Duren v. State
Decision Date | 25 August 2000 |
Citation | 813 So.2d 928 |
Parties | Michael Wayne DUREN v. STATE. |
Court | Alabama Court of Criminal Appeals |
Michael Wayne Duren, pro se.
Bill Pryor, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
Michael Wayne Duren appeals the circuit court's summary dismissal of his Rule 32, Ala.R.Crim.P., petition for postconviction relief. The petition challenged his December 10, 1996, convictions for first-degree robbery and attempted murder, and his January 27, 1997, sentences of life imprisonment without parole for each count, to be served concurrently. The convictions and the sentences were affirmed on direct appeal. Duren v. State, 725 So.2d 1083 (Ala.Crim.App.1997) (table), cert. denied, 734 So.2d 1005 (Ala.1998) (table). The court issued a certificate of judgment in this case on January 16, 1998. (C. 58.) On January 24, 2000, Duren filed a petition for a writ of habeas corpus in the Escambia Circuit Court; that court summarily dismissed his petition. Duren appealed. On appeal, this court ordered the Escambia Circuit Court to treat the writ like a Rule 32, Ala.R.Crim.App., petition, and to set aside its order, and to transfer the petition to the Madison Circuit Court. On February 2, 2000, before the petition was transferred to the Madison Circuit Court, Duren filed a petition for postconviction relief with the Madison Circuit Court.1 In this petition, Duren makes the following allegations of error:
Duren also "checked the blocks" in his petition that alleged that his convictions, entered pursuant to guilty pleas either were unlawfully induced or were not voluntarily made and that his sentence exceeded the maximum authorized by law. However, the record reflects that Duren did not plead guilty to these offenses; the record further shows that his sentences did not exceed the maximum authorized by law. On March 7, 2000, the circuit court summarily dismissed Duren's petition, stating that the petition was precluded by Rule 32.2(a)(3) and (5), that Duren had failed to meet his burden of proof and that the allegations did not meet the specificity requirements of Rule 32.6(b), that there was no material issue of fact or law that would entitle Duren to relief, and that the petition was without merit. Duren appeals.
On appeal, Duren restates his three allegations of error set out above, and argues that the trial court erred in denying his petition without making finding of facts under Rule 32.9, Ala.R.Crim.P.
"Rule 32.7(d), Ala.R.Crim.P., permits the trial court to dismiss the petition `if the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings.'"
Patty v. State, 652 So.2d 337, 338-39 (Ala. Crim.App.1994). "Rule 32.7 does not require the trial court to make specific findings of fact upon a summary dismissal." Fincher v. State, 724 So.2d 87, 89 (Ala. Crim.App.1998).
As to Duren's issues regarding the number of grand jurors who voted to indict him and the improper arrest warrant, both issues are nonjurisdictional. Therefore, they should have been raised at trial, but were not, and are thus precluded from review under a Rule 32 petition. Boyd v. State, 746 So.2d 364 (Ala.Crim.App.1999); Eaton v. State, 423 So.2d 352 (Ala.Crim. App.1982); Rule 32.2(a)(3), Ala.R.Crim.P.
Duren argues that he was denied effective assistance of counsel because his trial counsel failed to object to the trial court's failure to swear the jury before voir dire. Duren argues that, as a result, he was denied due process because, he says, he was convicted by a jury that was not lawfully empaneled. Duren relies on Holland v. State, 668 So.2d 107 (Ala.Crim. App.1995), and on Rule 12.1(c), Ala. R.Crim.P., as support for his argument. Duren also relies on a copy of the record of his trial containing the voir dire and the jury selection proceedings which he attached to his petition for postconviction relief. That portion of the record does not indicate that the jury was sworn before voir dire.
In Ex parte Hamlett, 815 So.2d 499 (Ala.2000), the Alabama Supreme Court considered this identical issue. In determining that the Madison Circuit Court should have determined whether the jury had been properly sworn, the Court wrote:
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