Davenport v. State

• Citation: 987 So.2d 652
• Decision Date: 21 December 2007
• Docket Number: CR-06-1732.
• Court: Alabama Court of Criminal Appeals
• Parties: Swannie Lee DAVENPORT v. STATE of Alabama.

987 So.2d 652 Swannie Lee DAVENPORT
v.
STATE of Alabama. CR-06-1732. Court of Criminal Appeals of Alabama. December 21, 2007.

[987 So.2d 653]

Swannie Lee Davenport, pro se.

Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.

BASCHAB, Presiding Judge.

On November 1, 2004, the appellant, Swannie Lee Davenport, was convicted of manslaughter.¹ On January 13, 2005, the trial court sentenced her to serve a term of twenty years in prison. We affirmed her conviction and issued a certificate of judgment on March 30, 2006. See Davenport v. State, 968 So.2d 27 (Ala.Crim.App.2005). On May 24, 2007, the appellant filed a Rule 32 petition, challenging her conviction.² Without requiring a response from the State, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that she is entitled to post-conviction relief because:

1) her sentence is excessive and harsh because she was forty-seven years old and had not previously been charged with or convicted of a felony;³

2) the prosecutor allegedly engaged in misconduct during his closing argument; and

3) her counsel rendered ineffective assistance.

Initially, we note that the appellant filed her petition after the limitations period set forth in Rule 32.2(c), Ala. R.Crim. P., had expired, and she raised nonjurisdictional claims. However, the circuit court denied her petition without first requiring a response from the State. In Ex parte Ward, [Ms. 1051818, June 1, 2007] ___ So.2d ___, ___ (Ala.Crim.App.2007), the Alabama Supreme Court addressed the limitations period in Rule 32.2(c), Ala. R.Crim. P., as follows:

"[T]he limitations provision of Rule 32.2(c) is an affirmative defense and not a jurisdictional bar.

". . . .

"Although we today hold that the limitations provision in Rule 32.2(c) is not a jurisdictional bar, it is nonetheless

987 So.2d 654

written in mandatory terms. Rule 32.2(c) provides that `the court shall not entertain any petition for relief from a conviction or sentence' that is not timely. In prior cases in which it concluded that equitable tolling is unavailable, the Court of Criminal Appeals based its holding on the mandatory `shall' language found in Rule 32.2(c) and the fact that no Alabama court has ever held that there is an exception to the limitations period. See, e.g., Arthur v. State, 820 So.2d 886, 889-90 (Ala.Crim.App. 2001) (holding that there is no exception to Rule 32.2(c) and that the limitations period is jurisdictional). However, this Court has never held that equitable tolling is not available in a case such as this one. Moreover, because Rule 32.2(c) does not establish a jurisdictional bar, the trial court has the power to hear an untimely petition because the running of the limitations period would `not divest the circuit court of the power to try the case.' Ex parte Seymour, 946 So.2d 536, 539 (Ala.2006).

"Further, as Ward points out, under federal habeas corpus practice, the federal courts have held that equitable tolling is available for a § 2244 petition, notwithstanding that the word `shall' appears in 28 U.S.C. § 2244(d)(1) (establishing procedures for petitions for the writ of habeas corpus). See, e.g., Baldayaque v. United States, 338 F.3d 145, 153 (2d Cir.2003) (holding that equitable tolling may be available where the attorney's behavior was outrageous or the attorney's incompetence was extraordinary); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) (allowing equitable tolling where the petitioner's attorney failed to file the petition and failed to return the petitioner's file despite multiple requests from the petitioner); Sandvik v. United States, 177 F.3d 1269 (11th Cir.1999) (allowing equitable tolling in cases of extraordinary circumstances beyond the petitioner's control and...