July 10, 2015
James E. Bagley
State of Alabama
from Etowah Circuit Court. (CV-14-131.60).
Judge. Welch and Joiner, JJ., concur. Windom, P.J., dissents.
Burke, J., dissents, with opinion.
E. Bagley appeals the circuit court's summary dismissal
of what he styled as a " Petition [for] Writ of Habeas
Corpus Ad Testificandum." (C. 10.)
filed his petition on October 27, 2014. His petition is
disjointed, confusing, and virtually incoherent. Nonetheless,
after thoroughly reviewing the petition, it appears that
Bagley raised claims cognizable in a Rule 32, Ala. R. Crim.
P., petition for postconviction relief. Catchphrases such as
due process, lack of jurisdiction to render judgment and to
impose sentence, involuntary guilty plea, double jeopardy,
and newly discovered evidence appear in his petition.
Additionally, Bagley attached to his petition a copy of this
Court's opinion affirming his 1995 guilty-plea
convictions for two counts of first-degree theft of property
and his resulting sentences of seven years' imprisonment
for each conviction. See Bagley v. State, 681 So.2d
262 (Ala.Crim.App. 1995). Therefore, Bagley's petition
must be treated as a Rule 32 petition attacking his 1995
convictions and sentences. See, e.g., Ex parte
Deramus, 882 So.2d 875, 876 (Ala. 2002) (holding that
appellate courts must treat a motion according to its
substance, not its style).
his petition, Bagley filed an affidavit of substantial
hardship, and the circuit court granted Bagley indigency
status. In addition, Bagley filed his petition in Etowah
County, the county of his 1995 convictions and sentences.
Therefore, the Etowah Circuit Court had jurisdiction to treat
Bagley's petition as a Rule 32 petition for
postconviction relief and to rule on that petition, and we
believe that is exactly what the circuit court did. The
record reflects that, without receiving a response from the
State, the circuit court summarily dismissed Bagley's
petition on November 3, 2014, stating " JAMES E.
BAGLEY'S PETITION FOR WRIT OF HABEAS CORPUS
ADTESTIFICANDUM is hereby DENIED." (C. 35;
capitalization in original.) The court's order -- which
is a commonly used standardized fill-in-the-blank form --
identified Bagley's petition according to the style of
the petition. However, circuit judges " are presumed to
know the law and to follow it in making their
decisions." Ex parte Slaton, 680 So.2d 909, 924
(Ala. 1996). The circuit court's identification of
Bagley's petition according to its style is not alone
sufficient to overcome the presumption that the circuit court
followed the law when dismissing Bagley's petition.
Moreover, nothing else in the record affirmatively indicates
that the circuit court did not properly treat Bagley's
petition as a Rule 32 petition and summarily dismiss it. In
the absence of any affirmative indication otherwise, we
presume that the circuit court properly treated Bagley's
petition as a Rule 32 petition for postconviction relief and
summarily dismissed it.
even if the circuit court did improperly treat Bagley's
petition as a petition for a writ of habeas corpus, it is
well settled that, with limited exceptions not applicable
here, this Court may affirm a circuit court's judgment if
it is correct for any reason. See Bryant v. State,
[Ms. CR-08-0405, February 4, 2011] 181 So.3d 1087
(Ala.Crim.App. 2011); Moody v. State, 95 So.3d 827,
833 (Ala.Crim.App. 2011), and McNabb v. State, 991
So.2d 313, 333 (Ala.Crim.App. 2007), and the cases cited
therein. For the reasons explained below,
summary dismissal of Bagley's petition was appropriate.
brief on appeal, Bagley appears to pursue the claims from his
petition. Bagley's brief is as disjointed, confusing, and
incoherent as is his petition, but contains catchphrases
similar to those found in his petition. His brief also
contains additional catchphrases that we are unable to find
in his petition. To the extent that Bagley is attempting to
raise on appeal claims that were not included in his
petition, those claims are not properly before this Court for
review and will not be considered. See Arrington v.
