639 So. 2d 1388 | Ala. Crim. App. | 1993
This is an appeal from the dismissal of a petition for post-conviction relief.
On September 10, 1986, the appellant, Hosea Agee, Jr., was convicted by a Marengo County jury of possession of a forged instrument in the second degree. His conviction and sentence of imprisonment for ten years' were affirmed by this Court without published opinion on October 13, 1987. See Agee v. State,
On June 22, 1990, the appellant filed in federal district court an action under
The Jefferson circuit judge did not rule on the appellant's petition. Instead, on September 18, 1991, he transferred the petition to Marengo Circuit Court. The transcript of the hearing held June 28, 1991, was apparently included in the transfer and it is part of the record before this Court. On October 1, 1991, the Marengo County District Attorney filed a motion to dismiss the petition in which he asserted that the petition is barred by the two-year limitations period of Rule 32.2(c);3 that the specific allegations of the petition related to newly discovered evidence are precluded by Rule 32.2(c); that "[a]ll matters raised in the petition were raised and properly so in the appeal" and consequently, are precluded by Rule 32.2(a)(4);4 that the specific allegation that the appellant was denied the opportunity to retain trial counsel was refuted by the record; and that "[t]he court before which this petition is filed is the court that conducted the trial and is familiar with the fact[s] and the trial." C.R. 31-32. On April 21, 1993, the Marengo circuit judge summarily dismissed the appellant's petition with the following order:
"Having considered the petition and the motion filed by the State of Alabama and after examining the entire file and the appellate transcript, the court is of the opinion that there is no need to have an evidentiary hearing in this case and that the petition is due to be dismissed. The court finds that the allegations contained in the petition are without merit and do not warrant further hearing. The motion filed by the State is well taken." C.R. 33.
In this case, as in Henderson v. State,
We therefore remand this cause to the Marengo Circuit Court with directions that that court specify the reasons for the dismissal of the petition. The directions we gave to the circuit court in Henderson, with some modifications, are applicable here:
Henderson, 570 So.2d at 880-81."[I]f the circuit court finds that relief is precluded under the [time bar of Rule 32.2(c) or because all the grounds were raised on appeal and are precluded by Rule 32.2(a)(4), it should so state]. If the circuit court is ruling on the merits of the allegation of the petition, that court should so state and include a statement of the documents, evidence, or personal knowledge upon which the court is relying.
"Upon remand, the circuit court is authorized to require a more complete and further response by the prosecutor, conduct [further] hearing[s], or take whatever further action is determined necessary to render a final judgment on the petition."
A return showing compliance with these directions shall be filed in this Court within 42 days of the date of this opinion.
REMANDED WITH DIRECTIONS.
All Judges concur.
"It is possible that each of the grounds for preclusion set forth in Rule 32.2 is mutually exclusive. Contending that Rule 32.2(a)(2) is a ground of preclusion while also contending that Rule 32.2(a)(3) is a ground of preclusion amounts to a factual impossibility, because (a)(2) allows preclusion where the petitioner's assertion was raised or addressed at trial, and (a)(3) allows preclusion where such issue could have been, but was not raised at trial. The petitioner could not have both asserted and not asserted the same issue at trial. The same analysis may be applied to Rule 32.2(a)(4) and (a)(5)." (Emphasis in original.)
The district attorney's response asserted that "all mattersraised in the petition" were raised on appeal. (Emphasis added.) Under Hughley, the State may not also contend that matters raised in the petition could have been but were not raised on appeal.