Belcher v. Marshall (Ex parte Marshall)

• Citation: 323 So.3d 1188
• Decision Date: 25 September 2020
• Docket Number: 1190644
• Parties: EX PARTE Steven MARSHALL, in his official capacity as Attorney General of the State of Alabama, et al. (In re: Michael Belcher et al. v. Steven Marshall, in his official capacity as Attorney General of the State of Alabama, et al.)
• Court: Supreme Court of Alabama

323 So.3d 1188

EX PARTE Steven MARSHALL, in his official capacity as Attorney General of the State of Alabama, et al.(In re: Michael Belcher et al.

v.Steven Marshall, in his official capacity as Attorney General of the State of Alabama, et al.)

1190644

Supreme Court of Alabama.

September 25, 2020

Steve Marshall, atty. gen., and Edmund G. LaCour, Jr., solicitor gen., and Brad A. Chynoweth and James W. Davis, asst. attys. gen., for petitioners.

Bryan A. Stevenson, John W. Dalton, and Adam B. Murphy of Equal Justice Initiative, Montgomery, for respondents.

PER CURIAM.

Attorney General Steven Marshall and circuit judges Michael Bradley Almond, Ruth Ann Hall, Brandy Hambright, Jacqueline Hatcher, and Bert Rice (hereinafter referred to collectively as "the petitioners" and the circuit judges are hereinafter referred to collectively as "the petitioner circuit judges") -- all in their official capacities -- petition this Court for a writ of mandamus directing the Montgomery Circuit Court ("the trial court") to grant their motion to dismiss a complaint for a declaratory judgment filed by Michael Belcher, Peter Capote, Derrick Dearman, Lionel Francis, Brett Yeiter, and Benjamin Young, all prisoners on death row (hereinafter referred to collectively as "the respondents"). For the reasons set forth herein, we grant the petition and issue the writ.

I. Facts

The respondents were all convicted of capital offenses and were sentenced to death after August 1, 2017, the effective date of the Fair Justice Act ("FJA"), Act No. 2017-417, Ala. Acts 2017 (codified at Ala. Code 1975, § 13A-5-53.1 ). The FJA governs petitions for postconviction relief under Rule 32, Ala. R. Crim. P., in death-penalty cases. Specifically, the FJA provides:

"(a) Rule 32.2(c) of the Alabama Rules of Criminal Procedure shall not apply to cases in which a criminal defendant is convicted of capital murder and sentenced to death, and files a petition for post-conviction relief under the grounds specified in Rule 32.1(a), (e), or (f) of the Alabama Rules of Criminal Procedure.

"(b) Post-conviction remedies sought pursuant to Rule 32 of the Alabama Rules of Criminal Procedure in death penalty cases shall be pursued concurrently and simultaneously with the direct appeal of a case in which the death penalty was imposed. In all cases where the defendant is deemed indigent or as the trial judge deems appropriate, the trial court, within 30 days of the entry of the order pronouncing the defendant's death sentence, shall appoint the defendant a separate counsel for the purposes of post-conviction relief under this section. Appointed counsel shall be compensated pursuant to Chapter 12 of Title 15; provided, however, that notwithstanding any provision of that chapter to the contrary, the total fee awarded shall not exceed seventy-five hundred dollars ($7,500), which may be waived by the Director of the Office of Indigent Defense Services for good cause shown.

"(c) A circuit court shall not entertain a petition for post-conviction relief from a case in which the death penalty was imposed on the grounds specified in Rule 32.1(a) of the Alabama Rules of Criminal Procedure unless the petition, including any amendments to the petition, is filed within 365 days of the filing of the appellant defendant's first brief on direct appeal of a case in which the death penalty was imposed pursuant to the Alabama Rules of Appellate Procedure.

"(d) A circuit court, before the filing date applicable to the defendant under subsection (c), for good cause shown and after notice and an opportunity to be heard from the Attorney General, or other attorney representing the State of Alabama, may grant one 90-day extension that begins on the filing date applicable to the defendant under subsection (c).

"(e) Within 90 days of the filing of the state's answer to a properly filed petition for post-conviction relief, the circuit court shall issue an order setting forth those claims in the petition that should be summarily dismissed and those claims, if any, that should be set for an evidentiary hearing. If the properly filed petition for post-conviction relief is still pending at the time of the issuance of the certificate of judgment on direct appeal, the court in which the petition is pending shall issue a final order on the petition or appeal within 180 days.

"(f) If post-conviction counsel files an untimely petition or fails to file a petition before the filing date applicable under this section, the circuit court shall direct post-conviction counsel to show good cause demonstrating extraordinary circumstances as to why the petition was not properly filed. After post-conviction counsel's response, the circuit court may do any of the following:

"(1) Find that good cause has been shown and permit counsel to continue representing the defendant and set a new filing deadline for the petition, which may not be more than 30 days from the date the court permits counsel to continue representation.

