Contreras v. State

• Decision Date: 10 July 2020
• Docket Number: CR-19-0298
• Citation: 328 So.3d 911
• Parties: Ramiro Delreal CONTRERAS v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

328 So.3d 911

Ramiro Delreal CONTRERAS

v.STATE of Alabama

CR-19-0298

Court of Criminal Appeals of Alabama.

July 10, 2020

Rehearing Denied August 28, 2020

Certiorari Denied December 11, 2020

Alabama Supreme Court 1191014

Thomas M. Goggans, Montgomery, for appellant.

Steve Marshall, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.

KELLUM, Judge.

Ramiro Delreal Contreras appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attacked his 2014 conviction for felony murder and his resulting sentence of 50 years' imprisonment. This Court affirmed Contreras's conviction and sentence on direct appeal.¹ Contreras v. State, 257 So. 3d 337 (Ala. Crim. App. 2016). The Alabama Supreme Court initially issued a writ granting certiorari review but later quashed the writ. This Court issued a certificate of judgment on February 21, 2018.

On February 20, 2019, Contreras, through counsel, timely filed the underlying, his first, Rule 32 petition. In his petition, Contreras alleged that the felony-murder statute, § 13A-6-2(a)(3), Ala. Code 1975, is unconstitutionally vague as applied to him, and that his counsel were ineffective for not raising that issue at trial and on appeal.² On May 10, 2019, the State filed a response and a motion for summary dismissal, arguing that Contreras's claims were insufficiently pleaded, that they were time-barred by Rule 32.2(c), Ala. R. Crim. P., that they were precluded by Rules 32.2(a)(2), (a)(3), (a)(4), and (a)(5), Ala. R. Crim. P., and that they were meritless, and that no material issue of fact or law existed that would entitle Contreras to relief. On May 14, 2019, Contreras filed a reply to the State's response, arguing that the State violated his right to due process and the Alabama Supreme Court's holding in Ex parte Rice, 565 So. 2d 606 (Ala. 1990), by asserting in its response a laundry list of preclusions, some of which are mutually exclusive. On November 15, 2019, the circuit court summarily dismissed Contreras's petition. The court found that Contreras's challenge to the constitutionality of § 13A-6-2(a)(3) was precluded by Rules 32.2(a)(3) and (a)(5) because it could have been, but was not, raised and addressed at trial and on appeal, and that it was meritless because § 13A-6-2(a)(3) is not unconstitutionally vague. The court also found that Contreras's claim of ineffective assistance of counsel was meritless because the claim underlying it -- that § 13A-6-2(a)(3) is unconstitutionally vague -- was meritless. Contreras did not file a postjudgment motion.

I.

On appeal, Contreras reasserts the two claims he raised in his Rule 32 petition and argues that the circuit court erred in summarily dismissing those claims without conducting an evidentiary hearing. We disagree.

A.

Contreras's substantive claim challenging the constitutionality of § 13A-6-2(a)(3) is nonjurisdictional and subject to the preclusions in Rule 32.2. See, e.g., Griggs v. State, 980 So. 2d 1031, 1032 (Ala. Crim. App. 2006) (holding that a challenge to the constitutionality of a statute is a nonjurisdictional claim and is subject to the preclusions in Rule 32.2 ). Specifically, that claim is, as the circuit court found, precluded by Rules 32.2(a)(3) and (a)(5) because it could have been, but was not, raised and addressed at trial and on appeal. Moreover, for the reasons explained in Part I.B. of this opinion, that claim is meritless.

B.

