Ex parte Dobyne

• Decision Date: 15 June 2001
• Citation: 805 So.2d 763
• Parties: Ex parte Willie C. DOBYNE. (Re Willie C. Dobyne v. State).
• Court: Alabama Supreme Court

805 So.2d 763

Ex parte Willie C. DOBYNE.

(Re Willie C. Dobyne v. State).

1992261.

Supreme Court of Alabama.

June 15, 2001.

Patrick J. Keenan and Charlotta Norby, Atlanta, Georgia, for petitioner.

Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent.

HARWOOD, Justice.

Willie Dobyne petitioned for certiorari review of the Court of Criminal Appeals' judgment affirming the trial court's ruling on his Rule 32, Ala. R.Crim. P., petition for postconviction relief. We granted his petition, for the purpose of addressing three of his arguments relating to the Court of Criminal Appeals' holdings in regard to Dobyne's claims of juror misconduct and ineffective assistance of counsel. See Dobyne v. State, 805 So.2d 733 (Ala.Crim. App.2000). Before proceeding to the merits of those claims, however, we address the appropriate standard of review.

We recognize that Rule 39(a)(2), Ala. R.App. P., governs petitions for certiorari filed in death-penalty cases and that Dobyne has been sentenced to death and has had his sentence affirmed by the Court of Criminal Appeals on appeal and by this Court on certiorari review. See Dobyne v. State, 672 So.2d 1353 (Ala.Crim.App.1994), and Ex parte Dobyne, 672 So.2d 1354 (Ala. 1995), cert. denied, 517 U.S. 1169, 116 S.Ct. 1571, 134 L.Ed.2d 670 (1996). The plain-error standard of review does not apply in this case. Rule 39(a)(2) reads:

"(2) Death-Penalty Cases. When the Court of Criminal Appeals has affirmed a sentence imposing the death penalty, counsel who represented the appellant on appeal to the Court of Criminal Appeals or successor counsel shall prepare and file in the Supreme Court a petition for a writ of certiorari for review of the decision of the Court of Criminal Appeals. That petition shall be governed by this rule, except that:

"(A) In addition to the bases for consideration of the petitions for the writ of certiorari listed in subsection (a)(1) of this rule, a petition for a writ of certiorari will also be considered from a decision failing to recognize as prejudicial any plain error or defect in the proceeding under review whether or not the error or defect was brought to the attention of the trial court or the Court of Criminal Appeals.

"(B) In addition to the requirements of subsection (d)(3) of this rule, dealing with the form of the petition, when review is sought for failing to recognize as prejudicial any plain error or defect, the petition shall contain a concise statement of the grounds, including a description of the issue and circumstances warranting plain-error review."

(Emphasis added.)

Dobyne's petition for certiorari review in this case does not arise from a direct appeal of a judgment imposing the death penalty; this petition seeks review of a judgment entered on appeal from the denial of Dobyne's petition for postconviction relief. The correct reading of Rule 39(a)(2), Ala. R.App. P., permits plain-error review only with respect to the certiorari petition that arises from the direct appeal of the death-penalty sentence to the Court of Criminal Appeals. Although this Court has not previously stated this construction of the plain-error rule, the Court of Criminal Appeals has consistently applied it:

"In every appeal from the denial of postconviction relief under Rule 32 in a death-penalty case, this court has held that the plain-error rule does not apply in Rule 32 proceedings and that the procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed. Thompson v. State, 615 So.2d 129 (Ala.Cr.App.1992); Cade v. State, 629 So.2d 38, 41 (Ala.Cr.App.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994); Neelley v. State, 642 So.2d 494, 496 (Ala.Cr.App. 1993), cert. quashed, 642 So.2d 510 (Ala. 1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1316, 131 L.Ed.2d 197 (1995); State v. Tarver, 629 So.2d 14, 19 (Ala.Cr. App.1993); Davis v. State, 720 So.2d 1006, 1013 (Ala.Cr.App.1998); Brownlee v. State, 666 So.2d 91, 93 (Ala.Cr.App. 1995); Horsley v. State, 675 So.2d 908 (Ala.Cr.App.1996); Grayson v. State, 675 So.2d 516 (Ala.Cr.App.1995), cert. denied, 519 U.S. 934, 117 S.Ct. 309, 136 L.Ed.2d 225 (1996); Payne v. State, 791 So.2d 383 (Ala.Cr.App.1999); Boyd v. State, 746 So.2d 364 (Ala.Cr.App.1999); Lawhorn v. State, 756 So.2d 971 (Ala.Cr. App.1999); Jones v. State, 753 So.2d 1174 (Ala.Cr.App.1999)."

Siebert v. State, 778 So.2d 842, 847 (Ala. Crim.App.1999). Thus, we review Dobyne's allegations of conflict under the standards set out in Rule 39(c), Ala. R.App. P.

