Ex parte Mack

• Decision Date: 25 April 2003
• Citation: 894 So.2d 764
• Parties: Ex parte Albert MACK III. (In re State of Alabama v. Albert Mack III).
• Court: Alabama Court of Criminal Appeals

894 So.2d 764

Ex parte Albert MACK III.

(In re State of Alabama v. Albert Mack III).

CR-02-0341.

Court of Criminal Appeals of Alabama.

April 25, 2003.

Order Overruling Applications for Rehearing August 29, 2003.

Certiorari Denied January 16, 2004.

Certiorari Quashed August 27, 2004

Sanjay K. Chhablani, Atlanta, Georgia, for petitioner.

William H. Pryor, Jr., atty. gen., David A. Clark and J. Clayton Crenshaw, asst. attys. gen., for respondent.

Alabama Supreme Court 1022107.

Certiorari Denied (as to Albert Mack) January 16, 2004.

Certiorari Quashed (as to the State) August 27, 2004

Alabama Supreme Court 1022069.

PER CURIAM.

The petitioner, Albert Mack III, filed this petition for a writ of mandamus directing Judge Charles Malone to grant his discovery motion related to his Rule 32, Ala.R.Crim.P., petition attacking his capital-murder conviction and death sentence. Mack was convicted of murdering Patrick Cory Holman during the course of a robbery, an offense defined as capital by § 13A-5-40(a)(2), Ala.Code 1975. The jury recommended, by a vote of 10 to 2, that Mack be sentenced to death. The trial court accepted the jury's recommendation and sentenced Holman to death. His conviction and sentence were affirmed on direct appeal. See Mack v. State, 736 So.2d 664 (Ala.Crim.App.1998), aff'd, 736 So.2d 681 (Ala.), cert. denied, 528 U.S. 1006, 120 S.Ct. 502, 145 L.Ed.2d 388 (1999). This Court issued a certificate of judgment in June 1999.

In August 2000, Mack filed a Rule 32, Ala.R.Crim.P., petition for postconviction relief. Mack filed three amended petitions in December 2000, February 2001, and July 2001.¹ In September 2000, Mack filed his first discovery motion requesting demographic information of the grand jury and venire pool from which the grand jury that indicted Mack was chosen and also all information and exhibits furnished to that grand jury. The initial discovery motion was denied at a status conference. Mack then requested the demographic information on the race and gender of grand and petit jurors in Tuscaloosa County from 1978 through 1995.² The trial court denied the motion; however, Judge Malone gave Mack permission to file additional arguments in support of the motion. In July 2001, Mack filed a third amended petition and a motion to reconsider the denial of the discovery motion as it pertained to the demographic information of the jurors. The trial court denied the motion to reconsider. In a separate motion, Mack also requested discovery of files of 29 different law-enforcement agencies. Mack filed a motion to clarify his request and lowered the number of agencies to 17. On October 22, 2002, Judge Malone denied this motion. Mack filed this mandamus petition on November 25, 2002. We stayed all action in the circuit court pending the disposition of this mandamus petition.

Mack argues that Judge Malone erred in denying his request for discovery of the race and gender of the grand and petit jurors in Tuscaloosa County from 1978 through 1995. He asserts that this information is essential to prove his claim that his trial counsel's performance was deficient in failing to effectively challenge the repeated underrepresentation of African-Americans on grand and petit juries in Tuscaloosa County. This information, he further argues, is necessary to prove his claim that appellate counsel's performance was deficient in failing to raise this issue on appeal.

The State contends that we should dismiss this petition because, it says, Mack failed to file it within the presumptively reasonable time provided in Rule 21(a), Ala.R.App.P. — 42 days. The State asserts that the motion for discovery of the grand jury information was denied in August 22, 2001; however, this mandamus petition was not filed until November 22, 2002.³ In its response to the State's answer, Mack argues that the order denying this discovery motion was not mailed to him until October 22, 2002, and that this petition was filed within 42 days of his receipt of the ruling on that motion. Mack further asserts that he contacted the circuit clerk's office and was informed that there was no date indicating when this discovery motion was denied and that the only indication of when the order was issued was the date on the copy of the order itself — October 22, 2002. The allegations made in Mack's reply to the State's motion are not refuted and appear to be supported by the exhibits filed with this Court. It appears that the trial court's denial of the motion at the hearing was not its final ruling. The trial court gave Mack permission to file additional arguments in support of the motion. It appears that this petition is timely.

