Bush v. State, No. CR-03-1902 (Ala. Crim. App. 5/29/2009)

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William Bush v. State of Alabama.

No. CR-03-1902.

Court of Criminal Appeals of Alabama.

Decided May 29, 2009.

Appeal from Montgomery Circuit Court (CC-81-1335.60).

WELCH, Judge.

The appellant, William Bush, currently an inmate on death row at Holman Correctional Facility, appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P. In 1981, Bush was convicted of murdering Larry Dominguez during the course of a robbery, defined as a capital offense in § 13A-5-40(a)(2), Ala. Code 1975. The jury unanimously recommended that Bush be sentenced to death. The circuit court followed the jury's recommendation and sentenced Bush to death. Bush's conviction and death sentence were affirmed on direct appeal. See Bush v. State, 431 So. 2d 555 (Ala. Crim. App. 1982), aff'd, 431 So. 2d 563 (Ala.), cert. denied, 464 U.S. 865 (1983).

In 1984, as a result of a federal habeas corpus proceeding, Bush was granted a new trial. Bush was tried a second time and was again convicted of capital murder. We reversed Bush's second conviction based on erroneous jury instructions. See Bush v. State, 523 So. 2d 538 (Ala. Crim. App. 1988).

In 1991, Bush was tried a third time and was again convicted of capital murder. The jury unanimously recommended that Bush be sentenced to life imprisonment without the possibility of parole. The circuit court chose not to follow the jury's recommendation and sentenced Bush to death. Bush's conviction and death sentence were affirmed on appeal. See Bush v. State, 695 So. 2d 70 (Ala. Crim. App. 1995), aff'd 695 So. 2d 138 (Ala. 1997). We issued the certificate of judgment in that appeal on May 7, 1997.

In October 1998, Bush filed a postconviction petition pursuant to Rule 32, Ala. R. Crim. P., in the Montgomery Circuit Court attacking his capital-murder conviction and sentence of death. He filed amended petitions in October 2000 and July 2001. In July 2004, the circuit court entered its final order denying the postconviction petition. This appeal followed.

This Court stated the following facts surrounding Bush's conviction in our opinion on direct appeal:

"The state presented evidence showing that around 3:00 a.m., on July 26, 1981, the appellant and a companion, Edward Lewis Pringle,¹ entered the Majik Market convenience store on Carter Hill Road in Montgomery, Alabama, with the intent to rob the cashier of money to buy drugs. When they entered, two people were in the store: Larry Dominguez, the store clerk, and his friend Tony Holmes. Dominguez was in the restroom. The appellant pointed a pistol at Holmes and forced him toward the restroom at the rear of the store. When Dominguez opened the restroom door, the appellant shot both Dominguez and Holmes. The appellant then returned to the front of the store and attempted unsuccessfully to open the cash register. Dominguez stumbled out of the restroom, and the appellant shot him again. Before departing, the appellant took two bags of `zodiac sign tags' from a rack behind the counter near the cash register. The first shot striking Dominguez passed through his chin, lodging in his neck and severing a large artery. The second shot striking Dominguez entered his right shoulder and passed through his lungs and heart. He died quickly at the scene from the injuries caused by the second shot; however, the injuries sustained as a result of the first shot were potentially fatal. Holmes was shot in the throat and, although seriously injured, he survived. He was able to describe his assailant, the pistol, and the automobile the assailants were driving. He described the automobile as a 1973 white-over-green Chevrolet Monte Carlo and the pistol as a nickel-plated .38 caliber short-barreled special.

"After leaving the Majik Market, the appellant and Pringle drove to a nearby Seven-Eleven convenience store on Narrow Lane Road in Montgomery, arriving there sometime before 4:00 a.m. The appellant entered the store and purchased a package of Kool cigarettes from the clerk, Thomas Adams. After Adams opened the cash register, the appellant forced him into an office area behind the counter and shot him in the neck with the same pistol he had used to shoot Dominguez and Holmes. The shot to Adams's neck shattered his spinal cord and killed him instantly. When the shot was fired, the barrel of the pistol was either touching Adams's neck or within a fraction of an inch of it. The appellant took between $20 to $30 from the cash register, along with a bank bag and checks.

