Ex Parte James Henry Borden

• Decision Date: 17 August 2007
• Docket Number: 1050042.
• Citation: 60 So.3d 940
• Parties: Ex parte James Henry BORDEN, Jr.(In re James Henry Borden, Jr.v.State of Alabama).
• Court: Alabama Supreme Court

60 So.3d 940

Ex parte James Henry BORDEN, Jr.(In re James Henry Borden, Jr.

v.State of Alabama).

1050042.

Supreme Court of Alabama.

Aug. 17, 2007.

Bryan A. Stevenson and Angela L. Setzer of Equal Justice Initiative of Alabama, Montgomery, for petitioner.Troy King, atty. gen., and Henry M. Johnson, asst. atty. gen., for respondent.BOLIN, Justice.

James Henry Borden, Jr., was convicted of capital murder for intentionally causing the death of Nellie Ledbetter after he had been convicted of another murder within the 20 years before that offense. See § 13A–5–40(a)(13), Ala.Code 1975. The jury, by a vote of 10 to 2, recommended a sentence of death, and the trial court accepted the jury's recommendation and sentenced Borden to death by electrocution. The Court of Criminal Appeals affirmed his conviction and sentence. Borden v. State, 769 So.2d 935 (Ala.Crim.App.1997). This Court affirmed the Court of Criminal Appeals' decision, Ex parte Borden, 769 So.2d 950 (Ala.2000), and the United States Supreme Court denied certiorari review. Borden v. Alabama, 531 U.S. 961, 121 S.Ct. 389, 148 L.Ed.2d 299 (2000).

On October 18, 2001, Borden timely filed a Rule 32, Ala. R.Crim. P., petition for postconviction relief, challenging his conviction and sentence of death. Among other things, Borden argued that he should not be executed because, he alleged, he is mentally retarded, death by electrocution violates the prohibition in the Eighth Amendment to the United States Constitution against cruel and unusual punishment, his trial counsel did not render reasonably effective legal representation, and the jury engaged in misconduct. The State filed its initial response and supporting affidavits. On July 17, 2002, the State filed a motion for leave to amend its answer, included additional affidavits, and also filed a motion to dismiss. On June 20, 2002, the United States Supreme Court released its decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding that the execution of mentally retarded capital offenders violates the prohibition against cruel and unusual punishment in the Eighth Amendment to the United States Constitution. On July 1, 2002, the Alabama Legislature modified Alabama law to provide for execution of capital offenders by lethal injection unless a death-row inmate elects electrocution as a means of execution. Subsequently, the trial court allowed the State to amend its response to reflect those two developments in the law. On August 21, 2002, Borden filed a response to the State's motion to dismiss and a motion to vacate his death sentence, in which he set out specific facts supporting his claim that he is mentally retarded and thereby ineligible for the death sentence. He also filed a motion to amend his Rule 32 petition setting out, among other things, in more detail his argument regarding his claims of juror misconduct. The trial court summarily dismissed Borden's petition, without ruling on Borden's motion to amend.

Borden appealed, and the Court of Criminal Appeals remanded the case for the trial court to make specific findings of fact as to Borden's claim that he is mentally retarded and therefore could not be sentenced to death as a matter of law. Borden v. State, 60 So.3d 935 (Ala.Crim.App.2004). The trial court then found that Borden was mentally retarded. On return to remand, the Court of Criminal Appeals again remanded the case to the trial court for Borden to be sentenced to life imprisonment without the possibility of parole. Borden v. State, 60 So.3d 935, 937 (Ala.Crim.App.2004) (opinion on return to remand). The trial court sentenced Borden to life imprisonment without the possibility of parole.

On the return to the second remand, the Court of Criminal Appeals in an unpublished memorandum issued on August 19, 2005, dismissed the remainder of Borden's Rule 32 claims. We granted certiorari review to address the following two issues: (1) Whether, in its unpublished memorandum, the Court of Criminal Appeals correctly held that Borden failed to comply with Rule 28(a)(10), Ala. R.App. P., and thereby waived his ineffective-assistance-of-counsel claims, and (2) whether the Court of Criminal Appeals correctly held that Borden failed to preserve for appellate review his juror-misconduct claims.

Were Ineffective–Assistance–of–Counsel Claims Waived?