The State next argues that Mack is not entitled to relief because, it says, his claims of ineffective assistance of counsel that are the basis for the discovery motions were raised only in the third amended petition, which was filed outside of the two-year limitations period set in Rule 32.2(c), Ala.R.Crim.P.⁴ Mack counters this argument by asserting that the ineffective-assistance claims relate back to the claims raised in his second amended petition.

Neither the State nor Mack has filed a copy of the second amended petition so we do not know what issues were raised in that petition. Mack quotes from certain portions of the petition, and the quoted portions appear to support his assertion that the ineffective-assistance-of-counsel claims related back to a previous timely filed petition. Because Mack has submitted exhibits that appear to support his allegation that the claims related back, we cannot say that those claims are barred by the expiration of the limitations period. See Charest v. State, 854 So.2d 1102 (Ala.Crim.App.2002). This issue is best left to a court when it has the entire record of the proceedings to evaluate.

Mack first argues that he has shown good cause for the disclosure of the grand and petit jury information. The Alabama Supreme Court in Ex parte Land, 775 So.2d 847 (Ala.2000), 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, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (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. See Fitzgerald, supra, 123 Ill.2d at 183, 121 Ill.Dec. 937, 526 N.Ed.2d at 135....

"... 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."

775 So.2d at 852.

Though the Courts in this State have had no opportunity to address what constitutes good cause, we quote from another jurisdiction that was cited with approval in the Land case. The Supreme Court of Illinois in People v. Johnson, 205 Ill.2d 381, 275 Ill.Dec. 820, 793 N.E.2d 591 (2002), stated:

"A trial court has inherent discretionary authority to order discovery in post-conviction proceedings. See People ex rel. Daley v. Fitzgerald, 123 Ill.2d 175, 183, 121 Ill.Dec. 937, 526 N.E.2d 131 (1988); People v. Rose, 48 Ill.2d 300, 302, 268 N.E.2d 700 (1971). A court must exercise this authority with caution, however, because a defendant may attempt to divert attention away from constitutional issues which escaped earlier review by requesting discovery.... Accordingly, the trial court should allow discovery only if the defendant has shown `good cause,' considering the issues presented in the petition, the scope of the requested discovery, the length of time between the conviction and the post-conviction proceeding, the burden of discovery on the State and on any witnesses, and the availability of the evidence through other sources. Daley,123 Ill.2d at 183-84,121 Ill.Dec. 937,526 N.E.2d 131; see People v. Fair, 193 Ill.2d 256, 264-65, 250 Ill.Dec. 284, 738 N.E.2d 500 (2000). We will reverse a trial court's denial of a post-conviction discovery request only for an abuse of discretion. Fair, 193 Ill.2d at 265,250 Ill.Dec. 284,738 N.E.2d 500. A trial court does not abuse its discretion in denying a discovery request which ranges beyond the limited scope of a post-conviction proceeding and amounts to a `fishing expedition.'"

193 Ill.2d at 408, 250 Ill.Dec. at 836-37, 738 N.E.2d at 607-08 (emphasis added). See also People v. Lucas, 203 Ill.2d 410, 272 Ill.Dec. 298, 787 N.E.2d 113 (2002).

Mack alleged in his third amended petition that his trial counsel's performance was ineffective because he failed to effectively challenge the underrepresentation of African Americans on the grand and petit juries in Tuscaloosa County. Mack alleged that when Tuscaloosa County changed from driver's license lists to voter registration lists as its source for jury selection, the number of African-Americans selected for jury duty dramatically decreased. Mack also had witnesses at the status conference hearing that were prepared to testify concerning the jury selection process in Tuscaloosa County.

In order to prove that trial counsel was ineffective, Rule 32 counsel must...