Ex Parte Gerald Patrick Lewis(in Re: State Of Ala. v. Lewis)

• Decision Date: 25 July 2008
• Docket Number: CR-07-0022.
• Citation: State v. Lewis (Ex parte Lewis), 36 So.3d 72 (Ala. Crim. App. 2008)
• Parties: Ex parte Gerald Patrick Lewis(In re: STATE of Alabamav.Gerald Patrick LEWIS).
• Court: Alabama Court of Criminal Appeals

36 So.3d 72

Ex parte Gerald Patrick Lewis(In re: STATE of Alabamav.Gerald Patrick LEWIS).

CR-07-0022.

Court of Criminal Appeals of Alabama.

July 25, 2008.

William Robert Montross, Jr., Atlanta, Georgia, for petitioner.

Troy King, atty. gen., and Corey L. Maze, asst. atty. gen., for respondent.

PER CURIAM.

The appellant, Gerald Patrick Lewis, filed this petition for a writ of mandamus directing the Honorable J. Langford Floyd, a Baldwin County Circuit Judge, to set aside his rulings related to discovery in Lewis's postconviction proceeding.¹

In February 2000, Lewis was convicted of the murder of Misty McGugin made capital because it occurred during the course of a kidnapping, a rape, and a robbery.Lewis was also convicted of two counts of attempted murder, two counts of attempted kidnapping, two counts of attempted rape, and two counts of robbery for offenses against Stephanie Grayson and Ashley Bitowf.The jury, by a vote of 10 to 2, recommended that Lewis be sentenced to death on the capital-murder conviction.The circuit court sentenced Lewis to death.Lewis's convictions and his death sentence were affirmed on direct appeal.SeeLewis v. State,889 So.2d 623(Ala.Crim.App.2003).We issued the certificate of judgment on April 30, 2004.

On April 25, 2005, Lewis filed a postconviction petition pursuant to Rule 32, Ala.R.Crim.P., attacking his capital-murder conviction and sentence of death.Lewis filed his first discovery motion in August 2005 and filed a “Superceding Motion for Discovery” in June 2006.In the motions Lewis requested that he be given access to his Department of Corrections(“DOC”) records maintained by the States of Alabama Georgia, and Massachusetts; jail records from various facilities in Alabama, Georgia, and Massachusetts in which he had been incarcerated; mental-health records maintained by the States of Alabama, Georgia, and Massachusetts; Board of Pardons and Paroles records maintained in Alabama and Georgia; Department of Human Resource records maintained by the States of Alabama, Georgia, and Massachusetts; Youth Services Department records from Massachusetts and Georgia; police and sheriff's department records from many jurisdictions in Alabama, Georgia, and Massachusetts; the Mobile County District Attorney's office files related to his arrest and the investigation of the offenses; records from the United States Department of Human Services and the Social Security Administration; and his military records.

In June 2006, while the discovery motions were still pending Lewis filed 14 requests for subpoenas duces tecum.One of those subpoenas was directed to the Mobile County District Attorney's Office.The State moved to quash the subpoena.On September 20, 2007, after entertaining numerous motions on this issue Judge Floyd quashed the subpoena directed to the Mobile County District Attorney's Office.At this same time Judge Floyd also directed that the State be given access to Lewis's trial attorney's entire case file.²

Initially, we note that this case is correctly before this Court by way of mandamus petition.SeeEx parte Land,775 So.2d 847(Ala.2000).

For a writ of mandamus to issue the petitioner must show: (1) a clear legal right to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) no adequate remedy at law; and (4) the properly invoked jurisdiction of the reviewing court.SeeState v. Williams,679 So.2d 275(Ala.Crim.App.1996).

In Ex parte Land, the Alabama Supreme Court set out the standard for discovery in postconviction proceedings and stated:

