Riley v. State

• Decision Date: 09 February 2018
• Docket Number: CR–16–0207
• Citation: 270 So.3d 291
• Parties: David Dewayne RILEY v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

270 So.3d 291

David Dewayne RILEY

v.STATE of Alabama

CR–16–0207

Court of Criminal Appeals of Alabama.

February 9, 2018

Rehearing Denied April 20, 2018

Certiorari Denied August 24, 2018

Alabama Supreme Court 1170728

Gregory W. Gardner, Boulder, Colorado; and J.D. Lloyd, Birmingham, for appellant.

Steve Marshall, atty. gen., and Jon B. Hayden, asst. atty. gen., for appellee.

KELLUM, Judge.

David Dewayne Riley appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attacked his capital-murder conviction and sentence of death.

Facts and Procedural History

In 2007, Riley was convicted of murder made capital because it was committed during the course of a robbery. See § 13A–5–40(a)(2), Ala. Code 1975. The jury unanimously recommended that Riley be sentenced to death for his capital-murder conviction,¹ and the trial court followed the jury's recommendation and sentenced Riley to death. On appeal, this Court reversed Riley's conviction and sentence on the ground that the trial court had erred in not instructing the jury that evidence about Riley's prior convictions could not be considered as substantive evidence of guilt but could be used only for the purpose of determining Riley's credibility as a witness. Riley v. State, 48 So.3d 671 (Ala. Crim. App. 2009) (" Riley I"). Riley was retried in 2011 and was again convicted of murder made capital because it was committed during the course of a robbery. The jury again unanimously recommended that Riley be sentenced to death, and the trial court again followed the jury's recommendation and sentenced Riley to death. This Court affirmed Riley's conviction and sentence. Riley v. State, 166 So.3d 705 (Ala. Crim. App. 2013) (" Riley II"). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on November 21, 2014. The United States Supreme Court also denied certiorari review. Riley v. Alabama, 575 U.S. ––––, 135 S.Ct. 2327, 191 L.Ed.2d 991 (2015). The facts of the crime are fully set out in our opinion in Riley II and need not be repeated here.

On November 13, 2015, Riley, acting pro se, timely filed the instant Rule 32 petition, raising numerous claims of ineffective assistance of trial counsel.² He simultaneously filed a motion for the appointment of counsel. On November 19, 2015, the circuit court directed Riley to file an amended petition that complied with the requirements in Rule 32.6(a), Ala. R. Crim. P., specifically, to file an amended petition using the form found in the appendix to Rule 32. On November 20, 2015, the circuit court granted Riley's request for counsel and appointed counsel to represent him (hereinafter "Rule 32 counsel"). On November 23, 2015, Riley, again acting pro se, filed an amended petition; that petition included the form found in the appendix to Rule 32 and asserted the same claims as his original petition.³ That same day, Rule 32 counsel filed a notice of appearance. On December 22, 2015, the circuit court issued an order scheduling an evidentiary hearing on Riley's petition for June 28, 2016. On December 28, 2015, the State filed an answer and a motion to dismiss Riley's petition, arguing that all of Riley's claims were either insufficiently pleaded or meritless. On December 30, 2015, the circuit court issued an order setting the State's answer and motion to dismiss for a hearing at the same time as the previously scheduled evidentiary hearing.

On June 14, 2016, Rule 32 counsel filed a motion to continue the evidentiary hearing scheduled for June 28, 2016. The circuit court granted the motion, and the evidentiary hearing was conducted on July 19, 2016. At the hearing, Rule 32 counsel presented argument regarding some of the claims in Riley's petition and the parties stipulated to the contents of the record from Riley's direct appeal, but Rule 32 counsel presented no other evidence in support of the claims in Riley's petition. At the request of the State, the circuit court permitted the parties to file post-hearing briefs and/or proposed orders, and on August 29, 2016, the State filed a proposed order. At some point not readily discernible from the record, Riley secured new counsel from out-of-state to represent him pro bono (hereinafter "pro bono counsel") and on September 19, 2016, pro bono counsel filed a notice of appearance and a verified application for admission to practice law in Alabama pro hac vice as pro bono counsel for the purpose of representing Riley in the Rule 32 proceedings. The record contains no ruling by the circuit court on pro bono counsel's request for admission pro hac vice.

