Opinion
CIVIL ACTION NO. 97-563-RV-L.
August 28, 2000.
REPORT AND RECOMMENDATION
Frederick Keon Reed, a state prisoner currently in the custody of the respondent, filed his complaint for habeas corpus relief pursuant to 28 U.S.C. § 2254 on June 23, 1997 (Doc. 1). After service of that complaint, respondent filed an answer on August 21, 1997 (Doc. 8). A report and recommendation was entered on October 30, 1997, that the petition be dismissed as time-barred. (Doc. 12.) The report and recommendation was rejected by United States District Judge Richard W. Vollmer, Jr. in an order dated January 30, 1998 (Doc. 14). On respondent's motion for reconsideration, the District Judge affirmed the decision in a second order on July 15, 1998 (Doc. 21). A second Report and Recommendation was entered on April 29, 1999, that the petitioner's ineffective trial counsel claim be denied, and that further proceedings be stayed to permit the petitioner the opportunity to exhaust his state claims (Doc. 31.) The District Court adopted the Report and Recommendation regarding the stay only, and the case was stayed on June 8, 1999 pending exhaustion. (Doc. 34). The petitioner exhausted his state remedies on June 30, 1999, and the case was reopened on August 18. 1999 (Docs. 36 and 37). On that date the respondent filed a supplemental answer (Doc. 23). Thereafter, the case was transferred to the undersigned on January 5, 2000.
This action has been referred to the undersigned for entry of proposed findings of fact and a recommendation as to the appropriate disposition of the issues in the complaint; 28 U.S.C. § 636(b)(1)(B); 28 U.S.C. foll. § 2254, Rule 8(b)(1). After a complete review of this action, the undersigned determines that Reed's petition should be denied.
FINDINGS OF FACT
1. Petitioner is attacking his March 31, 1993, conviction for robbery in the first degree in the Circuit Court of Mobile County. (Doc. 1.)
2. Petitioner was represented during trial by Richard Yelverton, and on appeal by Joseph M. Powers, both appointed counsel (Doc. 1.)
3. The trial was conducted on March 30-31, 1993. The defendant was sentenced as an habitual offender to life imprisonment without the possibility of parole. (Doc. 8, Exhibit I.)
4. On direct appeal, appointed counsel filed a brief arguing that the assistant district attorney made improper closing arguments, attempting to bolster the credibility of the state's witnesses. (Doc. 8, Exhibit B.)
5. The Alabama Court of Criminal Appeals rejected the issue and affirmed petitioner's conviction in a memorandum opinion released December 30, 1993. (Doc. 8, Exhibit D.)
6. Petitioner's application for rehearing was overruled by the Court of Criminal Appeals on February 11, 1994. (Doc. 8, Exhibit E.)
7. The petitioner's counsel untimely filed a petition for writ of certiorari to the Alabama Supreme Court as well as a "motion to accept as timely filed." (Doc. 8, Exhibits F and G.)
8. On March 15, 1994, the Alabama Supreme Court unanimously ordered Reed's petition for writ of certiorari stricken as untimely filed. (Doc. 8, Exhibit H). A certificate of judgment was issued in plaintiffs case on that date. (Doc. 8, Exhibit E).
9. On February 22, 1996, Reed filed a Rule 32 petition in Mobile County Circuit Court, collaterally attacking his conviction. His petition raised only one ground: denial of effective assistance of appellate counsel for failure to preserve the issue of denial of effective assistance of trial counsel. (Exhibit I, Rule 32 petition at 5.)
10. The Circuit Court dismissed Reed' Rule 32 petition as time barred, finding that the petition was filed more than two years after certificate of judgment was issued in the case. (Doc. 8, Exhibit I.)
