Clemons v. State

• Decision Date: 22 March 2013
• Docket Number: CR–10–0772.
• Citation: 123 So.3d 1
• Parties: Eugene Milton CLEMONS II v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

123 So.3d 1

Eugene Milton CLEMONS II

v.STATE of Alabama.

CR–10–0772.

Court of Criminal Appeals of Alabama.

June 29, 2012.

Rehearing Denied Oct. 29, 2012.

Certiorari Denied March 22, 2013

Alabama Supreme Court 1120150.

Eric Bloom and Ryan S. Spiegel, Washington, D.C.; and Anne Regina Yuengert, Birmingham, for appellant.

Luther Strange, atty. gen., and Henry M. Johnson, asst. atty. gen., for appellee.

WINDOM, Presiding Judge.

Eugene Milton Clemons II appeals the circuit court's summary dismissal of his successive postconviction petition filed pursuant to Rule 32, Ala. R.Crim. P., in which he challenged his 1994 conviction for murder made capital because it was committed during the course of a robbery, see§ 13A–5–40(a)(2), Ala.Code 1975, and his sentence of death. On December 20, 1996, this Court affirmed Clemons's conviction and sentence of death. On January 16, 1998, the Alabama Supreme Court also affirmed Clemons's conviction and sentence. Thereafter, on September 10, 1998, this Court issued the certificate of judgment.

“In December 1999 or January 2000, [Clemons] filed [his first] Rule 32 petition, challenging his conviction and sentence.” Clemons v. State, 55 So.3d 314, 318 (Ala.Crim.App.2003) (footnote omitted). Later, Clemons filed several amendments to his petition. The circuit court summarily dismissed some of Clemons's claims and held a hearing on the remainder of his claims. Eventually, the circuit court denied relief on all of Clemons's claims.

“Clemons appealed the denial of his Rule 32 petition to [this Court].” Ex parte Clemons, 55 So.3d 348, 350 (Ala.2007). “While Clemons's appeal was pending [before this Court], the United States Supreme Court [issued its decision in] Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding unconstitutional the execution of mentally retarded defendants.” Id. After the Supreme Court of the United States issued its opinion in Atkins, this Court remanded Clemons's cause to the circuit court with instructions for that court to “conduct an evidentiary hearing on and [to] make specific, written findings of fact as to [Clemons's] contentions that he is mentally retarded, that his trial attorneys rendered ineffective assistance by not developing and presenting evidence concerning his limited mental capacity, and that his sentence is unauthorized as a matter of law.” Clemons, 55 So.3d at 322. “After an extensive evidentiary hearing, the [circuit] court ... determined that Clemons falls ‘in the borderline range of intellectual functioning [but] ... is not mentally retarded.’ ” Ex parte Clemons, 55 So.3d at 350.

On return to remand, this Court affirmed the circuit court's judgment. In doing so, this Court affirmed the circuit court's determination that Clemons is not mentally retarded. This Court also sua sponte held that Clemons's ineffective-assistance-of-counsel claims were procedurallybarred pursuant to Rule 32.2(a), Ala. R.Crim. P., because they could have been but were not raised at trial and on appeal. Clemons, 55 So.3d at 332–33.

On May 4, 2007, the Alabama Supreme Court issued an opinion reversing the portion of this Court's judgment that sua sponte raised the procedural bars contained in Rule 32.2, Ala. R.Crim. P. Ex parte Clemons, 55 So.3d 348 (Ala.2007). In reversing this Court's judgment, the Alabama Supreme Court held that the procedural bars contained in Rule 32.2, Ala. R.Crim. P., are affirmative defenses that can be waived if the State does not assert them in the circuit court. Id. at 351–56. It further held that once waived, those affirmative defenses cannot be asserted sua sponte by an appellate court except in “extraordinary circumstances.” Id. at 354. The Court then determined that Clemons's cause did not involve “extraordinary circumstances” that would justify this Court's sua sponte application of the procedural bars and remanded the cause to this Court “for consideration of Clemons's claims of ineffective assistance of trial counsel.” Ex parte Clemons, 55 So.3d at 356. The Alabama Supreme Court also quashed the writ of certiorari it had issued regarding Clemons's claim that the trial court improperly failed to consider his low intelligence quotient (“IQ”) as mitigation because that claim was not raised in his Rule 32 petition.

