Ex parte Coleman

• Decision Date: 29 October 1998
• Citation: 728 So.2d 703
• Parties: Ex parte John David COLEMAN. (In re State of Alabama v. John David Coleman).
• Court: Alabama Court of Criminal Appeals

728 So.2d 703

Ex parte John David COLEMAN.

(In re State of Alabama v. John David Coleman).

CR-97-2233.

Court of Criminal Appeals of Alabama.

October 29, 1998.

Jack David Coleman, petitioner, pro se.

Bill Pryor, atty. gen.; Jack W. Willis, asst. atty. gen.; and M. David Barber, district atty., for respondent.

LONG, Presiding Judge.

The petitioner, John David Coleman, an inmate at William E. Donaldson Correctional Facility in Bessemer, filed this petition for a writ of mandamus after the Honorable Alfred Bahakel, circuit judge for the Tenth Judicial Circuit, denied his request to proceed in forma pauperis for purposes of filing a petition for postconviction relief pursuant to Rule 32, Ala.R.Crim.P. In June 1998, Coleman filed a Rule 32 petition attacking his 1989 convictions. The petition was accompanied by an in forma pauperis declaration.¹ (See Rule 32.6(c), Ala.R.Crim.P., and the accompanying form.) Judge Bahakel denied Coleman's request to proceed in forma pauperis and noted in his order denying the request that Coleman had filed four previous post-conviction petitions. Coleman then filed this petition for a writ of mandamus directing Judge Bahakel to grant his request to proceed in forma pauperis.

As with any other petition for extraordinary relief, this Court must first determine if the matter is reviewable by extraordinary petition. Recently, Judge Cobb, writing for this Court in Goldsmith v. State, 709 So.2d 1352, 1353 (Ala.Cr.App.1997), stated, "[M]andamus, and not appeal, is the proper method by which to compel the circuit court to proceed on an in forma pauperis petition."

The State, in its answer to the petition, initially argues that Coleman has failed to prove that he is indigent. Citing Stafford v. State, 647 So.2d 102 (Ala.Cr.App.1994), the State argues that Coleman failed to attach to his in forma pauperis declaration a copy of the record of his prison financial account. It also contends that there is no evidence that Coleman is indigent.

Included with Coleman's petition is an in forma pauperis declaration Coleman executed on August 11, 1998. This declaration contains a certificate signed by the authorized officer of the institution at which Coleman is incarcerated and reflects that on August 11, 1998, Coleman had $.29 in his prison inmate account. Rule 32.6(a), provides in part:

"If the petitioner desires to prosecute the petition in forma pauperis, he shall file the In Forma Pauperis Declaration at the end of the form [accompanying the rule]. 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 as to the amount of money or securities on deposit to the petitioner's credit in any account in the institution."

Coleman's in forma pauperis declaration and the accompanying certificate indicate that he is indigent. Cummings v. State, 687 So.2d 1290 (Ala.Cr.App.1996) and Powell v. State, 674 So.2d 1259 (Ala.Cr.App.1995). The declaration and the certificate were sufficient to satisfy the requirements of Rule 32.6(a) pertaining to in forma pauperis status. It was not necessary for Coleman to forward a copy of his prison inmate account summary. See Rule 32.6(a), Ala.R.Crim.P.

Alternatively, the State argues that Judge Bahakel did not abuse his discretion in denying Coleman in forma pauperis status because this is Coleman's fifth petition and "there should be some recourse for the State" when dealing with litigants who file repetitious petitions.

This Court is well acquainted with the increasing number of post-conviction petitions filed daily by inmates in Alabama prisons. In this Court's 1997-98 Term, 578 appeals, approximately 26.6% of the appeals filed with this Court for that term, were from the denial of postconviction petitions.² "We sympathize with the frustration experienced by the [district] court here as well as by other [district] courts deluged with [the petitioner's] parade of pleadings, petitions, and other papers." In re Green, 669 F.2d 779, 786 (D.C.Cir.1981). "The goal of fairly dispensing justice is compromised when courts are forced to devote their limited resources to the processing of repetitious and frivolous requests." Cotner v. Creek County District Court, 911 P.2d 1215, 1221 (Okla.Crim.App. 1996). The barrage of postconviction petitions has caused numerous delays in the judicial process and problems in enforcing judgments.³ "Finality of judgment once thought to be the sine qua non of a stable judicial system is now in the field of criminal law no more than a phantom, excitedly pursued but rarely caught." Honore v. Washington State Board of Prison Terms and Paroles, 77 Wash.2d 660, 691, 466 P.2d 485, 504 (1970) (Hale, Justice, concurring only in the result).

