Cloud v. State, CR–15–1156

Citation234 So.3d 538
Decision Date16 December 2016
Docket NumberCR–15–1156
Parties Ricky Lynn CLOUD v. STATE of Alabama
CourtAlabama Court of Criminal Appeals

234 So.3d 538

Ricky Lynn CLOUD
v.
STATE of Alabama

CR–15–1156

Court of Criminal Appeals of Alabama.

December 16, 2016
Rehearing Denied February 3, 2017
Certiorari Denied April 14, 2017


Alabama Supreme Court 1160409

Ricky Lynn Cloud, pro se.

Luther Strange, atty. gen., and John M. Porter, asst. atty. gen., for appellee.

WELCH, Judge.

Ricky1 Lynn Cloud appeals the Cullman Circuit Court's summary dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction relief. The petition challenged his September 30, 1998, conviction for aggravated stalking, a violation of § 13A–6–91, Ala. Code 1975, and his resulting sentence of 20 years' imprisonment.

This Court affirmed Cloud's conviction and sentence on appeal in an unpublished memorandum issued on April 30, 1999. See Cloud v. State ( No. CR–98–0145), 768 So.2d 1024 (Ala. Crim. App. 1999) (table).

In Forma Pauperis Application

Cloud filed an in forma pauperis application, which was granted. We note that Cloud's application did not comply with the requirement of Rule 32.6(a), Ala. R. Crim. P., that,

"[i]f the petitioner desires to prosecute the petition in forma pauperis, he or she shall file the ‘In Forma Pauperis Declaration’ at the end of the form. In all such cases, the petition shall also be accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined, stating the amount of money or securities on deposit to the petitioner's credit in any account in the institution for the previous twelve (12) months, which certificate may be considered by the court in acting upon the petitioner's application for leave to proceed in forma pauperis. If the application to proceed in forma pauperis is granted, the filing fee shall initially be waived, but may be assessed as provided in Rule 32.7(e)."

(Emphasis supplied.)

The circuit court would not have abused its discretion if it had refused to consider the in forma pauperis application until Cloud had complied with the requirements of Rule 32.6(a), Ala. R. Crim. P., and supplied the certificate described above. Cf. Hyde v. State, 950 So.2d 344 (Ala. Crim. App. 2006).

We also note that the in forma pauperis application that was submitted contained Cloud's statement that he received

234 So.3d 540

the sum of $49.00 per month from his sister. (C. 3–4 and 30–31.)

Cloud's statement showed that, in a year's time, he had an income of $588.00 that he would have been able to use to pay the filing fee. This is appreciably more than the amount necessary to pay the filing fee for a Rule 32 petition in the Cullman Circuit Court.

The circuit judge would not have abused his discretion if he had denied the request to proceed in forma pauperis for this reason. The judge could have issued an order requiring that the petitioner pay the requisite filing fee, or a portion of the it,2 prior to ruling on the petition. See Ex parte Wyre, 74 So.3d 479 (Ala. Crim. App. 2011).

"[A]n inmate who has appreciably more than the amount necessary to pay a filing fee deposited in his inmate account in the 12 months preceding the filing of an [In Forma Pauperis] request is not indigent as that term is defined in Rule 6.3(a), Ala. R. Crim. P. Wyre had $876.52 deposited to his account in that period—more than twice the amount necessary to pay the filing fee. Thus, he is not indigent."

74 So.3d at 482.

Rule 32 Petition

The instant Rule 32 petition, Cloud's fourth, was deemed filed on February 18, 2016, and was untimely. Cloud filed the standard Rule 32 form found in the appendix to Rule 32, Ala. R. Crim. P. Cloud selected the following constitutional grounds provided on paragraph 12 of the form: 12(A)(7)—conviction obtained by violation of the protection against double jeopardy; and 12(A)(9)—denial of effective assistance of counsel. Cloud also selected the ground 12(B)—the court was without jurisdiction to render judgment or to impose the sentence.

Petitioner's Claims

In his supplement to the petition, Cloud raised the following claims:

In claim (1), Cloud alleged that there was a material variance between the indictment and the proof at trial because he argues, the protection order that formed an element of the offense was moot.

In claim (2), Cloud alleged that the prosecutor committed misconduct when she expressed her personal belief that Cloud was guilty by saying: "Don't let a murder be the stopping of Rickey Lynn Cloud, find him guilty because he is."

In claim (3), Cloud alleged that his protection against double jeopardy was violated because he was tried for stalking for allegedly violating the same protection order on two different occasions.

In claim (4), Cloud alleged that his trial counsel was ineffective for failing to object to: (a) the indictment on the ground alleged in his first claim; (b) the prosecutorial misconduct alleged in his second claim; and, (c) the double jeopardy violation described in his third claim.

Cloud later filed a motion to amend the petition, which was denied by the circuit court.

State's Response

The State filed a motion to dismiss, asserting that the claims were procedurally barred by: Rule 32.2(a)(4), because they could have been, but were not, raised on direct appeal; Rule 32.2(b), because they were presented in a prior petition, or could have been presented in a prior petition, and Cloud failed to aver good cause why they could not have been presented in the prior petition; and, Rule 32.2(c), because the claims were raised in an untimely petition.

234 So.3d 541

The State further pleaded that the claims were not meritorious, that they failed to state a claim for which relief could be granted, and that they were not pleaded with the specificity required by Rule 32.7(b).

The State alleged that it was appropriate to sanction Cloud for filing repetitive, frivolous petitions. The State attached as exhibits the four unpublished memorandums of this court—one issued in Cloud's direct appeal and three issued after the appeal of the dismissal of each of his prior Rule 32 petitions.

Circuit Court's Order

The circuit court issued an order dismissing the petition and finding that claims 1, 2, and 3 were nonjurisdictional and were precluded by Rules 32.2(a)(4) and 32.2(c); that claim 4 was procedurally barred by Rule 32.2(d), because the petition raised an ineffective-assistance-of-counsel claim that was untimely; and that the entire petition was procedurally barred by Rule 32.2(b).

The court also imposed sanctions for further frivolous Rule 32 filings:

"The Court further finds that because [Cloud] has previously filed multiple post-conviction petitions in this case, which have been summarily dismissed and affirmed on appeal, it is necessary to adopt reasonable measures to prevent further frivolous litigation by [Cloud] that waste limited judicial resources. It is therefore ORDERED and DECREED as follows:

"1. [Cloud's] Petition is Denied and [Cloud] is hereby expressly enjoined from filing any new
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