Ex parte Hutcherson

• Decision Date: 10 May 2002
• Citation: 847 So.2d 386
• Parties: Ex parte Larry Eugene HUTCHERSON. (In re Ex parte State of Alabama (In re State of Alabama v. Larry Eugene Hutcherson)).
• Court: Alabama Supreme Court

847 So.2d 386

Ex parte Larry Eugene HUTCHERSON.

(In re Ex parte State of Alabama (In re State of Alabama v. Larry Eugene Hutcherson)).

1010421.

Supreme Court of Alabama.

May 10, 2002.

Rehearing Denied August 23, 2002.

Glenn L. Davidson of Collins, Davidson, L.L.C., Mobile, for petitioner.

William H. Pryor, Jr., atty. gen., and George A. Martin, Jr., asst. atty. gen., for respondent.

PER CURIAM.

Larry Eugene Hutcherson pleaded guilty to capital murder and was sentenced to death in 1996. Hutcherson's conviction and sentence were affirmed on direct appeal. Hutcherson v. State, 727 So.2d 846 (Ala.Crim.App.1997), aff'd, 727 So.2d 861 (Ala.1998). The Court of Criminal Appeals issued a certificate of judgment on January 5, 1999.

On May 4, 2001, Hutcherson filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P., challenging the validity of his conviction and sentence. When the Rule 32 petition was filed, Hutcherson's counsel admitted that it was filed outside the two-year limitations period of Rule 32.2(c), Ala. R.Crim. P., because he misunderstood the rule. To invoke the circuit court's jurisdiction to consider the petition, Hutcherson filed a motion for an enlargement of time pursuant to Rule 1.3(b), Ala. R.Crim. P. The State filed a motion to dismiss the petition on the ground that the petition was barred by Rule 32.2(c), Ala. R.Crim. P. The circuit court heard oral argument on the State's motion; it then entered an order stating that it would consider the limitations-period argument at the hearing on the merits of Hutcherson's petition.

The State filed a petition for a writ of mandamus with the Court of Criminal Appeals, requesting that court to order the circuit court to dismiss Hutcherson's Rule 32 petition. The Court of Criminal Appeals granted the petition and issued the writ. State v. Hutcherson, 847 So.2d 378 (Ala.Crim.App.2001). The Court of Criminal Appeals held that the issuance of a writ of mandamus was appropriate because the State had no "adequate remedy" to prevent "undue injury." 847 So.2d at 381. Hutcherson petitions this Court for a writ of mandamus ordering the Court of Criminal Appeals to vacate its order directing the circuit court to dismiss his petition.

Hutcherson's petition is before this Court pursuant to Rule 21(e), Ala. R.App. P., which provides that a decision by a court of appeals on an original petition for a writ of mandamus may be reviewed de novo by this Court. See Ex parte Land, 775 So.2d 847 (Ala.2000).

"[M]andamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court."

Ex parte Horton, 711 So.2d 979 (Ala.1998); Ex parte Land, supra. "A writ of mandamus is not granted unless there is a clear showing of error in the trial court to the injury of the petitioner. Ex parte Slade, 382 So.2d 1127 (Ala.1980)." Ex parte Southland Bank, 514 So.2d 954, 955 (Ala. 1987).

Hutcherson contends that the State's right, pursuant to Rule 32.10, Ala. R.Crim. P., to appeal the final judgment of the circuit court in a Rule 32 proceeding provides the State with an adequate remedy at law by which to challenge the circuit court's denial of the State's motion to dismiss Hutcherson's petition. Therefore, he maintains, the issuance of the writ of mandamus by the Court of Criminal Appeals was improper. We agree. "The fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal. See, e.g., Ex parte Temporary Placement Services, 508 So.2d 275 (Ala.Civ.App.1987)." Ex parte Southland Bank, 514 So.2d at 955. See also State v. Zimlich, 796 So.2d 399, 403 (Ala. 2000); and Ex parte Jackson, 780 So.2d 681 (Ala.2000). The State has failed to show that it had a clear legal right to the order.

Accordingly, we grant Hutcherson's petition and issue the writ. The Court of Criminal Appeals is directed to vacate its order directing the circuit court to dismiss Hutcherson's petition.

PETITION GRANTED; WRIT ISSUED.

MOORE, C.J., and HOUSTON, SEE, LYONS, HARWOOD, and WOODALL, JJ., concur.

JOHNSTONE, J., concurs specially.

BROWN and STUART, JJ., dissent.

JOHNSTONE, Justice (concurring specially).

I concur. I add some observations of my own.

Hutcherson has moved the trial court for a Rule 1.3(b), Ala. R.Crim. P., extension to accommodate the filing of the Rule 32 petition after the expiration of the two years prescribed by Rule 32.2(c). This issue is still pending before the trial court. The Alabama Supreme Court has never held that such an extension cannot be granted. Likewise, the Alabama Supreme Court has never held that the Rule 32.2(c) two-year deadline is jurisdictional.

