White v. State

343 So.3d 1150

Justin WHITE

v.STATE of Alabama

CR-16-0741

Court of Criminal Appeals of Alabama.

April 12, 2019

Rehearing Denied June 21, 2019

Certiorari Denied June 25, 2021

Alabama Supreme 1180785

J.D. Lloyd, Birmingham; and Gregory W. Gardner, Boulder, Colorado, for appellant.

Steve Marshall, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee.

KELLUM, Judge.

Justin White, currently an inmate on death row at Holman Correctional Facility, appeals the Jefferson Circuit Court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., attacking his capital-murder convictions and sentence of death.

In 2009, White was convicted of murdering Jasmine Parker during the course of a rape and a burglary. The jury recommended, by a vote of 9 to 3, that White be sentenced to life imprisonment without the possibility of parole. The trial court sentenced White to death. On direct appeal, this Court affirmed White's convictions and remanded the case to the trial court for it to correct its sentencing order. On return to remand, we affirmed White's death sentence. See White v. State, 179 So.3d 170 (Ala. Crim. App. 2013). The United States Supreme Court denied certiorari review. See White v. Alabama, 577 U.S. 942, 136 S.Ct. 365, 193 L.Ed.2d 296 (2015). This Court issued a certificate of judgment on April 17, 2015. See Rule 41, Ala. R. App. P.

On April 12, 2016, White, acting pro se, timely filed Rule 32 petition.¹ White requested in forma pauperis status. That motion was granted, and two attorneys were appointed to assist White in the postconviction proceedings. Appointed counsel filed a 206-page amended petition in January 2017. The State filed an answer to the petition and moved that it be dismissed. The circuit court dismissed White's petition. This appeal followed.

On direct appeal, this Court set out the following facts surrounding White's convictions:

"On the morning of July 11, 2006, Parker went to work with her mother, Vanessa Parker, at Sharp Cleaners in Vestavia. Parker was not employed at the cleaners; however, she helped Vanessa on occasion. Around 3:00 p.m., Sylvia Williams, Vanessa's coworker, drove Parker home. After Parker got home, she called Vanessa and asked if she could go to a Captain D's restaurant with Greg Jelks. Vanessa gave Parker permission to go.

"Vanessa left work around 6:00 p.m. and went to a funeral home because a friend had passed away. After leaving the funeral home, Vanessa drove to her apartment. She arrived at the apartment between 7:00 p.m. and 7:30 p.m. As she entered the apartment, she called out to Parker but received no response. At that point, Vanessa noticed that the apartment was in disarray. The cushions on the couch were misplaced, the telephone had been knocked from its base, and a coffee table had been knocked over.

"Vanessa then began to walk through the apartment and found Parker's body in a small hall area. Parker was nude from the waist down and her shirt was pulled up, exposing her breasts. Parker's blue jeans had been tied in a knot around her neck and used to strangle her to death. Upon finding Parker's body, Vanessa telephoned emergency 911.

"In response to Vanessa's call to 911, law-enforcement officers were dispatched to the apartment. Steve Owens, an officer with the forensic unit of the Birmingham police department, was called to the scene to collect evidence and diagram the scene. While at the scene, Owens took a number of photographs and collected, among other things: 1) a plastic fingernail that had been found next to Parker's body; 2) a cigar tip that had been found on a table; and 3) a cigarette butt. Parker's cellular telephone was never found.

"Dr. Gregory G. Davis, with the Jefferson County Coroner's Office, performed an autopsy on Parker. According to Dr. Davis, when he began the examination, Parker's blue jeans were tied around her neck so tightly he could not get his finger between the blue jeans and her neck. Dr. Davis explained that Parker had abrasions on her neck from the blue jeans. She also had a nonlethal, five-inch cut on her neck. Dr. Davis testified that Parker had petechiae –-ruptured blood vessels due to pressure–-under her eyelids. According to Dr. Davis, ‘petechiae [are] something that you ... expect to see in someone who has been strangled.’ (R. 313.) Dr. Davis concluded Parker had died as a result of asphyxia due to strangulation.

"During the autopsy, Dr. Davis swabbed Parker's mouth, vagina, and anus to look for signs of sexual assault. He also swabbed a stain on her leg. Initially, Dr. Davis did not detect any semen on the swabs. However, after examining the swabs a second time, Dr. Davis detected semen on the swab from Parker's vagina and on the swab from her leg.

"The investigation into Parker's murder languished until Detective Christopher Anderson, the lead detective, realized in August 2008 that none of the evidence collected from the crime scene or from Parker's body had been sent to the Alabama Department of Forensic Sciences (hereinafter ‘DFS’) for testing. The evidence collected from the crime scene and from Parker's body was then sent to DFS. Nathan Rhea, a forensic scientist at DFS, tested numerous items related to Parker's murder. According to Rhea, he obtained a DNA profile for saliva located on the cigar tip collected from the apartment and from the semen collected from Parker's leg and vagina. Rhea then entered those profiles into a State database and determined that the profiles matched White's profile."

White, 179 So.3d at 181-82 (footnote omitted).

Standard of Review

White is appealing the circuit court's summary dismissal of his 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.

Rule 32.6(b), Ala. R. Crim. P., addresses the pleading requirements in regard to postconviction petitions and provides:

"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."

When addressing the scope of Rule 32.6(b), Ala. R. Crim. P., this Court has stated:

"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).

" ‘ 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."

Boyd v. State, 913 So.2d 1113, 1125 (Ala. Crim. App. 2003) (emphasis in original).

" ‘ "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." ’ Tatum v. State, 607 So.2d 383, 384 (Ala. Crim. App. 1992), quoting Bishop v. State, 608 So.2d 345, 347-48 (Ala. 1992), quoting in turn Bishop v. State, 592 So.2d 664, 667 (Ala. Crim. App. 1991) (Bowen, J., dissenting); see also Rule 32.7(d), Ala. R. Crim. P."

Boyd v. State, 913 So.2d at 1126. "An evidentiary hearing on a [Rule 32] petition is required only if the petition is ‘meritorious on its face.’ Ex parte Boatwright, 471 So.2d 1257 (Ala. 1985)." Moore v. State, 502 So.2d 819, 820 (Ala. 1986).

"The sufficiency of pleadings in a Rule 32 petition is a question of law. ‘The standard of review for pure questions of law in criminal cases is de novo. Ex parte Key, 890 So.2d 1056, 1059 (Ala. 2003).’ Ex parte Lamb, 113 So.3d 686 (Ala. 2011)." Ex parte Beckworth, 190 So.3d 571, 573 (Ala. 2013).

"[A]t the pleading stage of Rule 32 proceedings, a Rule 32 petitioner does not have the burden of proving his claims by a preponderance of the evidence. Rather, at the pleading stage, a petitioner must provide only ‘a clear and specific statement of the grounds upon which relief is sought.’ Rule 32.6(b), Ala. R. Crim. P. Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala. R. Crim. P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof."

Ford v. State, 831 So.2d 641, 644 (Ala. Crim. App. 2001).

Furthermore, even though this Court applied a plain-error standard of review for White's direct appeal, the plain-error standard does not apply to this appeal. See Ex parte Dobyne, 805 So.2d 763, 766 (Ala. 2001).

" ‘[A] judge who presided over the trial or other proceeding and observed the conduct of the attorneys at the trial or other proceeding need not hold a hearing on the effectiveness of those attorneys based upon conduct that he observed.’ Ex parte Hill, 591 So.2d 462, 463 (Ala. 1991).

" ‘ " ‘In some cases, recollection of the events at issue by the judge who presided at the

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