Bush v. State
Decision Date | 23 March 2012 |
Docket Number | CR–03–1902. |
Parties | William BUSH v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
OPINION TEXT STARTS HERE
Alabama Supreme Court 1081448.
Ruth E. Friedman, Washington, D.C., for appellant.
Troy King, atty. gen., and Richard D. Anderson and Jasper B. Roberts, Jr., asst. attys. gen., for appellee.
The appellant, William Bush, currently an inmate on death row at Holman Correctional Facility, appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. In 1981, Bush was convicted of murdering Larry Dominguez during the course of a robbery, defined as a capital offense in § 13A–5–40(a)(2), Ala.Code 1975. The jury unanimously recommended that Bush be sentenced to death. The circuit court followed the jury's recommendation and sentenced Bush to death. Bush's conviction and death sentence were affirmed on direct appeal. See Bush v. State, 431 So.2d 555 (Ala.Crim.App.1982), aff'd, 431 So.2d 563 (Ala.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983).
In 1984, as a result of a federal habeas corpus proceeding, Bush was granted a new trial. Bush was tried a second time and was again convicted of capital murder. We reversed Bush's second conviction based on erroneous jury instructions. See Bush v. State, 523 So.2d 538 (Ala.Crim.App.1988).
In 1991, Bush was tried a third time and was again convicted of capital murder. The jury unanimously recommended that Bush be sentenced to life imprisonment without the possibility of parole. The circuit court chose not to follow the jury's recommendation and sentenced Bush to death. Bush's conviction and death sentence were affirmed on appeal. See Bush v. State, 695 So.2d 70 (Ala.Crim.App.1995), aff'd, 695 So.2d 138 (Ala.1997). We issued the certificate of judgment in that appeal on May 7, 1997.
In October 1998, Bush filed a postconviction petition pursuant to Rule 32, Ala. R.Crim. P., in the Montgomery Circuit Court attacking his capital-murder conviction and sentence of death. He filed amended petitions in October 2000 and July 2001. In July 2004, the circuit court entered its final order denying the postconviction petition. This appeal followed.
This Court stated the following facts surrounding Bush's conviction in our opinion on direct appeal:
Bush appeals the circuit court's denial of his Rule 32, Ala. R.Crim. P., petition. Hunt v. State, 940 So.2d 1041, 1049 (Ala.Crim.App.2005).
According to Rule 32.3, Ala. R.Crim. P.: “The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.”
In Boyd v. State, 913 So.2d 1113 (Ala.Crim.App.2003), we stated the following concerning a postconviction petitioner's burden of pleading:
913 So.2d at 1125. Hyde v. State, 950 So.2d 344, 356 (Ala.Crim.App.2006).
We have also stated the following concerning pleading claims alleging ineffective assistance of counsel:
Hyde v. State, 950 So.2d at 356.
Bush first argues that we should vacate his death sentence because the judge in imposing the death penalty disregarded the jury's unanimous recommendation that Bush be sentenced to life imprisonment without the possibility of parole. Specifically, he asserts that the cases of Ex parte Carroll, 852 So.2d 833 (Ala.2002), and Ex parte Tomlin, 909 So.2d 283 (Ala.2003), require that his death sentence be vacated. He contends that the circuit court failed to give the jury's recommendation the weight that recommendation was entitled to, that in overriding the jury's recommendation the court did not rely on evidence that was not considered by the jury, and that the court failed to explain its decision to disregard the jury's recommendation.2 The record shows that in October 2003, Bush filed a motion for resentencing pursuant to the Supreme Court's decisions in Carroll and Tomlin. The State responded that the circuit court could not apply those cases retroactively to Bush's case because his case was final at the time the decisions were released. Apparently, the circuit court treated this motion as an amendment to Bush's Rule 32 petition and denied the motion to resentence.
Section 13A–5–47(e), Ala.Code 1975, commonly referred to as Alabama's judicial-override statute, states:
The State argues that Carroll and Tomlin should not be applied retroactively to Bush's case because his...
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