Saunders v. State

249 So.3d 1153

Timothy Wade SAUNDERS

v.STATE of Alabama

CR–13–1064

Court of Criminal Appeals of Alabama.

December 16, 2016

Rehearing Denied May 26, 2017

Certiorari Denied September 22, 2017

Alabama Supreme Court 1160767

Michael Leon Edwards, Birmingham; Adam Kent Israel, Birmingham; and John Garland Smith, Montgomery, for appellant.

Luther Strange, atty. gen., and Kevin W. Blackburn, asst. atty. gen., for appellee.

WELCH, Judge.

The appellant, Timothy Wade Saunders, an inmate currently on death row at Holman Correctional Facility, appeals the Baldwin Circuit Court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., attacking his capital-murder conviction and sentence of death.

In August 2005, Saunders was convicted of murdering 77–year-old Melvin Clemons during the course of a robbery and a burglary and of attempting to murder Agnes Clemons. Saunders was sentenced to death for his capital-murder convictions and to life imprisonment for his attempted-murder conviction. We affirmed his convictions on direct appeal. See Saunders v. State, 10 So.3d 53 (Ala. Crim. App. 2007). This Court issued the certificate of judgment on December 1, 2008.

In November 2009, Saunders filed a timely postconviction petition in the Baldwin Circuit Court. (R. 27.) The State filed its answer and a motion to dismiss the petition. (R. 104.) The circuit court summarily dismissed Saunders's petition. In August 2010, Saunders filed a Rule 32.1(f), Ala. R. Crim. P., motion to extend the time for appealing the summary dismissal of his petition, because, he said, he had not been notified that his postconviction petition had been dismissed.¹ The circuit court denied that motion. Saunders then filed a notice of appeal. By order dated June 28, 2011, this Court dismissed that appeal after holding that the circuit court's ruling was void because no filing fee had been paid and the payment of the filing fee had not been waived. See Saunders v. State (CR–10–0005, June 28, 2011), 107 So.3d 232 (Ala. Crim. App. 2011) (table).²

While the appeal in Saunders v. State, (CR–10–0005), was pending in this Court, Saunders filed three additional postconviction petitions seeking an out-of-time appeal from the circuit court's ruling dismissing his first postconviction petition. He filed postconviction petitions in August 2010, January 2011, and again in June 2011. The circuit court denied the petition Saunders filed in January 2011, and Saunders appealed. By order dated April 24, 2013, this Court dismissed that appeal after finding that the circuit court's ruling was void because jurisdiction of the case was solely in this Court at the time that the circuit court issued its ruling. See Saunders v. State (CR–10–1375, April 24, 2013), 161 So.3d 1232 (Ala. Crim. App. 2013) (table). We also noted in the order of dismissal, that in the interest of judicial economy, it would be within the circuit court's discretion to consolidate the remaining postconviction petitions Saunders had filed in that court.

The circuit court consolidated Saunders's remaining postconviction petitions and granted Saunders's request for an out-of-time appeal. This appeal is from the circuit court's ruling of February 11, 2010, summarily dismissing Saunders's first postconviction petition.

On direct appeal, this Court stated the following facts surrounding Saunders's convictions as set out by Saunders in his detailed confession to police:

"Saunders told Sgt. [Tony] Fuqua that he had purchased crack cocaine twice on July 9; the first time he purchased and smoked $50 worth of the drug, the second time he purchased $100 worth of the drug. Saunders said that he went onto the property next to his mother's mobile home, on the other side of a hedgerow, to smoke the last of his crack cocaine because he was ashamed of smoking crack, and he did not want to be near his mother's mobile home when he was ingesting the drug. Saunders said that Mr. Clemons saw him and asked him what he was doing there, and that he told Mr. Clemons that he was getting high; Mr. Clemons then yelled at him and told him to get off the property. Saunders told Sgt. Fuqua that as Mr. Clemons turned to leave, Saunders heard him say something about calling the police; that he became infuriated; and that he then picked up the crowbar and hit Mr. Clemons on the head several times. Saunders said that he was not sure, but that he believed Mr. Clemons was dead. Saunders acknowledged that he had borrowed the crowbar from Mr. Clemons earlier that day.

