Yeomans v. State

195 So.3d 1018

James Donald YEOMANS

v.STATE of Alabama.

CR–10–0095.

Court of Criminal Appeals of Alabama.

March 29, 2013.

Opinion on Return to Remand June 13, 2014.

Opinion on Overruling of Rehearing May 29, 2015.

Certiorari Denied Nov. 20, 2015

Alabama Supreme Court 1140928. F.M. Haston III and Jennifer Joe McGahey, Birmingham; and Ashley K. Martin, Alison V. Potter, Richard Raskin, Charles K. Schafer, and Daniel M. Greenfield, Chicago, IL, for appellant.

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

JOINER, Judge.

James Donald Yeomans, an inmate on death row at Holman Correctional Facility, appeals the Geneva Circuit Court's dismissal of his petition for postconviction relief under Rule 32, Ala. R.Crim. P. We affirm in part and remand with instructions.

Facts and Procedural History

In 2001, Yeomans was convicted of four counts of capital murder for killing his wife, Julie Ann Yeomans, and her parents, Jake and Sylvia Simmons; specifically, Yeomans was convicted of three counts of capital murder under § 13A–5–40(a)(10), Ala.Code 1975 (murder of two or more persons pursuant to one scheme or course of conduct), and one count of capital murder under § 13A–5–40(a)(2), Ala.Code 1975 (murder during the course of a first-degree robbery).¹ The jury, by a vote of 11 to 1, recommended that Yeomans be sentenced to death. The circuit court followed the jury's recommendation and sentenced Yeomans to death.

On appeal, this Court remanded the case for the circuit court to “strike two of Yeomans's convictions and sentences for the murder of two or more persons pursuant to one scheme or course of conduct,” thereby leaving one conviction and sentence for the murder of two or more persons pursuant to one scheme or course of conduct as well as Yeomans's conviction and sentence for robbery-murder. Yeomans v. State, 898 So.2d 878, 906 (Ala.Crim.App.2004). This Court also directed the circuit court on remand to amend and clarify its sentencing order to comply with § 13A–5–47(d), Ala.Code 1975.² On return to remand, this Court affirmed Yeomans's convictions and sentences, in an unpublished memorandum, on June 25, 2004. The Alabama Supreme Court denied certiorari review on February 25, 2005, Ex parte Yeomans (No. 1040266), and this Court issued its certificate of judgment, making Yeomans's direct appeal final, on February 28, 2005.

On February 27, 2006, Yeomans filed a petition for postconviction relief under Rule 32, Ala. R.Crim. P. (C. 35.) The State filed an answer to the petition on June 13, 2006, and a motion to dismiss on December 29, 2006. (C. 176, 233.) On May 17, 2007, Yeomans filed both a response to the State's answer and motion to dismiss and an amended petition. (C. 284.) The State, on April 1, 2010, moved to dismiss the amended petition. (C. 540.) Yeomans filed a response in opposition to the State's motion to dismiss. (C. 604.) The circuit court, in a written order, summarily dismissed the petition on August 25, 2010. (C. 697.) Yeomans appealed to this Court. See Rule 32.10, Ala. R.Crim. P.

Standard of Review

Yeomans appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. Yeomans has the burden of pleading and proving his claims.³ Rule 32.3, Ala. R.Crim. P., provides:

“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. The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence.”

“The standard of review this Court uses in evaluating the rulings made by the trial court [in a postconviction proceeding] is whether the trial court abused its discretion.” Hunt v. State, 940 So.2d 1041, 1049 (Ala.Crim.App.2005). However, “when the facts are undisputed and an appellate court is presented with pure questions of law, [our] review in a Rule 32 proceeding is de novo. ” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). “[W]e may affirm a circuit court's ruling on a postconviction petition if it is correct for any reason.”⁴ Smith v. State, 122 So.3d 224, 227 (Ala.Crim.App.2011).

The circuit court summarily dismissed all but one⁵ of Yeomans's claims based on defects in the pleadings and the application of the procedural bars in Rule 32.2, Ala. R.Crim. P. When discussing the pleading requirements for postconviction petitions, we have 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). “[T]he procedural bars of Rule 32[.2, Ala. R.Crim. P.,] apply with equal force to all cases, including those in which the death penalty has been imposed.” Burgess v. State, 962 So.2d 272, 277 (Ala.Crim.App.2005).

In discussing the application of Rule 32.7(d), Ala. R.Crim. P., to summarily dismiss a claim, we have 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, 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’)[, rev'd on other grounds, 147 So.3d 973 (Ala.2011) ].”

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

Finally, “[a]lthough on direct appeal we reviewed [Yeomans's] capital-murder conviction for plain error, the plain-error standard of review does not apply when an appellate court is reviewing the denial of a postconviction petition attacking a death sentence.” James v. State, 61 So.3d 357, 362 (Ala.Crim.App.2010) (citing Ex parte Dobyne, 805 So.2d 763 (Ala.2001) ).

Discussion

I.

Yeomans argues that his trial counsel and appellate counsel were ineffective. To prevail on a claim of ineffective assistance of counsel, the petitioner must show (1) that counsel's performance was deficient and (2) that the petitioner was prejudiced by the deficient performance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.”

Strickland, 466 U.S. at 689.

“[T]he purpose of ineffectiveness review is not to grade counsel's performance. See Strickland [v. Washington ], 104 S.Ct. [2052] at 2065 [ (1984) ]; see also White v. Singletary, 972 F.2d 1218, 1221 (11th Cir.1992) (‘We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.’). We recognize that ‘[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.’ Strickland, 104

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