On November 2, 2007, this Court, in an unpublished memorandum, affirmed the circuit court's rejection of Clemons's ineffective-assistance-of-counsel claims. On August 13, 2010, the Alabama Supreme Court denied Clemons's petition for writ of certiorari, and this Court issued its certificate of judgment.

On August 16, 2010, Clemons filed a successive Rule 32 petition. (C. 12.) In this petition, Clemons alleged that his “jury did not hear and was therefore unable to consider and give effect to his mitigating evidence of low intelligence and mental retardation”; therefore, he is entitled to relief under the Supreme Court of the United States' decisions in Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), and Smith v. Texas, 543 U.S. 37, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004). (C. 20.) According to Clemons, “[u]nder Tennard, [his] low IQ was a relevant mitigating factor that the jury should have, but did not, consider during the sentencing phase of his trial.” (C. 22.) Clemons further asserted that the claim raised in his current Rule 32 petition was based on new law established in Tennard, 542 U.S. at 274, and Smith, 543 U.S. at 37, after Clemons's initial Rule 32 petition had been denied and that denial appealed. Clemons argued that because Tennard and Smith were not decided until after his initial Rule 32 petition had been denied and appealed, his current petition was the first instance in which he could raise his claim; therefore, his petition is not barred under Rule 32.2(b), Ala. R.Crim. P., as successive. He further argued that because this was the first instance in which he could raise his Tennard and Smith claim, his petition was not time-barred pursuant to Rule 32.2(c), Ala. R.Crim. P. Alternatively, he asserted that equitable tolling should excuse his failure to timely raise his claim because it was based on new law established in Tennard and Smith.

On September 15, 2010, the State of Alabama answered Clemons's Rule 32 petition and moved the circuit court to summarily dismiss his claim. In its motion to dismiss, the State asserted that Clemons's claim was procedurally barred under Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because it could have been, but was not, raised at trial or on appeal. The State also asserted that Clemons's claim was successive and untimely; therefore, it was procedurally barred under Rules 32.2(b) and (c), Ala. R.Crim. P. Finally, the State asserted that Clemons's claim is without merit.

In response to Clemons's assertion that his claim was not successive or untimely because it was based on new law created in Tennard and Smith, the State asserted that these cases did not create new law. According to the State, Tennard and Smith merely applied well established law—that the jury may not be precluded from considering any relevant mitigation—to a new set of facts. The State then argued that because the proposition of law relied upon in Tennard and Smith had been established before Clemons's trial began and before his previous Rule 32 proceedings began, Clemons's argument that these two cases excuse the procedural bars contained in Rule 32.2, Ala. R.Crim. P., is without merit.

On December 6, 2010, Clemons filed a reply to the State's answer and motion to dismiss. In his response, Clemons asserted that his claim was not procedurally barred under any of the provisions of Rule 32.2, Ala. R.Crim. P., and was “plainly meritorious because new Supreme Court precedent establishes that his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated when the jury was not granted an opportunity to hear, and therefore to consider mitigating evidence of his low intelligence....” (C. 81–82.) Clemons further argued that the Alabama Supreme Court invited him to raise his claim in a successive Rule 32 petition. To support this assertion, Clemons cited the following portion of the Alabama Supreme Court's decision on appeal from the denial of his first Rule 32 petition:

“We cannot, however, consider the issue whether the trial court erred in failing to consider Clemons's borderline intellectual capacity as a mitigating factor in the sentencing phase of his trial because the issue was not presented to the trial court in Clemons's Rule 32 petition. See Ex parte Linnell, 484 So.2d 455, 457 (Ala.1986) (‘[T]he rule against raising an issue for the first time at the appellate level applies even if the issue raised would present constitutional questions.’). As to the claims based on Tennard [ v. Dretke, 542 U.S. 274 (2004),] and Smith [ v. Texas, 543 U.S. 37 (2004),] Clemons could not have raised such claims under Tennard before the trial court or the Court of Criminal Appeals, because that line of cases had not yet been decided when Clemons's case was pending in those courts. We are not at liberty to consider claims in a Rule 32 petition that are raised for the first time on appeal. Ex parte Linnell, supra.

“Whether Clemons may raise any of these issues in a successive Rule 32 petition is not before us. SeeRule 32.2(b)(2)[, Ala. R.Crim. P.,] (‘A successive petition on different grounds shall be denied unless ... the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.’). We therefore quash the writ as improvidently granted as to this issue.”

Ex parte Clemons, 55 So.3d at 351. According to Clemons, this portion of the Alabama Supreme Court's opinion established that his current claim is based on new law and, thus, could...