Miller v. State, CR-08-1413

• Decision Date: 08 July 2011
• Docket Number: CR-08-1413
• Parties: Alan Eugene Miller v. State of Alabama
• Court: Alabama Court of Criminal Appeals

Alan Eugene Miller

v.State of Alabama

CR-08-1413

ALABAMA COURT OF CRIMINAL APPEALS

Dated: July 8, 2011

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

OCTOBER TERM, 2010-2011

Appeal from Shelby Circuit Court

(CC-99-792.60)

KELLUM, Judge.

The appellant, Alan Eugene Miller, an inmate on death row at Holman Correctional Facility, appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P.

In June 2000, Miller was convicted of capital murder in connection with the deaths of Lee Michael Holdbrooks, Christopher S. Yancy, and Terry Lee Jarvis. The murders were made capital because they were committed "by one act or pursuant to one scheme or course of conduct." See § 13A-5-40(a) (10), Ala. Code 1975. Following the penalty phase of Miller's trial, the jury recommended, by a vote of 10-2, that Miller be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Miller to death.

This Court affirmed Miller's conviction and sentence on direct appeal. See Miller v. State, 913 So. 2d 1148 (Ala. Crim. App. 2004). The Alabama Supreme Court denied certiorari review on May 27, 2005, and this court's certificate of judgment was issued that same day. The United States Supreme Court subsequently denied certiorari review in January 2006. Miller v. Alabama, 546 U.S. 1097 (2006).

On May 19, 2006, Miller, through counsel, filed a timely Rule 32 petition in the Shelby Circuit Court. The State answered Miller's petition. On April 4, 2007, Miller filed the amended Rule 32 petition that is the subject of this appeal, in which he reasserted and expanded the claimsasserted in his original Rule 32 petition. In the amended petition, Miller claimed, among other things, that he received ineffective assistance of trial and appellate counsel.

On April 18, 2007, the State filed an answer and a motion to dismiss Miller's amended petition, and Miller responded. Following a hearing on the State's motion to dismiss, the circuit court entered a written order dismissing all Miller's claims, except his claims of ineffective assistance of appellate counsel.

On February 11-14, 2008, an evidentiary hearing was conducted on Miller's claims of ineffective assistance of appellate counsel. Miller presented the testimony of the following witnesses: Mickey Johnson, Miller's trial counsel; Dr. Charles Scott, the psychiatrist retained to evaluate Miller before trial; Barbara Miller, Miller's mother; George Carr, Jr., Alicia Sanford, Cheryl Ellison, Samuel Brian Miller, Richard Miller, and Jacob Connell, various Miller family members; and Dr. Catherine Boyer, Miller's psychologist for his Rule 32 proceeding. The State presented the testimony of Dr. Harry McClaren, another psychologist who examined Miller before trial who reviewed additional documents for theRule 32 proceedings, and Ronnie Blackwood, Miller's other trial counsel.¹ Because more time was needed to present evidence, the hearing had to be continued.

The evidentiary hearing resumed on August 6, 2008. Miller presented the testimony of his appellate counsel, Billy Hill. The State presented the testimony of Miller's other appellate counsel, Haran Lowe.

Following the evidentiary hearing, counsel for the respective parties submitted post-hearing briefs for the circuit court's consideration. On May 5, 2009, the circuit court denied Miller's petition in a 157-page order. Miller subsequently filed an objection to the court's order, which the circuit court denied. This appeal followed.

In the original opinion affirming Miller's conviction and death sentence, this Court set out the facts of the crime. See Miller, 913 So. 2d at 1154-57.

Standard of Review

"'Postconviction relief is even further removed from the criminal trialthan is discretionary direct review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature. See Fay v. Noia, 372 U.S. 391, 423-424, 83 S.Ct. 822, 841, 9 L.Ed. 2d 837 (1963) . It is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief....'

"Pennsylvania v. Finley, 481 U.S. 551, 556-57, 107 S.Ct. 1990, 95 L.Ed. 2d 539 (1987).

