Petition for Writ of Certiorari — Homer Lawrence Lane, Petitioner v. Alabama

No.

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CV

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7

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Supreme Court, U S

FILED

OCT 3 0 2019

IN THE

f

SUPREME COURT OF THE UNITED STATES

L_£^CE OF THE CLERK '

HOMER LAWRENCE LANE,

PETITIONER

vs.

STATE OF ALABAMA,

RESPONDENT(S)

PETITION FOR A WRIT OF CERTIORARI TO

THE ALABAMA SUPREME COURT

Homer Lawrence Lane

AIS #122331

SCCF - 1000 St. Clair Road

Springville, Alabama 35146-5582

RECEIVED

MOV - 5 »

QUESTION(S) PRESENTED

I. WHETHER THE STATE OF ALABAMA MAY IMPOSE A STATE

PROCEDRURAL BAR RULE TO PRECLUDE A STRUCTURAL ERROR CLAIM.

LIST OF PARTIES

[ X ] All Parties appear in the caption of the case on the cover page.

[ ]

All parties do not appear in the caption of the case on the cover page. A list of all

parties to the proceeding in the court whose judgment is the subject of this petition

is as follows:

TABLE OF CONTENTS

INDEX TO APENDICES

1

TABLE OF AUTHORITIES

11

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

4

REASONS FOR GRANTING THE WRIT

10

CONCLUSION

10

PROOF OF SERVICE

11

INDEX TO APPENDICES

APPENDIX A: Alabama Court of Criminal Appeals (May 17, 2019) Memorandum

Decision

APPENDIX B: A4abama-Q©ui:t-ef-€r-i-mina-l'-A-ppeais-(-May-lTV2-007-)-Memor.andum<7

‘Decision-'

APPENDIX C:

APPENDIX D:

APPENDIX E:

APPENDIX F:

TABLE OF AUTHORITIES CITED

PAGE

CASES

Argersinger v. Hamlin,

530 (19972)

407,

25,

92 S.Ct.

2006,

32 L.Ed.2d

5

Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113

L. Ed. 2d 302 (1991)............................................................................. 6

Brewer v. Williams, 430 U.S. 387, 399 (1977)

Davis v. State,

682 So.2d 476

. 6

(Ala.Crim.App. 1995)......6

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d

.5

799 (1963)

Luis V.

(2016)

United

States,

136

S.Ct.

1083,

194

L.Ed.2d

. . . .6

Michigan v. Jackson, 475 U.S. 625, 629 (1986)

Sullivan v Louisiana, 508 U.S. 275,

2078, 2081, 124 L.Ed.2d 182 (1993)

STATUTES AND RULES

Alabama Rules of Criminal Procedure, Rule 32.2 et seq.

OTHER

Federal Constitution:

Amendment 5.

Amendment 6.

Amendment 14

278,

256

.6

113

S.Ct.

. 8

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix N/A to

The petition and is

[ ] reported at

N/A

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

; or,

The opinion of the United States district court appears at Appendix N/A to

The petition and is

[ ] reported at

N/A

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[X]

For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

A to the petition

The petition and is

[ ] reported at__

; or,

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

The opinion of the Alabama Court Criminal of Appeals

Appears at Appendix A to the petition and is

[ ] reported at_________________________________

; or,

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

1

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was N/A .

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the on the following date: N/A and a copy of the order denying

rehearing appears at Appendix N/A .

[ ] An extension of time to file the petition for a writ of certiorari was granted to

and including N/A (date) on N/A (date) in Appendix No. N/A .

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

[X]

For cases from state courts:

The date on which the highest state court decided my case was May 17, 2019

A copy of that decision appears at Appendix A

[ X ] A timely petition for rehearing was thereafter denied on the following date:

June 7, 2019

[ ] An extension of time to file the petition for a writ of certiorari was granted to

and including N/A (date) on

N/A (date) in Appendix No.

N/A .

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Federal Constitution:

Amendment 6.

Amendment 14.

3

STATEMENT OF THE CASE

l. The Petitioner, Homer Lawrence Lane (hereinafter,

Lane), was indicted by the June 1978 Term of the

Talladega, Alabama County Grand Jury for an offense of

"ROBBERY OR ATTEMPT THEREOF,

WHEN THE VICTIM IS

INTENTIONALLY KILLED BY THE DEFENDANT," in a violation

of Section 13-11-2(a)(2), Alabama Code 1975.

On or about October 10, 1978, Lane entered a plea

of not guilty to the offense of Capital Murder.

On or about October 16, 1978, Lane withdrew his

plea of not guilty and pled guilty as charged. Due to

the nature of the offense, it was necessary for the

State to prove a prima facie case before conducting the

sentencing phase of the trial.

Accordingly, a jury was selected, impaneled, and

sworn in accordance with the law and trial of the case

commenced which ultimately resulted in a verdict of

guilt for the Capital Murder offense as charged in the

indictment and a recommendation for a sentence of

death.

On or about October 24, 1978, Presiding Judge

William

C.

Sullivan

(deceased)

rejected

the

recommendation of the jury and sentenced Lane to a term

of imprisonment for "life without parole."

