Court of Criminal Appeals Erred in Sua Sponte Application of Procedural Bar


The Alabama Supreme Court reversed the Court of Criminal Appeals’s decision in Jimmy Davis’s appeal from the denial of postconviction relief and remanded for that court to consider Mr. Davis’s ineffective-assistance-of-counsel claims on the merits. Ex parte Davis, No. 1051719, 2007 WL 2216893 (Aug. 3, 2007).

Mr. Davis filed a Rule 32 petition in 2000 challenging his capital murder conviction and death sentence, raising inter alia ineffective assistance of counsel. The State did not assert in the trial court procedural defenses to Mr. Davis’s ineffective-assistance claims based on Alabama Criminal Procedure Rule 32.2(a). The Rule 32 court’s order denying postconviction relief to Mr. Davis made merits determinations on his ineffective-assistance claims.

On appeal, the Court of Criminal Appeals held, sua sponte, that Mr. Davis’s ineffective-assistance claims were procedurally barred because they could have been but were not raised at trial or on appeal. The Alabama Supreme Court denied certiorari on February 16, 2007. On May 4, 2007, the court released its decision in Ex parte Clemons, No. 1041915 (Ala. May 5, 2007), which held that the procedural bars in Rule 32.2(a) were not jurisdictional and therefore could be waived. That same day, the court placed Mr. Davis’s case on rehearing ex mero motu and granted his petition for certiorari limited solely to whether Clemons required reversal in this case.

The State conceded that Clemons requires reversal and expressly disavowed the existence of any extraordinary circumstances in this case that the Alabama Supreme Court recognized in Clemons could permit sua sponte invocation of procedural bars by an appellate court. It urged the court to reverse for the Court of Criminal Appeals to consider Mr. Davis’s ineffective-assistance claims on the merits.

The court agreed with the State and remanded for review of the ineffective-assistance claims on the merits despite the Court of Criminal Appeals’ decision that, had the claim that counsel failed to investigate and present mitigation evidence at the penalty phase “not been procedurally barred we would be compelled to grant relief and order a new sentencing hearing.” Davis, 2007 WL 2216893, at *2 (quoting lower court decision).