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Morrissette v. State

Alabama Court of Criminal Appeals

December 19, 2014

Cedric Morrissette
v.
State of Alabama

         Editorial Note:

         This Opinion is subject to formal revision before publication in the advanced sheet of the Southern Reporter.

          Appeal from Mobile Circuit Court. (CC-09-225.60; CC-09-226.60; CC-09-227.60; and CC-09-228.60).

         Cedric Morrissette, Appellant, Pro se.

         For Appellee: Luther Strange, Atty. Gen., and Robin D. Scales, Asst. Atty. Gen.

         KELLUM, Judge. Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.

          OPINION

Page 1010

          On Return to Remand

         KELLUM, Judge.

         Cedric Morrissette appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attacked his 2010 convictions for one count of attempted murder, one count of first-degree assault, and two counts of discharging a firearm into an occupied vehicle, and his resulting sentences of life imprisonment for the attempted-murder and assault convictions and 20 years' imprisonment for the two shooting-into-an-occupied-vehicle convictions.

Page 1011

This Court affirmed Morrissette's convictions and sentences on direct appeal in an unpublished memorandum issued on September 30, 2011. Morrissette v. State, 114 So.3d 164 (Ala.Crim.App. 2011) (table). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on December 9, 2011.

         Morrissette filed the instant petition, his first, on or about October 1, 2012. In his petition, Morrissette alleged:

(1) That his trial counsel was ineffective for not allowing him to testify on his own behalf and for making allegedly prejudicial comments to the jury during opening statements;
(2) That his conviction was obtained by the action of a petit jury that was unconstitutionally selected because, he said, the trial court erred in not striking for cause prospective juror no. 11; and
(3) That his conviction was obtained by the use of " unduly prejudicial" evidence, specifically his statement to police, which, he said, contained comments regarding other crimes that were redacted, but which the trial court failed to instruct the jury about. (C. 71.)

         On March 27, 2013, Morrissette filed a motion to amend his petition, in which he raised several additional claims. On April 1, 2013, the circuit court denied the motion to amend.[1]

         On March 14, 2014, the State filed a response and motion to dismiss Morrissette's petition, arguing that claim (1), as set out above, was meritless, that claim (2), as set out above, was precluded by Rules 32.2(a)(2) and (a)(5), Ala. R. Crim. P., and that claim (3), as set out above, was precluded by Rules 32.2(a)(3) and (a)(5), Ala. R. Crim. P. The State attached to its motion several exhibits, including an affidavit from Morrissette's trial counsel. On March 17, 2014, the circuit court issued orders denying Morrissette's petition on the grounds asserted by the State.[2]

         By order dated August 15, 2014, this Court remanded this case for the circuit court to allow Morrissette an opportunity to prove that portion of claim (1) in which he alleged that his trial counsel was ineffective for refusing to allow him to testify on his own behalf. We held that Morrissette's claim in this regard was sufficiently pleaded, was not precluded, and

Page 1012

was meritorious on its face, i.e., that, if the facts alleged were true, Morrissette would be entitled to relief. On remand, the circuit court complied with our instructions. The circuit court appointed counsel to represent Morrissette and conducted an evidentiary hearing on October 1, 2014, at which Morrissette was given the opportunity to present evidence regarding his claim. On October 14, 2014, the circuit court issued an order denying Morrissette's claim. [3] Neither party requested permission to file briefs on return to remand; therefore, we proceed based solely on the parties' original briefs.

          " [W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). " However, where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, '[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.'" Boyd v. State, 913 So.2d 1113, 1122 (Ala.Crim.App. 2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App. 1992)).

          Rule 32.7(d), Ala. R. Crim. P., authorizes the circuit court to summarily dismiss a petitioner's Rule 32 petition

" [i]f 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 ...."

Rule 32.3, Ala. R. Crim. P., states that " [t]he 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 32.6(b), Ala. R. Crim. P., states that " [t]he 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 ...


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