Appeal from Montgomery Circuit Court
BURKE, Judge.
Shonelle Andre Jackson, currently an inmate on death row at Holman Correctional Facility, appeals the circuit court's dismissal of his petition for postconviction filed pursuant to Rule 32, Ala. R. Crim. P., attacking his capital-murder conviction and sentence of death.
In February 1998, Jackson was convicted of murdering Lefrick Moore during the course of a robbery, an offense defined as capital by § 13A-5-40(a)(2), Ala. Code 1975. Jackson was also convicted of stealing Lottie Flowers's vehicle. The jury unanimously recommended that Jackson be sentenced to life imprisonment without the possibility of parole on the capital-murder conviction and to life imprisonment as a habitual felon on the theft conviction. The circuit court chose not to follow the jury's recommendation and sentenced Jackson to death on the capital-murder conviction. Jackson's convictions and his death sentence were affirmed by this Court on direct appeal. See Jackson v. State, 836 So. 2d 915 (Ala. Crim. App. 1995). The Alabama Supreme Court remanded Jackson's case for the circuit court to hold an evidentiary hearing on the admissibility of Jackson's statements to police. See Ex parte Jackson, 836 So. 2d 973 (Ala. 2001). The Supreme Court affirmed Jackson's convictions and sentence on return to remand. See Ex parte Jackson, 836 So. 2d 979 (Ala. 2002). The United States Supreme Court denied certiorari review. See Jackson v.Alabama, 537 U.S. 1031 (2002). This Court issued its certificate of judgment on May 31, 2002.
In 2003, Jackson filed a postconviction petition attacking his capital-murder conviction and death sentence. In 2004 and 2006, Jackson filed amended petitions. The second amended petition raised claims of juror misconduct. Jackson alleged that a juror visited the crime scene, that jurors performed outside experiments, and that jurors failed to disclose information during voir dire examination. The State asserted that Jackson's claims of juror misconduct were procedurally barred under Rules 32.2(a)(3), and (a)(5), Ala. R. Crim. P. The circuit court summarily dismissed the petition as precluded. Jackson appealed to this Court. In November 2009, we remanded this case to the circuit court in light of the Alabama Supreme Court's decision in Ex parte Burgess, 21 So. 3d 746 (Ala. 2008), for that court to consider whether Jackson's claims of juror-misconduct were in fact procedurally barred and, if not, to hold an evidentiaryhearing on this claim. See Jackson v. State, [Ms. CR-06-1026, November 13, 2009] __ So. 3d __ (Ala. Crim. App. 2009).1
The facts surrounding Jackson's conviction are essential to evaluate the claims raised by Jackson on appeal. The circuit court set out the following facts in its order sentencing Jackson to death:
"The events which led to Moore's homicide started April 24, 1997, and were unrelated to Moore. On that evening, 'Cocomo' slapped Jackson at a nightclub. The next day, April 25, Jackson determined to look for Cocomo and the tendencies of the evidence are that Jackson intended to do Cocomo physical injury, should he be found.
"Jackson did not have a car. He approached Antonio Barnes about stealing a car for him. Barnes readily agreed, and Barnes and Jackson solicited 'Wendel' to drive them to Brookview Apartments, where Jackson and Barnes stole Ms. Flowers' car. Barnes actually broke into the car and Jackson stood lookout.
