Ex parte Travis

1

Ex parte Wayne Holleman Travis

In re: Wayne Holleman Travis v. State of Alabama

No. SC-2023-0923

Supreme Court of Alabama

June 21, 2024

Conecuh Circuit Court: CC-92-4.60; Court of Criminal Appeals CR-18-0973

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

PER CURIAM

WRIT DENIED. NO OPINION.

Shaw Wise, Sellers, Stewart, and Mitchell, JJ., concur.

Parker, C.J., and Cook, J., concur in part and dissent in part, with opinions.

Bryan, J., dissents.

Mendheim, J., recuses himself.

PARKER, Chief Justice (concurring in part and dissenting in part).

In 1993, Wayne Holleman Travis was convicted of capital murder for his involvement as an accomplice in the 1991 killing of Clarence Haskew.^[1] Travis petitions this Court for a writ of certiorari to the Court of Criminal Appeals to review that court's opinion affirming the Conecuh Circuit Court's judgment denying Travis's petition for postconviction relief under Rule 32, Ala. R. Crim. P. Travis v. State, [Ms. CR-18-0973, Mar. 24, 2023] __ So.3d __ (Ala.Crim.App.2023). I concur in denying Travis's petition as to all grounds except for one; I would grant his petition to consider whether the Court of Criminal Appeals' holding that Travis failed to preserve for appeal certain allegations of ineffective assistance of counsel conflicts with prior decisions of the Court of Criminal Appeals.

In his Rule 32 petition, Travis asserted several claims of ineffective assistance of counsel, and he alleged several specific instances of ineffective assistance. During the evidentiary hearing on Travis's petition, Travis presented evidence of other specific instances of ineffective assistance that were not included in his petition or in any amendments to the petition. After the hearing, Travis did not amend his petition to allege those specific instances of ineffective assistance. Instead, he argued those new instances in his posthearing brief. The circuit court denied Travis's Rule 32 petition without addressing the instances of ineffective assistance that Travis had asserted for the first time at the evidentiary hearing and in his posthearing brief.

On appeal to the Court of Criminal Appeals, Travis asserted the specific instances of ineffective assistance of counsel that he had asserted for the first time at the evidentiary hearing and in his posthearing brief. That court held that Travis had failed to preserve his arguments regarding those specific instances because Travis had not included them in his Rule 32 petition and had not amended his petition to include them.

In his petition for a writ of certiorari, Travis contends that the Court of Criminal Appeals' decision conflicts with numerous prior decisions of that court, namely, Anglin v. State, 719 So.2d 855, 857 (Ala.Crim.App.1996) (remanding for the trial court to make specific findings of fact regarding "'each material issue of fact presented'" at an evidentiary hearing at which the Rule 32 petitioner asserted new claims of ineffective assistance of counsel (quoting Rule 32.9(d), Ala. R. Crim. P.)); Hawthorne v. State, 992 So.2d 790, 791 (Ala.Crim.App.2007) (remanding for the trial court to make specific findings of fact regarding "any evidence that was presented during the evidentiary hearing"); Smoot v. State, 555 So.2d 307, 307 (Ala.Crim.App.1989) (remanding for the trial court to make findings of fact "on the merits of the allegations raised at the [Rule 32] hearing" (emphasis added)); Davis v. State, 184 So.3d 415, 426 (Ala.Crim.App.2014) (holding that, "[o]nce a circuit court holds [a Rule 32] evidentiary hearing or takes evidence by way of affidavits in lieu of a hearing, ... it is required to enter written findings of fact related to each material issue of law or fact that could entitle the petitioner to relief" (per Burke, J., with one Judge concurring specially and one Judge concurring in the result)); McLin v. State, 840 So.2d 937, 943 (Ala.Crim.App.2002) (refusing to consider claims asserted for the first time on appeal because they had not been raised in the Rule 32 petition, an amendment to the petition, or at the hearing on the petition); Musgrove v. State, 144 So.3d 410, 454 (Ala.Crim.App.2012) (same).

All of those prior decisions seem to indicate that, if a Rule 32 petitioner presents evidence that would entitle him to relief from his conviction or sentence at an evidentiary hearing on his petition, the trial court must address that claim by making written findings of fact. If the trial court has a duty to address an issue, I see no basis for concluding that the issue was not properly before the trial court. Further, McLin and Musgrove strongly indicate that, had the petitioners in those cases raised their claims at the Rule 32 evidentiary hearings, the Court of Criminal Appeals would have considered those claims as properly preserved.

For these reasons, it appears that the Court of Criminal Appeals' holding that Travis failed to preserve his claims may be in conflict with the above-referenced decisions and deserves closer scrutiny by our Court on certiorari review. At the same time, I am concerned that the principles recognized in those cases would give Rule 32 petitioners a means of sandbagging the Rule 32 process by making vague claims in the Rule 32 petition, then springing specific allegations on both the State and the trial court at the evidentiary hearing. The Court of Criminal Appeals' holding in ...