“We agree with the Court of Criminal Appeals that ‘good cause’ is the appropriate standard by which to judge postconviction discovery motions.In fact, other courts have adopted a similar ‘good-cause’ or ‘good-reason’ standard for the postconviction discovery process.See[ State v.] Marshall, [148 N.J. 89, 690 A.2d 1(1997) ];State v. Lewis,656 So.2d 1248(Fla.1994);People ex rel. Daley v. Fitzgerald,123 Ill.2d 175, 121 Ill.Dec. 937, 526 N.E.2d 131(1988).As noted by the Illinois Supreme Court, the good-cause standard guards against potential abuse of the postconviction discovery process.SeeFitzgerald,supra, 123 Ill.2d at 183, 121 Ill.Dec. 937, 526 N.E.2d at 135.We also agree that New Jersey's Marshall case provides a good working framework for reviewing discovery motions and orders in capital cases.In addition, we are bound by our own rule that ‘an evidentiary hearing must be held on a [petition for postconviction relief] which is meritorious on its face i.e., one which contains matters and allegations (such as ineffective assistance of counsel) which, if true, entitle the petitioner to relief.’Ex parte Boatwright,471 So.2d 1257, 1258(Ala.1985).

“We emphasize that this holding-that postconviction discovery motions are to be judged by a good-cause standard-does not automatically allow discovery under Rule 32, Ala. R.Crim. P., and that it does not expand the discovery procedures within Rule 32.4.AccordLewis,supra, 656 So.2d at 1250, wherein the Florida Supreme Court stated that the good-cause standard did not affect Florida's rules relating to postconviction procedure, which are similar to ours.By adopting this standard, we are only recognizing that a trial court, upon a petitioner's showing of good cause, may exercise its inherent authority to order discovery in a proceeding for postconviction relief.In addition, we caution that postconviction discovery does not provide a petitioner with a right to ‘fish’ through official files and that it ‘is not a device for investigating possible claims, but a means of vindicating actual claims.’People v. Gonzalez,51 Cal.3d 1179, 1260, 800 P.2d 1159, 1206, 275 Cal.Rptr. 729, 776(1990)cert. denied,502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d 85(1991).Instead, in order to obtain discovery, a petitioner must allege facts that, if proved, would entitle him to relief.Cf.Porter v. Wainwright,805 F.2d 930, 933(11th Cir.1986)(‘a hearing [on a habeas corpus petition] is not required unless the petitioner alleges facts which, if proved, would entitle him to federal habeas relief’)cert. denied,482 U.S. 918, 919, 107 S.Ct. 3195, 96 L.Ed.2d 682(1987).Furthermore, a petitioner seeking postconviction discovery also must meet the requirements of Rule 32.6(b), Ala. R.Crim. P., which states:

“ ‘The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds.A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.’

“That having been said, we must determine whether Land presented the trial court with good cause for ordering the requested discovery.To do that, we must evaluate Land's basis for the relief requested in his postconviction petition and determine whether his claims are facially meritorious.Only after making that examination and determination can we determine whether Land has shown good cause.”

775 So.2d at 852-53(footnote omitted).

I.

Lewis argues that the circuit court abused its discretion in allowing the State access to his trial attorney's entire file.Lewis agrees that he has waived his attorney-client privilege, in part, by raising various claims of ineffective assistance of counsel.However, he contends that the circuit court erroneously concluded that the scope of his waiver included the disclosure of his trial attorney's entire case file.

Rule 1.6,Alabama Rules of Professional Conduct, addresses the attorney-client privilege; it provides:

“(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

“(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

“(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

“(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.”

Rule 502, Ala.R.Evid., specifically provides, in pertinent part:

“(d) Exceptions.There is no privilege under this rule:

“....

“(3)Breach of Duty by an Attorney or Client.As to a communication relevant to an issue of breach of duty by an attorney to the client or by a client to the client's attorney.”

The Advisory Committee's Notes to Rule 502 state:

“While no prior Alabama cases specifically state this exclusion, it is consistent with those cases holding that the client may waive the privilege.Dewberry v. Bank of Standing Rock,227 Ala. 484, 494, 150 So. 463, 471(1933).Consistent with those cases, the client may be viewed as waiving the privilege either by breach of duty to the attorney or by charging that the attorney breached the duty owed to the client.”

The United States Court of Appeals for the Eleventh Circuit in Johnson v. Alabama,256 F.3d 1156(11th Cir.2001), recognized that the attorney-client privilege is waived in a habeas corpus proceeding when a defendant asserts a claim of ineffective assistance of counsel.³The court stated:

“[W]hen a habeas corpus petitioner such as Johnson launches an attack on the reasonableness of his attorney's strategy in conjunction with a claim of ineffective assistant of counsel, he puts at issue his communications with counsel relating to those strategic choices.As Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984),] itself emphasizes, the ‘reasonableness

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