Payne v. State
| Decision Date | 25 February 2000 |
| Docket Number | CR-97-2503 |
| Parties | Max Landon Payne v. State |
| Court | Alabama Court of Criminal Appeals |
Appeal from Cullman Circuit Court
(CC-92-179.60)
ON RETURN TO REMAND
On July 9, 1999, we remanded this cause to the circuit court with directions that it address the claims in Payne's Rule 32, Ala.R.Crim.P., petition alleging newly discovered evidence -- in effect allegations of a Brady1 violation and ineffective assistance of appellate counsel.2 Payne v. State, [Ms CR-97-2503, July 9, 1999] ___ So.2d ___ (Ala.Cr.App. 1999).
The circuit court has complied with our directions and on return to remand has filed an order containing a written statement of its reasons for rejecting Payne's allegations of a Brady violation and of ineffective assistance of appellate counsel.
Initially, we note that the circuit court denied Payne's Rule 32 petition on August 10, 1998, stating: "[I]t is, therefore, Ordered, Adjudged and Decreed that the petition filed herein is denied." (C.R. 64.) Although the order seems to grant Payne leave "to amend the petition and/or refile on issues not adjudged as being precluded," we conclude that because the court denied the petition and because Payne filed his notice of appeal on September 21, 1998, removing jurisdiction from the circuit court, Payne was foreclosed from amending the petition. See Rule 32.b, Ala.R.Crim.P.("Amendments to pleadings may be permitted at any stage of the proceedings prior to entry of judgment" (emphasis added)).
Although this Court dismissed Payne's appeal from this order on September 28, 1998, 741 So.2d 480 (Ala.Cr.App. 1998)(table), this Court ordered the appeal to be reinstated on October 26, 1998. Payne filed an amended Rule 32 petition in the circuit court on January 13, 1999. That court, however, did not have jurisdiction because Payne's appeal was pending; therefore, that filing, as well as all subsequent filings, were void. We remanded this cause on July 9, 1999. The record on return to remand indicates that at the evidentiary hearing, the circuit court, upon agreement of both parties, permitted Payne's counsel to present evidence with regard to claims made in the amended petition.
The general rule is that jurisdiction of one case cannot be in two courts at the same time. McKinney v. State, 549 So.2d 166 (Ala.Cr.App. 1989).
Jurisdiction of this cause at the time Payne filed his amended Rule 32 petition rested with this Court. Therefore, the matters addressed with regard to the amended Rule 32 petition cannot be considered by this Court because they were never properly before the circuit court.
Furthermore, even if we could consider the claims raised in the amended Rule 32 petition, we have no means of adequately reviewing those contentions because a copy of the amended Rule 32 petition, which the circuit court mentioned at the evidentiary hearing, was not made a part of the record on return to remand. Thus, our review is limited to Payne's claims of ineffective assistance of appellate counsel and the alleged Brady violation, as pleaded in the original petition filed on February 24, 1998.
Because of the complicated history of the proceedings and rulings regarding this Rule 32 petition, we feel compelled to address the numerous complaints by Payne at the evidentiary hearing on remand regarding his inability to conduct discovery.
Payne filed his petition on February 24, 1998. On May 13, 1998, Payne filed a motion for discovery of "institutional records" and files, and a motion for discovery of prosecution files and records. Although these motions essentially list the information sought and do not offer any good cause as to why the discovery was necessary or exactly what Payne believed the information he sought to discover would reveal, the circuit court granted Payne's motions on May 22, 1998. When the circuit court denied Payne's petition on August 10, 1998, it vacated these discovery orders. There is no indication in the record, and Payne has made no representation, that from the time the circuit court ordered discovery (May 22) until the time that it vacated the orders (August 10) Payne made any effort to obtain the information he had requested. We do not believe that the time to begin discovery is after the date set for the hearing to which the discovery items are directed; therefore, we question Payne's diligence in conducting discovery.
