Ex Parte Eugene Milton Clemons Ii.(in Re Eugene Milton Clemons Ii v. State ).

• Decision Date: 04 May 2007
• Docket Number: 1041915.
• Citation: 55 So.3d 348
• Parties: Ex parte Eugene Milton CLEMONS II.(In re Eugene Milton Clemons IIv.State of Alabama).
• Court: Alabama Supreme Court

55 So.3d 348

Ex parte Eugene Milton CLEMONS II.(In re Eugene Milton Clemons II

v.State of Alabama).

1041915.

Supreme Court of Alabama.

May 4, 2007.

Anne W. Stukes and Ryan S. Spiegal of Winston & Strawn, LLP, Washington, D.C.; Daniel G. Grove of Jackson Kelly, PLLC, Lexington, Kentucky; and Anne R. Yuengert of Bradley Arant Rose & White, LLP, Birmingham, for petitioner.Troy King, atty. gen., and J. Clayton Crenshaw and Henry M. Johnson, asst. attys. gen., for respondent.LYONS, Justice.

Eugene Milton Clemons II petitioned this Court for a writ of certiorari to review the judgment of the Court of Criminal Appeals affirming the trial court's denial of his Rule 32, Ala. R.Crim. P., proceeding, and we issued the writ as to three issues. We now quash the writ in part and reverse and remand.

I. Facts and Procedural Background

Clemons was convicted in September 1994 of capital murder in the death of Robert Althouse, an officer with the Drug Enforcement Administration, a federal agency, during the course of a robbery. Clemons had already been convicted of the same offense in federal court and sentenced to life imprisonment without the possibility of parole. In the sentencing phase of Clemons's trial in state court, the jury unanimously recommended that he be sentenced to death. The trial court followed the jury's recommendation and sentenced Clemons to death. The Alabama Court of Criminal Appeals and this Court affirmed Clemons's conviction and sentence on direct appeal. See Clemons v. State, 720 So.2d 961 (Ala.Crim.App.1996), aff'd, 720 So.2d 985 (Ala.1998). The United States Supreme Court denied certiorari review, 525 U.S. 1124, 119 S.Ct. 907, 142 L.Ed.2d 906 (1999).

Clemons then filed a timely Rule 32, Ala. R.Crim. P., petition. After the trial court held a hearing on the petition, it summarily dismissed some of Clemons's claims, pursuant to Rule 32.7(d) and Bishop v. State, 608 So.2d 345 (Ala.1992). The trial court then denied the remaining claims. Clemons appealed the denial of his Rule 32 petition to the Court of Criminal Appeals. While Clemons's appeal was pending, the United States Supreme Court decided Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding unconstitutional the execution of mentally retarded defendants. After the opinion in Atkins was issued, the Court of Criminal Appeals remanded Clemons's case for the trial court to determine whether Clemons is mentally retarded. See Clemons v. State, 55 So.3d 314 (Ala.Crim.App.2003). After an extensive evidentiary hearing, the trial court on remand determined that Clemons falls “in the borderline range of intellectual functioning [but] ... is not mentally retarded.”

On return to remand, the Court of Criminal Appeals upheld the trial court's finding that Clemons is not mentally retarded and unanimously affirmed the trial court's judgment denying Clemons's Rule 32 petition. See Clemons v. State, 55 So.3d 314, 322 (Ala.Crim.App.2003) (opinion on return to remand). Although the State did not assert as a defense the preclusion of Clemons's claims of ineffective assistance of trial counsel, the Court of Criminal Appeals determined, sua sponte, that “any claims related to the performance of trial counsel are procedurally barred in this postconviction proceeding.” 55 So.3d at 333. Clemons then filed his petition for a writ of certiorari.

II. Standard of Review

The plain-error standard of review applicable in a death-penalty case does not apply in a Rule 32 proceeding in such a case, and all the procedural bars of Rule 32 apply. Ex parte Dobyne, 805 So.2d 763, 766–67 (Ala.2001); Siebert v. State, 778 So.2d 842, 847 (Ala.Crim.App.1999). We apply the standards set out in Rule 39(c), Ala. R.App. P. See Dobyne, 805 So.2d at 767. However, “when the facts are undisputed and an appellate court is presented with pure questions of law, the court's review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001).

