Presley v. State
| Decision Date | 25 February 2005 |
| Docket Number | No. CR-03-0786.,CR-03-0786. |
| Parties | Marcus PRESLEY v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
Richard Izzi, Birmingham; and Denise Young, Tucson, Arizona, for appellant.
Troy King, atty. gen., and Stephen Shows, asst. atty. gen., for appellee.
Marcus Presley appeals from the summary dismissal of the petition he filed pursuant to Rule 32, Ala. R.Crim. P., seeking relief from his capital-murder conviction and sentence of death. We reverse in part and remand for further proceedings.
Presley was convicted for murder made capital because it was committed during a robbery or an attempted robbery, § 13A-5-40(a)(2), Ala.Code 1975. On direct appeal, we affirmed the conviction and sentence, Presley v. State, 770 So.2d 104 (Ala. Crim.App.1999), and the Alabama Supreme Court affirmed this Court's judgment, Ex parte Presley, 770 So.2d 114 (Ala.2000). On September 27, 2001, Presley filed a 206-page petition for postconviction relief. Rule 32, Ala. R.Crim. P.1 The State filed an answer and a motion for partial dismissal, seeking summary dismissal of claims it alleged were precluded or were not pleaded with sufficient specificity, Rule 32.7(d), Ala. R.Crim. P. On December 19, 2001, Presley filed motions for discovery and a motion to proceed ex parte on a request for expert assistance and funds to hire experts. The State filed responses opposing Presley's motions. On January 23, 2002, Presley filed replies to the State's responses, arguing that he was entitled to discovery and to proceed ex parte on his request for funds to hire experts.
The record indicates that on January 2, 2002, the trial court granted the State's motion for a partial dismissal of Presley's Rule 32 petition. The trial court stated in the order that Presley would have the opportunity to plead with more specificity those claims that were dismissed on grounds that they had not been pleaded with sufficient specificity. (C. 352-55, 365, 370.) The case action summary indicates that the order was sent to the State but that it was never served on Presley. (C. 10, 12.) On January 4, 2002, the court denied Presley's motions for discovery, but allowed Presley 14 days to file new discovery requests that contained additional details about the information sought and the claims from the Rule 32 petition that supported each discovery request. (C. 509-11.) On that date the court also denied Presley's motion to proceed ex parte on his request for expert assistance and funds. The order stated that, if Presley petitioned the court for funds for experts, the request had to be linked to specific allegations in the Rule 32 petition. (C. 512.) These orders were never served on counsel for Presley; in fact, Presley's responses to the State's opposition to his requests for discovery and to proceed ex parte on his requests for funds for experts were filed after the trial court denied his motions.2 Even after the court received the (moot) responses to the State's opposition to the request for funds, it did not serve Presley with the orders denying his motions or the order dismissing a majority of the claims in the Rule 32 petition. Obviously, Presley missed the 14-day deadline in which to file any new discovery requests. Because he was not served with the order denying the motion for expert assistance or the order for partial dismissal, he also was unable to avail himself of the opportunity to timely file a new motion for funds for experts that included more specific references to the allegations in his Rule 32 petition or an amended Rule 32 petition.
On November 21, 2002, Presley's attorney wrote to the trial court regarding her recent discovery that neither she3 nor local counsel had been served with the three orders issued in January 2002. Counsel suggested that the problem could be resolved by the trial court's vacating the January 2, 2002, order granting the State's motion for partial dismissal and the January 4, 2002, orders denying Presley's motions for discovery and to proceed ex parte on the request for funds to hire experts. On December 4, 2002, the State filed a letter opposing Presley's request to vacate the orders. The State argued that Presley had "not checked the status of this case for eleven months" and that he wanted "to act as if this failure to prosecute should have no repercussions." (C. 536.) The State further argued that Presley's failure to "discover this order" dismissing the majority of the claims raised in the petition did not invalidate the court's reasoning in dismissing the claims. (C. 537.) The State conceded that a few penalty-phase ineffective-assistance-of-counsel issues remained and suggested that the court set an evidentiary hearing to resolve those claims. On February 25, 2003, Presley filed an extensive motion to set aside the January orders with which counsel had not been served. (C. 548-60.) The motion provided the details regarding the documents that had been filed and the efforts Presley's counsel had undertaken to gain access to the previously entered orders and to have the case action summary corrected. The motion further alleged that the court's failure to serve counsel with the orders prevented him from responding and constituted a denial of due process.
