Abdeldayem v. State

• Citation: 988 So.2d 608
• Decision Date: 29 June 2007
• Docket Number: CR-05-2039.
• Parties: Ahmed Hossin ABDELDAYEM v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

988 So.2d 608

Ahmed Hossin ABDELDAYEM v. STATE of Alabama.

CR-05-2039.

Court of Criminal Appeals of Alabama.

June 29, 2007.

David A. Gespass, Birmingham, for appellant.

Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.

On Application for Rehearing

SHAW, Judge.

The opinion issued on April 27, 2007, is withdrawn, and the following opinion is substituted therefor.

Ahmed Hossin Abdeldayem appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his August 2004 conviction for robbery in the first degree and his resulting sentence of 20 years' imprisonment. This Court affirmed Abdeldayem's conviction and sentence on appeal in an unpublished memorandum issued on September 23, 2005. Abdeldayem v. State (No. CR-04-0144), 945 So.2d 1096 (Ala.Crim.App.2005) (table). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on December 9, 2005.

Abdeldayem filed his Rule 32 petition on May 17, 2006. Although the petition was verified by Abdeldayem, it listed David Gespass as his attorney.¹ The petition contained in the record consists solely of the Rule 32 form, with a check next to the box stating, "The Constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief." (C. 6.) No attachments to the form containing any specific allegations are included in the record. On June 9, 2006, the circuit court directed the State to respond to the petition. On June 14, 2006, the State filed a response to Abdeldayem's petition. The next day, June 15, 2006, the circuit court issued an order summarily denying Abdeldayem's petition. On July 25, 2006, Gespass filed a notice of appeal on Abdeldayem's behalf.

On August 24, 2006, Gespass filed with this Court a "Motion to Remand for Reconsideration or, in the Alternative, to Correct the Record." In that motion, Gespass argued that despite his representation of Abdeldayem throughout the Rule 32 proceedings, he had never been served with copies of any court orders or with a copy of the State's response to the petition; that he had consulted with Abdeldayem and Abdeldayem had likewise not received any court orders or the State's response to his petition; that he was not even aware that the petition had been denied until he telephoned the circuit clerk's office to check on the status of the case one week before the time for filing a notice of appeal was to lapse and discovered that the petition had been denied; and that the record failed to include the attachment to the Rule 32 form that explained Abdeldayem's claims for relief. Gespass argued that he was unable to file a motion to reconsider the circuit court's denial of the petition because he did not become aware of the denial until over 30 days after the order denying the petition had been entered; that he did not know whether the attachment to the petition explaining the grounds for relief had been misplaced by the circuit clerk's office or inadvertently misplaced by him and not properly filed with the Rule 32 form, but that had he been notified of the State's response and/or the court's order, any error in the attachment not being properly filed could have been corrected; and that, had he been served with a copy of the State's response to the petition, he would have filed "a detailed rejoinder" setting forth "a detailed explanation of the specific grounds of the petition." On August 29, 2006, this Court denied Abdeldayem's request to remand for reconsideration of his petition; treated Abdeldayem's motion as a motion to supplement the record pursuant to Rule 10(g), Ala.R.App.P.; and transferred the motion to the circuit court for disposition. On October 5, 2006, the circuit court denied Abdeldayem's motion to correct the record, stating "Motion to Correct Record is denied. Everything in the file has been sent to the Court of Criminal Appeals."

On appeal, Abdeldayem contends that he was denied due process when his counsel was not served with copies of any of the orders issued by the circuit court or a copy of the State's response to his petition, and he reasserts the allegations made in his motion to remand/motion to correct the record.

The State argues that Abdeldayem's due-process claim is not properly preserved for review because it was never presented to the circuit court. "The general rules of preservation apply to Rule 32 proceedings," Boyd v. State, 913 So.2d 1113, 1123 (Ala.Crim.App.2003), and we agree with the State that Abdeldayem did not present this claim to the circuit court. However, Abdeldayem argues that he and his counsel were unaware, until after the time for filing a motion to reconsider had passed,² that the State had responded to the petition or that the petition had, in fact, been denied.³ Under these circumstances, it would have been impossible for Abdeldayem to have properly raised this claim in the circuit court; thus, we will not prevent Abdeldayem from raising this issue for the first time on appeal.