"The appellant made a statement to the police in which he confessed to the crimes. Although in his first statement he claimed that Pringle was the triggerman in both shootings at the Majik Market and that he was the triggerman in the collateral capital offense at the Seven-Eleven store, in his second statement, he admitted that he fired the shots that killed Dominguez and Adams and that wounded Holmes. In assisting the officers in recovering the weapon, the appellant said to Officer R.T. Ward, when the pistol was recovered, `[T]hat's the weapon that was used to shoot all three people.' Ballistic tests of the pistol — a nickel-plated .38 caliber short-barreled special — proved that it was the pistol that fired the shots in the commission of the three crimes."

695 So. 2d at 81-82.

Standard of Review

Bush appeals the circuit court's denial of his Rule 32, Ala. R. Crim. P., petition. "The standard of review this Court uses in evaluating the rulings made by the trial court is whether the trial court abused its discretion. See Elliott v. State, 601 So. 2d 1118, 1119 (Ala. Crim. App. 1992)." Hunt v. State, 940 So. 2d 1041, 1049 (Ala. Crim. App. 2005).

According to Rule 32.3, Ala. R. Crim. P.: "The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief."

In Boyd v. State, 913 So. 2d 1113 (Ala.Crim.App. 2003), we stated the following concerning a postconviction petitioner's burden of pleading:

"`Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.' Boyd v. State, 746 So. 2d 364, 406 (Ala.Crim.App. 1999). In other words, it is not the pleading of a conclusion `which, if true, entitle[s] the petitioner to relief.' Lancaster v. State, 638 So. 2d 1370, 1373 (Ala.Crim.App. 1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala.R.Crim.P., to present evidence proving those alleged facts."

913 So. 2d at 1125. "The burden of pleading under Rule 32.3 and Rule 32.6(b) is a heavy one. Conclusions unsupported by specific facts will not satisfy the requirements of Rule 32.3 and Rule 32.6(b). The full factual basis must be included in the petition itself." Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim. App. 2006).

We have also stated the following concerning pleading claims alleging ineffective assistance of counsel:

"To sufficiently plead an allegation of ineffective assistance of counsel, a Rule 32 petitioner not only must `identify the [specific] acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,' Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), but also must plead specific facts indicating that he or she was prejudiced by the acts or omissions, i.e., facts indicating `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' 466 U.S. at 694, 104 S.Ct. 2052. A bare allegation that prejudice occurred without specific facts indicating how the petitioner was prejudiced is not sufficient."

Hyde v. State, 950 So. 2d at 356.

I.

Bush first argues that we should vacate his death sentence because the judge in imposing the death penalty disregarded the jury's unanimous recommendation that Bush be sentenced to life imprisonment without the possibility of parole. Specifically, he asserts that the cases of Ex parte Carroll, 852 So. 2d 833 (Ala. 2002), and Ex parte Tomlin, 909 So. 2d 283 (Ala. 2003), require that his death sentence be vacated. He contends that the circuit court failed to give the jury's recommendation the weight that recommendation was entitled to, that in overriding the jury's recommendation the court did not rely on evidence that was not considered by the jury, and that the court failed to explain its decision to disregard the jury's recommendation.² The record shows that in October 2003, Bush filed a motion for resentencing pursuant to the Supreme Court's decisions in Carroll and Tomlin. The State responded that the circuit court could not apply those cases retroactively to Bush's case because his case was final at the time the decisions were released. Apparently, the circuit court treated this motion as an amendment to Bush's Rule 32 petition and denied the motion to resentence.

Section 13A-5-47(e), Ala. Code 1975, commonly referred to as Alabama's judicial-override statute, states:

"In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to Section 13A-5-46(a) or Section 13A-5-46(g). While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court."

The State argues that Carroll and Tomlin should not be applied retroactively to Bush's case because his case is on collateral review. It asserts that the Teague v. Lane, 489 U.S. 288 (1989), standard — new rule can be applied retroactively to cases on collateral...