Clemons v. StateClemons v. State
Eugene Milton Clemons II appeals the circuit court’s summary dismissal of his successive postconviction petition filed pursuant to Rule 32, Ala. R.Crim. P., in which he challenged his 1994 conviction for murder made capital because it was committed during the course of a robbery, see § 13A-5-40(a)(2), Aa.Code 1975, and his sentence of death. On December 20, 1996, this Court affirmed Clemons’s conviction and sentence of death. On January 16, 1998, the Alabama Supreme Court also affirmed Clemons’s conviction and sentence. Thereafter, on September 10, 1998, this Court issued the certificate of judgment.
“In December 1999 or January 2000, [Clemons] filed [his first] Rule 32 petition, challenging his conviction and sentence.” Clemons v. State,
“Clemons appealed the denial of his Rule 32 petition to [this Court].” Ex parte Clemons,
On return to remand, this Court affirmed the circuit court’s judgment. In doing so, this Court affirmed the circuit court’s determination that Clemons is not mentally retarded. This Court also sua sponte held that Clemons’s ineffective-assistance-of-counsel claims were procedural
On May 4, 2007, the Alabama Supreme Court issued an opinion reversing the portion of this Court’s judgment that sua sponte raised the procedural bars contained in Rule 32.2, Ala. R.Crim. P. Ex parte Clemons,
On November 2, 2007, this Court, in an unpublished memorandum, affirmed the circuit court’s rejection of Clemons’s inef-feetive-assistance-of-counsel claims. On August 13, 2010, the Alabama Supreme Court denied Clemons’s petition for writ of certiorari, and this Court issued its certificate of judgment.
On August 16, 2010, Clemons filed a successive Rule 32 petition. (C. 12.) In this petition, Clemons alleged that his “jury did not hear and was therefore unable to consider and give effect to his mitigating evidence of low intelligence and mental retardation”; therefore, he is entitled to relief under the Supreme Court of the United States’ decisions in Tennard v. Dretke,
On September 15, 2010, the State of Alabama answered Clemons’s Rule 32 petition and moved the circuit court to summarily dismiss his claim. In its motion to dismiss, the State asserted that Clemons’s claim was procedurally barred under Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because it could have been, but was not, raised at trial or on appeal. The State
In response to Clemons’s assertion that his claim was not successive or untimely because it was based on new law created in Tennard and Smith, the State asserted that these cases did not create new law. According to the State, Tennard and Smith merely applied well established law — that the jury may not be precluded from considering any relevant mitigation— to a new set of facts. The State then argued that because the proposition of law relied upon in Tennard and Smith had been established before Clemons’s trial began and before his previous Rule 32 proceedings began, Clemons’s argument that these two cases excuse the procedural bars contained in Rule 32.2, Ala. R.Crim. P., is without merit.
On December 6, 2010, Clemons filed a reply to the State’s answer and motion to dismiss. In his response, Clemons asserted that his claim was not procedurally barred under any of the provisions of Rule 32.2, Ala. R.Crim. P., and was “plainly meritorious because new Supreme Court precedent establishes that his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated when the jury was not granted an opportunity to hear, and therefore to consider mitigating evidence of his low intelligence .... ” (C. 81-82.) Clemons further argued that the Alabama Supreme Court invited him to raise his claim in a successive Rule 32 petition. To support this assertion, Clemons cited the following portion of the Alabama Supreme Court’s decision on appeal from the denial of his first Rule 32 petition:
“We cannot, however, consider the issue whether the - trial court erred in failing to consider Clemons’s borderline intellectual capacity as a mitigating factor in the sentencing phase of his trial because the issue was not presented to the trial court in Clemons’s Rule 32 petition. See Ex parte Linnell,484 So.2d 455 , 457 (Ala.1986) (‘[T]he rule against raising an issue for the first time at the appellate level applies even if the issue raised would present constitutional questions.’). As to the claims based on Tennard [v. Dretke,542 U.S. 274 (2004),] and Smith [v. Texas,543 U.S. 37 (2004),] Clemons could not have raised such claims under Tennard before the trial court or the Court of Criminal Appeals, because that line of cases had not yet been decided when Clemons’s case was pending in those courts. We are not at liberty to consider claims in a Rule 32 petition that are raised for the first time on appeal. Ex paHe Linnell, supra.