On or about September 26, 2018, Lane submitted a

Rule 32 Petition for Postconviction Relief to the

Circuit Court of Talladega County challenging his

conviction and sentence for the offense of Capital

Murder.

On or about October 1, 2018, the said petition was

filed, and/or docketed by the Talladega County Circuit

Clerk's Office.

On or about December 12, 2018, the State filed its

"State's Answer and Motion to Dismiss." (CR. 71-78)

On or about December 27, 2018, Lane filed a

"Petitioners Response To States Answer And Motion To

Dismiss." (CR. 92-94)

4

On or about January 10, 2 019, the trial court

entered an Order denying and dismissing the Rule 32

Petition. (CR. 95-102)

The trial court held that Lane's petition was

successive and barred by state procedural Rule(s) 32.2

etc., Ala.R.Crim.Pro..

On or about January 22, 2019, Lane filed a timely

I

Notice of Appeal' to the Alabama Court of Criminal

Appeals (CR. 103-106)

The Court of Criminal Appeals affirmed the judgment of

the trial court on May 17,

2 019 and overruled the

Application for Rehearing on June 7, 2019.

2. A copy of the Opinion of the appellate court is attached

to this petition as Appendix A which shows the Court of

Criminal Appeals case number to be CR-18-0414.

3. Petitioner alleges as grounds for the issuance of the

writ the following:

(A) The basis of this petition for the writ is that

the decision of the Court of Criminal Appeals is

in

conflict with prior decisions of the United States Supreme

Court on the same point of law.

Accordingly,

the

Petitioner averred that,

"he

was

unconstitutionally denied his right to counsel

(at a

critical stage of the proceedings) , in a violation of the

Sixth Amendment of the United States Constitution."

The Memorandum decision by the Court acknowledges that

Petitioner's claim in this cause is jurisdictional but

purports that he is not entitled to postconviction relief

because he raised this claim in 2007 and the court's

(though acknowledging that Lane was denied his right to

counsel) ruled adversely on the claim.

The Sixth Amendment guarantees the right of counsel in

all criminal prosecutions. The United States Constitution

Amendment VI assures the right to counsel in all Federal

and

State

criminal

prosecutions

in

that

result

imprisonment. Argersinger v. Hamlin, 4 07, 25, 92 S.Ct.

2006, 32 L.Ed.2d 530 (19972); Gideon v. Wainwright, 372

U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

5

Petitioner's claim in this cause that he was denied

counsel (at a critical stage of the proceedings) cannot be

deemed as harmless error by this Honorable Court.

Petitioner avers that his initial appearance and

arraignment in district court triggered his right to

counsel because it was a critical stage in the criminal

proceedings and transformed his

status

from that of

'suspect

to

criminal

defendant.

See;

Michigan

v.

Jackson, 475 U.S. 625, 629 (1986), Brewer v. Williams, 430

U.S. 387, 399 (1977)

Accordingly, the United States Supreme Court held in

the case of Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct.

1246,

113

L.

Ed.

2d

302

(1991),

we

divided

constitutional errors into two classes,

The first we

called "trial error," because the errors "occurred during

presentation of the case to the jury" and their effect may

"be quantitatively assessed in the context of other

evidence presented in order to determine whether [they

were] harmless beyond a reasonable doubt."

Id., at 307308, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (internal quotation

marks

omitted).

These

include

"most

constitutional

errors." Id., at 306, 111 S. Ct. 1246, 113 L. Ed. 2d 302.

The second class of constitutional error we called

"structural defects." These "defy analysis by 1 harmlesserror' standards" because they "affect the framework within

which the trial proceeds," and are not "simply an error in

the trial process itself." Such errors include the denial

of counsel, see Gideon v. Wainwright, 3 72 U.S. 335, 83 S.

Ct. 792, 9 L. Ed. 2d 799 (1963), the denial of the right of

self-representation, see McKaskle v. Wiggins, 465 U.S. 168,

177-178, n 8, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984), the

denial of the right to public trial, see Waller v. Georgia,

467 U.S. 39, 49, n 9, 104 S. Ct. 2210, 81 L. Ed. 2d 31

(1984), and the denial of the right to trial by jury by the

giving of a defective reasonable-doubt instruction, see

Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124

L. Ed. 2d 182 (1993).

In the case of Luis v. United States, 136 S.Ct. 1083,

194 L.Ed.2d 256 (2016), the Supreme Court stated that, "We

have little trouble concluding that erroneous deprivation

of the right to counsel,

with consequences that are

necessarily

unquantifiable

and

indeterminate,

unquestionably qualifies as 'structural error.'"

6

"No one doubts thefundamental character of

a

criminal defendant's Sixth Amendment right to the

""Assistance

of

Counsel. I I

In

Gideon

v.

Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed.

