from Mobile Circuit Court (CC-95-3347.67; CC-95-3348.67)
RETURN TO REMAND 
Anthony Dennis appeals the circuit court's summary
dismissal of his eighth Rule 32, Ala. R. Crim. P., petition
for postconviction relief. We affirm.
and Procedural History
1995, Dennis was charged with one count of first-degree rape,
see § 13A-6-61, Ala. Code 1975, and one count
of first-degree burglary, see § 13A-7-5, Ala.
Code 1975. This Court, in an unpublished memorandum affirming
those convictions, summarized the State's evidence at
Dennis's trial as follows:
"[O]n August 19, 1995, the victim left her apartment
unlocked while she showered. The victim did this because she
was expecting the arrival of a girlfriend, and she did not
want her friend to have to wait outside if she arrived before
the victim got out of the shower.
"When the victim got out of the shower and walked out of
the bathroom, she discovered [Dennis] standing in her
bedroom. [Dennis] pulled the victim onto the bed, raped her,
and forced her to perform oral sex, before leaving the
apartment. After [Dennis] left her apartment, the victim
called 911 and reported the incident to law enforcement
officials. While the victim remained in her bathroom, her
girlfriend arrived, followed by the police. The victim put on
a pair of shorts and a top, and was taken to the hospital for
"[Dennis] contended that he had encountered the victim
earlier in the day and had sexually propositioned her.
According to [Dennis], the victim invited him into her
apartment, and agreed to engage in consensual sexual
intercourse with him for money. [Dennis] stated that the
victim became upset when she realized he had not used a
condom during intercourse. She then ran into the bathroom and
slammed the door. He left the apartment while she was still
in the bathroom.
"At trial, the parties entered into a stipulation that
the DNA from the semen on the victim's shorts matched
Dennis v. State (No. CR-95-1699, Oct. 31, 1997), 727
So.2d 176 (Ala.Crim.App.1997) (table). Based on this
evidence, the jury found Dennis guilty as charged, and the
circuit court sentenced Dennis to 35 years in prison for each
of his convictions. This Court affirmed Dennis's
convictions and sentences in an unpublished memorandum and
issued a certificate of judgment on May 29, 1998.
then, including the petition underlying this appeal, Dennis
has filed eight Rule 32 petitions challenging his convictions
and sentences. In each of those petitions, Dennis alleged
that, during jury deliberations, the trial judge entered the
jury-deliberation room, removed a newspaper from that room,
and admonished the jury without either Dennis or his counsel
being present. Although Dennis's claims regarding the
trial judges's alleged conduct have taken various forms
over his eight petitions (e.g., a violation of his right to
be present and a denial of his right to counsel), each claim
has been rooted in those basic allegations.
with his first petition, which Dennis filed on May 26, 2000,
Dennis alleged that his right to be present at all stages of
his trial was violated because, he said, while the jury was
deliberating and while "neither [Dennis] nor his lawyer
were present, "
"it appears that the Court entered the jury room after
speaking with one of the prosecutors (Affidavit of Nicole
Parker, attached). After that conversation, the same witness
reports that the Court confiscated a newspaper from one of
the jurors[, which] ... contained an article about this case.
The Court's conversations with the jury are not recorded
in the transcript of the trial."
(Record in CR-00-0912, C. 23.) But the judge who presided
over Dennis's trial also presided over Dennis's first
Rule 32 petition and, after holding a hearing on Dennis's
petition, denied Dennis's claim that "[h]is right to
be present at all stages of the proceedings was violated when
the court confiscated a newspaper from one of the jurors
prior to the arrival of [Dennis] and his counsel."
(Record in CR-00-0912, C. 40.) In its order, the circuit
court concluded, in part, that, "as this court stated at
length at the hearing on the Rule 32 motion, it has always
been the practice of this court to conduct all proceedings in
the defendant's presence. No witness was offered at the
hearing on the Rule 32 motion." (Record in CR-00-0912,
the circuit court denied Dennis's petition, Dennis filed
a "motion to amend," in which he argued that he
"was denied his Sixth Amendment right to counsel during
the trial court's off-the-record confiscation of a
newspaper from the jury." (Record in CR-00-0912, C. 43.)
To support his claim, Dennis attached to his amendment a
letter purportedly authored by James Brandyburg (one of the
assistant district attorneys who prosecuted Dennis), in which
"The trial judge was advised by one of the attorneys
that a juror was observed entering the 'open'
courtroom with a newspaper. My recollection of this incident
is that all the attorneys were present when the trial judge
promptly removed the newspaper. Although I do not recall who
informed the judge, or the specifics on how the newspaper was
removed, it is obvious that based on [Dennis's] claim
that I was not the only person present privy to this
(Record in CR-00-0912, C. 54-55.) The circuit court did not
rule on Dennis's motion. Dennis appealed.
appeal, this Court affirmed by unpublished memorandum the
circuit court's denial of Dennis's petition, in which
Dennis claimed that the trial court had entered the jury
room, confiscated a newspaper, and admonished the jury
without Dennis or his counsel being present. See Dennis
v. State (No. CR-00-0912, Aug. 24, 2001), 837 So.2d 888
February 13, 2001, Dennis filed his second Rule 32 petition.