“Whether Clemons may raise any of these issues in a successive Rule 32 petition is not before us. See Rule 32.2(b)(2)[, Ala. R.Crim. P.,] (‘A 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.’). We therefore quash the writ as improvidently granted as to this issue.”
Ex parte Clemons,
On January 18, 2011, the circuit court issued an order summarily dismissing Clemons’s successive Rule 32 petition. In its order the circuit court found that Clemons’s claim was procedurally barred under the following: 1) Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because the claim could have been but was not raised at trial and on appeal; 2) Rule 32.2(b), Ala. R.Crim. P., because the claim was successive; and 3) Rule 32.2(c), Ala. R.Crim. P., because the petition was filed after the applicable time period for filing such a petition had expired.
In his brief on appeal, Clemons provides numerous reasons why he believes that the circuit court improperly dismissed his petition.
I.
Initially, “[w]hen reviewing a circuit court’s denial of a Rule 32 petition, this Court applies an abuse-of-discretion standard.” Shouldis v. State,
Further, “plain-error review does not apply to appeals from rulings on Rule 32, Ala. R.Crim. P., postconviction petitions.” Ex parte Dobyne,
II.
The dispositive issue before this Court is whether the circuit court correctly deter
A.
First, this Court must address Clemons’s argument that in Ex parte Clemons,
“[Ujnder the ‘law of the case’ doctrine, whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” Walden v. ES Capital, LLC,
However, the Alabama Supreme Court has explained that obiter dictum (commonly referred to as dictum or dicta) does not establish the law of the case. Gray v. Reynolds,
Here, the Alabama Supreme Court’s statement relating to Clemons’s ability to raise earlier his Tennard/Smith claim was not essential to its decision to quash certiorari review of that claim. Ex parte Clemons,
Because the Alabama Supreme Court’s statement was obiter dictum and did not establish the law of the case, Clemons’s argument that the circuit court was, and this Court is, bound to hold that Tennard and Smith established new law and that his claim, which he based on those cases, could not have been raised before is without merit. Accordingly, this Court will
B.
Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., provide that “[a] petitioner will not be given relief under this rule based upon any ground, ... [w]hich could have been but was not raised at trial [or] ... on appeal-” Rule 32.2(b), Ala. R.Crim. P., provides, in pertinent part:
“If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of that same trial or guilty-plea proceeding shall be treated as successive petitions under this rule.... A 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.”
Further, under Rule 32.2(c), Ala. R.Crim. P., Clemons was required to file his petition within two years of this Court’s issuance of the certificate of judgment on direct appeal.
There does not appear to be any dispute that absent some excuse, Clemons’s petition would be barred because his claim could have been but was not raised at trial, on appeal, or during his first Rule 32 proceedings. Rules 32.2(a)(3); 32.2(a)(5); 32.2(b), Ala. R.Crim. P. There also appears to be no dispute that absent some excuse, Clemons’s petition was untimely because it was filed well after the two-year time limitation contained in Rule 32.2(c), Ala. R.Crim. P., had expired. Rather, the gravamen of Clemons’s arguments on appeal (and the dispute with the State) concerns whether the circuit court erroneously determined that his claim — a claim asserting that the jury must be allowed to consider low IQ as mitigation— was procedurally barred because that claim was based on new law established by the Supreme Court of the United States in Tennard v. Dretke,
The fatal flaw in Clemons’s argument is that the Supreme Court of the United States did not establish new law in Ten-nard and Smith; instead, it applied well established law to new sets of facts. Again, Clemons alleges that the Supreme Court in Tennard and Smith established that juries must be allowed to consider low IQ as mitigation in a capital-sentencing proceeding and that his claim for relief is
After “it [became] clear from Lockett and Eddings that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant’s background or character or to the circumstances of the offense that mitigate against imposing the death penalty,” Penry I,
‘“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
‘“(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
“ ‘(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.’ Tex.Code Crim. Proc. Ann., Arts. 37.071(b) (Vernon 1981 and Supp. 1989).”
