Bowling v. Com.

• Decision Date: 07 June 2005
• Docket Number: No. 2004-SC-0880-MR.,2004-SC-0880-MR.
• Parties: Thomas C. BOWLING Appellant, v. COMMONWEALTH OF KENTUCKY Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 361

163 S.W.3d 361

Thomas C. BOWLING Appellant, v. COMMONWEALTH OF KENTUCKY Appellee.

No. 2004-SC-0880-MR.

Supreme Court of Kentucky.

March 17, 2005.

As Modified April 22, 2005.

Rehearing Denied June 7, 2005.

COPYRIGHT MATERIAL OMITTED

Susan Jackson Balliet, Assistant Public Advocate, Department of Public Advocacy, David M. Barron, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, David A. Smith, Ian G. Sonego, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

COOPER, Justice.

At the conclusion of a one-week trial in December 1990, a Fayette Circuit Court jury convicted Appellant, Thomas Clyde Bowling, of two counts of murder and one count of assault in the fourth degree. The Commonwealth introduced evidence at trial from which the jury could and did believe beyond a reasonable doubt that Appellant caused his vehicle to collide with a vehicle occupied by Edward Lee and Ernestine Lynn Earley and their two-year-old child while they were parked in front of Mr. and Mrs. Earley's dry cleaning business; and that Appellant exited his vehicle, approached the Earleys' vehicle, and intentionally fired gunshots at them at point-blank range, killing Mr. and Mrs. Earley and wounding their child. Appellant was sentenced to death for each of the two murders. His convictions and sentences were affirmed on direct appeal. Bowling v. Commonwealth, 873 S.W.2d 175 (Ky.1993), cert. denied, Bowling v. Kentucky, 513 U.S. 862, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994). His Criminal Rule (RCr) 11.42 motion was overruled and that decision was also affirmed on appeal. Bowling v. Commonwealth, 981 S.W.2d 545 (Ky.1998), cert. denied, Bowling v. Kentucky, 527 U.S. 1026, 119 S.Ct. 2375, 144 L.Ed.2d 778 (1999). His petition in federal district court for a writ of habeas corpus, 28 U.S.C. § 2254, was denied, Bowling v. Parker, 138 F.Supp.2d 821 (E.D.Ky.2001), and that decision was affirmed on appeal, Bowling v. Parker, 344 F.3d 487 (6th Cir.2003), cert. denied sub nom., Bowling v. Haeberlin, ___ U.S. ___, 125 S.Ct. 281, 160 L.Ed.2d 68 (2004), thus exhausting all of Appellant's normal avenues of appeal. The Governor of Kentucky signed a death warrant scheduling Appellant's execution for November 30, 2004. KRS 431.240(4). The imminence of the execution spawned the usual flurry of last-minute litigation. Compare McQueen v. Parker, 950 S.W.2d 226 (Ky.1997); McQueen v. Commonwealth, 949 S.W.2d 70 (Ky.1997), cert. denied, 521 U.S. 1130, 117 S.Ct. 2536, 138 L.Ed.2d 1035 (1997); McQueen v. Patton, 948 S.W.2d 418 (Ky.1997); McQueen v. Commonwealth, 948 S.W.2d 415 (Ky.1997); McQueen v. Patton, 948 S.W.2d 121 (Ky.1997); McQueen v. Parker, 948 S.W.2d 121 (Ky.1997). Both this Court and the Franklin Circuit Court have issued orders staying Appellant's execution pending resolution of his various motions and separate actions challenging anew his sentence of death.

This appeal is from the dismissal of a civil action that Appellant filed in the Fayette Circuit Court against Glenn Haeberlin, warden of the Kentucky State Penitentiary where Appellant presently resides on death row, claiming he is exempt from the death penalty because he is mentally retarded. The action is not a petition for a writ of habeas corpus, KRS 419.020, because Appellant does not allege that he is being unlawfully detained. Fryrear v. Parker, 920 S.W.2d 519 (Ky.1996) (writ of habeas corpus improper vehicle by which to achieve commutation of sentence as opposed to immediate release). In fact, this action seeks exactly the opposite—continuation of detention in lieu of execution. Nor does Appellant seek a hearing before the circuit court of the county in which he is detained. KRS 419.030. Rather, Appellant styled this action a "Petition to Vacate Thomas C. Bowling's Death Sentence Based on Mental Retardation," citing as procedural authority Civil Rule (CR) 60.02(d) and (f) (motion for relief from final judgment because of (d) fraud affecting the proceedings, or (f) any other reason of an extraordinary nature justifying relief).

