Opinion
CR-19-0524
10-16-2020
Jeremy Leshun WILLIAMS v. STATE of Alabama
Jeremy Leshun Williams, appellant, pro se. Steve Marshall, att'y gen., and Marc Alan Starrett, asst. att'y gen., for appellee.
Jeremy Leshun Williams, appellant, pro se.
Steve Marshall, att'y gen., and Marc Alan Starrett, asst. att'y gen., for appellee.
PER CURIAM.
Jeremy Leshun Williams appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P.
In 2015, Williams was convicted of murder and was sentenced to life imprisonment. This Court affirmed Williams's conviction and sentence on direct appeal in an unpublished memorandum issued on February 3, 2017. Williams v. State (No. CR-15-0494), 242 So. 3d 218 (Ala. Crim. App. 2017) (table). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on April 14, 2017. In December 2017, Williams filed his first Rule 32 petition challenging his conviction and sentence. After conducting an evidentiary hearing, the circuit court denied the petition in January 2019. Williams filed an untimely notice of appeal in April 2019, and this Court dismissed the appeal by order in May 2019, subsequently issuing a certificate of judgment in July 2019 (case no. CR-18-0748).
On May 28, 2019, Williams filed the instant petition, his second. In his petition, Williams raised the same claims he had raised in his first petition -- that he was actually innocent; that his trial and appellate counsel had been ineffective; that juror misconduct had occurred; and that the trial court had committed numerous errors during his trial. In addition, Williams requested an out-of-time appeal from the denial of his first Rule 32 petition on the ground that his failure to timely appeal was through no fault of his own. On January 28, 2020, the State filed a motion for summary dismissal of Williams's petition, arguing that Williams's claims were precluded by Rules 32.2(a)(2), (a)(4), and/or (b), Ala. R. Crim. P.; that they were time-barred by Rule 32.2(c), Ala. R. Crim. P.; that they were not sufficiently pleaded; and/or that they were meritless. Williams filed a reply to the State's motion on February 6, 2020, and on February 13, 2020, the circuit court granted the State's motion. On February 24, 2020, Williams filed a postjudgment motion to alter, amend, or vacate the circuit court's judgment, which the circuit court denied on March 11, 2020. Williams timely filed a notice of appeal on March 2, 2020.
On appeal, Williams reasserts each of the claims he raised in his petition. Williams's claims of actual innocence, ineffective assistance of counsel, juror misconduct, and trial-court error are, as the State asserted in its response, precluded as successive by Rule 32.2(b) because they were raised in Williams's first petition. As for his claim that his failure to timely appeal the denial of his first Rule 32 petition was through no fault of his own, the State agrees that Williams is entitled to an opportunity to prove that claim. The claim is not precluded by any of the provisions in Rule 32.2, is sufficiently pleaded, and, if true, may entitle Williams to relief. See, e.g., Ford v. State, 831 So. 2d 641, 644 (Ala. Crim. App. 2001) ("Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala. R. Crim. P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.").
Williams also raises additional claims in his brief on appeal that were not included in his petition. However, it is well settled that "[a]n appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition." Arrington v. State, 716 So. 2d 237, 239 (Ala. Crim. App. 1997). Therefore, we do not address the claims that were not included in his petition. We also note that Williams takes issue in his brief with this Court's sua sponte extending the time for the record to be filed in this appeal. However, after this Court's order extending the time for the record to be filed, Williams filed multiple motions and objections, all of which this Court denied. We decline to revisit that issue.
Therefore, we remand this cause for the circuit court to allow Williams an opportunity to present evidence to support his claim that his failure to appeal the denial of his first Rule 32 petition was through no fault of his own. The court shall either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala. R. Crim. P. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Williams's claim and may grant Williams appropriate relief if necessary. Due return shall be filed within 63 days of the date of this opinion, and shall include the circuit court's written findings of fact, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received and/or relied on by the court in making its findings.
REMANDED WITH INSTRUCTIONS.
McCool and Cole, JJ., concur. Minor, J., concurs in the result. Windom, P.J., dissents. Kellum, J., dissents, with opinion.
KELLUM, Judge, dissenting.
In his Rule 32, Ala. R. Crim. P., petition for postconviction relief, Jeremy Leshun Williams challenged his 2015 conviction and sentence for murder and requested an out-of-time appeal from the 2019 summary dismissal of his previous Rule 32 petition on the ground that his failure to appeal that judgment was through no fault of his own.
