioner concludes that the screen grab “proves that she works [and has] a 

social life.” (Doc. 27 at 2). The victim’s condition eight years after the petitioner 

raped her is of little significance to her mental state at the time of the crime, and it 

does nothing to negate the petitioner’s own evidence that his victim has – and had 

when he raped her – permanent brain damage. The petitioner’s evidence falls 

woefully short of showing that no reasonable juror could have voted to find him 

guilty beyond a reasonable doubt.2

For the reasons set forth above, the petitioner’s “actual innocence claims,”

construed as motions under Rule 60(b), are denied.

3

 2 The petitioner makes a few other factual assertions concerning his victim but 

without offering any supporting evidence. Without evidence, his allegations are 

irrelevant under McQuiggin. He also provides no justification for his protracted delay in 

presenting evidence of such matters. Even had he done so, these matters are of little 

consequence and make no difference to the actual-innocence analysis.

3 One of the petitioner’s filings addresses the mental competence of a second 

victim, whom he apparently raped in 2012. (Doc. 25). This filing is irrelevant, as the 

petition challenges only his conviction for the 2007 rape.

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DONE and ORDERED this 18th day of August, 2015.

s/WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

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