The Court of Criminal Appeals specifically holds, in Siebert v. State, 778 So.2d 842, 849 (Ala.Crim.App.1999), that "[t]he application of Rule 1.3(b) [for an extension of the Rule 32.2(c) two-year deadline] is discretionary with the circuit court." While the Court of Criminal Appeals holds in Williams v. State, 783 So.2d 135, 137 (Ala.Crim.App.2000), that "the failure to file a Rule 32 petition within the two-year limitations period is a jurisdictional defect," this holding is not supported by any such holding of the Alabama Supreme Court¹ but is, oddly, based largely on Siebert, supra, which holds the extension of the two-year limitations period to be discretionary.

Hutcherson has clearly articulated his claim of "excusable neglect" to warrant a Rule 1.3(b), Ala. R.Crim. P., extension of the two-year deadline for filing his Rule 32 petition, and he has offered proof for consideration by the trial court. Hutcherson's Rule 32 counsel has candidly admitted his own mistake of law in interpreting Rule 32.2(c), Ala. R.Crim. P., and Rule 41(b), Ala. R.App. P., for the deadline. Hutcherson himself is not learned in the law. He may not be bound by the errors of his counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Robinson v. Murphy, 69 Ala. 543, 547 (1881) ("The power of an attorney is not co-equal, co-extensive, or the equivalent of that of the client."). Whether Hutcherson is due an extension is a question of fact and law—the complex law of Strickland and Robinson and the unsettled law of Rule 1.3(b), Ala. R.Crim. P. The initial decision on this issue is the prerogative and the duty of the trial court, where the issue is presently pending.

STUART, Justice (dissenting).

Because I believe the Court of Criminal Appeals was correct, in part, in issuing the writ of mandamus, I dissent.

The Court of Criminal Appeals held that a writ of mandamus provided an appropriate vehicle for relief because, it reasoned, the State had a clear legal right to the writ and the State's right to appeal was not an adequate remedy to prevent undue injury. To support its conclusion, the Court of Criminal Appeals noted:

1. A hearing on the merits of Hutcherson's Rule 32 petition at the circuit court level, when the circuit court did not have jurisdiction to entertain the petition because of the mandatory two-year limitations period, would cost the state "great time, resources, money, and inconvenience" 847 So.2d at 381; and

2. A determination on the merits of the petition might provide Hutcherson with the opportunity to pursue the merits of subsequent federal challenges to his conviction and sentence unless "`"the last state court rendering a judgment in the case `"clearly and expressly"' states that its judgment rests on a procedural bar."'" 847 So.2d at 381, quoting Mullins v. State, 555 So.2d 1156, 1158 (Ala.Crim.App.1989), quoting other cases.

The Court of Criminal Appeals determined that a petition for a writ of mandamus was the appropriate vehicle by which the State could seek relief from the circuit court's refusal to rule on its motion to dismiss Hutcherson's petition. The State alleged that the circuit court lacked subject-matter jurisdiction to hear the petition because it was untimely filed. Relying on our holdings in Ex parte Spears, 621 So.2d 1255 (Ala.1993)(the test to determine whether a writ of mandamus will issue is whether the remedy by appeal is adequate to prevent undue injury); Ex parte Snow, 764 So.2d 531 (Ala.1999)(issuing a writ of mandamus when a trial court failed to enter a summary judgment in an action filed after the statute of limitations had expired); and Ex parte Flint Construction Co., 775 So.2d 805 (Ala.2000)(holding that the question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus), the Court of Criminal Appeals concluded that "this case present[ed] a classic example of the type of interlocutory ruling that [the] Supreme Court has held to be reviewable by mandamus petition." 847 So.2d at 381. I agree. See also Ex parte Punturo, [Ms. 1000115, Feb. 8, 2002] ___ So.2d ___, ___ (Ala.2002)("`[T]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.' " (Quoting Ex parte Flint Constr. Co., 775 So.2d at 808.)).

Initially, I note that while a Rule 32 proceeding for postconviction relief is considered to be civil in nature, see Mayes v. State, 563 So.2d 38 (Ala.Crim.App.1990), such a proceeding is distinct from a typical civil case. Rule 32, Ala. R.Crim. P., provides a defendant a method by which to seek postconviction relief; therefore, the rights to be accorded a defendant during a Rule 32 proceeding and the procedures pursuant to which such a proceeding is conducted are based upon the rule and caselaw. Consequently, the facts, circumstances, and procedures involved in a Rule 32 proceeding are clearly distinguishable from those in a civil case that relies on the proposition that where a statute-of-limitations defense is applicable, the...