Appeal
from Shelby Circuit Court (CC-04-1257.61).
KELLUM, Judge.
Jerry
Brad McAnally appeals the circuit court's summary
dismissal of his petition for postconviction relief filed
pursuant to Rule 32, Ala. R. Crim. P., in which he attacked
his January 2006 guilty-plea conviction for criminal
solicitation to commit murder and his resulting May 2006
sentence of life imprisonment. McAnally did not appeal his
conviction and sentence. However, in 2007, McAnally filed a
Rule 32 petition challenging his conviction and sentence. The
circuit court summarily dismissed that petition, and this
Court affirmed the dismissal on appeal in an unpublished
memorandum issued on August 10, 2012. McAnally v.
State (No. CR-10-1314), 152 So. 3d 455
(Ala.Crim.App.2012) (table).[1]
On
March 12, 2018, McAnally filed this, his second, Rule 32
petition. He filed the petition pro se and argued that the
trial court lacked jurisdiction to accept his guilty plea or
to sentence him. McAnally subsequently retained counsel to
represent him, and the circuit court granted counsel leave to
file an amended petition. McAnally, through counsel, filed an
amended petition on December 28, 2018,[2] in which he
alleged: (1) that his guilty plea was involuntary because, he
said, he had "the distinct impression" that he
would receive a lesser sentence than life imprisonment (C.
89); and (2) that his trial counsel was ineffective for not
moving to withdraw his guilty plea when he was sentenced to
life imprisonment. McAnally also argued in the amended
petition that he was entitled to equitable tolling because,
he said, he had retained counsel to file his first Rule 32
petition, but counsel had failed to properly file that
petition within the limitations period in Rule 32.2(c), Ala.
R. Crim. P. Therefore, McAnally concluded, he should be
permitted to pursue the claims in the instant petition.
Without receiving a response from the State, the circuit
court summarily dismissed McAnally's amended petition on
February 25, 2019, without stating grounds. McAnally did not
file a postjudgment motion.
I.
McAnally
first contends that the circuit court erred in summarily
dismissing his petition without stating its reasons for doing
so. However, "[t]he general rules of preservation apply
to Rule 32 proceedings." Boyd v. State, 913
So.2d 1113, 1123 (Ala.Crim.App.2003). McAnally did not raise
this issue in the circuit court; therefore, it was not
properly preserved for review. See, e.g., Robinson v.
State, 869 So.2d 1191, 1193 (Ala.Crim.App.2003), and
Whitehead v. State, 593 So.2d 126, 130
(Ala.Crim.App.1991). Moreover, even if this issue had been
properly preserved, it is meritless because "Rule 32.7
does not require the trial court to make specific findings of
fact upon a summary dismissal." Fincher v.
State, 724 So.2d 87, 89 (Ala.Crim.App.1998).
II.
McAnally
also reasserts on appeal the two claims from his amended
petition and contends that the circuit court erred in
summarily dismissing those claims. Specifically, McAnally
argues that he pleaded both claims with sufficient
specificity to satisfy the pleading requirements in Rule 32.3
and Rule 32.6(b), Ala. R. Crim. P., and that, for the same
reasons asserted in his amended petition, he is entitled to
the benefit of equitable tolling.
"A Rule 32 petitioner is entitled to an evidentiary
hearing on a claim in a postconviction petition only if the
claim is 'meritorious on its face.' Ex parte
Boatwright, 471 So.2d 1257, 1258 (Ala. 1985). A
postconviction claim is 'meritorious on its face'
only if the claim (1) is sufficiently pleaded in accordance
with Rule 32.3 and Rule 32.6(b); (2) is not precluded by one
of the provisions in Rule 32.2; and (3) contains factual
allegations that, if true, would entitle the petitioner to
relief. A Rule 32 petitioner is not entitled to an
evidentiary hearing on claims that are precluded by one or
more of the provisions in Rule 32.2. See Sumlin v.
State, 710 So.2d 941, 943 (Ala.Crim.App.1998)
('[B]ecause the issues he raised were procedurally
barred, the appellant was not entitled to an evidentiary
hearing on his petition.')."
Kuenzel v. State, 204 So. 3d 910, 914
(Ala.Crim.App.2015). Moreover, although the doctrine of
equitable tolling, if applicable, operates to toll the
limitations period in Rule 32.2(c), Ala. R. Crim. P., it is
not applicable to any of the other preclusions in Rule 32.2,
Ala. R. Crim. P. See State v. Baker, 172
So. 3d 860, 866 (Ala.Crim.App.2015).
Assuming,
without deciding, that McAnally's claims were
sufficiently pleaded and that he is entitled to the benefit
of equitable tolling,[3] we nonetheless conclude that he is
entitled to no relief because this is McAnally's second
petition and it is, by definition, a successive petition, see
Rule 32.2(b), Ala. R. Crim. P.; therefore, his claims are
subject to the preclusions in Rule 32.2(a)(4), Rule 32.2(b),
and Rule 32.2(d), Ala. R. Crim. P.
A.
Initially,
we recognize that in Ex parte Clemons, 55 So. 3d');">55 So. 3d 348');">55 So. 3d');">55 So. 3d 348
(Ala. 2007), the Alabama Supreme Court held that the
preclusions in Rule 32.2 are waivable affirmative defenses
and that an appellate court may not sua sponte apply the
preclusions on appeal except in extraordinary circumstances.
We likewise recognize that the State did not file a response
to McAnally's petition raising any of the preclusions in
Rule 32.2, even though it had the opportunity to do so, and
the circuit court stated no grounds for its summary dismissal
of McAnally's petition. However, under the circumstances
in this case, we may apply the preclusions in Rule
32.2(a)(4), Rule 32.2(b), and Rule 32.2(d) to McAnally's
claims.
First,
this Court has recognized that Ex parte Clemons was
"grounded in due-process principles" of
"be[ing] given notice of [any] preclusion ground."
A.G. v. State, 989 So.2d 1167, ...