Contreras's claim that his counsel were ineffective for not arguing at trial and on appeal that § 13A-6-2(a)(3) was unconstitutionally vague as applied to him is properly raised in this, Contreras's first, and timely filed, Rule 32 petition. However, we agree with the circuit court that this claim is meritless.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that counsel's performance was deficient and (2) that the deficient performance actually prejudiced the defense. "To meet the first prong of the test, the petitioner must show that his counsel's representation fell below an objective standard of reasonableness. The performance inquiry must be whether counsel's assistance was reasonable, considering all the circumstances." Ex parte Lawley, 512 So. 2d 1370, 1372 (Ala. 1987). "A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To meet the second prong of the test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "The standards for determining whether appellate counsel was ineffective are the same as those for determining whether trial counsel was ineffective." Jones v. State, 816 So. 2d 1067, 1071 (Ala. Crim. App. 2000), overruled on other grounds by Brown v. State, 903 So. 2d 159 (Ala. Crim. App. 2004).

" ‘ "The doctrine of vagueness ... originates in the due process clause of the Fourteenth Amendment, seeLanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), and is the basis for striking down legislation which contains insufficient warning of what conduct is unlawful, seeUnited States v. National Dairy Products Corporation, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).

" ‘ "Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989, 996 (1954). A vague statute does not give adequate ‘notice of the required conduct to one who would avoid its penalties,’ Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367, 371 (195[2]), is not ‘sufficiently focused to forewarn of both its reach and coverage,’ United States v. National Dairy Products Corporation, 372 U.S. at 33, 83 S.Ct. at 598, 9 L.Ed.2d at 566, and ‘may trap the innocent by not providing fair warning,’ Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227–28 (1972).

" ‘ "As the United States Supreme Court observed in Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948) :

" ‘ " ‘There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act, or in regard to the applicable tests to ascertain guilt.’

" ‘ " 333 U.S. at 515–16, 68 S.Ct. at 670, 92 [L.Ed. at] 849–50 [citations omitted]."

" ‘ McCrary v. State, 429 So. 2d 1121, 1123–24 (Ala. Cr. App. 1982), cert. denied, 464 U.S. 913, 104 S.Ct. 273, 78 L.Ed.2d 254 (1983).’

" McCall v. State, 565 So. 2d 1163, 1165 (Ala. Crim. App. 1990).

" ‘ " ‘As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ Kolender v. Lawson, 461 U.S. 352 [357], 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (citations omitted). A statute challenged for vagueness must therefore be scrutinized to determine whether it provides both fair notice to the public that certain conduct is proscribed and minimal guidelines to aid officials in the enforcement of that proscription. See Kolender, supra ; Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)." ’

" Timmons v. City of Montgomery, 641 So. 2d 1263, 1264 (Ala. Crim. App. 1993), quoting McCorkle v. State, 446 So. 2d 684, 685 (Ala. Crim. App. 1983). However,

" ‘ " ‘[t]his prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for "[i]n most English words and phrases there lurk uncertainties." Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid.’ " ’

" Sterling v. State, 701 So. 2d 71, 73 (Ala. Crim. App. 1997), quoting Culbreath v. State, 667 So. 2d 156, 158 (Ala. Crim. App. 1995), abrogated on other grounds by Hayes v. State, 717 So. 2d 30 (Ala. Crim. App. 1997), quoting in turn, Rose v. Locke, 423 U.S. 48, 49–50, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).

" ‘ "Mere difficulty of ascertaining its meaning or the fact that it is susceptible of different interpretations will not render a statute or ordinance too vague or uncertain to be enforced." ’ Scott & Scott, Inc. v. City of Mountain Brook, 844 So. 2d 577, 589 (Ala. 2002), quoting City of Birmingham v. Samford, 274 Ala. 367, 372, 149 So. 2d 271, 275 (1963). The judicial power to declare a statute void for vagueness ‘should be exercised only when a statute is so incomplete, so irreconcilably conflicting, or so vague or indefinite, that it cannot be executed, and the court is unable, by the application of known and accepted rules of construction, to determine, with any reasonable degree of certainty, what the legislature intended.’ Jansen v. State ex rel. Downing, 273 Ala. 166, 170, 137 So. 2d 47, 50 (1962)."

Vaughn v. State, 880 So. 2d 1178, 1194-96 (Ala. Crim. App. 2003).

Contreras was originally indicted for murder made capital because the victim was under 14 years of age. The trial court instructed the jury on...