Released for Publication April 13, 2015.
(Jefferson Circuit Court, CC-95-4454 and CC-95-4455, J. William Cole, Trial Judge).
William Keith Robey, Petitioner, Pro se.
For Respondent: Luther Strange, Atty. Gen., John C. Neiman, Jr., Deputy Atty. Gen., Stephen N. Dodd, Asst. Atty. Gen.
Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ., concur. Moore, C.J., and Murdock, J., dissent. Main, J., recuses himself.
PETITION FOR WRIT OF MANDAMUS
PETITION DENIED. NO OPINION.
Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ., concur.
Moore, C.J., and Murdock, J., dissent.
Main, J., recuses himself.
MOORE, Chief Justice (dissenting).
William Keith Robey petitioned this Court for a writ of mandamus to order Judge Alfred Bahakel, Jefferson Circuit Court, to grant Robey's application for in forma pauperis (" IFP" ) status and to waive prepayment of the filing fee for a Rule 32, Ala. R. Crim. P., petition seeking postconviction relief. This Court today denies Robey's petition. For the reasons stated below, I dissent.
I. Facts and Procedural History
On June 13, 2013, Robey filed his fourth Rule 32 petition accompanied by an application for IFP status. Attached to the application was a report of the activity in Robey's inmate account for the preceding 12 months that showed total deposits of $415 or an average of $34.58 per month. On June 19, 2013, Judge Bahakel summarily denied Robey's application for IFP status. Robey then filed a petition for a writ of mandamus with the Court of Criminal Appeals to compel the circuit court to grant him IFP status. In its order of August 23, 2013, denying Robey's petition, the Court of Criminal Appeals stated:
" Currently, the fee for filing a postconviction petition in the Jefferson Circuit Court is $206. Robey's inmate account summary shows that in the 12 months preceding the filing of the Rule 32 petition he had deposits to his inmate account in the amount of $415. [Robey] could have saved the money to pay the filing fee and is not indigent.
See Ex parte Wyre, 74 So.3d 479, 482 (Ala.Crim.App. 2011)."
Robey then petitioned this Court for a writ of mandamus, arguing that
Ex parte Wyre, 74 So.3d 479 (Ala.Crim.App. 2011), upon which the Court of Criminal Appeals relied in denying his mandamus petition, conflicted with previous cases that determined an inmate's indigency as of the date of the filing of a Rule 32 petition and did not use a retrospective " could-have-saved" rule.
See Ex parte Beavers, 779 So.2d 1223, 1224-25 (Ala. 2000); Ex parte Dozier, 827 So.2d 774, 776 (Ala. 2002). He also argued that the rule in Wyre denied indigent prisoners access to the courts and was thus unconstitutional. On November 27, 2013, we ordered the circuit judge and the State of Alabama to answer Robey's petition.
Because Judge Bahakel had retired early in 2013, Judge Bill Cole, who assumed Judge Bahakel's docket, responded to our order, stating, in part:
" The undersigned is aware that individuals frequently abuse the privilege of being able to file a Rule 32 Petition. If inmates are allowed to spend any money they receive knowing that they can then file a Rule 32 without cost, they would probably be more willing to file a frivolous Rule 32. These petitions can require the State of Alabama and the judges presiding over the case to spend several hours ruling on an issue that has already been raised or that the petitioner may know is without merit. To abandon any consideration of the amount of money that has been in an inmate's prison account during the last year could cause abuse of the important relief individuals are allowed though Rule 32 of the Alabama Rules of Criminal Procedure."
II. Standard of Review
" A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order ...