State, 716 So.2d 237, 239 (Ala.Crim.App. 1997) ("
An appellant cannot raise an issue on appeal from the denial
of a Rule 32 petition which was not raised in the Rule 32
petition." ). To the extent that Bagley is attempting to
reassert on appeal the claims from his petition, Bagley is
entitled to no relief. As noted above, Bagley's petition
was virtually incoherent. After thoroughly reviewing the
petition, we are unable to ascertain exactly what arguments
Bagley was attempting to raise. A petition as confusing and
incoherent as Bagley's necessarily fails to satisfy the
pleading requirements in Rule 32.3, Ala. R. Crim. P., which
provides 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," and Rule 32.6(b), Ala. R. Crim. P., which
provides 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 to warrant any further proceedings."
that, in his reply brief on appeal, which is more coherent
than his initial brief, Bagley appears to request that we
treat his petition as a Rule 32 petition for postconviction
relief and remand this cause for the circuit court to allow
him the opportunity to file his petition using the proper
Rule 32 form and then to reconsider the petition. However, in
Maddox v. State, 662 So.2d 915 (Ala. 1995), the
Alabama Supreme Court explained:
" 'Just as Rule 32.7(d) (allowing summary dismissal
of a petition) overrides, in some cases, the Rule 32.7(a)
requirement that the prosecutor file a response, see
Bishop v. State, 608 So.2d 345, 347-48 (Ala.1992),
... Rule 32.7(d) also takes precedence, in some cases, over
the Rule 32.6(a) requirement that the petition be filed on
the proper " form." ... [B]lind adherence to the
holding of Drayton v. State, 600 So.2d 1088 (Ala.
Cr. App. 1992), is a literal exaltation of form over
" 'It is ridiculous to remand [a] cause so that the
appellant will have the opportunity to file a petition in the
proper form that will be promptly dismissed.'"
662 So.2d at 916 (quoting Maddox v. State, 662 So.2d
914, 915 (Ala.Crim.App. 1993) (Bowen, J., dissenting).
Summary dismissal of Bagley's petition was appropriate in
this case for the reasons stated above. Therefore, "
[i]t [would be] ridiculous to remand this cause so that
[Bagley] will have the opportunity to file a petition in the
proper form that will be promptly dismissed."
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
See also Hannon v. State, 861 So.2d 426,
427 (Ala.Crim.App. 2003); Cogman v. State, 852 So.2d
191, 193 (Ala.Crim.App. 2002); Tatum v. State, 607
So.2d 383, 384 (Ala.Crim.App. 1992). Because Bagley's
petition failed to satisfy the pleading requirements in Rule
32.3 and Rule 32.6(b), summary disposition of Bagley's
Rule 32 petition was appropriate.
on the foregoing, the judgment of the circuit court is
and Joiner, JJ., concur. Windom, P.J., dissents. Burke, J.,
dissents, with opinion.
respectfully dissent. James E. Bagley appeals the Etowah
Circuit Court's summary denial of his pro se petition for
postconviction relief. The petition was filed as a civil
action and styled as a " petition [for] writ habeas
corpus ad testificandum." The arguments in the petition
are very difficult to discern. The petition appears to
challenge Bagley's 1995 guilty-plea convictions for two
counts of first-degree theft of property, violations of
§ 13A-8-3, Ala. Code 1975, and his resulting sentences
of seven years in prison, to be served concurrently.
direct appeal, after initially remanding the case for the
trial court to determine the specific terms of the
guilty-plea agreement, this Court affirmed Bagley's
convictions and sentences on January 19, 1996. See Bagley
v. State, 681 So.2d 262 (Ala.Crim.App. 1995). The
Alabama Supreme Court denied certiorari review, and the
certificate of judgment was issued on September 6, 1996.
instant petition was filed in 2014. In this petition, as best
I can discern, Bagley made the following allegations: (1)
" Petitioner is being unlawfully restrained against his
liberty that is granted to him by the Eighth Amendment of the
United States Constitution about false imprison" ; (2)
" petitioner is being unlawfully restrained against his
Eighth Amendment right to excessive bail" ; (3) "
the jury in my trial was 10 whites and to (2) black[, which
is a] violation under the Boston [sic] v. Kentucky" ;
(4) " the fact relief upon were not known by the
petitioner or the petitioner's counsel at the time of
trial or sentencing or in time to file a post-trial motion
pursuant to Rule 24, or in any previous collateral proceeding
and could not have been discovered by any of those time
through the exercise of reasonable diligence" ; (5)
" the facts establish that the petitioner is innocent of
the crime for which the petitioner was convicted or should
not have received the sentence that petitioner received"
; (6) " I have no copy with me in the Etowah County Jail
been held without no bond or no court date for the Alabama
Department of Corrections" ; (7) " the court was
without jurisdiction to render judgment or to impose
sentence" ; (8) " newly discovered from Alabama
criminal appeal exist which require that the conviction or
sentence be vacated the sentence court" ; and (9) "
my civil right been violation the individual right of
personal liberty guaranteed by the Bill of Right and the
13th, 15th, and 19th Amendment as well by legislation such as
the voting right
act civil right include esp the right to vote, the right of
due-process and the right of equal protection under the
law." (C. 10-23.)
waiting for a response from the State, the circuit court
summarily denied Bagley's petition on November 3, 2014.