Rule 32.1(f), Ala. R. Crim. P., provides that "[a] petition that challenges multiple judgments entered in more than a single trial or guilty-plea proceeding shall be dismissed without prejudice." I recognize that, in Giles v. State, 250 So. 3d 611 (Ala. Crim. App. 2017), a majority of this Court held that a Rule 32 petitioner may, in a single petition, challenge a judgment entered in one proceeding and seek an out-of-time appeal from a judgment entered in a separate proceeding. In doing so, this Court quoted the following from this Court's opinion in Banville v. State, 255 So. 3d 792 (Ala. Crim. App. 2017) :
" ‘The relief sought by a petitioner pursuant to Rule 32.1(f) seeking an out-of-time appeal differs completely from the relief from a conviction and sentence, or an illegal sentence, that a petitioner would seek under Rules 32.1(a) through 32.1(e). A petition seeking relief under Rule 32.1(f) does not challenge the underlying conviction or sentence. It only formally requests the trial court to find that the petitioner had failed to file
an appeal from a conviction and sentence, or a previous Rule 32 petition, because the petitioner had failed to perfect an appeal through no fault of his own.’ "
I concurred in the result only in Banville, in part, because I did not necessarily agree with this language. I point out that a request for relief under Rule 32.1(d) also "does not challenge the underlying conviction or sentence," yet this Court lumped Rule 32.1(d) together with Rules 32.1(a), (b), (c), and (e) and chose to differentiate only Rule 32.1(f).
Giles, 250 So. 3d at 613-14 (quoting Banville, 255 So. 3d 792 at 795-96 ). This Court then concluded that because "a claim under Rule 32.1(f) -- as one that ‘differs completely from the relief ... that a petitioner would seek under Rules 32.1(a) through 32.1(e),’ Banville, [255] So. 3d at [795] -- may properly be construed as an alternative ground for relief when accompanied by additional claims under Rules 32.1(a) through 32.1(e)," a Rule 32 petitioner may, in a single petition, challenge one judgment and seek an out-of-time appeal from a separate judgment. Giles, 250 So. 3d at 614.
I dissented in Giles, explaining:
"Although the path taken by the Court in this case appears to comply with the letter of Rule 32.1(f), which provides that ‘[a] petition that challenges multiple judgments entered in more than a single trial or guilty-plea proceeding shall be dismissed without prejudice,’ at least when read in light of the statement in Banville v. State, [255] So. 3d [792], [795] (Ala. Crim. App. 2017), that a request for an out-of-time appeal is not a challenge to a judgment, I do not believe that it complies with the spirit of the law. The spirit of the prohibition in Rule 32.1(f) is to prevent a Rule 32 petitioner from raising claims in a single petition that relate to separate proceedings, as was done in this case. Allowing Rule 32 petitioners to raise claims in a single Rule 32 petition that relate to separate proceedings might lead to confusion, could result in a waste of scarce judicial resources, and will allow petitioners to avoid filing fees they otherwise would have been required to pay."
Giles, 250 So. 3d at 615 (footnote omitted) (Kellum, J., dissenting). I adhere to my dissent in Giles. In my view, the second sentence in Rule 32.1(f) prohibits a Rule 32 petitioner from filing a single petition challenging a judgment entered in one proceeding and seeking an out-of-time appeal from a judgment entered in a separate proceeding. Of course, a Rule 32 petitioner who, in a single petition, both challenges a judgment and seeks an out-of-time appeal from that same judgment would not run afoul of the second sentence in Rule 32.1(f). However, in this case, Williams challenged the judgment entered in one proceeding (his 2015 conviction and sentence) and also sought an out-of-time appeal from the judgment entered in a separate proceeding (the 2019 dismissal of his previous Rule 32 petition).
I believe Giles should be overruled, the circuit court's judgment in this case reversed, and this cause remanded for the circuit court to dismiss Williams's petition without prejudice. Therefore, I respectfully dissent.
On Return to Remand
This case was previously assigned to another member of this Court.
