McMillan v. State

258 So.3d 1154

Calvin MCMILLAN

v.STATE of Alabama

CR–14–0935

Court of Criminal Appeals of Alabama.

August 11, 2017

Rehearing Denied December 8, 2017

Certiorari Denied February 23, 2018

Alabama Supreme Court 1170215

Katherine Chamblee and Patrick Mulvaney, Atlanta, Georgia, for appellant.

Luther Strange and Steve Marshall, attys. gen., and James R. Houts, asst. atty. gen., for appellee.

WELCH, Judge.

The appellant, Calvin McMillan, an inmate on death row at Holman Correctional Facility, appeals the circuit court's summary dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction relief attacking his capital-murder conviction and sentence of death.

In 2009, McMillan was convicted of murdering James Bryan Martin during the course of a robbery. The jury recommended, by a vote of eight to four, that McMillan be sentenced to life imprisonment without the possibility of parole. The circuit court chose not to follow the jury's recommendation and sentenced McMillan to death. This Court affirmed McMillan's conviction and sentence of death on direct appeal. See McMillan v. State, 139 So.3d 184 (Ala. Crim. App. 2010). On August 23, 2013, this Court issued its certificate of judgment.

In August 2014, McMillan filed a timely petition for postconviction relief attacking his capital-murder conviction and death sentence. He filed an amended petition in December 2014 and an amendment to one claim in his petition in February 2015. In March 2015, the circuit court issued a 72–page detailed order summarily dismissing all the claims in McMillan's amended postconviction petition. This appeal followed.

On direct appeal, this Court set out the following facts surrounding McMillan's conviction:

3245 "The State's evidence tended to show that on August 29, 2007, Calvin McMillan and Rondarrell Williams drove to the Wal–Mart discount retail store in Millbrook in a white Nissan Sentra automobile belonging to Williams's girlfriend, in order for McMillan ‘to get him a ride’ (R. 1046.) Williams testified that he knew that McMillan had a gun. The men parked the vehicle by a truck on the outskirts of the parking lot and Williams went into the Wal–Mart store. He purchased some speakers and returned to the vehicle, where McMillan, despite opening and closing the vehicle's front passenger door several times, had remained. After a few minutes, Williams again got out of the vehicle and returned to the store.

"While Williams was in the store, McMillan got out of the vehicle and began walking around the parking lot, eventually standing by the entrance to the store. He subsequently returned to the vehicle and sat in the front passenger seat with the door open. He then got out of the vehicle quickly, wearing a different shirt than he was wearing when he and Williams had entered the parking lot, and approached a man later identified as the victim.

"That same evening, the victim, James Bryan Martin, had driven to the Wal–Mart store in Millbrook following a Montgomery Biscuits minor-league baseball game. He had parked his Ford F–100 pickup truck in the parking lot a few rows from the vehicle driven by Williams and had entered the store. Inside, he had purchased diapers, a Vault brand beverage, and Reese's brand candy. After checking out, he put his bags in his truck.

"The victim was then approached by a man later identified as McMillan. Video surveillance of the parking lot of the Wal–Mart store, which was admitted into evidence as a DVD, shows that Martin walked several feet toward McMillan, and then turned and walked back to his truck. The surveillance video also shows that Martin got into his truck and that a few seconds later the brake lights on the truck came on. The video further shows that McMillan also walked toward Martin's truck, hesitated when another vehicle drove down the aisle, and then, when that vehicle passed, McMillan went to the driver's side door of the truck. The video demonstrates that McMillan appeared to shoot Martin and then pull him out of his truck. Martin collapsed on the concrete and McMillan shot him two more times. McMillan got into the truck and started to drive away. He then placed the truck into park, got out of the truck, and appears to have shot Martin again. At that point, McMillan quickly got back into the truck and sped out of the parking lot. Several witnesses who were present in the parking lot or who were in the entrance of the Wal–Mart store approached the victim and called for help.

"....