Penry I,
Under this capital-sentencing scheme, Johnny Paul Penry was convicted of capital murder and was sentenced to death. Id. at 308-09. During sentencing, “Penry offered mitigating evidence of his mental retardation and abused childhood as the basis for a sentence of life imprisonment rather than death....” Id. at 320. At trial and during his state appeal, he argued that Texas’s capital-sentencing scheme, with its three sentencing questions and no instruction informing the jury of its duty to consider all his mitigating evidence, violated the Eighth Amendment’s prohibition of cruel and unusual punishment under the Supreme Court’s
In reviewing Texas’s scheme, the Supreme Court of the United States held that evidence of mental retardation and an abusive childhood was mitigating evidence. Id. at 328. It then applied Lockett and Eddings and held that Texas’s capital-sentencing scheme, which failed to provide the jury with an adequate vehicle to consider Penry’s mitigating evidence, violated the Eighth Amendment’s prohibition of cruel and unusual punishments. Id. at 328. Specifically, the Court held that restricting the jury’s consideration to Texas’s three sentencing questions and failing to instruct the jury that it had a duty to consider all of Penry’s mitigating evidence did not provide the jury with an opportunity “to consider and give effect to mitigating evidence relevant to [Penry’s] character or record or the circumstances of the offense,” in violation of the Eighth Amendment. Id. at 327-28. The Court explained that its “reasoning in Lockett and Eddings thus compels a remand for resentencing so that [the Court does] not risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.” Id. (citations and quotations omitted). In holding that the jury must be allowed to consider evidence of Penry’s mental health and abusive childhood in deciding his sentence, the Court specifically noted that it was not creating a “new rule” of law. Id. at 315.
“Penry was retried in 1990 and again found guilty of capital murder [and sentenced to death]. During the penalty phase, the defense again put on extensive evidence regarding Penry’s mental impairments and childhood abuse.” Penry v. Johnson (“Penry II”),
On appeal, Penry raised the same argument he raised in Penry I. The Supreme Court of the United States held that the jury instruction requiring the jury to consider Penry’s mitigation did not sufficiently connect that mitigation to the three sentencing questions that determined the sentence; therefore, “ ‘[a] reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence’” of mental retardation and an abusive childhood. Id. at 804 (quoting Penry I,
In Tennard v. Dretke,
After Penry I and Penry II were decided, Texas revised its sentencing scheme and, under the new scheme, Tennard’s jury was instructed to answer two sentencing questions. Id. at 278-79. Neither of the two sentencing questions allowed the jury to consider and to give effect to Ten-nard’s mitigating evidence indicating that he had a low IQ. Id. at 288-89. The Fifth Circuit Court of Appeals held that the failure to provide the jury with a vehicle to consider Tennard’s mitigation was not error because Tennard’s mitigating evidence was not “constitutionally relevant mitigating evidence, that is, evidence of a uniquely severe permanent handicap with which the defendant was burdened through no fault of his own, and evidence that the criminal act was attributable to this severe permanent condition.” Id. at 281 (citations and quotations omitted). Therefore, it denied his petition for a COA. Id.
Reviewing the Fifth Circuit’s decision, the Supreme Court held that the Fifth Circuit erroneously created a “constitutional relevance” standard for the admission of mitigation. Id. at 284. The Court then explained that “[rjelevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value”, [i.e.,] evidence ... of such a character that it might serve as a basis for a sentence less than death.” Id. at 284-85, 287 (internal citations and quotations omitted).
Having determined that the Fifth Circuit applied the wrong standard when it reviewed Tennard’s Penry I claim, the Court then looked to the likelihood Ten-nard would succeed on that claim. Id. at 288. The Court held that reasonable jurists could find that the federal district court had wrongly denied Tennard’s Penry I claim because the jury was not provided an opportunity to consider Tennard’s IQ as mitigating evidence; therefore, the Fifth Circuit had erroneously denied Tennard’s request for a COA from the denial of Tennard’s petition for writ of habeas corpus.