Jeremy Leshun Williams appeals the Lauderdale Circuit Court's judgment summarily dismissing his petition for postconviction relief under Rule 32, Ala. R. Crim. P. In November 2015, a jury convicted Williams of murder, see § 13A-6-2, Ala. Code 1975, for killing Brioni Jamaal Rutland in 2014. The circuit court sentenced Williams to life in prison. This Court affirmed Williams's conviction and sentence by unpublished memorandum, Williams v. States (No. CR-15-0494), 242 So. 3d 218 (Ala. Crim. App. 2017) (table), cert. denied, 251 So. 3d 14 (Ala. 2017) (table). This Court issued the certificate of judgment on April 14, 2017.
The grand jury indicted Williams for murder made capital because it was committed in the course of a robbery, see § 13A-5-40(a)(2), Ala. Code 1975. The jury convicted Williams of murder as a lesser-included offense.
Williams filed his first Rule 32 petition in December 2017. The circuit court, after an evidentiary hearing, denied the petition in January 2019. This Court, by order, dismissed Williams's appeal of that judgment as untimely (case no. CR-18-0748).
Williams filed this Rule 32 petition, his second, in May 2019. Williams alleged claims challenging his conviction and sentence and a claim seeking an out-of-time appeal from the judgment denying his first Rule 32 petition. The circuit court summarily dismissed the second petition, and Williams timely appealed.
On original submission, a plurality of this Court, after stating that Rule 32.2(b), Ala. R. Crim. P., precluded as successive the claims in Williams's second petition that challenged his conviction and sentence, remanded the matter for the circuit court to give Williams a chance to prove his claim seeking an out-of-time appeal. Williams v. State, 342 So. 3d 591 (Ala. Crim. App. 2020). The record on return to remand shows that the circuit court granted Williams relief on his out-of-time-appeal claim.
This Court faced a similar case in Giles v. State, 250 So. 3d 611 (Ala. Crim. App. 2017). In Giles, this Court dismissed that part of Giles's appeal seeking an out-of-time appeal of his first Rule 32 petition because he had obtained the relief he requested on that claim. 250 So. 3d at 613. This Court reversed the circuit court's judgment on the remaining claims and told the circuit court to hold those claims in abeyance until completion of an appeal of the judgment denying Giles's first Rule 32 petition. This Court reasoned that the out-of-time appeal of Giles's first Rule 32 petition reopened those proceedings and that the circuit court thus should wait to decide the other claims in the second petition.
Giles controls this case. Because the circuit court granted Williams relief on his out-of-time appeal claim, that part of his appeal is due to be dismissed. As to the remaining claims in Williams's petition, the circuit court's judgment is due to be reversed, and the circuit court should hold those claims in abeyance until completion of any appeal of the judgment denying Williams's first petition.
Although Giles controls this case, this Court's decision on original submission did not follow Giles and, instead, addressed whether the remaining claims in Williams's petition are successive. This Court erred in addressing those claims and should not have undertaken that analysis in our opinion on original submission. As explained below, neither the circuit court nor this Court should decide whether those claims are successive until the first Rule 32 proceedings are completed.
This Court's decision in Giles applied the text of Rule 32 and this Court's decisions interpreting that rule. Rule 32.1(f) allows a petitioner to seek, as an alternative ground for relief, an out-of-time appeal "from the conviction or sentence itself or from the dismissal or denial of a [Rule 32] petition previously filed." Giles held that, if a petitioner in a second or subsequent petition gets an out-of-time appeal of a judgment dismissing a prior petition, the circuit court should not rule on the substantive claims in the second or subsequent petition until the petitioner exhausts his appellate remedies on the prior petition. The Giles Court, citing Waters v. State, 155 So. 3d 311 (Ala. Crim. App. 2013), recognized that the granting of an out-of-time appeal reopened the proceedings in Giles's first Rule 32 petition, thus allowing him to appeal the judgment dismissing his first Rule 32 petition.
To avoid problems of logic and timing in the future, the circuit court needed to wait until the time expired for Giles to pursue an appeal of the first Rule 32 petition or until this Court issued a certificate of judgment in such an appeal. If, for example, Giles obtained a reversal of the judgment dismissing the first petition, he could amend that petition to include more claims—even claims he raised in the second petition. See, e.g., Ex parte Apicella, 87 So. 3d 1150, 1154 (Ala. 2011) (" ‘Reversal of a judgment and remanding of the cause restores both the State and the defendant to the condition in which they stood before the judgment was pronounced.’ " (quoting Knight v. State, 356 So. 2d 765, 767 (Ala. Crim. App. 1978) )). By requiring the circuit court to wait to rule on the second petition, the Giles Court sought to avoid the problem of inconsistent or nonsensical rulings. We reaffirm that approach here.