11. The Alabama Court of Criminal Appeals affirmed the dismissal of Reed's Rule 32 petition on separate grounds in a memorandum opinion released August 23, 1996. The Court of Criminal Appeals concluded that the Circuit Court erred when it concluded the petition was time barred under Rule 32.2(c). However, the Court of Criminal Appeals went on to rule that:
[T]he court's summary dismissal was correct because Reed's petition failed to meet the requirement of Rule 32.6(b), that a petition `contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds.' `A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.'
(Doc. 8, Exhibit L.)
12. Reed filed his federal habeas petition on June 23, 1997. Reed raises two grounds in his petition: "denial of effective assistance of counsel, from trial counsel and appellant counsel". (Doc. 1, page 7.)
CONCLUSIONS OF LAW
A. Procedural Default Doctrine .
In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court stated that it would "not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id. at 729, 111 S.Ct. at 2553-2554. This rule applies whether the state law ground is procedural or substantive. Id. at 729, 111 S.Ct. at 2554. The doctrine applies to bar federal habeas review when a state court declines to address a petitioner's federal claims because the petitioner fails to meet a state procedural requirement. Id. at 729-730, 111 S.Ct. at 2554; see also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (federal courts must honor legitimate state trial and appellate procedural rules when enforced by state courts and must decline to review on the merits claims that the state treats as barred absent a showing of cause for non-compliance with such rules and resulting prejudice); Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) ("Pursuant to the doctrine of procedural default, a state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitution[al] claim in state court, or who attempts to raise it in a manner not permitted by state procedural rules is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default."), cert. denied sub nom. Alderman v. Thomas, 513 U.S. 1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994). "In these cases, the state judgment rests on independent and adequate state procedural grounds." Coleman, 501 U.S. at 730, 111 S.Ct. at 2554 (citations omitted).
The application of the independent and adequate state ground doctrine in the habeas context is grounded in concerns of federalism and comity. Id.
Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-731, 111 S.Ct.at 2554.
An additional consideration comes to the fore when the independent and adequate state ground supporting a petitioner's custody is a state procedural default. Id. at 731, 111 S.Ct. at 2554. The Supreme Court has long held
that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims. (citations omitted) This exhaustion requirement is also grounded in principles of comity; in a federal system, the States should have the opportunity to address and correct alleged violations of state prisoners' federal rights.
[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance. A habeas petitioner who has defaulted his federal claims in state court meets the technical requirement for exhaustion; there are no state remedies any longer "available" to him. (citations omitted) In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases.Id. at 731, 732, 111 S.Ct. at 2554-2555, 2555.
In the habeas context, federal courts are to "presume that there is no independent and adequate state ground for a state court decision when the decision `fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.'" Id. at 735, 111 S.Ct. at 2557 (quoting Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3476-3477, 77 L.Ed.2d 1201 (1983)); see Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) ("[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar."). In all other cases, the presumption is not applicable. See Coleman, 501 U.S. at 739, 111 S.Ct. at 2559. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court held that the Harris v. Reed presumption is inapplicable to a claim that is never presented to the state courts. Id. at 299, 109 S.Ct. at 1069 ("The rule announced in Harris v. Reed assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding."). Moreover, the presumption "looks through" unexplained orders to the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 2595, 115 L.Ed.2d 706 (1991).
Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion "fairly appear[s] to rest primarily upon federal law," Coleman,[__ U.S., at __ 111 S.Ct., at 2559], we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place. Similarly where . . . the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.Ylst, 501 U.S. at 803, 111 S.Ct. at 2594. Also, the presumption may not be applied in cases in which the state court opinion did not, at a minimum, discuss the federal grounds at issue." Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993) (" Coleman and Ylst lead us to conclude that we may not assume that had the state court issued an opinion, it would have ignored its own procedural rules and reached the merits of this case. In fact, the most reasonable assumption is that had the state court ruled, it would have enforced the procedural bar."). Finally, "where a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim." Alderman v. Zant, supra, 22 F.3d at 1549.
