State v. Martin

• Decision Date: 25 September 2009
• Docket Number: CR–07–2011.
• Citation: 56 So.3d 709
• Parties: STATE of Alabamav.George MARTIN.
• Court: Alabama Court of Criminal Appeals

56 So.3d 709

STATE of Alabama

v.George MARTIN.

CR–07–2011.

Court of Criminal Appeals of Alabama.

Aug. 28, 2009.Rehearing Denied Sept. 25, 2009.

Troy King, atty. gen., and Jon B. Hayden, asst. atty. gen., for appellant.Rory M. Hernandez, Raoul Nanda, and John H. Sharer, Los Angeles, California; and Bryan A. Stevenson, Montgomery, for appellee.WISE, Presiding Judge.

On March 10, 2000, George Martin was convicted of capital murder in connection with the murder of his wife, Hammoleketh Jackson Martin. The murder was made capital because he committed it for pecuniary gain. See § 13A–5–40(a)(7), Ala.Code 1975. By a vote of 8–4, the jury recommended that Martin be sentenced to imprisonment for life without the possibility of parole. On July 25, 2000, the trial court overrode the jury's recommendation and sentenced him to death.

This court affirmed Martin's conviction and sentence. See Martin v. State, 931 So.2d 736 (Ala.Crim.App.2003). The Alabama Supreme Court affirmed his conviction, but reversed our judgment as to the sentence of death and remanded the case to this court to allow the trial court to review its override of the jury's sentencing recommendation because it did not treat the jury's sentencing recommendation as a mitigating factor as required by Ex parte Carroll, 852 So.2d 833 (Ala.2002). See Ex parte Martin, 931 So.2d 759 (Ala.2004). On April 29, 2005, we reversed the trial court's judgment as to sentence and remanded the case for the trial court to enter a new sentencing order in which it took into consideration the supreme court's decision in Ex parte Carroll. See Martin v. State, 931 So.2d 774 (Ala.Crim.App.2005). On remand, the trial court again overrode the jury's recommendation and sentenced Martin to death. We affirmed the trial court's judgment as to sentence on return to remand. See Martin v. State, 931 So.2d 774 (Ala.Crim.App.2005) (opinion on return to remand). Martin did not file an application for a rehearing in this court or a petition for a writ of certiorari in the Alabama Supreme Court. This court issued a certificate of judgment on December 12, 2005.

On May 5, 2006, Martin filed a Rule 32 petition, challenging his conviction, and he subsequently amended his petition. After the State responded, the circuit court conducted an evidentiary hearing and entered the following order:

“ ‘When the Court of Criminal Appeals has affirmed a sentence imposing the death penalty, counsel who represented the appellant on the appeal to the Court of Criminal Appeals or successor counsel shall prepare and file in the Supreme Court a petition for a writ of certiorari for review of the decision of the Court of Criminal Appeals....' Rule 39(a)(2)[, Ala. R.App. P.] (emphasis supplied)

“ ‘The filing of an application for rehearing in the Court of Criminal Appeals is a prerequisite to review by certiorari in the Supreme Court, ...’ Rule 39(c)(1)[, Ala. R.App. P.]

“ ISSUE

“The issue before the trial court in this Rule 32 proceeding is whether the Defendant, George Martin's claim of ineffective assistance of counsel can entitle the Defendant to an out-of-time filing for an application for rehearing in the Court of Criminal Appeals and ultimately a petition for a writ of certiorari in The Alabama Supreme Court where, as here, appointed successor appellate counsel for the indigent defendant, George Martin, omitted filing an application for rehearing in the Court of Criminal Appeals after the Court of Criminals Appeals affirmed, on return to remand, the new sentencing order imposing the death penalty.

“ RESOLUTION

“It is the opinion of this trial court pursuant to Rule 3^2.1 of the Alabama Rules of Criminal Procedure, that it has the authority to allow the filing of an out-of-time application for rehearing in the Court of Criminal Appeals as being the proper method ‘... to secure appropriate relief’ on the ground that:

“ ‘(a) The Constitution of the United States or the State of Alabama requires a new trial, a new sentence proceeding, or other relief.’ 3^2.1(a) Alabama Rules of Criminal Procedure. (emphasis supplied)

“This Court is not necessarily proceeding under Rule 3^2.1(f) in fashioning the ‘appropriate relief.’ Rule 3^2.1(f) provides that the Court can allow an out-of-time ‘appeal’ from the conviction or sentence where failure to appeal was without fault on the petitioner's part. To the extent that the word ‘appeal’ as used in Rule 32.1(f) does not include an application for rehearing, this court relies upon 32.1(a) for the granted ‘appropriate relief.’