In the Texas courts, Smith argued that the sentencing scheme and jury instructions under which he was sentenced to death violated the Eighth Amendment under the Supreme Court’s holdings in Pen-ry I and Penry II. Id. at 42 — 43. The Texas courts rejected Smith’s Penry claim, applying the same “constitutional relevance” test that the Supreme Court condemned in Tennard,
Against this backdrop, Clemons argues that Tennard and Smith created new law and that he could not have raised his Ten-nard/Smith claim earlier because that line of cases had not been established. Clemons’s argument, however, misplaces the beginning of the line of cases. The line did not, as Clemons asserts, begin with Tennard and Smith. Instead, the line began in 1978 when the Supreme Court issued Lockett v. Ohio, holding that the sentencer in a capital case may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”
For the foregoing reasons, the circuit court did not err by summarily dismissing Clemons’s claim because it was procedurally barred.
III.
Clemons also argues that he is entitled to relief under the Supreme Court of the United States’ decision in Rompilla v. Beard,
In Rompilla, the Supreme Court addressed a claim of ineffective assistance of counsel during the penalty phase of a capital-murder trial. Id. at 377. Clemons, however, did not raise any ineffective-assistance-of-counsel claims in his Rule 32 petition. Further, the only reference to Rompilla in Clemons’s Rule 32 petition appears in the following cryptic footnote:
“Another highly relevant U.S. Supreme Court decision, Rompilla v. Beard,545 U.S. 374 (2005), also was issued while Mr. Clemons’ first Rule 32 petition was already on appeal, and the appellate courts did not address it despite Mr. Clemons’ diligent attempts to highlight the decision. See, e.g., June 23, 2005 Letter from A. Stakes to Clerk of Court of Criminal Appeals. Like Tennard, Rompilla should also be considered now by this Court as intervening precedent that the appellate courts may not have previously considered in light of Ex parte Linnell.”
(C. 21.) This footnote, which appears to simply complain that the appellate courts failed to consider Rompilla, did not actually assert a claim under Rompilla. At most, this footnote urges the circuit court
Because Clemons did not raise any claims of ineffective assistance of counsel in his Rule 32 petition, his argument that he is entitled to relief under Rompilla — an ineffective-assistance-of-counsel case — is not properly before this Court. Therefore, this argument does not entitle Clemons to any relief.
For the foregoing reasons, the circuit court’s judgment is affirmed.
AFFIRMED.
Notes
. During oral argument, counsel for Clemons asserted for the first time that the circuit court erroneously failed to consider evidence of Clemons’s IQ when sentencing him to death. Counsel stated that the Supreme Court of the United States' holdings in Tennard and Smith require the circuit court to investigate and find as mitigating any evidence indicating that a capital defendant has a low IQ. Clemons did not raise this claim in the circuit court. In his Rule 32 petition, he asserted only that the "jury did not hear and was therefore unable to consider and give effect to his mitigating evidence of low intelligence and mental retardation." (C. 20.) Because Clemons’s allegation that the circuit court was required to find and consider mitigating evidence relating to his IQ was not raised in his Rule 32 petition, that claim is not properly before this Court. See Ex parte Clemons,
. "Rule 32.2(c), Ala. R.Crim. P., was amended effective August 1, 2002, to reduce the limitations period from two years to one year; however, for those cases that became final before August 1, 2001, the two-year limitations period applies. See Hyde v. State,
. "In order to appeal [a federal district court's] denial of a federal writ of habeas corpus under 28 U.S.C. § 2254, a petitioner seeking relief from a state-court conviction must obtain a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A)." Finkelstein v. Spitzer,
. This Court notes that when a state court adjudicates the merits of a prisoner’s claim challenging his conviction or sentence, federal courts are prohibited from creating new law applicable to the State when reviewing that claim during habeas proceedings. See 28 U.S.C. § 2254(d)(l)-(d)(2) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." (emphasis added)); cf. Teague v. Lane,
. The Texas courts rejected Smith’s claim before the Supreme Court issued its opinion in Tennard. Smith,
. Because Clemons's claim is procedurally barred, this Court will not address the merits of the claim. This Court notes, however, that Clemons did not present the jury with evidence of his low IQ as mitigation. Accordingly, it is hard to imagine how the State or the circuit court prevented the jury from considering that evidence.
. This Court notes that Supreme Court of the United States did not create new law in Rom-pilla. Instead, it applied law established in Strickland v. Washington,