We note that Judge Kellum, who dissented in Giles and in this Court's application of Giles in Watson v. State, 325 So.3d 838 (Ala. Crim. App. 2020), dissented from this Court's decision on original submission. In her view, this Court should overrule Giles and not allow a petitioner to "fil[e] a single petition challenging a judgment entered in one proceeding [such as the judgment of conviction in the petitioner's original trial] and seeking an out-of-time appeal from a judgment entered in a separate proceeding [such as a judgment of conviction on a previously filed Rule 32 petition]." Williams, 342 So. 3d at 594 (Kellum, J., dissenting). That position, however, conflicts with the text of Rule 32 and this Court's decision in Banville v. State, 255 So. 3d 792 (Ala. Crim. App. 2017).
In Banville, this Court held:
"The relief sought by a petitioner pursuant to Rule 32.1(f) seeking an out-of-time appeal differs completely from the relief from a conviction and sentence, or an illegal sentence, that a petitioner would seek under Rules 32.1(a) through 32.1(e). A petition seeking relief under Rule 32.1(f) does not challenge the underlying conviction or sentence. It only formally requests the trial court to find that the petitioner had failed to file an appeal from a conviction and sentence, or a previous Rule 32 petition, because the petitioner had failed to perfect an appeal through no fault of his own."
255 So. 3d at 795-96. In a footnote, this Court stated that "a petition seeking an out-of-time appeal pursuant to 32.1(f) does not challenge any judgment." 255 So. 3d at 795 n.2 (emphasis added).
Giles held that "a claim under Rule 32.1(f) —as one that ‘differs completely from the relief ... that a petitioner would seek under Rules 32.1(a) through 32.1(e),’ Banville, 255 So. 3d at 795 —may properly be construed as an alternative ground for relief when accompanied by additional claims under Rules 32.1(a) through 32.1(e)." 250 So. 3d at 614 (emphasis added). Although not long-settled precedent, Giles and Banville are the law.
In her dissenting opinion in Giles, Judge Kellum also cited concerns that the approach in Giles "might lead to confusion, could result in a waste of scarce judicial resources, and will allow petitioners to avoid filing fees they otherwise would have been required to pay." Giles, 250 So. 3d at 615 (Kellum, J., dissenting). We are mindful of those concerns, but, unless the Alabama Supreme Court decides to overrule Giles or Banville—either by a judicial decision or by changing the text of Rule 32—this Court must follow them.
We also note that, if a petitioner files a Rule 32 petition while an appeal is pending of a judgment denying his or her earlier petition, this Court already uses an approach like that taken in Giles. When such a case comes to the attention of this Court, we instruct the circuit court to hold the second petition in abeyance until review of the first petition is complete. See Giles, 250 So. 3d at 614 (citing, as authority different from the main proposition in Giles but analogous enough to lend support to it, Ex parte Bogan, 814 So. 2d 305, 305-06 (Ala. Crim. App. 2001) ("The circuit court had no jurisdiction to dismiss the [petitioner's second] petition while the dismissal of [the petitioner's first] petition was pending on direct appeal. See Barnes v. State, 621 So. 2d 329 (Ala. Crim. App. 1992). ‘ "The general rule is that jurisdiction of one case cannot be in two courts at the same time." ’ Rogers v. State, 782 So. 2d 847 (Ala. Crim. App. 2000), quoting Ex parte Hargett, 772 So. 2d 481 (Ala. Crim. App. 1999).")).
Under Giles, supra, we dismiss that part of Williams's appeal challenging the denial of his claim for an out-of-time appeal, and we reverse the circuit court's judgment as to the remaining claims in Williams's second petition and direct the circuit court to hold those claims in abeyance until Williams has the chance to appeal the judgment dismissing his first Rule 32 petition.
APPEAL DISMISSED IN PART; JUDGMENT REVERSED IN PART.
McCool and Cole, JJ., concur. Windom, P.J., concurs in part and dissents in part, with opinion. Kellum, J., dissents.
WINDOM, Presiding Judge, concurring in part and dissenting in part.
I concur in the majority's decision to dismiss part of Williams's appeal; I dissent from the remainder of the majority's opinion.