When a petitioner has procedurally defaulted a claim, a federal court is barred from reaching the merits of that claim unless the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice." Coleman, supra, 501 U.S. at 750, 111 S.Ct. at 2565. The cause and prejudice standard applies "uniformly to all independent and adequate state procedural defaults." Id. at 750-751, 111 S.Ct. at 2565.
In procedural default cases, the cause standard requires the petitioner to show that "some objective factor external to the defense impeded counsel's efforts" to raise the claim in state court. (citation omitted). Objective factors that constitute cause include "`interference by officials'" that makes compliance with the state's procedural rule impracticable, and "a showing that the factual or legal basis for a claim was not reasonably available to counsel." (citation omitted). In addition, constitutionally "[i]neffective assistance of counsel . . . is cause." (citation omitted). Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default. (citation omitted). Once the petitioner has established cause, he must show "`actual prejudice' resulting from the errors of which he complains." (citation omitted).
Federal courts retain the authority to issue the writ of habeas corpus in a further, narrow class of cases despite a petitioner's failure to show cause for a procedural default. These are extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime. We have described this class of cases as implicating a fundamental miscarriage of justice. (citation omitted).McCleskey v. Zant, 499 U.S. 467, 493-494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991).
B. Discussion
The respondent has argued in the Supplemental Answer that this Court is procedurally barred from reaching the merits of petitioner's two claims. Concerning ineffective assistance of appellate counsel, respondent argues that the Alabama Court of Criminal Appeals' decision that dismissal was proper for failure to comply with Ala.R.Cr.P. 32.6(b) is a valid procedural bar to plaintiffs claim which requires this Court to decline review. Wainwright v. Sykes, 433 U.S. 62 (1977); Cooper v. Wainwright; 807 F.2d 881 (11th Cir. 1986). Second, respondent argues that the claim for ineffective assistance of appellate counsel is barred because the petitioner presented no facts to support this claim to the state court; grounds for relief not presented to the state courts and which have become procedurally barred under state rules are also procedurally barred from habeas corpus review in federal court. Parker v. Dugger, 876 F.2d 1470, 1478 (11th Cir. 1989), reversed on other grounds 498 U.S. 308 (1991). Concerning the claim of ineffective assistance of trial counsel, respondent argues that petitioner's claim"has never been presented to the state courts. Thus, as he no longer has any available remedy, this claim is procedurally defaulted as well. Parker." Id.
The respondent argued, a
"`habeas petitioner must have `fairly presented' to the state courts the `substance of his federal habeas corpus claim.' Anderson v. Harless, 459 U.S. 4, 6, (1982) (citing Picard v. Connor, 404 U.S. 270, 275, 277-80 (1971)). `The State court system must have been apprised of the facts and the legal theory upon which the petitioner bases his assertion.' Messelt v. Alabama, 595 F.2d 247, 250 (5th Cir. 1979) (citations omitted) (emphasis added).'"
After consideration of all matters presented, the undersigned agrees that petitioner's claim of ineffective assistance of appellate counsel is procedurally defaulted because the claim was barred on independent and adequate state grounds by the Alabama Court of Criminal Appeals. That Court's determination that dismissal was proper because "Reed's petition failed to meet the requirement of Rule 32.6(b), that a petition `contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds," constitutes a sufficient statement resting on independent and adequate state grounds to bar review of the appellate counsel claim by this Court.
The undersigned also concludes that the ineffective assistance of trial counsel claim is procedurally defaulted because it has never been properly presented to the state court for consideration. In Footman v. Singletary, 978 F.2d 1207, 1210 (11th Cir. 1992), the Eleventh Circuit held that "a habeas petitioner may not present instances of ineffective assistance of counsel in his federal petition that the state court has not evaluated previously." Reed's Rule 32 petition only alleged ineffective assistance of appellate counsel; the claim of ineffective assistance of trial counsel was never presented to the state court. "Because [Reed] did not raise this specific allegation of ineffective assistance in any state court proceeding, our circuit precedent dictates that the claim is procedurally barred." Johnston v. Singletary, 162 F.3d 630, 635 (11th Cir. 1998); Jackson v. Herring, 42 F.3d 1350 (11th Cir. 1995); Footman, supra.