2d 799 (1963), the Court explained:

'The right to be heard would be, in many cases, of

little avail if it did not comprehend the right to

be heard by counsel. Even the intelligent and

educated layman has small and sometimes no skill

in the science of law. If charged with crime, he

is incapable,

generally, of

determining

for

himself whether the indictment is good or bad. He

is unfamiliar with the rules of evidence. Left

without the aid of counsel he may be put on trial

without a proper charge,

and convicted upon

incompetent evidence, or evidence irrelevant to

the issue or otherwise inadmissible. He lacks both

the skill and knowledge adequately to prepare his

defense, even though he have a perfect one. He

requires the guiding hand of counsel at every step

in the proceedings against him. Without it, though

he be not guilty,

he

faces

the danger of

conviction because he does not know how to

I 1

establish his innocence.

Id., at 344-345, 83

S. Ct. 792, 9 L. Ed. 2d 799 (quoting Powell v.

Alabama, 287 U.S. 45, 68-69, 53 S. Ct. 55, 77 L.

Ed. 158 (1932)).

It is consequently not surprising: first, that

this Court's opinions often refer to the right to

counsel as ""fundamental, I I id., at 68, 53 S. Ct.

55, 77 L. Ed. 158; see Grosjean v. American Press

Co., 297 U.S. 233, 243-244, 56 S. Ct. 444, 80 L.

Ed. 660 (1936) (similar) ; Johnson v. Zerbst, 304

U.S. 458, 462-463, 58 S. Ct. 1019, 82 L. Ed. 1461

(1938)

(similar);

second,

that

commentators

describe the right as a ""great engin[e] by which

an innocent <*pg. 263> man can make the truth of

his innocence visible, 1 I Amar, Sixth Amendment

First Principles, 84 Geo. L. J. 641, 643 (1996);

see Herring v. New York, 422 U.S. 853, 862, 95 S.

Ct. 2550, 45 L. Ed. 2d 593 (1975); third, that we

have understood the right to require that the

Government

provide

counsel

for

an

indigent

defendant accused of all but the least serious

7

crimes, see Gideon, supra, at 344, 83 S. Ct. 792,

9 L. Ed. 2d 799; and fourth, that we have

considered the wrongful deprivation of the right

error

to

counsel

a

''structural i i

that

so

affects the framework within which the trial

proceeds' ' that courts may not even ask whether

the error harmed the defendant. United States v.

Gonzalez-Lopez, 548 U.S. 140, 148, 126 S. Ct.

2557, 165 L. Ed. 2d 409 (2006) (internal quotation

marks omitted); see id., at 150, 126 S. Ct. 2557,

165 L. Ed. 2d 409.

Accordingly, Petitioner avers his claim "that he was

denied his right to counsel" is not subject to any

preclusion grounds where the United States Supreme Court

II II

has held that

structural error" requires automatic

reversal of a conviction."

(B) The basis of this petition for the writ is that

the decision of the Court of Criminal Appeals is in

conflict with prior decisions of the United States Supreme

Court on the same point of law.

Accordingly, the Petitioner averred that, "the trial

court committed "structural error" where the court

failed to give a "reasonable doubt" instruction to the

jurors."

Petitioner avers that the United States Supreme

Court held in Sullivan v Louisiana, 508 U.S. 275, 278,

113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); that an

error in an instruction on reasonable doubt can never

be harmless error.

The

failure

to

give

a

jury

instruction

on

reasonable doubt is a structural defect that nullifies

the proceedings.

State v. Langley,

896 So.2d 200

(La.Ct.App. 2004)

In Davis v. State, 682 So.2d 476 (Ala.Crim.App.

1995), the appellate court found reversible error in a

trial court's failure to give a jury instruction on

'reasonable doubt' in a Capital Murder trial after the

defendant had pled guilty, relying on the case of

Sullivan v. Louisiana, supra.

8

The United States Supreme Court in Sullivan v.

Louisiana,

supra,

stated

that

an

error

in

an

instruction defining reasonable doubt can never be a

harmless error.

Likewise, the failure to define reasonable doubt

and to instruct the jury on reasonable doubt during a

trial proceeding in which the appellant pleads guilty

to Capital Murder and in which the State is required by

statute to prove the Appellant's guilt beyond a

reasonable doubt is reversible error.

In the case at bar the trial court failed to give

the jury an instruction on reasonable doubt.

The

failure to give a reasonable doubt jury instruction is

a structural error that nullifies the proceedings.

"A structural error destroys the validity of the

proceedings; the trial and resulting verdict are an

absolute nullity and can have no effect whatever."

Where the trial court failed to give the jury a

'reasonable doubt' instruction, the court committed

reversible error and Lane is entitled to postconviction

relief in this cause.

9

4

REASONS FOR GRANTING THE PETITION

Petitioner avers that this Honorable Court should

settle the question of whether a state procedural bar can

preclude a "structural defect" claim as the State of

Alabama has done in this case.

CONCLUSION

Petitioner respectfully requests that after a preliminary

examination, the writ of certiorari be granted and that

this Honorable Court proceed under its own rules to review

the matters complained of and to reverse the judgment of

the court of criminal appeals, and for such other relief as

Petitioner may be entitled to as a matter of law.

Respectfully Submitted,

y

Homer L. Lane, pro-se

Date: /oi - 3 0 - /

10