Borden v. State, CR-02-1314 (Ala. Crim. App. 2/27/2004), CR-02-1314.
| Decision Date | 27 February 2004 |
| Docket Number | CR-02-1314. |
| Parties | James Henry Borden, Jr. v. State. |
| Court | Alabama Court of Criminal Appeals |
Appeal from Lawrence Circuit Court (CC-93-228.60).
On December 1, 1994, the appellant, James Henry Borden, Jr., was found guilty of the capital offense of murder, for intentionally causing the death of Nellie Ledbetter after he had been convicted of another murder within the 20 years preceding this offense. See § 13A-5-40(a)(13), Ala. Code 1975. The jury, by a vote of 10 to 2, recommended a sentence of death. The trial court accepted the jury's recommendation and sentenced Borden to death by electrocution. After the case was remanded for specific findings regarding the existence of aggravating and mitigating circumstances, see Borden v. State, 769 So. 2d 935 (Ala. Crim. App. 1997), this court affirmed Borden's conviction. See Borden v. State, 769 So. 2d 935 (Ala. Crim. App. 1997). The Alabama Supreme Court affirmed our judgment, see Ex parte Borden, 769 So. 2d 950 (Ala. 2000), and the United States Supreme Court denied Borden's petition for certiorari review. See Borden v. Alabama, 531 U.S. 961 (2000). The relevant facts are set out in this court's opinion on direct appeal.
On October 18, 2001, Borden timely filed a Rule 32 petition, challenging his conviction and sentence of death. The State filed its initial response and supporting affidavits on December 27, 2001. The State then filed additional affidavits and a motion to dismiss the petition on January 22, 2002. On July 31, 2002, the trial court permitted the State to amend its response and motion to reflect two changes in the law. In the amendment, the State withdrew its reliance on procedural bars regarding Borden's claim that he was mentally retarded and that, in light of Atkins v. Virginia, 536 U.S. 304 (2002), he should not be executed, provided that Borden amended the claim to comply with Rule 32.6(b), Ala. R. Crim. P. The State also argued that Borden's challenge to the constitutionality of electrocution as a method of carrying out the death penalty had been rendered moot on July 1, 2002, when the primary method of execution in Alabama was changed to lethal injection. On August 22, 2002, Borden filed a response to the State's motion to dismiss and a motion to vacate his death sentence, in which he set out specific facts supporting his mental-retardation claim. He also filed an amended petition and a motion to amend three claims, including the Atkins claim, and add a new claim under Ring v. Arizona, 536 U.S. 584 (2002). On September 30, 2002, the State filed a motion stating its opposition to any changes other than the amendment of the Atkins claim. On March 14, 2003, the circuit court dismissed Borden's petition. In its order of dismissal, the court instructed Borden to amend his Atkins claim within 21 days to comply with Rule 32.6(b) and to file his notice of appeal within 42 days of the date of the order. On April 4, 2003, Borden filed a motion for reconsideration, in which he argued that his August 22, 2002, filings contained sufficient facts to support the Atkins claim. He filed his notice of appeal on April 17, 2003, before the circuit court had ruled on his motion.
The State has asked this court to remand this case for a hearing on the merits of Borden's claim of mental retardation under Atkins. In Atkins, the United States Supreme Court held:
536 U.S. at 321 (quoting Ford v. Wainright, 477 U.S. 399, 405 (1986)). This court has held that Atkins applies retroactively to cases that are on collateral review. Clemons v. State, [Ms. CR-01-1355, August 29, 2003] ___ So. 2d ___ (Ala. Crim. App. 2003).
In his original petition, Borden failed to state a factual basis for his claim that carrying out the death-penalty sentence in his case constituted cruel and unusual punishment. However, in his August 22, 2002, response and in his amended petition, Borden set out approximately nine pages of facts underlying the Atkins claim. Because this claim was sufficiently pleaded, the circuit court erred in finding that Borden failed to meet the specificity requirements of Rule 32.1 Therefore, we remand this cause to the circuit court with instructions for that court to conduct an evidentiary hearing and make specific, written findings of fact as to Borden's claim that he is mentally retarded and that his sentence of death is unauthorized as a matter of law.2 In determining whether Borden is mentally retarded, the court should consider the standards set forth in Ex parte Smith, [Ms....
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