"(2) Find that good cause has not been shown and dismiss any untimely filed petition.

"(3) Appoint new and different counsel to represent the defendant and establish a new filing deadline for the petition, which may not be more than 270 days after the date the circuit court appoints new counsel. In the instance that this subdivision is applicable and new counsel is appointed, the circuit court in which the petition is pending shall issue a final order on the petition or appeal within 180 days of the filing of the petition.

"(g) The time for filing a petition for post-conviction relief under Rule 32.1(f) in a case in which the death penalty was imposed shall be six months from the date the petitioner discovers the dismissal or denial, irrespective of the deadlines specified in this section. This provision shall not extend the deadline of a previously filed petition under Rule 32.1 of the Alabama Rules of Criminal Procedure.

"(h) Any petition for post-conviction relief filed pursuant to this section after the filing date that is applicable to the defendant under this section is untimely. Rule 32.7(b) of the Alabama Rules of Criminal Procedure shall not apply to any amendments to a petition for post-conviction relief filed pursuant to this section after the filing date that is applicable to the defendant under this section. Any amendments to a petition for post-conviction relief filed pursuant to this section filed after the filing date that is applicable to the defendant under this section shall be treated as a successive petition under Rule 32.2(b) of the Alabama Rules of Criminal Procedure.

"(i) The circuit court shall not entertain a petition in a case in which the death penalty has been imposed based on the grounds specified in Rule 32.1(e) of the Alabama Rules of Criminal Procedure unless the petition for post-conviction relief is filed within the time period specified in subsection (c) or (d), or within six months after the discovery of the newly discovered material facts, whichever is later.

"(j) This section shall apply to any defendant who is sentenced to death after August 1, 2017."

§ 13A-5-53.1, Ala. Code 1975.

Belcher was sentenced to death by petitioner Judge Almond in Tuscaloosa County, Alabama, on April 3, 2019. Belcher filed his appellant's brief in his direct appeal on February 14, 2020. Under the FJA, Belcher must file his Rule 32 petition within 365 days of his first brief on appeal, i.e., February 13, 2021, unless he is granted a 90-day extension. See § 13A-5-53.1(c) and (d). No other Rule 32 deadlines under the FJA will begin to run for Belcher unless and until the Court of Criminal Appeals affirms Belcher's conviction and death sentence, overrules his application for rehearing, any certiorari review is fully exhausted, and a certificate of judgment is issued. See § 13A-5-53.1(e).

Capote was sentenced to death in Colbert County, Alabama, on May 24, 2018, and petitioner Judge Hatcher is currently presiding over his case. Capote filed his appellant's brief in his direct appeal on April 5, 2019. Thus, under the FJA, Capote's Rule 32 petition was originally due on April 4, 2020. Capote filed a motion for a 90-day extension to file his Rule 32 petition under the FJA, and Judge Hatcher granted his request while the underlying action was pending against her. Consequently, Capote's Rule 32 petition was due on or before July 3, 2020. The Alabama Court of Criminal Appeals issued an opinion affirming Capote's conviction and death sentence on January 10, 2020. See Capote v. State, 323 So.3d 104 (Ala. Crim. App. 2020). The Court of Criminal Appeals overruled Capote's application for rehearing on May 22, 2020. Thus, the 180-day deadline for a final order concerning Capote's Rule 32 petition will be November 18, 2020. See § 13A-5-53.1(e).

Dearman was sentenced to death in Mobile County, Alabama, on October 12, 2018, and petitioner Judge Hambright is currently presiding over his case. Dearman filed his appellant's brief in his direct appeal on August 27, 2019. Thus, under the FJA, Dearman must have filed his Rule 32 petition by August 26, 2020, unless he was granted a 90-day extension. No other Rule 32 deadlines under the FJA will begin to run for Dearman unless and until the Court of Criminal Appeals affirms Dearman's conviction and death sentence, overrules his application for rehearing, any certiorari review is fully exhausted, and a certificate of judgment is issued.

Francis was sentenced to death by petitioner Judge Hall in Madison County, Alabama, on July 25, 2019. Francis filed his appellant's brief in his direct appeal on April 29, 2020. Thus, under the FJA, Francis must file his Rule 32 petition by April 29, 2021, unless he is granted a 90-day extension. No other Rule 32 deadlines under the FJA will begin to run for Francis unless and until the Court of Criminal Appeals affirms Francis's conviction and death sentence, overrules his application for rehearing, any certiorari review is fully exhausted, and a...