I. Juror Misconduct Claim

A. Rule 32.1(e), Ala. R.Crim. P.

Dobyne's specific argument with respect to juror misconduct is that the opinion of the Court of Criminal Appeals conflicts with Ex parte Pierce [Ms. 1981270, Sept. 1, 2000] ___ So.2d ___ (Ala.2000). In his appeal to the Court of Criminal Appeals, Dobyne argued that the trial court denied him an appropriate hearing on his postconviction claims that the jury foreperson had failed to disclose the full nature and extent of her relationship with him, and that her presence on the jury had deprived him of a fair trial.

The Court of Criminal Appeals addressed Dobyne's argument in part by stating:

"Dobyne contends that the circuit court erred in denying his claim that his rights to an impartial jury, due process, a fair trial, and a reliable determination of punishment were violated because, he says, the jury foreperson engaged in misconduct. Specifically he argues that the jury foreperson did not disclose during voir dire that she knew him personally. (Claim Y. in Dobyne's first amended petition at C.R. 360-61.)

"`Before a claim of juror misconduct may be addressed on the merits in a postconviction petition the petitioner must meet the requirements for newly discovered evidence contained in Rule 32.1(e), Ala. R.Crim. P.' Brown v. State, 807 So.2d 1 (Ala.Cr.App.1999)

."

Dobyne v. State, 805 So.2d at 758. (Emphasis added.) Although the Court of Criminal Appeals then went on to address Dobyne's claim on the merits, the language quoted above is at some variance with our holding in Ex parte Pierce, supra. However, we note that the Court of Criminal Appeals referred to our original opinion in Pierce, released May 26, 2000, to further address Dobyne's claim on the merits—but this Court, on September 1, 2000, on application for rehearing, withdrew its May 26, 2000, opinion and issued a new opinion.

In the September 1, 2000, Pierce opinion, this Court considered a similar claim of juror misconduct. We stated:

"The decisive issue in this case is whether Pierce's claim is procedurally barred under Rule 32.2(a)(3) and (5), Ala.R.Crim.P.

"Pierce's claim states a proper ground for relief under Rule 32.1(a) because it states a constitutional violation that would require a new trial. To be entitled to that relief, however, Pierce must avoid the preclusive effect of Rule 32.2(a)(3) and (5); those provisions bar a defendant from presenting in a Rule 32 postconviction petition a claim that could have been raised at trial or on direct appeal."

___ So.2d at ___. This Court then quoted the applicable rules, including Rules 32.1 and 32.2, Ala. R.Crim. P. After reviewing the language of the Rules, we further stated:

"The Court of Criminal Appeals stated that Pierce had failed to prove that his evidence regarding the sheriff's improper contact with the jury constituted newly discovered evidence; therefore, it held, the trial court correctly held this claim to be procedurally barred on the basis that it could have been raised at trial or on direct appeal. The Court of Criminal Appeals held that Pierce did not satisfy the following three of the five elements required by Rule 32.1(e), Ala. R.Crim. P.: 1) that the information was not known and could not have been discovered at the time of trial or sentencing or in time to raise it in a posttrial motion; 2) that if the information `had been known at the time of trial or of sentencing, the result probably would have been different'; and 3) that `[t]he facts establish that the [defendant] is innocent of the crime' or that he `should not have received the sentence [he] received.'

"However, Pierce was not required to prove that this information meets the elements of `newly discovered material facts' under Rule 32.1(e). While the information about Sheriff Whittle's contacts with the jury may be `newly discovered,' Pierce does not seek relief under Rule 32.1(e). Pierce does not contend that `[n]ewly discovered material facts exist which require that the conviction or sentence be vacated by the court.' Rule 32.1(e). Instead, Pierce's claim fits under Rule 32.1(a): `The constitution of the United States or of the State of Alabama requires a new trial....' Rule 32.1(a) states a ground for relief distinct from that stated in Rule 32.1(e). If every defendant had to prove that the facts on which he relies for postconviction relief satisfy the elements of `newly discovered material facts' set out by Rule 32.1(e), then constitutional violations could rarely be raised in a Rule 32 petition, and Rule 32.1(a) would be superfluous for all cases except those in which the defendant could prove innocence. There is a place for this Court to review constitutional violations that could not be discovered by the date of trial or in time to be raised in a direct appeal, even if the defendant is guilty of the crime charged. Furthermore, the application of the requirements of Rule 32.1(e) in cases like Pierce's would impose a nearly impossible standard on a defendant filing a Rule 32 petition. A defendant could rarely, if ever, establish, through the same facts tending to prove that the jury was prejudiced or improperly influenced, that he is innocent of the crime charged. Yet, jury prejudice or improper influence is an important issue for this Court to review."

___ So.2d at ___.

We write to illustrate how the facts of Pierce are...