Whitt v. State

• Decision Date: 31 August 2001
• Citation: 827 So.2d 869
• Parties: Randall Lee WHITT v. STATE.
• Court: Alabama Court of Criminal Appeals

827 So.2d 869

Randall Lee WHITT v. STATE.

CR-00-0105.

Court of Criminal Appeals of Alabama.

August 31, 2001.

Rehearing Denied December 14, 2001.

Certiorari Denied February 22, 2002.

Randall L. Whitt, pro se.

Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.

Alabama Supreme Court 1010686.

COBB, Judge.

Randall Lee Whitt appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition seeking postconviction relief from his November 1, 1996, convictions for capital murder and attempted murder and his sentences of life imprisonment without the possibility of parole and life in prison, respectively. Whitt's convictions and sentences were affirmed on direct appeal. Whitt v. State, 733 So.2d 463 (Ala.Crim.App.1998).¹ The certificate of judgment was issued on April 23, 1999. Whitt filed a prior Rule 32 petition presenting a laundry list of claims that included several claims alleging ineffective assistance of trial counsel. The circuit court summarily denied that petition on April 26, 2000. Whitt did not appeal from the denial. The instant petition was deemed filed on July 14, 2000.

Whitt presented two claims in the present petition. Whitt claimed that the trial court did not have jurisdiction to render a judgment or to impose the sentence because, he said, the indictment failed to charge an offense. He also presented numerous claims alleging that appellate counsel on direct appeal had been ineffective for failing to allege numerous instances of ineffective assistance of trial counsel. The State filed a motion to dismiss the petition, and the circuit court issued a written order addressing only Whitt's claim that appellate counsel had been ineffective. The circuit court summarily dismissed the petition, ruling that no purpose would be served by any further proceedings because the petition was procedurally barred pursuant to Rule 32.2(a)(4) (it presented an issue that was raised or addressed on appeal); Rule 32.2(a)(5) (the grounds could have been raised on direct appeal, but were not); Rule 32.2(b) (the petition is successive because all the claims were known to exist at the time that the first petition was filed but the claims were not raised in the first petition); and Rule 32.7(d) (no material fact or law exists which would entitle Whitt to relief).

Whitt claims on appeal:

1) That the circuit court erred in summarily denying the petition without considering petitioner's response to the State's motion to dismiss because, he says, petitioner's claims were meritorious on their face and not subject to summary denial.

2) That the circuit court erred in denying the petition as successive where the State did not assert that the prior petition had been adjudicated on the merits.

3) That the circuit court erred in not accepting the truth of the claims in the petition and not setting the petition for an evidentiary hearing because the State failed to specifically refute the claims.

4) That Whitt is entitled to an evidentiary hearing, he says, on the claims presented in his petition because the State did not refute the claims, the claims were facially meritorious, and the trial court's jurisdiction was challenged.

We do not find that Whitt is entitled to postconviction relief.

I.²

Regarding claims 1, 3, and 4, we note that Rule 32.7(d), A.R.Crim.P., permits the trial court to dismiss the petition "if the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings."

"The circuit court need not require a response from the district attorney before it denies a Rule 32 petition. `Where a simple reading of the petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition without requiring a response from the district attorney.' Bishop v. State, 608 So.2d 345 (Ala.1992) (quoting Bishop v. State, 592 So.2d 664, 667 (Ala.Cr.App.1991) (Bowen, J., dissenting))."

Tatum v. State, 607 So.2d 383, 384 (Ala. Crim.App.1992).

Thus, if from the face of the petition, a circuit court can determine that the petition is precluded, such as where the claims are presented in a successive petition, then a court may summarily dismiss the petition without considering the petitioner's response to the State's motion to dismiss, without requiring the State to specifically refute the claims, and without granting an evidentiary hearing on the claims.

