McHarris v. StateMcHarris v. State
The instant petition is McHarris‘s third petition collaterally attacking his 1982 conviction for first degree robbery. His first petition was denied, after a hearing, with the court finding that the matters asserted were “matters which were either raised at trial, on appeal or should have been raised on appeal.” The denial was affirmed on appeal. See McHarris v. State, 467 So. 2d 972 (Ala.Cr.App. 1985). His second petition was dismissed because the petition failed to state an issue that would warrant relief. The circuit court‘s judgment was affirmed by this court, which held that the petition was barred from consideration because it was successive,
However, we do find that a limitations period bars two claims asserted by McHarris in his third petition. The claim of newly discovered evidence — the discovery of the victim‘s alleged suppressed pre-trial inconsistent statement and thereby the discovery that the prosecution had allegedly knowingly used perjured testimony — failed to allege a cognizable ground for relief. McHarris failed to allege that he was filing his petition within six months after the discovery of the alleged newly discovered evidence. Thus, this allegation was procedurally barred by the six-month period of limitations designated for the ground of newly discovered evidence,
McHarris also asserted that the three prior felony convictions used to enhance his punishment for the robbery conviction are void because, he argues, the guilty pleas upon which those convictions rest were not knowing and intelligent and were entered on the same day he gave the court notice of his intent to plead guilty. This contention was not properly before the circuit court. We consider this issue to be a challenge to the validity of McHarris‘s prior convictions.
Crum v. State, 611 So. 2d 495, 496 (Ala.Cr.App. 1992) (emphasis in original).“A Rule 32 petition attacking the appellant‘s most recent (triggering) convictions is not the proper forum in which to challenge the validity of the appellant‘s prior (underlying) convictions. The validity of a prior conviction should be challenged by filing a petition for post-conviction relief from that conviction. Lochli v. State, 565 So. 2d 294, 296 (Ala.Cr.App. 1990). Compare Ex parte Madden, 602 So. 2d 1192 (Ala. 1991) (reaffirming the rule that when a defendant attacks the validity of a prior felony conviction used for purposes of enhancement, the proper forum is a separate Rule 32 petition addressed to that prior conviction).”
McHarris‘s final claim in his petition was that the trial court was without jurisdiction to impose sentence under the Habitual Felony Offender Act because, he argues, the Act is unconstitutional and without force or effect. He specifically argued that the Act was not passed in accordance with
Because we have determined that McHarris‘s petition was properly dismissed, we find the following issues asserted on appeal by McHarris to be without merit: (1) whether the petition is sufficiently specific and states a claim; and (2) whether it presents a material issue of fact or law that would entitle him to relief. We further find that the following issues are not before us: (1) whether McHarris had received a full and fair hearing in 1984 on his first post-conviction petition and whether the manner in which that hearing was held violated his right to due process; and (2) whether the instant petition may be dismissed as being successive or barred by the limitations period where allegedly the hearing on his first petition violated his right to counsel and his right to call witnesses. Finally, we find to be without merit McHarris‘s contention that the preclusion remedies of
Accordingly, the judgment is affirmed.
AFFIRMED.
All Judges concur