James Borden challenged his capital murder conviction and death sentence in a timely Rule 32 petition filed in 2001, in which he argued inter alia that he was ineligible for the death penalty because he was intellectually disabled, that his trial lawyer provided ineffective assistance at both phases of his capital trial, and that jurors engaged in misconduct. While the petition was pending in the Rule 32 trial court, the Supreme Court issued its decision in Atkins v. Virginia, 536 U.S. 304 (2002), holding that the execution of people with intellectual disability violates the Eighth Amendment. Mr. Borden filed a motion to vacate his death sentence in light of Atkins and a motion to amend his petition, which set out in more detail his juror misconduct claim. The trial court summarily dismissed Mr. Borden’s petition without ruling on his motion to amend.
On appeal, the Alabama Court of Criminal Appeals remanded for the trial court to make specific findings as to Mr. Borden’s claim that he is intellectually disabled. Mr. Borden was found to be a person with intellectual disability and was resentenced to life imprisonment without parole. On return to remand, the Court of Criminal Appeals affirmed in an unpublished memorandum opinion the dismissal of the rest of Mr. Borden’s claims. The Alabama Supreme Court granted certiorari to address whether the Court of Criminal Appeals erred in holding that Mr. Borden failed to comply with Rule of Appellate Procedure 28(a)(10) and thereby waived his ineffective-assistance-of-counsel claims and whether that court erred in holding that Mr. Borden failed to preserve for appellate review his juror misconduct claims. Ex parte Borden, No. 1050042, slip op. at 4-5 (Ala. Aug. 17, 2007).
Rule 28(a)(10)
The Court of Criminal Appeals affirmed the trial court’s summary dismissal of Mr. Borden’s ineffective-assistance-of-counsel claims, finding that the penalty-phase claims were moot in light of his re-sentencing and that he waived the first-phase claims by failing to comply with appellate procedure Rule 28(a)(10). The State has argued in a number of criminal appeals, including many death penalty cases, that Rule 28(a)(10) requires a particular formulation for making arguments in appeal briefs. The State has asserted, based on its interpretation of what Rule 28(a)(10) requires, that claims are waived even when they are expressly addressed.
Rule 28(a)(10) requires that appellate briefs include “[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” Ala. R. App. P. 28(a)(10). The Court of Criminal Appeals wrote that “Borden’s argument consists of a single paragraph of general propositions of law; a lengthy recitation of the facts of his life and the facts of the offense; and an eleven-page list of ineffective-assistance-of counsel allegations. The list of claims is unsupported by legal authority, and it is almost entirely devoid of citations to the record.” Ex parte Borden, slip op. at 6 (quoting unpublished memorandum opinion below). Because it found that Mr. Borden’s argument amounted to a “[r]ecitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon,” the court held that Mr. Borden waived his ineffective-assistance-of-counsel arguments on appeal and refused to address those claims. Id. at 6.
The Alabama Supreme Court held that Mr. Borden did not fail to comply with Rule 28(a)(10) because his brief to the Court of Criminal Appeals regarding his ineffective-assistance-of-counsel claims included 22 pages of facts addressing why the trial court erred in summarily dismissing those claims and11 pages of argument, including some 25 citations to caselaw, along with explanations and quotations from the cited cases. Id. at 9.
Further, the court “note[d] that waiver of an argument for failure to comply with Rule 28(a)(10), Ala. R. App. P., has been limited to those cases where there is no argument presented in the brief and there are few, if any, citations to relevant legal authority, resulting in an argument consisting of undelineated general propositions.” Id. at 9-10.
Amended Petition
The trial court did not address Mr. Borden’s amended Rule 32 petition, in which he set out detailed facts regarding his juror misconduct claims. The court summarily dismissed the juror misconduct claims, finding they were procedurally barred because they could have been raised in a motion for new trial. Mr. Borden stated in a timely motion for reconsideration that the trial court had failed to consider any of the facts in his amended petition. On appeal, the Court of Criminal Appeals held that Mr. Borden had failed to preserve his juror misconduct claims for appellate review because “Borden did not object to the [trial] court’s failure to rule” on his amended petition. Id. at 14.
The Alabama Supreme Court held as an initial matter that the trial court’s ruling that the juror misconduct claims were procedurally barred is an adverse ruling on the juror misconduct claim for the Court of Criminal Appeals to review.
The court went on to remind the Court of Criminal Appeals of its decision in Ex parte Rhone, 900 So. 2d 455 (Ala. 2004), in which it held that the criminal appeals court erred in imposing on a Rule 32 petitioner an initial burden to show he had been diligent in filing an amended petition or that the facts underlying the amendment were unknown when the original petition was filed. Rather, the rule is that a Rule 32 petitioner is entitled to amend his petition “when the amendment is necessary for a full determination on the merits and there would be no undue delay in the hearing because of the amendment or undue prejudice to the State by the filing of the amendment.” Id. at 17-18. The Court of Criminal Appeals erred in Mr. Borden’s case by placing a burden on Mr. Borden to secure a ruling on his proposed amended petition even though “the amendment should be freely allowed if it is necessary for a full determination on the merits and if the amendment does not unduly prejudice the opposing party or unduly delay the hearing.” Id. at 18.
The Borden decision reaffirms a Rule 32 petitioner’s right to freely amend his petition and corrects the Court of Criminal Appeals’ strained interpretation of Rule 28(a)(10).