Siebert v. State

• Decision Date: 30 December 1999
• Citation: 778 So.2d 842
• Parties: Daniel Lee SIEBERT v. STATE.
• Court: Alabama Court of Criminal Appeals

778 So.2d 842

Daniel Lee SIEBERT v. STATE.

CR-98-0868.

Court of Criminal Appeals of Alabama.

December 30, 1999.

Lajuana Sharonne Davis, Montgomery; and Jeffrey Glen, New York City, New York, for appellant.

Bill Pryor, atty. gen.; and Jeremy W. Armstrong and James R. Houts, asst. attys. gen., for appellee.

COBB, Judge.

Daniel Lee Siebert appeals from the circuit court's denial of his two petitions for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P. The petitions, which the circuit court consolidated for review, challenged two capital murder convictions and sentences of death by electrocution.

On September 11, 1986, the Talladega County grand jury returned two indictments against Daniel Siebert, each charging capital murder. One indictment concerned the deaths of Siebert's 24-year-old hearing-impaired girlfriend, Sherri Weathers, and her two sons, five-year-old Chad Weathers, and four-year-old Joseph Weathers. The other indictment concerned the death of Sherri Weather's hearing-impaired friend and next door neighbor, Linda Jarman.¹ On March 19, 1987, Siebert was convicted in the Talladega County Circuit Court for the capital murder of Linda Jarman (hereinafter referred to as "the Talladega County case"). This murder was made capital because it occurred during the course of a robbery, § 13A-5-40(a)(2), Ala.Code 1975. On April 17, 1987, the trial court followed the jury's recommendation and sentenced Siebert to death.

Because of the pretrial publicity the trial court granted Siebert's motion for a change of venue as to the charges contained in the indictment charging Siebert with the killing of the Weathers family. Thus, Siebert's capital prosecution for the murder of Sherri Weathers and her two young sons was transferred to Lee County. (That case is hereinafter referred to as "the Lee County case.") Judge William C. Sullivan, who presided over the Talladega County case, also presided over the Lee County case. On June 18, 1987, Siebert was convicted of murder made capital pursuant to § 13A-5-40(a)(10), Ala.Code 1975, because two or more persons were murdered pursuant to one scheme or course of conduct. On August 19, 1987, following the jury's recommendation, the trial court sentenced Siebert to death by electrocution.

The Alabama Court of Criminal Appeals affirmed the conviction and the sentence in the Lee County case. Siebert v. State, 555 So.2d 772 (Ala.Cr.App.1989). The Alabama Supreme court affirmed the conviction, Ex parte Siebert, 555 So.2d 780 (Ala. 1989), and the certificate of final judgment was issued on January 3, 1990. The United States Supreme court denied certiorari review. Siebert v. Alabama, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990). Siebert's conviction and death sentence in the Talladega County case was affirmed on direct appeal in Siebert v. State, 562 So.2d 586 (Ala.Cr.App.1989). The Alabama Supreme court affirmed the conviction, Ex parte Siebert, 562 So.2d 600 (Ala.1990), and the certificate of judgment was issued on May 22, 1990. The United States Supreme Court denied certiorari review. Siebert v. Alabama, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 408 (1990).

Siebert filed a Rule 32 postconviction petition in each case, seeking relief from his convictions and sentences of death. Judge Sullivan presided over the Rule 32 proceedings. The petitions were filed in Lee County on June 30, 1992, and in Talladega County on August 25, 1992. Numerous claims were presented in each petition. The prosecution filed answers to these petitions on October 14, 1992 (the Talladega County case), and on July 27, 1992 (the Lee County case). Siebert's petitions were consolidated for an evidentiary hearing. Siebert subsequently filed amendments to both petitions on March 29, 1995, and the circuit court accepted the amendments. The hearing on the petitions began on April 3, 1995, and continued through April 5, 1995. The prosecution filed a written response to the amended petitions on April 4, 1995. In this amended response, the prosecution requested for the first time that the petitions be denied pursuant to Rule 32.2(c) because the two-year limitations period allowed for filing a Rule 32 petition had expired. Out of an abundance of caution, the circuit court continued to hear Siebert's arguments. Additional evidence was received by the circuit court on September 26, 1995, and on January 21, 1997. The prosecution submitted an 87 page memorandum opinion to the circuit court with proposed findings of fact and conclusions of law disposing of the claims in the petitions as procedurally barred, but nonetheless also disposing of these claims on their merits. On December 29, 1998, after considering all the evidence and independently evaluating each claim, the circuit court adopted the State's proposed memorandum opinion as its final judgment, denying Siebert the relief requested in his petitions.