The trial court summarily dismissed Borden's Rule 32, Ala. R.Crim. P., petition, which included his claims of ineffective assistance of counsel. The Court of Criminal Appeals concluded that Borden waived the issue of ineffective assistance of counsel on appeal by failing to comply with Rule 28(a)(10), Ala. R.App. P. The Court of Criminal Appeals' unpublished memorandum of August 19, 2005, states, in pertinent part:

“In Part II(A) of his brief, Borden contends that the circuit court erred in summarily dismissing his claim that trial counsel were ineffective at the guilt and penalty phases of trial.² Because Borden has been resentenced to life imprisonment without the possibility of parole, his claims of ineffective penalty-phase representation are moot. His claims of ineffective guilt-phase representation are waived on appeal because his argument does not comply with the requirements of the Alabama Rules of Appellate Procedure.

“Rule 28(a)(10), Ala. R.App. P., requires the argument section of an appellant's brief to set out ‘the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.’ Borden's argument consists of a single paragraph of general propositions of law; a lengthy recitation of the facts of his life and the facts of the offense; and an eleven-page list of ineffective-assistance-of-counsel allegations. The list of claims is unsupported by legal authority, and it is almost entirely devoid of citations to the record.

“ ‘This type of “scattergun” approach to appellate argument is forbidden by Rule 28(a)[ (10) ], Ala. R.App. P.’ Hamm v. State, 913 So.2d 460, 490–91 (Ala.Crim.App.2002). ‘Recitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed.’ Hamm, 913 So.2d at 491, citing Gay v. State, 562 So.2d 283, 289 (Ala.Crim.App.1990). ‘By failing to include any citation to the record on this issue, [the appellant] has failed to comply with Rule 28(a)(10), Ala. R.App. P., and has waived this claim for purposes of appellate review.’ Hart v. State, 852 So.2d 839, 848 (Ala.Crim.App.2002).

“In Part II(B) of his petition, Borden contends that the trial court erred in summarily dismissing his ineffective-counsel claim for the following reasons: (1) His petition clearly exceeded the specificity requirements of Rule 32.2(b), Ala. R.Crim. P.; (2) the affidavits submitted by his counsel created an issue of fact, and the court's reliance on them to summarily dismiss his petition was improper; (3) the court was wrong to refuse to consider parts of his claim; (4) the court improperly dismissed his claim without permitting him to obtain discovery to prove the merits of his claim; and (5) the trial court improperly adopted the State's proposed order ‘without scrutiny or modification.’

“The first four arguments fail to state a claim for relief because they address the same ineffective-counsel claims that are not properly before this court for review. This court is not required to review arguments which fail to meet the requirements of Rule 28(a). Hallford v. State, 629 So.2d 6 (Ala.Crim.App.1992). Borden's fifth argument must fail because this court does not find error simply because the trial court has adopted an order proposed by the State.

“ ‘While the practice of adopting a State's proposed findings of fact and conclusions of law is subject to criticism, the general rule is that even when the court adopts findings and conclusions verbatim, the findings are those of the court and may be reversed only if clearly erroneous.’ Wood v. State, 891 So.2d 398, 420 (Ala.Crim.App.2003). Here, the order of dismissal specifically stated that ‘[t]he Court further has reviewed the record and the supporting affidavits and finds that the State's proposed order submitted herein accurately reflects the findings and conclusions of the Court.’ The record fully supports the findings and conclusions of the court.³

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Were Borden's Juror–Misconduct Claims Preserved for Appellate Review?

Borden alleged juror misconduct in his Rule 32 petition filed on October 18, 2001. On August 21, 2002, Borden filed a motion for leave to amend his Rule 32 petition, specifically to add more details in support of his juror-misconduct claims. The trial court did not rule on Borden's motion for leave to amend his Rule 32 petition.

On March 14, 2003, the trial court entered its final order dismissing Borden's Rule 32 petition. With regard to Borden's juror-misconduct claims, the trial court stated:

“In his claim, Borden asserts error because, he alleges, his ‘right to a fair and impartial jury was violated due to several jurors' failure to respond truthfully to multiple questions on voir dire.’ (Borden's Rule 32 pet. pp. 76–77.) The members of the jury were dismissed from serving on the jury on December 1, 1994, after recommending that Borden be sentenced to death. (C.R. 4, R. 1175–1177.) The hearing on Borden's motion for a new trial was conducted on, or about, June 22, 1995. (SR. 2.) Thus, Borden, or his counsel, had more than six months to interview members of the jury to discover whether anyone on the jury failed to respond truthfully to any questions during voir dire. As such, Borden could have, but did not, raise this claim at trial or on direct appeal. This claim is, therefore, summarily dismissed pursuant to Rule 32.7(d), A.R. Cr. P., because it is procedurally barred. Rule 32.2(a)(3), (5), A.R. Cr. P.

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