One of Petitioner claims in his Rule 32 was that appellate counsel was ineffective for failing to preserve his ineffective assistance of trial counsel claim. However, he did not allege ineffective assistance of trial counsel directly in his Rule 32.
In order for this Court to reach the merits of either of Reed's claims, Reed must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see Jackson v. Herring, 42 F.3d 1350, 1355 (11th Cir.) (finding procedurally barred an independent ineffective assistance of counsel claim that had not been presented to the state courts because there had been no sufficient showing of cause and prejudice), cert. dismissed sub nom. Jackson v. Jones, 515 U.S. 1189 (1995). See also, Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) ("Pursuant to the doctrine of procedural default, a state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitution[al] claim in state court, or who attempts to raise it in a manner not permitted by state procedural rules is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default."), cert. denied sub nom. Alderman v. Thomas, 513 U.S.1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994).
To meet his burden under the cause and prejudice standard, the petitioner stated,
Petitioner suffered irreputable harm and contends that as a direct result he suffered actual prejudice by,
(a). — the Circuit Court of Mobile County for failing to follow their own rules of criminal procedure Rule 32.6(b), where petitioner were never afforded the opportunity to file his petition in the `proper form' [ sic].
(b). — The actual prejudice occurred also where the Court of Criminal Appeals own rules were not followed and were never made clear as to why Rule 32.6(B) were never meet by the trial court when petitioner's petition was denied [ sic].
This statement is Reed's only attempt in the record to meet the cause and prejudice standard. The Court therefore treats the statement as relating to both the appellate counsel claim and the trial counsel claim.
The undersigned concludes that petitioner has not met his burden under the cause and prejudice standard. Petitioner's statement fails to establish a specific harm or injury to the outcome of his case. Instead, petitioner alleges a denial of procedural due process by the state court because they failed to follow "criminal procedure Rule 32.6(b)." The undersigned concludes that petitioner's claim that the state failed to follow its own procedural rules for collateral attacks does not establish his burden under the cause and prejudice standard.
Alabama Rule of Criminal Procedure 32.6(a) states in relevant part:
Form. A proceeding under this rule is commenced by filing a petition, verified by the petitioner or petitioner's attorney, with the clerk of the court . . . . The petition should be filed by using or following the form accompanying this rule. If that form is not used or followed, the court shall return the petition to the petitioner to be amended to comply with the form.
Rule 32.6(b) states:
Specificity. The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings. (emphasis added.)
Furthermore, Rule 32.7(d) makes clear that, when faced with a petition that is not sufficiently specific, the Court has two options: the Court may dismiss the petition or grant leave to amend:
Summary Disposition. If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition. Leave to amend shall be freely granted. Otherwise, the court shall direct that the proceedings continue and set a date for hearing.
Ala.R.Cr.P. 32.7(d).
In summary, Rule 32.6(a) concerns the form of a petition; Rule 32.6(b) concerns the substance of a petition; and Rule 32.7(a) provides a state court with two alternatives when the specificity requirements of Rule 32.6(b) have not been met.
Petitioner's showing of cause and prejudice — that the state failed to follow its own procedural rules — was discussed in relation to tolling the statute of limitations by the District Court's July 15, 1998, order, in which the Court concluded that Reed's habeas petition was timely filed. After a careful survey of the law, including the cases cited in the Court's July 15, 1998, order, the undersigned concludes that the state did not fail to follow its own procedural rules. The undersigned recommends that the District Court reconsider its statement that the state did not follow its own procedural rules, in the current context of whether petitioner's claim is procedurally barred.
