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Ex parte Brown

Alabama Court of Criminal Appeals

September 19, 2014

Ex parte Derrick L. Brown; In re: State of Alabama
v.
Derrick L. Brown

Released for Publication May 15, 2015.

(Lee Circuit Court, No. CC-00-95.61). Jacob A. Walker III, Trial Judge.

PETITION DENIED.

Derrick L. Brown, Appellant, Pro se.

For Appellee: Luther Strange, Atty. Gen., Marc Alan Starrett, Asst. Atty. Gen.

Windom, P.J., and Welch, Kellum, Burke, and Joiner, JJ., concur.

OPINION

Page 626

PETITION FOR WRIT OF MANDAMUS

Per Curiam.

Derrick L. Brown filed this petition for a writ of mandamus requesting that this Court direct Judge Jacob A. Walker to grant in toto his request for indigency status so that he may file his second postconviction petition seeking relief under Rule 32, Ala. R. Crim. P., without prepaying any portion of the filing fee. In May 2013, Brown filed a Rule 32 postconviction petition in the Lee Circuit Court attacking his 2000 conviction for murder.[1] That petition, Brown's second Rule 32 petition, was accompanied by a request to proceed in forma pauperis.[2] On May 21, 2013, Judge Walker granted Brown's request for indigency status, in part, and waived most of the $349 filing fee and directed Brown to pay $75. Brown then filed this timely petition for a writ of mandamus in this Court.

In his order, Judge Walker stated:

" [Brown] has filed a Rule 32 petition dated May 15, 2013. [Brown] requested to proceed in forma pauperis. In his request, [Brown] has attached a copy of his 'prison account.' The prison account indicates that [Brown] has had deposits of $370.00 over the preceding year. Therefore, the Court deems [Brown] partially indigent. [Brown] should pay a filing fee of $75.00 within the next 60 days. Once the filing fee is paid, the Clerk is to notify the Court." [3]

Rule 32.6(a), Ala. R. Crim. P., states, in pertinent part:

Page 627

" If the petitioner desires to prosecute the petition in forma pauperis, he or she shall file the 'In Forma Pauperis Declaration' at the end of the form. In all such cases, the petition shall also be accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined, stating the amount of money or securities on deposit to the petitioner's credit in any account in the institution for the previous twelve (12) months, which certificate may be considered by the court in acting upon the petitioner's application for leave to proceed in forma pauperis."

When ruling on Brown's request for indigency status, Judge Walker properly considered the deposits made to Brown's inmate account for the 12 months preceding the filing of the request. We commend Judge Walker for waiving a portion of the filing fee and assessing only a portion of that fee to Brown. Based on the deposits to Brown's inmate account, we agree that Brown could have saved the money to pay $75 -- a small portion of the $349 filing fee. See Ex parte Wyre, 74 So.3d 479, 482 (Ala.Crim.App. 2011).

To satisfy the prerequisites for the issuance of a writ of mandamus, the petitioner must establish: " '(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.'" Ex parte Gates, 675 So.2d 371, 374 (Ala. 1996) (quoting Ex parte Edgar, 543 So.2d 682, 684 (Ala. 1994)). Brown has failed to meet his heavy burden of establishing the right to the issuance of a writ of mandamus. Accordingly, his petition is denied.

PETITION DENIED.

Windom, P.J., and Welch, Kellum, Burke, and Joiner, JJ., concur.


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