Opinion
1210094
03-04-2022
EX PARTE Samuel A. MCCORMICK ( In re: Samuel A. McCormick v. State of Alabama )
Samuel A. McCormick, petitioner, pro se. Submitted on certiorari petition only.
A Petition for Writ of Certiorari to the Court of Criminal Appeals (Covington Circuit Court, CC-08-122.61; Charles A. Short, Judge; Court of Criminal Appeals, CR-20-0403)
Samuel A. McCormick, petitioner, pro se.
Submitted on certiorari petition only.
PER CURIAM.
WRIT DENIED. NO OPINION.
Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
Parker, C.J., concurs in part and dissents in part.
PARKER, Chief Justice (concurring in part and dissenting in part).
I concur in denying certiorari review of petitioner Samuel Allan McCormick's Grounds 1, 2 (as to its allegation of conflict), 3, and 4. I dissent from denying review of Ground 2 as to its allegation of a question of first impression. The question that McCormick raises -- whether a Rule 32 petitioner is entitled to respond to the State's allegation of a ground of preclusion -- highlights a significant tension between this Court's precedent and that of the Court of Criminal Appeals.
McCormick filed in the Covington Circuit Court a petition for postconviction relief under Rule 32, Ala. R. Crim. P. The State moved to dismiss the petition, arguing that McCormick's claim was precluded under Rules 32.2(a)(3), (a)(4), (b), and (c). The circuit court granted the State's motion and dismissed the petition without allowing time for McCormick to respond. McCormick appealed to the Court of Criminal Appeals, arguing that the circuit court had erred by not allowing him to respond. The Court of Criminal Appeals held that, under its precedents, a trial court is not required to permit a Rule 32 petitioner to respond. McCormick v. State (No. CR-20-0403, Oct. 1, 2021), ––– So. 3d –––– (Ala. Crim. App. 2021) (table).
Before this Court, McCormick's certiorari petition presents the issue as a question of first impression: whether, after the State responds to a Rule 32 petition by alleging grounds of preclusion, a trial court may summarily dismiss the petition without giving the petitioner an opportunity to respond to the State's preclusion grounds. This question has not been previously decided by this Court, so it is cognizable as "a material question ... of first impression for the Supreme Court of Alabama," Rule 39(a)(1)(C), Ala. R. App. P.
Notably, Rule 39(a)(1)(C) allows review of "decisions where a material question requiring decision is one of first impression for the Supreme Court of Alabama" (emphasis added). Thus, the fact that a court of appeals may have previously decided the question, even repeatedly, is not relevant to whether the question "is one of first impression" under Rule 39(a)(1)(C).
As for the merits of the question, Rule 32.3, Ala. R. Crim. P., provides: "The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence." (Emphasis added.) That burden of the petitioner would seem to suggest that he must be given an opportunity to refute the State's preclusion grounds.
Indeed, that seems to be one effect of our holding in Ex parte Rice, 565 So. 2d 606 (Ala. 1990). There, in response to a postconviction petition, the State generically alleged that the petition should be denied " ‘on grounds of preclusion as provided by Rule 20.2[, Ala. Temp. R. Crim. P. (now Rule 32.2, Ala. R. Crim. P.)].’ " Id. at 607. The State did not specify any of the seven grounds of preclusion listed in the rule. This Court held that the State was required to plead specific grounds of preclusion, for two reasons. First, due process required notice to the petitioner of the specific grounds. Second, the State's generalized allegation failed to satisfy "the obvious purpose behind the [rules'] assignment of the burdens of pleading and proof": "[T]he State is required to plead the ground or grounds of preclusion that it believes apply to the petitioner's case, thereby giving the petitioner the notice he needs to attempt to formulate arguments and present evidence to ‘disprove [the] existence [of those grounds] by a preponderance of the evidence.’ " Id. at 608 (quoting Rule 20.3, Ala. Temp. R. Crim. P. (now Rule 32.3, Ala. R. Crim. P.)) (emphasis added). (The language that Rice quoted from Rule 20.3, Ala. Temp. R. Crim. P., is identical to the language in current Rule 32.3, Ala. R. Crim. P.) Both reasons for our holding in Rice seem to have been founded on an assumption that, under what is now Rule 32.3, a petitioner will be given an opportunity to respond. Thus, Rice also appears to support a conclusion that a petitioner must be given such an opportunity.
Nevertheless, the Court of Criminal Appeals has repeatedly held that a petitioner is not entitled to respond. See Jenkins v. State, 105 So. 3d 1234, 1244-45 (Ala. Crim. App. 2011) ; Mashburn v. State, 148 So. 3d 1094, 1113-15 (Ala. Crim. App. 2013) ; Mays v. State, 233 So. 3d 1010, 1016 (Ala. Crim. App. 2016) ; Price v. State, 278 So. 3d 1287, 1289 (Ala. Crim. App. 2018) ; Bishop v. State, 344 So.3d 906 (Ala. Crim. App. 2021). Those decisions ultimately relied on this Court's decision in Ex parte Ward, 46 So. 3d 888 (Ala. 2007). There, we held that, (1) if a Rule 32 claim is precluded on the face of the petition, the trial court may summarily dismiss that claim without waiting for a response from the State, and, (2) if the preclusion is a time limitation, then to avoid summary dismissal the petitioner must anticipatorily rebut that preclusion by pleading equitable tolling in his petition. Id. at 897-98.
In Jenkins and its progeny, the Court of Criminal Appeals appears to have extended both of Ward's holdings. As to the first holding, that extension appears to have been based on reasoning that, if a trial court can summarily dismiss without waiting for a response from the State, then, if the State responds, the court can likewise summarily dismiss without waiting for a response from the petitioner. See Jenkins, 105 So. 3d at 1244-45. As to Ward's second holding, which requires a petitioner to anticipatorily rebut time limitations, the Court of Criminal Appeals seems to have thought that that requirement should apply to all preclusion grounds. If a petitioner should have already alleged his avoidances of all preclusion grounds in his petition, then, the court seems to have concluded, he is not entitled to respond to the State's subsequent allegation of preclusion grounds. See id. at 1244.
The problem with Jenkins's extensions of Ward, though, is that those extensions are in tension with this Court's reasoning in Rice. Rice's rationales assume that the petitioner will be given an opportunity to respond to the State's allegation of preclusion grounds. Otherwise, Rice's holding -- that due process and Rule 32.3 require the State to allege specific preclusion grounds -- makes little sense. Further, as a matter of general principle, due process usually requires notice and opportunity to respond. See Ex parte Weeks, 611 So. 2d 259, 261 (Ala. 1992). Rice held that notice is required, but curiously, Jenkins held that opportunity to respond is not.
Accordingly, the question of first impression raised by McCormick -- whether a Rule 32 petitioner must be given an opportunity to respond to preclusion grounds alleged by the State -- warrants consideration by this Court. It is possible that Rice's due-process rationale should be reconsidered in light of Ward. Or there may be a way to reconcile Rice and Ward. But as the law stands today, there is significant tension between Rice and the Court of Criminal Appeals' extensions of Ward in Jenkins and its progeny.