"Accordingly, notwithstanding the fact that petitioner's state post-conviction petition was denied by the state court because it was not in the proper form, the court will allow petitioner the benefit of the tolling petition under 28 U.S.C. § 2244 (d)(2), as applied to the court-created one-year grace period, because the state court did not provide petitioner with the opportunity to amend his timely filed post-conviction petition. Because petition filed his federal habeas petition within one year of the date on which the judgment of his state post-conviction petition became final, the court concludes that petitioner's federal habeas petition was timely filed." Doc. 21.
Three cases were cited by the Court to suggest that the state failed to follow its own procedural rules: Magouirk v. State, 682 So.2d 507 (Ala.Cr.App. 1996); Garret v. State, 644 So.2d 977 (Ala.Cr.App. 1994); and Banks v. State, 658 So.2d 511 (Ala.Cr.App. 1994). The undersigned respectfully recommends that the District Court consider how those cases are distinguishable from the facts before this Court, in relation to whether the claim is procedurally barred.
In Magouirk, the petitioner filed a "motion for writ of habeas corpus" in the Circuit Court of Jefferson County challenging his 1971 murder conviction in the Circuit Court of Calhoun County. The Jefferson County Court "notified the appellant that his petition raised a claim cognizable under Rule 32 and informed him that he should properly have filed the petition in the Calhoun Circuit Court, the court of his conviction." Magouirk, 682 So.2d at 507. The Court gave the petitioner 30 days to respond and thereafter dismissed the petition when no response was received. The Alabama Court of Criminal Appeals reversed, holding that the Jefferson County Circuit Court did not have jurisdiction to dismiss the appellant's petition. Id. The Court of Criminal Appeals explained that "the Jefferson Circuit Court should have transferred the matter to the Calhoun Circuit Court and returned the petition to the appellant, allowing him the opportunity to file a proper Rule 32 petition in the court of his conviction." Id., (citation omitted). Magouirk therefore stands for the proposition that improperly-styled petitions that raise a cognizable rule 32 claim in the wrong circuit court should be transferred to the Court of proper jurisdiction with leave for the petitioner to file a petition in the proper form. The case does not address dismissal for lack of specificity. Rule 32.6(b) — the grounds for affirming dismissal in the present case — is never cited in Magouirk.
In Garrett v. State, 644 So.2d 977 (Ala.Cr.App. 1994), the appellant's retained counsel filed a collateral attack on appellant's conviction just 12 days before the expiration of the two-year statute of limitations for Rule 32 petitions. The petition, which alleged ineffective assistance of counsel and one other ground, was not in the proper form. The state objected in a written response, arguing improper form under Rule 32.6(a) and a failure to include a "clear and specific statement of the grounds upon which relief was sought." Garrett, at 978. The trial court sustained the objection as to improper form (Rule 32.6(a)). The Circuit Court also concluded that the ineffective assistance of counsel was "insufficiently pled to meet the Strickland v. Washington test to allege that counsel's performance was constitutionally ineffective." Garret, at 979 (citation omitted). The appellant's counsel filed a second Rule 32 petition in the proper form. The facts alleged to support petitioner's claim were identical to those filed in the first petition. The Circuit Court dismissed the second petition as untimely under Rule 32.2(c) and for failure to plead with specificity.
The Alabama Court of Criminal Appeals reversed the Circuit Court and held that a Rule 32 petition that is not in proper form should be returned to petitioner to amend and pursuant to Rule 32.6(a). Specifically, the Garrett Court held that "timely filing of a petition for post-conviction relief that is not in the proper form as prescribed by Rule 32 . . . does "toll" the two-year limitations period of Rule 32.2(c) and that an amended petition relates back to the date of the filing of the original petition provided the amended petition is filed within a reasonable time following the order of the court returning the original petition." Garrett, 644 So.2d at 980. The holding in Garrett, as in Magouirk, concerns the form of a complaint. In fact, on the issue of specificity the Court of Criminal Appeals found that "the appellant's claim of ineffective assistance of counsel is meritorious on its face," which contradicts the Circuit Court's determination that the petitioner failed to state his claims with the required specificity. Id., at 982. The Garrett court implicitly overruled the Circuit Court's determination that the claim failed to meet the specificity requirements. Therefore, the determination that the petition should have been returned to give the opportunity to amend instead of dismissing it relates to the failure to submit the petition in the proper form as required by 32.6(a), not the requirement of specificity found in 32.6(b).