"Saunders told Sgt. Fuqua that after he hit Mr. Clemons, he wandered around to clear his head, and then decided to approach the Clemonses' house to try to take any valuables so that he could buy more crack cocaine. He admitted that he feigned an asthma attack and that Mrs. Clemons then let him inside the house. Saunders said that he became angry when Mrs. Clemons tried to call for help, and he grabbed her from behind. Saunders also said that he smoked crack cocaine in the house several times and that Mrs. Clemons had poured a glass of milk for him; according to Saunders, milk helped calm him when he smoked crack cocaine. Sgt. Fuqua asked Saunders about the Windex brand glass cleaner, and Saunders told him that he had used the Windex to wipe down every place he touched to try to destroy fingerprint evidence. Saunders told Sgt. Fuqua that he did not intend to kill or to rape Mrs. Clemons and that he took Mrs. Clemons to a back bedroom so that he could shut the door and escape. Saunders said that after he ran out the back door of the house, he heard a gunshot and he went to his mother's mobile home."

Saunders v. State, 10 So.3d at 67.

Standard of Review

As stated above, Saunders appeals the circuit court's order summarily dismissing his Rule 32, Ala. R. Crim. P., petition. According to Rule 32.3, Ala. R. Crim. P., "[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."

When this Court reviewed the issues raised in Saunders's direct appeal we applied a plain-error standard of review because Saunders was sentenced to death. However, the plain-error standard does not apply to postconviction petitions attacking a death sentence. See Brooks v. State, 929 So.2d 491, 495 (Ala. Crim. App. 2005). "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).

"The 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."

Rule 32.6(b), Ala. R. Crim. P.

" ‘ "Where a simple reading of the petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition." ’ Bishop v. State, 608 So.2d 345, 347–48 (Ala. 1992) (emphasis added) (quoting Bishop v. State, 592 So.2d 664, 667 (Ala. Crim. App. 1991) (Bowen, J., dissenting)). See also Hodges v. State, 147 So.3d 916, 946 (Ala. Crim. App. 2007) (a postconviction claim is ‘due to be summarily dismissed [when] it is meritless on its face’)."

Bryant v. State, 181 So.3d 1087, 1102 (Ala. Crim. App. 2011).

" ‘ "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." ’ " McGahee v. State, 885 So.2d 191, 201 (Ala. Crim. App. 2003), quoting Grady v. State, 831 So.2d 646, 648 (Ala. Crim. App. 2001), quoting in turn, Reed v. State, 748 So.2d 231, 233 (Ala. Crim. App. 1999).

With these principles in mind, we review the issues raised by Saunders in his brief to this Court.

I.

Saunders argues that the circuit court's order of summary dismissal is legally defective because, he says, "it is impossible without evidentiary development to render merits determinations of ineffective assistance of counsel claims that are predicated upon unpresented (sic) evidence." (Saunders's brief, at p. 76.)

When dismissing Saunders's postconviction petition, the circuit court stated, in pertinent part:

"This Court was able to observe Saunders's counsel at all phases of this case and counsel's performance did not fall below the objective standard of reasonableness gauged by prevailing professional standards. Petitioner's complaint of failure on the part of his counsel to present testimony or evidence is without merit, as it would have merely been repetitive. Everything complained of was presented to the jury in the guilt phase and penalty phase of the trial."

(C. 151.)

This Court has repeatedly held that a postconviction petition may be summarily dismissed on its merits. In Bryant v. State, 181 So.3d 1087 (Ala. Crim. App. 2011), we stated:

"[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 hearing.’

" ‘ "Where a simple reading of the petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded,

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