McNabb v. State

991 So.2d 313

Torrey Twane McNABB v. STATE of Alabama.

CR-05-0509.

Court of Criminal Appeals of Alabama.

August 31, 2007.

Rehearing Denied December 7, 2007.

M. Bradley Almond, Tuscaloosa, for appellant.

Troy King, atty. gen., and Jasper B. Roberts, Jr., asst. atty. gen., for appellee.

WISE, Judge.

The appellant, Torrey Twane McNabb, appeals the circuit court's summary dismissal of his Rule 32, Ala.R.Crim.P., petition for postconviction relief. On January 7, 1999, McNabb was convicted of two counts of capital murder for the killing of Montgomery Police Officer Anderson Gordon. The murder was made capital because it was committed while Officer Gordon was on duty, see § 13A-5-40(a)(5), Ala.Code 1975, and because it was committed while Officer Gordon was in his patrol car, see § 13A-5-40(a)(17), Ala.Code 1975. McNabb was also convicted of two counts of attempted murder. After a sentencing hearing, the jury recommended, by a vote of 10-2, that McNabb be sentenced to death for his capital-murder convictions. The trial court accepted the jury's recommendation and sentenced McNabb to death for his capital-murder convictions. The trial court also sentenced McNabb to 20 years' imprisonment for each count of attempted murder.

On direct appeal, this Court affirmed McNabb's convictions but remanded the case for the trial court to correct a deficiency in the capital-sentencing order. See McNabb v. State, 887 So.2d 929 (Ala. Crim.App.2001). On February 1, 2002, this Court affirmed McNabb's death sentence on return to remand. McNabb v State, 887 So.2d at 989 (opinion on return to remand). On April 25, 2003, this Court overruled McNabb's application for rehearing. McNabb v. State, 887 So.2d at 994 (opinion on application for rehearing). McNabb petitioned the Alabama Supreme Court for certiorari review. On March 5, 2004, the Supreme Court affirmed the judgment of this court affirming McNabb's convictions and sentences, see Ex parte McNabb, 887 So.2d 998 (Ala.2004), and this Court issued a certificate of judgment on May 25, 2004. Thereafter, McNabb petitioned the United States Supreme Court for certiorari review. On November 29, 2004, the United States Supreme Court denied McNabb's petition for the writ of certiorari. See McNabb v. Alabama, 543 U.S. 1005, 125 S.Ct. 606, 160 L.Ed.2d 466 (2004).

On May 24, 2005, McNabb, with the assistance of counsel, filed a Rule 32 petition in the Montgomery Circuit Court. On June 16, 2005, the State filed an answer to McNabb's petition. On June 21, 2005, McNabb filed a motion seeking discovery of his educational records, any juvenile records pertaining to him, and any records with the Montgomery County Department of Human Resources pertaining to him or assorted family members. On August 11, 2005, the State filed a motion to summarily dismiss the petition. On August 26, 2005, McNabb filed a response to the State's motion to dismiss. On September 30, 2005, the circuit court conducted a hearing on the State's motion for summary dismissal of the petition. On November 8, 2005, the circuit court issued an order granting the State's motion for summary dismissal.¹ On December 7, 2005, McNabb filed a motion to reconsider the dismissal of his petition. On December 13, 2005, the circuit court denied McNabb's motion to reconsider. McNabb filed a timely notice of appeal on December 15, 2005.

I.

McNabb first argues, as he did in his motion to reconsider the dismissal of his petition, that the circuit court erred in adopting the State's proposed order denying postconviction relief.

Initially, we question whether McNabb's argument satisfied the requirements of Rule 28(a)(10), Ala.R.App.P., which requires that an argument contain "the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." Here, although McNabb cites legal authority for the general proposition that there is a heightened need for reliability in capital cases and that courts should be reluctant simply to adopt the prevailing party's proposed findings and conclusions of law, it is well settled that "[a]uthority supporting only `general propositions of law' does not constitute a sufficient argument for reversal." Beachcroft Props., LLP v. City of Alabaster, 901 So.2d 703, 708 (Ala.2004), quoting Geisenhoff v. Geisenhoff, 693 So.2d 489, 491 (Ala.Civ.App.1997). Further his "argument" as to the order in the present case consists of the following:

"Although the circuit court claimed to have thoroughly reviewed the issues before it, it is apparent that the court in fact simply adopted the State's proposed conclusions of law and findings of fact without scrutiny or substantive modification. The resulting order is arbitrary and unreasonable, factually and legally inaccurate and in direct violation of the Appellant's rights."