Ala.R.Cr.P. 32.6(a) states in relevant part, "A proceeding under this rule is commenced by filing a petition, verified by the petitioner or petitioner's attorney, with the clerk of the court. . . . The petition should be filed by using or following the form accompanying this rule. If that form is not used or followed, the court shall return the petition to the petitioner to be amended to comply with the form."
The third case cited is Banks v. State, 658 So.2d 511 (Ala.Cr.App. 1994), quoted below in its entirety:
Michael Douglas Banks appeals from the denial of his petition for post-conviction relief.
On November 14, 1990, Banks was convicted of manslaughter, a violation of § 13A-6-3, Code of Alabama 1975. He was sentenced to 18 years' imprisonment. He did not pursue a direct appeal of his conviction. He did file, on January 26, 1993, a petition for post-conviction relief pursuant to Rule 32, Ala.R.C.P. That petition was denied.
Because Banks's Rule 32 petition was not filed in the form required by Rule 32.6(b), A.R.Cr.P., the petition was due to be returned to the appellant with instructions to file a verified petition in the proper form. Therefore, jurisdiction of this case is transferred to the trial court with instructions to set aside its order denying the petition and to return the petition to Banks so that he can have the opportunity to file a petition in the proper form. Drayton v. State, 600 So.2d 1088 (Ala.Cr.App. 1992) (and cases cited therein).
APPEAL DISMISSED.
658 So.2d 511. Admittedly, Banks required remand where the "petition was not filed in the form required by Rule 32.6(b)". However, Banks' value as precedent is, at best, questionable in light of Maddox v. State, 662 So.2d 915 (Ala. 1995) discussed infra. The only case cited to support the Court of Criminal Appeals' rationale in Banks is Drayton. The Supreme Court in Maddox criticized the Court of Appeals "blind adherence" to Drayton as "a literal exaltation of form over substance". Id.
Respondent has argued that the Banks references to Rule 32.6( b) is a typographical error that should read "Rule 32.6( a)". In support, respondent has submitted the complete record of Banks's appeal (Doc. 33, Exhibit C) as well as the State's brief in Banks (Doc. 33, Exhibit B), in which the State moved for remand to the trial court so that the petitioner could refile his petition in the proper included in the appendix to Rule 32.6(a) (Exhibit C). Whatever the merits of respondent's argument, this Court cannot, sua sponte, "correct" alleged typographical errors in published decisions issued by other courts.
As stated above, the Alabama Supreme Court has provided some guidance on the issue of when a petition should be returned instead of dismissed. In Maddox v. State, 662 So.2d 915 (Ala. 1995), the Alabama Supreme Court reversed the Court of Criminal Appeals and adopted the dissent from that case. While Maddox did not involve a dismissal for lack of specificity, it does address the application of 32.7(d) (which provides for the court's authority to dismiss or allow leave to amend) over the application of 32.6(a) (which requires the court to allow for leave to amend). Maddox, like Magouirk, addressed the filing of a Rule 32 petition in the wrong Circuit Court. The Alabama Court of Criminal Appeals had remanded the case to the Circuit Court so that the petitioner could file a petition in the proper form in the court of original conviction. The Supreme Court reversed the Court of Criminal Appeals stating that it was not error for the Circuit Court to dismiss under 32.7(d) rather than return to petitioner for an amendment as required under 32.6(a). Quoting the dissent in from the Court of Appeals, the Supreme Court stated,
Rule 32.7(d) provides that `[i]f the court determines that the petition is . . . precluded, . . . and that no purpose would be served by any further proceedings, the court may dismiss the petition or grant leave to file an amended petition.' This petition was summarily dismissed because, as a collateral attack on a 21-year-old conviction for which the statute of limitations had long since run, it showed on its face that it was precluded. The appellant did not request leave to amend his petition.