"'[P]ostconviction state collateral review itself is not a constitutional right, even in capital cases. Murray v. Giarratano (1989), 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed. 2d 1; Pennsylvania v. Finley (1 987), 481 U.S. 551 , 107 S.Ct. 1990, 95 L.Ed. 2d 539. A postconviction proceeding is not an appeal of a criminal conviction, but, rather, a collateral civil attack on the judgment. See State v.Crowder (1991) 60 Ohio St 3d 151 573 N.E. 2d 652. Postconviction review is a narrow remedy, since res judicata bars any claim that was could, have been raised at trial or on direct appeal '

"State v. Steffen, 70 Ohio St. 3d 399, 410, 639 N.E. 2d 67, 76 (1994)."

James v. State, [Ms. CR-04-0395, March 26, 2010] ___ So. 3d ___, ___ (Ala. Crim. App. 2010) .

According to Rule 32.3, Ala. R. Crim. P., Miller has the sole burden of pleading and proof. 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. The State shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence."

(Emphasis added.) "Preponderance of the evidence" is defined as :

"The 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) .

Though we reviewed the claims on Miller's direct appeal for plain error, the plain-error standard of review does not apply to a postconviction petition attacking a capital-murder conviction and death sentence. See Ferguson v. State, 13 So. 3d 418, 424 (Ala. Crim. App. 2008); Waldrop v. State, 987 So. 2d 1186 (Ala. Crim. App. 2007); Hall v. State, 979 So. 2d 125(Ala. Crim. App. 2007); Gaddy v. State, 952 So. 2d 1149 (Ala. Crim. App. 2006). "In addition, ' [t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.'" Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1 995) . When reviewing the circuit court's ruling on the claims raised in Miller's postconviction petition, we apply an abuse-of-discretion standard. Gaddy, 952 So. 2d at 1154.

Finally, we note that in reviewing Miller's claims in appeal, this Court may take judicial notice of this Court's records from Miller's direct appeal to this Court. Hull v. State, 607 So. 2d 369, 371 n. 1 (Ala. Crim. App. 1992).

I.

Miller argues that the circuit court erred in adopting, with only minor modifications, the State's proposed order denying his Rule 32 petition. (Miller's brief, at 14-18; Miller's reply brief, at 8-11.)

Following the evidentiary hearing on Miller's Rule 32 petition, the parties submitted post-hearing briefs. The State also submitted a proposed order denying Millers' Rule 32 petition, which was essentially a reformatted version of theState's post-hearing brief. Miller filed a reply brief. In his reply brief, Miller did not object to the fact that the State had submitted a proposed order for the court's consideration, nor did he file a proposed order.

On May 5, 2009 -- several months after the submission of the post-hearing briefs and the State's proposed order -- the circuit court entered an order denying Miller's Rule 32 petition. The court's order adopted the State's previously submitted proposed order, with very few modifications. Miller filed an objection to the circuit court's adopting the State's proposed order as its order. The circuit court denied Miller's objection by the following written order:

"The Court denies 'Petitioner's Objection to the Court's Adoption of the State's Legal and Factual Assertions to Deny the Amended Rule 32 Petition.'

"The Court spent many hours carefully listening to the testimony presented in the hearing on the petition. The Court read, and often re-read, each of the submissions offered by the Petitioner and the State. The Court carefully weighed each of the arguments put forth in all the submissions. The Court found none of the Petitioner's arguments persuasive when considered together with the testimony given at the hearing and the argument made by the State. Contrary to the assertions of the Petitioner, case law is clear and unambiguous that adopting in whole or in part an order proposed by the State is not error. Hooks v. State (Ala. Crim. App. 2008).

"For the Foregoing [reasons] the 'Objection' is denied."

(C. 2117; 2131.)

On appeal, Miller reasserts his argument that his due-process rights were violated by the circuit court's adopting the State's proposed order denying his petition for postconviction relief. Miller contends that because the circuit court adopted the State's proposed order, which was filed before the circuit court received Miller's post-hearing reply brief, neither he nor this Court "can have any confidence in the trial court's after-the-fact assurance that it read each of the submissions offered by the parties and [that the court] carefully weighed the arguments...