In Presley v. State, 978 So.2d 63 (Ala. Crim.App.2005), this Court addressed a similar due-process claim regarding the failure of a circuit court to notify a Rule 32 petitioner of its orders. In Presley, the circuit court failed to notify Presley or his counsel that it had granted the State's motion for partial dismissal of some of the claims in Presley's Rule 32 petition, but had granted leave for Presley to amend those claims the court believed to be insufficiently pleaded; that it had denied Presley's motions for discovery, but granted Presley 14 days to file new discovery requests with additional details; and that it had denied Presley's motion to proceed ex parte on a request for funds for experts but had instructed Presley that further motions for experts would have to be linked to specific allegations in Presley's petition. Although counsel later discovered that she had not been served with the orders and was subsequently allowed to file additional discovery motions and a motion for funds, this Court nevertheless held that Presley's due-process rights were violated when the court failed to notify Presley or his counsel of the orders. We stated:

"Rule 34.5, Ala.R.Crim.P., provides, `Upon the entry of any order in a criminal proceeding made in response to a motion, other than an order made in open court, the clerk shall, without undue delay, furnish all parties a copy thereof by mail or by other appropriate means approved by the judge.' Thus, notice of each of the trial court's orders was required by the Alabama Rules of Criminal Procedure. The lack of notice violated Presley's due-process rights.

"In Ex parte Fountain, 842 So.2d 726 (Ala.2001), the Alabama Supreme Court addressed a similar due-process issue that arose when the defendant, Fountain, was not served with the State's brief in the appeal of the summary dismissal of Fountain's Rule 32 petition. The Court commented on the importance of due-process rights:

"`"Both the Alabama and United States Constitutions protect a citizen of this state from being deprived of life or liberty without `due process of law.' The phrase `due process of law,' although incapable of a precise definition, in its most basic sense encompasses the observation of that degree of fundamental fairness that is essential to our concept of justice."

"`Ex parte Frazier, 562 So.2d 560, 565 (Ala.1990) (citations omitted).'

"Ex parte Fountain, 842 So.2d at 730 (emphasis added [in Presley]). The Court further stated:

"`"[P]rocedural due process, protected by the Constitutions of the United States and this State, requires notice and an opportunity to be heard when one's life, liberty, or property interests are about to be affected by governmental action." Brown's Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So.2d 226, 228 (Ala.1992).

"`"Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them."

"`Ex parte Weeks, 611 So.2d [259,] 261 [(Ala.1992)] (emphasis added [in Fountain]).'

"Ex parte Fountain, 842 So.2d at 729.

"The Court noted that Rule 31, Ala. R.App.P., requires that each party's briefs be served on the other party so that the opposing party can respond to the arguments. Finding that the lack of service of the State's brief denied Fountain's appellate due-process rights, the Court reversed the portion of this Court's judgment affirming the denial of Fountain's Rule 32 petition. The Court also ordered a remand so the State could serve Fountain with a copy of its brief and Fountain could reply to the brief; following the remand, this Court was ordered to `consider anew' those issues not disposed of by the Alabama Supreme Court. Ex parte Fountain, 842 So.2d at 730.

"In Ex parte Weeks, 611 So.2d 259 (Ala.1992), quoted in Ex parte Fountain, above, Weeks was convicted in district court. He appealed the convictions to the circuit court for a trial de novo before a jury. The circuit court dismissed the appeal because Weeks failed to appear. Weeks failed to appear because, despite assurances that he would receive notice of the trial, the circuit clerk had failed to notify Weeks of his trial date. The time for taking an appeal had also passed. Weeks filed a petition for a writ of mandamus with this Court after the circuit court refused to set aside its order dismissing the appeal. This Court denied the petition by order. Weeks then filed a petition for a writ of mandamus with the Alabama Supreme...