Apparently this Court [referring to the Court of Appeals] believes that the foregoing provisions of Rule 32 are less important than the following directive of Rule 32.6(a):
`The petition should be filed by using or following the form accompanying this rule. If that form is not used or followed, the court shall return the petition to the petitioner to be amended to comply with the form.'
I cannot share that belief. Just as Rule 32.7(d) (allowing summary dismissal of a petition) overrides, in some cases, the Rule 32.7(a) requirement that the prosecutor file a response [citation omitted], Rule 32.7(d) also takes precedence, in some cases, over the Rule 32.6(a) requirement that the petition be filed on the proper `form.' Our blind adherence to the holding of Drayton v. State, 600 So.2d 1088 (Ala.Cr.App. 1992), is a literal exaltation of form over substance.
It is ridiculous to remand this cause so that the appellant will have the opportunity to file a petition in the proper form that will be promptly dismissed. I dissent. 662 So.2d at 915.
We granted the State's petition for certiorari review to address the State's contention that the Court of Criminal Appeals erred "in holding that a petition which was due to be dismissed as a successive petition and precluded by the statute of limitations must be remanded so Appellant can file it on the proper form so that it can be dismissed and denied again." We agree, and we adopt Judge Bowen's dissent as the opinion of this Court. See our opinion in Lockett v. State, 644 So.2d 34 (Ala. 1994), which addresses this same issue; our holding in Lockett requires that we reverse the judgment in this case.Maddox, 662 So.2d at 915. The Maddox case is clear authority that dismissals under 32.7(d) (which includes dismissals for lack of specificity) are proper even in light of the requirement under 32.6(a) that the petition be returned for amendment when it is not in proper form.
In Lockett v. State, the petitioner filed a writ of habeas corpus in Montgomery Circuit Court which the Court dismissed, finding that the issues could have been raised on direct appeal and were not cognizable. The Court of Criminal appeals reversed with directions that petitioner be allowed to file a proper Rule 32 petition. The Supreme Court reversed the Court of Criminal Appeals. "The claims raised in Lockett's petition for a writ of habeas corpus could have been raised on direct appeal; therefore, those claims are clearly precluded under Rule 32 A.R.Cr.P., and the trial court did not err in summarily dismissing the petition. Because Lockett's claims are clearly precluded under Rule 32, there is no need to remand for an opportunity to file a proper Rule 32 petition." Lockett, 644 So.2d 34 (Ala. 1994).
In sum, a review of the record and the law convinces the undersigned that the petitioner failed to meet his burden under the cause and prejudice standard in that petitioner has merely stated an erroneous conclusion of law as support for his claim that there was sufficient cause for his failure to comply with the state procedural requirements.
The Court also reaches this conclusion mindful of the Eleventh Circuit's ruling in Richardson v. Thigpen, 883 F.2d 895 (11th Cir. 1989), cert. denied, 492 U.S. 934 (1989), in factual circumstances similar to the instant case:
The state judge addressed the state procedural bar of petitioners s ineffective assistance of counsel claim as follows: "This Court finds that this claim is procedurally barred in that it was not raised by the petition at the second error coram nobis hearing which was held in October, 1985." This certainly constitutes a plain statement within the meaning of Michigan v. Long. Richardson argues that the state misapplied its own procedural default rules; this does not constitute cause within the meaning of Strickland . See generally Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.) (federal court on habeas review must defer to state court's interpretation and application of state law), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984). Consequently, this claim is procedurally barred under Wainwright and Harris.Richardson, 883 F.2d at 898. Accordingly, Reed cannot establish cause for the procedural default of the two issues presented in this habeas petition.
CONCLUSION
The undersigned is of the opinion that petitioner's rights were not violated in this cause and that his request for habeas corpus relief should be denied.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.
DONE this 28th day of August, 2000.