State v. Robey (In re Robey), 1121399

• Decision Date: 02 September 2014
• Docket Number: 1121399
• Parties: Ex parte William Keith Robey (In re: State of Alabama v. William Keith Robey)
• Court: Supreme Court of Alabama

Ex parte William Keith Robey

(In re: State of Alabama v. William Keith Robey)

1121399

SUPREME COURT OF ALABAMA

SPECIAL TERM, 2014

September 2, 2014

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

PETITION FOR WRIT OF MANDAMUS

(Jefferson Circuit Court, CC-95-4454 and CC-95-4455)

PER CURIAM.

PETITION DENIED. NO OPINION.

Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ., concur.

Moore, C.J., and Murdock, J., dissent.

Main, J., recuses himself.

MOORE, Chief Justice (dissenting).

William Keith Robey petitioned this Court for a writ of mandamus to order Judge Alfred Bahakel, Jefferson Circuit Court, to grant Robey's application for in forma pauperis ("IFP") status¹ and to waive prepayment of the filing fee for a Rule 32, Ala. R. Crim. P., petition seeking postconviction relief. This Court today denies Robey's petition. For the reasons stated below, I dissent.

I. Facts and Procedural History

On June 13, 2013, Robey filed his fourth Rule 32 petition accompanied by an application for IFP status. Attached to the application was a report of the activity in Robey's inmate account for the preceding 12 months that showed total deposits of $415 or an average of $34.58 per month. On June 19, 2013, Judge Bahakel summarily denied Robey's application for IFP status. Robey then filed a petition for a writ of mandamus with the Court of Criminal Appeals to compel the circuit court to grant him IFP status. In its order of August 23, 2013,denying Robey's petition, the Court of Criminal Appeals stated:

"Currently, the fee for filing a postconviction petition in the Jefferson Circuit Court is $206. Robey's inmate account summary shows that in the 12 months preceding the filing of the Rule 32 petition he had deposits to his inmate account in the amount of $415. [Robey] could have saved the money to pay the filing fee and is not indigent. See Ex parte Wyre, 74 So. 3d 479, 482 (Ala. Crim. App. 2011)."

Robey then petitioned this Court for a writ of mandamus, arguing that Ex parte Wyre, 74 So. 3d 479 (Ala. Crim. App. 2011), upon which the Court of Criminal Appeals relied in denying his mandamus petition, conflicted with previous cases that determined an inmate's indigency as of the date of the filing of a Rule 32 petition and did not use a retrospective "could-have-saved" rule. See Ex parte Beavers, 779 So. 2d 1223, 1224-25 (Ala. 2000); Ex parte Dozier, 827 So. 2d 774, 776 (Ala. 2002). He also argued that the rule in Wyre denied indigent prisoners access to the courts and was thus unconstitutional. On November 27, 2013, we ordered the circuit judge and the State of Alabama to answer Robey's petition.

Because Judge Bahakel had retired early in 2013, Judge Bill Cole, who assumed Judge Bahakel's docket, responded to our order, stating, in part:

"The undersigned is aware that individuals frequently abuse the privilege of being able to file a Rule 32 Petition. If inmates are allowed to spend any money they receive knowing that they can then file a Rule 32 without cost, they would probably be more willing to file a frivolous Rule 32. These petitions can require the State of Alabama and the judges presiding over the case to spend several hours ruling on an issue that has already been raised or that the petitioner may know is without merit. To abandon any consideration of the amount of money that has been in an inmate's prison account during the last year could cause abuse of the important relief individuals are allowed though Rule 32 of the Alabama Rules of Criminal Procedure."

II. Standard of Review

"A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court." Ex parte McNaughton, 728 So. 2d 592, 594 (Ala. 1998). A trial court's refusal to grant IFP status to an indigent prisoner seeking postconviction relief makes it impossible for the prisoner to file a Rule 32 petition. "[I]n the absence of a docket fee ... or an approved in forma pauperis declaration, the petition for [postconviction] review was never properly before the trialcourt." Goldsmith v. State, 709 So. 2d 1352, 1352-53 (Ala. Crim. App. 1997). Because "refusal of the circuit court to accept a petition is not a final judgment," id. at 1353, the remedy of appeal is unavailable.