The United States Supreme Court, in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), stated:

"It is now established beyond doubt that prisoners have a constitutional right to access to the courts. This Court recognized that right more than 35 years ago when it struck down a regulation prohibiting state prisoners from filing petitions for habeas corpus unless they were found `"properly drawn"' by the `"legal investigator"' for the parole board. Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). We held this violated the principle that `the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus.' Id., at 549, 61 S.Ct. at 641. See also Cochran v. Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453 (1942).

"More recent decisions have struck down restrictions and required remedial measures to insure that inmate access to the courts is adequate, effective, and meaningful. Thus, in order to prevent `effectively foreclosed access,' indigent prisoners must be allowed to file appeals and habeas corpus petitions without payment of docket fees. Burns v. Ohio, 360 U.S. 252, 257, 79 S.Ct. 1164, 1168, 3 L.Ed.2d 1209 (1959); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961)."

430 U.S. at 821-22,97 S.Ct. 1491. The Bounds court specifically held that the right of access to the courts required prison authorities to provide inmates with adequate law libraries or adequate assistance from persons trained in the law.

The United States Supreme Court in Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961), held that the right to access to the courts extends to the right to file collateral attacks on criminal convictions. The Smith v. Bennett Court struck down an Iowa law that required a person filing a habeas corpus petition to pay a $4 filing fee.⁴

Recently, the United States Supreme Court in Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), limited its holding in Bounds, requiring a showing of "actual injury" before any relief could be granted on a collateral petition.⁵ The Supreme Court further stated:

"Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement."

518 U.S. at 355, 116 S.Ct. 2174.

We recognize, as have many courts before us, that an indigent is entitled to access to the courts; however, a lower court is not powerless to protect itself from "the threat of onerous, multiplicitious, and baseless litigation." Abdullah v. Gatto, 773 F.2d 487, 488 (2d Cir.1985). See White v. State, 695 So.2d 241 (Ala.Cr.App.1996); Coleman v. State, 539 So.2d 454 (Ala.Cr.App.1988); and Peoples v. State, 531 So.2d 323 (Ala.Cr.App.1988). In Peoples, this Court, quoting the United States Court of Appeals for the Eleventh Circuit in Procup v. Strickland, 792 F.2d 1069, 1072-73 (11th Cir.1986), first enumerated the sanctions a court may impose when confronted with a petitioner bringing repetitious petitions.

"`[A] court is [not] powerless to protect itself and its process from abuse by unscrupulous prison inmates.' Matter of Green, 586 F.2d 1247, 1251 (8th Cir.1978), cert. denied, 440 U.S. 922, 99 S.Ct. 1249, 59 L.Ed.2d 475 (1979). Courts have an `inherent power ... to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances.' Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986). While those conditions may be `onerous,' they `cannot be so burdensome, however, as to deny a litigant meaningful access to the courts.' Cotner, 795 F.2d at 902.

"`In devising methods to attain the objective of curtailing the activity of such a prisoner, however, courts must carefully observe the fine line between legitimate restraints and an impermissible restriction on a prisoner's constitutional right of access to the courts. Various courts have employed and approved a variety of injunctive devices.

"`As to prisoners who bring frequent or repetitious claims, courts have:

"`—enjoined prisoner litigants from relitigating specific claims or claims arising from the same set of factual circumstances;

"`—required litigants to accompany all future pleadings with affidavits certifying that the claims being raised are novel, subject to contempt for false swearing;

"`—directed the litigant to attach to future complaints a list of all cases previously filed involving the same, similar, or related cause of action, and to send an extra copy of each pleading filed to the law clerk of the chief judge of the district;

"`—directed the litigant to seek leave of court before filing pleadings in any new or pending lawsuit;

"`—permitted abusive prisoner litigants to file in forma pauperis only claims alleging actual or threatened physical harm; and requiring payment of a filing fee to bring other claims;

"`—limited the number of

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