"Jackson, Barnes, Eric Williams, and Christopher Rudolph then commenced the search for Cocomo. Jackson was armed with a .380 caliber semiautomatic pistol; Barnes was armed with a .357 magnum handgun; Rudolph was armed with a 9 millimeter pistol; andWilliams was armed with a shotgun. The search for Cocomo was futile; however, near the Smiley Court housing neighborhood, they saw Moore driving his car. Williams told the group that he was familiar with the car and the driver, and that the car had good music. Jackson then announced that 'they' were going to rob the people in Moore's car. They stalked Moore until the opportunity presented itself to cut off Moore's car. Jackson passed Moore's car and cut in front of it to stop Moore. The cars collided and Jackson and Williams jumped out as Moore and the passenger in the car, Gerard Burdette, were getting out. At this point, Jackson and Williams fired their weapons. Before firing, however, Jackson said to Moore, 'No need to run, m__f__.' Jackson shot Moore, and Moore ran 100 to 150 yards, at which point he collapsed and died. Jackson drove to where Moore lay, and Jackson's purpose was to rifle through Moore's pockets. Barnes and Williams got into Moore's car and left the scene. They hid the car, and Williams took the stereo from the car. The next day, Jackson wanted to strip the car, and he, Barnes and 'Fido' went to where the car was hidden; however, a Mr. Porterfield interrupted them and they left without stripping the car. On this same day, Williams told Jackson that Moore was dead, to which Jackson replied, 'I don't give a f__, he didn't stay where we stayed at.'
"Jackson turned himself in to the Montgomery Police Department after learning that he was wanted for questioning. He gave three conflicting statements to detectives. In the first statement he denied any knowledge of the event. He later said that he was with Deon driving around looking for Cocomo in a stolen car but had no involvement in the murder. In the final statement he admitted that he was at the scene and armed with a .380 pistol; however, he denied shooting Moore."
Joe Saloom, the State's firearm expert, testified that the bullet recovered from the victim's body was consistent with a bullet fired from a .380-caliber gun. Saloom also testified that the bullet could have also been fired from a 9mm gun.
Jackson is appealing the circuit court's dismissal of his postconviction petition. Rule 32.3, Ala. R. Crim. P., provides: "The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief." Preponderance of the evidence is defined as
"[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other."
Black's Law Dictionary 1220 (8th ed. 2004).
Rule 32.6(b), Ala. R. Crim. P., addresses the pleading requirements in regard to postconviction petitions and provides:
"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."
When addressing the scope of Rule 32.6(b), this Court has stated:
"'Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.' Boyd v. State, 746 So. 2d 364, 406 (Ala. Crim. App. 1999). In other words, it is not the pleading of a conclusion 'which, if true, entitle[s] the petitioner to relief.' Lancaster v. State, 638 So. 2d 1370, 1373 (Ala. Crim. App. 1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R.Crim. P., to present evidence proving those alleged facts."
Boyd v. State, 913 So. 2d 1113, 1125 (Ala. Crim. App. 2003).
Moreover,
"'[T]here exists a long-standing and well-reasoned principle that we may affirm the denial of a Rule 32 petition if the denial is correct for any reason.' McNabb v. State, 991 So. 2d 313, 333 (Ala. Crim. App. 2007). That general rule is limited only by due-process constraints that 'require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment.' Liberty Nat'l Life Ins. Co. v. Universityof Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003). In the context of Rule 32 proceedings, 'the language of Rule 32.3 [placing the burden on the State to plead any ground of preclusion in Rule 32.2] ... has created the narrow due-process constraint discussed in Liberty National, ' McNabb, 991 So. 2d at 334, by making the preclusions in Rule 32.2 affirmative defenses and prohibiting this Court from sua sponte applying those preclusions for the first time on appeal. See Ex parte Clemons, 55 So. 3d 348 (Ala. 2007). Thus, although the preclusions in Rule 32.2 '"apply with equal force to all cases, including those in which the death penalty has been imposed,"' Nicks v. State, 783 So. 2d 895, 901 (Ala. Crim. App. 1999) (quoting State v. Tarver, 629 So. 2d 14, 19 (Ala. Crim. App. 1993)), only if those affirmative defenses are asserted by the State or found by the circuit court may this Court apply them on appeal."
Bryant v. State, [Ms. CR-08-0405, February 4, 2011] So. 3d __, __ (Ala. Crim. App. 2011).
As previously stated, we remanded this case for the circuit court to consider...