Appellant did not name the Commonwealth of Kentucky as a party defendant even though the action seeks modification of a judgment rendered pursuant to an indictment prosecuted against him by the Commonwealth. CR 19.01. Appellant also moved the Fayette Circuit Court to order the Department of Finance to provide him with funds up to $5,000 to hire a "mental retardation expert" to assist him in the preparation and litigation of this action. The Fayette Circuit Court summarily dismissed both the petition and the motion for funds, concluding that Appellant could not collaterally attack his death sentence by way of a separate civil action, and that Appellant had not timely asserted his mental retardation claim. Appellant appeals to this Court as a matter of right. Ky. Const. § 110(2)(b); Skaggs v. Commonwealth, 803 S.W.2d 573, 577 (Ky.1990) (Court of Appeals has no authority to review any matter affecting the imposition of death sentence), sentence vacated on other grounds, Skaggs v. Parker, 235 F.3d 261 (6th Cir.2000). For the reasons set forth herein, we affirm.

I. INDEPENDENT CIVIL ACTION.

Civil Rule 60.02 is an available remedy in a criminal case. Fanelli v. Commonwealth, 423 S.W.2d 255, 257 (Ky.1968). The rule was adopted as a substitute for the common law writ of coram nobis, a procedure for addressing "errors in matter[s] of fact which (1) had not been put into issue or passed on, (2) were unknown and could not have been known to the party by the exercise of reasonable diligence and in time to have been otherwise presented to the court, or (3) which the party was prevented from so presenting by duress, fear, or other sufficient cause." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.1983). "In summary, CR 60.02 is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." McQueen, 948 S.W.2d 415, 416. Thus, it is available only to resolve issues that could not have been raised at trial, on direct appeal, or by a motion for relief under RCr 11.42. Gross, 648 S.W.2d at 856. Appellant asserts and we agree that CR 60.02 is an appropriate vehicle by which to seek relief from a judgment that is no longer valid because it violates a constitutional right that was not recognized as such when the judgment was entered. However, a CR 60.02 motion is not a separate action but a continuation or reopening of the same proceeding that culminated in the judgment under attack. Fanelli, 423 S.W.2d at 257. Thus, the parties would necessarily be the same. Appellant has filed a separate civil action, not a CR 60.02 motion.

Civil Rule 60.03 permits an independent action for relief from a judgment "on appropriate equitable grounds." However, "[r]elief shall not be granted in an independent action if the ground of relief sought has been denied in a proceeding by motion under Rule 60.02 ...." CR 60.03.

Generally, claimants seeking equitable relief through independent actions must meet three requirements. Claimants must (1) show that they have no other available or adequate remedy; (2) demonstrate that movants' own fault, neglect, or carelessness did not create the situation for which they seek equitable relief; and (3) establish a recognized ground—such as fraud, accident, or mistake —for the equitable relief.

Campaniello Imports, Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655, 662 (2nd Cir.1997) (emphasis added). Further, an independent action for equitable relief from a judgment is unavailable if the complaining party has, or by exercising proper diligence would have had, an adequate remedy in the original proceedings. Charles A. Wright, Arthur R. Miller & Mary K. Kane 11 Fed. Prac. & Proc. Civ.2d § 2868, at n. 9 (2004 pocket part). The same principle applies in federal habeas proceedings "to prevent a grave miscarriage of justice." Buell v. Anderson, 48 Fed.Appx. 491, 498-99 (6th Cir.2002) (quoting United States v. Beggerly, 524 U.S. 38, 47, 118 S.Ct. 1862, 1868, 141 L.Ed.2d 32 (1998)), cert. denied, 536 U.S. 989, 123 S.Ct. 30, 153 L.Ed.2d 892 (2002). Since an independent action under CR 60.03 is an attack upon a judgment, the original parties to the judgment must be named as party defendants. Kurt A. Philipps, Jr., 7 Kentucky Practice, Rules of Civil Procedure Annotated, CR 60.03, cmt. 1, at 453 (5th ed.1995). Appellant's separate civil action was not properly brought under CR 60.03 because Appellant did not name the Commonwealth as the party defendant.

However, the Attorney General, who also defended the previous appeals of the original action, the denial of the RCr 11.42 motion, and the denial of the federal habeas corpus petition, has assumed the defense of this action. For that reason and because this is a death penalty case, we choose not to dismiss it on the technical grounds of counsel error or failure to join indispensable parties. Rather, we will treat the action as having been properly brought under CR 60.03. Cf. Wallace v. Commonwealth, 327 S.W.2d 17, 18 (Ky. 1959) (treating complaint for a writ of coram nobis as a motion for relief under CR 60.02(6)¹). Civil Rule 21 (Misjoinder and nonjoinder of parties) provides:

Misjoinder of parties is not ground for dismissal of any action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just....

(Emphasis added.) Pursuant to CR 21, we have, by separate order, substituted the Commonwealth of Kentucky as party defendant/appellee in place of Haeberlin. Nevertheless, for reasons explained infra, Appellant is not entitled to relief from his death sentence because he has not alleged an error that was unknown and could not have been known to him by the exercise of reasonable diligence at the time of his...