“ RATIONALE

“This Court is aware of the Court of Criminal Appeals decision in the case of State of Alabama v. Carruth (CR–06–1967) released on May 30, 2008, which held, among other things, the following:

“ ‘For the above-stated reasons, the circuit court erred in granting the appellee permission to file an out-of-time petition for a writ of certiorari in the Alabama Supreme Court. Accordingly, we reverse the Court's Order and remand this case for proceedings that are consistent with this opinion.’

“What was not discussed in the Carruth decision is Rule 39(a)(2)[, Ala. R.App. P.] Nor does the Carruth decision discuss Section 15–12–22, Code of Alabama 1975, as amended, which provides a legislatively created right in all criminal cases for an indigent defendant to receive an appointed counsel on appeal and all levels of State judicial review. Section 15–12–22 provides for payment for services by appointed counsel, to be approved by the appellate court for ‘the appeal and ... any subsequent petition for certiorari’ 15–12–22(d)(1) and (2). The Legislature has also provided for the indigent defendant to have his appointed counsel paid ‘... for all services rendered after the Court of Criminal Appeals overrules the application for rehearing....’ ³

“ United States Supreme Court Decisions

“A. It is uncontroverted that the United States Supreme Court has held that the Fourteenth Amendment to the Constitution of the United States of America does not require a State to provide to a criminal defendant an appellate procedure beyond the first appeal in the State Court system. Neither does the Fourteenth Amendment require a State to provide an indigent defendant with counsel to perfect post first appeal review procedures. However, that does not end the analysis under the Fourteenth Amendment and the Due Process provision of the Alabama State Constitution. Article 1, § 6 Constitution of Alabama 1901. There are two cases which bear heavily on the issue set out above. They are Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), and Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

“ Ross v. Moffitt

“In Ross v. Moffitt the United States Supreme Court held that an indigent defendant who had petitioned for court appointed counsel to prepare a petition for a writ of certiorari to the North Carolina Supreme Court was not entitled to a free lawyer for discretionary review through a petition for a writ of certiorari. In reviewing the North Carolina statute concerning appointed counsel, the U.S. Supreme Court stated as follows:

“ ‘These provisions, although perhaps on their face broad enough to cover appointments such as those respondents sought here, have generally been construed to limit the right to appointed counsel on criminal cases to direct appeals as of right. Thus, North Carolina has followed the mandate of Douglas v. California, supra, and authorized counsel for a convicted defendant appealing to the intermediate Court of Appeals, but has not gone beyond Douglas to provide for appointment of counsel for a defendant who seeks either discretionary review in the Supreme Court of North Carolina or a writ of certiorari here.’ 417 U.S. at 614.

“The opinion in Ross v. Moffitt concludes with this paragraph:

“ ‘We do not mean by this opinion in any way to discourage those States which have, as a matter of legislative choice, made counsel available to convicted defendants at all stages of judicial review. Some States, which might well choose to do so as a matter of legislative policy, may conceivably find that other claims for public funds within or without the justice system preclude the implementation of such a policy at the present time. North Carolina, for example, while it does not provide counsel to indigent defendants seeking discretionary review on appeal, does provide counsel for indigent prisoners in several different situations where such appointments are not required by any constitutional decision of this Court. Our reading of the Fourteenth Amendment leaves these choices to the State, and respondent was denied no rights secured by the Federal Constitution when North Carolina refused to provide counsel to aid him in obtaining discretionary appellate review.’ 417 U.S. at 618, 619.

“However, Alabama's statutory scheme for providing indigent prisoners with counsel does provide for the payment of counsel through not only the first appeal of right, but also the application for rehearing in the Court of Criminal Appeals, the filing of the petition for a writ of certiorari with the Alabama Supreme Court and if granted, payment of counsel for handling the petition for a writ of certiorari before the Supreme Court of Alabama. Thus, Alabama, unlike North Carolina, ‘... as a matter of legislative choice, [has] made counsel available to convicted defendants at all stages of judicial review.’ Ross v. Moffitt, supra, and see § 15–12–22 Code of Alabama 1975, as amended.

“What is lacking from the Ross v. Moffitt decision is a discussion on what happens when the indigent prisoner receives ineffective assistance of appointed counsel at the discretionary review level under a legislatively created system which provides appointed appellate counsel and mandates that in affirmed death penalty cases that counsel prepare and file a petition for a writ of certiorari with the Alabama Supreme Court. It is important to note here that the Alabama...