The circuit court stated: " James E. Bagley's
petition for writ of habeas corpus ad testificandum is hereby
denied." (C. 35.)
did not file the standard Rule 32 form, and, as noted
earlier, his petition was filed as a civil action and styled
as a " petition [for] writ habeas corpus ad
testificandum." However, " '[t]he substance of
a motion and not its style determines what kind of motion it
is.'" Ex parte Deramus, 882 So.2d 875, 876
(Ala. 2002) (quoting Evans v. Waddell, 689 So.2d 23,
26 (Ala. 1997)). Here, Bagley filed the petition in the court
in which he was convicted of two counts of first-degree theft
of property in 1995. Further, the petition appears to
challenge those two convictions and to state grounds that are
recognized under Rule 32, Ala. R. Crim. P. Therefore,
Bagley's petition should be treated as a Rule 32, Ala. R.
Crim. P., petition for postconviction relief. It appears that
the instant petition is Bagley's sixth Rule 32 petition.
consideration of the above, I would direct the circuit court
to set aside its earlier ruling denying the petition for a
writ of habeas corpus and to treat the petition as a petition
for postconviction relief filed pursuant to Rule 32, Ala. R.
Crim. P. I further note that it would be within the circuit
court's discretion to require Bagley to refile his
petition on the form provided in the appendix to Rule 32,
Ala. R. Crim. P., provided that the circuit court allow
Bagley a reasonable time to refile a properly verified Rule
32, Ala. R. Crim. P., petition on the proper form.
Furthermore, if the circuit court found that Bagley is
continually filing petitions for postconviction relief in
which his claims are precluded or completely without merit,
the court could consider adopting sanctions against Bagley.
As Judge Kellum has stated:
" I believe that allowing [the petitioner] to file
multiple petitions for postconviction relief in which his
claims are either precluded or without merit wastes scarce
judicial resources. Therefore, I would encourage the circuit
court to consider adopting sanctions like those proposed in
Peoples v. State, 531 So.2d 323 (Ala.Crim.App.
1988), and Procup v. Strickland, 792 F.2d 1069 (11th
Cir. 1986), to prevent future frivolous litigation on the
part of [the petitioner] and other similarly situated
inmates. See Ex parte Thompson, 38 So.3d 119
Bennett v. State, 77 So.3d 174 (Ala.Crim.App. 2011)
(Kellum, J., concurring specially).
there is no evidence in the record indicating that the
circuit court treated Bagley's petition as a Rule 32
petition, the majority's opinion concludes, with a great
deal of certainty, that the circuit court treated
Bagley's petition as a Rule 32 petition. The majority
reaches this conclusion by pointing out that, other than the
fact that the circuit court's type written
order explicitly stated that it was denying
a petition for a writ of habeas corpus and the fact that the
petition was docketed and treated as a civil action, "
nothing else in the record affirmatively indicates that the
circuit court did not properly treat Bagley's petition as
a Rule 32
petition." In other words, there are at least two facts
in the record indicating that the circuit court did not treat
Bagley's petition as a Rule 32 petition and there are
zero facts in the record indicating that the circuit court
treated Bagley's petition as a Rule 32 petition.
Nevertheless, according to the majority, this Court should
assume that the circuit court treated Bagley's petition
as a Rule 32 petition. I do not understand the majority's
haste to dismiss Bagley's petition before we know whether
the petition was properly reviewed by the circuit court. As
an appellate court, this Court should not be in a headlong
rush to dismiss a petitioner's claims before we know
whether they have been properly reviewed.
on the foregoing, I would simply remand the case to the
circuit court for that court to set aside its order denying
the petition for a writ of habeas corpus and for that court
to treat Bagley's petition as a petition for
postconviction relief filed pursuant to Rule 32, Ala. R.
Bagley's brief is a
conglomeration of handwritten pages and copies of various
documents from the record, and we seriously question whether
his brief satisfies the requirements in Rule 28, Ala. R. App.
The majority opinion refers to the circuit
court's order as " a commonly used standardized
fill-in-the-blank form." However, the only blank on the
order is where the circuit judge electronically signed his
name. (C. 35.)