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01/13/95 GARY LEON BROWN v. STATE

January 13, 1995

GARY LEON BROWN
v.
STATE



Appeal from Jefferson Circuit Court. (CC-86-3115). James Hard, TRIAL JUDGE.

Rule 39(k) Motion Denied March 3, 1995. Rehearing Denied March 3, 1995. Certiorari Denied May 26, 1995. Released For Publication November 20, 1995.

Montiel, Judge. All the Judges concur. Bowen, P.j., concurs in result only.

The opinion of the court was delivered by: Montiel

MONTIEL, JUDGE

The appellant, Gary Leon Brown, appeals from the trial court's denial of his petition for post-conviction relief under Rule 20, A.R.Crim.P.Temp. (now Rule 32, A.R.Crim.P.). Brown was convicted of capital murder for the intentional killing of Jack McGraw during the course of a robbery. § 13A-5-40(a)(2), Code of Alabama 1975. The trial court sentenced Brown to death. This court upheld Brown's conviction in Brown v. State, 545 So. 2d 106 (Ala. Crim. App. 1988), and the Alabama Supreme Court affirmed, 545 So. 2d 122 (Ala. 1989). The United States Supreme Court denied Brown's petition for certiorari review, Brown v. Alabama, 493 U.S. 900, 107 L. Ed. 2d 206, 110 S. Ct. 257 (1989).

Brown then filed a Rule 20 petition, which sought relief by collaterally attacking his conviction and death sentence. An evidentiary hearing was held in Jefferson Circuit Court, after which the court denied Brown's petition. This appeal follows.

Sixteen of the issues Brown raises on appeal from his denial of post-conviction relief are procedurally barred from this court's consideration either because they could have been raised at trial and on direct appeal but were not, because they were raised at trial but not on appeal, or because they were raised and addressed on direct appeal. Rule 20.2, A.R.Crim.P.Temp. See also, Rule 32, A.R.Crim.P.; Hallford v. State, 629 So. 2d 6 (Ala. Crim. App. 1992). Rule 20 and Rule 32 apply with equal force to collateral proceedings in cases in which the appellant has been sentenced to death. Johnson v. State, 612 So. 2d 1288, 1291 (Ala. Crim. App. 1992); Thompson v. State, 615 So. 2d 129 (Ala. Crim. App. 1992).

I

Brown contends that, for several reasons, the Judge who presided over his trial, Judge James H. Hard, should have disqualified himself from also presiding over the post-conviction proceedings in this case. First, Brown argues that Judge Hard should have recused himself because, he argues, Judge Hard could not be expected to examine the propriety of the sentence he imposed. Brown also maintains that Judge Hard should have recused himself because, Brown says, he might have been reluctant to find that appellate counsel had been ineffective because that counsel is now a Judge in the same circuit as Judge Hard. Further, Brown argues, the "equitable conscience of the court" requires that a different Judge than the one who presided over the original trial hear the post-conviction petition. Brown's arguments as to this issue are without merit.

The record shows that Brown raised most of these allegations in a motion to disqualify Judge Hard, which was filed the same day as Brown's Rule 20 petition. Judge Hard denied the motion, and Brown filed a petition for a writ of mandamus, adding claims based on Judge Hard's denial of his motion to disqualify. This court denied the writ. Brown raises the same arguments again here.

Rule 20.6(d), A.R.Crim.P.Temp., now Rule 32.6(d), provides that post-conviction proceedings shall be assigned to the sentencing Judge where possible, unless there is good reason to assign the proceeding to another Judge. We do not believe that Brown has shown good reason to require the post-conviction proceeding to be heard by a Judge other than Judge Hard.

Brown cites Canon 3.C.(1) of the Code of Judicial Ethics, which states: "A Judge should disqualify himself in a proceeding in which. . . his impartiality might reasonably be questioned," and contends that, for the reasons set out above, Judge Hard's impartiality in this case could be questioned. We disagree.

"'A Judge should not act "if he has any interest, the probable and natural tendency of which is to create a bias in the mind of the Judge for or against a party to the suit." Morgan County Commission v. Powell, 292 Ala. 300, 311, 293 So. 2d 830, 839 (1974). . . . A mere accusation of bias unsupported by substantial fact does not require disqualification of a Judge. Taylor v. Taylor, 387 So. 2d 849, 852 (Ala. Civ. App. 1980).' Ross v. Luton, 456 So. 2d 249, 254 (Ala. 1984). In this State, the general rule is that a Judge is presumed to be qualified and unbiased, McMurphy v. State, 455 So. 2d 924, 929 (Ala. Crim. App. 1984), and the movant has a substantial burden in proving otherwise. Irby v. State, 429 So. 2d 1179 (Ala. Crim. App. 1983). "Evidence must be presented to prove the Judge possesses a personal bias as opposed to one that is judicial in nature. Personal as opposed to judicial bias is characterized by an attitude of extrajudicial origin derived non coram judice.' Moreland v. State, 469 So. 2d 1305, 1307 (Ala. Crim. App. 1985). 'Bias and prejudice must be shown by the conduct of the trial Judge and may not be presumed or inferred by his subjective views.' Hartman v. Board of Trustees of the University of Alabama, 436 So. 2d 837, 841 (Ala. 1983). 'The appellant must present evidence to prove the personal bias of a Judge, or else his motion cannot prevail.' Slinker v. State, 344 So. 2d 1264, 1268 (Ala. Crim. App. 1977)."

Rutledge v. State, 523 So. 2d 1087, 1109 (Ala. Crim. App. 1987), rev'd on other grounds, 523 So. 2d 1118 (1988). Additionally, bias is not proved "simply because the trial Judge who presided at the second trial of defendant had also presided at his first trial and heard evidence later found to be inadmissible by an appellate court." Id . (quoting McMurphy v. State, 455 So. 2d 924, 929 (Ala. Crim. App. 1984, quoting in turn Walker v. State, 38 Ala. App. 204, 84 So. 2d 383 (1955)). Using the same logic, bias by the trial court ...


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