Thus, Robey satisfies the third part of the mandamus test: the lack of another adequate remedy. For this reason, "mandamus, and not appeal, is the proper method by which to compel the circuit court to proceed on an in forma pauperis petition." Goldsmith, 709 So. 2d at 1353. Robey properly invoked the jurisdiction of this Court by timely filing a petition for a writ of mandamus directed to the circuit court within 14 days of the decision of the Court of Criminal Appeals. Rule 21(e), Ala. R. App. P. The only issue remaining is whether Robey had a clear legal right to IFP status that the circuit court had an imperative duty to recognize.

III. Analysis

In Wyre, the Court of Criminal Appeals held that an inmate who had "more than twice the amount" necessary to pay a filing fee deposited in his inmate account in the previous 12 months was not indigent and that "an inmate who has appreciably more than the amount necessary to pay a filing feedeposited in his inmate account in the 12 months preceding the filing of an IFP request is not indigent as that term is defined in Rule 6.3(a), Ala. R. Crim. P." 74 So. 3d at 482. The Court of Criminal Appeals in dicta has encouraged trial courts to use the Wyre rule to deny IFP status to Rule 32 petitioners. See State v. Thomas, [CR-10-1401, May 25, 2012] ___ So. 3d ___ n.3 (Ala. Crim. App. 2012); Yocum v. State, 107 So. 3d 219 n.1 (Ala. Crim. App. 2011).

The quantity and often questionable quality of Rule 32 petitions is a valid concern for the judiciary. The Wyre rule, however, is inconsistent with precedent of this Court governing the methodology for determining prisoner indigency. Additionally, alternative remedies are available to effectively deter frivolous Rule 32 filings without closing the courthouse door on prisoners who lack the current means to pay a filing fee.

A. The Volume of Postconviction Litigation

Judge Cole's concern about reducing the number of meritless Rule 32 petitions is valid. "We do not favor continuous, repetitious or frivolous petitions on matters which have been finally adjudicated." Allison v. State, 277Ala. 423, 424, 171 So. 2d 239, 239 (1965). See also Ex parte Coleman, 728 So. 2d 703, 705 (Ala. 1998) ("The barrage of postconviction petitions has caused numerous delays in the judicial process and problems in enforcing judgments.").

The challenge of managing a flood of often questionable prisoner litigation is not new. In 1961, the Alabama Court of Appeals stated:

"We are now receiving a large number of various sorts of documents from prisoners confined in the penitentiaries of this State, seeking extraordinary writs. Apparently encouraged by recent decisions of the Federal courts, they do not hesitate to make the most extravagant claims of deprivation of constitutional rights in their trials in the courts of this State. It is often difficult for the court below and for this court to determine just what relief these documents are seeking, other than the authors want out of the penitentiary."

Warden v. State, 41 Ala. App. 449, 450, 134 So. 2d 783, 784 (1961). This Court, noting that "[f]inality of a criminal judgment and sentence today is as outmoded as the Model-T," expressed concern at the heavy toll this "mockery of our judicial system" exacted. Cooper v. Wiman, 273 Ala. 699, 700, 145 So. 2d 216, 217 (1962).

"The petitioners take great comfort in the fact that no matter how frivolous their allegations or how utterly deficient their pleadings may be, the state must respond to these ofttimes unintelligiblepleadings, letters or memorandums, and/or proceed to costly and time-consuming hearings. The petitioners have nothing to lose, for they know that the very least they can obtain is a day away from their prison surroundings."

273 Ala. at 701, 145 So. 2d at 217.²

B. Determining Prisoner Indigency

Effective January 1, 1991, this Court adopted the Alabama Rules of Criminal Procedure, which defined an indigent as "a person who is financially unable to pay for his or her defense." Rule 6.3(a), Ala. R. Crim. P. An inmate claiming indigency could seek a waiver of the filing fee for a postconviction petition by attaching to the petition an "In Forma Pauperis Declaration." At the time of the adoption of the Alabama Rules of Criminal Procedure, Rule 32.6(a) read as follows, in pertinent part:

"In all such cases, the petition shall also be accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit in any account in the institution, which certificate may be considered by the court in acting upon his application for leave to proceed in forma pauperis."

The appendix to Rule 32 elaborated at paragraph (7):

"If you do not have the necessary fee, you may request permission to proceed in forma pauperis, in which event you must complete the declaration at the end of this form, setting forth information establishing your inability to pay the fees and costs or give security therefor. Your declaration must include financial information relating to the twelve (12) months preceding the filing of this petition."

The IFP declaration requires the inmate...