(McNabb's brief at p. 8.)

"It is not the job of the appellate courts to do a party's legal research. Nor is it the function of the appellate courts to `make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.'" Pileri Indus., Inc. v. Consolidated Indus., Inc., 740 So.2d 1108, 1110 (Ala.Civ.App.1999) (citations omitted). McNabb made no assertions in his initial brief as to what portions of the circuit court's dismissal order was arbitrary and unreasonable or cited any specific factual inaccuracies purportedly contained in the circuit court's order. Rather, not until his reply brief did McNabb aver that the circuit court improperly applied the burden of proof to the pleading stage. However, it is well settled that "new issues may not be raised for the first time in a reply brief." McCall v. State, 565 So.2d 1163, 1167 (Ala.Crim.App.1990). "As a general rule, issues raised for the first time in a reply brief are not properly subject to appellate review." Ex parte Powell, 796 So.2d 434, 436 (Ala.2001). "[A]n appellant may not raise a new issue for the first time in a reply brief." Woods v. State, 845 So.2d 843, 846 (Ala.Crim.App.2002). Here, McNabb did not present in his initial brief an argument as described in Rule 28(a)(10), Ala.R.App.P., and, therefore, we question whether his later—and bare—assertion that the circuit court improperly applied the burden of proof at the pleading stage of the petition is properly before this Court.

Moreover, even assuming that this claim is sufficiently argued for this Court to review, McNabb is not entitled to any relief on this claim. In addressing a similar issue, this Court has stated:

"In Dobyne v. State, 805 So.2d 733, 741 (Ala.Crim.App.2000), we addressed this same issue and stated:

"`"`While the practice of adopting the state's proposed findings and conclusions is subject to criticism, the general rule is that even when the court adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Hubbard v. State, 584 So.2d 895 (Ala.Cr.App.1991); Weeks v. State, 568 So.2d 864 (Ala.Cr.App. 1989), cert. denied, , 111 S.Ct. 230, 112 L.Ed.2d 184 (1990); Morrison v. State, 551 So.2d 435 (Ala.Cr.App.), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990).'

"`"Bell v. State, 593 So.2d 123, 126 (Ala.Cr.App.1991), cert. denied, 593 So.2d 123 (Ala.), cert. denied, 504 U.S. 991, 112 S.Ct. 2981, 119 L.Ed.2d 599 (1992)."'

"Quoting Jones v. State, 753 So.2d 1174, 1180 (Ala.Cr.App.1999).

"As we more recently stated in Hyde v. State, 950 So.2d 344, 371 (Ala.Crim. App.2006):

"`Hyde contends that the circuit court erred in adopting the State's proposed order. Specifically, he argues that there are numerous factual and legal errors in the order that indicate that the order does not represent the court's own independent judgment, but shows a wholesale adoption of the State's proposed order without consideration of his claims. However, this Court has repeatedly upheld the practice of adopting the State's proposed order when denying a Rule 32 petition for postconviction relief. See, e.g., Coral v. State, 900 So.2d 1274, 1288 (Ala.Crim.App.2004), overruled on other grounds, Ex parte Jenkins, 972 So.2d 159 (Ala.2005), and the cases cited therein. "Alabama courts have consistently held that even when a trial court adopts verbatim a party's proposed order, the findings of fact and conclusions of law are those of the trial court and they may be reversed only if they are clearly erroneous." McGahee v. State, 885 So.2d 191, 229-30 (Ala.Crim.App. 2003).'"

Ingram v. State, [Ms. CR-03-1707, Sept. 29, 2006] ___ So.2d ___, ___ (Ala.Crim. App.2006).

Having reviewed the pleadings, the argument at the hearing on the State's motion for summary dismissal of the petition, and the circuit court's order summarily dismissing the petition, and for reasons stated more fully in Parts II and III of this opinion, we hold that the circuit court's findings are not clearly erroneous; therefore, we find no reversible error in the circuit court's adoption of the State's proposed order.

II.

McNabb next argues that summary dismissal of his ineffective-assistance-of-counsel claims was improper.

"Rule 32.3 states that `[t]he 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 32.6(b) states that `[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.' As this Court noted in Boyd v. State, 913 So.2d 1113 (Ala.Crim.App. 2003):

"`"Rule 32.6(b) requires that the petition itself disclose...