Payne appealed the circuit court's denial of postconviction relief and this Court remanded the cause for an evidentiary hearing on July 9, 1999. This Court ordered that due return of the cause be filed within 56 days of issuance of its opinion. See Payne v. State, ___ So.2d at ___. On July 21, 1999, the circuit court set the hearing for August 20, 1999, but the hearing was continued until August 27, 1999. Although Payne filed an application for rehearing with this Court on July 23, 1999, filed an application on August 2, 1999, requesting more time for the evidentiary hearing to be held, and filed a supplemental motion for more time on August 10, 1999, Payne did not file a motion for discovery with the circuit court. We note that although in his application for rehearing and his motions to this Court, Payne represented that as of the dates on the filings, he had been "unable to conduct basic discovery, take depositions, review defense counsel's trial and appellate file, or review of any portion of the State's trial file," Payne made no efforts to obtain the discovery other than the original request he made on May 13, 1998.
On August 16, 1999 -- four days before the original evidentiary date scheduled for the hearing and after representations about discovery had been made to this Court -- Payne filed a motion for discovery, while this case was on remand in the circuit court. In light of Payne's lack of diligence in conducting discovery, we seriously question the timeliness of Payne's discovery request and his efforts to conduct discovery while his case was on remand. If Payne had moved the circuit court for discovery when this Court remanded the case, he could have been conducting discovery from July 9.
It does appear from the record that Payne's counsel made efforts to obtain the prosecutor's file a week before the hearing. However, there was some confusion, and the file was not released until just before the hearing. The record further indicates that when the state realized the problem it tried to make arrangements for Payne's counsel to review the file, but Payne's counsel, who was from Iowa, had already left town. Additionally, we note that while hearing argument from Payne's counsel about his not having received a report from Dr. Lawrence Maier,3 the circuit court elicited an admission from Payne's counsel that he had not requested that a subpoena be issued to Taylor Hardin Medical Unit for Payne's medical records, which would have included a copy of Dr. Maier's report. Thus, while it appears from the record that Payne had time, which we acknowledge may have been limited, during which he could have conducted discovery, Payne did not make a good faith effort to do so.
Furthermore, as did the circuit court, we reject the following argument by Payne:
(R. 24-25.) While we believe that it was serendipitous that the Supreme Court released Ex parte Land, [Ms. 1971816, August 6, 1999], ___ So.2d ___ (Ala. 1999), in August, Payne's efforts to conduct discovery were at most minimal. Unlike the circumstances in Land, where the circuit court had denied discovery, the circuit court here granted Payne broad discovery from an extremely general motion. The court's orders granting discovery were effective for over two months before they were vacated. Payne, however, did not take advantage of the circuit court's order and made little, if any, effort to pursue discovery during the two months before the circuit court's denied his petition and vacated the discovery orders or while the case was pending on remand in the circuit court. Furthermore, because Payne did have access to the prosecutor's file, and his jail records, as well as some of his institutional records even though his time for review was limited, we conclude that Payne was not denied discovery.
Finally, Payne claims that the circuit court erred in denying his motion for funds for a mental health expert. We have previously rejected a similar argument. See Ford v. State, 630 So.2d 111 (Ala.Cr.App. 1991), aff'd 630 So.2d 113 (Ala. 1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994).
Brown v. State, [Ms. CR-98-0343, October 11, 1999] ___ So.2d ___ (Ala.Cr.App. 1999). Moreover, it is well settled that "[i]f the circuit judge has personal knowledge of the facts underlying the allegations in the [Rule 32] petition, he may deny the petition without further proceedings so long as he states the reasons for the denial in a written order." Sheats v. State, 556 So.2d 1094, 1095 (Ala.Cr.App. 1989). The judge in this Rule 32 proceeding, Judge Robert Austin, also presided over Payne's trial. We recognize that Judge Austin was in a much better position than this Court to consider Payne's claims because of his personal knowledge...
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