The attorney general argues on appeal that the circuit court should not have addressed at the Rule 32 hearing the procedurally barred claims on the merits. See, State v. Whitley, 665 So.2d 998 (Ala.Cr. App.1995). We agree. Because almost every claim Siebert presents is procedurally barred, we decline to address the circuit court's ruling insofar as it discusses the merits of his claims. Whitley, supra.; ("The State argues on appeal that the trial court should never have addressed the merits of the juror's failure to answer the voir dire question because this ground was procedurally barred. We agree with the State that this ground should have been, but was not, raised on appeal and it is therefore precluded under Rule 32.2(a)(5), Ala.R.Crim.P." 665 So.2d at 1001). However, we note that pursuant to Rule 45A, Ala.R.App.P., this court searched the entire transcript of each trial on direct appeal for error without regard to preservation or whether it was presented on appeal. Nothing was found to merit reversal of Siebert's conviction. Moreover, we also note that we have evaluated the evidence presented at the evidentiary hearing on Siebert's Rule 32 petition, and we conclude that Siebert received a fair trial and that the trial court correctly denied the petition.

The initial issue presented by Siebert on appeal from the denial of his Rule 32 petition is whether the circuit court correctly held that the petitions were barred from postconviction review by Rule 32.2(c) because they were filed beyond the two-year limitations period. Rule 32.2(c) provides that, with certain exceptions, a postconviction petition must be filed within two years from the issuance by the Court of Criminal Appeals of the certificate of final judgment. In cases such as the present case, where a petition is filed requesting certiorari review by the Alabama Supreme Court, the Court of Criminal Appeals issues a final judgment on the date the Alabama Supreme Court completes its certiorari review and issues a final decision in the case. In this case, the certificate of judgment in the Talladega County case was issued on May 22, 1990. Pursuant to Rule 32.2(c), Siebert's petition, filed August 25, 1992, was untimely. The certificate of judgment in the Lee County case was issued on January 3, 1990. Pursuant to Rule 32.2(c), Siebert's petition filed on June 30, 1992, was untimely.

Siebert argues on appeal that his petition should not be barred by the two-year limitations period in Rule 32.2(c) for the following reasons:

1. Rule 32.2(c) is not jurisdictional and failure to comply with it does not require dismissal of Siebert's petition.

a. The form of Rule 32 demonstrates that Rule 32.2(c) is not jurisdictional.

b. Rule 32.2(c) must be timely raised as an affirmative defense.

2. The State waived this affirmative defense by failing to raise it in its first responsive pleading.

3. The limitations period does not begin to run until a defendant's conviction is final, which he says this court has determined to be when the United States Supreme Court denies certiorari.

4. Courts have the discretion in Rule 1.3(b) of the Alabama Rules of Criminal Procedure to enlarge the time for filing a Rule 32 petition.

In every appeal from the denial of post-conviction relief under Rule 32 in a death-penalty case, this court has held that the plain-error rule does not apply in Rule 32 proceedings and that the procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed. Thompson v. State, 615 So.2d 129 (Ala.Cr.App.1992); Cade v. State, 629 So.2d 38, 41 (Ala.Cr. App.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994); Neelley v. State, 642 So.2d 494, 496 (Ala.Cr. App.1993), cert. quashed, 642 So.2d 510 (Ala.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1316, 131 L.Ed.2d 197 (1995); State v. Tarver, 629 So.2d 14, 19 (Ala.Cr.App. 1993); Davis v. State, 720 So.2d 1006, 1013 (Ala.Cr.App.1998); Brownlee v. State, 666 So.2d 91, 93 (Ala.Cr.App.1995); Horsley v. State, 675 So.2d 908 (Ala.Cr.App.1996); Grayson v. State, 675 So.2d 516 (Ala.Cr. App.1995), cert. denied, 519 U.S. 934, 117 S.Ct. 309, 136 L.Ed.2d 225 (1996); Payne v. State, [Ms. CR-97-2503, July 9, 1999] ___ So.2d ___ (Ala.Cr.App.1999); Boyd v. State, 746 So.2d 364 (Ala.Cr.App.1999); Lawhorn v. State, 756 So.2d 971 (Ala.Cr. App.1999); Jones v. State, 753 So.2d 1174 (Ala.Cr.App.1999).

Therefore, Siebert's arguments are not well taken. Claims 1.a. and 1.b., asserting that Rule 32.2(c) is not jurisdictional, were presented for the first time on appeal. Therefore, these claims are procedurally barred from appellate review. Wilkerson v. State, 686 So.2d 1266, 1277 (Ala.Cr.App.1996) ("this claim is procedurally barred from appellate review" because it is raised for the first time on appeal).

Claim 2, asserting that Rule 32.2(c) must be raised as an affirmative defense in the first responsive pleading or it is waived, is without merit. Siebert relies on Howard v. State, 616 So.2d 398 (Ala.Cr.App.1993), and Jackson...