III. Analysis

This Court issued the writ of certiorari to review the following issues:

A. Whether the trial court erred in failing to consider Clemons's borderline intellectual capacity as a mitigating factor in the sentencing phase of his trial;

B. Whether the Court of Criminal Appeals erred in sua sponte applying a procedural bar to preclude Clemons's ineffective-assistance-of-trial-counsel claims; and

C. Whether Clemons's appellate counsel rendered ineffective assistance.

A. Borderline Retardation as Mitigating Evidence

We note that Clemons did not present in his Rule 32 petition the issue whether his sentence of death should be reversed on the basis that the trial court failed to consider his borderline intellectual capacity as a mitigating factor, independent of a claim of ineffective assistance of trial counsel. However, in his brief to the Court of Criminal Appeals on his appeal from the denial of his Rule 32 petition, he argued that, under Atkins, supra, “Dr. [Charles] Golden[, a clinical neuropsychologist whose testimony the trial court excluded,] could have provided evidence that would have established ‘a reasonable probability that the jury would have found that [Clemons] suffered from mild or borderline mental retardation or that a non-statutory mitigating circumstances existed.’ ” Further, in his petition and briefs to this Court, Clemons argues that, under cases decided subsequent to Atkins, supra, such as Tennard v. Dretke, 542 U.S. 274, 287, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), and Smith v. Texas, 543 U.S. 37, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004), evidence of borderline mental retardation ¹ is “inherently mitigating.” See Tennard, 542 U.S. at 287. See also Wiggins v. Smith, 539 U.S. 510, 535, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (noting that where the defendant had an IQ of 79, “his diminished mental capacities ... augment his mitigation case”).

We cannot, however, consider the issue whether the trial court erred in failing to consider Clemons's borderline intellectual capacity as a mitigating factor in the sentencing phase of his trial because the issue was not presented to the trial court in Clemons's Rule 32 petition. See Ex parte Linnell, 484 So.2d 455, 457 (Ala.1986) (“[T]he rule against raising an issue for the first time at the appellate level applies even if the issue raised would present constitutional questions.”). As to the claims based on Tennard and Smith, Clemons could not have raised such claims under Tennard before the trial court or the Court of Criminal Appeals, because that line of cases had not yet been decided when Clemons's case was pending in those courts. We are not at liberty to consider claims in a Rule 32 petition that are raised for the first time on appeal. Ex parte Linnell, supra.

Whether Clemons may raise any of these issues in a successive Rule 32 petition is not before us. See Rule 32.2(b)(2) (“A successive petition on different grounds shall be denied unless .... the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.”). We therefore quash the writ as improvidently granted as to this issue.

B. Sua Sponte Application of Rule 32.2(a)

We now turn to Clemons's second issue—whether the Court of Criminal Appeals erred in sua sponte applying a Rule 32.2(a) procedural bar to preclude Clemons's ineffective-assistance-of-trial-counsel claims. This issue presents us with a question of first impression. Despite the State's failure to assert any procedural bars to Clemons's Rule 32 petition in the trial court or on appeal, the Court of Criminal Appeals, in its opinion on return to remand, held:

“Because the appellant was represented by different counsel at trial and on appeal and because the [ Ex parte ] Jackson [, 598 So.2d 895 (Ala.1992),] procedure was in effect at the time of the appellant's conviction, any ineffective-assistance-of-trial-counsel claims should have been raised in a motion for a new trial and on direct appeal. In fact, he did raise ineffective-assistance-of-trial-counsel claims in his motion for a new trial and on direct appeal. Therefore, the appellant's ineffective-assistance-of-trial-counsel claims are precluded pursuant to the provisions of Rule 32.2(a), Ala. R.Crim. P.”

55 So.3d at 333.

In its brief before this Court, the State conceded that it “waived that non-jurisdictional procedural bar.” ² In fact, the State agreed with Clemons's contention that the Court of Criminal Appeals erred in sua sponte applying the nonjurisdictional procedural bars of Rule 32.2(a), and it initially asked this Court to “remand Clemons's case to the Alabama Court of Criminal Appeals with instructions to consider the merits of each of his ineffective assistance of trial counsel claims.” However, in oral argument before this Court, the State reversed course, without prior notice to this Court or to Clemons, and argued that the procedural bars of Rule 32.2(a) are jurisdictional and cannot be waived. Accordingly, the State contended, the Court of Criminal Appeals correctly applied those bars sua sponte to Clemons's ineffective-assistance-of-trial-counsel claims, despite the State's failure to assert the procedural bars in the trial court.

The State attempted to justify its change in position on the ground that, at the time it waived the procedural bars of Rule 32.2(a), the Court of Criminal Appeals had not yet decided Davis v. State, 9 So.3d 514 (Ala.Crim.App.2006), which, the State contends, supports the State's most recent position. In Davis, the State similarly failed to assert any procedural bar to claims asserted in Davis's Rule 32 petition, and the Court of Criminal Appeals applied the procedural bars of Rule 32.2(a) sua sponte to those claims. In his application for rehearing to the Court of Criminal Appeals, Davis contended...