"Two disposable cameras were found in the truck. The film from those cameras was subsequently developed[;] one of the pictures was a photograph of McMillan pointing a pistol resembling the murder weapon at the camera, a photograph of a 9mm High Point pistol positioned on a pile of money, another photograph of the pistol placed on a pillow or bedding, and two photographs of McMillan making hand gestures at the camera. There was also a photograph of a closet containing a striped shirt and a camouflage hat that matched the description of the shirt and hat worn by the man who had shot Martin. Among the clothing found in the truck was a black shirt with a neon skull that resembled the shirt worn by the man in Williams's girlfriend's vehicle the first time he had gotten out of the vehicle. The officers also found a pair of black Dickie brand shorts like those worn by the man who shot Martin; in the pocket of those shorts was a 9mm shell casing and a Reese's brand candy wrapper.

"McMillan gave a statement indicating that he had been given a ride to Montgomery in the truck belonging to Martin by a man named Melvin Ingram Browning and that Browning had driven away with McMillan's possessions in the truck. The State introduced evidence at trial indicating that McMillan had a Social Security card for a Melvin Eugene Browning in his wallet. (R. 1240.) Melvin Eugene Browning testified that his wallet had been lost years before this incident and that he was in the Lee County jail at the time of the offense. The State presented evidence to substantiate Browning's whereabouts at the time of the offense."

McMillan, 139 So.3d at 191–93 (footnotes omitted).

Standard of Review

McMillan appeals the circuit court's ruling dismissing a Rule 32, Ala. R. Crim. P., petition. "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." Rule 32.3, Ala. R. Crim. P.

"If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition." Reed v. State, 748 So.2d 231, 233 (Ala. Crim. App. 1999). The plain-error standard of review does not apply when this Court evaluates the denial of a collateral petition attacking a death sentence. See Ex parte Dobyne, 805 So.2d 763 (Ala. 2001), and Rule 45A, Ala. R. App. P. Moreover, the procedural bars in Rule 32, Ala. R. Crim. P., apply to all cases, even those involving the death penalty. Hooks v. State, 822 So.2d 476 (Ala. Crim. App. 2000).

Here, the circuit court summarily dismissed McMillan's petition based on the pleadings. In discussing the pleading requirements related to postconviction petitions, this Court has stated:

"Although postconviction proceedings are civil in nature, they are governed by the Alabama Rules of Criminal Procedure. See Rule 32.4, Ala. R. Crim. P. The ‘notice pleading’ requirements relative to civil cases do not apply to Rule 32 proceedings. ‘Unlike the general requirements related to civil cases, the pleading requirements for postconviction petitions are more stringent....’ Daniel v. State, 86 So.3d 405, 410–11 (Ala. Crim. App. 2011). Rule 32.6(b), Ala. R. Crim. P., requires that full facts be pleaded in the petition if the petition is to survive summary dismissal See Daniel, supra. Thus, to satisfy the requirements for pleading as they relate to postconviction petitions, Washington was required to plead full facts to support each individual claim."

Washington v. State, 95 So.3d 26, 59 (Ala. Crim. App. 2012).

"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 for the claim must be included in the petition itself. If, assuming every factual allegation in a Rule 32 petition to be true, a court cannot determine whether the petitioner is entitled to relief, the petitioner has not satisfied the burden of pleading under Rule 32.3 and Rule 32.6(b). See Bracknell v. State, 883 So.2d 724 (Ala. Crim. App. 2003)."

Hyde v. State, 950 So.2d 344, 356 (Ala. Crim. App. 2006).

"An evidentiary hearing on a coram nobis petition [now Rule 32 petition] is required only if the petition is ‘meritorious on its face.’ Ex parte Boatwright, 471 So.2d 1257 (Ala. 1985). A petition is ‘meritorious on its face’ only if it contains a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the facts relied upon (as opposed to a general statement concerning the nature and effect of those facts) sufficient to show that the petitioner is entitled to relief if those facts are true. Ex parte Boatwright, supra ; Ex parte Clisby, 501 So.2d 483 (Ala. 1986)."

Moore v. State, 502 So.2d 819, 820 (Ala. 1986).

"[A] circuit court may, in some circumstances, summarily dismiss a postconviction petition based on the merits of the claims raised therein. Rule 32.7(d), Ala. R.Crim. P., provides:

" ‘If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition. Leave to amend shall be freely granted. Otherwise, the court shall direct that the proceedings continue and set a date for

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