McLeod v. State

• Decision Date: 08 February 2013
• Docket Number: CR–11–0860.
• Citation: 121 So.3d 1020
• Parties: Jackie MCLEOD v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

121 So.3d 1020

Jackie MCLEOD

v.STATE of Alabama.

CR–11–0860.

Court of Criminal Appeals of Alabama.

Nov. 2, 2012.

Rehearing Denied Feb. 8, 2013.

Jackie McLeod, pro se.

Luther Strange, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.

WINDOM, Presiding Judge.

Jackie McLeod appeals from the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his May 1989 convictions for four counts of unlawful distribution of a controlled substance, see§ 13A–12–211, Ala.Code 1975, and his resulting consecutive sentences of life in prison for each conviction. On August 3, 1990, this Court affirmedMcLeod's convictions and sentences. See McLeod v. State, 581 So.2d 1144 (Ala.Crim.App.1990). On October 30, 1990, this Court issued a certificate of judgment.

On February 3, 2012, McLeod filed a pleading styled “Motion to Vacate Judgment Rendered on May 16, 1989 Pursuant to Rule 60(b)(6) of Alabama Rules of Civil Procedure; and Motion for an Evidentiary Hearing on Motion.” In his motion, McLeod alleged that he was denied a fair trial in violation of the Sixth Amendment to the United States Constitution because: 1) Juror N.M. was influenced by her son, a narcotics agent, to find McLeod guilty; 2) the State failed to disclose to the trial court and to McLeod that it was aware Jurors J.H. and N.M. had failed to disclose information during voir dire; and 3) the empaneled jurors intentionally failed to disclose information during voir dire, and that the State failed to disclose to the trial court and to McLeod that it was aware that the jurors had failed to disclose information during voir dire. ¹ On February 23, 2012, the circuit court, without affording the State an opportunity to respond, treated McLeod's pleading as a Rule 32 petition and dismissed it. The circuit court did not state any reasons for its dismissal.²

On appeal, McLeod reasserts claims (1) and (2). He, however, has not reasserted claim (3) and thus has abandoned that claim. Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995). Further, he has improperly raised a number of issues for the first time on appeal, and those issues are not properly before this Court. Chambers v. State, 884 So.2d 15, 19 (Ala.Crim.App.2003). Thus, whether the circuit court correctly dismissed claims (1) and (2) is the only issue properly before this Court.

In its brief on appeal, the State asserts, for the first time, that the circuit court properly dismissed claims (1) and (2) because those claims were procedurally barred under Rules 32.2(b) and 32.2(c), Ala. R.Crim. P. ³ The State did not have the opportunity to, and thus did not, assert these procedural bars in the circuit court. Therefore, this Court must determine whether the application of those bars has been waived.

The Alabama Supreme Court has held that the procedural bars contained in Rules 32.2(a) and 32.2(c), Ala. R.Crim. P., do not implicate the circuit court's jurisdiction to reach the merits of a petitioner's claim; instead, they are affirmative defenses that will be waived if not raised in the circuit court. See Ex parte Clemons, 55 So.3d 348, 354 (Ala.2007); Ex parte Ward, 46 So.3d 888, 896 (Ala.2007). See also Fox v. State, 50 So.3d 494, 496 n. 1 (Ala.Crim.App.2007) (implicitly holding that Rule 32.2(b), Ala. R.Crim. P., is not a jurisdictional bar to relief). However, a “ ‘[w]aiver is ... the voluntary surrender or relinquishment of some known right, benefit, or advantage,’ ” Stewart v. Bradley, 15 So.3d 533, 543 (Ala.Civ.App.2008) (quoting Waters v. Taylor, 527 So.2d 139, 141 (Ala.Civ.App.1988), citing in turn City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967)), and “ ‘ “will not be implied from slight circumstances....” 29 Am. & Enq. Law, p. 1105.’ ” Ex parte Textron, Inc., 67 So.3d 61, 66 (Ala.2011) (quoting Isom v. Johnson, 205 Ala. 157, 159–60, 87 So. 543, 545 (1920)). Instead, a waiver “ ‘ “must be evidenced by an unequivocal [statement or a] decisive act....” ’ ” Id. Thus, this Court holds that in circumstances when the State is not given an opportunity to respond to a Rule 32 petition before the petition is summarily dismissed, the State has not “evidenced [its intent to waive its affirmative defenses] by an unequivocal [statement or a] decisive act,” and it has not waived the application of the procedural bars. Id.;cf. A.G. v. State, 989 So.2d 1167, 1180, n. 6 (Ala.Crim.App.2007) (recognizing that the State will not be deemed to have waived the application of a procedural bar contained in Rule 32.2, Ala. R.Crim. P., if the State did not have the opportunity to raise that bar in the trial court); Davenport v. State, 987 So.2d 652, 655, n. 4 (Ala.Crim.App.2007) (same).