In that petition, Dennis alleged that he was denied the right
to counsel during a critical stage of his trial when
"the trial court entered the jurors' deliberating
room and confiscated a Mobile Press Newspaper from
the jurors with information concerning [Dennis's] trial.
This incident occurred off-the-record and was not recorded in
the court reporter's record on direct appeal."
(Record in CR-01-1480, C. 43.) To support his allegation,
Dennis again cited the Brandyburg letter. (Record in
CR-01-1480, C. 43.)
response, the State alleged that, because Dennis's first
petition "was addressed on its merits," and because
Dennis's claim about the circuit court's confiscating
a newspaper was the same as, or similar to, the claim Dennis
raised in his first petition, Dennis's petition was a
successive petition under Rule 32.2(b), Ala. R. Crim. P.
(Record in CR-01-1480, C. 53-57.) The circuit court agreed
with the State and summarily dismissed Dennis's claim as
successive under Rule 32.2(b), Ala. R. Crim. P. (Record in
CR-01-1480, C. 84-87.) Dennis appealed, and this Court
affirmed the circuit court's decision in an unpublished
memorandum. See Dennis v. State (No. CR-01-1480,
Sept. 20, 2002), 868 So.2d 488 (Ala.Crim.App.2002) (table).
Dennis raised the same denial-of-counsel claim in his third
Rule 32 petition. (Record in CR-02-0855, C. 47-49.) The
circuit court again summarily dismissed that claim, Dennis
again appealed, and this Court again affirmed the circuit
court's judgment by an unpublished memorandum. In that
unpublished memorandum, this Court held:
"[Dennis] argues that he was denied counsel during a
critical stage of his trial. Specifically, he contends that,
during the jury's deliberations and outside the presence
of his counsel, the trial court entered the jury deliberation
room and removed a newspaper that contained an article about
the trial. This Court addressed the merits of and
rejected the same or a similar claim on appeal from the
dismissal of [Dennis's] second Rule 32 petition.
Therefore, that claim is precluded as successive.
See Rule 32.2(b), Ala. R. Crim. P."
(Emphasis added.) Dennis v. State (No. CR-02-0855,
Apr. 18, 2003), 880 So.2d 513 (Ala.Crim.App.2003) (table).
by the circuit court's previous decisions and this
Court's affirmances of those decisions, Dennis again
raised the same denial-of-counsel claim in his fourth and
fifth Rule 32 petitions. (See Record in CR-05-2105,
C. 50, and in CR-09-0419, C. 57.) The circuit court summarily
dismissed those petitions, Dennis appealed, and this Court
affirmed those decisions by unpublished memorandums. See
Dennis v. State (No. CR-05-2105, Jan. 12, 2007), 4 So.3d
588 (Ala.Crim.App.2007) (table); Dennis v. State
(No. CR-09-0419, June 18, 2010), 77 So.3d 629
three years after this Court affirmed the summary dismissal
of Dennis's fifth Rule 32 petition, Dennis filed his
sixth Rule 32 petition. In that petition, Dennis again
reasserted his denial-of-counsel claim. Dennis also raised a
slight variation of that claim, alleging that his
denial-of-counsel claim "was previously denied due to
the State's fraud on the court." (Record in
CR-13-0324, C. 46.) According to Dennis, the alleged fraud
centered on the State's use of the Brandyburg letter,
claiming that the State "knowingly misrepresented"
the statement in which "[Brandyburg] recalls all
attorneys being present during the ex parte jury misconduct
instruction" because, Dennis asserts, the statement
"was referring only to all attorneys representing the
State" being present--not Dennis's counsel. (Record
in CR-13-0324, C. 46.) The circuit court rejected both
claims. Dennis appealed, and this Court again affirmed the
circuit court, holding as follows in its unpublished
"Dennis's claim that the trial court was without
jurisdiction to render judgment or impose his sentences
because he was denied his Sixth Amendment right to counsel
during alleged ex parte jury instructions given by the trial
court is procedurally barred by Rule 32.2(b), Ala. R. Crim.
P., because this petition is successive and this claim, or a
variant thereof, has been raised and addressed in previous
petitions. See Dennis v. State, (CR-01-1480) 868
So.2d 488 (Ala.Crim.App.2002) (table); Dennis v.
State, (CR-02-0855) 880 So.2d 513 (Ala.Crim.App.2003)
(table); Dennis v. State, (CR-05-2105) 4 So.3d 588
(Ala.Crim.App.2007) (table); Dennis v. State,
(CR-09-0419) 77 So.3d 629 (Ala.Crim.App.2010) (table). Dennis
argues, though, that this claim is not successive because it
is a jurisdictional claim that has not been addressed on the
merits. Contrary to Dennis's assertion, this claim has
been addressed on its merits. See Dennis,
(CR-01-1480) 868 So.2d 488 ('Although dismissed by the
trial court as ...