On April 7, 2003, the trial court denied Presley's motion to vacate the January 2 and January 4, 2002, orders. The court allowed Presley 14 days to file new discovery motions. Finally, the court set the case for an evidentiary hearing to be held on May 19, 2003. (C. 17.) Two days later, the trial court amended the order and set a status conference instead of an evidentiary hearing on May 19, 2003.
In April 2003, Presley filed new motions for discovery and for funds to hire experts. The State responded to the motions and requested that the court deny each of Presley's requests. On May 14, 2003, Presley filed a motion to supplement his Rule 32 petition.4 Presley noted that the pleading was filed in conformance with the court's January 2, 2002, order dismissing many of the claims and granting Presley the opportunity to amend the petition to plead anew many of the dismissed claims so that they complied with Rule 32.6(b) Ala. R.Crim. P. Presley requested the court to consider the additional facts alleged in support of the allegations it had previously dismissed and to amend its January 2, 2002, order accordingly. Presley requested, alternatively, that the court grant him a reasonable time to amend his petition with additional facts obtained after the court granted his pending motions for discovery and for expert assistance. On June 9, 2003, the trial court held a status conference. The parties made the court aware that motions for discovery and for expert assistance were pending before it, as were the motions to amend the petition. The State informed the court that it had not filed an answer to Presley's proposed amendment to the petition, and the trial court ordered the response to be filed by June 27, 2003. The court indicated it would not rule on the amended petition until the State responded but wanted to set a date for an evidentiary hearing. (R. 9.) No date was set for a hearing at that time.
On July 16, 2003, the State filed a response to Presley's motion to supplement the petition, denying that the pleading deficiencies had been corrected and requesting the court to deny Presley's request that it reconsider its January 2, 2002, order dismissing many of the claims for relief. (C. 685-701.) On August 4, 2003, Presley filed a reply to the State's response. (C. 702-13.) On October 7, 2003, the trial court denied Presley's motion for discovery, the motion for expert assistance, and the motion to supplement the Rule 32 petition. (C. 716.) The court ordered the State to respond to the "remaining issues" in the Rule 32 petition. Although it had previously conceded that an evidentiary hearing was due to be held, the State, on December 23, 2003, filed a motion to dismiss the remaining claims, all of which alleged ineffective assistance of counsel at the penalty phase of the trial. (C. 721-36.) The State argued in its motion that a majority of the claims were without merit and that others failed to meet the specificity requirements of Rule 32.6(b), Ala. R.Crim. P. On February 10, 2004, Presley filed a response to the State's motion to dismiss. (C. 758-99.) On January 12, 2004, the trial court issued an order dismissing the remaining allegations of the petition. Presley now appeals from the trial court's summary dismissal of his Rule 32 petition.
Although Presley raises several issues in this Court, we need address only one issue at this time. Presley argues that he was denied due process as a result of the trial court's failure to serve him with three significant orders in January 2002, including the order dismissing most of the claims raised in the Rule 32 petition and allowing him 14 days to amend the petition. We are compelled to agree, and we reverse the trial court's judgment because we find significant violations of Presley's due-process rights.
Rule 34.5, Ala. R.Crim. P., provides, "Upon the entry of any order in a criminal proceeding made in response to a motion, other than an order made in open court, the clerk shall, without undue delay, furnish all parties a copy thereof by mail or by other appropriate means approved by the judge." Thus, notice of each of the trial court's orders was required by the Alabama Rules of Criminal Procedure. The lack of notice violated Presley's due-process rights.
In Ex parte Fountain, 842 So.2d 726 (Ala.2001), the Alabama Supreme Court addressed a similar due-process issue that arose when the defendant, Fountain, was not served with the State's brief in the appeal of the summary dismissal of Fountain's Rule 32 petition.5 The Court commented on the importance of due-process rights:
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