This Court's conclusion is buttressed by the Alabama Supreme Court's holdings in Ex parte Collins, 84 So.3d 48 (Ala.2010), and Ex parte Collier, 64 So.3d 1045 (Ala.2010). In Ex parte Collins, 84 So.3d at 53, the Alabama Supreme Court held that an inmate's failure to verify his petition for a writ of habeas corpus was a nonjurisdictional, pleading defect that will be waived by the State if not raised in the circuit court. In Ex parte Collier, the Alabama Supreme Court reaffirmed its holding that the “failure to verify a petition for a writ of habeas corpus is a defect [in an inmate's pleading] that clearly can be waived” if not raised in the circuit court. 64 So.3d at 1050. It, however, explained that the State will not be deemed to have waived that defense if the State did not have the opportunity to raise that defense in the circuit court. Id. To support its conclusion, the Alabama Supreme Court recognized that the “State cannot waive an issue [or defense] ... it never had a chance to [raise] in the trial court.” Id. Thus, when the State does not have the opportunity to respond to an inmate's pleading in the circuit court, it will not be deemed to have waived any defenses if those defenses are asserted at the State's first opportunity, i.e., in its brief on appeal. Id. at 1051.

Here, the circuit court dismissed McLeod's Rule 32 petition before the State had an opportunity to respond; therefore, the “State ... never had a chance to [raise the procedural bars] in the trial court.” Id. Because the “State cannot waive an issue [or defense] ... it never had a chance to [raise] in the trial court,” id., it has not waived and may assert the procedural bars for the first time on appeal. Cf. A.G., 989 So.2d at 1180, n. 6;Davenport, 987 So.2d at 655, n. 4. The State has asserted that McLeod's claims are procedurally barred under Rules 32.2(b) and 32.2(c), Ala. R.Crim. P.; therefore, the circuit court's dismissal will be affirmed if either of those procedural bars applies.

In claims (1) and (2), McLeod raised claims relating to juror misconduct and prosecutorial misconduct. Those claims are not jurisdictional and are therefore subject to the procedural bars contained in Rule 32.2, Ala. R.Crim. P. See Jenkins v. State, 105 So.3d 1234, 1239 (Ala.Crim.App.2011); Green v. State, 591 So.2d 576, 578 (Ala.Crim.App.1991). Further, McLeod filed his Rule 32 petition well after the time limitation contained in Rule 32.2(c), Ala. R.Crim. P., had expired. Therefore, McLeod's claims are procedurally barred, and the circuit court's judgment is due to be affirmed.

Accordingly, the judgment of the circuit court is affirmed.

AFFIRMED.

BURKE, J., concurs. JOINER, J., concurs specially, with opinion; WELCH, J., concurs in the result, with opinion; KELLUM, J., concurs in the result.

JOINER, Judge, concurring specially.

I fully concur with the main opinion. I write specially to explain my basis for doing so and to note that, although I think the extraordinary-circumstances analysis Judge Welch proposes in his separate opinion is an excellent approach, I do not think it is necessary in this case.

In A.G. v. State, 989 So.2d 1167 (Ala.Crim.App.2007), this Court discussed the holding in Ex parte Clemons, 55 So.3d 348 (Ala.2007), that absent “extraordinary circumstances” this Court could not sua sponte apply a ground of preclusion to a petitioner's claim. 989 So.2d at 1179. This Court stated in A.G.:

“The opinion in Ex parte Clemons appears to be grounded in due-process principles. The Court noted in Ex parte Clemons that Rule 32.3 places the burden on the State to plead any ground of preclusion but then places the burden on the petitioner to disprove the existence of any preclusion ground asserted by the State. Thus, for a petitioner to satisfy his burden of disproving a preclusion ground asserted by the State, due process requires that a petitioner be given notice of that preclusion ground.”

989 So.2d at 1179.

As the main opinion concludes, the State cannot be said to have waived the grounds of preclusion because it did not have the opportunity to assert them in the circuit court. The first opportunity the State had to assert those grounds was in its brief to this Court, and the State took that opportunity to do so. McLeod was given notice of the preclusion grounds asserted by the State in its brief on appeal. SeeRule 31(b), Ala. R.App. P. (requiring a party to serve a copy of its brief on each party). Further, Rule 28(c), Ala. R.App. P., afforded McLeod the opportunity to file a reply in response to the State's assertion of the preclusionary grounds, but McLeod did not avail himself of that opportunity. In fact, McLeod sent two documents to this Court after the State filed its brief, but neither was a timely reply and neither addressed the State's assertion that McLeod's claims are procedurally barred.

If McLeod had responded to the State's assertion of the grounds of preclusion and if that response had warranted additional fact-finding, the matter could have been remanded to the circuit court for fact-finding as to that issue, including, if necessary, an evidentiary hearing. SeeRule 32.9, Ala. R.Crim. P. See also Ex parte Coleman, 71 So.3d 627, 633 (A...