Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McAnally v. State

Alabama Court of Criminal Appeals

September 20, 2019

Jerry Brad McAnally
v.
State of Alabama

          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 The circuit court summarily dismissed that petition, and this Court affirmed the dismissal on appeal in an unpublished memorandum issued on August 10, 2012.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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.