On September 20, 2016, Rule 32 counsel filed a motion to withdraw on the ground that Riley had secured other counsel to represent him; the circuit court denied the motion. On September 26, 2016, pro bono counsel filed a "Motion for Adequate Opportunity to Litigate Claims in Rule 32 Petition," in which pro bono counsel requested that the circuit court allow Rule 32 counsel to withdraw; continue the Rule 32 proceedings to allow pro bono counsel time to investigate, to file a second amended petition, and to request discovery; and to then allow Riley an opportunity to present evidence at a second evidentiary hearing. (C. 203.) Pro bono counsel argued in the motion that Rule 32 counsel had been ineffective in representing Riley during the Rule 32 proceedings, that a Rule 32 petitioner in Alabama is entitled to the effective assistance of counsel in Rule 32 proceedings, and that, therefore, Riley was entitled to, essentially, restart the Rule 32 proceedings with pro bono counsel representing him. Also on September 26, 2016, Rule 32 counsel filed a second motion to withdraw from representing Riley and a motion for an extension of time to file a response to the State's proposed order. On September 27, 2016, the circuit court issued an order denying pro bono counsel's motion to restart the Rule 32 proceedings, denying Rule 32 counsel's motion to withdraw, and granting Rule 32 counsel's motion for an extension of time. On October 6, 2016, Rule 32 counsel filed a response to the State's proposed order.

On October 13, 2016, the circuit court issued an order denying Riley's Rule 32 petition. The circuit court adopted by reference the findings in the State's proposed order, a copy of which the court attached to its order, and made additional findings regarding two of the claims raised in Riley's petition. The circuit court found that Riley had failed to prove his claims at the evidentiary hearing, had abandoned his claims at the evidentiary hearing by failing to present any evidence, and/or that Riley's claims were meritless. On November 14, 2016, Rule 32 counsel filed a motion to reconsider the circuit court's ruling, arguing that the circuit court had erred in denying Riley's claims of ineffective assistance of counsel, and filed a third motion to withdraw.⁴ That same day, pro bono counsel also filed a motion to reconsider, arguing that the circuit court had erred in adopting the State's proposed order and in not allowing Riley to amend his petition after the evidentiary hearing when, he said, Riley's Rule 32 counsel had been ineffective. The motions to reconsider were denied by operation of law the day they were filed. See Loggins v. State, 910 So.2d 146, 148–49 (Ala. Crim. App. 2005).

Standard of Review

" ‘The burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the State.’ Davis v. State, 9 So.3d 514, 519 (Ala. Crim. App. 2006), rev'd on other grounds, 9 So.3d 537 (Ala. 2007). ‘[I]n a Rule 32, Ala. R. Crim. P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence.’ Wilson v. State, 644 So.2d 1326, 1328 (Ala. Crim. App. 1994). Rule 32.3, Ala. R. Crim. P., specifically provides that ‘[t]he petitioner shall have the burden of ... proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.’ "

Wilkerson v. State, 70 So.3d 442, 451 (Ala. Crim. App. 2011).

"[W]here there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, ‘[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.’ " Boyd v. State, 913 So.2d 1113, 1122 (Ala. Crim. App. 2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala. Crim. App. 1992) ). However, "[w]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). "On direct appeal we reviewed the record for plain error; however, the plain-error standard of review does not apply to a Rule 32 proceeding attacking a death sentence." Ferguson v. State, 13 So.3d 418, 424 (Ala. Crim. App. 2008).

Analysis

I.

Riley contends that the circuit court erred in adopting verbatim the State's proposed order as its order denying his petition. (Issue IV.B. in Riley's brief.) Specifically, Riley argues that the circuit court's adoption of the State's proposed order, in and of itself, establishes that the court's order was not a product of its own independent judgment.

This issue was not properly preserved for this Court's review. Although this issue was raised in pro bono counsel's motion to reconsider, it was not raised in Rule 32 counsel's motion to reconsider. As noted above, the record contains no ruling by the circuit court on pro bono counsel's motion for admission pro hac vice. The Alabama Supreme Court has held that documents filed by a foreign attorney who has not been granted pro hac vice status are a nullity. See Black v. Baptist Med. Ctr., 575 So.2d 1087, 1089 (Ala. 1991). "The general rules of preservation apply to Rule 32 proceedings." Boyd v. State, 913 So.2d 1113, 1123 (Ala. Crim. App. 2003). See also Slaton v. State, 902...