In the present case, the circuit court addressed only Whitt's claim that his appellate counsel was ineffective. The circuit court determined that this claim was procedurally barred because this claim was raised or addressed on appeal, Rule 32.2(a)(4); this claim could have been raised on direct appeal, but was not, Rule 32.2(a)(5); and this petition was a successive petition because all the claims were known to exist at the time that the first petition was filed, but the claims were not raised in the first petition, Rule 32.2(b). The circuit court erred in holding that Whitt's ineffective-assistance-of-appellate-counsel claim was procedurally barred by both Rules 32.2(a)(4) and 32.2(a)(5). Rules 32.2(a)(4) and (5) are mutually exclusive. "[I]t is a factual impossibility" to bar relief because a claim was raised on direct appeal and because it could have been, but was not, raised on direct appeal. Owens v. State, 659 So.2d 977, 978 (Ala.Crim.App. 1994). Moreover, Whitt's first opportunity to raise an ineffective-assistance-of-appellate-counsel claim was in a Rule 32 petition, not on direct appeal; thus, the claim would not be barred by either Rule 32.2(a)(4) or 32.2(a)(5). See, Alderman v. State, 647 So.2d 28, 31 (Ala.Crim.App.1994) (appellant properly raised his claims regarding the ineffectiveness of his appellate counsel in the Rule 32 petition because that was his first opportunity to present the claims to the trial court). Thus, in order to affirm the circuit court's summary dismissal of Whitt's petition, we must determine whether, as Whitt claims on appeal, the circuit court incorrectly ruled that Whitt's ineffective-assistance-of-appellate-counsel claim is procedurally barred because it was presented in a successive petition.

Rule 32.2(b), Ala.R.Crim.P., states:

"The court shall not grant relief on a second or successive petition on the same or similar grounds on behalf of the same petitioner. A second or successive petition on different grounds shall be denied unless the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice."

In response to Whitt's petition, the State asserted, in pertinent part, the following:

"Petitioner's allegations are precluded by Rule 32.2(b) because they are successive. A second or successive petition on the [sic] different grounds shall be denied unless the Petitioner shows ... that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard. The Petitioner admits that he knew of all these claims at the end of his trial, else why would he make an oral motion for a New Trial on the grounds of ineffective assistance of counsel. All of these grounds were either brought up in the petitioner's first Rule 32 motion, direct appeal, or were known to exist at the time that the first Rule 32 motion was filed and therefore should have been filed in that petition. Therefore, the State respectfully submits that the Petitioner's allegation is precluded and must be summarily dismissed pursuant to Rule 32.7(d) because the Petition is successive."

C.R. 87.

Whitt contends on appeal that the State did not argue that Whitt's prior petition had been adjudicated on the merits and that such an argument is a prerequisite to the court's holding a petition successive. In support of his argument, Whitt cites Blount v. State, 572 So.2d 498 (Ala.Crim. App.1990). Blount appealed from the summary denial of what was essentially his third postconviction petition. In his third petition, Blount alleged that he had been denied his constitutional right to effective assistance of his appointed counsel at trial. The State moved for dismissal of the petition on the grounds that it lacked specificity and constituted a successive petition. The trial court entered an order denying the petition, in part, because it was successive within the meaning of Rule 20.2(b) (now Rule 32.2(b)), because Blount had previously filed a petition alleging the same or similar grounds.

In 1990, this Court did not agree with the trial court's denial of Blount's petition on the grounds that the petition was successive under Rule 20.2(b), because, Blount's claims, which were the same or similar to claims asserted in prior postconviction petitions, had never been adjudicated on the merits in any previous petition. In regard to that court's holding, we stated:

"We construe Rule 20.2(b) [now Rule 32.2(b) ] to require that, before a subsequent petition can be deemed successive, a previous petition must have been considered on its merits. In other words, a second or successive petition on the same or similar grounds cannot be deemed procedurally barred unless the same or similar grounds asserted in a prior petition were adjudicated on their merits. In addition, a second or successive petition on different grounds cannot be procedurally barred unless the prior petition was adjudicated on its merits and petitioner shows `both that good cause exists why the new ground or grounds were not known or could not

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